1
Fair Work Act 2009
s.604 - Appeal of decisions
Joshua Jimenez
v
Accent Group t/a Platypus Shoes (Australia) Pty Limited
(C2016/5120)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER CIRKOVIC SYDNEY, 21 OCTOBER 2016
Permission to appeal against decision [2016] FWC 5141 of Commissioner Cambridge at
Sydney on 5 August 2016 in matter number U2015/12548.
Introduction
[1] On 27 August 2016 (at 12.05am) Mr Joshua Jimenez lodged a notice of appeal in
which he applied for permission to appeal and appealed under s.604 of the Fair Work Act
2009 (FW Act) against a decision of Commissioner Cambridge issued on 5 August 20161
(Decision). In the Decision, the Commissioner found that Mr Jimenez’s dismissal by Accent
Group t/a Platypus Shoes (Australia) Pty Ltd (Platypus Shoes) was unreasonable and unjust,
and determined that Platypus Shoes should pay Mr Jimenez compensation in the amount of
$1,100. A separate order was issued giving effect to the Decision2 (Order).
[2] Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice
of appeal under s.604 must be filed within 21 calendar days after the date of the decision the
subject of the appeal or within such further time allowed by the Commission on application
by the Appellant. Mr Jimenez’s appeal was filed five minutes after the prescribed 21-day time
period had expired. Accordingly it is necessary for Mr Jimenez to be granted an extension of
time in order for the appeal to be competent.
[3] At the time of his dismissal, Mr Jimenez was employed by Platypus Shoes as a Store
Manager in its Blacktown shoe store. He was summarily dismissed for serious misconduct
and, at the hearing before the Commissioner, Platypus Shoes relied on four allegations of
misconduct to justify the dismissal. The Commissioner rejected that the first, third and fourth
allegations constituted a valid reason for dismissal for the purpose of s.387(a) of the FW Act.
In relation to the second allegation, the Commissioner found under s.387(a), for relevant
purpose, as follows:
1 [2016] FWC 5141
2 PR583606
[2016] FWCFB 7201
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 7201
2
“[53] Allegation number two concerned the applicant taking $220 in cash from Mr
Herning who was both a friend and customer, and not recording that transaction in the
employer’s sales records in any way until seven days later. The $220 in cash was taken
on 10 September and the applicant’s explanation for the delay before which he
recorded the transaction on 17 September was, regrettably, unconvincing.
…
[55] … The applicant did not provide any plausible explanation as to why he did not
rectify what he clearly understood to be a significant irregularity with there being no
record of any transaction for which he permitted the removal from the store of two
pairs of New Balance shoes. Frankly, anyone with even only limited experience in the
retail industry would understand that taking cash from a customer and not immediately
recording it in the till amounts to what might be described as a “mortal sin.”
[56] Consequently, allegation number two which involved the applicant taking cash
for the sale of shoes which he then permitted the customer to take from the store, and
for which he did not account for immediately or within a reasonable time, represented
serious misconduct as was determined by the employer. Unfortunately, the employer
mischaracterised this serious misconduct by describing it as theft. There is little doubt
that the circumstances of the applicant’s serious misconduct regarding the delayed
recording of the sales transaction for the New Balance shoes could not satisfy the
elements required to establish the criminal conduct of larceny.”
[4] The Commissioner then proceeded to deal with the remaining matters required to be
taken into account under s.387(a). In relation to s.387(b) and (c), the Commissioner concluded
that although Platypus Shoes had ostensibly given Mr Jimenez the opportunity to answer the
allegations against him at a meeting before deciding to dismiss him, in fact it had a
predisposed view about the allegations as evidenced by the fact that it had prepared the
termination letter, which characterised Mr Jimenez as having engaged in theft, prior to the
meeting.3
[5] The Commissioner’s conclusions as to whether the dismissal was unfair were as
follows:
“[76] The applicant was summarily dismissed for serious misconduct involving the
employer’s findings in respect to four allegations. Upon proper analysis only one of
the employer’s findings of serious misconduct can be sustained.
[77] The employer’s finding of serious misconduct in respect to the allegation
regarding the applicant failing to properly record and receipt the cash provided in
respect to the purchase of the New Balance shoes, has established valid reason for the
dismissal of the applicant. Particularly in the context of the retail industry, the
misconduct of the applicant in respect to the mishandling of the cash in respect to the
sale of the New Balance shoes to a friend represents serious misconduct that would
justify dismissal with notice.
[78] However, the manifestly erroneous approach adopted by the employer when
dealing with what has subsequently been established to be both serious misconduct
and significantly less serious misdemeanours, has meant that there was not proper
3 Decision at [66]-[69]
[2016] FWCFB 7201
3
basis to justify the summary dismissal of the applicant. The procedural errors made by
the employer have rendered what would have otherwise been an entirely fair dismissal
with notice, to be an unreasonable and unjust summary dismissal.
[79] Therefore, the summary dismissal of the applicant must be held to have been
unreasonable and unjust. The applicant is entitled to remedy for unfair dismissal.”
[6] In relation to remedy, the Commissioner found that reinstatement would not be
appropriate because the valid reason for dismissal which he had earlier identified meant that
Platypus Shoes would legitimately have lost trust and confidence in Mr Jimenez. The
Commissioner assessed compensation ostensibly by reference to the matters set out in
s.392(2) of the FW Act.4 The gist of the assessment was that “[t]he applicant had been
employed for a period of about 11 months, and if he had not been summarily dismissed his
employment may have been properly terminated within a very short period”.5 After finding
that Mr Jimenez had made efforts to mitigate his loss6, the Commissioner determined that he
should be awarded “an amount approximating with one week remuneration at a conservative
estimate of an ordinary weekly rate before dismissal”.7 The Commissioner did not address
s.392(3), which requires the Commission to reduce the amount of compensation by an
appropriate amount on account of misconduct by the employee which contributes to the
employer’s decision to dismiss the employee.
[7] Mr Jimenez’s grounds of appeal, although lengthily expressed, involved only three
propositions:
(1) In relation to the second allegation which the Commissioner found to be
substantiated, the criteria for serious misconduct in reg.1.07 of the Fair Work
Regulations 2009 had not been met, since (relevantly) no theft or fraud was
found to have occurred. Mr Jimenez’s conduct could not be characterised as
involving worse than negligence or poor judgment. There was accordingly no
valid reason for dismissal.
(2) Platypus Shoes failed to provide Mr Jimenez with fair treatment or to
comprehensively and impartially investigate the allegations.
(3) The burden of proof should lie with the employer with respect to allegations of
serious misconduct. Platypus Shoes did not discharge that burden, in that it did
not adduce evidence necessary to satisfy the Commission, in accordance with
the principles stated in Briginshaw v Briginshaw8, that Mr Jimenez had
committed serious misconduct.
[8] Mr Jimenez’s grounds of appeal did not challenge the Commissioner’s analysis and
conclusions concerning the remedy to be awarded.
[9] In support of his application for permission to appeal, Mr Jimenez submitted that:
4 Decision at [83]
5 Decision at [83]
6 Decision at [84]
7 Decision at [85]
8 (1938) 60 CLR 336
[2016] FWCFB 7201
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the Decision contained errors concerning the definition of “serious misconduct”
and “other sections” of the FW Act;
it was in the public interest to clarify the definition of serious misconduct based on
importance and general application;
the decision was incongruent with other decisions of a similar nature, specifically
with regards to the definition of serious misconduct, the employer’s burden of
proof and the need for the employer to conduct a thorough investigation.
[10] Mr Jimenez’s submissions also elaborated on the propositions that he had not
committed any act of theft, that his conduct therefore did not meet the definition of serious
misconduct, that he had been denied procedural fairness, that Platypus Shoes had not
discharged the burden of demonstrating that he had committed serious misconduct, and that
dismissal was a disproportionate penalty for a single negligent or foolish act which caused no
harm to Platypus Shoes.
Consideration
Extension of time
[11] Having regard to the principles applicable to the consideration of an application to
extend time to lodge an appeal as summarised in the Full Bench decision in Jobs Australia v
Eland9, we have decided that the necessary extension of time should be granted. We place
particular weight on the fact that appeal was lodged only five minutes out of time and that
there is no possibility of prejudice to Platypus Shoes.
Permission to appeal
[12] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.10 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[13] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.
9 [2014] FWCFB 4822
10 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2016] FWCFB 7201
5
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as “a stringent one”.11 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment12. In GlaxoSmithKline
Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the
considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”13
[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.14 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.15
[16] We consider that Mr Jimenez’s appeal is fundamentally misconceived, because the
issues it raises pertain to matters in relation to which the Commissioner made findings in his
favour. We have earlier set out or summarised the key aspects of the Decision.
Notwithstanding that the Commissioner found that there was a valid reason for the dismissal,
he also found that Mr Jimenez had not committed theft as alleged by Platypus Shoes, he was
denied procedural fairness, and his dismissal was unreasonable and unjust. An appeal which
is substantially concerned with demonstrating that the Jimenez did not commit theft, that
Platypus Shoes did not discharge its onus of proof in that respect, that the allegations against
Mr Jimenez were not properly or fairly investigated, and that his dismissal might have been
found to have been harsh, therefore lacks utility. It seeks to re-agitate issues upon which Mr
Jimenez effectively succeeded before the Commissioner.
[17] The conduct which the Commissioner found constituted a valid reason for Mr
Jimenez’s dismissal, namely his seven-day delay in recording a sale made to a friend, was not
factually in dispute. Mr Jimenez seeks to challenge the characterisation of this conduct as
being “serious misconduct”, and refers to reg.1.07 in that respect. However it is well
established that:
it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently
serious to justify summary dismissal in order to establish a valid reason for
dismissal; and
11 (2011) 192 FCR 78 at [43]
12 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
13 [2010] FWAFB 5343, 197 IR 266 at [27]
14 Wan v AIRC (2001) 116 FCR 481 at [30]
15 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[2016] FWCFB 7201
6
the criterion for a valid reason is not whether serious misconduct as defined in
reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a
finding that misconduct of the type described in reg.1.07 might well ground a
conclusion that there is a valid reason for dismissal based on the employee’s
conduct).16
[18] Thus although the Commissioner accepted Platypus Shoes’ characterisation of Mr
Jimenez’s conduct as being “serious misconduct” in his consideration under s.387(a), it was
not necessary for the conduct to be characterised in that way for it to constitute a valid reason
for dismissal, nor did it matter that the conduct was not included in the definition of “serious
misconduct” in reg.1.07 because it did not involve theft or fraud. The Commissioner at
paragraph [77] of the Decision concluded that the conduct the subject of the second allegation
constituted a valid reason for dismissal, and that is a finding which was plainly correct.
[19] We do not consider therefore that Mr Jimenez has demonstrated any arguable case of
error in the Decision and has not identified any issue requiring resolution at the Full Bench
level.
[20] We make the observation that we have grave reservations about the manner in which
the Commissioner dealt with the issue of remedy, particularly his assessment of the amount of
compensation to be awarded. The Decision does not articulate any basis for the conclusion in
paragraph [83] that Mr Jimenez “may have been properly terminated within a very short
period” if he had not been dismissed. It is not clear how each matter required to be taken into
account under s.392(2) was considered and weighed. The manner by which the final amount
of one week’s pay as compensation was arrived at was not explained. Nor was s.392(3)
applied in the process.
[21] Nonetheless there was no appeal ground or submission advanced by Mr Jimenez
which challenged the Commissioner’s assessment of compensation. Mr Jimenez was not
legally represented, and his advocate at the hearing of his application for permission to appeal
was another layperson. In those circumstances the Commission had some obligation to
provide Mr Jimenez with a degree of assistance in the manner in which he put forward his
case. However that obligation could not extend to suggesting that he advance appeal grounds
additional to those contained in his notice of appeal. For those reasons, the Commissioner’s
conclusions as to compensation simply do not arise for consideration in the appeal.
[22] We do not consider that it would be in the public interest to grant permission to
appeal. Therefore, in accordance with s.400(1), permission to appeal must be refused.
VICE PRESIDENT
16 See Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520 at [28] and the authorities there cited.
OF THE FAIR WORK MISSION THE
[2016] FWCFB 7201
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Appearances:
A. McBain for J. Jimenez.
A. Perigo of counsel with L. Youkhanis solicitor for Platypus Pty Ltd.
Hearing details:
2016.
Melbourne:
10 October.
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