[2012] FWAFB 7267 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE |
|
Appeal against decision [2012] FWA 1360 of Commissioner Bissett at Melbourne on 5 March 2012 in matter number U2011/9213.
[1] This is an appeal pursuant to section 604 of the Fair Work Act 2009 (the Act) arising from a decision of Commissioner Bissett. 1 Commissioner Bissett found that there was a valid reason for the termination of Ms Jalea's employment. She also found that Ms Jalea’s employment was not terminated in circumstances that were harsh, unjust or unreasonable. She dismissed Ms Jalea’s application.
[2] The principles applicable to this appeal are:
“[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from a decision made under Part 3.2 unless the Tribunal considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s.400(2)).
[14] Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally (compare s.604(2) and s.400).” 2
[3] At the conclusion of the hearing of the appeal we dealt with the application of Ms Jalea’s solicitor that further documents be produced and that those documents and other existing documents be considered as new evidence before the Full Bench.
[4] In relation to documents that Ms Jalea's solicitor did not seek to have produced at the hearing before Commissioner Bissett we decided to issue no order. We ordered the production of documents arising from all disciplinary proceedings concerning Ms Todkill. We also decided to consider the admission of the transcript of certain Magistrates Court proceedings and a particular Facebook page.
[5] We have decided not to allow any new evidence before us.
[6] We do not consider that the conduct of Ms Todkill or any disciplinary proceedings against her to be sufficiently relevant. We are also satisfied that those documents would have made no difference to the outcome before Commissioner Bissett.
[7] Ms Jalea's solicitor complained that Commissioner Bissett did not allow the admission of material, particularly the transcript, of Magistrate Court proceedings. These proceedings were an application for an Apprehended Violence Order against Ms Jalea. Ms Jalea successfully defended that application. That application was a matter that was said to have contributed to the context in which the alleged misconduct took place.
[8] We have examined the transcript 3 before Commissioner Bissett. It is not accurate to say that Commissioner Bissett refused the tender of the transcript of those proceedings. The tender was sought, there was an objection and a subsequent discussion. Following that discussion Ms Jalea’s solicitor failed to press the tender.
[9] It is clear that Ms Jalea’s interaction with those pillars of good manners and propriety, Ms Vidler and Mr Pannan, was unpleasant and the proceedings stressful. Had the tender of the transcript been pressed by Ms Jalea’s solicitor and admitted into evidence, it would have provided support for Ms Jalea’s evidence regarding these issues. However, we are satisfied that all of the unpleasant circumstances surrounding the conduct of Ms Jalea, and Ms Vidler and Mr Pannan’s relationship, were sufficiently canvassed before Commissioner Bissett and available for her consideration. We are satisfied that the admission of those transcripts would have made no difference to the outcome before Commissioner Bissett.
[10] The Facebook page is further evidence of unpleasant and tasteless conduct by persons dealing with Ms Jalea. Again, the effect of the breakup of Ms Jalea’s romantic attachment and friendship was apparent to Commissioner Bissett from the evidence of Ms Jalea. We are satisfied that those matters of context were considered by the Commissioner.
[11] Commissioner Bissett described the reasons for the termination of Ms Jalea’s employment as follows:
“[25] Ms Jalea’s employment was terminated because she used inappropriate language towards her manager that was witnessed by other employees; she failed to follow a reasonable direction from her manager to stop using inappropriate language and to leave her office; and she used physical force to try and gain entry into Ms Todkill’s office when Ms Todkill was standing in the doorway. 4 Such conduct constitutes a breach of Policy.”5
[12] Commissioner Bissett’s decision is a lengthy one. The Commissioner reviewed the evidence in detail, paying particular attention to the submissions of Ms Jalea’s solicitor. This was not an application where there was any common ground between the applicant and the respondent as to the conduct which was said to amount to misconduct and which the respondent relied upon as a valid reason for the termination of the applicant’s employment. Almost all matters of fact were in dispute. In this appeal Ms Jalea’s solicitor drew our attention to the factual conclusions drawn by Commissioner Bissett. She challenged those findings.
[13] We have examined all of the findings of Commissioner Bissett which had been the subject of submissions by Ms Jalea’s solicitor. The application involved many contested factual areas. We have set out below some examples of the findings the Commissioner made in relation to the actual misconduct alleged against Ms Jalea. The Commissioner found that:
● Ms Jalea used physical force to stop Ms Todkill closing her office door. 6
● Ms Jalea used inappropriate language directed at her manager. She was not simply “venting” but was directing a stream of language towards Ms Todkill. 7
● Ms Todkill did not swear at Ms Jalea. 8
● Ms Jalea raised her voice whilst using inappropriate language. 9
● If Ms Todkill raised her voice it was in response to Ms Jalea's raised voice. 10
● Ms Jalea did not calm down when requested to do so by Ms Todkill. 11
● Ms Jalea behaved inappropriately by slamming Ms Todkill’s office door with considerable force. 12
● Ms Jalea was in a rage at times during the alleged incident, but at other times she was calm. She was angry, intense and immoderate in her behaviour and language. 13
● Ms Jalea’s conduct towards her manager was enraged, inappropriate and unnecessary. Her conduct towards her fellow workers was disrespectful, inappropriate and unnecessary. 14
[14] All of these findings are supported by the evidence. Although we have not set out all of the findings made by Commissioner Bissett in her lengthy decision, we have examined all of those findings and are satisfied that there was material before the Commissioner on which those findings could be properly made.
[15] Commissioner Bissett found that Ms Jalea’s conduct towards her supervisor was conduct that amounted to misconduct and that it was a valid reason for termination of Ms Jalea’s employment. She found that it was unacceptable, unnecessary and demonstrated a lack of respect for her manager and her co-workers. Having made that finding Commissioner Bissett then considered, as she was obliged to, whether or not the termination of Ms Jalea’s employment for that valid reason was harsh, unjust or unreasonable. She determined that it was not. She found that the termination of her employment was not disproportionate to the conduct involved.
[16] Ms Jalea's solicitor made submissions about the appropriateness of the offer made to Ms Jalea, as an alternative to termination of employment, of alternate employment at a Sydney base. That employment was not an offer of employment with the respondent. It was an offer of employment with a related corporation. There is no substance to the submissions. The respondent was not obliged to make the offer. From their point of view it was generous, taking into account their conclusion that continuing employment in Brisbane was unviable.
[17] Commissioner Bissett gave separate consideration to procedural issues concerning the respondent's investigation and determined that any defects did not make the dismissal harsh, unjust or unreasonable. That finding was available to her and we agree with it.
[18] There is no doubt that the outcome for Ms Jalea, of both the Respondent’s investigation and the application before Commissioner Bissett, was a hard one. However, a hard answer is not necessarily an outcome that is harsh, unjust or unreasonable.
[19] We are satisfied that in considering this application Commissioner Bissett made reference to, and considered appropriately, all of those matters that were relevant.
[20] We are satisfied that there is no error, significant or otherwise, in the decision of Commissioner Bissett, nor are we persuaded that there is any reason to grant permission to appeal in the public interest.
[21] Permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
A Warren on behalf of E Jalea
V Rogers on behalf of Sunstate Airlines (Queensland) Pty Ltd
Hearing details:
2012
Brisbane
June 8
1 Print 520267
3 Transcript PN1922 - PN1960
4 Exhibit R6, attachment GM24, decision letter of 11 May 2011.
5 Exhibit R6, attachment GM 20.
7 Ibid para 90 and 91
8 Ibid para 92
9 Ibid para 93
10 Ibid para 96
11 Ibid paras 98 and 102
12 Ibid para 104
13 Ibid paras 109 - 111
14 Ibid paras 112 and 113
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