Boral Cement Limited T/A Boral Cement v Steven Hawkins

[2018] FWC 3637

[2018] FWC 3637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Boral Cement Limited T/A Boral Cement
v
Steven Hawkins
(C2018/3221)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 20 JUNE 2018

Appeal against decision [2018] FWC 2746 of Commissioner McKenna at Sydney on 23 May 2018 (with orders made on 30 May 2018) in matter number U2017/13394 – application for stay – no arguable case found – stay order refused.

[1] On 13 June 2018, Boral Cement Limited T/A Boral Cement (the appellant) lodged a Notice of Appeal against Commissioner McKenna’s decision 1 and order2 reinstating Mr Steven Hawkins to his employment with the appellant.

[2] I heard the appellant’s application for a stay order today, 20 June 2018. I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[3] I have decided not to issue a stay order.

[4] The appellant has filed an appeal under s.604 of the Fair Work Act 2009 (Cth) (the FW Act). Permission to appeal is required. In the case of an appeal from a decision under Part 3-2 of the FW Act (relating to unfair dismissals), which this is, permission to appeal will only be granted if the Commission considers it is in the public interest to do so. Also, in these types of appeals, to the extent there is alleged to have been an error of fact, then the appellant needs to establish that it was a significant error of fact.

[5] The approach to be taken to determining if a stay order should be made is to consider

1. whether there is a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed; and

2. whether the balance of convenience favours the making of a stay order.

[6] The grounds of appeal are annexure A to this decision.

[7] With regard to the first ground of appeal, it seems quite clear to me that the Commissioner did not fail to make a finding as to whether the appellant had a valid reason to terminate Mr Hawkins’ employment. In particular, at [13] of her decision, she said that Mr Hawkins’ failure to comply with the appellant’s Standard Operating Procedures, in circumstances where he was asked by the standby person to sign the log sheet as well as printing his name, ‘grounded’ 3 a valid reason for dismissal.

[8] With regard to the second ground of appeal, I can see no error of law in the way the Commissioner dealt with the relevant facts surrounding Mr Hawkins’ failure to sign his name on the log sheet. These were relevant considerations in her entirely reasonable conclusion that ‘considered in context, the dismissal was disproportionate to the infraction that was involved in Mr Hawkins printing out but not also signing his name on the log sheet’. 4

[9] With regard to the third and fourth grounds of appeal, I think the Commissioner’s conclusion that Mr Hawkins’ failure to sign his name did not have an effect on the safety and welfare of other employees, or his own was open to her on the evidence – and therefore, she did not make either of the significant errors of fact alleged.

[10] With regard to the fifth, sixth and seventh grounds of appeal, I do not agree that the Commissioner erred in taking into account irrelevant considerations as alleged. I think that it was quite reasonable for the Commissioner to have regard to each of the matters referred to, as each, to some extent, were relevant to the gravity of Mr Hawkins’ conduct and/or the fairness of his dismissal.

[11] Finally, with regard to the eighth ground, it was quite reasonable for the Commissioner to conclude that there had been some form of condonation – at least at the yard level – of Mr Hawkins’ conduct when the yard team leader told the standby person to in effect ‘let it go’ 5 when Mr Hawkins refused to sign his name in the log sheet and allow him to enter the confined space.

[12] I note that no issues of general importance or application to unfair dismissal matters are enlivened by this appeal.

[13] I am not satisfied that the appellant has made out a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed.

[14] Given this finding, I do not need to consider the issue of the balance of convenience. However, given that Mr Hawkins has already returned to work, it is far from clear that the balance of convenience would have favoured a stay.

SENIOR DEPUTY PRESIDENT

Appearances:

S R Meehan, counsel, with J Donnelly and J Li, solicitors, for Boral Cement Limited T/A Boral Cement.

A Sage and R Walsh, The Australian Workers’ Union, for Steven Hawkins.

Hearing details:

Sydney.

2018.

June 20.

Annexure A

Grounds for appeal

(1) The Commissioner erred at law by failing to carry out the statutory task required under the Fair Work Act 2009, by failing to make a finding as to whether the Appellant had a valid reason to terminate the Respondent’s employment.

(2) The Commissioner erred at law by failing to carry out the statutory task required under the Fair Work Act 2009 by conflating (at [13]-[20]) the requirement to make a factual finding pursuant to s.387(a) and the statutory task to make a finding as to whether or not the termination was harsh, unjust or unreasonable.

(3) The Commissioner erred by failing to find that the conduct of the Applicant warranted his dismissal because his conduct could have exposed both the Appellant and the Respondent to potential breaches of the Work Health and Safety Act 2011 (NSW). Such error was a significant error of fact.

(4) The Commissioner erred by failing to find that the conduct of the Respondent warranted his dismissal because his conduct could have placed at risk the health and safety of the Respondent and employees of the Appellant. Such error was a significant error of fact.

(5) The Commissioner erred by taking into account irrelevant considerations. It was an entirely irrelevant consideration that the Respondent’s conduct resulted in “no harm [being] caused to any person of the respondent’s business by the applicant (only) printing his name to indicate he understood the contents of the form” (at [14]).

(6) The Commissioner erred by taking into account irrelevant considerations. Having found that Respondent “should have done what he was asked and/or otherwise expected to do, because signing… is part of the relevant [Standard Operating Procedure]” (at [13]), it was an entirely irrelevant consideration that Respondent’s conduct was not connected with “misrepresenting time and wage records; misrepresenting work or duties undertaken” (at [17]).

(7) The Commissioner erred by taking into account irrelevant considerations. It was an entirely irrelevant consideration that two other individuals where the subject of counselling (at [19]), where the conduct of the other individuals was not similar to permit a proper comparison to be made.

(8) The Commissioner made a significant error of fact in finding that there was “some form of condonation – at least at the yard level” of Respondent’s conduct (at [15]).

 1   [2018] FWC 2746.

 2   PR607593.

 3   [2018] FWC 2746 [13].

 4   Ibid.

 5 Ibid [15].

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