Boral Cement Limited T/A Boral v Steven Hawkins
[2018] FWCFB 6484
•22 OCTOBER 2018
| [2018] FWCFB 6484 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Boral Cement Limited T/A Boral
v
Steven Hawkins
(C2018/3221)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 OCTOBER 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 – Fair Work Act 2009 (Cth) ss.400, 604 – grant of permission would not be in public interest – permission to appeal refused.
Introduction
[1] Boral Cement Limited T/A Boral (Boral) has filed a Notice of Appeal in which it seeks permission to appeal and to appeal against a decision of Commissioner McKenna issued on 23 May 2018 1 (the Decision) and subsequent Orders made on 30 May 2018.2
[2] The Decision concerned Mr Steven Hawkins’ application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) with respect to his former employment with Boral.
[3] The application for permission to appeal was heard on 17 September 2018. Mr Arthur Moses SC with Ms Vanja Bulut of counsel appeared for Boral and Mr Aron Neilson, solicitor, with Mr Alistair Sage appeared for Mr Hawkins. Having regard to s.596(2)(a) of the Act, we permitted the legal representatives of both parties to appear.
[4] Leading up to the hearing and in the hearing itself, an application of apprehended bias was also made against the Senior Deputy President by Boral. For the reasons given in transcript, the Senior Deputy President declined to recuse himself. 3
Background
[5] At the time of his dismissal, Mr Hawkins was employed as a production operator advanced (Level 3). He was dismissed by Boral on 28 November 2017, on the basis of serious misconduct.
[6] It was company policy that employees entering and exiting confined spaces at the workplace were required to write their name and signature upon a sheet of paper.
[7] The Commissioner found that on 6 November 2017, a contract employee who was, as the acting standby person, charged with the responsibility for maintaining the In/Out log sheet for a confined space at the workplace, asked Mr Hawkins to write his name on and sign the log sheet. Mr Hawkins wrote his name in a box on the log sheet, but declined, when asked by the standby person, to write his signature in the adjoining box. After Mr Hawkins declined to sign the log sheet, the standby person asked a more senior Boral employee what he should do about it. According to the Commissioner, the standby person was informed by the yard team leader, in effect, to ‘let it go’. Mr Hawkins then entered the confined space to perform work having printed his name, but without also signing the log sheet. Mr Hawkins re-entered the confined space later that same day to perform work, having printed his name but, again, without also signing the log sheet.
[8] Mr Hawkins was subsequently dismissed for failing to sign his name in the log sheet as well as other related matters including his response to Boral during the investigation and show cause process.
[9] Under the heading ‘Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)’, the Decision included the following:
‘On 6 November 2017 the applicant declined the standby person’s request to sign the log sheet in addition to printing his name on the document, in connection with entering the confined space. The applicant should have done what he was asked and/or otherwise expected to do, because signing (or, the respondent submitted would be acceptable, initialling) is part of the relevant SOP. The failure to comply with the SOP, and in circumstances where he was asked by the standby person to sign the log sheet as well as printing his name, grounded a valid reason for dismissal.’ 4
[10] The Commissioner went on to say that:
‘Considered in context, however, the dismissal seems disproportionate to the infraction that was involved in the applicant printing but not also signing his name in the log sheet.’ 5
[11] The Commissioner elaborated on the context, including that ‘[t]he evidence did not… establish that lack of affixing his signature by the applicant of his signature (or initials) in addition to his adjacent, hand-written inclusion of his name had an effect on the safety and welfare of other employees or his own… no harm was 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.’ 6
[12] The Commissioner also found that the advice from the yard leader to the standby person to ‘let it go’ meant that when the Mr Hawkins re-entered the confined space for a second time on 6 November 2017 ‘there had been, in effect, some form of condonation – at least at the yard level – earlier that same day of the applicant entering the confined space without signing and printing his name in the relevant segments in the log sheet.’ 7
[13] The Commissioner also found that there was no evidence that Mr Hawkins had, prior to 6 November 2017, ever been taken to task in any way for only printing his name rather than also signing documents. She also found that there appeared to have been a somewhat haphazard or inconsistent approach to the completion of documents – not only by the Mr Hawkins, but also by others. She said that:
‘To avoid doubt, there is no suggestion that the applicant’s failure to place his signature … rather than just printing his name in plain text was connected in any way with, for example, misrepresenting time and wage records; misrepresenting work or duties undertaken by the applicant; or any of the more familiar issues that are sometimes presented in relation to completion of employment-related documents. Rather it seems that the applicant engaged in some form of contrariness in his interaction with the standby person and without realising the seriousness with which the respondent’s management would view matters.’ 8
[14] The Commissioner also noted that the standby person and the yard team leader were counselled for their part in the events on 6 November 2017. She said that:
‘I note and accept the submissions for the applicant as to the disparity in action taken by the respondent concerning the three individuals in relation to what the respondent treated as including workplace safety-related issues and lapses. In noting the different outcomes as between the three individuals, the applicant was an employee of some 12 years’ standing.’ 9
[15] Under the heading ‘Any other matters that the Commission considers relevant’, the Commissioner said:
‘In the end, in terms of the application for an unfair dismissal remedy before me, an employee [of] 12 years’ standing was dismissed for reasons involving a misguided – impertinent even – notion that it was sufficient for him to only print his name in plain text on the relevant log sheet rather than also writing his signature (or initials) in the adjoining box, and despite being asked to do so in connection with the confined space entry. While the letter concerning the dismissal characterised matters as “a blatant disregard for your obligations as an employee in the form of your refusal to co-operate with the Company’s safety processes [and] constitutes a separate ground of serious misconduct”, I do not think matters can be put as highly as this, particularly when considered in the context of matters including the immediate local yard-level conclusion to let matters go; and also then not to escalate matters when there was a second entry to the confined space that same day again without affixing a signature to the log sheet…’ 10
[16] The Commissioner went on to find the dismissal harsh in all the circumstances. 11 She ordered Mr Hawkins’ reinstatement, but did not order the payment of the full amount of lost wages ‘given his own role in the matters leading to [the] decision to dismiss…’12
Boral’s submissions
[17] Boral submitted that it was in the public interest for the Fair Work Commission (the Commission) to ensure that there is consistency between an employer’s obligations in relation to the health and safety of its workforce, and the need for the employer to take disciplinary action when employees do not comply with those obligations.
[18] Boral also submitted that the Decision clearly manifested an injustice, was counter-intuitive, and was attended with sufficient doubt to warrant its reconsideration.
[19] Boral said that the Commissioner had made a number of errors. It said that she had:
• failed to make a factual finding as to whether Boral had a valid reason to terminate Mr Hawkins’ employment;
• conflated the requirement to make a factual finding pursuant to s.387(a) and the balancing exercise undertaken pursuant to s.387;
• made a significant error of fact by failing to find that Mr Hawkins’ conduct warranted dismissal as it could have exposed Boral and Mr Hawkins to potential breaches of work health and safety legislation;
• made a further significant error of fact by failing to find that Mr Hawkins’ conduct warranted dismissal as it could have placed at risk the health and safety of Mr Hawkins and other employees at Boral;
• took into account an irrelevant consideration by finding that no harm was caused by Mr Hawkins’ conduct;
• took irrelevant considerations into account by finding that Mr Hawkins conduct was not connected with misrepresenting time and wage records or duties undertaken;
• took into account an irrelevant consideration by having regard to the fact that the two other employees associated with the incident (the standby person and the yard team leader) were counselled; and
• made a significant error of fact by finding that there was ‘some form of condonation’ by the yard team leader, including ignoring the words used by him after telling the standby person to ‘let it go’. (‘Leave it with me. I will raise it with [the Production Services and Logistics Superintendent].’)
Consideration
[20] 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. 13 However, as is discussed below, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[21] The Decision was a refusal to grant an unfair dismissal remedy under s.390; such a decision was discretionary. It follows that the Decision can only be challenged by demonstrating error in the decision-making process.
[22] It is not sufficient for an appellant to invite us to simply substitute our own determination for that of the Member whose decision is the subject of the appeal. Rather, it is necessary to demonstrate error of the type identified by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:
‘Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
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.’ 14 (footnotes omitted)
[23] This appeal is one to which s.400 of the Act applies. Section 400 provides:
‘(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
[24] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J characterised the test under s.400 as ‘a stringent one’. 15 It is intended to limit the scope for appeals in unfair dismissal matters. In particular, the requirement in s.400 means that a finding that the Member at first instance made an error is not by itself a sufficient basis for the granting of permission to appeal. As the Full Bench said in Lawrence v Coal and Allied Mining Services Pty Ltd (‘Lawrence’):
‘…To adopt that approach would effectively set the limitation in s.400 at nought and would frustrate the obvious intent of the legislature to limit appeals from unfair dismissal decisions’... 16
[25] In GlaxoSmithKline Australia Pty Ltd v Makin 17(Makin), a Full Bench of the Commission identified some of the considerations that may attract the public interest.
[26] The matter before the Full Bench in Makin was an application to appeal an unfair dismissal decision of Commissioner Bissett. It is worth recounting some aspects of that case, because they bear a degree of similarity with those of the present application. In particular, Commissioner Bissett had ordered the reinstatement of a storeman (Mr Makin) who had been dismissed for deliberately breaching a Standard Operating Procedure, which had been put in place for work health and safety reasons. The Full Bench noted:
‘What is clear is that Mr Makin deliberately overrode the system and placed himself at risk of serious injury or death.’ 18
[27] In her decision at first instance, Commissioner Bissett found there had been a valid reason for the termination of Mr Makin’s employment, but that the dismissal had nonetheless been harsh, taking into account a number of factors.
[28] The appellant in Makin submitted that it was in the public interest to grant permission to appeal, because the appeal raised important issues arising out of the general importance of safety in the workplace and the need to ensure adherence to safety policies.
[29] The Full Bench reviewed the Commissioner’s decision and the conduct of the case before her and found that, while it would probably not have found the termination of Mr Makin’s employment to have been harsh, unjust or unreasonable given the seriousness with which it viewed his conduct, the Commissioner had not erred in the exercise of her discretion. It was not the Full Bench’s role to substitute its opinion for that of the Commissioner’s in the absence of such an error. The Full Bench then considered what considerations might attract the public interest. It noted that:
‘…The expression ‘in the public interest’, when used in statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
… [T]he 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...’ 19
[30] The Full Bench dismissed the application for permission to appeal on the grounds that it was not in the public interest to do so.
[31] The Full Bench in Lawrence found that it might be appropriate to grant permission to appeal in:
‘…a case where the outcome is so at odds with what the Full Bench considers a proper outcome that the epithet “manifest injustice” can properly applied. Such a conclusion will only be reached in rare cases.’ 20
[32] We do not consider that the Decision manifested an injustice or that it attracts the public interest.
[33] The Commission has already, on numerous occasions, indicated the seriousness with which it regards the obligations on both employers and employees relating to work health and safety. Indeed, the Commissioner said in the Decision:
‘…nothing in this decision is to be construed as involving anything having the effect or potential effect of undermining the respondent’s serious and commendable approach to workplace safety processes – being matters, in relation to which it lawfully, reasonably and responsibly expects collaboration and cooperation from its employees…’ 21
[34] However, taking work health and safety obligations seriously does not mean that every single time an employee breaches a procedure related to health and safety, it would always be fair to dismiss the employee in question. Nor does it mean that every appeal against a decision involving such a breach automatically attracts the public interest.
[35] In unfair dismissal cases, where the Commission has found that an employee has breached a procedure related to workplace health and safety, 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.
[36] That is precisely what the Commissioner has done in the Decision. She made a clear finding at [13] that Mr Hawkins’ conduct constituted a valid reason for his dismissal. However, she then went on to consider a range of mitigating factors that rendered the dismissal harsh, unjust or unreasonable. Perhaps the Decision could have been slightly better structured, but that is not an appealable error. We reject Boral’s submission that the Commissioner conflated the need to make a finding as to whether there was a valid reason with the overall task of determining whether the dismissal was harsh, unjust or unreasonable, in the manner criticised in Parmalat Food Products Pty Ltd v Tran. 22
[37] We are also satisfied that the Commissioner did not take into account any irrelevant considerations in her determination that the dismissal was unfair, in the manner alleged by Boral. While of course workplace health and safety procedures are designed to minimise the risk of harmful incidents, it is not irrelevant that in this case no actual harm occurred (though this is not a factor that we consider should usually attract much weight by itself). Moreover, it was reasonable for the Commissioner to distinguish Mr Hawkins’ conduct from that involving fraudulent misrepresentation of time and wage records, etc. Finally, comparisons with the treatment of other employees involved in the same incident can hardly be said to be irrelevant – even when their culpability might be considered to be substantially less.
[38] We do not consider that the Commissioner made a significant error of fact by finding that there was ‘some form of condonation’ by the yard team leader. We do doubt whether the term ‘condonation’ most accurately describes the action of the yard team leader in telling the standby person to ‘let it go’, given he also indicated that he would take the matter up with management at a later time. However, it remains true that the yard team leader and the standby person allowed Mr Hawkins to enter the confined space even though he had not signed his name – a factor which was well within the Commissioner’s discretion to take into account.
Conclusion
[39] We do not consider that the matters set out in the grounds of appeal raise an arguable case of error in the exercise of the Commissioner’s discretion. We also do not consider that the Decision was unreasonable, counterintuitive or manifested any injustice. We are not persuaded that the appeal raises issues of importance or general application. We do not consider the grant of permission to be in the public interest.
[40] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr A Moses SC with Ms V Bulut of counsel for Boral
Mr A Neilson, solicitor, with Mr A Sage for Mr Hawkins
Hearing details:
Sydney.
2018.
September 17.
Printed by authority of the Commonwealth Government Printer
<PR701594>
1 Hawkins v Boral Cement Ltd T/A Boral [2018] FWC 2746 (Hawkins).
2 PR607593.
3 Transcript of Proceedings dated 17 September 2018, PN2 - 4.
4 Ibid [13].
5 Ibid [13].
6 Ibid [14].
7 Ibid [15].
8 Ibid [16]-[17].
9 Ibid [19].
10 Ibid [29].
11 Ibid [30].
12 Ibid [34].
13 Wan v AIRC (2001) 116 FCR 481 [30].
14 (2000) 203 CLR 194 [21].
15 (2011) 192 FCR 78 [43].
16 (2010) 202 IR 388 [28].
17 (2010) 197 IR 266.
18 Ibid [9].
19 Ibid [26]-[27].
20 Lawrence (2010) 202 IR 388 [28].
21 Hawkins[2018] FWC 2746 [28].
22 [2016] FWCFB 1199.
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