Mr Walter Troiano v BlueScope Steel (AIS) Pty Ltd
[2018] FWCFB 2323
•24 APRIL 2018
| [2018] FWCFB 2323 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Walter Troiano
v
BlueScope Steel (AIS) Pty Ltd
(C2018/1147)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 APRIL 2018 |
Appeal against decision [2018] FWC 439 of Commissioner Riordan at Sydney on 8 February 2018 in matter number U2017/7729 - no public interest – permission to appeal refused.
[1] On 8 February 2018, Commissioner Riordan issued a Decision 1 in which he dismissed Mr Walter Troiano’s (Appellant) unfair dismissal application. The Commissioner found that BlueScope Steel (Respondent) had a valid reason under s.387(a) of the Fair Work Act 2009 (Cth) (Act) to summarily dismiss the Appellant.
[2] On 1 March 2018, the Appellant lodged an appeal against that Decision. Pursuant to r.56(2)(a) of the Fair Work Commission Rules 2013 (Cth), the appeal was lodged 1 day outside of the prescribed 21-day period. Accordingly, the matter was listed for an extension of time and permission to appeal hearing.
[3] In the hearing, on 4 April 2018, Mr Troiano appeared on his own behalf, and Mr Martin Aicken and Ms Rhea Zaulich, HR Advisors, appeared for the Respondent. As the Respondent did not contest the extension of time issue, we have decided to allow the extension of time in order for permission to appeal to be heard. 2
[4] For the reasons set out below, we have decided to refuse permission to appeal. We are not satisfied that the Appellant has raised any matters before the Commission which enliven the public interest under s.400(1) of the Act.
Decision at first instance
[5] The Appellant was employed as a Level 5 Operator (Gas Regulator) in the Respondent’s Coke Plant at Port Kembla, and was summarily dismissed for “inappropriate and socially unacceptable behaviour” and for “unacceptable timekeeping”. 3
[6] The Commissioner did not make an adverse finding against the Appellant in respect of the first reason for dismissal, and therefore, a detailed examination of the Commissioner’s reasons for that finding will not be necessary for the purposes of determining permission to appeal in this case.
[7] However, in respect of the second reason for dismissal, the Commissioner found that the Respondent did have a valid reason for terminating the Appellant’s employment. Relevantly, the Commissioner found at paragraph [33] of his Decision that the Appellant failed to follow the Respondent’s directives in relation to leaving work early. The Commissioner found that the Appellant had adopted a “carefree attitude” towards timekeeping and his obligations to notify the designated people of his whereabouts. In the Commissioner’s view this was a serious safety issue, which placed other employees at risk if an emergency evacuation occurred.
[8] Furthermore, at paragraph [34] of his Decision, the Commissioner found that the Appellant, on a “regular or systematic basis”, left work early to attend to personal matters which were not urgent in nature or in fact work related. It was apparent to the Commissioner that when the Appellant was working in the restricted space beneath the battery areas, that is, in the Gallery, he either left during the day or before the completion of his 12 hour shift. On some days he did both. There was not one single occurrence in which the Commissioner was able to find that the Appellant had, as he described, “ducked out” for “5 or 10 minutes”. All but 2 of his absences were for lengthy periods of time.
[9] In making those findings, the Commissioner relied upon the following evidence:
“[9] Ms Collins’ review of Mr Troiano’s gate logs between 1 January 2017 and 7 June 2017 identified a pattern of attendance that raised serious concerns. In summary, Mr Troiano worked 45 shifts during this period. 13 of those shifts were in Regulating. There were no issues in relation to Mr Troiano’s time keeping whilst performing this work on the basis of the work pattern and procedures adopted by the Regulators i.e. the Regulators are required to remain at work until they are relieved by the next shift. There was incomplete data on another 8 shifts that were worked.
[10] The other 24 shifts were worked by Mr Troiano in the Gallery. On 6 occasions, Mr Troiano worked more than his allocated 12 hours at an average of an extra 29 minutes. There were 17 occasions when Mr Troiano was on shift for less than his allocated 12 hours at an average absence of 1 hour and 52 minutes. Of these 17 shifts, Mr Troiano left mid shift and returned on 6 occasions. Mr Troiano’s absence averaged 1 hour and 16 minutes on these mid shift absences. A further analysis of the 17 shifts shows that Mr Troiano was absent for less than 30 minutes on 3 occasions, absent between 31 minutes and 1 hour on 4 occasions, absent between 1 hour and 6 hours on 8 occasions and absent greater than 6 hours on 2 occasions. Whilst disputing some of the timeframes, Mr Troiano claims that he had been given permission to leave site on each occasion or that he had notified the relevant or appropriate BlueScope personnel when he was leaving the site. BlueScope claims that Mr Troiano only had approval to leave the Steelworks for 3 of these occasions and that the remainder were all unauthorised absences.
…
[28] I have undertaken a detailed review of Annexure 1 of Ex B1, which is Mr Troiano’s timesheets for 1 January 2017 – 7 June 2017. Whilst the material is not 100% complete, it clearly shows a trend that Mr Troiano would basically either leave the Steelworks mid shift or leave early whenever he was not working as a Regulator. For example, on 10 July 2017, Mr Troiano entered at 4:30am, left at 8:26am, returned at 9:05am and left at 3:30pm - some 2 hours before his shift was due to finish. The next day, Mr Troiano entered at 4:53am, left at 8:17am, returned at 9:01am and left at 3:25am – approximately 1 ½ hours before his shift concluded. On 28 January 2017, Mr Troiano entered at 5:57am and left at 12:49 pm. The next day, Mr Troiano entered at 4:26am and left at 10:15am. On 2 February 2017, Mr Troiano entered at 3:58pm, left at 7:32am, re-entered at 11:11am and left at 4:03pm. The next day, Mr Troiano entered at 3:58am, left at 8:41am, re-entered at 10:00am and left at 2:26pm. On 11 April, Mr Troiano entered at 5:02am, left at 7:23am, re-entered at 11:32am and left again at11:44am.” (Emphasis added).
[10] In addition, the Commissioner also noted that the Appellant did not advance specific explanations for the absences above, and that authorisation had only been obtained on 3 occasions for mid-shift absences. No approval had been given to the Appellant for leaving prior to the end of his scheduled shifts. 4
[11] Further, the Commissioner had regard to the Appellant’s evidence concerning the protocols for leaving the workplace, as well as the Appellant’s level of seniority as a self-supervised employee. 5
[12] Having considered those matters, the Commissioner concluded that:
“[50]... For a senior and experienced wages employee, [the Appellant’s] timekeeping was appalling. [The Appellant] deliberately and systematically left the Steelworks, without authorisation on the overwhelming majority of occasions, to conduct his own personal affairs.
[51] Not only is such behaviour fraudulent, but it creates serious safety issues for [the Appellant’s] work colleagues who were unaware of his non-attendance. In a hazardous work location like the Coke Plant, I find [the Appellant’s] actions in deliberately contravening the “Leaving Work Early Policy” falls within the boundaries of serious misconduct.
[52] I am satisfied that [the Appellant’s] summary dismissal was an appropriate and proportionate penalty for his conduct. Mr Troiano’s termination was not harsh, unjust or unreasonable.”
The Appeal
[13] At the heart of the appeal is whether the Commissioner, in finding that the Appellant’s conduct with respect to his systematic absence from work and carefree attitude to timekeeping was a valid reason for dismissal correctly applied s.387(a) of the Act.
[14] The Appellant submitted that his termination had been “constructed” by his manager, Ms Victoria Collins, who had carried out an investigation against him after he allegedly raised concerns about being bullied and victimised by two other Level 2 managers.
[15] The Appellant contended that the gate logs which were used as a “time keeping tool”, did not “give a true indication of who is on the [p]lant”. The log does not take into account “passengers in vehicles, vehicles when the gate is open, vehicles that have [been] let in by the gate controller”. Furthermore, the Appellant contended that “the gate logs only give [an] indication of vehicle entry and exit” if a proximity card is used, and that he “remembers” on numerous occasions, that he had been “granted entry or exit using the gate controller”. The Appellant stated that he had a “habit of leaving [his] proximity cards [in his] work vehicle”, and that these occasions were not logged. The Appellant submitted that the Commissioner’s reliance upon the gate logs therefore amounted to jurisdictional error.
[16] A further ground of appeal related to the Appellant’s submission that the Commissioner had committed jurisdictional error in finding that he had been absent from the workplace for over 6 hours. He stated that the Commissioner did not take into account his evidence, which explained that he had “left the plant for a short period of time and returned to work and was given access to [enter] the plant by BlueScope access control”.
[17] The Appellant also contended that over the course of his employment, he had kept a good safety record, had no “warning for pure timekeeping” or complaints of him not being on the plant. He submitted that as a result of a restructure in 2000, the Respondent had taken a more flexible approach to working hours. As such, the Appellant contended that on 18 occasions during the same period in question, he had left late but this was not taken into account.
[18] Finally, the Appellant asserted that the Regulator in the control room was “always” informed of his whereabouts in case of an emergency. The Appellant submitted that the Commissioner had failed to make that finding, and therefore this amounted to jurisdictional error.
Permission to appeal
[19] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is an error on the part of the primary decision maker. 6 There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act states:
“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.”
[20] Section 400 of the Act provides as follows:
“(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.”
[21] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.8 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the 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.” 9
[22] 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. 10 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.11
Consideration - Permission to Appeal
[23] In considering whether this appeal attracts the public interest, we note that the Appellant has not pointed to any particular matters that he contends would enliven the public interest, such as to warrant permission to appeal. We have considered the matters raised by the Appellant above 12 and cannot identify any such considerations. In particular, we are not satisfied that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[24] It appears to us that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of such an application. The correct legal principles appear to have been applied and no arguable case of significant error of fact is evident. As set out at paragraphs [7]-[12] of this decision, the Commissioner had reasonable grounds to find that the Appellant’s systematic absence from work and carefree attitude to timekeeping was a valid reason for dismissal under s.387(a) of the Act. He made a finding that the conduct alleged against the Appellant had occurred. As such, we are not satisfied that there is an arguable case of error in relation to any aspect of the Decision, for the purposes of permission to appeal.
[25] In the hearing, the Appellant sought to convince the Commission of the merit of his claim, as he did before Commissioner Riordan. We note that a hearing as to whether permission to appeal should be granted is not the place simply to re-agitate matters that have been considered at first instance, absent any arguable error on the part of the decision-maker below.
Conclusion
[26] We are not persuaded that the Appellant has put anything before the Commission that could be said to enliven the public interest.
[27] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act. The application for permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr W. Troiano, on his own behalf.
Mr M. Aicken and Ms R. Zaulich, appeared for the Respondent.
Hearing details:
2018.
Melbourne:
April 4.
Printed by authority of the Commonwealth Government Printer
<PR602231>
1 [2018] FWC 439.
2 Fair Work Commission Rules 2013 (Cth), r.56(2)(c).
3 Decision at [2].
4 Decision at [29]-[30].
5 Decision at [31]-[32].
6 Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
7 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
8 O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at [27], [(2010) 197 IR 266].
10 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28].
12 See paragraph [14]-[18] of this decision.
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