1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Kym Larcombe
v
Bis Industries Limited
(C2017/4357)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS MELBOURNE, 25 SEPTEMBER 2017
Appeal against decision [2017] FWC 3764 and order PR594631 of Commissioner Platt at
Adelaide on 18 July 2017 in matter number U2017/1134; no arguable case of appellable
error; public interest not enlivened; permission to appeal refused.
Introduction
[1] Mr Kym Larcombe (Appellant) lodged a Notice of Appeal, for which permission is
necessary, against a decision1 (Decision) and order2 of Commissioner Platt dismissing his
application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (Act).
The Appellant had, until 22 August 2016, been employed by Bis Industries Limited
(Respondent) as a Supervisor. On that date the Appellant was demoted to the position of Plant
Operator in which he continued to be employed until his dismissal on 18 January 2017. The
Appellant had commenced employment with the Respondent in February 1980. He was
dismissed for reasons said to relate to an incident involving two other employees, Ms
Buhlmann and Mr Savaidis, that occurred on the morning of 9 December 2016.
Commissioner’s Decision
[2] After summarising the positions of the Appellant and the Respondent advanced at the
hearing and discussing the evidence given by witnesses, the Commissioner proceeded to
make some factual findings as follows:
“[97] It appears that prior to the events of August 2016, Ms Buhlmann and Mr
Larcombe had a good working relationship with Mr Larcombe ‘protecting her’,
‘looking after her’ by giving her a good machine and by allocating her the better jobs.
1 [2017] FWC 3764.
2 PR594631
[2017] FWCFB 4545
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/awardsandorders/html/PR594631.htm
[2017] FWCFB 4545
2
[98] However, after Ms Buhlmann and Mr Savaidis were involved in the August 2016
complaint concerning Mr Larcombe’s supervision, the relationship soured. Mr
Larcombe seemed to resent the fact that Ms Buhlmann had made a complaint which
had resulted in his demotion and assignment to a different team.
[99] Each of these witnesses, whilst giving evidence, appeared to best recall and
highlight matters that were more favourable to their position. The witness statements
of Ms Buhlmann and Mr Savaidis were remarkably consistent - although this may
have resulted from the manner in which they were drafted by the representatives - and
they collaborated to some degree in lodging a complaint against Mr Larcombe in
August 2016. Each of these witnesses had a tendency to not directly answer questions
put to them when they were under pressure, and there were inconsistencies between
their accounts. Mr Larcombe contended that they have colluded against him. As a
result of the above, I have treated the evidence of these witnesses with caution.
[100] It is clear that Mr Larcombe was preoccupied with his dispute with Ms
Buhlmann. Mr Shepherd advised him prior to the incident that he would organise a
structured meeting where Mr Larcombe could talk to Ms Buhlmann, he advised Mr
Larcombe not to engage or talk to Ms Buhlmann prior to that meeting being arranged.
Mr Thiele told Mr Larcombe not to engage with Ms Buhlmann unless it was clear that
she agreed to discuss the matter. Mr Larcombe exercised poor judgement in not
waiting for a ‘mediated’ meeting to be conducted. He ignored that advice and waited
for Ms Buhlmann as she came to work and confronted her.
[101] Ms Buhlmann repeatedly told Mr Larcombe to ‘fuck off’. Mr Larcombe invites
me to consider this expression as an expression of disbelief by Ms Buhlmann, but I am
unable to do so in the circumstances. I accept that Ms Buhlmann was seeking to end
the conversation and that context should have been clear to Mr Larcombe.
[102] It should be noted that Ms Buhlmann and Mr Larcombe were not equals. Mr
Larcombe had been her Supervisor, was much older and larger in stature.
[103] Having been told to ‘fuck off’ by Ms Buhlmann, Mr Larcombe should have dis-
engaged. Regrettably he persisted, escalating the events which led to an altercation
with Mr Savaidis. It appears to me that Mr Larcombe was fixated on clearing his
name, he persisted despite Ms Buhlmann’s objection.
[104] I find Mr Larcombe harassed and/or intimidated Ms Buhlmann in breach of the
Bis Industries Workplace Bullying and Harassment Standard.
[105] During the formal investigation, Mr Larcombe denied saying words to the effect
of ‘If you want a go, come over here’ to Mr Savaidis. At the commencement of the
hearing, Mr Larcombe varied his evidence and conceded that he said to Mr Savaidis
words to the effect of ‘Come to the car park’.
[106] This is consistent with the evidence given by Mr Thiele, that shortly after the 9
December 2016 incident Mr Larcombe told him that he used the words ‘Come over
here and sort it out’ whilst he was in the car park.
[107] I find that Mr Larcombe said to Mr Savaidis words to the effect of ‘Come over
here’, whilst in the car park, and thus challenged Mr Savaidis to come to his position
and have an altercation.
[2017] FWCFB 4545
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[108] I find that this behaviour was a significant breach of the Bis Industries Employee
Performance and Behaviour Code as detailed under the heading ‘Intimidation /
Assault.’3” [Headings and Endnotes omitted]
[3] The Commissioner then turned to consider the issue whether the Appellant’s dismissal
was harsh, unjust or unreasonable having regard to the matters set out in s.387 of the Act. As
to these matters, the Commissioner reasoned as follows:
“Valid reason - s.387(a)
[110] Notwithstanding its formulation under a different legislative environment, I have
adopted the definition of a valid reason set out by Northrop J in Selvachandran v
Peteron Plastics Pty Ltd which requires the reason for termination to be ‘sound,
defensible or well founded.’
[111] Mr Larcombe’s conduct towards Ms Buhlmann on 9 December 2016 was in
breach of the Bis Industries Workplace Bullying and Harassment Standard and
constituted a valid reason to terminate his employment.
[112] Mr Larcombe’s subsequent verbal exchange with Mr Savaidis was in effect a
challenge to a fight, a serious breach on its own and a breach of the Bis Industries
Employee Performance and Behaviour Code.
[113] Finally, the fact that Mr Larcombe was not forthcoming with a thorough account
of the events that occurred between himself and Mr Savaidis during the investigation
reflects poorly on him. His concession that he said words to the effect of ‘Come to the
car park’ was not made until he gave evidence on the first day of the hearing.
[114] I find the conduct of Mr Larcombe formed a valid reason for Bis to dismiss him.
Notification of valid reason - s.387(b)
[115] Mr Larcombe was notified of the reasons for the dismissal via meeting and letter
of termination which set out the grounds.
Opportunity to respond - s.387(c)
[116] Mr Larcombe was provided with and took advantage of two opportunities to
respond to the allegations.
[117] Mr Larcombe was notified of the allegations on 3 January 2017 and was given 2
days to respond. Mr Larcombe was granted an extension in order to speak to his
Union. Mr Larcombe provided a response to the allegations in writing on or about 9
January 2017.
[118] A further meeting was held on 11 January 2017 where Mr Larcombe was
supported by Mr Martin from the AWU. This provided an additional opportunity for
Mr Larcombe and his representative to respond to the allegations.
Any unreasonable refusal by the employer to allow Mr Larcombe to have a
support person present to assist at any discussions relating to dismissal - s.387(d)
3 [2017] FWC 3764 at [97] – [108]
[2017] FWCFB 4545
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[119] Mr Larcombe was accompanied by a support person, Ms Larcombe, at the 3
January 2017 meeting and Mr Martin from the AWU on 11 January 2017.
Warnings relative to unsatisfactory performance - s.387(e)
[120] During Mr Larcombe’s employment he received a number of warnings as
detailed by Ms Coates. The most recent warning, in August 2016, similarly involved
the exercise of poor judgement. In this instance Mr Larcombe was demoted for failing
as a Supervisor to deal with inappropriate behaviour in his team.
[121] Whilst the disciplinary outcome was severe, it was not challenged at the time
and it is not appropriate for me to try and balance out the ledger by taking into account
the severity of that outcome in determining this matter.
Size of the employer’s enterprise and absence of dedicated human resources
support - ss.387(g) and (f)
[122] Bis is a large employer with dedicated human resource management specialists.
Other matters considered relevant - s.387(h)
[123] Mr Larcombe is 56 years of age and has worked at Bis for 37 years.
[124] He has received a number of warnings on a variety of issues.
[125] Mr Larcombe does not believe that he had done anything wrong. ”4 [Endnotes
omitted]
[4] Ultimately, the Commissioner concluded that the Appellant’s dismissal was not harsh,
unjust or unreasonable and dismissed the application.5
Appeal grounds and public interest
[5] The grounds of appeal stated in the Appellant’s Notice of Appeal allege errors of law
and significant errors of fact, and are as follows:
Errors of law
“The Commissioner:
1. failed to apply the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 to
the standard of proof of the conduct alleged to justify the dismissal, in
circumstances where those principles should have been applied;
2. failed to assess relevant evidence against each of the criteria of harsh, unjust and
unreasonable in determining whether or not the dismissal was unfair;
3. failed to identify the evidence upon which he relied for his factual findings, when
he expressly treated the evidence of Ms Buhlman and Mr Savaidis with caution;
4 ibid [110] – [125]
5 ibid [126] – [128]
[2017] FWCFB 4545
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4. failed to properly consider the nature and relevance of prior warnings for
unsatisfactory performance as required by s387(e) of the Fair Work Act 2009;
5. erred in holding that the severe outcome of earlier disciplinary action was not
relevant to his consideration of the severity of the appellant’s dismissal;
6. erred in holding conduct as similar that was essentially dissimilar, by
characterising it in both cases as “the exercise of poor judgment” when that was
not relied upon by the respondent as the reason for the dismissal nor the
Commissioner’s finding that the later conduct formed a valid reason for the
dismissal;
7. erred in finding that the conduct of the appellant was in breach of the respondent’s
employment standards without identifying what conduct was in breach of which
standard and how it was in breach of that standard;
8. erred in holding that the appellant “harassed and/or intimidated” Ms Buhlman
without specifying what in particular the appellant had done that amounted to
harassment of her, or intimidation of her, or both, within currently accepted
definitions of harassment and intimidation;
9. erred in holding that the appellant engaged in conduct towards Mr Savaidis that
constituted intimidation or assault without specifying how that conduct assumed
that character, within currently accepted definitions of intimidation and assault;
and
10. erred in holding that the breach of the respondent’s employment standards, as
found, formed a valid reason for the appellant’s dismissal without reference to the
penalties outlined in those standards or other relevant authority.
Significant errors of fact
The Commissioner erred:
11. in finding that the appellant resented the fact that Ms Buhlman had made a prior
complaint against the appellant, when there was no evidentiary basis for that
finding;
12. in finding that Ms Buhlman “repeatedly” told the appellant to “fuck off”;
13. in finding that the appellant “persisted” without specifying what it was that he
persisted in doing;
14. in finding that the appellant and Ms Buhlman were “not equals” without reference
to the full history of their relationship within and outside of the workplace;
15. in failing to make any factual finding about Ms Buhlman’s capacity, or action she
in fact took, to disengage from the conversation at a point of her choosing;
[2017] FWCFB 4545
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16. in holding that the conduct of the appellant “escalated events which led to the
altercation with Mr Savaidis”;
17. in holding at the same time that there was an altercation with Mr Savaidis, and
that the appellant had “challenged” Mr Savaidis to have an altercation;
18. in concluding as a matter of fact that the alleged phrases “If you want a go, come
over here”; “come to the car park”; “come over here and sort it out” equate in
effect to the phrase “Come over here”;
19. in failing to make a factual finding about what words were used by the appellant
in circumstances of inconsistent evidence; and
20. in finding as a matter of fact that the appellant’s conduct amounted to a challenge
to Mr Savaidis to come to the appellant’s position and have an altercation.”
[6] The Appellant contends that the grant of permission to appeal would be in the public
interest for the reasons that follow.
[7] First, the Appellant contends that it has been established law in circumstances with
similar considerations the task facing the decision maker, of determining proof on the balance
of probabilities, is to apply the principles outlined in Briginshaw v Briginshaw6 (Briginshaw)
to the assessment of the evidence. The Appellant says that the Commissioner rejected those
principles and considered the evidence without reference to them. As such, according to the
Appellant, the decision is at odds with established law and may add to confusion in the
consideration of future matters within the Commission. He says it is in the public interest that
long serving mature workers are not deprived of their livelihood without just and rigorous
consideration of their cause. Otherwise injustice may result, as in this case.7
[8] Secondly, the Appellant contends that although the Commissioner referred to the
judgment in Byrne and Frew v Australian Airlines Pty Ltd,8(Byrne) the Commissioner did not
give reasons as to how he applied the passage from Byrne to which reference is made at [127]
of the Decision and specifically the Commissioner did not include any separate consideration
of each of the elements of the phrase “harsh, unjust or unreasonable”. The Appellant contends
that it is a matter of general importance and application whether the Commission is required
to give separate consideration to each of the factors of harsh, unjust and unreasonable, the
relationship of that consideration to drawing a conclusion on the totality, and whether that
consideration must be included in the reasons for the decision.9
[9] Thirdly, the Appellant contends that s.387(e) requires the Commission to take into
account “whether the person had been warned about that unsatisfactory performance before
the dismissal” where the dismissal relates to unsatisfactory performance. He contends that key
to this wording is the use of the phrase “that unsatisfactory performance” which is suggestive
of performance that is the same as that previously warned, not different performance issues.
6 (1938) 60 CLR 336
7 Appellant's Outline of Submissions on Permission to Appeal at [1.5] – [1.8]
8 (1995) 185 CLR 410
9 Appellant's Outline of Submissions on Permission to Appeal at [2.1] – [2.4]
[2017] FWCFB 4545
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He contends that the decision in Diamond v SSUT Pty Ltd10 suggests support for this
interpretation, although referring to different circumstances. He contends that it is a matter of
both justice in this case and of general importance that the relevance of prior warnings under
s.387(e) is properly assessed in accordance with the words and intent of the statute and that
clarification by the Full Bench of the considerations to be applied would be of general
application and importance.11
[10] Next, the Appellant contends that the Commissioner concluded that the Appellant had
“harassed and intimidated Ms Buhlman (sic)” without reference to the definitions of
harassment or intimidation in the Respondent’s Workplace Bullying and Harassment
Standard, or any other definition, and without setting out which conduct he found proved that
which fell within such definition. Likewise, the Commissioner held that the Appellant’s
conduct towards Mr Savaidis was a “significant breach” of the Respondent’s Performance and
Behaviour Code under the heading ‘Intimidation/Assault’ without setting out how that
conduct fell within the terms of that code, or any other definition. The Appellant contends that
for the Commissioner to conclude that a particular standard has been breached, he must first
refer to the terms of the particular standard or definition, as a necessary step in determining
the material questions of fact for its consideration. He contends that without reference to the
standards or definitions by which evidence of conduct is to be measured, the Commissioner
did not meet this requirement. Consequently, so the Appellant contends, the failure to identify
the material questions of fact for determination is an error of law on the face of the record and
arguably a jurisdictional error as the Commissioner has neither identified nor undertaken the
task assigned to it under the legislation. Therefore, it is a matter of importance and general
application that the Commission clearly identify the material questions of fact and its
consideration of the evidence relevant to those questions.12
[11] Lastly, the Appellant contends that the Commissioner made significant errors of fact
as outlined in the Notice of Appeal in relation to his findings about the Appellant’s conduct,
and his conclusions that the Appellant breached the Respondent’s Workplace Bullying and
Harassment Standard and Employee Performance and Behaviour Code and that the
Respondent’s warning to the Appellant dated 22 August 2016 was for similar conduct.
Accordingly, the Appellant argues, these errors have led to a fundamental injustice to the
Appellant such that permission to appeal is warranted.13
[12] In his Notice of Appeal, the Appellant also suggests that the public interest is
enlivened because the level of consideration which the Commission should accord to personal
circumstances when considering the validity of dismissal on long serving mature employees
located in areas of high unemployment should be determined, presumably by a Full Bench.
Consideration
[13] An appeal under s.604 of the 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
10 [2015] FWC 816 at [75]
11 Appellant's Outline of Submissions on Permission to Appeal at [3.1]-[3.4]
12 Ibid at [4.1]-[4.7]
13 Ibid at [5]-[6]
[2017] FWCFB 4545
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primary decision maker.14 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[14] This appeal is one to which s.400 of the 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.
[15] 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”.15 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment.16 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.”17
[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appellable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appellable error.18 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.19
[17] 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.20
14 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
15 (2011) 192 FCR 78 at [43]
16 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]
17 [2010] FWAFB 5343, 197 IR 266 at [27]
18 Wan v AIRC (2001) 116 FCR 481 at [30]
19 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]
20 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2017] FWCFB 4545
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[18] We are not persuaded that any of the grounds of appeal on which the Appellant relies
raise any issue of importance or general application nor do any of those grounds disclose an
arguable case of error. Our reasons for this conclusion follow below.
[19] Turning briefly to the grounds of appeal, we are not persuaded as to ground 1 that an
arguable case has been made out that the principles in Briginshaw arose for consideration and
application in the instant case. For the reasons given later in this decision we are not
persuaded that there is an arguable case of error as to grounds 2, 4, 5, 7, 8, 9 or 10. As to
ground 3, it appears to us on review of the Decision that the Commissioner assessed the
relevant evidence against the matters that he was required to take into account in assessing
whether the dismissal was unfair. The Commissioner set out in his decision the factual
findings that he made. He was not required, though it may have been desirable to do so, to
separately identify the particular parts of the evidence of individual witnesses on which he
relied. No arguable case of appellable error is thereby disclosed.
[20] Ground 6 appears to be concerned by the characterisation given by the Commissioner
to particular past conduct, in comparison to the conduct, the subject of the reason for the
dismissal. Read in context, the Commissioner is doing no more than suggesting that the
conduct being compared both “involved the exercise of poor judgement”. The Commissioner
is not suggesting that the Appellant was dismissed, or had earlier been disciplined, for
exercising poor judgement. The Commissioner is doing no more than expressing a value
judgement about that which the conduct involved. We are not persuaded that an arguable case
of appellable error is thereby disclosed.
[21] Ground 11 alleges an absence of evidentiary foundation for the “finding” that the
Appellant resented the fact that Ms Buhlmann had made a prior complaint about the
Appellant. First, on our reading of the Decision, the Commissioner makes no such direct
finding. The Commissioner observes at [98] that the Appellant “seemed to resent the fact that
Ms Buhlmann had made a complaint . . .”. Secondly, the evidentiary foundation for that
observation may be found in the Appellant’s view that his demotion was unfair and that it
arose as a consequence of complaints by “a couple of disgruntled employees” of whom Ms
Buhlmann was one.21 Thirdly, even if the observation is erroneously made, we are not
persuaded there is an arguable case that the error amounts to a significant error of fact.
[22] Ground 12 does not disclose an arguable case of appellable error in circumstances
where the Appellant on several occasions during his oral evidence conceded that he was told
by Ms Buhlmann to “fuck off” “on quite a few occasions”, “a few time[s] by her” and “a
couple of times”.22 Similarly, ground 13 does not disclose an arguable case of error in light of
the Appellant’s evidence that he “persisted because I wanted to get my message across” and
that he wanted to persist with the conversation regardless of whether Ms Buhlmann wanted to
hear the message.23
[23] As to ground 14, the Commissioner observed at [49] of the Decision that the Appellant
and Ms Buhlmann had known each other for 7 to 8 years, that the Appellant first met Ms
Buhlmann through his daughters and that they once had a good relationship. Given the
Commissioner’s observation at [48] that Ms Buhlmann “is 24 years old”, it is evident that the
Appellant first met Ms Buhlmann when she was a teenager and when he was the father of Ms
21 AB 41; AB 44; PN260; PN291.
22 AB 58 – AB 59; PN459; PN462; PN470 and PN480.
23 AB 59; PN477 – PN478
[2017] FWCFB 4545
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Buhlmann’s girlfriends. The Appellant had prior to his demotion also been Ms Buhlmann’s
Supervisor. It is also plainly evident that the Appellant was significantly older and more
experienced than Ms Buhlmann. None of this suggests equality and moreover lends support to
the Commissioner’s finding which is said to have been erroneously made. In addition, the
brief summary above shows there is no substance in the criticism that he made the finding
without reference to “the full history of the relationship within and outside of the workplace”.
We are not persuaded that an arguable case of appellable error has been made out in this
regard.
[24] Ground 15 criticises the Commissioner for failing to make a factual finding about Ms
Buhlmann’s capacity or action taken to disengage from the conversation at a point of her
choosing. This criticism does not disclose an arguable case of error. First, it is unlikely that
the Commissioner was required to make such a finding and in any event, the Appellant does
not point to any submission he made urging such a finding. Secondly, on the evidence Ms
Buhlmann took steps to disengage. She told the Appellant to “fuck off”, on the Appellant’s
own evidence “on quite a few occasions”, “a few time[s] by her” and “a couple of times”.24
The issue in contention, and the reason he was dismissed, arose because the Appellant did not
heed Ms Buhlmann’s not too subtle message, to stop. Any such finding made in the
circumstances would not likely have assisted the Appellant.
[25] By ground 16, the Appellant alleges that the Commissioner erred in concluding that
his conduct “escalated events which led to the altercation with Mr Savaidis”.25 We are not
persuaded that an arguable case of appellable error is disclosed by ground 16 in light of the
admission made by the Appellant during his evidence that he yelled at Mr Savaidis from 50
metres away at a time when Mr Savaidis was comforting Ms Buhlmann.26
[26] In ground 17, the Appellant alleges that the Commissioner erred in concluding at the
same time that there was an altercation and that the Appellant had challenged Mr Savaidis to
have an altercation. We are not persuaded that this ground discloses an arguable case of
appellable error. The evidence described briefly in the preceding paragraph is in our view
aptly described as an altercation. That the Commissioner is criticised because he also uses the
term altercation to describe the possibility of a physical confrontation, is an exercise in
semantics not substance.
[27] As to ground 18, during the hearing at first instance the Appellant and the
Commissioner engaged in the following exchange:
“THE COMMISSIONER: What about the second half of that quote, "Come over
here"?---I did say, "Come over here," yes.
Or words to that effect, "Come over to the car park"?---Yes, I said, "Come over here,"
yes, not - - -
So you accept - - -?---Not to the car park.
So you accept the second part?---Yes.
24 AB 58 – AB 59; PN459; PN462; PN470 and PN480.
25 [2017] FWC 3764 at [103].
26 AB 62 – AB 63: PN515 – PN525
[2017] FWCFB 4545
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Well, you've told me in evidence a few times now you said, "Come to the car
park"?---Yes, I said that, yes.
So you accept that you said words pretty similar to the second part of that quote?---Yes.
Yes.
But not, "If you want a go"?---I did not say, at no time, yes.”27
[28] The conclusion reached by the Commissioner appears to us to be an evaluation of the
evidence given by the Appellant. It seems to us plain that the Commissioner did not accept
the Appellant’s explanation. That he did not do so in light of the words used, the explanation
given and the Appellant’s evidence that he thought that Mr Savaidis was interfering and that it
was none of his business and that he yelled at Mr Savaidis28 provides ample foundation for
the Commissioner’s conclusion.
[29] Ground 19 does not disclose an arguable case of appellable error. The Commissioner’s
conclusion at [107] of the Decision that the Appellant used words to the effect of “come over
here” is supported by the Appellant’s evidence that he did say “come over here”.29
[30] As to ground 20, the Commissioner’s conclusion, as with that challenged in ground
18, appears to us to be an evaluation of the words spoken, the circumstances in which they
were spoken, the Appellant’s evidence in response to questions from the Commissioner that
he said “come over here”.30 We are not persuaded that an arguable case of appellable error has
been made out.
[31] We now turn to the matters of law identified by the Appellant in his submissions in
support of the grant of permission to appeal; in our view these are well settled and do not
require further clarification by a Full Bench. For the following reasons the public interest is
not thereby engaged.
[32] First, the application of the decision in the judgment in Briginshaw in determining
unfair dismissal remedy applications is well settled and was most recently considered by a
Full Bench of this Commission in H.J. Heinz Company Australia Ltd v Green.31 As the law
on this point is settled and there is no broader issue of interpretation or application to be
determined, the public interest in not enlivened. Further, as we have earlier noted, we are not
persuaded that an arguable case that the principles in Briginshaw arose in the instant case has
been made out. Most of the conduct on which the findings in the Decision were based was
admitted by the Appellant.
[33] Secondly, s.387 of the Act sets out that which the Commission must take into account
in deciding whether a particular dismissal was harsh, unjust or unreasonable. The
Commissioner was not required separately to give reasons why the dismissal was not harsh,
then why the dismissal was not unjust and then why the dismissal was not unreasonable. The
27 AB 78; PN699 – PN705
28 AB 62 – AB 63, PN 518, PN 519 and PN 523
29 AB 78; PN 699
30 AB78; PN 699
31 [2014] FWCFB 6031
[2017] FWCFB 4545
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Commissioner was entitled to conclude having regard to the matters in s.387 of the Act and
his reasons in respect of each of those matters, that the dismissal was none of these. The
passage to which the Commissioner referred from the joint judgment of McHugh and
Gummow JJ in Byrne simply makes the point that termination of employment may be harsh
but not unreasonable, that it may be unjust but not harsh or unreasonable, or that it may be
unreasonable but not harsh or unjust; and that in many cases the concepts will overlap.
Nothing in that passage from Byrne or in s.387 of the Act required the Commissioner, to
separately set out his reasons for concluding that the dismissal was not harsh, that it was not
unjust, and that it was not unreasonable. Of course, in a case where a member of the
Commission determines that a dismissal is harsh, or is unjust, or is unreasonable, the factual
basis and reasoning for the relevant finding made will need to be set out. But that is not this
case. Section 387 of the Act required the Commissioner to consider whether a dismissal was
harsh, unjust or unreasonable by taking into account the matters enumerated in (a) to (h)
thereof. The matters identified by the Appellant in this regard do not enliven the public
interest.
[34] Thirdly, s.387(e) of the Act relates to warnings for unsatisfactory performance. The
Decision appears to conclude that it was not appropriate to take into account under this head,
the severity of past disciplinary action (the demotion). That appears manifestly correct.
Moreover, we are not persuaded that there is an arguable case of error arising from the
Commissioner’s apparent decision not to take the severity of past disciplinary action into
account. The Commissioner’s reasons for so doing were that the disciplinary action was not
challenged at the time and it was now not appropriate for him to try to “balance the ledger” by
taking a matter not previously challenged into account. No arguable appellable error from that
reasoning is disclosed. The scope of the consideration under s.387(e) is well settled and does
not require further clarification by this Full Bench. The Appellant’s prior disciplinary history
is a matter the Commissioner was entitled to take into account under s.387(h). That the
Commissioner may have taken prior warnings about conduct into account under s.387(e)
instead of (h) does not enliven the public interest nor do the other matters raised by the
Appellant as to s. 387(e) of the Act attract the public interest.
[35] Fourthly, the Commissioner concluded that the Appellant’s conduct amounted to
harassment and intimidation under the Respondent’s Workplace Bullying and Harassment
Standard. The substance of the Appellant’s argument here is that the Commissioner was
unable to reach this conclusion without referring to a right identifying the particular standard
that had been breached. The material findings on which the Commissioner’s conclusion is
based are set out at [100] – [103] of the Decision. The Commissioner did not need to
expressly refer to the description of behaviour that is regarded as harassment and the
prohibition of such behaviour contained under the Workplace Bullying and Harassment
Standard,32 in order to conclude that the conduct as found by him at [100] – [103] of the
Decision fell within the description of ‘harassment’ and was a breach of the prohibition. We
are not persuaded that any matter of importance or general application arises as contended by
the Appellant.
[36] Fifthly, for the reasons given earlier, we are not persuaded that the Appellant has made
out an arguable case to support his contention that the significant errors of fact identified in
his Notice of Appeal led to a substantial injustice thus justifying the grant of permission.
32 AB299
[2017] FWCFB 4545
13
[37] On the material before us, we are not persuaded that the matters set out in the grounds
of appeal raise an arguable case of error in the Commissioner’s exercise of his discretion, of
the kind discussed in House v King.33 We also do not consider that an arguable case has been
made out that the Commissioner's conclusion was unreasonable, manifested by any injustice
or was counter-intuitive. Nor are we persuaded that the appeal raises issues of importance or
general application or that there is a need for Full Bench guidance on any matter raised.
Therefore, we do not consider that there is any basis that would justify the grant of permission
to appeal in the public interest or otherwise. In accordance with s.400(1) of the Act,
permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms K Eaton, Counsel for the Appellant.
Mr M Douglas, Counsel for the Respondent.
Hearing details:
2017.
Melbourne via VC to Adelaide and Perth.
6 September.
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