Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2020] FWC 1015 of Commissioner Riordan at Sydney on 11 May 2020 in matter number U2019/11608.

[1] BlueScope Steel Limited (BlueScope) has applied pursuant to s.604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal and appeals a decision of Commissioner Riordan issued on 11 May 2020 (decision).[1]

[2] The decision concerned an application for an unfair dismissal remedy made by Mr Trevor Knowles pursuant to s.394 of the Act. The Commissioner found that the dismissal of Mr Knowles was unfair and ordered that he be reinstated to his former position with continuity of employment and back pay.

[3] The appeal challenges the decision and related orders on various grounds.

[4] On 2 June 2020, the orders made by the Commissioner were stayed by consent pending the hearing and determination of this appeal.[2]

[5] For the reasons that follow, we have decided to grant permission to appeal the decision. We:

• (a) uphold the appeal;

• (b) quash the decision and orders in [2020] FWC 1015;

• (c) on redetermination, dismiss Mr Knowles' application for an unfair dismissal remedy; and

• (d) set aside the stay order PR719832.

[6] Mr Knowles commenced employment with BlueScope on or about 1 March 1988. At the time of the dismissal he was engaged as a despatch operator level 3 in the painting and finishing department of BlueScope's Springhill Works site.[3] In this role, which he performed for approximately 30 years, Mr Knowles was required to drive overhead cranes to move steel coils within the warehouse.

[7] On 5 September 2019 while operating crane 60 to load coils onto an entry-saddle, Mr Knowles hoisted the tongs of the crane without first long travelling (that is, travelling sideways away from the coil). In doing so, Mr Knowles caused coil damage. Further, BlueScope submits that Mr Knowles' conduct created a risk of the coil being tipped, amounting to a significant safety incident. Specifically, Mr Knowles' conduct of hoisting as opposed to long-travelling to clear the coil contravened BlueScope's Critical Safety Procedure CSP031 - Moving Coils/Loading Trucks with Tongs or C-Hook & Unloading AGV Stands (CSP031). Mr Knowles' employment was subsequently terminated on 1 October 2019.

[8] The Commissioner concluded that Mr Knowles was unfairly dismissed on two alternative bases. First, the Commissioner found that Mr Knowles had not breached CSP031 and there was not a valid reason for Mr Knowles' dismissal. The Commissioner found that the absence of a valid reason made the termination of Mr Knowles harsh and unreasonable.[4] Second and in the alternative, the Commissioner determined that if BlueScope did have a valid reason to dismiss Mr Knowles, then his dismissal was harsh and unfair.[5] On the basis of the first ground, the Commissioner ordered that Mr Knowles be reinstated.[6]

[9] In respect of the Commissioner's findings as to valid reason, the Commissioner said as follows:

"[88] The Applicant's breach of CSP031 in not long travelling every time he disengages from a coil, prima facie, provides the Respondent with a valid reason to terminate the Applicant's employment. The Applicant is a long serving employee. The Respondent has a right to insist that its employees will follows its CSP's.

[122] For the Respondent to have a valid reasons to terminate the Applicant, it must be able to show that he has breached his safety obligations as an employee. In this circumstance, the Respondent must prove that the Applicant has breached CSP031.

[123] I am satisfied that the Applicant operated within his interpretation of CSP031. His commentary in relation to when he hoists or long travels is consistent with his answers on his annual re-accreditation, which was recently approved by Mr Cadwallen, as well as the evidence on the video footage of the Incident.

[126] I find that the Applicant has not breached CSP031. The Applicant has used his skills and experience to disengage from Coil 1, he did not put Coil 1 in a position that would increase the risk of it tipping when he disengaged from the coil and that he disengaged from the Threader Coil by hoisting in accordance with his usual practice and the answer on his most recent CSP031 re-accreditation. There was zero risk to any person being injured to any person in either circumstance.

[127] The tipping of a coil is not a safety risk or incident - unless there is a capacity for someone to get injured... Any person who may have been injured as a result of any coil tipping would have to be standing in front of the Despatch Operator, some 1.2 metres from the face of the Coil 1 and 0.5 metres for the Threader Coil. Undoubtedly, there is some damage to a coil if it tips - but that is not a safety issue.

[128] As a result, I find that the Respondent did not have a valid reason to terminate the Applicant.

[129] If I am wrong on this issue and the Respondent did have a valid reason to terminate the Applicant, then I find that the Applicant's dismissal was harsh and unfair."

[10] As to the considerations relevant to ss.387(b) - (g) of the Act, the Commissioner concluded:

"Section 387(b) Notified of the reason

[90] It is not in dispute that the Applicant was notified of the reasons for his termination.

Section 387(c) Opportunity to respond

[91] It is not in dispute that the Applicant was provided with an opportunity to respond.

Section 387(d) Refusal to Support Person

[92] The Applicant was not refused the opportunity to have a support person present during the disciplinary process.

Section 387(e) Warning about unsatisfactory performance

[93] It is not in dispute that the Applicant received a final warning on 21 September 2018, in relation to a breach of CSP027. On this occasion, the Applicant was working on the ground and not driving a crane. I note that, in accordance with the Agreement, warnings have a currency for 12 months. The Applicant's previous final warning was issued 50 weeks prior to the Incident. I have taken this into account.

Section 387(f) Size of Enterprise - Procedures Followed

[94] The Respondent is a large employer and followed its structural disciplinary process.

Section 387(g) Dedicated HR Management

[95] The Respondent has a dedicated HR resource."

[11] In respect of s.387(h) of the Act, the Commissioner relevantly had regard to the following matters:

"[98] I have taken into account that there is no designated walkway next to Saddle 1. For anybody to be hurt by Coil 1 being tipped, they would have to be standing inside 1.2 metres, actually obscuring the Despatch Operator's view of the tongs...

[99] Further, Mr Meta stated that when a scenario arises that is not covered by a CSP, the employee is expected and permitted to use their skill and experience to overcome the problem...

[104] I have taken into account the evidence of Mr Chris Newbold, whom I regard to be a witness of credit. In his written statement, Mr Newbold's unchallenged evidence is that he was threatened by a line leader of the Respondent, Mr Matt Burke, due to his role as a union delegate...

[105] I have viewed all of the video footage that has been provided on dozens of occasions. The Respondent has submitted that Coil 1 actually lifts when the Applicant hoists away from Coil 1 after the tongs had become stuck in the core. I do not agree. There is absolutely no movement of the coil. Mr Cadwellan agreed with this observation:

'You've just seen the video of the incident and you see that the coil actually remains firmly planted on the entry saddle throughout the entire video footage of the incident, would you agree?---Yes. To me it doesn't appear to move.'

[107] In this matter, the Applicant has not previously breached CSP031. Some 50 weeks

before the Incident, the Applicant, whilst working on the ground in a coil trailer known as a 'Butter Box', climber into the trailer and performed work in a manner that he claims was in accordance with regular workplace practice. This work practice was in breach of CSP027.

[110] I have taken into account the wording of CSP031. The possibility of tipping a coil only becomes a safety issue if there is a chance of a 'Fatality from toppled or tipped coil'. The control measure of CSP031 is 'Never move crane if people are in the line of fire'.

'It didn't tip the coil over, but where's the safety risk?---Okay. It was lucky it didn't tip the coil over. The risk is to a person, is for someone that was in the vicinity.'

There is no evidence or suggestion that the Applicant has attempted to disengage the tongs and move the crane whilst there is anybody in the 'line of fire'. Therefore, the critical and only hazard situation of CSP031 is not possible because the control measure has not been breached.

[112] I have taken into account that the Applicant regularly hoisted away from the core of a coil rather than long travelled when he believed that he was clear of the core. He undertook this practice on the basis of efficiency, i.e. it was faster to hoist than it was to long travel and he needed to work quickly in order to get the job done.

[114] I have taken into account the evidence of Mr Cadwallen, in response to a question from me, that you could also ascertain if the tong was clear of the coil by hoisting as well as long travelling.

[116] I have taken into account the financial impact that termination has had on the Applicant. The Applicant had significant debts that he was repaying with his regular income. Upon his dismissal, the Applicant has accessed 75% of his superannuation entitlement to pay off these outstanding debts.

[117] I have taken into account that the Applicant has little chance of finding employment within a 90-minute drive of his home, based on his mature age and specialised skill set."

[12] In concluding that the dismissal was harsh and unfair, the Commissioner took into account the following matters:

(a) Mr Knowles had a satisfactory disciplinary record for an employee with 30 years of service.[7]

(b) Mr Knowles' earlier breach of a separate critical safety procedure CSP027, was "totally different" to his breach of CSP031. For consistency, Mr Knowles ought to have been issued with a second final warning and has been treated harshly when compared to his peers.[8]

(c) Mr Knowles is 64 years of age and has been unsuccessful in applying for new employment. His skill set is highly specialised and of little use to any employer within 90 kilometres of his home.[9]

(d) Even if Mr Knowles had breached CSP031, the breach is of "such minor magnitude" that BlueScope's decision to terminate Mr Knowles is a harsh outcome.[10]

(e) CSP031 is silent on the process to be followed if the tongs get caught.[11]

(f) The coil damage occasioned by Mr Knowles' conduct would have also occurred if Mr Knowles had long travelled to clear the coil.[12]

(g) BlueScope condoned Mr Knowles' practice of hoisting without first long travelling by not correcting a response he provided in August 2019 as part of his annual re-accreditation assessment.[13]

(h) While there is no "overt of clear evidence" of Mr Knowles being discriminated against by BlueScope because of his role as a union delegate, Mr Knowles "...appeared as a witness in support of Mr Habak in an earlier proceeding. I also note the unchallenged evidence of Mr Newbold that when he was employed by the Respondent he was bullied, harassed and threatened by a senior member of management from this Department due to this union activities."[14]

[13] The Commissioner concluded:

"[147] The Applicant did not cause a safety incident. The Coils did not tip, in fact, neither coil was raised even a millimetre. An invisible employee or an illusory recalcitrant visitor could not have been injured in this circumstance.

[148] If I am wrong and the Respondent did have a valid reason to terminate the Applicant, then I find that the termination was harsh and unfair based on the reasons the reasons identified above, especially when the Applicant worked in accordance with his most recent accreditation."

[14] On the question of remedy, the Commissioner said that he could "see no reason why the employment relationship cannot be re-established."[15] Accordingly, the Commissioner ordered reinstatement, with orders for continuity of employment and payment for remuneration lost since the dismissal.[16]

[15] Appeal grounds one and two of BlueScope's notice of appeal contend that the Commissioner erred in determining that there was not a valid reason for Mr Knowles' dismissal. Mr Knowles does not contest appeal grounds one and two. Rather, Mr Knowles accepts that he did not "use long travel to clear the bore before hoisting" and this constitutes a breach of CSP031.

[16] Appeal grounds three and four of BlueScope's notice of appeal deal with the Commissioner's alternative conclusion that if there was a valid reason to dismiss Mr Knowles, the dismissal was harsh and unfair. It is contended that the Commissioner erred in reaching this conclusion because he acted on a wrong principle and/or had regard to irrelevant considerations including by:

• (a) failing to give any or proper consideration to the final warning issued to Mr Knowles for an earlier contravention of CSP027 and the additional accreditation training Mr Knowles had received;

• (b) finding that BlueScope had engaged in a practice of issuing multiple final warning letters for different incidents, without an evidentiary basis for such a finding;

• (c) failing to consider the specific circumstances of other safety related incidents and the disciplinary outcomes that followed when drawing a comparison to the decision to terminate Mr Knowles' employment;

• (d) relying upon a finding that Mr Knowles' breach of CSP031 was of "minor magnitude" including on the basis that (1) BlueScope had condoned Mr Knowles' practice of hoisting without long travelling by not correcting his annual re-accreditation relating to CSP031, and (2) a risk to safety was not realised given that the coil did not tip; and

• (e) improperly considering factors which suggest that BlueScope discriminated against Mr Knowles because of his role as a union delegate.

[17] By appeal ground five, BlueScope contends that the errors identified in appeal grounds three and four affected the Commissioner's assessment of the gravity of the conduct and led to an erroneous conclusion that Mr Knowles' dismissal was harsh.

[18] It is contended by appeal grounds six and seven that the Commissioner erred by concluding that reinstatement was appropriate in the circumstances, and by making an order under s.391(3) in the absence of any or proper reasons.

[19] Appeal grounds eight to 13 contend that the Commissioner significantly erred by finding that:

(a) the incident of 5 September 2019 "did not cause a safety incident;"[17]

(b) the control measure identified in CSP031 was not breached because there was no other person present who may be exposed to the risk of a tipping coil;[18]

(c) Mr Knowles had, in effect, complied with CSP031;[19]

(d) BlueScope had condoned the practice of Mr Knowles by not correcting his annual re-accreditation;[20]

(e) there was no tip risk relating to the coil placed by Mr Knowles, for which he would not be accountable;[21] and

(f) there was some apparent discrimination by the BlueScope against Mr Knowles because of his role as a union delegate.[22]

[20] BlueScope submits that permission to appeal is in the public interest because the decision raises important questions regarding the Commission's assessment of alleged breaches of a critical safety procedure, including reliance upon an employee's subjective understanding of the procedure. Further, it contends that the decision contains significant errors of fact and principle including departure from full bench authorities, thereby warranting appellate review.

[21] As Mr Knowles does not seek to defend the Commissioner's decision that there was no valid reason for the dismissal, he does not dispute that permission to appeal ought to be granted. However, Mr Knowles acknowledges that the Commissioner's order for reinstatement was made on the basis of a finding that BlueScope did not have a valid reason to dismiss him. Because the reinstatement order was premised on this conclusion, Mr Knowles submits that the full bench will need to re-exercise remedial discretion.

[22] An appeal under s.604 of the 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.[23] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] This appeal is one to which s.400 of the Act applies. Section 400 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.

[24] In Coal & Allied Mining Services Pty Ltd v Lawler and others,[24] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one." The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[25] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench 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."[26]

[25] 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.[27] 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.[28]

[26] The decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.[29] It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner at first instance in the absence of appealable error. As the High Court said in House v The King:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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 ground that a substantial wrong has in fact occurred."[30]

[27] For the reasons that follow, we are satisfied that appealable error has been established in respect of both alternative findings made by the Commissioner. The appeal raises important questions about the construction and application of critical safety procedures in the workplace and an employer's obligation to maintain a safe place of work. The application of s.387 of the Act to the circumstances in this proceeding is a matter of general importance. Permission to appeal is therefore granted.

[28] By appeal grounds one and two, BlueScope challenges the Commissioner's conclusion that there was not a valid reason for Mr Knowles' dismissal. Broadly, BlueScope contends that the Commissioner's finding that Mr Knowles' conduct "did not cause a safety incident"[31] was based on a flawed assessment of health and safety risks in the workplace. As to the Commissioner's finding that Mr Knowles had not breached CSP031, BlueScope submits that the Commissioner did not take into account the evidence before him. Further, it says that the Commissioner relied upon extraneous matters which were either irrelevant, not available on the evidence or mistaken.

[29] The Commissioner found that Mr Knowles long travelled after he placed the first coil onto the saddle, the tongs twisted, and Mr Knowles then hoisted the coil at which time the tongs disengaged from the coil.[32] Further, the Commissioner found that rather than long travel, Mr Knowles regularly hoisted to clear a coil.[33] This led the Commissioner to conclude that Mr Knowles' conduct provided BlueScope with a "prima facie" valid reason to terminate his employment.[34] Notwithstanding this, the Commissioner stated that Mr Knowles had not breached CSP031[35] on the basis that Mr Knowles "did not cause a safety incident."[36] This informed the Commissioner's penultimate conclusion that BlueScope did not have a valid reason to terminate Mr Knowles' employment.

[30] In the appeal proceedings, Mr Knowles accepted that he breached CSP031 because he did not, in the language of CSP031, "use long travel to clear the bore before hoisting."[37] On this basis, Mr Knowles does not seek to defend the Commissioner's finding that BlueScope did not have a valid reason to terminate his employment.

[31] It is not in contest and we find that the Commissioner's conclusion that BlueScope did not have a valid reason for the dismissal was attended by appealable error. The reasons for this finding follow.

[32] Firstly, the Commissioner's finding that Mr Knowles' conduct did not cause a safety incident because there was no person "in the line of fire" constitutes a significant error of fact. Further, the Commissioner acted on a wrong principle in the assessment of the safety risks occasioned by Mr Knowles' conduct.

[33] In finding that Mr Knowles' conduct "did not cause a safety incident,"[38] the Commissioner interpreted CSP031 to mean "tipping of a coil is not a safety risk or incident - unless there is a capacity for someone to get injured." [39] The Commissioner said that "such an outcome was a virtual impossibility" because there was no person "in the line of fire,"[40] and in any case the coil did not tip and therefore there was no risk of injury to any person.[41] The Commissioner's approach was therefore predicated on there being a demonstrated consequence for a safety incident to crystalise.

[34] The Commissioner's conclusion that Mr Knowles' conduct did not cause a safety incident involved a misapplication of CSP031. The Commissioner confined his assessment to there being an actual risk, which can only properly be understood after an incident has occurred. This approach disregards the express terms of CSP031, which requires a crane operator to ensure that the hook of the crane is clear of a coil before hoisting irrespective of whether there are persons in the line of fire.[42] The Commissioner's approach also disregards the evidence as to the objects of CSP031. BlueScope's critical safety procedures are used to manage functions where there is a heightened safety risk associated with a task. The requirements of CSP031 operate to minimise or eliminate the potential risks associated with a tipped or dropped coil that arise from hoisting instead of long travelling.[43] The control measure prescribed by CSP031 seeks to prevent the toes of the crane's tongs catching a bore and tipping the coil resulting in a potentially unsafe work environment. The Commissioner's analysis misunderstands BlueScope's safety obligations and approach to assessing safety and managing risks in the workplace.

[35] Secondly, the Commissioner's finding that Mr Knowles had not breached CSP031 was based on a significant error of fact. This finding took into account Mr Knowles' subjective understanding of CSP031, which was to hoist the crane's tongs rather than long travel to clear the bore of a coil. In doing so, Mr Knowles applied his discretion above the express requirements of CSP031. However, the Commissioner found that BlueScope condoned Mr Knowles' practice by not correcting his CSP031 annual re-accreditation response to the question "what would you do before hoisting after unloading a coil (with tongs or C hook)?" Mr Knowles responded, "make sure clear of coil."[44] Mr Knowles says that his response is incomplete and omits reference to long travelling.

[36] The question invited Mr Knowles to address what he is required to do prior to hoisting. Mr Knowles' answer to "make sure clear of coil" reflects the requirement in CSP031 which expressly states, "ensure the hook is clear of coil bore before hoisting." Mr Knowles' answer cannot reasonably be interpreted to mean that he would hoist (as opposed to first long travelling) to ensure the hook is clear of a coil. Indeed, Mr Knowles' interpretation of CSP031 to hoist before long travelling is not evident in his response. Further, the theoretical assessment required Mr Knowles to answer questions on hazard identification. As set out in CSP031 Mr Knowles identifies, "fatality from tipped coil, collision with 66 crane, people in area, equipment damage" as the hazards for which the control measures in CSP031 exist. This lends supports to a finding that Mr Knowles was familiar with the content of CSP031 and the mandate to long travel to clear the bore before hoisting. Accordingly, Mr Knowles' submission that BlueScope did not communicate this requirement cannot reasonably be sustained. The Commissioner's finding that Mr Knowles' conduct had been condoned by BlueScope is not available on the evidence.

[37] Further, the Commissioner failed to take into account a material consideration. The contested evidence before the Commission was that there was a practical component of the reaccreditation assessment.[45] Mr Cadwallen, Finishing Shift Team Leader, gave evidence that he observed Mr Knowles long travel before hoisting to clear a coil.[46] BlueScope contends that it had regard to this practical observation in accepting Mr Knowles' response to the theoretical component of the reaccreditation assessment and relied upon the evidence of Mr Cadwallen to this effect.[47] However, Mr Knowles says that he did not recall Mr Cadwallen conducting a practical assessment.[48] Mr Newbold's evidence as a former employee of BlueScope was that the assessment did not consist of a practical component.[49] By failing to resolve the contest in respect of this matter, the Commissioner did not have regard to all the evidence upon concluding that BlueScope condoned Mr Knowles' interpretation of CSP031.

[38] Finally, the Commissioner's conclusion that Mr Knowles did not breach CSP031[50] is irreconcilable with his earlier finding that Mr Knowles' conduct of hoisting and not long travelling (1) breached CSP031 and (2) prima facie provided BlueScope with a valid reason to terminate Mr Knowles' employment.[51]

[39] Having regard to the above matters, the Commissioner's finding that there was no valid reason for the dismissal is attended by appealable error.

[40] In the alternative, the Commissioner concluded that if BlueScope did have a valid reason to dismiss Mr Knowles (because he had breached CSP031), then the dismissal was nevertheless harsh and unfair.

[41] A dismissal may be harsh, unjust or unreasonable notwithstanding the existence of a valid reason.[52] An overall assessment of the circumstances of the case is required, having particular regard to the criteria in s.387 of the Act. These criteria guide the decision maker in the assessment of fairness, and this is essential to the notion of "a fair go all round." For this purpose, the factors which weigh in favour of the dismissal not being harsh, unjust or unreasonable must be balanced against relevant mitigating circumstances that weigh against a finding that the dismissal was fair.[53] The task is not to review specific elements of the employment history.[54] Further, in circumstances involving breaches of safety procedures the weighing exercise needs to consider an employer's obligations to uphold safety standards in the workplace.[55]

[42] We consider that the Commissioner's finding that the dismissal was harsh and unfair was attended by appealable error for the following reasons.

[43] Firstly, the Commissioner found that even if Mr Knowles breached CSP031 the breach was "of such minor magnitude that termination is a harsh outcome." The Commissioner's finding is informed by the uncontested fact that the coil did not tip.[56] In respect of this matter, Mr Knowles contends that an objective assessment of the gravity of the conduct may take into account the consequences that followed.[57] Mr Knowles submits that the breach of CSP031 did not result in injury to any person.

[44] Further, the Commissioner found that coil damage would have occurred irrespective of whether Mr Knowles had long travelled before hoisting.[58] Mr Knowles' submissions make the same contention. In any event, the Commissioner found that BlueScope condoned Mr Knowles' practice of hoisting by not correcting his annual re-accreditation relating to CSP031.[59]

[45] We have earlier concluded that the Commissioner's finding that BlueScope condoned Mr Knowles' practice involved a significant error of fact and overlooked a material consideration.

[46] As to the tipping risk, the evidence before the Commissioner was that:

(a) CSP031 makes clear the requirement to long travel before hoisting in order to clear a coil. This control measure is intended to prevent the tongs of the crane catching the bore of a coil and tipping the coil.[60]

(b) CSP031 identifies the potential risks and hazards by a failure to comply as, "Fatality from toppled or dropped Coil" and "Coil not stored safely / tipped / rolling coil."[61]

(c) The evidence of Mr Meta, PFD Operations Manager, was that long travel is required under CSP031 because if a tong is caught in the bore of a coil and a despatch operator then hoists the tongs of the crane there is a risk that the unsecured coil will be suspended from the crane, or one side of the coil will lift resulting in the coil tipping over.[62]

(d) Mr Cadwallen's evidence during the proceedings was that "...it will probably damage the coil either way but hoisting gives the risk of topple whereas long travelling may damage the coil but it won't topple the coil and that's the point."[63]

(e) Mr Knowles accepted under cross examination that he hoisted the tongs of the crane to disengage from the coil.[64] Mr Knowles breached CSP031 by hoisting while the tongs were not clear of the coil.

(f) Mr Meta's evidence during the proceedings was that "the only safe thing to do was to long travel back the other way, re-engage the coil, and take it off the saddle."[65]

(g) Mr Knowles did not report to BlueScope that his conduct in hoisting resulted in coil damage.[66]

(h) Mr Cadwellan's evidence during the proceedings regarding Mr Knowles' conduct was that "it was lucky it didn't tip the coil over..."[67]

[47] The evidence makes clear that there is no other way to know whether the hook is clear of the coil other than to long travel. By hoisting the tongs of the crane Mr Knowles breached CSP031 and created a risk of the coil tipping. By focusing on the fact that the coil did not tip and concluding that damage can be occasioned to the coils by long travelling or hoisting, the Commissioner overlooked the requirement for strict compliance with CSP031. The Commissioner's analysis merely focused on the outcome of Mr Knowles' conduct and ignored the evidence as to why BlueScope has a mandated requirement to long travel, which is to avoid a topple risk. Accordingly, the Commissioner's conclusion that if Mr Knowles breached CSP031, the breach was of such minor magnitude is contrary to the evidence and involves a significant error of fact.

[48] Secondly, it is not in dispute that Mr Knowles was issued with a final warning in September 2018 in relation to a breach of CSP027. The final warning arose from BlueScope's determination that Mr Knowles knowingly worked in an unsafe zone while a crane operator suspended a coil above him.[68] Indeed, the Commissioner made a finding that the final warning was justified as Mr Knowles' conduct was inherently unsafe.[69] However, in the Commissioner's assessment of harshness, the Commissioner found that Mr Knowles' conduct was "totally different" to the conduct for which he received a final warning.[70]

[49] Mr Knowles submits that the Commissioner took into account the final warning letter but carefully distinguished his conduct in relation to CSP027 to the present matter. Mr Knowles says that this appeal ground merely involves a challenge to the weight the Commissioner attached to the final warning.[71]

[50] We accept that appealable error will not be demonstrated by contending that the first instance decision-maker failed to give a particular matter "sufficient weight" or failed to have "proper regard" to it, unless this amounted in substance to a failure by the decision maker to exercise the discretion conferred.[72] However, BlueScope's contention is not confined to an assessment of weight. BlueScope contends that by regarding Mr Knowles breach of CSP027 as "totally different," the Commissioner disregarded Mr Knowles' earlier critical safety breach.[73] This affected the Commissioner's evaluation of the seriousness of Mr Knowles' conduct when considering overall harshness.

[51] The Commissioner's finding that Mr Knowles' conduct is "totally different" is at odds with the evidence. On both occasions, Mr Knowles breached critical safety procedures in respect of which he had received annual refresher training. Mr Knowles' warning letter dated 21 September 2018 stated, "you must follow and adhere to all Critical Procedures at all times...Further, you must adhere to the Critical Safety Procedures you have been accredited in."[74] Notwithstanding this, the Commissioner found that Mr Knowles regularly hoisted rather than long travelled in contradiction of CSP031.[75] In effect, Mr Knowles failed to adhere to the critical safety procedures, as directed by BlueScope.

[52] By failing to have regard to Mr Knowles' breach of CSP027 in the assessment of overall harshness, the Commissioner did not take into account a material consideration.

[53] Thirdly, BlueScope contends that in concluding that Mr Knowles was unfairly dismissed the Commissioner inferred, absent any evidence, that BlueScope discriminated against Mr Knowles because of his involvement as a witness in an unfair dismissal proceeding as a union delegate. Mr Knowles contends that it unclear whether the Commissioner made any finding in respect of discrimination. He says the better view is that the Commissioner was recording the evidence. Mr Knowles says that there is no inaccuracy in what the Commissioner said:

"[135] Whilst I can find no overt or clear evidence of the Applicant being discriminated against because of his role as a union delegate, I note that the Applicant appeared as a witness in support of Mr Habak in an earlier proceeding. I also note the unchallenged evidence of Mr Newbold that when he was employed by the Respondent he was bullied, harassed and threatened by a senior member of management from this Department due to this union activities.

[136] For the reasons stated above, I find that the Applicant has been unfairly dismissed."

[54] Mr Knowles put in issue his concern that he was targeted by BlueScope.[76] This contention was weighed by the Commissioner at [135] of the decision. In doing so, the Commissioner took into account Mr Knowles' evidence that in his role as a union delegate, Mr Knowles appeared as a witness in proceedings concerning BlueScope's dismissal of a former colleague for a breach of CSP031. This consideration was taken together with the evidence of Mr Newbold that during his employment he was "bullied, harassed and threatened" by BlueScope on account of his engagement in union activities.[77]

[55] To disregard [135] as merely a record of the evidence overlooks the balancing exercise undertaken by the Commissioner. "Whilst" the Commissioner could find no overt or clear evidence of discrimination, the Commissioner took into account Mr Knowles' appearance as a witness, and inferred discrimination by BlueScope having regard to Mr Newbold's evidence.[78] It is clear from [136] that this formed part of the Commissioner's reasoning. We therefore accept BlueScope's contention that the Commissioner erred by relying upon irrelevant matters in determining the harshness of Mr Knowles' dismissal.

[56] Having regard to the errors identified in respect of valid reason and harshness, we are satisfied that the Commissioner's conclusion that the dismissal was unfair was attended by appealable error. We therefore uphold the appeal and quash the decision and orders.

[57] We have decided that it is appropriate for this full bench to redetermine the matter.

[58] In light of Mr Knowles' admitted breach of CSP031 in not using long travel to clear the coil before hoisting, we find that there was a valid reason for Mr Knowles' dismissal.

[59] We adopt the Commissioner's conclusions in relation to the factors in ss.387(b), (c) (d), (f) and (g) of the Act, as summarised at [1[79] above.79 We consider that these matters weigh against a finding that the dismissal was harsh, unjust or unreasonable.

[60] As to s.387(e), Mr Knowles' dismissal did not relate to unsatisfactory performance. It is therefore unnecessary for us to consider whether Mr Knowles was warned about any unsatisfactory performance before the dismissal. It follows that the consideration at s.387(e) is a neutral factor in determining whether the dismissal of Mr Knowles was harsh, unjust or unreasonable. We consider in our assessment of s.387(h) the final warning letter issued to Mr Knowles in respect of his conduct in September 2018.

[61] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. We have had regard to the following:

• (a) Mr Knowles was 64 years of age at the time of his dismissal. He was employed by BlueScope for nearly 30 years and held an otherwise satisfactory disciplinary record for his length of service.

• (b) Mr Knowles' highly specialised skill set which is said to be of little utility to any business operating within 90 kilometres of his residence.

• (c) Mr Knowles was issued with a final warning for breach of CSP027, which had currency at the time of the dismissal and was relevant to BlueScope's assessment of Mr Knowles' conduct. Mr Knowles was on notice that his employment may be terminated for subsequent breaches of this kind.

• (d) Mr Knowles had received refresher training approximately two and a half months prior to the incident. Consistent with the express terms of CSP031, Mr Knowles demonstrated an understanding that in performing his role safely he was required to "make sure clear of coil." Mr Knowles' repeated practice of hoisting rather than long travelling demonstrates a disregard for CSP031.

• (e) While Mr Knowles' conduct did not cause injury to any person it amounted to a significant safety incident. Importantly, the conduct increased the possibility of a coil tipping and by consequence an increased risk to a person becoming injured. This matter is compounded by Mr Knowles' action of regularly hoisting and not long-travelling. This supports a conclusion that the dismissal was not a disproportionate outcome.

• (f) Mr Knowles did not report his conduct to BlueScope.

(g) Mr Knowles contends that "it is common for some employees to have multiple final warnings in their employee file."[80] However, BlueScope says that it may issue more than one final warning where there are mitigating circumstances and where the incidents are not comparable.[81]

In considering Mr Knowles' submission, the Commission must be satisfied that the cases are "in truth properly comparable."[82] BlueScope says that the circumstances in respect of Mr Knowles are distinguishable to other employees and involve different subjective considerations.[83]

Mr Knowles was issued a final warning for a breach of a critical safety procedure, CSP027. The final warning applied for a 12-month term.[84] Prior to the expiration of the 12 months Mr Knowles breached a separate critical safety procedure, CSP031. We are not persuaded in these circumstances that Mr Knowles ought to have been issued with a second final warning and was treated harshly when compared to his peers.

[62] We do not find that Mr Knowles' age, length of service and future employment prospects weigh so heavily in his favour so as to render the dismissal harsh, unjust or unreasonable. Indeed, the balance of the matters considered at s.387(h) weigh against such a conclusion.

[63] Having considered each of the matters specified in s.387, we are satisfied that the dismissal of Mr Knowles was not harsh, unjust or unreasonable.

[64] Accordingly, we find that Mr Knowles was not unfairly dismissed within the meaning of s.385 of the Act.

[65] We order as follows:

• (a) permission to appeal is granted;

• (b) the appeal is upheld;

• (c) the decision and orders in [2020] FWC 1015 are quashed;

• (d) on redetermination, Mr Knowles' application for an unfair dismissal remedy is dismissed; and

• (e) the stay order PR719832 is set aside.

[1] [2020] FWC 1015

[13] Appeal book pp.30 and 31 at [134]

[16] Appeal book pp.35 and 36 at [150]-[153]

[20] Appeal book pp.30 and 31 at [134]

[23] 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] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[24] [2011] FCAFC 54; (2011) 192 FCR 78 at [43]

[25] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[26] [2010] FWAFB 5343, 197 IR 266 at [27]

[27] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[28] 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] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[29] House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ

[32] Appeal book p.22 at [84]; see also appeal book p.8 at [26]

[39] Appeal book p.29 at [127]; see also appeal book p.27 at [110], appeal book p.29 at [124] and [126]

[41] Appeal book p.35 at [147]; see also appeal book p.29 at [126]

[42] see Zaki Habak v BlueScope Steel Limited [2019] FWCFB 5702 at [31]

[44] Appeal book p.29 at [126] and p.599

[49] Appeal book p.117 at [835] and p.383 at [7]

[52] B v Australian Postal Corp [2013] FWCFB 6191; (2013) 238 IR 1 at [41]

[54] BHP Coal Pty Ltd v Schmidt (2016) 257 IR 11 at [9]

[57] Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089; (2010) 202 IR 388 at [31]- [32]

[62] Appeal book p.14 at [64]; see also appeal book p.28 at [114]

[65] Appeal book p.25 at [100]; appeal book p.229 at [2037]

[66] Appeal book p.16 at [68](g); see also appeal book p.305 at [38] and p.466 at [17], [18] and [20]

[68] Appeal book pp.2 and 3 at [8]; appeal book pp.493 and 494 at [16]; appeal book pp.551 and 552 at [41]-[43]

[71] see Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519-520 and 537; Mt Arthur Coal Pty Ltd v Goodall [2016] FWCFB 5492; (2016) 260 IR 391 at 409-410

[72] see Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at [57]- [58] and the authorities cited therein

[73] Transcript of proceeding dated 8 July 2020 at [185]

[78] see also appeal book pp.25 and 26 at [104]

[79] Appeal book pp.23 and 24 at [90]-[92] and [94]-[95]

[81] Appeal book pp.336 and 337 at [40]-[46]; appeal book 573-576 at [119]-[124]

[82] Sexton, John v Pacific National (ACT) Pty Ltd (14 May 2003) PR931440 at [36]

[83] Appeal book pp.230-232 at [2044]-[2045], [2048], [2050], [2062]-[2065]

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