FWAFB 6754
FAIR WORK AUSTRALIA
REASONS FOR DECISION
Fair Work Act 2009
s.604—Appeal of decision
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SYDNEY, 10 AUGUST 2012
Appeal against decision - resignation - constructive dismissal - public interest.
 On 24 May 2012, Commissioner Cloghan decided to dismiss an application by Mr Danny Love (the Applicant) made under s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy against Alcoa of Australia Ltd T/A Alcoa World Alumina Australia (the Respondent). 1 The Commissioner found that the Applicant had resigned from his employment and that the resignation was not forced by the conduct or a course of conduct by his employer. For this reason the Applicant had not been dismissed (see s.186(1)) and could not pursue the application for an unfair dismissal remedy.
 The Applicant sought to appeal against the decision of the Commissioner. The appeal was heard by the Full Bench on 8 August 2012. At the conclusion of the proceedings on that day, the Full Bench announced that it had decided not to grant permission to appeal. We now publish the reasons for this decision.
 The Applicant was employed by the Respondent to work at its Pinjarra Alumina Refinery from December 2007 until 16 December 2011. At the time that his employment was terminated he was employed in the Residue area of the refinery, and his duties included taking waste to the “tip”. On a trip to the tip at an unspecified time during his employment, the Applicant retrieved some copper wire, which he took home. On 13 or 14 November 2011, the Western Australian Police executed a search warrant at the Applicant’s home in the course of an unrelated investigation pertaining to his son. During the search, the police photographed the wire and asked the Applicant where he had obtained it. The police subsequently contacted the Respondent, which began an investigation into the matter. This investigation and the calling of the Applicant to a meeting scheduled for 2 December 2011 to discuss the matter resulted in a course of events summarised in the Commissioner’s decision and leading to the cessation of the Applicant’s employment. As the Commissioner noted,
“The recollection and interpretation of the facts of Mr Love’s cessation of employment was the subject of much dispute between the parties and their respective witnesses.” 2
 The Commissioner was called upon to decide whether in the circumstances of the matter before him it could be concluded that the Applicant had been unfairly dismissed by the Respondent. Section 385 of the Act defines when a person has been unfairly dismissed. Section 385(a) requires that the person has been dismissed. Dismissal is defined in s.386(1) of the Act. It states that
“(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
 In his decision the Commissioner considered whether the Respondent terminated the Applicant’s employment, as contended by the Applicant, or whether he resigned. In doing so, the Commissioner weighed up the conflicting evidence of the Applicant, Mr Willy Hope of the Australian Workers’ Union (AWU), Mr James Muir, the Applicant’s Line Manager, and other witnesses regarding the events surrounding the meeting scheduled between the Respondent’s managers and the Applicant for 2 December 2011. The Commissioner concluded on this point that the Applicant had resigned from his employment on 2 December 2011.
 The Commissioner also considered the alternate argument that the Applicant resigned because the Respondent engaged in conduct or a course of conduct that forced him to do so (see s.386(1)(b)). The Commissioner rejected this argument.
 On appeal, the Applicant submitted that the Commissioner erred in several respects in his consideration of whether the Applicant had resigned his employment or whether the Respondent had terminated it. The primary ground of appeal was that the Commissioner made a significant error of fact and an error of law in finding that the Applicant had resigned. This finding was said to be erroneous for various reasons: because it was contrary to what the Applicant alleges was a finding by the Commissioner during the hearing that the Applicant was dismissed, because there is no evidence to support the proposition that a union representative had the power to resign on the Applicant’s behalf (and such a finding is contrary to the law of agency), because the Commissioner failed to distinguish between a resignation and a revocable statement of future intention to resign, because the Commissioner failed to consider relevant matters in the Applicant’s written submissions, and because the finding was against the overwhelming weight of evidence.
 In the alternative, the Applicant submitted that the Commissioner made a significant error of fact and an error of law in finding that the Applicant’s resignation was voluntary. The Applicant further submitted that the decision is procedurally flawed because it relies on findings of fact against the Applicant that relate to matters that were not put to him by the Commissioner in the proceedings.
 The Applicant submits that there is a public interest in permitting the appeal because the decision is inconsistent with well-established principles of agency and employment law, and because it goes against the weight of evidence and was derived from a procedurally unfair hearing.
 An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 3 The majority of the High Court in that case explained in the following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (see Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so’ (55 CLR 499 at 505).”
 An appeal under s.604 of the Act may only be pursued with the permission of FWA. This would normally require an Applicant to demonstrate an arguable case of appealable error and to refer to other considerations which would justify the granting of permission to appeal. Although s.604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision (see s.400). The effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two significant respects in relation to appeals from unfair dismissal decisions. First, permission to appeal may only be granted where FWA considers it is in the public interest to do so (s.400(1)). Second, where an appeal is based on error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s.400(2)).
 The meaning to be given to “public interest” in s.400(1) of the Act was considered in GlaxoSmithKline Australia Pty Ltd v Makin, 4 where the Full Bench said that:
“Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
Although 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, it seems to us that none of those elements is present in this case.”
Consideration of the issues
 In the appeal proceedings, we were taken to the evidence and submissions before the Commissioner. We note that, as found by the Commissioner, the evidence from various witnesses was contradictory. We also note that the Commissioner had the advantage of hearing the evidence and observing the witnesses.
 The Commissioner made a number of key evidential findings. These included that:
 The uncontested evidence before the Commissioner indicated that the Applicant decided, after the discussion with Mr Hope, not to attend the meeting called by the company for 2 December 2011, and that after the discussion with Mr Muir the Applicant did not attend work as scheduled for 4 shifts, without any explanation or notification to his employer.
 Having considered the evidence, the Commissioner concluded as follows:
“ To conclude, I am satisfied from the totality of facts that Mr Love resigned on 2 December 2011. In my view, the Applicant’s portrayal of events after 2 December 2011 does not, and could not, lead to the drawing of an inference that he had not resigned. Finally, in case there is any misunderstanding of my assessment of the facts, I do not find that Mr Hope tendered Mr Love’s resignation. What I do find is that Mr Hope notified Mr Gleeson and Ms Love of Mr Love’s decision to resign. Shortly after his meeting with Mr Hope, Mr Love gave his resignation to Mr Muir. Mr Hope’s role was to secure the best possible outcome for the AWU member.”
 The Commissioner also concluded that the Applicant had not been forced to resign because of conduct, or a course of conduct, engaged in by his employer (see s.386(1)(b)). In this regard the Commissioner said:
“ The nature of the incident that led to Mr Love’s resignation was fairly straightforward. The copper wire had been found at his home, he admitted to WA Police that it came from Alcoa’s property and the Employer’s preliminary investigation revealed that Mr Love had not sought authorisation to take the copper wire off the premises. Having received these facts, Alcoa intended to give Mr Love the opportunity to respond on 2 December 2011.
 I am not able to discern any pre-determined outcome. What I am able to discern is that the Employer made it clear that if the information they were aware of translated into established and confirmed facts, then Mr Love faced the prospect of a charge of serious misconduct which could result in his dismissal. There is nothing particularly controversial about such circumstances and Alcoa was aware that fairness demanded Mr Love be given the opportunity to provide his explanation before any adverse action was taken.
 Having considered the actions and evidence of Mr Muir, Mr Gleeson and Ms Love, I am unable to draw the inference that their conduct or course of conduct forced Mr Love to resign. I interpret the situation as simply Mr Love being aware of Alcoa’s position according to Mr Hope, the assessment of AWU site officials (and former officials) of such circumstances and his own knowledge of the facts; accordingly, Mr Love made the decision to resign.”
 In the appeal, outlines of submissions were filed by the Applicant and the Respondent. In the hearing on 8 August 2012 we were taken by counsel to the main submissions on appeal and to the relevant evidence which was before the Commissioner.
 In our view there is nothing raised in the appeal which is of such a nature as to attract the public interest and therefore to warrant granting permission to appeal. In particular, we do not consider that the appeal raises issues of importance or general application in relation to the law of agency or employment. Contrary to the submissions of the Applicant, the Commissioner did not find that the resignation was conveyed to the employer by Mr Hope acting as an agent. Rather the Commissioner explicitly found that the Applicant gave his resignation to Mr Muir. 11
 We note that in the submissions on appeal counsel for the Applicant referred to The Alcoa World Alumina Australia Pinjarra Refinery AWU Enterprise Agreement 2011 12 and suggested that clause 16 of the Agreement requires that any resignation be in writing. The relevant parts of clause 16.1 are:
“16.1 Except in the case of a casual or as required by the NES, employment may be terminated by either party giving two weeks notice in writing at any time or by the payment by the Company or forfeiture by the employee as the case may be of the pay the employee would have received for the period of notice.”
 This matter was not raised either before the Commissioner or in the notice of appeal lodged by the Applicant. No authorities were cited or relied upon in support of the argument. In any event, we do not consider that the clause precludes an employee from resigning other than by written notice. The clause does not provide that an employee “may only” resign by giving written advice and in our view does not preclude an oral resignation being found to be effective. In the circumstances of the present matter, this was the conclusion reached by the Commissioner on the basis of the evidence before him.
 We have also considered the evidence which was before the Commissioner. In the appeal proceedings we were taken to relevant parts of the transcript of proceedings and the examination and cross-examination of the witnesses. In our view the decision reached by the Commissioner was not against the weight of the evidence. The findings made were reasonably open to him on the evidence. It has not been shown that there was any, let alone any significant, error in relation to the facts or that the Commissioner failed to take into account matters of material relevance to the determination of the issue before him.
 It was also alleged that the public interest was attracted because the hearing was procedurally unfair. In our view there is no substance to this submission. It was suggested that if certain findings were to be made by the Commissioner against the Applicant, those should have been put to him in the proceedings by the Commissioner. No cases or authorities were cited in support of this novel proposition. In the proceedings before the Commissioner, the Applicant was clearly aware of the case against him from the way in which the case was conducted, including the Respondent’s witness statements and outline of submissions. There was no obligation on the Commissioner to put possible findings to the Applicant. It was for the Commissioner to make his findings having regard to the totality of the evidence before him, having allowed the parties to test that evidence through the examination and cross-examination of witnesses.
 For all the above reasons, we decided that permission to appeal should not be granted.
SENIOR DEPUTY PRESIDENT
T Petherick of counsel for the Applicant.
AJ Power and W Milward of counsel for Alcoa of Australia Ltd.
1  FWA 4300.
2 ibid at .
3 (2000) 203 CLR 194 at 205.
4  FWAFB 5343 at paras -.
5  FWA 4300 at para .
6 ibid at para .
7 ibid at paras ,  and .
8 ibid at para .
9 ibid at para .
10 ibid at paras  and .
11 ibid at para .
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