Federal Court of Australia

Knowles v BlueScope Steel Limited [2021] FCAFC 32

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    I have had the advantage of reading in draft the reasons for judgment to be delivered by Flick J.

2    I respectfully agree with his Honour’s reasons and with the orders he proposes.

3    In deference to the helpful submissions of counsel for each of the active parties and because, at a personal level, the outcome for the applicant, Mr Knowles is a hard one, I wish to add the following.

4    The right of appeal to the Full Bench exercised by Bluescope Steel, once it secured the permission of the Full Bench, was that conferred by s 604 of the Fair Work Act 2009 (Cth) (Fair Work Act), as affected, given the nature of the present case, by s 400 of that Act. Subject to the constraint in relation to an appeal on a question of fact introduced by s 400(2), the nature of that appeal was not materially different to the then appeal to a Full Bench of the then Australian Industrial Relations Commission, considered by the High Court in Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194. Flowing from that case, the powers of the Full Bench granted by s 607(2) of the Fair Work Act were not exercisable in the absence of error on the part of the primary decision-maker in the Commission. Further, and flowing from s 400(2), any appeal ground which challenged a finding of fact could be upheld only if that error was a significant error of fact.

5    As Flick J demonstrates, the Full Bench did not misapprehend the nature of the appellate jurisdiction consigned to it and, as to errors of fact, the constraint in respect of any challenge to a finding of fact. Having, permissibly, found error, the Full Bench, as it was entitled to do, made its own value judgement as to whether, in terms of s 387 of the Fair Work Act, it was satisfied that Mr Knowles’ dismissal was harsh, unjust or unreasonable.

6    There was nothing idiosyncratic about the value judgement made by the Full Bench. In McLean v Tedman (1984) 155 CLR 306 at 313 Mason, Wilson, Brennan and Dawson JJ stated:

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

7    In Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221, at [19], having referred to this statement by the High Court, I observed:

A corollary of the duties at common law and by virtue of statute in respect of provision, maintenance and enforcement of safety in the workplace is that an employer is entitled to give reasonable directions to employees directed to its fulfilment of that duty. In particular circumstances, a failure by an employee to comply with such a direction can, at common law, provide a basis for the summary dismissal of that employee.

8    Bluescope Steel gave just such a workplace safety direction to its workforce, including Mr Knowles, in its Critical Safety Procedure CSP031.

9    One of the factors to which s 387 of the Fair Work Act directs attention to was the existence of a valid reason, which may be, and in this case was, grounded in the transgression of such a workplace safety procedure. The existence of that valid reason was relevant but not determinative as to whether the Full Bench should be satisfied that Mr Knowles’ termination was harsh, unjust or unreasonable. Mr Knowles’ age and great length of service, indeed employer commended service, were also relevant but again not determinative. Mr Knowles earlier safety standard breach and related warning were also relevant. Whether or not it was satisfied that Mr Knowles’ termination was harsh, unjust or unreasonable entailed a multifactorial assessment by the Full Bench as a specialist industrial arbitral body.

10    There is no challenge to that fresh value judgement, only to whether occasion had arisen to make it. This Court must, on judicial review, exercise a principled restraint in relation to that value judgement, for the reason given by Buchanan J (with whom Allsop CJ and Siopis JJ agreed) in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537, at [42]:

It should be accepted that Parliament intends that examination of the merits of unfair dismissal cases should be the particular province of the FWC, and proceed upon a practical and pragmatic foundation. That examination necessarily extends to the possibility of review of reasons and outcomes on appeal. Those are matters not readily susceptible to narrow challenges on the grounds of “jurisdictional error”.

The following concluding observations in that case, made by Buchanan J, at [114], are also apposite in the present case:

Once the Full Bench found error in the finding that the termination was harsh, unjust or unreasonable (as it undoubtedly did) it was open to it to quash the order for reinstatement. Once that was done, it was necessary for the Full Bench to take some further step. Unless the application for reinstatement was remitted for further hearing, after the order for reinstatement was quashed it was inevitable that the Full Bench would deal with the question itself. It was open to the Full Bench to decide the original application itself, which is what it did. It is in no way surprising that it did so as an extension of its reasons for quashing the order for reinstatement and by applying the findings it had already made. Its decision to dismiss the application must be taken to have reflected the matters discussed by it in concluding that Deputy President Lawrence had erred in his own decision.

11    On the evidence, Mr Knowles, as he was entitled to do, took an active interest in industrial relations issues in the workplace. This did not pass unnoticed by the Commission or the Full Bench, as it has not by me. Involvement in trade union activity in the workplace is no panacea for transgressions of critical safety procedures. Equally, a termination only purportedly grounded in such a transgression and in substance because of trade union activity would constitute adverse action in violation a general protection conferred by Div 3 of Pt 3-1 of the Fair Work Act: s 340, s 341(1)(a) and s 342(1), Item 1(a). There was no evidence that Mr Knowles’ termination was grounded in anything other than the transgression of the critical safety procedure.

12    The result is a hard one for a long-serving employee in his mid-sixties. But such results are not unknown in relation to safety breaches: see, for example, Barry Ronald Kennelly v Incitec Ltd [1998] FCA 1470.

Associate:    

Dated:    12 March 2021

REASONS FOR JUDGMENT

FLICK J:

13    The Applicant in the present proceeding is Mr Trevor Knowles; the First Respondent is BlueScope Steel Limited (“BlueScope Steel”). Mr Knowles commenced employment with BlueScope Steel in about March 1988.

14    Mr Knowles most recently was employed to drive overhead cranes to move steel coils within a warehouse. In September 2019 he was operating a crane to load coils onto an entry saddle. He hoisted the tongs of the crane without first travelling sideways away from the coil, that sideways movement being a practice known as “long travelling”. To operate the crane in that manner was contrary to the Critical Safety Procedure CSP031 – Moving Coils/Loading Trucks with Tongs or C-Hook & Unloading AGV Stands (the “Critical Safety Procedure”). Mr Knowles had operated the crane in the same manner previously.

15    In September 2018 he had also been given a “Final Warning for Unacceptable Behaviour” for an earlier incident in breach of another Critical Safety Procedure. Following an investigation into the events that occurred in September 2019, the services of Mr Knowles were terminated in October 2019.

16    He made an application to the Fair Work Commission (the “Commission”) pursuant to s 394 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”) claiming that his dismissal was unfair. The Commission agreed and ordered (inter alia) that he be reinstated: Knowles v Bluescope Steel Limited [2020] FWC 1015. BlueScope Steel sought permission to appeal pursuant to ss 400 and 604 of the Fair Work Act. Permission was granted and the Full Bench of the Commission upheld the appeal and (inter alia) ordered that Mr Knowles’ application for unfair dismissal be dismissed: BlueScope Steel Limited v Knowles [2020] FWCFB 3439.

17    Mr Knowles has now applied to this Court seeking relief under s 39B of the Judiciary Act 1903 (Cth). He seeks an order quashing the decision of the Full Bench. In very summary form, he contends that the Commission committed no “error of fact” – let alone any “significant error of fact” – and that it was not open to the Full Bench to disturb the findings made by the Commission. In the alternative, he contends that a number of the Full Bench’s findings of fact were not open to it by reason of irrationality, illogicality or unreasonableness. Conversely, BlueScope Steel contends that once Mr Knowles conceded that he had breached the Critical Safety Procedure there was a valid reason for his dismissal, and that it was thereafter open to the Full Bench to conduct a re-hearing of the matter and to make the findings that it did. Alternatively, BlueScope Steel contends that there was no error of fact committed by the Full Bench and that, even if there be such error, any error would be an error within the jurisdiction vested in the Full Bench.

18    It is concluded that relief should be refused and that the proceeding should be dismissed. It is concluded that the Full Bench committed no error such as to attract an order quashing its decision.

The Fair Work Act

19    The provisions of the Fair Work Act of central relevance to the present proceeding are to be found in Pt 3-2, namely that Part which deals with “Unfair dismissal”.

20    Within that Part, s 381 sets forth as follows the object of that Part:

Object of this Part

(1)    The object of this Part is:

 (a)    to establish a framework for dealing with unfair dismissal that balances:

(i)    the needs of business (including small business); and

(ii)    the needs of employees; and

  (b)    to establish procedures for dealing with unfair dismissal that:

(i)    are quick, flexible and informal; and

(ii)    address the needs of employers and employees; and

(c)    to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)    The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

…

Sections 385 and 386 define (respectively) what constitutes “unfair dismissal” and the meaning of the term “dismissed”. Section 387 sets forth the criteria for considering whether a dismissal was “harsh, unjust or unreasonable”.

21    Division 4 of Pt 3-2 sets forth the “Remedies for unfair dismissal”, including the making of an order by the Commission that an employee be reinstated. Section 399 provides for a hearing before the Commission and – importantly for present purposes – it is s 400 which sets forth “appeal rights”.

22    When entertaining an appeal, however, it is s 400(2) which imposes a constraint upon the power of the Full Bench in respect to its review of findings of fact made by the Commission and constrains that power to “a significant error of fact”. It is that sub-section which assumed central importance in the present proceeding before this Court. That section in its entirety provides as follows:

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.

23    Section 400(1) and the prohibition against granting permission unless “it is in the public interest to do so” has been the subject of considerable judicial observation: e.g., Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, (2011) 192 FCR 78. The opinion or state of satisfaction as to a matter being “in the public interest” is “a jurisdictional fact or criterion to be satisfied before an appeal is heard and orders made on the appeal”: Australian Postal Corporation v D’Rozario [2014] FCAFC 89 at [14], (2014) 222 FCR 303 at 309 (“D’Rozario”) per Besanko J. His Honour had earlier concluded that:

[7]    … the grant of permission to appeal is a precondition to the exercise of the appellate power of the FWC. …

In respect to one of the respondents in D’Rozario, the Full Bench had granted permission to appeal without considering whether it was in the public interest to do so. That was held to be a jurisdictional error: [2014] FCAFC 89 at [26] per Besanko J; at [81] to [83] per Jessup J; at [127] per Bromberg J, (2014) 222 FCR at 312, at 327 to 328, and at 335. Bromberg J there also helpfully made the following further observations in respect to the fact that s 400(1) itself set forth “no factual reference”:

[102]    There is no factual reference included in s 400(1) of the FW Act. What is required by s 400(1), as the applicant acknowledged, is the formation of a broad value judgment or opinion as to whether the public interest favours the grant of permission to appeal.

[103]    In Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 (19 April 2011) Buchanan J (with whom Marshall J and Cowdroy J agreed) described (at [44]–[45]), the public interest test in s 400(1) of the FW Act as follows:

The nature of the task committed to the Full Bench at this stage of the appeal process (i.e. assessing whether a “public interest” test was met) was a discretionary one involving a broad value judgment, as has recently again been emphasised. …

[104]    Whilst the descriptor “jurisdictional fact” may be used in relation to a statutory criterion like that contained in s 400(1), the doctrine of jurisdictional fact can have no application to s 400(1) because the criterion there set out lacks any factual reference.

As to the argument that making a finding for which there is “no evidence” can expose jurisdictional error, his Honour continued:

[110]    It seems to me that an absence of evidence, even in relation to a critical finding, will only found jurisdictional error where the decision-maker’s reliance upon that finding has affected the exercise of the power conferred so as to result in the decision-maker “exceeding the authority or powers given by the relevant statute”: Yusuf [(2001) 206 CLR 323] at [82].

[111]    The reliance by a decision-maker upon a finding unsupported by evidence may be shown to have affected the exercise of the power conferred because it is demonstrative of a misconception by the decision-maker of the function required by the statute.

His Honour then referred to “an uncontested assertion” made by Counsel for the Respondents and continued:

[122]    The respondents’ uncontested assertion may well have been erroneous and that may well have led the majority into making an erroneous finding. However such an error, if made, was an error made within jurisdiction. Whether or not the “emerging trend” existed was not a jurisdictional fact for the reasons already stated. It is not for this court, on judicial review, to test the factual foundation that was open for the majority to rely upon and which, it seems, it did rely upon to reach its view that permission should be granted.

24    Consistent with the approach of Bromberg J in D’Rozario, in Lambley v DP World Sydney Limited [2013] FCA 4 (“Lambley v DP World”), Katzmann J concluded in respect to s 400(1):

[42]    Here, too, the Full Bench expressly recognised the limits of its functions and powers. It correctly understood that its functions were to decide whether it was in the public interest to grant permission to appeal and whether the Deputy President had made an error of the kind described in House v The King. It considered a ground of appeal which, if successful, would determine the outcome of the appeal. It concluded that the particular ground should succeed because the Deputy President had made a relevant error. In coming to that conclusion, it was not doing something it lacked the power to do. It was deciding matters within its jurisdiction, albeit incorrectly.

…

Her Honour subsequently concluded in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165, (2014) 226 FCR 302 at 308 to 309:

No jurisdictional error or error of law on the face of the record

[31]    The Full Bench was precluded from entertaining the appeal unless it granted permission to appeal and to do that it had to be satisfied that it was in the public interest to do so. Its satisfaction about the issue was therefore a statutory precondition to the grant of permission. But as the Full Court of the ACT Supreme Court recently observed, it is not always a simple matter to decide whether a statutory precondition is a jurisdictional fact: Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1 at [255] …

…

[33]    As Buchanan J said in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] the decision as to whether it is in the public interest to grant permission to appeal plainly involves assessment and value judgments on the part of the Full Bench. …

[34]    That is the position here. The existence of the public interest in granting permission to appeal is not a jurisdictional fact to be determined to the satisfaction of this Court. So much was found by the Full Court in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [8] (Besanko J); [47] (Jessup J) and at [95]–[104] (Bromberg J). As Perram J noted in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [147], citing Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, where the task reposed in a decision-maker:

… is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision-maker would have power to make its own determination of that matter.

[35]    His Honour also noted at [147] that:

[T]he specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand.

[36]    Applying those principles in this case, it is highly unlikely that Parliament would have intended that a court engaged in judicial review should decide whether it is, in fact, in the public interest to grant permission for leave to appeal to the Commission. Neither is there any other basis upon which the Court can interfere. …

Dowsett and Tracey JJ agreed with Katzmann J. See also: Pal v Commonwealth of Australia [2020] FCA 1483 at [59] per Anderson J.

25    But s 400(2) has received comparatively less judicial consideration.

26    Section 400(2) received some attention in BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89, (2020) 276 FCR 9 (“BP v Tracey”). In that case, the Full Bench of the Commission had departed from a finding made by a Deputy President that there was a valid reason for Mr Tracey’s dismissal: Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820 at [30]. Besanko, Perram and Jagot JJ there summarised the argument then advanced in respect to s 400(2) and resolved that argument as follows ((2020) 276 FCR at 17):

Ground 2

[21]    BP’s argument is that in deciding whether there was a valid reason for Mr Tracey’s dismissal the Full Bench ignored s 400(2) of the FW Act. As noted, it was common ground that the question whether the video involved contravention of BP’s Code of Conduct and other policies such as to justify Mr Tracey’s dismissal involved issues of fact. Accordingly, s 400(2) was engaged. According to BP the Full Bench simply ignored s 400(2) as it did not mention the provision in its reasons and did not make any finding to the effect that the Deputy President’s decision involved a significant error of fact, as required by s 400(2).

[22]    The Full Bench’s reasons at [30] are set out above. As the submissions for Mr Tracey put it, the finding in [30] that the “Deputy President’s erroneous determination that there was a valid reason for Mr Tracey’s dismissal was fundamental to her decision that his dismissal was not unfair” is, in substance, a finding of a significant error of fact. To this may be added the fact that s 400(2) is a basal pre-condition to an exercise of power by the Full Bench to correct an error of fact. It would not lightly be inferred that the Full Bench had simply overlooked this basal pre-condition to the exercise of its power. When this context is recognised it is readily apparent that the Full Bench was expressing its satisfaction in [30] of its reasons that the Deputy President’s factual error was significant to the decision she made.

[23]    For these reasons ground two of the application must also be rejected.

In an earlier decision, Besanko J in Australian Postal Corporation v Gorman [2011] FCA 975, (2011) 196 FCR 126 at 135 (“Gorman”) stated as follows:

[44]    I am not to be taken as suggesting any view as to the merits. That is not my function. It is my function to determine whether the Full Bench made a jurisdictional error. In my opinion it did because it did not apply, as it was obliged to do, the requirements in s 400(1) and (2) of the Act. Both of those requirements are jurisdictional because both delineate the powers and functions of the Full Bench on hearing an application for permission to appeal and an appeal: Craig v South Australia (1995) 184 CLR 163; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [72] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

27    The Full Court in Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178 (“Linfox”) had also considered s 400(2). Dowsett, Flick and Griffiths JJ there rejected an argument that s 400(2) should be construed through the prism of “jurisdictional fact”. Their Honours concluded (at 189 to 190):

[39]    It may be noted that the Originating Application includes a reference to the concept of “jurisdictional fact”. Linfox submitted that the Full Bench’s “satisfaction” that there was an error by the Commissioner is a “precondition to the exercise of the Full Bench’s powers under s 607 of the Act” and constituted a jurisdictional fact. Accordingly, so the argument went, it was for the court to determine whether the Full Bench of Fair Work Australia had fallen into jurisdictional error. It was put by Linfox that the court had to determine whether the Full Bench’s opinion that there was no error by the Commissioner was an opinion which had been properly formed.

[40]    The court has great difficulty in seeing the relevance of the concept of “jurisdictional fact” in this context. Its use by Linfox should not be permitted to obscure the fact that the correct legal position is that:

(a)    the appellate jurisdiction of the Full Bench of Fair Work Australia required the identification of some error of law or fact on the part of the Commissioner before the Full Bench could intervene (noting that the effect of s 400(2) is that an appeal on a question of fact must involve a significant error of fact); and

(b)    the court’s jurisdiction to review the Full Bench of Fair Work Australia’s decision requires the identification of a jurisdictional error (or an error of law on the face of the record, which was not raised in the proceeding).

[41]    There is considered to be an element of confused thought … in Linfox’s invocation of the concept of “jurisdictional fact” in this context. …

[42]    ... The task of this court is to review the decision of the Full Bench for jurisdictional error. The court’s task is not to review the Commissioner’s decision with a view to determining for itself whether a jurisdictional fact exists. Nor was that the task of the Full Bench. As the High Court emphasised in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [31] and [32], the Full Bench would fall into jurisdictional error if, for example, it misconceived its role, misunderstood the nature of its jurisdiction, or failed to apply itself to the relevant question; but the limited nature of that review jurisdiction is important as is reflected in the passages from the joint judgment of Gleeson CJ, Gaudron and Hayne JJ in that decision which are set out in [12].

28    Section 400(2) thus imposes a “basal pre-condition” to an exercise of power by the Full Bench: BP v Tracey at [22]. Section 400(2) “delineate[s] the powers” of the Full Bench: Gorman at [44]. A failure on the part of the Full Bench to even give consideration to whether there was a “significant error of fact” would constitute jurisdictional error: cf. D’Rozario.

29    The task of the Full Bench when entertaining an application for permission to appeal pursuant to s 400(1) and, if permission is granted, its task in thereafter resolving “an appeal on a question of fact” subject to the constraint imposed by s 400(2), is fundamentally different to the task entrusted to this Court when entertaining judicial review. It is, with respect, “confused thought” to view either s 400(1) or s 400(2) as imposing a “jurisdictional fact” with respect to which this Court can simply substitute its own view for that of the Full Bench: Linfox at [41]. Section 400(2), like s 400(1), sets forth a requirement which calls for a “broad value judgment” (D’Rozario at [102]) with which this Court when undertaking judicial review should be hesitant to disturb. It should only do so if the Full Bench made an error of the kind identified in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [31] to [32], (2000) 203 CLR 194 at 208 to 209 (“Coal & Allied”) and Linfox at [42], namely misconceiving its role, misunderstanding the nature of its jurisdiction or failing to apply itself to the relevant question. If the Full Bench approaches the task in that manner when considering s 400(2), any error would most likely be an error within jurisdiction: Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35 at [97], (2015) 229 FCR 537 at 558 (“Toms v Harbour City Ferries”).

30    Sections 604 and 607 should also be mentioned. Section 604 entitles a person aggrieved by a decision of the Commission to appeal. Section 607 sets forth the “Process for appealing or reviewing decision”:

Process for appealing or reviewing decisions

(1)    An appeal from, or a review of, a decision of the FWC, the General Manager or the Registered Organisations Commissioner may be heard or conducted without holding a hearing only if:

(a)    it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and

(b)    the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.

(2)    The FWC may:

(a)    admit further evidence; and

(b)    take into account any other information or evidence.

(3)    The FWC may do any of the following in relation to the appeal or review:

(a)    confirm, quash or vary the decision;

(b)    make a further decision in relation to the matter that is the subject of the appeal or review;

(c)    refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:

(i)    require the FWC Member to deal with the subject matter of the decision; or

(ii)    require the FWC Member to act in accordance with the directions of the FWC.

If it be established that the Full Bench, for example, failed to discharge its functions by not addressing the question required for determination, its decision may be quashed: e.g., Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50, (2020) 275 FCR 385.

31    Importantly for present purposes, however, is a well-established recognition on the part of this Court that it may review “outcomes on appeal”, but that review of the reasons and outcomes on appeal are “not readily susceptible to narrow challenges on the grounds of ‘jurisdictional error’”: Toms v Harbour City Ferries. Buchanan J, with whom Allsop CJ and Siopis J agreed, there referred to the evolution of the “fair go all round” test, now enshrined in s 381(2) of the Fair Work Act, and continued:

[42]    Those matters are important for an assessment of the errors which the Full Bench of the FWC is said to have made in the present case, and the argument that it lacked power or authority to review or reverse the findings made at first instance which were relevant to the required, overall, evaluation to be made about whether the applicant’s dismissal was unfair, and whether he should be reinstated. It should be accepted that parliament intends that examination of the merits of unfair dismissal cases should be the particular province of the FWC, and proceed upon a practical and pragmatic foundation. That examination necessarily extends to the possibility of review of reasons and outcomes on appeal. Those are matters not readily susceptible to narrow challenges on the grounds of “jurisdictional error”.

32    On the facts of that case, Mr Toms was a ferry master. In July 2013 he had not been rostered on duty but nevertheless agreed to come to work to replace another employee. The evening before, however, he had smoked marijuana because of shoulder pain. He misjudged an approach to a wharf and struck a pylon. No one was injured but the incident was reported. Harbour Ferries had adopted a drug policy of “zero tolerance” and dismissed Mr Toms. He claimed the dismissal was unfair. The Fair Work Commission agreed. The Full Bench, however, disagreed. It did not view favourably what it characterised as a “deliberate disobedience” by Mr Toms of the “zero tolerance” policy. In dismissing an application seeking to set aside the decision of the Full Bench, Buchanan J observed (at 552 to 555):

The appeal decision

[70]    The appeal lay to a Full Bench with the permission of the FWC (s 604(1)). However, s 400(1) provides that in an unfair dismissal case the FWC must not grant permission to appeal unless satisfied that it is in the public interest to do so.

[71]    The Full Bench was so satisfied.

[72]    In my view, a conclusion that it was in the public interest to grant permission to appeal was not a neutral circumstance. Although it did not serve to indicate that the appeal must succeed, it certainly demonstrates that a particular threshold of importance and general significance had been crossed. Although, at one level, the exercise of appellate power is directed to the correction of error, that is only true in a particular sense. The exercise of a power to hear and determine an appeal is more correctly described as one to consider arguments about error. In some cases it may be thought important to confirm a particular outcome, or the reasons for it. In others, it may be necessary or desirable to consider or resolve the emergence of differing approaches to a particular question, whether at first instance or at appellate level. In yet other cases, a need to correct error might satisfy the test.

[73]    Whatever the particular justification in a particular case for a conclusion that it is in the public interest to grant permission to appeal, it may be only a short further step to the identification of a particular error of approach or outcome, and the substitution of a different result.

…

[77]    The Full Bench thought the policy about drug and alcohol use was highly relevant. It thought that the absence of proven impairment of the applicant was not relevant. Those conclusions identified error in the approach taken by the Deputy President and in the decision-making process. It is plain that the Full Bench was not speaking of relevance in a strict legal sense (cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). Rather, the Full Bench was indicating what matters were important enough to be potentially determinative in the overall evaluation to be made.

…

[81]    It is clear that “deliberate disobedience” of the respondent’s policy by a senior employee was viewed by the Full Bench as the central factor to be assessed and not, as Deputy President Lawrence had found, whether the drug use had a demonstrated or likely bearing on the incident. At [24] the Full Bench also listed each of the other matters referred to as taken into account by Deputy President Lawrence. It is apparent from [28] that the Full Bench determined that they did not provide a reason to intervene against the application and enforcement of the respondent’s policy.

[82]    Those conclusions, and the manner of their expression, are consistent only with a finding by the Full Bench that Deputy President Lawrence had made errors in the decision-making process, errors in his findings and conclusions and an error in the exercise of his discretion to reinstate the applicant.

(emphasis in original).

His Honour concluded that none of the errors raised by Mr Toms exposed jurisdictional error on the part of the Full Bench, and went on to conclude, in part, as follows (at 558):

[95]    The Full Bench was therefore obliged to only intervene if satisfied there was error. It seems to me to be clear beyond reasonable argument that the Full Bench held the view that Deputy President Lawrence had fallen into error. As I said earlier, the effect of the Full Bench’s reasoning is that it clearly decided that Deputy President Lawrence made errors in the decision-making process and an error in his finding that the dismissal was harsh, unjust or unreasonable. It followed, inevitably, that Deputy President Lawrence made an error in ordering reinstatement. The precondition for such an order was not established. On the contrary, the termination of employment was found by the Full Bench not to be harsh, unjust or unreasonable.

[96]    Apart from a proper understanding of the principles which apply to appellate review, the fact that evaluative judgments are required (both at first instance and on appeal) at each of the different stages in the hearing and determination of an unfair dismissal case has an important significance for any attempt at judicial review of the final outcome. Unless the Full Bench misunderstood its own role, including the way to approach its task of appellate review, the broad evaluative judgment required also from it is not readily amenable to the prerogative writs.

[97]    This is because if the Full Bench had made an error in its assessment, or errors in reaching its conclusion, they would normally be errors within jurisdiction and not an error or errors as to the nature of the jurisdiction which the Full Bench was required to exercise (Coal & Allied at [32]).

The significant errors relied upon

33    The decision the subject of the application for permission to appeal in the present proceeding was, of course, the decision of the Commission. The Full Bench accordingly extracted as follows the decision the subject of the application (without alteration):

[13]    The Commissioner concluded:

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

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

34    In very summary form, the Full Bench set forth the path by which the proceeding came before it and in doing so outlined ([2020] FWCFB 3439 at [15] to [19]):

    the grounds of appeal – the first two grounds seeking to challenge the conclusion of the Commission that BlueScope Steel did not have a valid reason for the dismissal of Mr Knowles. Mr Knowles did not contest these two grounds. The third and fourth grounds were directed to the alternative conclusion, namely that if there was a valid reason for dismissal, whether the dismissal was harsh and unfair. The fifth ground of appeal challenged the conclusion that the dismissal was harsh. The Commission then outlined appeal grounds six to thirteen.

35    The Full Bench thereafter went on to address ([2020] FWCFB 3439 at [20] to [27]):

    whether it was in the public interest to grant permission to appeal; and

    its reasons for concluding that permission should be granted – including a recognition ([2020] FWCFB 3439 at [26]) that the decision of the Commission was of a “discretionary nature” and the need to identify an error of the kind described in House v The King (1936) 55 CLR 499. In doing so, the Full Bench concluded that the “appeal raises important questions about the construction and application of critical safety procedures in the workplace and an employer’s obligation to maintain a safe place of work”: [2020] FWCB 3439 at [27]. The application, it was concluded, was “a matter of general importance”.

The Full Bench further noted that:

    Mr Knowles did “not seek to defend the Commissioner’s finding that BlueScope did not have a valid reason to terminate his employment”.

Before this Court, no challenge was made by Mr Knowles to these conclusions.

36    The Full Bench thereafter separately addressed the Commissioner’s conclusions as to:

    there being no valid reason for the dismissal of Mr Knowles (at paras [31] to [39]); and

    whether his dismissal was, in the alternative, “harsh and unfair” (at paras [40] to [57]).

The Full Bench (at [57]) concluded that it was “appropriate for this full bench to redetermine the matter”.

37    Even though Mr Knowles before the Full Bench did not “seek to defend the Commissioner’s finding that Bluescope did not have a valid reason to terminate his employment” (at para [30]), the Full Bench nevertheless considered for itself whether the Commissioner’s finding in this regard involved “significant error”. A number of “significant errors” were discerned by the Full Bench.

38    The “first reason” was directed to the Commission’s finding that Mr Knowles’ conduct did not cause a safety incident because there was no person “in the line of fire” at the time he was operating the crane:

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

The second reason addressed the finding by the Commission that Mr Knowles had not breached the Critical Safety Procedure. In part, that reasoning was expressed 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.” 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.

(footnotes omitted)

39    The Full Bench then went on to separately address the alternative finding of the Commission, proceeding upon the basis that there was a valid reason for termination and giving consideration to whether the termination was harsh and unfair. In addressing this alternative case, the reasons of the Full Bench continued on (in part) as follows:

[44]    …In any event, the Commissioner found that BlueScope condoned Mr Knowles’ practice of hoisting by not correcting his annual re-accreditation relating to CSP031 [footnote 59].

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

…

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

…

Footnote 59 was a reference back to para [134] of the Commission’s reasons for decision. Paragraphs [133] and [134], together with para [123], of the Commission’s reasons (in turn) provide as follows:

[123]    I am satisfied that the Applicant operated within his interpretation of CSP031. His commentary in relation to when he hoists or long travels is consistent with his answers on his annual re-accreditation, which was recently approved by Mr Cadwallen, as well as the evidence on the video footage of the Incident. Also, the Applicant was a witness in the recent unfair dismissal case of Mr Habak. He understands the importance of complying with the CSPs. The Applicant was also on a final warning for a breach of CSP027 some 50 weeks earlier. The Applicant was also aware that his movements were regularly watched by his Team Leader, Mr Cadwallen and that there are a number of video cameras that are permanently recording the movement of coils in the area. I do not accept that the Applicant would knowingly and blatantly breach a CSP. It would not be appropriate for the Respondent to condone the Applicant’s work methods both in theory and in practice and then terminate him based on a strict and narrow interpretation of the CSP.

…

[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. The Applicant claims that hoisting is the manner in which he disengages the tongs from the core of a coil on the majority of occasions. It is hard to believe that neither Mr Cadwallen or Mr Meta have never witnessed the Applicant operate in this manner, particularly Mr Cadwallen who is on the floor the majority of the time during the Applicant’s shifts.

…

[134]    I also find that the Respondent has condoned this practice of the Applicant’s by not correcting his annual re-accreditation. The Applicant’s answer is not correct. In a school or university exam it would be marked as wrong because it did not contain the important and relevant information, which was “open tongs fully then use long travel to clear the bore”. Instead, Mr Cadwallen marked the answer as correct and the Applicant continued to work in this manner.

40    Although on one approach the Full Bench when identifying the first “significant error” at para [32] of its reasons was only addressing the question as to whether there was a valid reason to dismiss Mr Knowles, and not any question as to whether any dismissal was harsh and unfair, reservation may be expressed as to whether the Full Bench was attempting to draw such a clear line of analysis, or whether such a clear division could be drawn between the two lines of analysis. The reference in para [32] of the reasons to whether there was any other person “in the line of fire” and the Commissioner’s “assessment of the safety risks” seems very much to have been picked up and to have formed part of the Full Bench’s consideration as to whether the dismissal was harsh and unfair: e.g., at paras [45] and [47]. The decision in Toms v Harbour City Ferries is but an example of where a policy directed to ensuring safety could not be divorced from a finding that a decision to terminate the employee’s services was not unfair or harsh even though a breach of the policy had not occasioned any injury, as was the fact in the present case.

41    This reasoning of the Full Bench accordingly sets forth what it found to be three significant errors of fact (in addition to the finding that there was no “safety incident”) in respect to the Commission’s finding, namely:

    that Mr Knowles had not breached the relevant Critical Safety Procedure ([2020] FWCFB 3439 at [35] and [36]); and

    that BlueScope had condoned Mrs Knowles’ practice ([2020] FWCFB 3439 at [36] at [45]); and

    that any breach of the Critical Safety Procedure by Mr Knowles was of a “minor magnitude” ([2020] FWCFB 3439 at [47]).

There can be no question that these findings were “significant”. Although the Commission first addressed the question of whether there was a valid reason for the termination, a matter which Mr Knowles before the Full Bench did not put in issue ([2020] FWCFB 3439 at [30]), the finding and reasons formed part of the Full Bench’s overall assessment as to whether the termination was harsh and unfair. The final two “significant error[s] of fact” also formed part of the assessment by the Full Bench as to whether the termination was harsh and unfair.

42    The question to be resolved was whether it is open to this Court to review the findings of fact made by the Full Bench that there were “significant errors of fact”, accepting that the finding of the Full Bench involved a “broad value judgment”: D’Rozario at [102].

43    That question is to be answered adversely to Mr Knowles – so long as the Full Bench was proceeding in a manner according to law in making those findings, the fact finding task remained within the jurisdiction of the Full Bench.

Factual error & jurisdictional error?

44    It is respectfully concluded that it was open to the Fair Work Commission to make the findings of fact that it did. Had an application been made to this Court seeking judicial review of one or other of those findings, it would in all likelihood have been concluded that the findings of fact were open to be made; that the task of making those findings was entrusted by the Legislature to the Commission; and that any attempt by this Court to set aside those findings would have trespassed into the arena of impermissible merits review of a decision of the Commission.

45    But once the Full Bench had granted permission to appeal, it was the task of the Full Bench to undertake a complete re-hearing of the Commission’s decision: cf. Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47, (2000) 203 CLR 194 at 204. Albeit in the context of commenting upon like provisions in the former Workplace Relations Act 1996 (Cth), Gleeson CJ, Gaudron and Hayne JJ there concluded:

[17]    Because a Full Bench of the Commission has power under s 45(6) to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45.

In undertaking a re-hearing, the powers of the Full Bench were nevertheless constrained by s 400(2). And s 400(2) imposes “a basal pre-condition to an exercise of power by the Full Bench”: BP Refinery v Tracey at [22]).

46    The same reservations may presently be again expressed, in respect to a submission that s 400(2) sets forth “jurisdictional facts”, as were expressed by Bromberg J in D’Rozario in respect to s 400(1). Just as s 400(1) contains “no factual reference” but requires “a broad value judgment”, the requirement in s 400(2) as to there being a “significant error of fact” also contains no certain “factual reference” but rather an evaluative judgment as to the significance of an error of fact. In this respect ss 400(1) and 400(2) should attract a comparable interpretation and application. The very use of the term “significant” invites, with respect, “a broad value judgment”. A failure, for example, on the part of the Full Bench to even consider whether there be an error of fact on the part of the Commission and whether that error can be characterised as significant, or a finding that an error of fact is significant without there being any evidence to support that conclusion may expose jurisdictional error and an order quashing the decision of the Full Bench: cf. D’Rozario. But the Full Bench in the present case did give consideration and made findings as to whether there was a “significant error of fact”. Any erroneous finding on the part of the Full Bench for which there was some evidence, even an erroneous assertion as to a fact, would in such circumstances be an error within jurisdiction: D’Rozario at [122]. None of the findings made by the Full Bench could be properly characterised as irrational or unreasonable. Each of the findings made by the Full Bench as to there being “significant error(s) of fact” involved a “broad evaluative judgment” with which this Court should be hesitant to interfere.

47    The submission advanced on behalf of Mr Knowles that the identification of “a significant error of fact” is a jurisdictional fact to be determined to the satisfaction of this Court is rejected.

48    Section 400(2) nevertheless forever imposed an important constraint upon the powers of the Full Bench in the present proceeding. Even given the concession of Mr Knowles as to the breach of the Critical Safety Procedure and there being a valid reason for his dismissal, the re-hearing thereafter undertaken by the Full Bench (cf. Coal & Allied [2000] HCA 47 at [17], (2000) 203 CLR 194 at 204) was a re-hearing constrained by the requirement to identify a “significant error of fact” before departing from a finding made by the Commission. So long as the Full Bench proceeded in a manner according to law and made a finding of fact different to that of the Commission, that fact-finding task was a matter within the jurisdiction of the Full Bench: cf. Lambley v DP World at [42]. So long as that fact-finding task was undertaken in a manner according to law, this Court should not itself trespass into the factual merits of the findings made. The findings made by the Full Bench as to there being “significant error[s] of fact” were findings made within the jurisdiction (and power) of the Full Bench.

49    There was indeed a tension in the manner in which the argument was advanced on behalf of Mr Knowles. The tension was between his oral submission that s 400(2) set forth jurisdictional facts in respect to which this Court could reach its own state of satisfaction, and his written submissions, which seemed to proceed from the assumption that any challenge to the findings as to “significant error[s] of fact” made by the Full Bench had to establish jurisdictional error. Hence his written submissions asserted that there was (for example) “no evidence” upon which the Full Bench could make certain findings or that those findings were “illogical”.

50    Just as the former submission as to s 400(2) setting forth jurisdictional facts has been rejected, so too should his submissions that the findings made by the Full Bench expose jurisdictional error. It is concluded that the Full Bench committed no jurisdictional error in making each of the findings of fact identified by it as being “significant”. Each of those findings were open to it to be made.

51    The principal challenge advanced on behalf of Mr Knowles was a challenge to the finding of the Full Bench, a finding contrary to that of the Commission, that BlueScope Steel had not condoned the work practices of Mr Knowles and had not condoned his breach of the Critical Safety Procedure. The argument was put at three levels, namely:

    that the Full Bench overlooked evidence;

    that its conclusion was illogical; and

    that its decision was internally incoherent.

52    More specifically, the focus of the argument was the submission that the Full Bench at para [36] of its reasons for decision had failed to address (in particular) evidence that more senior employees of BlueScope Steel had seen Mr Knowles operate the crane in the manner which occasioned concern. There is certainly no reference at para [36] to this evidence. The difficulty with the argument, however, is that para [44] of the reasons of the Full Bench incorporates (albeit only by way of footnote [59]) a reference to the findings of the Commission on this issue at para [134] of its reasons. Although no express reference is made by the Full Bench to para [133] of the Commission’s reasons (or para [123]), no conclusion should be reached that the Full Bench considered para [134] in isolation and without having taken into account the findings of the Commission in the immediately preceding paragraph. Although the finding of the Commission at para [135] of its reasons would itself have been difficult to challenge on an application seeking judicial review because the finding was one which was reasonably open to it, it is equally the case that it is difficult to challenge the conclusion of the Full Bench that the Commission committed an error of fact and that that error was significant. The contrary finding of the Full Bench could not, with respect, be described as “illogical” or “internally incoherent”: cf. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 at 648 to 650. Crennan and Bell JJ there observed:

[131]    … If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

[135]    ... Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. ...

The fact that a court “may emphatically disagree with a decision reached by a decision-maker does not lead to the conclusion that it is unreasonable, irrational or illogical”: A v Corruption and Crime Commissioner [2013] WASCA 288 at [123], (2013) 306 ALR 491 at 521 per Martin CJ and Murphy JA.

53    It is certainly not for this Court to now seek to prefer one finding of fact over another; to do so would be to make the Court an arbiter on the merits, preferring the merits of one finding of fact over another. The Court’s task is relevantly confined to simply determining whether the Full Bench had operated within the constraint imposed by s 400(2).

54    No jurisdictional error is thus exposed. The Full Bench did not “overlook” evidence or make a finding which was either “illogical” or “internally inconsistent”.

55    Whether or not this Court would have preferred the factual findings of the Commission as opposed to those of the Full Bench is not to the point. Both the Commission and the Full Bench exercised the jurisdiction entrusted to them by the Commonwealth Legislature. Relevantly, no error is exposed in the findings or conclusions of the Full Bench as to whether BlueScope Steel had “condoned” the breach by Mr Knowles of the Critical Safety Procedure.

56    The remaining three challenges advanced on behalf of Mr Knowles attract the same conclusion. These three challenges were that:

    the Full Bench’s conclusion that the Commissioner’s finding that Mr Knowles’ conduct was “totally different” to that of other employees was “at odds with the evidence” and involved “erroneous” reasoning;

    the Full Bench erred in departing from the finding of the Commission that Mr Knowles’ breach of the Critical Safety Procedure was of a “minor magnitude”; and

    the Full Bench erred in making a finding that “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”.

Although, it is submitted in support of the first of these challenges that the Full Bench must have “misunderstood its function” in preferring to consider the facts in a different way to the Commission, it does not follow that the conclusion of the Full Bench was “not open … and as such [was] irrational, illogical or unreasonable”. Whether the incident which occasioned Mr Knowles being given a “final warning” was “totally different” – as found by the Full Bench – to other incidents was a matter for the Full Bench to determine, given the expertise of its members. The second of these challenges is at odds with the decision in Toms v Harbour City Ferries in which this Court endorsed the emphasis given by the Full Bench in that case to the importance of preserving safety protocols, even in the absence of injury to others. The final challenge seizes upon the finding of the Commissioner that he could “find no overt or clear evidence of the Applicant being discriminated against because of his role as a union delegate”. Given the absence of any finding by the Commission, it is difficult to identify the basis upon which the Full Bench drew the inference that it did, namely that the Commissioner took into account this “irrelevant [matter] in determining the harshness of Mr Knowles’ dismissal”. Although the finding of the Full Bench is thus open to question, any error of fact made by the Full Bench would be an error within the jurisdiction entrusted to it. It is to be recalled that so “long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ.

CONCLUSIONS

57    Leave has previously been granted during the course of the proceeding to the Applicant to amend his Application. No further order is necessary in that regard.

58    No error has been identified which has exposed the Full Bench as not addressing the questions required for determination or not recognising the need to identify a “significant error of fact” before departing from a finding made by the Commission. And no error has been exposed in the manner in which the Full Bench resolved each of the four “significant error[s] of fact” it identified in the decision of the Commission – or, at the very least – any error on the part of the Full Bench which went beyond the jurisdiction entrusted to it.

59    The only remaining order thus to be made is to dismiss the proceeding.

Associate:    

Dated:        12 March 2021

REASONS FOR JUDGMENT

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](e).

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.

Associate:

Dated:    12 March 2021