DECISION

Fair Work Act 2009
s.604—Appeal of decision

Nyrstar Hobart Pty Ltd
v
Peter Brain
(C2018/1096)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT

SYDNEY, 7 JUNE 2018

Appeal against decision [2018] FWC 846 of Deputy President Barclay at Hobart on 8 February 2018 in matter number U2017/5484 – dismissal for safety breach – valid reason - opportunity to make submissions on sanction – decision rule adopted – error– appeal upheld.

[1] Nyrstar Hobart Pty Ltd (Nyrstar) has lodged an appeal, for which permission is required, against a Decision 1 issued by Deputy President Barclay on 8 February 2018, in which he determined that Mr Peter Brain had been unfairly dismissed.

[2] Mr Brain was employed as a plant operator at Nyrstar’s zinc smelter and production facility in Hobart. He was dismissed for having breached the company’s safety rules by removing a ‘Person in Control Tag’ and a ‘Live Testing Statement’ from the control panel of a zinc dust elevator, and then starting the equipment. Maintenance was being carried out on the equipment at the time. Mr Brain received a termination letter from the Company, stating that his actions were in breach of a critical safety procedure and had placed himself and others in a potentially life-threatening situation.

[3] Mr Brain claimed that his dismissal was unfair. He said that there was no valid reason for his dismissal, and that in any event his dismissal was harsh, unjust or unreasonable, having regard in particular to his 37 years of service.

[4] The Deputy President found that there was a valid reason for dismissal, as Mr Brain had committed a serious safety breach that potentially exposed a maintenance worker to the risk of injury. However, he concluded that the dismissal was harsh, and that the company should have afforded Mr Brain an opportunity to make submissions to it on the proposed sanction of dismissal.

Permission to appeal

[5] An appeal under s.604 of the Fair Work Act 2009 (Cth) (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.

[6] 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.’

[7] In Coal & Allied Mining Services Pty Ltd v Lawler and others the Federal Court…

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.

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Details

Case: [2018] FWCFB 3346
Decision Date: 7 JUNE 2018

CaseChat Overview and Summary

The case of Nyrstar Hobart Pty Ltd v Peter Brain involves an appeal against the decision of Deputy President Barclay from the Fair Work Commission, rendered on 8 February 2018 in Hobart. The dispute centres around the dismissal of Mr. Peter Brain, who was terminated by Nyrstar Hobart Pty Ltd for a safety breach. Mr. Brain contested the dismissal, arguing that he was not given a proper opportunity to make submissions regarding the sanction imposed on him. The Fair Work Commission had previously ruled that the dismissal was justified and did not constitute an error in law.

The legal issues before the court were whether the dismissal was for a valid reason, if Mr. Brain had an adequate opportunity to make submissions on the sanction, and if the decision-making process adhered to legal standards. The court was required to assess if the dismissal complied with procedural fairness and if the reasons provided were valid under the employment contract and relevant legislation. Additionally, the court needed to determine if there was a material error in the decision that warranted an appeal.

In considering these issues, the court found that there was indeed a procedural error in the original decision. It was determined that Mr. Brain was not afforded a proper opportunity to make submissions regarding the sanction, which is a critical element of procedural fairness. The court noted that the decision-making process did not adequately address this aspect, leading to a miscarriage of justice. As a result, the appeal was upheld, and the original decision was quashed. The case was remitted back to the Fair Work Commission for reconsideration in light of the identified error.

The final orders of the court were that the decision of the Fair Work Commission was quashed, and the matter was remitted back for reassessment. Mr. Brain's dismissal was not automatically reinstated, but the court directed that the original tribunal re-evaluate the dismissal, taking into account the procedural error identified. The re-evaluation was to be conducted with full adherence to the principles of procedural fairness, ensuring that Mr. Brain had an opportunity to make submissions on the sanction imposed.

Orders