1
Fair Work Act 2009
s.604—Appeal of decision
The Castaway Paper Products Co Pty Ltd
v
Saso Miloskovski
(C2024/35)
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT BEAUMONT
DEPUTY PRESIDENT ROBERTS
BRISBANE, 28 MARCH 2024
Appeal against decision [[2023] FWC 3462] of Commissioner Crawford at Sydney on 22
December 2023 in matter number U2023/6231.
Background and outcome
[1] The Castaway Paper Products Co Pty Ltd (the Appellant/Castaway Paper) has lodged
an appeal under s. 604 of the Fair Work Act 2009 (the Act), for which permission is required,
against a decision of Commissioner Crawford issued on 22 December 20231 (Decision).
[2] Mr Miloskovski (the Respondent/Mr Miloskovski) commenced employment with
Castaway Paper on 16 August 2010 as a machine operator working in the industry of
manufacturing paper products and packaging. On 28 June 2023, he was dismissed for serious
misconduct and whilst the Commissioner considered there had been a valid reason for
Mr Miloskovski’s dismissal, he decided that Mr Miloskovski’s conduct did not warrant
summary dismissal. The Commissioner considered reinstatement inappropriate and ordered an
award of compensation.
[3] The appeal was lodged on 4 January 2024. In the Notice of Appeal (Notice), Castaway
Paper sought a stay of the order made by the Commissioner, which was granted by consent of
the parties on 12 January 2024, pending the determination of the appeal.2
[4] The appeal was listed for hearing on 13 March 2024 in relation to both permission to
appeal and the merits. The parties were self-represented.
[5] For the reasons that follow, we have decided it is not in the public interest to grant
Castaway Paper’s application for permission to appeal. Permission to appeal is therefore
refused and the stay order3 issued on 12 January 2024 is set aside.
[2024] FWCFB 195
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3462.pdf
[2024] FWCFB 195
2
Permission to appeal
[6] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal of the Act.
Section 400(1) of the Act provides that permission to appeal must not be granted from a decision
made under Part 3-2 unless the Commission considers that it is in the public interest to do so.
Therefore, the fact that the Member at first instance made an error is not necessarily a sufficient
basis to grant permission to appeal.4
[7] In unfair dismissal matters, appeals on a question of fact can only be made on the ground
that the decision involved a ‘significant error of fact’ (s. 400(2)). Section 400 of the Act
manifests an intention that the threshold for a grant of permission to appeal is higher in respect
of unfair dismissal appeals than the threshold pertaining to appeals generally. It follows that the
test set out in s. 400 has been described as ‘a stringent one’.5 To be characterised as significant,
a factual error must vitiate the ultimate exercise of discretion.6 In a misconduct case, a
significant fact is foundational to a conclusion in relation to whether misconduct took place.7
[8] The decision under appeal is of a discretionary nature. Usually, such a decision can only
be successfully challenged on appeal if it is shown that the discretion was not exercised
correctly. It is not open to an appeal bench to substitute its view on the matters that fell for
determination before the Commissioner, in the absence of error of an appealable nature in the
decision at first instance.
[9] The task of assessing whether the public interest test is met is discretionary and involves
a broad value judgment. The public interest might be attracted where:
a) a matter raises issues of importance and general application;
b) there is a diversity of decisions at first instance so that guidance from an appellate
court is required;
c) the decision at first instance manifests an injustice;
d) the result is counter intuitive; or
e) the legal principles applied appear disharmonious when compared with other recent
decisions dealing with similar matters.8
Decision under appeal
[10] Turning to the Decision, having determined that Mr Miloskovski was protected from
unfair dismissal at paragraph [29] of the Decision, the Commissioner summarised his findings
as follows:
(i) Mr Miloskovski was issued with a written warning on 21 February 2023 for breaching
Castaway Paper’s policy regarding the use of mobile phones in the workplace.
(ii) Mr Miloskovski was late to return from his lunch break on 23 June 2023 and did not
have a reasonable excuse for being late.
(iii) Mr Miloskovski was initially holding his phone when he returned to the factory floor,
but he had put it away by the time he commenced working on the machinery.
[2024] FWCFB 195
3
(iv) A discussion occurred between Mr Miloskovski, Mr Scaccabarrozzi and Mr Erler after
Mr Miloskovski returned from his lunch break. Mr Miloskovski was reprimanded for
being late and told he needed to attend a meeting with Mr Camp and his supervisors
later that afternoon. The discussion upset Mr Miloskovski and an argument of some
degree occurred between Mr Miloskovski and Mr Scaccabarrozzi. Having viewed the
video footage, I do not consider either party deliberately attempted to threaten the other
party physically.
(v) Mr Miloskovski did not comply with several directions from Mr Scaccabarrozzi to
return to his work-station and instead spoke to other co- workers about the conflict and
also about whether he could bring a support person to the meeting with Mr Camp and
his supervisors. This conduct meant less productive work was performed by
Mr Miloskovski and the other employees he spoke with, albeit for a reasonably brief
period.
(vi) Mr Miloskovski had no documented performance or conduct issues prior to 2023 and
he was recognized as an experienced and competent employee.
(vii) A meeting was held on 23 June 2023 between Mr Miloskovski, Mr Camp,
Mr Scaccabarrozzi and Mr Erler to discuss Mr Miloskovski returning late from his
lunch break. During this meeting, Mr Miloskovski raised concerns about
Mr Scaccabarrozzi’s behaviour towards him earlier that day and alleged he felt
threatened by Mr Scaccabarrozzi. Mr Miloskovski requested access to the video footage
so he could review what had occurred. Mr Miloskovski was permitted to have a support
person present at this meeting.
(viii) Castaway Paper did not intend to dismiss Mr Miloskovski for returning late from his
lunch break but may have imposed some other punishment.
(ix) Mr Camp and others reviewed the footage of the events on the factory floor later that
day. They did not identify any threatening conduct from Mr Scaccabarrozzi, but did
observe:
• Mr Miloskovski holding his phone on the factory floor in breach of
company policy;
• Mr Miloskovski was later than he had initially claimed; and
• Mr Miloskovski was away from his machine for a total of around 75 minutes
comprising his break and the time he was talking to Mr Scaccabarrozzi and
other employees.
(x) After becoming aware of the further issues, Mr Camp arranged a further meeting with
Mr Miloskovski on 26 June 2023. Mr Miloskovski attended with a support person.
During this meeting, Mr Camp and others outlined the further issues they had identified
with Mr Miloskovski’s behaviour on 23 June 2023 after reviewing the video footage.
Mr Camp and others also explained that the footage did not indicate Mr Scaccabarrozzi
had physically threatened Mr Miloskovski.
(xi) Mr Miloskovski was not shown the video footage, despite his earlier request, and did
not see the footage until it was filed by Castaway Paper as part of this case.
[2024] FWCFB 195
4
(xii) On 28 June 2023, Mr Miloskovski attended a further meeting with Mr Camp and others
where he was summarily dismissed and provided with a termination letter.
Mr Miloskovski did not bring a support person, but this was offered to him.
[11] At paragraphs [30]–[32] of the Decision, the Commissioner addressed the weight to be
accorded to a prior warning, whether there was sufficient evidence that Castaway Paper was
looking for reasons to dismiss Mr Miloskovski, and whether Mr Scaccabarrozzi had engaged
in physically intimidating conduct toward Mr Miloskovski.
[12] The Commissioner found no weight could be attributed to the warning of
17 January 2023, that there was insufficient evidence to support the proposition that Castaway
Paper was looking for reasons to dismiss Mr Miloskovski and that whilst Mr Miloskovski had
accused Mr Scaccabarrozzi of threatening behaviour, the evidence did not support such a
finding.
[13] At paragraphs [33]–[36] of the Decision, in relation to whether there was a valid reason
for dismissal, the Commissioner found there was a valid reason for Mr Miloskovski’s dismissal,
stating that it was the combined conduct that Mr Miloskovski had engaged in on 23 June 2023
that provided the valid reason. That combined conduct included Mr Miloskovski having carried
his mobile phone on the factory floor, being late in returning from his lunch break and non-
compliance with directions from his supervisor.
[14] At paragraphs [38] and [41] respectively, the Commissioner concluded that prior to any
decision to terminate his employment, Mr Miloskovski was notified of the reasons for his
dismissal and was provided with an opportunity to respond to such reasons. The Commissioner
concluded at paragraph [43] that Mr Miloskovski was offered an opportunity to bring a support
person to the disciplinary meeting and as Mr Miloskovski’s performance was not in issue,
whether he was warned about unsatisfactory performance was not a relevant consideration.
[15] At paragraphs [45] and [46], the Commissioner noted that whilst Castaway Paper was a
reasonably small business and there was an absence of a dedicated human resources
management manager, he considered the procedures followed in effecting the dismissal were
generally appropriate and therefore concluded that the factors in ss. 387(f) and (g) of the Act,
were neutral.
[16] As was appropriate, the Commissioner identified at paragraphs [35] and [49] that the
summary dismissal of Mr Miloskovski was a matter to be considered under s. 387(h) of the
Act9 and that a conclusion that a summary dismissal was disproportionate to the gravity of the
misconduct may support that the dismissal was harsh.10
[17] In relation to any other relevant matters in determining whether the dismissal was harsh,
unjust, or unreasonable, at paragraphs [48]–[51] the Commissioner considered: (a)
Mr Miloskovski’s length of service (13 years); (b) his unblemished service record (with the
exception of the last six months of his employment), (c) Mr Miloskovski spoke English as a
second language; (d) the failure to provide Mr Miloskovski with an opportunity to view the
video footage; and (e) Mr Miloskovski had been summarily dismissed.
[18] Regarding the summary dismissal of Mr Miloskovski, at paragraph [49], the
Commissioner found that Mr Miloskovski’s conduct on 23 June 2023 did not justify his
[2024] FWCFB 195
5
summary dismissal, noting at paragraph [54] that whilst he had found a valid reason for
dismissal and that procedural fairness had generally been provided to Mr Miloskovski, the other
factors identified by the Commissioner rendered the dismissal harsh in all the circumstances.
[19] Turning to remedy, at paragraph [58], the Commissioner concluded that reinstatement
was inappropriate given Mr Miloskovski did not seek that remedy, but considered, at paragraph
[61], that an order for payment of compensation was warranted.
[20] At paragraph [62], the Commissioner identified the circumstances to be taken into
account when determining an amount of compensation, and at paragraphs [64]–[83] he
considered those circumstances. Regarding the Commissioner’s consideration of ss. 392(2)(a),
(b), and (d), we consider he adopted an orthodox approach.
[21] At paragraph [64]–[65], the Commissioner reasoned that an order for compensation
would not have any significant effect on the Castaway Paper’s viability, and at paragraph [67]
the Commissioner expressed a view that Mr Miloskovski’s length of service may support
increasing the amount of compensation ordered. With respect to mitigating loss, the
Commissioner found at paragraph [73] that whilst Mr Miloskovski had failed to mitigate his
loss, a deduction was unwarranted given that Mr Miloskovski had not fully recovered from his
injuries for which he was in receipt of motor vehicle insurance payments.
[22] Regarding the Commissioner’s consideration of s. 392(2)(c) of the Act, at paragraph
[69] of the Decision, the Commissioner outlined his finding that Mr Miloskovski, but for his
dismissal, would have remained in the employment of Castaway Paper for the period of 28 June
2023 until 28 December 2023, as follows:
“[69] Mr Miloskovski worked at Castaway Paper for over 13 years and indicated he planned to work
there until retirement. However, there is evidence of him having increasing issues with superiors during
2023. If Mr Miloskovski was not dismissed on 28 June 2023, a lesser punishment would likely have been
imposed. Given Mr Miloskovski was already on a written warning, I suspect a final written warning
would have been issued. I consider it reasonably likely Mr Miloskovski would have continued clashing
with superiors after 28 June 2023 and that his employment was likely to end within approximately the
next six months. I find Mr Miloskovski’s employment was likely to continue until 28 December 2023.”
[23] At paragraph [86], the Commissioner considered the first step in the ‘Sprigg formula’
as articulated in the decision of Sprigg v Paul’s Licenced Festival Supermarkets (Sprigg)11 and
later in the Bowden v Ottrey Homes Cobram and District Retirement Villages,12 and reiterated
that Mr Miloskovski would have remained in employment until 28 December 2023 (for six
months).
[24] At paragraph [94] of the Decision, the Commissioner acknowledged he had found there
was a valid reason for Mr Miloskovski’s dismissal and reduced the compensatory amount by
5%, and at paragraph [100] the Commissioner observed that given he had found
Mr Miloskovski should not have been summarily dismissed, the effect of the order he was
proposing was such that Mr Miloskovski would not receive an amount of compensation
equivalent to payment in lieu of notice which, in the Commissioner’s view, Mr Miloskovski
should have received.
[25] In respect of the remuneration earned by Mr Miloskovski from employment or other
work during the period between his dismissal and the making of the order for compensation,
[2024] FWCFB 195
6
the Commissioner grappled with the somewhat unusual circumstances where 80% of
Mr Miloskovski’s regular wage with Castaway Paper had been paid since his dismissal. At
paragraph [79], the Commissioner found, on balance, that the third party insurance payments
made to Mr Miloskovski constituted ‘remuneration’ from ‘employment or other work’ for the
purposes of s. 392 of the Act. The Commissioner considered the compulsory third party
insurance payments closer to workers’ compensation payment than social security payments.
The Commissioner therefore deducted from the compensation, the amount of $24,788.93 paid
to Mr Miloskovski by way of compulsory third party insurance. Having observed that amount
fell shy of what Mr Miloskovski would have received had he been dismissed with notice, the
Commissioner increased the compensatory amount to $10,000.00 gross plus $1,100.00 in
superannuation.
Appeal grounds
[26] In short, Castaway Paper advances several grounds in the Notice most of which appear
to be premised on the contention that the Commissioner failed to consider and make findings
about, or otherwise consider, significant aspects of the evidence upon which Castaway Paper
relied in its case. The grounds can be distilled in the following terms:
1. the Commissioner did not consider Mr Miloskovski’s previous insubordination and
refusal to work which had formed part of Mr Miloskovski’s attitudinal problems and
were relied upon by Castaway Paper as reasons for Mr Miloskovski’s dismissal.
Instead, the Commissioner’s Decision was mainly based on video recordings;
2. the Commissioner did not accord due weight to Mr Miloskovski’s false statements
that he was about to suffer physical abuse and harassment from his supervisor, and
the Commissioner failed to consider that Mr Miloskovski produced fraudulent
documents;
3. the Commissioner considered the periods in which Mr Miloskovski distracted
colleagues and took them out of the production line to be a reasonably brief period
when the evidence presented suggested otherwise;
4. at paragraph [29] of the Decision, the Commissioner stated that Mr Miloskovski had
no performance issues prior to 2023 and in doing so failed to evaluate the evidence
in light of the period before and after the ‘accident’;
5. the Commissioner made an erroneous finding when accepting that the procedure
adopted in respect of the dismissal was correct but that Mr Miloskovski’s conduct
did not justify summary dismissal, when Mr Miloskovski had refused to carry out
lawful and reasonable instructions consistent with the employment contract and had
made false allegations;
6. the Commissioner gave undue weight to Mr Miloskovski’s 13 years of service when
determining the dismissal was unfair, particularly given Mr Miloskovski’s
misconduct, including returning late to work after lunch, using a mobile phone on
premises (notwithstanding a prior warning for the same infringement), and
distracting other employees; and
[2024] FWCFB 195
7
7. the Commissioner failed to consider in his assessment of whether Mr Miloskovski’s
conduct constituted serious misconduct that Mr Miloskovski’s failure to follow
lawful and reasonable instructions generated a risk of producing defective products,
which required the closure of the afternoon shift due to quality issues.
Consideration
[27] Before turning to a detailed examination of the grounds of appeal, we make the
following observation. Notwithstanding the Commissioner’s Directions to the parties to file
witness statements on 3 October 2023 and by the amended Directions issued on 23 November
2023, Castaway Paper did not do so. That Castaway Paper did not file witness statements
appears to have provided sound basis for the Commissioner to identify Castaway’s Paper’s
reasons for Mr Miloskovski’s summary dismissal by reference to the Form F3 in addition to the
letter of termination. It was at all times open to the Commissioner to have adopted this approach
in circumstances where evidence was not provided in the form of witness statements, in
accordance with Directions.
Serious misconduct and harshness – s. 387(h)
[28] As to the issues that have been raised on appeal, no issue appears to arise regarding the
finding there was a valid reason for Mr Miloskovski’s dismissal, as detailed in the reasons at
paragraph [36] of the Decision. The Notice appears to focus on a perceived failure by the
Commissioner to fulsomely take into account Castaway Paper’s evidentiary case in respect of
Mr Miloskovski’s summary dismissal.
[29] The expression ‘summary dismissal’ has a reasonably well understood meaning at law,
referring to a dismissal without notice arising from a breach of an essential term of the
employment contract, a serious breach of a non-essential term of the contract, or conduct
manifesting an intention not to be bound by the contract in the future on the part of the
employee.13 It is accepted that it is not the case that ‘serious misconduct’ operates as a fixed
standard for the determination of the type of conduct by the employee which may warrant
summary dismissal,14 and that there is no rule of law that defines the degree of misconduct
which would justify dismissal without notice, the touchstone being whether the conduct was of
such a grave nature as to be repugnant to the employment relationship.15
[30] An assessment of the degree of seriousness of misconduct which is found to constitute
a valid reason for dismissal for the purposes of s. 387(a) will be a relevant matter under
s. 387(h). A dismissal will be found to be harsh because of ‘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’.16 It is well-established that a dismissal
may be found to be harsh by reason of matters taken into account pursuant to s. 387(h),
notwithstanding that there is a valid reason for dismissal. Matters include those raised in
mitigation of misconduct which has been found to have occurred.17
[31] As we have observed, the Commissioner correctly identified that the summary dismissal
of Mr Miloskovski was a matter to be considered under s. 387(h) of the Act18 and that a
conclusion that a summary dismissal was disproportionate to the gravity of the misconduct may
[2024] FWCFB 195
8
support that the dismissal was harsh.19 In general terms, the Commissioner’s reasoning
regarding the consideration of factors in ss 387(a) to (h) demonstrates the adoption of an
established approach in which no error is to be found.
[32] In relation to appeal ground one, Castaway Paper contends that the Commissioner
premised his Decision mainly on video recordings and failed to consider Mr Miloskovski’s
previous insubordination and refusal to work which had formed part of his attitudinal problems
and were relied upon by Castaway Paper as reasons for Mr Miloskovski’s dismissal. Appeal
grounds two, three, four, five and seven, similarly direct criticism at the Commissioner’s
consideration of Mr Miloskovski’s misconduct, presumedly under the auspices of s. 387(h) of
the Act.
[33] Regarding the first appeal ground, Castaway relied on several incidences of purported
insubordination.
[34] The first was Mr Miloskovski’s purported misconduct on 17 January 2023. At paragraph
[30] of the Decision, the Commissioner found that in respect of this alleged behaviour, it was
not clear whether Mr Miloskovski was verbally warned about his failure to follow the directions
provided on 17 January 2023. The Commissioner identified that the record of the verbal
warning had not been shown to Mr Miloskovski at the time it was purportedly given, and Mr
Miloskovski disputed its contents. That the finding made was that significant weight could not
be afforded to the verbal warning, was, in our view, clearly correct. It is evident that the verbal
warning was of little probative value given the aforementioned reasons and was, in any event,
not relied upon by Castaway Paper at the time to justify Mr Miloskovski’s dismissal for serious
misconduct.
[35] The second example of insubordination was said to be detailed in emails dated 9 May
2023 and 11 May 2023 between Mark Senior, Production Supervisor, to James Camp. The
Commissioner clearly had regard to such emails, marking them as Exhibit R 2 and referring to
the same, at paragraph [13] of the Decision.
[36] Those emails included an email from Mr Senior to James Camp dated 9 May 2023 time
stamped 1:53 PM, found at page 185 of the Appeal Book (AB). The email detailed that
Mr Senior had asked Mr Miloskovski to run the ‘2A’ for a period and Mr Miloskovski had
questioned why, stated it was hard work and that Mr Senior should persist in getting ‘Amar’ to
run it. Mr Miloskovski continued that he was always given hard jobs which he should not be
doing as he was on light duties, to which Mr Senior is said to have informed Mr Miloskovski
that he makes sure that he does not lift anything over his 5kg limit. Mr Senior advised Mr Camp
that he informed Mr Miloskovski he was not discussing it further and instructed Mr Miloskovski
to run the ‘2A’.
[37] Castaway Paper refers further to an email dated 11 May 2023. The AB includes two
such emails. First, an email dated 11 May 2023 time stamped 6:34 AM (AB, page 187), from
Mr Senior to Mr Camp in which Mr Senior details that he held a discussion with
Mr Miloskovski about going ‘onto the 2A to finish off the changeover and fine tune the 1Ply
lunch’. Mr Senior advised Mr Camp that Mr Miloskovski said he was not capable to do the
changeover and that Mr Senior would need to find another machine setter to do the job. The
email reports that Mr Miloskovski had said to Mr Senior that he only wanted to stay on one
[2024] FWCFB 195
9
machine and had provided details as to work he had done, which, in his view, had resulted in
him having to go home and take tablets.
[38] The second email of that date is from Mr Senior to Mr Camp (dated 11 May 2023 time
stamped 1:43 PM (AB page 186)), in which Mr Senior sets out that Mr Miloskovski had raised
an issue with ‘5A’ regarding the ‘switches mechanism on Line 1 on the 5A’. Mr Senior formed
the view that someone of Mr Miloskovski’s skill level should be able to solve the problem and
that Mr Miloskovski could have fixed the issue but chose not to.
[39] It is evident from the materials before the Commissioner, that Mr Miloskovski had not
been afforded a contemporaneous opportunity to respond to such purported insubordination, as
detailed in those emails. Furthermore, Castaway Paper did not rely upon the emails as forming
part of the reason for Mr Miloskovski’s dismissal at the time of terminating his employment.
Whilst the letter of termination states that Mr Miloskovski ‘[c]omitted insubordination’, the
insubordination referred to did not extend to the conduct purported in the emails sent between
Mr Camp and Mr Senior. In our view, it was appropriate for the Commissioner to attribute no
weight to the emails given their limited probative value.
[40] The third example of insubordination was with respect to Mr Miloskovski’s repeated
refusal to go to his workstation on 23 June 2023. At paragraph [29(v)] of the Decision, the
Commissioner found that Mr Miloskovski ‘did not comply with several directions from
Mr Scaccabarrozzi to return to his work-station and instead spoke to other co-workers about
the conflict…’. That such conduct was considered by the Commissioner as significant is clear,
when, at paragraph [36], the Commissioner finds a valid reason for Mr Miloskovski’s dismissal
based, in part, on this non-compliance with the directions from a supervisor. However, it was
nevertheless open to the Commissioner to find that Mr Miloskovski’s conduct on 23 June 2023,
including his non-compliance with a supervisor’s direction, was conduct that was not
sufficiently serious to warrant summary dismissal when regard was had to other relevant
factors. We will detail why shortly.
[41] Castaway Paper took issue with the Commissioner’s finding at paragraph [29(iii)] in
respect of another example of Mr Miloskovski’s insubordination. Namely, the Commissioner’s
finding that Mr Miloskovski had put his mobile phone away by the time he commenced working
on machinery. According to Castaway Paper, the video footage showed Mr Miloskovski
walking with the mobile phone in his right hand and looking at the mobile at 12:44:35 PM and
from 12:44:40 PM to 12:44:43 PM. At paragraph [36] of the Decision, the Commissioner found
that Mr Miloskovski had been previously warned in writing about using his mobile phone on
the factory floor and he should have made sure he was not carrying his phone when he returned
to the factory floor on 23 June 2023. Mr Miloskovski’s misconduct in this respect was
considered by the Commissioner to be sufficiently serious to justify forming part of a valid
reason for his dismissal, particularly when considered with Mr Miloskovski’s late return from
lunch and other non-compliance with directions.
[42] We observe, in the circumstances of the matter before him, the Commissioner found
that there were mitigating factors which made the manner of the termination of employment
without notice, as occurred, harsh. These factors included that Mr Miloskovski was summarily
dismissed after 13 years of service in the same business, that Mr Miloskovski spoke English as
a second language, his age, and his unblemished record for approximately the first 12 and a half
[2024] FWCFB 195
10
years with Castaway Paper. The Commissioner also had regard to a shortcoming of the
investigation (paragraph [51]), which we consider was open for him to do.
[43] Turning to the factor that Mr Miloskovski spoke English as a second language,20
Castaway Paper contended that the Commissioner’s assessment of Ms Miloskovski’s English
skills was essentially misplaced and that Mr Miloskovski never had a problem speaking ‘fluid
English’.21 Castaway Paper’s submission was made in the context of contending that the
Commissioner had minimised Mr Miloskovski’s misconduct when it came to evaluating
whether a percentage reduction in compensation was warranted, not in respect of those factors
considered under s. 387(h). However, insofar as the Commissioner considered that
Mr Miloskovski spoke English as a second language and considered this relevant alongside
Mr Miloskovski’s age, as a mitigating factor, we consider there was no error in the
Commissioner’s approach.
[44] Essentially, the Commissioner’s finding in relation to the mitigating circumstances and
his conclusion that the termination of employment was harsh, was made after weighing that
consideration against findings in relation to other matters arising from s. 387 of the Act,
including his findings as to valid reason. We are satisfied that the Commissioner considered the
incidences of subordination and made no error of fact. As such, his Decision in this respect,
does not reflect a case of error, let alone significant error. Insofar as it is relevant, we also
consider that the findings of mitigating circumstances appear to have been properly made based
on the evidence before the Commissioner.
[45] Regarding appeal ground two, namely the Commissioner’s purported failure to give due
weight to Mr Miloskovski’s false allegation that he was about to suffer physical abuse and
harassment by a supervisor, we are unable to conclude that the Commissioner erred in this
respect and find the inferences relied upon by the Commissioner at arriving at his finding were
reasonable in all circumstances. At paragraph [32] of his Decision, the Commissioner gave the
following reason for his finding that the parties held differing perceptions concerning
Mr Miloskovski’s assertion that Mr Scaccabarrozzi engaged in threatening behaviour:
“[32] I put the differing perceptions of the interaction down to human nature and the subjectivity that
is often associate with interpreting another person’s behaviour.”
[46] Castaway Paper also contended that Mr Miloskovski produced fraudulent documents
which were not considered relevant to the determination of whether he engaged in serious
misconduct. The contention appears premised on Mr Miloskovski’s certificates of capacity
referring to him as a ‘mechanic’ instead of a ‘machine operator’. Castaway Paper asserts that it
advised Mr Miloskovski to have his treating physician rectify the mistake, but the certificates
of capacity continued to refer to him as a ‘mechanic’. Castaway Paper stated that it considered
this a false statement. Whilst Castaway Paper may hold the view that Mr Miloskovski relied
upon ‘fraudulent’ documents, such assertion appears to bear little to no relevance to the reasons
relied upon by Castaway Paper to justify Mr Miloskovski’s summary dismissal as detailed in
the letter of termination and the Form F3. We do not consider that the Commissioner erred by
not putting weight on this matter.
[47] Castaway Paper took issue with the Commissioner finding that Mr Miloskovski
distracted his colleagues for a ‘reasonably brief period’. At paragraph [29(v)] of the Decision,
the Commissioner refers to Mr Miloskovski, in addition to the other employees he spoke to,
[2024] FWCFB 195
11
performing less productive work ‘albeit for a reasonably brief period’. The period in question
appears to amount to 45 minutes as detailed in Castaway Paper’s submissions at first instance.
At paragraph [45] of the Decision, the Commissioner addresses the loss of production issues
arising from Mr Miloskovski’s ‘distraction’ by reference to the temporal relativity of the period
of distraction as compared to Mr Miloskovski’s work history. In such circumstances, we are of
the view it was open on the evidence for the Commissioner to consider the period was
‘reasonably brief’.
[48] Appeal ground five effectively replicates the assertions relied upon at grounds one, two,
and three, all of which have been considered and addressed in the aforementioned paragraphs.
Appeal ground six essentially expresses Castaway Paper’s erroneous opinion regarding length
of service and how it is to be considered under ‘other matters’ the Commission considers
relevant under s. 387(h) of the Act. It is unnecessary to further address such ground, as it
discloses no error and the ground is misconceived.
[49] Appeal ground four of the Decision sets out to the effect that the Commissioner
incorrectly found that Mr Miloskovski had no performance issues prior to 2023 and in doing so
failed to evaluate the evidence in light of the period before and after the ‘accident’. However,
Castaway Paper’s own evidence in respect of Mr Miloskovski’s performance predominately
focused on the six months prior to his dismissal. Furthermore, the performance issues referred
to by Castaway Paper, appeared to have had little bearing on the reasons Castaway Paper
advanced to justify summarily dismissing Mr Miloskovski.
[50] Briefly stated, we simply do not accept Castaway Paper’s submissions that the Decision
under appeal contains a number of errors of fact. Furthermore, an error made concerning
findings of fact, is required to be a significant error of fact. To be characterised as significant,
a factual error must vitiate the ultimate exercise of discretion.22 In a misconduct case, a
significant fact is foundational to a conclusion in relation to whether misconduct took place.23
No such factual errors have been made. Regarding the failure to take into account a relevant
consideration, this ground can only be made out if the decision maker fails to take into account
a consideration which he or she was bound to take into account24 and as such this caused the
exercise of discretion to miscarry. That has not occurred.
[51] Although the Commissioner found in favour of Mr Miloskovski and this is an
understandably unpalatable outcome for Castaway Paper, Castaway Paper’s dissatisfaction
with the factual findings and outcome is not of itself a proper basis of appeal where those
findings of fact are supported by the evidence.
[52] The Commissioner took an entirely orthodox approach to Mr Miloskovski’s application,
analysed the evidence in detail, made carefully considered findings of fact, and took into
account and considered the case advanced by Castaway Paper and Mr Miloskovski. The result
in this respect does not manifest an injustice, nor is it counter-intuitive.
Remedy – compensation
[53] The submissions filed in support of the Notice included additional grounds of appeal or
discontent. It is well established that when determining whether permission to appeal should be
[2024] FWCFB 195
12
granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed
examination of the grounds of appeal.25
[54] While it is unnecessary and inappropriate for the Full Bench to conduct a detailed
examination of the grounds of appeal, we have considered the grounds of appeal as set out in
the Notice of appeal lodged by Castaway Paper, and as elaborated upon or supplemented by
written submissions in support.
[55] Despite the Notice appearing to be silent on the Commissioner’s consideration of
remedy, Castaway Paper’s appeal submissions raised issues regarding the following matters
pertaining to the award of compensation:
a) an error in the finding regarding of the anticipated period of employment;
b) an error in the amount deducted from the compensatory amount due to
Mr Miloskovski’s misconduct; and
c) a failure to provide Castaway Paper with an opportunity to bring written evidence
supporting Mr Miloskovski’s financial position.
[56] In the Decision and with respect to remedy, the Commissioner set out the legislative
provisions relevant to an award of compensation in addition to the relevant authorities. Having
determined that reinstatement was not appropriate, the Commissioner determined that had Mr
Miloskovski not been dismissed, it was reasonably likely his employment would have ended
within the next six months. The compensatory amount was calculated on the basis of six
months, and amounts were deducted in respect of payments Mr Miloskovski received pursuant
to motor vehicle accident insurance and an amount on the account of Mr Miloskovski’s
misconduct. Having observed that amount fell shy of what Mr Miloskovski would have
received had he been dismissed with notice, the Commissioner increased the compensatory
amount to $10,000.00 gross plus $1100.00 in superannuation.
[57] In respect of the contentions set out above, we do not consider, should it have been
suggested, that the Notice should be amended to include such contentions. We note that the
Directions issued by the Commissioner required that parties make submissions in relation to
remedy and that the Respondent had the opportunity to bring evidence about Mr Miloskovski’s
financial position or any other matter relevant to compensation in the hearing at first instance,
and did not do so. We are of the view, the contentions lack sufficient merit and raise no question
of law, principle or general application, for the following reasons.
Anticipated period of employment
[58] Turning first to the issue of compensation and the Commissioner’s finding in respect of
the anticipated employment period.
[59] The power to order compensation is a power to order compensation in lieu of
reinstatement. The assessment that is undertaken in determining the amount of compensation
is essentially an assessment of income that an unfairly dismissed employee would have earned
with the employer had the employment continued for a period determined by the Commission,
less income earned from other sources, contingencies, and other deductions.26 The assessment
of compensation looks forwards into a hypothetical future.27 Also relevant are non-monetary
[2024] FWCFB 195
13
considerations such as impact on viability of an employer’s enterprise, misconduct
contributions and the statutory cap. In arriving at a final amount of compensation to be awarded,
it is open to the Commission to consider any other matter that the Commission considers
relevant. Above all, it is accepted that the overarching requirement is to ensure that the level of
compensation is in an amount that is considered appropriate having regard to all the
circumstances of the case.28
[60] At paragraph [36] of the Decision, the Commissioner found that there was a valid reason
for Mr Miloskovski’s dismissal. At paragraph [49] of the Decision, the Commissioner identified
factors which weighed toward the summary dismissal being harsh and concluded that Mr
Miloskovski’s dismissal was unfair.
[61] One potential outcome of a summary termination being disproportionate to the conduct
in a case, is that the applicant may obtain an order for compensation reflecting the notice period
she or he would have received, had they not had their employment terminated without notice.29
The anticipated period of employment in such circumstances may be considered to be zero
weeks and the period of notice not served or paid, being a matter connected with the length of
service, will warrant consideration under either s. 392(2)(b) or s. 392(2)(g) of the Act.30
[62] However, an assessment of the anticipated period under s. 392(2)(c) ultimately involves
elements of speculation and conjecture since it is necessarily based on a counter-factual
scenario and requires the exercise of an evaluative objective judgment. This is a matter of
discretion and we see no error in the Commissioner’s approach. We are, therefore, unpersuaded
that Castaway Paper has demonstrated any reasonably arguable case of appealable error in the
Commissioner’s assessment in this respect, and are of the view that if Castaway Paper did so
demonstrate, such error would not impact the compensatory amount that the Commissioner
otherwise ordered.
[63] To explain further, at paragraph [99] of the Decision, the Commissioner concluded that
the application of the ‘Sprigg’ formula had resulted in an outcome where Mr Miloskovski would
be awarded compensation of $6,122.86 plus superannuation, which was $673.51 at the current
rate of 11%. The Commissioner concluded that this amount equated to less than five weeks of
wages for Mr Miloskovski plus superannuation. At paragraph [100], the Commissioner stated
that given Mr Miloskovski should not have been summarily dismissed the effect of the proposed
order would be that Mr Miloskovski would not receive that payment in lieu of notice that the
Commissioner considered he should have been paid.
[64] Essentially, the Commissioner had identified that the strict application of the approach
set out in Sprigg31 and endorsed in subsequent decisions, had yielded an order that
Mr Miloskovski be paid compensation of an amount that was less than he would otherwise have
received, if paid for his notice period. As has been said before, ‘Sprigg is a useful servant, but
is not to be applied in a rigid determinative manner’.32 In deciding the amount of a compensation
order, the Act directs that the Commission ‘must take into account all of the circumstances of
the case’ including the particular matters set out at ss. 392(2)(a) to (g).
[65] That the Commissioner considered the compensatory amount too low in all the
circumstances was grounded upon well-founded reasons as expressed at paragraphs [99]–[101].
We see no error in the amount arrived at.
[2024] FWCFB 195
14
[66] While Castaway Paper pressed that it disagreed with how the Commissioner considered
payments or premiums from compulsory third party insurance payments, mere disagreement is
not the articulation of a ground of appealable error. In any event, the Commissioner’s
characterisation of such payments ultimately favoured Castaway Paper.
Deduction for misconduct
[67] The totality of the Commissioner’s assessment of the appropriate reduction for
misconduct was as follows:
“[93] If I am satisfied that misconduct of Mr Miloskovski contributed to the employer’s decision to
dismiss, I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an
appropriate amount on account of the misconduct.
[94] Given I have found there was a valid reason for dismissal based on Mr Miloskovski’s
misconduct, I will reduce the compensation amount by 5%. That leaves a figure of $6,122.86 plus
superannuation.”
[68] Section 392(3) of the Act provides:
“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 (emphasis added).”
[69] Two relevant considerations arise from the terms of the provision. Firstly, the specific
use of the term ‘misconduct’, encompasses misconduct of such a nature as to have justified
summary dismissal and conduct which could not be so described. As a Full Bench of the
Commission observed in Sharp v BCS Infrastructure Support Pty Limited33:
“Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal,
to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that
the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is
clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being
‘serious misconduct’.”34
[70] Secondly, the provision requires the Commission to reduce the amount of compensation
it would otherwise order by an appropriate amount, on account of misconduct, if satisfied that
the misconduct contributed to the employer’s decision to dismiss.35
[71] Having made the finding that the Respondent’s misconduct contributed to the
Appellant’s decision to dismiss the Respondent, the decision of the Commissioner as to the
reduction of the compensatory amount because of misconduct, was a discretionary decision and
a conclusion, on the evidence, he was entitled to draw. We see no error in the percentage
reduction arrived at. Whilst Castaway Papers has referred the Full Bench to decisions where
greater reductions were made because of misconduct, each case will turn on its own facts and
as such does not provide guidance as to the appropriate amount of reduction warranted in a
particular case.
[2024] FWCFB 195
15
Effect of the order on the viability of the employer’s enterprise
[72] As we have observed, on 23 November 2023, the Commissioner issued amended
directions that required the parties to file materials in the lead up to the hearing at first instance.
Those materials included submissions, witness statements and any documents referred to in the
witness statements. Those same directions set out that Castaway Paper’s materials (that is the
company’s materials) were to respond to the unfair dismissal application including the remedy
sought. Those same directions provided a hyperlink to the ‘Unfair dismissals bench book, which
at pages 210 to 211, address s. 392(2)(a) of the Act, stating:
“The employer must ‘present evidence and/or argument as to the financial situation’ of the business and
‘the likely effect that an order for compensation’ will have on the viability of the business.”36
[73] At paragraph [64] and [65] of the Decision, the Commissioner effectively states he
alerted Castaway Paper to the issue of the effect of the order on the viability of Castaway
Paper’s business. Castaway Paper contends that it was not requested to bring written evidence
supporting Castaway Paper’s financial position. The statement is incorrect. Castaway Paper
had, as early as the first directions issued on 3 October 2023, been placed on notice of the
requirement to file submissions, witness statements and documents in response to the remedy
sought by Mr Miloskovski. That direction was reiterated in the amended directions issued on
23 November 2023. Insofar as an assertion is levelled that the Commissioner failed to afford
procedural fairness with respect to providing Castaway Paper an opportunity to bring on
evidence in support of the effect of an order, it cannot be sustained.
Conclusion
[74] We are not persuaded that any of the matters raised by Castaway Paper justify the grant
of permission to appeal or enliven the public interest. In this regard, we are not satisfied that
the appeal raises any issue of importance or general application, nor does it identify any relevant
diversity of decisions at first instance. We do not consider that it is arguable that the decision
of the Commissioner manifests an injustice, or that the result is counterintuitive or unjust. The
legal principles applied are not disharmonious with other authorities dealing with similar
matters.
[75] As we are not satisfied that the grant of permission to appeal would be in the public
interest, permission to appeal must therefore be refused in accordance with s. 400(1) of the Act.
VICE PRESIDENT
AL OF THE FAIR WORY COMMISSION THE S
[2024] FWCFB 195
16
Appearances:
G Scaccabarrozzi and J Camp for the Appellant.
S Miloskovski, Respondent.
Hearing details:
2024.
Sydney:
March 13.
Printed by authority of the Commonwealth Government Printer
PR772854
1 Miloskovski v The Castaway Paper Products Co Pty Ltd [2023] FWC 3462 (Decision).
2 The Castaway Paper Products Co Pty Ltd v Miloskovski [2024] FWC 83.
3 PR770159.
4 Wan v AIRC [2001] FC 1803, [30].
5 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [43], Buchanan J (with whom Marshall and
Cowdroy JJ agreed).
6 Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 (Gelagotis).
7 Ibid [43].
8 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [24]–[27]; Gelagotis at [43].
9 Grandbridge Ltd v Wiburd [2017] FWCFB 6732, [27] (Grandbridge).
10 Potter v WorkCover Corporation (2004) 133 IR 458, 473 [55] (Potter).
11 (1998) 88 IR 21.
12 (2013) 229 IR 6.
13 Grandbridge (n 9) [27].
14 See Rankin v Marine Power International Pty Ltd (2001) 107 IR 117.
15 Ibid; Grandbridge (n 9) [28]
16 Byrne v Australian Airlines Ltd [1995] HCA 24, 185 CLR 410, 465 per McHugh and Gummow JJ.
17 Australian National University v Mr Scott Morrison [2022] FWCFB 83, [48].
18 Grandbridge (n 9) [27]
19 Potter (n 10) 4733 [55].
20 Decision (n 1) [50].
21 Appellant’s Outline of Submissions, [8].
22 Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [43].
23 Ibid at [43].
24 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend).
25 Johnson v Water Corporation, The Trustee for DFP Business Trust T/A DFP Recruitment Services [2024] FWCFB 126.
Support for that proposition is also found in a decision of the Full Court of the Federal Court of Australia in Trustee for
The MTGI Trust v Johnston [2016] FCAFC 140 at [82]. Paragraph [82] of that decision in turn referred, with clear
approval, to paragraphs [9]-[10] of an earlier Full Court decision in Waters v Commonwealth (Australian Taxation
Office) [2015] FCAFC 46.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3462.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc83.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr770159.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6092.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6732.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb83.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6092.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb126.pdf
[2024] FWCFB 195
17
26 XL Express (Personnel) Pty Ltd v Biffen [2017] FWCFB 5441, [35] (Biffen).
27 Ibid [35].
28 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446, [32].
29 Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 3897.
30 Double N Equipment Hire Pty Ltd [2016] FWCFB 7206.
31 Hanson Construction Materials Pty Ltd v Darren Pericich [2018] FWCFB 5960.
32 Ibid [39].
33 [2015] FWCFB 1033.
34 Ibid at [33].
35 Butterfly Systems Pty Ltd v Eduard Sergeev[2021] FWCFB 18, [35].
36 D.A. Moore v Highpace Pty Ltd Print Q0871 (AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998).
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5441.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3897.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5960.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb1033.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb18.htm
