| [2016] FWCFB 7204 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 5305 of Senior Deputy President Hamberger at Sydney on 10 August 2016 in U2016/2078.
Introduction and background
[1] Mr Guillermo Diaz has applied for permission to appeal and appealed a decision of Senior Deputy President Hamberger issued on 10 August 2016 1 (Decision). In the Decision, the Senior Deputy President found that Mr Diaz’s dismissal by Anzpac Services (Australia) Pty Limited (Anzpac) was not unfair, and dismissed his application for an unfair dismissal remedy. The crux of the Decision was that the Senior Deputy President found, for the purpose of s.387(a) of the Fair Work Act 2009 (FW Act), that Mr Diaz’s conduct in yelling and arguing with a fellow employee constituted a valid reason for dismissal having regard to the fact that Mr Diaz had been warned about similar behaviour in the workplace on a number of previous occasions. Mr Diaz, represented by his union, the Australian Manufacturing Workers Union (AMWU), contends that the Senior Deputy President erred in principle by taking into account the earlier warnings under s.387(a), and this raised an issue of importance and general application which justified the grant of permission to appeal in the public interest.
[2] The factual background is uncontroversial. As described in Mr Diaz’s own submissions in support of his application for permission to appeal, he had before his dismissal been employed by Anzpac for 24 years and over that period “he had been warned (formally and informally) on multiple occasions for losing his temper and shouting at colleagues”. The most recent of these warnings was in 2012. The incidents which caused Mr Diaz’s dismissal occurred on 30 and 31 March 2016. There was no challenge to the findings of fact made in the Decision about this incident, which were as follows (footnotes omitted):
“[8] On 30 March, Ms Murphy was operating the Alpina (a gluing machine designed to glue cartons into folded shapes). Mr Diaz was working as Ms Murphy’s offsider, feeding the machine. Ms Murphy started the machine at 30,000 units per hour and increased speed gradually to about 62,000 units per hour. Shortly after this, Mr Diaz started waving his arm and yelling at her. Ms Murphy stopped the machine and went to talk to Mr Diaz. Because of the noise and the distance involved, Mr Diaz had had to raise his voice to attract Ms Murphy’s attention. However he did not lower his voice when she went to talk to him. Instead Mr Diaz continued to yell at her:
‘Turn the machine down! You’re going too fast!’
[9] Mr Diaz was standing around a foot from Ms Murphy while he was saying this. He also waved his arms in Ms Murphy’s face. They then had an argument about the speed of the machine.
…
[12] The next day (31 March 2016) Ms Murphy was setting up the machine and went to the feeder end to talk to Mr Diaz. She asked him how he was and he yelled at her ‘Go away!’ and waved his arms at her.
[13] Later that morning Mr Arduin was having a discussion with John Sfikas (Production Shift Manager) and Ms Borsey near the Alpina machine. Mr Diaz began yelling at Mr Arduin and complaining that the machine was running too fast. Mr Arduin told Ms Murphy to maintain a speed where everyone was comfortable.
[14] Soon after that, Ms Borsey arranged for someone other than Mr Diaz to work as a feeder with Ms Murphy.”
[3] Mr Diaz was dismissed on 13 April 2016, and he lodged an unfair dismissal remedy application pursuant to s.394 of the FW Act on 4 May 2016.
[4] In his consideration of Mr Diaz’s application the Senior Deputy President was required by s.387(a) to take into account whether there was a valid reason for Mr Diaz’s dismissal based on his capacity or conduct. The Senior Deputy President found:
“[30] I am satisfied that the respondent had a valid reason for the applicant’s dismissal. There is no doubt that the applicant’s conduct towards Ms Murphy on 30 and 31 March 2016 was inappropriate. By itself it would not have justified the termination of the applicant’s employment. However this instance of misconduct must be seen in the context of the applicant’s long record of repeated inappropriate behaviour – most obviously getting angry and shouting at his colleagues when something did not go his own way. It is not good enough for the applicant to simply say that this is his nature. Moreover it is nonsense to suggest that it is just the case of the applicant having a loud voice. What happened on 30 (and to some extent the 31) March 2016 was just one occasion too many. The respondent was well within its rights to dismiss Mr Diaz.”
[5] The Senior Deputy President’s conclusions as to the unfairness of the dismissal were as follows:
“[36] I have had regard to the impact of the dismissal on the applicant’s personal circumstances. However this must be weighed against the applicant’s failure to remedy his own poor behaviour in the workplace - despite being given repeated opportunities to do so over a long period of time. I am sure that the consequences of his dismissal weigh heavily on the applicant. However they are the consequences of his own conduct, and he must take responsibility for them.
[37] The applicant’s representative pointed to a number of weaknesses in the respondent’s investigation. Some of these criticisms have merit. However they are largely irrelevant to the issue before me. I am satisfied, based on the evidence presented in the proceedings before the Commission, that the applicant engaged in the misconduct for which he was dismissed. I am also satisfied that the applicant was afforded procedural fairness, in that he was notified of the reason for his dismissal and was given an opportunity to respond.
[38] In conclusion, I find that Mr Diaz’s dismissal was not unfair and his application is dismissed.”
[6] The AMWU submitted, on Mr Diaz’s behalf, that the Senior Deputy President erred in his consideration under s.387(a) because:
[7] It was also submitted that there was discordance in the authorities on the question of what matters properly arose for consideration under s.387(a), and Mr Diaz should be granted permission to appeal in the public interest to allow this issue to be settled. In this connection the AMWU contrasted the Full Bench decisions in Parmalat v Tran 2 and B, C and D v Australia Post3 with those in Ricegrowers Co-operative Limited4, Walsh v Australian Tax Office5 and Caspanello v Telstra Corporation Ltd.6
Consideration
[8] 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. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] 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.
[10] 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”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment9. 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.” 10
[11] 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. 11 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.12
[12] It is correct, as submitted on behalf of Mr Diaz, that there is some division in the authorities concerning whether mitigating factors relevant to whether dismissal was a proportionate sanction for any misconduct on the part of the relevant employee should be considered under s.387(a) or under s.387(h), although we note that in the recent decision of Sayers v CUB Pty Ltd 13, the Full Bench said that the “balance of authority under the FW Act” was in favour of such mitigating factors being considered under s.387(h). However, we consider that the authorities are clear that s.387(a) requires consideration, in a case where misconduct is the reason for dismissal, first as to whether the relevant conduct occurred, and second, if the conduct did occur, whether it was of sufficient seriousness or gravity to constitute a valid reason for dismissal. In this respect we endorse the analysis in Bista v Glad Commercial Cleaning14 at paragraphs [34]-[42] in relation to the consideration required by s.387(a).
[13] As was made clear in Bista, assessing whether a particular instance of misconduct is of sufficient gravity to constitute a valid reason for dismissal is not the same thing as considering whether dismissal was a disproportionate penalty for the misconduct. The former is “concerned with whether the conduct in question, considered in isolation, was intrinsically capable of constituting a valid reason for dismissal”. 15 The latter involves taking into account a range of potential mitigating factors, which may include matters such as the employee’s length of service and disciplinary record, and weighing them against the gravity of the misconduct in order to determine whether dismissal was too harsh a penalty.
[14] In respect of the former task, it is not correct, as Mr Diaz submits, that the specific acts or omissions which constitute the relevant misconduct can be divorced from contextual matters relevant to the seriousness of that conduct. In Sayers v CUB Pty Ltd, the Full Bench made it clear that the “conventional position” in considering the valid reason issue is to take into account contextual matters bearing upon the degree of culpability on the part of the employee. 16 The majority judgment in B, C and D v Australia Post17 might be read as standing for the proposition that contextual matters which operate to diminish the culpability of the employee should be taken into account under s.387(h) rather than s.387(a). However that does not assist Mr Diaz, because the majority also made it clear that the following matters, which concern the employee’s misconduct assessed from the employer’s perspective, arise for consideration in relation to the valid reason issue under s.387(a) (emphasis added):
“The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.” 18
[15] It is clearly the case that the gravity of an employee’s misconduct is increased in circumstances where the employee has previously engaged in conduct of the same or a similar conduct and has been warned not to repeat it. To put this another way, the employee’s defiance of the earlier warning(s) is an intrinsic aspect of his or her misconduct, and necessarily forms part of the assessment of the gravity of the misconduct. We do not consider that it is in any way controversial for such circumstances to be taken into account in determining whether there is a valid reason for dismissal under s.387(a). We therefore do not consider that Mr Diaz has demonstrated any arguable case of error in respect of the approach taken by the Senior Deputy President under s.387(a). Nor do we consider that Mr Diaz has identified any question of general application or any disconformity in the authorities in this respect.
[16] We would add that Mr Diaz’s submission that the outcome of his case might change depending upon the paragraph of s.387 under which his prior disciplinary record was considered is both artificial and counter-intuitive. That prior disciplinary record was, as the Decision makes clear, the critical factor which caused the Senior Deputy President to conclude that the dismissal was not unfair. It seems to us to be logically inexplicable that the dismissal could become unfair merely because that same disciplinary record was considered under s.387(h) rather than s.387(a), since in either case the degree of relevance of that disciplinary record and the weight to be assigned to it in assessing the fairness of the dismissal should be the same. Section 387 does not require any greater or lesser weight to be assigned to paragraph (a) as compared to paragraph (h); provided each specified matter in s.387 is properly taken into account, the weight to be assigned to them is a matter for the Commission member in the exercise of his or her discretion.
[17] For the reasons stated, we do not consider that it would be in the public interest to grant permission to appeal. Therefore, as required by s.400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
L. Saunders from the Australian Manufacturing Workers’ Union for G.Diaz.
C. Watson from Printing Industries Association of Australia for Anzpac Services (Australia) Pty Limited.
Hearing details:
2016.
Melbourne:
10 October.
2 [2016] FWCFB 1199 at [8]-[9]; (2016) 257 IR 21
3 [2013] FWCFB 6191 at [42]; (2013) 238 IR 1
4 [2001] AIRC 887 at [14]-[17]; PR908351
5 [2015] AIRC 185 at [17]; PR956205
6 [2002] AIRC 1171 at [18]; PR922915
7 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
8 (2011) 192 FCR 78 at [43]
9 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
10 [2010] FWAFB 5343, 197 IR 266 at [27]
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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]
15 Ibid at [42]
16 [2016] FWCFB 5499 at [14], [16]
17 [2013] FWCFB 6191, (2013) 238 IR 1
18 Ibid at [42]-[43]
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