[2011] FWAFB 7794 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE |
|
Appeal against decision [2011] FWA 4214 of Commissioner Connor at Wollongong on 4 July 2011 in matter number U2010/15444.
[1] This decision arises from an application to appeal lodged by Holcim (Australia) Pty Ltd (Holcim) against a decision and order 1, of Commissioner Connor issued on 4 July 2011. Commissioner Connor ordered the reinstatement of Mr Serafini to the employment of Holcim in his former position of truck driver from 4 July 2011, with continuity of employment. No compensation was ordered. Before the hearing of the appeal a conditional stay of Commissioner Connor’s order was issued.
[2] The appeal was heard in Sydney on 29 September 2011. Mr Fernon of Senior Counsel appeared for Holcim and Mr Hatcher of Senior Counsel appeared for Mr Serafini. Both parties provided written submissions which they addressed at the hearing.
[3] The grounds of appeal are set out below:
“2 Grounds:
(a) The Commissioner erred in failing to make a finding as to whether there was a valid reason for the Respondent's dismissal.
(b) The Commissioner erred in failing to make a finding that the following reasons, either separately or in combination, constituted a valid reason for the Respondent's dismissal:
(i) the incident involving speeding and aggressive driving of a heavy vehicle by the Respondent at the Appellant's Albion Park Yard on 8 December 2010;
(ii) the Respondent's conduct in using his mobile telephone to film while driving a heavy vehicle on multiple occasions in breach of company policy and road safety legislation; and
(iii) the Respondent's conduct generally, including the Respondent's prior disciplinary record.
(c) The Commissioner erred in misapplying the civil standard of proof, being the test of balance of probabilities, in determining whether or not the Respondent was speeding on 8 December 2010.
(d) The Commissioner erred in failing to make a finding as to whether the Respondent was driving aggressively (as distinct from exceeding the speed limit) while driving the heavy vehicle on 8 December 2010.
(e) The Commissioner erred in failing to make a finding that the Respondent's responses both during the Appellant's investigation and his cross-examination in relation to the incident on 8 December 2010 and the use of his mobile telephone to film while driving demonstrated a lack of candour on his part.
(f) The Commissioner erred in failing to make a finding that the Respondent was an unsafe driver of heavy vehicles, particularly given the Respondent's misconduct in using his mobile telephone to film while driving and his failure to recognise that this conduct was dangerous.
(g) The Commissioner erred in arriving at conclusions that were not reasonably open to him with regard to the evidence that was before him, including erring in concluding that:
(i) the Respondent's repeated unsafe action in using his mobile telephone to film while driving was an 'aberration';
(ii) the Respondent has shown genuine remorse and contrition over his past conduct;
(iii) some of the Respondent's past difficulties with the Appellant's management may have, or in fact did, arise from his former role as a union delegate; and
(iv) the Respondent's driving record and prior employment history were satisfactory up to the time of his dismissal.
(h) The Commissioner erred in not finding that the Respondent's admitted misconduct in using his mobile telephone to film while driving, either separately or in conjunction with the incident on 8 December 2010 and the Respondent's prior disciplinary record, was so serious as to outweigh any and all other considerations in the Respondent's favour.
(i) The Commissioner erred in finding that reinstatement was an appropriate remedy.
3 Public interest in permitting the appeal:
(a) The finding of a valid reason is an essential consideration in any unfair dismissal case, and the decision of the Commissioner failed to address this mandatory step in the required reasoning process.
(b) In considering whether there is a valid reason for dismissal related to the employee's conduct (including its effect on the safety and welfare of other employees), it is contrary to the Fair Work Act 2009 (Cth) for the arbitrator not to make a clear finding about whether or not the conduct relied on by the employer occurred.
(c) Misapplying the test in relation to the standard of proof for determining whether the Respondent was speeding is a significant error of law and therefore should be rectified.
(d) The appeal raises important questions as to the enforcement of safe working practices in the transport industry and the employer's right to take disciplinary action against employees for:
(i) breaches of workplace safety; and
(ii) breaches of road safety legislation,
which place public safety at risk.
(e) It is in the public interest that Fair Work Australia confirm the right of an employer to dismiss employees who are guilty of a significant safety breach in relation to the driving of heavy vehicles and a repeated breach of road safety legislation, particularly as that breach is found by the Tribunal to constitute a serious matter.
(f) The appeal involves matters of principle and the overall reasonableness of the decision below.”
[4] The nature of an appeal from a decision issued pursuant to s.394 of the Fair Work Act 2009 (the Act) is a matter frequently considered by Full Benches of this Tribunal and was recently comprehensively discussed by the Full Bench in Parmalat Food Products Pty Ltd v Wililo 2 (Parmalat). For convenience we have set out the relevant discussion below:
“Nature of the Appeal
[3] An appeal under s604 of the Act in a matter of this nature is determined by reference to the provisions of s400 of the Act. Section 400 provides:
(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.”
[4] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin considered the impact of s400 on the approach to granting permission to appeal. It said:
“[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 by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[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.”
[5] The decision in this matter is properly viewed as a discretionary decision. The appeal is therefore to be considered in accordance with the principles of House v R. Those principles are expressed in that decision as follows [at 504-505]:
“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.”
[6] Section 400(2) modifies the House v R principles by limiting any review based on a mistake of fact to a significant error of fact. Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than in other matters under the Act.”
[5] In Parmalat the Full Bench dealt with the question of “the respective rights and obligations of employees and employers in relation to safety requirements at the workplace” as follows:
“[18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.
[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.” 3
(Our emphasis)
[6] We do not consider that the decision in Parmalat is authority for the proposition that leave to appeal is automatic when matters of workplace safety and statutory obligations regarding occupational safety arise for consideration, either at first instance, or on appeal. This includes those applications where the finding at first instance is that the breach of safety rules amounted to serious misconduct. These issues arise frequently in unfair dismissal applications before this Tribunal and the consideration of workplace safety and its regulation is commonplace. In any event we are not persuaded that the issue of workplace safety, as it was argued before Commissioner Connor or before us, would justify a grant of leave to appeal in all the circumstances of this case.
[7] Commissioner Connor considered the provisions of s.387 of the Act which he set out in full in his decision. 4 Immediately following the extract of that section he proceeded to deal with subsections 387(b), (c) and (d) and made relevant findings. Subsections (e) and (f) were not relevant to the issues before the Commissioner and as a consequence we consider that it was not necessary for the Commissioner to refer to those subsections.
[8] Holcim submitted that the Commissioner failed to make findings as to valid reasons pursuant to subsection 387(a). We have considered that submission. It is true that the Commissioner did not “say the words.” It is therefore necessary that we consider whether or not the Commissioner considered and made findings regarding all of the allegations of misconduct relied on by Holcim at the date of dismissal as well as those subsequently discovered and relied upon at the arbitration. If the Commissioner did not “say the words,” did he in any event consider the instances of alleged misconduct both separately and together and then decide whether or not the dismissal of Mr Serafini was harsh, unjust or unreasonable in all the circumstances?
[9] It is clear that Commissioner Connor understood that safety in the workplace is a significant matter. He dealt with the importance of safety in the work of a truck driver as follows:
“It is trite to say that it is in an employee’s own interests, and the interests of the employees with whom he works, to ensure that at all times he acts with safety at work [Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 784]. And that he drives at all times in a safe manner, following all speed limits imposed on his driving at workplaces [Rand Transport (1986) Pty Limited v. Geravasoni [2010] FWAFB 2526 at para.14].” 5
[10] We are satisfied that Commissioner Connor’s finding that Mr Serafini had had a satisfactory driving record prior to 8 December 2010 was open to him. There are only four traffic offences noted on Mr Serafini’s driving record. There is only one incident recorded during the course of Mr Serafini’s employment of nine years or so with Holcim, and that occurred in 2008 for driving at a speed less than 15 kilometres over the speed limit. The YouTube incidents occurred either in 2006 or 2007. Mr Serafini’s driving record must be viewed in context and as a whole and we consider that that was what Commissioner Connor did.
[11] Another issue of alleged misconduct going to Mr Serafini’s driving record was Mr Serafini’s past conduct in posting a number of You Tube entries demonstrating that he had in the past, in 2006 or 2007, taken photographs of roadside incidents on his mobile telephone. Arising from the manner in which the application was conducted before the Commissioner, there is a dispute between the parties as to whether the You Tube material was relied on at the hearing as a subsequently discovered valid reason for the termination of Mr Serafini’s conduct, or was simply as a challenge to the credit of Mr Serafini. We do not believe that this dispute has to be resolved because, in any event, we are satisfied that Commissioner Connor considered the material and made findings regarding it. The Commissioner referred to this allegation on a number of occasions:
“Also in evidence in this hearing is a disc containing videos of truck accidents which Mr Serafini placed on the YouTube website and on his own Facebook page entitled “Truck Pictures Old and New”. He had photographed those traffic accidents with his mobile telephone whilst he was driving a heavy vehicle. Not only was that clearly an unsafe act, it may have led to him being fined with a further driving offence. Mr Serafini clearly understood that he was doing the wrong thing in photographing the truck accidents as he drove. There were, naturally enough, ambulance officers, police officers, tow truck operators and other persons attending those accidents and yet Mr Serafini drove past in his heavy vehicle without reducing his speed to any noticeable degree. He is, in fact, observed in one of the videos lowering his mobile telephone when he observed a police officer at the scene of one of the truck accidents, clearly indicating that he knew he was wrong in what he was doing. Mr Noble in his evidence regarded this issue, which did not come to the attention of Holcim management until after Mr Serafini’s dismissal, as serious. So do I.
....
As Mr Moir submitted, Mr Serafini was not necessarily an “exemplary employee” as described of the dismissed employee in Lawrence v. Coal and Allied Mining Services Pty Limited; nor was Mr Serafini’s employment with Holcim and its predecessors (nine years) as long. But nor was his alleged misconduct as serious, in my opinion and there is still some doubts in my mind as to how fast Mr Serafini was actually travelling. I also believe there are a number of factors which I believe I should take into account in terms of s.387(h), viz:
(Our emphasis)
[12] The Commissioner found that this particular conduct was an aberration. It was submitted by Holcim that there was no material on which Commissioner Connor could base this finding. We disagree. The Commissioner considered the period over which these photographs were taken, the date of the entries, the absence of any subsequent incidents and the evidence of Mr Serafini. We are satisfied that the Commissioner found that this particular conduct amounted to misconduct and was a valid reason for the termination of Mr Serafini’s employment.
[13] The Commissioner made a finding 7 in relation to the allegation of speeding in the yard on 8 December 2010 which was one of the instances of misconduct that Holcim relied upon to terminate the employment of Mr Serafini. Holcim’s submission in relation to Commissioner Connor’s reference to Briginshaw v Briginshaw8 is a distraction. The Commissioner found that Mr Serafini was “probably exceeding the 20 kilometre speed limit.”9 That is all that was required. We are satisfied that this finding was a finding that Commissioner Connor was satisfied that there was more likely than not, arising out of this particular allegation, conduct which was misconduct which amounted to a valid reason for termination of Mr Serafini’s employment.
[14] The Commissioner dealt with the balance of the conduct alleged by Holcim against Mr Serafini arising from his conduct in the yard on 8 December 2010. 10 The Commissioner found that “Mr Serafini moved rapidly through the gears revving his engine excessively in the process, turning very sharply and skidding on the loose gravel of the yard.” He specifically found that “the rest,” from which we are satisfied that the Commissioner was referring to Mr Serafini’s alleged aggressive conduct, was “speculation.” The Commissioner does not find “the rest” of the conduct alleged against Mr Serafini established to his satisfaction. We are satisfied that this finding was a finding that Commissioner Connor was not satisfied that, arising out of this particular allegation, there was conduct of Mr Serafini which amounted to misconduct and which therefore could not be a valid reason for the termination of Mr Serafini’s employment.
[15] The Commissioner dealt with the question of the past attitude of Mr Serafini to management at Holcim and Mr Serafini’s past failure to deal properly with essential paperwork required for legislative and occupational health and safety purposes. 11 The Commissioner dealt with those matters at great length, perhaps at a greater length than was required. We are satisfied that these paragraphs amount to a finding by Commissioner Connor that there was, arising out of this particular allegation, conduct which was misconduct which amounted to a valid reason for the termination of Mr Serafini’s employment.
[16] We are satisfied that there was sufficient material on which Commissioner Connor could find that Mr Serafini showed genuine remorse, that his driving record, including a consideration of the discrete conduct displayed in the You Tube posting in 2006 or 2007, was satisfactory and that his prior conduct was explicable as flowing from his former short-term role as a TWU delegate.
[17] As to Mr Serafini’s veracity, Commissioner Connor heard the evidence. The cross-examination took place before him. If Commissioner Connor considered that any lack of forthrightness on the part of Mr Serafini was an issue to be resolved he was likely to have dealt with it. The Commissioner was not obliged to make findings about matters he did not find pertinent.
[18] A member of Fair Work Australia must take into account the provisions of s.387 of the Act when deciding an application pursuant to s.394. As previously identified Holcim alleges that Commissioner Connor failed to do this because he did not make explicit findings that there were valid reasons for the termination of Mr Serafini’s employment, arising either from his alleged misconduct at work on 8 December 2010, which Holcim identified and relied on for the termination of Mr Serafini’s employment for misconduct, or for the misconduct of Mr Serafini which Holcim identified subsequent to the termination of his employment.
[19] Mr Hatcher took us to the oft quoted passages from Minister for Immigration and Ethnic Affairs v Wu Shan Liang, which approach we have adopted in our consideration of Commissioner Connor’s reasons for decision, although the task of Full Benches when considering the prescriptive formula in s.387 of the Act would be easier if the member’s findings at first instance were made explicit against each subsection:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.” 12
and,
“--- The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” 13
[20] Having considered the Commissioner’s reasons for decision we are satisfied that, although he did not actually say the words “valid reason,” he dealt with the evidence regarding Holcim’s reasons for the termination of Mr Serafini’s employment in a comprehensive manner and made sufficient findings regarding all of those matters that he was required to take into account pursuant to s.387, including ss.387(a) and (f). Commissioner Connor dealt with Mr Serafini’s past warnings, his attitude to management, his attitude to paperwork, the alleged speeding, the alleged aggressive conduct in the yard and Mr Serafini’s past conduct in relation to the You Tube entry. He also considered the relationship between the parties at great length.
[21] The Commissioner found matters of conduct which were valid reasons for termination of employment. We are satisfied that it was open to him to find that termination of employment in the circumstances of this application was harsh, unjust or unreasonable.
[22] There is no basis for Holcim’s submissions that Commissioner Connor failed to consider any lack of honesty in Mr Serafini’s evidence nor is there any basis on which to attack Commissioner Connor’s finding that Mr Serafini was remorseful. Commissioner Connor considered Mr Serafini’s evidence. He found no lack of honesty and he did find remorse. The absence of one finding and the presence of the other finding both arise from Commissioner Connor’s consideration of Mr Serafini’s evidence.
[23] It is now necessary to consider Holcim’s ground of appeal that the remedy of reinstatement was disproportionate to the severity of the breaches of safety alleged against Mr Serafini.
[24] When a termination of employment has been found to be harsh, unjust or unreasonable, remedy must be considered. Section 390(3) requires that Fair Work Australia determine whether reinstatement is appropriate before considering any other remedy. It is not until reinstatement has been found to be inappropriate that compensation is to be considered.
[25] We understand Commissioner Connor to have considered remedy in his decision from paragraph 51 onwards. Commissioner Connor considered Mr Serafini’s record of employment, Mr Fernon’s submissions regarding Mr Serafini’s past conduct and his further submission that Mr Serafini’s record should be distinguished from that of the applicant in Lawrence v Coal and Allied Mining Services Pty Ltd. 14
[26] Commissioner Connor considered Mr Serafini’s length of employment, the reasons for his past difficulties, his driving record, the misconduct, the subject of the proceedings before him, and his assessment of Mr Serafini’s present attitude and remorse gleaned from his observations of Mr Serafini whilst giving evidence. Whilst Holcim disagree with Commissioner Connor’s conclusion that reinstatement was appropriate, we are satisfied that it was a conclusion available to Commissioner Connor on the evidence and we are not persuaded that there is any reason to interfere with that exercise of discretion.
[27] The Commissioner took all appropriate matters into account, weighed them and made his findings. There was material on which all of those findings could be properly made. We are satisfied that there was no significant error of fact in the decision of Commissioner Connor or any issue which attracts the public interest. We refuse permission to appeal. We order that the conditional stay on the order of Commissioner Connor be lifted.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Fernon of senior counsel for Holcim (Australia) Pty Ltd
Mr Hatcher of senior counsel for Mr Serafini
Hearing details:
2011
Sydney
September 29
3 [2011] FWAFB 1166, paragraphs 18-19.
4 PR511138 4 July 2011 at paragraph 40.
5 PR511138 4 July 2011 at paragraph 42.
6 PR511138 4 July 2011 at paragraphs 7, 53.
7 PR511138 4 July 2011 at paragraph 42.
8 (1938) 60 CLR 336
9 PR511138 4 July 2011 at paragraph 42.
10 PR511138 4 July 2011 at paragraph 44, 53.
11 PR511138 4 July 2011 at paragraphs 45-49, 53.
12 (1996) 185 CLR 259 at 291 per Kirby J.
13 (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
14 [2010] FWAFB 10089; (2011) FCAFC 54.
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