Fair Work Act 2009_

s.604 - Appeal of decision

Appeal against decision [2013] FWC 4513 of Commissioner Cloghan at Perth on 22 August 2013 in matter number U2012/17252.

[1] This is an appeal for which permission under s.604(1) of the Fair Work Act 2009 (the Act) is required. The appeal by Mr Wayne Schwenke (the Appellant) is against a decision of Commissioner Cloghan (2013) FWC 4513 in relation to what the Appellant alleges was his unfair dismissal by Silcar Pty Ltd t/as Silcar Energy Solutions (the Respondent). The Commissioner determined that the Appellant's dismissal was not unfair, pursuant to s.387 of the Act. Accordingly, he dismissed the application.

[2] The Appellant had been summarily dismissed on 7 December 2012 as a result of a number of work performance issues, failure to report a health and safety incident in appropriate time and unauthorised taping of a meeting with the Respondent.

[3] The Commissioner decided, inter alia, that:

● On the balance of probabilities, the Appellant did secretly record a performance discussion on 27 November 2012 with the Respondent. He concluded at para 69 of his decision:

". . . that the secret recording of Mr Schwenke's performance discussion was contrary to his duty of good faith or fidelity to the employer, and undermined the mutual trust and confidence required in the employment relationship."

● The Respondent had identified a number of performance issues, including the failure of the Appellant to report a safety incident which occurred on 9 October until 11 October contrary to the requirements of his position.

● The Appellant was not terminated whilst on sick leave.

[4] The Commissioner found that there was a valid reason for the dismissal and that there was no matter which rendered the dismissal of the Appellant harsh, unjust or unreasonable.

[5] The original application was heard in Perth on 10 June 2013 and the Commissioner delivered his decision on 22 August 2013. The Appellant appeared for himself and the Respondent was represented by Mr S. Kemp of counsel.

[6] The Appellant's Grounds of Appeal can be conveniently grouped together and summarised as follows:

● He was unable to present his case as well as he might because of his personal circumstances at the time of the hearing.

● He was not given the Respondent's witness statements until the day of the hearing and therefore he was disadvantaged in the presentation of his case.

● If given the opportunity, he will present evidence that the Respondent's representatives had behaved inappropriately in a number of respects and that his dismissal was unfair. He argues that the Commissioner was in error in finding that there was a valid reason for his dismissal.

[7] At the commencement of the appeal proceedings in Perth, the Full Bench granted permission for the Respondent to be represented by Mr Kemp again. The Appellant represented himself. A number of adjustments to the conduct of the hearing were made to ensure that the Appellant was able to present his case.

[8] An appeal under s.604 of the Fair Work Act 2009 (the Act) involves a proceeding by way of rehearing with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The majority of the High Court in that case explained in the following passage how error may be identified where a discretionary decision is involved:

"Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so [1936] HCA 40; (55 CLR 499 at 505)."

[9] Although s.604(2) requires the Fair Work Commission (the Commission) to grant permission to appeal if it is satisfied that it is in the public interest to do so, there is a note following the subsection to the effect that this does not apply in relation to an application for an appeal from an unfair dismissal decision (see s.400). The effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two significant ways in relation to appeals from unfair dismissal decisions. Firstly, in regard to the granting of permission to appeal, this may only be granted where the Commission considers it is in the public interest to do so (s.400(1)). Secondly, where an appeal is based on error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s.400(2)).

[10] In GlaxoSmithKline Australia Pty Ltd v Makin [(2010) FWAFB 5343] a Full Bench of the Commission considered when it would be in the 'public interest' to grant permission to appeal in accordance with s.400:

"[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [sic] [Comalco v O'Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]

[27] Although 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, it seems to us that none of those elements is present in this case."

[11] Given the nature of this matter, we also note the often quoted approach that a finding at first instance which depends significantly on the credibility of a witness should not be set aside on appeal unless it can be shown that the trial judge: ". . . has failed to use or has palpably misused his (or her) advantage" or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence "or which was "glaringly improbable. [Devries v Australian National Railways Commission (1993) 177 CLR 472]

[12] The main thrust of the Appellant's appeal is that he should be allowed to introduce additional evidence which, he says, will show that there was not a valid reason for dismissal.

[13] Section 607(2) of the Act allows the Commission to admit further evidence on appeal.

[14] We accept and apply, however, the approach stated by the New South Wales Court of Appeal in Akins v National Australia Bank [(1994) 34 NSWLR 155 at 160] (Akins):

"Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist, there are well understood general principles upon which a determination is made. These principles require that in general three considerations need to be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."

[15] We now turn to consider the Grounds of Appeal under the categories set out in Paragraph 6 above.

Inability to Present Case due to Personal Circumstances

[16] The Appellant submitted that the appeal should be allowed as he was disadvantaged on the day of the hearing because of "the duress of sleeping in my car, lack of food, shelter and sleep".

[17] We can find nothing in the Commissioner's decision or in the transcript of the proceedings before him which indicates that the Appellant was not treated appropriately as a self represented applicant.

[18] The Commissioner explained how the proceedings would be conducted and gave the Appellant plenty of latitude to present his case. The Appellant made only a passing reference to his personal circumstances and at no stage sought an adjournment. Moreover, there was no attempt, before us, to provide any evidence, medical or otherwise, which would have supported an argument that the Commissioner was not entitled to proceed to his decision based on the case that was put to him.

[19] Accordingly, we do not find any appellable error in the Commissioner's decision under this ground.

[20] The Appellant states that he did not receive the Respondent's witness statements until the day of the hearing, he was therefore disadvantaged in preparing his case and that this is a ground for setting aside the Commissioner's decision.

[21] Before the Full Bench, the Appellant did not deny that he had provided an email address but asserted that the Commissioner knew that he had not received the documents and should have given him more time. (Transcript PN125 - 141) Under questioning he admitted that he had received statements but that there were differences from those given to him on the day of the hearing. (Transcript PN377 - 378)

[22] It is apparent from the transcript before the Commissioner that the Appellant had received the Respondent's statements and had responded to them.

[23] The following excerpts at Transcript PN7 to PN17 illustrate the point:

"THE COMMISSIONER: Mr Kemp, just before we begin, I've just got a few housekeeping matters. The first matter I want to refer to is page 65 of the documents that have been provided by the employer. Mr Schwenke indicated in one of the communications to the commission that he couldn't read the document. I think I'm in the same position as well. If at some time during these proceedings I could be provided with a copy of that document, and I'll give Mr Schwenke the opportunity to make any comment in relation to that.

MR KEMP: That's a fair point, and I'll try and get the originals brought through with the witnesses.

MR KEMP: On that point, before we phone the witnesses, I just wonder which of the witnesses Mr Schwenke would want to cross-examine, if it was all of them, or if - and I'm particularly now referring to the witness statement of Nina Fortune, as to whether there's anything controversial that he wishes to cross-examine on.

THE COMMISSIONER: Yes. I'll get to that matter in a moment. I'll just go through this firstly. The second document, if I could take you to it, is page 72. Mr Schwenke says that he can't read part of that document. I think it's a bit clearer to me, given the copy I've got, but is it possible for you to read out that writing?

MR KEMP: I will get a better copy and ask perhaps the witness to read that.

THE COMMISSIONER: Yes. Thank you. The final thing before we get to the witnesses is, if you could explain to me documents 94 and 95. What I'm trying to understand is, which one is correct in terms of whether Mr Schwenke was paid days in lieu of notice or not? Document 94 indicates that he was, document 95 excludes pay in lieu.

THE COMMISSIONER: All right. Thank you. I'll now move on to the question that you put earlier. Mr Schwenke, you've received witness statements. Can you indicate to the commission which witness statements can be taken as read without any cross-examination, or which witnesses do you wish to cross-examine?

THE COMMISSIONER: All of them. Mr Kemp, I think that's your answer."

"THE COMMISSIONER: I then have a document that's called the proposed statement of agreed facts. Are those facts agreed?

MR SCHWENKE: Would that be the points as they relate to the late filing?

THE COMMISSIONER: There's a small number of points. They're 1 to 6.

THE COMMISSIONER: That will be marked as exhibit R3.

THE COMMISSIONER: I'll take the various witness statements as the witnesses are called. In terms of the bundle of documents that have been provided by the employer, I'll mark that as exhibit R4.

THE COMMISSIONER: Mr Schwenke, you haven't provided a witness statement, so I'll need to indicate to you that because of not doing that, if I get any submission from Mr Kemp in relation to any evidence which you give of which he has no notice and may seek to get instructions from the employer, then I'll grant him that opportunity to do that. What's required, just in simple terms, is that you will stand, give me your submission, and then I would expect you to go into the witness box and give your evidence. That's a matter for you. Once you've done that, then the employer will give their submission, and I'll take their evidence, and then I'll receive any closing submissions from both parties.

So that's, in brief, what happens. So there's no need to repeat any material contained in the documents that you've given. You can take it that those documents have been read. But if you want to make any opening submissions, that's for you to do that now, and then either go into the witness box or tell me what evidence you want to give."

"Now, have you read the affidavits that have been filed from Mr Green, Mr Janissen, Mr Harrington and Ms Fortune?---Yes.

You're aware of what they say and what they disagree with, where they disagree with you?---Yes.

You're aware that that will be their evidence today?---Yes."

[26] We accept that the Appellant was sent Exhibit R4 (in the proceedings before Cloghan C), which dealt with the health and safety incident, by post and responded to it. The witness statements of the Respondent's were emailed to the Appellant on 24 May 2013. He sent an email, from the same email address to the Respondent's solicitors on the same day.

[27] It is clear that the Appellant had received the statements in ample time, had dealt with them, but did not bring them to the Commission. Nevertheless, he was provided with copies and did not request any adjournment or further time on this count.

[28] Therefore, we do not find any appellable error in the Commissioner's decision on this ground.

New Witnesses to Overturn Commissioner's Decision on Valid Reason

[29] The Appellant's argument under this ground is that he will be able to produce some 15 witnesses who will show that his dismissal was unfair (Transcript PN150 to PN157)

[30] The witnesses were not identified and the precise nature of their evidence was not presented. However, it is clear that it would go to the general approach of the Respondent's representatives rather than disputing the evidence which the Commissioner accepted and upon which he based his decision. There is nothing in what was stated by the Appellant which would have any prospect of disturbing the Commissioner's decision.

[31] Moreover, it is clear that these witnesses could have been called before the Commissioner, but the Appellant did not do so. We are not prepared, consistent with the approach in Akins at [13] above, to admit new evidence as requested by the Appellant.

[32] We should say that the Commissioner's decision seems to us entirely appropriate and well considered.

[33] He had ample evidence to justify his decision that there was a valid reason for the Appellant's dismissal including:

● It was not disputed that the Appellant told the employer at the disciplinary meeting on 7 December 2012 that he had recorded the meeting on 27 November. The Appellant stated that he had recorded the meeting in his application and agreed statements of facts. Yet he attempted to deny it under questioning before the Commissioner.

● The Commissioner was entitled to conclude that the Appellant had made the recording in secret and that this action was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship. This action, in itself, was grounds for summary dismissal.

● The Commissioner was entitled to draw a negative inference as to the Appellant's credit as a witness from his conduct in the witness box before him.

● The Commissioner was entitled to accept the Respondent's evidence as to the Appellants poor attendance, standard of work and productivity in the absence of compelling evidence to the contrary from the Appellant.

● In deciding that the Appellant had not reported the health and safety incident on 9 October immediately, but rather two days later, the Commissioner relied not just on witness evidence but on the Respondent's contemporaneous documentary reports.

[34] Accordingly, we can find no appellable error in the Commissioner's consideration of the evidence and conclusion that the Respondent had a valid reason for dismissing the application.

[35] The Commissioner then considered each of the matters raised by each subsection in s.387 and concluded, appropriately in our view, that there was nothing which rendered the Appellant's dismissal harsh, unjust or unreasonable.

[36] As is apparent from our reasons above we have not identified any significant error of fact or any other appealable error in the reasoning or conclusions of the Commissioner, nor do we believe that the public interest is attracted.

S. Kemp, of counsel for the respondent, Silcar Pty Ltd t/as Silcar Energy Solutions.

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