DECISION

Fair Work Act 2009
s.604—Appeal of decision

The Entrance Red Bus Services Pty Ltd T/A Red Bus Services
v
Paul Cahill
(C2018/3012)

Permission to appeal sought against decision [2018] FWC 1812 of Commissioner McKenna at Sydney on 15 May 2018 and Order PR608141 on 15 June 2018 in matter number (U2017/13313)

[1] The Entrance Bus Services Pty Ltd T/A Red Bus Services (Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner McKenna issued on 15 May 2018 (the Decision). 1 In the Decision, the Commissioner granted Mr Paul Cahill’s (Respondent) application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) on the basis of a determination that the dismissal of the Respondent by the Appellant on Friday 8 December 2017 was harsh, and unreasonable, and unjust.

[2] The Decision included a finding that it was appropriate to make an Order that the Respondent is reinstated and his continuity of service be maintained. 2 The Decision said the parties should confer about settling a proposed draft order and/or to hear the parties on the potential need for any further evidence or submissions as may be relevant concerning matters such as the date for return to work in the order and/or any order for lost wages.

[3] The Appellant lodged a notice of appeal on 4 June 2018.

[4] Subsequent to the notice of appeal an order was issued by the Commissioner on 15 June 2018 to give effect to the Decision (Order). 3 The Order was in the following terms:

“1. Pursuant to ss.390(1) and 391(1)(a) of the Fair Work Act 2009 the respondent, The Entrance Redbus Service Pty Ltd, is to reinstate the [Respondent], Paul Cahill, to a position no less favourable than his previous position, as from 20 June 2018.

2. Pursuant to s.391(2)(a) that the continuity of the [Respondent’s] employment with the respondent is maintained.

3. Pursuant to s.391(4) the respondent pay to the [Respondent] within seven (7) days an amount equal to $3,908.20 before tax and further pay an amount of $386.76 as superannuation payments due to the [Respondent].”

[5] The parties were heard on whether permission to appeal should be granted on 8 August 2018. Mr P King, of counsel, for the Appellant and Mr M Gibian, of counsel, for the Respondent sought permission to appear. In accordance with s.596(2)(a) of the FW Act, we granted permission to appear for both parties.

[6] The Respondent commenced employment with the Appellant from around August/September 2015 until his dismissal on 8 December 2017. The Appellant operates bus services in the Central Coast area of New South Wales and the Respondent was employed as a bus driver.

[7] On the morning of Wednesday, 6 December 2017 the Respondent was undertaking bus driving duties when an incident occurred involving a woman who attempted to board the bus. The Respondent gave evidence concerning the conduct of the woman and his actions in preventing her from boarding the bus. Part of the incident was recorded on closed circuit television (CCTV) footage but did not include audio of the incident. Following the incident the Respondent communicated with the bus depot about the incident, and requested that the police are notified. The police subsequently contacted the Appellant and obtained CCTV footage of the incident.

[8] On Friday 8 December 2017, the Respondent found a note on his locker from Mr David Bain, the Appellant’s Planning and Development Officer/Operations Manager, requesting to see the Respondent.

[9] What occurred at the subsequent meeting on 8 December 2017 was the subject of disputation in the evidence however it was clear the Respondent was dismissed because of his alleged conduct during the meeting which initially involved Mr Bain and the Respondent, and later also involved Ms Samantha McKenzie, the General Manager of the Appellant. The Respondent was dismissed on Friday 8 December, however a subsequent letter dated 11 December 2017 confirmed this in writing. The letter read as follows:

“Re: LETTER OF DISMISSAL

Dear Mr Cahill

This is to advise you that due to breaches of SERIOUS MISCONDUCT,

Red Bus Sevices no longer require your services and you are hereby dismissed from employment with Red Bus taking effect immediately.

Please be advised that on Friday 8 December 2017 you were requested to attend an interview with David Bain, the Planning and Development Manager of Redbus Services Pty Ltd. This was due to an incident that occurred in a bus that you were driving on Wednesday 6 December 2017. On being shown cctv footage of the incident and being questioned about your actions that lead up to the incident you became aggressive and starting to yell.

Please note; Your actions and being able to provide an adequate response as to why you did not follow correct procedure on 6 December 2017 at most merited a written warning.

1: Not wearing a seat belt while driving and,

2: Leaving the drivers seat to approach and confront a person outside the bus and,

3: Pushing a female passenger who had boarded the bus.

However as your yelling could be heard throughout the whole office block, the General Manager, Samantha McKenzie intervened, you continued to yell at her and went on to make inappropriate comments and accusations toward her. When she couldn’t get you to calm down and see reasons she informed you that you were dismissed and to leave the premises.

Yours faithfully

RED BUS SERVICES PTY LTD

Samantha McKenzie

General Manager” (Emphasis added).

The Decision

[10] The issues to be determined by the Commissioner were whether the dismissal was unfair, and if it was unfair, what remedy should be awarded. The Commissioner made a number of findings concerning the incident of 6 December 2017 based on the CCTV footage and the Respondent’s evidence.

[11] The Commissioner concluded the woman who was attempting to, and did board the bus was “an appallingly badly-behaved would-be bus passenger.” The Respondent is shown as being “very engaging and friendly with bus passengers.”  4

[12] The Commissioner concluded the Respondent heard a commotion outside the bus and the Respondent’s decision to step outside the stationary bus was “not an unreasonable reaction to check what was occurring.” 5 The Commissioner concluded that the Respondent was “the subject of verbal abuse from the woman” including “among other matters, making threats to the [Respondent] and uttering high-order obscenities at him.”6 The Commissioner concluded that the language was of a type “no employee should be expected to have to put up with”7 and the Respondent “had a commendably calm demeanour in response to the woman’s conduct.”8

[13] The Commissioner concluded the Respondent endeavoured to block the woman’s further entry into the bus because of his concern for other passengers on the bus including “mothers with babies, elderly people and children.” 9 The Commissioner found that in a momentary action the Respondent appeared to give the woman “a brief push or shove.”10 The Commissioner said this was in circumstances where the woman endeavoured to go past the Respondent. The Commissioner considered that there was a reasonable alternative view from the CCTV footage which shows the Respondent “putting his hands up once he made contact with the woman, as if he did not mean to touch her, and she then reacted with a sudden and exaggerated movement”.11

[14] The Commissioner found that “it was not established from the CCTV footage that this interaction between the [Respondent] and the woman resulted in the woman falling into a passenger – because the footage does not appear to record any, for example, sharp recoil or similar reaction by the other passenger.” 12

[15] The Commissioner found that “[t]he woman is seen again engaging in still more of her tirade and pointing her finger in close proximity to the [Respondent’s] face, before then spitting directly onto the [Respondent’s] face – whereupon the [Respondent] swiftly forcibly ejects the woman from the bus by pushing her out the door of the bus and onto the pavement.” 13 The Commissioner concluded that “[t]his was a quite reasonable reaction from the [Respondent], one would think. The [Respondent] is seen wiping away whatever gob of the woman’s spit that was then still on his face.”14

[16] The Commissioner concluded that it would have been impractical for the Respondent to have pressed the duress alarm during the immediate time-frame of the incident, and no practical utility in doing as it concerned an immediate duress alarm related response from the bus depot. 15

[17] The Commissioner reached the following conclusions about the subsequent meeting on 8 December 2017 that led to the dismissal of the Respondent: 16

•  Mr Bain raised with the Respondent matters concerning the incident with the woman and he was, in effect, critical of the Respondent’s conduct in relation to the incident. Among other matters, Mr Bain said words to the effect that the Respondent had assaulted the woman and the police were considering charging the Respondent; and that the Respondent had broken a number of protocols, including getting out of the driver’s seat and checking outside the bus instead of just shutting the doors and driving away from the bus stop.

•  The Respondent was, in effect, shocked and expressed his disagreement about matters Mr Bain conveyed to him. Among other matters, the Respondent stated it was the woman who assaulted him. Mr Bain effectively indicated that in his view the Respondent had started matters by leaving the bus and then pushing the woman once she had boarded the bus.

•  Mrs McKenzie entered the office and indicated that she supported Mr Bain’s views, including Mr Bain’s view that the Respondent had assaulted the woman. In response to what Mrs McKenzie said, the Respondent commented to Mrs McKenzie, in a comparative type of way, about an earlier incident concerning two teenage boys in which Mrs McKenzie (and apparently Mr Bain) had had some level of personal involvement; this reference was to a past incident whereby two boys were first removed from a bus, then returned to it, and then taken by bus into police or transit police custody.

•  Mrs McKenzie was, in effect, offended or upset (self-described as being “mortified”… “defensive and emotional”) by what the Respondent said in alluding to her own involvement in the earlier incident concerning the two boys. Mrs McKenzie immediately then proceeded to inform the Respondent he was dismissed and that he was to leave the premises.

•  The Respondent next walked into another room (a drivers’ room, or similar) and is seen commencing a conversation with another employee (as to the fact he had been dismissed). Mrs McKenzie entered the room. The CCTV footage records Mrs McKenzie gesticulating to the Respondent while speaking to him, during which the Respondent stands passively or calmly. I accept the Respondent’s evidence that Mrs McKenzie told the Respondent not to speak to any of the drivers, that he was to give her his keys and that he would be followed to/escorted to the car park. The CCTV footage shows the Respondent giving Mrs McKenzie the keys.

•  The Respondent left the building and a further short discussion ensued, again involving the Respondent, Mrs McKenzie and Mr Bain about what happened and the dismissal. The evidence of the Respondent as to what unfolded was that, among other matters, he said words to the following effect:

“How could this happen, how could I have been, you know, spat on and, treated, you know – one thing happened to me on the Wednesday and here it is, Friday, and I’ve been sacked for doing nothing other than sticking up for my passengers on a bus and trying to do the right thing and, you know, you’ve turned this into me being the person who instigated it and I’m gone, I’m sacked from my job, this was my future, you know.”

•  The Respondent was then followed through parts of the exterior of the building towards a carpark, initially by Mrs McKenzie and then also (after having stopped to briefly smoke a cigarette) by Mr Bain. The Respondent initially had gone to the wrong car park, and then is shown walking in the direction of the appropriate car park. There is nothing of any further relevance recorded on the CCTV footage of the exterior of the premises.

•  Among other matters, after having been informed he was dismissed, the Respondent (who is a former police officer) said words having the effect of relaying that he would not leave the matter of the dismissal uncontested because he loved his job as a bus driver. Mrs McKenzie’s characterisation was somewhat different; she recalls the Respondent saying words to the effect that you will be sorry about this (i.e. about the dismissal) as conveying some form of threat – albeit the evidence as to where and when this comment was made – and being perceived as threatening behaviour was unclear on the evidence of Mrs McKenzie.

[18] The Commissioner’s Decision also records that following the Respondent’s dismissal, later that day the Respondent was in contact with a senior constable of the NSW Police Force and the senior constable advised the Respondent that he had viewed the CCTV footage and asked the Respondent whether he wished to proceed with assault charges against the woman and the Respondent advised that he did. A police report that the Respondent later obtained pursuant to an application under the Government Information (Public Access) Act 2009 (NSW) (“GIPA”) set out among other matters that it appears the Respondent’s actions in the matter “are justified”. The Commissioner said in the Decision that she concurred with the assessment of the senior constable. 17

[19] Regarding the factual disputes between the evidence of the Respondent, Mr Bain and Ms McKenzie concerning the meeting of 8 December 2017, the Commissioner found as follows;

“[17] Shortly stated, the respondents case was that in the discussions on 8 December 2017, initially with Mr Bain and then also involving Mrs McKenzie, the [Respondent] engaged in serious misconduct by, particularly, shouting, being abusive and making unsubstantiated allegations concerning Mrs McKenzie’s past involvement in relation to the two teenage boys. The submissions for the respondent read, in part, “The Applicant’s defensiveness and intolerance to the questions from Mr Bain on 8 December 2017, which the [Respondent] saw as allegations of wrongdoing against him, led the Applicant to behave in an unreasonable way towards his employer which was totally inconsistent with his employment contract.” Additionally the respondent’s case contended, Mrs McKenzie and Mr Bain feared for their safety because of concern the [Respondent] would act violently to them personally given the way he conducted himself in the meeting.

[18] There is sharp dispute on aspects of the evidence about what unfolded on 8 December 2017. As to those matters, particularly concerning the conduct and demeanour of the [Respondent] , and the content of what was said, I strongly preferred the evidence of the [Respondent]. For instance, Mr Bain’s evidence in the proceedings was that he did not state to the [Respondent] that the police had informed him that they were considering charging the [Respondent]; however a contemporaneous file note signed by Mr Bain and dated 8 December 2017 (the date of the dismissal), which was attached to the Form F3-Employer Response to Unfair Dismissal Application, notes that Mr Bain had that day informed the [Respondent] of the same about the police. This, in turn, also may be compared to and contrasted with what was set-out in contemporaneously-recorded police records obtained pursuant to the GIPA application.

[19] There is no CCTV footage of what unfolded during the meeting in the office on 8 December 2017 as it initially concerned the [Respondent] and Mr Bain, and then also Mrs McKenzie. The versions of what occurred are largely incompatible or even irreconcilable. I am bound to make findings as to such matters, given the centrality in the respondent’s case as to what unfolded in the meeting. To the extent of the relevant inconsistencies, I generally preferred and accept the [Respondent’s] description of his own demeanour, behaviour and conduct, and as to matters said in the discussions, as against what was described in the evidence of the respondent. The [Respondent] presented as an impressive and credible witness, and measured in his evidence.

[20] The [Respondent] himself acknowledges that he strongly disagreed about what was said to him in the discussions with Mr Bain and described it as involving “heated conversation”, with both voices raised; but I accept the [Respondent] did not display that disagreement with the purported aggressiveness, “yelling”, “screaming”, and abusiveness alleged by the respondent.

[21] My conclusions in such respects as to whose version I prefer concerning the contested matters in the witnesses’ evidence are reinforced, to some extent, by certain of what is otherwise recorded in CCTV footage at the respondent’s premises. That is, after the [Respondent] had been dismissed by Mrs McKenzie during the meeting in the office, he initially went to a different room at the workplace. Mrs McKenzie’s evidence indicated that she next heard the raised voice of the [Respondent] coming from the other room and that she thereby entered that room. The CCTV footage records that [Respondent], in fact, entering the room and calmly commencing a conversation with another employee without any outward hint of agitation or, for example, appearing to shout. Within a matter of seconds of that conversation commencing, Mrs McKenzie enters the room. Mrs McKenzie is filmed in what appears to be a state of annoyance while the [Respondent] just stoically stands, occasionally nodding, as Mrs McKenzie apparently upbraids him, including with hand motioning. The interaction concludes with the [Respondent] giving the keys to Mrs McKenzie. Moreover, Mrs McKenzie is later seen walking after/following the [Respondent] as he went to one of the work carparks after the dismissal – which tends to belie the contentions about concern in relation to the [Respondent’s] supposedly aggressive and threatening demeanour, and fears of violence from him.

[22] A review of the CCTV footage that is available from the respondent’s premises all points to the [Respondent] conducting himself in a way that was, as the [Respondent’s] submissions contended, “cool, calm and collected”. My preference for the evidence of the [Respondent] is also formed by an examination of the evidence and the range, I am bound to note, of inconsistencies in the evidence of the adduced in the respondent’s case.

[23] I am not satisfied that there was a valid reason for dismissal, because I prefer and accept the [Respondent’s] evidence concerning his conduct in the discussions on 8 December 2017. I accept the submissions for the [Respondent] that the decision to terminate the [Respondent’s] employment was made by Mrs McKenzie as, in effect, “a rash decision” in connection with him passing comment upon her own actions concerning the earlier incident involving the two boys.”

[20] The Commissioner also concluded that the Respondent was not given an opportunity, or any reasonable opportunity, to respond to the matters concerning his conduct. 18 In relation to the other matters the Commission considered relevant, the following was noted:

“[29] Taken collectively, the dismissal was characterised by lack of a valid reason coupled with substantive and procedural unfairness. At its highest, it may have been the case that Mr Cahill properly ought not to have made reference to Mrs McKenzie about her involvement in an earlier incident, but in the context of what had unfolded in relation to the incident involving the woman and what then was being put to Mr Cahill at the meeting, it was perhaps not unnatural reaction or response for the [Respondent] to make reference to that matter. As the submissions for the [Respondent] noted, following a distillation of certain matters from the evidence, the evidence supports a conclusion the [Respondent’s] reaction in making accusations concerning Mrs McKenzie was entirely reasonable in these circumstances, albeit unfortunate; but it certainly does not support the conclusion that this reaction amounted to a valid reason to terminate the [Respondent’s] employment for misconduct.

[30] All matters considered, I am satisfied the dismissal was harsh, and unreasonable, and unjust.”

Submissions

[21] The public interest grounds referred to in the appeal included that the appeal involved an important question of law as to the admission of hearsay evidence; the appropriateness of reinstatement; questions involving the admissibility of new evidence; the Decision being disharmonious with other recent decisions; the Decision is attended with sufficient doubt to warrant reconsideration; and the Decision manifests an injustice and is counterintuitive.

[22] The Appellant filed an outline of submissions on 31 July 2018. The written submissions appeared to modify the grounds of appeal to the extent that ground six was not treated as a ground of appeal but a submission made by the Appellant pursuant to s.607(2) of the Act in support of grounds 1, 3 and 4. Appeal ground 5 appeared to be treated as part of grounds 1 and 3.

Application to admit fresh evidence

[23] The Appellant sought to admit and rely on further evidence about the impact of the order to reinstate the Respondent which was not before Commissioner McKenna pursuant to s.607(2) of the Act. The further evidence was said to be about the health consequences of reinstatement to the General Manager of the Appellant (Ms McKenzie), and was in the form of psychological assessments undertaken by Ms Raquel Arenas.

[24] The Appellant submitted that the Full Bench should not follow the decision in Reihana v Mastercare Highrise Cleaning Services Pty Ltd 19 (Reihana) with respect to the test for admitting further evidence under s.607(2) because the Full Bench in Reihana was in error in following a decision of Clarke JA in Atkins v National Australia20(Atkins). In the alternative the Appellant submitted that s.607(2) of the Act is analogous to s.93A of the Family Law Act 1975 (Cth) and s.27 of the Federal Court of Australia Act 1976 (Cth).

[25] The Appellant also relied on the High Court decision in ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association 21 to submit s.607(2) is remedial in nature and gives power to admit evidence where, if accepted, would demonstrate that the order under appeal is erroneous. The Appellant submitted the further evidence would satisfy the Full Bench that the Commissioner may have reached an alternative decision as to remedy, and that the psychological impact on Ms McKenzie could not have been foreseen prior to the hearing.

[26] The Respondent filed written submissions on 7 August 2018. The Respondent submitted that the application under s.607(2) is only relevant if the foreshadowed application were to demonstrate that the public interest requires a grant of permission to appeal. The Respondent submitted the Full Bench decision in Reihana was subject to proceedings in the Federal Court and the Federal Court found no error in the decision, and the reference to Akins was in accordance with the law.

[27] The Respondent submitted that the report of a rehabilitation consultant was prepared on 27 June 2018, well after the Decision of the Commissioner (and after the notice of appeal was filed) and no effort was made to obtain such a report before the hearing at first instance. The report reflects circumstances which were not in existence at the time the Decision was made. It was submitted that error could not be demonstrated by reference to matters not in existence at the time of the Decision.

[28] The Respondent also submitted that given the findings there was no reason to think a different result would have been reached as to remedy as the Commissioner noted the Respondent would be away from the depot 95% of his work time, had only ever had limited interactions with Mrs McKenzie or Mr Bain and there was no reasonable apprehension that he would act aggressively or violently.

Appeal grounds 1 and 3

[29] Grounds 1 and 3 of the appeal, relate to;

•  The Decision to award reinstatement,

•  The Respondent’s reaction to the woman on 6 December 2017;

•  That the Respondent may have started the matter; and

•  That the Respondent was aware of the Appellant’s procedures and protocols.

[30] The Respondent submitted the findings were clearly open to the Commissioner on these matters in circumstances where the woman was extraordinarily abusive and had just assaulted the Respondent by spitting in his face.

[31] Alleged errors of fact pertaining to the meeting of 8 December 2017 included that;

•  the Commissioner preferred the evidence of the Respondent about what occurred that day;

•  the Respondent acknowledged that it was reasonable for the Appellant to call a meeting on 8 December and that it was not a disciplinary meeting;

•  the Respondent did not remain calm at the meeting and the Appellant sought to calm the Respondent; and

•  the Respondent made accusations against Mrs McKenzie.

[32] The Respondent submitted the Commissioner preferred the Respondent’s evidence based on his demeanour as a witness; described him as an “impressive and credible witness”; multiple inconsistencies in the evidence of the Appellant’s witnesses; and the CCTV footage supported the Respondent’s evidence. Moreover, the Respondent submitted that it was incorrect for the Appellant to say the Commissioner gave little weight to various matters.

[33] Alleged significant errors of fact pertaining to the order of reinstatement included that;

•  there was no proper cause for concluding the Respondent would perform his duties properly and competently;

•  there was an unfortunate flavour to allegations and counter allegations in considering the practicability or appropriateness of reinstatement;

•  Mr Bain’s evidence that he felt threatened and could not work with the Respondent; and

•  Mrs McKenzie lives on the depot site and would potentially have contact with the Respondent every day.

[34] The Respondent submitted that the Commissioner gave detailed consideration to the submissions and evidence with respect to reinstatement and no error exists, or any question of general principle that would warrant grant of permission to appeal.

Appeal ground 2

[35] Ground 2 relate to alleged errors of law in both the Decision that the dismissal was unfair and in deciding to grant a remedy of reinstatement. The alleged errors were said to arise from the Commissioner giving weight to a report of Constable Feuerstein who did not give evidence before the Commission.

[36] The Appellant submitted the Commissioner failed to take particular care in exercising her discretion in receive hearsay evidence, failed to act fairly or justly pursuant to s.577, and placed significant weight on the evidence of Senior Constable Feuerstein.

[37] The Respondent submitted that the Commission is not bound by the rules of evidence, may inform itself in relation to a matter as it thinks fit, and must act quickly, informally and without unnecessary technicality. The Respondent submitted that where the Commissioner was not required to apply the rules of evidence it could not be an error of law to admit the report of Constable Feuerstein. It also submitted that in any event even if the rules of evidence did apply the report was a business record and is the type of record the Commission would generally admit into evidence and rely on. Further it was put that the Appellant had every opportunity to request an order requiring Constable Feuerstein to attend, and to make submissions as to the weight that should attach to the report which it did not do.

[38] The Respondent also submitted that the police report was peripheral to the Commissioner’s Decision. The reference to the report in paragraph [11] was as part of a chronology of events, and at paragraph [18] the report is only an additional point of comparison to other inconsistencies within Mr Bain’s own evidence at the proceedings and his report prepared on the day of dismissal.

Appeal ground 4

[39] Ground 4 relate to the Decision that the dismissal was unfair, because in accepting the evidence of the Respondent concerning the events of 6 December and 8 December 2017 the Appellant says the Commissioner acted on wrong principles and against the weight of evidence. The Appellant also submitted that the Respondent’s conduct on 6 December was a valid reason for dismissal even though it was not the reason for dismissal.

[40] The Respondent submitted the letter of termination explicitly did not rely on the 6 December 2017 incident and concluded he could not have been dismissed as a result of that incident. After acquired knowledge must constitute a matter not known to the employer at the time of dismissal and this is not an instance of after acquired knowledge. The Respondent submitted that it is also apparent the Commissioner regarded the conduct of the Respondent on 6 December 2017 as reasonable and justified and the Commissioner would not have concluded the incident of 6 December 2017 provided a valid reason for dismissal, and the Full Bench would not come to a different conclusion.

Permission to appeal principles

[41] 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. 22 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[42] 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.

[43] In Coal & Allied Mining Services Pty Ltd v Lawler and others 23, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the FW Act as “a stringent one”.24 The task of assessing whether the public interest is met is a discretionary one involving a broad value judgement.25 In GlaxoSmithKline Australia Pty Ltd v Makin26 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”. 27

[44] 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. 28 However, the fact that the Member at first instance made an error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.29

Consideration

[45] In the permission to appeal hearing, we determined not to admit the Appellant’s fresh evidence. The fresh evidence goes to issues concerning alleged impacts the hearing had on Ms McKenzie, and also historical health issues. It is notable that the new evidence was not prepared at the time of filing the appeal. We agree with the Respondent that error could not be demonstrated by reference to matters not in existence at the time of the Decision, namely the effect the hearing had on Ms McKenzie. Matters going to historical health issues concerning Ms McKenzie could have been brought as part of the Appellant’s case at first instance but it was not. This was material available at the time of the hearing at first instance and it would be inappropriate for such material to be admitted as new evidence on appeal when it was available at the time of the first instance hearing.

[46] In relation to grounds 1 and 3 concerning the alleged errors of fact in awarding reinstatement, we consider that the Commissioner gave consideration to the question of remedy and made a finding that reinstatement was appropriate. Contrary to the Appellant’s submission we cannot discern any errors of fact in the Commissioner arriving at this conclusion such that it would be in the public interest to grant permission to appeal.

[47] In relation to ground 2 concerning the alleged errors of law, the Commissioner was entitled to admit Constable Feuerstein’s report as she did and there was no error of law in the Commissioner doing so. It is also apparent from the Decision that the report itself was not central to the Commissioner’s Decision, and was merely an additional point of comparison when it was reasonably clear the Commissioner made findings favouring the Respondent’s credibility on key factual contests over the Appellant’s witness evidence.

[48] With respect to ground 4, we do not agree that the Commissioner acted on the wrong principles and against the weight of evidence that was before her because the Commissioner did not find that the Respondent’s conduct on 6 December 2017 was a valid reason for dismissal. We note that this was not argued before the Commissioner at first instance, and that the Appellant’s case at first instance was run on the basis that the Respondent was dismissed because of events that transpired in the course of the meeting on 8 December 2017; not because of the events on 6 December 2017. Ms McKenzie’s letter dated 11 December 2017 (set out at [9] of this decision) expressly indicates this, demonstrating that the Respondent’s actions on 6 December 2017 “at most merited a written warning”. In those circumstances, it would not be in the public interest to grant permission to appeal so as to allow the Appellant to run a new case that it could have, but did not run at first instance.

[49] Having considered the matters above, we are satisfied that the basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Respondent’s unfair dismissal application. The correct legal principles appear to have been applied and no arguable case of appealable error is evident. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

•  There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  The appeal raises issues of importance and/or general application;

•  The decision at first instance manifests an injustice, or the result is counter intuitive; or

•  The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[50] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal.

[51] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr P King, of Counsel, instructed by Mr L Havenstein for the Appellant

Mr M Gibian, of Counsel, instructed by Mr G Webb for the Respondent

Hearing details:

2018,

Sydney:

August 8

Printed by authority of the Commonwealth Government Printer

<PR620309>

 1   Paul Cahill v The Entrance Red Bus Services Pty Ltd [2018] FWC 1812.

 2   Decision at [31] - [34].

 3   PR608141.

 4   Decision at [3] – [4].

 5   Decision at [4].

 6   Ibid.

 7   Ibid.

 8   Ibid.

 9   Decision at [5].

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Decision at [6].

 14   Ibid.

 15   Decision at [7].

 16   Decision at [10].

 17   Decision at [11].

 18   Decision at [25].

 19   Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2013] FWCFB 4960.

 20   Atkins v National Australia (1994) 34 NSWLR 155.

 21   ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association [2017] HCA 53.

 22   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.

 23   Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78.

 24   Ibid at [43]

 25   O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 78, 207 IR 177 at [44] – [46] .

 26   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

 27   Ibid at [27].

 28   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].

 29   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A 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 and others (2011) 192 78, 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, (2014) 241 IR 177 at [28].