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[2017] FWCFB 4701
Fair Work Commission (Full Bench)
2017-09-20
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [ [2017] FWC 3817] of Deputy President Anderson at Melbourne on 20 July 2017 in matter number U2017/194; no arguable case of error; public interest not enlivened; permission to appeal refused.
[1] Mr Andrew Pearse has applied for permission to appeal and appealed a decision of Deputy President Anderson issued on 20 July 2017[1] (Decision). The Deputy President dismissed Mr Pearse's application for unfair dismissal.
[2] Mr Pearse was employed by Viva Energy Refining Pty Ltd (Viva Energy) in its oil refining facilities in Geelong. Mr Pearse worked in the Geelong refinery for almost 27 years prior to his dismissal on 21 February 2017. Mr Pearse was, at the time of his dismissal, the President of the four-member AWU Executive at the Geelong refinery.
[3] Mr Pearse was dismissed for sending an email to approximately 170 operators whilst working night shift on 25 November 2016. Viva Energy contended that Mr Pearse's conduct in sending the email constituted a breach of its policies and Mr Pearse's duties as an employee under the Viva Energy Refining Enterprise Agreement 2014.
[4] Mr Pearse wrote the email "with a dose of anger" and used it to criticise unidentified employees "for helping the company with their proposed de-manning" by undertaking advanced fire training. Mr Pearse concluded the email by stating that he was "more than happy to discuss this with the 'identified' operators, if only I knew who they were".
[5] There was no dispute that Mr Pearse sent the email on 25 November 2016. The Deputy President found that Viva Energy had a valid reason for dismissing Mr Pearse as a result of his conduct in sending the email and thereby breaching his obligations under Viva Energy's policies. The Deputy President made the following specific findings in relation to Mr Pearse's conduct in sending the email:
"[80] I find that the email was intended to negatively portray the employees who had attended the advanced fire training and to disrespect their lawful decision to do so. Nor did the email show respect for persons who may have contemplated undertaking the training in the future. It expressly insulted the attendees in derogatory terms by saying that they 'could be seen as naïve, deluded, stupid of selfish.' This was not just an expression of opinion by Mr Pearse. It was a form of words designed to encourage other operators to hold a similar view. As such, I find it was a breach of Viva Energy values and policies requiring employees to foster respect for people and contribute to a respectful workplace environment. It also contravened policies requiring employees to refrain from distributing offensive or derogatory material..."
[6] The Deputy President addressed the necessary factors in s.387(a) to (h) of the Fair Work Act 2009 (Cth) (Act), including the arguments put on Mr Pearse's behalf concerning harshness, and then concluded that Mr Pearse's dismissal was not harsh, unjust or unreasonable.
[7] Mr Pearse relies on the following grounds of appeal:
The Commission erred when making its decision by failing to:
Apply the Briginshaw standard when making findings against Mr Pearse about the effect of certain conduct that formed the 'valid reason for dismissal' relied upon by his employer when dismissing him (Decision at [66] and Applicants Closing Submissions at [21]).
Discounted the weight or reliance placed on the anonymous hearsay and hearsay evidence that was admitted into evidence (Decision at [100] and Transcript PN 877-879; PN 894; PN 898).
Draw a Jones v Dunkel inference from the failure to call certain employees to give evidence (Applicant's Closing Submissions at [25(b)]).
Consider Mr Pearse's evidence that the reason he did not apologise to the relevant operators was because the Company had required him to keep the matters raised by the investigation confidential (Transcript PN 246; PN 693; PN694).
Consider the submission that if the peer test had been conducted it is likely that Mr Pearse would have passed the peer test (Applicant's Closing Submissions at [41(a)]).
Consider Mr Pearse's evidence that since email had been introduced in the workplace approximately 17 years ago there has never been any management feedback identifying inappropriate emails and providing coaching (Transcript PN 792).
Consider the evidence that indicated that the investigator approached the investigation in a biased manner in respect of who he chose to interview, the differential manner in which he recorded 'management' versus 'operator' evidence on how we treated their evidence (Transcript PN 1249 - PN 1276).
The Commission made the following findings in the absence of any evidence as to those matters:
The Commission made the following findings when these matters were never put to Mr Pearse (and were mentioned for the first time in the Decision):
Significant errors of fact (s 400(2))
[8] The written and oral submissions made in support of Mr Pearse's application for permission to appeal focused primarily on the following four matters:
(a) First, the Deputy President relied on anonymous hearsay evidence to find that the email sent by Mr Pearse had an adverse effect on a small number of employees. Mr Pearse contends that the Deputy President ought to have concluded that there was no evidence of the effect of the email on operators who did the training, or on the workplace more generally;
(b) Secondly, Mr Pearse contends that the Deputy President erred by making findings that (i) Mr Pearse did not seek to recall the email, nor did he seek to reissue it in a less emotive or derogatory form, (ii) the email was not remediated when it could have been, and (iii) Mr Pearse only apologised when dismissal was understood by him and his support person to be a real possibility, in circumstances where these propositions were not put to Mr Pearse in the witness box, nor were they submitted by Viva Energy in closing submissions or during the investigation. Mr Pearse submits that these findings were contrary to the rules of procedural fairness and the rule in Browne v Dunn;
(c) Thirdly, it is contended that the Deputy President erred in relation to his findings concerning Mr Pearse's intent in sending the email; and
(d) Fourthly, Mr Pearse contends that the Deputy President failed to apply the Briginshaw standard when making findings about the effect of Mr Pearse's conduct in sending the email.
[9] 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.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] Section 400 of the Act applies to this appeal. 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."
[11] In the decision of the Full Court of the Federal Court 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 as "a stringent one".[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] 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."[5]
[12] 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.[6] 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.[7]
[13] It is important to appreciate that 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.[8]
[14] The Deputy President relied on evidence given by Viva Energy's Area South Operations Manager, Mr Lewis, of a discussion he had with one of the unidentified employees the subject of Mr Pearse's email.[9] Much of what the employee said to Mr Lewis constituted contemporaneous representations about the employee's "health, feelings, sensations, intention, knowledge or state of mind" within the meaning of s.66A of the Evidence Act 1995 (Cth), with the result that the hearsay rule did not apply to such evidence. To the extent that Mr Lewis gave opinion evidence based on his observations of the employee during the discussion, such evidence was admissible under s.78 of the Evidence Act 1995 (Cth). In any event, there is no automatic prohibition in proceedings before the Commission on the reliance on hearsay or opinion evidence. The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s.577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure.[10] However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.[11]
[15] Given the content of the email, the fact that it was sent to about 170 operators, and one of those operators brought it to the attention of Viva Energy, it is unremarkable and inherently plausible that an employee who was the focus of the email (because he had undertaken the training) came forward to Mr Lewis, appeared "visibly agitated"[12] and expressed concern about the email. In those circumstances, we consider the evidence of what was said by the employee to Mr Lewis to be "fairly reliable",[13] although the weight to be given to it was a matter for the Deputy President to consider, including by having regard to the fact that the maker of the representation was not available to be cross examined by Mr Pearse.[14]
[16] Also of relevance to this issue is that an objection was taken to some parts of Mr Lewis' witness statement[15] in which his conversation with the employee was set out but other parts of the statement which also dealt with the conversation were not the subject of an objection.[16] The Deputy President ruled on the parts of Mr Lewis' statement to which objection was taken.[17] In the result, we are not persuaded that there is an arguable case of error in relation to the Deputy President's reliance on evidence given by Mr Lewis of his discussion with an employee who was the focus of Mr Pearse's email.
[17] We are also not persuaded that there is an arguable case of error in relation to Mr Pearse's contentions concerning an alleged denial of procedural fairness or the rule in Browne v Dunn. Mr Pearse was on notice from Viva Energy's written opening submissions that it was contending he had "failed to display any genuine remorse or contrition for his conduct until, at the eleventh hour, he felt it was in his best interests to do so."[18] Mr Pearse was cross examined in relation to his failure, prior to 17 February 2017, to express regret or apologise for sending the email.[19] In cross examination, Mr Pearse gave evidence that he sent the email on 25 November 2016, but it was not until 13 December 2016 that he first thought to himself that he should not have sent it.[20] In light of the evidence given by Mr Pearse, there does not appear to us to be any arguable case that the Deputy President erroneously concluded that Mr Pearse did not seek to recall the email, did not seek to reissue it in a less emotive or derogatory form, and the email was not remediated when it could have been. Those particular matters did not need to be expressly put to Mr Pearse in cross examination. Nor does there appear to us to be an arguable case that the Deputy President was in error in finding that Mr Pearse did not apologise until late in the process, at which time his dismissal was a likely outcome.
[18] Mr Pearse denied that his intent in sending the email was to elicit a reaction from the other operators against those participating in the training, or to flush out those who had participated, or were participating, in the training.[21] The Deputy President was not persuaded by Mr Pearse's evidence in that regard.[22] The Deputy President's findings in relation to Mr Pearse's intent in sending the email were unremarkable, given the content of the email and no arguable case of error in this regard has been made out.
[19] Mr Pearse contends that the Deputy President erred in failing to apply the Briginshaw standard when making findings about the effect of Mr Pearse's conduct in sending the email. However, there is no dispute in this case that Mr Pearse sent the email on 25 November 2016, nor is there any dispute about what was written by Mr Pearse in the email or to whom it was sent. Further, there is no doubt that Mr Pearse's conduct in sending the email constituted a breach of Viva Energy's policies. Viewed in that context, the question of whether or not the email had a particular effect on one or more employees could not have had a significant bearing on the ultimate question of whether Mr Pearse's dismissal was harsh, unjust or unreasonable.
[20] The Deputy President's findings in relation to the effect of Mr Pearse's conduct in sending the email were as follows:[23]
"I find that the email did not have a significant effect across the operator workforce as a whole... It made some concerned about their relationship with their work colleagues, and uneasy about co-operating with the investigator. One employee was sufficiently concerned to trigger the initial alert to Mr Lewis. I find that the email had an adverse effect on a small number of employees..."
[21] We are not persuaded that there is an arguable case that the Deputy President was wrong in so finding, but even if he was, the erroneous finding of fact read in the context of the decision as a whole does not disclose an arguable case that the error, if it be that, was a significant error of fact. We are satisfied there is no arguable case of error in the fact finding by the Deputy President.
[22] Mr Pearse's application was decided on its own facts. The appeal does not raise any arguable appealable error in the Decision, nor does it give rise to any issue of importance or general application. There is no arguable case that the Decision was unreasonable, manifested any injustice or was counter-intuitive. The public interest is not enlivened by any of the grounds of appeal.
[23]
We are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, as required by s.400(1) of the Act, permission to appeal is refused.
Mr F Parry, QC_,_ for Viva Energy Refining Pty Ltd.
[2] Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 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; (2011) 192 FCR 78 at [44] -[46]
[5] [2010] FWAFB 5343, 197 IR 266 at [27]
[6] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]
[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[10] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]; s.591 of the Act
[11] Enterprise Flexibility Agreement Test Case, Print M0464 per Ross VP, Maher DP and Cox C at page 13; Pochi Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 509
[13] Secretary to the Department of Human Services v Sanding [2011] VSC 42; (2011) 36 VR 221 at [133]
[14] Pollitt v The Queen [1992] HCA 35; (1991) 174 CLR 558 per McHugh J at [19]
[15] Paragraphs [6] and [11] of Mr Lewis' statement: AB396-7; PN869-881
[16] See paragraphs [3]-[5] and [12] of Mr Lewis' statement: AB395-6
[18] Paragraph [67] of Viva Energy's opening written submissions: AB739
[19] PN663-7 & PN688-700: AB103 & AB105-7
Printed by authority of the Commonwealth Government Printer
Andrew Pearse
Viva Energy Refining Pty Ltd [2017] FWCFB 4701
(2000) 203 CLR 194
(2011) 192 FCR 78
(2001) 116 FCR 481
(2011) 36 VR 221
(1991) 174 CLR 558
(1989) 168 CLR 210
(2011) 85 ALJR 398
(1979) 36 FLR 482