DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Krav Maga Defence Institute Pty Ltd t/a KMDI
v
Saar Markovitch
(C2018/6094)

Application for permission to appeal and appeal of a decision of Commissioner Riordan on 18 December 2018 at Sydney in U2018/6030 – jurisdictional decision – Small Business Fair Dismissal Code – arguable case of appealable error established – failure to provide reasons – important and novel issues – permission to appeal granted – further programming.

INTRODUCTION AND BACKGROUND

[1] Krav Maga Defence Institute t/a KMDI (‘Krav Maga’ or the ‘appellant’) has applied for permission to appeal and appeal of a decision published by Commissioner Riordan on 18 October 2018 (the ‘Decision’) in which the Commissioner dismissed the appellant’s jurisdictional objection to an unfair dismissal application, filed by Mr Saar Markovitch (the ‘respondent’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’): Markovitch v Krav Maga Defence Institute Pty Ltd t/a KMDI [2018] FWC 6114.

[2] The appeal was listed for a hearing before the Full Bench of the Commission in respect to permission to appeal only on 11 December 2018. Mr P Moorhouse of Counsel, instructed by Ms N Town, Bradbury Legal appeared for the appellant and Ms L Saunders of Counsel with Mr Nicolopoulos, EPP Law appeared for the respondent. Both parties were granted permission to be represented by a lawyer, pursuant to the provisions of s 596 of the Act.

[3] The appellant had objected to the respondent’s unfair dismissal application on the basis that Krav Maga is a small business (nine employees, both casual and permanent) and that in terminating the respondent’s employment, it had complied with the Small Business Fair Dismissal Code (the ‘Code’), as set out in s 388 of the Act. Although the appellant operates three Krav Maga gyms in the Sydney area, there is no contest that the appellant is a small business (as defined); namely, a business with less than 15 employees.

[4] Krav Maga is a specialised full contact martial art/self defence system, taught and practised in the Israeli army, and adopted around the world by military and police forces, and civilian martial arts schools. Both the appellant, being the owner of the three gyms, Mr Ron Engelman, and the respondent were previously best friends and officers in the Israeli army.

[5] The respondent was the Manager and only full time instructor employee at the Bondi Junction gym and conducted two classes a week at the Surry Hills gym. He was also a 457 visa holder, sponsored by the appellant, because of the skills necessary to lead the Krav Maga gyms in Australia. The respondent was dismissed by the appellant on 21 May 2018. He received a termination of employment letter on 24 May 2018, which read:

“Dear Saar,

Termination of Employment

1. Serious Misconduct

1.1 On 21 May 2018, we met and discussed an allegation made against you of serious misconduct following the Company becoming aware of you failing to supervise the clients of the Company under your care.

1.2 At the meeting, you confirmed the conduct alleged occurred and agreed that your actions amounted to serious misconduct and offered your resignation immediately. We acknowledge you subsequently rescinded the resignation by way of email on 21 May 2018 which we accept.

1.3 We take the safety of our clients as paramount and cannot accept or tolerate the conduct of any employee who willfully puts out clients at risk.

1.4 Your conduct amounts to:-

•  engaging in conduct that causes risk to our client’s health and safety and to the Company’s reputation; and

•  serious and willful neglect in the performance of your duties.

1.5 Consequently the Company has terminated your employment summarily (without notice) in accordance with clause 18 of your employment contract.

2. Visa Obligations

2.1 We have advised the Department of Home Affairs of the termination of your employment as we are required to do so under your 457 visa. You are now required to leave Australia within 90 days or find a new employer to sponsor your visa.

2.2 We confirm that your return airfare to your home country has been paid for by the Company and advise you to notify us immediately if you do not intend to leave Australia within 90 days of your termination.

2.3 Furthermore, your Company sponsored permanent residency application has been withdrawn effective immediately.

3. Contractual Obligations Surviving Termination

3.1 We remind you of your obligations following termination of your employment as set out in your contract of employment dated 9 June 2015 which contain terms that will survive and continue to impose obligations on you despite the termination of your employment.

3.2 For example, in clause 23 of the Agreement you have expressly agreed that for 12 months following your employment not to be directly or indirectly employed or otherwise be involved with any business which is the same or is substantially similar to or competitive with the business activities of KMDI anywhere in NSW.

3.3 In signing the Agreement, you have acknowledged and agreed that these obligations, which apply to your post-employment conduct, are reasonable in protecting KMDI’s legitimate business interests.

3.4 The Company requires you to sign the enclosed written undertaking to confirm that you will act in accordance with your obligations under the Agreement. We require you to return a signed copy (by email) of the enclosed undertakings by no later than 12.00pm Friday 25 May 2018. Should you do so, the Company will expect you to honour your contractual obligations in full and will rely on your undertakings.

3.5 Should you fail to do so; the Company shall take your omission as confirmation that you do not intend to comply with your obligations under the Agreement. In that unfortunate circumstance, the Company will consider its rights including potential legal proceedings against you and if so, will reserve its rights including potential legal proceedings against you and if so, will reserve its rights to rely on this correspondence with respect to any questions of costs.

3.6 Should you return the undertakings, and the Company subsequently discovers further conduct by you in breach of the Agreement it will not hesitate to take any action it considers necessary to protect its legitimate business interests, including in particular, seeking interlocutory relief without further notice to you.

4.0 Other matters

4.1 The Company has incurred significant costs associated with your 457 visa and subsequent permanent residency application. Consequently, your final payment owed and any outstanding leave entitlements will be withheld to assist in offsetting the costs incurred by the Company.

4.2 The Company reserves its rights to pursue you for breach of contract and damages for the full costs incurred associated with your 457 visa and permanent residency application.

Yours Sincerely

Ron Engelman

Director

Krav Maga Defence Institute”

[6] The alleged conduct referred to at 1.4 in the above letter, included the following:

•  spending a substantial part of his working time on his mobile phone, at the reception desk;

•  allowing students to spar, without supervision;

•  leaving the training area unsupervised to use his mobile phone;

•  leaving the training area while his students were practising with weapons to use his mobile phone; and

•  leaving the training of a children’s class to use his mobile phone.

[7] The appellant’s premises are monitored by CCTV and Mr Engelman relied on the CCTV footage and the respondent’s admissions that he was not providing appropriate supervision during the training of the students (aged between 9-17 years), thereby creating a serious occupational health and safety issue, as the basis for the respondent’s dismissal. It is common ground that Krav Maga is an inherently high risk pursuit, which requires close supervision at all times by a certified instructor (in 2015 a student had collapsed in a class and later died). Instructors are expected to comply with a strict Code of Conduct and Safety Policy.

THE COMMISSIONER’S DECISION

[8] The primary focus of the Commissioner in the proceedings below was on the provisions of the Workplace Surveillance Act 2005 (NSW) (the ‘WS Act’). The Commissioner was concerned that the appellant had acted in breach of the WS Act in that the CCTV recordings relied on by the appellant to justify the respondent’s dismissal, had been obtained illegally and were therefore inadmissible and unable to be used as evidence to infer that a serious safety risk had occurred.

[9] At [16] of the Decision, the Commissioner set out Part 2 of the WS Act, which we reproduce below:

“Part 2 Notification of workplace surveillance of employees

Note. Surveillance of an employee that does not comply with this Part is covert surveillance (see the definition of covert surveillance). Covert surveillance of an employee is an offence unless the surveillance is authorised by a covert surveillance authority (see Part 4).

9 Application of Part

This Part applies to the surveillance of an employee carried out or caused to be carried out by the employee’s employer while the employee is at work for the employer.

10 Notice of surveillance required

(1) Surveillance of an employee must not commence without prior notice in writing to the employee.

Note. Subsection (6) provides for an exception to the notice requirement.

(2) The notice must be given at least 14 days before the surveillance commences. An employee may agree to a lesser period of notice.

(3) If surveillance of employees at work for an employer has already commenced when an employee is first employed, or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.

(4) The notice must indicate:

(a) the kind of surveillance to be carried out (camera, computer or tracking), and

(b) how the surveillance will be carried out, and

(c) when the surveillance will start, and

(d) whether the surveillance will be continuous or intermittent, and

(e) whether the surveillance will be for a specified limited period or ongoing.

(5) Notice by email constitutes notice in writing for the purposes of this section.

(6) Notice to an employee is not required under this section in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee.

11 Additional requirements for camera surveillance

Camera surveillance of an employee must not be carried out unless:

(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and

(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.

12 Additional requirements for computer surveillance

Computer surveillance of an employee must not be carried out unless:

(a) the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work, and

(b) the employee has been notified in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy.

13 Additional requirements for tracking surveillance

Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must not be carried out unless there is a notice clearly visible on the vehicle or other thing indicating that the vehicle or thing is the subject of tracking surveillance.

14 Exemption for certain surveillance by agreement

Surveillance of an employee is taken to comply with the requirements of this Part if the employee (or a body representing a substantial number of employees at the workplace) has agreed to the carrying out of surveillance at the premises or place where the surveillance is taking place for a purpose other than surveillance of employees and the surveillance is carried out in accordance with that agreement.”

[10] Prior to determining the appellant’s objection, the Commissioner invited further submissions and evidence from the parties in relation to the issue of workplace surveillance. The Commissioner subsequently found that the applicant:

•  was aware of the plan to install CCTV at the Bondi Junction gym;

•  had authorised the payment to the contractor who had installed the CCTV; and

•  was not provided with two weeks notification, in writing, of the commencement of the recording and the erection of signs informing persons of the CCTV surveillance: (s 10 of the WS Act).

[11] The Commissioner also took into account that the reason for the CCTV equipment is for the protection of employees and students and he accepted that the behaviour of the respondent was unsatisfactory, but there was no evidence to infer that a serious safety incident had occurred.

[12] At [27]-[29], the Commissioner concluded:

“[27] When attending for work, every employee has a right and expectation that there employer will abide by the law.

[28] The breach of safety, as alleged by the Respondent, is not of sufficient magnitude to warrant a determination to override the provisions of the Workplace Surveillance Act. Even if I were to allow the video recording into evidence, the conduct of the Applicant did not create an imminent risk of serious injury to the Applicant or any of the students.

[29] The Respondent’s decision to terminate the Applicant was based on evidence obtained from the CCTV recordings of the gym. These recordings were not conducted in accordance with the NSW Workplace Surveillance Act 2005. This means that the recordings were obtained illegally. As a result, the Respondent has no evidence to infer that a serious safety incident has occurred. Therefore, the provisions of the Small Business Code have not been met.”

[13] The Commissioner subsequently issued directions for a hearing on 10 December 2018, which were suspended by agreement, pending the outcome of this appeal.

GROUNDS OF APPEAL

[14] The appellant raised four grounds justifying permission to appeal being granted:

1. That the Commissioner failed to provide adequate reasons (or any reasons) for rejecting the appellant’s argument that the CCTV surveillance was carried out with the respondent’s agreement and was therefore not obtained unlawfully.

2. The Commissioner erred by proceeding on the basis that if the CCTV footage did not comply with the WS Act, they were inadmissible. There is nothing in the WS Act which requires such a result. Rather, the Commissioner should have considered whether to exclude the CCTV footage as a matter of discretion, guided by the provisions of s 138 of the Evidence Act 1995 (Cth). The Commissioner’s approach was inconsistent with the correct approach for the admissibility of such evidence in other decisions of the Commission; see: Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354; [2004] AIRC 670 (‘Hail Creek’) at [48]-[50], [56], [57]; Walker v Mittagong Sands Pty Limited t/as Cowra Quartz [2010] FWA 9440 at [62]-[72]; Haslam v Fazche Pty Ltd [2013] FWC 5593 at [11]-[14]; Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO [2018] FWC 1824 at [93]-[100].

3. The Commissioner erred in the exercise of that discretion by his finding that the breach of safety ‘is not of sufficient magnitude to warrant a determination to override the WS Act.’ Further, the Commissioner failed to have regard to material matters in the exercise of that discretion; namely:

•  the probative value and importance of the CCTV footage in the proceeding;

•  the respondent’s awareness of the CCTV footage;

•  the respondent’s acknowledgement of his conduct; and

•  other matters set out in s 138 of the Evidence Act 1995.

4. By finding that the conduct of the respondent did not create an imminent risk of serious injury, the Commissioner failed to apply the correct approach for determining a summary dismissal under the Code; namely, whether the employer believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal. In addition, this finding was a significant error of fact, given the history of the applicant’s employment, including earlier warnings for similar behaviour and the risks associated with the appellant’s business reputation.

[15] As to public interest grounds, the appellant summarised its grounds relevant to permission to appeal in its Notice of Appeal. It was put that:

1. The Decision is attended with sufficient doubt to warrant its reconsideration.

2. The Commissioner failed to deal with, and failed to provide any, or adequate reasons for rejecting arguments put by the appellant at the hearing below, such that an injustice may result if leave to appeal is refused.

3. The Decision is erroneous, such that an injustice may result, if leave to appeal is refused.

4. The Commissioner applied a wrong approach to a number of the material issues before him, such that it is in the public interest to correct that approach.

5. The appeal raises the following matters of importance and general application:

a) the interpretation of s 14 of the WS Act; and

b) the correct approach to the admission of evidence that has been obtained improperly, or in contravention of an Australian law.

For the respondent

[16] Ms Saunders provided written and oral submissions opposing permission to appeal. It was put that the Commissioner did not err in rejecting the CCTV footage; he had summarised the bulk of the submissions and evidence; had taken all this material into account and had concluded that the appellant had not established that Mr Engelman held a belief on reasonable grounds that the conduct of the respondent was sufficiently serious to justify summary dismissal.

[17] In addressing each of the grounds of permission to appeal, Ms Saunders said that ground one had not been made out, as the evidence went no higher than the respondent knew the CCTV cameras would be installed, at some point. Consequently, there was no ‘agreement’ within the meaning of s 14 of the WS Act.

[18] In respect to the second ground, the Commissioner undertook a broader inquiry of relevant matters than simply whether the evidence was unlawfully obtained. He weighed all the evidence and made a number of other relevant findings.

[19] As to the third ground, this was no more than a criticism of form. The Commissioner correctly exercised his discretion by referring to the seriousness of the respondent’s conduct, the significance of the evidence and the gravity of the conduct.

[20] The fourth ground rests on an unfair reading of the Decision. The Commissioner’s conclusions on the respondent’s conduct were not made out in respect to the reasonableness of Mr Engelman’s belief, rather it explains that the conduct was not sufficiently serious to justify the admission of unlawfully obtained material.

[21] Ms Saunders submitted that there is no arguable case of error in the Decision. There are no issues of general importance and no need for appellant guidance by the Full Bench. Accordingly, permission to appeal should be refused.

CONSIDERATION

[22] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker; s 607(2) of the Act; see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] This appeal is one to which s 400 of the Act applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[24] In Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as ‘a stringent one’.   The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; see: 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]. In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27] 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.”

[25] 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; see: Wan v AIRC (2001) 116 FCR 481 at [30]. 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; see: 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 388, 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].

[26] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal; see: Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[27] We have decided to grant permission to appeal for four main reasons.

[28] Firstly, s 396 of the Act requires the Commission to make findings on the following matters before determining the merits of an unfair dismissal application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[29] In cases of summary dismissal for misconduct in a small business (as here), compliance with the Code requires the Commission to be satisfied that the employer held a belief on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal; see: Pinawan t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 and Ryman v Thrash Pty Ltd [2015] FWCFB 5264. This is a significantly different test than in summary dismissal cases where the Commission must itself be satisfied that the misconduct occurred; see: King v Freshmore (Vic) Pty Ltd Print S4213.

[30] It is clearly arguable based on the conclusions of the Commissioner we set out above, that he did not make the requisite findings under s 396 of the Act by answering the question as to whether the appellant had a belief on reasonable grounds that the respondent’s conduct was sufficiently serious to justify immediate dismissal; rather, it appears the Commissioner considered and answered a different question; namely, whether the CCTV footage had been obtained illegally under the WS Act. We refer to Grandbridge Ltd v Wilburd [2017] FWCFB 6732 where the Full Bench of the Commission said at [14]:

“[14] We consider that an arguable case of error has been established and the public interest is enlivened by the appeal. Specifically, we are persuaded that Grandbridge has made out an arguable case of appellable error in relation to grounds 2, 13 and 15 of its Notice of Appeal in so far as they concern the dishonest conduct reason for Ms Wiburd’s dismissal. It is arguable that the Deputy President fell into error by asking herself the wrong question in focussing on whether Ms Wiburd’s conduct “was serious enough” to sustain summary dismissal. The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal. It is therefore arguable that the Deputy President failed to properly apply the Code as Grandbridge contends by ground 13 of its Notice of Appeal.”

[31] Although not expressly stated, it could be assumed that the Commissioner rejected the admission of the CCTV evidence as a matter of discretion by taking into account, inter alia, the WS Act; see: Hail Creek. Assuming the Commissioner excluded the evidence as a matter of discretion, a question arises as to whether the exercise of discretion miscarried, in the sense that the Commissioner failed to consider material matters, (as set out in grounds three and four of the permission to appeal grounds), which might have outweighed his findings that the CCTV footage had been obtained illegally (assuming it had been). We consider an arguable case has been established as to this question. When viewed in this way, we are satisfied there is an arguable case that the Commissioner’s decision was attended by error, and the error could have made a difference to the outcome, thereby constituting a significant error. However, it is unnecessary for us to express a concluded view on this matter at this stage.

[32] Secondly, s 590 of the Act empowers the Commission, in relation to any matter before it, to inform itself in any manner the Commission considers appropriate. There is no limitation or restriction on that inquiry, including presumably, by permitting the Commission to accept evidence that may, or may not, have been obtained illegally, under the WS Act, or as defined in s 138 of the Evidence Act 1995 (Cth) (the ‘Evidence Act’). The Evidence Act does not exclude all evidence that has been obtained illegally or improperly from being admitted. Rather, s 138 allows such evidence to be admitted, provided it is more desirable than undesirable to do so. Section 138 reads as follows:

“Discretion to exclude improperly or illegally obtained evidence

(1)  Evidence that was obtained:

(a)  improperly or in contravention of an Australian law; or

(b)  in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)  Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)  did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b)  made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)  the probative value of the evidence; and

(b)  the importance of the evidence in the proceeding; and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d)  the gravity of the impropriety or contravention; and

(e)  whether the impropriety or contravention was deliberate or reckless; and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

[33] In any event, the Commission is not bound by the strict rules of evidence and the Evidence Act, while a useful guide, would not ordinarily be strictly applicable to matters before the Commission. Accordingly, we consider that an arguable case has been established that the Commissioner’s finding that the inadmissibility of the CCTV footage, because it was said to have been illegally obtained, was an error. The error may have altered the outcome of the case, thereby constituting a significant error. Similarly, we express no final view of this matter.

[34] Thirdly, s 14 of the WS Act provides for an exemption to the provisions of the WS Act where the employee has agreed to the carrying out of the surveillance on the premises. The appellant relies on the respondent’s knowledge of, and direct involvement in, the installation of the CCTV equipment, as his agreement, or at least, his ‘implied’ agreement, to the carrying out of the surveillance, which it submits satisfied the s 14 compliance exemption. It submits that the Decision disclosed no reason why the Commissioner rejected the appellant’s submissions in respect to the s 14 exemption argument. Moreover, it submits the evidence was contrary to the finding of the Commissioner, in that he did not accept that the respondent was aware of, and had been involved in, the installation of the CCTV equipment.

[35] A failure to provide adequate reasons, including a failure to disclose the steps in the reasoning process which led to the decision maker’s conclusions, can be an error of law, if the decision maker is under a duty to give reasons. There is no doubt this duty applies to Members of the Commission. In Barach v University of New South Wales (2010) 194 IR 259, a Full Bench of Fair Work Australia (as the Commission was then styled) set out the principles on the duty of a Member to give adequate reasons for a decision. At [16], the Full Bench said:

“[16] The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”

See also: Edwards v Giudice [1999] FCA 1836 and Ellawala v Australia Postal Corporation Print S5109.

[36] It does not appear that the Commissioner provided any reasons for rejecting the appellant’s submissions on a significant matter of contention in the case. This was an apparent error. Further, we consider it arguable that the Commissioner’s discretion miscarried, if he did not give any weight, or sufficient weight to material matters which would tell in favour of the appellant’s arguments.

[37] Fourthly, we are not aware of any single member decisions, let alone Full Bench authority, which have dealt with alleged non-compliance with the WS Act in the context of a summary dismissal under the Code. We consider this case raises new and novel issues in the Commission’s unfair dismissal jurisdiction, for which Full Bench guidance may be necessary. Permission to appeal should also be granted on that basis.

CONCLUSION

[38] As we have mentioned, the Decision subject to appeal was made under Part 3-2 of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision, unless the Full Bench considers that it is in the public interest to do so. For the reasons we have given, we are satisfied that it is in the public interest to grant permission to appeal. We order accordingly.

[39] The parties will be shortly advised as to further proceedings and directions in respect to the disposition of the substantive appeal.

DEPUTY PRESIDENT

Appearances:

P Moorhouse of Counsel, instructed by N Town, Bradbury Legal for the appellant.

L Saunders of Counsel with P Nicolopoulos, EPP Law appeared for the respondent.

Hearing details:

2018.

Sydney:

December 11.

Printed by authority of the Commonwealth Government Printer

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