s.604 - Appeal of decision

Appeal against decision [2025] FWC 142 of Commissioner Riordan at Sydney on 4 February 2025 in matter number U2024/10161

[1] Manjeet Singh was employed by CDC NSW Region 4 Pty Ltd ("CDC") as a bus driver. On 7 August 2024 he was dismissed for misconduct for using a mobile phone whilst operating a bus.

[2] Mr Singh commenced unfair dismissal proceedings under section 394 of the Fair Work Act 2009.[1] He denied that he had used a mobile phone whilst driving. There was CCTV footage of the incident. It showed Mr Singh reaching under his jumper and removing an object from the left breast pocket of his shirt. Mr Singh claimed that the object was a devotional diary, not a mobile phone.

[3] In a decision handed down on 4 February 2025,[2] Commissioner Riordan rejected that claim. Having regard in particular to the CCTV footage, the Commissioner found that Mr Singh had operated a mobile phone whilst driving. The Commissioner found this to be a valid reason for CDC to terminate Mr Singh's employment. The Commissioner acknowledged that the process culminating in the dismissal may not have been "best practice", but that any deficiency of procedural fairness was overcome by the seriousness of the offence and the strength of CDC's evidence. The Commissioner dismissed Mr Singh's unfair dismissal application.

[4] Mr Singh has lodged an appeal under section 604 against that decision. He requires permission to appeal.[3]

[5] The matter was listed before the Full Bench for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[6] Under section 400(1) of the Act, the Commission must not grant permission to appeal from a decision in an unfair dismissal matter unless it is in the public interest to do so. Section 400(2) provides that to the extent that an appeal is on a question of fact, it can only be made on the ground that the decision involved a significant error of fact. The test under section 400 is "a stringent one".[4]

[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error or a preference for a different result.[6] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that there is a diversity of decisions at first instance so that guidance from a Full Bench is required, that the decision at first instance reveals an injustice, that the result is counterintuitive, or that the legal principles applied appear disharmonious when compared with decisions dealing with similar matters.[7]

[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, an error by the Member at first instance is not necessarily a sufficient basis for the grant of permission to appeal.

[9] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[8] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[10] Mr Singh contended that the Commissioner made "significant errors of fact". In his Notice of Appeal, his written submissions and his oral submissions at the hearing before the Full Bench, Mr Singh submitted that the Commissioner had made the following errors:

1. Stating at [98] that Mr Singh had failed to bring his mobile phone to the hearing, but instead brought that of his daughter (at [93]). This was said to have impacted on the Commissioner's consideration of evidence that touching the screen on the phone would normally cause it to illuminate, where no illumination could be seen on Mr Singh's phone in the CCTV footage.

2. Stating at [93] that, having produced his daughter's phone, Mr Singh claimed that it was the "same make and model" as his phone, when Mr Singh had made no such claim.

3. Finding at [79(c)] that when Mr Singh removed the object from his pocket, the bus was still moving.

4. Finding at [95] that Mr Singh has submitted that his use of the devotional diary was an "incidental part of life", when no such submission was made.

5. Finding at [96] that a re-enactment of the event which was performed and filmed by Mr Singh did not completely reflect the actual movement claimed. Rather, Mr Singh contended that the Commissioner misdescribed the re-enactment.

[11] Some of these errors were said to have been the result of the Commissioner not ordering the transcript of the hearing and "denying himself access to the record". At the hearing before the Full Bench, Mr Singh submitted that had the Commissioner read the transcript he would not have reached the conclusions he did.

[12] At the hearing before the Full Bench, Mr Singh also challenged other findings in the decision on the basis that they were "not put" to him during the proceedings before the Commissioner. These principally concerned the conclusions which the Commissioner drew (at [83], [91] and [96]) following his review of the CCTV footage and the video of Mr Singh's re-enactment. They also included the suggestion at [98] that Mr Singh had failed to bring his mobile phone to the hearing.

[13] A similar criticism was made of the Commissioner's finding at [97] that a "flash of white" which could be seen on the CCTV footage when Mr Singh returned the object to his pocket was a reflection of light emanating from the window of the bus. Mr Singh submitted that it had not been suggested to the Commissioner at the hearing that he should draw such a conclusion.

[14] At the hearing before the Full Bench, Mr Singh observed that the matter was listed only for permission to appeal. He posited that a full analysis of the Commissioner's alleged errors and their impact on the decision would necessarily have to be undertaken at the hearing of the appeal.[9] At this stage, when considering whether to grant permission to appeal, the question was whether there was "something worth testing".

[15] Mr Singh submitted that the errors of fact that he had identified were pivotal in the Commissioner reaching the conclusion he did. He argued that had those errors not been made, the likely finding would have been that he had not been using a mobile phone, which would in all likelihood have resulted in a decision in his favour. Mr Singh contended that this attracted the public interest.

[16] At [78] of the decision, the Commissioner stated that "[t]he most relevant and crucial piece of evidence in this matter is the CCTV video of 5 May 2024". He referred at [79] to having watched the CCTV footage and the re-enactment video "more than 20 times", before going on in that paragraph to detail his observations. Those observations formed the basis of the Commissioner's finding at [83] that the object in Mr Singh's hand on the day in question was a mobile phone. The Commissioner also relied on the CCTV footage to:

1. differentiate between the appearance of Mr Singh's devotional diary and the object in the footage: at [90] and [96];

2. find that the actions revealed by the footage were not consistent with Mr Singh trying to open a diary so he could read it: at [91]; and

3. find that a "flash of white" in the footage was a reflection of light emanating from the window of a bus (and presumably not the white back of the devotional diary): at [97].

[17] The Commissioner's reliance on the CCTV footage is hardly surprising. It was the subject of considerable attention at the hearing before him. Each party in their submissions encouraged him to have regard to it. At the conclusion of the hearing, the Commissioner stated that he would "go back and review the video footage and other five, six, 10 dozen times until I reach a conclusion".[10]

[18] Mr Singh's Notice of Appeal does not raise a challenge to the Commissioner's findings regarding the CCTV footage. Even in his written and oral submissions, Mr Singh did not contend, in terms, that the Commissioner's findings were not reasonably open on the evidence, other than as to whether the bus was moving at the time he removed an object from his pocket. Mr Singh did not take the Full Bench to the CCTV footage or to Mr Singh's re-enactment video.

[19] The effect of Mr Singh's submissions was that, had the Commissioner not erred in the way alleged, he would have seen the footage in a different light. Mr Singh has not persuaded us that this would necessarily have been the case. It has not been made clear to us why, for example, it would have made a material difference to the Commissioner's review of the CCTV footage had he accepted that the phone that Mr Singh had in the witness box was the same as the one in the footage.

[20] But more significantly, we do not consider that Mr Singh has demonstrated that the Commissioner erred in stating that Mr Singh had failed to bring his mobile phone to the hearing, but instead brought that of his daughter. Mr Singh directed our attention to an extract from the transcript of the proceedings below in which he identified "his phone".[11] However, the transcript shows Mr Singh later referring to the phone as belonging to his daughter.[12] There is nothing to suggest that Mr Singh had more than one phone with him at the time.

[21] In his written submissions on appeal, Mr Singh contended that he produced "the actual phone" and "its provenance as being the actual phone was not challenged during the hearing". Be that as it may, it was Mr Singh's own evidence which apparently caused the Commissioner to question whether the phone produced at the hearing was the one Mr Singh had at the time of the incident. It was not incumbent on the Commissioner to challenge the "provenance" of the phone having regard to Mr Singh's evidence.

[22] Mr Singh's written submissions further contended that "an examination of the transcript and an objective assessment of the evidence would have shown the Commissioner" that Mr Singh's daughter had changed the cover on the phone since the incident. There was no such evidence before the Commissioner.[13] There was similarly no evidence before the Commissioner to support Mr Singh's oral submission on appeal that since the incident he had given the phone to his daughter.

[23] On the evidence available to the Commissioner, it was open to him to find that Mr Singh had not produced his phone at the hearing. Even were we to be satisfied that this finding had a material bearing on the Commissioner's observations of the CCTV footage (which we are not), Mr Singh has not demonstrated arguable error on these grounds.

[24] We are also not persuaded that the Commissioner erred in finding that the bus was still moving when Mr Singh removed the phone from his pocket. Again, Mr Singh has not demonstrated why this conclusion was not available on the evidence: we were not taken to the footage. In any event, Mr Singh appeared to concede under cross-examination before the Commissioner that the bus had continued moving, if "only for a second".[14]

[25] Mr Singh did not explain the basis on which he contended that at [96] of the decision, the Commissioner erred in finding that the re-enactment video did not completely reflect the actual movement claimed or that the Commissioner misdescribed the re-enactment. We were not taken to that video.

[26] We accept that there is no evidence to support the Commissioner's statement at [93] of the decision that Mr Singh claimed that his daughter's phone "was the same make and model as his phone". There is also no evidence that Mr Singh submitted that his use of the devotional diary was an "incidental part of life" as referred to at [95]. However, neither of these is a significant error.

[27] There is no arguable appealable error in the Commissioner making findings on the evidence that were not "put" to Mr Singh, either by the Commissioner himself or in cross-examination. In large part, Mr Singh's submissions in this regard were directed to the Commissioner's findings as to what the CCTV footage revealed. For the reasons already stated, the parties can have been in no doubt that the Commissioner intended to view the footage and form his own conclusions. This was an entirely orthodox approach.

[28] The same can be said for the criticism levelled at the Commissioner for reaching a conclusion at [97] which was not suggested to him in the hearing. The Commissioner was entitled to, and did, form his own views as to what the evidence revealed.

[29] In conclusion, the Commissioner's decision was premised on the conclusions he drew after reviewing the CCTV footage and the re-enactment video "more than 20 times". Other than in one respect, the Commissioner's findings resulting from that exercise were not directly challenged on appeal. Even were we to be satisfied that the Commissioner erred as alleged, Mr Singh has not persuaded us that such errors - singly or cumulatively - were significant in the context of the Commissioner's reasoning.

[30] But for the reasons we have stated, we do not consider that the Commissioner did in fact err, other than in the two respects referred to at [26] above. Those errors are immaterial.

[31] It follows that Mr Singh's submissions as to the public interest fall away. They were predicated on the Full Bench being satisfied both that the Commissioner had erred as alleged, but also as to the likely outcome of the proceeding had he not done so. We are not so satisfied.

[32] The errors that we have identified do not engage the public interest. We do not consider that the appeal raises any other matter that does so. In those circumstances, section 400(1) requires us to refuse permission to appeal.

C. McArdle, legal representative from McArdle Legal, for the Appellant.

B. Popple, legal representative from Kingston Reid, for the Respondent.

[1] In this decision, all references to legislative provisions are to provisions of that Act

[2] Marjeet Singh v CDC NSW Region 4 Pty Ltd T/A CDC NSW [2025] FWC 142

[3] Section 604(1)

[4] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[5] O'Sullivan v Farrer ([1989] HCA 61; 1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch ( 2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

[6] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]

[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[9] By analogy with the analysis undertaken by McHugh J in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [94]- [97]

[10] Transcript, 21 January 2025, PN634

[11] Transcript, 21 January 2025, PN70-PN78

[12] Transcript, 21 January 2025, PN356 and PN360

[13] We observe that in his Notice of Appeal, Mr Singh referred to an extract from the transcript of the proceedings below which was marked "indistinct". He stated that he had said "daughter" in explaining the different phone cover.

[14] Transcript, 21 January 2025, PN322-PN324

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