1
Fair Work Act 2009
s.604 - Appeal of decision
Reliable Petroleum Pty Ltd
v
Mr Fraser Murray
(C2017/4410)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS MELBOURNE, 8 NOVEMBER 2017
Appeal against decision [2017] FWC 3552 of Commissioner Hampton at Adelaide on 20 July
2017 in matter number U2017/1796 - test for harshness - permission to appeal granted -
appeal dismissed.
[1] Reliable Petroleum Pty Ltd (Reliable Petroleum) has applied for permission to appeal
and appealed a decision of Commissioner Hampton issued on 20 July 20171 (Decision).
[2] The application for permission to appeal and the appeal were heard on 21 September
2017. At the hearing, Mr Mark Douglas of counsel appeared with permission for Reliable
Petroleum and Mr Edward Lawrie of the Transport Workers’ Union appeared for Mr Murray.
Decision
[3] Mr Murray was employed by Reliable Petroleum as a fuel tanker driver in and around
Adelaide from October 2015 until his dismissal on 3 February 2017. Mr Murray was
dismissed following an investigation into an incident that occurred on 5 December 2016 in
which Mr Murray was recorded by a fixed speed camera located on the South Eastern
Freeway travelling down from the Adelaide Hills at 88km per hour in a 60km per hour speed
zone.
[4] The Commissioner found that there was a valid reason for Mr Murray’s dismissal and
there were no concerns about procedural unfairness. However, having regard to a range of
“other matters” under s.387(h) of the Fair Work Act 2009 (Cth) (Act), the Commissioner
found that Mr Murray’s dismissal was harsh and unreasonable and he ordered that Mr Murray
be reinstated without any backpay.
1 [2017] FWC 3552
[2017] FWCFB 5843
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 5843
2
Permission to appeal
[5] An appeal under s.604 of the 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.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[6] Section 400 of the Act applies to this appeal. 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.”
[7] In the decision of the Full Court of the Federal Court 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 of the Act as “a stringent one”.3 The task of assessing
whether the public interest test is met is a discretionary one involving a broad value
judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin5 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.”6
[8] 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.7 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.8
2 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17]
per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78; 207 IR 177 (Lawler) at [43]
4 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Lawler at [44] -[46]
5 [2010] FWAFB 5343; (2010) 197 IR 266 (GlaxoSmithKline)
6 Ibid at [27]
7 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth
[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Lawler; New South Wales Bar
Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663; (2014) 241 IR 177 at [28]
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2017] FWCFB 5843
3
[9] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.9
[10] We are satisfied that it is in the public interest to grant permission to appeal in this
matter. We are of the view that the appeal, insofar as it concerns the concept of harshness,
raises important questions of general application. Accordingly, we grant permission to appeal
in relation to grounds 1.1 and 2 of Reliable Petroleum’s Amended Notice of Appeal, but
refuse to grant permission to appeal on the balance of the appeal grounds, for the reasons set
out below.
Grounds of Appeal
[11] The grounds of appeal relied on by Reliable Petroleum10 fall into four categories:
(a) First, the Commissioner incorrectly considered and applied the concept of
harshness as that term is defined in s.385 of the Act;
(b) Secondly, the Commissioner acted outside of the jurisdiction of the
Commission, by in essence purporting to provide declaratory relief, or by
treating the Commission’s reasons as akin to declaratory relief, in relation to and
in support of its findings;
(c) Thirdly, various findings of the Commissioner were not open to him on the
available evidence and the Commissioner did not give sufficient weight or
consideration to critical evidence and admissions which supported the
contentions of Reliable Petroleum; and
(d) Fourthly, the order for reinstatement was not supported by the available
evidence, nor was it appropriate in the circumstances.
Harshness conclusion (Grounds 1.1 and 2)
[12] Reliable Petroleum contends that the Commissioner ought to have found that for the
termination to be “harsh” within the meaning of s.385 of the Act, it would have required the
Commissioner (based on the facts both agreed by consent and led by way of oral and tendered
evidence) to find that the termination of employment was outside the reasonable and lawfully
available spectrum of responses available to Reliable Petroleum. In support of this contention,
Reliable Petroleum relies in part on Walton v Mermaid Dry Cleaners Pty Ltd11, particularly
the notion that it is not the Commission’s function to stand in the shoes of the employer and
decide whether or not the decision made by the employer was a decision that would be made
by the Commission.
[13] Walton v Mermaid Dry Cleaners was decided by Justice Moore in 1996, sitting in the
Industrial Relations Court of Australia. Mr Walton claimed compensation in respect of what
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
10 Amended Notice of Appeal dated 31 August 2017; Reliable Petroleum’s written submissions dated 31 August 2017 at [5]
11 (1996) 142 ALR 681 at 685, cited with approval in BHP Coal Pty Ltd v Schmidt [2016] FWCFB 1540 at [9] and Gregory v
Qantas Airways Limited[2015] FWC 1154 at [83]
[2017] FWCFB 5843
4
he contended was an unlawful termination under the Industrial Relations Act 1988 (Cth) (IR
Act). One of the grounds of unlawfulness alleged by Mr Walton was that the termination of
his employment was not for a valid reason. At that time, s.170DE of the IR Act was in the
following terms:
“(1) An employer must not terminate an employee’s employment unless there is a
valid reason, or valid reasons, connected with the employee’s capacity or
conduct or based on the operational requirements of the undertaking,
establishment or service.
(2) A reason is not valid if, having regard to the employee's capacity and conduct
and those operational requirements, the termination is harsh, unjust or
unreasonable. This subsection does not limit the cases where a reason may be
taken not to be valid.”
[14] Justice Moore made the following findings in relation to Mr Walton’s conduct:
Mr Walton was a long term employee in a dry cleaning business. New owners
came into the business and instructed him to prepare plant and equipment
maintenance records for the plant and equipment used in the dry cleaning business.
Mr Walton declined to do so on the basis that he had looked after the plant and
equipment in the business for about 20 years and he did not see the need to “put
down on paper” maintenance records. His Honour stated that he understood how
an employee such as Mr Walton who had been working in a business for 35 years
might have views about the appropriate way of conducting the business and may
need to be persuaded that some change was necessary. However, his Honour was
satisfied that Mr Walton’s attitude, while understandable, was a matter to which
the employer was entitled to pay regard in deciding whether to terminate his
employment; and
Mr Walton was obliged in his supervisory role to inform his employer of any
matter concerning another staff member that might lead the other staff member to
terminate their employment with the employer. Mr Walton was aware that another
long standing and valued employee was dissatisfied with her employment with
Mermaid Dry Cleaners but he did not inform his employer. Justice Moore held that
the employer was entitled to rely on this conduct on the part of Mr Walton.
[15] Justice Moore’s conclusion in relation to whether there was a valid reason for the
termination of Mr Walton’s employment was as follows (at 685):
“…Mr Walton had, and I repeat, probably for understandable reasons, a view about
the way the business should be conducted, but that did not accord with the view of Ms
Harris as to how the business should be conducted. The discord between those
respective views resulted in a circumstance where the employer was entitled to adopt
the view that the conduct of Mr Walton was such that his services could be terminated.
In my opinion, the evidence does establish that the employer had a valid reason for
terminating the employment of Mr Walton. I should, however, make plain - and this
had been made plain in many cases decided by this court - that it is not the court’s
function to stand in the shoes of the employer and decide whether or not the decision
made by the employer was a decision that would be made by the court but rather it is
[2017] FWCFB 5843
5
for the court to assess whether the employer had a valid reason connected with the
employee’s capacity or conduct, and in these proceedings I have concluded it did.”
[16] It is clear from the foregoing analysis that the statement made by Justice Moore in
Walton v Mermaid Dry Cleaners concerning standing in the shoes of the employer related to
the question of whether there was a valid reason for the dismissal connected with the
employee’s capacity or conduct. Justice Moore did not make the statement concerning
standing in the shoes of the employer in relation to any assessment as to whether the
termination of employment was harsh.
[17] Further, the test posited by Reliable Petroleum for harshness, namely the dismissal
must be outside the reasonable and lawfully available spectrum of responses available to the
employer in order to be harsh, is contrary to established authority. The question of whether a
dismissal is “harsh” involves the exercise of discretion.12 The discretion is broad and is
constrained only by the requirement to take into account the matters specified in s.387(a) to
(h) of the Act, including any matters the decision-maker considers to be relevant (s.387(h)).13
Ultimately, the determination of whether a dismissal is “harsh” requires the making of a broad
evaluative judgment by the decision-maker.14
[18] We reject the submission made by Reliable Petroleum that the test posited by it for
harshness is supported by the following sentence in a decision by the Full Bench in DP World
Sydney Limited v Lambley:15
“Only if the employer’s disciplinary actions are judged to lie outside the description of
a reasonable and just response to the relevant conduct and are disproportionate, should
a finding of unreasonableness or injustice be made.”
[19] This observation by the Full Bench relates to whether a dismissal is unjust or
unreasonable, not whether it is harsh. In many cases the three concepts of harsh, unjust and
unreasonable will overlap, but they are different and may give rise to different findings.16 In
Byrne,17 Justices Gummow and McHugh discussed two senses in which a dismissal may be
“harsh”. In particular, their Honours discussed the notion that a dismissal may be “harsh it its
consequences for the personal and economic situation of the employee” or “because it is
disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[20] In addition, the observation by the Full Bench in DP World Sydney Limited v Lambley
concerning “unreasonableness or injustice” does not, in our view, establish a “decision
rule”.18 It remains necessary in each case for the decision-maker to have regard to all relevant
circumstances and make a value judgment as to whether the dismissal was harsh, unjust
and/or unreasonable.
12 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; 321 ALR 224 (Harbour City Ferries) at [86]
13 Mt Arthur Coal Pty Ltd v Goodall [2016] FWCFB 5492 (Goodall) at [40]; B, C and D v Australian Postal Corporation T/A
Australia Post at [2013] FWCFB 6191 [41]-[60]
14 Harbour City Ferries at [86] & [107]; Goodall at [40]
15 [2012] FWAFB 4810 at [26]
16 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne) per Gummow and McHugh JJ at 465 [128]
17 At 465 [128]
18 Lambley v DP World Sydney Limited [2013] FCA 4 at [36]-[37]
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb6191.htm
[2017] FWCFB 5843
6
[21] In an appeal from a discretionary decision such as whether a dismissal was “harsh”, an
appellate tribunal is only authorised to set aside the decision if error has been demonstrated on
the part of the decision-maker. Error must usually be of one of the types identified in House v
The King.19 It is not enough that the appellate tribunal would have decided the discretionary
decision at first instance in a different way. Error of the requisite kind must be
demonstrated.20
[22] We do not accept Reliable Petroleum’s contention21 that the Commissioner had regard
to an irrelevant consideration by finding, and placing emphasis on, the fact that Mr Murray
appeared to slow down after the speed camera. The findings made by the Commissioner in
relation to this issue were that “Mr Murray’s truck was above the speed limit for
approximately ten seconds at the point of the speed camera and he was travelling at the
correct speed within a further 20 seconds or so”.22 These findings were relevant to the nature
and extent of the misconduct in which Mr Murray engaged; they bore upon the gravity of the
conduct and had to be weighed in the mix in according both parties a fair go all around and
forming a judgment about whether the dismissal was harsh in all the circumstance.
[23] In our view, the Commissioner took into account relevant matters, did not allow
extraneous or irrelevant matters to guide or affect him, did not act on a wrong principle, and
did not mistake the facts. Nor was the Commissioner’s evaluative judgment that the dismissal
was “harsh” unreasonable or plainly unjust. The Commissioner weighed the gravity of the
misconduct in which Mr Murray engaged against a range of matters23 and concluded that his
dismissal was “in the context of all the circumstances” harsh and unreasonable.24 We do not
accept Reliable Petroleum’s contention that the misconduct engaged in by Mr Murray was “so
serious, so sufficiently grave, and that the actual or potential consequences to the Appellant
were and are potentially so serious, that a finding of harshness cannot be a reasonable finding
open to the Commission”.25 Having regard to all the relevant circumstances, we consider it
was open for the Commissioner to form the value judgment that Mr Murray’s dismissal was
harsh. It is not enough that an appellate tribunal such as this Full Bench would or might have
arrived at a different conclusion.26
[24] There is one further matter upon which we wish to make some observations in relation
to this appeal insofar as it concerns the Commissioner’s finding that Mr Murray’s dismissal
was harsh. In oral argument,27 counsel for Reliable Petroleum made reference to, and relied
on, paragraph [80] of the Decision, in which reference was made to the following part of the
Full Bench’s decision in Parmalat Food Products Pty Ltd v Mr Kasian Wililo (Parmalat):28
19 (1936) 55 CLR 499 at 504-5
20 Norbis v Norbis (1979) 144 CLR 513 at 537
21 Reliable Petroleum’s written submissions dated 31 August 2017 at [14]
22 Decision at [30]
23 Decision at [73]-[77]
24 Decision at [77]
25 Reliable Petroleum’s submissions as to further authorities dated 28 September 2017 at [8]; see, also, ground 2 of the
Amended Notice of Appeal
26 Gronow v Gronow (1979) 144 CLR 513 at 519
27 This matter was also addressed in Reliable Petroleum’s submissions as to further authorities dated 28 September 2017
28 [2011] FWAFB 1166
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281979%29%20144%20CLR%20513
[2017] FWCFB 5843
7
“[24]… The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[25] Justice Buchanan, with whom Chief Justice Alsop and Justice Siopis agreed,
considered this issue in Harbour City Ferries:
“[100] Statements of principle often serve a useful and legitimate function. They
provide a body of appellate guidance against which to test suggestions of error in
future cases. They cannot substitute for, or alter, a statutory prescription but they are
not jurisdictionally flawed unless they are given (or assume) the status of a ‘rule’ or
are general pronouncements not related sufficiently to the facts of the particular case
(see, by way of example of the principle in the exercise of federal appellate judicial
discretion, Wong v R [2001] HCA 64; (2001) 207 CLR 584 per Gaudron, Gummow
and Hayne JJ at [83]). It is arguable that the statement in Parmalat which I set out
earlier, infringed this restriction. It appears to be a dogmatic pronouncement if it was
intended as a general rule. It could not fetter the broad evaluative task assigned by the
FW Act using the principles I have discussed of ‘a fair go all round’.”
[26] We agree with these observations by Justice Buchanan.29 The statute does not require
the finding of “significant mitigating factors” to justify a conclusion that a procedurally fair
dismissal for a valid reason was harsh. Whether any particular dismissal is “harsh” requires
the decision-maker to consider all the relevant circumstances and make a broad evaluative
judgment.30
Declaratory relief
[27] Grounds 1.2 and 1.3 of the Amended Notice of Appeal relate to Reliable Petroleum’s
contention that the Commissioner acted outside his jurisdiction by purporting to issue legal
determinations in the nature of a declaratory judgment, rendering the entire original decision
invalid. Reliable Petroleum contends that the purported declaratory relief formed the basis on
which the Commissioner reached his decision as to harshness and remedy.
[28] After finding that Mr Murray’s dismissal was harsh and unreasonable, the
Commissioner considered the question of remedy and concluded that reinstatement of Mr
Murray was appropriate.31 One the arguments made by Reliable Petroleum against
reinstatement was that it would give rise to a risk of future adverse publicity for Reliable
Petroleum. The Commissioner addressed this submission in paragraph [109] of the Decision:
“[109] To the extent that the risk of future adverse publicity for Reliable Petroleum is
relevant to this discretion, the Commission has made an objective assessment about
29 See, too, the criticism of this purported principle by Justice Katzman in Lambley v DP World Sydney Limited [2013] FCA
4 at [28]-[35]
30 Harbour City Ferries at [86] & [107]; Goodall at [40]
31 Decision at [105]
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282001%29%20207%20CLR%20584
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2001/64.html
[2017] FWCFB 5843
8
the conduct of Mr Murray and of the future risk associated with his reinstatement.
Further, the factors mentioned immediately above represent a significant practical
sanction which demonstrates that the conduct has not been condoned in any sense.”
[29] Reliable Petroleum contends that the Commissioner erred by finding that its concerns
in relation to exposure to adverse publicity, as a consequence of Mr Murray’s reinstatement,
were answered or addressed by virtue of the Commission’s publication of its reasons in the
terms given. The reasons themselves, so it is contended by Reliable Petroleum, are thereby
elevated wrongly to the status of a relevant consideration which influenced the
Commissioner’s exercise of his discretion as to the relief granted.
[30] Reliable Petroleum also contends that:
(a) In paragraph [105] of the Decision the Commissioner states “[it was] satisfied that
Mr Murray could return to productively [sic] and appropriately perform the duties
of a heavy vehicle driver … His long history as a driver and the absence of any
incidents before or after the speeding incident are strong indicators that Mr Murray
will not ‘reoffend’.” It is alleged this finding was not open to the Commission on
the available evidence, was speculative, was apparently intended to operate in the
nature of a declaration, and was declared on the basis that Reliable Petroleum’s
reputation would not be adversely affected or harmed;
(b) In paragraph [106] of the Decision the Commissioner states that “reinstatement
will not have the negative consequences feared by Mr Conti”. It is alleged this
finding was not open to the Commissioner on the available evidence, was
speculative in all the circumstances (including the admission by Mr Murray that he
effectively had no justification for the misconduct) and was apparently intended to
operate in the nature of a declaration;
(c) In paragraph [108] of the Decision the Commissioner states “the safety culture [of
Reliable Petroleum] will not be undermined” by Mr Murray’s reinstatement. It is
alleged this finding was not open to the Commission on the available evidence,
was speculative, was not a particular matter raised or agitated during proceedings,
and was apparently intended to operate in the nature of declaration; and
(d) In paragraph [109] of the Decision the Commissioner states that he “has made an
objective assessment about the conduct of Mr Murray in the future risk associated
with his reinstatement”. It is alleged this finding was contrary to the available
evidence, was speculative, and was apparently intended to operate in the nature of
a declaration.
[31] We are not persuaded there is an arguable case of error in relation to grounds 1.2 - 1.3
of the Amended Notice of Appeal. There is no dispute that the Commission, as an arbitral
body, cannot grant declaratory relief.32 However, we are not persuaded there is an arguable
case that the Commissioner purported to issue legal determinations in the nature of
declarations. The Commissioner was required to determine whether reinstatement was an
appropriate remedy. In so determining, the Commissioner was required to, and did, make
appropriate findings in relation to whether a sufficient level of trust and confidence could be
32 AB v Tabcorp Holdings Limited [2015] FWCFB 523 at [11]
[2017] FWCFB 5843
9
restored to make the relationship viable and productive, including the likelihood of certain
conduct being repeated in the future and the risk of future adverse publicity for Reliable
Petroleum. The Commissioner also gave reasons to support his findings.
Significant errors of fact
[32] Grounds 1.4 and 1.5 of the Amended Notice of Appeal allege a range of serious errors
of fact and failure to have regard to relevant matters. These matters were also addressed in
Reliable Petroleum’s written and oral submissions.33
[33] We have considered these grounds of appeal and the written and oral submissions
made in support of them. We are not persuaded they disclose an arguable case of error.
[34] One of the alleged errors in these grounds of appeal is that the Commissioner’s
findings fail to express, and by implication such matters were not given appropriate
consideration by the Commissioner, critical evidence tendered by Reliable Petroleum and
accepted by Mr Murray, that go directly to the seriousness of Mr Murray’s conduct, including
the particulars or the nine different procedures, regulations, contracts, industrial instruments
and Acts of Parliament that Mr Murray contravened through gross inadvertence. There is no
dispute that Mr Murray was exceeding the speed limit by 28km/hour at the time he drove past
the speed camera. The Commissioner assessed Mr Murray’s conduct to be “a serious
oversight in all of the circumstances” and “a serious breach of his various duties as a
driver”.34 That the Commissioner did not set out in the Decision the terms of the nine
different duties or obligations Mr Murray contravened by driving at 28km/hour more than the
speed limit does not, in our view, amount to an arguable case of error. The Commissioner
plainly understood and appreciated the gravity of Mr Murray’s misconduct, and weighed it
together with all the other relevant circumstances in forming his evaluative judgment that the
dismissal was harsh and unreasonable.
Reinstatement
[35] Ground 3 of the Amended Notice of Appeal concerns the order for reinstatement made
by the Commissioner. Reliable Petroleum contends that:
(a) the order for reinstatement was not supported by the available evidence, nor was it
appropriate in the circumstances;
(b) the Commissioner erred in so far as he conflated his findings as to Reliable
Petroleum’s concerns as to trust and confidence with the appropriateness of
reinstatement. In particular, Reliable Petroleum’s concessions, given in evidence, to
the effect that reinstatement could be accommodated from an operational perspective,
are, so it is submitted, a different consideration as to whether the misconduct was
serious enough to irretrievably destroy the requisite relationship of trust and
confidence. The latter consideration is a question of law. The former consideration
was a question of operational practicality; and
33 Reliable Petroleum’s written submissions dated 31 August 2017 at [48]-[58]
34 Decision at [58]
[2017] FWCFB 5843
10
(c) the Commissioner erred in not finding that the conduct of Mr Murray was of sufficient
gravity so as to render reinstatement an inappropriate remedy.
[36] We are not persuaded any of the arguments made by Reliable Petroleum in relation to
the Commissioner’s finding that reinstatement was appropriate disclose an arguable case of
error. The Commissioner approached the question of reinstatement in an orthodox manner,
applied the correct principles, had regard to relevant considerations including whether a
sufficient level of trust and confidence could be restored to the employment relationship to
make it viable and productive, did not take into account irrelevant considerations, and did not
mistake the facts. No arguable case of error has been made out in relation to the
Commissioner’s exercise of discretion to order that Mr Murray be reinstated, consequent upon
the finding that his dismissal was harsh and unreasonable.
[37] Save for grounds 1.1 and 2 of the Amended Notice of Appeal, the other grounds of
appeal relied on by Reliable Petroleum do not attract the public interest. In addition to those
other grounds of appeal not disclosing an arguable case of error, they do not raise issues of
importance or general application, there is not a diversity of decisions at first instance that
require guidance from an appellate tribunal, the Decision at first instance does not manifest an
injustice, nor is the result counter intuitive, nor do the legal principles applied appear
disharmonious when compared with other recent decisions dealing with similar matters.
Conclusion
[38] For the reasons set out above:
(a) permission to appeal is granted in relation to grounds 1.1 and 2 of the Amended
Notice of Appeal;
(b) otherwise permission to appeal is refused; and
(c) the appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Douglas, counsel, with Mr M Kay, solicitor, for the appellant.
Mr E Lawrie for the respondent.
THE FAIR WORK COMMISSION SEAL OF
[2017] FWCFB 5843
11
Hearing details:
2017.
Melbourne (via Video Link):
September 21.
Written submissions:
Appellant’s Submissions dated 31 August and 28 September 2017.
Respondent’s Submissions dated 15 September 2017.
Printed by authority of the Commonwealth Government Printer
Price code C, PR597533
