1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Glen Mackie
v
BHP Coal Pty Limited
(C2013/5193)
VICE PRESIDENT CATANZARITI
COMMISSIONER SPENCER
COMMISSIONER SIMPSON
SYDNEY, 21 OCTOBER 2013
Appeal against decision [[2013] FWC 3503] of Senior Deputy President Richards at
Brisbane on 28 June 2013 in matter number U2012/886.
[1] This decision concerns an application for permission to appeal by Mr Glen Mackie
(Appellant) against a decision1 of Senior Deputy President Richards on 28 June 2013, relating
to his application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the
Act). His Honour found that the Appellant’s dismissal by BHP Coal Pty Limited
(Respondent) was not harsh, unjust or unreasonable and the application was dismissed.
[2] At the hearing of the appeal on 25 September 2013, Mr Kent, of counsel, appeared on
behalf of the Appellant and Mr Meehan, of counsel, appeared on behalf of the Respondent.
Background
[3] On 29 March 2012, the Appellant, along with somewhere between 30 and 70 others,
participated in a picket line at the Respondent’s mine site near Blackwater, in Queensland.
The protest was being conducted by the Construction, Forestry, Mining and Energy Union
(CFMEU), of which the Appellant was a member, during a period of protected industrial
action.
[4] It was alleged that the Appellant threw a projectile, possibly a coffee cup, at a vehicle
containing non-union employees which drove past the picket line. The Respondent
investigated the matter and found that the Appellant had engaged in “serious misconduct” and
terminated the Appellant’s employment on 4 April 2012.
[5] On 18 April 2012, the Appellant lodged an application under s.394 of the Act seeking
an unfair dismissal remedy in respect of his dismissal by the Respondent.
[6] There had been a considerable delay in progressing the application, which was not
heard by the Fair Work Commission (the Commission) until June 2013, as the Appellant’s
alleged actions, which led to the dismissal, were the subject of proceedings in the Magistrates
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DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 8210
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Court on 26 July 2012. Following that summary trial before a magistrate, the Appellant was
convicted of the offence of committing a public nuisance under the Summary Offences Act
2005.
[7] That finding was subsequently appealed to the District Court of Queensland
whereupon the decision of the Magistrate was overturned by a single judge of that court.
[8] As his Honour correctly noted:
“[5] The proceedings in the courts, in any event, were of a criminal nature, and the
applicable burden of proof was whether the Court could be satisfied beyond reasonable
doubt that the Applicant was guilty of the offence as alleged. Issues arising from the
approach to the criminal burden of proof were central to the appeal referred to above.
[6] The civil burden of proof applies in the circumstances with which I will
proceed to contend.”
[9] The Appellant had no prior disciplinary history and denied throwing a projectile at the
vehicle. The Appellant claimed that upon arriving at the protest and obtaining a cup of coffee
he took a seat next to Mr O’Toole - a co-worker - who was sitting at the end of the protest line
and that he remained seated as the car went past. Three fellow employees who were present at
the protest, including Mr O’Toole, gave evidence generally supporting the Appellant’s denial
of throwing the object at the car.
[10] Mr Vine, the driver of the vehicle in question, and Mr Christison, the passenger, both
gave evidence that they had seen the Appellant throw an object at the car they were driving in.
The object had hit the car causing Mr Vine to slightly swerve, although no harm was done to
the vehicle or the passengers.
Decision at first instance
[11] In assessing the credibility of the various witnesses and the reliability of Mr Vine’s
and Mr Christison’s identification evidence, his Honour correctly stated that “There are wider
issues and circumstances within which their evidence needs to be considered.”2 His Honour
went on to consider the following “Factors affecting visual recognition”:
Lighting;3
Distance;4
Capacity for personal identification;5
Vehicle speed;6
Whether evidence was concocted;7 and
Internal inconsistencies in evidence.8
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[12] Having considered these factors, his Honour made the following findings:
“[87] It appears to me that the lighting available across the protest, and in respect of
the Applicant’s location, was sufficient to provide for the identification of a person
within a reasonable distance...
...
[90] On the evidence available to me, the Applicant was in sufficient proximity to
the road to be readily recognised by Mr Vine and Mr Christison as they drove by.
...
[93] The evidence leads me to conclude that Mr Vine and Mr Christison were
capable of readily recognising the Applicant, even if their focus on him was for a short
period of time only.
...
[96] The evidence as led satisfies me that the speed of the vehicle driven by Mr
Vine was such that it would make the task of recognition of an individual’s identity
reasonably available.
...
[101] None of these differences are such that they suggest to me that the evidence as
I have reviewed it so far was concocted in relation to the central issue of identification
or else flawed in any fundamental way for the purposes of the determination I must
make. The differences in the evidence are not sufficient to give rise to an inherent
contradiction or inconsistency that is fatal to the central claim.
...
[108] In all, Mr Vine’s evidence was not inherently contradictory or implausible to
the extent I question its reliability.
...
[117] Reviewing the evidence, these are not discrepancies that give rise to
inconsistencies of such a scale or type that are fatal to Mr Christison’s credibility, and
the reliability of his evidence as I have heard it, that he witnessed the Applicant throw
an object at the vehicle in which he was a passenger. That is, while there are
difficulties in the evidence before me, these difficulties do not attack in any
substantive manner on the claim about identification which is central to these
proceedings (or else aid a finding of concoction in that respect).
...
[206] Further still, the witness evidence for the Applicant did not provide an
effective reason to question in any substantive manner the claims made by Mr Vine
and Mr Christison as to identification.”
[13] Having found that the evidence provided by Mr Vine and Mr Christison was both
reliable and credible, his Honour concluded that he was persuaded that, on the balance of
probability, the Appellant was responsible for throwing an object at Mr Vine’s vehicle as Mr
Vine and Mr Christison passed through the picket on 29 March 2012.
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[14] Accordingly, his Honour was satisfied that the Appellant’s conduct was not conduct
that sustains a cooperative, productive or safe workplace, and was inconsistent with the
Respondent’s workplace conduct and behaviour policies. For those reasons, the Respondent
had a valid reason for dismissing the Appellant.
Grounds for appeal
[15] The grounds of appeal, as outlined in the Notice of Appeal, are as follows:
“2.1. The learned Senior Deputy President erred in fact and law in that he misapplied
the principles as to the dangers of honest but mistaken identification evidence.
Although the judgment referred to relevant factors in evaluating the evidence, His
Honour failed to properly direct himself as to the danger associated with such a body
of evidence.
2.2. The learned Senior Deputy President erred in fact in failing to properly evaluate
the inconsistencies within and thus the weight of, the evidence of the Respondent's
witnesses Christison and Vine.
2.3. The learned Senior Deputy President erred in fact and law in acting on the
evidence of the Respondent's witnesses in concluding that the Respondent had
discharged its burden of proof to the required standard.
2.4. The learned Senior Deputy President erred in fact and law in his analysis of the
evidence of the Applicant's witnesses, subjecting some of the evidence to criticism on
extremely minor matters, such as, for example, the Applicant's holding or otherwise of
a coffee cup. This was a mistake in emphasis in that it overlooked the principle that it
was the Respondent which bore the burden of proof in respect of the issue of the
alleged misconduct by the Applicant and this issue turned solely on an acceptance or
otherwise to the required standard of the Respondent's witnesses. Thus, the excessive
reliance on a minute examination of the fine details of the Applicant's witnesses'
evidence was a distraction from the real issue for the Commission, which was whether
or not the Respondent had discharged its burden of proof on the central issue.
2.5. To the extent that the above grounds involved questions of fact, the errors made
are significant errors of fact.”
[16] The Appellant submitted that his Honour erred in failing to appropriately caution
himself of the dangers of identification evidence. It was submitted that his Honour erred in
fact and law by misapplying the principles as to the dangers of honest but mistaken
identification evidence, as outlined by the High Court in Domican v The Queen9 (Domican).
Indeed, his Honour made no reference to the body of law requiring caution in the treatment of
contested identification evidence.
[17] Furthermore, an error in his Honour’s reasoning is disclosed at paragraph [205] of the
decision where he refers to the unlikelihood of a conspiracy. Conspiracy, however, was never
alleged, and the focus should have been on the dangers of honestly mistaken evidence.
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[18] It was also submitted by the Appellant that his Honour did not sufficiently engage with
some of the central submissions made on the Appellant’s behalf, namely:
the time period for observation was brief, only a matter of a few seconds;
the observation occurred from a moving vehicle, and the driver in particular, could
not take his eyes off the road for long;
the identification was a facial recognition of one person from amongst a large crowd,
a group of up to 70 people;
although Mr Christison attempted to link his identification with a distinctive hat, this
factor in the end was intractably neutral; and
the identification by the Respondent’s witnesses was strongly contested, indeed
contradicted by a number of witnesses. The Appellant denied any throwing of any
object and was supported by the evidence of, at least, witnesses Mr O’Toole and Mr
Kendrick.
[19] For the reasons set out, it was submitted by the Appellant that this is a proper case for
permission to appeal from the decision of the Commission. The public interest issue includes
an issue of importance and general application in the proper approach of the Commission to
the dangers of contested identification evidence. Secondly, a proper assessment of the
evidence was clearly in favour of the Appellant’s case such that the decision constitutes a
manifest injustice that engages the public interest.
[20] In response, the Respondent submitted that the term “recognition evidence” is more
apt to describe the identification portion of Mr Vine’s and Mr Christison’s evidence, because
it was clearly established that at the time of the alleged incident the Appellant was well
known to both Mr Vine and Mr Christison through their respective prior dealings. This is
important because the common law has historically distinguished “recognition evidence”
from “identification evidence”.10
[21] Furthermore, whether a Domican warning is necessary in relation to “recognition”
evidence depends on all of the relevant circumstances, including the degree of familiarity of
the witness with the suspect, the circumstances in which the suspect had previously been seen
by the witness, and the circumstances in which the suspect was alleged to have been seen by
the witness at or about the time of the crime.
[22] The Respondent submitted that the grounds of appeal constitute a mere expression of
overall dissatisfaction with the decision and that the matters raised do not provide any basis
for a finding that is in the public interest to grant permission to appeal.
Consideration
[23] An appeal under s.604 of the Act in a matter of this nature is determined by reference
to the provisions of s.400 of the Act. Section 400 provides:
“400 Appeal rights
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(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 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.”
[24] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin11 considered the impact
of s.400(1) 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.”
[25] In this instance, it is submitted that public interest is attracted as the issue of
identification evidence and its treatment by the Commission raises an issue of importance and
general application, and that a proper assessment of the evidence was clearly in favour of the
Appellant’s case such that the decision constitutes a manifest injustice.
[26] If the error of the decision maker relied upon by the Appellant is an error of fact, then
the Full Bench must be satisfied it is a significant error of fact.12 It is not enough that the Full
Bench would have arrived at a different conclusion to that of the original decision maker; the
relevant question is whether the finding made by the decision maker was reasonably open to
him or her.
[27] We do not consider that his Honour erred, in fact or in law, or that any of the findings
reached were not open to him. As such, the Full Bench cannot interfere with his Honour’s
decision.13
[28] The evaluation of the identification evidence, which we agree is better referred to as
recognition evidence, should be viewed in light of s.591 of the Act, which provides that “The
FWC is not bound by the rules of evidence and procedure in relation to a matter before it
(whether or not the FWC holds a hearing in relation to the matter).” Although the rules of
evidence do not apply in the strictest sense, as a Full Bench noted in the decision in Hail
Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union:14
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“While the Commission is not bound by the rules of evidence that does not mean
that those rules are irrelevant. As the then President of the Industrial Relations
Commission of Western Australia said in respect of a similar provisions in the then
Industrial Relations Act 1979 (WA):
However, this is not a licence to ignore the rules. The rules of evidence provide
a method of enquiry formulated to elicit truth and to prevent error. They cannot
be set aside in favour of a course of inquiry which necessarily advantages one
party and necessarily disadvantages the opposing party (R v War Pensions
Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Evatt J. at 256
(dissenting)). The common law requirement that the Commission must not in
its reception of evidence deny natural justice to any of the parties acts as a
powerful control over a tribunal which is not bound by the rules of evidence.
A similar observation was made by the Industrial Commission of New South Wales in
PDS Rural Products Ltd v Corthorn:
First, it is correct to say, as the commissioner did, that he was not bound to
observe the rules of law governing the admissibility of evidence (s 83). It
should be borne in mind that those rules are founded in experience, logic,
and above all, common sense. Not to be bound by the rules of evidence does
not mean that the acceptance of evidence is thereby unrestrained. What s 83
does do in appropriate cases is to relieve the Commission of the need to
observe the technicalities of the law of evidence. Common sense, as well as
the rules of evidence, dictates that only evidence relevant to an issue which
requires determination in order to decide the case should be received. This
means that issues must be correctly identified and defined. This did not happen
in this case.
We agree with the above observations. In our view the rules of evidence provide
general guidance as to the manner in which the Commission chooses to inform
itself.”
(emphasis added, references omitted)
[29] Accordingly, the correct approach for the Commission, in its fact finding function, is
to review the evidence before it and evaluate its quality, including considering its weaknesses,
which may include weaknesses courts have found to beset identification evidence. The
Commission is, however, not required to “caution” itself the way a court would using the
Domican principle in a criminal matter.
[30] It is evident that his Honour evaluated the potential weaknesses of the observations
made by Mr Vine and Mr Christison on the reliability of their recognition evidence. The
brevity of the observation was properly balanced by consideration of the fact that both Mr
Vine and Mr Christison had a close familiarity with the Appellant's appearance, and that the
observations were made in sufficiently close proximity to the Appellant, in adequate lighting.
Any inconsistencies were considered by his Honour. No error is revealed in his Honour's
reasoning process. We accept the Respondent’s submission that his Honour’s reasoning
[2013] FWCFB 8210
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process is consistent with a measured and cautious approach to acceptance of the reliability of
the recognition evidence.
[31] It is also clear in our view that his Honour gave appropriate consideration of the
Appellant’s evidence and submissions, including his criticisms of the evidence of both Mr
Vine and Mr Christison before making conclusions about its reliability and the weight the
evidence should be accorded. No appealable error is disclosed in his Honour’s approach.
Conclusion
[32] We are not satisfied that it is in the public interest to grant the Appellant permission to
appeal the decision of his Honour at first instance. The conclusions reached by his Honour
were reasonably open to him and no error is revealed in his Honour’s decision or reasoning.
Accordingly, we do not grant permission to appeal, and therefore the appeal must be
dismissed.
VICE PRESIDENT
Appearances:
D.R. Kent of Counsel, instructed by Hall Payne Lawyers, for Mr Glen Mackie.
S.R. Meehan of Counsel, instructed by Ashurst Australia, for BHP Coal Pty Limited.
Hearing details:
2013.
Brisbane:
September 25.
Printed by authority of the Commonwealth Government Printer
Price code C, PR543525
1 [2013] FWC 3503.
2 Ibid at [81].
3 Ibid at [82]-[87].
4 Ibid at [88]-[90].
5 Ibid at [91]-[93].
OF FAIR RK COMMISSION THE
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6 Ibid at [94]-[96].
7 Ibid at [97]-[102].
8 Ibid at [103]-[119].
9 (1991)-(1992) 173 CLR 555.
10 Davies v The King [1937] HCA 27; (1937) 57 CLR 170.
11 [2010] FWAFB 5343.
12 Fair Work Act 2009, s.400(2).
13 House v The King (1936) 55 CLR 499.
14 (2004) 143 IR 354 at [48]-[50].
