Moray and Agnew recently acted for Calvary Health Care ACT Ltd t/a Calvary Public Hospital Bruce (Calvary) in successful defence of unfair dismissal proceedings, which were appealed to the Full Bench of the Fair Work Commission.

The first instance decision and decision on appeal reinforce good practice surrounding dismissals, as well as the public interest threshold associated with obtaining permission to appeal.

Background

Mr Hammam Hijazi, who was employed at Calvary for approximately 10 years, was the director of medical imaging.

An external investigator was engaged by Calvary to investigate reported allegations of bullying and harassment of staff by Mr Hijazi. He was notified of the investigation, provided with the allegations made against him and was invited to respond to the allegations on a number of occasions during the investigation.

The external investigation, which included interviews with staff, found that Mr Hijazi had engaged in bullying behaviour towards two staff members. Mr Hijazi was advised of the finding and was invited by Calvary to provide a response prior to a determination being made as to the occurrence of the misconduct.

In December 2019, Calvary accepted, relying on the investigation report, on the balance of probabilities, that the misconduct had occurred, in contravention of governing legislation, as well as Calvary policies, values and staff code of conduct.

Mr Hijazi was terminated on 10 February 2020 and was paid four weeks’ pay in lieu of notice.

First Instance Decision

Mr Hijazi applied for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). His primary argument was that there was no valid reason for his dismissal. He further alleged that, where the conduct was established, his dismissal was harsh because it was disproportionate.

Mr Hijazi submitted that the investigation report should be excluded as the investigation was fundamentally flawed and was in any case hearsay evidence. He said to include the report, or to give it weight, would cause unfairness in circumstances where no witnesses were called before the Commission for cross examination.

The Deputy President agreed with Calvary, and determined the report was admissible on the basis of a number of precedents. In doing so, the Deputy President noted there were no identifiable flaws in the manner the investigation was completed or in Calvary’s reliance on the same in deciding to terminate Mr Hijazi. He was also given ‘more than adequate’ opportunity to respond to the allegations and findings, with Calvary taking his response into account prior to making a final decision. However, the Deputy President placed less weight on the report with reference to not hearing direct evidence from the witnesses.

Pursuant to s 387 of the Act, the Deputy President found there was a valid reason for the dismissal and dismissed the application. The Deputy President relied on the matters that were either not disputed or were conceded by Mr Hijazi, combined with limited reliance on the investigation, to make this finding. 

The Deputy President also found the dismissal was not harsh, including with reference to the seniority of Mr Hijazi’s position.

Decision on Appeal

Mr Hijazi appealed the first instance decision to the Full Bench of the Fair Work Commission under s 604 of the Act.

The Full Bench relevantly noted that an appeal can only be made with the permission of the Commission. Further, pursuant to s 400 of the Act, permission to appeal an unfair dismissal decision can only be granted where it is in the public interest to do so. The public interest threshold is ‘stringent’ and requires the discretion of the Full Bench.

Granting permission to appeal is ‘rarely appropriate’, unless an arguable case of an appealable error is demonstrated. Identification of an error alone or a preference for a different result will not satisfy the threshold.

Mr Hijazi appealed on the following grounds:

1. The Deputy President erred in placing reliance on the investigation, which significantly guided findings about the existence of a valid reason;
2. Mr Hijazi was denied procedural fairness because none of the complainants or first-hand witnesses were called to give evidence, thus denying the opportunity for cross-examination; and
3. The Deputy President made a significant error of fact in finding that a complaint had already been made by a particular staff member a month prior to a further bullying incident. The initial complaint had actually been made by a different staff member, which Mr Hijazi submitted to be a significant error because particular weight was attached to this finding. 

Grounds 1 and 2 were rejected by the Full Bench on the basis that the Commission did have the ability to rely on an investigation report and further that a fair reading of the first instance decision clearly placed less weight on the investigation, and instead made a finding on the basis of matters conceded or not disputed by Mr Hijazi.

In relation to ground 3, the Full Bench found that Mr Hijazi’s conduct was highly inappropriate, irrespective of his knowledge of the initial complaint, including because he acknowledged his conduct was an error in judgement and would have been intimidating. Accordingly, even if the Deputy President made an erroneous finding in relation to Mr Hijazi’s knowledge of the complaint, this did not amount to a significant error of fact.

Permission to appeal was refused by the Full Bench. The Deputy President’s approach in reaching her decision was found to be orthodox and made with reference to correct legal principles.

The appeal also failed to attract public interest, including as it was not an issue of importance and/or general application, there was no injustice or counter-intuitive result and the legal principles applied were not disharmonious when compared to similar matters.

Practical Implications

The first instance decision reinforces the importance for employers of conducting investigations into alleged misconduct in an appropriate manner. An accused should be given ample opportunity to respond to any allegations, which an employer should consider before making a determination as to the occurrence of the alleged conduct.