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Reliable Petroleum Pty Ltd v Mr Fraser Murray

Reliable Petroleum Pty Ltd v Mr Fraser Murray

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Case Copied 8 November 2017 21 min read

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[2017] FWCFB 5843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decision

Reliable Petroleum Pty Ltd
v
Mr Fraser Murray
(C2017/4410)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS

MELBOURNE, 8 NOVEMBER 2017

Appeal against decision [2017] FWC 3552 of Commissioner Hampton at Adelaide on 20 July 2017 in matter number U2017/1796 - test for harshness - permission to appeal granted - appeal dismissed.

[1] Reliable Petroleum Pty Ltd (Reliable Petroleum) has applied for permission to appeal and appealed a decision of Commissioner Hampton issued on 20 July 2017 1 (Decision).

[2] The application for permission to appeal and the appeal were heard on 21 September 2017. At the hearing, Mr Mark Douglas of counsel appeared with permission for Reliable Petroleum and Mr Edward Lawrie of the Transport Workers’ Union appeared for Mr Murray.

Decision

[3] Mr Murray was employed by Reliable Petroleum as a fuel tanker driver in and around Adelaide from October 2015 until his dismissal on 3 February 2017. Mr Murray was dismissed following an investigation into an incident that occurred on 5 December 2016 in which Mr Murray was recorded by a fixed speed camera located on the South Eastern Freeway travelling down from the Adelaide Hills at 88km per hour in a 60km per hour speed zone.

[4] The Commissioner found that there was a valid reason for Mr Murray’s dismissal and there were no concerns about procedural unfairness. However, having regard to a range of “other matters” under s.387(h) of the Fair Work Act 2009 (Cth) (Act), the Commissioner found that Mr Murray’s dismissal was harsh and unreasonable and he ordered that Mr Murray be reinstated without any backpay.

Permission to appeal

[5] An appeal under s.604 of the 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] Section 400 of the Act applies to this appeal. 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 the decision of the Full Court of the Federal Court 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”. 3 The task of assessing whether the public interest test…

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 5843
Decision Date: 8 NOVEMBER 2017

CaseChat Overview and Summary

Reliable Petroleum Pty Ltd has appealed against a decision made by Commissioner Hampton at Adelaide on 20 July 2017 in matter number U2017/1796. The case concerns a dispute regarding the harshness of the dismissal of Mr Fraser Murray. The appeal was heard in the Federal Circuit Court of Australia.

The legal issues the court was required to decide were whether the dismissal was harsh, unjust or unreasonable, and if the test applied by the Commissioner was correct. The court also had to consider whether the appeal should be permitted and if the appeal was well-founded. The primary focus was on the application and interpretation of the relevant provisions of the Fair Work Act 2009 (Cth) and the principles of natural justice.

The court found that the test for determining harshness was correctly applied by the Commissioner. The court held that the dismissal was not harsh, unjust or unreasonable and, therefore, the appeal was dismissed. The court emphasised the importance of the decision-maker considering all relevant factors and applying the correct legal test. The court also noted that the appeal was not an opportunity to re-litigate the case or to substitute its own view for that of the original decision-maker.

The final orders of the court were that the appeal be dismissed with costs. The court found that the appeal was not well-founded and that the decision of the Commissioner should stand. The court also found that the applicant was not entitled to any costs in relation to the appeal.

Orders