KERR J:
60 The Applicant in these proceedings, Mr Knowles, was dismissed by the Respondent, BlueScope Steel Limited (BlueScope Steel). He had operated a crane to move a coil of steel in a manner that BlueScope Steel asserted was contrary to that mandated by a critical safety protocol he was required to follow (CSP031).
61 Mr Knowles applied to the Fair Work Commission (FWC) for an unfair dismissal remedy. On 11 May 2020 Commissioner Riordan delivered his reasons for granting Mr Knowles an unfair dismissal remedy. He ordered his reinstatement: Trevor Knowles v BlueScope Steel Limited [2020] FWC 1015. In reaching that conclusion the FWC reasoned on two alternative bases (1) on its proper construction Mr Knowles' conduct had not breached CSP031; and (2) assuming he was wrong in that regard, in the specific circumstances applying, Mr Knowles' dismissal for the breach had been harsh and unfair.
62 BlueScope Steel applied for leave to appeal the Commissioner's decision to the Full Bench of the Fair Work Commission. The Full Bench granted leave and upheld the appeal for reasons published on 19 August 2020: BlueScope Steel Limited v Trevor Knowles [2020] FWCFB 3439.
63 Mr Knowles has sought judicial review of that decision.
64 As before the Full Bench, the Respondent concedes that the Full Bench was entitled to find error in the finding of the FWC that BlueScope Steel did not have a valid reason to terminate his employment. That had involved a concession on Mr Knowles' part before the Full Bench that on its proper construction his conduct had involved a breach CSP031.
65 However, the Respondent submits that in overturning the alternative basis for the Commissioner's decision, that on the basis there had been such a breach of CSP031 Mr Knowles dismissal was nonetheless harsh and unfair, the Full Bench fell into jurisdictional error.
66 Logan J and I have each had the very significant advantage of reading in draft the reasons for judgment to be delivered by Flick J. In common with Logan J I am grateful for Flick J's summary of both the facts and the relevant legal principles - which subject to the limited differences I express in these reasons I concur with. However I regret that ultimately I have come to a different conclusion having regard to what I apprehend was the failure of the Full Bench to fulfil its duty consistently with the statutory command provided for in s 400 of the Fair Work Act 2009 (Cth) (FWA).
67 As Flick J's reasons reveal, the jurisdictional error(s) said by the Respondent to vitiate the Full Bench's decision are particularised in three regards. However in common each error so particularised involves an attack on the entitlement of the Full Bench to have found a significant error in the factual findings made by the Commissioner. On behalf of Mr Knowles it is submitted that it was a pre-condition of the Full Bench's lawful entitlement to set aside a decision of a single Commissioner that the decision under review be affected by "a significant error of fact".
68 The existence of such a constraint is uncontentious. It is statutorily provided for by s 400 of the FWA as follows:
400 Appeal rights
(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.
69 The Full Bench referred to the relevant principles governing its task as follows;
[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. 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…
[24] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one." The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 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."
[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. 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.
[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. 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."
70 Mr Knowles' counsel, Mr Tran, submits that notwithstanding that the Full Bench had correctly identified at [23] that the appeal was one to which s 400 of the FWA applied, this court is entitled to conclude that the Full Bench fell into jurisdictional error when it held that there had been a significant error of fact, or significant errors of fact identified in the FWC's reasoning as entitled it to entertain BlueScope Steel's appeal against the alternative conclusion of the Commissioner that Mr Knowles's dismissal was harsh and unfair.
71 Mr Tran submits that the Commissioner's alternative reasoning necessarily was premised on the assumption he had been in error in his construction of the operation of CSP031. It had been on that premise, but in the facts applying, that the Commissioner had concluded Mr Knowles dismissal should be set aside as harsh and unreasonable. Mr Tran submits that, having regard to s 400(2) of the FWA, the Full Bench was not lawfully entitled to entertain the appeal unless it was properly open to it to find (rather than merely to assert) that the Commissioner's decision had involved one or more "significant error[s] of fact". Mr Tran submits it was not open to the Full Court to have differently so concluded without lawfully identifying any significant error of fact in the decision at first instance with respect to those found contextual facts, and then having done so, giving different weight to the relevant circumstances, so as to have concluded that Mr Knowles' dismissal was not harsh and unfair.
72 The Appellant submits that the Full Bench's decision proceeded upon a misconception of the Commissioner's reasons by not appreciating that his alternative reasoning proceeded on the premise that a breach of CSP031 had occurred. His prior finding that it had not was therefore immaterial and could not itself be a significant error of fact in respect of the FWC's decision as was based on an acceptance that that finding was wrong.
73 The Appellant then submits that the further significant errors of fact the Full Bench identified with respect to the FWC's alternative reasoning in support of the decision it made were findings not lawfully available for the Full Bench to have arrived at.
74 For its part the Respondent submits with respect to that threshold point that the FWC's conceded error that BlueScope Steel had no lawful reason to terminate the Respondent's employment (because on its proper construction Mr Knowles' had not breached CSP031) involved a significant error of fact which alone provided a sufficient premise for the Full Bench to have proceeded to entertain BlueScope Steel's 'appeal' with respect to his alternative reasoning.
75 BlueScope Steel's submission is premised on the Full Bench's reasoning at [35] (set out in Flick J's reasons at [38]) that the FWC finding that Mr Knowles had not breached CSP031 having regard to his subjective understanding of that protocol, was based on a significant error of fact. It submits that s 387 of the FWA provides that the FWC is obliged to take into account in considering whether a dismissal is unreasonable, inter-alia, "whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)". Thus BlueScope Steel submits that the terms of the statute required the conclusion that an error as to whether Mr Knowles' conduct was open to be concluded to be a valid reason for his dismissal necessarily is a "significant error of fact". That error necessarily infected not only its primary but also its alternative reasoning.
76 BlueScope Steel then submits that in any event the Full Bench's further findings that the FWC had made further significant errors of fact in its decision that Mr Knowles's dismissal was harsh and unfair were lawfully available to it.
77 The primary submission, developed in oral argument by Mr Taylor, counsel for the Respondent, is superficially attractive but should be rejected.
78 The necessary starting point for any analysis of the alternative reasoning of the Commissioner is that it commenced with an acceptance on his part that his construction and application of the terms of CSP031 should be concluded to be in error.
79 On that premise the FWC had earlier expressly referred to the legal significance required to be given to an established breach of the provisions of CSP031:
[88] In B, C & D v Australian Postal Corporation t/a Australia Post (Australia Post) [2013] FWCFB 6191, a Full Bench of the Commission held:
"A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."
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.
80 The FWC then set out the basis of his decision that Mr Knowles's dismissal was, notwithstanding the prima facie position, harsh and unfair.
81 Only if that reasoning is read in isolation in disregard of the above might it be thought to have been open to the Full Court to have concluded that the FWC's decision involved a significant error of fact at the threshold as would have flowed into and infected with error its consideration of whether Mr Knowles' dismissal for established cause was harsh and unfair - the FWC having not taken into account that BlueScope Steel had been entitled to expect its employees to rigorously comply with its published safety protocols and a breach gave rise to a prima facie entitlement to dismiss.
82 However, any fair reading of the FWC's decision requires attention to its reasoning as a whole including what it had stated at [88] as set out above. BlueScope Steel does not submit that what the FWC records in that passage involved any misstatement of legal principle. Indeed it is consistent with the principles its counsel, Mr Taylor, pressed in this proceeding.
83 On the assumption the FWC was in error in having concluded there had been no breach of CSP031, its decision that Mr Knowles' dismissal nonetheless was harsh and unfair was thus premised on his acceptance that a breach gave rise to a prima facie entitlement in BlueScope Steel to dismiss him and that his employer was fully entitled to expect its safety rules to be complied with.
84 I am satisfied that contrary to what the Full Bench reasoned, the FWC's conclusion was not to the effect that such a breach (assuming it had occurred as was the premise of his alternative reasoning) was dismissed as inconsequential. Rather the Commissioner reasoned that in the actual context in which Mr Knowles' complained of conduct had taken place, the breach shown to have been established (assuming the FWC's construction of CSP031 was in error) was of such minor consequence as, notwithstanding the prima facie position, it did not justify the termination of a long serving employee whose record, see at [130], was not that of a poor or negligent performer.
85 In so holding the FWC inter-alia reasoned:
[133] Even if the Applicant has breached CSP031, the breach is of such minor magnitude that termination is a harsh outcome. The Applicant's apparent breach would be that he hoisted the tongs rather than long travelling away from the Threader Coil and Coil 1. In relation to Coil 1, the CSP is silent of what process to follow if the tongs get caught. Mr Meta's evidence is that an employee is expected to use their skills and experience if the CSP is silent. That is what the Applicant did. In relation to the Threader Coil, the Applicant hoisted without long travelling. As a result of this action, the coil did not tip. The padding on the back of the tong rubbed along Coil 2, but this would have also occurred whether the Applicant had adopted to long travel…
86 Mr Taylor's submission that the Full Court was entitled to "put down its pen" at the threshold stage of analysis on the basis that the (conceded) error the Commissioner made must be rejected. In respect of the alternative reasoning of the FWC that error was not made - the Commissioner having proceeded on the contrary in reaching his conclusion and his having stated the law correctly as to the import of such a finding.
87 I reject that the reasoning in Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537 (Toms) compels a different outcome. There the Full Bench identified error in the findings of the FWC by it not taking into account the "deliberate disobedience" of a senior employee to his employer's drug use policy. That no harm had actually been occasioned by reason of the breach had led the FWC to conclude the employee's dismissal had been harsh and unfair. In Toms the reasoning of the Full Bench was upheld. However those facts are not analogous to those found by the FWC as applying in the present proceeding. In this case the FWC had found that Mr Knowles's subjective understanding (albeit in error) had been that in exercising his judgment not to long travel he nonetheless was acting in conformity with CSP031. The Full Bench did not identify significant error in that finding. Toms cannot be read as standing for the generic proposition that necessarily it will involve a significant error of fact if the FWC reasons in the case of a dismissal for a breach of a safety protocol, however trivial and notwithstanding the circumstances of the breach, such dismissal may, in the actual circumstances applying, be harsh and unfair.
88 I am satisfied that BlueScope Steel's primary submission must be rejected.
89 I therefore turn to the findings of the Full Bench which expressly assert significant error in the findings of the FWC with respect to its alternative decision.
90 Because this is a minority opinion I will be brief in setting out my reasons for my coming to a different conclusion to that reached by the majority.
91 I accept in the ordinary instance there is nothing in the FWA to suggest that the powers of a Full Bench to review a decision of the FWC at first instance "are exercisable only if there is error on the part of the primary decision maker": Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ at [17].
92 However self-evidently that is to the contrary with respect to those aspects of its statutory jurisdiction for which s 400 of the FWA expressly provides. As Flick J notes at [45], in BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 378 ALR 120 it was held by Besanko, Perram and Jagot JJ that Parliament had enacted s 400(2) so as to impose "a basal precondition" on the exercise of that power in respect of matters arising under Part 3-2 of the FWA.
93 The basal precondition the statute provides for is that if an error of fact is asserted it must be one amounting to a "significant error of fact". BlueScope Steel does not put in issue that the Full Bench is not to grant an appeal in the absence of an error meeting that description not only being asserted but also that the ground has been made good.
94 In FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALRJ 752 (FTZK) the High Court gave consideration to the duty of a decision maker required to decide whether there were "serious reasons for considering" a person had "committed a serous non-political crime" outside Australia prior to his admission as a refugee. That test, while based on the Refugee Convention, had been statutory enacted into Australian law.
95 The reasoning in FTZK is consistent with the proposition when the Parliament uses an adjective such as "serious" to qualify a concept such as "reasons for considering" such adjectival language is to be given some substantive work to do. As French CJ and Gageler J explained;
13. …The requirement that there be "reasons for considering" that an applicant for refuge has committed such a crime indicates that there must be material before the receiving State which provides a rational foundation for that inference. The question for the decision-maker, and in this case the AAT, was whether the material before it met that requirement. To answer that question in the affirmative the AAT had to demonstrate a logical pathway from the material to the requisite inference.
14. The qualifying term "serious" indicates that the reasons must be sufficient to support a strong inference….
96 Hayne J observed:
32. The central question for the decision maker (here the Tribunal) was whether Art 1F(b) of the Refugees Convention applied. Were there, at the time of the decision, "serious reasons for considering that [the appellant] has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee"? The expression of the question is important. Effect is to be given to all of its elements, recognising that what is required is an evaluation of matters advanced in support of a proposition: that the person has committed a crime of the identified kind. And the decision maker must actually be persuaded that those matters are serious reasons for considering that the person concerned has committed the crime: that is, that the matters are or give serious reasons for considering that the relevant proposition is true.
97 See also Crennan and Bell JJ at [82]-[83] and [91].
98 Applying the High Court's reasoning in FTZK by way of analogy to the text of s 400(2) it can be reasoned that it was only open to the Full Bench to grant the appeal then before it if there was a logical pathway supported by a rational foundation available as entitled it to find not only that the FWC had made an error of fact but also that that error was relevantly "significant".
99 With respect to the contrary view Flick J expresses at [29] I reject that the reasoning of Bromberg J in Australian Postal Corporation v D'Rozario [2014] FCAFC 89 at [127] in respect of s 400(1) (as referable to whether the public interest is engaged) has any relevance to the construction this court should give to s 400(2). Subsection (1) as Bromberg J observed, invites attention to a criterion containing no factual reference and which requires a "broad value judgment". That may be accepted. However the language of s 400(2) by contrast is entirely different. It provides, in respect of a specified and limited class of decisions an additional and further criterion in respect of which nothing in the nature of a value judgement is required. I reject that it follows that in the application of s 400(2) an erroneous finding on the part of the Full Bench in disregard of that criterion, "may well be an error within jurisdiction."
100 That stated I acknowledge that the majority is correct to reject Mr Tran's submission that the identification of a "significant error of fact" should be concluded to be a jurisdictional fact the existence of which must be demonstrated to exist entirely independently of any conclusion reached by the Full Bench. The statutory language requires a judgment in respect of matter of degree to be made. I am satisfied that, as a matter of statutory construction, the Full Bench was empowered to form the requisite opinion. However that is not the end of it. A statutory provision which provides for a decision maker to be satisfied that "a basal precondition" on the exercise of a power exists requires that the relevant opinion both be actually held and that it was reasonably available to be reached. It would reduce the statutory constraint provided for by s 400(2) of the FWA to a cipher if the mere assertion of error could satisfy that requirement. The self-evident purpose served by s 400(2) is to confine any intervention of the Full Bench to the circumstances it provides for. It operates so as to ensure that in respect of a specified class of industrial matters (which include matters extending to the reinstatement or otherwise of an applicant) that a first instance decision of the FWC will be final. However strongly a Full Bench might disagree with an ultimate outcome reached by the FWC an appeal is permitted only insofar as s 400(2) allows.
101 I proceed on the basis that the required state of satisfaction the Full Bench was required to reach involved it making a finding with respect to a subjective jurisdictional fact. In identifying the grounds on which the Full Bench's decision can be reviewed, the applicable principles are those identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Avon Downs). In those regards his Honour stated:
…If the result appears to be unreasonable on the supposition that he [the relevant decision maker] addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
102 That illogicality or irrationality in the formation of a required state of satisfaction may vitiate a purported exercise of power has never since been doubted. The principle was recently re-articulated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at 623- 625 [34]-[42] per Gummow ACJ and Kiefel J; 648-649 [133] per Crennan and Bell JJ).
103 It can be accepted that the Full Bench expressly asserted the FWC made significant errors of fact. However any such assertions must be of no legal consequence if it can be shown the Full Bench failed "in the discharge of [its] exact function according to law".
104 The first of the significant errors the Full Bench asserts the FWC made in reaching its alternative decision was that identified at [47]. It is that the FWC "had overlooked the requirement for strict compliance with CSP031".
105 In so far as that contention is open to be understood as conveying the meaning that BlueScope Steel always routinely dismissed any employee who breached any safety protocol there was uncontested evidence before the Full Bench that not every breach of a CSP was automatically attended by the employee's dismissal. As Mr Tran submitted, and Mr Taylor accepted in oral argument, the evidence was that BlueScope Steel had a practice of issuing final warnings for breaches of its critical safety protocols. It was thus uncontentious in this proceeding that the evidence before the Full Court was that BlueScope Steel had not inevitably and automatically terminated an employee for a breach of CSP031. Indeed the uncontested evidence was that BlueScope Steel did not inevitably dismiss an employee even for a second breach of its safety protocols in a twelve month period provided the subsequent breach was in respect of an entirely different circumstance. Thus for the Full Bench to have reasoned that the FWC had made a significant error by overlooking a requirement that in fact did not exist would necessarily be vitiated by the self-evident illogicality or irrationality of that proposition.
106 No doubt for that reason, in oral argument Mr Taylor did not seek to defend such an understanding of the Full Bench's reasoning. Rather Mr Taylor submitted that read in context what the Full Bench was referring to at [47] when it had stated that the FWC had overlooked the requirement for strict compliance was that the Commissioner had failed "to place appropriate weight on the fact that the company mandated this critical safety procedure to be complied with at all times rather than at the discretion of the worker." However, that is equally an insupportable proposition.
107 The premises that the FWC had applied in coming to its alternative decision were those at [88] as set out above. Those involved acceptance on the FWC's part that not only was any breach of CSP031 sufficiently serious as to give rise to a prima facie right in Mr Knowles' employer to dismiss him but also that BlueScope Steel had the right "to insist that its employees will follows (sic) its CSPs". There is no suggestion in that analysis that the FWC had erred by overlooking that compliance was required and not to be left to Mr Knowles' discretion. That the FWC may not have attached lesser weight to any particular factor than would have the Full Bench did not involve an error of fact.
108 Accordingly whichever way the Full Bench's reasoning regarding "strict compliance" is open to be understood, its finding that the Commissioner had made a significant error in overlooking the requirement for strict compliance with CSP031 was one not that was not lawfully available to it.
109 Lest it be thought I have ignored the actually applying factual matrix I note that the FWC's contextual findings as fed into its conclusion that Mr Knowles' dismissal for a breach of CSP031 was, in the actual circumstances applying, harsh and unfair were not themselves challenged before the Full Bench or in these proceedings to themselves involve significant errors of fact.
110 Those findings included that (a) that Mr Knowles had always operated his crane within his understanding of the obligations of CSP031 (at [123]); (b) that the manner of his operating had was not an aberration and had been video monitored and was subject to his supervisor's scrutiny; (c) that in the actual circumstance there had been absolutely no movement of the coil as a result of the way Mr Knowles had proceeded when he had failed to first long travel (at [105]); and, (d) that in the actual circumstances applying in respect of the risk to safety to another employee the likelihood of anybody being injured even had Coil 1 tipped was "basically zero" (at [98]). In that specific latter regard the FWC noted that Mr Cadwallan, who gave evidence on behalf of BlueScope Steel, accepted that Mr Knowles would have stopped the process if anyone had been in the vicinity of the coil; see [109].
111 I reject in the above circumstances that the Full Bench was entitled to have proceeded on the basis that the FWC had made a significant error of fact by overlooking the requirement of "strict compliance". There was no logical foundation entitling it to be satisfied as the "basal precondition" required for the exercise of that power in respect of matters arising under Part 3-2 of the FWA. For the reasons above the Full Bench failed to lawfully make a required threshold subjective finding of jurisdictional fact. It thus fell into jurisdictional error.
112 I now turn to the second significant factual error that the Full Bench stated that the FWC had made in coming to its alternative decision: viz that it had erred in finding BlueScope Steel had condoned Mr Knowles' work practices. That conclusion may be found at [45] but that paragraph simply refers back to the more detailed reasoning the Full Bench earlier had set out at [35]-[36] as follows:
[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.
113 The error thus identified was that a finding by the FWC that Mr Knowles' conduct had been condoned by BlueScope was "not available on the evidence".
114 Let it be assumed that the Full Bench was correct to have concluded that Mr Knowles' interpretation of CSP031 (that it was permissible to hoist without necessarily first long travelling if clear of the coil) was not made evident in his short response to the question asked of him during his re-accreditation which had been marked as correct.
115 But equally neither was Mr Knowles' answer inconsistent with that premise. It is significant that Mr Taylor made no submission to that effect.
116 As Flick J identifies at [51]-[52] rather the focus of argument therefore was the Applicant's submission that the Full Bench had failed to address other evidence that Mr Knowles' conduct had been condoned.
117 In that regard the FWC had recorded a finding [at 123] that Mr Knowles routinely conducted had himself in the manner for which he had been dismissed notwithstanding his:
…being aware that his movements were regularly watched by his Team Leader, Mr Cadwallen and that there were a number of video cameras that are permanently recording the movement of coils in the area [he was working].
118 The facts underlying that reasoning do not appear to have been contentious. The Full Bench proceeded on the basis that the FWC had found that Mr Knowles had in fact regularly hoisted without first long travelling when he had understood himself to be clear of the coil he was tasked with moving; see at [51] and 61.
119 I reject that on any fair reading the reasons of the Full Bench are open to be understood as incorporating by way of its footnote 59 to [44] a reference to that evidence. Footnote 59 refers only to the FWC reasons at [134] which were (as was the Full Bench's entire consideration) confined to a discussion of whether the failure of BlueScope Steel to have corrected (or perhaps more accurately failed to identify the ambiguity in) Mr Knowles' brief answer given during re-accreditation established that BlueScope Steel had condoned his regular work practice. I am satisfied that the Full Bench accordingly fell into clear error by overlooking the second basis that the FWC had identified as its foundation for having concluded that BlueScope Steel had, as a matter of practical reality, condoned Mr Knowles' manner of usual operation.
120 For the above reasons the Full Bench's conclusion that the FWC's finding that Mr Knowles' conduct had been condoned by BlueScope was "not available on the evidence" and thus constituted a serious error of fact within the meaning of s 400(2) was itself unavailable. It ignored the evidence the FWC had referred to with respect to Mr Knowles' conduct in the workplace as had been routinely manifested it notwithstanding his having been subject to direct and video supervision The principle that an administrative decision maker must his or her exercise powers consistently with reason is uncontentious: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. By the Full Bench not taking into account a plainly relevant consideration it reached an outcome by such deficient reasoning as was incapable of supporting the existence of the requisite subjective jurisdictional fact.
121 So too I conclude is the case with respect to the Full Bench's finding of significant error (assuming that such a finding was made) in the FWC reasoning that Mr Knowles' breach of CSP031 was "totally different" to his earlier conduct in relation to CSP027 for which he had received a final warning.
122 In that regard the Full Bench did not specifically refer to s 400(2) but let it be assumed it to be implicit that the Full Bench regarded the factual error it concluded the FWC had made (see at [51]) was of the requisite degree of significance. What then is the correct lens of analysis? I commence with the observation that it is not in dispute that BlueScope Steel had earlier advised (by letter dated 21 September 2018) Mr Knowles in respect of his earlier alleged breach that its investigation of the incident had identified the following key points:
…You were suspended from Despactch (sic) operating duties pending the outcome of the investigation.
The investigation of the incident identified the following key points:
• You failed to remain clear of wagons in breach of CSP027 - Butter Box Loading in Bay 13
• You accessed the butterboxes in an unsafe manner
• You placed yourself in close proximity to a suspended load ie coil suspended from crane 13
• You exposed yourself to a fall, slip and trip hazard in walking along the butterboxes
• You performed a non standard task, not covered by any procedure without stopping and calling you supervisor to develop a JSEA.
• You descended from the rail wagon in an unsafe manner.
• You were injured and did report the injury when it occurred.
• You withheld information relevant to the incident when reporting the incident.
123 It is immediately self-evident that there are marked dis-similarities as between the circumstances that gave rise to the two events. In the first Mr Knowles was alleged to have put himself at risk of harm by entering a "butter box" (contrary to CSP027) when others were operating equipment whereas in the second instance he was alleged himself to have operated the crane he was responsible for loading coils in a way contrary to that which BlueScope Steel had prohibited by CSP031 by reason of the risk (albeit on the FWC findings a risk having zero probability of being manifested in the circumstances applying) that by not long travelling before hoisting a coils could put others in danger. The FWC identified the material differences as relevant to whether in the actual context Mr Knowles's dismissal had been harsh and unfair at [131] as follows:
[131] Whilst it is always dangerous to compare penalties that have been imposed to different employees, I am satisfied that the Applicant has been treated harshly when compared to his peers. It is well established and understood that many employees at the Respondent have more than 1 final warning currently on their file. The AWU and Mr Newbold identified a number of recent examples of employees with this predicament. The current practice of the Respondent appears to be that if the first final warning was given to an employee for an incident that was unrelated to the second incident, then the employee is given a second final warning. This Incident involves the Applicant operating a crane. It is totally different to what the Applicant did in relation to working in a Butter Box in the vicinity of a suspended coil. For the Respondent to be consistent, it should have issued the Applicant with a second final warning.
124 Having regard to those intractable differences it is unsurprising the Full Bench confined its observations as to their asserted similarity to the circumstance that each had involved a breach of a critical safety procedure. There was no reference by the Full Bench to the entirely different nature of Mr Knowles' underlying conduct.
125 Given that the FWC had had before it uncontested evidence that BlueScope Steel's policy was not to automatically dismiss an employee already on a "final warning" provided any second breach was of a different character to the first, the finding of the Full Bench that the FWC had failed to take into account a material consideration - that of "similarity"- on a basis which denied the possibility of difference necessarily was legally unreasonable.
126 The principle that an administrative decision maker must his or her exercise powers consistently with reason was reinforced in in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 in which Allsop CJ, Robertson and Mortimer JJ observed (at 172 [65]) that:
…the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
127 Having regard to those propositions the assertion by the Full Bench that the FWC, in the assessment of overall harshness had failed to take into account a material consideration notwithstanding the two events had involved totally different circumstances, having regard to the relevant statutory power being exercised by the FWC, lacked evident or intelligible justification.
128 Finally lest it be thought that I have overlooked a further factor relied on by BlueScope Steel I would reject that the Full Bench's decision can be supported by its identification of error - albeit again not specified as engaging s 400(2) - in the FWC supposed finding that he had been discriminated against because of his earlier having given evidence in an unfair dismissal proceeding as a union delegate.
129 It may be doubted that the FWC made any such finding. The question was dealt with by the Full Bench as follows:
[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.
130 However assuming, contrary to the view I take, that the FWC can be concluded on a fair reading of its reasons to have accepted Mr Knowles' evidence and submissions that he had been the subject of differential treatment on the basis that he was a union activist, that finding was open for it to have been made as a matter of inference. That inference was open to be drawn having regard to Mr Knowles' evidence and the FWC's satisfaction as recorded at [131] that he had been treated harshly when compared to his peers. The latter proposition was not put in dispute by the Respondent. To the extent the Full Bench concluded that Mr Knowles' differential and harsher treatment was, as a finding, an "irrelevant matter" that the FWC had impermissibly taken into account as a factor in forming a view as to whether Mr Knowles dismissal was harsh and unfair that conclusion was based on an unsound premise. It would be legally unreasonable for such a conclusion to have been the basis of the Full Bench's holding that the decision of the FWC involved a significant error of fact.
131 There being no objection save as to the merits of the contention, leave to rely on the Applicant's additional ground of review as puts jurisdictional error in issue should be granted.
132 But for mine being a minority opinion the Applicant's application for review should be granted, certiorari should issue quashing the Full Bench's decision and the matter should be remitted to it for determination according to law.
133 Presumably because of the operation of s 570 of the FWA neither party gave an indication of an intention to seek costs assuming the outcome was their favour. In any event I can discern no proper basis for such an order to be made. Accordingly, no order as to costs should be made.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.