DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works
v
Mr Zaki Habak
(C2019/4101)

Appeal against decision [[2019] FWC 3332] of Commissioner Riordan at Wollongong on 14 June 2019 in matter number U2019/333.

Background

[1] Bluescope Steel Limited t/a Bluescope Steel Limited Springhill Works (the Appellant) has filed a notice of appeal under s. 604 of the Fair Work Act 2009 (the Act) in which it seeks permission to appeal and appeals a Decision 1 of Commissioner Riordan issued on 14 June 2019 (Decision). The Decision concerned an application for an unfair dismissal remedy made by Mr Zaki Habak (the Respondent) under s. 394 of the Act in relation to dismissal from his employment with the Appellant. The Respondent was dismissed following an incident on 8 December 2018 involving him operating an overhead crane to move a steel coil which resulted in the coil tipping and was determined by the Appellant to be a breach of a Critical Safety Procedure in circumstances where the Respondent had breached the same procedure on two earlier occasions.

[2] In summary, the Commissioner found that there was a valid reason for the Respondent’s dismissal and that the Appellant had complied with relevant obligations as set out in ss. 387(b) - (g) of the Act. The Commissioner went on to conclude that on the basis of other mitigating factors considered under s. 387(h) of the Act, the dismissal was unfair because it was harsh and unreasonable and ordered that the Respondent be reinstated.

[3] On 9 July 2019 a stay order was issued in relation to the Decision and orders. Permission was granted for the parties to be represented by lawyers in the appeal on the ground that the legal representation would enable the appeal to be determined more efficiently taking into account its complexity. At the hearing of the appeal on 7 August 2019, the Appellant was represented by Mr B Rauf with Ms De Boos and Ms Bevan and the Respondent by Mr A White with Mr Sage.

The Decision

[4] It is necessary to set out parts of the Decision subject of this appeal in some detail. The background to the dismissal set out in the Decision is that the Respondent was employed by the Appellant for 39 years. At the time of his dismissal the Respondent worked as Despatch Operator Level 3 in the Painting and Finishing Department at Springhill. The Respondent was required to drive a number of overhead cranes to load and unload trucks with steel coils and to move those coils around the warehouse. The Respondent was an experienced Operator and had driven the Appellant’s cranes for the past 28 years. 2 On 8 December 2018 the Respondent was working a night shift. At 11.30 pm while operating a crane designated as crane 13, the Respondent was requested to unload a truck and return the steel coils on the truck to the coil field – an area in which coils are stored.

[5] The Respondent used the crane to place a coil in the required position in Row A, some 25 – 30 metres from the cabin of the crane. The evidence before the Commissioner establishes that the coil weighed 12.7 tonnes, was 760 mm wide and had a diameter of 1.737 metres. 3 While the Respondent was attempting to remove the crane hook from the coil, the coil tipped onto a walkway. Following an investigation, the Respondent was advised that the Appellant had concluded that he had operated crane 13 in a manner which breached Critical Safety Policy 031 (CSP031). After further discussions and exchange of correspondence between the Respondent and the Appellant, the Respondent’s employment was terminated on the grounds that he had operated Crane 13 in breach of CSP031, that the Appellant considered him incapable of performing the role of Operator safely and that his ongoing employment constituted an unacceptable risk. The Appellant’s decision was based on the incident and two earlier breaches of CSP031 by the Respondent, the most recent of which had resulted in the Respondent being issued with a final warning.

[6] Relevant parts of CSP031 including parts emphasised by the Commissioner were set out in paragraph [11] of the Decision as follows:

(emphasis added by the Commissioner)

[7] In dealing with each of the considerations under s. 387 of the Act relevant to whether the dismissal was unfair, the Commissioner made a number of findings. In relation to considering whether there was a valid reason for the dismissal, as provided in s. 387(a) of the Act the Commissioner took into account the following matters set out at [35] – [46] of the Decision:

● The safety requirements of the task [of lifting coils] which the crane driver must follow involve placing the coil, removing the hook from the coil and ensuring that there are no people “in the line of fire” meaning that if anybody is in the vicinity of where the coil is to be placed, the operator must stop and wait for the area to be cleared;
● The speed at which operators were working in a re-enactment video is the normal speed at which the crane is operated, contrary to the Respondent’s view that the video was taken in slow motion;
● The Respondent had concurred with two previous warnings given to him by the Appellant and there was no evidence that he had disagreed or objected to them; 4
● The Respondent had breached CSP031 on three separate occasions within the year preceding his dismissal;
● 90,000 coils had been moved since January 2017 by crane 13 with only one coil being tipped or dropped, being the coil tipped by the Respondent on 8 December 2018;
● The evidence of three crane drivers who stated that they use their skill and expertise to operate the crane irrespective of malfunction or operational deficiency of the crane;
● While not acting with malice or deliberate intent, the Respondent did not take sufficient care when hoisting away from the coil; and
● The failure to follow CSP031 for the third time provided the Appellant with a valid reason to terminate the Respondent’s employment.

[8] At [47] to [58] of the Decision the Commissioner considered the matters in ss. 387(b) – (g). In relation to s. 387(b) the Commissioner was satisfied that the Respondent was notified of the reason for his dismissal and that consistent with s. 387(c) he had an opportunity to respond to that reason. Further, in the consideration of s. 387(d) the Commissioner found that the Respondent was not prevented from bringing a support person to any of the meetings during the disciplinary process. With respect to consideration of whether the Respondent was warned about unsatisfactory work performance, the Commissioner accepted evidence that the Respondent was warned orally and in writing and noted that a Manager of the Appellant stated that in his view the Respondent had “shown repeated failures in being able to carry out his role safely, move coils safely [and that] [h]is failures have been fundamental, basic operation.” Having regard to these matters, the Commissioner concluded that the Respondent had previously been warned about his unsatisfactory performance. The Commissioner also took into account that the Appellant is a large employer which appeared to have followed its internal disciplinary procedures and that it has a dedicated and experienced human resource management team, in considering the matters in ss. 387(f) and (g) of the Act.

[9] The Commissioner then turned to consider – as provided in s. 387(h) of the Act – whether there were other matters relevant to the question of whether the dismissal was unfair. In this part of the decision, the Commissioner had regard for the fact that the Respondent had worked for the Appellant for 39 years and described this as an “inordinately” long period of employment. The Commissioner also found that while the Applicant was not a “clean skin” in respect of his disciplinary record, his record was more than satisfactory for an employee with 39 years’ service. The Commissioner went on to state:

[61] I have taken into account that, from my previous experience, there are a plethora of employees who have multiple final warnings. Mr Knowles is but one of those employees. The Respondent’s internal disciplinary process is a matter for the Respondent, however, the inconsistent application of the policy, across both organisations and sites, can sustain an argument of unfairness. I recommend that the parties to the Agreement negotiate a way for the disciplinary process to be applied to ensure a consistent application.

[10] The Commissioner also noted the personal and financial circumstances of the Respondent and the very limited prospects of him finding other employment in the Illawarra or Sutherland Shire areas given his age and the decrease in demand for his skills in the present economic environment. 5 Further the Commissioner indicated that he had taken into account evidence of complaints by the Respondent and his colleagues in relation to the crane made at toolbox meetings and his own observations gained on an inspection of the crane that it “rides and operates very roughly”6.

[11] The Commissioner went on to conclude in relation to whether there had been a breach of CSP301 as follows:

“[66] I have taken into account the terms of CSP031. I am not convinced that the tipping of a coil is necessarily a significant safety issue. There were no employees in the vicinity of the coil. If there were, the Applicant’s testimony, supported by both Mr Fernandes and Mr Knowles was that the crane operator would simply stop until the person on the ground was no longer in “the line of fire”. The vision from the crane cabin is excellent. If anybody had been in the walkway then the Applicant would have been able to see them. The Applicant’s unchallenged evidence was that he would always stop if there was a person within 6-10 metres of his load. I do not accept the scenario as portrayed by Mr Meta:

“You gave an example of a truck driver walking through. That policy that your employees - BlueScope employees - are following says, "Never move crane" - so not any parts of the crane - "while people are in the line of fire", which means if hypothetically Mr Habak saw a truck driver walking in, Mr Habak would have paused and stopped in accordance with that policy. That's what the policy says? That's one possibility.”

[67] Mr Meta raised the issue that the tipped coil may have fallen onto another employee or truck driver due to the vicinity of the toilets. The Applicant’s representative challenged this possibility, arguing that the toilets were not near where the coil was tipped. I note that Mr Meta did not identify the location of the toilets during the inspection on 5 April 2019. On 11 June 2019, I asked both parties to provide me with a sketch of the warehouse identifying the location of the toilets. The AWU provided a photo, which I will identify as MFI2, which shows that the toilets are in close proximity to the truck loading bay but some 30 metres from where the coil was tipped. The Respondent provided a detailed floor plan which I will mark as MFI3 which shows the same information. There would be absolutely no reason for a truck driver to be anywhere near the bay where the coil was tipped. I also note from the video that the truck driver was approximately 50 metres away from the tipped coil next to his truck. I have taken this into account.

[68] I find that the Applicant’s tipping of a coil on 8 December 2018 did not create a safety incident. I note that the Applicant’s termination letter specifically states that he was “incapable of performing his role safely”.

[12] In relation to the reasons for the dismissal of the Respondent, the Commissioner took into account what he perceived as confusion on the part of a witness for the Appellant, Mr Meta, about whether the dismissal was because the coil tipped over in the walkway (raising the possibility of people being in the vicinity of the tipping coil), or whether the Respondent was dismissed because of the underlying issue of the application of his skill and his inability to undertake tasks at hand consistently. 7

[13] The Commissioner also found that the coil tipped because the Respondent hoisted the crane hook while it was swinging and that the swing was “huge”. However, the Commissioner accepted the evidence of crane drivers including the Respondent that the huge swing of the hook was caused by a faulty brake mechanism on the crane and the improper functioning of the crane rather than any action of the Respondent. In his conclusions the Commissioner stated:

[76] The Applicant made a mistake. He hoisted the C-hook when it was insufficiently clear of the core of a thin, tall coil which had a high centre of gravity. The coil tipped. However, this chain of events was caused by the malfunction of the crane. The brakes were tight. The breaks on crane 13 had been complained about consistently for more than 6 months. The huge swing on the crane was caused by these faulty brakes. Based on the evidence of the Applicant, Mr Fernandes, Mr Knowles and my own observations during the inspection, I find that the crane does not respond to every direction given to it by the Operator. It cannot be fair or reasonable for a person who has spent 39 years working for the same employer to be terminated in such a scenario.

[77] I find that the action of the Applicant in tipping the coil was negligent. The Applicant should have waited for the hook to stop its metre swing or waited for the cross travel to re-engage and move further away from the coil before hoisting. However, the Applicant appears to be an impatient crane operator. He works faster than his fellow employees. He has been commended for his speed by his supervisor. There appears to be other coils to unload from the truck. Relevantly, the Respondent does not believe that the Applicant acted maliciously or with intent.

[78] If the Applicant had tipped the coil deliberately, or if there was a real, rather than hypothetically possible, issue in relation to safety or if the crane was operating perfectly and did not rely on the advanced skill of the operator to continuously manipulate the crane to get it to respond, than I would agree that the Applicant’s record and actions would justify termination.

[14] The Commissioner also concluded that the tipping of the coil where there was no damage or cost to the Appellant in a situation which did not create an imminent risk or injury to another person, while the Respondent was using a crane that did not operate properly, does not justify or warrant dismissal and dismissal was disproportionate to the act of tipping the coil.

The Appeal Grounds

[15] The notice of appeal stated 13 grounds (with multiple sub-grounds) for appeal which can be summarised as follows. Ground 1 asserts that there was no proper, or insufficient, evidentiary basis for the finding that there was an inconsistent application of the disciplinary policy and a plethora of employees who have multiple final warnings. It is also contended that there was a denial of natural justice and procedural fairness in relation to this finding.

[16] Grounds 2, 3, 5, and 6 relate to conclusions that the Commissioner reached in relation to the crane and its operation. In those grounds it is contended that the Commissioner erred by acting on a wrong principle or had regard to an irrelevant consideration, in taking into account: that Mr Meta had never driven a crane; that the crane had been the subject of complaint by employees and operated roughly; that the swing on the hook of the crane was caused by improper functioning of the crane rather than the Respondent; and that the Appellant had not taken into account the faulty operation of the crane in deciding to dismiss the Respondent. These grounds also assert that the conclusions reached by the Commissioner in relation to these matters are inconsistent with other conclusions reached by him in relation to the culpability of the Respondent for the incident. In Ground 3 it is also asserted that there was no proper evidentiary basis for the Commissioner’s finding that the crane may require maintenance or overhaul. Further it is asserted in Ground 5 that the Commissioner erred in relying on his own observations from an inspection of the crane, in the absence of expert evidence or analysis of the brakes. In relation to Ground 5 it is also contended that the Commissioner did not give adequate or proper notice of this view to the Appellant and denied the Appellant the opportunity to respond to those views.

[17] In Ground 4 it is contended that the Commissioner erred by not characterising the incident as a safety incident, thereby making a finding that was inconsistent with his findings relating to the conduct of the Respondent. It is also contended in this ground that the Commissioner failed to appreciate the Appellant’s safety policy and obligations and incorrectly considered the evidence of Mr Meta in relation to the Appellant’s reasons for dismissing the Respondent and concerns about the Respondent’s breach of a significant safety policy.

[18] Ground 7 relates to grounds 5 and 6 and asserts that further to those grounds, in taking into account irrelevant or mistaken considerations relating to the cause of the incident and finding that it did not create a safety incident, the Commissioner was unable to properly weigh or assess the gravity of the Respondent’s misconduct against all other relevant matters in assessing overall harshness, thereby acting on a wrong principle and/or failing to have regard to relevant considerations. In Ground 8 it is contended that further, or in the alternative to grounds 1 to 7, the Commissioner erred in determining that reinstatement was an appropriate remedy. Grounds 9 to 13 contend that the decision contains significant errors of fact which are also relied on in the earlier appeal grounds.

Permission to appeal

[19] 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

[20] 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

[21] 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.”

[22] 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

[23] 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.

[24] 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.

[25] 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.

The appeal

[26] The gravamen of the appeal grounds is that the Commissioner’s conclusion that the matters identified under s. 387(h) of the Act supported a conclusion that the dismissal was harsh and unreasonable, was affected by significant errors of fact or irrelevant considerations. As a result, it is submitted that those matters did not outweigh the Commissioner’s other findings that there was a valid reason for dismissal, the conduct of the Respondent was the cause of the incident and the dismissal was carried out in a manner that was procedurally fair.

[27] In DP World v Lambley 17 a Full Bench of the Commission made the following observation, which is relevant in the present case:

“…In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.” 18

[28] In relation to unfair dismissal cases involving safety breaches, a Full Bench in BHP Coal Pty Ltd T/A BMA v Schmidt 19 stated:

“The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.” 20

[29] We consider that a number of the matters which were found by the Commissioner under s. 387(h) of the Act to render the dismissal harsh and unreasonable were based on significant errors of fact.

[30] The Commissioner found that the tipping of a coil was not a significant safety incident. This finding was based on a misunderstanding of CPS031 and contrary to the preponderance of evidence before the Commissioner. It appears from the Decision that this finding was based on two considerations:

● There were no employees in the vicinity of the coil or “in the line of fire” when the coil tipped; and
● There was no damage to the coil or cost to the Appellant and no imminent risk of injury to another person.

[31] CSP031 was set out in the Decision at paragraph 11. The Commissioner highlighted parts of the Procedure requiring that the crane not be moved if people are in the line of fire and that the operator ensure that the hook of the crane is clear of the coil before hoisting. These are two separate requirements. CSP031 requires a crane operator to ensure that the hook of the crane is clear of a coil before hoisting and that the operator watches the hook when hoisting. The requirements in relation to the crane hook operate independently and are not limited to situations where there are persons in the line of fire.

[32] We accept the submission for the Appellant that the Commissioner conflated the requirement in relation to moving the crane with the requirement in relation to ensuring the hook is clear of the coil before hoisting, when he concluded that the tipping of the coil was not a significant safety incident. The evidence before the Commissioner was that:

● The Appellant required strict compliance with critical safety procedures including CSP031 to comply with workplace health and safety legislation and to minimise and manage inherent and potentially serious risks which could arise from the use of various equipment;
● The Respondent understood the requirements of CSP031 and had received training in relation to those requirements;
● The coil weighed 12.7 tonnes;
● When the coil tipped it was sitting on the ground;
● The coil fell onto a walkway;
● The walkway was near a despatch area and there was a possibility that a truck driver may have walked through the area to access toilets; and
● Because the coil was on the ground any employee was entitled to walk past it notwithstanding that the crane hook was in the area and would not be “in the line of fire” for the purposes of CSP031 as the coil was not being lifted when it toppled. 21

[33] The conclusion that the tipping of the coil was not a significant safety incident was contrary to this evidence and involved a significant error of fact. It was also based on a misunderstanding of CSP031. We are also of the view that the Commissioner’s finding that the swing of the crane hook which caused the coil to topple, was caused by the improper functioning of the crane or faulty brakes, was a further significant error of fact and was inconsistent with his findings about the culpability of the Respondent for the incident and other evidence before him and could not be sustained.

[34] In the Decision, the Commissioner made the following findings about the incident and the Respondent’s culpability in relation to it:

● The Respondent did not take sufficient care when hoisting the hook of the crane away from the coil;
● The Respondent made a mistake when hoisting the hook when it was insufficiently clear of the coil;
● The action of the Respondent in tipping the coil was negligent and he should have waited for the hook to stop its swing or for the cross-travel to re-engage and moved further away before hoisting;
● The Respondent appeared to be an impatient crane operator who worked faster than his workmates;
● The Respondent did not take responsibility for his actions and his explanation that he could not see the hook swinging was not accepted;
● The Respondent had a clear view of the hook and whether or not it was clear of the coil and able to be hoisted;
● The Respondent accepted that he had to make sure that the hook was clear before the lifting and could have waited for the hook to stabilise before lifting it, but instead lifted the hook while it was still swinging.
● The Respondent had embellished his recollection of the incident;
● The Respondent’s attitude required change and he needed to take more care in undertaking his role;
● The Respondent had breached CSP031 on three occasions in the past year; and
● The Respondent’s failure to follow this policy for the third time provided the Appellant with a valid reason to terminate the Respondent’s employment.

[35] There was also evidence before the Commissioner establishing the following facts. The crane had been regularly maintained and the brake assembly had been replaced on 5 December 2017. In the 12 month period from 1 July 2017 to 30 June 2018, 280,054 coil moves had been performed using the cranes with 90,830 being performed by crane 13. In that period, there had been six incidents involving coils being dropped with the Respondent being involved in three of those incidents and only one of them involving crane 13. There was also evidence that some crane drivers preferred sticky brakes. Also of significance was the evidence of three crane drivers, including the Respondent, who all agreed that they used their skill and expertise to operate the crane, irrespective of any operational malfunction or deficiency. Further, the hoisting of the hook is done by use of a different control to that which operates the cross-travel brakes and could not have been affected by the brakes.

[36] When these facts are considered, issues relating to the crane’s brakes were not relevant to the Respondent’s negligence in the manner in which he operated the crane. It is also the case that the Commissioner’s finding that the Appellant did not take into account the faulty operation of the crane relies on his erroneous views about the malfunctioning of the crane. Further, it is clear from Mr Meta’s evidence that the Appellant did consider whether the mechanical state of the crane had caused or contributed to the incident and concluded, on the basis of the facts set out above, that it had not. In our view, this was the correct conclusion. It follows that the Commissioner’s conclusion that the malfunction of the crane contributed to the tipping of the coil was a significant error of fact.

[37] It is apparent that these findings which involved significant errors of fact were relied on by the Commissioner in reaching his conclusion that the dismissal was harsh and unreasonable. We have earlier stated that we have decided to grant permission to appeal. On the basis of the errors identified, we uphold the appeal and quash the Commissioner’s Decision and Order. Given our conclusions outlined above, it is unnecessary for us to deal with the other matters raised by the appeal.

[38] We turn now to rehearing the matter. In doing so, we adopt the Commissioner’s finding that there was a valid reason for the dismissal and his findings as to the considerations in ss. 387 (b) to (g) as summarised in paragraphs [7] and [8] above.

[39] In B, C and D v Australian Postal Corporation 22 the majority noted that it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.23 We agree with the decision of the majority in that case.

[40] In relation to s. 387(h) we have taken into account the following matters:

● That the Respondent was employed by the Appellant for 39 years, a significant period of time;
● That the Respondent received a “sustained high performance” commendation from his supervisor in 2014;
● That the Respondent faces difficult financial circumstances as set out by the Commissioner at [62] of his decision and that the loss of his employment has had devastating consequences and will likely continue to do so; and
● That the Respondent has applied for numerous jobs without success and there is higher than average unemployment in his region as set out by the Commissioner at [63] of his decision.

[41] We have also taken into account the finding of the Commissioner that there was an inconsistent application of the disciplinary policy. There was some evidence to support this finding, however in our view it is insufficient to outweigh the other findings in relation to the Respondent’s culpability for the incident.

[42] We have also taken into account the gravity of the misconduct in considering the proportionality of the dismissal. The misconduct involved a substantial and wilful breach of the Appellant’s policy. This policy was breached by the Respondent on three occasions in the last year. The tipping of the coil was a significant safety incident. This weighs strongly against a finding that dismissal was a disproportionate response.

Conclusion

[43] The valid reason for the Respondent’s dismissal and the lack of any procedural unfairness in effecting the dismissal are matters that weigh against a finding that the dismissal was unfair. In light of the gravity of the misconduct, we are not satisfied that dismissal was a disproportionate response. The Respondent’s work history and the impact of the dismissal on him are factors that weigh in favour of a finding of harshness. However, these factors have to be balanced against an expectation that such a long serving employee would follow the policies and procedures of the Appellant. In considering all of these factors, including the limited evidence of inconsistency in applying the disciplinary policy, we conclude that they do not outweigh the factors of the valid reason for the dismissal and the procedural fairness that was afforded to the Respondent in effecting the dismissal.

[44] In all of the circumstances we find that the termination of the Respondent’s employment was not harsh, unjust or unreasonable.

[45] The Orders of the Commission are:

1. Permission to appeal is granted.

2. The Appeal is upheld.

3. The Decision in [2019] FWC 3332 is quashed.

4. On a redetermination of the Respondent’s application pursuant to s.394 of the Act, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B Rauf of Counsel instructed by Ms A De Boos and Ms R Bevan of K & L Gates for the Appellant.

Mr A White of Counsel instructed by Mr A Sage of the Australian Workers’ Union, for the Respondent.

Hearing details:

2019.

7 August:

Melbourne with video link to Sydney.

Printed by authority of the Commonwealth Government Printer

<PR711382>

 1   Zaki Habak v Bluescope Steel Limited [2019] FWC 3332.

 2   Ibid at [2].

 3   Exhibit 5 Statement of Gary Meta at [62].

 4   Ibid at [42].

 5   Ibid at [62] – [63].

 6   Ibid at [65].

 7   Ibid at [69].

 8   Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at paragraph 43.

 9   Ibid at paragraph 44.

 10   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

 11   (1936) 55 CLR 499.

 12   [2012] FWAFB 3540.

 13   Ibid at [25].

 14   [2014] FWCFB 6249.

 15   Ibid at [16]

 16   Harbour City Ferries v Toms [2014] FWCFB 6249 at [16] – [17]; Parmalat Products Pty Ltd v Walilo [2011] FWAFB 1166 at [18] – [19].

 17   [2012] FWAFB 4810.

 18   Ibid at [26].

 19   [2016] FWCFB 1540.

 20   Ibid at [8].

 21   Transcript PN847 – 852 Evidence of Mr Gary Meta.

 22   [2013] FWCFB 6191.

 23   [2013] FWCFB 6191 at [41].