[2012] FWAFB 7877 |
FAIR WORK AUSTRALIA |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
SENIOR DEPUTY PRESIDENT KAUFMAN |
BRISBANE, 12 SEPTEMBER 2012 |
Appeal against decision—public interest.
[1] Mr Craig Symes made an application under s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy against Linfox Armaguard Pty Ltd. On 8 June 2012, Commissioner Cargill found that Mr Symes had been unfairly dismissed, ordered that he be reinstated to his former position and that he paid a sum of money for part of the remuneration that he had lost consequent upon his dismissal.
[2] Linfox has appealed against the decision of the Commissioner. The appeal was heard by this Full Bench on 11 September 2012. At the conclusion of the proceedings on that day, we announced that we had decided not to grant permission to appeal and dismissed the appeal. We now publish the reasons for that decision.
Appeal Principles
[3] An appeal under s.604 of the Act involves an appeal 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. 1 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) 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’ (55 CLR 499 at 505).”
[4] An appeal under s.604 of the Act may only be pursued with the permission of FWA. Section 400 of the Act requires that permission to appeal from unfair dismissal decisions may only be granted where FWA considers it is in the public interest to do so [s.400(1)]. Second, 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)].
[5] The meaning to be given to “public interest” in s.400(1) of the Act was considered in GlaxoSmithKline Australia Pty Ltd v Makin, 2 where the Full Bench said that:
“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 by reference to undefined factual matters, confined only by the objects of the legislation in question.
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.”
[6] Mr Symes was employed by Linfox as a crew leader. His duties involved the transportation of cash to and from clients’ premises and the servicing of ATMs. He was licensed to, and did, carry a firearm as part of his duties.
[7] Following upon an incident on 15 December 2011, during a monthly communications (“Comms”) meeting, Mr Symes’ employment was summarily terminated the following day.
[8] Mr Symes had had an argument with his wife early that morning and arrived for work in a bad mood. At some point during the Comms meeting on 15 December, he became aware that he had been allocated a vehicle with a faulty indicator which made the vehicle unroadworthy. He became frustrated and annoyed because the correct rectification procedures had not been followed and this meant that he would be delayed in commencing his run.
[9] Because of these concerns Mr Symes left the meeting to arrange to have the fault fixed. According to Mr Hala, his supervisor, a few minutes into the meeting, Mr Symes stood up and started walking towards the door. Mr Hala said “mate what are you doing” to which Mr Symes replied that there was something wrong with his truck. Mr Hala told him to “sort it out later, sit down we’ve got a Comms meeting going on”. Mr Symes left the room to be followed by Mr Hala who said “mate we’ve got a Comms meeting, come back in and sit down”. Mr Symes did not comply and said that he had to sort out the truck. Mr Hala told him to “do it later, come back and sit down.” At that stage Mr Symes, who had reached the armoury door told him to get fucked. Mr Symes’ evidence was that he said this in an exasperated, not aggressive or agitated tone. The Commissioner accepted this.
[10] Mr Symes then proceeded to arrange for the vehicle to be repaired and Mr Hala returned to, and finished conducting, the Comms meeting. After this they separately went to the lunchroom. Mr Hala inquired what the problem was and asked why Mr Symes had told him to get fucked, to which Mr Symes replied that it was the “fucking roster”, raised his fist in the air and hit the roster board, with one finger extended, with sufficient force to dislodge the Perspex cover.
[11] During the entire incident Mr Symes was wearing a loaded firearm.
[12] After a meeting on 16 December, where Mr Symes was afforded procedural fairness, he was summarily dismissed for serious misconduct.
[13] The Commissioner did not consider that Mr Symes conduct, although she found that it was misconduct, amounted to serious misconduct within the meaning of Regulation 1.07 of the Fair Work Regulations 2009. She did not accept Linfox’s submissions that the conduct was “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment” [R.1.07(2)(b)] or “the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”. [R1.07(3)(c)]
[14] On the appeal, it was submitted by Mr J C Dwyer, of counsel, for Linfox that the crucial issue was whether Mr Hala’s comments to Mr Symes amounted to an instruction rather than as an exhortation as found by the Commissioner. He conceded that if it was not an instruction the appeal would fail.
[15] We have set out the evidence relating to the conversations whereby Mr Hala asked Mr Symes to return to the Comms meeting. The Commissioner is not said to have erred in finding the facts as to that. Rather, it is contended that she erred in construing those comments as an exhortation. In our view the Commissioner did not err. She had the benefit of hearing the witnesses and no doubt the inflections or emphasis Mr Hala placed on the words as he uttered them. The words themselves are not “so clearly implied or expressed as to be free from doubt”. 3
[16] It is then put that the Commissioner erred in distinguishing Cutrali v Chubb Security Services 4 where, in a matter involving an armed security guard having a physical altercation with another armed security guard, Deputy President McCarthy observed “that the nature of the conduct should be considered in the context of a number of employees carrying firearms when the incident occurred. Just as important as the presence of firearms is the need for the Respondent to have confidence that people who carry firearms will be controlled in their behaviours and responses to incidents”. Whilst we would not demur from the Deputy President’s observations, indeed we would endorse them, each case must turn on its own facts. Linfox puts it too highly when it submits that Cutrali established a principle in relation to the way in which employees who carry firearms respond to incidents. In Cutrali the applicant had the person backed up against a truck with Mr Cutrali’s hands around his neck, whilst both of them were armed. That is a far cry from what happened here. Indeed, the fact of Mr Symes being armed at the time of the incident was not even put to him as being part of the reason for his dismissal. The Commissioner did not err in distinguishing Cutrali.
[17] The next ground of appeal that is pressed is that the Commissioner erred in that she took account that Mr Symes aggression was directed at an inanimate object rather than a person. In our view she was clearly correct in doing so in the circumstances of this case.
[18] Another ground of appeal asserts that the Commissioner erred in taking into account Mr Symes lack of intent to cause damage and in not finding that the damage was caused deliberately or recklessly. The Commissioner did not err. She had regard to what happened and the circumstances in which it occurred.
[19] Finally, it is contended that the Commissioner erred in ordering reinstatement. This aspect does not arise unless we find that she erred in finding that the dismissal was unfair. As is evident from our reasons, the Commissioner did not err in that finding. In any event, the decision to reinstate Mr Symes is a discretionary decision that was open to the Commissioner on the facts. There were no errors demonstrated in the manner in which she exercised that discretion.
[20] Linfox submits that there is a public interest in permitting the appeal because the decision of the alleged errors made by the Commissioner and that the management of health and safety in the workplace is a matter of substantial importance in the community. We have found no error, nor does this case raise issues of the management of health and safety in the workplace.
[21] In our view there is nothing raised in the appeal which is of such a nature as to attract the public interest and therefore to warrant granting permission to appeal. In particular, we do not consider that the appeal raises issues of importance or general application or that the result is counter intuitive.
[22] For all the above reasons, we decided that permission to appeal should not be granted and dismissed the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
A. Hatcher of counsel with A. Carter for the Applicant.
J. C. Dwyer of counsel with N. Tindley for the Respondent.
Hearing details:
2012.
Brisbane:
September, 11.
1 (2000) 203 CLR 194 at 205.
2 [2010] FWAFB 5343 at paras [26]-[27].
3 Howard v Pilkington (Australia) Ltd [2008] VSC491 at [44] per Judd, J citing Isaacs ACJ in Adami v Maison (1924) 35 CLR 143 at 155
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