[2010] FWAFB 5343

Download Word Document

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

SENIOR DEPUTY PRESIDENT KAUFMAN DEPUTY PRESIDENT IVES COMMISSIONER SPENCER

MELBOURNE, 23 JULY 2010

Appeal against the decision - permission - whether in the public interest - unsafe work practice

[1] This appeal starkly raises the issue of when permission to appeal a decision made under Part 3 -2 - Unfair Dismissal of the Fair Work Act 2009 (the Act) may be granted. Section 400(1) of the Act provides that permission to appeal against a decision made under the part may not be granted unless Fair Work Australia considers that it is in the public interest to do so. As the Explanatory Memorandum noted, the effect of s.400 is to make the process for permitting appeals from unfair dismissal decisions different from the general grounds in s.604 in two respects. First by making it a prerequisite for granting permission to appeal that it is in the public interest to do so and, secondly, where permission is granted and the appeal is based on an error of fact, to the extent that it is so based, that it can only be made on the ground that the decision involved a significant error of fact. 1

[2] Section 400 of the Act reads:

Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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.

[3] Prior to the introduction of the Act the manner in which an appeal against an unfair dismissal decision proceeded was the same as with appeals from other decisions, but only on the grounds that the Australian Industrial Relations Commission was in error in deciding to make the order. 2 The conventional grounds for granting leave to appeal3 otherwise applied under the Workplace Relations Act 1996, being whether the decision was attended by sufficient doubt to warrant its reconsideration or whether substantial injustice would result if leave were refused. However, even absent the conventional grounds, if the Commission was of the opinion that the matter was of such importance that it was in the public interest that leave should be granted the Commission was required to grant leave. Alternatively, leave could be granted if error could be demonstrated.4

[4] It can be seen that a significant change to the granting of permission to appeal was wrought by the introduction of the Act.

[5] In this matter the focus is on whether it is in the public interest to grant permission to appeal the decision of Commissioner Bissett published on 29 March 2010. The Commissioner found that the termination of the employment of Colin Makin by GlaxoSmithKline Australia Pty Ltd (the company) had been unfair and ordered that Mr Makin be reinstated to the position in which he had been employed immediately prior to his dismissal. The company has lodged an appeal against that decision.

[6] The facts are largely uncontroversial. Mr Makin had been employed by the company as a storeman at its Boronia facility between 2 July 2001 and 16 October 2009 when his employment was terminated. The events leading to the dismissal are summarized by the Commissioner in the decision at first instance (with references omitted):

“[4] GSK is a global company involved in the research and development, production, marketing and distribution of pharmaceutical products. GSK’s headquarters and largest Australian manufacturing facility are located at Boronia in Victoria

[5] The high-rise warehouse at the site is used to store and distribute pharmaceutical products. Heavy machinery is used in the warehouse. The machinery includes automated high rise cranes and shuttles. The cranes and shuttles deliver goods to and from the high-rise warehouse to conveyors leading (relevantly) to the production supply area. The area in which the cranes and shuttles operate is a restricted area. There are access gates that employees use to gain entry to the high-rise warehouse when equipment breaks down or maintenance is required.

[6] On 3 October 2009, Mr Makin entered the high-rise warehouse to fix a fault caused by a pallet not sitting correctly on a shuttle. He did this initially by entering the area through the correct gateway. When he determined he could not fix the fault from there he then entered through the centre entry or air curtain.

[7] The entrance used is relevant to these proceedings – entry through the correct entry shuts down the shuttle. Entry through the centre entrance leaves the shuttle-car in an operational mode but it does not move.

[8] These events took place on 3 October 2009, 6 days before new instructions for entering the high-rise warehouse safely came into operation on 9 October. It is GSK’s contention that entry through the centre entrance was in breach of this new instruction - SOP10752-01 (the Standard Operating Procedure or SOP).

[9] It was this entry through the centre entrance and associated matters that led to the termination of Mr Makin’s employment following an investigation into the incident.

[10] Mr Makin does not dispute that he entered the high-rise warehouse through the centre entry nor that he failed to activate the E-stop button nor that he used cardboard to cover the sensors. Mr Makin claims however, that at the time of the incident, he believed that it was permissible to enter the high-rise warehouse in the way he did to fix the particular fault.

[11] Mr Makin’s termination took place after training and assessment on Standard Operating Procedure.”

[7] The high-rise warehouse is a very large facility that is recognized as one of the most dangerous areas within the manufacturing facility, being one of the few places in the facility where machinery can cause death. 5 It contains six fully automated cranes which each weigh tonnes, a shuttle car, pick-up and delivery stations and conveyors.6

[8] Entry to the warehouse is restricted and subject to compliance with procedures. It is not necessary, in these reasons, to detail those procedures. Suffice to say, that in order to realign a jammed pallet, Mr Makin entered the warehouse in a manner that he knew he should not have, and did so without waiting for other members of his team to return from a break, knowing that he was not permitted to enter alone. He placed a piece of cardboard over a sensor, so that his entry via that means would not be detected and automatically shut down the system. Because he believed that the only way to remedy the fault was to enter as he had, he made no secret of what he and done and logged the entry as an illegal entry. It appears that although Mr Makin deliberately overrode the automatic safety barriers to entry, he did so in circumstances where this means of access had been carried out in the past and in the apparent belief that it was acceptable for the purposes of clearing the jam. There is some dispute as to what extent personnel had been trained as regards safe entry, how clear the company’s operating procedures were at the time and to what extent employees had been warned about not entering in that way.

[9] What is clear is that Mr Makin deliberately overrode the system and placed himself at risk of serious injury or death.

[10] The Commissioner found that there had been a valid reason for the termination of Mr Makin’s employment but that it had been harsh taking into account:

• Mr Makin’s unblemished record.

• Practice in the high-rise warehouse by other staff.

• Period of time since training on the DP.

• The obligation apparently placed on Mr Makin to indicate if he required additional training.

• Apparent ignorance of the correct way to rectify the identified fault.

• Other incidents in the warehouse. 7

[11] In its outline of submissions the appellant submitted that it is in the public interest to grant permission to appeal because the appeal raises important issues concerning the need for Fair Work Australia, where an employee’s employment is terminated for breach of an employer’s safety policy, to have regard to:

• relevant training provided to the employer to the employee prior to the safety breach;

• the seriousness of the relevant conduct;

• the importance of safety policies and the undesirability of deliberate attempts by employees to circumvent them;

• the importance of the employee’s attitude to the relevant conduct;

• The potential consequences of the safety breach; and

• in respect of reinstatement, whether, by reason of the relevant conduct and the employee’s attitude to it, the employee would pose an unacceptable safety risk at the employer’s site.

[12] It was submitted that, given the general importance of safety in the workplace and the need to ensure adherence to safety policies it is in the public interest to ensure that decisions are made having regard to all relevant matters.

[13] The appellant then contended that the Commissioner failed to have regard to relevant matters, including:

• safety behavioural training provided to Mr Makin on 24 September 2009;

• that the relevant DP, as well as the standard operating procedure that replaced it, albeit that was just after the date of the dismissal, provided that, in the case of manual operation of cranes and shuttles, to access the high rise warehouse safely it was necessary for employees to be escorted and monitored;

• that Mr Makin’s use of cardboard to trick the sensors so that the machinery did not shut down, when he had been told that this was not to occur, was a very serious matter;

• that Mr Makin had not, when the appellant had raised the issue with him, acknowledged that his conduct was inappropriate: and

• the potentially serious consequences of Mr Makin’s conduct.

[14] Although the Commissioner did not specifically mention the training of 24 September 2009, she devoted a section comprising some 33 paragraphs to the issue of training. The particular training of 24 September 2009 was a session relating to the appellant’s “Living Safety Program”. The Commissioner referred to this program in her decision and noted that it “is a behavioural based program which ‘focuses on three levels - so (sic) employee, team leader and management level - and really talks about what’s expected in terms of a behavioural focus from employees in that area.’” 8 A copy of the slides from that program was attached to Mr Makin’s witness statement. Unsurprisingly, it is in general terms and contains such statements as “I will strictly follow rules and always use the right procedures and tools for the job.” “I will not ignore the potential consequences of not following a procedure.”

[15] The Commissioner found that the last time Mr Makin received training in the specific Departmental Procedure relating to entry to the high rise warehouse occurred in April 2007. We do not agree with the appellant that the Commissioner erred in concluding that “there is nothing in the DP that was applicable at the time of the incident to suggest Mr Makin breached procedures.” 9 The aspect with which the Commissioner was concerned at that point of her reasons was entry through the centre entrance, which was not a matter dealt with in the DP. The Commissioner did note that:

“Mr Makin entered the high-rise warehouse in the incorrect manner.” 10

And:

“Mr Makin did not enter the high-rise warehouse in accordance with the DP. Mr Makin failed to activate the E-stop button on the conveyors and used cardboard to cover the sensors to enter into the high-rise warehouse.” 11

And:

“Mr Makin chose to enter the high-rise warehouse incorrectly. He knew it was incorrect through his entry in the log book. He breached the procedure in the DP.” 12

It is apparent that the Commissioner had regard to the DP and appreciated that Mr Makin’s actions had been in breach of it.

[16] As to the inappropriateness of the use of the cardboard, the Commissioner referred to this in her finding that Mr Makin did not enter the high-rise warehouse in accordance with the DP. 13

[17] The Commissioner also made a finding that, albeit he thought that he was acting acceptably at the time, Mr Makin, at the hearing was aware that the SOP was to be followed at all times and had acknowledged that, if reinstated, he would adhere to all health and safety procedures. 14

[18] However, there appear to have been only two references to the seriousness of Mr Makin’s conduct. The first was in the context of dealing with the issue of proportionality in the context of whether other breaches of policy had resulted in termination of employment. She quoted from the transcript where the witness said that both incidents (Mr Makin’s and the other) could have resulted in fatality. 15 And “I am mindful of the seriousness of the actions of Mr Makin in entering the high-rise warehouse through the centre entrance. Had he not been dismissed there is no doubt he would have been disciplined in the workplace.” 16 That the Commissioner, albeit finding that the termination of Mr Makin’s employment was harsh, unjust or unreasonable, indicated that the appellant is entitled to treat him as though he is on a final warning, and declined to order that he be paid for the time between the dismissal and the Commissioner’s order for reinstatement makes it is difficult to accept the appellant’s submission that she failed to have regard to the seriousness of the relevant conduct.

[19] A balanced reading of the decision as a whole leads to the conclusion that, albeit the Commissioner was alive to the breach relating to occupational health and safety, 17 her approach to the matter was to deal with Mr Makin’s conduct as reflecting a serious breach of procedures, rather than behaviour that could have resulted in death or serious injury. She did not advert to the possibility of serious injury or death occurring as a result of Mr Makin’s actions, other than in the context of proportionality, or to the desirability, if not necessity, of sending a message to the workforce as a whole that conduct that endangers safety will not be tolerated. Although the Commissioner, when considering whether the dismissal was harsh, unjust or unreasonable referred to authorities dealing with the importance of policies going to occupational health and safety, she did not do so in the context of the potentially disastrous consequences of Mr Makin’s actions. The Commissioner noted “the importance of policies and particularly those that go to matters of occupational health and safety.”18 Quoting from other authorities she observed:

“OH&S must not be compromised. Employees must be protected and must follow appropriate, agreed and safe work practices ... and all persons both management and employees must continue to uphold safe work practices. To reverse that trend would be catastrophic.” 19

And:

“There is nothing more important than the safety of employees and the employee’s responsibility to look after themselves and to expand that responsibility to others.” 20

[20] The way in which the case was run on behalf of the appellant was largely that Mr Makin’s dismissal was a consequence of his failure to adhere to policies. Indeed, of the four reasons for the termination spelt out in his letter of termination, two referred to failure to abide by programs and procedures. The others were the failure to activate the E-stop button and the use of cardboard to cover the sensors. Perhaps that is why the Commissioner’s reasons focussed largely on the minutiae of the various policies and procedures.

[21] That, Mr Makin deliberately overrode the system so that he could “illegally” gain entry to the warehouse, that he acted highly inappropriately and placed himself at risk, that the appellant had a duty of care towards Mr Makin and to all of its employees to ensure that its systems were safe, all seemed to play a secondary role to the adherence to policies. However, that this was the emphasis of the case as well as the decision does not demonstrate that the Commissioner failed to have regard to relevant matters.

[22] The appellant submitted that, in light of the errors that it said have been identified, if permission to appeal is refused, substantial injustice would be occasioned because an employee who had committed a serious safety breach will have been reinstated to the workplace. We are unable to agree. It seems to us to be doubtful that here was any error in the way in which the Commissioner exercised her discretion. It is again useful to repeat the pertinent extract from House v R: 21

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[23] It is also useful to repeat the almost as well known extract from Norbis v Norbis that put a useful gloss on the principle in House: 22

“The sense in which the terms “discretion” and “principle” are used in these remarks needs some explanation. “Discretion” signifies a number of different legal concepts (see, for example, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), at pp.3-10). Here the order is discretionary because it depends on the application of a very general standard - what is “just and equitable” - which calls for an overall assessment in the light of the factors mentioned in s.79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”

[24] Although it is unlikely that we would have found that the termination of Mr Makin’s employment had been harsh, unjust or unreasonable given the seriousness with which we view his conduct, to have substituted our opinion for that of the Commissioner’s would have been to act contrary to the imprecation in Norbis. For the reasons we have outlined the Commissioner did not err in the exercise of her discretion. Even were the conventional considerations for the grant of leave open to us, we would not grant leave. The decision is not attended by sufficient doubt to warrant its reconsideration, nor would a substantial injustice result if leave is refused.

[25] Although this matter deals with issues of safety in the workplace and we agree with the thrust of the authorities to which the Commissioner referred as to the importance of not compromising safety in the workplace, the finding that Mr Makin’s dismissal, albeit for a valid reason, was harsh, unjust or unreasonable in the particular circumstances identified by the Commissioner, does not, in our view, detract from or diminish the seriousness with which safety breaches are viewed by Fair Work Australia. Nor does it provide any comfort to those who might think or act otherwise.

[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. 23

[27] Although 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, it seems to us that none of those elements is present in this case.

[28] We are unable to form the view that it is in the public interest that permission to appeal should be allowed. The application for permission to appeal is not granted and the appeal is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

T. Jacobs, of counsel, for the Appellant

J. Kirkwood, of counsel, for the Respondent

Hearing details:

MELBOURNE
2010
18 JUNE

 1   Fair Work Bill 2008, Explanatory Memorandum, at [1604]-[1605].

 2   Workplace Relations Act 1996, s.685

 3   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [26]

 4   S.170JF(2) of the pre-WorkChoices Workplace Relations Act 1996

 5   AB 327 214 at [10]

 6   AB 327 at [11]

 7   Colin Makin v GlaxoSmithKline Australia Pty Ltd [2010] FWA 2211, at [139]

 8   At [56]-[57]

 9   At [77]

 10   At [87]

 11   At [103]

 12   At [109]

 13   At [103]

 14   At [152] and [153]

 15   At[59]

 16   At [156]

 17   At[133] to [136]

 18   At [133]

 19   At [134], citing Van Stavel v Pauls Victoria PR939640, at [138], [140]-[141]