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Fair Work Act 2009                                                    








s.604 - Appeal of decisions


Appeal by Mangamuri





2.00 PM, TUESDAY, 5 JULY 2022


DEPUTY PRESIDENT MASSON:  Thank you.  It's Deputy President Masson.  As you may have heard, the parties may have been advised, the Full Bench today is composed of myself as presiding member, and Commissioners Hampton and Wilson.


I'll start by taking appearances please.  Firstly for the appellant.  Mr Mangamuri, can you hear me?


MR S MANGAMURI:  Yes, sir.


DEPUTY PRESIDENT MASSON:  Thank you, and for the respondent.


MR B BYRNE:  Thank you, Deputy President.  Byrne, initial B, appearing on behalf of Linfox Armaguard Pty Ltd.


DEPUTY PRESIDENT MASSON:  Thank you.  All right, before hearing from firstly, the appellant, and then the respondent, I just want to make some opening remarks.  Perhaps more so for your benefit Mr Mangamuri, because you may be unfamiliar with the appeal and permission to appeal process.  So, I'll explain that for your benefit, and also perhaps for Mr Byrne.


Now, this matters has been listed for permission to appeal only.  In the event that the Full Bench were to grant permission to appeal, the matter would then be set down for full hearing of the appeal.  Now, the decision under appeal, is that issued by Deputy President Gostencnik, on 2 May 2022, and that was in decision [2022] FWC 763, in which the Deputy President found that the appellant was not unfairly dismissed.  The appellant appeals that decision.


Now, I just want to say something about permission to appeal.  Now, in order for an appeal to be heard and determined, permission to appeal is required, that is, there's a need to identify an arguable case of appellable error.  Error alone is not sufficient, there needs to be significant error.  Furthermore, because this is an unfair dismissal application, that is, because section 400 applies of the Act, it will also be necessary for the appellant to demonstrate that the public interest may be served by granting permission to appeal.


Now, Mr Mangamuri, in terms of public interest, the kinds of matters that would fall under the category of public interest is that this matter, you would have to demonstrate this matter either raises issues of importance and general application, that there is a diversity of decisions at first instance such that appellate guidance is required.  That the decision manifests an injustice or that the result is counter-intuitive or that the legal principles applied in the decision by the Deputy President are disharmonious when compared with other recent decisions.


Now, the permission to appeal does not provide an opportunity for an appellant to re-argue the case that was argued at first instance, but rather the focus must be on the identification of appellable error in that decision.  Now, directions were issued by the Commission on 30 May consistent with the normal permission to appeal directions.  The appellant was required to file his submissions, which he did by the close of business on 20 June.


Now, the Bench has had the benefit of reviewing those submissions.  We've also had the benefit of reviewing the appeal book which was provided by the appellant which contained material that was before the Deputy President at first instance.  So, Mr Mangamuri, it's unnecessary for you to traverse all of the material that is contained both in your written submissions and also in the appeal book.  The Full Bench has had the benefit of reviewing those.


I'll now invite you to make oral submissions to supplement the written submissions that you filed.  But again, in doing so, I would ask that you focus on assisting the Bench by identifying where there is appellable error in the Deputy President's decision.  Once we've heard from the appellant, we'll invite the respondent to make any submissions in replay they may wish to make.  Is that clear, Mr Mangamuri, as to how we will proceed?


MR MANGAMURI:  Yes, sir.


DEPUTY PRESIDENT MASSON:  Thank you.  Please proceed, and sorry, through the course of the hearing or oral submissions, I, or my colleagues may ask you questions to assist our understanding of our case.  All right, Mr Mangamuri, please proceed.


MR MANGAMURI:  Just to take into consideration that (indistinct) long.  At the time, I can't come back to work and there is no transport, international borders are closed.  And I can't seek the permission from the Australian Border Security Force to come back to work.  So, they have to consider please and it's not possible for me to come back to work, when there's no transport.


DEPUTY PRESIDENT MASSON:  I'm sorry, I'm just going to stop you there.  I know you argued that before the Deputy President.  Are you contending that he failed to take that into account in his decision-making?


MR MANGAMURI:  Yes, sir.  Because there's no transport for me to come back.  It's not possible.


DEPUTY PRESIDENT MASSON:  Well, no, I know that's your argument, but what you're required to identify is if the Deputy President was erroneous in his conclusions or failed to take an important point into account, or took something into account that he shouldn't have.  Now, my reading of the Deputy President's decision is that he acknowledged the issues that you were confronting in attempting to return to Australia, is that not correct?


MR MANGAMURI:  Yes, it's not possible for me to come at all; it's not possible.


DEPUTY PRESIDENT MASSON:  All right.  You're contenting on appeal that you were unable to return and that the Deputy President failed to take that into account, or made an error in his conclusion?


MR MANGAMURI:  That is one of the error.




MR MANGAMURI:  And there was no work at Armaguard for me to come back, for the existing workers in Armaguard, we don't have sufficient work and they are not working full time.


DEPUTY PRESIDENT MASSON:  Can I just say, Mr Mangamuri, you're already falling into the trap of reagitating arguments that you ran before Deputy President Gostencnik.  What I'd ask you to focus on is where Deputy President Gostencnik reached a conclusion where that was in error, and you need to, in doing so, refer to the evidence that was before him.


MR MANGAMURI:  Okay, and they took into consideration that for the disaster payments they are not working full time and they were sitting there payments from the dolement in place.




MR MANGAMURI:  And that it was – they, the workers at Armaguard they are not working full time and they're working only two days, three days in a week and sitting there payments from the dolement and they're – at the time, asking me to come back is not possible.  You know that the borders are closed, that public health order is in force.


DEPUTY PRESIDENT MASSON:  Okay, are there any other points you wish to make to supplement your written submissions.


MR MANGAMURI:  And there were no flights to come back, that is one issue.


DEPUTY PRESIDENT MASSON:  No, you've made that point already.


MR MANGAMURI:  Yes sir.  And I can't seek the permission from the Australian Border Force Commission, because my job is not a (indistinct) service job.


DEPUTY PRESIDENT MASSON:  Yes, I know that was a point made before Deputy President Gostencnik, yes.


MR MANGAMURI:  And (indistinct) the JobKeeper payments are being taken by the employer and full week disaster payments are being taken by the (indistinct), because of lack of work.  That was not the – the evidence is not provided at that time because I didn't have the information, I had to work through my back-up centre, that is the reason I'm providing the evidence right now.


DEPUTY PRESIDENT MASSON:  No, we're not here to hear evidence; we're here to hear your submissions as to where error is disclosed in the decision.  Mr Mangamuri perhaps to assist you, I'd like to go through what I understand to be the matters that you've raised in your written submissions, will that assist you?




DEPUTY PRESIDENT MASSON:  Well, you've already pointed to your assertion that a travel exemption was required to return to Australia and that you were unable to obtain that.  You also have raised in your submissions that you were dismissed failing to return to Australia during the pandemic in circumstances where you say, the respondent was not operating at full capacity and you've referred to the JobKeeper and COVID disaster payments.


You also refer in your material that Armaguard promised to pay your retrospective leave that was approved, but then that payment was delayed until after your dismissal, correct?


MR MANGAMURI:  Yes, sir.


DEPUTY PRESIDENT MASSON:  All right.  You also assert in your material that on seeking details of a Mr Peter Fox's contact details in relation to concerns you had about behaviour in the workplace, you were subsequently dismissed and you assert that there's adverse action been taken against you.  You go on to say that your leave applications were mismanaged over a period of several months.  Firstly, they were rejected and then they were subsequently approved.  You also say that claims that you failed to provide a fixed date of return to Australia was incorrect, and that you gave an approximate date of return, when requested to do so, that being in mid-January 2022.


Returning to the issue of the travel exemption, you say that in order for a person to obtain a travel exemption, one needed to satisfy particular criteria and your job was not critical, such as to fall into that particular description, correct?


MR MANGAMURI:  Yes, sir.


DEPUTY PRESIDENT MASSON:  Yes.  You say that you were prepared to return to work, but you contended that in order to do so, you required information from the respondent in order for you to seek permission from the Australian Border Force to return, correct?


MR MANGAMURI:  Yes, yes sir.


DEPUTY PRESIDENT MASSON:  That information, you say was not provided to you by the respondent.  Touched on the adverse action claim, I've touched on the date of return.  You take issue with the Deputy President's primary conclusion that you were unable to attend work due to your being in Hyderabad and as a consequence, not being ready, willing and able to perform our duties.  You take issue on that, essentially because of the mismanagement of your leave application, the fact that you weren't paid for that approved leave, which made it difficult for you to return, because you couldn't afford to travel.  You also point to the fact that your role didn't fall within the bucket of skills that were required, so to speak, to return.  You also point to the closed borders, you also point to the pandemic, all as being barriers that prevented your return.


Do you generally contend that the matters that I've just been through constitute matters that the Deputy President either was in error or failed to take into account?


MR MANGAMURI:  Yes, sir, because the government was saying that the lockdown was in place, the government had place a lockdown.


DEPUTY PRESIDENT MASSON:  We're aware of that.  The Full Bench is aware of the lockdowns that were in place, the border control measures were in place.  The Full Bench is aware of that, yes.


MR MANGAMURI:  I can't break the rules and regulations, sir.


DEPUTY PRESIDENT MASSON:  All right – sorry, go on.


MR MANGAMURI:  And they have to take into consideration that they are not working full time.  It is not work for the employees that are working at Armaguard and asking me to come back when the borders are closed and there's no transport facility and I can't apply for permission because my job is not an essential service.


DEPUTY PRESIDENT MASSON:  Yes, I see.  All right, is there anything else you would point to as being in error on the part of the Deputy President?


MR MANGAMURI:  And the respondent, based on the situation that is whatever information that is available on 15 September and the main was included in that one.


DEPUTY PRESIDENT MASSON:  Yes, no, you indicated that you would be able to return, you thought, in mid-January.


MR MANGAMURI:  Yes, sir.  Based on the information at that time.




MR MANGAMURI:  And I brought the workplace issues to their attention, sir, for the past two years and they say that I never raised these issues at any point of being late.  That is also another issue.  That they said that they made the payments, but they didn't pay me.  It was already mentioned.




MR MANGAMURI:  But sir, that is all I can say, sir, because - - -


DEPUTY PRESIDENT MASSON:  The submissions you've made are quite fulsome, Mr Mangamuri, so we have the benefit of reviewing your submissions, and of course we'll do so in considering our decision.  So, it's not critical that you cover everything in your oral submissions; we also have your written submissions.  I'll just turn to my colleagues.  Commissioner Wilson, do you have any questions you have of Mr Mangamuri?


COMMISSIONER WILSON:  No, I don't, Deputy President.


DEPUTY PRESIDENT MASSON:  Thanks.  Commissioner Hampton?


COMMISSIONER HAMPTON:  Yes, Mr Mangamuri can I please ask you two questions.  I don't know whether you have your appeal document in front of you, if not, I can probably provide enough context with the question.  Under the grounds of appeal, amongst other matters, you refer to two occasions where the employer has misled the Commission.  You don't specify, at least not directly, what those two matters were.  So, what are those two matters you're referring to?


MR MANGAMURI:  One second, sir.


COMMISSIONER HAMPTON:  It's under paragraph 2.1 of the appeal document, if that's of any assistance.


MR MANGAMURI:  Yes, sir.  On 982 one of three, and - - -


COMMISSIONER HAMPTON:  Sorry, are you referring to paragraphs of the decision?


MR MANGAMURI:  Yes, sir, but in paragraph one of three.


COMMISSIONER HAMPTON:  Well, the decision doesn't go that high, so I'm not quite sure what you're referring to.


MR MANGAMURI:  I'm look at the paragraph – it's on regarding the works, that they are not working full time and I said they're taking COVID disaster payments from the government and they're working only three days or four days per week, not working full time, because of lack of work and Mr Blackburn, he said that who told you all this and why didn't you factually with the Armaguard management.  They (indistinct) made from the chief executive of Armaguard, saying that they're working only four days – they're operating the business for four days and included for me.


COMMISSIONER HAMPTON:  Secondly, I don't think this is controversial, but the Deputy President proceeded on the basis that you were a permanent Australian resident.


MR MANGAMURI:  Yes, sir.


COMMISSIONER HAMPTON:  That's correct?  All right.  Good, thank you.  No further questions.  Thank you very much.


DEPUTY PRESIDENT MASSON:  Thank you Mr Mangamuri.  I'll give Mr Byrne an opportunity to say anything he wishes to say and then you'll be afforded a brief opportunity to reply.


MR MANGAMURI:  Just one second, sir.  They're not, errors that decision regarding the leave approval processes since – plenty of evidence that they (indistinct) the President he was not – he also said that there are errors in the argument, whatever I'm saying and - - -


DEPUTY PRESIDENT MASSON:  I understand, are you referring to the fact that the Deputy President identified that there was a period after your retrospective leave application during which you received no reply, then you received a reply in June 2020, approving retrospectively your leave application.  Are you referring to that?


MR MANGAMURI:  No, before that.  Right from – yes that is also one thing and before that as well.  But my leave actually finished on 25 September and I didn't supply any leave form to them, but still they are paying me and I thought, okay, there is - - -


DEPUTY PRESIDENT MASSON:  If I can just remind you, Mr Mangamuri, in any case, they stopped paying you in December, okay – sorry, I apologise, in November.




DEPUTY PRESIDENT MASSON:  And you made, according to the evidence before the Deputy President, you made no contact with the respondent prior to the respondent contacting you, I believe in January, to ask you basically, what's going on.  It was only at that point that you made a retrospective leave application.  Where is the error there?


MR MANGAMURI:  I made one application with the retrospectively and that application was applied with the (indistinct) notice.  That is on 2 February I informed them.


DEPUTY PRESIDENT MASSON:  But I'm asking you, where is the error in the Deputy President's decision going to findings he made in relation to leave applications or periods of leave?


MR MANGAMURI:  That is not a retrospectively obligation, sir.  The second application was not retrospectively.  The first application, as I said, from 9 November to 10 February, that is a retrospective application.  But the second application was not retrospective and they should have responded me, you know, for the misconduct notice, and they just kept quiet.


DEPUTY PRESIDENT MASSON:  Yes, and the Deputy President acknowledged that and made specific reference to that in the decision and you'll note that he was quite critical of the employer for failing to respond to your email until June 2020.  So, the Deputy President was alive to that issue and was quite critical of the employers inaction.


MR MANGAMURI:  Yes, sir, in that case I should be given an opportunity to come back.  I should be reinstated.




MR MANGAMURI:  They didn't even give me the opportunity.


DEPUTY PRESIDENT MASSON:  All right.  Is that all Mr Mangamuri?


MR MANGAMURI:  Yes sir, there are few errors he recognised and they need to be rectified as well, you know.


DEPUTY PRESIDENT MASSON:  Yes, I see, thank you.


All right, I'll now hear from Mr Byrne.  Mr Byrne, do you wish to say anything?


MR BYRNE:  Just a few short statements, Deputy President – a few short submissions, sorry, Deputy President.  The matters that are being discussed today in our view, have been traversed by the Deputy President in his decision.  They have been considered and he was alive to the issues in question and there was a significant amount of time spent in the arbitration where the Deputy President talked about what occurred between November 2019 and the border closures and the inaction taken by the applicant.  That if there was – if there was by the applicant that if there was some action taken, the applicant may or may not have found himself in the situation that he was in.


But in any event, the legal principles that have been applied in the decision, all the matter that have been alleged to contain errors, we say they do not, and the Deputy President traversed all these matters in his decision.  He didn't leave out these matters for consideration.  He addressed those matters for consideration and waived them evenly, including a critical assessment of some action taken by Armaguard with respect to the leave application process.


We say the grounds of appeal amount to no more than Mr Mangamuri's preference for a different outcome or result.  They don't amount to what should be, in the public interest, to warrant permission for the appeal to go ahead.  Unless there's any specific I'm happy to take them and deal with those, but just from an overarching principle, that is our position on the matter.


DEPUTY PRESIDENT MASSON:  Thank you.  Any questions from either of my colleagues?  Commissioner Wilson?


COMMISSIONER WILSON:  No, none from me, please.


DEPUTY PRESIDENT MASSON:  Commissioner Hampton?




DEPUTY PRESIDENT MASSON:  Mr Mangamuri, you now have an opportunity to say anything in reply to Mr Byrne's submissions?  Do you wish to say anything in reply?




DEPUTY PRESIDENT MASSON:  All right.  On that basis, the Full Bench will now adjourn.  We will reserve our decision on the question of permission to appeal, whether that should or should not be granted.  We will issue a decision in due course which will be issued to the parties, and as per normal permission processes, be published on the Commission's website.


Unless there's anything else, I now intend to adjourn.  Is there anything else, Mr Mangamuri?






MR BYRNE:  No thank you, Deputy President.


DEPUTY PRESIDENT MASSON:  Thank you to the parties for making yourself available for today's proceeding.  The matter is now adjourned.  Thank you.

ADJOURNED INDEFINITELY                                                            [2.31 PM]