Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against a decision [2024] FWC 976 and Order PR773509 of Commissioner Ryan at Sydney on 15 April 2024 in matter number U2023/4076 - incident in which vehicle lost traction when driving in pit bottom of a mine - whether vehicle being driven unsafely or at unsafe speeds - Casper the Ghost - grounds of appeal substantially challenge factual findings at first instance - whether arguable grounds to establish that factual findings not reasonably open - whether the Commissioner erred in having regard to Briginshaw principles - limitations on the availability of an appeal and grounds on which an appeal can be brought in relation to unfair dismissal proceedings - whether it is in the public interest for permission to appeal to be granted - permission to appeal refused.

[1] Mr Joe Sleiman worked for Illawarra Coal Holdings Pty Ltd t/a South32 (South32) as an underground coal miner at its Appin Colliery for more than 17 years. On 23 March 2023, the wheels of a vehicle that Mr Sleiman was driving (known as a Driftrunner or SMV) slid as he drove it around a corner in an area at the pit bottom that was designated a shared zone. He regained control of and then parked the vehicle and got out. A mine deputy who witnessed the incident approached Mr Sleiman as he alighted from the vehicle and asked who was driving. Mr Sleiman responded "Casper", being a reference to the cartoon character Casper the Ghost.

[2] The mine deputy, Mr Richardson, reported the incident as a safety incident and South32 conducted an investigation. During the investigation, South32 alleged that Mr Sleiman was guilty of misconduct. Specifically, it was alleged that Mr Sleiman had driven the vehicle through a shared zone at unsafe speeds in excess of 10km per hour, that he lost control of the vehicle causing the vehicle to slide in an uncontrolled manner, that he failed to adequately respond to the mine deputy when asked whether he was driving the vehicle and about Mr Sleiman's driving of the vehicle, and failed to report the incident at any time after the incident occurred. Mr Sleiman was interviewed in relation to the incident, invited to respond as to whether he should be dismissed and, having failed to convince South32 that he should not be, was dismissed from his employment on 1 May 2023.

[3] Mr Sleiman applied to the Commission for an unfair dismissal remedy in accordance with s 394 of the Fair Work Act 2009 (Cth) (the Act). The application was heard by Commissioner P Ryan. In a decision published on 15 April 2024, the Commissioner found that, on balance, the dismissal was harsh and unreasonable (the Decision).[1] The Commissioner ordered that Mr Sleiman be reinstated, that South32 pay Mr Sleiman lost remuneration from the period from his dismissal to the date of reinstatement (less 50% of that amount on account of Mr Sleiman's misconduct in failing to report the incident) and that Mr Sleiman's employment be regarded as continuous despite the dismissal (the Order).[2]

[4] South32 has lodged a notice of appeal under s 604 of the Act, for which permission to appeal is required, against the Decision and the Order. The Commissioner's Decision and Order were stayed with Mr Sleiman's consent pending the determination of the appeal.[3]

[5] At first instance, the parties were given permission to be legally represented by experienced counsel. The Commissioner conducted an inspection of the Appin West Pit Bottom, including travelling in the same SMV that had been driven by Mr Sleiman on 23 March 2023 on the same route that the vehicle had travelled at the time of the incident. The Commissioner conducted a hearing over three days. Ten witnesses were called, all but one of whom gave oral evidence and were cross-examined. This included Mr Sleiman. Documentary evidence was received, including maps of the area where the incident occurred, South32's safety procedures and policies, and correspondence between Mr Sleiman and South32. CCTV video recording of the incident was also provided. Lengthy written submissions were filed.

[6] South32's reasons for dismissal arose from findings made concerning 4 allegations of misconduct. The Commissioner described the allegations of misconduct at paragraph [4] of the Decision in the following terms:

1. That the Applicant drove the SMV through a shared zone and continued to accelerate the SMV, travelling at unsafe speeds in excess of 10km per hour;

2. That the Applicant lost control of the SMV as it rounded a corner causing the vehicle to slide in an uncontrolled manner for a short period;

3. That following the incident, the Applicant failed to adequately answer a Deputy's questions as to whether the Applicant was driving the SMV and about the Applicant's driving of the SMV; and

4. That the Applicant failed to report the incident at any time after it occurred, before being informed by the Respondent that the incident would be subject to an investigation.

[7] In his decision, the Commissioner set out the relevant statutory tests. He then set out the relevant background describing Mr Sleiman's employment, the workplace, the importance of safety in the industry, and the specific safety obligations held by employees. Facts relevant to the incident at pit bottom were also described including the area in which the incident occurred and the practice of watering the area to suppress coal dust. The safety rules that applied to the area were also described. The nature of the vehicle that Mr Sleiman was driving was then explained, as well as the facts associated with the risks of driving in the area of the incident. Details of Mr Sleiman's disciplinary history were noted, including correspondence sent to Mr Sleiman on 7 March 2023 by the mine's General Manager which set out that history and included a statement of behavioural expectations. The Commissioner then described in detail the 23 March 2023 incident. He did so by reference first to the evidence advanced in Mr Sleiman's case. The evidence in relation to the investigation process that followed the incident was also described.

[8] Mr Sleiman's evidence was to the effect that he had driven through the shared zone countless times and that he usually did so at a walking pace. He said that he did not know precisely what speed he was travelling at the time of the incident as there was no working speedometer in the vehicle. His evidence was that the rear end of the vehicle broke traction and drifted as it came around the corner where the road changes from a coal surface to a concrete surface. He said he regained traction after moving about 3 metres. Mr Sleiman said he did not brake, or adjust the rate of acceleration, while he waited for the vehicle to regain traction. His evidence was that as an operator for 18 years if he experienced a loss of traction, he would continue to drive the vehicle out to regain traction and that is what he did on this occasion. He did not know why the vehicle lost traction. He explained that when the mine deputy, Mr Richardson, approached him he seemed angered and aggressive and that when asked who was driving, he responded "Casper" as a means of diffusing the situation. Mr Sleiman accepted this was an inappropriate response. He also accepted that he did not report the incident and maintained his view that he did not need to as Mr Richardson was already aware of the incident.

[9] Mr Sleiman called two witnesses in his case who were present in the vehicle at the time. The Decision records their views in relation to the incident which were that the vehicle slid but was not out of control, the conditions led to the loss of traction as the area had been watered, and that they heard Mr Richardson asking Mr Sleiman who was driving and that he used an angry tone.

[10] The Decision also records South32's evidence, including the evidence of Mr Richardson. Mr Richardson's written statement initially described the vehicle as travelling at high speed, drifting around the corner then completing the corner sideways on two wheels. He corrected his statement to change two wheels to four wheels. Mr Richardson said he saw six to eight men inside the vehicle get lifted off their seats and pushed against the side of the vehicle. He also said the vehicle made contact with the wall of the mine also known as the rib, and then bump into another vehicle as it was parked up. He said he approached the men in the vehicle, asked if they were okay and that he asked Mr Sleiman if he was driving. He received no responses to his queries. Mr Richardson described the incident as the most dangerous he had seen.

[11] Mr Richardson immediately filled in an incident report. The Commissioner sets out the contents of the report. The following day, Mr Richardson provided a written statement about the incident. The Decision sets out the content of that statement. Mr Richardson gave an interview about the incident four days later. The Decision sets out a transcript of that interview. During the interview he described the speed of the vehicle as going flat out. He was cross-examined and confirmed that he could see to the corner where the vehicle had slid. Mr Richardson conceded that he did not see the vehicle bump into another vehicle. He changed his evidence about asking the men in the vehicle if they were okay and said he did not hear Mr Sleiman's "Casper" response. He acknowledged that his version of events had changed since his initial report but denied he was exaggerating the events.

[12] South32 led evidence from another mineworker present on the day. Mr Hudson was present but not in the vehicle. Mr Hudson gave a brief statement some days after the incident. In his evidence before the Commission, he said he was in the crib room with Mr Richardson and heard the vehicle approaching. He estimated the vehicle was travelling at 35km per hour. South32 also provided statements it obtained during its investigation from other workers who were present on the day. The makers of those statements were not called. Those statements are described in the Decision, but they were not given weight.

[13] The Commissioner also described the CCTV footage. The footage provided no assistance as to the extent of the loss of control of the vehicle, but the Commissioner did find that it assisted in showing the vehicle Mr Sleiman was driving did not approach the crib area at a speed greater than other vehicles and that it did not bump into another vehicle when it was parked. The Commissioner then described the evidence about the investigation South32 carried out into the incident. The incident report concluded that, while it was not substantiated that the vehicle hit the rib/wall of the mine or another vehicle, Mr Sleiman drove at unsafe speeds in a shared zone and lost control of the vehicle.

[14] The Commissioner set out the show cause process that led to the termination of Mr Sleiman's employment that followed the investigation, noting that the allegations relied upon included that Mr Sleiman accelerated in a shared zone and travelled at speeds in excess of 10 km/hr causing the vehicle to slide in an uncontrolled manner, responded sarcastically to Mr Richardson, and failed to report the incident. Mr Sleiman's reply to the show cause letter was set out, as was the termination letter.

[15] After setting out the evidence, the Commissioner addressed the relevant statutory requirements in Part 3-2 of the FW Act and addressed the matters he was required to consider under s 387 when determining unfairness. In considering whether there was a valid reason for dismissal, the Commissioner set out the relevant tests and referred to the approach in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 to the effect that findings that an employee engaged in misconduct should not be lightly made. He proposed to apply those principles on the basis that he was required to reach a state of satisfaction or an actual persuasion that the allegations of misconduct were proven, taking into account the seriousness of the allegations and the gravity of the consequences if they were proven. The Commissioner's discussion of the so-called Briginshaw principles was as follows:[4]

The employer bears the evidentiary onus of proving that the conduct on which it relies took place. Furthermore, where allegations of misconduct are made that have serious consequences for an employee, the Briginshaw principles apply so that findings that an employee engaged in the misconduct are not made lightly.

[16] The Commissioner set out a passage from the judgment of Lee J in Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; (2019) 286 IR 52 at [14]- [18] and continued:[5]

It follows that for the Respondent to succeed in relation to its allegations of misconduct against the Applicant, I am required to reach a state of satisfaction or an actual persuasion that the Respondent has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences for the Applicant that could follow if the allegations were to be accepted.

[17] The Commissioner then set out the four allegations arising from the incident and dealt with them. Allegations 1 and 2 were dealt with together. The Commissioner recorded that having observed and listened to each witness he had not reached a state of satisfaction or actual persuasion that Mr Sleiman drove the vehicle at an unsafe speed in excess of 10 km/hr. Although the Commissioner was satisfied that the SMV "stepped out", he indicated he had not reached a state of satisfaction or actual persuasion that it was a result of Mr Sleiman's driving or operation of the SMV. The Commissioner went on to explain his findings by reference to the evidence including the change in Mr Richardson's account of the incident over time, that the witness evidence of the speed of the vehicle did not accord with the CCTV footage, his preference for Mr Sleiman's and the other mineworkers' account of the incident over the evidence of South32's witnesses, and his acceptance that the state of the road may have contributed to the vehicle sliding.

[18] Allegation 3 was dealt with separately. The Commissioner did not accept that Mr Sleiman refused to answer questions from Mr Richardson about his driving as he found that he was not asked about his driving. The Commissioner accepted that Mr Sleiman did not adequately answer the question of who was driving and that his response of "Casper" reflects poorly on him. However, the Commissioner did not accept that this constituted a valid reason to dismiss him. The Commissioner considered that both Mr Richardson and Mr Sleiman contributed to the breakdown in any further communication. Mr Richardson did not hear the "Casper" response and had ended the conversation prematurely by simply walking away without waiting for a response from Mr Sleiman.

[19] Allegation 4 was also dealt with separately by the Commissioner. The Commissioner found that South32 had clear policies on reporting safety incidents and that Mr Sleiman had been trained in relation to the issue of reporting of all accidents, incidents and near misses as soon as possible. The Commissioner was satisfied that Mr Sleiman failed to comply with the policies and the failure to comply with South32's policies and procedures did constitute a valid reason for dismissal.

[20] The Commissioner found that, for the purposes of s 387 (b), (c) and (d), Mr Sleiman was informed of the reason for dismissal, was given the opportunity to respond, and was not refused a support person in discussions related to the dismissal. Section 387(e) was not relevant as the dismissal was for misconduct not performance reasons. Sections 387(f) and (g) going to the impact of the size of the employer and access to human resource specialist on the procedures followed, were considered neutral.

[21] The Commissioner considered that three factors were relevant under s 387(h). First, although the Commissioner considered that the reporting of all incidents and near misses was critically important, a mitigating circumstance for not reporting the incident was that the incident was witnessed and reported by Mr Richardson who was a person to whom Mr Sleiman could have reported the matter. Second, the Commissioner considered that Mr Sleiman's disciplinary history weighed against Mr Sleiman even though it did not relate to the reporting of safety incidents. Third, the Commissioner took into account the effect of the dismissal on Mr Sleiman and his family.

[22] The Commissioner concluded that "on very fine balance" the dismissal was both harsh and unreasonable and indicated that he had taken into account all the evidence and the submissions of the parties.

[23] The Commissioner moved on to consider the question of remedy setting out the relevant statutory provisions. Findings were made that reinstatement was not inappropriate given Mr Sleiman's long period of service, the fact that he had not been warned for unsafe driving in the past and that other disciplinary concerns had been of a different character. The Commissioner took into account Mr Sleiman's disciplinary history and the evidence of South32's managers about a breakdown in the relationship but concluded that based on his findings as to Mr Sleiman's conduct he was not satisfied that reinstatement was inappropriate. The Commissioner ordered reinstatement. He also ordered that Mr Sleiman be paid an amount for lost remuneration. That amount was reduced by 50% on account of his failure to report the incident. The Commissioner regarded that as an appropriate sanction for the failure to follow safety procedures in a dangerous industry.

[24] The notice of appeal directs attention to the allegations and posits five grounds of appeal. Each ground includes particulars. The grounds relied upon by South32 may be summarised as follows:

Ground 1 asserts that the Commissioner erroneously found that allegations 1 and 2 were not valid reasons for Mr Sleiman's dismissal related to his conduct. The particulars are:

1. The Commissioner wrongly applied the 'Briginshaw principles' in making findings about the alleged conduct.
2. The Commissioner conflated allegations 1 and 2 in the decision.
3. • vi) The Commissioner erred in the assessment of various aspects of the evidence related to the incident.

vii) - viii) The Commissioner's finding in relation to allegation 1 that he was not persuaded that Mr Sleiman had driven the vehicle at an unsafe speed was not reasonably open on the evidence as the Commissioner failed to properly take into account evidence of various witnesses.

ix) - xi) The Commissioner's finding concerning allegation 2 that he was not persuaded that Mr Sleiman was the cause of the vehicle losing control in the corner was not reasonably open on the evidence and the Commissioner failed properly to take into account various aspects of the evidence and mistakenly found that South32 had not sufficiently taken into account the condition of the road where the incident occurred.

Ground 2 asserts that the Commissioner erroneously found that allegation 3 was not a valid reason for Mr Sleiman's dismissal related to his conduct. Two particulars are provided:

i) It was not open to find that the conduct in allegation 3 had not occurred as Mr Sleiman admitted that he had replied "Casper" to the mine deputy.

ii) The Commissioner's finding that the deputy had contributed to the breakdown in any further communication was irrelevant.

Ground 3 asserts the Commissioner erroneously found that the termination of the Respondent's employment was harsh and unreasonable. Three particulars are asserted:

i) The finding was based on the erroneous findings already described in grounds 1 and 2 that allegations 1 to 3 did not provide a valid reason for dismissal, and the conclusion that the misconduct in allegation 4, which was found to be a valid reason for dismissal, was at the lower end of the scale.

ii) The Commissioner erred in failing to give sufficient weight to South32's statutory safety obligations.

iii) The Commissioner erred in only giving marginal significance to Mr Sleiman's disciplinary history.

Ground 4 is that the Commissioner erroneously held that the Respondent had been unfairly dismissed within the meaning of the Act. No particulars are provided.

Ground 5 is that the Commissioner erroneously found that reinstatement of Mr Sleiman was not inappropriate. Two particulars are provided:

i) The finding was based on the erroneous findings already described in grounds 1 and 2 that allegations 1 to 3 did not provide a valid reason for dismissal.

ii) The Commissioner misconstrued the statement in correspondence from South32's General Manager to Mr Sleiman that it was his strong preference to maintain Mr Sleiman's employment.

[25] In the notice of appeal, South32 contended that the errors of fact identified in ground 1(iii), (iv), (v), (vi), (vii) (ix) and (xi), ground 2(i) and (ii), and Ground 3(i) represent significant errors of fact for the purposes of s 400(2) of the Act.

[26] As to the question of whether it is in the public interest for the Full Bench to grant permission to appeal for the purposes of ss 400(1) and 604(1) of the Act, South32 contended that it was in the public interest to grant permission to appeal for the following reasons:

1. The Decision contains significant errors of fact, including findings that were not reasonably supported by the evidence.

2. Correcting the Decision is crucial to prevent prejudicial effects on the safe operation of the mine, ensuring compliance with safety policies, and avoiding unsafe work situations for employees.

3. Upholding the Decision could hinder South32's ability to fulfill statutory obligations for mine safety, contradicting important public policy reflected in relevant statutes.

4. The Decision raises important principles regarding a Commissioner's discretion in ordering reinstatement, especially in cases involving extensive evidence of disciplinary history and behavioural and safety incidents and a complete breakdown in the employment relationship.

[27] South32's submissions largely reflected the grounds in the notice. The assertion that the Commissioner erroneously applied the "Briginshaw principles" in assessing Mr Sleiman's conduct was pressed. The submissions going to the Commissioner's treatment of the evidence, which form the basis of the other grounds, were elaborated upon. It was said that the Commissioner mistakenly conflated allegations 1 and 2, by failing to distinguish between speed and acceleration (allegation 1) and loss of control (allegation 2). The Commissioner's findings regarding Mr Sleiman's conduct, including acceleration and loss of control, were alleged to be unreasonable and not reasonably open on the evidence. South32 accepted that the evidence did not establish the precise speed at which the SMV had travelled through the shared zone and that it had not proved that the SMV was travelling in excess of 10 kilometres per hour. Otherwise, it submitted that the Commissioner's findings that Mr Sleiman had not continued to accelerate through the shared zone and travelled at unsafe speeds and that the SMV "stepping out" had not been a result of Mr Sleiman's driving or operation of the vehicle were not reasonably open.

[28] South32 acknowledged that, to overturn factual findings made by the Commissioner, it was required to demonstrate that the findings were not reasonably open on the evidence. In oral submissions, South32 sought to meet that challenge by contending that ten facts were established on Mr Sleiman's own evidence (or other uncontroversial evidence) that meant the findings of the Commissioner were not open. The ten allegedly incontrovertible facts were as follows:

(a) That Mr Sleiman was in control of the SMV at all material times (Fact 1);

(b) That the events occurred in the shared zone where high levels of pedestrian and vehicle interactions occur and vehicles should be driven at low speeds (Fact 2);

(c) That Mr Sleiman drove the vehicle into the shared zone and continued to accelerate (Fact 3);

(d) That Mr Sleiman was unable to give evidence as to the precise speed at which the SMV travelled through the shared zone (Fact 4);

(e) That the SMV lost control which caused the vehicle to slide in an uncontrolled manner for a short period (Fact 5);

(f) That there was no evidence the loss of control was due to any mechanical failure or unforeseen external factor (Fact 6);

(g) That the only identified cause of the loss of control was the slippery conditions of the road surface (Fact 7);

(h) That the slippery condition of the road surface was foreseeable and in fact foreseen by Mr Sleiman (Fact 8);

(i) That it follows that the loss of control was the product of Mr Sleiman failing to drive the SMV in a manner that suited the conditions (Fact 9); and

(j) That it was a requirement of Mr Sleiman's job that he drive the SMV to the road conditions (Fact 10).

[29] South32 made extensive and lengthy reference to the documentary and oral evidence received by the Commissioner in an attempt to demonstrate that these alleged facts were uncontroversial and inexorably led to the conclusion that the Commissioner's findings were not open. The errors in assessing allegations 1 and 2 were said to be crucial in the overall decision in relation to Mr Sleiman's dismissal, leading to a flawed outcome.

[30] South32 contended that the Commissioner erred in finding that the failure of Mr Sleiman to adequately respond to Mr Richardson's inquiry as to who was driving the vehicle was not a valid reason for dismissal. It was said that the question of whether Mr Richardson contributed to the breakdown in any further communication was irrelevant and a distraction. It submitted that, although the Commissioner had correctly concluded that the failure of Mr Sleiman to report the incident constituted a valid reason for dismissal, he had erred in regarding that failure as being at "at the lower end of the scale". It was said that this finding was not reasonably open.

[31] South32 contended that the Commissioner erroneously held that he was not satisfied that reinstatement was inappropriate. The error was said to arise as a result of the Commissioner's conclusion being based on erroneous findings with respect to allegations 1 and 2 and that, in any event, there was a proper basis for South32 to have lost trust and confidence in Mr Sleiman having regard to the strict nature of its safety obligations. In relation to the question of reinstatement, South32 also contended that the Commissioner's decision was based on a misconstruction of an "expectations letter" sent to Mr Sleiman in relation to earlier disciplinary matters.

[32] On the question of permission to appeal, South32 submitted that permission to appeal should be granted due to errors of law and the significant errors of fact it alleges are to be found in the Commissioner's decision. Reliance was placed on the Commissioner giving incorrect weight to the evidence leading to inappropriate findings as to Mr Sleiman's conduct and the appropriateness of reinstatement. South32 emphasises the public interest in granting permission to appeal is its statutory obligations to ensure safety and asserted that, if not corrected, the Commissioner's decision had the potential to prejudicially affect the safe operation of the mine and the capacity of South32 to meet its statutory obligations for the safe operation of the mine.

[33] Mr Sleiman's submissions contended that there was nothing unorthodox in the Commissioner's treatment of the Briginshaw principles. The Decision does not, as asserted by South32, treat the principle as a separate standard of proof but correctly treats it as guide in assessing the nature of the alleged misconduct and its consequences. Mr Sleiman refuted contentions that the Commissioner conflated allegations 1 and 2 as, while the allegations were dealt with together, each allegation was specifically addressed. Mr Sleiman submitted that the Commissioner's findings were based substantially on a preference for the evidence of the witnesses called on his behalf. The Commissioner's findings in relation to allegations 1 to 3 were said to be detailed, clear, and based on a careful analysis of the evidence and it was contended that there is no error in the Commissioner's findings. Mr Sleiman's counsel also took us to specific aspects of the evidence that supported the findings made. Mr Sleiman submits that there is no error in the Commissioner's reasoning process to warrant permission to appeal and that should permission be granted none of the asserted errors amount to appealable errors and the appeal should be dismissed.

[34] Section 604(1) of the Act makes it clear that there is no right to appeal, and an appeal may only be made with the permission of the Commission. Other than with respect to certain decisions of a delegate, or the General Manager of the Commission, the question of permission to appeal must be decided by a Full Bench.[6] Generally, the Full Bench must grant permission to appeal if satisfied that is in the public interest to do so.[7] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[8]

[35] The discretion of the Commission to grant permission is more confined in case of an application for permission to appeal from a decision of the Commission made in unfair dismissal proceedings under Part 3-2 of the Act. Section 400 of the Act 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.

[36] Both subsections (1) and (2) of s 400 of the Act demonstrate an intention that the avenue to appeal a decision in unfair dismissal proceedings is to be limited. Section 400(1) manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally.[9] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so and no general or residual discretion exists if that threshold is not met. Section 400(2) indicates a particular sensitivity with respect to revisiting factual findings made in unfair dismissal proceedings by limiting review on appeal based on an alleged mistake of fact to one that involves a significant error of fact. Section 400(2) represents a basal pre-condition to an exercise of power by the Full Bench to correct an error of fact.[10]

[37] The statutory purpose of restricting the avenue of appeal with respect to a decision in unfair dismissal proceedings, and constraining the grounds on which such an appeal can be made, is not difficult to discern. The apparent objective is to limit the time, costs and inconvenience associated with unfair dismissal proceedings. The object of Part 3-2 of the Act includes to establish procedures for dealing with unfair dismissal that are "quick, flexible and informal", including that the procedures and remedies provided for ensure a "fair go all round" is accorded to both the employer and employee concerned.[11] An unconstrained right of appeal, or a threshold for permission to appeal being granted which is too low, would hinder the achievement of the object of the Part.

[38] The task of assessing whether it is in the public interest to grant permission to appeal is a discretionary one involving a broad value judgment.[12] The public interest is not satisfied simply by the identification of error or a preference for a different result.[13] The Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:[14]

... 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.

[39] Further, 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.[15] An application for permission to appeal, however, is not to be regarded as a de facto or preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is not necessary, and would not be appropriate, to conduct a detailed examination of the appeal grounds.[16] It is necessary to engage with the grounds of appeal for the purpose of considering whether they raise an arguable case of appealable error.

[40] It is not possible, or appropriate, to attempt to confine or fetter the broad discretionary assessment required to be made in each case as to whether it is in the public interest to grant permission to appeal. However, the statutory context to which we have referred does suggest that it will commonly not be in the public interest to grant permission to appeal where the grounds of appeal, in substance, seek to relitigate the factual findings made at first instance. There may, of course, be cases in which it can be demonstrated that something has gone seriously wrong in the decision-making at first instance which demands reconsideration of the evidentiary material and the factual findings on appeal. It will often not be in the public interest, though, for a Full Bench of the Commission to engage in a detailed analysis of the primary factual material simply because an appellant alleges that different conclusions should have been drawn from the evidence.

[41] We are not satisfied that it is in the public interest to grant permission to appeal in this matter and, in those circumstances, permission to appeal must be refused. The grounds of appeal do not raise issues of importance or general application to the jurisdiction of the Commission under Part 3-2 of the Act. It appears to us that the basis upon which the Commissioner made his factual findings and decided to award an unfair dismissal remedy discloses an orthodox approach to the fact-finding task and the determination of whether an unfair dismissal remedy should be ordered. We have set out in some detail the Commissioner's reasons and the basis upon which South32 seeks to appeal. The Decision dealt with the matter in a conventional way and in accordance with the requirements of the Act.

[42] The Commissioner was faced with competing evidence on important issues and made findings on the evidence that were available to him and were based on his assessment of all of the material before him. The documentary evidence was voluminous and detailed, and a number of witnesses were called to give evidence and cross-examined. The Commissioner had the advantage of assessing the demeanour of the witnesses and had inspected the mine site and the area where the incident took place. Many of the factual findings are matters in relation to which witnesses gave differing accounts and which required an assessment of credibility. In considering the question of permission to appeal, it is relevant that factual findings made at first instance that are likely to have been influenced by the decision-maker having directly seen and heard the evidence should be set aside only where they are "glaringly improbable".[17] In our opinion, it is not in the public interest for permission to be granted to revisit the factual findings made by the Commissioner.

[43] The major premise of South32's submission that permission to appeal should be granted and that the Full Bench should overturn the factual findings of the Commissioner with respect to allegations 1 and 2 was that ten allegedly incontrovertible facts were established on Mr Sleiman's own evidence which, if accepted, demonstrated that the Commissioner's conclusions were erroneous. We do not accept either that the facts asserted by South32 to be incontrovertible were so or that the ten facts required no other conclusion than that Mr Sleiman had engaged in misconduct and there was a valid reason for dismissal. We do not consider that the ten allegedly incontrovertible facts create an arguable case of error.

[44] It is sufficient, for the purposes of considering the question of permission to appeal, to provide an example. It was said that it was incontrovertible that Mr Sleiman drove the vehicle into the shared zone and continued to accelerate. There was competing evidence about whether Mr Sleiman continue to accelerate, what the witnesses meant by "accelerate" and whether doing so was an appropriate course of action if the wheels of the SMV lost traction. Mr Sleiman explained that he did not accelerate but kept his foot on the accelerator until the vehicle gained traction again. Mr Sleiman said he regarded that as the appropriate method of dealing with such a situation. The Commissioner accepted Mr Sleiman's evidence and observed that the CCTV footage did not show the vehicle accelerating. There was competing evidence about a number of other matters described as incontrovertible by South32. On a number of those issues, the Commissioner did not accept South32's submissions. We consider it was open for the Commissioner to do so. It is not in the public interest to grant permission to appeal for the purpose of revisiting those factual findings.

[45] We also do not accept that, even if the ten facts referred to by South32 were incontrovertible, those facts established inexorably or necessarily that Mr Sleiman had engaged in misconduct or that there was a valid reason for dismissal. The situation facing Mr Sleiman at the time of the incident was that he was driving the SMV (which did not have a working or visible speedometer) around a corner in a dark tunnel at a point where the road surface changed from loose material to concrete and at which the ground was wet and there was frequently spilled diesel fuel. South32's submission was that if, in those circumstances, the SMV's wheels lost traction or slipped that necessarily meant that the driver was at fault and had driven the vehicle inappropriately or unsafely. That conclusion was said to follow because workers are told to drive to the conditions and Mr Sleiman knew the area was slippery. We would not be inclined to accept that the mere fact that the wheels of an SMV might slip in such conditions necessarily meant that the vehicle had been driven inappropriately. In any event, it is sufficient for the purposes of considering the question of permission to appeal to record that it was, in our view, reasonably open to the Commissioner to find that the incident did not occur as a result of Mr Sleiman's driving or operation of the SMV.

[46] The grounds of appeal directed at allegations 3 and 4 also raise no issue of importance or general application. We do not understand the basis upon which it is suggested that it was not reasonably open to the Commissioner to conclude that the brief interaction with Mr Richardson did not constitute a valid reason for dismissal. That finding was, in our opinion, plainly open. In relation to allegation 4, the Commissioner accepted that the failure to report the incident constituted a valid reason for dismissal. The Commissioner was entitled to consider the seriousness of that matter for the purposes of assessing whether the dismissal was, as a whole, harsh, unjust or unreasonable. It was, in our view, relevant to the seriousness of the breach that one person to whom Mr Sleiman could have reported the incident was Mr Richardson who, of course, observed the incident directly and reported it.

[47] The ground of appeal directed at the reinstatement order made by the Commissioner is substantially based on the allegation that the Commissioner's other factual findings were erroneous. The only other issue raised is the interpretation of an earlier disciplinary letter sent to Mr Sleiman and Mr Sleiman's disciplinary history. That is not a matter that attracts the public interest or would permit permission to appeal to be granted. The Commissioner discussed Mr Sleiman's disciplinary history at length and took that matter into account in the discretionary assessment as to whether reinstatement was appropriate.

[48] The Commissioner's findings as to valid reason were clear and open on the evidence. His consideration and conclusion of the substantive fairness including the mitigating circumstances and impact of the dismissal were in accordance with the requirements of the Act and open to him on the evidence. The Commissioner's approach to remedy was equally orthodox. As such, we are not satisfied that there is an arguable case of error in relation to any aspect of the Decision.

[49] Further, the matter turned entirely on its own facts. The appeal does not raise any issue of novelty, importance, nor general application. The only substantial issue of law sought to be raised by South32 in the appeal concerned the Commissioner's application of the approach in Briginshaw v Briginshaw. The Commissioner's consideration of the approach in Briginshaw was, in our opinion, unremarkable. In Briginshaw itself, Dixon J emphasised that a state of reasonable satisfaction is not attained independently of the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence or the gravity of the consequences flowing from the finding in question.[18] Each of those matters could properly bear upon whether a court or tribunal is reasonably satisfied or feels actual persuasion in relation to the facts in issue. South32 submitted that the allegations against Mr Sleiman were not "serious" in that sense and the consequence of the loss of his employment of 17 years was not a serious consequence for Mr Sleiman so to attract the caution as to the fact finding process set out in Briginshaw. The Commission has customarily regarded allegations of misconduct as serious in that sense and the loss of employment to be a "serious matter".[19] There is no suggestion of any uncertainty in the jurisprudence or diversity in the approach being adopted by members of the Commission. It is not in the public interest to revisit the application of the Briginshaw principles to unfair dismissal proceedings in the present appeal.

[50] One additional matter that was said to give rise to an issue of general importance was the claim that the decision undermines safety in the workplace. The Commissioner's decision does not undermine South32's capacity to comply with its statutory safety obligations. The Commissioner accepted the importance of those obligations and reduced the amount to be paid on account of lost remuneration to Mr Sleiman as a sanction for him not reporting the incident in accordance with South32's policies. That represents a significant penalty. The Commissioner was not satisfied, however, that Mr Sleiman's operation and driving of the SMV was itself the cause of the vehicle losing traction and sliding for a short period. In those circumstances, the reinstatement of Mr Sleiman in no way undermines South32's capacity to meet its statutory obligations for the safe operation of the mine.

[51] On the material before the Full Bench, and for the reasons set out above, we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of error in the Decision and we are not satisfied the matter otherwise raises any consideration which make it in the public interest to grant permission to appeal. We consider that the Commissioner asked the right questions, considered the matters that he was required to take into account, and accorded each matter such weight he considered appropriate. The result was within the reasonable bounds of outcomes that would be expected from a consideration and weighing of the matters relevant to the Commissioner's exercise of the discretion.

[52] As set out earlier, s 400(1) of the Act provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to grant permission to appeal. We do not believe that it is in the public interest to grant permission to appeal and, accordingly, permission to appeal must be refused.

[53] The stay order made by Deputy President Slevin lapses upon the determination of the appeal. The order was subject to undertakings including that, should the appeal be unsuccessful, South32 would make a payment equivalent to the difference between the 'ordinary week's pay rate' and the 'as if at work rate' under the Appin Colliery & West Cliff CPP Enterprise Agreement 2022 for the period from 6 May 2024 until determination of this appeal. A consequence of this decision is that South32 must now make that payment.

[54] For the reasons set out above, permission to appeal is refused.

Mr I Neil SC and Mr B Rauf, of counsel, instructed by MinterEllison, for the Appellant.

Mr A Howell, of counsel, instructed by the Mining and Energy Union, for the Respondent.

[1] Sleiman v Illawarra Coal Holdings Pty Ltd T/A South32 [2024] FWC 976.

[2] PR773509.

[3] PR774911.

[4] [2024] FWC 976 at [161].

[5] [2024] FWC 976 at [163].

[6] Fair Work Act 2009 (Cth), s 613(1)(a).

[7] Fair Work Act 2009 (Cth), s 604(2).

[8] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12].

[9] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] (Buchanan J); Workpac Pty Ltd v Bambach [2012] FWAFC 3206; [2012] FWAFB 3206; (2012) 220 IR 313 at [14]; Barwon Health - Geelong Hospital v Colson [2013] FWCFB 4515; (2013) 233 IR 364 at [6].

[10] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).

[11] Fair Work Act 2009 (Cth), s 381(1)(b) and (2).

[12] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46]; Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [102] (Bromberg J).

[13] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

[14] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) IR 297 at [27].

[15] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82] (Siopis, Collier and Katzmann JJ) referred to Waters v Commonwealth [2015] FCAFC 46 at [9]- [10] (Flick J).

[17] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

[18] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 (Dixon J). See also Lehrman v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [98]- [104] (Lee J).

[19] See, for example, Budd v Dampier Salt Ltd [2007] AIRCFB 797; (2001) 166 IR 407 at [16].

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