Appeal against decision [2022] FWC 1138 of Commissioner McKinnon at Sydney on 12 May 2022 in matter number SO2022/155 – permission to appeal refused.

Introduction

Mr Jeffrey Piefke (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision of Commissioner McKinnon issued on 12 May 2022 in matter number SO2022/155 (the Decision)[1]. The Decision dealt with an application made by Mr Piefke on 29 March 2022 under s.789FC for orders to stop bullying or sexual harassment against various employees of his former employer Rio Tinto Aluminium Limited (Rio Tinto).

The matter was listed for permission to appeal only. Directions were issued on 16 June 2022 for the filing of submissions and material and the matter was listed for hearing on 5 July 2022. While failing to file submissions in accordance with the directions, the Appellant did however forward a large volume of emails and accompanying material to the Commission in advance of the hearing which was supplemented by oral submissions by the Appellant at the hearing.

Background

The background to the appeal may be briefly stated as follows. Mr Piefke commenced employment with Rio Tinto in 2005 and, at the time of his cessation of employment with Rio Tinto on 31 January 2019, was engaged as a Tug Engineer. At the time of his cessation of employment, Rio Tinto made a decision that the Appellant would not be permitted to perform work on any Rio Tinto site in the future due to safety related conduct the Appellant was alleged to have engaged in prior to the cessation of his employment with Rio Tinto. We understand that this is in dispute.

Following his cessation of employment with Rio Tinto, the Appellant has unsuccessfully attempted to return to work on Rio Tinto operational sites within Australia through employment with contractors to Rio Tinto. Aggrieved at his treatment and being prevented from returning to work on Rio Tinto sites, the Appellant has made several unsuccessful applications to the Commission and to the Federal Court as follows;

·     On 29 June 2020, the Appellant filed an unfair dismissal application against Workpac Pty Ltd (UD2020/8869).
·      On 26 October 2022, Commissioner Williams issued a decision[2] in which he dismissed the unfair dismissal application (U2020/8869) pursuant to ss.399A and 587 of the Act.
·     On 6 November 2020, the Appellant filed an unlawful termination application in the Federal Circuit Court of Australia against Workpac Pty Ltd (PEG 337 of 2020).
·     On 31 May 2021, Lucev J of the Federal Circuit Court issued a decision[3] in which he dismissed the Appellants unlawful termination application for want of jurisdiction.
·     On 1 January 2022, the Appellant filed an unfair dismissal application (U2022/255) against Rio Tinto…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeffrey Lyndon Piefke v Rio Tinto Aluminium Limited and Othe...

Details

AGLC: Jeffrey Lyndon Piefke v Rio Tinto Aluminum Limited [2022] FWCFB 140
Case: [2022] FWCFB 140
Decision Date: 28 JULY 2022

CaseChat Overview and Summary

Jeffrey Lyndon Piefke (Appellant) sought an appeal against a decision of the Fair Work Commission (Commission) made by Commissioner McKinnon on 12 May 2022, in which the Commissioner dismissed an application by the Appellant for orders to stop bullying or sexual harassment against various employees of his former employer, Rio Tinto Aluminium Limited (Respondent). The appeal was lodged under section 604 of the Fair Work Act 2009 (Cth) (Act) and required permission from the Commission. The appeal was heard by Deputy President Masson, Commissioner Hampton, and Commissioner Wilson on 5 July 2022.

The appeal raised issues concerning whether the Commissioner erred in dismissing the Appellant's application for orders to stop bullying or sexual harassment. The Appellant claimed that the Commissioner failed to consider the vessel-related safety matters he raised during his employment with Rio Tinto, failed to take into account the sexual harassment he was subjected to at work, and did not have regard to Rio Tinto's conduct in continuing to prevent him from obtaining work on a Rio Tinto site.

The Full Bench found that the Commissioner did not err in dismissing the Appellant's application. The Commissioner correctly determined that there was no foreseeable risk that the Appellant would continue to be bullied or sexually harassed while at work in the business of Rio Tinto. The Appellant was no longer employed by Rio Tinto and had no reasonable prospect of working for them in the future. Therefore, one of the essential prerequisites for making an order to stop bullying or sexual harassment was not present. The Full Bench also found that the appeal did not attract the public interest, as there was no diversity of decisions at first instance, nor did the appeal raise issues of importance or general application.

As a result of the Full Bench's decision, permission to appeal was refused. The decision of the Commissioner was upheld, and the appeal was dismissed.

Orders