BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works v Mr Zaki Habak

[2019] FWC 4783

[2019] FWC 4783

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works
v
Mr Zaki Habak
(C2019/4101)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 JULY 2019

Appeal against decision [[2019] FWC 3332] of Commissioner Riordan at Wollongong on 14 June 2019 in matter number U2019/333.

BACKGROUND

[1] This decision relates to an application for a stay order by BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works (the Appellant). The stay order is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal lodged by the Appellant against a Decision of Commissioner Riordan issued on 14 June 2019. In the Decision, the Commissioner determined that Mr Zaki Habak (the Respondent) had been unfairly dismissed, and ordered that he be reinstated to his former position with the Appellant with continuity of service and with no order for lost remuneration because of the dismissal. The Order which was included in the text of the Decision did not specify a prospective date for compliance.

[2] The parties accepted in the hearing of the stay application that the Order required that the Respondent be reinstated as soon as reasonably practicable after the Order was made. The Appellant has not reinstated the Respondent. The Notice of Appeal was filed on 4 July 2019 and seeks a stay with respect to Orders made for reinstatement and continuity of service.

[3] Section 606(1) of the Act provides as follows:

“606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.”

[4] Before granting a stay order it is well established that the Commission is required to be satisfied that there is an arguable case with some reasonable prospects of success, in respect of permission to appeal and the substantive merits of the appeal. 1 In addition the balance of convenience must weigh in favour of the order subject to appeal being stayed.2

SUBMISSIONS

[5] In relation to whether there is an arguable case with some reasonable prospects of success, the Appellant raises 13 grounds of appeal said to involve errors of law and significant errors of fact. These include grounds asserting that the Commissioner made findings based on his own views about the application of policies by the Appellant and views formed by him during an inspection, in circumstances where the Appellant was not notified of those views and did not have an opportunity to respond. Other grounds of appeal point to inconsistencies between various conclusions reached by the Commissioner about the severity and the cause of the incident which resulted in the Respondent’s dismissal. Further the Appellant asserts that the Commissioner’s determination that the Respondent should be reinstated was inconsistent with findings about his conduct and the contribution this made to the incident that led to his dismissal.

[6] In relation to the balance of convenience the Appellant submits that the Commission should have regard to the following matters:

•  In the event the appeal is not successful the Appellant will pay to the Respondent his full wages from the date of the Decision in addition to interest on the full outstanding amount at the rate of 3% per annum;

•  If the appeal was successful and a stay was not granted the Respondent would be required to repay wages received in the intervening period in circumstances where it is likely that those wages would have been spent;

•  If a stay was not granted and the appeal was successful the Appellant would terminate the Respondent’s employment for the second time and would have accrued further liabilities in relation to his employment, which outweighs any inconvenience brought upon the Respondent if he is required to wait a further short period in order to have an outcome from the Full Bench in the appeal.

[7] The Appellant also submits that leaving aside the issue of wages which is readily dealt with in a manner which does not prejudice the Respondent because of the undertaking, a significant matter to consider when weighing up convenience is the difficulty the Appellant would have in the short term reinstating the Respondent in circumstances where the Commissioner found that there was a valid reason for dismissal on the basis that the Respondent did not take sufficient care and was negligent. The Appellant also points to the Commissioner’s findings that the incident which resulted in the Respondent’s dismissal was the third occasion he had breached a critical safety procedure in a short period and that the Respondent had not taken responsibility for his actions. The Appellant contends that it would have a real concern about the Respondent’s ability to perform his duties safely and would be required to expend time and resources training him in relation to his duties. The Appellant further contends that the undertaking it has provided in relation to the Respondent’s wages would place him in a more favourable position if the appeal is dismissed. If the stay is not granted and the appeal is upheld, the financial and operational damage to the Appellant could not be remedied by the Respondent.

[8] The Respondent maintains that the approach adopted by the Commissioner was entirely consistent with Full Bench authority and principle and that the findings made by the Commissioner were well justified on the material before the Commissioner who applied the statutory tests conventionally and had regard to relevant authorities in reaching his conclusion. While the Commission will pay due regard to the importance of upholding occupational health and safety standards in reaching decisions about safety related dismissals, in cases where it is found that an employee has breached such a procedure, it is still incumbent on the Member at first instance to consider the seriousness of the breach and weigh that against other relevant factors in order to determine whether the dismissal was harsh, unjust or unreasonable.

[9] In relation to the grounds of appeal the Respondent submits that the Commissioner was entitled to have regard to his industrial experience of the worksite and his inspection of the crane’s operation in coming to his decision and that if there was error in his conclusions in relation to these matters it would not have affected the ultimate decision reached. It was also submitted that the Commissioner’s conclusions in relation to the mechanical condition of the crane was consistent with his view that both mechanical fault and operator error contributed to the incident. In relation to the finding that the incident was not a “safety incident” the Respondent submits that this is a semantic argument to the effect that the Commissioner ought to have used the term in the manner of an occupational health and safety practitioner with respect to potential risk rather than actual harm, and this argument is irrelevant to the outcome. In relation to the appeal ground that the Commissioner took into account his observations from an inspection, this is said to be misplaced on the basis that it is not clear what the utility or purpose of a site visit would be if the Commissioner was not permitted to have regard to it in making findings of fact.

[10] With respect to the balance of convenience, the Respondent asserts that the Appellant’s submission about the need to retrain the Respondent indicates that the Appellant intends to continue to contravene the reinstatement Order by placing conditions on the Respondent’s return to work which are inconsistent with and not contemplated by the Order. In relation to the Appellant’s submission that if the appeal is successful the Respondent will have spent his wages and will have difficulty repaying them the Respondent submits that any liability in this regard would be offset by the labour that the Respondent would have provided to the Appellant in the interim period and the better view is that there will be no liability. The Respondent’s current financial circumstances and the hardship that continued non-compliance with the Order would cause to him are also said to be a matter weighing against the grant of a stay. Further the Respondent submits that compliance with a reinstatement order requires that actual work is provided and that a stay order would deprive the Respondent of the non-pecuniary benefit of actual employment.

[11] The Respondent also points to the Appellant’s non-compliance with the Order and that it waited until the final date of the appeal period to file its notice of appeal and had not sought an expedited appeal. In this regard, the Respondent submits that the Order required that the Respondent be reinstated immediately or as soon as practicable after the Order was received by the Appellant. Correspondence between Solicitors for the Appellant and the Respondent’s representative in which the Appellant informed the Respondent’s representative that it intended to appeal and would back pay the Respondent if the appeal succeeded did not relieve the Appellant of the obligation to comply with the Order. The email correspondence from the Respondent’s representative is at best an undertaking not to take further legal action if the Appellant had not effected reinstatement by 24 June 2019 as sought by the Respondent.

CONSIDERATION

[12] After considering the appeal grounds raised by the Appellant I am satisfied that there is an arguable case for permission to appeal and that the Appellant has some reasonable prospects of success in relation to the merits of the appeal. In this regard I am satisfied that the grounds of appeal raise the important issue of safety in the workplace, the characterisation of safety incidents and compliance with workplace health and safety policies and procedures. The appeal grounds also raises arguable issues in relation to denial of procedural fairness with respect to the conclusions formed by Commissioner at first instance about application of policy by the Appellant and the mechanical condition of the crane that was involved in the incident. I am also of the view that there are some inconsistencies in the Decision at first instance in relation to findings about the causes of the incident and the outcome of reinstatement in light of the Respondent’s contribution to the incident.

[13] I am of the view that the balance of convenience favours a stay order being made. While I accept that the Respondent has suffered hardship as a result of his dismissal and continues to suffer hardship awaiting the outcome of his unfair dismissal application, that hardship can be ameliorated by the payment of wages and interest at the rate of 3% per annum to the Respondent from the date of the Decision at first instance if the appeal is not successful, in accordance with the Appellant’s undertaking. I also note that the Order did not provide for payment of lost wages between the date of the dismissal and reinstatement and that a stay order will not impact on the Respondent in this regard.

[14] In contrast, if the Order for reinstatement is not stayed the Respondent will be required to reinstate the Applicant and pay him wages from the date of the Decision and accruals of entitlements in circumstances where if the appeal succeeds, it will have difficulty recovering such payments and there is doubt whether it will legally be able to do so. I also accept that given the findings made by the Commissioner about the contribution made by the Respondent to the incident and in particular his negligence and previous history of being involved in safety incidents, that the Appellant would be required to undertake some retraining of the Respondent in the event of reinstatement causing operational difficulty which could not be compensated for if the appeal succeeds.

[15] I have considered the failure of the Appellant to comply with the Order and to file the appeal expeditiously. While I do not condone non-compliance with Orders of the Commission, the Appellant has exercised its right of appeal within the required time and has raised grounds of appeal which have reasonable prospects of success. I have also had regard to the fact that the Decision and Order did not provide the Appellant with a grace period for compliance. Further, I have had regard to the fact that the appeal is listed for hearing in respect of permission to appeal in the period 5 – 9 August 2019.

[16] For these reasons I accepted the Appellant’s undertaking in relation to payment to the Respondent if the appeal does not succeed and issued an Order 3 on 9 July 2019 staying the order of Commissioner Riordan in U2019/333, pending the hearing and determination of the appeal in C2019/4101.

DEPUTY PRESIDENT

Appearances:

Ms A DeBoos of K&L Gates on behalf of the Appellant.

Mr A Sage of the Australian Workers’ Union on behalf of the Respondent.

Hearing details:

9 July.

2019.

By Telephone.

Printed by authority of the Commonwealth Government Printer

<PR710171>

 1   Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 per Ross VP at [5].

 2   Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13]

 3   PR710169