DECISION

Fair Work Act 2009
s.604—Appeal of decision

Charles Tham
v
Hertz Australia Pty Limited T/A Hertz
(C2018/4099)

Appeal against decision [2018] FWC 3967 of Commissioner Harper-Greenwell at Melbourne on 4 July 2018 in matter number U2017/10023.

Introduction

[1] Mr Charles Tham (the Appellant) has applied for permission to appeal and has appealed against a decision 1 (the Decision) made by Commissioner Harper-Greenwell on 4 July 2018, in which the Commissioner determined that Mr Tham’s dismissal by Hertz Australia Pty Limited T/A Hertz (the Respondent) was not harsh, unjust or unreasonable. The Commissioner dismissed the Appellant’s application for an unfair dismissal remedy and issued an order2 to that effect.

[2] On 4 September 2018, we heard the parties on permission to appeal and the merits of the appeal. Mr Tham appeared and Mr A. Pollock of counsel sought permission to appear for the Respondent. The Commissioner had previously granted the Respondent permission to be represented by Mr Pollock at the hearing before her.

[3] The Respondent had filed and served written submissions on the question of permission to appear on 28 August 2018 and both parties addressed the Full Bench at the commencement of the hearing. We considered the submissions and the views of the parties and the matters outlined in s.596 of Fair Work Act 2009 (the Act). Having briefly conferred without adjournment, we determined to grant permission pursuant to s.596(2)(a) of the Act for the Respondent to be legally represented as it would, in our view, enable the matter to be dealt with more efficiently taking into account the complexity of this appeal, particularly as we considered the Appellant had articulated an additional ground of appeal in his written submissions which would require a response.

[4] The background to the proceedings is described in the Decision and may be shortly stated. The Appellant commenced working for the Respondent on 25 November 2016 as a vehicle services attendant until he was dismissed on 25 August 2017. The Appellant was dismissed for engaging in misconduct on the basis that he had provided false and misleading information to the Respondent during his recruitment process.

[5] Before the Commissioner, the Respondent submitted that the Appellant was dismissed after it had formed the view that he had intentionally misrepresented the period of his employment with a former employer in his resume.  It submitted the resume the Appellant provided when applying for his role listed his employment history with a previous employer as being between August 2010 and September 2015, when in reality he was employed for a much shorter period.

[6] The Appellant had submitted his dismissal was unfair because he had alerted representatives of the Respondent to the issue prior to the commencement of his employment and because, in all the circumstances, it was a disproportionate response.

[7] The Commissioner set out the factual background and parties’ evidence at [16]-[68] of the Decision before posing the question “Did Mr Tham intentionally provide false information to Hertz?” and outlining evidence from the Appellant, Mr Tom Grove, a former Regional Development Manager for the Respondent, Ms Emma Olsen, the Respondent’s Regional Support Manager, and Ms Alicia Lucchesi, the Respondent’s Senior Human Resources Business Partner.

[8] The Commissioner dealt with the question as to whether the Appellant’s dismissal was “harsh, unjust or unreasonable” and considered each of the matters set out at ss.387(a)-(h) of the Act.

[9] In relation to the question of whether there was a valid reason for the dismissal (s.387(a)), the Commissioner did not accept that the Appellant sought to disclose the errors contained in his resume, either prior to his engagement with the Respondent or at any stage prior to the Respondent’s discovery of the errors through its own enquiries. The Commissioner concluded:

“[121] I reject Mr Tham’s assertion that the errors in his resume were unintentional “mistakes” and that his shorter prior work history did not impact on his capacity to fulfil the inherent requirements of his role. Mr Tham had not made inadvertent errors in his resume, Mr Tham had altered the months and years he claimed to have worked to accommodate his narrative. He had also left out employment history due to either being terminated by his previous employer or to divert attention away from the fact that he taken action against numerous previous employers, regardless of whether that action had a legitimate basis or not.

[122] Mr Tham had intentionally misled his employer into believing he had a history of stable and long term employment. As a Vehicle Service Attendant, being the point of contact for a returned vehicle, Hertz were reliant on the honesty and integrity of its employees, especially should there have been valuables left behind in the vehicles by its customers. The gravity of the deceit put into question the ability for Hertz to trust Mr Tham to perform that role with honesty and integrity.

[123] I am satisfied on the evidence before me that the errors in Mr Tham’s resume were not only intentional they were also misleading and they were significant enough to justify Hertz’ loss of trust and confidence in Mr Tham’s ability to perform his role with honesty and integrity. The misleading information contained within Mr Tham’s resume was enough to justify a valid reason for his dismissal. Consequently I am satisfied that Hertz had a valid reason to dismiss Mr Tham.”

[10] The Commissioner dealt with the other matters she was required to take into account in ss.387(b)-(h) of the Act at [124]-[152], finding:

•  s.387(b) whether the person was notified of that reason:

“[131] I am satisfied on the evidence before me that Mr Tham had been notified of the reason for the dismissal in the letter sent to Mr Tham informing him that he had been dismissed. Mr Tham’s evidence was that he had also been provided with the allegation against him at a meeting prior to his dismissal.”

•  s.387(c) whether the person was given an opportunity to respond:

“[132] I do not accept Mr Tham’s argument that he was given insufficient time to prepare for and attend the disciplinary meeting with Hertz. I am satisfied that the 24 hours notification was sufficient given the nature of the allegations.

[133] In relation to the Certificates of Capacity Mr Tham provided to Hertz, I note that Mr Tham did not provide any evidence that the Certificates were sent to Ms Lucchesi or Mr Saville. Instead, the evidence before me is that Ms Olsen was sent these certificates at 1:49pm on 25 August 2017, well after his scheduled meeting at 10am. Mr Tham’s termination letter was emailed to him at 2:02pm. Given the timing of the email correspondence, I accept that it is likely that Ms Lucchesi would not have received these certificates prior to sending Mr Tham his termination letter.

[134] However, notwithstanding this I am not satisfied that Hertz gave Mr Tham a sufficient opportunity to respond to the allegations. Ms Lucchesi acted hastily upon Mr Tham’s failure to attend the scheduled meeting and, had reasonable enquiries been made, Ms Lucchesi would likely have become aware of Mr Tham’s Certificates of Capacity and the reasons for his lack of attendance…”

•  s.387(d) any unreasonable refusal by the employer to have a support person present to assist:

“[139] Mr Tham did not provide any evidence that he had attempted to or could not arrange a support person within the 24 hours he was afforded. I am satisfied that given Mr Tham was provided with 24 hours’ notice he had sufficient time to organise a support person.”

•  s.387(e) warning about unsatisfactory performance:

“[141] Mr Tham was dismissed for reason of his conduct and not dismissed for unsatisfactory performance.”

•  s.387(f) and (g) the degree to which the size of the employer’s enterprise and absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal:

“[143] Mr Tham submitted that Hertz is a large employer with a dedicated human resource department and that as such there was no reason for the lack of procedural fairness shown to him.

[144] Hertz submitted that it is a large enterprise and has dedicated human resource management specialists and expertise. Accordingly I make no allowance for the procedural deficiencies in the process.”

[11] As to the requirement to take into account any other matters the FWC considers relevant (s.387(h)), the Appellant had submitted the Commissioner should give consideration to his WorkCover injury, his financial hardship and the conduct of the Respondent in the dismissal, which he submitted was aggressive and inappropriate.

[12] In response, the Respondent queried the relevance of the WorkCover injury, which it submitted was not a reason for his dismissal. It further submitted the severity of the Appellant’s misconduct outweighed any harshness arising from the financial hardship and that the evidence of its witnesses did not support the Appellant’s version of the conduct of the Respondent in the dismissal. At [152], the Commissioner stated:

“I have had regard to the submissions and evidence put to me. However I am not persuaded that the mitigating circumstances outweigh the seriousness of Mr Tham’s conduct. I do not consider that his dismissal was harsh in those circumstances.”

[13] The Commissioner then concluded the dismissal was not harsh, unjust or unreasonable:

“[153] Hertz dismissed Mr Tham for a valid reason relating to his conduct. The notification of the dismissal and the later aspects of the procedure adopted by Hertz in proceeding with the dismissal included some deficiencies. Whilst Hertz failed to provide Mr Tham with a sufficient opportunity to respond to their allegations I am not satisfied that the explanation offered by Mr Tham in his submissions or at the hearing would have resulted in a different outcome. Those procedural deficiencies have been considered and balanced against the conduct of Mr Tham which provided a valid reason for the dismissal.

[154] The gravity of the intentional dishonesty upon which the dismissal of Mr Tham was based, when considered in its totality, represents matters which were fundamentally inconsistent with the continuation of the employment relationship…”

The Appeal

[14] The appeal is made under s.604 of the Act. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing.

[15] The Decision was made under Part 3-2—Unfair Dismissal. Section 400 of the Act applies to this appeal. It 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.”

[16] 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”. 4 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.

[17] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 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…” 6

[18] 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. 7 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.8

[19] The Appellant advanced two grounds of appeal in his notice of appeal and what appeared to be a third in his written submission. We exercised our discretion to, in effect, amend the notice of appeal to include this third ground and sought submissions in response from the Respondent during the course of the hearing.

Appeal Grounds 1 & 2

[20] The two grounds of appeal in the notice of appeal are:

1) During the final hearing on 3 May 2018, Emma Louise Olsen denied being the Hertz representative that interviewed me. Due to that Hertz were unable to identify who interviewed me or I can say they tried to avoid the fact that there must be somebody assisted me during the interview and that’s why I signed “the Application for Employment” without need to clarify the error of my resume in the section 3: Employment History. As per instruction of Emma Louise Olsen to insist me to leave that particular section 3 to be blank. Therefore, this resulted in me being unable to lead evidence as to disclosure of the significant error in the resume prior to my engagement with Hertz Australia Pty Ltd.

2) I believe in the decision there is not enough weight given to the interview process (refer to transcript PN 152 until PN 183). Once again as advised above, this resulted in me being unable to lead evidence as to my disclosure of the error in the resume prior to my engagement with Hertz Australia Pty Ltd.

[21] In written submissions, the Appellant outlined that he was interviewed by Ms Olsen on 6 October 2016 and declared to her there was a mistake on his resume, whereupon “she asked me leave the section 3 employment history blank, because my previous job was not related to engineering job or similar to that.” 9 He also submitted that if Ms Olsen denied she interviewed him, the Respondent should be able to establish who did in fact interview him.

[22] The Appellant further submitted that it was not fair that the Respondent ignored the mistake in relation to his resume that he had disclosed before it employed him, only to then use it as the basis to terminate his employment. He submitted that his application form should not have been accepted if it was not completed and the termination of his employment based on the error in his resume was a disproportionate response.

[23] In making submissions at the hearing, the Appellant maintained he was interviewed by Ms Olsen and said he advised her that he had told Mr Grove that there was a mistake on his resume. The Appellant submitted that Ms Olsen was therefore on notice that there was something wrong with his resume prior to the decision by the Respondent to hire him.

[24] In terms of the mistake on his resume, the Appellant submitted at the Appeal hearing the essence of it was that he had recorded that he had worked for “Conrock” for three years instead of one year. It is noted that Mr Tham’s resume recorded his employment at Conrock as being from August 2010 to September 2015. 10

[25] The Appellant was critical of the Respondent’s failure to confirm who had interviewed him. He also submitted there were no issues with his performance and sought to distinguish his circumstances from Emma Valenzuela v Spectrum Community Focus Limited t/as Spectrum Community Focus 11 (Valenzuela) because that case, he submitted, had elements of poor performance coupled with falsified qualifications.

[26] The Respondent submitted that the Commissioner did not err in rejecting the Appellant’s account of his interview process in favour of the evidence of Ms Olsen. It submitted those findings were based on strongly adverse credit findings against the Appellant, based on a range of considerations, encompassing the Appellant’s:

•  Concessions in the witness box concerning the content of his resume;

•  Contradictory oral evidence; and

•  Attempts to selectively feign ignorance and “game the system” by selective (and unwarranted) resort to an interpreter.

[27] The Respondent submitted those findings stood in contrast with the Commissioner’s positive credit findings concerning its witnesses and that the Full Bench should be very slow to interfere with factual findings based on credit assessments of that nature.

[28] The Respondent further submitted that even if the Commissioner erred in preferring the evidence of Ms Olsen concerning the interview process over the Appellant’s, that error would not amount to a significant error of fact in light of the broader conclusions that there were further gaps in the Appellant’s employment history covered by falsified details in his resume, which the Appellant at no stage drew to its attention. These further gaps and falsified details, it was said, were only conceded by the Appellant under cross-examination.

[29] As to the Appellant’s proposition that the finding in favour of Ms Olsen’s evidence lead to him “being unable to lead evidence as to disclosure of the significant error in the resume prior to my engagement with Hertz Australia Pty Ltd”, the Respondent submitted the finding was not made during the course of the hearing but rather, in the decision itself, following the conclusion of evidence. The Respondent submitted the second ground of appeal merely replicated this aspect of the first ground and fails for the same reasons.

[30] The Respondent submitted the Commissioner took into account evidence of the interview process and simply preferred the evidence of the Respondent’s witnesses over the Appellant, making no error in doing so.

[31] As to these first two grounds of appeal, we consider they amount to a complaint that the Commissioner made findings in respect of the interview process that favoured the Respondent instead of the Appellant.

[32] Recently, in Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited, 12 the Full Bench of the Commission outlined what it described as the general approach to challenging findings of fact on appeal:

“[45] In the joint reasons in Fox v Percy, in a passage which has been applied since, Gleeson CJ, Gummow and Kirby JJ said:

‘[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.’ (citations omitted)

[46] More recently, in Short v Ambulance Victoria, the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances whose those findings rested on assessments of credibility:

‘It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

In Fox v Percy at [26]-[31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.’ (citations omitted).

[47] These principles have been consistently applied by Full Benches of the Commission for many years. In the context of appeals, Full Benches have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.” (references omitted)

[33] At paragraph [105] of the Decision, the Commissioner outlined why she did not find the Appellant to be “a very credible witness”, while at paragraph [109], she made findings as to the credibility of the Respondent’s witnesses. Based on these findings, the Commissioner adopted the position that where there was a contest between the evidence of the Appellant and the witnesses of the Respondent, she preferred the evidence of the latter.

[34] The Commissioner dealt squarely with the Appellant’s claims that he contacted the Respondent to inform it that he had made “a mistake” in his resume prior to commencing his employment. At paragraph [118], the Commissioner noted this “mistake” was the same error that had been brought to the Appellant’s attention by the Respondent just prior to his dismissal and considered the Appellant’s proposition fell short of being plausible, when it became evident during the hearing that there were numerous errors in his resume, and yet he had only chosen to disclose the error the Respondent had relied on to dismiss him and not the other “half a dozen or so errors” he had acknowledged during the hearing. 13

[35] Ultimately, the Commissioner preferred the evidence of Mr Grove 14 and Ms Olsen15 and did not accept that the Appellant sought to disclose the false information contained within his resume prior to his engagement. Further, the Commissioner was not persuaded by the Appellant’s evidence that he had contacted Mr Grove or informed Ms Olsen of the error in his resume at any stage prior to the Respondent’s discovery of the error through its own inquiries.16

[36] Having so concluded, the Commissioner rejected the Appellant’s assertion that the errors in his resume were unintentional “mistakes” and that his shorter prior work history did not impact on his capacity to fulfil the inherent requirements of his role. The Commissioner found the Appellant:

•  had not made inadvertent errors in his resume;

•  had altered the months and years he claimed to have worked to accommodate his narrative; and

•  had left out employment history due to either being terminated by his previous employer or to divert attention away from the fact that he taken action against numerous previous employers, regardless of whether that action had a legitimate basis or not. 17

[37] The first two grounds of appeal do not disclose any arguable case of appealable error. They take issue with the Commissioner’s findings of fact, based on an assessment of the credibility of each witness, and are a complaint that the Commissioner preferred the evidence of Mr Grove and Ms Olsen over that given by the Appellant.

[38] Nothing in the Appellant’s submissions persuade us that there is an arguable case of appealable error in relation to the factual findings made by the Commissioner. We consider the findings the Commissioner made were open to her and we are not satisfied that it has been shown that the Commissioner “has failed to use or has palpably misused (her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

Appeal Ground 3

[39] As outlined above, it seemed to us a third ground of appeal was disclosed in the Appellant’s written submissions and went to the procedure adopted by Hertz in terminating his employment.

[40] The Appellant appears to have challenged the finding of the Commissioner that while the procedure adopted by the Respondent when it terminated the Appellant’s employment may not have been appropriate, the dismissal was still valid. 18

[41] At the hearing, the Appellant submitted the Respondent both refused to give him adequate time to respond to its allegations regarding his resume and denied him the opportunity to have the support person of his choice or an interpreter. He also submitted his medical certificate was ignored.

[42] As to the Appellant’s submission that he was denied procedural fairness because he was denied an interpreter and did not have adequate time to respond to the allegations, the Respondent referred to the Commissioner’s ultimate finding that the Appellant had not been given a sufficient opportunity to respond but notwithstanding this, the Commissioner found this failure was nonetheless outweighed by the gravity of the Appellant’s misconduct and accordingly, there was no miscarriage in the exercise of her discretion.

[43] As to this third appeal ground, we note that the Commissioner outlined the parties’ submissions at paragraphs [126]-[130] of the Decision. Having done so:

a) the Commissioner was satisfied that the 24 hours notification of the disciplinary meeting was sufficient given the nature of the allegations; 19 and

b) the Commissioner was satisfied that given the Appellant was provided with 24 hours’ notice, he had sufficient time to organise a support person and found he did not provide any evidence that he had attempted to or could not arrange a support person within the 24 hours; 20 but

c) Notwithstanding these findings, the Commissioner was not satisfied that the Respondent gave the Appellant a sufficient opportunity to respond to the allegations and instead acted hastily upon his failure to attend the scheduled meeting and made this specific finding at [134] of the Decision.

[44] In making the third of these three findings, the Commissioner expressed the view that had reasonable enquiries been made upon the Appellant’s failure to attend the scheduled disciplinary meeting, Ms Lucchesi would likely have become aware of his Certificates of Capacity and the reasons for his lack of attendance. 21

[45] It is well established that each of the criteria in s.387 of the Act, to the extent they are relevant, must be considered in determining whether a dismissal is harsh, unjust or unreasonable. Whether a circumstance existed must then be taken into account, considered and given due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 22

[46] The Commissioner applied herself to these tasks in an orthodox manner, considering each of the criteria in s.387 and making findings in relation to them. The Commissioner had an ultimate discretion in weighing each matter carefully in arriving at her decision. 23 She correctly observed that procedural deficiencies, such as the failure to give the Appellant a sufficient opportunity to respond to the allegations, “must also be assessed and balanced against the other factors which, when considered in totality, provide the basis upon which any finding is made as to whether the dismissal was unfair.”24

[47] On the material before us, we are not persuaded that the third ground of appeal raises an arguable case of error in the Commissioner’s exercise of her discretion, of the kind discussed in House v King. 25

Public Interest

[48] The Appellant submitted there were the following public interest considerations in the notice of appeal:

1) “Interest of justice”, relating to the fact that any potential future employer could view the Commissioner’s decision;

2) Correcting the public record if the appeal was granted;

3) Procedural fairness, in that the Decision failed to take significant material into account;

4) The impact on his dependants; and

5) His prospects of future employment.

[49] At the hearing, the Appellant submitted it was in the public interest to ensure that what happened to him did not happen to other employees, repeated his submission relating to his family circumstances and sought to rely on the decision in Waite v Serco Australia Pty Ltd T/A Serco Australia Pty Ltd, 26 as support for the proposition that employers still need to follow a proper investigation and disciplinary process even if an employee has behaved deplorably.27

[50] The Respondent submitted that none of the matters raised by the Appellant gave rise to any public interest considerations or matters of general application and further submitted that this appeal was an attempt by the Appellant to run his case again.

[51] As we have outlined above, the public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance, where the decision at first instance manifests an injustice or the result is counter-intuitive or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. 28 The public interest is not satisfied simply by the identification of error, or a preference for a different result.29

[52] We do not consider that an arguable case has been made out that the Commissioner's conclusion was manifested by any injustice or the result is counter-intuitive. The Commissioner found, based on the evidence, the errors in the Appellant’s resume were intentional, misleading and significant enough to justify the Respondent’s loss of trust and confidence in his ability to perform his role with honesty and integrity. 30 We are satisfied that the Commissioner properly weighed any relevant mitigating factors against the gravity of the conduct that she found had occurred and came to the reasonable conclusion that the Appellant’s dismissal was not harsh, unjust or unreasonable.31

[53] We are not persuaded that the appeal raises issues of importance or general application, as the Decision turns on its own facts, and nor do we consider that there is a need for Full Bench guidance on any matter raised.

[54] Further, we do not consider that the Decision is disharmonious with Valenzuela. That decision did not concern an employee being dismissed for intentionally providing misleading information on a resume; rather, it concerned an employee dismissed for poor performance and the issue of falsified qualifications was considered in the context of remedy.

[55] Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest.

Conclusion

[56] The Decision was made under Part 3-2—Unfair Dismissal of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)).

[57] We have not been persuaded the Commissioner’s exercise of discretion was attended by a significant error of fact and ultimately, we are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal based on any of the considerations in GlaxoSmithKline Australia Pty Ltd v Makin. 32

[58] Permission to appeal is therefore refused.

DEPUTY PRESIDENT

Appearances:

C. Tham on his own behalf.

A. Pollock, Counsel, for the Respondent.

Hearing details:

2018.

Melbourne:

4 September.

Printed by authority of the Commonwealth Government Printer

<PR700775>

 1   [2018] FWC 3967.

 2   PR608726.

 3   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   (2011) 192 FCR 78 at [43].

 5   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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].

 6   [2010] FWAFB 5343, 197 IR 266 at [27].

 7   Wan v AIRC (2001) 116 FCR 481 at [30].

 8   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 9   Appellant’s written submissions Chronology of the Unfair Dismissal at paragraph [17].

 10   Appeal Book at page 215.

 11   [2017] FWC 5007.

 12   [2018] FWCFB 3989.

 13   Decision at [119].

 14   Decision at [97]-[100].

 15   Decision at [102]-[104].

 16   Decision at [119].

 17   Decision at [121].

 18   Appellant’s written submissions Chronology of the Unfair Dismissal at paragraph [29].

 19   Decision at [132].

 20   Decision at [139].

 21   Decision at [134].

 22   ALH Group Pty Ltd t/as Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51].

 23   R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552 at page 556 (Murphy J); cited in Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [37].

 24   Decision at [134].

 25   (1936) 55 CLR 499.

 26   [2018] FWC 3113.

 27   Transcript PN 118.

 28   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

 29   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28] affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v McAuliffe [2014] FWCFB 1663, 241 IR 177 at [28].

 30   Decision at [122]-[123].

 31   Decision at [153]-[154].

 32   [2010] FWAFB 5343, 197 IR 266.