1
Fair Work Act 2009
s 604 - Appeal of decisions
Neil Emery
v
City Of Stirling
(C2018/6155)
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER MCKINNON
SYDNEY, 20 JUNE 2019
Application to appeal a decision of Deputy President Binet on 11 October 2018 in matter
U2018/2882 - unfair dismissal application dismissed – dismissal not harsh, unjust or
unreasonable – allegations of misconduct against Security Patrol Officer – representation of
the parties – both parties agree the matter is complex – denial of procedural fairness –
appealable error established – appeal upheld – decision quashed – remitted for hearing.
INTRODUCTION
[1] Pursuant to ss 604 and 400 of the Fair Work Act 2009 (the ‘Act’), Mr Neil Emery (the
‘appellant’) has lodged an application for permission to appeal and appeal of a decision and
order of Deputy President Binet at Perth on 11 October 2018; see: Emery v City of Stirling
[2018] FWC 4303 (the ‘Decision’); PR701253 (the ‘Order’). The Deputy President dismissed
the appellant’s application, filed under s 394 of the Act, in which he had sought an unfair
dismissal remedy as a consequence of his dismissal as a Security Patrol Officer by the City of
Stirling (the ‘City’ or the ‘respondent’) for alleged misconduct. Shortly stated, the misconduct
was described as:
‘Carry and possession of an extendable baton without endorsement and not following
Western Australian legislation that must be complied with under your security officer's
licence and the city's internal policy requirements.’
[2019] FWCFB 4015
DECISION
E AUSTRALIA FairWork Commission
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[2] We granted permission to appeal on 1 February 2019, having been satisfied that it was
in the public interest to do so; see: Emery v City of Stirling [2019] FWCFB 199 (the ‘PTA
Decision’). Our summary of the Decision is set out in the PTA Decision at [7] to [20].
[3] The substantive appeal was listed on 19 March 2019 and this decision determines the
matter. At the appeal hearing, Mr P Mullally, Agent, Workclaims Australia, appeared for the
appellant, and Ms E Hartley, Solicitor, HWL Ebsworth Lawyers, appeared for the City. The
parties’ representation continued, pursuant to an earlier decision to grant permission for both
parties to be represented by a paid agent and a lawyer respectively, pursuant to s 596 of the
Act.
GROUNDS OF APPEAL
[4] In its amended Notice of Appeal, the appellant identified seven grounds of appeal
(although Appeal Ground E was not pressed), which may be described in short form, claiming
that the Deputy President:
refused to grant permission for the appellant to be represented by a paid agent –
Ground A;
made no findings of fact to support a finding of valid reason for the dismissal –
Ground B;
permitted the admission of hearsay evidence - Ground C;
permitted the admission of out of court statements – Ground D;
erred in finding that the appellant could breach the statutory regime in the future –
Ground F; and
did not take into account the differential treatment afforded to the appellant and
another employee – Ground G.
[5] It is apparent that the primary focus of the appellant’s appeal is on Ground A, being a
procedural matter going to the conduct of the proceedings directly impacting on the outcome
in the case. We are satisfied that this appeal ground has been established and that it is
sufficient to dispose of this appeal. These are our reasons.
CONSIDERATION
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GROUNDS A AND B
[6] As noted in the PTA Decision, section 596 of the Act deals with representation by
lawyers and paid agents in Commission proceedings. While there are some exceptions, a
person generally requires permission to be represented by a lawyer or paid agent. The
Commission may only grant permission if satisfied as to one of the criteria set out in section
596(2). An identified error in a decision made under s 596 does not necessarily lead to the
Decision being quashed; see: New South Wales Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663 and Fitzgerald v Woolworths Limited [2017] FWCFB 2797 (‘Fitzgerald’). However, for
the reasons we set out below, we consider that this case is one where that is the appropriate
course.
[7] There is no dispute in this matter that both parties sought to be represented in the
determinative conference and did not oppose the other being represented. Permission was
refused in each case. The Deputy President was not, of course, bound to accept the consent
position of the parties. The Deputy President was required to make an independent
determination on the statutory tests in s 596(2) of the Act. That being said, we would observe
that often Commission hearings (or in the case, a determinative conference) dealing with
unfair dismissal involve a degree of complexity and can proceed more efficiently and
effectively if parties have already agreed on such procedural matters as an Agreed Statement
of Facts, the order of witnesses, whether witnesses are required for cross examination, and
other like procedural matters. Where both parties agree that a matter is complex and would be
dealt with more efficiently with representation, their views should be given appropriate
weight in the exercise of discretion under s 596 of the Act.
[8] It is plainly apparent that the Deputy President’s decision allowed the parties to be
represented for the purposes of preparing submissions and witness statements and for both
parties to be represented in the MAC and even in preparing final submissions (PN13). It is
difficult to reconcile these steps with her decision to deny representation at the determinative
conference. It might be inferred that the Deputy President did so for the benefit of the parties
and to assist in having the case prepared efficiently, having regard to its complexity. If this
was so, it is difficult to understand what prompted the different treatment of representation for
the purpose of the conference.
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[9] We note there is no distinction drawn, for the purposes of s 596, between matters
conducted by way of hearing or determinative conference. Convening a determinative
conference, rather than a hearing, does not alter the evidentiary foundation required to
establish the relevant facts, making findings on conflicting evidence, and analysing and
applying all the facts and circumstances to the statutory provisions.
[10] In this case, matters in contest encompassed not only provisions of the Act, but also
alleged breaches of the Security and Related Activities (Control) Act 1996 (WA), the
Weapons Act 1999 (WA) and its Regulations, and the City’s policies and procedures. It
involved considerations unique to the security industry which are not commonly encountered
in unfair dismissal matters.
[11] In our opinion, it was a legally complex case and it was open to the Deputy President
to exercise her discretion in favour of representation for the purposes of the conference. We
are satisfied that there may have been a different outcome in the case if permission been
granted to the parties. So much is evident from the various exchanges between the Deputy
President and the appellant as to the conduct of proceedings, as we observed in the PTA
Decision. The appellant was clearly unfamiliar with and confused by the evidentiary process,
as demonstrated in his exchange with the Deputy President concerning the admissibility of Mr
Cappa and Mr Almond’s statements. The appellant objected to their statements being
admitted, but was at a disadvantage as to how to argue his objection effectively. The Deputy
President also had to caution the City’s representative for leading a witness (PN302).
[12] There are also three other matters relevant to whether the Deputy President erred in
refusing representation to the appellant:
(a) The chronology of events leading to the email from the Deputy President’s
Chambers on 25 June 2018 was, with respect, confusing. Directions had been
issued, which included submissions on permission to be represented, and then
reissued in full, but without reference to submissions on permission to be
represented. Given what had occurred with both parties being actively
represented, it was not unreasonable for the parties to assume that permission to
be represented at the determinative conference would be granted.
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(b) Mr Mullally submitted that the Deputy President could not have made the decision
to refuse permission to be represented based on his observations of the parties
during the conciliation. This was because the appellant did not speak during the
conference. He had relied on Mr Mullally to put his position. Ms Hartley did not
dispute this fact. If that is what occurred, the Deputy President’s conclusion based
on her observations of the appellant in conciliation, when he had not been an
active participant, appears to us to have been a significant error of fact.
(c) It is apparent that the Deputy President refused permission for the appellant to be
represented by focussing on her view that the matter had to that point, not been
dealt with efficiently by Mr Mullally’s involvement, because of his failure to file
the appellant’s submissions in accordance with her directions, or seek an
extension of time. Putting aside whether this reason was justified, with respect, we
consider the Deputy President focussed on the wrong question. The question
should not have been about the conduct of Mr Mullally, but rather, whether the
matter would be dealt with more efficiently, having regard for its complexity, if
the parties were represented. This was a discretionary error which resulted in a
denial of procedural fairness.
[13] Further, in our view, focussing on efficiency without reference to the matter’s
complexity, was also an error. The correct test under s 596(2)(a) is whether the matter will be
able to be dealt with more efficiently, taking into account its complexity. In other words, the
complexity of a matter is a mandatory consideration. It is not apparent that the Deputy
President considered the question of representation by giving effect to the correct statutory
context.
[14] In Adrian Tainsh v Toyota Motor Corporation Australia Limited t/a Toyota [2018]
FWCFB 7565 (‘Tainsh’), the Full Bench of the Commission said at [44]-[46]:
‘[44] It is well established that members of the Commission are required to act in a
judicial manner and accord all parties procedural fairness. This duty must be applied in
the context of the particular circumstances including the nature of representation and
the nature of the matter before the Commission. In Coal & Allied Mining Services v
Lawler, 44 Buchanan J said:
‘There is no doubt that members of FWA are (as were members of its statutory
predecessors, the Commonwealth Conciliation and Arbitration Commission
and the Australian Industrial Relations Commission (“the AIRC”)) bound to
act “judicially” in the sense that they are obliged to respect and apply
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traditional notions of procedural fairness and impartiality. (See Re Australian
Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513
at 519, citing R v Commonwealth Conciliation and Arbitration Commission;
Ex parte Angliss Group (1969) 122 CLR 546 at 552; R v Moore; Ex parte
Victoria (1977) 140 CLR 92 at 101–102. See also Re Polites; Ex parte Hoyts
Corporation Pty Limited (1991) 173 CLR 78; Re Finance Sector Union of
Australia; Ex parte Illaton Pty Ltd (1992) 66 ALJR 583). However, it is an
important aspect of the work of FWA, at all levels including on appeal (as it
was of its statutory predecessors), that it is to proceed without unnecessary
technicality and as informally as the circumstances of the case permit. FWA is
not a court and its members are not judicial officers as such (although the
President has the same status as a judge of this Court and some senior members
of FWA retain an equivalent status from earlier statutory arrangements). It is
not inappropriate to say that the members of FWA have a statutory mandate to
get to the heart of matters as directly and effectively as possible.’
[15] We are satisfied that the appellant was denied procedural fairness in the proceedings at
first instance. We cannot be satisfied that the denial of procedural fairness would not have had
the potential or likelihood of a different outcome in the case. Ms Hartley submitted that the
appellant had not demonstrated how the errors he had identified, would have led to a different
outcome had the error/s not been made (without conceding there were errors or that they were
significant). It is not necessary in an appeal to demonstrate that had an error not been made, it
would have led to a different outcome. It is only necessary to establish that there was a
potential or possibility that a different outcome would have been the result. We are satisfied
that the errors we have earlier identified were significant; had they not been made, a different
outcome was a likely possibility.
[16] Accordingly, Grounds A and B of the Notice to Appeal are upheld.
GROUNDS C AND D
[17] Mr Mullally submitted that the statements of Mr Almond and Mr Cappa, attached to
Ms Fairman’s statement, should not have been accepted into evidence. If they were, the
appellant should have been given an opportunity to cross examine Mr Almond and Mr Cappa,
particularly in respect to the ownership of the baton.
[18] It is well established that while the Commission is not bound by the rules of evidence,
it tends to follow them as a general guide to good procedure. However, what is ultimately
required is judicial fairness. What is fair in a particular case will depend on the circumstances;
see: Tainsh above and Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14].
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Hearsay evidence would not ordinarily be relied upon in circumstances where the opposing
party is denied an opportunity to contradict that evidence by presenting their own evidence to
the contrary; see: Enterprise Flexibility Test Case May 1995 (1995) 59 IR 430.
[19] Neither Mr Almond nor Mr Cappa were witnesses in the proceeding. Their evidence,
such as it was, came in the form of statements provided to the respondent as part of its
investigation of the baton incident. Those statements included hearsay evidence.
[20] The actual statements of Mr Almond and Mr Cappa are not definitive about the
ownership of the baton. Mr Almond said he was told by Mr Cappa ‘yeah that is Neil’s’. Mr
Cappa said he thought it belonged to the appellant, because he had asked him (Mr Cappa) to
put it in his (the appellant’s) locker.
[21] The Deputy President’s consideration of the evidence as to the ownership of the baton
is recorded in [34]-[35] of the Decision as follows:
‘[34] On 22 January 2018, the City located the baton in Mr Emery’s locker, after its
presence was reported by Mr Almond. According to Ms Fairman, an investigation on
22 January 2018 revealed that Mr Almond discovered the baton in a pouch in the
driver’s side storage compartment of the vehicle and that he had asked his Team
Leader, Mr Cappa, if he knew who the baton belonged to. In a statement prepared on 6
February 2017, Mr Almond says that Mr Cappa told him ‘yeah that is Neil’s’.
[35] According to Ms Fairman, when questioned on 22 January 2018, Mr Cappa
admitted that he took possession of the baton and placed it in the locker of the person
it belonged to and told that person that they should take the baton home. Ms Fairman
says that Mr Cappa initially refused to identify the person to whom the baton belonged
and offered to resign rather than ‘dob’. She says Mr Cappa admitted that he had done
the wrong thing in failing to report the baton, but that it was not safe while on duty, so
he understood why an officer might feel it necessary to carry a baton. According to Ms
Fairman, Mr Cappa told her he did not want to reveal the identity of the owner of the
baton because that individual had looked out for him since Mr Cappa started
employment with the City.’ (footnotes omitted)
[22] In the proceedings below, the appellant insisted he had found the baton and had
intended to turn it over to the Police. On one view, the issue of the baton’s ownership is not
relevant to the finding of misconduct, which was that the baton was in the appellant’s
possession, regardless of whether he found it, or owned it. However, it was a ‘live’ issue as
far as the appellant was concerned and he was entitled to an opportunity to contradict the
evidence of Mr Almond and Mr Cappa on the issue.
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[23] It is a matter of record that the appellant was given such an opportunity in relation to
Mr Cappa. He gave direct evidence about his discussions with Mr Cappa and denied owning
the baton. The same cannot be said for the evidence of Mr Almond. As neither Mr Cappa nor
Mr Almond were witnesses in the proceeding, there was no opportunity to cross-examine
them. In other words, their evidence was not able to tested.
[24] The Deputy President noted during the conference that the appellant had not sought
orders for either Mr Almond or Mr Cappa to attend and give evidence in the proceeding.
However, it was the respondent who sought to rely on their statements as part of its defence
and who chose not to call them. In our view, the hearsay evidence introduced by the
respondent about who owned the baton and how it came to be in the appellant’s possession, is
likely to have informed, or at least influenced the conclusions reached by the Deputy
President. In circumstances where the appellant (while unrepresented) objected to the
introduction of Mr Almond and Mr Cappa’s evidence, the weight to be attributed to that
evidence was a material consideration, having regard to the direct evidence of the appellant to
the contrary. It is not apparent on the face of the Decision that the matter was given any
relevant weight. In our view, this was an error in the exercise of discretion of the kind
described in House v King (1936) 55 CLR 499 (‘House v King’). We uphold Grounds C and
D of the appeal.
GROUND F
[25] At [99] of the Decision, the Deputy President found that the appellant had shown no
contrition or remorse for his conduct. This would mean that there would be a potential risk to
the City in that he would likely engage in similar behaviour (if he was reinstated). Mr
Mullally raised a Browne v Dunn objection in that this proposition had never been put to the
appellant and, in any event, had not been part of the respondent’s original case. While we
accept there was an evidentiary basis for the Deputy President’s finding, the evidence in this
respect could not be said to be highly persuasive.
[26] Ms Nobbs at [34] of her statement had merely said ‘he did not show any contrition or
remorse’ and Ms Fairman similarly said ‘I was surprised he had not admitted any
wrongdoing’. Mr Beard had only said in his statement at [85]: ‘(his) employment should be
terminated, as he posed a risk that I did not want in the workplace.’ Neither Ms Fairman, Ms
Nobbs, or Mr Beard were questioned by the appellant, nor did the respondent refer to this
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evidence in their final submissions. We uphold this ground of appeal. It is a matter which may
properly be considered in a rehearing of this application.
GROUND G
[27] As to differential treatment between Mr Cappa and the appellant, we are satisfied that
the Deputy President had a sufficient basis for her reasons to distinguish the differential
treatment the City accorded to Mr Cappa compared to the appellant. In Sexton at [36], Lawler
VP dealt with the question of differential outcomes in unfair dismissal cases as follows:
‘[36] In my opinion the Commission should approach with caution claims of
differential treatment in other cases advanced as a basis for supporting a finding that a
termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in
determining whether there has been a “fair go all round” within the meaning of
s.170CA(2). In particular, it is important that the Commission be satisfied that cases
which are advanced as comparable cases in which there was no termination are in truth
properly comparable: the Commission must ensure that it is comparing "apples with
apples". There must be sufficient evidence of the circumstances of the allegedly
comparable cases to enable a proper comparison to be made. Obviously, where, as in
National Jet Systems, there is differential treatment between persons involved in the
same incident the Commission can more readily conclude that the cases are properly
comparable. However, even then the Commission must approach the matter with
caution. Specifically, the Commission must be conscious that there may be
considerations subjective to the circumstances of an individual that caused an
employer to take a more lenient approach in an allegedly comparable case. For
example, a worker guilty of particular misconduct justifying termination might be
shown leniency because of extreme need or stress arising from the serious illness of a
close dependent. Another worker guilty of the same misconduct could not necessarily
rely upon the leniency shown to the first worker as a basis for demonstrating that his or
her termination was harsh, unjust or unreasonable. Many other examples could be
constructed.’
[28] The Deputy President’s reasons in this respect are set out at [143]-[144]:
‘[143] The advancement of a claim that a dismissal is harsh, unjust or unreasonable as
a consequence of differential treatment between an applicant and other employees
involved in the same incident must be approached with caution.
“In particular, it is important that the Commission be satisfied that the cases
which are advanced as comparable cases in which there was no termination are
in truth properly comparable: the Commission must ensure that it is comparing
‘apples with apples’.”
[144] Mr Cappa was contrite when his involvement in the incident was raised with
him. He initially offered to resign. The City suggested that he instead participate in an
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investigation which on all accounts he did willingly, notwithstanding his initial
reluctance to ‘dob on a mate’. Mr Cappa acknowledged that his failure to report the
presence of the baton to management was inappropriate, and also said that he would
handle the same situation differently in the future. Mr Cappa was ultimately given a
first and final warning and demoted as a Team Leader. I am not satisfied that the
treatment of Mr Cappa as compared to Mr Emery is such as to render Mr Emery’s
dismissal harsh, unjust or unreasonable.’
[29] We do not discern any relevant error in this weighing up of the evidence in relation to
the different treatment as between the appellant and Mr Cappa. This ground of appeal is not
made out.
CONCLUSION
[30] For the reasons set out above, the Decision is affected by error. We have decided to
uphold the appeal and quash the Decision of the Deputy President.
Disposition of Appeal
[31] Given our findings in the appeal it is not appropriate to determine the application to
finality for ourselves. There may be questions as to the admission of evidence and cross
examination of witnesses, which can be effectively dealt with by a single member on remittal.
[32] We make the following orders:
The appeal is upheld except in relation to Grounds E and G;
The Decision in Emery v City of Stirling [2018] FWC 4303 is quashed; and
Matter U2018/2882 is remitted to the Region 3 Regional Coordinator for
allocation to another member for rehearing.
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DEPUTY PRESIDENT
Appearances:
P Mullally, Agent, Workclaims Australia for the appellant
E Hartley, Solicitor, HWL Ebsworth Lawyers for the respondent
Hearing details:
2019.
Melbourne (with Videolink to Perth):
19 March.
Final written submissions:
For the appellant: 15 February 2019.
For the respondent: 1 March 2019.
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PR709195
ORK WORK COMMISSION FAIR THE SEAL OF
