| [2019] FWCFB 371 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Chris Rodger
v
The Australian Capital Territory T/A Transport Canberra and City Services
(C2018/6847)
VICE PRESIDENT CATANZARITI |
SYDNEY, 31 JANUARY 2019 |
Appeal against decision [2018] FWC 6970 of Deputy President Kovacic at Canberra on 15 November 2018 in matter number U2017/7768.
[1] Chris Rodger (Appellant) has applied for permission to appeal and to appeal against a decision issued by Deputy President Kovacic on 15 November 2018 1 (the Decision). In the Decision, the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy as he found that the dismissal was not harsh, unjust or unreasonable pursuant to s.385(b) of the Fair Work Act 2009 (Cth) (Act).
[2] In permission to appeal proceedings on 10 January 2019, Mr J Ronald of Counsel appeared for the Appellant and Mr N Oram of Counsel appeared for the Australian Capital Territory T/A Transport Canberra and City Services (Respondent). Having regard to s.596(2)(a) of the Act, permission to be represented was granted to both parties.
[3] The Appellant commenced employment with the Respondent as an apprentice mechanic on 24 January 2000. At the time of his dismissal, the Appellant had been employed for a period of 17 years and was employed as a Technical Officer under the terms and conditions of the ACTION Enterprise Agreement 2013-2017 (Agreement). 2
[4] As a result of an allegation that the Appellant had brought an explosive device into the workplace, a preliminary assessment was undertaken by the Respondent in accordance with the Agreement. The preliminary assessment resulted in the matter being referred to the Australian Federal Police (AFP) for investigation. Correspondence then passed between the Respondent’s senior management team, the Respondent’s acting Senior Investigator, the AFP, and the Appellant’s representative. Extracts and descriptions of this correspondence are detailed at paragraphs [8]–[16] of the Decision.
[5] On 28 June 2017, a “Notice of Disciplinary Action” letter was sent to the Appellant advising him that his employment would be terminated from close of business on 30 June 2017. The letter read in part:
“… Having carefully considered these submissions, I remain of the view that your conduct was wilful and deliberate and placed you and your fellow employees’ health and safety at serious and imminent risk.
I do not accept your claims that all of the items, that you accept you brought into the workplace, were not dangerous in an operational capacity. Specifically, I find
• Booster charges
• Black powder duelling pistols
• .22 calibre rifle
• shotgun
posed a genuine and serious risk to the health and safety of yourself and your fellow employees, by your actions in bringing them into the workplace. This includes the potential for psychological harm to your fellow employees.
…
I do not accept your behaviour was appropriate. As the delegate to determine the outcome of your actions, I cannot condone behaviour that places the health and safety of public employees at risk. Your actions have demonstrated a pattern of behaviour that is not acceptable to your continuing employment with the ACT Public Service.
Your employment will therefore be terminated with effect close of business 30 June 2017. You will be paid in lieu of the four (4) weeks notice required by the Fair Work Act 2009. …” 3 (underlining in original)
[6] Having considered the evidence and submissions put by the parties, the Deputy President made the following findings in respect to whether there was a valid reason for dismissal under s.387(a) of the Act:
• The Appellant acknowledged that he had brought a booster charge (albeit that acknowledgement went only to an inert booster charge) and replica duelling pistols into the workplace.
• The Appellant did not bring a .22 calibre rifle into the workplace.
• Bringing the booster charge (whether live/inert etc.) and replica duelling pistols into the workplace created a risk to safety, particularly given the possibility that the items were live or operational.
• The Appellant acknowledged that there was no reason for him to bring either item into the workplace.
• Bringing the booster charges and duelling pistols into the workplace, irrespective of whether they were live/inert or inoperable and in the absence of any legitimate reason for him bringing those items into the workplace, had the potential to bring the Respondent and to a lesser extent the ACT public service into disrepute.
• The Appellant’s conduct in bringing the booster charges and duelling pistols into the workplace created a risk to safety, constituted misconduct as defined in the Agreement and was inconsistent with his obligations under the Public Sector Management Act 1994 (ACT).
[7] Taken together, the Deputy President found these factors supported a finding that there was a valid reason for the Appellant’s dismissal.
[8] In relation to the other factors in s.387(b)-(h) of the Act, the Deputy President’s findings did not point to the dismissal being unfair. They were either not relevant or neutral considerations.
[9] The Deputy President considered the Appellant’s unblemished employment record of over 17 years to be a relevant consideration, and took this into account. However, whether the booster charges were inert and the duelling pistols were inoperable did not diminish the gravity of the Appellant’s conduct in bringing such items into the workplace. The Deputy President observed that the “fact of the matter is he had no legitimate reason to do so and by doing so he created a risk to safety, given the possibility that the items were live or operable.” Such misconduct outweighed the Appellant’s previously unblemished employment record. 4
[10] The Appellant submits that the appeal raises issues as to the consistency of the Commission’s approach to onus and standard of proof, including the application of the Briginshaw principle 5. Where a dismissal is based on the conduct of the employee, the Commission is required to determine, on the evidence before it, whether the alleged conduct took place and what it involved.6 Where the alleged misconduct is denied, there is an evidentiary onus on the employer to adduce evidence to establish the misconduct.7
[11] It was submitted in support of permission to appeal that the Deputy President was not satisfied that the misconduct alleged by the Respondent was established on the evidence, but nonetheless found the Appellant had engaged in misconduct based on a “possibility” that the items were live or operational and presented a risk to safety. Accordingly, the submissions continued, the Deputy President erred in his approach by finding there was a valid reason for the dismissal on the basis it was “possible” the misconduct had occurred. Rather, the Deputy President should have assessed whether the misconduct had been proven on the balance of probabilities, taking into account the seriousness of the allegation. The effect of the approach of the Deputy President is to place an onus on the dismissed employee to prove there was not even a possibility that the misconduct occurred. Such an approach was inconsistent with authority and the unfair dismissal regime under the Act.
[12] Further, the Appellant submitted, it is necessary to identify, with precision, the nature of the misconduct which is alleged in order to properly balance any mitigating factors and assess harshness. 8 The Deputy President again assessed whether the misconduct outweighed the Appellant’s unblemished service by reference to a “possibility” that his conduct had created a risk to safety, rather than against the proposition the conduct was actually proved. The Deputy President could not have found there was a possibility the items were live or operational, without rejecting the Appellant’s evidence.
[13] The appeal also raises important considerations as to the meaning of clause H6.5 of the Agreement, a clause which appears in identical form in other ACT public service enterprise agreements. The Deputy President misconstrued clause H6.5 of the Agreement in defining misconduct as conduct including the potential to bring the Respondent or the ACT public service into disrepute, where no such definition is included in that clause. The Deputy President suggested that the Appellant engaged in misconduct for the purposes of clause H6.5 if his conduct had the “potential” to bring the Respondent into disrepute, rather than that it did so, or was likely to do so.
[14] 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. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] 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 of the Act as “a stringent one”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.11 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.” 12
[17] 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. 13 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.14
[18] 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. 15
[19] We have considered the Appellant’s submissions and all the materials filed on appeal. We are not satisfied that there is an arguable case of error or other basis of principle warranting the grant of permission to appeal. The Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application, based on the misconduct of the Appellant.
[20] The Deputy President did not consider the Appellant had engaged in misconduct based on a “possibility” that the booster charges and the duelling were live or operational. Rather, the salient findings concerning misconduct in the Decision were that of a non-physical risk to safety; that is, the apprehension of fellow employees that the items may have been live or operational and, in the absence of any legitimate reason for the Appellant bringing those items into the workplace, the potential to bring the Respondent, and to a lesser extent the ACT public service, into disrepute. So much is clear from the Decision when read fairly and as a whole. We observe that the Appellant at first instance had himself acknowledged that his conduct could be construed as misconduct. 16
[21] In considering whether this appeal attracts the public interest, we are not satisfied that:
• there is a diversity of decisions at first instance for which guidance from a Full Bench is required;
• the appeal raises issues of importance and/or general application to the Commission’s unfair dismissal jurisdiction;
• the Decision manifests an injustice, or the result is counter-intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other Commission decisions dealing with similar matters.
[22] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[23] Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr J. Ronald of Counsel, instructed by Ms L. White (Baker Deane & Nutt), for the Appellant.
Mr N. Oram of Counsel for the Respondent.
Hearing details:
2019
Sydney, with video-link to Canberra
10 January
Printed by authority of the Commonwealth Government Printer
<PR704048>
1 [2018] FWC 6970 (Decision).
2 AE407927.
3 Decision at [17].
4 Decision at [66].
5 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
6 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 13-14; King v Freshmore (Vic) Pty Ltd (unreported, AIRC (FB), S4213, 17 March 2000) at [27]-[29]; Hinchey v North Goonyella Coal Mines Pty Ltd (2009) 178 IR 252 at [35].
7 Hinchey v North Goonyella Coal Mines Pty Ltd (2009) 178 IR 252 at [35].
8 Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242 IR 318 at [62]-[67].
9 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
10 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
11 O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 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; (2011) 207 IR 177 at [44]-[46].
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].
13 Wan v AIRC (2001) 116 FCR 481 at [30].
14 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].
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
16 Decision at [18].