1 Fair Work Act 2009 s.604—Appeal of decision Joe Cai v Serco Citizen Services Pty Ltd (C2023/3902) DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT EASTON DEPUTY PRESIDENT GRAYSON MELBOURNE, 22 AUGUST 2023 Appeal against decision [2023] FWC 1391 of Commissioner Wilson at Melbourne on 14 June 2023 in matter number U2022/10544. [1] Mr Joe Cai worked for Serco Citizen Services Pty Ltd from 22 February 2019. After formal counselling Mr Cai was dismissed on 12 October 2022 because he took extended unauthorised meal breaks on more than 100 occasions, and because of his failure to meet performance targets. On 2 November 2022, Mr Cai applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). [2] On 14 June 2023 Commissioner Wilson dismissed Mr Cai’s unfair dismissal application. In Joe Cai v Serco Citizen Services Pty Ltd [2023] FWC 1391 (Decision), the Commissioner provided extensive reasons for dismissing Mr Cai’s application. [3] Mr Cai now seeks permission to appeal the Commissioner’s decision. Under sections 400 and 604 of the Act, Mr Cai can only appeal with the permission of the Full Bench. Permission to appeal can only be granted if we are satisfied that it is in the public interest to do so (per s.400). For the following reasons, we have decided not to grant permission to appeal. The decision [4] The Commissioner’s decision is comprehensive, thorough and respectfully records the cases advanced by each party. In the Decision the Commissioner: (a) records the difficult history of the proceedings, including Mr Cai’s failure to comply with directions issued and his failure to attend the first scheduled hearing, and the Commissioner’s earlier decision not to dismiss Mr Cai’s application under s.399A (see [7]-[34] and see Joe Cai v Serco Citizen Services Pty Ltd [2023] FWC 280); (b) describes Mr Cai’s employment history (at [35]-[55]) including that Mr Cai was hospitalised in July 2020 with COVID-19 (at [38]), that Serco raised ongoing [2023] FWCFB 144 DECISION [2023] FWCFB 144 2 performance issues primarily relating to Mr Cai taking extended breaks during the working day and issued warnings to Mr Cai (at [39]-[41]), the medical evidence relied upon by Mr Cai and the events leading to Mr Cai’s dismissal (at [42]-[55]); (c) identifies and applies the principles for considering the criteria in s.387 of the Act (at [56]-[58]); (d) notes that in a disciplinary interview Mr Cai asked for his treating psychologist to attend as a support person, and that Serco did not accommodate this request (at [100]-[108]); (e) considers the limited medical evidence provided by Mr Cai (at [81]); and (f) declines to join Mr Cai’s unfair dismissal application with a stop bullying application that was dismissed by the Commission after Mr Cai's employment ended (see [113] and see Joe Cai v Serco Citizen Services Pty Ltd [2022] FWC 3162 at [24]). [5] The Commissioner records his findings in relation to the considerations at s 387 of the Act on the evidence before him, finding: (a) there was a valid reason for dismissing Mr Cai related to Mr Cai’s capacity and conduct (at [60]-[97]); (b) Mr Cai was notified of the valid reason for the dismissal (at [98]); (c) that at least from 14 September 2022, Mr Cai was given the opportunity to respond to the valid reason for the dismissal (at [99]), and was counselled on numerous occasions in relation to his unsatisfactory performance (at [109]); and (d) that the size of Serco's workforce was a neutral consideration (at [110]). Appeal grounds and submissions [6] Having regard to the matters identified in the Notice of Appeal, we understand that Mr Cai advances three grounds of appeal, as follows: (1) The Commissioner showed bias in the proceeding and in making decisions, including by enquiring whether Mr Cai required an interpreter before the hearing. (2) The Commissioner did not take the psychologist’s statement into account. (3) The Commissioner did not advise Mr Cai whether the matter would proceed as a hearing or a conference until the day of the proceeding. [7] During the hearing before this Full Bench, Mr Cai restated his request that his proceeding be “linked” with his stop-bullying application because, he says, “the two cases are related”.. Mr Cai also revisited the fact that Serco did not delay his final termination interview to accommodate the availability of his psychologist, whom he had asked to be his support person. Mr Cai also referred to events in early 2022 concerning a “Stay at Work Plan” that Serco proposed but which Mr Cai refused to participate in (see [67]-[71]). Mr Cai submitted [2023] FWCFB 144 3 that he should have sought more medical advice in May 2022 and that Serco should have “put these things all together for me [but] he put a lot of the stress on me.” We have taken this submission to be a restatement of the same argument recorded at paragraph [70] of the Decision: “Although [Mr Cai] accepts that he did not participate in a Stay at Work Plan, he attributes this to fault on the part of Serco, not him, saying that his team leader “Caitlin left in May and didn’t follow up with me or passed the forms and info to new team leader David”. [8] Nonetheless Mr Cai submitted that “this type of background is missing from Commissioner Wilson’s decision.” [9] Mr Cai further submitted that the Commissioner’s reference to Mr Cai being taken to hospital with COVID-19 on 27 July 2020 and returning home “on the same day” (at [65]) was a “significant error” because “I stayed there for a week.” Consideration [10] Section 400 of the Act applies to appeals from decisions under the unfair dismissal provisions: “Appeal rights (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. (2) Despite subsection 604(1), an appeal from a decision made by the FWC 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.” [11] An appeal cannot ultimately succeed unless the Appellant can show an error in the decision under appeal. Permission to appeal is unlikely to be granted unless an Appellant can show that there is at least an arguable case of appealable error. [12] However not all errors are appealable errors. Commission members exercise considerable discretion in unfair dismissal matters. Members make value judgments on matters about which there is room for reasonable differences of opinion - no particular opinion being uniquely right. As the High Court said in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 205, [2000] HCA 47 at [21], an appealable error is an error in the decision-making process: “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. 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: [2023] FWCFB 144 4 "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." [Footnotes omitted] [13] In relation to unfair dismissal applications, the public interest test in s.400 requires more than just identifying that an appealable error was made. Permission must not be granted unless the Full Bench is satisfied that it is in the public interest to do so. It might be in the public interest to grant permission to appeal if the matter raises important issues that have general application, or if there is a diversity of decisions at first instance so that guidance from a Full Bench is required, or if the decision at first instance reveals an injustice, or if the result is counter intuitive, or if the legal principles applied appear disharmonious when compared with decisions dealing with similar matters (per GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [2010] FWAFB 5343 at [27]). The public interest test in s.400 is a stringent one and the Full Bench applies a broad value judgment (per Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177, [2011] FCAFC 54 at [43]-[44]). [14] In our view this is not an appeal that raises any matter of public interest. The Commissioner correctly identified the relevant law and applied the law to the matters before him. [15] The contention at appeal ground (1) that the Commissioner demonstrated bias against Mr Cai is not borne out upon our consideration of the materials. We observe that there was no application at first instance for the Commission to recuse himself on the grounds of apprehended or actual bias. The contention that the Commissioner enquired about the utility of an interpreter does not give rise to an arguable case of appealable error, noting that Mr Cai does not draw a connection between this issue and any aspect of the Commissioner’s reasoning. [16] By appeal ground (2), Mr Cai contends that his psychiatrist’s witness statement was not taken into account. The Commissioner referenced the psychologist’s evidence at [74] and [101] of the Decision, and found at [105] that “I am not satisfied from the material before me that what transpired about [the psychologist’s] attendance at that meeting was either a ‘refusal’ or an ‘unreasonable refusal’ to allow her to attend.” Noting these references, Mr Cai’s contention that the Commissioner made a significant error by not taking the psychologist’s evidence into account discloses no arguable case of appealable error. Further, the Commissioner took into account at [100] Serco’s decision not to delay a disciplinary interview to accommodate the availability of Mr Cai’s psychologist. The Commissioner did not find that this matter amounted to either a refusal or an unreasonable refusal to allow the psychiatrist to attend the meeting and concluded that the consideration at s 387(d) was neutral. The Commissioner’s findings disclose no arguable appealable error. [17] Appeal ground (3) concerns the contention that the Commissioner did not make a final decision on conducting a hearing or a determinative conference until the day of the hearing. Paragraphs [25]-[32] of the Decision record the sequence of events, including that the [2023] FWCFB 144 5 Commissioner invited written submissions from the parties on the specific question of whether the matter should proceed by way of hearing or determinative conference. At [29] the Commissioner gave his reasons for proceeding by way of a hearing: “After taking these matters into account as well as the short submissions of each on the subject at the start of 23 March 2023 I advised the parties the matter would proceed by way of hearing. This was because of a high level of uncertainty on my part as to the Applicant’s case, Serco’s opposition to me proceeding without the need for cross- examination of Mr Cai and his witness, Ms Deacon, and because the communications of each party did not suggest the matter would be capable of proceeding with the intention of a mutual, low conflict and non-adversarial discussion of the facts that required determination.” [18] At the hearing before the Full Bench, Mr Cai did not explain how the timing of the Commissioner’s decision to proceed by way of a hearing gives rise to an arguable case of appealable error. Mr Cai was on notice of the possibility of the matter proceeding by way of a hearing, noting Serco’s prior written submission to this effect on the basis that it sought an opportunity to cross examine Mr Cai and his psychiatrist (at [26]). Ground (3) does not demonstrate any arguable case of appealable error. [19] We turn now to briefly address the submissions advanced by Mr Cai at the hearing before us. First, the Commissioner’s decision not to “link” Mr Cai’s stop-bullying application cannot be demonstrative of error in circumstances where there was no stop-bullying application on foot for the Commissioner to link at the time Mr Cai’s unfair dismissal application was heard, such application having been dismissed on 30 November 2022. [20] In any event, the Commissioner referred to Mr Cai’s stop-bullying application in the Decision (see [28]-[29] and [44]-[47]), considered the materials included within that file and concluded that they did not appear to “illuminate” Mr Cai’s unfair dismissal application “in any respects” (at [113]). Even if the substance of Mr Cai’s complaint is understood to be that the Commissioner did not take into account matters or allegations raised in the stop-bullying application, there is no arguable case of appealable error established in the Decision. [21] Second, Mr Cai’s argument regarding the “Stay at Work Plan” proposed by Serco does not assist Mr Cai. Mr Cai argued that his extended breaks were related to his long recovery from COVID-19. Serco tried to co-operate with Mr Cai by means of a proposed Stay at Work Plan, but Mr Cai refused. Mr Cai’s medical evidence did not support Mr Cai’s claims. As the Commissioner found at [96]: “I am satisfied from the evidence that it was appropriate to counsel Mr Cai about his work performance, with it being evident to Serco by late 2021 that there was a problem when his performance was considered against its KPI expectations. There then ensued a very extended performance management process which did not appreciably move Mr Cai’s performance, and certainly did not move it to acceptable levels. His explanations as to why that may be the case were largely general, evasive and blame shifting – evasive in that he never provided cogent medical evidence of his situation and blame shifting inasmuch as he tried to say that the failure to submit a Stay at Work medical consent form was a failing on the part of his Team Leader and not an omission [2023] FWCFB 144 6 by him. The First Written Warning, the Final Written Warning, the Disciplinary Meeting, and the Show Cause Letter were each appropriate steps to be taken by Serco in respect of Mr Cai. The conclusion Serco reached that Mr Cai’s employment should be terminated for the reasons set out above was appropriate and evidenced.” [22] Having regard to these findings by the Commissioner, no arguable case of appealable error arises from Mr Cai’s submission that the Decision omits consideration of this matter. [23] Third, we accept that the Commissioner erroneously described Mr Cai’s hospital stay in 2020 and that Mr Cai was hospitalised for one week rather than one day. This period of hospitalisation was more than two years before Mr Cai was dismissed. Mr Cai provided limited medical evidence of his condition in the two years after being hospitalised. Mr Cai has not established an arguable case that this error of fact was a significant error of fact for the purposes of s.400(2) of the Act. Conclusion [24] Mr Cai has not advanced a reasonably arguable case that the Decision was attended by appealable error. Nor are we satisfied that it is in the public interest to grant permission to appeal. [25] Accordingly, permission to appeal is refused. DEPUTY PRESIDENT Appearances: J Cai, Appellant L Tran for the Respondent Hearing details: 2023. Sydney (By Video using Microsoft Teams) August 8. Printed by authority of the Commonwealth Government Printer <PR765448>