This very interesting extract from a decision of the Fair Work Commission in an appeal deals with the legal principles which apply to the hearing and disposition of such appeals in the Commission.
“Consideration
[1] An appeal under s 604(1) of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.86 There is no right to appeal, and an appeal may only be made with the permission of the Commission.
[2] This appeal is one to which s. 400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[3] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the public interest test imposed by s 400 as “a stringent one”.87 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.88 The public interest might be attracted, for example, where a matter raises issues of importance and general application, where there is a diversity of
decisions at first instance so that guidance from an appellate court is required, where the decision at first instance manifests an injustice or the result is counter intuitive, or because the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.89 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 an appealable error.90 However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.91
[4] It is significant, in the present appeal, that the intention of s 400 of the Act is to constrain the potential for appeals to be brought with respect to decisions in unfair dismissal proceedings. In Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364, the Full Bench recently described the statutory purpose lying behind the provision and its consequences in the following way:92
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.
…
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.
[5] This is a matter in which those observations are pertinent. The Commissioner was faced with a complex and voluminous evidentiary case. The evidence included direct accounts given by a number of witnesses as to what occurred during and following the incident on 27 June 2023, evidence concerning the service history of the particular forklift involved in the incident and expert evidence in relation to the operation and maintenance of that type of forklift more generally. A number of witnesses were called to give evidence and cross-examined and the Commissioner was called upon to make findings in relation to their evidence, including in relation to matters which required an assessment of the reliability and credibility of the evidence given. The Commissioner was invited to find that Mr Calovski was dishonest in the account of the incident which he provided to his employer and in the proceedings before the Commission. In considering those submissions, the Commissioner had the advantage of assessing the
demeanour of the witnesses. In considering the question of permission to appeal, it is relevant that the 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”.93
[6] The grounds of appeal do not, in our opinion, raise issues of importance or general application to the jurisdiction of the Commission under Part 3-2 of the Act or the manner in which the Commission should approach the determination of questions of fact raised in unfair dismissal proceedings. The decision of the Commissioner contains a careful and thorough consideration of all the evidence put forward in the proceedings. The factual findings made by the Commissioner and her decision to award an unfair dismissal remedy demonstrate an orthodox approach to the fact-finding task and the determination of whether an unfair dismissal remedy should be awarded. We have set out in some detail the Commissioner’s reasons and the basis upon which Opal Packaging seeks permission to appeal. The grounds of appeal are, in substance, little more than an attempt to have the Full Bench reconsider factual findings made by the Commissioner in circumstances in which those findings were made by a member of the Commission who had the considerable benefit of directly seeing and hearing the evidence given. In our opinion and having regard to the statutory context to which we have referred, it is not in the public interest for permission to be granted to revisit the factual findings made by the Commissioner in this matter.
[7] In any event, we are not satisfied that the grounds of appeal advanced by Opal Packaging demonstrate an arguable case of appealable error which might lead us to consider that it is in the public interest to grant permission to appeal.
Appeal Ground 1
[8] Appeal ground 1 is that the Commissioner erred by finding that she was unable to determine between two possible causes of the accident involving the forklift being driven by Mr Calovski. Opal Packaging contends that this finding was inconsistent with facts incontrovertibly established by the evidence or alternatively involved a conclusion made without evidence. In support of this appeal ground, Opal Packaging relies on there being insufficient evidence to support Mr Calovski’s version of events that soft pedal occurred. Further, Opal Packaging contends that the evidence it relied upon with respect to the extent of the damage and actions which would have slowed down the forklift supported its case that the incident could not have been caused by brake failure.
[9] In relation to evidence about soft pedal, Opal Packaging submits that there was no evidence of effective braking, of water contamination or of brake fluid leakage, the likelihood of water introduction to the system unnoticed is extremely low, the forklift was examined by a forklift maintenance company then returned to service and there was unchallenged expert evidence that the chances of brake failure were 1 out of 10 even if the brakes had not been serviced in the previous 12 months. In relation to the extent of the damage and actions which would have slowed down the forklift, Opal Packaging submits that hitting various objects should have slowed the trajectory of the forklift down to some degree, there was expert evidence by Mr Brennan that the damage could not have been caused by brake failure and that Mr Calovski accepted that, if he had taken his foot off the brake,94 the forklift would have slowed down to an almost complete stop.
[10] The Commissioner accepted that the incident occurred while Mr Calovski was driving the forklift, there was no evidence of effective braking, the brakes worked when Adapt-A-Lift tested them post incident, Adapt-A-Lift did not find any faults with the forklift’s brakes and the forklift was returned to service the night of the incident and no issues arose with the forklift’s brakes once this happened.95 The Commissioner found that these matters weighed in favour of a finding on the balance of probabilities that the accident was Mr Calovski’s fault.96 Further, the Commissioner accepted that hitting various objects should have slowed the trajectory of the forklift down to some degree97 and that it was unlikely that the brake fluids were low.98 As to whether the forklift would have slowed down to an almost complete stop if Mr Calovski had taken his foot off the brake, Mr Calovski’s evidence during cross-examination was that when a person takes their foot off the accelerator the forklift still rolls but would slow down. The brake must be pressed for the forklift to stop.99
[11] As to there being no evidence of water contamination of the forklift brakes, the Commissioner noted that the forklift manual referred to small amounts of water in the brake system causing reduced braking performance,100 that Mr Paraskevopoulos confirmed during cross examination that he did not test to see if the brakes were contaminated by water and that if Mr Paraskevopoulos tested for contamination, he could have identified whether the oil was contaminated with water. The Commissioner was satisfied that water contamination is a cause of soft pedal and no testing of the brake fluids was undertaken to rule contamination out.101 In other words, being on notice that Mr Calovski said the brakes had failed and that water reduced brake performance, Opal Packaging could have undertaken testing to confirm that there was no water contamination of the forklift brakes but did not do so.
[12] As to the likelihood of water introduction to the system unnoticed being extremely low, Mr Brennan expressed this opinion in his Expert Report based upon there being no indication from Mr Calovski that the indicator light was on.102 Mr Brennan clarified in cross examination that whether the indicator light on the dash would be lit if water is in the system would be dependent on the forklift make and model.103 Mr Brennan was taken to the forklift manual cited in his report which relevantly stated:104
There’s an indicator light on the display switch cluster for the brake oil. See figure 24. The red light is on when the key switch is in the start position on the power – or the power on/off is pressed and must go off when the engine is running.
…
If the light is on when the engine is running the brake fluid oil in the reservoir is too low.
[13] Mr Brennan stated that he was not able to correctly answer a question which posited that the indicator light in the particular forklift would show that the brake fluid was too low but not necessarily whether it was contaminated with water.105 The Commissioner said that she was unable to draw a conclusion that if contamination occurred the indicator light would have been on or that Mr Calovski would have seen it.106 In our view this finding was available to the Commissioner on the evidence before her.
[14] As to there being unchallenged expert evidence that the chances of brake failure were 1 out of 10 on a scale of 1 to 10 even if the brakes had not been serviced in the previous 12
months, we note that the opinion expressed in Mr Brennan’s Expert Report was in relation to brake failure occurring where the brakes had not been serviced in the 12 months prior to the accident.107 However, in a different section of the report, Mr Brennan recorded that if there was water contamination there was a high likelihood of brakes failing.108 During re-examination, Mr Brennan’s evidence was that the likelihood of water being in the brake system and then turning into gas and then back into water occurring as being in the 2 to 3 out of 10 range.109 Further, during cross-examination, Mr Brennan acknowledged that there were numerous requirements he could not identify in the forklift history as being completed because they did not appear in the history and that if these had not been carried out, the cumulative effect would significantly increase the risk of brake failure, including a temporary failure.110 The Commissioner concluded that while a 2 or 3 out of 10 does not indicate a high degree of likelihood, this scenario is more than a remote possibility and it should not be considered in isolation from other relevant factors when identifying the likely cause of the incident on the balance of probabilities.111 In our view, this finding was available to the Commissioner on the evidence before her.
[15] As to Mr Brennan’s expert evidence that the damage could not have been caused by brake failure, the Commissioner found that the total distance travelled by the forklift was 19 metres. The Commissioner noted that the assumption made by Mr Brennan regarding total distance travelled was 10 to 12 metres from the commencement of forward travel to the final position of the broken door which was materially different to her finding especially considering her earlier finding that the forklift could have been travelling at its maximum speed of 10km per hour when it hit the orange and blue drum. As Mr Brennan’s report stated “[s]should these assumptions be materially different, this may in turn affect the content of the Report, and conclusions therein”, the Commissioner considered that Mr Brennan’s evidence about whether damage could have resulted in the event of brake failure could not be relied upon.112 In our view this finding was available to the Commissioner on the evidence before her.
[16] For the reasons above, we do not agree that the facts asserted by Opal Packaging to be incontrovertible were so or that the Commissioner made conclusions without evidence. The Commissioner accepted that the evidence established some but not all of the facts advanced by Opal Packaging in appeal ground 1. Those findings were made by the Commissioner based on the evidence before her and we find no arguable error in her approach. The Commissioner had the benefit of directly seeing and hearing the evidence. The Commissioner took into account her findings in relation to these matters and had regard to the flaws in the investigation, Mr Calovski’s 25 years’ experience as a forklift driver, that he was not impaired, that Mr Calovski’s account was consistent, and that Mr Calovski did not have a history of being untruthful during his employment in concluding that it was not more plausible that the accident was caused by Mr Calovski rather than soft pedal113 and that she was unable to be satisfied, on the balance of probabilities, about which of these two theories caused the incident.114
[17] The submission advanced by Opal Packaging was, in substance, that the possibility of soft pedal having been caused by water contamination was so low, particularly when the forklift was returned to service following the incident and apparently performed normally, that the Commissioner should have found that it was not the cause of the incident. Whilst the evidence indicated that the chances of water contaminating the brakes of the forklift was low, the reasons of the Commissioner demonstrate that it was more than a remote possibility and had not been
excluded because appropriate testing was not undertaken. It was open on the evidence for the Commissioner to make that finding.
[18] Opal Packaging’s submissions ignore that its alternative explanation of the incident would itself have constituted an extremely unlikely event. The Commissioner aptly described the alternative scenario of the incident involving Mr Calovski driving the forklift unsafely in the following manner:
[315] While it is a combination of factors that make the explanation about soft pedal plausible and it appears that the incident happened within a matter of seconds, I consider it is no more likely that a forklift driver with 25 years’ experience and who was not under the influence of drugs, alcohol or otherwise observed to be impaired, could make a combination of errors that would see him:
• apply the accelerator to move a forklift from its parked position toward the boiler for around 8 metres and then either brake late or accidentally accelerate into the first object, being the blue and orange drum; and
• then fail to brake, continue to accelerate or accidentally accelerate such that the forklift travelled a further nine metres into a pedestrian zone, hitting multiple other objects along the way, in circumstances where the forklift should have stopped within 2 metres had a working brake been applied.
[19] Furthermore, it is quite wrong for Opal Packaging to characterise Mr Calovski’s case as relying on circumstantial evidence. Opal Packaging’s submissions leave entirely out of the equation that Mr Calovksi gave direct evidence of what occurred in the incident on 27 June 2023. Mr Calovksi gave the same account immediately after the incident, in the course of the investigation of the incident and in the proceedings before the Commissioner. It was appropriate, in the circumstance of this matter, for the Commissioner to consider whether there was a sufficient basis to reject the direct evidence given by Mr Calovski.115
[20] Finally, in relation to the Commissioner’s findings about Mr Calovski failing to use the handbrake, the Commissioner noted that measures that should have been taken by Mr Calovski in the event of brake failure were not a feature of Opal Packaging’s investigation or the proceedings. On this basis, the Commissioner said she was not able to conclude that Mr Calovski’s failure to apply the handbrake would justify his dismissal. In our view this finding was available to the Commissioner on the evidence before her.
[21] In our view, no arguable error arises with respect to the Commissioner’s finding that she was unable to determine between two possible causes of the crash of the forklift being driven by Mr Calovski and her consequential findings about the handbrake and Mr Calovski’s truthfulness. To put it another way, it was open to the Commissioner to conclude that she was not satisfied the incident had occurred because Mr Calovski had operated the forklift in an unsafe manner. We reject this ground of appeal.
Appeal Ground 2
[22] The second ground of appeal is that at the Commissioner misapplied the principles established in Briginshaw v Briginshaw. Opal Packaging contends that the Commissioner inverted the usual reasoning process from one based on determining the most likely scenario to
one where Opal Packaging was effectively asked to conclusively disprove a speculative theory. Opal Packaging also submitted that the Commissioner erred in taking into account procedural errors as relevant to the factual determination.
[23] Mr Calovski was terminated on the grounds of misconduct because it was alleged that he failed to operate the grab forklift in a safe manner and was not willing to accept any responsibility for the incident. Implicit in Opal Packaging’s reasons for termination is an allegation that Mr Calovski failed to apply the brakes. Opal Packaging accepted, in its submissions, that when an employer alleges misconduct, it must establish, on the balance of probabilities, that the misconduct occurred.
[24] Opal Packaging further accepted that the principles explained in Briginshaw v Briginshaw (1938) 60 CLR 336 apply in a case such as the present, although it emphasised that the standard of proof never changes, and it is an error to apply a higher level of satisfaction in relation to findings of fact involved than the civil onus of the balance of probabilities.116 Where a fact must be proved, the application of the civil standard nonetheless requires that the fact finder feel actual persuasion of the occurrence of the fact in issue. In Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, Lee J explained the reference to the “balance of probabilities” in the context of s 140(1) of the Evidence Act 1995 (Cth) as follows:117
The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.
Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA,
Beazley JA agreeing).
Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).
[25] There was no error in the Commissioner asking herself whether she was satisfied that the incident occurred as a result of Mr Calovski operating the forklift in an unsafe manner. To make that finding, it would have been necessary that the Commissioner feel an actual persuasion that the allegation of misconduct relied upon by Opal Packaging was established on the material before the Commission.
[26] The reasons of Dixon J in Briginshaw v Briginshaw, emphasise that the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence and the gravity of the consequences flowing from the finding in question are matters that properly bear upon whether the court is reasonably satisfied or feels actual persuasion that an event occurred.118 Although no different standard of proof is to be applied, the nature of the fact and the consequences of the finding being made are appropriate to be taken into account when assessing whether the decision-maker feels actual persuasion as to a fact. Lee J referred to the observations in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 that s 140 of the Evidence Act 1995 (Cth):119
… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.
[27] In our view, the Commissioner approached the determination of whether she was satisfied that Mr Calovski had operated the forklift in an unsafe manner consistently with these principles. The Commissioner understood that the allegations made by Opal Packaging about Mr Calovski’s conduct were serious. The Commissioner’s observation that there needs to be sound evidence upon which a firm finding may be made, on the balance of probabilities, that Mr Calovski failed to operate the grab forklift in a safe manner, causing extensive damage and creating a safety incident that could have resulted in injury and loss of life, and that he lied or was dishonest about this, is a correct statement of the applicable legal principles.
[28] The primary basis of Opal Packaging’s submission that the Commissioner misapplied Briginshaw v Briginshaw is the observation she made that it should have conducted testing of the forklift following the incident that would have conclusively ruled out water contamination. The comment made by the Commissioner is as follows:
[311] The seriousness of the incident, in my view, warranted a more thorough investigation. The Respondent should have obtained the Applicant’s account before the forklift was returned to service and, upon learning that soft pedal was alleged, it should have arranged for testing to conclusively rule out water contamination and given more careful consideration to the forklift’s service history.
[29] Opal Packaging submits that this part of the decision demonstrates an approach that required it to rule out any competing allegation conclusively. That, it says, involves the imposition of an inappropriate standard of proof. The submission misreads the Commissioner’s decision. In our opinion, the Commissioner did no more than to observe that, had appropriate testing been conducted, whether contamination had occurred would have been known with certainty.
[30] We do not believe that this aspect of the decision indicated the Commissioner imposed a standard of proof that required Opal Packaging to prove conclusively that there had not been water contamination. The Commissioner carefully weighed all aspects of the evidence to assess whether she was persuaded that Mr Calovski had operated the forklift in an unsafe manner as alleged. That included consideration of the likelihood of water contamination, the likelihood
that Mr Calovski operated the forklift in the manner alleged and Mr Calovski’s direct evidence as to what occurred. In our view, the Commissioner’s reference to the omissions in the investigation of the incident at that point of the reasoning was no more than an acknowledgement that, had appropriate testing been conducted, the exercise of weighing other aspects of the evidence would have been unnecessary.
[31] The Commissioner separately considered the failures that had occurred in the investigation as a relevant matter for the purposes of s 387(h) of the Act. The Commissioner considered that it was within the means of Opal Packaging to undertake an investigation into what was accepted to be a very serious safety incident and rule out the known causes of soft pedal and that the failure to do so was regrettable and weighed in favour of a finding that the dismissal was harsh.120 There was no dispute that flaws in the investigation of an allegation of misconduct could be relevant to whether a dismissal was harsh, unjust or unreasonable. There may be a question as to whether a flawed investigation might more appropriately be described as contributing to a finding that a dismissal was unreasonable or unjust rather than harsh. However, we do not believe there was any error in the Commissioner’s observations about there being flaws in the investigation. It might, in a particular case, be unreasonable or unjust to dismiss an employee on account of an incident of misconduct if the employer does so without conducting an appropriate investigation to determine whether the allegation of misconduct was properly founded. The Commissioner’s reasons put the matter no higher.
[32] Finally, Opal Packaging submits that the Commissioner did not distinguish between the likelihood of water in brake fluid causing soft brakes with the likelihood of water being in the brake fluid. We do not accept that submission. Mr Brennan gave evidence about both of these matters which was referred to by the Commissioner. He said that if low brake fluid levels or water is introduced to the system the likelihood of soft pedal or non-existent pedal pressure is high. He also said that the likelihood of water being in the brake system and then turning into gas and then back into water occurring as being in the 2 to 3 out of 10 range. The Commissioner concluded that, while a 2 or 3 out of 10 does not indicate a high degree of likelihood, this scenario is more than a remote possibility and it should not be considered in isolation from other relevant factors when identifying the likely cause of the incident on the balance of probabilities. In our view, this finding was available on the evidence and does not indicate that she failed to distinguish between the likelihood of water in brake fluid causing soft brakes with the likelihood of water being in the brake fluid.
[33] In our view, no arguable error arises with respect to the Commissioner’s application of the principles established in Briginshaw v Briginshaw and we reject this ground of appeal.
Conclusion
[34] Having found no errors in the Commissioner’s determination of the matter, we do not consider that the grant of permission to appeal would be in the public interest as the grounds of appeal have insufficient prospects of success. Further, the appeal does not raise any legal or factual issue of significance or general application, there is no relevant diversity of decisions at first instance, the legal principles applied by the Commissioner are not disharmonious when compared with other decisions, and we do not consider that the Commissioner’s decision is counter intuitive or manifests an injustice. In relation to the workplace safety issues raised by Opal Packaging as public interest considerations, we do not agree that the decision is
inconsistent with other unfair dismissal decisions in the Commission where an employee has been dismissed for unsafe work practices, or that the decision suggests that an employer is required to conclusively disprove speculative alternative theories about machinery failure or sends a message to employees that safety breaches can occur with impunity.
[35] For the reasons set out above, the Full Bench orders that permission to appeal is refused. The stay order made by Vice President Gibian lapses upon the determination of this appeal.”
Appeal by Opal Packaging Australia Pty Ltd v Pece Calovski [2025] FWCFB 16 delivered 30 January 2025 per Gibian VP, Dean DP and Wright DP