DECISION

Fair Work Act 2009
s.604—Appeal of decision

Marc Waters
v
Mt Arthur Coal Pty Limited T/A Mt Arthur Coal Pty Limited
(C2018/3498)

Appeal against decision ([2018] FWC 3285) of Commissioner Saunders at Newcastle on 5 June 2018 in matter number U2018/805.

Introduction

[1] On 26 June 2018 Mr Marc Waters (the Appellant) lodged a notice of appeal in the Commission against a decision of Commissioner Saunders issued on 5 June 2018 1 ( Decision) in which the Commissioner dismissed Mr Waters’ application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (FW Act). The Commissioner determined that the dismissal of the Appellant by his former employer, Mt Arthur Coal Pty Limited (Mt Arthur, the Respondent), on 22 January 2018 was not harsh, unjust or unreasonable.

[2] 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. 2  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[3] Section 400 of the FW Act applies to this appeal. It 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.’

[4] 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 of the Act as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might 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.” 5

[5] 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. 6

[6] On 9 August 2018, we heard the parties on permission to appeal and the substantive appeal. Mr A Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union appeared for the Appellant, and Ms J Williams of counsel sought and was granted permission to appear for the Respondent pursuant to s.596(2)(a) of the FW Act.

Consideration

[7] We consider that it would not be in the public interest to grant permission to appeal. We do not consider that the Appellant’s appeal has disclosed any error in the conclusion reached by the Commissioner that the Appellant engaged in substantial breaches of the Respondent’s Charter Values and Code of Business Conduct (Code) which constituted a valid reason for the Appellant’s dismissal. Nor do we find any error in the Commissioner’s findings in relation to the other matters to which he was required to have regard. No error of fact, let alone a significant error of fact, is apparent in the Commissioner’s conclusions and reasons for decision. Nor do we find that he made any error of law or in the application of a legal principle.

[8] The facts giving rise to the Appellant’s dismissal are set out in the Decision.

[9] By way of summary, in the period leading up to Christmas 2017, the Respondent made a number of different decisions as to whether it would operate its open cut coal mine on Christmas Day and Boxing Day. The Appellant, a Production Operator at the mine, was not at work in the period from 22 to 24 December 2017 and was not required to work on 25 or 26 December 2017. He was dismissed for posting on his Facebook page on 24 December 2017 the erroneous statement: “Xmas & Boxing days shifts are off for good.”
[10] There had been some toing and froing about whether the mine would be able to operate over the Christmas and Boxing Day period, due to difficulties in obtaining key staff to work during at that time. However on 23 December 2017 at 12:05pm the Acting General Manager of the mine, Cu Phan, informed the Site Leadership team and the Mine Superintendents that the required staff had been secured, the mine would be operating and this should be passed on to teams and others affected. 7

[11] At 3:08pm on 24 December 2017, Anthony Watson, an Industry Safety and Health Representative sent an email to Mr Phan attaching a “Direction to suspend mining operations”. 8

[12] The Respondent received the direction but made a decision not to comply with it. It did not issue a further communication to affected employees after receiving the direction because confirmation had already been provided to affected employees (and contract workers) that shifts on Christmas Day and Boxing Day were going ahead and the Respondent’s decision in that regard had not changed.  9 In the event the shifts went ahead.

[13] At the hearing before us the Appellant sought to tender a statement from Mr Watson. This statement attached an email from the Director of Regulatory Services at the NSW Department of Planning and Environment. In this email the Director advised that the Respondent’s failure to comply with Mr Watson’s direction was a breach of its obligations under ss.30(8) and (9) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 and attached an Official Caution directed at the Respondent. We have decided not to admit this statement into evidence as it has no real bearing on the issues before us. This is particularly so as both parties in the proceedings before the Commissioner agreed that he did not need to consider or determine the issue of whether the Respondent had the right not to comply with Mr Watson’s direction. 10

[14] In the days leading up to Christmas Day a number of workers asked the Appellant about whether work was to proceed over the Christmas and Boxing Day period. The Appellant appeared to rely on information he obtained from a site safety representative, Owen John Carter. On Friday 22 December 2017 Mr Carter informed the Appellant that the Respondent was not going to operate the mine on Christmas Day and Boxing Day. Shortly thereafter the Appellant posted on his Facebook page the following statement:

“All Xmas and boxing day shifts are off.” 11

[15] On 23 December 2017 the Appellant did not check any of his mobile phone notifications until 3:00pm when he noticed a comment on his Facebook post from a contract worker telling him that he had been told by his supervisor that the shifts were going ahead. The contract worker confirmed this in a telephone conversation. The Appellant then spoke to Mr Carter who confirmed that the Respondent had decided to go ahead with the shifts. The Appellant then deleted his 22 December 2017 post. 12

[16] At about 4:30pm on 24 December 2017 the Appellant was told by a fellow worker about Mr Watson’s direction to suspend operations. The Appellant then posted a message on Facebook that:

“Xmas & Boxing days shifts are off for good.” 13

[17] The Commissioner found that at the time he made this post, the Appellant was hearing about operational decisions at the mine third hand rather than from an authorised person, he was not being kept up to date with operational decisions at the mine, including whether the mine would operate on Christmas Day and/or Boxing Day; and he had no authority from the Respondent to make his post. 14

[18] Having discovered that the shifts were in fact going ahead the Appellant deleted the Facebook post at some time on the evening of 24 December 2017. 15 In the meantime management had become aware of the Appellant’s Facebook post and took action try and stop any incorrect rumours in relation to shifts on Christmas and Boxing Day. The Commissioner found that the 24 December post:

“…had the potential to cause confusion amongst employees and Contract Workers who had volunteered and been rostered to work on Christmas Day and/or Boxing Day. Further, the 24 December Facebook Post caused inconvenience to [the Respondent], because it had to engage in further, last minute, communications with workers who had been rostered to work on Christmas Day and/or Boxing Day.”  16

[19] We find the Commissioner made no error in these conclusions.

[20] The Appellant was subsequently dismissed for breaching the Respondent’s Charter Values of “respect”, “integrity”, and “accountability” as well as his obligations under the respondent’s Code.

[21] The Commissioner in his Decision closely analysed the Appellant’s conduct and found that he had indeed committed substantial breaches of the relevant policies (with the exception of the value of “accountability”). We are satisfied that he made no error in reaching these conclusions.

[22] The Commissioner also rejected the proposition that the conduct in question could not be relied on to found a valid reason for dismissal because it occurred “out of hours”. In particular he was satisfied that there was a relevant connection to the employment relationship. The Commissioner concluded that the Respondent had a valid reason to dismiss the Appellant.

[23] In the hearing before us the Appellant submitted that the Commissioner was in error in finding that the Appellant’s “out of hours” conduct constituted a valid reason for dismissal and failed properly to apply the principles in Appellant v Respondent 17 and Rose v Telstra18.

[24] The issue that the Commissioner had to determine was whether the Appellant’s conduct constituted a valid reason for his dismissal, especially having regard to the fact that his conduct did not take place while he was working. In particular in such cases it is necessary to determine that there is a sufficient connection to the employment relationship.

[25] Cases such as Rose v Telstra and Appellant v Respondent provide limited guidance in cases such as this. The former concerned a fight that took place between two co-workers at a hotel in the middle of the night. The latter concerned an allegation of sexual harassment concerning two co-workers which also took place in a hotel in the middle of the night. In this case the Appellant’s conduct involved providing important (if incorrect) information about operational matters concerning the Respondent’s business to other employees of the Respondent (as well as contract workers). We are satisfied that the Appellant’s conduct was sufficiently connected to his role as an employee to constitute a valid reason for dismissal.

[26] The Commissioner then addressed each of the other criteria in s.387 of the FW Act. In relation to the gravity of the Appellant’s misconduct he found that it was serious – even though it did not lead to the Respondent to suffer any actual loss or damage.

[27] In the hearing before us the Appellant submitted that the Commissioner erred in characterising the Appellant’s conduct as serious. The Appellant criticised the findings made by the Commissioner that provided the evidentiary basis for this finding and submitted that the Commissioner had made a significant error of fact.

[28] We do not agree. The Commissioner had good evidentiary grounds for rejecting the proposition that that the Appellant did not make the 24 December 2017 Facebook post to “stop confusion” or to “reduce annoyance, inconvenience and needless anxiety of the workgroups”. The Commissioner noted that while the Appellant deleted his Facebook posts on 22 and 24 December 2017 after he had become aware they were wrong, he did not post anything to tell people that the Respondent had made a decision to proceed with shifts on Christmas Day and Boxing Day. The Commissioner found that the Appellant was unable to provide any satisfactory explanation for this failure. The Commissioner provided good and cogent grounds for his inference that if the Appellant’s real objective had been to stop confusion and reduce inconvenience he would have posted additional clarifying posts on his Facebook page 19.

[29] The Commissioner noted that the Appellant disagreed with the Respondent’s decision to operate the mine on Christmas Day and Boxing Day, 20 and took no steps to find out from an authorised source of information whether the Respondent was going to go ahead with the two shifts after Mr Watson’s direction. The Commissioner made the reasonable finding that the Appellant knew, or ought reasonably to have known, that his conduct in making the 24 December Facebook post, in the context of the earlier 22 December Facebook post, could, or was intended to, disrupt operations at the mine on Christmas Day and Boxing Day 201721.

[30] Consistent with what we have already said, we reject the submission made by the Appellant that the Decision is manifestly unjust. We are satisfied that the Commissioner properly weighed any relevant mitigating factors against the gravity of the misconduct that he found had occurred and came to the reasonable conclusion that his dismissal was not harsh, unjust or unreasonable. 22

[31] Having considered whether this appeal attracts the public interest, we are not satisfied that:

•  There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  The appeal raises issues of importance and/or general application;

•  The decision at first instance manifests an injustice, or the result is counter intuitive; or

•  The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[32] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act. The application for permission to appeal is therefore dismissed.

VICE PRESIDENT

Appearances:

Mr A. Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union for the Appellant

Ms J. Williams of counsel, instructed by Ms S Beaman (Herbert Smith Freehills) for the Respondent

Hearing details:

2018.

Sydney

August 9.

Printed by authority of the Commonwealth Government Printer

<PR700344>

 1   Marc Waters v Mt Arthur Coal Pty Limited t/a Mt Arthur Coal Pty Limited [2018] FWC 3285.

 2   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 3   (2011) 192 FCR 78; (2011) 207 IR 177 at [43].

 4   O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46].

 5   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].

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

 7   Decision at [35].

 8   Decision at [42].

 9   Decision at [44].

 10   Decision at [43].

 11   Decision at [48].

 12   Decision at [50] – [54].

 13   Decision at [57].

 14   Decision at [58].

 15   Decision at [68].

 16   Decision at [78].

 17   (1999) 89 IR 407.

 18   Rose v Telstra Corporation Limited (AIRC 4 December 1998) Print Q9292.

 19   Decision at [94].

 20   Decision at [95].

 21   Decision at [97].

 22   Decision at [148].