Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others

Application by Fairfield City Council for leave to appeal and appeal against a decision of Commissioner Murphy given on 16.12.2008 in matter no. IRC 261 of 2008 DECISION OF THE COMMISSION [2009] NSWIRComm 102 1 On 25 June 2009, the Full Bench of the Commission issued an ex tempore decision and made orders in this appeal. We indicated that we would provide more expansive reasons for our decision in due course. We now publish our reasons. 2 This is an application by Fairfield City Council for leave to appeal, and if leave be granted, an appeal against a decision and orders of Commissioner Murphy (now retired) given on 16 December 2008 in Teresa Soria and Fairfield Council [2008] NSWIRComm 1051. The decision under appeal concerned an unfair dismissal application, under s 84 of the Industrial Relations Act 1996 ('the Act'), brought by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ('the Union') on behalf of its member, Ms Teresa Soria (the respondent), whose employment had been terminated by reason of her alleged abandonment of her employment. The appellant contends that the Commissioner failed to understand and apply the proper construction of cl 31 - Abandonment of Employment - of the Fairfield City Council Enterprise Agreement and made findings that were not open on the evidence as to the respondent's alleged abandonment of her employment. The appellant also challenges the Commissioner's order of 14 weeks compensation arising from the respondent's unfair dismissal. Short Background 3 The respondent had 12 years service with the appellant as a Customer Service Officer. In November 2007, the respondent raised the possibility of taking three months leave without pay in order to visit her son in Bolivia who was recovering from drug addiction. Her request was refused. She then made a formal request to take leave in January 2008. As she had no accumulated leave, this request was also refused. About this time, the respondent booked an airline ticket to Bolivia, for which she was due to leave Australia on 13 January 2008. 4 In late December 2007, the respondent lodged a formal grievance about the matter and a meeting was held in which the appellant informed her she could take leave in February 2008, but not in January, due to a lack of staff. She disputed this and prepared an alternative roster, with other persons covering her leave. 5 On 12 January 2008, the respondent said she had felt frustrated, stressed and felt ill over her son's circumstances and the next day she phoned her Team Leader, Ms Filomena Gard, and told her she was ill and would not be returning to work for a week. 6 The next day (on the day she left Australia) the respondent spoke to her doctor by phone and he provided her with a doctor's certificate for four weeks. This certificate was faxed to the appellant by the respondent's sister on 16 January 2008. 7 The appellant sent three letters to the respondent on 22, 25 and 30 January 2008, seeking to discuss her absence from work. Obviously, there was no reply. On 7 February 2008, the appellant advised the respondent that it considered she had abandoned her employment, pursuant to cl 31 of the Fairfield City Council Enterprise Agreement. The clause is as follows: CLAUSE 31. Abandonment of Employment (i) Employment is considered abandoned if an employee fails to report to work after five (5) days' absence without prior approval or notice or contact with the supervisor having occurred. (ii) After the third day of an absence as described above, the Council will take all necessary steps (eg telephone calls to last known address, issue of letter to be delivered to last known address, persons visit to last known address), to ascertain the reason for the absence. (iii) Should, after taking the action set out above, the reasons for the non attendance and any proposed return to work date not be able to be ascertained, the employee will be considered to have abandoned their employment. (iv) A letter advising the employee that their employment is considered to be abandoned, will be delivered by a Council officer on the sixth working day after the absence commenced to the employee's last known address. (v) Should, through some reasons such as misadventure or other special circumstances, it be brought to Council's attention that it was not possible for the employee to be contacted or for the employee to communicate their absence within the five (5) day period, then the employee, subject to the acceptance by the Department Head of the reasons for the non attendance, will be re-instated to their position. This provision will not apply to circumstances where the unexplained absence has been in excess of one month. 8 The Union subsequently filed an application for relief from unfair dismissal under Pt 6 Ch 2 of the Act. The application was later amended to claim that the respondent had also been discriminated against because of her responsibilities as a carer under the Anti Discrimination Act 1977 and relying on s 169 of the Industrial Relations Act. 9 In the decision at first instance, the Commissioner determined that the respondent had not abandoned her employment, that the appellant itself had not complied with the provisions of cl 31 and that the respondent's dismissal was harsh, unreasonable and unjust because she should have been allowed a 'show cause' interview prior to dismissal. He ordered compensation of 14 weeks pay, taking into account what he said was the respondent's 'contributory negligence' for the amount he determined. SUBMISSIONS Submissions as to Leave 10 In view of our conclusions in this appeal, it is unnecessary to outline the submissions of the parties as to the merits of the appeal. We note however that both Counsel relied upon their written and oral submissions as to the question of leave and the appeal proper. For the appellant 11 Mr R Reitano of Counsel submitted that: The principles governing the grant of leave to appeal are set out in a large number of cases of which Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at 5 is one. The principles are reasonably undisputed. The reasons for the decision of Commissioner Murphy demonstrate serious and fundamental errors that as a matter of public interest justify the grant of leave to appeal. The issues that arise have wider implications here for the jurisprudence of the Commission particularly having regard to the issues that arises in respect of 'abandonment of employment' and the approach an employer should take in circumstances where an employee is refused approved leave and nonetheless takes some other form of self devised leave as a contrivance to avoid the employer's refusal. The appeal raises issues as to whether in circumstances where an employee completely fails to contact their employer for over a period of a month having been refused leave in the first place should be 'rewarded' by way of an order for compensation or whether the employee's conduct operates as some disentitling factor against the making of such a discretionary order. For the Union on behalf of the respondent 12 In opposing the grant of leave, Mr A Neal of Counsel submitted: The onus is on the appellant to persuade the Full Bench that the appeal raises issues which in the public interest warrant a grant of leave. The mere raising of a jurisdictional issue does not of itself establish a basis for the grant of leave: Knowles v Anglican Church Property Truest (No 2) 95 IR 380 at 381-382. Something more is required. ... The appellant's real complaint is that Commissioner Murphy erred in his application of clause 31 of the Fairfield City Council Enterprise Agreement when determining whether the respondent abandoned her employment. In terms of the parties' obligations under clause 31, having reviewed the evidence and submissions, Commissioner Murphy determined that: (i) through the provision of a medical certificate, the respondent had given the appellant notice of her absence required by clause 31(i);

(iii) accordingly, there had been no abandonment of employment and the respondent's termination was at the initiative of the appellant. The appeal from the Commissioner's application of clause 31 does not raise any issue of " real significance in the interest of justice " warranting the grant of leave. It merely seeks to re agitate issues of fact and law determined by the Commissioner at first instance in the manner described above, in particular the Commissioner's findings that the appellant had not taken all reasonable steps to ascertain the reason for the respondent's absence from work. Just as an appeal from a decision which is reasonably open on the evidence at first instance is not upheld for the reason that the Full Bench might have determined the matter differently (see s 191(3); Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 366; and Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392) in the absence of some fundamental error which in the public interest warrants appellate review, leave should not be granted. No such error in the Commissioner's application of clause 31 is identified by the appellant. The appeal raises issues regarding the application of clause 31 as between the appellant and the respondent. An appeal which has no wider application than the interests of the parties will not normally be granted leave: Stegbar v Transport Workers' Union (2008) 173 IR 350 at 359. Whilst clause 31 applies to all of Fairfield City Council's employees, the Commissioner's consideration and reasons were confined to the application of clause 31 to the particular facts before him. The Commissioner's decision involved no matter of general principle. The appeal raises no issue of wider application. The appellant suggests that the appeal raises issues as to whether an employee who does not contact their employer for a month should be 'rewarded' by an order for compensation. A grant of remedy by the Commission pursuant to s 89 is a discretionary one: see Burge v NSW BHP Steel (2001) 105 IR 325 at 326. The remedy granted by the Commissioner was open to him under s 89 and the amount awarded was a modest sum. The appellant has not met the "significant hurdle" required for leave. CONSIDERATION 13 Sections 188(1) and (2) of the Act are expressed as follows: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 14 The principles governing the grant of leave by the Full Bench of the Commission are well settled. A recent reiteration of those principles is to be found in Dlugolecka v Todber Pty Ltd t/as Leisure Lea Gardens Retirement Village (2008) 174 IR 73 at 22, where the Full Bench said: 22 How leave is to be dealt with is well settled - it will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. It must be shown that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd and Others (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd and Others v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 15 The following passage from Commissioner of Police v Dobbie (2006) 157 IR 44, is also worth restating. At par 68, the Full Bench said: 68 Whilst an appellate court or tribunal is duty bound to reverse conclusions based on a trial judge's views of fact when those views of fact are plainly wrong, an appellate court or tribunal is equally duty bound not to reverse such decisions of a trial judge merely because the appellate court or tribunal itself takes a view different from that of the trial judge of the findings that should have been made: Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43 per Wright J, President and Walton J Vice President; Martin v Byrnes [1999] NSWCA 144. 16 Having considered the written and oral submissions of the parties, we do not consider that this appeal raises any issue of real significance or has wider implications for the unfair dismissal jurisdiction of the Commission. The appeal does not raise any issue beyond the interests of the direct parties to the appeal: See Stegbar Pty Ltd v Transport Workers' Union of New South Wales (on behalf of Cruikshank Transport Pty Ltd) (2008) 173 IR 350. We do not believe that this appeal has implications for the proper interpretation of cl 31 of the Agreement. Whether an employee has abandoned his/her employment and whether the terms of cl 31 are complied with, will depend very much on the facts and circumstances of each particular case. 17 The appellant's case primarily seeks to challenge the Commissioner's findings of fact that the respondent had not abandoned her employment and whether the Commissioner had erred in exercising his discretion to award compensation in the amount of 14 weeks pay. As observed in the authorities cited above, on both these grounds of appeal, the appellant faces a significant hurdle in obtaining leave. We have concluded that the appellant has failed to overcome that significant hurdle. 18 In his decision, the Commissioner made a number of findings on the failures of the Council to comply with the terms of cl 31 of the Agreement. The appellant criticises the Commissioner's decision in that respect and claims that such findings were not open to him on the evidence. In our view, these findings adverse to the appellant are not relevant to the Commissioner's determination of the matter. Clause 31(i) requires steps to be taken by the employee to avoid a conclusion by the Council that the employee has abandoned his/her employment. While it seems curious, it would appear that there is little more that the employee is required to do to satisfy his/her obligations under the clause. To rely on what the employer is required to do is to focus on the wrong question. In other words, it is not what steps the Council might have failed to take which is relevant, but whether the employee has failed to take such steps. It was plainly open for the Commissioner to conclude that she had done so. 19 Notwithstanding the respondent's less than satisfactory conduct, and for which the appellant was entitled to be suspicious, the Commissioner found that she had complied with her obligations under the clause. Specifically, he found that the respondent had contacted her supervisor (a Team Leader) to put the appellant on notice of her absence and had her sister fax a medical certificate to the appellant for a period of one month. Thus, she had complied with cl 31(i) by, at the very least, having contact with her supervisor and giving notice of how long she was likely to be absent. Like the Commissioner, we would observe that the appellant, having regard for the immediate previous events (in November and December 2007), would have been under no illusion as to the basis for, and duration of her absence. Writing letters to her address seeking this information was completely unnecessary and served no purpose. 20 Once the Commissioner made these findings of fact, we consider it was entirely open for him to make a finding that the respondent had not abandoned her employment. Moreover, we would agree with him in that respect. We can find no error in his conclusions or the reasoning process leading to them. Given these conclusions, it is hardly surprising that the Commissioner found that the termination of the respondent's employment was harsh, unreasonable and unjust within the meaning of s 84 of the Act. 21 As to the award of 14 weeks compensation, the Commissioner plainly considered that amount in the context of what he described as the respondent's 'contributory negligence' by her handling of the situation. There is no doubt under s 89 of the Act, that unless an appealable error of the kind discussed in House v King (1936) 55 CLR 499, can be identified, then there can be no basis for challenging such a decision on appeal: See Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194. We find no such error in the Commissioner's exercise of discretion. 22 While we may not agree with the amount of compensation the Commissioner ordered, (or indeed, whether any compensation at all was appropriate, given the amount of five weeks notice paid and the respondent's conduct): See Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 12, we do not see how the order could be described as anything other than a conventional exercise of the Commission's discretion under s 89 of the Act. In this regard, we would also refer to D & R Commercial Pty Ltd v Flood (2002) 113 IR 344, where the Full Bench said at par 64: 64 The power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by s 89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in s 89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made. We would thus accept the submissions of the respondent to the extent that it was contended that the way in which, and the extent to which, those matters are in fact taken into account is ultimately a matter of discretion in the circumstances of the instant case. See, for example, the decision of the Full Bench in Sunny Queen Limited t/as Australian Quality Egg Farms v Reilly [2000] NSWIRComm 1128. 23 Finally, we would concur with the Commissioner that the appropriate response from the appellant for the respondent's conduct should have been to allow her an opportunity to explain her 'imperfect handling of the situation' and to 'show cause' why disciplinary action should not be taken against her.

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Cases Cited (22)