DECISION

Fair Work Act 2009
s.604—Appeal of decision

Paul Waddy
v
Ability Centre Australasia Ltd
(C2021/3508)

Appeal against decision [2021] FWC 3030 of Deputy President Beaumont at Perth on 31 May 2021 in matter number U2021/1108 - permission to appeal refused.

[1] Mr Paul Waddy (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Beaumont (the Deputy President) issued on 31 May 2021. The Decision dealt with the Appellant’s application for an unfair dismissal remedy brought under s 394 of the Act. The Appellant alleged he had been unfairly dismissed by Ability Centre Australasia Ltd (the Respondent).

[2] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so, save for filing a list of authorities its legal representative intended to read from at the hearing of the matter.

[3] The appeal was subject to a telephone hearing on 2 August 2021. The Appellant appeared on his own behalf. The Respondent sought permission to be legally represented by Mr Ian Curlewis, a solicitor. The Full Bench did not grant permission to the Respondent to be represented by Mr Curlewis.

[4] The Full Bench has heard the Appellant on the issue of permission to appeal. For the reasons that follow, permission to appeal is refused.

The Decision under appeal

[5] The Deputy President commenced her decision by outlining the evidence and submissions before her.

[6] The Appellant commenced employment with the Respondent on 2 December 2020 in the role of General Hand. He was dismissed on 29 January 2021 for his failure to comply with the Respondent’s Social Media Policy and Code of Conduct.

[7] On 15 January 2021, the Respondent received an email from a member of the public advising the Respondent about the nature and contents of various posts on Facebook attributed to the Appellant. Mr Darren Cutri, Chief Financial Officer and Company Secretary of the Respondent, gave evidence that the complainant advised the following:

•  The Appellant’s profile page on Facebook identified his employer as the “Ability Centre” in Perth.

•  The posts were extremely offensive such that they had severely damaged the complainant’s confidence and trust in the Respondent as an organisation because it had a person working with the Respondent who would publish such material.

•  The complainant would not be supporting the Respondent for employing an individual airing these views on Facebook.

[8] On receiving this complaint, Mr Cutri viewed the content of the Facebook posts. There were six posts in total that were of concern to Mr Cutri. We will not reproduce them here.

[9] Mr Cutri arranged for the Appellant to attend a meeting at the Respondent’s premises on 20 January 2021. That meeting was also attended by Ms Janet Catherwood, People and Performance Lead of the Respondent. Mr Cutri explained that at this meeting he informed the Appellant that there was a complaint about the Appellant’s Facebook posts and that there was a connection with the Respondent on the Appellant’s Facebook page. Furthermore, Mr Cutri said that he informed the Appellant he was very concerned about the nature and contents of the posts and needed to obtain his side of the story. Mr Cutri also informed the Appellant that the Respondent would stand down the Appellant on full pay so that he could consider the nature and content of his Facebook posts and provide his response.

[10] At this meeting, the Appellant was also given a letter dated 20 January 2021 which set out two allegations. 2 Briefly summarised they are:

1. That the Respondent received a formal complaint from the member of the public in relation to a number of inappropriate comments posted by the Appellant on his personal Facebook page and which had potentially resulted in significant reputation damage to the Respondent.

2. That the Appellant’s personal Facebook account, which clearly stated that he was employed by the Respondent, contained numerous posts which are of a discriminatory, sexist and/or racist nature and which may be perceived to be representative of the opinion and values of the Respondent.

[11] The letter also stated that the two allegations were very serious and if proven, were deemed to be a serious breach of the Respondent’s Code of Conduct, Values, Social Media Policy and the professional and ethical standards required as an employee of the Respondent.

[12] The Appellant responded to these allegations by way of letter dated 25 January 2021. In essence, the Appellant’s letter explained why he thought the posts were not of concern and did not give any indication that the Appellant considered there was anything wrong with his posts. Nor was there a commitment made to cease making such posts.

[13] Mr Cutri met with the Appellant again on 29 January 2021. The Appellant declined to have a support person present at this meeting. After discussions with the Appellant, Mr Cutri formed the view that the continuation of the Appellant’s employment was untenable because the Appellant indicated that he would not change his posts or the nature of his posts. Subsequently, the Appellant was dismissed for serious misconduct.

[14] The Deputy President then considered the factors contained in s 387 of the Act in order to determine whether the Appellant had been unfairly dismissed. She firstly found that there was a valid reason for dismissal. Most relevant to this appeal, are the findings the Deputy President made in relation to ss 387(b) – (c) of the Act, regarding whether the Appellant was notified of the reason for his dismissal and given an opportunity to respond. The Deputy President’s findings are extracted below:

“3.3 Notification of the reason and an opportunity to respond

[48] At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a practical way in order to ensure that the employee is treated fairly. The Full Bench in Royal Melbourne Institute of Technology v Asher observed that in Osman v Toyota Motor Corporation Australia Ltd, the Full Bench had referred to the comments of Wilcox CJ in Gibson v Bosmac Pty Ltd (approved in Selvachandran), where Wilcox CJ had said:

Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.

[49] The Applicant levelled against the Respondent the contention that he had been denied procedural fairness because he had not been directed to the particular Facebook postings that were the subject of enquiry. He observed that he had not been provided with detail of any offensive articles, had no knowledge of what was considered offensive and therefore questioned how he was supposed to address the postings.

[50] In cross examination, Mr Cutri explained that he was of the opinion that the Applicant was made aware of the Facebook posts because the letter of 20 January 2021 referenced the posts and their offensive nature. Further, and to the extent that the Applicant continued to contend that he had no knowledge as to what was considered offensive, Mr Cutri said that at the second meeting on 27 January 2021, the Applicant brought an example of his Facebook post(s) to the second meeting when responding to the allegations.

[51] In my assessment, Mr Cutri’s evidence was spontaneous, candid and convincing. He was forthright, never seeking to obfuscate. In contrast, the Applicant engaged in prolix explanations, often never responding to what was actually asked of him. I therefore consider that Mr Curtri’s account is to be preferred.

[52] While it may have been preferable to have directed the Applicant’s attention to each of the six Facebook postings, I am satisfied that the Applicant was made aware of the particular matter that was putting his or her job at risk and given an adequate opportunity of defence.

[53] I conclude that the Applicant understood the precise nature of the Respondent’s allegations. In the circumstances, I am satisfied that the Applicant was notified of a valid reason for his dismissal before any action was taken to terminate his employment, and that he was accorded the opportunity to respond.”

(Citations omitted)

[15] As will become clear, the Appellant’s submissions on appeal primarily seek to contest these findings.

[16] After also considering the factors in ss 387(d) – (h), the Deputy President found that the Appellant was not unfairly dismissed. Accordingly, his application for an unfair dismissal remedy was dismissed. An order 3 to that effect was issued in conjunction with the Decision.

Principles of Appeal

[17] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[18] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 4

[19] 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. 5 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[20] 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. 6 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Consideration

[21] The Appellant’s Notice of Appeal sets out four grounds of appeal. They can be summarised as follows:

1. That the Appellant was not made aware of the precise nature of the employer’s concern about his conduct so as to satisfy s 387(b) of the Act.

2. Mr Cutri’s evidence that the Appellant brought an example of his Facebook posts to the meeting on 29 January 2021 is incorrect. The Appellant contends that he brought a “photo frame montage” of people of different genders and nationalities that he had rented rooms to in order to reinforce his contention that he is not a racist or sexist person.

3. That the Appellant was not given “an adequate opportunity of defence” as the six Facebook posts of concern were not drawn to his attention. The Appellant further contends that he was allowed only 6 days to read through “literally hundreds” of posts to try to determine which ones caused offence and then reply to them.

4. The Appellant contends that his lack of willful intent, in that he does not believe any of the content he wrote was racist or sexist, negates any findings of disobedience or misconduct.

[22] On the question of public interest, the Appellant contends that the Decision is inconsistent with another first instance decision of the Commission, being the decision in Clint Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine 7 (Remmert). The Appellant did not take the Full Bench to a specific part of the Remmert decision but nonetheless, he contends in both written and oral submission, that in Remmert, Commissioner Hampton found the withholding of material evidence from the applicant in that case was in itself grounds for upholding a claim for an unfair dismissal remedy. It is the Appellant’s contention that the Deputy President erred in not following the decision in Remmert.

Grounds 2 and 4

[23] These grounds of appeal were not pressed by the Appellant in written or oral submissions. Nonetheless, we will deal with them briefly.

[24] Ground 2 of the appeal is a mere assertion that Mr Cutri’s evidence was factually incorrect. The Deputy President outlined at paragraph [51] of the Decision, the reasons why she preferred the evidence of Mr Cutri to the Appellant’s. There is nothing unorthodox in the Deputy President’s approach to the evidence and it was open to her to prefer Mr Cutri’s evidence over that of the Appellant’s.

[25] Ground 4 of the appeal does not disclose any appealable error. Whether or not the Appellant believes himself that the content on his Facebook was offensive does not go to the question of whether he engaged in serious misconduct. The Deputy President correctly identified the legal principles regarding summary dismissal for serious misconduct and applied them in an orthodox manner to reach the conclusion that the Appellant engaged in serious misconduct.

Grounds 1 and 3

[26] It is convenient to deal with grounds 1 and 3 together. We are not satisfied that these grounds disclose an appealable error on the part of the Deputy President.

[27] The Appellant’s contention that he was unaware of the precise nature of the complaint against him and did not have the opportunity to respond were submissions put in the matter at first instance. These grounds of appeal are an attempt to rerun the same contentions the Appellant made at first instance which the Deputy President explicitly rejected at paragraph [52] of the Decision. We find no error in the Deputy President’s reasoning and the conclusion reached therein was open to her to make.

[28] Furthermore, we note that the Appellant’s letter of 25 January 2021, in which the Appellant defended his Facebook posts, makes reference to a specific article he commented on. In those circumstances, it is difficult for the Appellant to assert in the matter at first instance, and on this appeal, that he was unaware of the precise nature of the conduct that raised concern for the Respondent. It is also difficult therefore, for the Appellant to assert that he was not given an adequate opportunity to respond to the allegations made against him.

[29] Ultimately, while it would have been preferable that the Appellant was directed to the six specific Facebook posts that were of concern to the Respondent, he was adequately made aware of the material. Furthermore, as outlined above, his reply to the employer indicates that he had knowledge of the conduct that was of concern to the Respondent. Affording the Appellant that extra measure of procedural fairness by directing him to the specific Facebook posts would not in and of itself have changed the result.

Public interest

[30] As set out in his notice of appeal, the Appellant contends that the Decision is inconsistent with or otherwise in conflict with the decision in Remmert. In Remmert, the applicant, Mr Remmert, was dismissed for making Facebook posts that were considered to be bullying conduct directed at another employee. The employer formed an investigation panel to investigate Mr Remmert’s conduct. The investigation panel produced a HR Summary for senior management of the employer which, inter alia, made a recommendation that Mr Remmert be dismissed. Critically, the HR Summary made reference to a confidential report that concerned the conduct of Mr Remmert. This confidential report was never provided to Mr Remmert. Commissioner Hampton found that there was a valid reason for dismissal, being Mr Remmert’s Facebook posts. However, Commissioner Hampton concluded that the dismissal was harsh and unreasonable because Mr Remmert was denied procedural fairness. Commissioner Hampton found that the confidential report was very relevant to the investigation panel’s recommendation that Mr Remmert be dismissed and that it was probable that the report, along with other matters, contributed to the view in the HR Summary that Mr Remmert be dismissed. The procedural unfairness in this case arose because Mr Remmert was not provided with the contents of that report and given an opportunity to respond to the findings made about his conduct contained therein.

[31] There is no inconsistency between the Decision under appeal in this case and Remmert. Both cases turned on their own facts. As outlined above, the Deputy President found that the Appellant was made aware of, and given the opportunity to respond to, the conduct which was of concern to the Respondent. There was no information that was withheld from the Appellant as there was in Remmert.

[32] We are not satisfied that there are any sustainable public interest grounds upon which permission to appeal should be granted. We do not consider that the Decision raises any issue of important or general application that would enliven the public interest. There is no diversity of decision at first instance in relation to the issues raised on appeal so that guidance from an appellate body is required. We do not consider that the result of the Decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[33] For the above reasons, permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr P Waddy on his own behalf.

Hearing details:

2021.

Telephone hearing.

2 August.

Printed by authority of the Commonwealth Government Printer

<PR733085>

 1   Waddy v Ability Centre Australasia Ltd [2021] FWC 3030.

 2   Ibid at [13]

 3   PR717385.

 4   (2010) 197 IR 266 at [27].

 5   Wan v AIRC (2001) 116 FCR 481 at [30].

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

 7   [2016] FWC 6036