DECISION

Fair Work Act 2009
s.604—Appeal of decision

Fahmid Rahman
v
Australian Taxation Office
(C2016/4652)

Appeal against decision [2016] FWC 4575 of Deputy President Bull at Sydney on 8 July 2016 in matter number U2015/11672-permission to appeal refused.

[1] This decision concerns an application for permission to appeal and an appeal against the Decision 1  of Deputy President Bull dated 8 July 2016 (the Decision) which arose from an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged by Mr Rahman.

[2] Deputy President Bull found that the Commonwealth of Australia (as represented by the Australian Taxation Office) (ATO) had a valid reason for the termination of Mr Rahman’s employment. That valid reason arose from a 9 March 2011 application for an APS 6 Compliance Officer position in the name of Mohammed Ahsanul Haque. Deputy President Bull found that Mr Rahman had acted in breach of the Code of Conduct by either completing the false application or knowingly assisting Mr Haque to do so. He concluded that the termination of Mr Rahman’s employment was not harsh, unjust or unreasonable and he dismissed Mr Rahman’s application.

[3] Both parties were given permission to be legally represented at the hearing of the application for permission to appeal which was listed for hearing on Friday, 23 September 2016. Mr Rahman was represented by Mr Rogers of Counsel. The respondent was represented by Mr Glover of Counsel, instructed by Ms Lenard of K&L Gates, Solicitors.

[4] The background to this application was extensively summarised by Deputy President Bull. We do not consider it necessary to repeat that summary in this decision.

Grounds of Appeal

[5] Mr Rogers tendered by consent, and relied upon, an amended Notice of Appeal in which Grounds 9 and 10 were additional to those set out in the original Notice of Appeal. He provided Written Submissions 2 in support of those Grounds of Appeal including the additional grounds. The Grounds of Appeal are set out below.

“1. The Learned Deputy President erred in concluding that the Appellant completed or assisted in the creation of a false job application on or about 9 March 2011 (‘the 2011 Application’) in the name of one Muhammad Ahsanul Haque (‘Mr Haque’).

2. In particular, having concluded that the Appellant did not complete or assist in creating other false job applications (‘the Subsequent Applications’) in the name of Mr Haque, or alternatively in concluding that there was no sufficient basis to establish that the Appellant had completed or assisted in creating such other false job applications, the Learned Deputy President erred in failing to draw the necessary inference that the Appellant had not completed or assisted in the creation of the 2011 Application or alternatively that there was an insufficient basis to establish that the Appellant had completed or assisted in creating the 2011 Application.

3. Further or in the alternative, in so far as the Learned Deputy President failed to find that the Appellant had not completed or assisted in the creation of the Subsequent Applications, the Learned Deputy President was in error.

4. Further, the Learned Deputy President, in determining the matter on the balance of probabilities, failed to give sufficient weight to the inherent probability that the Appellant had not completed or participated in the creation of the 2011 Application having regard to:

(i) The seriousness of the allegations made against the Appellant;

(ii) The possible consequences for the Appellant of having done so.

5. Further, the learned Deputy President erred in failing to have regard to, or sufficient regard to, the significance of the fact that the Appellant had drawn the matter to the attention of the Respondent and in failing to draw inferences in favour of the Appellant which necessarily flowed from that fact.

6. The Learned Deputy President erred in concluding that the Respondent employer had discharged its evidentiary onus by conducting an extensive investigation into the relevant matters surrounding the alleged misconduct of the Appellant.

7. The Learned Deputy President erred in inferring that the Appellant ought to have called his former barrister Mr Blank to give evidence and further erred in not drawing an inference adverse to the Respondent in so far as the Respondent failed to call Mr Blank.

8. In the alternative, the learned Deputy President erred in finding that, in all the circumstances, the dismissal was not harsh.

9. Further, the learned Deputy President erred in holding that the Respondent did not condone the actions of the Applicant; and

10. The learned Deputy President failed to give reasons, or sufficient reasons, in reaching the conclusion that the Respondent did not condone the actions of the Applicant.”

[6] Mr Rogers also tendered a Table of Allegations and Findings 3 which sets out the original allegations, the findings4 of the ATO investigator Ms Deegan, which were relied upon by the ATO at the hearing before Deputy President Bull, and the findings of Deputy President Bull. This table is extracted below.

TABLE OF ALLEGATIONS AND FINDINGS

(MR RAHMAN – APS 4 LEVEL EMPLOYEE)

[7] Deputy President Bull found Mr Rahman had only completed one of the five applications that were found by Ms Deegan to have been completed by Mr Rahman and which were relied upon by the ATO.

[8] Mr Rogers submitted that the Decision of Deputy President Bull was in error in that he made an erroneous finding of fact that Mr Rahman had completed an APS 6 application. He submitted that the entire application turned on that erroneous finding. His submission on the Decision is set out below.

“3.1 To understand the matter it is necessary to understand that Mr Rahman was an APS 4 employee. 5 (APS 4 is below APS 6, APS 1 being the lowest level).

3.2 The Respondent alleged that Mr Rahman engaged in misconduct by, in an attempt to prove that he was being unfairly discriminated against in relation to promotion, creating the allegedly false job applications. 6

3.3 As noted above, Bull DP found only that one of the applications had been falsely completed by the Applicant.

3.4 The evidence - the only evidence - that Mr Rahman played any part in the creation of the APS 6 Application was an affidavit made by Mr Rahman himself which he subsequently corrected.

3.5 The objective evidence points unequivocally points to all of the job applications, (including the March 2011 APS 6 application), having been created by Mr Haque.

3.6 This is evident from an examination of page 448 of the Appeal Book.

3.7 Page 448 contains a table (“the Table”) forming part of a report commissioned by the Respondent which demonstrates with unqualified clarity that some, at least, of the applications were not made by Mr Rahman.

3.8 The Table demonstrates that of the seven applications made listed in the Table in the name of Mr Haque:

(i) One was for an APS 3 position; and

(ii) Two were for APS 4 positions.

3.9 There can be no doubt that those applications were not made by Mr Rahman for the reasons identified by the ATO (see paragraph 3.2 above).

3.10 That is because, if Mr Rahman had been attempting to prove that he was being unfairly discriminated against in relation to promotion, he would not have lodged applications for positions at the same level at which he was employed (APS 4) and in one case at a lower level (APS 3).

3.11 This means that on any rational analysis Mr Haque completed those particular applications.

3.12 Once that is recognised, it is difficult to logically conclude that Mr Haque did not make all of the applications.

3.13 It is certainly far and away the most likely conclusion.

3.14 The only matter which militates against that conclusion is paragraph [38] of Rahman’s affidavit of February 2012 - a paragraph which was never read in any proceedings and which Rahman explained was erroneous.”

4. THE AFFIDAVIT OF 13 FEBRUARY 2012

4.1 As noted above, put against Mr Rahman is his affidavit of 13 February 2012 (made in other proceedings) in which he incorrectly deposed that:

“[38] In March 2011 I applied for an APS 6 application….. At the same time I applied with a “dummy application”…. using a different name. I also completed a dummy application on the basis that the dummy applicant was an external candidate with no ATO experience. The dummy application was short-listed but I was not.”

4.2 The above paragraph [38] is the only thing which links Mr Rahman to the APS 6 application.

4.3 It is a slender strand upon which to sustain a case of misconduct.

4.4 It arose from a miscommunication between Mr Rahman and his then barrister.

4.5 It should be noted, too, that Mr Rahman, when legally represented, waived privilege on his conversations with his barrister.

4.6 The Respondent took no advantage of the waiver to call the barrister to contradict Mr Rahman.

5. CONDONATION

5.1 The Applicant seeks leave to Amend his Grounds of Appeal to allege two further, grounds:

(i) that the learned Deputy President erred in holding that the Respondent did not condone the actions of the Applicant and

(ii) that the learned Deputy President failed to give reasons, or sufficient reasons, in reaching the conclusion that the Respondent did not condone the actions of the Applicant.

5.2 The points are short ones.

5.3 Firstly, by the time that the Respondent appointed Barbara Deegan to investigate the complaint against the Applicant, the Respondent had been on notice of the alleged falsification for several years and had done nothing about the matter.

5.4 The learned Deputy President’s reasoning went no further than to find that:

“While the decision to terminate Mr Rahman’s employment was not until a considerable period of time had elapsed since the offending conduct came to the attention of the ATO, the decision was considered and made only after an exhaustive investigation was undertaken. I do not find there was any condonation of Mr Rahman’s conduct.”

5.5 It is submitted that the learned Deputy President has simply ignored the fact that the decision was “considered” is not the test. The test is whether the Respondent has acted with reasonable promptness upon being put on notice of the misconduct.

6. CONCLUSION

6.1 There is an overwhelming case that the finding that Mr Rahman created the APS 6 application of 9 March 2011 was incorrect.

6.2 Such a finding was, axiomatically, a significant error of fact.

6.3 There is, likewise, a powerful case that, if Mr Rahman was guilty of the behaviour alleged, that the employer did not act with reasonable promptness.

6.4 In the circumstances permission to appeal should be granted.”

(Our emphasis)

Respondent’s Submissions

[9] The respondent submitted that Deputy President Bull considered the evidence and made factual findings. Those factual findings were available to Deputy President Bull and supported his conclusion that the respondent had a valid reason to terminate Mr Rahman’s employment and that the termination of his employment was not harsh unjust or unreasonable.

[10] The respondent submitted that Mr Rahman had not identified any matter of public interest to justify the grant of permission to appeal other than an injustice consequent upon asserted erroneous findings of fact and the failure to provide insufficient reasons for his findings. The first alleged error of fact was that Mr Rahman had completed the APS 6 application. The second alleged error of fact was the ATO had not condoned his actions.

Whether Rahman had completed the APS 6 application

[11] In relation to this issue the respondent submitted:

“10. First, there was ample objective evidence for Deputy President Bull to be satisfied that the applicant had completed and submitted, or was instrumental in the submission of, the ‘dummy’ APS 6 Compliance officer job application on or around 9 March 2011 (APS 6 job application). That objective evidence is (i) the applicant’s affidavit, filed in his Federal circuit Court proceedings, filed on 22 February 2012, and (ii) the applicant’s Further Amended Statement of Claim filed in those proceedings on 13 March 2013.

11. The applicant’s submissions address only the applicant’s affidavit. The applicant submits it is a ‘slender strand upon which to maintain a case of misconduct’. Applicant’s Submissions, [4.3]. to the contrary, it is a statement that the applicant has not subsequently been able to explain away to the satisfaction of Ms Deegan, Ms Cawthra or Deputy President Bull. The applicant submits the affidavit arose from a ‘miscommunication’ between the applicant and his then barrister (Mr Blank), and complains that the respondent did not call Mr Blank: Applicant’s Submissions, [4.4]-[4.6]. This submission was also addressed by Deputy President Bull, who noted that (i) Ms Deegan attempted to obtain information from Mr Blank by way of a statement, and (ii) the applicant did not call Mr Blank to support his position before the Commission” Appeal Book, tab 2, p 40 [146].

12. In any event, Deputy President Bull also considered the applicant’s Further Amended Statement of Claim was relevant, stating at [148], ‘[a]ccepting Mr Rahman’s argument that the affidavit was not as he intended and that it was Mr Haque who submitted the ‘dummy application’, it is difficult to comprehend why the amended statement of claim did not state that Mr Haque had drafted the application’ (footnotes omitted). The applicant’s submissions fail to have regard to this finding.

13. Secondly, it was clearly open to Deputy President bull to prefer that objective evidence to the evidence of the applicant and Mr Haque (whom he regarded as unreliable), in relation to the preparation and submission of the APS 6 job application. Significantly, Deputy President Bull did not consider the applicant’s explanation regarding the statement he made in his affidavit that he made a dummy application under a different name ‘in any way convincing’. Deputy President Bull noted there was no evidence to support the applicant’s submission that Mr Blank had misconstrued his instructions: Appeal Book, tab 2, p 42 {156}. Indeed, it is unclear why the applicant complains that the respondent should have called Mr Blank to provide evidence, when Mr Blank was plainly a witness whose evidence would have, presumably, supported the applicant’s case.

14. Thirdly, it is not to the point that the Deputy President did not ‘necessarily’ accept the applicant made other job applications: Appeal Book, tab 2, p 42 [158]. Deputy President Bull only had to make a finding – one way or the other – in relation to the APS 6 job application. At paragraph 116 of his reasons, Deputy President Bull nolted “Counsel for Mr Rahman submits that the ATO’s entire case stands or falls on whether Mr Rahman created the ‘dummy’ job application for the position of APS 6 Compliance Officer on 9 March 2011’.

15. Fourthly, there is an obvious, evidentiary, reason for the findings Deputy President Bull made in relation to the APS 6 job application, on the one hand, and the other job applications, on the other. What Deputy President Bull had by way of evidence in the APS 6 job application, and which he did not have in relation to the other job applications, was the additional statement by the applicant in his affidavit in his Federal Circuit Court proceedings and the amendment contained in the applicant’s Further Amendment Statement of Claim. Deputy President Bull’s reasons at paragraphs [161]-[162] make this point.” 7

Whether the ATO had condoned Rahman’s conduct

[12] In relation to this issue the respondent submitted that:

“16. In relation to the applicant’s challenge to the finding that the respondent did not ‘condone the actions’ of the applicant, it is misleading to refer only to Deputy President Bull’s conclusion at paragraph 170 of his reasons: Applicant’s Submissions, [5.4]. this ignores the chronology of events leading to the termination of the applicant’s employment that were ‘either agreed between the parties or otherwise not contested.’ That chronology, as set out in Deputy President Bull’s reasons, identifies (footnotes omitted):

[20] Proceedings in the Federal Circuit Court commenced in September 2013 (Federal Court Proceeding SYG842 of 2011) and a decision dismissing the application was handed down by Judge Driver in February 2014 ([2014] FCCA 6).

[21] In March 2014, Mr Rahman filed an appeal against Judge Driver’s decision to the Federal Court which was heard on 5 November 2014 by Justice Buchanan. The appeal was dismissed on 11 December 2014 ([2014] FCA 1356).

[22] Subsequently, Mr Rahman filed an application for special leave to the High Court, and in February 2015, Mr Rahman was advised that the app0lication was filed out of time and that he could make an application for an extension of time. Mr Rahman filed a further application on 12 February 2015 for special leave to appeal with the High Court which was dismissed on 13 August 2015.

17. What followed, was a substantial and thorough investigation by the respondent of the allegations.” 8

Permission to Appeal

[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the Fair Work Commission’s (the Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[14] This appeal is one to which s.400 of the 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.

[15] In the Federal Court Full Court decision 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”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.11 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.” 12

[16] 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. 13 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.14

Conclusion

[17] Deputy President Bull conducted a detailed forensic examination of the evidence before him. The task for the Deputy President was to determine relevant issues on the evidence and provide sufficient reasons for that determination. He did so in an orthodox manner.

[18] We have considered the errors asserted by Mr Rahman. We can identify no arguable error of fact or law in Deputy President Bull’s decision.

[19] We are not satisfied that there is any public interest in granting permission to appeal. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant guidance. The outcome of Mr Rahman’s application was not counterintuitive. The decision at first instance does not manifest in injustice. The legal principles applied by the Deputy President followed and are harmonious with those applied in other decisions dealing with similar matters.

[20] We refuse permission to appeal and dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A Rogers of Counsel for the appellant.
Mr T Glover of Counsel instructed by Ms C Lenard of K&L Gates for the respondent.

Hearing details:

2016
September 23
Sydney

Printed by authority of the Commonwealth Government Printer

<Price code C, PR586802>

 1   [2016] FWC 4575

 2   Exhibit Appellant 1

 3   Exhibit Appellant 2

 4   Appeal Book pages 434 to 448 at pages 436 to 437

 5   Decision Bull DP 08.07.2016, Appeal Book 8[8]; Statement of Service AB p. 641

 6   Or had assisted in the creation of the applications; Report Barbara Deegan (07.07.2015), AB p.437.1

 7   Exhibit Respondent 1paras 10 - 15

 8   Exhibit Respondent 1 paras 16-17

 9   Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 10   (2011) 192 FCR 78 AT [43]

 11   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]

 12   [2010] FWAFB 5343 at [27], 197 IR 266

 13   Wan v AIRC (2001) 116 FCR 481 at [30]

 14   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 288, 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].