[2013] FWCFB 8053
The attached document replaces the document previously issued with the above code on 21
October 2013.
Due to a clerical error the date of issue indicated on the decision was incorrect.
Christian Taylor
Relief Associate to DEPUTY PRESIDENT SMITH
21 October 2013
1
Fair Work Act 2009
s.604—Appeal of decisions
Mr Robert Van Den Enden
v
Bechtel Construction (Australia) Pty Ltd
(C2013/5596)
Bechtel Construction (Australia) Pty Ltd
v
Mr Robert Van Den Enden
(C2013/5932)
DEPUTY PRESIDENT SMITH
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER BULL MELBOURNE, 21 OCTOBER 2013
Appeal against decision [[2013] FWC 4377] of Senior Deputy President Richards at
Brisbane on 26 July 2013 in matter number U2013/688—cross appeal—treatment of
misconduct.
Introduction
[1] These are appeals for which permission is required.1 The appeals are against a decision
[[2013] FWC 4377] of Senior Deputy President Richards in which he considered an
application by Mr R Van Den Enden for relief in relation to what he alleged was his unfair
dismissal by Bechtel Construction (Australia) Pty Ltd (Bechtel). The Senior Deputy President
determined that Mr Van Den Enden had been dismissed harshly, unjustly or unreasonably and
made an order [PR539459] for compensation in lieu of reinstatement of an amount equivalent
to six weeks of his usual earnings. The amount was to be paid within 22 calendar days of the
date of the order.
[2] Mr Van Den Enden’s appeal [C2013/5596] challenges the decision of the Senior
Deputy President not to reinstate him in his employment and, in the alternative, the level of
compensation awarded. Bechtel’s appeal [C2013/5932] (the cross appeal) challenges the
decision of the Senior Deputy President as to the level of compensation awarded, arguing that
it was excessive given the failure of Mr Van Den Enden to take reasonable steps to mitigate
the loss suffered because of the dismissal [see s.392(2)(d)].
1 Fair Work Act s.604(1).
[2013] FWCFB 8053
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 8053
2
[3] At the commencement of the proceedings in Brisbane the Full Bench:
granted permission for the parties to be represented by counsel;
granted an extension of time to lodge the cross appeal; and,
granted permission for Mr Van Den Enden to amend his grounds of appeal.
Background
[4] Mr Van Den Enden was employed by Bechtel as a rigger from 28 February 2012 until
21 February 2013 when he was summarily dismissed from his employment for serious
misconduct. The matter was heard by Senior Deputy President Richards on 17, 18 and
19 July 2013 and the Senior Deputy President delivered judgment on 26 July 2013.
[5] The basis of his termination of employment is contained in a letter dated
4 March 2013. It is said that Mr Van Den Enden’s employment was terminated for
unauthorised absence and serious misconduct. The unauthorised absence was said to have
occurred on 19 February 2013 and the serious misconduct occurred on 21 February 2013. The
serious misconduct was identified as Mr Van Den Enden attending work for a pre-start
meeting against an instruction for him to remain at home on stand down as well as abusing his
supervisor and questioning his abilities in front of the entire work crew. These matters
together with some other matters were, in combination, used by Bechtel to summarily dismiss
Mr Van Den Enden.
[6] Importantly, the Senior Deputy President found that the attendance at the pre-start
meeting was not a matter of serious misconduct as Mr Van Den Enden may have “misheard
or not fully processed Ms Steen’s direction to him not to return to work until she so
indicated”.2 The Senior Deputy President went on to conclude:
“Indeed, it is also reasonable that the Applicant may have assumed the period of stand
down to have been for the single day only, given the stand down related to an
emotional or agitated state of mind and not some more chronic or sustained issue.
This is even more so the case given that the direction given by Ms Steen was not
placed in writing, at the same time or shortly thereafter.”3
[7] Given these conclusions the Senior Deputy President was not prepared to make an
adverse finding against Mr Van Den Enden that he disobeyed an instruction to remain at
home and not attend for work.
[8] The Senior Deputy President reviewed the other examples relating to the conduct of
Mr Van Den Enden and concluded that: “But these are matters, in my view (even when taken
together) were not at a sufficient extreme, when put in their appropriate contexts, to warrant
the dismissal of the Applicant. At least at this particular juncture.”4
2 [2013] FWC 4377 at paragraph 132.
3 Ibid.
4 Ibid at paragraph 136.
[2013] FWCFB 8053
3
[9] Against this background, the Senior Deputy President concluded that there was no
valid reason for the dismissal of the Applicant5 and that he was harshly, unjustly or
unreasonably dismissed.6
Appeal principles
[10] An appeal under s.604 of the Fair Work Act 2009 (the Act) involves a proceeding by
way of rehearing with the powers of the Full Bench being exercisable only if there is error on
the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian
Industrial Relations Commission. The majority of the High Court in that case explained in the
following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has
some latitude as to the decision to be made, the correctness of the decision can only be
challenged by showing error in the decision-making process (See Norbis v Norbis
(1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it
is only if there is error in that process that a discretionary decision can be set aside by
an appellate tribunal. The errors that might be made in the decision-making process
were identified, in relation to judicial discretions, in House v The King in these terms:
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 (55 CLR 499 at 505).”
[11] Although s.604(2) requires the Fair Work Commission (the Commission) to grant
permission to appeal if it is satisfied that it is in the public interest to do so, there is a note
following the subsection to the effect that this does not apply in relation to an application for
an appeal from an unfair dismissal decision (see s.400). The effect of s.400 of the Act is that
the general approach to dealing with appeals is varied in two significant ways in relation to
appeals from unfair dismissal decisions. Firstly, in regard to the granting of permission to
appeal, this may only be granted where the Commission considers it is in the public interest to
do so (s.400(1)). Secondly, where an appeal is based on error of fact, the appeal can only be
made on the ground that the decision involved a significant error of fact (s.400(2)).
[12] In GlaxoSmithKline Australia Pty Ltd v Makin [(2010) FWAFB 5343] a Full Bench of
the Commission considered when it would be in the ‘public interest’ to grant permission to
appeal in accordance with s.400:
“[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.
5 Ibid at paragraph 139.
6 Ibid at paragraph 154.
[2013] FWCFB 8053
4
[sic] [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.”
[13] Given the way in which the appeals proceeded we also think it important to reiterate
the well settled view that 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.7
The appeal by Mr Van Den Enden
First ground of appeal
[14] It is put that the Senior Deputy President erred in failing to make any findings of fact
in respect of what took place at the pre-start meeting of 21 February 2013. In support of this
contention it was argued that there were different versions of events in the evidence of
Mr Van Den Enden,8 Ms S. Steen9 and Mr B. Manley10 and no positive finding was made
resolving those differences. Whilst some of the surrounding circumstances may differ the
main issue is whether or not Mr Van Den Enden spoke inappropriately to Mr Manley.
The statement11 of Mr Van Den Enden would lead to the conclusion that he did not, whereas
the statement of Mr Manley12 would lead to the conclusion that he did.
[15] The Senior Deputy President reached the conclusion at paragraph 89 of his reasons
that: “Having heard the evidence, I am persuaded by Mr Manley’s evidence that the Applicant
did attack him in an uncivil manner at the pre-start meeting on 21 February 2013.”
The Senior Deputy President made a finding on conflicting evidence including that given by
Ms Steen, even though hers was not the best evidence.
[16] In Rode v Burwood Mitsubishi [Dec 451/99 M Print R4471] the Full Bench considered
the issue of witness evidence and the role of appellant benches:
“[44] As noted in Pham v Taubmans Pty Ltd, an Appeal Bench would be very
reluctant to reverse a finding of fact made by a member at first instance and would
only do so if satisfied that any advantage enjoyed by the member below as a result of
7 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995-96) 185 CLR 259 at 272.
8 Appeal book page 299 at paragraphs 43—45.
9 Ms Steen is the Workforce Services Supervisor for Bechtel who dealt with the matter; see Appeal book page 348 at
paragraph 131.
10 Mr Manley is the Crane Supervisor/Leading hand and Mr Van Den Enden’s supervisor. See Appeal book page 394 at
paragraphs 52 and 59(n)
11 See also transcript PN404—410.
12 See also transcript PN1116/1117.
[2013] FWCFB 8053
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hearing the relevant evidence was not sufficient to justify the findings made. As his
Honour Mr Justice McHugh said in Abalos v Australian Postal Commission:
. . . . where a trial judge made a finding of fact contrary to the evidence of a
witness but has made no reference to that evidence, an appellate court cannot
act on that evidence to reverse the finding unless it is satisfied `that any
advantage enjoyed by the trial judge by reason of having seen and heard the
witnesses, could not be sufficient to explain or justify the trial judge’s
conclusion.
[45] Further, in Devries v Australian National Railways Commission their Honours
Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact
by a trial judge, based on the credibility of a witness, is not to be set aside
because an appellate court thinks that the probabilities of the case are against -
even strongly against - that finding of fact (see Brunskill v Sovereign Marine &
General Insurance Co Ltd (1985) 59 ALJR 842, 62 ALR 53; Jones v Hyde
(1989) 63 ALJR 349, 85 ALR 23; Abalos v Australian Postal Commission
(1990) 171 CLR 167). If the trial judge’s finding depends to any substantial
degree on the credibility of the witness, the finding must stand unless it can be
shown that the trial judge `has failed to use or has palpably misused his
advantage’ (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has
acted on evidence which was `inconsistent with facts incontrovertibly
established by the evidence’ or which was `glaringly improbable’
(Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR
842 at 844, 62 ALR at 57).
If a finding made by a member at first instance depends to any substantial degree on
the credibility of a witness, that finding must stand, unless it can be shown that the
member at first instance:
- acted on evidence inconsistent with facts incontrovertibly established by the
evidence;
- acted on “glaringly improbable” evidence; or
- failed to use or palpably misused the advantage the member at first instance
enjoyed in hearing the witnesses give evidence.”
(footnotes omitted).”
[17] In our view nothing has been raised which would led us to disturb the finding made by
the Senior Deputy President. We conclude that no significant error of fact is disclosed in the
resolution of the evidence in relation to this matter. We reject this ground of appeal.
[2013] FWCFB 8053
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Second ground of appeal
[18] It is put that the Senior Deputy President erred in finding that re-instating or re-
appointing the applicant was inappropriate.
[19] In this connection it was argued that he failed to apply the correct test; failed to take
into account if there had been a loss of trust and confidence between the employer and
employee; failed to take into account the impact on the employee of not being re-instated;
failed to take into account the nature of the industry and failed to take into account the size of
the employers undertaking and the capacity to redeploy to another work area or location.
[20] It was submitted that the Senior Deputy President did not make soundly and rationally
based findings that the relationship of trust and confidence had broken down
[Transcript PN272] and therefore did not apply the right test. A major part of those
considerations are whether or not there is trust and confidence in the relationship.
[21] We now turn to the submission in relation to trust and confidence. The invocation of
the concept should not be a mantra that can be relied upon as a sword or a shield in relation to
the primary relief of reinstatement. Many of the features of the modern contract of
employment derive from the earlier law of master and servant. Sir William Blackstone in the
eighteenth century described the master and servant relationship as one of the three most
important relations of private life, together with marriage and parenthood.13
[22] In the decision in Commonwealth Bank of Australia v Barker, [[2013] FCAFC 83]
Justice Jessup comprehensively considered the history of the law relating to trust and
confidence together with an employee’s duty of fidelity. In that decision the majority found
that mutual trust and confidence was an implied term of the contract of employment.
[23] It was put that the Senior Deputy President did not make a finding that there had been
a breakdown in trust and confidence so as to arrive at the conclusion that reinstatement was
inappropriate. This was said to be essential to the exercise of discretion on reinstatement.
[24] When properly read, we are of the view that the decision of the Senior Deputy
President did address this issue. There was certainly sufficient material before him in the
proceedings to reach the conclusion that there was a breakdown in confidence. The Senior
Deputy President concluded at one point that Mr Van Den Enden had “made little effort to
ensure his employer retained confidence in his commitment to the workplace and to his
disposition in respect of his obligations, or even his willingness to exhibit some basic
courtesies”.14 After His Honour found that it would be difficult for management to assume
confidence in Mr Van Den Enden, he listed 1015 examples of the applicant’s past conduct
which he later referred to16 when arriving at his conclusion that reinstatement was
inappropriate. We think that the various references made by the Senior Deputy President to
evidence about the impact on a co-operative, harmonious or productive relationship was
sufficient to for him to exercise his discretion and find that it would be inappropriate for
13 Sir William Blackstone, Blackstone's Commentaries on the Laws of England Book the First : Chapter the Fourteenth : Of
Master and Servant, Oxford : Printed at the Clarendon Press, 1765—1769.
14 [2013] FWC 4377 at paragraph 125.
15 Ibid at paragraph 135.
16 Ibid at paragraph 162 and 165.
[2013] FWCFB 8053
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Mr Van Den Enden to be reinstated to his previous position or appointed to a commensurate
position. We reject the second ground of appeal.
Third ground of appeal
[25] We will take the remaining matters together, namely that the Senior Deputy President
erred in finding that Mr Van Den Enden would have only remained in employment for a
further period of 12 weeks and that further, he erred in reducing the amount of compensation
by 50% because of the applicant’s conduct.
[26] We turn firstly to the assessment made by the Senior Deputy President that
Mr Van Den Enden would only have remained in employment for a period of 12 weeks.
Section 392 provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that
the person’s employer at the time of the dismissal pay compensation to the
person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1),
the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have
been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal; and
(e) the amount of any remuneration earned by the person from
employment or other work during the period between the dismissal and
the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the
person during the period between the making of the order for
compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[2013] FWCFB 8053
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[27] In Smith and Others v Moore Paragon Australia Ltd [PR942846] the Full Bench made
it clear that whilst earlier decisions17 sought to provide guidance to foster uniformity and
consistency, nevertheless those guidelines are no substitute for the words of the Act.
[28] In Tabro Meats Pty Ltd v Heffernan the Full Bench considered the time in which the
employee would have continued in employment. The Bench concluded:
“We think it is more reasonable to assume that, but for the dismissal, Mr Heffernan’s
employment would have continued with Tabro Meat for a year. We have come to this
conclusion given Mr Heffernan’s age of 53 years, his 11 years employment with Tabro
Meat and his generally good employment record, but also taking into account the
animosity between Mr Heffernan and the managing director of Tabro Meat,
Mr Brorsen.”18
[29] Senior Deputy President Richards concluded:
“On the evidence available to me, the Applicant would have been likely to have
remained in employment for a period of a further 12 weeks. I base this assessment on
the wide range of issues that had come to taint the employment relationship in the
Applicant’s period of employment on what is a project site, and the Applicant’s
general disposition as an employee and in respect of the kind of disciplines that need to
be exercised in the modern workplace.”19
[30] The Senior Deputy President directed himself to s.392(2)(c) and reached a conclusion.
This conclusion is consistent with a discretionary judgment and we are not persuaded that the
Senior Deputy President fell into error.
[31] Finally we turn to the next matter raised and that relates to the discount of 50% made
by the Senior Deputy President in relation to his consideration of s.392(2)(g) and s.392(3).
[32] Section 392(3) provides:
“Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the
employer’s decision to dismiss the person, the FWC must reduce the amount it
would otherwise order under subsection (1) by an appropriate amount on
account of the misconduct.”
[33] In our view, critical to the exercise of jurisdiction in this regard is a finding that
misconduct occurred. It would not be unusual to find a circumstance where the Commission
has found the existence of a valid reason, but found the termination of employment is
otherwise harsh, unjust or unreasonable. This is a case where the Senior Deputy President
found that there was no valid reason for the summary termination of the employment of
Mr Van Den Enden.
17 Sprigg v Paul’s Licensed Festival Supermarket [Print R0235]; Ellawala v Australian Postal Corporation [Print S5109]
18 [2011] FWAFB 1080 at paragraph 20.
19 [2013] FWC 4377 at paragraph 169.
[2013] FWCFB 8053
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[34] A Full Bench in Mary Read v Gordon Square Child Care Centre Inc concluded:
“Section 392(3) of the FW Act requires the FWC to reduce the amount of compensation
it would otherwise order by an appropriate amount on account of a person’s
misconduct if satisfied the misconduct of the person contributed to the employer’s
decision to dismiss the person. The section requires the FWC to consider, amongst
other things, if the relevant person engaged in misconduct and, if so, if that misconduct
contributed to the employer’s decision to dismiss the person. The section seems to
require such consideration even if the FWC has found there was no valid reason for the
person’s dismissal. Although, if there was no valid reason for the dismissal we think
that may be relevant to the FWC’s decision as to the “appropriate” amount by which to
reduce the amount of compensation the FWC would otherwise order.”20
[35] The Senior Deputy President found that there was no valid reason for the summary
dismissal of Mr Van Den Enden against the background of findings that he did not “consider
that the extreme to which the Applicant’s conduct reached to be such that it warranted
dismissal”21 In relation to another matter which formed the background to his considerations
the Senior Deputy President stated: “The Applicant’s conduct warranted reprimand and
counselling, but it was not in its own right the basis of a dismissal”22 In relation to the reasons
given for his termination of employment the Senior Deputy President addressed each of those
in his decision. As to the unauthorised leave on 19 and 20 February 2013, it was concluded:
“It appears to me that overall the Applicant’s conduct in removing himself (along with
others in his crew) from the immediate work site on the presumption that there were no
further duties for them to perform demonstrated that he was not an employee who
could be trusted necessarily to act without specific direction at all times to ensure a
sustained commitment to his duties. It would have been preferable for the Applicant to
have remained at the work site and sought further instructions (and if there had been
concerns about the ground conditions affecting the crane’s mobility, to have sought a
resolution through discussion with supervisory staff).
But I put the matter no higher than that: the Applicant had demonstrated the kind of
conduct issue that warrants correction through counselling or directed guidance and a
specific warning. And it appears the other members of the crew were sanctioned in
just this way at the time.”23
[36] And later when summarising the incidents referred to in the letter of dismissal which
occurred on the 19th and 20th of February the Senior Deputy President concluded:
“What is to be made of the Applicant's conduct? Properly characterised, the Applicant
was less than cooperative with his employer, and intemperate. But the evidence—in
this confined context - does not demonstrate that the Applicant has engaged in serious
misconduct. If the Applicant had personally abused either Mr Manley or Ms Steen the
situation would be different altogether.”24
20 [2013 FWCFB 762] at paragraph 83.
21 [2013] FWC 4377 at paragraph 128.
22 Ibid at paragraph 131.
23 Ibid at paragraphs 51 and 52.
24 Ibid at paragraph 78.
[2013] FWCFB 8053
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[37] In dealing with the second ground of dismissal namely that Mr Van Den Enden
ignored an instruction to remain on stand-down and attended a pre start on site and proceeded
to abuse the supervisor, the Senior Deputy President found:
“Further, I am not of the view that the Applicant’s appearance at the pre-start meeting of
21 February 2013 was in its own right a matter of serious misconduct. There is a
reasonable probability that having been in an intemperate frame of mind the previous
day, the Applicant had misheard or not fully processed Ms Steen’s direction for him
not to return to work until she so indicated. Indeed, it is also reasonable that the
Applicant may have assumed the period of the stand down to have been for the single
day only, given the stand down related to an emotional or agitated state of mind and
not some more chronic or sustained issue. This is even more so the case given that the
direction given by Ms Steen was not placed in writing, at the time or shortly thereafter.
The situation would have been very much different had the direction been documented
and given to the Applicant. The Applicant’s conduct would then have demonstrably
contradicted a reasonable direction from his employer. But the evidence, in all, is
uncertain as to whether or not in the circumstances the Applicant reasonably
understood the scope of Ms Steen’s direction. I am not inclined to make an adverse
finding against the Applicant in such a context.”25
[38] The Senior Deputy President, having reviewed these matters concluded:
“In my view the Applicant’s misconduct as I have identified it above, though not
warranting his dismissal in my view, did nonetheless contribute significantly to the
decision on the part of the Respondent to dismiss him from its employment. I will
reduce the amount of compensation to be ordered by 50% because of the Applicant’s
misconduct. This is an appropriate reduction in view of the wide range of behavioural-
related matters to which I have drawn attention in my decision for the purposes of
s.387 of the Act above.”26
[39] From our review of the decision of the Senior Deputy President, we conclude that the
misconduct referred to above, which was said to warrant a 50% reduction in compensation
awarded, includes the conduct that the Senior Deputy President characterised as “low level
insubordination”27 in relation to the Applicant’s behaviour on 19 February 2013 and the
“uncivil manner”28 in which the Applicant addressed his Supervisor on 21 February 2013.
[40] For Mr Van Den Enden it was submitted that the Senior Deputy President had double
counted the conduct which gave rise to his conclusion not to reinstate and that he would have
only worked for a further period of 12 weeks.
[41] While there may be a degree of overlap in the reasons for not reinstating the Applicant
and concluding that the employment relationship would only have lasted for a further 12
weeks, this does not in our view equate to double counting of an impermissible nature. The
25 Ibid at paragraphs 132 and 133.
26 Ibid at paragraph 181.
27 Ibid at paragraph 57.
28 Ibid at paragraphs 89 and 128.
[2013] FWCFB 8053
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conclusion not to reinstate was based on a finding that reinstatement would not give rise to a
cooperative or harmonious productive relationship.29 The conclusion to discount the amount
of compensation was based on the conclusion that Mr Van Den Enden’s misconduct was not
sufficient to justify summary dismissal, but contributed to the employer’s decision to dismiss
the Applicant, thus obliging the Commission to reduce the amount of compensation on
account of that misconduct. As with our conclusion earlier, we are not deciding the quantum
of reduction for ourselves as the Senior Deputy President was best placed to do that.
[42] Given the Senior Deputy President’s conclusions about each of the incidents, the
Appellant has failed to demonstrate any significant error of fact as is required by s.400(2) of
the Act.
[43] For the reasons given no significant error of fact has been demonstrated nor do we
believe that the public interest is attracted, accordingly permission to appeal is refused.
The cross-appeal by Bechtel
[44] Bechtel appealed the Senior Deputy President’s decision on the basis that he did not
discount the amount sufficiently or, in the alternative, he should have made no award of
compensation as a consequence of Mr Van Den Enden not demonstrating reasonable steps to
mitigate his loss.
[45] In relation to the first point of appeal, namely that the Senior Deputy President should
not have awarded any compensation we do no more than to refer to our reasons in relation to
the discretion of the Senior Deputy President. In our view his discretion did not miscarry.
[46] As to the alternative submission, Bechtel submitted it endorsed the principles referred
to by the Senior Deputy President30 and submitted that the Senior Deputy President thought
that the evidence was particularly thin.31
[47] It was argued on behalf of Mr Van Den Enden that mitigation was a factor that needed
to be taken into account along with all other factors and that the Senior Deputy President took
it into account. In our view the Senior Deputy President examined the matter against the
background of relevant authority and reached a conclusion. We discern no error in the
decision on this point. Given that we find no significant error of fact nor do we believe that
the public interest is attracted, we refuse permission to appeal.
DEPUTY PRESIDENT
29 Ibid at paragraph 159.
30 L A Biviano v Suji Kim Collection [PR915963] per Ross VP, O’Callaghan SDP and Foggo C.
31 [2013] FWC 4377 at paragraph 171.
SEAL OF FAIR THE AUSTRALIA ORK COMMISSION
[2013] FWCFB 8053
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Appearances:
C. Howell of Counsel on behalf of Mr Van Den Enden.
A. Strain of Counsel on behalf of Bechtel Construction (Australia) Pty Ltd.
Hearing details:
2013.
Brisbane:
October, 2.
Printed by authority of the Commonwealth Government Printer
Price code C, PR543250
