Pece Calovski v Opal Packaging Australia Pty Ltd - [2024] FWC 68

[2024] FWC 68

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Pece Calovski
v

Opal Packaging Australia Pty Ltd

(U2023/10560)

COMMISSIONER MATHESON

SYDNEY, 11 JANUARY 2024

Application for an order pursuant to s.590(2)(a) requiring a person attend before the Fair Work Commission – application for an order pursuant to s.590(2)(c) requiring a person to provide copies of documents or records or provide any other information to the Fair Work Commission – application for unfair dismissal remedy

Mr Pece Calovski has applied to the Fair Work Commission (Commission) alleging that he has been unfairly dismissed and seeking a remedy. Opal Packaging Australia Pty Ltd (Respondent) is the respondent in the proceedings.

Order to attend

The Respondent has applied under s.590(2)(a) of the Fair Work Act 2009 (Cth) (Act) for an order requiring a person to attend before the Commission. The persons that the Respondent seeks the attendance of are Emma Afeaki and Corey Myers of SafeWork NSW.

In making its application the Respondent submitted, by way of summary:

The substantive matter involves the Applicant crashing a forklift in the Respondent’s factory.
The Applicant claimed the forklift’s brakes failed.
The Respondent did not accept the Applicant’s explanation and dismissed the Applicant on 19 October 2023.
The Respondent’s investigation involved:
a.an internal ICAM (Safety) investigation;
b.an inspection of the forklift’s brakes by the company that maintains forklifts on the site; and
c.an inspection and investigation by SafeWork NSW.
The Applicant calls into question the ‘independence’ of the SafeWork NSW report which the Respondent considered as a part of its investigation with the Applicant stating in his Form F2:
“In your letter dated 11^th October 2023 it states the following “based on the information available to the company, including the reports by Safework (sic) and Adaptalift, the company does not accept your explanation for the incident”. Firstly, Safework (sic) report is driven by the Adaptalift report, there is no evidence of Safework (sic) having an independent separate report to the Adaptalift (sic). If there is such separate report, this has not been provided to me. Secondly, its (sic) concerning that both Safework (sic) and Opal has (sic) relied on a post-incident inspection and subsequently a report from Adaptalift, which services and maintains the forklifts. The report is not independent, and therefore is deemed impartial (sic).”

Given the Applicant’s contentions as to the independence of the SafeWork NSW Report, the Respondent requires the SafeWork NSW inspectors who inspected the Company’s site and prepared the Report to provide evidence as to the independence or otherwise of the Report.
It expects that the nature of the evidence to be adduced from Ms Afeaki and Mr Myers will relate to the SafeWork NSW site inspection on 18 July 2023 and SafeWork NSW Report dated 26 July 2023.
The Applicant is alleging that his dismissal was unfair for reasons that include absence of a valid reason for dismissal.
Adducing evidence from Ms Afeaki and Mr Myers who inspected the Respondent’s site and prepared the SafeWork NSW…

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: [2024] FWC 68
Decision Date: 11 JANUARY 2024

CaseChat Overview and Summary

Pece Calovski has brought an application for unfair dismissal against Opal Packaging Australia Pty Ltd before Commissioner Matheson of the Fair Work Commission. Calovski alleges that his dismissal was unfair and seeks a remedy for the same. Opal Packaging Australia Pty Ltd is the respondent in the proceedings. Opal Packaging Australia Pty Ltd has applied for orders under sections 590(2)(a) and 590(2)(c) of the Fair Work Act 2009, requiring two SafeWork NSW inspectors, Emma Afeaki and Corey Myers, to attend before the Commission and produce documents relevant to the proceedings. The key issues before the court were whether the dismissal was fair and whether the proposed orders would assist in resolving the matter. The Commissioner was required to determine if the evidence of the SafeWork NSW inspectors would assist in resolving the matter and if the documents sought were relevant and necessary for the proper determination of the issues in the proceedings.

The Commissioner found that the evidence of Emma Afeaki and Corey Myers would assist in resolving the matter, as it related to the independence and reliability of the SafeWork NSW report, which was central to the dismissal. The Commissioner also found that the documents sought by Opal Packaging Australia Pty Ltd were relevant to the issues in the proceedings and necessary for the proper determination of the issues, particularly in relation to the question of remedy. The Commissioner issued orders for the inspectors to attend and for the production of certain documents, but narrowed the scope of the document production order to avoid unnecessary burden and potential fishing expeditions.

The Commissioner's decision was based on the relevance of the evidence and documents to the issues in the proceedings and the need to balance the interests of both parties in a fair and efficient resolution of the matter. The Commissioner's decision ensured that the proceedings would be informed by relevant evidence and documents, while also considering the practical implications for the parties involved.

Orders