[2017] FWCFB 759


Fair Work Act 2009

s.604 - Appeal of decisions

Matthew Hughes
Momentum Wealth Pty Ltd t/a Momentum Wealth



Permission to appeal against decision [2016] FWC 9072 of Commissioner Williams at Perth on 29 December 2016 in matter number U2016/8592.

Introduction and background

[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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.

The Decision

[7] 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:

[8] 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:

[9] 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:

[10] The Commissioner then concluded in relation to s.387(a):

[11] 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:

[12] The Commissioner’s overall conclusion was:

Appellant’s appeal grounds and submissions

[13] Mr Hughes’ grounds of appeal set out in his notice of appeal were:

[14] Mr Hughes submitted that permission to appeal should be granted in the public interest because:


[15] 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.

[16] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:

[17] 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:

[18] 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

[19] 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

[20] 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):

[21] 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.

[22] 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 [79] 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.

[23] 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.

[24] 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.

[25] 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 [94] 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.

[26] 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.

al of the Fair Work Commission with the memeber's signature.



J. Graham solicitor for M. Hughes.

I. Curlewis solicitor for Momentum Wealth Pty Ltd t/a Momentum Wealth.

Hearing details:



7 February.

 1   [2016] FWC 9072

 2   Decision at [34]

 3   [2015] FWC 3156, 250 IR 27

 4   Print Q9292 [1998] 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 [17] per Gleeson CJ, Gaudron and Hayne JJ

 7   (2011) 192 FCR 78 at [43]

 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 [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]

 9   [2010] FWAFB 5343, 197 IR 266 at [27]

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

 11   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], 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, 241 IR 177at [28]

 12   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 13   [2015] FWC 3156, 250 IR 27

 14   Print Q9292 [1998] AIRC 1592 (4 December 1998)

 15   Decision at [15]

 16   See ASU v Yarra Valley Water Corporation [2013] FWCFB 7453, (2013) 232 IR 440 at [23]-[24]; Nilsen (SA) Pty Ltd v CEPU [2016] 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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