[2024] FWCFB 364
The attached document replaces the document previously issued with the above code on 6
September 2024.
Typographical error in footnote 18.
Associate to Vice President Gibian
Dated 21 January 2025
1
Fair Work Act 2009
s.604 - Appeal of decisions
Illawarra Coal Holdings Pty Ltd T/A South32
v
Mr Joe Sleiman
(C2024/2809)
VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
SYDNEY, 6 SEPTEMBER 2024
Appeal against a decision [2024] FWC 976 and Order PR773509 of Commissioner Ryan at
Sydney on 15 April 2024 in matter number U2023/4076 – incident in which vehicle lost
traction when driving in pit bottom of a mine – whether vehicle being driven unsafely or at
unsafe speeds – Casper the Ghost – grounds of appeal substantially challenge factual
findings at first instance – whether arguable grounds to establish that factual findings not
reasonably open – whether the Commissioner erred in having regard to Briginshaw
principles – limitations on the availability of an appeal and grounds on which an appeal can
be brought in relation to unfair dismissal proceedings – whether it is in the public interest for
permission to appeal to be granted – permission to appeal refused.
Introduction
[1] Mr Joe Sleiman worked for Illawarra Coal Holdings Pty Ltd t/a South32 (South32) as
an underground coal miner at its Appin Colliery for more than 17 years. On 23 March 2023,
the wheels of a vehicle that Mr Sleiman was driving (known as a Driftrunner or SMV) slid as
he drove it around a corner in an area at the pit bottom that was designated a shared zone. He
regained control of and then parked the vehicle and got out. A mine deputy who witnessed the
incident approached Mr Sleiman as he alighted from the vehicle and asked who was driving.
Mr Sleiman responded “Casper”, being a reference to the cartoon character Casper the Ghost.
[2] The mine deputy, Mr Richardson, reported the incident as a safety incident and South32
conducted an investigation. During the investigation, South32 alleged that Mr Sleiman was
guilty of misconduct. Specifically, it was alleged that Mr Sleiman had driven the vehicle
through a shared zone at unsafe speeds in excess of 10km per hour, that he lost control of the
vehicle causing the vehicle to slide in an uncontrolled manner, that he failed to adequately
respond to the mine deputy when asked whether he was driving the vehicle and about Mr
Sleiman’s driving of the vehicle, and failed to report the incident at any time after the incident
occurred. Mr Sleiman was interviewed in relation to the incident, invited to respond as to
whether he should be dismissed and, having failed to convince South32 that he should not be,
was dismissed from his employment on 1 May 2023.
[2024] FWCFB 364
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc976.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr773509.pdf
[2024] FWCFB 364
2
[3] Mr Sleiman applied to the Commission for an unfair dismissal remedy in accordance
with s 394 of the Fair Work Act 2009 (Cth) (the Act). The application was heard by
Commissioner P Ryan. In a decision published on 15 April 2024, the Commissioner found that,
on balance, the dismissal was harsh and unreasonable (the Decision).1 The Commissioner
ordered that Mr Sleiman be reinstated, that South32 pay Mr Sleiman lost remuneration from
the period from his dismissal to the date of reinstatement (less 50% of that amount on account
of Mr Sleiman’s misconduct in failing to report the incident) and that Mr Sleiman’s employment
be regarded as continuous despite the dismissal (the Order).2
[4] South32 has lodged a notice of appeal under s 604 of the Act, for which permission to
appeal is required, against the Decision and the Order. The Commissioner’s Decision and Order
were stayed with Mr Sleiman’s consent pending the determination of the appeal.3
Decision under appeal
[5] At first instance, the parties were given permission to be legally represented by
experienced counsel. The Commissioner conducted an inspection of the Appin West Pit
Bottom, including travelling in the same SMV that had been driven by Mr Sleiman on 23 March
2023 on the same route that the vehicle had travelled at the time of the incident. The
Commissioner conducted a hearing over three days. Ten witnesses were called, all but one of
whom gave oral evidence and were cross-examined. This included Mr Sleiman. Documentary
evidence was received, including maps of the area where the incident occurred, South32’s
safety procedures and policies, and correspondence between Mr Sleiman and South32. CCTV
video recording of the incident was also provided. Lengthy written submissions were filed.
[6] South32’s reasons for dismissal arose from findings made concerning 4 allegations of
misconduct. The Commissioner described the allegations of misconduct at paragraph [4] of the
Decision in the following terms:
i) That the Applicant drove the SMV through a shared zone and continued to accelerate
the SMV, travelling at unsafe speeds in excess of 10km per hour;
ii) That the Applicant lost control of the SMV as it rounded a corner causing the vehicle
to slide in an uncontrolled manner for a short period;
iii) That following the incident, the Applicant failed to adequately answer a Deputy’s
questions as to whether the Applicant was driving the SMV and about the Applicant’s
driving of the SMV; and
iv) That the Applicant failed to report the incident at any time after it occurred, before
being informed by the Respondent that the incident would be subject to an
investigation.
[7] In his decision, the Commissioner set out the relevant statutory tests. He then set out the
relevant background describing Mr Sleiman’s employment, the workplace, the importance of
safety in the industry, and the specific safety obligations held by employees. Facts relevant to
the incident at pit bottom were also described including the area in which the incident occurred
and the practice of watering the area to suppress coal dust. The safety rules that applied to the
area were also described. The nature of the vehicle that Mr Sleiman was driving was then
explained, as well as the facts associated with the risks of driving in the area of the incident.
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3
Details of Mr Sleiman’s disciplinary history were noted, including correspondence sent to Mr
Sleiman on 7 March 2023 by the mine’s General Manager which set out that history and
included a statement of behavioural expectations. The Commissioner then described in detail
the 23 March 2023 incident. He did so by reference first to the evidence advanced in Mr
Sleiman’s case. The evidence in relation to the investigation process that followed the incident
was also described.
[8] Mr Sleiman’s evidence was to the effect that he had driven through the shared zone
countless times and that he usually did so at a walking pace. He said that he did not know
precisely what speed he was travelling at the time of the incident as there was no working
speedometer in the vehicle. His evidence was that the rear end of the vehicle broke traction and
drifted as it came around the corner where the road changes from a coal surface to a concrete
surface. He said he regained traction after moving about 3 metres. Mr Sleiman said he did not
brake, or adjust the rate of acceleration, while he waited for the vehicle to regain traction. His
evidence was that as an operator for 18 years if he experienced a loss of traction, he would
continue to drive the vehicle out to regain traction and that is what he did on this occasion. He
did not know why the vehicle lost traction. He explained that when the mine deputy, Mr
Richardson, approached him he seemed angered and aggressive and that when asked who was
driving, he responded “Casper” as a means of diffusing the situation. Mr Sleiman accepted this
was an inappropriate response. He also accepted that he did not report the incident and
maintained his view that he did not need to as Mr Richardson was already aware of the incident.
[9] Mr Sleiman called two witnesses in his case who were present in the vehicle at the time.
The Decision records their views in relation to the incident which were that the vehicle slid but
was not out of control, the conditions led to the loss of traction as the area had been watered,
and that they heard Mr Richardson asking Mr Sleiman who was driving and that he used an
angry tone.
[10] The Decision also records South32’s evidence, including the evidence of Mr
Richardson. Mr Richardson’s written statement initially described the vehicle as travelling at
high speed, drifting around the corner then completing the corner sideways on two wheels. He
corrected his statement to change two wheels to four wheels. Mr Richardson said he saw six to
eight men inside the vehicle get lifted off their seats and pushed against the side of the vehicle.
He also said the vehicle made contact with the wall of the mine also known as the rib, and then
bump into another vehicle as it was parked up. He said he approached the men in the vehicle,
asked if they were okay and that he asked Mr Sleiman if he was driving. He received no
responses to his queries. Mr Richardson described the incident as the most dangerous he had
seen.
[11] Mr Richardson immediately filled in an incident report. The Commissioner sets out the
contents of the report. The following day, Mr Richardson provided a written statement about
the incident. The Decision sets out the content of that statement. Mr Richardson gave an
interview about the incident four days later. The Decision sets out a transcript of that interview.
During the interview he described the speed of the vehicle as going flat out. He was cross-
examined and confirmed that he could see to the corner where the vehicle had slid. Mr
Richardson conceded that he did not see the vehicle bump into another vehicle. He changed his
evidence about asking the men in the vehicle if they were okay and said he did not hear Mr
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4
Sleiman’s “Casper” response. He acknowledged that his version of events had changed since
his initial report but denied he was exaggerating the events.
[12] South32 led evidence from another mineworker present on the day. Mr Hudson was
present but not in the vehicle. Mr Hudson gave a brief statement some days after the incident.
In his evidence before the Commission, he said he was in the crib room with Mr Richardson
and heard the vehicle approaching. He estimated the vehicle was travelling at 35km per hour.
South32 also provided statements it obtained during its investigation from other workers who
were present on the day. The makers of those statements were not called. Those statements are
described in the Decision, but they were not given weight.
[13] The Commissioner also described the CCTV footage. The footage provided no
assistance as to the extent of the loss of control of the vehicle, but the Commissioner did find
that it assisted in showing the vehicle Mr Sleiman was driving did not approach the crib area at
a speed greater than other vehicles and that it did not bump into another vehicle when it was
parked. The Commissioner then described the evidence about the investigation South32 carried
out into the incident. The incident report concluded that, while it was not substantiated that the
vehicle hit the rib/wall of the mine or another vehicle, Mr Sleiman drove at unsafe speeds in a
shared zone and lost control of the vehicle.
[14] The Commissioner set out the show cause process that led to the termination of Mr
Sleiman’s employment that followed the investigation, noting that the allegations relied upon
included that Mr Sleiman accelerated in a shared zone and travelled at speeds in excess of 10
km/hr causing the vehicle to slide in an uncontrolled manner, responded sarcastically to Mr
Richardson, and failed to report the incident. Mr Sleiman’s reply to the show cause letter was
set out, as was the termination letter.
[15] After setting out the evidence, the Commissioner addressed the relevant statutory
requirements in Part 3-2 of the FW Act and addressed the matters he was required to consider
under s 387 when determining unfairness. In considering whether there was a valid reason for
dismissal, the Commissioner set out the relevant tests and referred to the approach in
Briginshaw v Briginshaw (1938) 60 CLR 336 to the effect that findings that an employee
engaged in misconduct should not be lightly made. He proposed to apply those principles on
the basis that he was required to reach a state of satisfaction or an actual persuasion that the
allegations of misconduct were proven, taking into account the seriousness of the allegations
and the gravity of the consequences if they were proven. The Commissioner’s discussion of the
so-called Briginshaw principles was as follows:4
The employer bears the evidentiary onus of proving that the conduct on which it relies took
place. Furthermore, where allegations of misconduct are made that have serious consequences
for an employee, the Briginshaw principles apply so that findings that an employee engaged in
the misconduct are not made lightly.
[16] The Commissioner set out a passage from the judgment of Lee J in Patrick Stevedores
Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019]
FCA 451; (2019) 286 IR 52 at [14]-[18] and continued:5
It follows that for the Respondent to succeed in relation to its allegations of misconduct against
the Applicant, I am required to reach a state of satisfaction or an actual persuasion that the
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5
Respondent has proved its allegations of misconduct, while taking into account the seriousness
of the allegations and the gravity of the consequences for the Applicant that could follow if the
allegations were to be accepted.
[17] The Commissioner then set out the four allegations arising from the incident and dealt
with them. Allegations 1 and 2 were dealt with together. The Commissioner recorded that
having observed and listened to each witness he had not reached a state of satisfaction or actual
persuasion that Mr Sleiman drove the vehicle at an unsafe speed in excess of 10 km/hr.
Although the Commissioner was satisfied that the SMV “stepped out”, he indicated he had not
reached a state of satisfaction or actual persuasion that it was a result of Mr Sleiman’s driving
or operation of the SMV. The Commissioner went on to explain his findings by reference to the
evidence including the change in Mr Richardson’s account of the incident over time, that the
witness evidence of the speed of the vehicle did not accord with the CCTV footage, his
preference for Mr Sleiman’s and the other mineworkers’ account of the incident over the
evidence of South32’s witnesses, and his acceptance that the state of the road may have
contributed to the vehicle sliding.
[18] Allegation 3 was dealt with separately. The Commissioner did not accept that Mr
Sleiman refused to answer questions from Mr Richardson about his driving as he found that he
was not asked about his driving. The Commissioner accepted that Mr Sleiman did not
adequately answer the question of who was driving and that his response of “Casper” reflects
poorly on him. However, the Commissioner did not accept that this constituted a valid reason
to dismiss him. The Commissioner considered that both Mr Richardson and Mr Sleiman
contributed to the breakdown in any further communication. Mr Richardson did not hear the
“Casper” response and had ended the conversation prematurely by simply walking away
without waiting for a response from Mr Sleiman.
[19] Allegation 4 was also dealt with separately by the Commissioner. The Commissioner
found that South32 had clear policies on reporting safety incidents and that Mr Sleiman had
been trained in relation to the issue of reporting of all accidents, incidents and near misses as
soon as possible. The Commissioner was satisfied that Mr Sleiman failed to comply with the
policies and the failure to comply with South32’s policies and procedures did constitute a valid
reason for dismissal.
[20] The Commissioner found that, for the purposes of s 387 (b), (c) and (d), Mr Sleiman
was informed of the reason for dismissal, was given the opportunity to respond, and was not
refused a support person in discussions related to the dismissal. Section 387(e) was not relevant
as the dismissal was for misconduct not performance reasons. Sections 387(f) and (g) going to
the impact of the size of the employer and access to human resource specialist on the procedures
followed, were considered neutral.
[21] The Commissioner considered that three factors were relevant under s 387(h). First,
although the Commissioner considered that the reporting of all incidents and near misses was
critically important, a mitigating circumstance for not reporting the incident was that the
incident was witnessed and reported by Mr Richardson who was a person to whom Mr Sleiman
could have reported the matter. Second, the Commissioner considered that Mr Sleiman’s
disciplinary history weighed against Mr Sleiman even though it did not relate to the reporting
of safety incidents. Third, the Commissioner took into account the effect of the dismissal on Mr
Sleiman and his family.
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[22] The Commissioner concluded that “on very fine balance” the dismissal was both harsh
and unreasonable and indicated that he had taken into account all the evidence and the
submissions of the parties.
[23] The Commissioner moved on to consider the question of remedy setting out the relevant
statutory provisions. Findings were made that reinstatement was not inappropriate given Mr
Sleiman’s long period of service, the fact that he had not been warned for unsafe driving in the
past and that other disciplinary concerns had been of a different character. The Commissioner
took into account Mr Sleiman’s disciplinary history and the evidence of South32’s managers
about a breakdown in the relationship but concluded that based on his findings as to Mr
Sleiman’s conduct he was not satisfied that reinstatement was inappropriate. The Commissioner
ordered reinstatement. He also ordered that Mr Sleiman be paid an amount for lost
remuneration. That amount was reduced by 50% on account of his failure to report the incident.
The Commissioner regarded that as an appropriate sanction for the failure to follow safety
procedures in a dangerous industry.
The grounds of appeal and submissions
[24] The notice of appeal directs attention to the allegations and posits five grounds of appeal.
Each ground includes particulars. The grounds relied upon by South32 may be summarised as
follows:
Ground 1 asserts that the Commissioner erroneously found that allegations 1 and 2 were not
valid reasons for Mr Sleiman’s dismissal related to his conduct. The particulars are:
i) The Commissioner wrongly applied the 'Briginshaw principles' in making findings
about the alleged conduct.
ii) The Commissioner conflated allegations 1 and 2 in the decision.
iii) – vi) The Commissioner erred in the assessment of various aspects of the evidence
related to the incident.
vii) – viii) The Commissioner’s finding in relation to allegation 1 that he was not persuaded
that Mr Sleiman had driven the vehicle at an unsafe speed was not reasonably open on the
evidence as the Commissioner failed to properly take into account evidence of various
witnesses.
ix) – xi) The Commissioner’s finding concerning allegation 2 that he was not persuaded that
Mr Sleiman was the cause of the vehicle losing control in the corner was not reasonably
open on the evidence and the Commissioner failed properly to take into account various
aspects of the evidence and mistakenly found that South32 had not sufficiently taken into
account the condition of the road where the incident occurred.
Ground 2 asserts that the Commissioner erroneously found that allegation 3 was not a valid
reason for Mr Sleiman’s dismissal related to his conduct. Two particulars are provided:
i) It was not open to find that the conduct in allegation 3 had not occurred as Mr Sleiman
admitted that he had replied “Casper” to the mine deputy.
ii) The Commissioner’s finding that the deputy had contributed to the breakdown in any
further communication was irrelevant.
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Ground 3 asserts the Commissioner erroneously found that the termination of the Respondent's
employment was harsh and unreasonable. Three particulars are asserted:
i) The finding was based on the erroneous findings already described in grounds 1 and 2
that allegations 1 to 3 did not provide a valid reason for dismissal, and the conclusion that
the misconduct in allegation 4, which was found to be a valid reason for dismissal, was at
the lower end of the scale.
ii) The Commissioner erred in failing to give sufficient weight to South32’s statutory safety
obligations.
iii) The Commissioner erred in only giving marginal significance to Mr Sleiman’s
disciplinary history.
Ground 4 is that the Commissioner erroneously held that the Respondent had been unfairly
dismissed within the meaning of the Act. No particulars are provided.
Ground 5 is that the Commissioner erroneously found that reinstatement of Mr Sleiman was not
inappropriate. Two particulars are provided:
i) The finding was based on the erroneous findings already described in grounds 1 and 2
that allegations 1 to 3 did not provide a valid reason for dismissal.
ii) The Commissioner misconstrued the statement in correspondence from South32’s
General Manager to Mr Sleiman that it was his strong preference to maintain Mr Sleiman’s
employment.
[25] In the notice of appeal, South32 contended that the errors of fact identified in ground
1(iii), (iv), (v), (vi), (vii) (ix) and (xi), ground 2(i) and (ii), and Ground 3(i) represent significant
errors of fact for the purposes of s 400(2) of the Act.
[26] As to the question of whether it is in the public interest for the Full Bench to grant
permission to appeal for the purposes of ss 400(1) and 604(1) of the Act, South32 contended
that it was in the public interest to grant permission to appeal for the following reasons:
1. The Decision contains significant errors of fact, including findings that were not reasonably
supported by the evidence.
2. Correcting the Decision is crucial to prevent prejudicial effects on the safe operation of the
mine, ensuring compliance with safety policies, and avoiding unsafe work situations for
employees.
3. Upholding the Decision could hinder South32's ability to fulfill statutory obligations for
mine safety, contradicting important public policy reflected in relevant statutes.
4. The Decision raises important principles regarding a Commissioner's discretion in ordering
reinstatement, especially in cases involving extensive evidence of disciplinary history and
behavioural and safety incidents and a complete breakdown in the employment relationship.
Submissions of the parties
[27] South32’s submissions largely reflected the grounds in the notice. The assertion that the
Commissioner erroneously applied the “Briginshaw principles” in assessing Mr Sleiman's
conduct was pressed. The submissions going to the Commissioner’s treatment of the evidence,
which form the basis of the other grounds, were elaborated upon. It was said that the
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Commissioner mistakenly conflated allegations 1 and 2, by failing to distinguish between speed
and acceleration (allegation 1) and loss of control (allegation 2). The Commissioner's findings
regarding Mr Sleiman’s conduct, including acceleration and loss of control, were alleged to be
unreasonable and not reasonably open on the evidence. South32 accepted that the evidence did
not establish the precise speed at which the SMV had travelled through the shared zone and that
it had not proved that the SMV was travelling in excess of 10 kilometres per hour. Otherwise,
it submitted that the Commissioner’s findings that Mr Sleiman had not continued to accelerate
through the shared zone and travelled at unsafe speeds and that the SMV “stepping out” had
not been a result of Mr Sleiman’s driving or operation of the vehicle were not reasonably open.
[28] South32 acknowledged that, to overturn factual findings made by the Commissioner, it
was required to demonstrate that the findings were not reasonably open on the evidence. In oral
submissions, South32 sought to meet that challenge by contending that ten facts were
established on Mr Sleiman’s own evidence (or other uncontroversial evidence) that meant the
findings of the Commissioner were not open. The ten allegedly incontrovertible facts were as
follows:
(a) That Mr Sleiman was in control of the SMV at all material times (Fact 1);
(b) That the events occurred in the shared zone where high levels of pedestrian and
vehicle interactions occur and vehicles should be driven at low speeds (Fact 2);
(c) That Mr Sleiman drove the vehicle into the shared zone and continued to accelerate
(Fact 3);
(d) That Mr Sleiman was unable to give evidence as to the precise speed at which the
SMV travelled through the shared zone (Fact 4);
(e) That the SMV lost control which caused the vehicle to slide in an uncontrolled manner
for a short period (Fact 5);
(f) That there was no evidence the loss of control was due to any mechanical failure or
unforeseen external factor (Fact 6);
(g) That the only identified cause of the loss of control was the slippery conditions of the
road surface (Fact 7);
(h) That the slippery condition of the road surface was foreseeable and in fact foreseen by
Mr Sleiman (Fact 8);
(i) That it follows that the loss of control was the product of Mr Sleiman failing to drive
the SMV in a manner that suited the conditions (Fact 9); and
(j) That it was a requirement of Mr Sleiman’s job that he drive the SMV to the road
conditions (Fact 10).
[29] South32 made extensive and lengthy reference to the documentary and oral evidence
received by the Commissioner in an attempt to demonstrate that these alleged facts were
uncontroversial and inexorably led to the conclusion that the Commissioner’s findings were not
open. The errors in assessing allegations 1 and 2 were said to be crucial in the overall decision
in relation to Mr Sleiman’s dismissal, leading to a flawed outcome.
[30] South32 contended that the Commissioner erred in finding that the failure of Mr Sleiman
to adequately respond to Mr Richardson’s inquiry as to who was driving the vehicle was not a
valid reason for dismissal. It was said that the question of whether Mr Richardson contributed
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9
to the breakdown in any further communication was irrelevant and a distraction. It submitted
that, although the Commissioner had correctly concluded that the failure of Mr Sleiman to
report the incident constituted a valid reason for dismissal, he had erred in regarding that failure
as being at “at the lower end of the scale”. It was said that this finding was not reasonably open.
[31] South32 contended that the Commissioner erroneously held that he was not satisfied
that reinstatement was inappropriate. The error was said to arise as a result of the
Commissioner’s conclusion being based on erroneous findings with respect to allegations 1 and
2 and that, in any event, there was a proper basis for South32 to have lost trust and confidence
in Mr Sleiman having regard to the strict nature of its safety obligations. In relation to the
question of reinstatement, South32 also contended that the Commissioner’s decision was based
on a misconstruction of an “expectations letter” sent to Mr Sleiman in relation to earlier
disciplinary matters.
[32] On the question of permission to appeal, South32 submitted that permission to appeal
should be granted due to errors of law and the significant errors of fact it alleges are to be found
in the Commissioner’s decision. Reliance was placed on the Commissioner giving incorrect
weight to the evidence leading to inappropriate findings as to Mr Sleiman’s conduct and the
appropriateness of reinstatement. South32 emphasises the public interest in granting permission
to appeal is its statutory obligations to ensure safety and asserted that, if not corrected, the
Commissioner’s decision had the potential to prejudicially affect the safe operation of the mine
and the capacity of South32 to meet its statutory obligations for the safe operation of the mine.
[33] Mr Sleiman’s submissions contended that there was nothing unorthodox in the
Commissioner’s treatment of the Briginshaw principles. The Decision does not, as asserted by
South32, treat the principle as a separate standard of proof but correctly treats it as guide in
assessing the nature of the alleged misconduct and its consequences. Mr Sleiman refuted
contentions that the Commissioner conflated allegations 1 and 2 as, while the allegations were
dealt with together, each allegation was specifically addressed. Mr Sleiman submitted that the
Commissioner’s findings were based substantially on a preference for the evidence of the
witnesses called on his behalf. The Commissioner’s findings in relation to allegations 1 to 3
were said to be detailed, clear, and based on a careful analysis of the evidence and it was
contended that there is no error in the Commissioner’s findings. Mr Sleiman’s counsel also took
us to specific aspects of the evidence that supported the findings made. Mr Sleiman submits
that there is no error in the Commissioner’s reasoning process to warrant permission to appeal
and that should permission be granted none of the asserted errors amount to appealable errors
and the appeal should be dismissed.
Consideration
[34] Section 604(1) of the Act makes it clear that there is no right to appeal, and an appeal
may only be made with the permission of the Commission. Other than with respect to certain
decisions of a delegate, or the General Manager of the Commission, the question of permission
to appeal must be decided by a Full Bench.6 Generally, the Full Bench must grant permission
to appeal if satisfied that is in the public interest to do so.7 Otherwise, the Full Bench has a
broad discretion as to whether permission to appeal should be granted.8
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10
[35] The discretion of the Commission to grant permission is more confined in case of an
application for permission to appeal from a decision of the Commission made in unfair
dismissal proceedings under Part 3-2 of the Act. Section 400 of the Act 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.
[36] Both subsections (1) and (2) of s 400 of the Act demonstrate an intention that the avenue
to appeal a decision in unfair dismissal proceedings is to be limited. Section 400(1) manifests
an intention that the threshold for a grant of permission to appeal is higher in respect of unfair
dismissal appeals than that pertaining to appeals generally.9 Permission to appeal can only be
granted if the Full Bench is satisfied it is in the public interest to do so and no general or residual
discretion exists if that threshold is not met. Section 400(2) indicates a particular sensitivity
with respect to revisiting factual findings made in unfair dismissal proceedings by limiting
review on appeal based on an alleged mistake of fact to one that involves a significant error of
fact. Section 400(2) represents a basal pre-condition to an exercise of power by the Full Bench
to correct an error of fact.10
[37] The statutory purpose of restricting the avenue of appeal with respect to a decision in
unfair dismissal proceedings, and constraining the grounds on which such an appeal can be
made, is not difficult to discern. The apparent objective is to limit the time, costs and
inconvenience associated with unfair dismissal proceedings. The object of Part 3-2 of the Act
includes to establish procedures for dealing with unfair dismissal that are “quick, flexible and
informal”, including that the procedures and remedies provided for ensure a “fair go all round”
is accorded to both the employer and employee concerned.11 An unconstrained right of appeal,
or a threshold for permission to appeal being granted which is too low, would hinder the
achievement of the object of the Part.
[38] The task of assessing whether it is in the public interest to grant permission to appeal is
a discretionary one involving a broad value judgment.12 The public interest is not satisfied
simply by the identification of error or a preference for a different result.13 The Full Bench of
the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the
considerations that may attract the public interest:14
... 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.
[39] Further, 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.15 An application for permission to appeal, however, is not to be
[2024] FWCFB 364
11
regarded as a de facto or preliminary hearing of the appeal. In determining whether to grant
permission to appeal, it is not necessary, and would not be appropriate, to conduct a detailed
examination of the appeal grounds.16 It is necessary to engage with the grounds of appeal for
the purpose of considering whether they raise an arguable case of appealable error.
[40] It is not possible, or appropriate, to attempt to confine or fetter the broad discretionary
assessment required to be made in each case as to whether it is in the public interest to grant
permission to appeal. However, the statutory context to which we have referred does suggest
that it will commonly not be in the public interest to grant permission to appeal where the
grounds of appeal, in substance, seek to relitigate the factual findings made at first instance.
There may, of course, be cases in which it can be demonstrated that something has gone
seriously wrong in the decision-making at first instance which demands reconsideration of the
evidentiary material and the factual findings on appeal. It will often not be in the public interest,
though, for a Full Bench of the Commission to engage in a detailed analysis of the primary
factual material simply because an appellant alleges that different conclusions should have been
drawn from the evidence.
[41] We are not satisfied that it is in the public interest to grant permission to appeal in this
matter and, in those circumstances, permission to appeal must be refused. The grounds of appeal
do not raise issues of importance or general application to the jurisdiction of the Commission
under Part 3-2 of the Act. It appears to us that the basis upon which the Commissioner made
his factual findings and decided to award an unfair dismissal remedy discloses an orthodox
approach to the fact-finding task and the determination of whether an unfair dismissal remedy
should be ordered. We have set out in some detail the Commissioner’s reasons and the basis
upon which South32 seeks to appeal. The Decision dealt with the matter in a conventional way
and in accordance with the requirements of the Act.
[42] The Commissioner was faced with competing evidence on important issues and made
findings on the evidence that were available to him and were based on his assessment of all of
the material before him. The documentary evidence was voluminous and detailed, and a number
of witnesses were called to give evidence and cross-examined. The Commissioner had the
advantage of assessing the demeanour of the witnesses and had inspected the mine site and the
area where the incident took place. Many of the factual findings are matters in relation to which
witnesses gave differing accounts and which required an assessment of credibility. In
considering the question of permission to appeal, it is relevant that factual findings made at first
instance that are likely to have been influenced by the decision-maker having directly seen and
heard the evidence should be set aside only where they are “glaringly improbable”.17 In our
opinion, it is not in the public interest for permission to be granted to revisit the factual findings
made by the Commissioner.
[43] The major premise of South32’s submission that permission to appeal should be granted
and that the Full Bench should overturn the factual findings of the Commissioner with respect
to allegations 1 and 2 was that ten allegedly incontrovertible facts were established on Mr
Sleiman’s own evidence which, if accepted, demonstrated that the Commissioner’s conclusions
were erroneous. We do not accept either that the facts asserted by South32 to be incontrovertible
were so or that the ten facts required no other conclusion than that Mr Sleiman had engaged in
misconduct and there was a valid reason for dismissal. We do not consider that the ten allegedly
incontrovertible facts create an arguable case of error.
[2024] FWCFB 364
12
[44] It is sufficient, for the purposes of considering the question of permission to appeal, to
provide an example. It was said that it was incontrovertible that Mr Sleiman drove the vehicle
into the shared zone and continued to accelerate. There was competing evidence about whether
Mr Sleiman continue to accelerate, what the witnesses meant by “accelerate” and whether doing
so was an appropriate course of action if the wheels of the SMV lost traction. Mr Sleiman
explained that he did not accelerate but kept his foot on the accelerator until the vehicle gained
traction again. Mr Sleiman said he regarded that as the appropriate method of dealing with such
a situation. The Commissioner accepted Mr Sleiman’s evidence and observed that the CCTV
footage did not show the vehicle accelerating. There was competing evidence about a number
of other matters described as incontrovertible by South32. On a number of those issues, the
Commissioner did not accept South32’s submissions. We consider it was open for the
Commissioner to do so. It is not in the public interest to grant permission to appeal for the
purpose of revisiting those factual findings.
[45] We also do not accept that, even if the ten facts referred to by South32 were
incontrovertible, those facts established inexorably or necessarily that Mr Sleiman had engaged
in misconduct or that there was a valid reason for dismissal. The situation facing Mr Sleiman
at the time of the incident was that he was driving the SMV (which did not have a working or
visible speedometer) around a corner in a dark tunnel at a point where the road surface changed
from loose material to concrete and at which the ground was wet and there was frequently
spilled diesel fuel. South32’s submission was that if, in those circumstances, the SMV’s wheels
lost traction or slipped that necessarily meant that the driver was at fault and had driven the
vehicle inappropriately or unsafely. That conclusion was said to follow because workers are
told to drive to the conditions and Mr Sleiman knew the area was slippery. We would not be
inclined to accept that the mere fact that the wheels of an SMV might slip in such conditions
necessarily meant that the vehicle had been driven inappropriately. In any event, it is sufficient
for the purposes of considering the question of permission to appeal to record that it was, in our
view, reasonably open to the Commissioner to find that the incident did not occur as a result of
Mr Sleiman’s driving or operation of the SMV.
[46] The grounds of appeal directed at allegations 3 and 4 also raise no issue of importance
or general application. We do not understand the basis upon which it is suggested that it was
not reasonably open to the Commissioner to conclude that the brief interaction with Mr
Richardson did not constitute a valid reason for dismissal. That finding was, in our opinion,
plainly open. In relation to allegation 4, the Commissioner accepted that the failure to report
the incident constituted a valid reason for dismissal. The Commissioner was entitled to consider
the seriousness of that matter for the purposes of assessing whether the dismissal was, as a
whole, harsh, unjust or unreasonable. It was, in our view, relevant to the seriousness of the
breach that one person to whom Mr Sleiman could have reported the incident was Mr
Richardson who, of course, observed the incident directly and reported it.
[47] The ground of appeal directed at the reinstatement order made by the Commissioner is
substantially based on the allegation that the Commissioner’s other factual findings were
erroneous. The only other issue raised is the interpretation of an earlier disciplinary letter sent
to Mr Sleiman and Mr Sleiman’s disciplinary history. That is not a matter that attracts the public
interest or would permit permission to appeal to be granted. The Commissioner discussed Mr
[2024] FWCFB 364
13
Sleiman’s disciplinary history at length and took that matter into account in the discretionary
assessment as to whether reinstatement was appropriate.
[48] The Commissioner’s findings as to valid reason were clear and open on the evidence.
His consideration and conclusion of the substantive fairness including the mitigating
circumstances and impact of the dismissal were in accordance with the requirements of the Act
and open to him on the evidence. The Commissioner’s approach to remedy was equally
orthodox. As such, we are not satisfied that there is an arguable case of error in relation to any
aspect of the Decision.
[49] Further, the matter turned entirely on its own facts. The appeal does not raise any issue
of novelty, importance, nor general application. The only substantial issue of law sought to be
raised by South32 in the appeal concerned the Commissioner’s application of the approach in
Briginshaw v Briginshaw. The Commissioner’s consideration of the approach in Briginshaw
was, in our opinion, unremarkable. In Briginshaw itself, Dixon J emphasised that a state of
reasonable satisfaction is not attained independently of the seriousness of the allegation, the
inherent unlikelihood of the alleged occurrence or the gravity of the consequences flowing from
the finding in question.18 Each of those matters could properly bear upon whether a court or
tribunal is reasonably satisfied or feels actual persuasion in relation to the facts in issue. South32
submitted that the allegations against Mr Sleiman were not “serious” in that sense and the
consequence of the loss of his employment of 17 years was not a serious consequence for Mr
Sleiman so to attract the caution as to the fact finding process set out in Briginshaw. The
Commission has customarily regarded allegations of misconduct as serious in that sense and
the loss of employment to be a “serious matter”.19 There is no suggestion of any uncertainty in
the jurisprudence or diversity in the approach being adopted by members of the Commission.
It is not in the public interest to revisit the application of the Briginshaw principles to unfair
dismissal proceedings in the present appeal.
[50] One additional matter that was said to give rise to an issue of general importance was
the claim that the decision undermines safety in the workplace. The Commissioner’s decision
does not undermine South32’s capacity to comply with its statutory safety obligations. The
Commissioner accepted the importance of those obligations and reduced the amount to be paid
on account of lost remuneration to Mr Sleiman as a sanction for him not reporting the incident
in accordance with South32’s policies. That represents a significant penalty. The Commissioner
was not satisfied, however, that Mr Sleiman’s operation and driving of the SMV was itself the
cause of the vehicle losing traction and sliding for a short period. In those circumstances, the
reinstatement of Mr Sleiman in no way undermines South32’s capacity to meet its statutory
obligations for the safe operation of the mine.
[51] On the material before the Full Bench, and for the reasons set out above, we are not
persuaded that the matters set out in the grounds of appeal raise any arguable case of error in
the Decision and we are not satisfied the matter otherwise raises any consideration which make
it in the public interest to grant permission to appeal. We consider that the Commissioner asked
the right questions, considered the matters that he was required to take into account, and
accorded each matter such weight he considered appropriate. The result was within the
reasonable bounds of outcomes that would be expected from a consideration and weighing of
the matters relevant to the Commissioner’s exercise of the discretion.
[2024] FWCFB 364
14
[52] As set out earlier, s 400(1) of the Act provides that permission to appeal must not be
granted unless the Commission considers that it is in the public interest to grant permission to
appeal. We do not believe that it is in the public interest to grant permission to appeal and,
accordingly, permission to appeal must be refused.
Stay Order
[53] The stay order made by Deputy President Slevin lapses upon the determination of the
appeal. The order was subject to undertakings including that, should the appeal be unsuccessful,
South32 would make a payment equivalent to the difference between the ‘ordinary week’s pay
rate’ and the ‘as if at work rate’ under the Appin Colliery & West Cliff CPP Enterprise
Agreement 2022 for the period from 6 May 2024 until determination of this appeal. A
consequence of this decision is that South32 must now make that payment.
Conclusion
[54] For the reasons set out above, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr I Neil SC and Mr B Rauf, of counsel, instructed by MinterEllison, for the Appellant.
Mr A Howell, of counsel, instructed by the Mining and Energy Union, for the Respondent.
Hearing details:
Sydney:
2024.
13 and 14 June.
Printed by authority of the Commonwealth Government Printer
PR779061
WORK COMMISSION THE SEAL OF THE
[2024] FWCFB 364
15
1 Sleiman v Illawarra Coal Holdings Pty Ltd T/A South32 [2024] FWC 976.
2 PR773509.
3 PR774911.
4 [2024] FWC 976 at [161].
5 [2024] FWC 976 at [163].
6 Fair Work Act 2009 (Cth), s 613(1)(a).
7 Fair Work Act 2009 (Cth), s 604(2).
8 Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel,
Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12].
9 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] (Buchanan J);
Workpac Pty Ltd v Bambach [2012] FWAFC 3206; (2012) 220 IR 313 at [14]; Barwon Health – Geelong Hospital v Colson
[2013] FWCFB 4515; (2013) 233 IR 364 at [6].
10 BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).
11 Fair Work Act 2009 (Cth), s 381(1)(b) and (2).
12 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] FCAFC 54; (2011) 192 FCR 78 at [44]-[46]; Australian Postal Corporation v D'Rozario
[2014] FCAFC 89; (2014) 222 FCR 303 at [102] (Bromberg J).
13 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28],
affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW
Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014]
FWCFB 1663 at [28]
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) IR 297 at [27].
15 Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].
16 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82] (Siopis, Collier and Katzmann JJ) referred to Waters v
Commonwealth [2015] FCAFC 46 at [9]-[10] (Flick J).
17 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).
18 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J). See also Lehrmann v Network Ten Pty Limited (Trial
Judgment) [2024] FCA 369 at [98]-[104] (Lee J).
19 See, for example, Budd v Dampier Salt Ltd [2007] AIRCFB 797; (2001) 166 IR 407 at [16].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc976.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr773509.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr774911.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc976.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc976.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb8025.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb4515.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
