1
Fair Work Act 2009
s.604—Appeal of decision
Qantas Airways Limited
v
David Dawson
(C2016/7312)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON
SYDNEY, 23 JANUARY 2017
Appeal against decision [2016] FWC 8249 of Deputy President Lawrence on 23 November
2016 in matter number U2016/2341.
[1] Mr David Dawson was employed by Qantas Airways Limited until he was dismissed
on 28 April 2016. Mr Dawson lodged an unfair dismissal application which was heard by
Deputy President Lawrence. On 23 November 2016, Deputy President Lawrence issued a
Decision,1 which found that Mr Dawson’s dismissal from employment was unfair. The
Deputy President found there was a valid reason for the dismissal, noting the dismissal was
not unreasonable or unjust. However, the Deputy President concluded that the dismissal was
harsh having regard to the unfair dismissal provisions contained in Part 3-2 of the Fair Work
Act 2009 (Cth) (“the Act”) and, in particular, section 387(h) of the Act. On this basis, the
Deputy President made an Order2 granting relief from unfair dismissal and ordering that Mr
Dawson be compensated.
[2] On 13 December 2016, Qantas Airways Limited (hereafter “the Appellant”) lodged a
Notice of Appeal, appealing the Deputy President’s Decision. We heard the matter regarding
the application for permission to appeal and the appeal on 12 January 2017. We have decided
to grant permission to appeal, uphold the appeal and quash the original Decision.
[3] At the hearing on 12 January 2017, Mr M. Follett of Counsel sought permission to
appear for the Appellant and Mr M. Seck of Counsel sought permission to appear for Mr
Dawson (hereafter “the Respondent”). Given the complexity of the matter, and having regard
to section 596 of the Act, permission was granted to both parties to be represented.
1 [2016] FWC 8249.
2 PR587782.
[2017] FWCFB 41
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 41
2
The Decision
[4] In reaching his decision, the Deputy President adopted the approach of the Full Bench
in B, C and D v Australian Postal Corporation T/A Australia Post.3 In particular, the Deputy
President stated that:
“[58] Reaching an overall determination of whether a given dismissal was “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a
weighing process. The Commission is required to consider all of the circumstances of
the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in
favour of the dismissal not being harsh, unjust or unreasonable; against
(ii) the mitigating circumstances and other relevant matters that may
properly be brought to account as weighing against a finding that
dismissal was a fair and proportionate response to the particular
misconduct.”
[5] The Deputy President noted that the Respondent changed his story regarding how the
alcohol came into his possession during the random search. In any event, the Deputy
President found that the Respondent admitted to stealing two beers. Further, the Deputy
President found that the Respondent’s explanation for inadvertently taking the other items
was not credible. On this basis, the Deputy President was satisfied that there was a valid
reason for the Respondent’s dismissal.
[6] Having found that there was a valid reason for the Respondent’s dismissal, the Deputy
President noted that section 387(h) of the Act allowed the Commission to consider any other
matters it considered relevant. The Deputy President highlighted a number of factors which
the Respondent relied on to support the argument that his dismissal of the Respondent was
disproportionate to the act that the Respondent committed. These factors included:
His 28 years of unblemished service for Qantas as a long-haul flight attendant;
The small value of the items stolen;
The Applicant’s age of 50 meant it would be difficult to get another job, certainly as a
flight attendant;
Although he gave an incorrect explanation, he did correct it; and
He had a number of medical and family issues prior to the incident.4
[7] In light of these factors, the Deputy President found that the dismissal of the
Respondent was harsh pursuant to section 385 of the Act. As a consequence of this finding,
the Deputy President awarded the Respondent $33,731.00 by way of compensation.
3 [2013] FWCFB 6191.
4 [2016] FWC 8249, [56].
[2017] FWCFB 41
3
The Appeal
[8] The Appellant’s submissions referred to grounds 1 to 14, in particular, of the 18
grounds set out in the Notice of Appeal.
[9] At the heart of the dispute was whether the Deputy President erred in his construction
of the unfair dismissal provisions contained in Part 3-2 of the Act. Specifically, the appeal
centred upon whether the Respondent was harshly dismissed and, therefore, entitled to
compensation.
Appellant’s Submissions
[10] In grounds 1 and 2, the Appellant submitted that, absent the erroneous finding that Mr
Dawson had corrected his previously incorrect explanation, the Deputy President could not be
satisfied that the conclusion of harshness could be reached.
[11] In ground 3, the Appellant contended that it was not apparent how, on the one hand,
the Deputy President could find that the ongoing employment relationship had broken down
beyond repair, but at the same time, find that the Appellant should have continued to employ
the Respondent.
[12] In grounds 4, 8, 12 and 14, the Appellant contended that the Deputy President made a
number of important factual findings without providing reasons for them.
[13] In ground 5, the Appellant asserted that something unusual or special would ordinarily
have needed to be identified before a finding of harshness was open to the Deputy President.
[14] In grounds 6 and 9, the Appellant submitted that the Deputy President’s conclusion
that the Respondent’s evidence was not truthful was fundamentally relevant to the assessment
of whether compensation was appropriate.
[15] In ground 7, the Appellant contended that the Deputy President gave no consideration
to contingencies at all, which was a demonstrable error of principle.
[16] In grounds 10 and 11, the Appellant asserted that there was no evidence before the
Deputy President to conclude that the Respondent acted reasonably given his personal and
family circumstances pursuant to paragraph [75] of the Decision.
[17] In ground 13, the Appellant contended that the effect of the Deputy President’s
analysis was that section 392(3) would be meaningless as, in almost any case where the
dismissed employee would have remained employed for at least two more years, maximum
compensation under the Act would likely be payable.
Respondent’s Submissions
[18] The Respondent contended that the Deputy President followed the Act and authorities
and, that therefore, the Deputy President was not in error.
[19] The Respondent further submitted that there was no significant error of fact. In
particular, the Respondent noted that the Commission would not ordinarily grant permission
[2017] FWCFB 41
4
to appeal unless the alleged errors were exceptional, momentous or telling and where the
Commission, at first instance, did not have an advantage sufficient to justify the findings
made.
[20] The Respondent submitted that the Deputy President set out the proper test as to
harshness, being that the dismissal was disproportionate to the gravity of the misconduct. On
this basis, the Respondent asserted that the Deputy President was entitled to reach the
conclusion that he reached. Further, the Respondent stipulated that a dismissal may be harsh,
but not lead to reinstatement due to the breakdown of the relationship between an employer
and employee.5 The Respondent also contended that the Appellant’s submission that a finding
of harshness was unavailable in the context of knowing theft and dishonesty was unsupported
by reference to the Act or any other authorities.
[21] In relation to the Appellant’s submission that the Commission erred in dealing with
the question of compensation, the Respondent submitted that the Commission should not
grant leave on a point not previously raised by the Appellant in circumstances where it was
competently represented.6 Further, the Respondent asserted that the Deputy President set out
the proper statutory test and gave clear and orthodox reasoning for his findings.
[22] For the above reasons, the Respondent submitted that the Commission should not
grant permission to appeal and dismiss the appeal.
Consideration – Permission to Appeal
[23] The FWC will grant permission to appeal only if it is in the public interest to do so.7
The test of assessing whether a matter is in the public interest is discretionary and involves a
broad value judgement.8 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,9 the Full
Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made by reference to
undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in
this case.”
5 Tabro Meat Pty Ltd v Heffernan (2011) 208 IR 101 at [18].
6 Curtis v Darwin City Council [2012] FWAFB 8021; (2012) 224 IR 173 at [80].
7 Fair Work Act 2009 (Cth) s 604(2).
8 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB at [6].
9 [2010] FWAFB 5343 at [27].
[2017] FWCFB 41
5
[24] Alternately, the second ground for granting permission to appeal is that the decision is
attended with sufficient doubt to warrant its reconsideration or that substantial injustice may
result if leave is refused.10
[25] In determining whether permission to appeal should be granted we have reviewed and
considered all material filed by the parties including all submissions, correspondence and
relevant authorities.
[26] We find that permission to appeal should be granted in this matter. We are of the view
that the appeal raises important questions concerning the application of Part 3-2 of the Act in
circumstances where the Deputy President’s discretion to determine whether the Respondent
was harshly dismissed and, therefore, entitled to compensation, is an issue in the dispute. We
consider this to be an important matter regarding the Deputy President’s approach in making
such a determination and, therefore, the dispute arising in this case is a matter of public
interest. It is on this basis that permission to appeal is granted.
Consideration – The Appeal
[27] We note that a decision under appeal is of a discretionary nature and such a decision
can only be successfully challenged on appeal if it is shown that the discretion was not
exercised correctly. We note that it is not open for us to substitute our view on the matters that
fell for determination before the Deputy President in the absence of error of an appellable
nature in the Deputy President’s original Decision. As the High Court said in House v The
King11:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[28] On 4 March 2016, the Respondent sent a letter to Ms Claire Elliott, Service and
Performance Manager at Qantas, stating that:
“In relation to the miniature bottle of Beefeater Gin; the day prior to the flight we had
lunch with friends at the Frisco hotel in Woolloomooloo, where my wife obtained
bottles of gin.”
10 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [7].
11 [1936] HCA 40.
[2017] FWCFB 41
6
[29] On 11 March 2016, Ms Elliott contacted Mr Adam Micola, Manager of the Frisco
Hotel, as part of the investigation into the Respondent’s conduct. After consulting with Mr
Micola, and upon completion of the investigation, Ms Elliott found that the Frisco Hotel did
not stock miniature bottles of any liquor. This indicated that the Respondent could not have
obtained the alcohol from the Frisco Hotel, as he claimed in his letter dated 4 March 2016.
[30] At paragraph [45] of the Decision, the Deputy President described the aforementioned
events that took place as follows:
“… As well, the Applicant charged [sic] his story during the investigation after giving
an incorrect explanation.”
[31] It is clear from the findings of the investigation that the Respondent did not provide a
truthful explanation as to how the alcohol came into his possession. We are of the view that
the conclusion reached by the Deputy President at paragraph [45], namely, that the
Respondent gave an “incorrect explanation”, understates the severity of the events which took
place. The Respondent admitted that his explanation regarding how the alcohol came into his
possession was “not true” in his letter to Ms Elliott dated 22 March 2016. However, it was
only after the Respondent was directly confronted by Ms Elliott’s findings that he
subsequently altered his explanation as to how the alcohol came into his possession. In this
regard, the Respondent’s conduct cannot be described as a mere “incorrect explanation”. We
are of the view that the Deputy President, by describing the Respondent’s conduct as merely
an “incorrect explanation”, understated the severity of the Respondent’s conduct and, that as a
consequence, mistook the facts before him.
[32] Therefore, we are of the view that the Deputy President mistook the facts in the House
v The King sense, namely, that it was only after the Respondent was confronted by Ms Elliot’s
investigation findings that he admitted his explanation of how the alcohol came into his
possession was untrue. In light of this, and having considered the relevant principles of law,
we are of the view that the Appellant has demonstrated a House v The King error in the
Deputy President’s decision.
[33] We are of the view that when the Deputy President determined that, notwithstanding
there was a valid reason for the dismissal the dismissal was harsh, the Deputy President, by
mistaking the facts in this regard, subsequently failed to take into account an important
material consideration. That is, he failed to take into account the dishonesty of the
Respondent. This is exemplified in paragraph [56] where the Deputy President says that:
“… Although he [the Respondent] gave an incorrect explanation, he did correct it.”
[34] We are of the view that the Deputy President, in this regard, failed to acknowledge and
take into account that the Respondent was dishonest, and, that the Respondent only corrected
his explanation when he was confronted by Ms Elliot.
[35] We are not required to identify an appellable error in every ground of appeal for there
to be a quashing of a decision – quashing a decision is warranted upon an appeal bench
identifying an error in accordance with House v The King. Having identified that the Deputy
President, in our view, mistook the facts and failed to take into account a material
consideration in accordance with House v The King, we are satisfied that the appeal must be
upheld and that the original Decision must be quashed.
[2017] FWCFB 41
7
Conclusion
[36] Permission to appeal is granted.
[37] The appeal is upheld.
[38] The Decision is quashed.
[39] The matter is referred to us for rehearing.
[40] Directions for the rehearing of the matter will be issued separately to this document.
VICE PRESIDENT
Appearances:
Mr M. Follett for the Appellant
Mr M. Seck for the Respondent
Hearing details:
9.30am
12 January 2017
Melbourne
Printed by authority of the Commonwealth Government Printer
Price code C, PR589073
THE FAIR WORK JORK COMMISSION THE THE SEAA
