Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2015] FWC 4419] of Commissioner Bissett at Melbourne on 10 August 2015 in matter number AB2015/114 – Permission to appeal – Whether grounds of appeal attract the public interest – Fair Work Act 2009, s.604.

Introduction

[1] This is an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) against a decision of Commissioner Bissett handed down on 10 August 2015. The decision of the Commissioner concerned an application for orders to be issued by the Fair Work Commission (the Commission) to stop bullying pursuant to s.789FC(1) of the Act.

[2] At the hearing of the matter on 14 October 2015 Mr M Aly appeared on his own behalf and Ms A DeBoos of counsel appeared on behalf of Commonwealth Securities Limited (CommSec) and two CommSec managers. At the conclusion of the hearing of the matter we announced our decision to refuse leave to appeal. These are the reasons for that decision.

Decision under Appeal

[3] The allegations of bullying are primarily based on the conduct of Mr Aly’s managers in managing his performance. He remains employed by CommSec. The relevant test is set out in s.789FD of the Act as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”

[4] In applying this test to the circumstances of this case and determining whether management action is reasonable the Commissioner adopted the observations of Commissioner Hampton in a case known as Re SB 1. Commissioner Hampton’s observations were not called into question. We agree that they represent a helpful outline of the approach and repeat them here with approval:

“[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;



• the circumstances while the management action was being taken; and



• the consequences that flowed from the management action.




[50] The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;



• a course of action may still be ‘reasonable action’ even if particular steps are not;



• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;



• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and



• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.




[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”

[footnotes omitted]

[5] Commissioner Bissett’s conclusions and findings were expressed as follows:

“[107] I have considered each of the matters that Mr Aly says demonstrate that he was subject to bullying at work such that an order should be issued.

[108] In making my finding I am mindful that in determining if management actions are unreasonable it must be on the basis of an objective assessment of the actions and not Mr Aly's perceptions of the actions.

[109] In this case, for all of the reasons given above, I am satisfied that the actions taken by Ms Gentile, Mr Hayman were reasonable managements actions taken in a reasonable manner.

[110] Having made this finding I therefore find that Mr Aly has not been bullied at work. There are therefore no grounds on which I should or could make the orders sought by Mr Aly.

[111] The application for anti-bullying orders is dismissed. An Order dismissing the application will be issued with this decision.”

Grounds of Appeal

[6] Mr Aly submits that permission to appeal should be granted as the Commissioner’s decision involved significant errors of fact and the Commissioner failed to take certain material into account. In particular, Mr Aly alleges the following grounds of appeal:

• The Commissioner erred in deciding not to order the attendance of Mr Johnson, who took notes during a number of meetings concerning the applicant’s performance, thus affecting the Commissioner’s finding in relation to the accuracy of meeting notes;



• The Commissioner erred in stating that Mr Aly successfully completed an Enhancing Employee Performance Plan (EEPP);



• The Commissioner’s apparent belief that an action plan and an EEPP are the same or comparable is misguided;



• The Commissioner’s statement that Mr Aly failed to meet key performance indicators requires further clarification; and



• The Commissioner mistook the facts in relation to the issue of whether or not Mr Aly was micromanaged, in particular in relation her consideration of the frequency of meetings and the amount of notice given prior to those meetings.

[7] Mr Aly submits that it is in the public interest for the Commission to grant permission for the appeal for the following reasons:

• The Commission is designed to be a way of balancing the power and influence of a large organisation against that of an individual employee;



• The Commission should have adopted an inquisitorial approach to the application; and



• Orders should have been made for individuals to attend the Commission and give evidence against CommSec due to the apparent reluctance of individuals to attend voluntarily if employed by CommSec.

[8] CommSec submits that the Mr Aly has merely identified areas of the decision where he disagrees with the Commissioner’s reasoning, but fails to articulate any error in the decision making process. Further, CommSec submits that Mr Aly’s submissions do not offer any compelling reason to reasonably satisfy the Full Bench that permission to appeal should be granted on a public interest basis and accordingly, permission to appeal should not be granted.

Permission to Appeal

[9] Permission to appeal may be granted if there is sufficient doubt to warrant reconsideration of a decision or an injustice may result if permission is not granted. 2 If the Commission considers that it is in the public interest to grant permission to appeal, it is required to grant permission.3

[10] It is important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 4 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:5

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[11] Determining whether the actions complained of were “reasonable management actions taken in a reasonable manner” involves two broad discretionary judgments. The Commissioner applied the correct statutory test and applied appropriate observations regarding that test from previous cases. The evidence of the circumstances was considered in detail and an assessment of the evidence was made in relation to the statutory test.

[12] We are not satisfied that there was any error of principle, any material mistake of fact, any failure to have regard to a relevant consideration, or any reliance on an irrelevant consideration. Nor do we consider that the result involves a substantial wrong. Mr Aly essentially seeks to recast the circumstances in an effort to establish that a different result should have been reached. He has not established any appealable error or any error in the exercise of the discretion vested in the Commission. For these reasons we declined to grant permission to appeal and dismissed the application for permission to appeal.

VICE PRESIDENT

Appearances:

Mr Aly, M on his own behalf.

Ms DeBoos, A of counsel, with Ms Mitchell, C on behalf of CommSec.

Hearing details:

2015.

Melbourne.

14 October.

Final written submissions:

Mr Aly on 7 September 2015.

CommSec on 1 October 2015.

 1   [2014] FWC 2104

 2   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.

 3   Fair Work Act 2009, s.604.

 4   House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

 5   Ibid.

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