DECISION

Fair Work Act 2009
s.604—Appeal of decision

Michael Sullivan
v
North West Crewing Pty Ltd T/A Westug
(C2016/2017)

Appeal against decision [2015] FWC 8559 of Commissioner Roe at Melbourne on 14 December 2015 in matter number U2015/11236 – permission to appeal – public interest – whether arguable case of appealable error – Fair Work Act 2009 ss.400, 604.

[1] This decision concerns an application for permission to appeal against a Decision 1 of Commissioner Roe made on 14 December 2015. The decision of Commissioner Roe concerned an unfair dismissal application made by Mr Sullivan pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by North West Crewing Pty Ltd trading as Westug (Westug).

[2] Mr Sullivan was employed as a deckhand by Westug from 12 July 2011 until termination of his employment on 3 August 2015. Westug terminated the employment of Mr Sullivan for serious misconduct. The alleged misconduct was a positive test to methyl amphetamine in a random drug and alcohol test.

[3] We have considered the reasons for decision of Commissioner Roe and have set out below some, but not all, of his findings:

“[112] I have found that:

•  Mr Sullivan worked in a safety critical environment.

•  Serious legal and business obligations apply to Westug in respect to OHS and there are serious consequences for breaches.

•  Mr Sullivan was aware that he was subject to random drug tests and that a positive drug test would result in a disciplinary outcome.

•  Mr Sullivan had been provided with the relevant policies.

•  Westug took reasonable steps to ensure that Mr Sullivan was aware through both publicity and training that he should not work when under the influence of drugs and that it was his responsibility not to work when he was unfit to do so.” 2

[4] The Commissioner also:

•  rejected Mr Sullivan’s challenge to the validity and integrity of the relevant urine tests;

•  made a finding that a policy in which a first positive test result for drugs resulted in the disciplinary response of a first and final written warning, was a reasonable policy;

•  was satisfied that Mr Sullivan admitted to conduct in respect of prescription medicine which raised concerns as to his fitness for work, given that the prescription medicine was also taken at work;

•  was satisfied that Mr Sullivan admitted to knowingly working whilst unfit;

•  rejected the submission that Mr Sullivan did not take methyl amphetamine in the days immediately prior to resuming duties;

•  was satisfied that Mr Sullivan would either have known that he took the drug or that he had been given the drug without his knowledge;

•  was satisfied that Mr Sullivan did not disclose all relevant information to Westug and,

•  was satisfied that the allegations against Mr Sullivan were simple and clear and that Mr Sullivan had an opportunity to respond to them, even though some of the restrictions placed on his representatives produced some unfairness.

[5] In relation to whether Westug’s decision to terminate was harsh or disproportionate, the Commissioner made the following findings:

“[130] I would have come to this conclusion if it were not for:

•  The risks to the health and safety of others associated with Mr Sullivan’s admission that he misused his prescription medication when not at work.

•  My finding that Mr Sullivan was knowingly unfit whilst at work on 23 July 2015 and this was contrary to clear and well publicised policy that employees are not to attend work when unfit and are required to advise their supervisor if unfit.” 3

[6] Prior to the hearing of the application for permission to appeal Mr Sullivan provided submissions and documents in support of his Grounds of Appeal.

[7] At the hearing on 10 February 2016 Mr Sullivan made an application for an adjournment to obtain representation from the Maritime Union of Australia (MUA). A representative of the MUA was in the hearing room of the Commission. Ms Dawson, appearing with permission on behalf of Westug, opposed an adjournment. Mr Sullivan was given an opportunity to speak with the representative. Following that adjournment Mr Sullivan continued to represent himself and provided further oral submissions.

[8] Mr Sullivan submitted that:

•  A positive drug test by urine sample does not amount to serious misconduct. An employee must be under the influence to have engaged in serious misconduct. Westug could not have thought that he was under the influence because he was taken to his car after his on-site test and drove home.

•  There can be no breach of any policy because there was no policy covering a positive drug test.

•  A handbook referred to in the relevant enterprise bargaining agreement was not provided to the applicant on employment.

•  He did not say the words the Commissioner relied upon to satisfy himself that Mr Sullivan had misused his prescription medication.

•  The enterprise bargaining agreement does not provide details of the policy or the handbook.

•  There should be no restrictions on a support person. Such restrictions are in breach of the enterprise bargaining agreement.

•  The Commissioner did not take into account all of the provisions of the enterprise bargaining agreement.

•  The Commissioner did not correctly acknowledge the policies pursuant to which Mr Sullivan’s employment was managed.

•  Mr Sullivan was not guilty of serious misconduct.

[9] Ms Dawson, in response, submitted that Mr Sullivan was attempting to have the issues heard at first instance reheard by this Full Bench, that there was no arguable case of error by Commissioner Roe and that there was no relevant issue of public interest raised by the Grounds of Appeal or Mr Sullivan’s submissions.

[10] The principles applicable to an appeal from a decision arising from an application pursuant to s.394 the Act have been stated on many occasions. A Full Bench of this Commission has succinctly summarised the principles as follows:

“[6] 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. There is no right to appeal and an appeal may only be made with the permission of the Commission.

[7] 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.

[8] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 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. In GlaxoSmithKline Australia Pty Ltd v Makin 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.”

[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. 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.” 4

(references omitted)

[11] We have considered the circumstances surrounding this application for permission to appeal, the material provided by Mr Sullivan, the Grounds of Appeal advanced by Mr Sullivan and the oral submissions of Mr Sullivan and the representative for Westug.

[12] Having reviewed the material that was before the Commissioner and his Decision (in which he provided a comprehensive and balanced consideration of the evidence and made findings of fact) we are not satisfied that there is an arguable case of appealable error.

[13] Further, we have considered whether this matter attracts the public interest, and for completeness we are not satisfied that:

a) there is a diversity of decisions so that guidance from an appellate body is required on a matter such as this; or
b) the matter raises issues of importance and or general application; or
c) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[14] It is likely that Mr Sullivan believes that the Decision at first instance manifests an injustice, or the result is counter intuitive. However, it seems to us that the appeal was simply being used as a vehicle to rerun the case that had been conducted before the Commissioner in circumstances where Mr Sullivan is dissatisfied with the decision at first instance. That is not the purpose of an appeal. The public interest test is not satisfied by a preference for a different result. 5

Conclusion

[15] Having considered all of the matters raised by Mr Sullivan, we are not satisfied, for the purposes of s.400(1), that it would be in the public interest to grant permission to appeal.

[16] For these reasons we refuse permission to appeal.

VICE PRESIDENT

Appearances:

Mr Sullivan, M on his own behalf.

Ms Dawson, R of counsel, with Ms Caterina, G, on behalf of Westug.

Hearing details:

2016.

Melbourne—Video link to Perth.

10 February.

 1   [2015] FWC 8559.

 2   [2015] FWC 8559 at [112].

 3   [2015] FWC 8559 at [130].

 4   Ceres Agricultural Company Pty Ltd trading as Ceres Agricultural Company v Regan [2016] FWCFB 371.

 5   Qantas Airways Ltd v Carter [2012] FWAFB 5776 (unreported, Harrison SDP, Richards SDP, Blair C, 17 July 2012).

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