1
Fair Work Act 2009
s.604 - Appeal of decisions
Inner West Towing Pty Ltd
v
David Maynard
(C2017/49)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HUNT SYDNEY, 13 FEBRUARY 2017
Permission to appeal against decision [2016] FWC 8582 of Senior Deputy President Drake
at Sydney on 14 December 2016 in matter number U2016/2587.
Introduction and background
[1] Inner West Towing Pty Ltd (appellant) has applied for permission to appeal and
appealed a decision of Senior Deputy President Drake issued on 14 December 20161
(Decision). The Decision concerned an application by Mr David Maynard made under s.394
of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of his former
employment as a tow truck driver with the appellant. In the Decision, the Senior Deputy
President found that the appellant had dismissed Mr Maynard on 11 May 2016, that the
dismissal was not consistent with the Small Business Fair Dismissal Code (Code), that there
was no valid reason for the dismissal, and that the dismissal was harsh, unjust and
unreasonable. In a subsequent decision issued on 25 January 20172 (which was not the subject
of this appeal), the Senior Deputy President determined that the appellant should pay Mr
Maynard the amount of $8,980.08 as the remedy for the unfair dismissal. In its notice of
appeal, the appellant seeks to challenge all the identified aspects of the Decision.
[2] The factual background is as follows. Mr Maynard was employed by the appellant in
February 2014. The appellant runs a small tow truck business. There was no dispute that it
was a small business employer within the meaning of s.23 of the FW Act. Mr Maynard drove
one of the appellant’s tow trucks, and the practice was that he took the truck home each night
and parked it there at nights and on weekends. He performed towing jobs as allocated by Mr
Francis Tannous, who was the principal of the appellant’s business. When he performed a
towing job, Mr Maynard recorded the vehicle details, the pick-up and drop-off addresses and
the payment amount and method on a run sheet. He handed in the run sheets and any cash or
cheques collected when he went into the appellant’s office during the course of the week.
Generally Mr Maynard would give the run sheets directly to Mr Tannous or, if he was not
1 [2016] FWC 8582
2 [2017] FWC 569
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DECISION
E AUSTRALIA FairWork Commission
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present, leave them in an unlocked drawer in the office. However he would not leave the cash
in the drawer for security reasons. Mr Tannous was meant to sign off on each item on the run
sheet to confirm the performance of the job and the receipt of the payment, but it appears that
in practice Mr Tannous did not always do so.
[3] On 5 May 2016 Mr Maynard performed a job towing a forklift and was paid $220 in
cash. Subsequently, in the course of the same day, he went into the office and gave Mr
Tannous the run sheets for the two previous days. He did not hand in that day’s run sheet,
since he had more work to do that day. Mr Tannous did not sign off on the forklift job at that
time. There was a dispute about whether Mr Maynard also handed Mr Tannous the $220 he
had received at this time. Mr Maynard’s position at the hearing before the Senior Deputy
President was that he handed Mr Tannous the $220, but Mr Tannous’ position was that he did
not then or subsequently ever receive the $220.
[4] That same day, Mr Maynard’s union, the Australian Manufacturing Workers’ Union
(AMWU), sent a letter on his behalf to Mr Tannous about an issue concerning liability for
damage to a vehicle. Upon receiving this letter, Mr Tannous rang Mr Maynard and a
conversation ensued. There was a dispute between the parties about what was said in the
conversation, but it certainly ended in disagreement about the liability issue.
[5] On 10 May 2016 Mr Tannous reviewed Mr Maynard’s run sheet for 5 May 2016,
which by now Mr Maynard had left at the yard in the unlocked drawer. It appears that it was
at this time that Mr Tannous formed the belief that he had not received the $220 cash payment
for the forklift job performed on 5 May 2016. He rang Mr Maynard and asked him where the
money was. Mr Maynard initially said that the job was on account, but when Mr Tannous
pointed out that the run sheet identified it as a cash job, Mr Maynard said he that he must have
already given it to Mr Tannous, but could not at that moment remember when.
[6] Concerned by Mr Tannous’ allegation that he had not paid in the $220, Mr Maynard
contacted his union, the AMWU, about the matter. The following day (11 May 2016) the
AMWU sent a letter to Mr Tannous complaining that he had made a false allegation of theft
against Maynard, and requested that any future communications about this matter or other
matters in dispute be sent via the AMWU. The letter also raised as a possible issue that Mr
Maynard had been underpaid, and requested the production of Mr Maynard’s payslips. Mr
Tannous responded by ringing Mr Maynard. Mr Tannous admitted to saying to Mr Maynard:
“You think you’re a smart cunt. You think the union is going to shut down my investigation.
You’re not welcome into the office unless I’m here. You need to drop off the truck every
afternoon and pick it up every morning”. Mr Maynard complained to the AMWU about this,
and the AMWU sent a further letter to Mr Tannous the same day alleging that he had
threatened Mr Maynard. Mr Tannous in turn then sent Mr Maynard a text message which
read:
“Dave, I have been contacted by the solicitor who advised me that you told him that I
threatened you. I don’t accept that I threatened you at all.
I would like you to bring the truck to the yard and finish up today until we finalise this
issue.
The relationship between us is unattainable [sic] based on these and other allegations.
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You are required to bring the truck immediately to the yard.”
[7] Mr Maynard regarded this as a dismissal, and did not reply. There were some
communications between the parties’ solicitors about the return of the truck. Mr Maynard was
not willing to take the truck back to the yard, so he eventually resolved the situation by taking
the truck to Eastwood Police Station and leaving the keys and the run sheet with the police.
[8] On 12 May 2016 Mr Tannous sent a further text message to Mr Maynard which stated:
“Hi Dave, I would like to meet up to discuss whatever issues there are so it can be finalised. I
really want you to come back to work. We have been working well for the past 2.5 years”.
Notwithstanding this text, Mr Tannous reported the alleged theft of $220 to the police the
same day. To date, the police have not made any contact with Mr Maynard about the matter.
Mr Maynard lodged his unfair dismissal remedy application on 1 June 2016.
The Decision
[9] The Senior Deputy President was required to address three matters in the Decision:
first, whether Mr Maynard had been dismissed within the meaning of s.386 of the FW Act;
second, if there had been a dismissal, whether it was consistent with the Code; and third, if
there was a dismissal and it was not consistent with the Code, whether the dismissal was
unfair. In relation to the first question, the Senior Deputy President said:
“[13] I am satisfied and find that Mr Maynard was terminated from his employment
with the respondent by text message on 11 May 2016. I am persuaded that the text
message forwarded by Mr Francis Tannous to Mr Maynard was a termination of
employment. Mr Francis Tannous’ use of the word attainable was a mistake. He
intended to use the word unsustainable. It is possible that Mr Francis Tannous’
reference to “finalising this issue” may have been meant to indicate that he intended
that a conversation should take place before employment could continue but, after
considering the evidence of the parties, I reached the opposite conclusion.”
[10] Then, under the heading “Valid reason – s.387(a)” the Senior Deputy President made
finding of fact as follows:
“[14] I have set out my key findings below:
Mr Maynard worked for the respondent as a tow truck driver for 2 ½ years. He drove
one of the respondent’s tow trucks home each night and stored it at his house on the
weekend. That practice ceased at the instruction of Mr Francis Tannous just before
Mr Maynard’s employment ceased. He was assigned tasks throughout the working
day by Mr Francis Tannous.
Mr Maynard recorded the vehicle, the pickup and drop-off address and the payment
amount and method on run sheets. He gave the sheets, as well as any cash or cheques
collected, to the respondent throughout the week.
The relevant desk drawer was not locked and workers come in and out of the office.
The system for signing run sheets and leaving cash payments was not consistent.
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Given the operating system for the collection of run sheets and monies it was not
possible for the respondent to reliably conclude that Mr Maynard had failed to
provide the $220 which Mr Francis Tannous claimed that Mr Maynard had stolen.
Mr Francis Tannous’ conclusion in that regard was not reasonable in all the
circumstances.
I am satisfied that the involvement of the AMWU, acting on behalf of Mr Maynard
in relation to industrial entitlement issues, played a part in Mr Francis Tannous’
decision to terminate Mr Maynard. Following correspondence from the AMWU
there were acrimonious exchanges between Mr Francis Tannous and Mr Maynard
including a conversation wherein Mr Francis Tannous said words to the effect: “You
think you are a smart cunt eh? Well you’re not welcome in the yard any more.
You’re to pick up the truck every morning and drop it off at the yard when you’re
finished”.”
[11] The Senior Deputy President then stated the following conclusions:
“[15] I am satisfied and find that Mr Francis Tannous’ reason for the termination of Mr
Maynard was not sound, defensible and well founded. I am not persuaded that Mr
Maynard stole any property, including cash payments, from the respondent. I am not
satisfied that there was a valid reason for the termination of Mr Maynard’s
employment, either summarily or with notice or that the respondent believed on
reasonable grounds that Mr Maynard’s conduct was sufficiently serious to justify
immediate termination of employment or termination of employment with notice.
[16] Having considered the issues to which my attention is directed by s.387 of the Act
I am satisfied that the dismissal of Mr Maynard was harsh, unjust or unreasonable.”
[12] The Senior Deputy President proceeded to determine that Mr Maynard was entitled to
a compensation order in respect of his unfair dismissal, but this was quantified only in the
latter decision of 25 January 2017.
Appellant’s appeal grounds and submissions
[13] The appellant’s notice of appeal contained 18 grounds for the appeal. In summary, the
appellant contended that the Senior Deputy President erred in that she:
failed to provide adequate reasons for her findings, and failed to disclose her
reasoning process;
failed to determine the jurisdictional issue relating to the Code before considering
the merits of the application;
determined that Mr Maynard had been dismissed as opposed to abandoning his
employment;
allowed Mr Maynard to rely on redacted documents and refused the appellant’s
application to obtain unredacted copies of those documents;
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failed to find, in relation to the Code, that the appellant had a belief on reasonable
grounds that Mr Maynard’s conduct in stealing money from the appellant justified
immediate dismissal;
found that Mr Maynard was a reliable witness and Mr Tannous was not;
found that the system of cash payments was not consistent and that it was not
possible for the appellant to reliably conclude that Mr Maynard had failed to pay in
$220;
found that the involvement of the AMWU played a part in the appellant’s decision to
dismiss Mr Maynard;
found that the appellant’s reason for terminating Mr Maynard was not sound,
defensible or well-founded; and
refused to accept into evidence the appellant’s financial evidence as to its capacity to
meet any compensation order to be made by the Commission.
[14] The appellant submitted that permission to appeal should be granted in the public
interest because:
the requirement to provide reasons was fundamental to the operation of the unfair
dismissal provisions and any significant failure to comply with this obligation had
been held in Pinawin v Domingo3 to be a significant matter of public interest
warranting the grant of permission to appeal;
the requirement in s.396(c) of the FW Act for the issue of adherence to the Code to
be dealt with before any consideration of the merits was a fundamental breakdown in
the decision-making process under the FW Act, as was the failure by the Senior
Deputy President to explain the conclusion that the appellant did not reasonably hold
the belief that Mr Maynard had stolen the $220 from him;
in relation to the question of whether there was a dismissal, the Senior Deputy
President conceded that the text message of 11 May 2016 did not amount to an
express termination, but did not otherwise explain how the employment relationship
had been concluded in circumstances where the evidence demonstrated that the
appellant wished to resolve the issue without bringing the employment relationship
to an end; and
there was a lack of detailed consideration about each factor required to be considered
under s.387(a).
Consideration
[15] 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
3 [2012] FWAFB 1359, (2012) 219 IR 128
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primary decision maker.4 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[16] 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.
[17] 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”.5 The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment6. 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.”7
[18] 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.8 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.9
[19] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.10
4 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
5 (2011) 192 FCR 78 at [43]
6 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]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], 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, 241 IR 177 at
[28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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[20] We accept the appellant’s submission that the Senior Deputy President erred in not
discretely considering and determining the issue of whether the dismissal which she found
had occurred was consistent with the Code before turning to the issue of whether the
dismissal was unfair. Section 396 of the FW Act provides:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal
Code;
(d) whether the dismissal was a case of genuine redundancy.
[21] The command in s.396(c) is clear, but it was not complied with in the Decision. We
have earlier set out the relevant parts of the Decision, and it is apparent that the Senior Deputy
President’s determination of the Code issue was intermingled with and subsidiary to her
consideration of the merits of Mr Maynard’s application.
[22] However it does not follow from that conclusion that permission to appeal should be
granted. As earlier stated, the mere demonstration of error does necessarily mean that the
grant of permission to appeal would be in the public interest, and that is particularly the case
where the error could not have made any difference to the outcome of the matter. In relation
to whether the dismissal was consistent with the Code, the Senior Deputy President concluded
in substance that there was no reasonable basis for Mr Tannous to hold the belief that Mr
Maynard had stolen the $220, and we are not satisfied that the appellant has demonstrated any
arguable case of error in respect of this conclusion.
[23] There is a further reason why the dismissal could not have been consistent with the
Code. That part of the Code relied upon by the appellant provides: “It is fair for an employer
to dismiss an employee without notice or warning when the employer believes on reasonable
grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”.
There are two issues to be considered in determining whether this part of the Code is satisfied:
first, whether the employer held the subjective belief at the time of the dismissal that the
employee’s conduct was sufficiently serious to justify immediate dismissal and, second,
whether that belief was based on grounds that were, objectively speaking, reasonable.11 The
Senior Deputy President’s finding was to the effect that the second element was not satisfied.
Additionally however there could not have been satisfaction that the first element was
satisfied, because Mr Tannous (who was presented as the mind of the appellant corporate
entity) never gave evidence that as at 11 May 2016 he held the requisite subjective belief that
11 Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359, 219 IR 128 at [29]; Ryman v Thrash Pty Ltd t/a
Wisharts Automotive Services [2015] FWCFB 5264 at [39]-[40]
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Mr Maynard’s alleged conduct justified immediate dismissal. Mr Tannous’s evidence was in
fact to the contrary. He not only denied dismissing Mr Maynard at all, but said in his
statement of evidence dated 27 August 2016:
“Other than the fact of the missing money, I wanted the Applicant to continue working
for the Respondent as it was difficult to find replacement tow truck drivers. At this
stage, I was still prepared to take the Applicant back upon him admitting that he had
retained the money and paying it to me”.
[24] In his oral evidence, Mr Tannous was anxious to deny that he was upset about the
missing $22012 or that he had any intention of dismissing Mr Maynard.13 Thus although there
is no doubt that Mr Tannous held the view that Mr Maynard had not given him the $220, his
own evidence was to the effect that he did not consider that this called for immediate
dismissal. As the Senior Deputy President found, the credibility of this evidence was
questionable, but the position that remained was that the appellant did not adduce any
evidence that it held the necessary subjective belief at the relevant time.
[25] Therefore the way in which the Senior Deputy President dealt with the Code issue in
the Decision did not affect the obvious correctness of the conclusion that the dismissal was
not consistent with the Code.
[26] In relation to the appellant’s contention that the Senior Deputy President failed to
provide adequate reasons, we consider that the Decision makes sufficiently clear the basis
upon which she decided the matter and has allowed the appellant a proper opportunity to
exercise its appeal rights. As was stated by the Full Bench in Barach v University of New
South Wales the obligation to give reasons requires that the essential grounds for reaching the
decision be articulated and that material questions of fact and law be addressed in a manner
which disclose the steps which led to the result, but does not require that the reasons be
lengthy or elaborate or that they deal with every matter of fact and law raised in the
proceedings.14
[27] The appellant’s contention that there was a failure to give reasons particularly focused
upon the Senior Deputy President’s conclusion in paragraph [13] of the Decision that Mr
Maynard had been dismissed by the appellant on 11 May 2016 and her reference to the
unspecified “evidence of the parties” as justifying her conclusion in that respect. It may be
accepted that this reference does not make entirely clear what evidence was relied on this
connection. However, we are wholly satisfied that the text message of 11 May 2016,
following as it did Mr Tannous’ abusive phone call earlier that day, could only be understood
as constituting a dismissal. There was no challenge to the Senior Deputy President’s
conclusion that the word “attainable” in the text message was to be read as “unsustainable”,
and on this basis the text message clearly communicated that Mr Maynard was to surrender
the tow truck required to perform his duties and that there was no proper basis to continue the
employment relationship.
[28] In relation to the appellant’s complaint that the matters required to be considered
under s.387, except for paragraph (a), were not the subject of any explicit discussion in the
12 Transcript 31 August 2016, PNs 1827-1828
13 Transcript 31 August 2016, PNs 2033-2034
14 [2010] FWAFB 3307, 194 IR 259 at [16]
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Decision, the appellant did not identify any relevant contest between the parties about those
matters that required resolution. It is difficult to identify any real possibility, in relation to a
dismissal sought to be justified by alleged misconduct, that explicit findings in relation to a
paragraphs (b)-(h) of s.387 could have made any difference to the outcome once it was found
that there was no valid reason for the dismissal.
[29] The other grounds of the appeal raise issues concerning particular findings of fact,
findings about the credibility of particular witnesses, and interlocutory procedural rulings
which are not of a nature to attract the public interest. We do not consider that the appeal
raises any issue of general application or is counter-intuitive or manifests any injustice.
[30] For these reasons, we are not satisfied that it would be in the public interest to grant
permission to appeal. Permission to appeal must therefore be refused in accordance with
s.400(1).
VICE PRESIDENT
Appearances:
C. Tannous solicitor for Inner West Towing Pty Ltd.
L. Saunders from the Australian Manufacturing Workers’ Union for D. Maynard.
Hearing details:
2017.
Sydney:
7 February.
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OF THE FAIR WORK MISSION THE
