| [2018] FWCFB 4166 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Adam Miller
v
Urban Pedaler T/A Urban Pedaler
(C2018/1829)
VICE PRESIDENT CATANZARITI |
SYDNEY, 20 JULY 2018 |
Appeal against decision ([2018] FWC 1638) of Commissioner Bissett at Melbourne on 22 March 2018 in matter number (U2017/12611).
[1] Mr Adam Miller (Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Bissett issued on 22 March 2018 1 (the Decision). In that Decision, the Commissioner concluded that Urban Pedaler (Respondent) had complied with the Small Business Fair Dismissal Code (Code) in dismissing the Appellant and therefore the dismissal was not unfair.
[2] The matter was listed for a permission to appeal hearing on 2 May 2018. In that hearing we granted permission to appeal and a subsequent appeal hearing was listed on 5 June 2018.
[3] For the reasons which follow, we have determined to uphold the appeal and to quash the Decision of Commissioner Bissett.
[4] The Appellant was employed as a Workshop Manager with the Respondent from 5 September 2016 to 22 November 2017. At the time of dismissal, the Respondent was a small business for the purposes of the Code.
[5] In the hearing before the Commissioner, the Appellant and the Respondent gave evidence on their own behalf. Mr Kristiann Griffin also gave evidence for the Appellant, but the Commissioner did not give weight to his evidence because she considered it “generally speculative and hence of little value in proving factual matters”. 2
[6] Having set out the evidence, the Commissioner determined that the Appellant had not been summarily dismissed for the purposes of the Code. The Commissioner found that the letter of termination dated 22 November 2017 referred only to performance related issues which had been raised with the Respondent in an earlier letter dated 16 November 2017. 3 Accordingly, the Commissioner considered that the dismissal was not a summary dismissal, and to the extent that the Code applied, the Commissioner made the following findings in respect of compliance with the Code:
• In addition to the 16 November 2017 letter, the Respondent had sent a series of earlier emails concerning the Appellant’s performance issues. The breadth of these performance issues indicated that the Respondent had a sound, defensible and therefore valid reason for dismissing the Appellant from his employment. 4
• “Whilst the issues raised with [the Appellant] over his period of employment are constant, [the Respondent] did not, until the letter of 16 November 2017, unequivocally advise the Appellant that his employment was at risk.” 5
• The Appellant was “given an opportunity to respond to the reasons set out in the letter of 16 November 2018 [sic] both in writing and in person on 20 November 2017. In doing so he was well aware of the concerns with respect to his performance might lead to his dismissal.” 6
• “[I]n setting the meeting for 20 November 2017, [the Respondent] did invite [the Appellant] to bring a support person to the meeting. Whilst [the Appellant] complains that he could not get a support person for the time of the meeting he did not ask that the meeting time be changed in order to facilitate the attendance of a support person.” 7
[7] Having made those findings, the Commissioner determined that the Respondent had complied with the Code, and therefore the dismissal of the Appellant was not unfair.
[8] At the heart of the appeal is whether the Commissioner erred in correctly applying s.396 of the Fair Work Act 2009 (Cth) (Act) and more specifically the Code. In relation to that matter, we set out the parties’ submissions as follows.
Appellant’s submissions
[9] The Appellant contended that he was not advised by the Respondent until the letter dated 16 November 2017 that his job was at risk. His employment was suspended, and he was then dismissed on 22 November 2017. The termination which followed the 16 November 2017 letter did not give him any chance to show physical improvement.
Respondent’s submissions
[10] The Respondent submitted that it made every attempt to support the Appellant and to encourage improvement, being careful not to threaten his job at every turn or create a negative working environment. He had several formal and informal performance reviews, plenty of opportunity to improve and was very aware that he was on notice and at risk of losing his job when he was suspended on 16 November 2017. The conversations the Respondent had with the Appellant over the months leading up to his suspension and ultimate dismissal made it very clear that he was not meeting expectations and that his employment was at risk.
[11] The Respondent submitted that the Appellant was advised in writing that his job was at risk of being terminated in the 16 November 2017 letter. The Appellant was asked to take his time to read and respond, and was encouraged to consult others to be sure of his response. The Appellant did neither. The Appellant responded negatively, blaming others for his failures and took a threatening approach to the meeting, making it clear that he did not plan on improving his performance in the areas where the Respondent required. The Respondent carefully considered this response and decided to terminate his position. The Appellant was not given a physical opportunity to show improvement because his attitude showed no intention of improving.
[12] An appeal under s.604 of the Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act states:
“Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”
[13] This appeal is one to which s.400 of the Act applies. It provides:
“400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under [Part 3-2, dealing with unfair dismissal] 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.”
[14] In Coal & Allied Mining Services Pty Ltd v Lawler and others 9 the Federal Court characterised the test under s.400 as “stringent”.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
[15] Alternately, other grounds on which permission to appeal may be granted include the decision being attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused. It will rarely, if ever, be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, as an appeal cannot succeed in the absence of such error. However, the mere identification of some error in the decision under appeal may not by itself constitute a sufficient basis for the grant of permission to appeal.
[16] In determining whether permission to appeal should be granted, we have reviewed and considered all material filed by the parties including all submissions and relevant authorities.
[17] We find that permission to appeal should be granted in this matter. We are of the view that the appeal raises important questions concerning whether the Commissioner erred in correctly applying s.396 of the Act and more specifically the Code. We consider these to be important matters, and therefore, the dispute arising in this case is a matter of public interest. It is on this basis that permission to appeal is granted.
[18] Section 396 of the Act provides that:
“Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.” (Emphasis added).
[19] In respect of dismissals other than summary dismissals, the Code states that:
“Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.” (Emphasis added).
[20] In the Decision, the Commissioner considered whether or not the Appellant was advised that he risked being dismissed if there was no improvement in his performance. The Commissioner found that:
“[60] Whilst the issues raised with [the Appellant] over his period of employment are constant, [the Respondent] did not, until the letter of 16 November 2017, unequivocally advise [the Appellant] that his employment was at risk. It would have been prudent for [the Respondent] to have done so clearly and precisely and much earlier than 16 November 2017. Had [the Respondent] done so there could have been no basis for complaint of [the Appellant] that he was not aware of the performance standards required of him.
…
[68] In the context of the case that has been put to me, and accepting the relevant observations in Grigonis, I am satisfied that [the Appellant] had performance issues raised with him in writing, was given warnings of poor performance and should reasonably have understood the implications of a failure to perform at the standards required. He was, through the consistency of warnings, given an opportunity to show improvement.” (Emphasis added).
[21] In our view, we consider that the Commissioner fell into error. In accepting that the Respondent had not until the 16 November 2017 letter, unequivocally advised the Appellant that his employment was at risk, the Commissioner could not have properly determined that the Code had been complied with. Whilst the Appellant was clearly aware of the performance issues raised by the Respondent, he was not in fact told that his employment was at risk if he did not show improvement, prior to receiving the 16 November 2017 letter. Effectively, this meant that the Appellant only had 4 days to demonstrate improvements before the final meeting which took place on 20 November 2017. In our view, when work was not performed during this time by the Appellant, this did not provide the Appellant with a reasonable chance to rectify the performance issues raised in the 16 November 2017 letter.
[22] Further, we find that the Commissioner fell into error in concluding that the Appellant should have reasonably understood the implications of a failure to perform, given the circumstances leading up to the 16 November 2017 letter. The Code does not contemplate whether or not an employee should or should not have understood their employment to be at risk given the circumstances surrounding the dismissal. Rather, the Code expressly provides that an employee must be warned either verbally or preferably in writing that they are at risk of being dismissed if improvement is not shown. There was no evidence before the Commissioner which indicates that the Respondent had expressly advised, prior to the 16 November 2017 letter, that the Appellant was at risk of dismissal. We are therefore satisfied that it was not open to the Commissioner to find that the Code had been complied with.
[23] Accordingly, we have determined to quash the Commissioner’s Decision and for the Appellant’s unfair dismissal application to be reheard. We note that in the appeal proceedings before us, the Respondent raised several matters which do not appear to have been before the Commissioner at first instance. More specifically, the Respondent has asserted that there were instances prior to the 16 November 2017 letter, in which the Appellant was expressly advised that he was at risk of dismissal if his performance did not improve. These are matters for the Commissioner to consider in the rehearing of the Appellant’s unfair dismissal application.
[24] Permission to appeal is granted.
[25] The appeal is upheld.
[26] The Decision ([2018] FWC 1638) is quashed.
[27] The matter (U2017/12611) is referred to Commissioner Bissett for rehearing.
VICE PRESIDENT
Appearances:
Mr A. Miller, on his own behalf, Appellant.
Mr G. Sullens, on behalf of the Respondent.
Hearing details:
2018
Sydney with video-link to Melbourne
5 June.
Printed by authority of the Commonwealth Government Printer
<PR609007>
2 Decision at [46].
3 Decision at [27] and [31].
4 Decision at [49].
5 Decision at [60].
6 Decision at [69].
7 Decision at [70].
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see 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.
9 (2011) 192 FCR 78.
10 Ibid at [43].
11 O’Sullivan v Farrer (1989) 168 CLR 210, 216-7 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch [2011] HCA 4 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 [44]-[46].
12 [2010] FWAFB 5343 [27].