Fair Work Commission – When will the Full Bench entertain an appeal?
A question often asked by employers facing an unfair dismissal claim is, what happens if the matter cannot be settled? Whilst the vast majority of unfair dismissal cases are resolved at conciliation, some proceed to a hearing. On rare occasions they find their way from a hearing before a single Commissioner to the Full Bench of the Fair Work Commission on appeal.
The decision of the Commission in BlueScope Steel Limited and Habak (C2019/4101) (4 October 2019) is interesting on a number of levels, including the insight it offers into the factors which bear upon whether the Full Bench will entertain an appeal from a decision of a single Commissioner.
The employee in BlueScope was initially successful in his unfair dismissal case which was heard before Commissioner Riordan. The employee had been dismissed following an incident which involved him in operating an overhead crane incorrectly as a consequence of which a coil which was being moved, tipped in a dangerous manner. As a consequence, the coil fell onto a walkway although fortunately no one was injured as a consequence. The action of the employee was in breach of the relevant safety policy of the employer.
Commissioner Riordan made a number of findings including that:-
- The employee did not take sufficient care when hoisting the hook of the crane away from the coil.
- The respondent was negligent in tipping the coil in the manner he did.
- The employee did not take responsibility for his actions.
- The employee had embellished his recollection of the incident.
- The employee had breached the relevant safety policy on three occasions in the past year.
- The employee’s failure to follow the policy for the third time provided the employer with a valid reason to terminate employment.
- The employee had been employed by the employer for 39 years.
- The employee had a “sustained high performance” commendation from his supervisor in 2014.
- The employee faced difficult financial circumstances and loss of employment would have devasting consequences.
- The employee had already applied for numerous jobs without success and there was higher than average unemployment in his geographical area.
- The fact this misconduct involved a substantial and wilful breach of the employer’s policy.
- The policy being breached on 3 separate occasions in the last year.
- The tipping of the coil was a significant safety incident.
- There was a valid reason for the employer’s dismissal.
- There was a lack of any procedural unfairness.
- The gravity of the misconduct was such that dismissal was not a disproportionate response.
Despite these findings, Riordan C determined that notwithstanding there was a valid reason for termination, termination would have been harsh in the circumstances, amongst other things given the fact that the employee had been employed with the employer for some 39 years.
The Commissioner also placed weight on evidence given by crane drivers including the employee, that the “huge swing of the hook was caused by faulty brake mechanism on the crane and the improper functioning of the crane rather than any action of the respondent”. Whilst the employee should have waited for the hook to stop before continuing, the Commissioner noted that the employer did not think that the employee acted maliciously or with intent. Had he done so his actions might have justified termination. The Commissioner also concluded that tipping the coil where there was no damage or cost to the employer in this situation which did not create an imminent risk of injury to another person did not justify termination.
Appeals to the Full Bench involve an initial hurdle namely, the Full Bench must be satisfied that it is in the public interest to grant permission to appeal (ref ss 400 and 604 of the Fair Work Act). The Full Bench in Bluescope, described the public interest test as follows:-
“ The application of the public interest is a discretionary task involving a broad value judgement. The public interest may 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”.
The discretionary nature of the decision the subject of the appeal, also directed the Full Bench’s attention to the principles in House v R (1936) 55 CLR 499 which it reproduced as follows:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The Full Bench considered that there had been significant errors in relation to findings of fact and/or irrelevant considerations by Riordan C. Firstly, it disagreed that the tipping of the coil was not a significant safety incident. It considered that Riordan C had conflated two separate requirements under the Relevant Safety Policy CSP031 (that is the requirement in relation to moving the crane with a requirement in relation to ensuring the hook is clear of the coil before hoisting) when he concluded that the tipping of the coil was not a significant safety incident. The conclusion that the tipping of the crane was not a significant safety incident was contrary to the evidence and involved a significant error of fact.
It was also of the view that the Commissioner’s finding that the swing of the crane hook which caused the coil to topple, was caused by the improper functioning of the crane or faulty brakes, was a further significant error of fact.
It found that the crane’s brakes were not relevant to the employee’s negligence in the manner in which he operated the crane. It followed that the Commissioner’s conclusion that the malfunction of the crane contributed to the tipping of the coil was a significant error of fact.
Having regard to findings which involved significant errors of fact, it granted permission to appeal and reheard the matter. Upon rehearing the matter, it turned its mind to “any other matters that the FWC considers relevant [section 387h of the Fair Work Act].
Those factors were in particular, factors which went to the issue of whether dismissal would be harsh. Factors which were taken into account by the Full Bench included:
Notwithstanding the above factors the Full Bench determined that the dismissal was a proportionate response and was not harsh, unjust or unreasonable. Factors which informed the Full Bench’s decision to uphold the employer’s decision included:
Whilst the employer’s work history and the impact on him of dismissal weighed in favour of the finding of harshness, those factors had to be balanced against the expectation that such a long serving employee would follow policies and procedures of the employer. Ultimately these factors did not outweigh what was a valid reason for the dismissal and the procedural fairness afforded to the employee and termination was therefore found not to be harsh, unjust or unreasonable.
The Full Bench decision in BlueScope is interesting in that it demonstrates that the Full Bench may intervene and support employers who terminate employees in relation to serious workplace safety incidents where there is clear evidence of a breach of workplace safety, where policies are clear and where natural justice has been afforded to the employee in question.
Where the employee in question is a repeat offender who has received warnings for previous breaches this will weigh heavily against the employee and may be a significant factor which outweighs considerations which might otherwise cause the termination to be “harsh” such as length of service and age and inability to get another job.