Andrew Maunder v Moolarben Coal Operations Pty Ltd
[2015] FWCFB 387
•23 JANUARY 2015
[2015] FWCFB 387
The attached document replaces the document previously issued with the above code on 23 January 2015.
By deleting the word ‘not’ from the second line in paragraph [9].
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 23 January 2015
| [2015] FWCFB 387 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Moolarben Coal Operations Pty Ltd
(C2014/7253)
JUSTICE ROSS, PRESIDENT |
|
Appeal against decision [2014] FWC 7971 of Senior Deputy President Drake at Sydney on 10 November 2014 in matter number U2014/6585 - public interest not enlivened - permission to appeal refused.
[1] Andrew Maunder (the appellant) was dismissed from his employment with Moolarben Coal Operations Pty Ltd (the respondent) on 26 March 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).
[2] On 10 November 2014 Senior Deputy President Drake issued a decision in relation to Mr Maunder’s application. 1 In that decision, the Senior Deputy President found that Mr Maunder’s dismissal was not harsh, unjust or unreasonable, and dismissed his application. The appellant has appealed the Senior Deputy President’s decision and that is the matter before us.
[3] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 2 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 3. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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
[5] 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
[6] In the decision under appeal, the Senior Deputy President found, for the purposes of s.387(a) of the FW Act, that there was a valid reason for the appellant’s dismissal in that on 22 March 2014 he conducted a service as a mechanical technician on an EX112 Shovel, but in doing so failed beforehand to properly isolate the shovel, and also failed to undertake a risk assessment known as a “Take 5”. There was no dispute that these failures constituted breaches of the respondent’s safety policies. The appellant’s appeal does not challenge this finding.
[7] Of the appellant’s nine appeal grounds, six are advanced as justifying permission to appeal. They are all concerned with one aspect of the case the appellant presented at first instance, namely that the dismissal of the appellant was unfair because he had been subject to differential treatment. In support of this aspect of his case, the appellant called evidence in order to demonstrate that other employees who had committed breaches of safety policies of a comparable nature had not been dismissed but rather subjected to more lenient disciplinary action. In seeking permission to appeal, the appellant contends that the way in which the Senior Deputy President dealt with this aspect of his case involved significant errors of fact and manifested an injustice that should not be allowed to stand, and that the appeal was consistent with the preservation of public confidence in the administration of justice.
[8] The Senior Deputy President dealt with this aspect of the appellant’s case as follows:
“[18] I have considered the detailed cross-examination of witnesses and the painstaking submissions of Mr Walkaden concerning what he identified as the failure of Moolarben to consider, and deal with in a consistent manner, the conduct of the Open Cut Manager at the site on the occasion when Mr Maunder's mistake was discovered.
[19] Mr Walkaden meticulously led the witnesses and me through a consideration of the actions of the manager and the two contractors who were at the site, in an attempt to establish that those persons also breached the safety procedures of Moolarben.
[20] I was not persuaded that the manager and contractors were in breach of Moolarben’s safety procedures, although Mr Walkaden’s cross examination did cause me to consider whether they might have been inappropriately close to the shovel. Despite my conclusion I decided to consider Mr Maunder’s situation as if the manager and contractors had been in breach and, if so, whether the failure to discipline those persons would have led me to conclude that there should have been a different outcome for Mr Maunder. Given the circumstances surrounding Mr Maunder’s breach, against a background of recent warnings, was there a sufficient standalone reason for the termination of his employment that was not harsh, unjust or unreasonable? I concluded that any differential treatment of the manager and contractors would not have persuaded me to a different conclusion.
[21] I have also considered the circumstances of those workers who breached the isolation and "Take 5" in the period before Mr Maunder’s safety breach and his dismissal. They were not dismissed for that breach. I am satisfied that what occurred following the safety breach by those workers is that Moolarben took into account its own failure to adequately highlight its safety procedures as a mitigating factor. I am satisfied that Moolarben subsequently adjusted its conduct and engaged in a process which highlighted the safety procedures. I am satisfied that, as a result, Mr Maunder was reminded of those procedures.
[22] Because Mr Maunder and others received that warning, and received them so close in time to his failure to adhere to the procedure, I am satisfied that Mr Maunder’s circumstances can be distinguished from the treatment of those other workers. There was a sufficient differential in the circumstances surrounding the conduct of Mr Maunder and those persons to cause me to be satisfied that the termination of Mr Maunder's employment was not harsh unjust or unreasonable.” 7
[9] Appeal Ground 1 challenges the Senior Deputy President’s finding in paragraph [20] that she was not persuaded that the manager and contractors had breached the respondent’s safety procedures, and alleges a significant error of fact in that respect. In his written and oral submissions the appellant took us in detail to the evidence which, he contended, demonstrated that there had been in fact a breach of the safety procedures. Having read and heard the appellant’s careful and comprehensive submissions in this respect, we doubt very much whether there was any error on the part of the Senior Deputy President as alleged. More importantly however we note that the Senior Deputy President went on to say in paragraph [20] that she had determined to consider the appellant’s position as if the manager and the contractors had breached the safety procedures, and concluded that this would not have led to a different outcome having regard to the nature of the appellant’s conduct and the background of recent warnings about safety issues. In circumstances where the alleged error of fact could not have altered the outcome, it cannot be said that it could constitute a significant error of fact or attract the public interest.
[10] Appeal Ground 3 challenges the finding in paragraph [21] that, in not dismissing the workers referred to, the respondent “took into account its own failure to adequately highlight its safety procedures as a mitigating factor”. The appellant submits that there was no evidence to support this finding and the evidence demonstrate that the workers had been properly trained in the relevant procedures. Appeal Grounds 2, 4, 5 and 6 challenge the further finding in paragraph [21] that, after the incident (on 11 March 2014) involving those workers, the respondent “subsequently adjusted its conduct and engaged in a process which highlighted the safety procedures”. The appellant says that this finding was incorrect.
[11] Appeal Grounds 2, 4, 5 and 6 may be rejected. Evidence was given by Mr Barry McKay, the respondent’s Maintenance Manager, that after the 11 March 2014 incident, which involved a failure to follow isolation procedures, the incident and the importance of following safety procedures was discussed at pre-start meetings at which the appellant was present. Of specific relevance to the appellant, Mr McKay also gave evidence that on three separate occasions on 21 March 2014 - the day before the incident which led to the appellant’s dismissal - the appellant’s crew were given reminders about the 11 March 2014 incident and the importance of safety, following procedures and completing Take 5s before each job. It was not in contest that this occurred, but the appellant contends that this constituted no more than the usual reminders concerning safety issues. We reject this submission. We consider that Mr McKay’s evidence demonstrated a specific response to the 11 March 2014 incident on the part of the respondent, and that this evidence amply supported the finding made by the Senior Deputy President.
[12] We are prepared to accept for the purpose of considering whether permission to appeal should be granted that the Senior Deputy President made the error of fact identified in Appeal Ground 3. However, we do not consider that any such error was significant in nature or attracts the public interest. The fact that the appellant was reminded the day before 22 March 2014 of specific safety requirements with which he then failed to comply was sufficient to reasonably permit a conclusion that the appellant had not been subject to unfair differential treatment. No injustice is manifest in the outcome.
[13] The appellant also contended that the Senior Deputy President erred by failing to deal with a third instance of alleged differential treatment of conduct in breach of safety requirements. This third instance related to something which also occurred on 22 March 2014 and involved a group of employees that included the appellant. However, the respondent submitted that this incident could not have been relevant to the issue of differential treatment because the respondent only became aware of the incident in the course of the proceedings before the Senior Deputy President, thus explaining while no disciplinary action was ever taken in relation to it. This submission was not contradicted by the appellant. Accordingly we do not consider that the Senior Deputy President erred in not dealing with it.
[14] We do not consider that the appellant has identified any error in the decision which could have affected the outcome. We are not satisfied that it would be in the public interest to grant permission to appeal, and therefore permission to appeal must be refused in accordance with s.400(1).
PRESIDENT
Appearances:
The Appellant: Mr. A Walkaden
The Respondent: Mr S. Meehan and Ms Firth
Hearing details:
Sydney
20 January 2015
1 [2014] FWC 7971
2 (2011) 192 FCR 78 at [43]
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46]
4 (2010) 197 IR 266 at [27]
5 Wan v AIRC [2001] FCA 1803 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
7 [2014] FWC 7971
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