Appeals in the Fair Work Commission

The Fair Work Act contains provisions which render it very difficult to appeal an unfair dismissal decision. However here is an occasion when permission was granted.

“Permission to appeal

An appeal in relation to an unfair dismissal application is governed by the provisions of s. 604 and 400 of the Act. Section 604 deals with appeals generally. These requirements are modified with respect to unfair dismissal applications by s. 400 of the Act which provides that the Commission must not grant permission to appeal from a decision made by the Commission arising from an unfair dismissal application unless it considers that it is in the public interest to do so. The test under s. 400 has been characterised as stringent. 8

The application of the public interest test is a discretionary task involving a broad value judgment. 9 The public interest may 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.10

The Decision under appeal in the present case is a decision of a discretionary nature. The appeal is therefore required to be considered in accordance with the principles in House v R 11 as follows:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the on the ground that a substantial wrong has in fact occurred.”

As a Full Bench of the Commission observed in Dafallah v Melbourne Health 12:

“Section 400(2) modifies the House v R principles by limiting any review based on mistake of fact to a significant error of fact. Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters under the Act.” 13

The Appellant submits that the appeal raises important questions of principle regarding the Commission’s obligations to properly weigh and assess conduct which is found to have provided a valid reason for dismissal against other relevant matters. Further, the Appellant submits that it is in the public interest that the correct facts be applied in reaching a decision and that the decision not be based on findings which constitute significant errors of fact, particularly when there is found to be a valid reason for dismissal based on breach of a critical safety procedure and earlier warnings for a breach of the same procedure.

The Respondent submits that no important matter of principle or general application is raised in the notice of appeal and nor does it call into question any authority relied on by the Commission at first instance. On the contrary nearly all of the grounds pressed by the Appellant in substance seek to impugn the Commission’s findings of fact. The Respondent also submits that it should not be regarded as being in the public interest to allow parties to an unfair dismissal arbitration to relitigate the facts underpinning the exercise of the Commission’s broad discretion in ss. 385 – 387. The Respondent further submits that s. 400(2) of the Act imposes an additional stringent test on permission to appeal and that the Appellant gives no explanation for how the errors of fact alleged are significant.

We endorse the comments of the Full Bench in Harbour City Ferries Pty Ltd v Toms 14 to the effect that the public interest is not automatically attracted to any appeal involving workplace health and safety issues.15 However, we are of the view that the present case raises important questions about the respective rights and obligations of employees and employers in relation to safety procedures and policies at the workplace. Establishing and maintaining safety procedures and policies is an important obligation and breach can lead to serious consequences. In the present case, the Appellant established to the satisfaction of the Commissioner that the Respondent had breached a critical safety policy, that his conduct was a valid reason for dismissal and that the dismissal was procedurally fair. Notwithstanding this the Commissioner found that the dismissal was harsh and unreasonable and ordered reinstatement. The application of the unfair dismissal provisions in such a case is a matter of general importance which in our view attracts the public interest.16 We therefore grant permission to appeal.”

BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works v Habak (2019) FWCFB 5702 delivered 4 October 2019 per Asbury DP, Millhouse DP and Lee C