[2018] FWCFB 5967  Note: Refer to the Federal Court decision of 15 August 2019 for the result of this matter.
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.604—Appeal of decision

Bernard Mwango
v
WesTrac Pty Ltd
(C2018/3440)

VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMPSON

SYDNEY, 27 SEPTEMBER 2018

Appeal against decision ([2018] FWC 3135) of Commissioner Saunders at Newcastle on 1 June 2018 in matter number U2017/10323.

[1] Mr Bernard Mwango (Appellant) was dismissed from his employment as a Laboratory Technician with WesTrac Pty Ltd (Respondent) on misconduct grounds following an incident that took place on 17 August 2017 involving another Laboratory Technician, Mr Matthew Crotty. Mr David Lai, the supervisor for the Appellant and Mr Crotty at the time, witnessed part of the incident. Pending an investigation into the incident, the Appellant was suspended from his employment with the Respondent on 21 August 2017. On 7 September 2017, the Appellant was dismissed and was paid four weeks’ wages in lieu of notice.

[2] On 22 September 2017, the Appellant lodged an unfair dismissal application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act). Having found that there was no binding settlement agreement reached between the parties in a settlement discussion which took place on 16 October 2017; 1 Commissioner Saunders proceeded to hear the matter and determined that the Appellant’s dismissal was not harsh, unjust or unreasonable.2 Accordingly, on 1 June 2018, the Appellant’s unfair dismissal application was dismissed.

[3] On 22 June 2018, the Appellant lodged an appeal against Commissioner Saunders’ Decision, and on 17 September 2018 we heard the parties on permission to appeal. In the hearing, the Appellant appeared on his own behalf and Mr Rogan McMahon, solicitor of Australian Industry Group, appeared for the Respondent.

The appeal

[4] In the Appellant’s Notice of Appeal, it was submitted that his application for an unfair dismissal remedy was dismissed based on “fake” and “forged” statements, that not all evidence provided to the Commission was considered, and that the Respondent had allegedly “lied” in the proceedings at first instance.

[5] In the Appellant’s submissions filed on 10 September 2018, the Appellant contended that the Commissioner fell into jurisdictional error because the Decision was allegedly founded upon witness evidence which was not credible, incorrect facts, and bias and discrimination. In support of these contentions, the Appellant attached an extensive amount of documentary materials which attempted to, inter alia, demonstrate;

  that there was a number of inconsistencies, falsified statements, and forged documents in the Respondent’s evidence at first instance;

  that the statements submitted by the Respondent did not comply with company policy as they were typed, unsigned, unwitnessed, dated incorrectly, and not completed prior to the end of shift;

  that no statement or correspondence was obtained from the Appellant prior to the first warning being issued, that he had not been requested to make a statement after the 17 August 2017 incident (whereas Mr Lai and Mr Crotty was), that no response was received in relation to his appeal of the first warning, and that all the Respondent’s witnesses were allowed to review the Appellant’s statement but he was not allowed to review theirs’.

[6] The Appellant also attached a paper titled “Challenging Adverse Factual and Credibility findings through Judicial Review” that was presented at the Law Council of Australia’s Immigration Law Conference in March 2016.

Permission to appeal principles

[7] An appeal under s.604 of the 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. 3  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[8] Section 400 of the Act applies to this appeal. It 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.”

[9] 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 of the Act as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 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.” 6

[10] 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. 7

Consideration

[11] The Commissioner went into considerable detail in weighing up the evidence before him in determining the matters set out under s.387 of the Act.

[12] In finding that there was a valid reason for the dismissal under s.387(a) of the Act, the Commissioner at [36] of the Decision determined that he preferred the evidence of Mr Crotty and relied on the following:

“[24] According to Mr Crotty, he “specifically and purposefully” referred to the initial results as being “shit” as opposed to [the Appellant] personally or [the Appellant’s] work.

[25] Mr Crotty gave evidence that after he said the word “shit”, [the Appellant] became extremely angry and aggressive. Mr Crotty gave evidence that [the Appellant] was shaking, his eyes were bulging and wide, and his voice changed dramatically. Mr Crotty gave evidence that the conversation continued in words to the following effect:

[The Appellant]: “You are saying that everything I do here is shit.”

Mr Crotty: “I was referring to the nitrate result. This is not a personal attack on you.”

[26] Mr Crotty gave evidence that [the Appellant] then said “you better be Caref” in a raised and aggressive voice whilst shaking, bulging his eyes and pointing directly at him. Mr Crotty alleges that he then asked [the Appellant] what he meant and [the Appellant] responded by repeating the words “you better be Caref”. Mr Crotty gave evidence that when [the Appellant] said “you better be Caref” he understood the words to mean “you better be careful” and that he felt physically threatened because of [the Appellant’s] raised voice and body language.

[27] Mr Crotty gave evidence that [the Appellant] then shouted words to the effect of “you can expect payback 150 percent” whilst shaking and gesturing towards him with an outstretched hand. Mr Crotty gave evidence that at that point he formed the view that [the Appellant] was going to punch him, so he walked five or six metres away from [the Appellant] but remained in the Laboratory.”

[13] The Commissioner stated that he preferred Mr Crotty’s evidence (extracted above) for the following reasons:

a) There was a “high level of consistency” between Mr Crotty’s statements, and that despite being shaken from his interactions with the Appellant on 17 August 2017, Mr Crotty answered the questions put to him in cross examination by the Appellant in a “direct and responsive manner” and in a “measured way”. 8

b) Mr Crotty’s evidence was “broadly consistent with evidence given by Mr Lai”, whom the Commissioner accepted as a witness who witnessed much of the events which unfolded on 17 August 2017. The Commissioner provided numerous examples of the consistencies between Mr Crotty’s and Mr Lai’s evidence, as well as dealt with any “minor inconsistencies” between their evidence. 9

c) He did not accept the Appellant’s contention that Mr Crotty and Mr Lai “colluded” in the preparation of their evidence, because Mr Crotty and Mr Lai had different accounts of the details of the 17 August 2017 incident. For example, Mr Crotty recalled the Appellant saying words to the effect of “you can expect payback 150 percent”, whereas Mr Lai’s recollection of that part of the conversation was that the Appellant said words to the effect “I will repay back 100, 1000 time worse to you”. 10

d) The Appellant’s account of the 17 August 2017 incident provided in his statement to the Respondent sent on 29 August 2017, his statement in chief served on 12 February 2018 and his statement in reply served on 12 March 2018, contained many inconsistencies. Again, the Commissioner provided numerous examples of these inconsistencies. The Commissioner noted that while “some allowance” must be made for the fact that the Appellant was self-represented throughout the material parts of these proceedings, the inconsistencies in his evidence, as well as his refusal to accept the inconsistencies when brought to his attention, negatively affected his credibility as a witness. 11

[14] In determining that the Appellant was notified of the reasons for his dismissal on multiple occasions and was given an opportunity to respond under ss.387(b) and (c) of the Act, 12 the Commissioner accepted the evidence of Ms Fletcher (HR Advisor) and Mr Ward (Operations Support Manager) and made the following findings:

  The specifics of the 17 August 2017 incident and the opportunity to respond to that incident had been orally conveyed to the Appellant in a meeting on 23 August 2017 (despite such matters being omitted in a Stand Down Letter that was issued following that meeting). 13

  The Appellant had been given two opportunities to respond to the allegations and only on the third occasion (that is on 29 August 2017) did the Appellant provide his account of the events which occurred on 17 August 2017. 14

  On 7 September 2017, the Appellant attended a final meeting in which the Respondent provided the Appellant with the outcome of the investigation and a further opportunity to respond to those allegations. 15

[15] In determining that there was no refusal by the Respondent to allow the Appellant to have a support person, the Commissioner accepted the evidence of Mr Ward and Mr Fletcher and rejected the Appellant’s evidence that he was “given no choice by Mr Ward but to continue with the 7 September 2017 meeting when he became aware that his support person could not attend the meeting”. 16 The Commissioner found that the Appellant was advised in the Stand Down Letter that he could bring a support person to future meetings and that the Appellant had advised that he was happy to proceed with the 7 September 2017 meeting without a support person.17

[16] The Commissioner considered that the matters in s.387(e)–(g) of the Act was not relevant, 18 and in respect of any other matters that the Commissioner considered to be relevant under s.387(h), the following findings were made:

  The Appellant’s length of service was of a reasonable period of time that is from 26 November 2012 to 7 September 2017. 19

  While the Respondent did refuse to provide the Appellant the statements of Mr Crotty and Mr Lai, the Appellant was not denied procedural fairness. 20

  The decision and direction to stand the Appellant down before he gave his version of events was reasonable and fair, that Ms Fletcher had confirmed and advised the Appellant of the allegations in the 7 September 2018 meeting, and that the Appellant was afforded procedural fairness in connection with his dismissal. 21

  The Appellant was treated fairly and consistently with other employees. 22

  Mr Crotty had used the word “shit” in reference to the initial laboratory results rather than the Appellant personally. Even if the Appellant felt provoked by the used of this word, his conduct could not be excused. 23

  The Appellant’s dismissal has had significant negative consequences on his personal and economic situation, and that the Appellant has made efforts to find alternative employment but has been unsuccessful. 24

[17] The Commissioner concluded that the Appellant had engaged in serious conduct on 17 August 2017 when he acted in a threatening and aggressive way towards a co-worker. 25 The Appellant thereby breached the Respondent’s Code of Conduct and Personal Behaviour Procedure, which was found to be a valid reason for dismissal.26 In those circumstances, the Commissioner was satisfied that the Appellant’s dismissal was not disproportionate to the gravity of the misconduct in which he engaged on 17 August 2017, nor was it harsh, unjust or unreasonable. 27

[18] In this appeal, it appears that the Appellant seeks to persuade us that the Commissioner should have considered and dealt with the evidence that was before him in a different way, and that he should have reached a different conclusion on the facts. It is noteworthy to mention that an appeal is not the place to re-agitate the matters have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 28 The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.29

[19] Having considered the Appellant’s submissions and all the materials filed by the parties on appeal, we are not satisfied that there is an arguable case of error. We do not consider that the the Decision was founded upon witness evidence which was “fake” or not credible, incorrect facts, or on bias and discrimination. It is clear from paragraphs [11]-[17] above, that the Commissioner applied the correct legal principles, considered and dealt with all the evidence (as well as the inconsistencies in evidence) in extensive detail, made findings of fact based on the evidence he considered to be credible, and took into account the procedural fairness, bias and discrimination issues which were raised by the Appellant at first instance. The basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application, and we are not satisfied for the purposes of determining whether this appeal attracts the public interest 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

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

[21] Permission to appeal is refused.

al of the Fair Work Commission with member's signature

VICE PRESIDENT

Appearances:

Mr B. Mwango, Appellant, on his own behalf

Mr R. McMahon, solicitor (Australian Industry Group), for the Respondent.

Hearing details:

2018

Sydney

September 17

Printed by authority of the Commonwealth Government Printer

<PR700768>

 1   Mwango v WesTrac Pty Ltd [2018] FWC 302.

2 [2018] FWC 1638 (Decision).

 3   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   (2011) 192 FCR 78; (2011) 207 IR 177 at [43].

 5   O’Sullivan v Farrer and another (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 FCR 78; (2011) 207 IR 177 at [44]-[46].

 6   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].

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

 8   Decision at [36](a).

 9   Decision at [36](b).

 10   Decision at [36](c).

 11   Decision at [36](d).

 12   Decision at [46].

 13   Decision at [42].

 14   Decision at [42]-[44].

 15   Decision at [45].

 16   Decision at [49].

 17   Ibid.

 18   Decision at [50]-[53].

 19   Decision at [57].

 20   Decision at [66]-[67].

 21   Decision at [69].

 22   Decision at [73].

 23   Decision at [74]-[79].

 24   Decision at [81].

 25   Decision at [83].

 26   Ibid.

 27   Decision at [82].

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

 29   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 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].