Fair Work Act 2009
s.604 - Appeal of decisions

Mr Bashkim Elmazovski
v
Fletcher Insulation Pty Ltd T/A Fletcher Insulation
(C2021/6991)

Appeal against decision [[2021] FWC 5990] of Deputy President Hamilton at Melbourne on 27 September 2021 in matter number U2021/5237 - permission to appeal refused.

[1] On 27 September 2021, Deputy President Hamilton (the Deputy President) dismissed an unfair dismissal application 1 made by Mr Bashkim Elmazovski2 (the Decision). Mr Elmazovski wishes to appeal the Decision. However, there is no right to appeal and an appeal may only be made with the permission of the Commission. This decision deals only with whether permission to appeal should be granted.

[2] These are our reasons for concluding that it is not in the public interest to grant permission to appeal.

The Decision under appeal

[3] Mr Elmazovski (the Appellant) was employed by Fletcher Insulation Pty Ltd (the Respondent) for more than 36 years. His employment ended when he was dismissed for breach of the company’s code of conduct, bullying and harassment policy and breach of a direction to maintain confidentiality regarding the contents of a meeting which advised the suspension of his employment.

[4] After considering the evidence, the Deputy President found that the Appellant had been dismissed for valid reasons, namely:

(a) abusive words in a telephone call to a Mr Alagic on 30 April 2021;

(b) abusive words and aggressive conduct, which included shouting, pointing, making a fist and threatening, and grabbing the arm of Mr Alagic, witnessed by Mr Emini on 30 April 2021;

(c) abusive words and aggressive conduct in a further incident on 30 April 2021 directed towards Mr Alagic and Mr Injac; and

(d) breach of a direction that the contents of the meeting be confidential. 3

[5] Further, after considering all the matters specified in s.387 of the Act, the Deputy President was satisfied that the dismissal of the Appellant was not harsh, unjust or unreasonable. The Deputy President concluded that:

“[41] The process was procedurally fair in substance, or deficiencies were not of any great significance, as I discuss above in making my findings in relation to ss.387 (b), (c) and (d), and the other paragraphs.

[42] I further find that the applicant showed no remorse on any occasion. I further find that the applicant was warned about aggressive conduct on 12 November 2021 by Mr Zarkadas. I accept Mr Zarkadas’ evidence. I was not confident that the applicant would be willing to admit to any matter which would assist his case. For example, he did not admit to knowing about the contents of the suspension and show cause letter when Mr Swan, Mr Kubala, and Mr Zarkadas gave evidence that they were read to him. The suspension letter was read out to him at the meeting on 4 May 2021 and the show cause letter was read out to him at the show cause meeting on 28 May 2021. He was contradicted by his own witnesses. The applicant’s evidence was with respect self-serving and showed a lack of candour.

[43] The lack of remorse and other factors outweigh his length of service and other matters. In my view the employer had to act to protect employees such as Mr Alagic, who should not have to deal with such aggressive and confronting and disrespectful conduct at work, conduct which is contrary to employer policy directions. The employer is entitled to put a stop to such conduct and put a stop to it by termination of employment, in the absence of sufficient remorse, to ensure that such conduct will not occur again in the view of the employer and that employees such as Mr Alagic will not find it necessary to experience such inappropriate conduct again. A finding that the termination was unfair would be contrary to the needs for employees in this workplace to be protected from such conduct and for the employer to enforce necessary policy directions, in addition to all the other considerations I refer to above. I find that the applicant’s termination was not harsh, unjust or unreasonable.” 4

Principles of Appeal

[6] An appeal under s.604 of the Act is an appeal by way of rehearing. An appeal may only be made with the permission of the Commission. This appeal is also one to which s.400 of the Act applies. Under s.400, the Commission must not grant permission to appeal from a decision in relation to unfair dismissal unless it considers it is in the public interest to do so. An appeal involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[7] The test under s.400 is ‘a stringent one’ 5. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.6 The public interest is not satisfied simply by the identification of error, or a preference for a different result.7

[8] In GlaxoSmithKline, 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.” 8

[9] 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

[10] 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 the appeal grounds to consider whether they raise an arguable case of appealable error.

Grounds of Appeal

[11] The Appellant advances the following eleven grounds of appeal in his Notice of Appeal.

1. The Commission erred in law in finding that the conduct of the Appellant constituted a valid reason for termination and was serious enough to warrant termination, and in failing to consider the first three incidents that occurred on 30 April 2021 as one event.

2. The Commission erred in law in finding that the conduct of the Respondent regarding the third and fourth incident constituted a valid reason for termination and serious misconduct where the third incident was not corroborated by supporting evidence of Mr Injac, and the fourth incident involved an unclear direction and it is not apparent on the evidence that the Appellant’s conduct amounted to a breach of a lawful and reasonable direction.

3. The Commission erred in law in giving undue weight to irrelevant and unidentified considerations pursuant to s.387 of the Act, and that the Appellant’s lack of remorse and other unidentified factors, where there was a dispute about what occurred, outweigh the Appellant’s length of service, him never receiving a formal warning in his 36 years of service, his age, and his poor English literacy.

4. The Commission erred in law in failing to give adequate weight to relevant considerations pursuant to s.387 of the Act regarding the Appellant’s length of service, him never receiving a formal warning in his 36 years of service, his poor English literacy and that he was fasting during Ramadan at the time of the incident.

5. The Commission erred in law in failing to give adequate weight to the fact that the Respondent did not consider the alleged incident to be so serious to immediately suspend him, and rather allowed him to continue work for a further 4 days before placing him on suspension;

6. The Commission erred in law in finding that the Appellant was afforded procedural fairness despite not being given a show cause notice;

7. The Commission erred by preferring the evidence of the Respondent’s witnesses over the evidence of the Appellant and the Appellant’s witnesses, and finding that the Appellant was verbally abusive to Mr Ermini and Mr Alagic on 30 April 2021 and had acted in a confrontational and aggressive manner;

8. The Commission erred in fact in finding that the video evidence was consistent with the Respondent’s evidence when it was also consistent with the Appellant’s evidence and was not conclusive;

9. The Commission erred in fact in preferring the evidence of the Respondent and accepting the evidence of Mr Alagic and Mr Ermini about the incident on 30 April 2021;

10. The Commission erred in fact by not preferring the evidence of the Appellant over the evidence of the Respondent regarding the incident that occurred on 30 April 2021; and

11. The Commission erred in fact by not finding that even if the evidence of the Respondent was accepted over the evidence of the Appellant regarding the 30 April 2021 incident, then the conduct warranted a written warning and was not of such a nature to warrant termination of employment.

[12] The Appellant contends that the appeal is in the public interest having regard to “what is a reasonable standard of behaviour on the factory floor when co-employees are having discussions in relation to the performance and operation of the business in that setting? The question is a relevant one across a range of industries in Australia.” The Appellant further contends that additional public interest grounds include:

(a) that the decision at first instance manifests an injustice, and the result is counter intuitive having regard to the circumstances;

(b) that the standards to be applied in terminating the employment of an employee aged 56 years old, with poor English literacy skills, who was employed as a machine operator with the Respondent for more than 36 years, relating to discussions with a fellow employee on 30 April 2021 at which time both employees were fasting pursuant to religious observance during Ramadan;

(c) whether the failure of the respondent to immediately act, and suspending his employment and speaking to him about the alleged incident, on 4 May 2021, more than four days after the alleged incident in which he worked each day, is consistent with the Respondent not regarding the incident as serious, but in any event they proceeded to terminate his employment for serious misconduct (but paid in lieu of notice) on 7 June 2021;

(d) whether the alleged conduct constitutes bullying or misconduct in breach of the policy and whether contacting the fellow employee to inform him that he had been suspended and that the fellow employee should contact the union constitutes a ground of serious misconduct; and

(e) whether a lack of remorse and other unidentified factors, where there is dispute about what occurred, outweighs the length of service and other matters including that he had not received a formal warning in 36 years of service.

[13] The Respondent submits that permission to appeal should be refused as the appeal is not in the public interest and there are no significant errors of fact in the original decision.

Consideration

[14] We have reviewed all the material, including the video footage, that was before the Deputy President.

[15] The first ground of appeal alleges that the Deputy President erred in finding that the Appellant’s conduct constituted a valid reason for termination, erred in finding that the Appellant’s conduct constituted serious misconduct and further, that the Deputy President failed to consider the three incidents that occurred on 30 April 2021 as one event. The Deputy President found that each of the four incidents set out in paragraph [4] occurred, and that each constituted a valid reason for the Appellant’s dismissal 12. Accordingly, even if the Deputy President had treated three of the incidents as one single incident, it would still result in a finding that there were two valid reasons for the Appellant’s dismissal. A finding that the Appellant’s conduct constitutes a valid reason for dismissal and/or that it constituted serious misconduct is a discretionary decision that was open to the Deputy President to make. We are not satisfied that the Deputy President made an error in reaching those conclusions.

[16] The second ground of appeal goes to the third and fourth incidents; the Appellant contends that the Deputy President erred in finding that the Appellant’s conduct constituted a valid reason for termination and that the conduct was serious misconduct. The Appellant contends that regarding the third incident, Mr Injac did not provide corroborating evidence that the Appellant was abusive towards him. This ground of appeal is misconceived. A fair reading of the Decision shows that in relation to the third incident, the Deputy President found that the Appellant subjected Mr Alagic to verbal abuse when they were face-to-face. 13 Evidence from Mr Injac that there was no abuse directed at him by the Appellant does not go to whether abuse was directed at Mr Alagic. We would further note that in coming to the conclusion that the Appellant verbally abused Mr Alagic, the Deputy President considered the totality of the evidence including Mr Alagic’s evidence and surveillance footage of the altercation. We find no error in the Deputy President’s conclusion and it was open to him on the evidence to make.

[17] The Appellant also contends in the second ground of appeal that the direction to the Appellant to keep the contents of the meeting of 4 May 2021 confidential was unclear and that it is not apparent on the evidence that the conduct of the Appellant amounted to a breach of a lawful and reasonable direction. We do not accept this contention. The evidence before the Deputy President was that the contents of the Appellant’s suspension letter was read out to him, thus making it clear what his obligations in regard to confidentiality are. It was open to the Deputy President to accept this evidence and we find no error in his doing so.

[18] Appeal grounds 3-5, and 7-11 all involve the correctness of findings made, and the weight given to them, by the Deputy President on the evidence before him. We consider that the findings were reasonably open to him. The findings were primarily based on the Deputy President’s assessment of the Appellant’s credibility, compared to the credibility of other witnesses who gave evidence in determining what occurred. With the benefit of seeing and hearing the witnesses give their evidence in its entirety, the Deputy President preferred the evidence of Mr Alagic and Mr Emini to the evidence of the Appellant and Mr Bakiri (the Appellant’s cousin) as to the events of 30 April 2021, and accepted the evidence of Mr Zarkadas and others. Mr Alagic’s and Mr Emini’s evidence was found to be consistent with the video evidence. We identify no error in the approach the Deputy President took, nor the findings he made.

[19] We also do not identify any error in the approach the Deputy President took in concluding that the dismissal was not harsh, unjust or unreasonable. The Deputy President considered and weighed up the Appellant’s extremely long service with the Respondent, his age and other factors, and balanced these against factors counting against the Appellant, including his lack of remorse and the seriousness of the conduct involved. We do not discern any error in the exercise of the Deputy President’s discretion, in weighing up the various factors in favour of and against a finding of harshness.

[20] There is no sound basis for the sixth ground of appeal. The Deputy President considered the evidence relating to the omission of some allegations in the show cause letter of 25 May 2021. His Honour concluded that the Applicant was aware of, and responded to, all the allegations and that whilst the notice was deficient, the procedural failures were limited and not of any great significance. 14 This conclusion was clearly open to the Deputy President and discloses no error.

[21] We are not satisfied that an arguable case of appealable error has been established. We are further not satisfied that the Deputy President acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect his decision, mistook certain facts or failed to take into account material considerations. We do not consider there were any significant errors of fact in the Decision.

[22] We are not satisfied that granting permission to appeal is in the public interest. Mr Elmazovski is no doubt greatly upset at the Decision after a long period of service. However that does not mean, and we do not consider, that the Decision manifests an injustice, or that the result is counter intuitive having regard to the circumstances. The Decision is the result of the orthodox application of legal principles to the facts and there is no diversity of decisions in similar cases that would make it in the public interest to provide appellate guidance.

Conclusion

[23] For the above reasons, we are not satisfied that it is in the public interest to grant permission to appeal. Permission to appeal must therefore be refused in accordance with s.400(1) of the Act.

VICE PRESIDENT

Appearances:

Mr M Biviano of Counsel with Ms S Kilic for the Appellant.

Ms A Francis and Mr A Rowe for the Respondent.

Hearing details:

2021

By Telephone.

December 1.

Printed by authority of the Commonwealth Government Printer

<PR736666>

 1   Application under s.394 of the Fair Work Act 2009 (Cth).

 2   Bashkim Elmazovski v Fletcher Insulation [2021] FWC 5990.

 3   Ibid at [22].

 4   Ibid at [41] – [43].

 5   Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177.

 6   O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [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 [44]-[46].

 7   see: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); 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].

 8   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.

 9   Wan v AIRC (2001) 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].

 12   Decision at [22].

 13   Decision at [37].

 14   Decision at [25]-[29], [41].