[2017] FWCFB 1714


Fair Work Act 2009
s.604 - Appeal of decisions

Tasmanian Ports Corporation Pty Ltd t/a Tasports
Mr Warwick Gee


SYDNEY, 18 MAY 2017

Appeal against decision [[2017] FWC 31] of Deputy President Wells at Hobart on 4 January 2017 in matter number U2015/11920.

Introduction and background

[1] Tasmanian Ports Corporation Pty Ltd trading as “Tasports” has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Wells issued on 4 January 2017 1 (Decision). The Decision concerned an application made by Mr Warwick Gee for an unfair dismissal remedy with respect to the termination of his employment with Tasports, which was communicated to him on 28 August 2015 and took effect on 24 September 2015. The Deputy President determined that Mr Gee’s dismissal was unfair, and then invited further submissions and evidence on the remedy to be ordered. No further decision as to remedy has yet been made.

[2] A brief recount of the nature of Mr Gee’s employment and the circumstances of his dismissal is necessary. Tasports is a state-owned company which owns and operates a number of ports in the State of Tasmania, and also engages in other commercial activities including operating or supplying labour to privately-owned ports. Grange Resources Limited is a mining business which processes and ships for export iron pellets at Port Latta in northern Tasmania. It has engaged Tasports to provide the personnel for its loading and shipping work at Port Latta. Mr Gee was an employee of Tasports, and was assigned to work at Port Latta pursuant to Tasports’ commercial arrangement with Grange Resources from 2009 until the date of his dismissal.

[3] An issue arose in relation to Mr Gee’s conduct at work on 13 August 2015, and this caused Grange Resources to conduct an investigation which initially was concerned with this incident but widened to include other matters that were earlier in time. Tasports was made aware of this investigation, but Mr Gee was not advised of its existence or given any opportunity to respond to the matters that were considered as part of the investigation.

[4] On 17 August 2015 Mr Paul Sturzaker, then Senior Processing Manager at Grange Resources, sent an email to Mr Ashley Ralston, Tasports’ Marine Supervisor at Port Latta (and copied to a number of other Grange Resources and Tasports managerial and supervisory staff) advising him that Grange Resources would be revoking Mr Gee’s access to all Grange Resources sites, effective immediately. The reasons given were that Mr Gee had allegedly:

[5] About 40 minutes after receiving this email, Mr Ralston replied in an email as follows (omitting formal parts):

[6] Mr Gee was advised later that day by Mr Ralston that his access to Grange Resources’ premises at Port Latta had been revoked. Mr Gee then responded to the matters which Grange Resources had raised against him, but there was no evidence that Mr Gee’s responses were ever communicated to Grange Resources. On 25 August 2015 Mr Barry Holden, then Tasports’ General Manager Marine Services, sent an email to Mr Ralston referring to the four matters which had caused Grange Resources to revoke Mr Gee’s site access and a fifth matter (“total disregard for basic site policy and procedure”), and making the following request:

[7] Mr Ralston responded by sending Mr Holden, by email dated 28 August 2015, a summary of information he had obtained from the investigation conducted by Grange Resources in support of the conclusions which had been reached by Grange Resources. Again, no attempt was made to obtain Mr Gee’s response to any of these matters. The same day Tasports sent Mr Gee the letter informing him of his dismissal. The letter relevantly stated:

[8] Tasports did not speak to Mr Gee about the possibilities of alternative work prior to sending the above dismissal letter.

The Decision

[9] In the Decision the Deputy President analysed the evidence and made findings concerning the allegations of misconduct advanced by Grange Resources. It is not necessary for the purpose of this appeal to traverse those specific findings except to say that the Deputy President accepted the evidence of Mr Gee about those matters and found that he had not in fact failed to follow a reasonable work direction on 13 August 2015, that he had not been informed of the policy which prohibited the taking of photos, and that it was not clear that he had contravened any reporting policy on 7 August 2015 and, even if he did, no action had been taken about it at the time that it occurred. The Deputy President then stated the following conclusions (footnotes omitted):

[10] The Deputy President then referred to two decisions - first, the decision of Asbury DP in Kool v Adecco Industrial Pty Ltd T/A Adecco 4 and then the Full Bench decision in Pettifer v MODEC Management Services Pty Ltd5. In relation to the latter decision, the Deputy President said:

[11] The Deputy President then quoted the relevant passages from Pettifer, and stated (footnotes omitted):

[12] The Deputy President proceeded to make findings concerning the efforts undertaken by Tasports prior to deciding to dismiss Mr Gee to ascertain whether there was any alternative employment available for him (footnotes omitted):

[13] The Deputy President then concluded, in relation to s.387(a), that there was no valid reason for dismissal as follows (footnotes omitted):

[14] The Deputy President went on to consider the other matters required to be taken into account by s.387. Relevantly, the Deputy President made findings under s.387(b) that Mr Gee was not notified of the reasons for the dismissal, under s.387(c) that he was not given an opportunity to respond to the reasons, and under s.387(h) that Mr Gee had a previously unblemished record of service and would have difficulty in finding alternative secure employment. The Deputy President’s ultimate conclusion was that the dismissal was harsh because of the matters she had considered under s.387(h) and was also unjust and unreasonable because there was no valid reasons for Mr Gee’s dismissal and he was not afforded an opportunity to respond to the reason for his dismissal. The Deputy President also said:

Appeal grounds and submissions

[15] Tasports’ appeal grounds were as follows:

[16] Tasports’ written and oral submissions dealt with the first four appeal grounds conjointly. It submitted in relation to those grounds that the Full Bench decision in Pettifer 6 had established that, in cases where an employee is unable to perform work as a result of the actions of a third party, the employer will have a valid reason for dismissal related to the employee’s incapacity to perform the inherent requirements of their job, and that it was not the role of the Commission to determine whether the decision of that third party was correct or fair but to consider whether the dismissal was unfair. In circumstances where Mr Gee’s substantive position was to perform work at Grange Resources’ Port Latta site, where Grange Resources owned and had exclusive control over access to the site, and where it had a right under its labour hire arrangement with Tasports not to utilise Mr Gee’s services, Tasports submitted that it necessarily had a valid reason for Mr Gee’s dismissal. Any issues as to redeployment might arise for consideration under s.387(h), but they did not arise under s.397(a) because incapacity for work was to be assessed by reference to Mr Gee’s substantive position, not a modified, temporary or alternative position. Therefore, it submitted, the Deputy President erred by assessing the question of “valid reason” by reference to Grange Resources’ conduct, by not applying the principle established in Pettifer, by taking into account the potential for redeployment under s.387(a), and by finding that Tasports had a duty to safeguard the interests of Mr Gee.

[17] Tasports also submitted that the Deputy President erred by finding that there were factual circumstances distinguishing this matter from Pettifer. The contractual arrangement between Tasports and Grange Resources was not relevant because the latter’s control over access to the site was not in dispute; it was not possible to conclude that any response from Mr Gee to the allegations could have changed the decision to dismiss him, and the lack of any proper consideration of redeployment was relevant to overall fairness but not to the question of whether there was a valid reason for dismissal.

[18] In relation to grounds 5 and 6 of the appeal, Tasports submitted that there was no evidence to support the conclusion that a proper consideration of redeployment opportunities would likely have led to a different outcome, since the evidence was that there was no suitable alternative employment at the time of dismissal. In relation to grounds 7 and 8, the submission was that the adverse consequences of the dismissal for Mr Gee were not profound or extraordinary and could not weigh in favour of a finding that the dismissal was harsh having regard to Mr Gee’s inability to perform his substantive role and the lack of redeployment opportunities. In relation to grounds 9 and 10, Tasports submitted that Mr Gee had the opportunity to call any medical evidence concerning his capacity to work at the hearing, and it should not be disadvantaged by further expense and delay because of the failure of Mr Gee to call such evidence. Further, it was procedurally unfair for Mr Gee to be subject to a direction to, in effect, re-open his case and provide “better” evidence to achieve a more favourable outcome.

[19] Mr Gee submitted that:


Permission to appeal

[20] An appeal under s.604 of the FW 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. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[21] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:

[22] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

[23] 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. 11 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.12

[24] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 13

[25] We consider that it would be in the public interest to grant permission to appeal in relation to grounds 1-4 of the appeal insofar as those grounds raise an significant issue concerning the import and application of the Full Bench decision in Pettifer v MODEC Management Services Pty Ltd. 14 Those grounds raise an issue which is of general importance and in relation to which some further appellate guidance would seem to be desirable.

[26] We do not consider that the other grounds of appeal are of a nature which attracts the public interest. In relation to grounds 5-6, the Deputy President’s conclusion in paragraph [56] of the Decision that a “robust review of redeployment opportunities within Tasports, and discussions with Mr Gee about such redeployment, was likely to have resulted in a different outcome, given his proven ability to obtain new skills and his employment record” was an inference drawn from primary findings of fact set out in paragraphs [52]-[54] of the Decision. Those findings of fact were not challenged in the appeal. The Deputy President’s conclusion appears to us on its face to have been reasonably open on the basis of those factual findings, and raises no issue beyond the particular facts of this case which warrants further appellate examination in the public interest. Grounds 7-8 are patently without merit, since it is well-established from the High Court decision in Byrne v Australian Airlines Limited 15 that a dismissal may be found to be harsh by reason of the personal and economic circumstances of the dismissed employee. Appealable error cannot be demonstrated on the basis of a contention that the maker of a discretionary decision should have given more or less weight to a particular consideration that is of relevance.16 Grounds 9 and 10 are likewise not arguable. The Commission has the power under s.590 of the FW Act to “inform itself in relation to any matter before it in such manner as it considers appropriate”. Requiring further evidence and submissions about Mr Gee’s medical condition, where the existing evidence was unsatisfactory and where circumstances might have changed during the period from the hearing to the date of the Decision, was clearly appropriate. No procedural fairness considerations arise since there was no question that Tasports would have the opportunity to adduce its own evidence and make submissions about this issue.

The Full Bench decision in Pettifer

[27] It is critical to the determination of grounds 1-4 of Tasports’ appeal to identify the ratio decidendi of the Full Bench decision in Pettifer. 17 The facts of that matter were that Mr Pettifer was employed by a labour hire company, Modec Management Services Pty Ltd, and had been assigned to work for BHP Billiton Petroleum Inc. (BHPB) to perform work upon a floating production, storage and offloading vessel. After a “near miss” incident, BHPB directed Modec to remove Mr Pettifer from the vessel. This direction was made pursuant to a right possessed by BHPB under a term of the labour supply contract between it and Modec. That right was expressed in the following terms (the “Company” being BHPB and the “Contractor” being Modec):

[28] Modec did not agree that Mr Pettifer’s conduct justified his removal from the vessel, but was nonetheless obliged to comply with BHPB’s direction in accordance with the above contractual provision. Modec endeavoured to find alternative work for Mr Pettifer, which included consideration of local and international employment opportunities and discussions with Mr Pettifer’s union to explore alternative roles, and Mr Pettifer was retained in employment while this occurred. It was ultimately concluded that there was no suitable alternative role for him. Mr Pettifer was given an opportunity to respond to this conclusion. He was ultimately dismissed on the basis that Modec had no suitable role for him to perform. Modec did not seek to justify the dismissal by reference to any aspect of Mr Pettifer’s conduct.

[29] Mr Pettifer applied to the Commission for an unfair dismissal remedy. In the decision at first instance 19, it was concluded that s.387(a) did not arise for consideration because Modec did not rely on any matter related to the applicant’s capacity or conduct as a reason for the dismissal. Notwithstanding this, the dismissal was found not to be unfair, essentially on the basis that there was no practical alternative by which Mr Pettifer could have been retained in employment.

[30] Mr Pettifer appealed on the basis that the conclusion that s.387(a) did not arise for consideration was in error, and contended in the appeal that his dismissal occurred because of the allegation of misconduct levelled against him by BHBP. The Full Bench rejected the proposition that Modec dismissed Mr Pettifer on the basis of any consideration as to his conduct. However, the Full Bench determined that his dismissal was capacity-related, and that the Commissioner erred by not considering this under s.387(a). The Full Bench said:

[31] Having found error in the respect identified, the Full Bench proceeded to re-determine Mr Pettifer’s unfair dismissal remedy application. In relation to s.387(a), the Full Bench referred to the contractual provision earlier quoted, and said (footnotes omitted):

[32] The Full Bench went on to deal with paragraphs (b)-(h) of s.387 and ultimately came to the same conclusion as that at first instance, namely that the dismissal was not unfair.

[33] Importantly the Full Bench did not conclude that the decision of Asbury DP in Kool v Adecco Industrial Pty Ltd T/A Adecco 20, to which reference was made in the above passage, was in error, and indeed endorsed that decision to the extent that it contained a general statement of principle. That principle was enunciated in the following passage in Adecco, the second paragraph of which was quoted by the Full Bench in Pettifer21 in the course of its recital of the appellant’s submissions:

[34] Tasports went so far as to submit that Pettifer stood for the principle that a decision by a host employer in the context of a labour hire arrangement to have a worker supplied by a labour hire employer removed from its worksite meant that there was necessarily a valid reason for the worker’s dismissal by the labour hire employer based on the worker’s capacity for the purpose of s.387(a). That submission cannot be accepted. It is inconsistent with the statement of principle in Adecco which, like the Full Bench in Pettifer, we endorse. Even in the context of a labour hire arrangement, whether there is a valid reason for dismissal will depend upon all the circumstances of the case. Pettifer exemplifies that proposition because of the way in which its different facts resulted in a different outcome to that in Adecco, where the Deputy President found that there was no valid reason for the employee’s dismissal related to her capacity or conduct and that the dismissal was unfair. That may be illustrated in three ways.

[35] First, as the Full Bench pointed out, in Adecco the terms of the contract between the labour hire employer and the host employer were not disclosed, so that it was not clear what precise right the host employer had to remove the worker from the worksite. In Pettifer the Full Bench had before it the relevant provision of the contract, which made it abundantly clear that the host employer had the absolute right to remove the worker where it subjectively formed the view that the “involvement” of the workers was not “in the best interests of the project”. There is no reason to assume that a provision of that precise nature is universal in labour hire contracts. If, for example, the labour hire contract permitted the host employer to request the removal of a worker only in the case of proven misconduct or non-performance of duties, entirely different considerations would arise. In that case the labour hire employer would have the contractual right to resist the removal of a worker by the host employer where substantiation of any allegation of misconduct or non-performance was not forthcoming. If, notwithstanding this, the labour hire employer simply acquiesced in the removal of the worker and proceeded to dismiss him or her, it is difficult to imagine that such a dismissal could be justified on the basis of the worker’s incapacity, since the inability of the worker to continue working for the host employer would be the result of the labour hire employer’s failure to insist upon compliance with its contract with the host employer rather than any incapacity on the part of the worker.

[36] Second, in Adecco the labour hire employer simply acquiesced in the host employer’s contention that the worker had engaged in misconduct without forming any independent view about whether this allegation was substantiated, in circumstances where the Deputy President found, on the evidence before her, that it was not. 22 By contrast, in Pettifer Modec formed the independent conclusion that the worker had not done anything which warranted dismissal, as earlier stated. This distinction is significant because it demonstrates that where a labour hire employer dismisses a worker based on an endorsement of an allegation of misconduct by the host employer, it may be the case that the dismissal is better characterised as conduct-based rather than capacity-based, and its validity under s.387(a) is to be assessed on that basis.

[37] Third, in Adecco the Deputy President did not, in connection with s.387(a), accept that the labour hire employer had established that there was a lack of alternative work placements for the employee in question, and pointed to evidence which suggested that in fact there may have been alternative work available. 23 The Full Bench in Pettifer at paragraph [41] identified this as a further point of factual distinction, in that Modec had made exhaustive efforts to find alternative work for Mr Pettifer.

[38] Tasports submitted that while the issue of the availability of alternative work might properly arise for consideration under s.387(h), it was not relevant to the question of whether there was a valid reason for dismissal based on capacity under s.387(a). It relied in that connection upon the Full Bench decision in J Boag & Son Brewing Pty Ltd v Allan John Button 24, where the Full Bench said:

[39] We doubt whether Boag v Button is really on point, since it was concerned with physical incapacity due to illness or injury to perform the inherent requirements of the employee’s substantive role, not the circumstances of a labour hire arrangement. Even if Boag v Button is applicable, it may not be a simple matter to identify what the substantive role of a labour hire employee is. The conventional position is that labour hire employees are engaged to perform work in such positions as may be assigned to them from time to time. Pettifer represented a departure from that conventional position in that Mr Pettifer was engaged to perform work specifically for BHPB. What the precise position is in any given case will depend upon an analysis of the employee’s contract of employment.

[40] We therefore regard Pettifer as the application of the principle stated in Adecco to a particular factual scenario. It does not stand for the broader proposition contended for by Tasports. That conclusion makes it unnecessary for us to consider Mr Gee’s alternative submission that Pettifer was incorrectly decided.

The Deputy President’s consideration under s.387(a)

[41] Having regard to our conclusion about the ratio decidendi of the Full Bench decision in Pettifer, we do not consider that Pettifer compelled the Deputy President to conclude that there was a valid reason for Mr Gee’s dismissal related to his capacity merely because Grange Resources acted to remove him from its Port Latta site. It is apparent, as the Deputy President found, that there were a number of factual matters which distinguished Mr Gee’s matter from Pettifer:

[42] The Deputy President, in assessing whether there was a valid reason for dismissal under s.387(a), adopted the approach taken in Adecco which, as earlier explained, was the correct approach and consistent with Pettifer. There was no error of principle on her part. The actual conclusions she reached concerning the validity of the reasons for dismissal were, we consider, reasonably open to her. Consideration of whether there is a valid reason for dismissal under s.387(a) involves the making of an evaluative assessment which is in the nature of the exercise of a discretion. It is therefore not sufficient in an appeal to invite the Full Bench simply to form a different view as to whether there was a valid reason for dismissal; appealable error of the kind identified in House v The King 27 must be identified. We do not consider that any appealable error has been demonstrated in the Deputy President’s consideration concerning s.387(a). The appeal must therefore be dismissed.


[43] We order as follows:

al of the Fair Work Commission with the memeber's signature.



R. Collinson and S. Masters for Tasmanian Ports Corporation Pty Ltd.

H. Borenstein QC with T. Slevin of Counsel for Warwick Gee.

Hearing details:



23 March.

 1   [2017] FWC 31

 2   Tasports’ Human Resources Manager

 3   Mr Gee’s Shift Supervisor

 4   [2016] FWC 925

 5   [2016] FWCFB 5243

 6   [2016] FWCFB 5243

 7   This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 8   (2011) 192 FCR 78 at [43]

 9   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) 192 FCR 78 at [44] -[46]

 10   [2010] FWAFB 5343, 197 IR 266 at [27]

 11   Wan v AIRC (2001) 116 FCR 481 at [30]

 12   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 13   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 14   [2016] FWCFB 5243

 15   (1995) 185 CLR 410 at 465

 16   Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall [2016] FWCFB 5492, (2016) 260 IR 391 at [43]; Restaurant and Catering Association of Victoria [2014] FWCFB 1996, (2014) 243 IR 132 at [58]

 17   [2016] FWCFB 5243

 18   Ibid at [36]

 19   [2016] FWC 3194

 20   [2016] FWC 925

 21   [2016] FWCFB 5243 at [18]

 22   [2016] FWC 925 at [69]-[72]

 23   Ibid at [68], [72]

 24   [2010] FWAFB 4022

 25   See Macken’s Law of Employment, 8th edition at [5.190]

 26   Commonwealth Bank v Barker (2014) 243 CLR 169 at [29], [37] per French CJ, Bell and Keane JJ

 27   (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ

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