[2012] FWAFB 6949 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 —Appeal of decisions
VICE PRESIDENT WATSON |
|
Appeal against decision [[2012] FWA 1352 ] of Senior Deputy President Harrison at Sydney on 19 April 2012 in matter number U2011/6601 re unfair dismissal - failure to comply with code of conduct - procedural fairness - application of factors in section 387 of the Fair Work Act - permission to appeal - public interest test - Fair Work Act ss.381,387,394, 400, 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision 1 of Senior Deputy President Harrison dated 19 April 2012 in relation to an application by the Appellant for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). For confidentiality reasons we will not use the name of the Appellant. The application arose from the termination of the Appellant’s employment by the Australian Federal Police (AFP) for failing to comply with the AFP’s professional standards and aspects of the AFP Code of Conduct. The Senior Deputy President found that there was a valid reason for the dismissal and dismissed the application.
[2] At the hearing of the appeal on 24 July 2012, Mr C Bolger of counsel represented the Appellant and Mr T Saunders of counsel with Mr C Kane represented the AFP.
Background
[3] The Appellant had been employed by the AFP since June 2005 as a financial analyst in the finance team. Upon commencement of her employment, and again in 2006, the Appellant received and signed a document undertaking that she would not disclose, divulge, communicate or record AFP information except in the course of performing her duties or providing services or assistance to the AFP.
[4] In or around 2009, the AFP received a complaint that the Appellant had engaged in misconduct.
[5] The complaint was subject to an investigation by the AFP’s Professional Standards Unit. The investigator was satisfied that the Appellant had engaged in a number of incidents of serious misconduct under s.40TP of the Australian Federal Police Act 1979 between 2007 and 2009. In summary the Appellant’s conduct can be concisely described as improperly using information obtained indirectly as a result of her employment with the AFP for her own advantage, improperly using Commonwealth resources and failing to act honestly by providing false and misleading information to Professional Standards (PRS) investigators. We will refer to these incidences collectively as the conduct. There are certain aspects of the conduct of which the Appellant concedes that she engaged in and there are others which were disputed. 2
[6] After considering a number of other remedial actions, the investigator recommended termination as the appropriate sanction given the serious nature of the breaches. The Appellant’s employment was subsequently terminated by way of letter dated 9 March 2011.
[7] The Appellant filed her application for unfair dismissal remedy with Fair Work Australia on 31 March 2011. On 1 August, the AFP made an application to Fair Work Australia to be legally represented at the hearing which was scheduled for 12 August 2011. A telephone conference was conducted on 5 August 2011 at which the Senior Deputy President granted permission to the AFP to be legally represented.
[8] At the hearing of her unfair dismissal application on the 12 August 2011, the Appellant sought an adjournment of the proceedings so that she could also obtain legal representation. The Appellant asserted that she had misunderstood the outcome of the telephone conference held on 5 August 2011 and contended that she believed that the Senior Deputy President had only granted permission for the AFP to be legally represented at the telephone conference on 5 August 2011 and that a fresh application for permission to appear would need to be made at the hearing on 12 August 2011. The Appellant’s application for an adjournment was dismissed and the hearing proceeded. The Appellant was not legally represented on the first day of the hearing when both she and her mother gave evidence. For the remaining two days of the hearing, the Appellant was represented by counsel who cross examined all of the AFP’s witnesses and made final submissions on her behalf.
The Decision under Appeal
[9] The hearing before the Senior Deputy President was preceded by a number of procedural matters which also required determination. In particular the issue of whether the AFP could be legally represented is one of which the Appellant basis her appeal.
[10] In her decision, the Senior Deputy President firstly addresses the circumstances and provides reasons for her decision to reject the Appellant’s request for an adjournment of the hearing as follows:
“[3]... I indicated at the end of the hearing that I would grant permission for the AFP to be legally represented and also made rulings about documents that were to be produced. I was persuaded that the arbitration would proceed more efficiently if the AFP was legally represented. By the time of this hearing I had received the Applicant’s statement, one from her mother and numerous statements filed by the AFP. It was clear the arbitration was to be one in which I would need to make a number of rulings both about procedural matters and as to contested evidence. If every matter the parties disagreed about was to be tested the arbitration would proceed for many days. The documentation of the Applicant suggested it had been prepared with legal assistance. In any event it reflected a good grasp of the relevant sections of the Act and court procedure. However, much of it also dealt with matters of a personal nature which would be unlikely to be relevant to the application of the considerations in Part 3-2 of the Act. I noted that the Applicant was not taken by surprise that the AFP wished to be legally represented. At all times the AFP had been legally represented and had indicated it intended that to continue. I also noted that the Applicant had earlier been represented by solicitors at the conciliation conference and had then indicated she would continue to be legally represented.”
[11] The Senior Deputy President’s primary conclusions are expressed by reference to the factors in s.387 of the Act that Fair Work Australia must take into account to determine if a dismissal is harsh, unjust or unreasonable and are set out in paragraphs [63] to [84] of her decision. Her Honour found that a valid reason for termination existed, the Appellant was notified of the reasons for termination, she was given an opportunity to respond to the allegations against her, and other relevant matters included consistency of treatment of another employee and the Appellant’s remorse for her actions.
[12] After making findings and considering the criteria in s.387 of the Act, the Senior Deputy President found the termination was not harsh, unjust and unreasonable and dismissed the application.
The Grounds of Appeal
[13] Counsel for the Appellant identified 31 grounds of appeal. The grounds of appeal can be summarised as follows:
Denial of natural justice
● The Senior Deputy President erred in granting permission for the AFP to be legally represented when the Appellant was not.
● The Senior Deputy President erred in not granting the Appellant an adjournment on the morning of the hearing on 12 August 2011 to obtain legal representation.
● The Appellant was denied natural justice by having her application for an adjournment and orders for production of documents dismissed.
Errors regarding specific findings of fact and lack of objectivity
● The Senior Deputy President erred in finding that another employee of the AFP who aided and abetted the Appellant’s conduct was not treated differently in terms of the sanction received and therefore the Appellant’s dismissal was not harsh.
● The Senior Deputy President erred in finding that the Appellant provided false and misleading information to investigators of the Professional Standards Unit.
● The Senior Deputy President erred in finding that the Appellant had gained a benefit from her conduct.
● The Senior Deputy President was dismissive towards the Appellant’s evidence.
● The Senior Deputy President failed to provide adequate reasons for her preference for evidence submitted by the AFP over the evidence submitted by the Appellant when there was confliction between the two.
● The Senior Deputy President did not take into account certain evidence of the Appellant and erred in adopting the AFP’s submissions.
[14] On the issue of public interest, the Appellant submits that it is in the public interest to grant permission to appeal as the decision of the Senior Deputy President is clearly unjust and the matter raises public interest questions as to the application of the AFP’s Code of Conduct and National Guideline on the use of Information Technology as well as the application of the s.387 factors in the Act.
[15] The AFP submits that the Senior Deputy President has not mistaken any fact or failed to take into account any material fact. Further the AFP submits that the Senior Deputy President has not made any error in the exercise of her discretion and that the issues raised by the Appellant do not meet the public interest test as they have no significance beyond the facts of this matter.
The Nature of the Appeal
[16] Section 400 of the Act limits the grounds on which permission to appeal can be granted in unfair dismissal matters to cases where Fair Work Australia considers it in the public interest to grant permission to appeal. This criterion has been described as follows: 3
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[17] The appeal grounds challenge aspects of the decision which are of a discretionary nature. Hence the following principles from House v R 4 must be applied to the determination of whether an error occurred in the decision-making process:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Permission to appeal
[18] In our view the Senior Deputy President’s conclusion that there was a valid reason for the dismissal is clearly correct. We find no error in her approach to considering all of the factors in s.387 of the Act against the circumstances of the dismissal and finding that the dismissal was not harsh, unjust or unreasonable. The Appellant was advised of the reasons for dismissal and had an opportunity to respond to the allegations against her with a support person present. The Senior Deputy President also considered other relevant matters including the fact that the Appellant had no history of complaints or poor performance and balanced this against her finding that the Appellant showed limited remorse and responsibility for the conduct she engaged in.
[19] As to the grounds of appeal relating to procedural matters we do not believe that there was any error in her Honour’s approach. The decision to grant legal representation was appropriate as was the decision to proceed in a limited way on the first day of hearing until the Appellant arranged representation on subsequent days. Her Honour’s approach permitted any prejudice to be remedied on the subsequent hearing days, but no actual prejudice was ever alleged.
[20] We do not consider that any of the grounds of appeal have substance.
[21] We have given consideration to the parties’ submissions on the question of whether permission to appeal should be granted in this case. Section 400 of the Act contains a significant hurdle for appeals in matters of this nature. In particular, permission to appeal can only be granted if the Tribunal considers that it is in the public interest to do so.
[22] We do not consider that the matter raises issues of general principle in unfair dismissal matters. We do not consider that the conclusion of the Senior Deputy President is counterintuitive or that the decision results in a denial of natural justice. For these reasons, it follows that the matter does not attract the public interest.
Conclusion
[23] For the reasons above we do not consider that the Appellant has established a case for the grant of permission to appeal. Permission to appeal is denied. The application for permission to appeal is dismissed.
VICE PRESIDENT WATSON
Appearances:
C Bolger of counsel, for the Appellant.
T Saunders of counsel, for the Australian Federal Police.
Hearing details:
2012.
Sydney.
July, 24.
2 Exhibit S1 at para 5.
3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
4 (1936) 55 CLR 499.
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