Pub­li­ca­tions

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:-

[20] 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.

Con­clu­sion

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.