Gelagotis v Esso Australia Pty Ltd

[2018] FWCFB 6092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 – Appeal of decisions

Mr Michael Gelagotis

v

Esso Australia Pty Ltd T/A Esso

(C2018/2775)

Mr Michael Hatwell

v

Esso Australia Pty Ltd T/A Esso

(C2018/2777)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER LEE MELBOURNE, 2 OCTOBER 2018

Appeal against decision [2018] FWC 2398 of Deputy President Colman at Melbourne on 14 May 2018 in matters U2017/11682 and U2017/11683 –

1. Background

[1] Mr Michael Gelagotis and Mr Michael Hatwell have applied for permission to appeal and have appealed against a decision by Deputy President Colman 1 (the Decision), in which the Deputy President found that they had not been unfairly dismissed from their employment with Esso Australia Pty Ltd.

[2] The applications were heard by the Deputy President over five consecutive days from 29 January 2018. The Decision was issued on 2 May 2018. In the Decision, the Deputy President determined that the Appellants’ dismissal was not harsh, unjust or unreasonable and their applications were dismissed.

[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The appeals were listed for hearing together, in respect of both permission to appeal and the merits of each appeal.

[4] The dismissal of the Appellants occurred in a particular industrial context. At first instance the Appellants had objected to certain evidence about the industrial context, in particular evidence about activities on the protest line outside Esso’s Longford site. The Deputy President rejected the objection and received the evidence, noting that (at [22]):

‘I have done so because I considered it to be relevant. Evidence of circumstances surrounding facts at issue can provide a basis for drawing logical inferences. However, I emphasise that the applicants were not said to have been involved in the protest line. I note also that the applicants elsewhere contended that the broader context was relevant to the question of harshness, and that the industrial disputation associated with UGL’s employment arrangements was dividing the workplace and had created tension.’ 3

[5] On appeal there is no challenge to the above ruling; nor is there any challenge to the Deputy President’s observations about the industrial context at [7]-[8] and [27]-[49] of the Decision. We summarise those observations below.

[6] In January 2017, Esso awarded a five year contract to MTCT Services Pty Ltd to undertake maintenance services at Longford. This entity is referred to in the evidence, and in the Decision, as UGL. Those employed by entities that contract to Esso, including UGL, are commonly referred to as ‘contractors’. UGL is a wholly owned subsidiary of another entity that, as part of a joint venture, had previously provided maintenance services at the Longford plant. The joint…