DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Candice Dias
v
Commonwealth Securities Limited
(C2019/6209)

Appeal against decision [2019] FWC 5479 of Deputy President Sams at Sydney on 19 September 2019 in matter number U2018/12352.

Introduction and background

[1] Candice Dias has applied pursuant to s 604 of the Fair Work Act 2009 (FW Act) for permission to appeal against a decision of Deputy President Sams issued on 19 September 2019 1 (decision) in which he dismissed an application made by Ms Dias for an unfair dismissal remedy against her former employer, Commonwealth Securities Limited (CSL). CSL is a business operated by the Commonwealth Bank of Australia. The Deputy President found, among other things, that there was a valid reason for Ms Dias’ dismissal and that, notwithstanding her length of service (13 years) and poor prospects of alternative employment in the banking sector, her dismissal was not harsh. Ms Dias contends on various grounds that the Deputy President erred in finding that there was a valid reason for her dismissal, and that the grant of permission to appeal would be in the public interest.

[2] Immediately before her dismissal, Ms Dias was employed in the role of Account Manager, Corporate Financial Services as part of a team located at Chatswood in Sydney. The process by which her dismissal occurred began when she was sent a letter by CSL dated 28 September 2018 which set out five allegations of misconduct against her:

(1) Ms Dias refused to comply with reasonable directions from her manager to attend training on three separate occasions (16, 17 and 22 August 2019).

(2) Ms Dias refused on 24 August 2019 to attend a meeting with a manager to discuss her refusal to comply with the directions to attend training.

(3) On 4 September 2018 Ms Dias emailed a document which contained confidential customer information to her personal email address without authority. This included the name of persons who were beneficiaries of a trust client, the name and customer identification of a trust client, and the address of a trust client.

(4) On 18 September 2018 Ms Dias failed to comply with a manager’s directive to contact him before attending for work at CSL’s Darling Park office.

(5) Ms Dias unilaterally went outside the Commonwealth Bank’s workplace grievance review process by attempting to escalate a grievance outside of that process in circumstances where she had been advised that the matter had been finalised.

[3] In connection with the third allegation, Ms Dias had been issued with a final written warning for misconduct on 30 July 2018 because she had been found to have provided confidential information to an unauthorised party on 16 July 2018, which resulted in a customer complaint.

[4] After CSL found that the above five allegations were sustained, CSL terminated Ms Dias’s employment on four weeks’ notice by letter dated 13 November 2018. Ms Dias filed her application on 30 November 2018. At all stages during the subsequent proceedings before the Commission, Ms Dias denied each of the five allegations, and sought reinstatement to her employment with CSL and compensation for various heads of loss and damage.

The decision

[5] After comprehensively setting out the witness evidence and parties’ submission, the Deputy President turned in the decision to a consideration of the allegations which caused Ms Dias to be dismissed. As a preliminary to this consideration, the Deputy President made adverse credit findings against Ms Dias to the effect that she was a particularly uncooperative and unhelpful witness, rarely answered any question directly, failed to accept or concede matters which were self-evident, gave misleading or manipulated evidence to avoid telling the truth, was caught out in contradictions, implausible explanations and pure invention, gave well-rehearsed evidence, had lost all sense of being able to distinguish fiction from reality, and had provided selective documents to support her case which were “doctored” by omission. 2 By contrast, the Deputy President found that CSL’s witnesses gave clear and consistent evidence, and preferred their evidence to that of Ms Dias in respect of any conflicts.3

[6] The Deputy President then considered each of the five allegations individually. Except for the second allegation, about which he made no finding, the Deputy President found that Ms Dias had engaged in the conduct the subject of the allegation and that this amounted to misconduct in breach of Ms Dias’ contract of employment and/or CSL’s policies and procedures. The Deputy President then considered each of the matters he was required to consider under s 387 of the FW Act. In respect of s 387(a), the Deputy President found that, viewed cumulatively and objectively, the incidents which were the subject of the allegations constituted a pattern of behaviour disclosing an intention on the part of Ms Dias not to be bound by her contract of employment with CSL, and this was exacerbated by Ms Dias’ failure to accept or recognise that her conduct was unacceptable and inconsistent with CSL’s policies and procedures and her duty of trust and confidence. On this basis, the Deputy President found that there were valid reasons for Ms Dias’ dismissal. 4 The Deputy President then dealt with the matters in paragraphs (b)-(g) of s 387 and made findings in respect of each. In respect of s 387(c), the Deputy President found that Ms Dias was afforded a reasonable opportunity to respond to the allegations against her. In respect of s 387(d), the Deputy President rejected Ms Dias’ submission that 24 business hours’ notice of a meeting which occurred on 12 October 2018 to discuss the allegations (a period which encompassed the weekend) meant that she was denied a reasonable opportunity to arrange for the attendance of a support person.5 In relation to s 387(h), the Deputy President considered a range of matters he considered relevant, including that there were prior issues with Ms Dias’ work performance and that Ms Dias had engaged in conduct destructive of her employment when CSL merely wanted to improve her performance and conduct. The Deputy President then said:

“[283] On the other hand, I have taken into account the applicant’s 13 year period of service, her family circumstances and poor prospects of alternative employment in the banking sector. I have earnestly grappled with the issue of whether these factors of ‘harshness’ outweigh the seriousness of the allegations of misconduct, when viewed collectively, and in the context of other ongoing performance issues over two years. Regrettably, I am satisfied that they do not. On one view, an employee’s long period of service will actually tell against a finding of ‘harshness’, where it might ordinarily be expected the employee would be very familiar with the Bank’s policies and procedures and where the employee has been properly trained. In short, a long serving employee would be expected to know better.”

[7] Ms Dias’ appeal grounds and submissions concerning permission to appeal raise a large range of diverse matters which are impossible to summarise comprehensively. It is sufficient to say that we apprehend they include the following propositions:

● the Deputy President allowed a legal representative to appear for CSL at a directions hearing who was not one of the lawyers listed in CSL’s Form F53 (Notice that lawyer or paid agent acts for a person);

● the Deputy President refused to issue an order for the production of documents which would have demonstrated that Ms Dias’ supervisor had a conflict of interest and for the production of CCTV footage to prove that four of the five allegations were false;

● the legal representatives of CSL had told the Deputy President that the CCTV footage did not exist, and the Deputy President wrongly relied on this to decline issuing the order for production sought by Ms Dias;

● the public interest was enlivened because self-represented litigants should not be discouraged, and “[t]his type of bias decisions manifest injustice and the public will lose faith in the justice system”;

● certain CSL witnesses were of very little credit and their explanations were not plausible or rational for various identified reasons;

● a “made up” document had been submitted by a CSL witness;

● there was no document indicating that the agreed outcome of a meeting which occurred on 3 September 2018 had been implemented;

● the baseless warning of 31 July 2018 had been placed in the previous year’s performance review of Ms Dias, which penalised her bonus and pay increment;

● the meeting of 2 October 2018 was a “mechanical meeting” because the CSL representative’s speaking notes showed that a decision had already been made to terminate Ms Dias’ employment;

● the public interest was enlivened because for employees with 10-15 years’ service a redundancy pay out would be 12 months’ pay, which exceeds the maximum six months’ pay able to be awarded in an unfair dismissal case and thus gives an incentive to an employer to make false allegations against employees and dismiss them;

● counsel for CSL unlawfully appeared before the Commission because his name did not appear on CSL’s Form F53 notice, he redacted documents to cloud crucial facts and mislead the Deputy President, and led a CSL witness into correcting his witness statement;

● s 593 of the FW Act was misapplied because it does not authorise the redaction of documents in a closed, private hearing;

● the public interest was enlivened because CSL changed document numbers to cloud the facts and did not allow the Commission to administer justice fairly, which was an issue of importance to the public and of general application; and

● in paragraphs [36]-[63], [75]-[85], [86]-[98], [114]-[127], [133]-[141] and [148]-[152] there were various errors of facts or law or matters which gave rise to public interest issues including discrimination after the filing of a general protections claim, the capacity to respond to allegations prior to dismissal and the capacity to bring a support person.

Consideration

[8] An appeal under s 604 of the FW 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.⁶ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[9] This appeal is one to which s 400 of the FW Act applies. 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.

[10] In the Federal Court Full Court decision 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.⁷ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 8

[11] 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.⁹ 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.¹⁰

[12] 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. 11 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[13] We are not satisfied that it would be in the public interest to grant permission to appeal, for two reasons. First, the appeal grounds do not, as far as we can discern, involve any intelligible challenge to the core findings made by the Deputy President which founded his decision to dismiss Ms Dias’ application. As earlier explained, the Deputy President found that Ms Dias had engaged in the conduct the subject of four of the five allegations that caused her dismissal, that they amounted to misconduct, and that cumulatively they constituted a valid reason for her dismissal. Having regard to the matters identified above which constituted the grounds for Ms Dias’ appeal, it is impossible to identify any contention (let alone arguable contention) that the Deputy President erred in finding that Ms Dias had engaged in the relevant conduct and in characterising the conduct in the way that he did. Having examined the evidence that was before the Deputy President, it is clear that the findings and conclusion made by the Deputy President were not only reasonably available but were the only ones which could reasonably have been made.

[14] The appeal grounds instead relate to a diverse range of trivialities or side issues or are simply spurious. There is no basis to conclude that the contentions of procedural unfairness, even if sustained, could have had any meaningful consequence for the outcome of the proceedings or Ms Dias’ capacity to present her case. The proposition that documents concerning the supervisor’s alleged conflict of interest arising from his bonus, or CCTV footage (which does not appear to exist), could have displaced the findings concerning the four sustained allegations is completely without merit. They bear no discernible relationship to the subject matters of the allegations. The alleged errors of fact or law entirely relate to passages in the decision in which the Deputy President merely summarises the evidence which was given before him prior to his consideration of the merits of the matter.

[15] Second, there is nothing in the decision which raises any matter of principle or law or any issue of wider application. The matter was determined entirely on the basis of its particular facts. The decision does not manifest any injustice; the outcome determined by the Deputy President was entirely unsurprising given his findings that there were valid reasons for Ms Dias’ dismissal and that Ms Dias refused to acknowledge any wrongdoing or accept any responsibility for her conduct. The contention that CSL denied her procedural fairness in dismissing her and that this attracts the public interest is entirely without merit; the evidence makes it entirely clear that she was given a proper opportunity to respond to the allegations set out in CSL’s letter of 28 September 2018. Likewise, the proposition that the Deputy President’s conclusion that 24 business hours’ notice of a disciplinary meeting constitutes a reasonable opportunity to bring a support person attracts the public interest is lacking in authenticity, in circumstances where Ms Dias consistently declined to bring a support person to any meeting she had with CSL management no matter how much notice she was given.

[16] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1).

VICE PRESIDENT

Appearances:

C Dias on her own behalf.

B Byrnes of Counsel with M Azzi on behalf of Commonwealth Securities Limited.

Hearing details:

2019.

Sydney:

11 November.

Printed by authority of the Commonwealth Government Printer

<PR714489>

 1   [2019] FWC 5479

 2   Ibid at [205]-[209]

 3   Ibid at [210]

 4   Ibid at [260]

 5   Ibid at [269]-[272]

6 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

7 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 8   [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

9 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

10 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] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 11   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]