Terrence McGlashan v MSS Security Pty Limited

[2023] FWCFB 88

[2023] FWCFB 88

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Terrence McGlashan
v

MSS Security Pty Limited

(C2023/116)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER HARPER-GREENWELL SYDNEY, 9 MAY 2023

Appeal against decision [2022] FWC 3304 of Deputy President Dean at Canberra on 21 December 2022 in matter number U2022/8944 – permission to appeal refused.

Background and the decision under appeal

1. Mr Terrence McGlashan (the Appellant) has lodged an appeal, for which permission to appeal is required, against a decision[1] of Deputy President Dean issued on 21 December 2022 (the Decision). We heard the parties in relation to the question of whether permission to appeal should be granted on 9 February 2023. At the conclusion of the hearing, we issued our decision in relation to the matter. We refused permission to appeal and stated that we would provide our reasons in due course. Our reasons for the refusal of permission are set out below.

1. The appeal arises from an unfair dismissal application made by the Appellant under s 394 of the Fair Work Act 2009 (Cth) (FW Act) against MSS Security Pty Limited T/A MSS Security (the Respondent). The Appellant commenced employment with the Respondent in October 2010. Prior to his dismissal, the Appellant was employed in the position of Business Manager – Client Services. During an unrelated investigation, the Respondent became aware of recordings of conversations involving the Appellant which were, in the Respondent’s view, of a highly offensive nature. Following an investigation into the Appellant’s conduct, he was summarily dismissed on 29 August 2022.

1. In the Decision, the Deputy President considered whether recordings of the Appellant’s internal telephone conversations (the Recordings) were illegally or improperly obtained and whether they could be admitted as evidence in the proceedings. The Deputy President determined that the Recordings were not illegally or improperly obtained and accordingly, that they could be admitted as evidence.

Grounds of appeal and submissions

1. The Appellant’s notice of appeal contains three grounds of appeal:

2. The Deputy President made an error of law by not considering, properly or at all, whether the Appellant had actual or inferred actual knowledge when engaging in the conversations that were the subject of the Recordings, that they would be intercepted, recorded and listened to by the Respondent.

1. The Deputy President made a significant error of fact by finding that, when engaging in the conversations the subject of the Recordings, the Appellant had knowledge, whether actual or inferred actual, that the Respondent would intercept, record and listen to those conversations.

1. The Appellant was denied procedural fairness in his application for an adjournment of the hearing in order to file further evidence concerning his lack of knowledge that the Respondent would intercept, record and listen to the conversations.

1. In his notice of appeal, the Appellant also set out a number of matters which he considers make it in the public interest to grant permission to appeal. The Appellant stated that the Respondent’s conduct in intercepting the conversations:

· May constitute indictable offences pursuant to s 105 of the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) and gives rise to damages under that Act,

·   Constitutes serious invasions of its employee’s ‘personal rights’,

·   Is contrary to s 12 of the Human Rights Act 2009 (ACT); and

·   Undermines trust and confidence in the employment relationship and is corrosive of a healthy and productive workplace environment.

1. The Appellant asserts the public interest is invoked because the Decision does not denounce the Respondent’s conduct and may undermine the legitimacy of employment relationships generally.

1. Finally, the Appellant contends that granting permission to appeal is in the public interest because a decision of a Full Bench of the Commission will provide guidance to all employers and employees as to the application of the TIA Act in workplaces, and may act as a deterrent for employers committing criminal acts against their employees.

1. At the hearing, the Appellant was represented by Mr Russell-Uren. Mr Russell-Uren submitted that it is not in contention that the TIA Act provides that interception of a telecommunication over a telecommunications system requires that a person has “actual knowledge” that the communication is being recorded. Mr Russell-Uren contends that s 63 of the TIA Act prohibited the Commission from receiving the Recordings because it couldn’t be satisfied that the Appellant had “actual knowledge” that internal telephone calls were being recorded and further, that the Deputy President erred in relying on the mere existence of “contractual documents” which did not establish that the Appellant had “actual knowledge” that internal calls were being recorded. He also contends the Deputy President erred by failing to consider whether the Appellant had actual knowledge of the intercepts, whether the Appellant’s actual knowledge extended to internal telephone conversations, and the Appellant’s mistake as to the interception of internal telephone calls (i.e. his lack of awareness that they were intercepted).

1. The Appellant submitted ss 7 or 63 of the TIA Act apply to the Recordings and therefore the Commission has no discretion to admit the Recordings and would exceed its jurisdiction if it was to do so. The Appellant submitted it is an indictable offence to use information gleaned from intercepts conducted without his actual knowledge. Further, the Appellant submitted there was an error associated with the failure to distinguish between actual knowledge and constructive knowledge. The Appellant submitted the admissibility of the Recordings would determine the proceedings and if the issue of admissibility was made in error, then he would suffer an injustice because he would have to choose between suffering the indignity of an indictable offence or discontinuing his application.

1. The Appellant submits it is in the public interest to grant permission to appeal because the parameters of an employer’s power to intercept private telephone conversations between employees is a matter of general importance.

1. In response, the Respondent submitted the contentions of the Appellant do not raise any issue of importance and that the Appellant has been unable to establish any arguable case of error. The Respondent does not take issue with the Appellant’s submission that the TIA Act requires that a person have “actual knowledge” that a telecommunication over a telecommunications system is being intercepted. It submitted however, that the Deputy President determined as a question of fact that the Appellant had “actual knowledge” that his phone line was being recorded.

Principles on appeal

1. An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.

1. This appeal is one to which s 400 of the Act applies. Section 400 provides:

(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.

1. In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”[4]

1. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[5] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[6]

1. 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.[7] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

Consideration

First and second grounds of appeal

1. The Appellant contends in his first ground that the Deputy President made an error of law by not considering, properly or at all, whether the Appellant had actual or inferred actual knowledge when engaging in the conversations (the subject of the Recordings) that they would be intercepted, recorded and listened to by the Respondent. Further, the Appellant contends that the Deputy President made a significant error of fact by finding that when engaging in those conversations, the Appellant had knowledge, whether actual or inferred, that the Respondent would intercept, record and listen to those conversations.

1. Considering the first and second grounds of appeal, we observe that the Deputy President commenced the Decision by briefly stating the background of the Decision. The Deputy President noted the Appellant signed a contract of employment with the Respondent in October of 2010 which included the following clause, reproduced in full in the Decision:

“10. SURVEILLANCE IN THE WORKPLACE

The Company gives you notice that surveillance may take place while you are at work through camera, computer or tracking surveillance. Such surveillance may be carried out by any of the following means:

…

·   telephone voice recordings for incoming and outgoing calls in some areas of the business.

…”

1. The Deputy President noted that in late 2021 or early 2022, the Respondent published a policy document entitled the ‘Employee Standing Instructions 2022’ (the Policy), which included at Clause 1.30 that surveillance in the workplace included “audio recording of telephones at some of the MSS Security work locations”.

1. The Deputy President turned to consider whether the Respondent had breached the TIA Act and the Listening Devices Act 1992 (ACT) (LD Act), as alleged by the Appellant. The Deputy President set out the relevant sections of each Act.

1. In her consideration of the TIA Act, the Deputy President observed that ‘interception’ under the TIA Act means interception without the knowledge of the person making the communication. Accordingly, the Deputy President found it necessary to determine whether the Appellant had knowledge of the interceptions.

1. After stating that she had concluded that the Appellant had the requisite knowledge, the Deputy President provided reasons for this conclusion. The Deputy President canvassed the evidence of the Appellant, Mr Raj Daroch, National IT Manager, and Ms Rebecca Edwards, National Talent Acquisition, Retention and Experience Manager. The Deputy President considered the Appellant’s evidence that he understood the reference to ‘incoming and outgoing calls’ in the Policy to be a reference to external calls only, and that he understood external calls were monitored. The Deputy President observed that email communications between the Appellant and the Respondent’s IT department, in which the Appellant confirmed that monitoring of his landline telephone should continue, did not state the monitoring was limited to external telephone calls. The Deputy President accepted the evidence of Ms Edwards that in 2019 she had a conversation with the Appellant to the effect that he understood his phone was being recorded. On the basis of this evidence, and the terms of the Appellant’s employment contract and the Policy, the Deputy President concluded that the Appellant had knowledge that his landline telephone was being recorded and rejected the contention that the Recordings breached the TIA Act.

1. The Deputy President then turned to consider whether the Respondent had contravened the LD Act. The Deputy President observed that, under the LD Act, a person can use a listening device to record a private conversation if each principal party to the conversation consents to the use of the listening device. The Deputy President relied on her findings in relation to the TIA Act, the terms of the employment contract and the Policy and determined that the Appellant consented to the use of a listening device to record the conversations. The Deputy President was satisfied that the Respondent was a ‘party’ for the purposes of the LD Act, being a person who, with the consent of any of the persons who speaks or is spoken to in the course of the conversation, listens to or records the conversations.

1. The Deputy President briefly considered whether the Respondent’s use of the LD Act was authorised by the Workplace Surveillance Act 2011 (ACT) (Privacy Act) and determined that the Privacy Act does not cover surveillance in the nature of voice recordings.

1. Finally, the Deputy President turned to consider whether the evidence should otherwise be excluded. The Deputy President considered that the Recordings have probative value and are relevant to the unfair dismissal application. The Deputy President concluded that there was no basis to exclude key evidence aimed at proving the conduct for which the Appellant was dismissed.

1. When the Decision is properly considered, it is apparent that the Deputy President was satisfied on the evidence before her that the Appellant had “actual knowledge” that his phone line was being recorded. We consider this was a finding that was reasonably open to the Deputy President. In the proceedings before the Deputy President the Appellant made admissions that he knew the “inbound and outbound external telephone calls” (i.e. telephone calls to and from devices not owned by the Respondent) may be monitored and recorded. On the basis of the terms of the employment contract and the Policy, and the evidence of Mr Daroch and Ms Edwards, the Deputy President determined the Appellant understood incoming and outgoing calls (both external and internal) on the Appellant’s phone line were being recorded. Accordingly, we are not persuaded the first and second appeal grounds disclose any arguable cases of appealable error.

Third ground of appeal

1. Turning to the third ground of appeal, the Appellant contends that he was denied procedural fairness in his application for an adjournment of the hearing in order to file further evidence of his lack of knowledge that the Respondent would intercept, record and listen to the conversations.

1. We are not satisfied that there is an arguable case that the Appellant was denied procedural fairness by virtue of his application for an adjournment to file further evidence having been denied. At the commencement of hearing before the Deputy President on 15 November 2022 (the November Hearing), Mr Russell-Uren informed the Deputy President he was in a position to make some opening submissions and the Appellant was ready to give evidence.[8] Shortly thereafter Mr Russell-Uren sought to have the matter adjourned on the basis that there was insufficient time between the filing of the Respondent’s evidence and the date of the hearing to allow the Appellant to file evidence in reply.[9]

1. A fair reading of the transcript of the November Hearing discloses that Mr Russell-Uren did not press his application for an adjournment and was offered, and accepted, an alternative course enabling him to adduce further evidence orally from the Appellant.[10] At completion of the evidence, the Deputy President granted a short adjournment before the parties made closing submissions. Mr Russell-Uren did not press his objection for an adjournment in his closing submissions.[11] The Appellant’s contention that he was denied procedural fairness at the November Hearing is not reasonably arguable. For these reasons, we reject the procedural fairness ground. We are not persuaded that the Appellant has advanced a reasonably arguable case that there was a denial of procedural fairness.  

1. Finally, we observe that the appeal lies against an interlocutory procedural decision of a discretionary nature made by the Deputy President. It would normally not be in the public interest to grant permission to appeal from a decision of this nature,[12] and it is not open to this Full Bench to substitute its view on matters that fell for determination before the Deputy President in the absence of error of an appealable nature.[13]

1. It is generally accepted that appeals to a Full Bench of this Commission from preliminary or procedural decisions of a discretionary nature should be discouraged.[14] The Appellant’s unfair dismissal application has not yet been determined by the Deputy President. If the Appellant is ultimately unsuccessful, it will be open for him to appeal the final decision.

Conclusion

1. Ultimately, nothing in the submissions of the Appellant persuades us that there is an arguable case of appealable error in relation to the findings of the Deputy President and nor do we consider there is an arguable basis to contend the Appellant was denied procedural fairness. Because no arguable case of appealable error or denial of procedural fairness has been established, we are not satisfied that it is in the public interest to grant permission to appeal.

1. Accordingly, permission to appeal is refused.

VICE PRESIDENT

Appearances:

Ms Minuri Dharmasena, for the Appellant.
Ms Lyndelle Barnett, for the Respondent.

Hearing details:

2023.
Microsoft Teams (Video).
9 February 2023.

[1] [2022] FWC 3304.

[2] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[3] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

[4] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

[5] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[6] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]

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

[8] Transcript PN11.

[9] Transcript PN13.

[10] Transcript PN17.

[11] Transcript PN847-851.

[12] You v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO[2020] FWCFB 3804, [23].

[13] House v R (1936) 55 CLR 499, 504-505.

[14] United Firefighters' Union of Australia (259V) v Metropolitan Fire and Emergency Services Board[2017] FWCFB 2500, [27].

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