Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2023] FWC 585 of Deputy President Binet at Perth on 7 August 2023 in matter number U2022/10389 - permission to appeal refused.

[1] Mr Max Vincent has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Deputy President Binet issued on 7 August 2023, for which permission to appeal is required.

[2] The decision concerned an application made by Mr Vincent against Roof Safe Pty Ltd pursuant to s 394 of the Act for an unfair dismissal remedy. The Deputy President determined that the termination of Mr Vincent's employment was not harsh, unjust or unreasonable and dismissed the application.

[3] Mr Vincent's application was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[4] The respondent manufactures specialist parts for roofing companies. It is owned by Mr James Hayman, who holds the role of sole Director.

[5] Mr Vincent was employed by the respondent as Chief Executive Officer from 21 March 2022. In around August 2022, following the disconnection of the respondent's telephone service, Mr Hayman began to suspect that company funds were being misappropriated. A review of the respondent's bank account statements identified purchases at Furniture Mart, JB HIFI and Amart Furniture, which Mr Hayman says he did not authorise.

[6] Mr Hayman tried unsuccessfully to contact Mr Vincent by telephone in early August 2022. A management meeting was convened on 12 August 2022 at which Mr Hayman identified his concerns. Mr Vincent declined to provide an explanation at the meeting and subsequently refused to take Mr Hayman's telephone calls or speak to him in person.

[7] On 14 September 2022, Mr Vincent was stood down pending an investigation into his conduct. The show cause letter sent to Mr Vincent set out three allegations of misconduct against him as follows:

• (1) Mr Vincent had misappropriated company funds;

• (2) Mr Vincent had failed to attend work for an extended period; and

• (3) Mr Vincent had been uncontactable for an extended period.

[8] On 27 September 2022, Mr Vincent provided a response to the show cause letter in which he relevantly acknowledged that he had charged purchases of a personal nature to the respondent, and he had been absent from work for two weeks while he was moving house.

[9] A meeting was convened on 30 September 2022 at which Mr Vincent relevantly acknowledged that he had used the respondent's funds to pay for personal expenses such as the purchase of furniture for his new home. Mr Vincent held the view that as Chief Executive Officer, he was entitled to authorise both personal and business expenses without Mr Hayman's approval.

[10] Mr Vincent was dismissed on 7 October 2022. The reasons for the dismissal each related to Mr Vincent's conduct. The reasons were, in summary, that Mr Vincent:

• (1) caused/instructed $28,000 in expenses or withdrawals from the respondent's bank accounts associated with purchases from Bunnings, Amart, Office Works, JB HIFI, Afterpay, ACP Mechanical, Kitchen Warehouse, Bridgestone, Beacon lighting, removalists, Super Cheap Auto, the Department of Justice, ARB and Adrenaline Experience. In addition, expenses were said to have been incurred in relation to private rental payments and a "reimbursement" to Mr Vincent;

• (2) caused the respondent to incur ongoing costs associated with a rental property for Mr Vincent's benefit pertaining to rental payments and a bond;

• (3) caused the respondent to incur substantial costs associated with modifications to a work vehicle provided by the respondent;

• (4) caused the respondent to fall behind on its financial and taxation obligations by diverting funds away from paying its tax office and superannuation instalments, bank loans, rates and supplier invoices;

• (5) accessed and diverted the respondent's funds from its bank accounts as he "saw fit;"

• (6) reduced his hours of work without approval; and

• (7) was uncontactable and/or was evading communication with the respondent and/or Mr Hayman between 15 August and 9 September 2022.

[11] After addressing various initial matters, the Deputy President turned to consider whether there was a valid reason for Mr Vincent's dismissal for the purposes of s 387(a) of the Act. The Deputy President identified the specific concessions made by Mr Vincent in his show cause response and during the 30 September 2022 meeting that he had used company funds to pay his personal expenses, but considered he was authorised to do so in his role as Chief Executive Officer. Further, the Deputy President noted Mr Vincent's evidence that he did not attend work between 25 July and 14 September 2022 and had authorised a payment to himself of $10,000 for "renovation work." The Deputy President concluded that Mr Vincent's conduct breached the terms of his employment contract, his fiduciary duties to the respondent, and gave rise to a valid reason for dismissal.[3]

[12] The Deputy President proceeded by considering the matters in paragraphs (b) to (g) of s 387 and made findings in respect of each. As to s 387(b), the Deputy President found that Mr Vincent was notified of the reasons for the dismissal.[4] In relation to s 387(c), the Deputy President was satisfied there was an opportunity for Mr Vincent to respond to the reasons given for his dismissal, both in writing and orally, before any decision was made to terminate his employment.[5] With respect to s 387(d), the Deputy President found that there was no unreasonable refusal to allow Mr Vincent to have a support person present.[6] The factor in s 387(e) was not a relevant consideration,[7] and the Deputy President concluded that the processes adopted by the respondent were appropriate having regard to the size of its enterprise for the purposes of s 387(f) and (g).[8]

[13] In relation to s 387(h), the Deputy President took into account Mr Vincent's contention that while the allegations had been reported to the Western Australian police, no police investigation has ensued. Contrary to this position, the respondent submitted that a criminal investigation is ongoing. The Deputy President concluded that it is not necessary for conduct to be criminal in nature to constitute misconduct or to form a valid reason for dismissal. The Deputy President also took into account Mr Vincent's age, employment prospects as an undischarged bankrupt, and known personal circumstances.[9]

[14] The Deputy President concluded that Mr Vincent's dismissal was not harsh, unjust or unreasonable, noting as follows:[10]

"The dismissal was just because Mr Vincent had breached his contract of employment and engaged in serious misconduct.

The dismissal was reasonable because the decision was reached only after a procedurally fair investigation occurred which concluded that Mr Vincent had engaged in misconduct.

The dismissal was not harsh given the nature of the misconduct and Mr Vincent's role within the business."

[15] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[16] By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission "under this Part" unless the Commission considers that it is in the public interest to do so. The reference to "this Part" in s 400(1) is to Part 3-2 of the Act. This appeal is one to which s 400 of the Act applies. The test under s 400 is "a stringent one."[11]

[17] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] The public interest is not satisfied simply by the identification of error,[13] or a preference for a different result.[14] 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..."[15]

[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of an appealable error.[16] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[19] 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.[17]

[20] It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences_._[18]

[21] Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[19]

""Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment."

[22] For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts,[20] or that the outcome is unreasonable or plainly unjust.[21] It is not enough that a different member or an appellant body might have reached a different conclusion.

[23] In his Form F7 Notice of Appeal, Mr Vincent raises ten grounds of appeal which, by way of summary, are as follows:[22]

• (1) Mr Vincent's employment contract does not specify that he must obtain authorisation from Mr Hayman for any purchases or decisions.

• (2) The respondent was granted permission to be legally represented, noting that Mr Vincent could articulate his case, which was unfair in circumstances where Mr Vincent had been terminated from his employment, removed from his residence and had taken residence in his car for a six-week period before moving to a homeless shelter, and he had been fighting depression and anxiety.

• (3) Mr Hayman and the respondent's administration officer were aware of and authorised the respondent entering into a residential lease for Mr Vincent's benefit and had approved rental payments.

• (4) Mr Vincent had arranged for Mr Hayman to withdraw funds from his superannuation fund to supplement the respondent's cashflow, which is at odds with the evidence of Mr Wright (the respondent's operations manager) and Ms True (Mr Wright's partner) that Mr Vincent had asked them for a loan.

• (5) Contrary to the statement in the decision that Mr Vincent must receive authorisation from Mr Hayman for any purchase or decisions, Mr Vincent made "all decisions" without the requirement for authorisation including the purchase of a fork truck, the installation of solar panels, arrangements with financial institutions to provide cashflow solutions, the purchase of a second hand vehicle, arrangements for the purchase of three new trucks, rebranding the company logo and issuing new uniforms, purchasing new power tools with discounts. Further, Mr Vincent says that he was an equal signature on the account.

• (6) Mr Vincent did not have access to the tax office portal, demonstrating that the accountants had knowledge of deferred tax office payments.

• (7) Mr Vincent was not authorised to defer loan payments for Mr Hayman's personal home mortgage. Rather, Mr Hayman was "always present" when Mr Vincent requested to "hold payments while working on cashflow."

• (8) Mr Hayman lied by stating that Mr Vincent was hired as an IT consultant.

• (9) The conclusion that the respondent did not have dedicated human resources support is incorrect as the respondent had a contract with Employsure.

(10) There is no evidence of Mr Vincent misappropriating funds "other than verbal by the witnesses, other than the bank statement highlighted of purchases adding to approx. $28,000 (mostly for Roof Safe) which was my transparency."

[24] In addition, Mr Vincent has filed an outline of submissions which largely summarises each of the ten appeal grounds set out above, save for the following additional matter which is relevant to appeal ground (3) above and is numbered accordingly:[23]

(3a) With respect to appeal ground (3), Mr Vincent contends that the existence of a letter signed by Mr Hayman approving the lease and payments made using Mr Hayman's bank identification contradicts Mr Hayman's evidence demonstrates that he and Ms Bentley had knowledge of the lease and rental payments and this fact was overlooked in the decision.

[25] Mr Vincent submits that it is in the public interest for the Commission to grant permission to appeal for three reasons: (1) to ensure that other employees can feel confident to commence unfair dismissal proceedings despite being unrepresented; (2) Mr Vincent was limited in presenting his case as he no longer had access to the respondent's files and bank statements; and (3) Mr Vincent has always stood up for himself or others and has "won a few other unfair dismissal" cases and in those cases Mr Vincent had "done something they were not used to because no one else had done it before but this didn't mean it was wrong."[24]

[26] In these proceedings, Mr Vincent seeks to rely upon fresh evidence, obtained subsequent to the first instance proceedings by his unauthorised access to the respondent's email system. Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so.

[27] It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[25] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.[26] While it is permissible in an appropriate case to depart from the principles set out in Akins,[27] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[28] Mr Vincent seeks leave to rely upon 14 documents that were not before the Commission at first instance. We decline to admit this material. Having considered each of the documents, and taking into account Mr Vincent's submissions in respect of them, we are not satisfied that the material discloses any issue of relevance such that there is a high degree of probability that it would lead to a different decision.[28]

[29] We have considered the grounds and submissions advanced by Mr Vincent in support of his application. We are not satisfied that it would be in the public interest to grant permission to appeal. We set out the basis for this conclusion in the analysis that follows, together with our brief observations regarding each appeal ground.

[30] The contention raised by appeal grounds (1) and (5) that Mr Vincent was not required to obtain authorisation from Mr Hayman for "any purchases or decisions" does not appear to be sustainable. Mr Hayman's evidence was that Mr Vincent was required to include Mr Hayman in the decision-making process. Mr Hayman denied giving Mr Vincent "free reign" and said that Mr Vincent had reporting obligations to Mr Hayman as the respondent's director.[29] The Deputy President noted these matters,[30] and specifically rejected Mr Vincent's contention that the employment contract imposed no conditions or limitations on his authority having regard to Mr Vincent's express contractual obligations and his common law fiduciary duties.[31]

[31] Further, Mr Hayman rejected the proposition that Mr Vincent had earlier made a series of major business decisions without his authorisation, and that this demonstrated that authorisation was not required.[32] It is apparent that the Deputy President preferred the evidence of Mr Hayman over the competing testimony of Mr Vincent on this issue, notwithstanding Mr Vincent's capacity to access the business banking accounts without dual authorisation by Mr Hayman.[33] Having regard to the competing evidence before the Commission,[34] we do not consider it to be arguable that the Deputy President's conclusion was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences, in the sense described in Fox v Percy at [20] above. Appeal grounds (1) and (5) do not give rise to an arguable contention of appealable error.

[32] It is contended by appeal ground (2) that the decision to grant the respondent permission to be legally represented was unfair in light of Mr Vincent's personal circumstances. The decision demonstrates that Mr Vincent filed written submissions in which he stated that he would not be legally represented and it would be unfair if leave were granted to the respondent.[35] Further submissions were filed by Mr Vincent which did not raise any of the personal matters upon which Mr Vincent now relies.[36] Nor were these personal matters addressed by Mr Vincent during a hearing before the Deputy President on 10 March 2023 convened to deal specifically with the issue of legal representation. No arguable case of appealable error arises from a contention that the Deputy President did not take into consideration arguments that were not raised with her. Nor is there a suggestion that the granting of legal representation to the respondent denied Mr Vincent the realistic opportunity of a successful result in the substantive application.

[33] By appeal ground (3), Mr Vincent contends that Mr Hayman and Ms Bentley had knowledge of and authorised the residential lease and rental payments. Mr Vincent raised this argument in the proceedings at first instance.[37] He relied upon a letter dated 3 August 2022 in support of his position that Mr Hayman agreed to lease the property in the respondent's name and meet the rental payments. In the decision, the Deputy President set out the content of the 3 August 2022 "Lease Letter" and considered Mr Hayman and Ms Bentley's evidence in relation to this issue as follows:[38]

"Mr Hayman denies approving the lease arrangements or signing the Lease Letter. Ms Bentley does not recall Mr Hayman approving the lease arrangements or the payment of the lease costs. Ms Bentley denies typing the Lease Letter and does not recall seeing the Lease Letter before it was produced in these proceedings."

[34] The contention that the 3 August 2022 letter was overlooked in the decision is not arguable in light of the above.

[35] As to the contention that the rental payments were made using Mr Hayman's NAB identification and this was "not noted," Mr Vincent has not taken us to any evidence which was overlooked by the Deputy President regarding this matter. The Deputy President made findings based on the evidence before her. In the absence of drawing a connection between this submission and any evidence demonstrating the use of Mr Hayman's NAB identification for the rental payments, Mr Vincent's contention is speculative at best and falls well short of establishing an arguable case of appealable error.

[36] Appeal grounds (4) and (7) raise rhetorical questions addressed to the evidence given by the respondent's witnesses:

• (a) "Why would I ask [Mr Wright and Ms True] for a personal loan to the business?" and

• (b) "How could I defer loan payments for Mr Haymans [sic] personal home mortgage if I am not an authorised person..."

[37] Such contentions are not appropriately directed to the Deputy President's reasoning in the decision. Rather, the allegations address the evidence of the respondent's witnesses as it relates to Mr Vincent's conduct. Mr Vincent's apparent disagreement with this evidence does not give rise to an arguable case of appealable error in the decision. It is observed that it is not expressly alleged that the Deputy President erred in relying on this evidence. To the extent that this contention is made, Mr Vincent draws no connection between any alleged errors in the evidence of the respondent's witnesses and the Deputy President's reasoning. No arguable case of appealable error arises.

[38] By appeal ground (6), Mr Vincent contends that the respondent's accountant was aware of deferred tax office payments in relation to "previous" accumulated debt. This appears to be consistent with the accountant's evidence at first instance.[39] However, the Deputy President did not make any express finding regarding the deferral of any tax office payments. Nor has Mr Vincent drawn a connection between this contention and any aspect of the decision which he considers to be erroneous. Against these observations, we consider there to be no arguable case of appealable error arising from appeal ground (6).

[39] Appeal grounds (8) and (9) do not disclose any arguable error. The decision records that Mr Vincent held the role of Chief Executive Officer.[40] Mr Hayman's evidence about hiring Mr Vincent as an IT Consultant is not reflected in the findings made by the Deputy President. Further, the respondent's reliance upon external legal representatives does not bear upon the Deputy President's conclusion that the respondent does not have internal dedicated human resource management specialists.[41]

[40] Mr Vincent contends by appeal ground 10 that there is a lack of "concrete evidence" that he has misappropriated company funds. It is apparent from the decision that the Deputy President substantially relied upon Mr Vincent's concessions in determining that there was a valid reason for his dismissal, including that Mr Vincent had made a payment to himself for "renovations, CCTV, website," that Mr Vincent had charged purchases of a personal nature to the respondent, and that he did not obtain Mr Hayman's approval to do so.[42] Mr Vincent has not challenged the Deputy President's ultimate conclusion that his expenditure of company funds on personal expenses, particularly in circumstances where the respondent was in financial distress, was contrary to the best interests of the business. Against this context, Mr Vincent's contention goes no further than asserting that a different conclusion should have been reached. This does not give rise to an arguable case of appealable error.

[41] We are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that a reasonably arguable case has been advanced that the decision was attended by appealable error.

[42] We have considered whether the appeal attracts the public interest and we are not satisfied, for the purposes of s 400 of the Act, that (a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind, (b) the appeal raises issues of importance and/or general application, (c) the decision manifests an injustice, or the result is counter intuitive, or (d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters. It follows that we must refuse permission to appeal.

[43] Permission to appeal is refused.

[1] [2023] FWC 585

[2] PR764959

[3] [2023] FWC 585 at [95]- [122]

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

[12] 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] FCAFC 54; (2011) 192 FCR 78 at [44] - [46]

[13] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]

[14] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; 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]

[15] [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

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

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

[18] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]- [29]

[19] [2000] HCA 47; 203 CLR 194 at [19]

[20] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a "significant error of fact": s 400(2) of the Act

[21] House v The King (1936) 55 CLR 499 at 505

[25] (1994) 34 NSWLR 155

[26] See Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936

[27] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11]

[28] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160

[29] [2023] FWC 585 at [39]; first instance Digital Court Book 677-678 at [5]

[31] [2023] FWC 585 at [104] and [110]

[34] See, for example, first instance Digital Court Book 680 at [8]

[37] [2023] FWC 585 at [43]

[39] Transcript of proceedings dated 17 March 2023 at [1484]-[1489]

[40] [2023] FWC 585 at [2], [27] and [30]

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