| FWCFB 759
|FAIR WORK COMMISSION
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER
SYDNEY, 13 FEBRUARY 2017
Permission to appeal against decision  FWC 9072 of Commissioner Williams at Perth on 29 December 2016 in matter number U2016/8592.
Introduction and background
 Mr Matthew Hughes has applied for permission to appeal and appealed a decision of Commissioner Williams issued on 29 December 2016 1 (Decision) in which he dismissed Mr Hughes’ application for an unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination of his employment with Momentum Wealth Pty Ltd (Momentum). Mr Hughes was dismissed by Momentum on 14 July 2016 as a result of his conduct at a work social event on 1 July 2016 and his behaviour in connection with the investigation of that conduct on 4 July 2016. In the Decision, the Commissioner found that Mr Hughes’ dismissal was not unfair, and dismissed his application for an unfair dismissal remedy.
 The facts of this matter may briefly be stated. Mr Hughes was first employed by Momentum as a Property Strategist in October 2014. It was accepted by Momentum that Mr Hughes performed his work at a high level and was well regarded. However at the time of the 1 July 2016 incident he was the subject of a final warning, issued as a result of a head-butt he had inflicted on a fellow employee at an after-work gathering in November 2014, that any further instances of aggression would result in his dismissal.
 The work social event on Friday 1 July 2016 occurred at a hotel. By arrangement between Momentum and the hotel, an area for the function had been roped off and Momentum had paid for food and alcohol to be served to its employees attending the function for a fixed period. In advance of the function, at a meeting of staff (including Mr Hughes) held on 21 June 2016, Momentum advised that employees were expected to behave responsibly at the function as they were representing Momentum.
 At the function, at around 11.00pm, Mr Hughes became involved in an altercation with another patron at the hotel who had no connection to the Momentum function. The precise circumstances of the altercation were the subject of dispute, but it ended with the patron lying on the floor and Mr Hughes standing over him with a clenched and raised fist. A fellow Momentum employee, Mr Cliffe, intervened to separate Mr Hughes from the patron and push him away, and another employee, Mr Merrick, physically restrained Mr Hughes. The Managing Director of Momentum, Mr Collins, who was present at the function, then asked Mr Hughes to leave the function. After some arguing, Mr Hughes eventually agreed to do so.
 Mr Hughes attended for work as normal the following Monday, 4 July 2016. He was apparently unaware of a text message sent to him the previous day advising him that he was stood down pending an investigation into what had occurred at the function. Mr Hughes became aware that his direct manager, Mr Di Camillo, had been advising others that he would not be in that day, and he confronted Mr Di Camillo about it. When he was advised that he was stood down, Mr Hughes became angry, and he ignored Mr Di Camillo’s direction to leave the premises. Ms Wakeman, the General Manager of Momentum, then rang Mr Hughes to advise that he was stood down pending the investigation, and he was to leave the premises. Mr Hughes hung up on her. Ms Wakeman subsequently saw Mr Hughes in her office, and explained again that he was stood down and asked him to return the office security fob. He threw it across the desk to her and then left the premises.
 Momentum then undertook an investigation which involved statements being taken from 12 employees who had witnessed the events at the function. Ms Wakeman and Mr Collins then prepared a document which set out the allegations against Mr Hughes. He was required to attend a meeting on 6 July 2016 to answer these allegations. Mr Hughes attended the meeting with his lawyer. Mr Hughes eventually provided a response to most of the allegations. He denied any wrongdoing at the function. After the meeting ended, Mr Collins and Ms Wakeman considered the situation and, the following day, reached a decision to dismiss him for misconduct. Mr Hughes was advised later that day. After some discussion, the dismissal eventually took effect on 18 July 2016, with Mr Hughes being paid two weeks’ pay in lieu of notice.
 In the Decision, the Commissioner made factual findings about those aspects of the events of 1 and 4 July 2016, and the head-butt incident of July 2014, which were in contest. In relation to what occurred at the function, the Commissioner found:
“ Considering the evidence as to the incident between Mr Hughes and the patron I find that the patron, as Mr Hughes said, initiated the first contact by bumping into Mr Hughes. I am also satisfied that as the Venue Manager stated in his email Mr Hughes did push the patron however the patron fell to the ground largely because he lost his footing on the slippery floor, rather than due to the force of Mr Hughes’ push.
 However I reject Mr Hughes’ evidence that he had not stood over the patron in an aggressive and threatening manner whilst he was on the ground. To the contrary I find that whilst the patron was on his back on the ground Mr Hughes stood over him with a clenched fist and his arm raised as if he was about to punch the patron. I find that Mr Cliffe having seen this had good reason to intervene as he, and subsequently Mr Merrick, did to restrain Mr Hughes. Mr Hughes had over overreacted in an unnecessarily aggressive manner towards the patron bumping into him.
 I also accept the evidence of Mr Cliffe that Mr Hughes said to him ‘get you’re fucking hands off me’ to which Mr Cliffe replied that he should “pull his head in”. Mr Hughes then pushed his chest into Mr Cliffe’s and told him in a threatening tone “don’t you fucking touch me”.
 Next the security staff at the venue intervened. The security staff ejected the patron from the premises and told Mr Hughes to calm down.
 I find that Mr Cliffe then moved away from the area where the incident occurred and moved towards the bar. Mr Hughes then came over to where Mr Cliffe was and Mr Hughes again in an aggressive manner stood very close to Mr Cliffe and verbally threatened him telling Mr Cliffe never to touch him again.”
 In relation to what happened on 4 July 2016, the Commissioner found that Mr Hughes was in “an agitated state” when he met Mr Di Camillo and had responded to him in “an angry and aggressive manner”, for which Mr Di Camillo upbraided him. 2 In relation to the head-butt incident, the Commissioner found:
“ Considering the conflicting evidence between Mr Hughes and Mr Collins, Mr Di Camillo and Mr Cliffe as to what occurred between himself and Mr Wood in November 2014 I reject Mr Hughes’ evidence. I accept the evidence of the other three witnesses and find that Mr Hughes deliberately head-butted Mr Wood for no apparent reason. Mr Hughes at the time said words to the effect that Mr Wood deserved it. Mr Wood was injured and his nose was bleeding. I also accept that both Mr Collins and Mr Di Camillo separately and then together spoke to Mr Hughes and advised him that his aggressive behaviour which led to him injuring Mr Wood was unacceptable and he was given a final verbal warning and expressly advised that any further instances of aggression would result in his dismissal.”
 Having made his findings of fact, the Commissioner then dealt with the matters he was required to consider under s.387. The Commissioner stated the following about the incident at the social function:
“ The conduct of Mr Hughes on Friday, 1 July 2016 occurred outside of normal working hours. However in the circumstances Mr Hughes’ conduct, about which Momentum complains, did have a relevant connection with the employment relationship. It occurred at a Momentum social club function attended by numerous employees of Momentum and Momentum paid for the food and drink for most of the evening. Mr Hughes had behaved in an aggressive manner towards a patron which had the potential to damage the reputation of Momentum. In addition Mr Hughes had behaved in a threatening manner towards another employee of Momentum; he had then abused the Managing Director and repeatedly ignored his requests to leave. Mr Hughes conduct did seriously damage the relationship between him and his employer Momentum and was contrary to Momentum’s interests. Consequently Momentum were entitled to consider Mr Hughes’ misconduct at the social club function as a reason for his dismissal.”
 The Commissioner then concluded in relation to s.387(a):
“ The conduct of Mr Hughes at the social club function on Friday, 1 July 2016 was a valid reason for his dismissal. Mr Hughes’ conduct in standing over the patron who was on the ground in an unnecessarily aggressive manner was a valid reason for his dismissal. Mr Hughes threatening behaviour towards another employee of Momentum was a valid reason for his dismissal. Finally Mr Hughes abuse of the Managing Director and initial refusals to leave when asked was also a valid reason for his dismissal.
 Separately Mr Hughes aggressive behaviour towards his manager Mr Di Camillo on Monday, 4 July 2016, his failure to leave the premises when his manager told him to do so and his rudely hanging up on Ms Wakeman, the General Manager, during their phone conversation were valid reasons for his dismissal.”
 The Commissioner then went on to consider the other matters required to be taken into account by s.387. In respect of s.387(h), one of the matters the Commissioner had regard to was the following:
“ Mr Hughes does not have an unblemished employment record at Momentum. Indeed in November 2014 he head-butted a colleague, again at an after work gathering. There were no mitigating circumstances and at the time Mr Hughes did this he showed no remorse. Mr Hughes was warned by Mr Collins and separately warned by Mr Di Camillo and later warned by both Mr Collins and Mr Di Camillo together, that his aggressive behaviour which caused injury to another employee was unacceptable. He was told he was being given a final warning and any further instances of aggression would result in his dismissal.”
 The Commissioner’s overall conclusion was:
“ In the circumstances I am satisfied that the dismissal of Mr Hughes was neither harsh, unjust, nor was it unreasonable. Mr Hughes was not unfairly dismissed. Accordingly his application for an unfair dismissal remedy will be dismissed and an order to that effect will be issued.”
Appellant’s appeal grounds and submissions
 Mr Hughes’ grounds of appeal set out in his notice of appeal were:
“Error of law
1. The Commissioner erred in law:
(a) in applying the wrong legal test as to whether the conduct of the Applicant on 1 July 2016 was a valid reason to dismiss the Respondent to dismiss the Applicant from his employment;
(b) in failing to find, in effect, that upon application of the correct legal test the conduct of the Applicant on 1July 2016 was not a valid reason for the Respondent to dismiss the Applicant from his employment;
Significant error of fact and error of law
2. The Commissioner significantly erred in fact and erred in law:
(a) in finding that the Applicant in November 2014 deliberately head-butted a Mr Tyler Wood for no apparent reason;
(b) in finding that the head-butt injured Mr Wood causing his nose to bleed;
(c) in finding, in effect, that the Applicant had been given a valid verbal warning by the Respondent for head-butting Mr Wood;
(d) in rejecting the evidence of the Applicant about the incident with Mr Wood being, in effect, that the incident was accidental and did not cause Mr Wood injury,
where the basis for the Commissioner's findings and rejection of the Applicant's evidence was hearsay statements of persons who could reasonably have been, but were not, called as witnesses by the Respondent without proper explanation.
Error of law
If ground 1 and/or ground 2 is upheld, then the Commissioner erred in law in failing to conclude, on the acts as found and otherwise not in dispute, that the Appellant was unfairly dismissed from his employment by the Respondent.”
 Mr Hughes submitted that permission to appeal should be granted in the public interest because:
 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.
 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.
 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”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment8. 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. 10 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.11
 An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal .12
 We are not satisfied that the matters raised by Mr Hughes in his submissions demonstrate that it would be in the public interest to grant permission to appeal. Firstly, we do not accept that the appeal properly engages with the principles established in Keenan 13 and Rose v Telstra.14 In Keenan, a distinction was made between the conduct of an employee at a formal Christmas function organised by the employer, in relation to which the employee had been advised that the employer’s usual standards of behaviour would apply, and subsequent conduct at a bar and another location to which some employees had decided to repair after the Christmas function had finished. The latter conduct was held to be purely private conduct outside the scope of the employment which could only furnish a valid reason for the dismissal on the limited basis identified in Rose v Telstra. In Keenan the Commission said (footnote omitted):
“ In my consideration of that question, it is necessary to deal at the outset with a significant submission made on behalf of Mr Keenan, namely that the conduct which occurred after the end of LBAJV’s Christmas function at about 10.00pm at the upstairs public bar and out in the street (that is, allegations 4, 6, 7 and 8 and possibly allegation 3) was outside the scope of Mr Keenan’s employment, was properly characterised as private activity, and therefore could not constitute a valid reason for dismissal.
 In a factual sense this submission is well-founded. The time boundaries of the Christmas function were, in the notice to employees, identified as 6.00pm to 10.00pm. It can be inferred from the evidence that the physical boundary of the function was the venue booked for it, being the Endeavour Room. Employees were informed in advance that, in substance, LBAJV’s standards of conduct would apply at the function, but there was no suggestion of any expectation that those standards would apply to behaviour outside the temporal and physical boundaries of the function. The period spent by employees in the upstairs bar and out in the street after 10.00pm was outside of the workplace and outside of working time, however broadly construed the concepts may be.
 The circumstances in which “out of hours” misconduct may constitute a valid reason for dismissal was classically stated in Rose v Telstra Corporation Limited as follows:
“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:
● the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
● the conduct damages the employer's interests; or
● the conduct is incompatible with the employee's duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct.”
 Rose involved a fight between the dismissed employee and another employee. The dismissed employee was on a work trip to a country town, but was off-duty at the time the fight occurred. There was no evidence that the reputation of the employer had been tarnished by what occurred. It was not accepted that the dismissed employee’s conduct, objectively viewed, was such as to be likely to cause serious damage to his relationship with his employer. The Commission held in Rose that the dismissed employee’s conduct did not fall within the limited circumstances in which an employee may validly be terminated because of conduct outside of work.”
 Unlike Keenan, both parties in the hearing before the Commissioner here proceeded on the basis that Mr Hughes’ conduct on 1 July 2016 occurred during the work social function organised by Momentum. Mr Hughes said in his own witness statement that “On 1 July at a work event at Northbridge Brewing Company I was the subject of a mild assault by a drunk (non-Momentum Wealth employee) patron - I thought nothing of it at the time as security and management intervened immediately and the other patron was ejected”. Momentum’s witnesses also described the incident between Mr Hughes and the patron as having occurred during the function; Mr Collins, for example; said that the incident occurred at about 11.00pm but that the function ended at about midnight; Mr Cliffe said that he told Mr Hughes immediately after the incident to that “he needed to ‘pull his head in’ at a work function”, and Ms Wakeman after describing the incident said that “The function continued to about 12am”. None of these statements was the subject of any evidentiary contest.
 The fact that the paid food and alcohol may have ceased shortly before the incident, as the Commissioner stated was likely 15, did not necessarily mean that the work function had ended at that point. No witness said that, and no submission to that effect was made. Nor was any submission advanced that the incident was purely private activity outside the scope of the employment. The conclusions stated in paragraph  of the Decision, which we have earlier quoted, were consistent with Keenan, in that although the conduct occurred outside of normal working hours, it was within the scope of the employment because, on the evidence, it occurred at a work function to which Momentum’s expectations of behaviour applied.
 Mr Hughes’ submission that his conduct on 1 July 2016 occurred after the function ended and was private activity to which the principles in Rose v Telstra should have been applied is a new argument raised in his appeal for the first time. The usual principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance, and that permission to appeal would not be granted to permit this to occur. 16 That is particularly the case where, as here, if the point had been raised at first instance it would in all likelihood have affected the course of the evidence.
 Secondly, the Commissioner’s conclusion that Mr Hughes’ conduct on 4 July 2016 separately constituted a valid reason for his dismissal involved the making of an evaluative judgment. Mr Hughes has not contended that this judgment was made on the basis of any erroneous finding of fact, and has not otherwise identified any appealable error in the conclusion. In substance, Mr Hughes has simply invited us to draw our own conclusion about the matter in substitution for the Commissioner’s. An appeal case of that nature is without merit and thus will not attract permission to appeal.
 Thirdly, in relation to Mr Hughes’ argument concerning the head-butting incident, we likewise do not consider it is sufficiently arguable to justify the grant of permission to appeal. We consider that the Commissioner was entitled to make his findings of fact concerning this incident on the basis of the evidence of Mr Cliffe, Mr Di Camillo and Mr Collins. They all gave their evidence about the incident in their witness statements which were filed and served prior to the hearing. They were all cross-examined by Mr Hughes’ lawyer. Although Mr Hughes was only very briefly cross-examined about this incident 17, he was taken in his evidence-in-chief to the relevant parts of the statements of Mr Cliffe, Mr Di Camillo and Mr Collins concerning the incident and was able to give his response.18 In those circumstances, there could not have been a denial of procedural fairness (about which the rule in Browne v Dunn19 is fundamentally concerned). In any event, we note that the Commissioner ultimately only took account of the head-butt incident in his consideration under s.387(h) in paragraph  of the Decision in a limited way. It does not appear to us to have been crucial to his conclusion that the dismissal was not unfair.
 We do not otherwise consider that the Decision raises any issue of general importance or application, or was counter-intuitive or manifested an injustice. We are not satisfied that the grant of permission to appeal would be in the public interest. Therefore, in accordance with s.400(1), permission to appeal must be refused.
J. Graham solicitor for M. Hughes.
I. Curlewis solicitor for Momentum Wealth Pty Ltd t/a Momentum Wealth.
1  FWC 9072
2 Decision at 
3  FWC 3156, 250 IR 27
4 Print Q9292  AIRC 1592 (4 December 1998)
5 (1893) 6 R. 67, H.L
6 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  per Gleeson CJ, Gaudron and Hayne JJ
7 (2011) 192 FCR 78 at 
8 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  per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at  -
9  FWAFB 5343, 197 IR 266 at 
10 Wan v AIRC (2001) 116 FCR 481 at 
11 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343, 197 IR 266 at -; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth  FWAFB 10089, 202 IR 388 at , 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  FWCFB 1663, 241 IR 177at 
12 Trustee for The MTGI Trust v Johnston  FCAFC 140 at 
13  FWC 3156, 250 IR 27
14 Print Q9292  AIRC 1592 (4 December 1998)
15 Decision at 
16 See ASU v Yarra Valley Water Corporation  FWCFB 7453, (2013) 232 IR 440 at -; Nilsen (SA) Pty Ltd v CEPU  FWCFB 3119
17 Transcript 2 November 2016, PNs 551-555
18 Transcript 2 November 2016, PNs 218-227, 337-357, 384-385
19 (1893) 6 R. 67, H.L
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