Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2015] FWC 1080 and Order [PR561095] of Commissioner Stanton at Newcastle on 18 February 2015 in matter number U2014/256 - appealable error - public interest enlivened - permission to appeal granted.

[1] Mr Dennis Sipple (the Appellant) was dismissed from his employment with Coal & Allied Mining Services Pty Ltd trading as Mount Thorley Warkworth Operations (the Respondent) on 23 January 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] On 18 February 2015, Commissioner Stanton issued a decision (Decision) in relation to the Appellant’s application. 1 In the Decision, the Commissioner found that the Appellant’s dismissal was not harsh, unjust or unreasonable, and dismissed his application. The Appellant seeks permission to appeal the Decision and that is the matter before us.

[3] The Decision was made under Part 3-2 - Unfair Dismissal - of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Fair Work Commission (the Commission) considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). 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’. 2

[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 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.” 4

[5] 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 an appealable error. 5 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.6 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.

[6] In this matter, the Appellant was dismissed because he could not perform the inherent requirements of a Pit Service Operator in circumstances where he suffered from a personal injury. The Commissioner made a finding that in order to fulfil the role of Pit Service Operator, the Appellant was required to be a multi-skilled operator and operate a range of heavy equipment and his inability to do so was a valid reason for the dismissal. 7 As such, the Commissioner found that the dismissal was not harsh, unjust or unreasonable and ordered that the application be dismissed.8

[7] In his application for an unfair dismissal remedy, the Appellant claimed that the reason for his dismissal was not a valid reason because he could perform the role of a Service Cart Operator and had been doing so since 2003. He also claimed that there were a number of other matters relevant to the consideration of whether his dismissal was harsh, unjust or unreasonable.

[8] On appeal, the main ground advanced by the Appellant is that the Commissioner failed to consider these other relevant matters at paragraphs [85]-[87] of the Decision upon which the Appellant relied. The matters can be summarised as follows:

a. he is 57 years of age;

b. he had been employed by the respondent for 27 years;

c. he was fit to drive a service cart;

d. he had driven a service cart since 2003;

e. a service cart is always in operation at the mine;

f. the Respondent was responsible for the exacerbation of his personal injury;

g. his injury meant that he would find it difficult to find employment;

h. he had a low level of literacy; and

i. he had family commitments.

[9] The Appellant submitted that in the Decision, the Commissioner dealt with the matters in s.387 of the Act, but failed to take into consideration the matters raised in the Appellant’s submission. After dealing with the criteria in ss.387(a) to 387(g), the Commissioner made the following finding in respect of s.387(h) at paragraph [110] of the Decision:

“I do not consider that there are any other relevant matters to be taken into account. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a “fair go all round”.” 9

[10] The Appellant submitted that the Commissioner failed to properly apply s.387(h) because his Honour did not take into consideration the submissions canvassed at paragraphs [85]-[87] of the Decision. The Appellant relied on Linfox Australia Pty Ltd v Fair Work Commission 10, Fox v Australian Industrial Relations Commission11 and Soliman v University of Technology, Sydney12 in support of this submission on the basis that the cases stand for the proposition that a failure to address a submission which is significant or which is centrally relevant to a decision being made may constitute jurisdictional error.

[11] The Appellant further contended that the matters at paragraphs [85]-[87] of the Decision went to harshness of the dismissal and should have been considered, relying on Byrne v Australian Airlines Limited 13 in which it was found that a dismissal may be harsh in its consequences for the personal and economic situation of the employee. The Appellant submitted that the matters went to the unreasonableness of the Respondent refusing to continue to accommodate his injuries by returning to the practice of allocating him to the role of Service Cart Operator.

[12] Finally, the Appellant submitted that the Commissioner erred by failing to take into account those matters because to do so was unreasonable and plainly unjust. In summary, it was submitted that the failure to consider these matters gives rise to an appealable error of a fundamental nature.

[13] In his written submissions, the Appellant submitted that the appeal attracts the public interest because the errors identified:

a. raise the issue of the proper application of the legislative test in Part 3-2 of the Act;

b. raise issues of importance and general application going to the proper approach to be taken in applying s.387(h) of the Act;

c. show that his application was not validly determined in accordance with the Act; and

d. go to the proper exercise of the jurisdiction of the Commission.

[14] The Respondent did not file written submissions. However, counsel for the Respondent made oral submissions at the appeal hearing.

[15] In summary, the Respondent’s position was that permission to appeal should not be granted because the errors which the Appellant alleged were not committed and the matter does not attract the public interest.

[16] The Respondent submitted that on a proper reading of paragraph [110] of the Decision, the Commissioner considered the matters raised by the Appellant but determined that they were not relevant. The Respondent submitted that the Commissioner discharged his obligations under s.387(h) of the Act and properly exercised his discretion in finding the matters were not relevant and this finding was open to him on the evidence.

[17] The Respondent also submitted that, even if there was some failure to take into account the matters at paragraphs [85]-[87] of the Decision giving rise to an error, this alone would not be enough to grant permission to appeal, because the result would ultimately be the same. The Respondent submitted that there was no challenge to the reason for the Appellant’s dismissal, that is, his incapacity to perform the inherent requirements of the position. As such, the consequences of the failure to consider the additional matters would be marginal and ultimately would not weigh against the application being dismissed. 14

[18] We are of the view that the Commissioner did not properly consider the matters referred to at paragraphs [85]-[87] of the Decision. It is clear from the authorities that not every submission that is made has to be dealt with, but those which are centrally relevant to the consideration of whether a dismissal was unfair should be given adequate consideration. 15 We find that the matters at paragraphs [85]-[87] of the Decision were relevant to the consideration of whether the Appellant’s dismissal was harsh, unjust or unreasonable.

[19] We are not persuaded by the Respondent’s interpretation of paragraph [110] of the Decision. A reference to there not being any other relevant matters to be taken into account cannot be construed as being equivalent in meaning to a finding that specific matters raised in submissions have been considered and have been found not to be relevant. On its face, paragraph [110] of the Decision does not address or consider the submissions at paragraph [85]-[87] of the Decision

[20] We are satisfied that the Appellant has established an arguable case of error in relation to the Decision. We consider that in circumstances where such an error has been found, it raises issues of importance and general application going to the proper approach to be taken in applying s.387(h) of the Act. We are satisfied that it would be in the public interest to grant permission to appeal.

[21] For the reasons outlined above, permission to appeal is granted.

VICE PRESIDENT

Appearances:

Mr A Slevin of counsel for the Appellant.

Mr J Darams of counsel instructed by Mr A Dearden of Hall & Wilcox Lawyers for the Respondent.

Hearing details:

Sydney;

9 April 2015.

 1   [2015] FWC 1080.

 2   [2011] FCAFC 54 at [43].

 3   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 paragraph 69 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at paragraphs 44-46.

 4   [2010] FWAFB 5343 at [27].

 5   Wan v AIRC [2001] FCA 1803 at [30].

 6   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

 7   Dennis Sipple v Coal & Allied Services Pty Limited [2015] FWC 1080 at [100]-[104].

 8   Ibid at [111].

 9   Ibid at [110].

 10   [2013] FCAFC 157 at [47].

 11   [2007] FCAFC 150 at [37] and [40].

 12   [2012] FCAFC 146; (2012) 226 IR 214 at [55]-[57].

 13   (1995) 185 CLR 410 at 465.

 14   Counsel for the Respondent relied on several authorities in support of his submissions including Toms v Harbour City Ferries [2015] FCAFC 35 at [6], [22], [30], [77], [86], [96], [107]-[108] and Lawrence v Camberwell Coal Pty Ltd [2012] FWAFB 8800 at [18].

 15   Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 226 IR 214 at [55]-[57]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [47]; Fox v Australian Industrial Relations Commission [2007] FCAFC 150 at [37] and [40].

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