Trevor Godfrey v Coal and Allied Mining Services Pty Limited t/a Mount Thorley Operations/Warkworth Mining

[2015] FWCFB 5286

[2015] FWCFB 5286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Trevor Godfrey
v
Coal and Allied Mining Services Pty Limited t/a Mount Thorley Operations/Warkworth Mining
(C2015/4744)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BISSETT

SYDNEY, 15 SEPTEMBER 2015

Permission to appeal sought against decision [2015] FWC 4193 of Commissioner Stanton at Newcastle on 22 June 2015 in matter number U2013/3482.

[1] Mr Trevor Godfrey has applied for permission to appeal and appealed a decision 1 issued by Commissioner Stanton on 22 June 2015 (Decision). In that Decision the Commissioner dismissed an unfair dismissal remedy application lodged by Mr Godfrey pursuant to s.394 of the Fair Work Act 2009 (FW Act) on the basis that the dismissal was not harsh, unjust and unreasonable.

[2] Mr Godfrey’s employment was terminated because he intentionally ran over a windrow that visibly contained rocks and that, when discussing the incident with his supervisor, he engaged in inappropriate conduct whereby he spoke loudly, confrontationally, without respect and said “ah fuck you” to the supervisor.

[3] In determining if Mr Godfrey had been unfairly dismissed the Commissioner considered each of the requirements of s.387 to decide if the dismissal was harsh, unjust and unreasonable. In considering if there was a valid reason for the dismissal the Commissioner found:

“[188] The circumstances related to the windrow incident that gave rise to the applicant’s dismissal were very serious and could have given rise to tyre failure with serious consequences for the immediate safety of employees and equipment. The applicant admitted during the investigation that he had crossed the windrow as alleged and in fact has crossed a grader rill windrow many times before the incident that led to his dismissal.

[189] The applicant first could not recall being told there was a prohibition on driving over a windrow. His evidence in cross-examination was that he had attended presentations where operators were told not to drive over the windrow without seeking permission from the supervisor or grader operator. Also in cross-examination, both the applicant and Mr Daniel accepted that rock penetration damage was a major threat to tyre performance and the respondent reminded operators about tyre safety at pre-start meetings, presentations and themed reminders around the workplace.

[190] Having considered the evidence in its totality I am satisfied that the conduct relied upon by the respondent to dismiss the applicant did occur, that is, on 29 September 2013, the applicant drove over a windrow in breach of the respondent’s policies and procedures and contrary to the training he had received. I also find that on 29 September 2013 during the course of a meeting with Mr Griffis, that applicant used inappropriate language to communicate his frustration or displeasure with the allegation that he had driven over a windrow contrary to his training and in breach of the respondents’ policies and procedures.

[191] Accordingly, I find that there was a valid reason for the termination of the applicant’s employment. The allegations have been proven to the requisite standard. The applicant’s dismissal was for reasons explained in a letter of termination dated 16 October 2013. At that time, the applicant understood the respondent was relying on those reasons to support his dismissal.”

[4] In considering the process undertaken and the opportunity for Mr Godfrey to respond to the reason for dismissal the Commissioner found:

“[195] The investigation was conducted by the respondent’s supervisors. The allegations were relatively straightforward as the show cause letter and his letter of termination variously state. There was no doubt in my mind that prior to the show cause response meeting on 10 October 2013, he knew perfectly well the respondent’s allegations against him. There was no complaint at the time by his Union representatives representing and assisting him in the meeting with the respondent on 8 or 10 October 2013 that he was not being afforded procedural fairness.

[196] On balance, the respondent conducted a two-stage investigation into the allegations. In doing so, the only persons the applicant has identified post his dismissal that were not interviewed at the time of the investigation were largely other operators who he contended crossed the windrow regularly. However, on the evidence of the applicant and Mr Daniel, those operators had also been afforded the relevant training concerning the respondent’s polices dealing with tyre safety and maintenance. In conclusion, I am satisfied the applicant was given a proper opportunity to respond to the allegations against him.”

[5] The Commissioner concluded:

“[204] The applicant was afforded procedural fairness throughout the investigation into the allegations conducted by the respondent. The outcome of the investigation identified a clear and valid reason for the termination of his employment. As a consequence the applicant’s dismissal was not harsh, unjust or unreasonable. On the material before the Commission, I have determined there is no basis to find this was a disproportionate penalty. The application is dismissed.”

[6] In his notice of appeal Mr Godfrey identified a number of errors in the findings of the Commissioner that go to whether there was a valid reason for his dismissal. In particular he says that the Commissioner failed to properly consider the location of various trucks, the times they were driven and where they were driven. In addition he says that the Commissioner failed to consider the unsafe procedures used to gather photographic evidence of his alleged conduct and failed to take into account some evidence given during the proceedings.

[7] Mr Godfrey did not appear at the hearing of his application for permission to appeal. His application must therefore be determined on the basis of the material in his application.

Consideration

[8] An appeal under s.604 of the FW 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.

[9] This appeal is one to which s.400 of the FW 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.

[10] In the Federal Court Full Court decision 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 as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 5

[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7

[12] We are not satisfied that Mr Godfrey demonstrated any error on the part of the Commissioner in determining that his unfair dismissal remedy application be dismissed. As mentioned above, Mr Godfrey failed to appear at the hearing of his application. There was, therefore, no further explanation of the errors he says attend the Commissioner’s decision and hence why it might be in the public interest to grant permission to him to appeal.

[13] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest, and therefore in accordance with s.400(1) permission to appeal must be refused.

VICE PRESIDENT

Appearances:

A. Dearden solicitor and G. Rock for Coal and Allied Mining Services Pty Limited t/a Mount Thorley Operations/Warkworth Mining.

Hearing details:

2015.

Melbourne:

26 August.

 1  [2015] FWC 4193

 2   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 3   (2011) 192 FCR 78 at [43]

 4   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

 5  [2010] FWAFB 5343 at [27], 197 IR 266

 6   Wan v AIRC (2001) 116 FCR 481 at [30]

 7   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

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