1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Andrew Hill
v
Peabody Energy Australia PCI Pty Ltd
(C2017/3076)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT COLMAN
COMMISSIONER CIRKOVIC MELBOURNE, 28 SEPTEMBER 2017
Appeal against decision [2017] FWC 1952 of Commissioner Spencer at Brisbane on 18 May
2017 in matter number U2016/11153.
[1] Mr Andrew Hill has applied for permission to appeal against a decision of
Commissioner Spencer issued on 18 May 2017,1 in which the Commissioner found that Mr
Hill’s dismissal by Peabody Energy Australia PCI Pty Ltd (Peabody) was not unfair, and
dismissed his application for an unfair dismissal remedy.
[2] Mr Hill’s employment as an electrician at the Coppabella Mine was terminated on 22
August 2016. He was found to have committed a serious breach of safety procedures by
having driven a vehicle in a ‘restricted access area’ without authorisation and failing to drive
to weather conditions, resulting in a collision that caused extensive vehicle damage.2
[3] The termination letter provided by the company to Mr Hill stated that it considered
entry to a restricted area without authorisation to be a very serious breach of safety
procedures, and that it had the potential to place Mr Hill’s safety and that of his co-workers at
an unacceptable level of risk.3
[4] Mr Hill denies that he was aware that the area was restricted on the day in question
although he admits that he knew it had previously been restricted. He contends that he did not
receive, or did not hear, a safety message from his supervisor concerning the restricted access
area, and contests other elements of the allegations concerning the incident.
[5] Reference was made in the termination letter to three previous warnings that Mr Hill
had received in relation to different incidents. The first concerned sleeping in his vehicle. The
second related to a failure to pay attention at a prestart meeting. The third involved an
allegation that Mr Hill had exceeded the speed limit at the mine by up to 15 kph on eleven
occasions on one day.4 Mr Hill contested the validity in particular of the last mentioned
allegation, and the accuracy of the speed detection data.
[2017] FWCFB 4944
DECISION
AUSTRALIA FairWork Commission
[2017] FWCFB 4944
2
[6] The Commissioner concluded that the incident involving the collision was serious and
that, when considered in the context of his prior conduct, there was a valid reason for
dismissal.5
Permission to appeal
[7] An appeal under s.604 of the Fair Work Act 2009 (FW Act) is an appeal by way of
rehearing and the Commission’s powers on appeal are only exercisable if there is error on the
part of the primary decision maker.6 There is no right to appeal and an appeal may only be
made with the permission of the Commission.
[8] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the 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.
[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others the Federal Court
characterised the test under s.400 as “a stringent one”.7 The task of assessing whether the
public interest test is met is a discretionary one involving a broad value judgment.8 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.”9
[10] 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 appealable error.10 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.11
Grounds of appeal
[11] The notice of appeal contains 25 paragraphs setting out why Mr Hill considers that the
Commissioner’s decision was affected by error. These paragraphs advance three principal
grounds of appeal.
The third warning
[12] Paragraphs 1 to 9 of the notice of appeal relate to the third warning provided to Mr
Hill, concerning the allegations of speeding. Mr Hill contends that the Commissioner was
[2017] FWCFB 4944
3
wrong to accept the validity of, and place weight on, the third warning. He submits that it was
not proved that he in fact exceeded the speed limit on any of the relevant occasions on the day
in question. He maintains that the third warning should not have been taken into account in
considering whether there was a valid reason for his dismissal.
[13] Mr Hill also takes issue with his representative’s handling of the significance of the
third warning in the proceedings before Commissioner Spencer, and states that at the hearing
his representative and the company both ‘created a mess of it’.12
[14] The Commissioner considered the third warning in her analysis of whether the
employer had a valid reason for dismissing Mr Hill. She stated:
[97] The third warning concerned an allegation that the Applicant was driving above
the speed limit. Whilst the speed limit at the mine is 60km per hour, it was conceded
by Mr Franklin under cross-examination, that the Respondent would only be notified
automatically of speed violations if a vehicle’s speed exceeded 70km per hour. It was
suggested by the Applicant’s representative that this was because of technical
limitations; that there was a 10km per hour margin of error. The Respondent’s
representative noted this allowance existed to prevent minor speed infractions from
being automatically reported, and that the Applicant had exceeded the speed limit by
up to 14km per hour at times. The Respondent’s representative rejected the suggestion
that the system was unreliable.
[98] It is accepted that the prior warnings, referred to in the termination letter, form
part of the reasons for the dismissal. In regards to the first and second warnings, it is
not seriously in dispute that these two incidents occurred. Whilst the mitigating factors
as submitted by the Applicant, have been taken into account; on the Applicant’s own
submissions, the factual basis of these warnings has been satisfied.
[99] In relation to the third warning, the evidence of the Respondent was that the
Applicant did at times exceed the 60km per hour speed limit. The speed limit was, at
all material times, 60km per hour and the 70km per hour threshold effectively existed
to eliminate the possibilities of false positive reports and minor speeding infractions.
It was submitted that on the system used, when a report is generated, the 60km per
hour speed limit would have been exceeded. However, the documentation provided at
the Hearing was not put before the Applicant prior to his termination, to allow for his
response.
[100] The final incident [the collision] is significantly serious on its own. When it is
considered against the prior conduct (taking into account mitigating factors), there is
a valid reason for dismissal.
[15] It is well established that in cases where an employee has been dismissed for a reason
relating to conduct, the Commission must, in considering whether there is a valid reason for
dismissal, be satisfied that the conduct occurred.13 This obligation, articulated by the Federal
Court in Edwards v Giudice,14 flows from the plain wording of s.387(a), which requires the
Commission to consider whether there is a valid reason for the dismissal.15 The question of
whether the alleged conduct took place and what it involved is to be determined by the
Commission on the basis of the evidence in the proceeding before it, to the Briginshaw
[2017] FWCFB 4944
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standard. The test is not simply whether the employer believed on reasonable grounds that the
employee engaged in the conduct.16
[16] At paragraph 100, the Commissioner takes into account the ‘prior conduct’ of Mr Hill
in finding that there was a valid reason for dismissal. In the context of the preceding
paragraphs, ‘conduct’ appears to be a reference to the incidents that gave rise to the three
warnings. The Commissioner finds that the conduct leading to the first and second warnings
was not ‘seriously in dispute’. It does not appear that these incidents had any significant
bearing on the matter in any event. However, in the passages extracted above, the
Commissioner does not appear to make any finding in relation to the conduct that led to the
third warning. In the structure of the decision, paragraph 100 marks the end of a section,
commencing at paragraph 89, devoted principally to the question of whether there was a valid
reason for dismissal.
[17] However, it is evident that later in her decision, the Commissioner concludes that the
conduct that was the subject of the third warning had not been established. The Commissioner
stated:
[126] The final incident the Applicant was involved in was considered against the
aggregate of the disciplinary warnings, that the Applicant had received. As stated, at
the time of this vehicle incident, he had been the subject of a final written warning for
an incident that occurred on 20 April 2016. The Applicant’s representative took issue
with the subject of this final warning, as it related to violation of the site traffic rules
by exceeding the site speed limit by up to 15 km/h. The Applicant’s representative
critically examined the evidence of the speeding violations. The documentation did not
clearly confirm that the Applicant had gone above the permissible site speed limit
taking into account the allowable buffer built into the tracking system.
[127] However, the Respondent emphasised to the Applicant at the time the final
written warning was provided, that this was the third final written warning that had
been issued to him, since June 2014. In addition, it had been made clear to the
Applicant that a further breach will result in disciplinary action up to and including
termination of employment.
[18] Although this passage appears in the Commissioner’s analysis of s.387(h) of the FW
Act, which requires the Commission to take into account any other matters it considers
relevant, it addresses the Commissioner’s finding in relation to the third warning and the
conduct to which it related. The Commissioner’s decision must be read as a whole and
considered fairly.17 The reference in paragraph 100 to ‘prior conduct’ should be read in this
context; it does not in our view include the conduct that gave rise to the third warning.
[19] Even if the Commissioner had taken into account the conduct that led to the third
warning without making a finding as to whether it occurred, we do not consider that this
would have been an error sufficient to enliven the public interest to grant permission to
appeal.
[20] A failure to make a finding in relation to conduct can constitute error of different
kinds. It can constitute a mistake of fact, in which case it would, in the present case, need to
be a ‘significant error of fact’ for the purpose of s.400(2), in order to form the basis for an
appeal. As we discuss below, Mr Hill was dismissed principally because of his misconduct in
[2017] FWCFB 4944
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relation to the incident involving the collision; it does not appear to us that an error of fact in
connection with the third warning would have been a significant error.
[21] In the present case, it does not appear to us that the employer placed significant
reliance on the third warning or the conduct that led to it. The termination letter stated that
entering a restricted area without authorisation was a ‘very serious breach of site safety
procedures’. It stated that Mr Hill’s actions constituted ‘serious misconduct and demonstrates
a standard of behaviour that does not meet the standards of employment with Peabody.’ The
reason for dismissal focuses squarely on the incident involving the collision. The fact that Mr
Hill was subject to a final written warning at the time was said in the termination letter to be
but a ‘further aggravating factor’.18
[22] Mr Hill’s employment was terminated because of his serious misconduct in
connection with the incident involving the collision. Any reliance by the employer on the
speeding conduct in this case was in our view peripheral to the conduct for which Mr Hill was
dismissed. In such circumstances, the principle in Edwards v Giudice does not require the
Commission to establish that the earlier conduct occurred.
[23] The Commissioner did take into account the warnings that had been provided to Mr
Hill. She noted in paragraph 127 that Mr Hill had received three final warnings, and that he
was on notice that a future safety breach would result in disciplinary action which could
include termination of employment. The Commissioner finds that the employer was entitled
to rely on the prior warnings and to consider such as part of the reason for dismissal.19
[24] We would note that there is a distinction between relying on past conduct, and relying
on a warning issued in relation to that conduct. The fact that Mr Hill knew that a future safety
breach could lead to termination is a relevant consideration. However, as we have noted, the
focus of the reason for termination and the Commissioner’s finding that there was a valid
reason for Mr Hill’s dismissal was the misconduct on the day of the collision. In this regard,
the Commissioner notes in her decision that the company had determined that Mr Hill’s
conduct was sufficiently serious to warrant summary termination of his employment,20 and
she found that the final incident was significantly serious in its own right.21 We return to the
circumstances of the collision further below.
[25] We do not consider that Mr Hill has established an arguable case of error in relation to
the Commissioner’s treatment of the third warning and the conduct to which it related. Even if
an arguable case of error had been established in connection with the absence of a finding
concerning the conduct that was subject to the third warning, or a reliance on this conduct by
the Commissioner in her analysis, we do not believe it would have constituted a significant
error of fact or be sufficient to attract the public interest to grant permission to appeal.
[26] As to Mr Hill’s submission in relation to his representative’s handling of these issues
in the proceedings at first instance, there is no indication that Mr Hill raised any concerns
about the effectiveness of counsel with Commissioner Spencer. There is no arguable case of
error on the part of the Commissioner in this regard. Further, it is well established that parties
are generally bound by the conduct of their counsel.22
[27] In our opinion, paragraphs 1 to 9 of the notice of appeal do not disclose an arguable
case of error on the part of the Commissioner, and do not otherwise attract the public interest
in granting permission to appeal.
[2017] FWCFB 4944
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The collision
[28] Paragraphs 10 to 22 of the notice of appeal relate to the incident involving the
collision.
[29] Mr Hill submits that he drove into a ‘restricted area’ and not a ‘no go zone,’ as was
originally asserted by the respondent. He disputes the company’s claim that he disregarded
safety information, including the Open Cut Examiner’s safety report (OCE report). He
submits that he did not hear a supervisor, Mr Collins, read out the OCE report at a pre-start
meeting, advising that driving into the pit would be restricted to authorised personnel only.23
Alternatively, Mr Hill contends that this safety message was in fact never read out by Mr
Collins.24 Mr Hill also contests the allegation that he disregarded restricted access signage
prior to entering the pit, and submits that the signage was not in place or not visible at the
time. He contends that the Commissioner made significant errors of fact by finding that he
had disregarded safety instructions, ignored signage and entered a restricted area without
permission.
[30] In her decision the Commissioner addresses the question of whether the area into
which Mr Hill drove was a ‘no go zone’ or a ‘restricted area.’25 She notes that in the
employer’s show cause letter, the area had been described as a ‘no go zone’, attracting more
onerous requirements. However, the company acknowledged before Commissioner Spencer
that the area in question was a ‘restricted access area’, rather than a ‘no go zone’. This is what
is referred to in the termination letter, and the company considered the facts and Mr Hill’s
conduct on this basis.26
[31] In relation to the question of the safety information provided to employees, the
company led evidence from Mr Collins, who said that at the pre-start meeting on the day in
question, he had advised all crew members, in accordance with the OCE report, that driving in
the pit was restricted to “authorised personnel only” and that if employees were unsure about
entering an area, they were to make contact with the OCE/Supervisor prior to entering the
area.27
[32] It is evident from the following passages of the Commissioner’s decision that she
accepted the evidence of Mr Collins:
[120] In considering all of the matters relevant to the incident, the instructions to the
Applicant were clear regarding the closure of the pit and the limitation on vehicle
access due to the dangerous conditions caused by the heavy rainfall, and the restricted
access sign was erected. The Open Cut Examiner (OCE) had sent an email to all
department managers advising them that the Coppabella pit was under restricted
access from the workshop into the pit.
[121] This direction had been reinforced by further communication of this by the shift
supervisor Mr Collins on Tuesday, 19 July at 6:00pm when he read the OCE’s report
to all maintenance crew members at the pre-start meeting. The Applicant was in
attendance at this meeting and the report was read out. The report gave reference to
the continued weather conditions and advised that drivers in the pit would be
restricted to authorised personnel only, and that if an employee was uncertain about
entering this area they were to make contact with the OCE/supervisor prior to
entering the area.
[2017] FWCFB 4944
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[122] In direct contrast to this instruction at 4:15am on Wednesday 20 July, the
Applicant drove a light vehicle from the workshop to the maintenance laydown area
by Creek Road. In doing so, the Applicant passed the restricted access sign. Radio
recordings confirm that the Applicant did not check or seek permission with this shift
supervisor prior to entering the pit.
[33] Mr Hill appears to challenge the veracity of Mr Collins’ evidence. At paragraph 15 of
the notice of appeal he contends that Mr Collins never read out the safety message, contrary to
Mr Collins’ evidence. However, at paragraphs 6 and 7 of his statement, Mr Collins says:
‘6. At the pre start meeting at 6pm on 19 July 2016, I read through the Open Cut
Examiner’s report to the Maintenance Crew B… I said that there was still
restricted access signage in place as the road into the mine pit and that they
were required to call the OCE if they needed to enter that area.
7. As is my usual practice I read through each line of the OCE’s report. I did not
skip through the report. I read the following relevant notes in the OCE’s
report out:
‘LV’s to be locked in 4WD, restricted to 40 km/hr, drive to conditions. Water
and silt ponding in areas, run off water starting to wash out roads, inspect
area before going through if unsure contact the OCE/supervisor.’
[34] Mr Collins was questioned about this aspect of his statement during the course of his
examination in chief:
PN1050
…Mr Collins, I direct your attention to your evidence in paragraph 7?---Yes.
PN1051
You say this. You say:
PN1052
As is my usual practice, I read through each line of the OCE's reports.
PN1053
Are you certain of that?---Yes.
PN1054
Can I take you to the report itself on page 8, the paginated page 8 of your
statement?---Yes.
PN1055
Just short of halfway down beneath the - there's a line there which says:
PN1056
Restricted access signage in place - call OCE.
PN1057
?---That's correct.
PN1058
[2017] FWCFB 4944
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What did you explain to the team in relation to that part of the OCE report?---Just
the ongoing conditions throughout the week, there'd been limited change in the pit
and restricted access into the work area.
PN1059
Yes?---And if there's no need to go into the pit, we wouldn't be going in there,
however consultation or permission if you entered or the OCE relevant supervisor
direct.28
[35] Mr Collins was cross examined but it was not put to him that his evidence was wrong
or contradicted by the evidence of Mr Hill.29 Mr Collins’ evidence in respect of this issue was
unchallenged.
[36] Whilst the Commissioner does not specifically address the question of witness credit,
her acceptance of Mr Collins’ evidence must be taken to indicate that she considered it to be
reliable.
[37] Findings of fact at first instance, based on the credibility of a witness, will only be set
aside on appeal where incontrovertible facts or uncontested testimony show that the decision-
maker’s conclusions are erroneous, or where the conclusions drawn are clearly improbable or
contrary to compelling inferences.30 We do not consider that Mr Hill’s contentions establish
that the Commissioner’s conclusions can be characterised in any of these ways.
[38] The Commissioner notes in her decision that Mr Hill conceded under cross-
examination that he knew the area was restricted prior to driving into it.31 Before the Full
Bench, Mr Hill denied that he had made such a concession, although he acknowledged that he
had previously been aware that the area in question was restricted.32 However, Mr Hill’s
submission is not consistent with the transcript of proceedings before Commissioner Spencer,
which records the following exchange:
PN292 But you will agree with me, won't you, that up till the pre start on 20 July, your
evidence is that you were aware that the restricted zone had been in place
continuously for several days? --- Yes.
PN293 And that you'd been told at each pre start shift that the OCE report was in
place, which meant that the restricted zone was also in place? --- Yes. It was like there
was the same thing said through the week.33
[39] In addition, it was conceded by Mr Hill’s counsel before Commissioner Spencer that
Mr Hill knew the restriction was in place:
PN141 MR REED: That's right. That's referring to conversations that took place on
14 July. As Mr Hill said on 14 July he was told that, you know, while he was certainly
entering a restricted area his accessing equipment at the lay-down area fell into a
different category to his going in to the pit without authorisation, or going to the pit
even with authorisation. Obviously the activities in the pit were significantly different
to the activities in the lay-down area. Of course there had been, apart from
equipment, et cetera, numerous other employees working in the restricted access area
in the week up to 20 July, and, as I've said, Mr Hill had been engaging in high risk
work at the site, that is, the pit site. Mr Hill says that there was some problem with the
[2017] FWCFB 4944
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signage and markers having been degraded over the period of a week. There's some
dispute about that but we don't deny that the restrictions were still in place and that
Mr Hill was aware.34
[40] In relation to this last-mentioned concession, Mr Hill submitted to the Full Bench that
he did not hear his counsel make this concession, and that it might have been written into the
transcript.35 There is no evidence or plausible reason to consider that the transcript has been
altered. Nor is there any ambiguity in the language used by Mr Hill’s counsel. It is also
relevant to observe that the company’s counsel drew attention to these concessions during the
course of his closing oral submissions:
MR WILLIAMS: … Commissioner, today Mr Hill's counsel has conceded that Mr
Hill entered restricted access without permission, and that he knew that he was doing
so. … It was an appropriate concession of course, and we accept that it must've been
made on instructions from Mr Hill and therefore Mr Hill now accepts, and is happy
for you to proceed on the basis that he entered the restricted area that night knowing
the restricted access remained in place and therefore in deliberate defiance of the rule
of which he was well aware.36
[41] During the course of his oral reply submissions Mr Hill’s counsel did not challenge the
company’s characterisation of the concessions said to be made by Mr Hill.37
[42] As noted earlier, a party is bound by the conduct of its counsel. If a party has concerns
about the conduct or submissions of its counsel, it is incumbent on the party to raise the
concern either with counsel or the presiding member.
[43] Even putting to one side the two concessions referred to above, Mr Hill acknowledged
that immediately prior to 19 June 2016, he had been aware that the area in question was
restricted. Under cross-examination, it was put to Mr Hill that the supervisor did not tell him
that the restriction had been lifted, to which Mr Hill replied ‘No, he didn’t.’38 At the least
then, it would appear that Mr Hill had known that the area had recently been restricted, and
that he had not been advised of any change in that position.
[44] In relation to Mr Hill’s contention that the restricted access signage was either not in
place or not visible, it is evident from paragraph 120 of the decision, extracted above, that the
Commissioner accepted the evidence of the company. However, in light of the other evidence,
we do not consider the presence or otherwise of signage to be a significant evidentiary
consideration in this matter capable of being the subject of a significant error of fact for the
purposes of s.400.
[45] Mr Hill disputes the evidence and findings of the Commissioner but we do not see
substance in his arguments, much less any ‘significant error of fact’, in relation to the matters
raised by Mr Hill in paragraphs 10 to 22 of his notice of appeal.
[46] We return to the question of whether there was a valid reason for termination. As
noted above, in cases involving misconduct, it is necessary for the Commission to determine
whether the conduct in question occurred. In our view, it is sufficiently clear from the
Commissioner’s decision that appropriate findings of fact were made in relation to the final
incident.
[2017] FWCFB 4944
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[47] The Commissioner concluded that Mr Hill ‘was, or should have been aware’ prior to
entering the pit, that it was a restricted area, and that he was required to obtain approval
before entering it.39 She also noted that Mr Hill did not contest that he was in attendance at the
pre-start meeting, was in a restricted area when the incident occurred, and that he had not
sought authorisation from the OCE on shift to enter the restricted area.40 This provides a
foundation for the Commissioner’s conclusion that the incident involving the collision was
‘significantly serious on its own’, and that there was a valid reason for dismissal.
[48] As we have noted earlier, the Commissioner’s conclusion at paragraph 100 that there
was a valid reason for termination must be read in conjunction with the later passages in the
decision dealing with the evidence of Mr Collins and the events of the day of the incident.
Paragraphs 120 to 122 show that the Commissioner accepted the evidence of the company in
relation to the incident involving the collision.
[49] Finally, in the penultimate paragraph of the decision, the Commissioner states that the
‘conduct of the Applicant was substantiated as a valid reason for dismissal’.41 The conduct
that was the focus of the decision to terminate, and the proceedings before the Commissioner,
was the conduct on the day of the collision. In our view, this is the conduct that the
Commissioner concludes has been substantiated.
[50] In our view paragraphs 10 to 22 of the notice of appeal do not disclose an arguable
case of error on the part of the Commissioner and do not otherwise attract the public interest
in granting permission to appeal.
‘Changing his story’
[51] At paragraphs 23 to 25 of the notice of appeal Mr Hill advances the contention that the
Commissioner mischaracterised his responses to questions during cross-examination
regarding the incident involving the collision as ‘changing his story’.
[52] At paragraph 129 of the decision the Commissioner stated:
[129] Based on the evidence, the Applicant had made different submissions as to
explanations for the final driving incident. The Respondent argued that the Applicant
had given evidence at the Hearing that road conditions had deteriorated due to grader
activities, where no assertion to that fact, had been made previously, either in the
initial response or in earlier submissions. The Respondent considered this to be a
recent invention of the Applicant to “get himself out of a difficult bit of cross-
examination” and to combat their contention that the Applicant was aware of the
current road conditions, and that they were not as poor as the Applicant had reported.
Further, Mr Williams argued at the Hearing that the Applicant was attempting to
deflect from his original contention, that the road conditions were poor, while from
his own admission he had been able to traverse the same distance safely only hours
earlier.
[130] The Respondent further provided that the Applicant’s allegation that the signs
and traffic cones had been removed, was challenged by the evidence of the other
witnesses. The Respondent emphasised that the Applicant’s altered explanations for
the incident, constituted a breach of trust and confidence. Weight has been attributed
[2017] FWCFB 4944
11
to this submission; in the circumstances of the workplace, the directions given, and the
compliance required of employees.
[53] We accept Mr Hill’s contention that he was responding to a question from the
company’s counsel as to why the condition of the road could have been in a worse condition
than it was several hours earlier, as Mr Hill had contended. The response appears to have been
a hypothesis offered by Mr Hill, rather than an assertion of fact. In paragraph 130 of the
decision, the Commissioner attributed some ‘weight’ to the company’s submission on this
point, although it is not clear from the last sentence in paragraph 130 whether this went to Mr
Hill’s credit as a witness, or the consideration of the overall fairness of the dismissal.
[54] There is an arguable case that the Commissioner erred in finding that Mr Hill made
‘different submissions’, in the sense of ‘differing’ or ‘inconsistent’ submissions. However, to
the extent that such an error can be considered an arguable error of fact, we do not consider it
to be arguable that it is a significant error of fact for the purposes of s.400(2). To the extent
that the error could be characterised as a legal or procedural error, we do not believe that there
would be sufficient utility in granting permission to appeal on this basis. We do not consider
that this matter could plausibly have affected the outcome of the Commissioner’s decision.
Conclusion
[55] In our opinion the decision does not disclose an arguable case of error on the part of
the Commissioner sufficient to enliven the public interest for the purposes of permission to
appeal.
[56] We do not consider there to be an arguable case of a significant error of fact in the
Commissioner’s decision, nor does it appear to us that the decision discloses a manifest
injustice, or that there are broader issues of public significance.
[57] We do not consider that it is in the public interest to grant permission to appeal.
Section 400(1) of the FW Act requires that in such circumstances the Commission must not
grant permission to appeal.
[58] Permission to appeal is therefore refused.
PRESIDENT
Appearances:
Mr A Hill represented himself
Mr D Williams on behalf of the Respondent
[2017] FWCFB 4944
12
Hearing details:
2017
Melbourne:
12 July
Printed by authority of the Commonwealth Government Printer
Price code C, PR596287
1 [2017] FWC 1952
2 Paragraph 9 of the decision
3 The termination letter is set out at paragraph 9 of the decision
4 Performance Improvement Notice Form, ‘AH9’ to the Witness statement of Andrew Hill of
2 December 2016, filed in the proceedings before Commissioner Spencer.
5 [2017] FWC 1952 at [100]
6 This is so because on appeal the Commission has power to receive further evidence,
pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ,
Gaudron and Hayne JJ
7 (2011) 192 FCR 78 at [43]
8 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 [69] per Gummow, Hayne, Heydon,
Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others
(2011) 192 FCR 78 at [44] -[46]
9 [2010] FWAFB 5343, 197 IR 266 at [27]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266;
Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth
[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014]
FWCFB 1663 at [28]
12 Paragraph 5 of the notice of appeal
13 See for example H.J. Heinz Company Australia Ltd v Green [2014] FWCFB 6031 at [14] to
[17]
14(1999) 169 ALR 89 at 92 per Moore J
15 See King v Freshmore (Vic) Pty Ltd Print S4213 (King), at [23] and [24], concerning the
corresponding provision in the Workplace Relations Act 1996
16 See King at [24]
17 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at
[291]
18 Paragraph 9 of the decision
19 Paragraph 105 of the decision; see also paragraph 98
[2017] FWCFB 4944
13
20 See paragraph 72 of the decision
21 Paragraph 100
22 See Smits v Roach (2006) 227 CLR 423
23 Paragraph 12 of the notice of appeal
24 Paragraph 15 of the notice of appeal
25 Paragraph 91 of the decision
26 Paragraph 125 of the decision
27 Paragraph 70 of the decision; statement of Mr Collins at [6]-[7]
28 Transcript of proceedings before Commissioner Spencer, 31 January 2017
29 The rule in Browne v Dunn (1893) 6 R. 67, H.L is to the effect that where a party intends to
lead evidence that will contradict or challenge the evidence of an opponent’s witness, it
must put that evidence to the witness in cross-examination. The Commission is not bound
by the rules of evidence but generally has regard to them.
30 Short v Ambulance Victoria [2015] FCAFC 55
31 Paragraph 91 of the decision; see also PN293 and PN331 of Transcript of proceedings
before Commissioner Spencer on 31 January 2017.
32 Transcript of proceedings before the Full Bench, PN166-167
33 Transcript of proceedings before Commissioner Spencer on 31 January 2017, PN292-293
34 Transcript of proceedings before Commissioner Spencer on 16 February 2017, PN141
35 Transcript of proceedings before the Full Bench, PN238-240
36 Transcript of proceedings before Commissioner Spencer on 16 February 2017, PN283
37 See transcript of 16 February 2017 at PN438. Mr Hill’s counsel does challenge what is said
about another ‘alleged concession’ – in respect of the two earlier warnings (at PN452) but
makes no comment about the concession set out above.
38 Transcript of proceedings before Commissioner Spencer on 31 January 2017, PN331
39 Paragraph 92 of the decision
40 Paragraph 77 of the decision
41 Paragraph 133 of the decision
