| [2018] FWCFB 6074 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Gary Lee Davidson
v
Qube Logistics (Vic) Pty Ltd T/A Qube Holdings
(C2018/4853)
DEPUTY PRESIDENT GOSTENCNIK |
SYDNEY, 2 OCTOBER 2018 |
Appeal against decision [[2018] FWC 4481] of Commissioner Cirkovic at Melbourne on 13 August 2018, matter number U2018/2775; no arguable case of appealable error; public interest not enlivened; permission to appeal refused.
[1] Mr Gary Davidson has filed a Notice of Appeal in which he seeks permission to appeal and to appeal against a decision of Commissioner Cirkovic issued on 13 August [[2018] FWC 4481] (the Decision).
[2] The Decision concerned an application made by Mr Davidson for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to his former employment with Qube Logistics (Vic) Pty Ltd (Qube) who opposed his application. Qube opposed Mr Davidson’s application on the ground that there had not been a dismissal as defined under the Act.
[3] The application was heard on 25 September 2018, to consider the issue of permission to appeal pursuant to s.400(1) of the Act. At the conclusion of the hearing we announced our decision to dismiss the appeal, with written reasons to follow, which we now provide.
[4] Section 385(a) of the Act requires the Commission to be satisfied that the applicant has been ‘dismissed’. Where there is no dismissal the Commission is without jurisdiction to determine an unfair dismissal application.
[5] The meaning of ‘dismissal’ is expressly set out at s.386 as follows:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[6] It was not in dispute that Mr Davidson resigned from his employment on 26 February 2018, and immediately left the worksite not to return, or that he did not at any subsequent time attempt to withdraw his resignation. On this basis, Qube submitted before the Commissioner that Mr Davidson’s employment had not been terminated on the employer’s initiative and that the application ought to be dismissed.
[7] On the other hand, Mr Davidson submitted that s.386(1)(b) of the Act was invoked as he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by Qube.
[8] The Commissioner referred to the relevant authorities on the subject of forced resignation and considered the circumstances surrounding Mr Davidson’s resignation. The Commissioner concluded that Qube’s conduct did not constitute action that left Mr Davidson with no alternative other than to resign. On this basis, he was not dismissed as required by s.385(a) of the Act, and the application was dismissed.
[9] Mr Davidson stated before the Commissioner, that on return from a period of sick leave on the morning of 26 February 2018, he received a telephone call to attend the transport hut and meet with the Transport Operations Manager Phil Bennett. At the meeting he was advised that a very serious breach had been committed and he would be stood down with pay pending an outcome of an investigation. During the meeting Mr Davidson stated to Mr Bennett that he was ‘pulling the pin’, he then stood up and shook Mr Bennett’s hand and quickly left the premises.
[10] Mr Davidson submitted that he felt forced to resign due to a number of reasons including:
• a formal complaint had been made by a more senior employee about him;
• he perceived the upcoming investigation to be window dressing and a sham;
• Qube had one week to do an investigation prior to him returning to work;
• He was to be stood down with the investigation being conducted in house;
• The meeting was totally unexpected and designed to create maximum disadvantage and provoke a response of resignation;
• Qube had directed another employee to refuel the fuel tanker, a role which he had previously performed which indicated that he was going to be dismissed;
• Qube had a policy of nepotism in favour of Indian people; and
• Qube had engaged in illegal discriminatory practice and created a work place that is favourable towards people of Indian origin.
[11] This appeal is one to which s.400 of the Act applies. 1 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.”
[12] In Coal & Allied Mining Services Pty Ltd v Lawler and others 2, Buchanan J3 characterised the test under s.400 as “a stringent one”.4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia Pty Ltd v Makin6 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.” 7
[13] 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. 8 Even where the Member at first instance has made an error it is not necessarily a sufficient basis for the grant of permission to appeal.9
[14] Although Mr Davidson was dissatisfied with the Commissioner’s decision, he was unable to point to any significant error of fact or any error of law affecting the Commissioner’s decision or her reasons. Mr Davidson complains about a wrong rate of pay disclosed in his final payment statement and about the forfeiture of his accrued annual leave for failing to give notice of his resignation; however these are not matters pertinent to whether he was forced to resign. In essence, Mr Davidson resigned because he did not believe that the impending investigation would be fair and impartial. The Commissioner did not consider his opinion to have been reasonably held. 10
[15] We have considered the submissions advanced by Mr Davidson. To the extent that they raise any contention of appealable error (as distinct from simply seeking to re-argue the matter), we do not consider that they are seriously arguable. Further, in the absence of error of an appealable nature, it is not open for us to substitute our view on the matters that fell for determination before the Commissioner. 11
[16] We do not consider that Mr Davidson has demonstrated that the Commissioner’s Decision is attended by sufficient doubt to justify the grant of permission to appeal in the public interest. Nor do we consider that the appeal raises any issue which is novel, of general application, or exposes any diversity in first instance decision-making that would attract the public interest.
[17] We are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s.400(1) of the Act, and as stated at the conclusion of the hearing, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
G Davidson, Appellant.
D Coulton for Qube Logistics (Vic) Pty Ltd.
Hearing details:
2018.
Melbourne:
September 25.
1 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
2 (2011) 192 FCR 78
3 Marshall and Cowdroy JJ agreeing
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) 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]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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 288, 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]
10 Davidson v Qube Logistics Vic. Pty Ltd T/A Qube Holdings [2018] FWC 4481 at [31]
11 See: House v The King [1936] 55 CLR 499
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