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Pearse v Viva Energy Refining Pty Ltd

Pearse v Viva Energy Refining Pty Ltd

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[2017] FWCFB 4701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Andrew Pearse
v
Viva Energy Refining Pty Ltd
(C2017/4409)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS

MELBOURNE, 20 SEPTEMBER 2017

Appeal against decision [[2017] FWC 3817] of Deputy President Anderson at Melbourne on 20 July 2017 in matter number U2017/194; no arguable case of error; public interest not enlivened; permission to appeal refused.

Introduction and background

[1] Mr Andrew Pearse has applied for permission to appeal and appealed a decision of Deputy President Anderson issued on 20 July 2017 1 (Decision). The Deputy President dismissed Mr Pearse’s application for unfair dismissal.

[2] Mr Pearse was employed by Viva Energy Refining Pty Ltd (Viva Energy) in its oil refining facilities in Geelong. Mr Pearse worked in the Geelong refinery for almost 27 years prior to his dismissal on 21 February 2017. Mr Pearse was, at the time of his dismissal, the President of the four-member AWU Executive at the Geelong refinery.

[3] Mr Pearse was dismissed for sending an email to approximately 170 operators whilst working night shift on 25 November 2016. Viva Energy contended that Mr Pearse’s conduct in sending the email constituted a breach of its policies and Mr Pearse’s duties as an employee under the Viva Energy Refining Enterprise Agreement 2014.

[4] Mr Pearse wrote the email “with a dose of anger” and used it to criticise unidentified employees “for helping the company with their proposed de-manning” by undertaking advanced fire training. Mr Pearse concluded the email by stating that he was “more than happy to discuss this with the ‘identified’ operators, if only I knew who they were”.

The Decision

[5] There was no dispute that Mr Pearse sent the email on 25 November 2016. The Deputy President found that Viva Energy had a valid reason for dismissing Mr Pearse as a result of his conduct in sending the email and thereby breaching his obligations under Viva Energy’s policies. The Deputy President made the following specific findings in relation to Mr Pearse’s conduct in sending the email:

“[80] I find that the email was intended to negatively portray the employees who had attended the advanced fire training and to disrespect their lawful decision to do so. Nor did the email show respect for persons who may have contemplated undertaking the training in the future. It expressly insulted the attendees in derogatory terms by saying that they ‘could be seen as naïve, deluded, stupid of selfish.’ This was not just an expression of opinion by Mr Pearse. It was a form of words designed to encourage other operators to hold a similar view. As such, I find it was a breach of Viva Energy values and policies requiring employees to foster respect for people and contribute to a respectful workplace environment. It also contravened policies requiring employees to refrain from distributing offensive or derogatory material…”

[6] The Deputy President addressed the necessary factors in s.387(a) to (h) of the Fair Work…

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: [2017] FWCFB 4701
Decision Date: 20 SEPTEMBER 2017

CaseChat Overview and Summary

The appellant, Pearse, brought an appeal against the decision of the respondent, Viva Energy Refining Pty Ltd, as rendered by Deputy President Anderson in the Fair Work Commission on 20 July 2017. The underlying matter was an unfair dismissal claim brought by Pearse against Viva Energy Refining Pty Ltd. The central issue in the appeal was whether the primary decision contained an error of law warranting the grant of special leave to appeal, or whether the public interest demanded such leave be granted.

The court was tasked with determining if there was an arguable case of error in the decision of the Deputy President. The appeal focused on the interpretation and application of the Fair Work Act 2009 and the principles of unfair dismissal. Pearse argued that the Deputy President misapplied certain legal principles and that the outcome was unjust. The court carefully examined the arguments presented by both parties, considering the evidence and submissions in light of the applicable legal standards.

After thorough consideration, the court found that there was no arguable case of legal error in the primary decision. The court held that the Deputy President correctly applied the law and reached a just outcome. The court also found that the public interest did not necessitate the grant of special leave to appeal. Consequently, the appeal was dismissed, and permission to appeal was refused.

Orders