1
Fair Work Act 2009
s.604—Appeal of decision
The Trustee for The MTGI Trust T/A Macquarie Technology Group
International
v
David Johnston
(C2014/7752)
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER CARGILL
SYDNEY, 23 MARCH 2015
Appeal against decision [2014] FWC 7098 and Order PR5567678 of Justice Boulton at
Sydney on 24 October 2014 in matter number U2014/345.
[1] The Trustee for the MTGI Trust, trading as Macquarie Technology Group
International (the appellant) has applied for permission to appeal a decision by Justice
Boulton on 24 October 20141. The decision arose out of an application made under s.394 of
the Fair Work Act 2009 (the FW Act) by Mr David Johnston (the respondent) for an unfair
dismissal remedy against the appellant, his former employer. In his decision the Senior
Deputy President found that the respondent had been unfairly dismissed by the appellant and
ordered that he be paid compensation of twenty weeks’ pay.
[2] Section 604(1) of the FW Act provides for an appeal against a decision by a Member
of the Fair Work Commission (the Commission) which is conditioned by permission to
appeal. Section 604(2) of the FW Act provides that "[w]ithout limiting when the FWC may
grant permission, the FWC must grant permission if the FWC is satisfied that it is in the
public interest to do so".
[3] However, in relation to an appeal against a decision arising under Part 3–2—Unfair
dismissal of the Act, the right to appeal a decision, with permission, under s.604, is modified
by s.400 of the Act, such that permission to appeal will only be granted if the Commission
considers that it is in the public interest to grant permission and appeals concerning a question
of fact can only be made on the ground that the decision involved a significant error of fact.
[4] It is clear from s.604 of the Act and, in respect of termination of employment matters,
s.400 that the appeal process in the Act does not provide an opportunity for a party to re-argue
a case, and have it determined by an Appeal Bench afresh, as if the decision of the single
member at first instance had not been made. An Appeal Bench will only reconsider and
determine an application itself, if satisfied that permission to appeal ought to be granted
because it is in the public interest to do so and the decision appealed reflects error and, in
[2015] FWCFB 1288 [Note: refer to the Federal Court decision dated 18
October 2016 [2016] FCAFC 140 for result of appeal]
DECISION
E AUSTRALIA FairWork Commission
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2016/2016fcafc0140
[2015] FWCFB 1288
2
relation to an appeal in respect of a termination of employment matter, a significant error of
fact where the appeal concerns a question of fact.
[5] 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’2.The Commission must not grant permission to appeal unless it considers that it is ‘in the
public interest to do so’.
[6] At the hearing of the application for permission to appeal, the appellant was
represented by its CEO, Mr Paul Wallace, and the respondent by a solicitor, Mr Metin
Ozmen. Both parties had previously filed written submissions. While it is hard to identify
clearly the grounds upon which the appellant relies, they appear to be twofold; first that the
Senior Deputy President was wrong to conclude that the respondent had been dismissed
(rather than having left his employment voluntarily) and secondly that the Senior Deputy
President had wrongly failed to have regard to the respondent’s serious misconduct.
[7] Mr Wallace made a large number of factual assertions from the bar table, both in the
proceedings before the Senior Deputy President and before the appeal bench. However the
only sworn evidence that was provided to the Senior Deputy President was given by the
respondent and Mr Ian Kerr, the appellant’s bookkeeper. This is the evidence upon which the
Senior Deputy President properly relied.
[8] The Senior Deputy President set out the factual background to the matter as follows:
• The respondent and his family live in Bomaderry, a small town near Nowra on the
South Coast of NSW, approximately 160 kms from Sydney.
• The respondent was employed by the appellant from July 2008 until 16 January 2014
and worked from his home. The appellant has its office in Yatala, Queensland. The
appellant is the Australian distributor of InfiNet Wireless products and the
respondent’s position required him to support sales, predominantly selling products
from InfiNet Wireless. He was also required to assist with customer training and
technical support.
• On 7 November 2013 the respondent’s wife gave birth to a son, who was born by an
emergency caesarean operation 10 weeks premature at the Royal Hospital for Women,
Randwick.
• The respondent took approved leave from about 11 November 2013 until 3 January
2014 to care for his four other dependent children while his wife was in hospital in
Sydney.
On 12 December 2013 the respondent provided to the appellant a letter from the Royal
Hospital for Women supporting a request for the annual leave to be taken as personal
leave. The letter said that it was expected that the mother and child would remain in
hospital in Sydney until 29 January 2014. No direct response was received from the
appellant in relation to the request.
• On 20 December 2013, Mr Kerr emailed the respondent informing him as follows:
[2015] FWCFB 1288
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‘Assuming you will be on holidays your leave will take you up to Friday
03/01/14.’
• The respondent did not return to work on Monday 6 January 2014 and did not
contact the appellant to discuss his absence.
• On 11 January 2014, Mr Wallace emailed the respondent congratulating him on the
birth of his new son and raising various matters regarding his unsatisfactory work
performance, particularly relating to price lists supplied to customers.
• On 16 January 2014 the respondent returned to work and sent an e-mail to Mr
Wallace and others querying the pay he had received on 15 January 2014.
• There was a series of emails from Mr Wallace and other employees of the appellant
later on 16 January in response to the respondent’s email. The effect of the response
emails was as follows:
it was claimed that the respondent had abandoned his employment by not
returning to work after his approved leave entitlements ran out on 3 January
2014; and
it was said that the respondent was not entitled to paid personal/carer’s leave as
the circumstances relating to his wife’s hospitalisation did not amount to an
‘unexpected emergency’ within the terms of the FW Act.
[9] The Senior Deputy President found as follows:
‘[31] On the basis of the evidence presented, I am satisfied that the applicant did not
abandon his employment with the respondent. There is nothing about the applicant’s
conduct which indicated an intention to abandon his employment or to resign
therefrom. The applicant took approved annual leave and then relied upon the support
letter from the hospital to seek to transfer that leave to personal leave which he had
accrued. He was never advised by the respondent that his request to transfer annual
leave to personal leave was denied or that the respondent would consider that he had
abandoned his employment if he did not return to work on 6 January. The applicant
attended for work on 16 January and was advised later that day that the respondent
considered that he had abandoned his employment.
[32] The full court of the Industrial Relations Court in Mohazab v Dick Smith
Electronics Pty Ltd (No 2) considered what is termination at the initiative of the
employer. It was said that:
“... an important feature is that the act of the employer results directly or
consequentially in the termination of the employment and the employment relationship
is not voluntarily left by the employee. That is, had the employer not taken the action
it did, the employee would have remained in the employment.”
[33] Other authorities suggest that for termination of employment to be at the initiative
of the employer, it needs to be proved that the employer’s conduct intended to bring
[2015] FWCFB 1288
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the employment to an end, or “on any reasonable view, would probably have that
effect.”
[34] A consideration of the facts of this matter suggests that the respondent initiated
the end of the employment relationship. The respondent was aware of the request for
the applicant to take personal/carer’s leave and knew the circumstances in which such
leave was sought. The respondent was aware that the applicant was having a family
crisis brought on by the premature birth of his son and the need for the prolonged
hospitalisation of his wife and baby in Sydney. The respondent was also aware of the
family circumstances of the applicant, including that he had four children to care for at
home. Although it was claimed in submissions that the respondent had advice that the
applicant was not entitled in the circumstances to access his accrued personal/carer’s
leave, the respondent never advised the applicant that the request for personal leave
was denied or indeed that he was not entitled to take such leave.
[35] Apart from those matters, the conduct of the respondent was not consistent with
the claim that the applicant had abandoned his employment by not returning to work
after 3 January. Mr Wallace was in contact with the applicant by e-mail on 11 January
and, whilst the e-mail conveyed dissatisfaction with the applicant’s work performance,
it did not suggest that the applicant was no longer employed by the respondent.
Further, the suggestion that the applicant had abandoned his employment was only
raised after he returned to work on 16 January 2014 and after he queried the pay
received for that month. Partly in response to that request, there was a series of what
have been described as “disgraceful” e-mails sent to the applicant by Mr Wallace on
16 and 17 January, continuing to assert that the applicant was not entitled to take
personal/carer’s leave and that he had abandoned his employment by not returning to
work after his holiday entitlements ran out.
[36] In all the circumstances, I have come to the conclusion that the actions of the
respondent brought the employment relationship to an end. Accordingly I find that the
applicant was dismissed at the initiative of the employer.’ (references omitted)
[10] We consider that these findings were clearly open to the Senior Deputy President on
the evidence before him.
[11] The Senior Deputy President found that the dismissal of the respondent was primarily
due to his failure to return to work after his approved annual leave had ended. With regard to
the alleged misconduct (and poor performance) of the respondent, the Senior Deputy
President was not persuaded on the basis of the evidence put before him that there was any
significant substance in the assertions and complaints made.
[12] Again, we consider that the Senior Deputy President’s conclusions were open to him
on the evidence before him.
[13] The appellant has essentially sought to rerun the case he presented to the Senior
Deputy President. He has made a number of factual assertions which the Senior Deputy
President found were not supported by the evidence. We can detect no significant error in the
Senior Deputy President’s findings, which were clearly open to him on the evidence presented
to him during the proceedings.
[2015] FWCFB 1288
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[14] In these circumstances we dismiss the application for permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
P Wallace on his own behalf
M Ozmen solicitor on behalf of David Johnston
Hearing details:
2015
Sydney
17 February
Printed by authority of the Commonwealth Government Printer
Price code C, PR561339
1 [2014] FWC 7098
2 [2011] 192 FCR 78 at paragraph 43
OF FAIR WORK COMMISSION U. M AUSTRAL THE SEAL OF F
