[2011] FWAFB 1166

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Fair Work Act 2009
s.604 - Appeal of decisions

Parmalat Food Products Pty Ltd
Mr Kasian Wililo

Food, beverages and tobacco manufacturing industry



Appeal against decision 2010 FWA 8727 of Commissioner Cargill at Sydney on 15 November 2010 in matter number U2010/9543, Decision 503822; Order 503823 - appeal in relation to unfair dismissal application - discretionary decision - permission to appeal under s400 - significant error of fact - public interest test - disciplinary action/termination in relation to safety breach - enforcement of safe working practices - reinstatement following safety breach.


[1] This decision concerns an application for permission to appeal against the decision of Commissioner Cargill dated 15 November 2010 in relation to an unfair dismissal application under s394 of the Fair Work Act 2009 (the Act) by Mr Kasian Wililo regarding the termination of his employment by Parmalat Food Products Pty Ltd (Parmalat). The Commissioner found the termination to be harsh and ordered reinstatement.

[2] The Appeal was heard on 22 February 2011. Mr I. Latham of counsel represented Parmalat. Mr O. Fagir of the Transport Workers Union of Australia represented Mr Wililo.

Nature of the Appeal

[3] An appeal under s604 of the Act in a matter of this nature is determined by reference to the provisions of s400 of the Act. Section 400 provides:

[4] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 1 considered the impact of s400 on the approach to granting permission to appeal. It said:

[5] The decision in this matter is properly viewed as a discretionary decision 2. The appeal is therefore to be considered in accordance with the principles of House v R3. Those principles are expressed in that decision as follows [at 504-505]:

[6] Section 400(2) modifies the House v R principles by limiting any review based on a 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 in other matters under the Act.

The Decision Under Appeal

[7] The Commissioner conveniently set out Mr Wililo’s employment circumstances in paragraphs [7-12] of her decision. She said:

[8] The termination arose from an investigation by the Company into an alleged breach of safety while driving a forklift. Mr Wililo was dismissed by way of a letter dated 31 May 2010. That letter was in the following terms:

“[Titled] Confirmation of Termination of Employment

[9] The Commissioner considered the evidence before her in relation to each of the factors in s387 of the Act. Her conclusions on whether a valid reason existed for the termination was:

[10] The Commissioner then considered the procedural fairness considerations and concluded:

[11] As to paragraphs (e), (f) and (g) the Commissioner said:

[12] The Commissioner turned to consider other relevant matters. She said:

[13] The Commissioner then concluded:

[14] The Commissioner concluded that reinstatement was appropriate but that as Mr Wililo’s conduct contributed to his termination Parmalat should not be required to pay him for any remuneration lost since the termination.

Grounds of Appeal and Submissions

[15] Parmalat submits the decision raises important questions as to the enforcement of safe working practices and the employer’s right to take disciplinary action against employees for breaches of safety. It submits that the Commissioner erred in using the matters in paragraphs [124] to [127] to find the dismissal harsh. It submits that considered objectively, these factors did not outweigh the findings of a valid reason for serious misconduct and compliance with the procedural fairness considerations. Parmalat also submits that the Commissioner made a significant error in her finding about the gravity of the safety breach and consequently the finding about dishonesty in the investigation process. It also submits that the Commissioner erred in finding that reinstatement was appropriate.

[16] Parmalat submits that it is in the public interest that the Tribunal confirm the right of an employer to dismiss employees who are guilty of a significant safety breach particularly as that breach is found by the Tribunal to constitute serious misconduct.

[17] The TWU on behalf of Mr Wililo submits that permission to appeal should not be granted and/or the appeal should be dismissed as Parmalat has not established any error of substance and that the alleged errors amount to an invitation to the bench to make findings of fact different to that of the Commissioner. It submits that the appeal is without merit, fails to establish any error, let alone one that satisfies the House v R standard.

Permission to Appeal

[18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.

The Exercise of the Discretion

[20] The grounds of appeal address a number of different aspects of the Commissioner’s decision. In a broad sense Parmalat says that when an employee is found to have been dismissed for a safety breach, this amounts to a valid reason for termination and indeed serious misconduct, and the employer applies appropriate measures to ensure procedural fairness, it is inconceivable that a conclusion could be reached that termination of employment is harsh.

[21] More specifically Parmalat submits that the Commissioner made significant errors in relation to the findings on the gravity of the misconduct and had regard to factors in apparent mitigation of the primary conclusions which did not logically lead to the ultimate conclusion that the termination was harsh. It was submitted that if the factors were relied on as mitigating factors there was reliance on irrelevant considerations, and if there was not then the failure to take into account some factors against Mr Wililo amounted to a failure to take into account relevant considerations.

[22] Parmalat also submitted that the notion of reinstating an employee guilty of serious misconduct in the absence of any procedural defect or mitigating factor is patently unreasonable and unjust such that the decision should be quashed on the general grounds of House v R.

[23] A consideration of these arguments involves a more detailed consideration of the reasoning of the Commissioner and the various matters dealt with in her decision.

[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.

[25] It is not clear to us that in referring to other considerations under s387(h) the Commissioner was suggesting that these were mitigating factors. If they were so considered we believe she fell into error. The service and disciplinary record of Mr Wililo was not a mitigating factor as his service was short and his disciplinary record was poor. The failure to show Mr Wililo the CCTV footage was not a matter of significance. It was largely inconclusive and could not have altered the conclusion that Mr Wililo had an adequate opportunity to respond to the allegations against him.

[26] Mr Wililo’s conduct was found to be serious misconduct. It involved deliberate acts. We consider that characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences. Further we do not believe that there was a sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.

[27] We were also asked to view the CCTV footage to assess the findings of the Commissioner in relation to the events involved. This is a difficult issue but we tend to agree that the footage does not appear to establish the findings of the Commissioner in relation to the footage.

[28] As we have indicated the Commissioner does not say, in terms, that these matters were mitigating factors. It may be that the finding of harshness was based on other grounds not immediately apparent from her reasons, such as the failure of the employer to establish that Mr Wililo placed his head and torso under a forklift load (as distinct from his arm and hand) and the consequent failure of the employer to establish dishonesty to the Commissioner’s satisfaction.

[29] Added to this difficulty in discerning the true reasons for her ultimate finding we consider it somewhat anomalous that an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in the absence of discernable and significant mitigating factors. These concerns involve matters of principle and the overall reasonableness of the decision.

[30] In these circumstances we find that the Commissioner’s decision is attended by error. The errors are of the House v R kind. In our view the Commissioner’s discretion miscarried, the appeal should be allowed and the decision quashed.

[31] We consider that we have the materials available to us to determine the matter and refer to our consideration of the matters above and the overall circumstances as summarised in the Commissioner’s decision and the evidence led by the parties in the matter.

[32] In our view there was a valid reason for termination and the situation would be more serious if the witness accounts of Mr Wililo’s actions are accepted. In any event his conduct amounted to serious misconduct.

[33] We consider that Mr Wililo was given an adequate opportunity to respond to the allegations against him.

[34] In our view there are no mitigating factors that should have led to a lesser penalty than dismissal being adopted. Mr Wililo was employed only for a short time and has since found other employment. It is not for the Tribunal to place itself in the shoes of the employer and determine what it would have done in the circumstances. We must consider whether the employer’s action in terminating Mr Wililo’s employment was harsh, unjust or unreasonable in the circumstances. We find that it was not.


[35] For the reasons above we grant permission to appeal and allow the appeal. We quash the decision of Commissioner Cargill and dismiss Mr Wililo’s application for relief under s394 of the Act.



I. Latham, of counsel, for the Appellant

A. Aspromourgos for the Appellant

O. Fagir for the Respondent

Hearing details:


 1   [2010] FWAFB 5343.

 2   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.

 3   (1936) 55 CLR 499.

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