| [2020] FWCFB 5841 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Michael Jones
v
Karisma Joinery Pty Ltd
(C2020/7459)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 11 NOVEMBER 2020 |
Appeal against decision [2020] FWC 5051 of Commissioner Cambridge at Sydney on 25 September 2020 in matter number U2020/3316.
[1] Mr Michael Lyle Jones has applied under s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal against a decision of Commissioner Cambridge issued on 25 September 2020 (decision) 1 and an order issued in conjunction with that decision of the same date.2 The Commissioner determined that Mr Jones’ dismissal by Karisma Joinery Pty Ltd was unfair. The Commissioner ordered that Mr Jones be paid $1,515.00 (gross) in compensation for his unfair dismissal.3
[2] For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.
[3] Pursuant to a labour hire arrangement, Mr Jones worked intermittently for Karisma Joinery between 2009 and 2014. He commenced full-time employment directly with Karisma Joinery on 24 October 2014 as a shopfitter. 4
[4] On 27 February 2020, Mr Jones attended work at the Pendle Hill factory site. He parked his car inside the building rather than in the outside carpark. 5 Mr Jones was instructed by Mr Chris McDade, Factory Foreman to move his car outside consistent with the direction issued by Karisma Joinery in or about January 2020.6 Mr Jones gave evidence that he “got a little bit upset” because he was concerned that by parking his car outside there was a risk that his motorbike, which was strapped to his car, could be taken.7 Mr Jones advised Mr McDade that he was going to go home noting that there was limited work to be performed.8
[5] As Mr Jones drove his car outside, he came across Glen who is described as the building landlord. 9 Mr Jones sought Glen’s approval to park his car in the internal carpark. Mr Jones understood his request was approved by Glen,10 and he parked his car in the internal carpark and returned to work.11
[6] At approximately 2:00pm, Mr Jones advised Mr McDade that he was intending to leave work for the day. 12 Mr Jones was instructed by Mr McDade to telephone Karisma Joinery’s Operations Manager, Mr Brett Russell.13 At 2:09pm, Mr Jones telephoned Mr Russell.14 During the telephone call, Mr Jones informed Mr Russell that he had obtained approval from Glen to park his car in the internal carpark that day.15 This led to a disagreement between Mr Jones and Mr Russell resulting in Mr Jones terminating the call.16 At 2:11pm, Mr Russell telephoned Mr Jones back.17 There was a further exchange between Mr Jones and Mr Russell, following which Mr Jones terminated the telephone call for a second time.18
[7] By letter dated 27 February 2020, Mr Jones’ employment was terminated. The letter stated that Karisma Joinery had discussed with Mr Jones his “abandonment of employment, insubordination, and derogatory behaviour towards Mr Brett Russell.” It concluded that Mr Jones’ conduct amounted to serious misconduct warranting summary dismissal by reason of the following:
(a) Mr Jones’ wilful or deliberate behaviour which was inconsistent with the continuation of the contract of employment.
(b) Mr Jones caused a serious and imminent risk to the reputation, viability or profitability of the business.
(c) Mr Jones refused to carry out a lawful or reasonable instruction that was consistent with the contract of employment.
[8] The Commissioner first summarised the background to the matter and each party’s respective contentions. 19
[9] The Commissioner then turned to consider each of the factors under s 387 of the Act. In respect of s 387(a), the Commissioner determined that Mr Jones’ misconduct associated with the location of his parked car was overshadowed by the two telephone conversations held with Mr Russell on 27 February 2020. 20 The Commissioner found that Mr Jones’ conduct during the two telephone calls, which included him calling Mr Russell a “fucking smart arse” and hanging up on Mr Russell on each occasion was not justifiable and amounted to serious misconduct.21 The Commissioner described Mr Jones’ conduct as an “aggressive and abusive verbal attack upon Mr Russell which he maintained and exacerbated during the second telephone call.”22 The Commissioner concluded that such serious misconduct gave rise to a valid reason for Mr Jones’ dismissal.23
[10] For the purposes of s 387(b) of the Act, the Commissioner found that Karisma Joinery provided notification to Mr Jones of the reason for his dismissal by emailing him a termination letter dated 27 February 2020, and that Mr Jones learned that he was dismissed upon arriving at work on 28 February 2020. 24
[11] As to s 387(c) of the Act, the Commissioner found that Mr Jones was not given an opportunity to respond to the reason for his dismissal, and Mr Jones was therefore denied natural justice. 25
[12] In respect of s 387(d), the Commissioner found that there was an unreasonable refusal to allow Mr Jones the assistance of a support person. 26
[13] The Commissioner regarded s 387(e) to be irrelevant to the circumstances concerning Mr Jones because he was not dismissed for unsatisfactory performance. 27
[14] In relation to s 387(f) of the Act, the Commissioner made an allowance “for a degree of informality and some imprecision” in the process leading to dismissal on the basis that Karisma Joinery is a medium sized business. 28
[15] As to s 387(g) of the Act, the Commissioner concluded that notwithstanding the absence of management specialists or expertise, Mr Jones ought to have been provided with the opportunity to be heard before Karisma Joinery made the decision to dismiss him. 29
[16] In respect of s 387(h), the Commissioner determined that there was no evidence linking Mr Jones’ mental health and his misconduct on 27 February 2020. The Commissioner noted that “there appeared to be little complaint” in respect of Mr Jones’ work performance, as opposed to his behaviours in the workplace. 30
[17] The Commissioner concluded that there was a valid reason for Mr Jones’ dismissal which involved serious misconduct, but that the procedural shortcomings in effecting the dismissal rendered the dismissal harsh and unjust. 31
[18] The Commissioner proceeded to determine remedy. The Commissioner described the employment relationship as irreparably damaged and concluded that reinstatement was not appropriate. 32
[19] In assessing compensation, the Commissioner considered the criteria set out in s 392 of the Act. The Commissioner determined that: 33
(a) There was no evidence to establish that an order for compensation would impact the viability of Karisma Joinery’s business.
(b) Mr Jones’ employment would have concluded within two weeks after his dismissal on 27 February 2020. For this period, Mr Jones would have received $3,030.00 (gross) in remuneration.
(c) The amount of remuneration received by Mr Jones in alternative employment, and that which may likely be earned by Mr Jones between the dismissal and the making of the order for compensation was $0.00.
(d) A deduction of 50% to the amount of compensation would be made on the basis of Mr Jones’ established misconduct.
[20] An order was made by the Commissioner that Karisma Joinery pay to Mr Jones $1,515.00 (gross) in compensation in lieu of reinstatement. 34
[21] In accordance with s 392(4) of the Act, the Commissioner said that the compensation amount did not include a component for shock, distress or humiliation, or other analogous hurt caused to Mr Jones by the manner of the dismissal, and did not exceed the compensation cap. 35
[22] In his notice of appeal, Mr Jones set out the following appeal grounds:
(a) the decision was made with no proof and it was made from lies; and
(b) 90% of the decision is fabricated lies, misleading and based on hearsay.
[23] No particulars of these appeal grounds were provided in Mr Jones’ written material or orally during the appeal proceedings.
[24] As to the public interest, the notice of appeal contends that the grant of permission to appeal would be in the public interest because:
(a) Karisma Joinery has colluded to make Mr Jones out to be a bully;
(b) Mr Jones had never received any warnings from Karisma Joinery in respect of its concerns regarding his conduct; and
(c) Karisma Joinery has relied upon “bullying tactics” in the proceedings and succeeded.
[25] Again, Mr Jones did not provide any particulars in respect of these matters at any time on or prior to the hearing.
[26] In seeking permission to appeal, Mr Jones submits that the Commissioner made specific errors of fact in the decision. Having regard to Mr Jones’ written material and his oral submissions, we understand Mr Jones to contend as follows:
(a) The Commissioner’s finding that Mr Jones had called Mr Russell a “fucking smart arse” is incorrect. In support of his position, Mr Jones relies upon Mr Russell’s statement of evidence in which Mr Russell says that Mr Jones called him a “smart ass.” 36 Mr Jones submits that there is no basis upon which Mr Russell’s evidence could be preferred above his own direct evidence in respect of the matter.
(b) Mr Jones questions the correctness of the following paragraphs of the decision: [7]-[16], [21], [22], [26]-[29], [31]-[40], [42], [43], [49], [52], [54], [60], [64], and [65].
(c) Mr Jones submits that the Commissioner made findings about his “so called bad behaviour” absent a proper evidentiary basis. Mr Jones submits that he held an unblemished employment record.
(d) Insofar as Mr Jones challenges the decision of the Commissioner to award him $1,515.00 (gross) in compensation, Mr Jones’ contention appears to be that the compensation amount was inadequate.
[27] The balance of Mr Jones’ submissions restate his version of the events of 27 February 2020 and the process that was followed by Karisma Joinery in effecting his dismissal.
[28] 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.37 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[29] This appeal is one to which s 400 of the Act applies. 38 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.
[30] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 39 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.40 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.” 41
[31] 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.42 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.43
[32] 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. 44 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[33] For the following reasons, we are not persuaded that the grant of permission to appeal is in the public interest.
[34] Firstly, the fact that Mr Jones disagrees with various factual findings does not speak to any arguable error on the part of the Commissioner. The Commissioner dealt with the case before him, reliant upon the evidence led by each of the parties both in written form and in oral evidence at the hearing. The Commissioner was required to, and did, make various findings about facts in dispute and those findings were reasonably open on the evidence. It was for the Commissioner to determine which evidence he preferred, as well as other matters of cogency and weight. No appealable error is disclosed in this approach.
[35] The primary finding of fact with which Mr Jones takes issue is that in a conversation with Mr Russell on 27 February 2020, he called Mr Russell a “fucking smart arse” as opposed to simply a “smart arse”. 45 It is true that neither the statement of Mr Jones nor Mr Russell included the word “fucking” in their account of this exchange. However, during the proceedings at first instance, Mr Jones cross-examined Mr Russell about his recollection of the conversation. This included an exchange whereby Mr Jones asked, “…but what did I say that day? I called you a ‘fucking smart arse’, yes?” Mr Russell responded “Yes.” Mr Jones did not challenge this evidence except to say “Okay. Not in your statement – ‘smart arse’ but not ‘fucking.’ Okay.”46 Mr Jones subsequently put to Mr Russell, “Okay, so out of all this discussion, the bad name that I called you was a ‘smart arse’ or a ‘fucking smart arse’?” Mr Russell responded, “I’m prettying sure you said ‘you’re an effing smart arse’.”47 Again, Mr Jones did not challenge Mr Russell’s recollection.48 Mr Jones did not deny that he said the words attributed to him by Mr Russell or lead a contradictory position. It follows that there was an evidentiary basis for the factual finding made by the Commissioner. The contention by Mr Jones that the Commissioner’s finding in this respect was attended by appealable error does not seem to us to be reasonably arguable.
[36] Mr Jones also cites various paragraphs of the decision in posing the general question, “how did he come up with,” without identifying any error of significant fact or other appealable error in the cited paragraphs. With the exception of the matters addressed at [37] to [40] below, Mr Jones’ query relates to the Commissioner’s summary of the events of 27 February 2020, the parties’ respective contentions and the relevant provisions of the Act. 49 The unparticularised challenge made by Mr Jones to these paragraphs of the decision lacks substantive purpose and is insufficient to demonstrate the need for appellate review.
[37] Mr Jones also appears to challenge the Commissioner’s findings as they relate to valid reason. 50 The Commissioner found that Mr Jones engaged in an aggressive and abusive verbal attack upon Mr Russell which he maintained and exacerbated during the second telephone call. Mr Jones contends that there was no abusive language.51 However, Mr Jones’ evidence before the Commissioner was that the first exchange with Mr Russell on 27 February 2020 “didn’t end well” resulting in Mr Jones terminating the call.52 Further, Mr Jones did not contest Mr Russell’s evidence that he swore and “unleashed a tirade” at Mr Russell during the second telephone call following which he again terminated the call.53 Mr Jones said in the proceedings before the Commissioner “…I think I probably deserved a kick up the arse, but also Karisma hasn’t done the right thing either… I think I have to take responsibility for myself, but also I think Karisma needs to take responsibility.”54 In light of these matters, the Commissioner’s conclusion was reasonably open on the evidence. We are not satisfied that any arguable case of appealable error in relation to the Commissioner’s finding of valid reason has been established.
[38] The paragraphs cited above by Mr Jones also deal with the failure by Karisma Joinery to afford him procedural fairness in effecting the dismissal. 55 However, these matters do not demonstrate any rational basis for the grant of permission to appeal. This is because the Commissioner found in Mr Jones’ favour by concluding that the procedural shortcomings rendered his dismissal harsh and unjust. No arguable case of appealable error arises.
[39] Mr Jones appears to be dissatisfied with the decision insofar as it relates to the Commissioner’s framing of the employment history and Mr Jones’ conduct in the workplace. 56 However, these matters did not inform the Commissioner’s conclusion in respect of valid reason, which was confined to Mr Jones’ conduct during the two telephone calls with Mr Russell on 27 February 2020. The matters raised by Mr Jones do not disclose an arguable case of significant error of fact in the decision as required by s 400(2) of the Act, or any other appealable error.
[40] Finally, Mr Jones takes issue with the assessment of compensation but without identifying any arguable case of error in the assessment of that amount. 57 The Commissioner’s finding that Mr Jones had engaged in conduct which constituted a valid reason for his dismissal informed his assessment of the amount of compensation that should be awarded. Given that we have not identified error in respect of valid reason, there is no basis to disturb the Commissioner’s conclusions in this regard. On its own, a submission that the amount of compensation is inadequate is no basis upon which permission to appeal should be granted.
[41] In summary, none of the matters raised by Mr Jones as justifying the grant of permission to appeal persuade us that there is an arguable case of appealable error in the decision or that in all the circumstances, the public interest is enlivened. Mr Jones’ application for an unfair dismissal remedy was determined on the basis of its own facts and the appeal does not raise any issue of novelty, importance or general application.
[42] We are therefore not satisfied that it would be in the public interest to grant permission to appeal. Having reached this conclusion, permission to appeal must be refused in accordance with s 400(1) of the Act.
DEPUTY PRESIDENT
Appearances:
Mr ML Jones, Appellant
Mr P Jury on behalf of the Respondent
Hearing details:
2020.
Via teleconference:
2 November.
Final written submissions:
Appellant: 7 November 2020
Printed by authority of the Commonwealth Government Printer
<PR724166>
1 [2020] FWC 5051, PR722941
3 Appeal book p.8 at [1]
4 Ibid p.160 at [3] and [4]
5 Ibid p.162 at [29]
6 Ibid p.41 at [228], [229], [231]
7 Ibid at [232]
8 Ibid at [232], [235] and [237]
9 Appeal book p.42 at [238]; appeal book pp.150-151 at [6(b)]; appeal book p.162 at [33]
10 Appellant supplementary outline of submissions filed 7 November 2020 (Jones supplementary submissions) at p.1
11 Appeal book p.42 at [242]
12 Ibid p.43 at [248]-[250]
13 Ibid at [253]
14 Ibid at [254]
15 Ibid p.163 at [37]
16 Ibid p.44 at [258]
17 Ibid at [260]
18 Appeal book p.44 at [259]-[262]; Jones supplementary submissions at p.1
19 Appeal book pp.9-13 at [5]-[31]
20 Ibid p.15 [36]
21 Ibid at [37] and [38]
22 Ibid at [38]
23 Ibid at [39]
24 Ibid at [40] and [41]
25 Ibid p.16 at [42]
26 Ibid at [44]
27 Ibid at [45]
28 Ibid at [46]
29 Ibid at [47]
30 Ibid at [48]
31 Ibid p.17 at [52]
32 Ibid at [54]
33 Ibid p.18 at [59], [61]-[64]
34 Ibid pp.18-19 at [67] and [68]
35 Appeal book p.18 at [65] and [66]; s 392(5) of the Act
36 Appellants outline of submissions dated 24 October 2020 (Jones submissions) p.4 at [17]
37 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] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
38 See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]
39 (2011) 192 FCR 78 at [43]
40 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]
41 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
42 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
43 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]
44 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
45 Appeal book pp.11 and 15 at [15] and [37]
46 Ibid p.82 at [695]-[696]
47 Ibid p.85 at [734]
48 Ibid at [735]
49 Jones submissions p.2 see [9]-[13], [16], [21], [22], [26]-[29], [31]-[34] of the decision
50 Jones submissions p.2 see [14], [15], [36]-[39] and [49] of the decision; Jones supplementary submissions at p.4
51 Jones supplementary submissions at p.1
52 Appeal book p.43 at [257] and [262]
53 Ibid p.87 at [751]-[752] and [757]-[758]
54 Appeal book p.124 at [1130] and [1131]; see also Jones supplementary submissions at p.2
55 Jones submissions p.2 see [40], [42], [43] and [52] of the decision; see also Jones supplementary submissions at p.2
56 Jones submissions p.2 see [7], [8] and [35] of the decision; see also Jones supplementary submissions at p.1
57 Jones submissions p.2 see [54], [60], [64] and [65] of the decision; Jones supplementary submissions at p.4