[2022] FWC 588
The attached document replaces the document previously issued with the above code on 16 March 2022.
Footnote 15 is changed from PR725407 to PR739380
Associate to Deputy President Anderson
Dated 17 March 2022
| [2022] FWC 588 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 604 - Appeal of decisions
Qube Ports Pty Limited
v
Rudy Burkhardt & Others
(C2022/1511, C2022/1512, C2022/1513, C2022/1514, C2022/1515, C2022/1516)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 16 MARCH 2022 |
Appeals against decision and order [2022] FWC 281 of Commissioner Riordan at Sydney on 28 February 2022 in matter numbers U2021/9115, U2021/9181, U2021/9183, U2021/9185, U2021/9190 and U2021/9192 – stays ordered
[1] Qube Ports Pty Limited (Qube or the appellant) has lodged six notices of appeal, for which permission to appeal is required, against a decision and orders made by Commissioner Riordan on 28 February 2022 in six unfair dismissal applications jointly heard and determined (Decision). 1
[2] This decision concerns an application by Qube for a stay of reinstatement and consequential orders made by the Commissioner on each application.
[3] The respondents to the appeals (and these stay proceedings) are former shift managers of Qube at the Fremantle Port in Western Australia: Rudy Burkhardt, Adrian Pedder, Craig Miller, Igor Butsenko, Richard Iki and Tym Brazel.
[4] The respondents oppose the appeals and applications for a stay.
[5] The appeals are listed (on permission and merit) for joint hearing before a full bench on 6 April 2022.
[6] Directions were issued by the Presiding Member on 7 March 2022.
[7] The orders sought to be stayed are set out in the Decision as follows:
“[174] I Order that the Applicants be reinstated to their former roles as Shift Managers at Fremantle Port.
[175] I Order that the Applicants maintain their continuity of employment.
[176] I Order that the Applicants be back paid for their lost time, including their superannuation, between the date of termination and the date of their reinstatement, less any money earnt by each Applicant in the intervening period.
[177] I so Order.”
[8] The orders are expressed in the body of the Decision only. A separate Order was not issued.
[9] The Commissioner did not specify a date by which reinstatement must occur. That notwithstanding, for the purposes of the stay applications, orders have been made, each order is operative in the terms expressed and an obligation exists on Qube to reinstate each shift manager on those terms. There is practical utility in dealing with the stay applications notwithstanding that the orders did not specify a date for reinstatement and the prompt listing of the appeals.
[10] I heard the stay applications by video on 10 March 2022. Both the appellant and respondents filed written submissions.
[11] Qube seeks a stay in the following terms:
“The decision [2022] FWC 281 (PR738284) of Riordan C, including the orders made at [174]-[177] of the reasons for decision, are stayed pending hearing and determination of the appeal, or until the Commission otherwise orders, on the condition that:
(a) the Appellant deposit the amounts ordered to be paid by Riordan C at paragraph [176] of the reasons for decision (on the assumption that the words “date of reinstatement” read “6 April 2022”) into an interest bearing account and not use, distribute or otherwise withdraw such amounts except in accordance with the determination of the appeal or as otherwise ordered by the Commission; and
(b) in the event permission to appeal is not granted or the appeal is dismissed, the Appellant pay those amounts, plus any interest accrued, to the Respondents in a manner consistent with Riordan C’s decision.”
[12] Qube submitted an undertaking in these terms. 2
[13] By consent, permission was granted for the appellant and respondents to be represented on the stay applications.
[14] The stay is sought under s 606 of the Fair Work Act 2009 (the FW Act).
[15] Section 606(1) provides:
“If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.”
[16] It is well established that, in deciding whether to exercise its discretion to grant a stay, the Commission must first be satisfied that the appellant has an arguable case with some reasonable prospects of success in the appeal, both in respect of permission to appeal and the substantive merits. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. 3
[17] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature. 4 This is the approach I take as the Commission has not had had the benefit of hearing the appellant or respondent’s full argument and not had opportunity to fully examine the case materials.
[18] Qube requires permission to appeal for its merits to be determined. 5 As the Decision concerns unfair dismissal applications under s 394 of the FW Act, Qube will need to satisfy a full bench that it is in the public interest to do so.6
[19] For current purposes, the Notices of Appeal 7 advance ten common grounds conveniently grouped as follows:
● Grounds 1 and 2: jurisdictional error in failing to deal with factors in s 387(b) and (c) in advance of reaching a merits conclusion, and (in the alternative) an error of law in characterising such considerations as “neutral”;
● Grounds 3, 4 and 5: errors of law and significant errors of fact in concluding no valid reason for the dismissals existed;
● Ground 6: errors in concluding that the dismissals were harsh;
● Grounds 7 and 10: a failure to provide the appellant procedural fairness on the ground that insufficient reasons for decision were given and a reasonable apprehension of bias existed;
● Grounds 8 and 9: errors of fact and law in deciding to order reinstatement of applicant employees.
[20] I now deal with these grounds to determine whether an arguable case with reasonable prospects of success exists with respect to both permission to appeal and its merit.
Grounds 1 and 2 – Section 387(b) and (c) issues
[21] Qube submits that jurisdictional error occurred as the Commissioner failed to deal with factors in ss 387(b) and (c) in advance of reaching a conclusion that the dismissals were harsh, unjust or unreasonable. It relies on the Decision at [110] and [111]:
“[110] I find that the directions issued by the Respondent to each of the Applicants were not lawful or reasonable. Therefore, the Respondent did not have a valid reason to terminate the Applicants. Without a valid reason, the termination of the Applicants is harsh, unjust and unreasonable.
[111] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, it is necessary for me to deal with the remaining provisions of section 387. I note that the Applicants have raised no issues in relation to sections 387(b-g) of the Act.”
[22] The respondents submit that the Decision must be read as a whole, and that the “Conclusion” in the Decision at [154] to [161] indicates that the Commissioner took into account all relevant factors in s 387.
[23] Jurisdictional error of the House v The King 8 kind occurs where a decision-maker fails to take into account factors in s 387 to the extent relevant in advance of making an overall assessment whether a dismissal was harsh, unjust or unreasonable. In Titan Plant Hire Pty Ltd v Shaun Van Malsen a full bench observed:9
“That meant, in effect, that the Commissioner only took into account his conclusions with respect to s.387(a)in reaching the conclusion that the dismissal was harsh, unjust and unreasonable. This was contrary to the requirement in s.387 that the Commission must take into account all the matters specified in paragraphs (a)-(h) in considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable. This constituted appealable error of a jurisdictional nature.”
[24] The Decision must be read as a whole in overall context. However, it is reasonably arguable that consideration of ss 387(b) and (c), which were clearly relevant matters, came only after the Commissioner expressed a conclusion at [110] that the dismissals were unfair. The Commissioner’s further conclusions at [154] to [161] may have been capable of contextualising this reasoning but for the fact that at [156] and [157] the Commissioner repeats:
“[156] …The work that they were ultimately required to perform was not incidental to their role. Any termination without a valid reason naturally results in the termination being harsh, unjust and unreasonable.
[157] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, then I find that their termination was harsh and unjust for the reasons identified above.”
[25] I take into account that the absence of a valid reason weighs strongly in favour of a finding of unfair dismissal. However, read in context and as a whole, it is reasonably arguable that the Decision goes beyond that proposition and concludes that the dismissals were harsh, unjust or unreasonable by reference to s 387(a) alone. The Commissioner’s assessment of ss 387(b) and (c) appears to have only been made in the alternative. Whilst the Commissioner correctly observed that a dismissal may be harsh notwithstanding a valid reason, it is reasonably arguable that the conclusion that a valid reason did not exist has been made in the absence of the weighing exercise of relevant factors required by s 387 of the FW Act.
[26] For these reasons, an arguable case of appealable error exists.
[27] The alternate submission advanced by Qube is that the Commissioner fell into error by characterising ss 387(b) and (c) considerations as “neutral” when it was not in dispute that the reason for dismissal had been notified (s387(b)) and opportunities to respond were given (s387(c)). Qube submits that these factors should have weighed against a finding of unfair dismissal and not been characterised as neutral.
[28] Whilst Qube’s contention as to mis-characterisation may be reasonably arguable (though not necessarily correct), it does not follow that the Decision discloses appealable error on that ground. Qube conflates the Commissioner’s characterisation of “neutral” with the proposition that a neutral characterisation necessarily means that ss 387(b) and (c) factors were not weighed or were wrongly considered irrelevant. Assessing a factor as “neutral” was, in context, an evaluative assessment. In the Commissioner’s alternate formulation of the merits, it is apparent that he took those factors into account, assessed their weight (as neutral) and did not consider them irrelevant. Whilst it is open to contest the characterisation applied, the proposition of an arguable case of appealable error on this basis is not clearly made out.
Grounds 3, 4 and 5: errors on valid reason
[29] Qube submits that the Decision discloses errors of law and significant errors of fact in the conclusion that no valid reason for the dismissals existed.
[30] It is submitted that the Commissioner erred in concluding that the performance of stevedoring work by managers responsible for supervision and management of stevedores was beyond the scope of their employment.
[31] The respondents submit that, in reaching this conclusion, the Commissioner applied orthodox legal principles to the facts, and no appealable error exists.
[32] The Commissioner’s decision [at 107] appears to be based at least in part on the proposition that “management performs management duties, stevedores perform stevedoring duties. That is the industry, that is the demarcation.” The Commissioner makes specific findings [at 108] that stevedoring work such as “driving of cranes, forklifts or other machinery” and the “moving of chains and gluts” are not incidental to the work of those who manage stevedores.
[33] The evidentiary basis for these broadly framed propositions either in the context of the industry or, more particularly, the business of this employer, is not readily apparent from the Decision. Unless supported by a body of probative evidence, it is reasonably arguable that the Commissioner’s broadly framed conclusion that these tasks are not “incidental to the planning and supervision of work being performed” 10 may be in error.
[34] Qube further submits that, aside from whether a direction to perform these tasks was lawful or reasonable, the Commissioner erred in making inconsistent findings as to whether a direction was given to the respondent employees, and that this was a significant error of fact.
[35] At [158] the Commissioner concluded:
“I accept the submission from the Applicants that they did not refuse to follow a lawful and reasonable direction at any of the meetings because no instructions were actually given to the Shift Managers.”
[36] At [110] the Commissioner found:
“I find that the directions issued by the Respondent to each of the Applicants were not lawful or reasonable. Therefore, the Respondent did not have a valid reason to terminate the Applicants.”
[37] A similar proposition is advanced at [109].
[38] The factual premise underpinning these conclusions appear at odds. It is reasonably arguable that the Commissioner made inconsistent findings; on the one hand that an instruction to perform stevedoring work was not given by Qube; and on the other that a direction was given.
[39] A fair reading of both [110] and [158] in the context of surrounding text does not appear to cure the apparent inconsistency.
[40] The apparently inconsistent findings as to whether the respondent employees were directed or instructed by Qube goes to the heart of the validity of the reason for dismissal. A coherent finding on this question was a necessary ingredient to assess whether any direction was lawful or reasonable and whether any refusal to comply was reasonably based (and thus whether a decision to dismiss for such refusal was unfair). Being material to whether the dismissals were harsh, unjust or unreasonable, the apparent inconsistency suggests an arguable case exists of a significant error of fact.
[41] Qube submits that at [101] and [110] the Commissioner makes further inconsistent findings as to whether a direction was lawful. At [101] the Commissioner opined that he was “not certain’ if this was so whereas at [110] the Commissioner found the direction not to have been lawful. This alleged inconsistency does not manifest an arguable case of appealable error. Whilst [101] may be inelegantly expressed, a fair reading in context suggests that the Commissioner’s observation (as to lawfulness) was a component of reasoning leading to a more definite conclusion (of unlawfulness) in [158] (and elsewhere in the Decision).
[42] That notwithstanding, the apparently inconsistent findings at [110] and [158] on whether a direction was issued by Qube, and the limited evidentiary basis for the Commissioner’s broadly expressed findings about whether stevedoring work was incidental to the duties of shift managers, establish a reasonably arguable case of appealable error.
Ground 6: errors in concluding that the dismissals were harsh
[43] Ground 6 of the appeals contends that the Commissioner erred in concluding that the dismissals were harsh. Qube do not advance particulars in support of that ground (other than making a general assertion of inadequate reasons).
[44] Whilst this ground of appeal is capable of being further explored at any appeal hearing, absent particulars, it is not possible to conclude that ground 6 establishes an arguable case of appealable error.
Grounds 7 and 10: inadequate reasons and bias
[45] Qube submits that the Commissioner failed to provide procedural fairness to the appellant on the ground that insufficient reasons for decision were given.
[46] Qube also contends that a reasonable apprehension of bias exists on the ground that the Commissioner, having conciliated the matter, proceeded to arbitrate and failed to recuse himself when requested by Qube.
[47] Qube correctly observes that throughout the Decision the Commissioner frequently makes the general observation “I take this into account” without indicating whether the particular issue is taken into account in a manner weighing in favour or against a finding of unfair dismissal.
[48] A Decision is capable of manifesting appealable error if reasons are not given or those given are so inadequate or incoherent that an unsuccessful party is unable to reasonably discern the basis on which findings or orders have been made against it. 11
[49] Reading the decision as a whole and the Commissioner’s general observations in context, their nature or frequency does not establish an arguable case of appealable error. Narrowly read, some references to taking a matter “into account” are vague. However, in other instances surrounding context provides guidance as to what is meant. More relevantly, considered overall it is not reasonably arguable that Qube was left with an inadequate understanding as to why and on what basis a decision and orders were made against it. Paragraphs [154] to [161] are a summary and not once in those paragraphs are those words of generality used.
[50] With respect to ground 10(b) (apprehended bias), following conciliation by the Commissioner it would appear an emailed request for recusal was made by Qube but, in light of the Commissioner’s intimation that he saw no barrier to arbitrating, the request was not pursued when the matter came before the Commissioner for merits hearing. The mere fact a Member conciliates a matter and then proceeds to arbitrate does not, in and of itself, constitute grounds for recusal. 12 Nor can a Member cease dealing with a matter of which they are seized simply on account of a request by a party that they do so.13
[51] On the material submitted, there is no arguable case of apprehended bias with a reasonable prospect of success.
[52] Grounds 8 and 9 assert errors of fact and law in the Commissioner’s decision to order reinstatement.
[53] For the purposes of the stay application, in light of the conclusions above concerning merit aspects of the Decision raised by the Notices of Appeal, it is not necessary to deal with alleged appealable errors with respect to remedy.
[54] The Commissioner ordered that the shift managers be reinstated to their former roles at Fremantle Port with consequential orders maintaining continuity of employment and back pay.
[55] Assessing balance of convenience involves weighing potential prejudice should the appeals be successful (and should a stay not be granted) against the legitimate desire of parties successful in litigation to secure the fruits of their success.
[56] Here, where reinstatement orders have been made and an arguable case of error with reasonable prospects of success on appeal exists (on some grounds), the balance of convenience favours a stay of the orders. The managers were employed and then dismissed and then ordered to be reinstated. Appeals against the reinstatement orders have been made and are being seriously pursued. The appeals are listed for hearing promptly. Should re-instatement not be stayed and if the appeals are upheld (or upheld in respect of the reinstatement orders) the shift managers would face the prospect of a short term return to employment being ended once again.
[57] Potential prejudice to Qube is less readily remediated than potential prejudice to the shift managers. Qube’s undertaking is to deposit amounts ordered to be paid at [176] of the Decision into an interest-bearing account pending determination of the appeals and to transfer those sums to the shift managers should the appeals fail or subject to any other order of the Commission.
[58] I consider this undertaking an appropriate mechanism to moderate potential prejudice to the shift managers should the Commissioner’s order be stayed; however I will require payment into trust until the appeals are determined, not simply until their scheduled date of hearing.
[59] The balance of convenience weighs in favour of a stay.
[60] Qube requires permission if the merits of its appeals are to be determined. Qube will need to satisfy a full bench the public interest warrants a grant of permission. Whether a reasonably arguable case for permission exists is relevant to whether a stay ought to be granted.
[61] The public interest test is well settled. 14
[62] Ground 4 of the appeals, to the extent it raises a serious question as to whether a direction (if any) to perform stevedoring work was lawful and reasonable, advances a reasonably arguable case enlivening the public interest. The broader contractual question whether duties of those who manage employees include (directly or incidentally) an obligation to perform work undertaken by those who they manage, is also capable of enlivening the public interest.
[63] An arguable case with reasonable prospects of success on permission to appeal exists; and likewise, on some appeal grounds, the merit of the appeals. The balance of convenience favours a stay.
[64] Considered overall, it is appropriate to order that Decision [2022] FWC 281 and reinstatement orders of Commissioner Riordan at [174] to [177] be stayed pending hearing and determination of the appeals.
[65] An order 15 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
J. Tracey and R. Minson with permission for the Appellant
A. Slevin with permission for the Respondents
Hearing details:
2022
Adelaide (by video)
10 March
Printed by authority of the Commonwealth Government Printer
<PR739377>
2 Amended form of Order and Undertaking 10 March 2022
3 Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]
4 National Electrical and Communications Association v Electrotechnology Industry Group Training Company [2021] FWC 6154
5 Section 604(1) FW Act
6 Section 400(1) FW Act
7 F7 3 March 2022 in respect of U2021/9115, U2021/9181, U2021/9183, U2021/9185, U2021/9190 and U2021/9192
8 (1936) 55 CLR 499
9 [2016] FWCFB 5520 at [30]
10 Decision [108]
11 Construction, Forestry, Mining and Energy Union v Kestrel Coal Pty Ltd [2015] FWCFB 2206 at [27]
12 Aaron Cullen v AEG Ogden (Convex) Pty Ltd trading as Brisbane Convention and Exhibition Centre [2019] FWC 6986 at [31]
13 Amec Foster Wheeler Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2021] FWCFB 3191 at [30]
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWCFB 5343 at [27]