[2011] FWAFB 7604 |
FAIR WORK AUSTRALIA |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
SENIOR DEPUTY PRESIDENT KAUFMAN |
|
Unfair dismissal - permission to appeal - public interest.
[1] On 26 May 2011 Commissioner Roe delivered a decision in respect of three applications which had been filed on 27 December 2010 under section 394 of the Fair Work Act 2009 by three former employees of GM Holden Ltd T/A Holden seeking relief in respect of the termination of their employment. He upheld the application of Mr Andrew Jess but dismissed the applications of Mr Chris Barton and Mr Frank Campanella. Messrs Barton and Campanella seek to appeal to the Commissioner’s decision.
[2] The hearing at first instance extended over eight days and involved evidence from some 18 witnesses as well as a site inspection. The Commissioner’s decision extended over some 306 paragraphs and 52 pages. In his decision the Commissioner carefully analysed the evidence, made findings, and drew inferences. He concluded that the termination of the employment of Mr Jess had been unfair but not that of the appellants.
[3] The three individuals had been employed at Holden’s Proving Ground, which is a secure vehicle development, testing and validation facility encompassing many hectares at Lang Lang some 90 km from Melbourne. The entire facility is protected by Cyclone fencing approximately 17.5 km in perimeter, with one access/egress point. It is of great importance to Holden that no vehicle parts or accessories leave the site without authorisation.
[4] Essentially, the reasons for the summary termination of the employment of each appellant were that various vehicle components were found in work areas under their effective control. Holden considered that there were no legitimate reasons for the storage of the components and, in the case of Mr Campanella, that he intended to remove those components from the workplace without being authorised to do so.
[5] Prior to coming to the conclusion to which it came, Holden conducted a lengthy investigation involving many interviews and other procedures. The investigation conducted by Holden was the subject of extensive evidence before the Commissioner.
[6] A close reading of the Commissioner’s decision reveals that he had regard to all of the evidence that was before him. Although the Commissioner was not persuaded that either of the appellants had engaged in theft or had intended to steal from Holden, he was satisfied, on the Briginshaw standard of proof 1, that each of them knew about plans to remove parts and did nothing about it. He also found that Mr Campanella provided some indirect assistance through the construction of a concealed compartment in a van and through inappropriate storage of components. In respect of Mr Barton the Commissioner found that he also provided indirect assistance through the inappropriate storage of components and by facilitating the fit out of the van.
[7] This case very much turned on the evidence, the assessment by the Commissioner of the various witnesses, the inferences drawn by the Commissioner from the evidence and the exercise of the evaluative discretion of the Commissioner in determining whether or not the terminations were unfair.
[8] A major criticism of the Commissioner’s decision was that it was not Holden’s case at first instance that the appellants had been engaged in a plan to facilitate the un-authorised removal of automotive parts. We do not accept that the Commissioner erred in reaching the conclusions that he did regarding plans to remove parts. That he was not prepared to find that the appellants had engaged in misconduct of a more serious nature, demonstrates the careful manner in which he analysed the evidence and the care he took not to make findings unless he could be satisfied, on the relevant standard of proof, that those findings were open.
[9] Although the appellants have sought to examine the evidence through the appellate fine-tooth-comb we are not able to discern any error in the Commissioner’s findings, nor in his analysis of the facts, nor in the way in which he exercised his discretion. We have considered all that has been put by the appellants in the appeal. In our view the Commissioner had regard to relevant matters and did not have regard to irrelevant matters. The conclusions to which he came were unexceptional, both in regard to whether there was a valid reason for the termination of the employment of each of the appellants and whether in the circumstances of their lengthy employment history either termination was harsh.
[10] The Commissioner’s decision is not affected by error. We do not consider that it is in the public interest to grant permission to appeal. Permission is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms R Nelson, counsel for the applicants.
Mr M Follett, counsel for the respondent.
Hearing details:
2011.
16 August.
Melbourne.
1 Briginshaw v Briginshaw (1938) 60 CLR 336
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