Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2023] FWC 121 of Commissioner Platt at Adelaide on 17 January 2023 in matter number U2022/7847 - permission to appeal refused.

[1] Mr Kieran Michael Chalk (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required, against a decision (the Decision) of Commissioner Platt (the Commissioner) issued on 17 January 2023. The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from his employment with Ventia Australia Pty Ltd (the Respondent) under s.394 of the Act.

[2] The matter was listed for permission to appeal only. On 8 February 2023, directions were set for the filing of material and the matter was listed for hearing on 6 March 2023. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed an outline of submissions. The Appellant also provided a list of authorities and was content for the decision pertaining to permission to appeal to be determined on the papers. On that basis the hearing scheduled for Monday 6 March 2023 was vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.

[3] For the reasons that follow, permission to appeal is refused.

[4] The Commissioner's Decision noted that a confidentiality order pursuant to s.594 of the Act was made by consent of the parties in respect of the publication of the contents or any material that tended to identify the contents of a commercial contract between Ventia and its Client (who the Commissioner chose not to name) for the provision of specified services (referred to as the 'Services Agreement'). The order was made by the Commissioner to protect the commercially sensitive contract.

[5] Ventia provides facility management services to a client pursuant to the Services Agreement. Mr Chalk was employed by Ventia as Strategic Asset Manager and was a senior member of the team that managed that contract. Mr Chalk's contract of employment contained general obligations in respect of his duties to Ventia, requirements prohibiting the disclosure of confidential information and Code of Conduct obligations.

[6] On Saturday 26 March 2022, Mr Chalk emailed Ms Kate Toner a confidential version of the Services Agreement. Ms Toner was a former employee of Ventia who left the employ of Ventia in acrimonious circumstances on 19 January 2022.

[7] Whilst Ventia was not aware of this communication at the time of Mr Chalk's dismissal, it contends this email was sent in breach of Mr Chalk's confidentiality obligations and is a valid reason for dismissal. Mr Chalk contends he sent the email to Ms Toner's email so that he could manipulate a graphic contained within the document.

[8] On 1 July 2022, Mr Chalk sent an email directly to Ventia's Client concerning the operation of the Services Agreement. The email advised that certain contractor charge out rates were above the ceiling threshold contained in the Agreement, possibly in the order of $68K per month and the matter required further investigation. Mr Chalk contended that the Services Agreement required him to alert the Client of this issue. Ventia contended that the communication to the Client was not a requirement of the Services Agreement, required further investigation and was thus premature, embarrassed Ventia, and that this conduct was a breach of the obligations (express and implied) under Mr Chalk's contract of employment. Ventia submitted that a handwritten note made by Mr Chalk and left in his desk contradicts Mr Chalk's explanation for the email to the Client.

[9] Ventia also asserts that Mr Chalk displayed a lack of truthfulness in relation to disclosures about his relationship with Ms Toner which was legitimately raised with him during his employment.

[10] Finally, Ventia submits that it lost trust and confidence in Mr Chalk's ability to perform his role as a consequence of his actions.

[11] The Commissioner summarised the relevant evidence at [22] of the Decision.

[12] At 5.17pm on 1 July 2022, Mr Chalk forwarded an email chain to Mr V, the Asset Safety and Data Manager at the Client. On or around 7 July 2022, Mr Lacar (from the Client) contacted Ms Tanya Fuller of Ventia and raised an issue that the Client had been notified that Ventia may be charging above the ceiling rates contained in the Services Agreement. Upon receipt of this information, Ventia enquired with the Client as to who had shared the information about subcontractor ceiling rates. The Client informed Ventia that they had found out the information via an email that had been sent by Mr Chalk to Mr V. No one else from Ventia had been aware that Mr Chalk had sent the email. At about 5pm on 12 July 2022, Mr Watts handed Mr Chalk a letter standing him down from his employment on full pay pending an investigation into the sharing of sensitive information with the Client as a result of the email sent to Mr V. At 5.12pm on 12 July 2022, the email sent from Mr Chalk's email account to Mr V was deleted from Mr Chalk's 'sent items'. Mr Chalk denies doing this.

[13] The Commissioner noted that Mr Chalk was unable to adequately explain why he did not advise Mr Watts or Mr Zensea of his intention to send the 5.19pm communication directly to the Client. Mr Chalk determined not to copy this email to members of the Ventia Team including Mr Watts or Mr Zensea. In cross examination Mr Chalk accepted this was a mistake.

[14] The email to Mr V was deleted from Mr Chalk's email account shortly after Mr Chalk was given a stand down notice on 12 July 2022. Mr Chalk denied deleting the email. The Commissioner did not accept Mr Chalk's evidence is this regard.

[15] The Commissioner accepted that the information sent to Mr V was not in the public domain and was confidential to Ventia based on the definition of confidential information contained in Clause 28 of the Contract of Employment. Mr Chalk did not contend he was a 'whistle blower.' The Commissioner was not persuaded that the information about the charge-out rates that Mr Chalk received amounted to a 'data breach'.

[16] The Commissioner found that Mr Chalk's suggestion that he was required to send the email because of 'data integrity issues' appeared to seek to avoid or reduce his responsibility for his conduct, and whilst Mr Chalk reported feeling stressed, the Commissioner found this was not a satisfactory explanation for his conduct. The Commissioner found Mr Chalk had a variety of options available to him other than to raise what at the time was merely a possibility. The Commissioner noted the disclosure caused unnecessary concern to the Client, and Ventia was considerably embarrassed by the disclosure. The Commissioner found that it appeared to be that Mr Chalk's conduct was in breach of both his confidentiality obligation and his duties owed to Ventia. Further, the Commissioner found that his actions in not further investigating the matter or consulting with Mr Watts and/or Mr Zensea were ill-considered for a person of his experience and seniority. The Commissioner found Mr Chalk's action and his subsequent responses provided a proper basis for Ventia to lose trust and confidence in his ability to adequately perform his role.

[17] About two weeks after the dismissal, Mr Watts was cleaning out Mr Chalk's desk when he found a handwritten document which appeared to be in Mr Chalk's handwriting.

[18] Ventia suggest that this document contains a plan for Mr Chalk to extricate his role from Ventia and install himself in a similar role with the Client. Mr Chalk stated that the document was prepared in a discussion with Ms Toner. Mr Chalk contended that he transcribed what Ms Toner wrote, word for word. The Commissioner noted Ms Toner subsequently gave evidence on this point and tendered a photograph that was taken on 8 May 2022 of the 'source document'. Ms Toner asserted that this document was prepared by her to assist Mr Chalk in a meeting about his work performance.

[19] The Commissioner found that the note appears to contemplate a strategy to persuade the Client that Mr Chalk is the only person who can perform the role, that there are no other options, and the performance of Mr Chalk's role is being obstructed by internal politics. The solution envisaged by the note is for the Client to extract the role from Ventia and install Mr Chalk as the dedicated liaison between the Client and Ventia.

[20] Mr Chalk accepted the document was written by him. Mr Chalk advised that this document was prepared some months prior to the email to Mr V. Initially Mr Chalk contended that Ms Toner had dictated the content and he had simply written it down to humour her and calm her down and reduce a stressful situation at home. After being cross examined on the wording of the note, the Commissioner noted Mr Chalk accepted that at least some of the content was authored by him. Mr Chalk accepted that his evidence as to the creation of this document had varied and that suggested that it was as a result of a memory failure. Ms Toner suggested the document was created to assist Mr Chalk at a meeting with Ventia concerning his performance. The Commissioner found that the two accounts of how the document were created ware incompatible, and Mr Chalk's varying accounts as to the creation of this document adversely impact on his credibility.

[21] The Commissioner did not accept Mr Chalk's explanation of how or why this document was created, and noted the strategy contained in the note appears to be the more likely of the two explanations proffered to explain why the email was sent to Mr V.

Mr Chalk's explanation for sending the Services Agreement to Toner's email on 26 March 2022

[22] There is no dispute the email was sent to Ms Toner's personal email address by Mr Chalk at a time when Ms Toner was not an employee of Ventia. Mr Chalk does not dispute the Services Agreement was a confidential document. The Commissioner found this is a clear breach of Mr Chalk's confidentially obligations.

[23] Mr Chalk's explanation for his conduct was that Mr Watts required an image to be extracted out of the Services Agreement. The request was made on a Friday, and it was needed by the Monday morning. Mr Chalk decided that it was best done on a Macintosh Computer. Ms Toner used a Macintosh Computer and Mr Chalk determined to email the document to Ms Toner's email account.

[24] The Commissioner noted Mr Chalk stated that he accessed the email on Ms Toner's Macintosh Computer on the Saturday, opened the file, copied the image, and deleted the document.

[25] The Commissioner found Mr Chalk was unable to satisfactorily explain why the file could not be manipulated using Ventia's equipment (with IT support as required), or why the email could not have been sent to an email account controlled by him (such as a Ventia account and accessed via webmail) instead of Ms Toner's account, as these options would have enabled the task to be completed without breaching Mr Chalk's confidentiality obligations. Mr Chalk contends it 'was a circumstance of expedience.' Mr Chalk belatedly accepted he should not have taken this course of action before then blaming it on workload issues.

[26] Mr Chalk contended that he would not be in breach of his confidentiality obligations as long as appropriate controls and actions were taken by him to ensure that the material does not get misused or fall into the wrong hands. The Commissioner found that this approach appeared significantly more relaxed when compared to Mr Chalk's more rigorous approach concerning the need to communicate perceived data integrity issues.

[27] Ultimately, the Commissioner found Mr Chalk's explanation as to why he breached his confidentiality obligations unconvincing.

[28] Subsequently, the Commissioner considered each of the matters specified in s.387 of the Act, and was satisfied that the dismissal of the Appellant was not harsh, unjust or unreasonable, and that the Appellant was not unfairly dismissed within the meaning of s.385 of the Act.

[29] The Decision subject to appeal was made under Part 3-2 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.

[30] 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 Makin[1] 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..."[2]

[31] 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.[3] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[32] The grounds of appeal are summarised as follows:

• Ground 1 - Misapplication of provisions of s.387 of the Act (Error of Law): The Appellant submitted that the Commissioner erred in their application of the legal criteria for determining whether the dismissal was unfair, including whether the employer had a valid reason for the dismissal and whether the dismissal was proportionate to the alleged misconduct.

• Ground 2 - Failure to consider data ownership and legal provisions for breach of confidence (Error of Law): The Appellant submitted the Commissioner failed to consider the relevant contractual and legal provisions relating to the ownership of confidential information in establishing if a breach of confidence occurred, which under the circumstances should be given equal consideration with those within the contract of employment.

• Ground 3 - Error in acceptance of evidence and application of the Briginshaw principle (Error of Law): The Appellant submitted the Commissioner's Decision relies upon the credit given to the Respondent's witnesses based on observations over the two days of the hearing on the matter, and weight then applied to their witness statements and evidence that a breach of confidence occurred, even though no evidence or justification for that conclusion is given beyond opinion. The Decision was therefore not based on sound and justifiable reasons, but rather on the unsupported and potentially biased claims of the Respondent's witnesses.

• Ground 4 - Failure to account for material considerations and mistaking of the facts (Significant Errors of Fact): The Appellant submitted the Commissioner dismissed documented evidence provided by the appellant both during preparation of the Court Book and in reaching the Decision.

[33] The Appellant submits under Ground 1 that the Commissioner made an error of law by misapplying the provisions of s.387 of the Act, particularly s.387(a). The Appellant submits that the Decision incorrectly identifies two key issues as those to be determined in the matter which are inconsistent and narrower in scope than the allegations of misconduct identified in the Respondent's submissions, and with the issues that formed the basis for the hearing. As a result, the requirement to establish the conduct actually occurred prior to determination of there being a valid reason for dismissal was not fulfilled in reaching the Decision.

[34] The Appellant further submits that consideration given to loss of trust and confidence as a valid reason for termination was in error as the Respondent did not raise this as a valid reason for termination, rather a result of the substantiation of other reasons.

[35] The Appellant also submits that the Commissioner erred in the application of legal principles in determining whether the forwarding of a copy of an unredacted version of the Service Agreement to a private e-mail address was a valid reason due to conduct. The Appellant submits that even though Ms Toner was not the intended recipient of the AGFMA Services Agreement, as a recent former employee of Ventia, if she were to have accessed the document, she would have been subject to the requirements of Clause 22 in the terms of the Ventia employment contract and required to protect the confidential information. The Appellant submits there is no obvious breach of confidence as there is no suggestion that this obligation was breached, and there was no impact on the confidentiality of the information. The Appellant submits if it were still considered that there was a breach, it would be technical in nature, minor, and not conduct representing a valid reason for dismissal.

[36] Moreover, the Appellant submits that the Decision is inconsistent with decisions in Patrick Longobardi v New Horizons Enterprises Limited [2021] FWC 2203 at para 62-67, Samuel O'Leary v Huntsman Hotel Pty Ltd T/A the Archer Hotel [2018] FWC 7281 at para 30 and para 33-34.

[37] We consider that the Commissioner's approach in considering s.387(a) was not in error. Facts justifying dismissal, which existed at the time of the dismissal, should be considered even if the employer was unaware of those facts and did not rely on them at the time of dismissal.[4] Ultimately, the Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal.[5]

[38] The reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission.[6]

[39] It is apparent from reading the summary of the evidence in paragraph 22 of the Decision that the Commissioner was cognisant of the range of issues before him. A fair reading of the Decision does not support a conclusion that the Commissioner, in describing in particular the issues of Mr Chalk's email communication to Mr V and his emailing a copy of the Services Agreement to Ms Toner as key issues, was excluding from consideration all other issues before him. We are satisfied that the Commissioner did consider all aspects of the Appellant's case, and each relevant factor in reaching his determination.

[40] We also do not consider that the Commissioner forming a view that the Respondent had lost trust and confidence in the Appellant on the basis of the evidence before him was a matter that he was not entitled to take into account in determining whether the Respondent had a valid reason for termination. It was apparent from the evidence that the Respondent formed the view that the Applicant had not been truthful with it on a range of matters. It was open to the Commissioner make a finding of credit against the Appellant based on the evidence.

[41] We further do not accept that the Commissioner erred in reaching his conclusion that the Appellant forwarding of a copy of an unredacted version of the Service Agreement to a private e-mail address was a valid reason due to conduct. This finding was open to him on the evidence. The Appellant's submission that Ms Toner was not the intended recipient of the AGFMA Services Agreement, and given she had been a recent former employee of Ventia, was still subject to certain contractual requirements, is an attempt to have matters reconsidered on appeal when those matters were already determined in the matter at first instance and were conclusions that were open to the Commissioner.

[42] Finally, both first instance decisions cited by the Appellant as inconsistent with the current Decision in question turned on their own facts and therefore do not support a conclusion that the Commissioner's Decision was disharmonious with other decisions, or inconsistent with other authorities.

[43] We therefore do not consider that the Appellant has identified an appealable error under Ground 1 that would warrant the granting of permission to appeal. Accordingly, we reject this ground.

[44] In relation to Ground 2, the Appellant submits that the data associated with the assets or services ultimately belongs to the Client, and Ventia has a duty to maintain the confidentiality and integrity of the data for which responsibility was assigned to the Appellant. The reporting of the integrity issue directly to the Client therefore did not breach any confidentiality obligations.

[45] The Appellant submits that in this case, the issue with integrity of financial data relating to subcontractor hourly rates could have resulted in overcharging for maintenance services delivered, which could have serious implications for the Client. Therefore, the Appellant contends that it is reasonable for Ventia to report the issue to the Client as soon as it comes to their attention, as required under the Service Agreement. The Appellant submits that he acted on behalf of Ventia in reporting the issue to the authorised Client point of contact, fulfilling his role as responsible for data management services. The Appellant submits that forwarding the email directly at close of business the day the issue first comes to their attention is evidence of a responsible and appropriate course of action. The Appellant submits that reporting the issue was in line with the terms of the Services Agreement and the duty of care owed to the Client by Ventia.

[46] The Appellant submits that the Commissioner failed to identify and correctly address these facts, or adequately consider the evidence of the duties assigned to the Appellant by their line manager and the explicit terms of the services agreement, and the Commissioner failed to identify that the email sent by the Appellant to the Client did not represent a breach of confidence or Ventia's Code of Conduct, and therefore, there was not a valid reason for dismissal or a loss of trust and confidence.

[47] It is apparent from the Decision at first instance that the Commissioner was not satisfied with the Appellant's explanation for why he decided to share adverse information concerning the Respondent, with the Respondent's client before seeking to resolve the issue internally. We note that many of the submissions the Appellant has made on appeal under this issue are substantially similar to those advanced at first instance. The Commissioner determined that the Appellant's conduct in sending the 1 July email to Mr V was both a breach of his confidentiality obligation and a poor exercise of discretion by an experienced and senior employee who failed to consult with his superiors about a matter he himself recognised required further investigation.

[48] Like Ground 1, we consider that Ground 2 is an attempt to re-ventilate issues that were already determined at first instance, in circumstances where those conclusions were open to the Commissioner. We therefore find that the Appellant has failed to demonstrate an arguable case of error in regard to Ground 2 that would warrant the granting of permission to appeal, and we accordingly reject it.

[49] We are not satisfied that the Appellant has demonstrated an error of law in relation to the test in Briginshaw. The Commissioner at first instance had the opportunity to evaluate the evidence of the witnesses who appeared in person before him. He found the Appellant to be an unconvincing witness, that the Appellant did not listen to the questions, on one occasion was flippant, was evasive despite warnings in answer to questions, and his evidence varied. The Commissioner stated in his Decision that it appeared to him the Appellant was adjusting his evidence to suit the circumstances in the hope that it would assist his case. We have thoroughly reviewed the Decision at first instance, including the transcript of the hearing, and consider that these conclusions were reasonably open to the Commissioner.

[50] The Commissioner also stated in his Decision that the Appellant's evidence on the creation of a handwritten document found in his desk did not match that subsequently given by Ms Toner. The Commissioner further concluded that Ms Toner was an unconvincing witness, who was evasive and acted as an advocate against the Respondent and in support of the Appellant, as opposed to providing an objective account of what she knew about the matter. Contrastingly, the Commissioner found Mr Watts and Ms Browning for the Respondent provided objective evidence and he accepted the evidence of these witnesses. Likewise, we consider that these findings were reasonably open to the Commissioner.

[51] We are not satisfied that Ground 3 establishes a proper basis for the granting of permission to appeal based on the manner in which the Commissioner made findings of credit in the matter at first instance. Ground 3 is rejected.

[52] The Appellant submitted that certain evidence was excluded, including emails regarding the Appellant's role, duties and responsibilities, and the unredacted copy of the services agreement which was originally to be excluded on the basis of the Respondent's confidentiality request and the Commissioner's own discretion. The Appellant submitted that this suggests that the Commissioner may not have considered all relevant evidence in reaching their Decision leading to several significant errors.

[53] The Appellant has failed to demonstrate how the services agreement being admitted into evidence on a redacted basis, or his treatment of any other documents such as emails has led to the Commissioner failing to take into account a material consideration, or making a significant error of fact. The Appellant also does not justify why the Commissioner's Decision to exclude the evidence in question was in error. We consider that the Commissioner was correct in excluding the evidence in question. Ground 4 is thus rejected as it discloses no appealable error.

[54] Having considered the Appellant's submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant's unfair dismissal application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence before him. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400(1) that:

• There is a diversity of decisions of this kind at first instance so that guidance from an appellate body is required;

• The appeal raises issues of importance and/or general application;

• The Decision at first instance manifests an injustice, or the result is counter intuitive; or

• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[55] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.

[56] Permission to appeal is refused.

[1] [2010] FWAFB 5343; (2010) 197 IR 266.

[2] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[3] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[4] Shepherd v Felt & Textiles of Australia Ltd (4 June 1931), [1931] HCA 21; (1931) 45 CLR 359 at pp. 373, 377‒378].

[5] Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995) at paras 131, 136 (McHugh and Gummow JJ), [(1995) 185 CLR 410 at pp. 467, 468].

[6] MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at para. 42. See also Fenton v Swan Hill Aboriginal Co-operative Ltd [1998] FCA 1613 (4 September 1998).

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