An employee sacked after refusing to answer his employer's questions about competing business interests has lost his Federal Court full court challenge to his failed unfair dismissal bid.

Justices Peter Gray, Shane Marshall and Mordy Bromberg held that "even if it be recognised" that Fair Work Australia "might have viewed" the facts of the case differently and "might have found there was no valid reason for dismissing the [the employee] on the basis that he had failed to respond to inquiries about his business interests", that was not a ground on which the court could overturn the decision.

Any error in fact-finding or reasoning by FWA was "not a jurisdictional error, but is an error within jurisdiction", they said, and it was not open to the court to take a different view to Fair Work Australia of the facts, or of the conclusions drawn from the facts.

"It follows that there was no jurisdictional error on the part of the Commissioner, or on the part of the Full Bench in refusing permission to appeal," they held.

They dismissed the sacked employee's application for a review of the full bench decision and ordered him pay his employer's costs.

Holcim (Australia) Pty Ltd sacked the truck driver after he repeatedly refused to answer questions - put to him and to his solicitor - about its concerns that he had a financial interest in a concrete agitator truck doing work for a competitor, which it maintained was in breach of its code of conduct.

When the matter went before Fair Work Australia, Commissioner Anne Gooley found there had been no breach of the driver's common law obligation to avoid conflicts between his personal interests and his employers, and that any breach of the company's code of conduct was inadvertent.

However, she found - in a decision upheld by a full bench of the tribunal - that Holcim was entitled to ask the driver the questions it did and to require him to respond, and that the employee was "wrong in concluding that his business dealings were none of Holcim's business".

Circumstances where the employer had a genuine, "albeit arguably misguided", concern about a potential conflict of interest and the employee refused to respond to those concerns led to a conclusion that there was a valid reason for the termination of the driver's employment, she held.

Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 (2 December 2011)