TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found that the two appellants had not been unfairly dismissed – the dismissal of the appellants for serious misconduct occurred in a particular industrial context – protest line near the entrance to the Longford site – included very large inflatable ‘Scabby the Rat’ – use of offensive and intimidating language towards employees of contractors – in each of the appeals there are challenges to a number of the Commission’s factual findings – Full Bench mindful of the fact that the evidence at first instance was voluminous and in some respects conflicting – Commission reached conclusions based on favouring one witness over another, or because of the credibility of a witness – Short v Ambulance Victoria considered – in the context of appeals, Full Benches of the Commission have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member ‘has failed to use or has palpably misused his advantage’, or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ – Mr Gelagotis’ appeal – grounds of appeal asserted that the Commission made errors of fact – Full Bench held it important to acknowledge the Commission’s observation that Mr Gelagotis was ‘not an impressive witness’ – in conduct cases the assessment of whether there was a valid reason for the dismissal is to be considered in isolation from the broader context in which the alleged misconduct occurred – Full Bench not persuaded that Mr Gelagotis established an arguable case of error in respect of any of the grounds of appeal – not persuaded the Commission made an error of principle or a significant error of fact – Full Bench not persuaded there were any other considerations which enliven the public interest – not satisfied it is in the public interest to grant permission to appeal – permission to appeal refused – Mr Hatwell’s appeal – grounds of appeal asserted that the Commission made errors of fact and that the Commission erred in the fact that he failed to take into account and/or failed to give equal significance to relevant s.387(h) matters in determining whether the dismissal was harsh, unjust or unreasonable; and erred by giving excessive weight to his reasons for concluding there was a valid reason for Mr Hatwell’s dismissal – Full Bench held that the ‘valid reason’ for Mr Hatwell’s dismissal was a single contravention of Esso’s harassment policy – the conduct occurred in the context of a protracted industrial dispute which had resulted in ‘significant tension’ in the workplace and constituted a ‘material change’ in the normal working environment – the relevant decision maker at Esso made it clear that she would not dismiss an employee for a single use of the word ‘scab’ – Full Bench considered that it was in the public interest to grant permission to appeal, and did so on the basis that the decision manifests an injustice – concluded that the decision was manifestly unjust and plainly fell outside the bounds of legal reasonableness as articulated in Li – appeal upheld – decision to dismiss Mr Hatwell’s unfair dismissal application quashed – in rehearing the matter the Full Bench adopted the Commission’s finding that there was a valid reason for dismissal however concluded that Mr Hatwell’s dismissal was harsh – follows that Mr Hatwell was unfairly dismissed – held Mr Hatwell’s conduct warranted a disciplinary response which fell short of dismissal – Full Bench remit the question of whether a remedy should be granted and, if so, the nature of that remedy, to Colman DP for determination. Appeals by Gelagotis and Hatwell against decision of Colman DP of 14 May 2018 [[2018] FWC 2398] Re: Esso Australia P/L t/a Esso
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