Appeal against decision [2024] FWC 1717 of Commissioner Matheson at Sydney on 28 June 2024 in matter number U2023/10560 - Application for an unfair dismissal remedy – Employee reinstated with backpay – Employee involved in forklift accident – Whether Commissioner erred in not being satisfied the employee was at fault – Whether finding made without evidence – Whether Commissioner required employer to disproved speculative theory Application of principle in Briginshaw v Briginshaw – Commissioner’s approach orthodox – Necessary for decision-maker to feel actual persuasion of the facts in issue – No arguable error in factual findings – Not in the public interest for the Full Bench to revisit detailed factual findings made at first instance – Permission to appeal refused.

Introduction and outcome

Pece Calovski is an experienced forklift operator. He has worked as a forklift operator for 25 years, most recently for Opal Packaging Australia Pty Ltd (Opal Packaging) performing work at its facility in Revesby in New South Wales.

On 27 June 2023, he was assigned to drive what is known as a grab forklift. The forklift has a loaded weight of over 11 tonnes. When he was maneuvering the forklift intending to park near a boiler, Mr Calovski said he applied the brake but it went all the way to the floor and had no resistance. Mr Calovksi was able to steer away from the boiler. However, the forklift collided with an orange and blue drum causing it to bend around a bollard. The forklift continued travelling forward through a pedestrian zone before colliding with other items of plant and equipment, including the gas feed line to the boiler. The forklift eventually made contact with a roller door and fire safety door and came to a stop.

Mr Calovski was subsequently dismissed as a result of the incident. The reasons given for his dismissal were that he failed to operate the grab forklift in a safe manner causing extensive damage and creating a safety incident that could have resulted in injury and loss of life and that he failed to accept any responsibility for the incident.

Mr Calovski applied to the Fair Work Commission (the Commission) under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was heard by Commissioner Matheson. In a decision issued on 28 Jun 2024, the Commissioner found that Mr Calovski’s dismissal was unfair and ordered that he be reinstated, that continuity of his employment be maintained and that an order be made with respect to remuneration lost as a result of the dismissal.[1] In short, the Commissioner was not satisfied that the incident occurred as a result of Mr Calovski operating the forklift in an unsafe manner so as to provide…

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 Opal Packaging Australia Pty Ltd v Pece Calovski

Details

AGLC: Opal Packaging Australia Pty Ltd v Pece Calovski [2025] FWCFB 16
Case: [2025] FWCFB 16
Decision Date: 30 JANUARY 2025

CaseChat Overview and Summary

The Fair Work Commission Full Bench has refused permission for Opal Packaging Australia Pty Ltd to appeal the decision of Commissioner Matheson. The appeal was against a decision that Mr Pece Calovski's dismissal was unfair and ordered his reinstatement with backpay. The Full Bench held that there was no arguable error in the Commissioner's determination of the matter. The Commissioner had found that the forklift incident could not be attributed to Mr Calovski's fault on the balance of probabilities and that Opal Packaging had not established that there was a valid reason for dismissal. The Full Bench found that the Commissioner's approach to determining whether there was a valid reason for dismissal was consistent with the principles in Briginshaw v Briginshaw and there was no arguable error in the Commissioner's determination. The Full Bench further found that it was not in the public interest to grant permission to appeal as the appeal did not raise any legal or factual issue of significance or general application.

Orders