[2011] FWAFB 6265

Download Word Document

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT DEPUTY PRESIDENT HAMILTON COMMISSIONER RYAN

SYDNEY, 16 SEPTEMBER 2011

Appeal against decision [2011] FWA 3610 of Commissioner Deegan at Canberra on 7 June 2011 in matter number U2011/151 - Code of Conduct investigation - constructive dismissal- appeal principles - permission to appeal.

[1] This is an appeal, for which permission is required, against a decision of Commissioner Deegan dismissing an application by Mr Ross Davidson (the Applicant) for an unfair dismissal remedy. The application was made pursuant to s.394 of the Fair Work Act 2009 (the Act) and alleged that the Applicant had been constructively dismissed from his employment with the Commonwealth Department of Climate Change and Energy Efficiency (the Department).

[2] The relevant facts of the matter are set out in the Commissioner’s decision and do not need to be repeated at length in this decision. In brief terms, the circumstances which lead to the application were as follows.

• The Applicant was employed as an EL2 (Executive Level 2) officer in the Department since March 2010. In early December 2010 there was a restructure of the Branch in which the Applicant was employed which lead to some dissatisfaction on his part and concern about his future role.



• On 9 December 2010 the Applicant commenced a period of pre-arranged sick leave from the Department. During the period of leave, issues arose in the Department regarding various “leaks” of information in Crikey.com which resulted in investigations being conducted and meetings of employees in different branches being held.



• The Applicant was unable to return from his period of sick leave on 10 January 2011 as planned and was given a further period of leave until 25 January. The Applicant was requested to return his Blackberry and action was taken to suspend his access to the building and the computer system.



• On 14 January 2011 the Applicant was advised that he would be subject to an investigation into potential breaches of the Australian Public Service (APS) Code of Conduct. The allegations against him concerned outside employment, misuse of IT facilities and emailing documents to external email accounts, and providing misleading information in relation to a Protected Security Clearance. On 21 January the Applicant was informed that pursuant to the Public Service Regulations it was proposed to suspend him from duty with pay pending the investigation. The Applicant was invited to comment on the proposed suspension.



• There was correspondence between the Applicant’s representative and the Department on 24, 25 and 28 January 2011. This culminated in the Applicant’s representative asserting that the Department had repudiated the contract of employment and indicating that proceedings would be commenced forthwith. On 30 January 2011, the unfair dismissal application was lodged with Fair Work Australia (FWA).



• In early February there was correspondence between the Australian Government Solicitor (AGS), instructed by the Department, and the Applicant’s representative in which the AGS advised inter alia that: the Department accepted that the Applicant remained an employee; certain claims made by the Applicant’s representative were disputed; and the Department would address the Applicant’s concerns about the investigation process and proposed suspension before proceeding further. The AGS advised that the Department considered the Applicant was still an employee and requested that he discontinue the unfair dismissal application. It also advised that, if the application was pursued, the Department would object to FWA dealing with it on the basis that the termination of employment was not at the initiative of the employer. The AGS letter requested confirmation from the Applicant by 10 February that he wished to continue to be treated as an employee of the Department.



• Following further correspondence, the AGS advised on 9 February that it understood the Applicant was not willing to act in accordance with its proposals and that it accepted that from 30 January 2011 he ceased to be an employee of the Department.

[3] The unfair dismissal application came before the Commissioner for the purpose of hearing and determining the jurisdictional objection raised by the Department, namely that the Applicant’s employment was not terminated at the initiative of the Department and that he was not forced to resign due to a course of conduct engaged in by the Department (see ss. 385 and 386(1) of the Act). In effect, the issue before the Commissioner was whether the Applicant had been “constructively dismissed” within the meaning of s.386(1)(b) of the Act.

[4] In her decision, the Commissioner summarised the evidence and submissions presented in the proceedings and referred to various authorities on constructive dismissal decided under the previous legislation. These included the following passage from the Full Bench decision in P. O’Meara v Stanley Works Pty Ltd 1:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 2 

[5] The Commissioner noted that s.386(1)(b) of the Act is in similar terms as the relevant section of the previous legislation and indicated that she approached the determination of the matter “on the basis that the applicant need not show that the employer intended by its conduct to bring the employment contract to an end and compel the applicant to resign his employment. It will be sufficient if the employer engaged in a course of conduct that forced the applicant to resign. Thus, the conduct of the employer, complained of by the applicant, must be scrutinised to determine whether it was such that he was forced to resign.” 3

[6] The Commissioner considered each of the matters relied upon by the Applicant in submitting that the Department had engaged in a course of conduct which amounted to a repudiation of the employment contract and which forced his resignation. In regard to these matters, we note in particular the following findings and/or conclusions reached by the Commissioner:

• The evidence regarding the restructure of the Applicant’s work area did not support a finding that there was a termination of the Applicant’s employment at the initiative of the employer; 4



• The request by the supervisor for the return of the Blackberry and the barring of the Applicant’s access to the IT system were not an indication that his employment contract had been repudiated by the Department; 5



• The removal of the Applicant’s access to the Department’s premises was “of less significance than would have been the case had he not been on a period of leave”; 6



• “The Department was entitled to institute a Code of Conduct investigation and clearly the commencement of the investigation was not inconsistent with the applicant’s status as an employee”; 7



• The proposal to suspend the Applicant from duty while the investigation was undertaken did not amount to a repudiation of his contract of employment or some compulsion upon him to resign as “it is not unusual for public servants who are the subject of Code of Conduct allegations to be suspended from duty with pay for the period of any investigation” and he was given an opportunity to put forward reasons why such a suspension should not occur; 8 and



• What transpired at various meetings held to advise staff about the investigation did not provide “sufficient reason for the applicant to consider that it would be untenable for him to return to the workplace.” 9

[7] The Commissioner concluded as follows;

“[104] I am satisfied that all the matters set out above, taken together, do not amount to a course of conduct taken by the Department which forced the applicant’s resignation. It was open to the applicant to argue against the proposed suspension, this was invited by the Department which allowed additional time for him to do so. It was also open to the applicant to respond to the investigation that had been commenced in order to account for those matters which were the subject of that investigation. In all the circumstances of this case, including the Department’s reassurance to the applicant that any concerns he had about the proposed suspension and the investigation would be dealt with before the investigation proceeded, and the repeated requests that he confirm his continued employment, I am unable to find that the applicant was forced to resign.”

[8] Section 604 of the Act provides that a person who is aggrieved by a decision such as the one made here may, with the permission of FWA, appeal against the decision. However s.400 of the Act limits that right in unfair dismissal cases. It provides:

400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[9] As was said by a Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 10:

“[3] Prior to the introduction of the Act the manner in which an appeal against an unfair dismissal decision proceeded was the same as with appeals from other decisions, but only on the grounds that the Australian Industrial Relations Commission was in error in deciding to make the order. 11 The conventional grounds for granting leave to appeal12 otherwise applied under the Workplace Relations Act 1996, being whether the decision was attended by sufficient doubt to warrant its reconsideration or whether substantial injustice would result if leave were refused. However, even absent the conventional grounds, if the Commission was of the opinion that the matter was of such importance that it was in the public interest that leave should be granted the Commission was required to grant leave. Alternatively, leave could be granted if error could be demonstrated.13

[4] It can be seen that a significant change to the granting of permission to appeal was wrought by the introduction of the Act.”

[10] The Full Bench indicated some of the situations in which the public interest might be attracted:

“[26] 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. 14

[27] 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.”

[11] In the present matter, the parties were directed to file written outlines of their submissions. When the appeal came on for hearing the Bench indicated that, on the basis of the outlines filed, there were significant issues relating to the question of permission to appeal which should be addressed at the outset.

[12] In the grounds of appeal relied upon by the Applicant, it is alleged that the Commissioner erred in various respects including in failing to make findings about the Applicant’s state of mind, in not properly applying the rule in Jones v Dunkel 15, in not making findings as to the allegations regarding leaks and their bearing on the action taken against the Applicant, and in regard to several other factual matters. In the proceedings it was contended by the Applicant that the public interest requirement for the appeal is satisfied because of the magnitude and number of errors made by the Commissioner and because of the implications for other litigants as to the future conduct of such matters.16

[13] The Department submitted that permission to appeal should be refused on the basis that there was no “manifest injustice” or significant error of fact which had been demonstrated in the Commissioner’s decision.

[14] It was submitted by the Applicant, relying upon the decision in J. Searle v Moly Mines Limited 17, that in determining the issue of jurisdiction the Commissioner should not have considered the reasonableness of the Applicant’s response to the conduct of the Department, only the fact that the conduct lead to him leaving his employment. We consider that this submission involves a misunderstanding of the statutory requirement in s.386(1)(b) of the Act and what was decided in J. Searle v Moly Mines Limited. The inquiry as to whether the conduct of an employer has “forced” an employee to resign necessarily requires consideration as to the appropriateness of the employee’s response: whether the conduct of the employer left the employee with no reasonable choice but to resign.

[15] It was also submitted by the Applicant that the Department had concealed the causal link between the leak allegations and the Code of Conduct investigation and other actions taken against him and that this aspect of the evidence was not properly taken into account by the Commissioner in her decision. We note that the Commissioner referred to the Crikey.com allegations in setting out the background to the matter. However the Crikey.com allegations were not substantial issues upon which the case turned. The allegations did not form part of the Code of Conduct investigation and were not part of the conduct of the Department which the Applicant claimed had forced him to resign. On the Applicant’s own evidence, he did not know about the Crikey.com allegations at the time he filed his unfair dismissal application. The Commissioner was obliged to make findings on material facts being relevant to the issues of substance on which the case turned. There was no obligation to make findings on every matter raised in the proceedings.¹⁸

[16] It was also contended by the Applicant that the key persons who made the decision to institute the Code of Conduct investigation and the proposed suspension were not called as witnesses by the Department in the proceedings before the Commissioner. Therefore it was said that the Applicant was denied the opportunity to examine the decision-makers about real reasons for the actions taken against him and from showing why the Department’s conduct was sufficient for him to regard himself as being dismissed. The Commissioner noted in her decision that the Applicant’s representative submitted that adverse conclusions should be drawn regarding the failure of the Department to call certain witnesses. However the Commissioner stated that she would not draw any adverse conclusions in the circumstances of the present matter where the “majority of pertinent facts ... were set out in the documentation and tendered in evidence and the authenticity of that documentation was not in dispute.” 19 We consider that the approach adopted by the Commissioner was consistent with the rule in Jones v Dunkel and its application in industrial cases.20 It was open to the Commissioner not to draw the adverse inferences sought by the Applicant.

[17] The Applicant also sought to rely upon various alleged errors of fact in the Commissioner’s decision. None of these would, if established, amount to a significant error of fact as referred to in s.400(2) of the Act.

[18] In all the circumstances we have decided not to grant permission to appeal in this matter. It has not been shown that there was any manifest error in the decision of the Commissioner or that the appeal raises any principle of general application. The Commissioner identified and applied the correct principles in reaching her decision. There was no contest as to the key factual matters relevant to the issues to be determined, namely whether the employer’s conduct was such that resignation was the probable result or that the employee had no real or effective choice but to resign. The conclusions reached by the Commissioner are consistent with the authorities and the common understanding that the institution of an investigation and the proposed taking of action to suspend an employee during such investigation would not normally provide a basis for a claim of constructive dismissal. Such processes, provided they are accompanied by appropriate protections for the rights of the employee concerned, allow allegations of concern to an employer to be properly examined and tested. Overall we are not satisfied that the Applicant has demonstrated that there is an arguable case of appealable error in the decision of the Commissioner.

[19] Accordingly, permission to appeal is refused.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A. Knox, Cognisage Australia Industrial Relations, for Ross Davidson.

Ms C. Dowsett, of counsel, with Ms Virginia Masters, Australian Government Solicitor, for the Commonwealth.

Hearing details:

2011.
Canberra:
August 11

 1   (2006) PR973462.

 2   P. O’Meara v Stanley Works Pty Ltd (2006) PR973462 at [23]. See also ABB Engineering Construction Pty Ltd v Doumit (1996) Print N6999 and Australian Hearing v L Peary [2009] AIRCFB 680, 28 July 2009.

 3   [2011] FWA 3610 at paragraph 92.

 4   Ibid at [93].

 5   Ibid at [94] and [96].

 6   Ibid at [95].

 7   Ibid at [97].

 8   Ibid at [98].

 9   Ibid at [99]-[103].

 10   (2010) 197 IR 266, [2010] FWAFB 5343.

 11   Workplace Relations Act 1996, s.685.

 12   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [26].

 13   S.170JF(2) of the pre-Work Choices Workplace Relations Act 1996.

 14   Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210.

 15   (1959) 101 CLR 298.

 16   Transcript PN 8.

 17   [2008] AIRCFB 1088 at paragraph 38.

¹⁸ See Barach v University of New South Wales [2010] FWAFB 3307 at paragraph 16.

 19   [2011] FWA 3610 at paragraph 105.

 20   See e.g. Xiu Zhe Huang v Rheem Australia Pty Ltd (2005) PR954993 at paragraph 33.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR514526>