1
Fair Work Act 2009
s.604—Appeal of decision
Andrew Pearse
v
Viva Energy Refining Pty Ltd
(C2017/4409)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS MELBOURNE, 20 SEPTEMBER 2017
Appeal against decision [[2017] FWC 3817] of Deputy President Anderson at Melbourne on
20 July 2017 in matter number U2017/194; no arguable case of error; public interest not
enlivened; permission to appeal refused.
Introduction and background
[1] Mr Andrew Pearse has applied for permission to appeal and appealed a decision of
Deputy President Anderson issued on 20 July 20171 (Decision). The Deputy President
dismissed Mr Pearse’s application for unfair dismissal.
[2] Mr Pearse was employed by Viva Energy Refining Pty Ltd (Viva Energy) in its oil
refining facilities in Geelong. Mr Pearse worked in the Geelong refinery for almost 27 years
prior to his dismissal on 21 February 2017. Mr Pearse was, at the time of his dismissal, the
President of the four-member AWU Executive at the Geelong refinery.
[3] Mr Pearse was dismissed for sending an email to approximately 170 operators whilst
working night shift on 25 November 2016. Viva Energy contended that Mr Pearse’s conduct
in sending the email constituted a breach of its policies and Mr Pearse’s duties as an employee
under the Viva Energy Refining Enterprise Agreement 2014.
[4] Mr Pearse wrote the email “with a dose of anger” and used it to criticise unidentified
employees “for helping the company with their proposed de-manning” by undertaking
advanced fire training. Mr Pearse concluded the email by stating that he was “more than
happy to discuss this with the ‘identified’ operators, if only I knew who they were”.
The Decision
[5] There was no dispute that Mr Pearse sent the email on 25 November 2016. The
Deputy President found that Viva Energy had a valid reason for dismissing Mr Pearse as a
1 [2017] FWC 3211
[2017] FWCFB 4701
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 4701
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result of his conduct in sending the email and thereby breaching his obligations under Viva
Energy’s policies. The Deputy President made the following specific findings in relation to
Mr Pearse’s conduct in sending the email:
“[80] I find that the email was intended to negatively portray the employees who had
attended the advanced fire training and to disrespect their lawful decision to do so. Nor
did the email show respect for persons who may have contemplated undertaking the
training in the future. It expressly insulted the attendees in derogatory terms by saying
that they ‘could be seen as naïve, deluded, stupid of selfish.’ This was not just an
expression of opinion by Mr Pearse. It was a form of words designed to encourage
other operators to hold a similar view. As such, I find it was a breach of Viva Energy
values and policies requiring employees to foster respect for people and contribute to a
respectful workplace environment. It also contravened policies requiring employees to
refrain from distributing offensive or derogatory material…”
[6] The Deputy President addressed the necessary factors in s.387(a) to (h) of the Fair
Work Act 2009 (Cth) (Act), including the arguments put on Mr Pearse’s behalf concerning
harshness, and then concluded that Mr Pearse’s dismissal was not harsh, unjust or
unreasonable.
Appeal grounds and submissions
[7] Mr Pearse relies on the following grounds of appeal:
“Errors of law
The Commission erred when making its decision by failing to:
1. Apply the Briginshaw standard when making findings against Mr Pearse about the
effect of certain conduct that formed the ‘valid reason for dismissal’ relied upon by
his employer when dismissing him (Decision at [66] and Applicants Closing
Submissions at [21]).
2. Discounted the weight or reliance placed on the anonymous hearsay and hearsay
evidence that was admitted into evidence (Decision at [100] and Transcript PN
877-879; PN 894; PN 898).
3. Draw a Jones v Dunkel inference from the failure to call certain employees to give
evidence (Applicant’s Closing Submissions at [25(b)]).
4. Consider Mr Pearse’s evidence that the reason he did not apologise to the relevant
operators was because the Company had required him to keep the matters raised
by the investigation confidential (Transcript PN 246; PN 693; PN694).
5. Consider the submission that if the peer test had been conducted it is likely that Mr
Pearse would have passed the peer test (Applicant’s Closing Submissions at
[41(a)]).
6. Consider Mr Pearse’s evidence that since email had been introduced in the
workplace approximately 17 years ago there has never been any management
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feedback identifying inappropriate emails and providing coaching (Transcript PN
792).
7. Consider the evidence that indicated that the investigator approached the
investigation in a biased manner in respect of who he chose to interview, the
differential manner in which he recorded ‘management’ versus ‘operator’ evidence
on how we treated their evidence (Transcript PN 1249 – PN 1276).
The Commission made the following findings in the absence of any evidence as to
those matters:
8. That the email had an adverse effect on a small number of employees (Decision at
[100]).
9. That Mr Pearse’s conduct compromised the welfare of the targeted employees and
their right to work in a safe environment free of intimidation and harassment
(Decision at [111]).
10. That Mr Pearse did not seek to recall the email and did not seek to reissue it in a
less emotive or derogatory form (Decision at [102]).
11. That the email was not remediated when it could have been (Decision at [108]).
The Commission made the following findings when these matters were never put to
Mr Pearse (and were mentioned for the first time in the Decision):
1. That Mr Pearse did not seek to recall the email and did not seek to reissue it in a
less emotive or derogatory form (Decision at [102]).
2. That the email was not remediated when it could have been (Decision at [108]).
Significant errors of fact (s 400(2))
1. The email made some concerned about their relationship with their work
colleagues, uneasy about cooperating with the investigator, made one employee
trigger an initial alert to Mr Lewis and had an adverse effect on a small number of
employees (Decision at [100]).
2. Mr Pearse’s conduct compromised the welfare of the targeted employees and their
right to work in a safe environment free of intimidation and harassment (Decision
at [111]).
3. The intent of the peer test was met in the case of Mr Pearse’s conduct (Decision at
[119]).”
[8] The written and oral submissions made in support of Mr Pearse’s application for
permission to appeal focused primarily on the following four matters:
(a) First, the Deputy President relied on anonymous hearsay evidence to find that the
email sent by Mr Pearse had an adverse effect on a small number of employees.
[2017] FWCFB 4701
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Mr Pearse contends that the Deputy President ought to have concluded that there
was no evidence of the effect of the email on operators who did the training, or on
the workplace more generally;
(b) Secondly, Mr Pearse contends that the Deputy President erred by making findings
that (i) Mr Pearse did not seek to recall the email, nor did he seek to reissue it in a
less emotive or derogatory form, (ii) the email was not remediated when it could
have been, and (iii) Mr Pearse only apologised when dismissal was understood by
him and his support person to be a real possibility, in circumstances where these
propositions were not put to Mr Pearse in the witness box, nor were they submitted
by Viva Energy in closing submissions or during the investigation. Mr Pearse
submits that these findings were contrary to the rules of procedural fairness and the
rule in Browne v Dunn;
(c) Thirdly, it is contended that the Deputy President erred in relation to his findings
concerning Mr Pearse’s intent in sending the email; and
(d) Fourthly, Mr Pearse contends that the Deputy President failed to apply the
Briginshaw standard when making findings about the effect of Mr Pearse’s
conduct in sending the email.
Consideration
[9] 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
primary decision maker.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[10] Section 400 of the Act applies to this appeal. 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.”
[11] In the decision of the Full Court of the Federal Court 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”.3 The task of assessing whether the
public interest test is met is a discretionary one involving a broad value judgment.4 In
2 Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78 at [43]
4 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]
[2017] FWCFB 4701
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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.”5
[12] 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.6 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.7
[13] It is important to appreciate that 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.8
[14] The Deputy President relied on evidence given by Viva Energy’s Area South
Operations Manager, Mr Lewis, of a discussion he had with one of the unidentified
employees the subject of Mr Pearse’s email.9 Much of what the employee said to Mr Lewis
constituted contemporaneous representations about the employee’s “health, feelings,
sensations, intention, knowledge or state of mind” within the meaning of s.66A of the
Evidence Act 1995 (Cth), with the result that the hearsay rule did not apply to such evidence.
To the extent that Mr Lewis gave opinion evidence based on his observations of the employee
during the discussion, such evidence was admissible under s.78 of the Evidence Act 1995
(Cth). In any event, there is no automatic prohibition in proceedings before the Commission
on the reliance on hearsay or opinion evidence. The Commission is obliged by statute to
perform its functions in a manner that is fair and just pursuant to s.577(a) of the Act.
Although it is not bound by the rules of evidence and procedure, the Commission tends to
follow the rules of evidence as a general guide to good procedure.10 However, that which is
ultimately required is judicial fairness, and that which is fair in a given situation depends on
the circumstances.11
[15] Given the content of the email, the fact that it was sent to about 170 operators, and one
of those operators brought it to the attention of Viva Energy, it is unremarkable and inherently
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 Decision at [40] and [100]
10 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213
at [61]-[62]; s.591 of the Act
11 Enterprise Flexibility Agreement Test Case, Print M0464 per Ross VP, Maher DP and Cox C at page 13;
Pochi Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/King%20v%20Freshmore%20(Vic)%20Pty%20Ltd%20-%20Print%20S4213%20-%20highlighted.pdf
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 4701
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plausible that an employee who was the focus of the email (because he had undertaken the
training) came forward to Mr Lewis, appeared “visibly agitated”12 and expressed concern
about the email. In those circumstances, we consider the evidence of what was said by the
employee to Mr Lewis to be “fairly reliable”,13 although the weight to be given to it was a
matter for the Deputy President to consider, including by having regard to the fact that the
maker of the representation was not available to be cross examined by Mr Pearse.14
[16] Also of relevance to this issue is that an objection was taken to some parts of Mr
Lewis’ witness statement15 in which his conversation with the employee was set out but other
parts of the statement which also dealt with the conversation were not the subject of an
objection.16 The Deputy President ruled on the parts of Mr Lewis’ statement to which
objection was taken.17 In the result, we are not persuaded that there is an arguable case of
error in relation to the Deputy President’s reliance on evidence given by Mr Lewis of his
discussion with an employee who was the focus of Mr Pearse’s email.
[17] We are also not persuaded that there is an arguable case of error in relation to Mr
Pearse’s contentions concerning an alleged denial of procedural fairness or the rule in Browne
v Dunn. Mr Pearse was on notice from Viva Energy’s written opening submissions that it was
contending he had “failed to display any genuine remorse or contrition for his conduct until,
at the eleventh hour, he felt it was in his best interests to do so.”18 Mr Pearse was cross
examined in relation to his failure, prior to 17 February 2017, to express regret or apologise
for sending the email.19 In cross examination, Mr Pearse gave evidence that he sent the email
on 25 November 2016, but it was not until 13 December 2016 that he first thought to himself
that he should not have sent it.20 In light of the evidence given by Mr Pearse, there does not
appear to us to be any arguable case that the Deputy President erroneously concluded that Mr
Pearse did not seek to recall the email, did not seek to reissue it in a less emotive or
derogatory form, and the email was not remediated when it could have been. Those particular
matters did not need to be expressly put to Mr Pearse in cross examination. Nor does there
appear to us to be an arguable case that the Deputy President was in error in finding that Mr
Pearse did not apologise until late in the process, at which time his dismissal was a likely
outcome.
[18] Mr Pearse denied that his intent in sending the email was to elicit a reaction from the
other operators against those participating in the training, or to flush out those who had
participated, or were participating, in the training.21 The Deputy President was not persuaded
by Mr Pearse’s evidence in that regard.22 The Deputy President’s findings in relation to Mr
Pearse’s intent in sending the email were unremarkable, given the content of the email and no
arguable case of error in this regard has been made out.
12 AB396 at [6]
13 Secretary to the Department of Human Services v Sanding (2011) 36 VR 221 at [133]
14 Pollitt v The Queen (1991) 174 CLR 558 per McHugh J at [19]
15 Paragraphs [6] and [11] of Mr Lewis’ statement: AB396-7; PN869-881
16 See paragraphs [3]-[5] and [12] of Mr Lewis’ statement: AB395-6
17 PN897
18 Paragraph [67] of Viva Energy’s opening written submissions: AB739
19 PN663-7 & PN688-700: AB103 & AB105-7
20 PN697: AB106
21 Decision at [76]
22 Decision at [84]
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[19] Mr Pearse contends that the Deputy President erred in failing to apply the Briginshaw
standard when making findings about the effect of Mr Pearse’s conduct in sending the email.
However, there is no dispute in this case that Mr Pearse sent the email on 25 November 2016,
nor is there any dispute about what was written by Mr Pearse in the email or to whom it was
sent. Further, there is no doubt that Mr Pearse’s conduct in sending the email constituted a
breach of Viva Energy’s policies. Viewed in that context, the question of whether or not the
email had a particular effect on one or more employees could not have had a significant
bearing on the ultimate question of whether Mr Pearse’s dismissal was harsh, unjust or
unreasonable.
[20] The Deputy President’s findings in relation to the effect of Mr Pearse’s conduct in
sending the email were as follows:23
“I find that the email did not have a significant effect across the operator workforce as
a whole… It made some concerned about their relationship with their work colleagues,
and uneasy about co-operating with the investigator. One employee was sufficiently
concerned to trigger the initial alert to Mr Lewis. I find that the email had an adverse
effect on a small number of employees…”
[21] We are not persuaded that there is an arguable case that the Deputy President was
wrong in so finding, but even if he was, the erroneous finding of fact read in the context of the
decision as a whole does not disclose an arguable case that the error, if it be that, was a
significant error of fact. We are satisfied there is no arguable case of error in the fact finding
by the Deputy President.
[22] Mr Pearse’s application was decided on its own facts. The appeal does not raise any
arguable appealable error in the Decision, nor does it give rise to any issue of importance or
general application. There is no arguable case that the Decision was unreasonable, manifested
any injustice or was counter-intuitive. The public interest is not enlivened by any of the
grounds of appeal.
[23] We are not satisfied that it would be in the public interest to grant permission to
appeal. Therefore, as required by s.400(1) of the Act, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms S Fitzpatrick, Counsel, for Andrew Pearse.
Mr F Parry, QC, for Viva Energy Refining Pty Ltd.
23 Decision at [100]
FAIR WORK COMMISSION SEAL OF TH
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Hearing details:
2017.
Melbourne:
September 6.
Printed by authority of the Commonwealth Government Printer
Price code C, PR595971
