DECISION

Fair Work Act 2009
s.604—Appeal of decision

Cordina Chicken Farms Pty Ltd
v
Dharun Prasad
(C2019/6824)

Appeal against decision [2019] FWC 7075 of Commissioner Cambridge at Sydney on 18 October 2019 in matter number U2019/2419.

[1] Cordina Chicken Farms Pty Ltd (Cordina Chicken) has applied, pursuant to s.604 of the Fair Work Act 2009 (Cth) (Act), for permission to appeal against a decision of Commissioner Cambridge issued on 18 October 2019 (Decision). 1

[2] The Commissioner determined that Mr Dharun Prasad had been unfairly dismissed. He issued an Order 2 that Mr Prasad be reinstated to the position in which he was employed immediately before the dismissal; that his continuity of employment be maintained; and that Cordina Chicken pay him an amount representing remuneration lost or likely to have been lost because of the dismissal.

[3] Cordina Chicken sought a stay of the Decision and the Order pending the hearing and determination of the appeal. The stay application was granted and an order made on 15 November 2019. 3

[4] We have decided not to grant permission to appeal. Our reasons follow.

Background

[5] Mr Prasad was employed by Cordina Chicken for 25.5 years. Immediately before his dismissal, Mr Prasad performed the role of Assistant Production Manager, which involved direct responsibility for between 25 and 30 employees at the Girraween plant in Sydney.

[6] A near miss safety incident occurred at the Girraween plant sometime after 10:30am on 17 January 2019. It was not in dispute that Mr Prasad was not at the workplace at the time the safety incident occurred. Mr Prasad’s shifts commenced at or about 2:00am and he typically left work at around 10:00am to 10:30am.

[7] As was Mr Prasad’s practice, he telephoned the worksite after he returned home on 17 January 2019 and spoke with the Senior Supervisor, Mr Karwan Ali. Mr Prasad gave evidence that Mr Ali told him during this call that “one of the modules had fallen” but that “[t]he supervisor did not tell me what had happened in any detail. He said that he was going to go and have a look at the incident.” 4 The evidence does not disclose that Mr Prasad and Mr Ali spoke again on 17 January 2019.

[8] Mr Ali was not called by Cordina Chicken to give evidence in the proceedings before the Commissioner. More is said about this below.

[9] Mr Prasad attended for work at 2:00am on 18 January 2019. Mr Prasad gave evidence that at about 5:00am, when Mr Ali commenced his shift, Mr Ali told him that “everything was in order and that Daniel Cordina and Allen Meiring (the head of manufacturing) knew about the incident and were investigating it.” 5

[10] It was not in dispute that Mr Prasad did not complete a documentary report of the safety incident or investigate it. The only action taken by Mr Prasad was, on 18 January 2019, to speak to the forklift driver involved in the safety incident and verbally warn him that his failure to operate safely was unacceptable.  6

[11] On 25 January 2019, Mr Prasad was provided with a letter containing six allegations said to have involved serious failures of Mr Prasad in discharging the responsibilities associated with his position. This included the safety incident, the content and tenor of an email sent by Mr Prasad on 24 January 2019 and other matters. He was suspended from duty and attended a disciplinary meeting on 30 January 2019 in which he provided verbal responses to the six allegations.

[12] In a letter dated 1 February 2019, the Group Human Resources Manager, Mr Ajnesh Chandra, advised Mr Prasad that five of the six allegations were substantiated and he was invited to show cause as to why his employment should not be terminated at a further meeting held on 4 February 2019.

[13] Mr Prasad was dismissed on 5 February 2019.

The Decision

[14] In the Decision, the Commissioner set out the factual background 7 before summarising the submissions advanced on behalf of Mr Prasad8 and the case for Cordina Chicken.9

[15] The Commissioner then considered whether there was a valid reason for dismissal for not reporting the safety incident, noting that this was the primary reason relied upon by Cordina Chicken for dismissing Mr Prasad, with the other allegations against Mr Prasad not explored in any detail at the hearing. 10

[16] At [38] to [39] of the Decision, the Commissioner stated:

“There was no dispute that the applicant did not report or further investigate the safety incident. However, the applicant was not a witness to the safety incident as it occurred when he was at home. The incident was recounted to him by Mr Ali, who, together with the forklift driver, were presumably the only persons with first-hand knowledge of the incident. The uncontested evidence provided by the applicant was that Mr Ali told the applicant that the safety incident had been reported, and that senior managers had commenced an investigation. In such circumstances, it would seem to be understandable that the applicant would not complete what would be another report of the incident, given by himself, a person who had not witnessed the event, nor would it seem necessary to conduct another investigation in addition to that which was apparently being undertaken by Mr Cordina and Mr Meiring.

It must be readily acknowledged that there may have been a reasonable requirement for the applicant to, in all instances, provide a report and conduct an investigation into all serious safety incidents, even if such report and investigation might be additional to reports and investigations made by others. However, any such requirement upon the applicant was not discernible from either; the Cordina Workplace Health, Safety and Environment Policy, at clause 4.7 or elsewhere; or the “INCIDENT REPORTS” communication dated 31 May 2018 from Mr Meiring.”

[17] At [40] to [42] of the Decision, the Commissioner made an adverse credit finding against Mr Chandra, who made the decision to dismiss Mr Prasad:

“Regrettably, this evidence and the evidence provided more generally by Mr Chandra was unconvincing and largely unsatisfactory. There was clearly a logical, plausible and reasonable explanation for why the applicant did not complete a formal report or further investigate the safety incident. There was no evidence to establish a proper basis for Mr Chandra to reject this explanation. In simple terms, whatever the applicant may have done or not done in the past does not represent a sound or defensible basis upon which to determine the issues that were under examination at that time.

Consequently, to the extent that the dismissal of the applicant was based upon a finding that he had failed to provide any valid reason for not reporting or investigating the safety incident, such a finding has no basis in fact. The applicant did provide a valid reason for not reporting or further investigating the safety incident. The spurious basis upon which Mr Chandra rejected the applicant’s explanation for not reporting or further investigating the safety incident has meant that the primary reason for the dismissal of the applicant was not sound, well-founded or defensible.”

[18] At [43] to [45] of the Decision, the Commissioner reached his conclusion as to valid reason:

“A careful and thorough examination of all the evidence, particularly that involving the development and prosecution of the six allegations that Mr Chandra included in the disciplinary process, has demonstrated an entirely inadequate foundation upon which to dismiss the applicant. The totality of the evidence has resulted in an unfortunate presentation that reveals that the allegations made against the applicant were largely exaggerated and artificially constructed in a fashion such that they might be accurately described as “trumped-up charges”.

The findings that Mr Chandra made in which he substantiated five of the six allegations, might, if they had been properly established, amount to some level of unsatisfactory performance. However, Mr Chandra erroneously elevated the unsatisfactory performance issues, even if taken at their highest, to constitute what he described as a grave breach of employment obligations that was incompatible with a continuation of the employment. This finding was entirely disproportionate to the level of unsatisfactory performance that could be contemplated even if the allegations had been properly substantiated.

Consequently, on even the most generous contemplation of the unsatisfactory performance purportedly established by the employer, dismissal would represent an entirely disproportionate consequence. Therefore, upon a hypothetical adoption of the employer’s reasons for dismissal they would not represent sound, well-founded and defensible reasons for dismissal.”

[19] The Commissioner proceeded to consider and make findings in relation to the other matters he was required to take into account under s.387(b) to (h) of the Act at [46] to [56] of the Decision and concluded at [57] to [61]:

“In this case, the applicant was dismissed for unsatisfactory performance. The primary reason for dismissal involved the applicant’s failure to formally report or further investigate a serious near miss safety incident. The applicant admitted that he had not reported or further investigated the safety incident. However, he provided an understandable and reasonable explanation for his action in not reporting or investigating the safety incident, as he had been told that it had already been reported, and that the incident was under investigation by more senior managers. The employer speciously disregarded the explanation provided by the applicant, and this rejection has meant that the reason for dismissal was not sound, well-founded or defensible.

The employer conducted an investigation into the applicant’s conduct which involved the development and prosecution of largely exaggerated and artificial allegations. The employer found five of the six allegations to be substantiated and it erroneously concluded that the applicant had committed a grave breach of his employment obligations. Upon careful analysis of all the evidence, the true nature and severity of any unsatisfactory performance could only have warranted disciplinary action involving some second written warning, and the dismissal of the applicant was an entirely disproportionate response.

Consequently, the dismissal of the applicant was without valid reason related to his capacity or conduct. Further, the procedure that the employer adopted when it constructed and prosecuted the unsound allegations that were made against the applicant was unjust and unreasonable. The dismissal of the applicant also represented inconsistent disciplinary treatment when contrasted with the absence of any disciplinary measures taken in respect of other individuals who also had a responsibility to report the safety incident.

The employer failed to properly consider alternative disciplinary action of lesser severity than dismissal. The hasty and ill-conceived determination to dismiss a long serving employee who had a generally commendable work history and who was 57 years of age was manifestly harsh.

Therefore, the dismissal of the applicant must be held to have been harsh, unreasonable and unjust. The applicant is entitled to remedy for his unfair dismissal.”

[20] The issue of remedy is dealt with at [62] to [68] of the Decision. The Commissioner determined that an order reinstating Mr Prasad was appropriate in all of the circumstances.

Appeal grounds and submissions

[21] Cordina Chicken’s appeal grounds and submissions concerning permission to appeal may be summarised as follows:

(1) The Commissioner erred in finding there was no valid reason for the termination.

(2) The Commissioner erred in ordering reinstatement, particularly given Mr Prasad’s failure to report or investigate the safety incident.

(3) The Commissioner erred by concluding that there was uncontested evidence given by Mr Prasad, being that Mr Ali told Mr Prasad that the safety incident had been reported and that senior managers had commenced an investigation.

(4) The Commissioner erred by making a material credit finding that Mr Chandra’s evidence was unconvincing and largely unsatisfactory.

(5) The Commissioner erred in finding that the other allegations relied upon to dismiss Mr Prasad supported a finding that the dismissal was unfair.

(6) The Commissioner erred in finding that the dismissal was unfair as other employees involved in the safety incident had not been dismissed.

[22] Cordina Chicken submitted in its notice of appeal that permission to appeal should be granted. It said that the appeal raises issues of general importance concerning the nature and extent of the duties and obligations of a senior production manager regarding a serious safety incident, and the impact of tenure on such obligations. Further, it contends that the Decision manifests an injustice as Cordina Chicken is required to reinstate an employee in whom it has lost trust. Finally, Cordina Chicken says that the Decision appears disharmonious with other Commission decisions.

[23] Mr Prasad submitted that permission to appeal should not be granted because Cordina Chicken has not properly addressed, nor satisfied, the statutory test in s.400 of the Act. Mr Prasad submitted that any injustice arising from a reinstatement order on account of a loss of trust and confidence does not satisfy the test in s.400 of the Act and the alleged disharmony with other decisions is obscure and unexplained. Mr Prasad contends that Cordina Chicken failed to lead evidence or evidentially challenge the case put by Mr Prasad at first instance and ought not be allowed to do so on appeal.

Consideration

[24] 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.¹¹ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[25] This appeal is one to which s.400 of the 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.

[26] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 12 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.¹³ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 14

[27] 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.¹⁵ 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.¹⁶

[28] 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. 17 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[29] We are not persuaded that Cordina Chicken has made out an arguable case that the Commissioner erred in the manner contended. It was not in dispute that Mr Prasad had finished his shift when the safety incident occurred. Mr Prasad gave evidence that when offsite, he leaves all responsibilities to the two senior supervisors on site, one of whom was Mr Ali. 18 This evidence was unchallenged. Further, Mr Prasad said that:

(1) Mr Ali told him by telephone on 17 January 2019 that he was going to go and have a look at the incident (and did not subsequently apprise Mr Prasad of the circumstances of the incident upon doing so); 19 and

(2) Mr Ali told him on 18 January 2019 when Mr Prasad next presented for work that the safety incident had been reported; that Mr Meiring and Mr Cordina investigated the incident the day prior; and they had CCTV footage of the incident. 20

[30] In the circumstances described, Mr Prasad considered that there was no need for him to report the safety incident as an investigation was already underway before he arrived at work on 18 January 2019. 21 Mr Prasad saw that people were being called into the senior production manager’s office and being interviewed.22 The Commissioner accepted Mr Prasad’s evidence and this informed his finding that “there was clearly a logical, plausible and reasonable explanation for why the applicant did not complete a formal report or further investigate the safety incident.”23

[31] Cordina Chicken challenges the Commissioner’s finding that there was no valid reason for the dismissal. 24 It contended before us that Mr Prasad’s notification obligations under the Work Health & Safety Act 2011 (NSW) were non-delegable and he failed to adhere to them. Such obligations are contained within Cordina Chicken’s Workplace Health, Safety and Environment Policy (policy).25 It says that the Commissioner’s failure at [39] of the Decision to recognise that Mr Prasad did not fulfil his obligations under clauses 3, 3.3, 4.3 and 4.7 of the policy or under the ‘incident reports notification letter’ provided to managers and supervisors on 31 May 2018,26 gives rise to appealable error. Notwithstanding this, Cordina Chicken conceded that its argument as to the non-delegable nature of Mr Prasad’s duties was not expressly raised in the proceedings at first instance.

[32] The issue before the Commissioner was whether Mr Prasad was required to personally notify and investigate the safety incident when it had already been notified by others while Mr Prasad was off duty, and an investigation commenced. The Commissioner concluded at [39] of the Decision that any requirement to notify and investigate “even if such report and investigation might be additional to reports and investigations made by others” was not discernible from clause 4.7 of the policy “or elsewhere” (we take this to include clauses 3, 3.3 and 4.3 of the policy). Nor is such a duty imposed in the notification letter. We concur with the Commissioner’s conclusion. There was no obligation on Mr Prasad under the policy or the notification letter to personally notify or commence an investigation in circumstances where such steps had already occurred. To this end, we do not consider that the Commissioner’s conclusion at [39] conflicts with the statement at [38] of the Decision as contended.

[33] Cordina Chicken submits that the Commissioner erred by concluding that Mr Prasad’s evidence of his conversation with Mr Ali was uncontested. 27 It says that it challenged this evidence. However, a review of the matters put to Mr Prasad during cross examination in the proceedings does not bear this out. There does not appear to be any evidentiary challenge during cross examination about Mr Prasad’s evidence of his conversation with Mr Ali.28

[34] Furthermore, Cordina Chicken submits that there was a challenge to Mr Prasad’s evidence by Mr Chandra. In this respect, Cordina Chicken also takes issue with the fact that the Commissioner made a material credit finding that Mr Chandra’s evidence was unconvincing and largely unsatisfactory. 29

[35] We accept that there is an inconsistency in the evidence given by Mr Chandra sufficient to conclude that Mr Prasad’s evidence was not “uncontested” as found by the Commissioner at [38] of the Decision. 30 While we are of the view that the Commissioner’s characterisation of the evidence in this way was erroneous, we are not persuaded that the error was significant such that it would ground the grant of permission to appeal.

[36] Firstly, Cordina Chicken and its legal representatives decided not to call Mr Ali to give evidence of his exchanges with Mr Prasad. The evidence of Mr Chandra concerning what Mr Ali said to Mr Prasad was of limited probative value as against the direct evidence of Mr Prasad. We note that Cordina Chicken attempted to cure this evidentiary deficiency through the admission of fresh evidence in the proceedings before us. We declined to accept the material, being a statement of Mr Ali. We noted the concession, aptly made by Cordina Chicken, that the evidence could have been obtained with reasonable diligence for use in the proceedings at first instance. As observed in Curtis v Darwin City Council, 31 the appeal process is not an avenue for an unsuccessful party to seek to cure shortcomings in the way the case was run at first instance. In any event, we were not satisfied that the evidence was such that there was a high degree of probability that there would be a different decision.32

[37] Secondly, and in any case, the Commissioner found the evidence of Mr Chandra to be unconvincing and unsatisfactory. Such a conclusion was reasonably open to the Commissioner, having had the benefit of observing Mr Chandra give evidence in the proceeding. The basis for this conclusion was clearly stated and explicable. 33 No compelling reason to interfere with the Commissioner’s conclusion as to Mr Chandra’s credit has been established.34

[38] Cordina Chicken further submits that the Commissioner erred in his finding at [43] to [45] of the Decision concerning other allegations relied upon to dismiss Mr Prasad. 35 The Commissioner found that these matters supported a finding that the dismissal was unfair. We understand from oral submissions that the basis of this appeal ground is as follows; where there is conduct considered by an employer to constitute a safety breach, that must lead to a finding that there is a valid reason for the dismissal. In turn, that must lead to a conclusion that the dismissal was not harsh, unjust or unreasonable. We do not accept this submission. The Commission is required to determine whether there is ‘sound, defensible and well founded’36 reason for dismissal (including in the context of an alleged safety breach). Whether there is a valid reason for dismissal will turn on the facts, as it did in this case. The Commissioner properly turned his mind to the substantiated allegations and concluded that they were not ‘sound, well-founded and defensible’ reasons for dismissal.37 No appealable error is disclosed in the Commissioner’s approach.

[39] Cordina Chicken submits that the Commissioner erred in having regard to the circumstances of other employees involved in the safety incident who had not been dismissed. 38 The issue of differential treatment in comparable circumstances has long been a relevant consideration when determining unfairness.39 Cordina Chicken contends that in the present case there was no evidence of sufficient comparability in the circumstances of Mr Prasad, Mr Ali and the forklift driver. No submissions were made by Cordina Chicken as to why the notification obligations it relied upon did not also extend to Mr Ali (who, on Mr Chandra’s evidence, also did not report the safety incident). The Commissioner concluded at [55] of the Decision that all the responsibility for the reporting and investigation of the safety incident was levelled at Mr Prasad. The submissions advanced by Cordina Chicken fall short of explaining how the observations made by the Commissioner were not available on the evidence. We are not persuaded that this ground discloses appealable error.

[40] Finally, no appealable error is disclosed by Cordina Chicken’s contention that the Commissioner erred in ordering reinstatement in these circumstances. 40 Section 390(3) of the Act makes reinstatement the primary remedy for an unfair dismissal.41 The question of whether reinstatement is appropriate involves the exercise of discretion. Cordina Chicken said it relied upon its unchallenged evidence that it felt the trust in the employment relationship was no longer tenable. However, this evidence was limited to two references in Mr Chandra’s statement that Cordina Chicken had lost trust and confidence in Mr Prasad.42 Mere assertions of this kind do not constitute a sufficient basis for establishing that the relationship could not be re-established.

[41] As earlier stated, s.400(1) of the Act dictates that we must not grant permission to appeal unless we consider that it is in the public interest to do so. We are not persuaded that any of the matters raised by Cordina Chicken as justifying the grant of permission to appeal enliven the public interest. We are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust. The legal principles applied are not disharmonious with other authorities concerning s.387 of the Act.

[42] We are therefore not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is refused.

[43] It follows that the order made pursuant to the stay 43 is set aside.

DEPUTY PRESIDENT

Appearances:

D Stuart of Counsel for Cordina Chicken Farms Pty Ltd.

Mr I Latham of Counsel for the Respondent.

Hearing details:

Before the Full Bench

2019.

Melbourne – Adelaide – Sydney (by video link):

December 11.

Printed by authority of the Commonwealth Government Printer

<PR715534>

 1   [2019] FWC 7075

 2   PR713296

 3   PR714326

 4   Appeal Book p.56 at [38]

 5   Ibid at [39]

 6   Ibid at [40]

 7   Appeal Book pp.4 and 5 at [5] to [16]

 8   Appeal Book pp.6 and 7 at [17] to [25]

 9   Appeal Book pp.7 and 8 at [26] to [33]

 10   Appeal Book pp.9, 10 and 11 at [38] to [45]

11 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied vAIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 12   (2011) 192 FCR 78 at [43]

13 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 14   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

15 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

16 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] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

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

 18   Appeal Book p.26 at [114]

 19   Appeal Book p.56 at [38]

 20   Appeal Book at p.63 at [9]

 21   Appeal Book p.28 at [127]

 22   Appeal Book p.27 at [122]

 23   Appeal Book p.10 at [41]

 24   Appeal ground one

 25   Appeal Book p.75 at [3], p. 76 at [3.3], p.77 at [4.3] and p.78 at [4.7]

 26   Appeal Book p.65

 27   Appeal ground three

 28   See in particular Appeal Book p.27 at [121]-[123]

 29   Appeal ground four

 30   Appeal Book pp.43 at [305]-[307]

 31   Curtis v Darwin City Council [2012] FWAFB 8021 at [80]

 32   Akins v National Australia Bank [1994] 34 NSWLR 155 at 160

 33   Appeal Book p.10 at [40]

 34   Curtis v Darwin City Council [2012] FWAFB 8021 at [83]

 35   Appeal ground five

 36   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995)

 37   Appeal Book p.11 at [45]

 38   Appeal ground six

 39   See for instance Australian Postal Corp v Rushiti [2012] FWAFB 7423 at [42]

 40   Appeal ground two

 41   See also s.381(1)(c) Fair Work Act 2009 (Cth)

 42   Appeal Book p.73 at [39] and [42]

 43   PR714326