Christopher Squires v Opal Packaging Australia Pty Ltd
[2021] FWCFB 3106
•1 JUNE 2021
| [2021] FWCFB 3106 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Christopher Squires
v
Opal Packaging Australia Pty Ltd
(C2021/1647)
VICE PRESIDENT HATCHER | SYDNEY, 1 JUNE 2021 |
Appeal against decision [2021] FWC 1143 of Deputy President Binet at Perth on 3 March 2021 in matter C2020/10680.
Introduction
[1] Mr Christopher Squires (appellant) has lodged an appeal, for which permission to appeal is required, against a decision made by Deputy President Binet on 3 March 2021 1 (decision) in which she dismissed an application made by the appellant pursuant to s 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he was unfairly dismissed by Opal Packaging Australia Pty Ltd (respondent).
Background
[2] The following matters of background may be discerned from the Deputy President’s decision, which noted that Mr Squires gave evidence in his own case, and evidence was provided for the respondent from Mr Mark Goddard – Second in Charge of the Corrugator Machine, Mr Trevor Herdsman – Corrugator Operator, Mr Steve Fay – Grab Driver, Ms Elena Rorie – Human Resource Manager WA/SA, and Mr Simon Hickmott – Site Manager.
[3] The respondent operates a factory in Bibra Lake, Western Australia, producing fibre packaging. The appellant commenced employment with the respondent on 1 May 2020, as part of a transfer of business in accordance with s 311 of the FW Act. The appellant’s service with his previous employer, Orora Packaging Australia Pty Ltd (Orora), was recognised with a start date of 28 July 1993. 2
[4] The appellant was at the time of termination 62 years old, and had been driving forklifts and reel-grabs for most of his working life. A reel-grab is akin to a forklift and is used to move large reels of paper approximately 1750mm high and weighing around 1,900kgs. 3
[5] At the time the appellant commenced employment with the respondent on 1 May 2020, he had an open workers’ compensation claim in relation to a work-related injury which occurred during his employment with Orora. The appellant commenced a return-to-work program on 3 February 2020, which allowed him to drive a reel-grab three days per week. The appellant’s first day back driving the reel-grab was on 4 June 2020. 4
[6] At the time he commenced employment with the respondent, the appellant also had on file a first and final warning dated 18 September 2019 which was issued during his employment with Orora. This warning was issued in respect of a serious safety incident that involved him loading three reels of paper on a reel-grab, with one reel falling off and subsequently hitting the cage of the reel-grab. 5 It was common between the parties that it is a safety rule at the respondent’s site that a reel-grab may only be used to move one reel of paper at any one time, and that moving more than one reel of paper at any one time poses a serious safety risk that could potentially endanger the lives of workers at the site. The appellant was most recently trained in that rule on 3 June 2020.6
[7] On Thursday 25 June 2020, the incident which led to the respondent dismissing the appellant for misconduct occurred (Incident). It was alleged that the appellant moved two reels of paper with a reel-grab at the one time. The Incident was allegedly witnessed by Mr Goddard, Mr Herdsman and Mr Fay, who all worked with the appellant in the same part of the site and had worked with him for 20, 17 and 25 years respectively. 7
[8] Mr Fay said that he first saw the Incident, and that he pointed it out to Mr Goddard, who then alerted Mr Herdsman. Mr Fay said that at the time he was standing near the Corrugator Machine and had an unobstructed view of the appellant. Mr Goddard agreed that Mr Fay alerted him to the Incident. Mr Goddard said that, standing in his position outside of the “50E machine” adjacent to the Corrugator, he had a clear view to the Reel Store and observed the appellant moving two reels at once. Mr Herdsman agreed that Mr Goddard alerted him to the Incident and that he also observed the appellant moving two reels at once. 8
[9] On or before Monday 29 June 2020, Mr Goddard reported the Incident to management, and it was then referred to Mr Hickmott and Ms Rorie. At the start of his shift on Wednesday 1 July 2020, the appellant was called to a meeting with Mr Hickmott and informed of the allegation arising from the Incident. The appellant was stood down from driving duties pending an investigation into the Incident. Later that day the appellant was told that three witnesses had seen him moving two reels of paper at once with the reel-grab. 9
[10] The appellant claimed he spoke with Mr Herdsman who admitted that he was one of the three witnesses. The appellant insisted that Mr Herdsman told him that he (Mr Herdsman) wanted to retract his statement, but he could not because he would be letting his best mate down. Mr Herdsman denied that claim by the appellant, and stated that when the appellant raised the Incident with him, he told the appellant he had provided a statement that he stood by. 10
[11] The respondent obtained witness statements from Mr Goddard, Mr Henderson and Mr Fay. Those statements were brief, and Mr Hickmott decided to meet with each of those witnesses separately and have them demonstrate where they were standing at the time the Incident occurred. Mr Hickmott said that the version of events provided by each witness was consistent in terms of the type of paper being moved, the location of the area in which the witness was situated and the location of the area in which the Incident occurred. Mr Hickmott stood in the locations that each witness claimed to have been at the time of the Incident and satisfied himself that each witness had the visibility they alleged. 11
[12] On 21 July 2020, the respondent issued the appellant with a Show Cause Letter, and invited him to attend a meeting on 24 July 2020, which was subsequently rescheduled, and occurred on 27 July 2020. On 29 July 2020, the respondent issued the appellant with a letter giving written notice of the termination of his employment on the grounds that the investigation had found that he had committed the alleged misconduct. The respondent made a payment of five weeks’ pay in lieu of notice to the appellant. 12
The decision
[13] The case advanced by the appellant at first instance was, in summary, that he did not carry two reels of paper on his reel-grab in the Incident as alleged and, accordingly, that he did not commit the misconduct which caused his dismissal and that there was no valid reason for his dismissal. The appellant conceded that if he had committed the alleged misconduct, there would be a valid reason for his dismissal.
[14] In forming her conclusion that there was a valid reason for the dismissal for the purpose of s 387(a) of the FW Act, the Deputy President was required to assess the evidence before her. The Deputy President found:
“[79] Based on the evidence before me, I accept that it was possible for the witnesses (Mr Goddard, Mr Henderson and Mr Fay) to have observed Mr Squires in the location they say the incident occurred.
[80] The evidence of Mr Fay, Mr Goddard and Mr Herdsman was consistent in terms of the sequence in which they observed the alleged incident. Their evidence is that it was Mr Fay who first observed Mr Squires moving the two reels, who indicated to Mr Goddard to look in the direction of the bay, Mr Goddard then observed the same thing and he indicated to Mr Herdsman who, in turn, observed Mr Squires moving two reels.
[81] Mr Squires says that the incident was concocted because Mr Goddard in cross examination gave evidence that the witnesses were all wearing earplugs. The other witnesses were not expressly examined or cross-examined on this point. While it may support Mr Squires assertion that the incident did not occur, it may be that they did not all have earplugs, that they did and removed them to speak, that they could still hear with the earplugs in or that they communicated by gesture rather than words.
[82] The evidence is unclear as to precisely what time the incident occurred on 25 March 2020. Mr Squires says that a lack of precision as to timing indicates that the incident was concocted. The witness statements which were initially gathered during the investigation were relatively brief and did not capture that level of detail. The defence that Mr Squires raised during the course of the investigation into the allegations primarily centred around the question of whether the witnesses had visibility of the alleged event. Opal therefore focused its investigation on establishing in some detail, where each person was standing and what they could see from their location. This included inviting Mr Squires’ union representative to take photos and provide plans. Given the delay between the events occurring and the Hearing, the lack of precision as to an issue not ventilated at the time of the investigation is not entirely unsurprising. In fact, the lack of consistency might suggest that the witnesses did not ‘rehearse’ or script their allegations, as is alleged by Mr Squires.
[83] The witnesses concede that they did not interrupt Mr Squires when they say that they observed him moving the two reels at once, even though they were aware it was unsafe. Failing to report the incident may well be in breach of their own occupational health and safety duties, but does not of itself prove that the incident did or did not occur.
…
[89] Mr Squires alleges that Mr Goddard fabricated the incident in order to have Mr Squires dismissed so that Mr Goddard could take over Reel-Grab driving duties. However, the evidence is that the business employs more than one employee capable of driving the Reel-Grab. Therefore it was not necessary for Mr Squires to leave the business in order for Mr Goddard to have the opportunity to drive the Reel-Grab. The assertion that Mr Goddard would fabricate evidence to have Mr Squires dismissed is inconsistent with the evidence that Mr Goddard defended Mr Squires in relation to the incident in which Mr Squires received his final written warning.
[90] I accept Mr Herdsman’s evidence that he did not tell Mr Squires that he hadn’t intended to make a statement or that he wanted to retract his statement. Mr Herdsman provided consistent evidence during the investigation, in his witness statement and in his oral evidence at Hearing. There is nothing which might suggest that this evidence was given reluctantly on any of these occasions and certainly that did not appear to be the case at Hearing.
[91] It is always difficult as a decision maker to determine what in fact occurred in ‘she said’ ‘he said’ situations. Mr Fay, Mr Goddard and Mr Herdsman, consistent with their oath, appeared to give honest evidence to the best of their recollections. There are some inconsistencies in the detail of their evidence, however, the key elements of their evidence are consistent and the differences explainable by the imperfect nature of the human memory. Relevantly, there is no compelling evidence of either collusion or fabrication or of ill will, material gain or some other motivation for the witnesses to collude or to fabricate evidence.”
(Footnotes omitted)
[15] The Deputy President gave specific consideration to each of the other matters required to be taken into account under s 387, and formed the conclusion that the appellant’s dismissal was not harsh, unjust or unreasonable.
Appeal grounds and submissions
[16] The appellant advanced nine grounds of appeal. They were:
1. The Learned Deputy President erred in law when she found that the conduct alleged against the appellant, namely that he had carried 2 rolls of paper on the roll-grab he was driving on the 25th June 2020, as such a finding was contrary to and against the weight of the evidence.
2. The Learned Deputy President erred in law when she failed to direct herself as to the evidentiary onus carried by the employer to establish that the alleged misconduct by the appellant had actually occurred.
3. The Learned Deputy President erred in law when she reversed the onus of proof requiring the appellant to prove that the misconduct did not occur.
4. The Learned Deputy President erred in law when she failed to apply the appropriate legal principles to the evidence of Simon Hickmott regarding the re-enactment he carried out.
5. The Learned Deputy President erred in law when she found the three eye witnesses to be reliable and honest without any reference to the inconsistencies in their evidence.
6. The Learned Deputy President made a significant error of fact when she found that Shaun Anderson's evidence was that even after receiving the final written warning the appellant had persisted at moving more than one reel at a time.
7. The Learned Deputy President made a significant error of fact when she found that the inability of the employer to establish the period of the day when the incident occurred might suggest that the witnesses did not rehearse or concoct their evidence.
8. The Learned Deputy President made a significant error of fact in finding that it was most likely that Mark Goddard made the report of the Incident on the 26th June 2020.
9. The Learned Deputy President erred in law and made a significant error of fact in her finding regarding the use of earplugs by the three eyewitnesses for the employer.
Consideration
[17] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 13 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 relevantly provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
. . .
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
. . .
[18] This appeal is one to which s 400 of the FW 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.
[19] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 14Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.15 The public interest is not satisfied simply by the identification of error,16 or a preference for a different result.17 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 18
[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. 19 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.20
[21] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 21 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[22] We do not consider that it would be in the public interest to grant permission to appeal in this case, for two reasons. First, the appeal grounds are lacking in sufficient merit to attract the public interest.
[23] We turn now to the specific appeal grounds. In respect of the first and fifth grounds of appeal, we consider that the Deputy President was entitled to accept the evidence of Mr Goddard, Mr Henderson and Mr Fay, and further that she was correct to do so. The Deputy President clearly considered all the evidence before her and, having the benefit of seeing and hearing the witnesses give their evidence in its entirety, preferred the evidence of Mr Goddard, Mr Henderson and Mr Fay, which she characterised as honest evidence given to the best of their recollections. 22 On our own perusal of the record of the proceedings, we can identify no credible basis for the rejection of their evidence.
[24] The sixth, seventh, eighth and ninth appeal grounds all concern specific factors that were advanced at first instance as bases for the rejection of the respondent’s evidence. Each factor was correctly rejected at first instance, and we further observe:
(a) Mr Anderson was not a witness at the hearing, and the assertion from Mr Anderson was only recorded in a file note attached to Ms Rorie’s statement. While the Deputy President observed that Mr Goddard and Mr Fay also reported such conduct, she noted it as being an “allegation” 23 that had not been progressed with the appellant. It is clear from the decision that little or no weight was given to this evidence;
(b) There was no failure by the actual witnesses to the Incident to establish the period of the day when the Incident occurred. That Ms Rorie may have been unsure as to timing did not detract from the evidence of those eyewitnesses to the Incident;
(c) The Deputy President made no error in determining that the report of the Incident occurred on 26 June 2020. The Deputy President identified the evidence that supported her conclusion, 24 and noted that it accorded with the evidence of Mr Goddard; and
(d) As the Deputy President correctly noted in the decision, only Mr Goddard gave evidence regarding the use of earplugs, and other witnesses were not expressly examined or cross-examined on the use of earplugs. The Deputy President thereafter made no findings of fact regarding the use of earplugs, and merely outlined a number of scenarios that “may” have occurred. 25
[25] In relation to the second and third grounds of appeal, we do not consider that the Deputy President disregarded that the respondent bore the evidentiary onus of proving the appellant’s misconduct. That onus was amply satisfied by the witnesses and evidence called by the respondent, including the three eyewitnesses to the Incident who were accepted as giving honest evidence. That evidence proved the misconduct on the balance of probabilities as satisfaction of that standard applies to such allegations of misconduct, and the mere absence of specific reference to Briginshaw 26 does not indicate that it was not considered and applied.
[26] Finally, the fourth ground of appeal is rejected because no re-enactment occurred. Mr Hickmott simply, in the course of his investigation, met with Mr Fay, Mr Goddard and Mr Herdsman separately and had them demonstrate where they were standing at the time of the Incident. Mr Hickmott stood in the locations that each witness claimed to have been at the time of the Incident and satisfied himself that the witness would have had the visibility they alleged they had. There was no error in Mr Hickmott so informing himself in the course of his investigation. In any event, what Mr Hickmott did to satisfy himself that the misconduct occurred is irrelevant. The Deputy President formed her own state of satisfaction that the misconduct alleged against the appellant had occurred based on the evidence before her.
[27] In our view, the grounds of appeal are not sufficiently arguable to justify the grant of permission to appeal. No injustice would ensue to the appellant if permission to appeal is not granted because no arguable case of appealable error is disclosed in the decision.
[28] Second, we do not consider that the decision raises any issue of importance or general application that would enliven the public interest. It concerned the dismissal of an employee who was found by the Deputy President to have engaged in an act of misconduct. The case turned on its own facts. There is no diversity of decisions at first instance in relation to the issues raised on appeal, so that guidance from a Full Bench is required. We do not consider that the result of the decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
Conclusion
[29] In all of the circumstances, we are not persuaded that it would be in the public interest to grant permission to appeal. Accordingly, as required by s 400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr P Mullally on behalf of the appellant.
Mr R French of counsel on behalf of the respondent.
Hearing details:
2021.
Sydney and Perth (via video-link).
18 May.
Printed by authority of the Commonwealth Government Printer
<PR730296>
1 [2021] FWC 1143
2 Ibid at [15]-[16]
3 Ibid at [18]
4 Ibid at [19]
5 Ibid at [20]
6 Ibid at [21]
7 Ibid at [22]- [23]
8 Ibid at [24]-[26]
9 Ibid at [27]-[30]
10 Ibid at [30]-[32]
11 Ibid at [34]
12 Ibid at [35]-[39]
13 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
14 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
15 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
16 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
17 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial reviewin Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
18 [2010] FWAFB 5343, 197 IR 266 at [27]
19 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
20 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
21 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
22 [2021] FWC 1143 at [91]
23 Ibid at [93]
24 Ibid at [87]
25 Ibid at [81]
26 Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336
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