[2008] AIRCFB 747 |
|
REASONS FOR DECISION |
Workplace Relations Act 1996
s.120—Appeal to Full Bench
SENIOR DEPUTY PRESIDENT KAUFMAN |
MELBOURNE, 8 OCTOBER 2008 |
Appeal – s.652(3) Workplace Relations Act 1996 – termination of employment – nature of appeal against discretionary decision – whether required to have regard to all the circumstances in considering whether there was a valid reason for the termination.
Reasons for Decision of Senior Deputy President Kaufman
[1] This is an appeal by Rail Corporation New South Wales (the appellant) against the decision [AIRC 551, PR982155] and order [PR982117], both of 19 June 2008, of Commissioner Larkin determining an application by Peter Vrettos (the respondent) for a remedy in connection with the termination of his employment by the appellant. The application was made pursuant to s.643 of the Workplace Relations Act 1996 (the Act). The Commissioner found, pursuant to s.652(3) of the Act, that there had not been a valid reason for the termination of the respondent’s employment and that the termination was harsh, unjust and unreasonable. The Commissioner considered that reinstatement was the appropriate remedy and ordered accordingly pursuant to s.654(3) of the Act.
[2] An appeal to a Full Bench lies only by leave of the Full Bench: s.120(1). A Full Bench must grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s.120(2). Otherwise, a grant of leave is governed by the conventional considerations for the grant of leave to appeal by an appellate court which include whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice may result if leave is refused. However, “[t]hese ‘grounds’ should not be seen as fetters upon the broad discretion conferred by s.45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave” although “[i]t will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error”. 1 Pursuant to s.685(2) of the Act an appeal may only be made against an order of the kind in this case on the ground that the Commission was in error in deciding to make the order.
[3] On the appeal, as was the case at first instance, Mr P Ginters, of counsel, appeared by leave for the appellant and Mr A Slevin, of counsel, appeared by leave for the respondent.
[4] The respondent had been employed by the appellant for some 28 years. At the time of the termination of his employment on 2 October 2007 the respondent held the position of Duty Station Manager Class 3. In December 2006 he had applied for and gained promotion to Station Manager Class 4. However, his promotion was short-lived, as on 7 March 2007 an appeal against his promotion was upheld by the Transport Appeals Board (TAB), which is a tribunal created under New South Wales legislation to deal with such matters. It was substantially the events that occurred subsequent to the TAB handing down its decision that led to the termination of the respondent’s employment.
[5] Although the respondent was understandably upset and disappointed when his promotion was reversed, his conduct upon hearing the decision of the TAB was less than satisfactory. The Commissioner found that the respondent’s conduct towards the advocate who was supporting his promotion and towards the person who had successfully appealed the promotion was unacceptable. The appellant had been “shouting in a very highly raised and aggressive voice and using inappropriate language”. The Commissioner also found that, some considerable time after the TAB decision, the respondent had telephoned a member of the TAB, intending to intimidate and threaten him. She found that the respondent’s conduct in this respect was inappropriate and designed to threaten and insult the TAB member. Although certain other aspects of the respondent’s conduct had been relied on by the appellant as warranting the termination of the employment of the respondent, the Commissioner was not satisfied as to those matters. Neither the appellant, nor the respondent, has challenged the Commissioner’s findings in this respect.
[6] In a lengthy decision the Commissioner comprehensively analysed the evidence and concluded that, having regard to the two instances of misbehaviour that she had upheld, that conduct did not form a valid reason for termination in the circumstances of this case. She was not satisfied that the termination of the employment of the respondent was for a valid reason.
[7] After having so found the Commissioner considered the other matters that the Commission is required to have regard to by s.652(3) of the Act. She found that the respondent was notified of the reasons for the termination and was provided with an opportunity to respond to those reasons. The Commissioner then turned her mind to the respondent’s disciplinary history and concluded that the termination of his employment had been harsh, unjust and unreasonable.
[8] After so finding the Commissioner considered whether to make an order providing for a remedy. She decided that an order should be made and that it was appropriate to make an order that the respondent be reappointed to the position which he had held immediately before the termination and that the continuity of his employment be maintained. The Commissioner did not consider it appropriate to make an order that the respondent be paid in respect of remuneration lost by him because of the termination.
[9] The main way in which the appellant puts its case is that, having regard to the findings that she made in relation to the respondent’s misconduct, the Commissioner erred in holding that she was not satisfied that the termination had been for a valid reason. It was put that the Commissioner erred by not having regard to the respondent’s disciplinary history in considering whether there had been a valid reason for the termination.
[10] This appeal involved challenges to a number of discretionary decisions made by the Commissioner. Where the matter the subject of the appeal involves the exercise of a discretion or the application of a broad standard the appellant must demonstrate an error within the principles enunciated 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.” 2
[11] Thus, the focus of a Full Bench on appeal is on the presence or absence of error in the decision at first instance rather than whether that decision was “reasonably open”.
[12] The exposition by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 3 as to the meaning of the expression “valid reason related to the employee’s capacity or conduct” remains authoritative, despite the changes to the Act, and has been followed in many cases. His Honour found that:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or based upon the operational requirements of the employer’s business.”
[13] In considering whether there had been a valid reason for the termination of the respondent’s employment the Commissioner carefully analysed, not only the evidence of the two instances of behaviour about which she made findings adverse to the respondent, but also the evidence relating to the respondent’s conduct and the circumstances leading to the TAB hearing and up to the time of the phone call to the TAB member. There had been many allegations made by the respondent as to the impartiality of some of the TAB members and the advocate who was to support the retention of the promotion. He also made inappropriate comments to the successful appellant before the TAB. The Commissioner made findings in relation to each of these matters, but it is not necessary to canvass them in these reasons. At paragraph 170 of her reasons for decision the Commissioner set out the matters that gave colour to the events surrounding the two day TAB hearing.
[14] It was after having regard to these, as well as other matters, but not the respondent’s disciplinary history, that the Commissioner concluded that, despite the two instances of misconduct that she found the respondent had engaged in, there was no valid reason for the termination of his employment.
[15] For the appellant it was argued that the Commissioner had erred in finding that there was no valid reason for the termination. It was put that having found that the respondent had engaged in the two instances of misconduct, neither of which was trifling, the Commissioner erred in finding that the reason for the termination was not valid. She confused the validity of the reason with the issue of whether in the circumstances, despite there being a valid reason, the termination had been harsh, unjust or unreasonable. It was submitted that, in addition to his behaviour when the TAB pronounced its decision, as the respondent had on his own admission, intended to intimidate, threaten and insult one of the TAB members, there was manifestly a valid reason to terminate his employment.
[16] For the respondent it was put that no error is discernable in the Commissioner’s reasoning process. She had regard to all the circumstances and despite finding that the respondent’s conduct had been serious and warranted disciplinary action, she concluded that there was not a valid reason to terminate his employment. This was a finding that was within her discretion to make.
[17] The parties referred us to Dinsdale v R on the question of when an appellate court can interfere with a discretionary decision. Although there the High Court was dealing with a criminal appeal, the principles enunciated by the court have relevance to appeals in this Commission. Kirby J identified them as follows:
“[57] The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute. An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question. Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen this Court remarked that:
‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’
[58] The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[59] As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
[60] The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct ‘idiosyncratic views’ of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.” 4 [Original references omitted]
[18] For the appellant it was put, applying the principles identified for dealing with appeals from discretionary decisions, that, given the seriousness of the respondent’s misconduct, the Commissioner erred in not finding that the appellant had a sound defensible or well founded reason for terminating the respondent’s employment. She should have concluded that there was a valid reason and then had regard to the other matters in s.652(3) in deciding whether the termination was harsh, unjust or unreasonable. By conflating the question of whether there was a valid reason with considerations going to fairness the Commissioner had erred in the manner identified in paragraph 59 of Dinsdale 5. There is considerable force in the appellant’s submission.
[19] The Commissioner, having found that there had not been a valid reason for the termination, turned her mind to the other matters to which the Commission must have regard pursuant to s.652(3) in coming to a determination whether a termination was harsh, unjust or unreasonable. She dealt with the matters referred to in sub-sections 652(3)(b), (c), (d), (e) and (f). She then dealt with the respondent’s extensive disciplinary history. The Commissioner found:
“[206] In 1998 the applicant was warned in relation to a verbal altercation with a workman. In 1999 the Station Manager, Bankstown, received correspondence outlining a complaint involving an altercation with a Police officer. In 2000 the applicant was suspended for three days for behaviour towards the Chairman of the TAB. After union intervention on behalf of the applicant the suspension was withdrawn and replaced with a final written warning. There are two incidents recorded on the MIMS for 2003. The 2003 record concerned counselling over behaviour towards a Member of Parliament at Bankstown Station and an official reprimand for being rude, aggressive, argumentative and demeaning to a fellow employee. In July 2007 the applicant received a formal reprimand from Mr. Eid, by letter dated 24 July 2007, in relation to an e-mail sent to City Rail stations on 22 December 2006.
[207] The two dismissals relied upon by the DRP in the recommendation to Mr. Eid to dismiss the applicant involved matters occurring in 1994 and 1996.
[208] The 1994 incident is recorded on the applicant’s MIMS report as a suspension and not a dismissal. This incident occurred some 13 years ago. The dismissal of the applicant’s employment in 1994 was initially upheld by the TAB. The dismissal was overturned by a member of the New South Wales Industrial Relations Commission on delegation pursuant to s.19 of the Transport Administration Act (1988). I acknowledge Mr. Ginters’ submission on this point, however, the decision of the TAB was set aside and replaced with a suspension.
[209] In 1996 the applicant was dismissed for misconduct in the period between January 1996 and June 1996. The applicant commenced proceedings in the Industrial Relations Court of Australia alleging unfair dismissal. The matter was resolved in an out of court settlement. The case before the Court was not subject to findings or determination. The agreement reached by the parties on 2 June 1997, inter alia, stated:
“The respondent will alter its personnel records relating to the applicant so as to remove reference to his termination of employment on 27 September 1996 and to substitute therefore reference to suspension without pay for 1 month on the ground of threatening other employees.”
[210] While clearly the applicant was dismissed in 1996 the parties, at the time by agreement for whatever reason, did not treat that dismissal as a termination of the applicant’s employment but a suspension.” [Original references omitted]
[20] It is apparent that the Commissioner had regard to this history after she had concluded that there had not been a valid reason for the termination of the respondent’s employment. She had not taken his disciplinary history into account in determining whether there had been a valid reason for the termination. In my view, in not doing so the Commissioner erred. The Commissioner correctly took into account the circumstances surrounding the incident in question and should also have taken into account the respondent’s disciplinary history in determining whether there had been a valid reason for the termination. By not having regard to this history on the question of valid reason the Commissioner failed to take into account a material consideration in the House v R sense. Absent the respondent’s disciplinary history it was at least arguable that, despite his misconduct, there had not been a valid reason for the termination of this employment in the circumstances of the overturning of his promotion. However, once that history is taken into account that proposition becomes untenable. Although the Commissioner properly took the respondent’s disciplinary history into account, in the context of his 27 years of employment and promotion history, when considering whether the termination had been harsh, unjust or unreasonable, by that time she had determined that there had not been a valid reason for the termination of his employment. Once that finding had been made the question of whether the termination was harsh, unjust or unreasonable took on a completely different complexion than it would have had the finding been that there had been a valid reason.
[21] Having found error, it is appropriate that leave to appeal be granted, and I would do so. As an appeal under s.120 proceeds by way of rehearing, it falls upon the appellate bench to determine the issue for itself, based on the material before it. 6 I proceed on that basis.
[22] In my view, generally, misconduct of the type found to have been engaged in by the respondent, especially his attempt to intimidate the TAB member would found a valid reason for termination, but leave open the question whether in the circumstances the termination had been harsh, unjust or unreasonable. Taking into account the respondent’s disciplinary history compels me to the conclusion that there was a valid reason for the termination. The conduct of the respondent was by no means an isolated incident. His previous history of like conduct clearly informed the decision to terminate and, in my view, puts beyond doubt its validity.
[23] Accordingly, I would find that there was a valid reason for the termination of the respondent’s employment related to his conduct. There is no suggestion that the Commissioner’s findings on the other matters referred to in s.652(3) of the Act should be disturbed.
[24] Absent the respondent’s abysmal disciplinary history it might have been arguable that the termination of his employment was harsh, given the circumstances of his having lost his promotion, as well as his long period of employment (including promotions during that period despite the disciplinary history) and his family responsibilities.. However, the respondent has a long history of abusive conduct towards his workmates and others. Taking those matters into account, and balancing them against the matters in mitigation that the Commissioner took into account, I do not consider that the termination of the respondent’s employment was harsh, unjust or unreasonable.
[25] I have had the advantage of reading in draft form the reasons prepared by Senior Deputy President McCarthy and Commissioner Blair. With respect, I disagree with their approach.
[26] I regard it as well established that:
(a) Section.652(3) requires the Commission to consider and, where appropriate, make findings on each of the matters referred to in paragraphs (a) to (f) of s.652(3). 7 In particular, s.652(3)(a) requires the Commission to make a finding as to whether or not there was a valid reason for the termination.
(b) When a termination is based on misconduct, it is necessary for the Commission to make a finding as to what conduct occurred as a necessary prerequisite to determining whether the conduct of the employee gave rise a to a valid reason for termination. The Commission is bound to consider whether, having regard to its findings on the evidence in the proceedings before it, the termination was harsh, unjust or unreasonable, provided that the evidence concerns circumstances in existence when the decision to terminate was made. 8
[27] As I earlier discussed, it is well established that a reason for termination will be a valid reason if the reason is sound, defensible or well-founded. Findings made by an inquiry established by the employer will be relevant to the Commission’s determination of the issues before it. 9 It follows that the Commission is concerned with the reason(s) relied upon by the employer. However, this is not to say that the Commission is concerned with whether the employer genuinely believed that its reason for termination was a valid reason or whether it was open to the employer to regard the reason as a valid reason. It is clear that in a case of misconduct the Commission is to determine for itself what conduct occurred and whether, in all of the circumstances, such conduct gave rise to a valid reason in the sense of a reason that is sound, defensible or well-founded. The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.10 In determining whether a reason was valid in circumstances such as these, where it was found that the conduct did occur, all the surrounding circumstances, including a history of similar conduct and disciplinary sanctions therefor, needs to be taken into account. By failing to take the respondent’s previous misconduct into account the Commissioner could not properly make the necessary finding and erred.
[28] In my view it is evident that where an employer terminates the employment of an employee on the basis of an instance of misconduct that occurs in the context of a history of similar misconduct and or warnings, any determination as to whether there was a valid reason must include a consideration of the conduct established by the evidence in the light of that disciplinary history. A brief example illustrates the point. Consider an employee whose employment is terminated for late attendance at work. A single instance of, say, 30 minutes late attendance would rarely constitute a valid reason for termination. However, if that instance of late attendance had occurred in the context of a history of attending late for work and warnings that further instances would be treated seriously then the termination would likely be for a valid reason, unless there were exigent circumstances that exculpated the conduct in the particular instance. In other words, a consideration of whether there is a valid reason for termination arising from an instance of misconduct must involve a consideration of all the circumstances, including any relevant disciplinary history relied upon by the employer. In the present case the Commissioner considered whether the particular instances of misconduct which she found to have occurred constituted a valid reason for termination in isolation from the disciplinary history of the respondnet. It was only after having found that that the incidents in question did not constitute a valid reason, and then concluding that there was no valid reason for the termination of the respondent’s employment that the Commissioner turned to consider his disciplinary history. In so doing the Commissioner failed to consider that which she was required to consider in determining whether there was a valid reason for termination, and so erred.
[29] The very finding that there had not been a valid reason for the termination of the respondent’s employment, of necessity, coloured the Commissioner’s consideration of whether, having regard to the other matters referred to in s.652(3) of the Act, the termination of his employment had been harsh, unjust or unreasonable. Whilst I agree with Deputy President McCarthy and Commissioner Blair’s conclusion that the Commissioner “had regard to the totality of the factual matrix in reaching her ultimate judgment”, in my view, that matrix had been skewed by her finding that there had not been a valid reason for the termination. Indeed, it is hard to envisage a situation where a termination of employment would not be found to have been harsh, unjust or unreasonable once there had been a finding that there was no valid reason for it. It may well be that had the Commissioner considered the respondent’s history of misconduct at the time of ascertaining whether there had been a valid reason she might have come to a different conclusion; both on the issue of valid reason and on the ultimate issue of whether the termination had been harsh, unjust or unreasonable.
[30] Whilst, as Senior Deputy McCarthy and Commissioner Blair say, there can be various overlaps in considerations between the various paragraphs of s.652(3) in determining whether a termination of employment was harsh, unjust or unreasonable, that does not mean that the Commission is entitled to disregard facts relevant to all the findings it must make so that it may have regard to the matters commanded by the opening words of s.652(3). In this case it was necessary that regard be had to the respondent’s employment history in the context of deciding whether there had been a valid reason for the termination of his employment as well as in deciding whether the termination of his employment had been harsh, unjust or unreasonable. To do so is not to adopt a formulaic approach or to be unduly technical; it is merely to do what the Act commands.
[31] Given my conclusion it is not necessary to consider the appellant’s submissions in relation to the Commissioner’s alleged failure to consider separately the issues of harshness, unjustness and unreasonableness.
[32] I would allow the appeal, quash the Commissioner’s order and dismiss the respondent’s application for relief.
Decision of Deputy President McCarthy and Commissioner Blair
[33] We have had the benefit of reading Senior Deputy President Kaufman’s decision but with respect we do not agree with it.
The Commissioner’s Reasons for Decision
[34] The Commissioner’s reasons for decision outlined background events that led up to the termination of employment. That background included the assertions of the respondent. The Commissioner then canvassed the evidence. She then outlined the submissions of the applicant and of the respondent. There is no complaint here that the Commissioner erred in her summary of the evidence or the submissions nor omitted important aspects of them.
[35] Under the heading “Considerations” the Commissioner then outlined how she had considered the evidence and submissions. This included what view she took of the evidence. She did this by examining each of the allegations made against the applicant and made findings in relation to each of them.
[36] Those allegations and her findings were:
Allegation 1
On 6 and/or 7 March 2007 at the TAB the applicant had behaved in an inappropriate and aggressive manner (the TAB Incident).
Finding
“I am persuaded that upon the conclusion of the TAB hearing on 7 March 2007 the applicant’s conduct towards Ms. Burland and Mr. Nawar was unacceptable. However, considering all the events, which have been outlined previously in this decision, I am not persuaded that there was a valid reason for his termination of employment based on what occurred at the conclusion of the TAB hearings 11.” [My underlining].
Allegation 2
On 22 April 2007 the applicant made an unauthorised comment to the media (the Media Incident).
Finding
“I am not persuaded that the applicant even thought that he may be in breach of policy, if indeed he was, by making the comments that he did make in that article 12.”
Allegation 3
On 9 May 2007 the applicant made an aggressive and inappropriate telephone call to Mr. Sidney Jackson (the Jackson Incident).
Finding
“In considering the material on this issue, I am persuaded that the applicant by placing that telephone call, intended to intimidate and threaten Mr. Jackson. [Further that] it was inappropriate and plainly wrong for him to make contact with Mr. Jackson and make, what in my view were, threats that further action would be taken. The insults as to Mr. Jackson’s capacity to sit on the TAB were also inappropriate and wrong 13.”
Allegation 4
On 29 May 2007, the applicant behaved aggressively towards Mr. Nawar at Central Station prior to and/or during a Station Managers’ team brief (the Nawar Incident).
Finding
“I was not satisfied, on balance, that the conduct as alleged towards Mr. Nawar on 29 May 2007 did occur 14.”
[37] Having made those findings the Commissioner then reasoned
“Considering the evidence and material before me in this matter, I am not satisfied that there was a valid reason for the termination of the applicant’s employment on the basis of the allegations put against him. As stated earlier in this decision, there were in my view two serious incidents in which the applicant’s conduct was unacceptable. The first was his outburst at the conclusion of the TAB hearing on 7 March 2008 and the applicant’s conversation with Mr. Jackson. In considering those incidents I view the applicant’s conduct to be serious and warranting disciplinary action, however, I am not persuaded that those incidents form a valid reason for termination in the circumstances of this case. I am not satisfied that the applicant’s termination of employment was for a valid reason 15.”
[38] Here the Commissioner found only that the conduct had occurred and that on the basis of that conduct that termination was not justified. What she did was examine the allegations put to the applicant and the conduct that gave rise to those allegations. She then made findings as to whether or not the conduct had occurred. She then made findings based on that conduct as to whether there was a valid reason for termination of employment.
[39] She made it clear that her finding was on the basis of the allegations put against him 16 and that she was not persuaded that the incidents formed a valid reason for employment termination in the circumstances of this case17. She made it clear that was the approach she was taking “I will now consider the applicant’s disciplinary history having regard to my findings in this matter”18.
[40] What the Commissioner then did was to turn to the other elements of the factual matrix. She considered the employer’s view of the applicant’s history and accepted that view 19. She considered the applicant’s employment and disciplinary history including promotions and appointments to positions of trust and authority. Having done so she recognised that “While RailCorp did not question the applicant’s appointment to the above positions on the basis of his disciplinary history that history was relied upon by RailCorp in its decision to dismiss the applicant”20.
[41] Having considered these issues the Commissioner did not revisit whether there was a valid reason for the termination and made no further findings in that regard. The Commissioner then considered the applicant’s personal circumstances and the length of his employment with the respondent.
[42] The Commissioner then determined that the termination of employment was harsh, unjust and unreasonable.
Appeal Grounds
[43] There are two broad grounds of appeal concerning the Commissioner’s decision and the approach she took in determining that the termination of employment was harsh, unjust and unreasonable.
[44] The first complaint made in the appeal is that the Commissioner made a finding that there was not a valid reason for the termination, without having regard to the disciplinary history of the applicant. The appellant argues that the Commissioner therefore did not properly make a finding whether there was a valid reason for the employment termination because she did not take into account the full factual matrix by not considering an element that was essential to making any finding. Related to that complaint is that the Commissioner did not provide satisfactory reasons for her decision as to why the termination was harsh unjust or unreasonable.
[45] The second complaint made by the appellant is that no reasonable person could have reached the conclusion that the Commissioner did in finding that the employment termination was harsh, unjust or unreasonable.
[46] The nature of an appeal under s.120 of the Workplace Relations Act 1996 (“the Act”) is guided by the High Court of Australia in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 21. It is not necessary to recite the approach.
Consideration
[47] The Act provides remedies where, on arbitration, a termination is found to be harsh, unjust or unreasonable 22. An employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment (a) on the ground that the termination was harsh, unjust or unreasonable 23. An applicant can elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable24. The Commission may then proceed to arbitrate the matter25 which involves determining whether a termination was harsh, unjust or unreasonable.
[48] The only determination the Act requires the Commission to make is whether the employment termination was harsh, unjust or unreasonable. In making that determination the Commission must have regard to a number of matters including whether there was a valid reason for termination of employment 26 and consideration of an application must ensure a “fair go all round” is accorded to both the employer and employee concerned27.
[49] In reaching its judgment in this regard the Commission is obliged by direction of s.652(3) of the Act to have regard to a number of specific matters 28. The Commission can take into account any matter the Commission considers relevant29. The Commission’s considerations and any findings in these various regards are not determinative in their own right. They serve only to ensure that the Commission’s ultimate judgement as to whether the termination of the employee’s employment was harsh, unjust or unreasonable is informed, and proper consideration is given to matters that the Parliament thought appropriate to consider.
[50] One of the matters the Commission must have regard to is whether there was a valid reason for the termination of the applicant’s employment 30. It is necessary to make a finding that the conduct relied on by the employer did occur or did not occur as a step in considering whether there was a valid reason for the termination of employment31. The reasoning being that in order to properly make enquiry into whether there was a valid reason for termination there must be a proper foundation on which it can be based, that being the finding on whether or not the conduct occurred.
[51] The assessment as to whether there was a valid reason for a termination has been accepted as there being a sound, defensible and well founded reason. This assessment entails “a consideration of the nature of the conduct in the full context of what actually occurred” 32.
[52] The main complaint that the appellant raises is that the Commissioner did not have regard to the full factual matrix in her consideration of s.652(3)(a) of the Act. Rather the Commissioner made a finding that there was a not valid reason on the basis of a particular subset of facts (see paragraphs 36 and 37 above) and not all the facts including the applicant’s disciplinary history.
[53] In effect, the appellant appears to be contending that had all the facts been considered in relation to the finding of there not being a valid reason, the Commissioner would not have reached the finding she ultimately did as to whether or not the employment termination was harsh, unjust or unreasonable. It may have been helpful for the Commissioner to have considered the applicant’s disciplinary history and other relevant matters before making a finding about there being a valid reason for termination as the Appellant suggests, but it is not fatal to her ultimate judgment that she did not do so.
[54] The Commissioner focused her attention on the particulars of the immediate incidents that led to the termination of the Applicant’s employment, and reached her decision as to whether or not there was a valid reason on the basis of those confined circumstances.
[55] She subsequently gave consideration to the Applicant’s disciplinary history, as a consideration in regard to s.652(3)(g) of the Act, and she did so in some detail.
[56] Consequently the Commissioner had regard to the totality of the factual matrix in reaching her ultimate judgment. It may be that her finding as to the valid reason was based on a set of facts that was too narrow, but it was a confined finding that was subsequently moderated against other elements of the factual matrix. In the process of reaching a judgment as to whether the termination was harsh unjust or unreasonable, the Commissioner considered matters that were relevant by application of s.652(3)(g).
[57] No finding in respect of any of the matters prescribed under s.652(3) of the Act are determinative in their own right of a judgment as to whether a termination of employment was harsh, unjust or unreasonable, though the appeal appears to assume to the contrary. The ultimate judgment that is reached is one based on a reflection of the wider factual matrix and issues of weight and relevance.
[58] There can be overlaps in considerations between the various paragraphs of s.652(3) and whether a termination of employment was harsh, unjust or unreasonable. The determination to be made is a compound of considerations comprising various elements that assist in shaping and forming that determination. It is the compound and the presence of the constituent elements that make it up that is important. The proportion of each element and when it is added to the mixture in our view is not critical.
[59] The appeal invites a sterile approach by requiring facts to be allocated in specific categories of the Act’s provisions for consideration. That approach has the effect of replacing substance with sequence.
[60] In our view, the Act does not require the Commission to be formulaic in its approach or to be unduly technical and robotic as to what particular category of s.652(3) a discrete consideration ought to reside. It is enough that along the way to the ultimate consideration as to whether a termination of employment is harsh, unjust or unreasonable the Commission has proper regard to the full factual matrix and ascribes appropriate weight to the relevant facts and circumstances in having regard to all the matters set out in s.652(3).
[61] In contrast to the observation by Senior Deputy President Kaufman we can envisage a situation where a termination of employment would not be found to be harsh, unjust or unreasonable once a finding that there had been no valid reason for it. Indeed using a variant of the example he gave, there may have been a disagreement as to what was agreed to be the normal starting time when an employee was engaged. The employee may have asserted that it was 30 minutes after the time the employer asserted it was. The employee may well have often started work 30 minutes later than the employer wanted. But it might be found as a fact that the agreement was as the employee asserted. The employer’s enquiry as to what the terms of engagement actually were may have been frustrated because of a lack of availability of the person that directly engaged the employee or even lack of cooperation by the employee. In those circumstances the conduct complained of by the employer may be found to have not occurred. The termination may then be found to have not been for a valid reason but it could quite easily be found that the termination of employment was not harsh, unjust or unreasonable.
[62] The point is that the provisions of s.652(3) of the Act are not designed to oblige all or almost all weight to be given to s.652(3)(a). The approach of Senior Deputy President Kaufman invites that approach. In our view such an approach would leave the other paragraphs of s.652(3) as superfluous. That could not have been the intention of Parliament otherwise those provisions would not have been inserted into the Act. In the circumstances of this matter the Commissioner dealt with previous disciplinary history and gave it consideration. That she did not do so when she was having regard to whether there was a valid reason for termination is not fatal to the outcome of the full enquiry she embarked upon.
[63] The second broad complaint arising from the appeal was that the Commissioner’s determination was so unreasonable that no reasonable person could have reached the same conclusion.
[64] It is a matter of judgment as to whether the employment termination was harsh, unjust or unreasonable. There was a sound factual basis for the Commissioner’s judgement and her examination of the evidence and her reasons show a clear basis for the formation of that judgment. Indeed her findings of facts are not challenged in this appeal. Reasonable minds might differ on the judgment, but it is a discretionary judgment and it seems to us that she was entitled to form that judgement. It was not so unreasonable that it should be interfered with.
[65] We would not grant leave to appeal that the Commissioner erred in making a determination that the termination of employment was harsh, unjust or unreasonable.
[66] The Appellant also complains that the Commissioner was in error in determining and making the order she did for reinstatement of employment for the applicant. On a fair reading she had regard to those matters she was required to, although some of them she referred to in her reasons for arriving at her determination regarding the harshness, unfairness or unreasonableness of the termination of employment. It was not necessary for her to revisit those matters in arriving at a decision as to the appropriate remedy. We do not consider she made any error or failed to take into account any relevant factors in deciding on a remedy.
[67] We do not consider this is a matter where leave to appeal should be granted.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
P Ginters of counsel for Rail Corporation New South Wales.
A Slevin of counsel for Peter Vrettos.
Hearing details:
2008.
Sydney:
August 27.
1 Wan v AIRC (2001) 116 FCR 481 at [30]; Turville v Commonwealth of Australia [2008] AIRCFB 673
2 (1936) 55 CLR 499 at p.505 per Dixon, Evatt and McTiernan JJ
3 (1995) 62 IR 371 at p.373
4 (2000) 202 CLR 321 at p.339
5 Ibid at p.340
6 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [17], [26]
7 Chubb Security Australia Pty Ltd v John Thomas Print S2679, McIntyre VP, Marsh SDP, Larkin, C. 2 February 2000
8 Australian Meat Holdings v McLauchlan (1998) 84 IR 1 at p.14
9 Ibid
10 Edwards v Giudice (1999-2000) 169 ALR 89 at [7] per Moore, J
11 2008AIRC551 para 168, see also para 198
12 Ibid para 176, see also para 198
13 Ibid para 181, see also para 198
14 Ibid para 198
15 Ibid para 199
16 Ibid para 199
17 Ibid para 199
18 Ibid para 203
19 Ibid para 203
20 Ibid para 211
21 (2000) 174 ALR 585; (2000) 74 ALJR 1348; (2000) 99 IR 309; [2000] HCA 47.
22 s.635(1)(c)
23 s.643(1)(a)
24 s.651(1)
25 s.652(1)
26 s.652(3)
27 s.635(2)
28 s.652(3)(a) to (f)
29 s.652(3)(g)
30 s.652(3)(a)
31 See Edwards v Giudice and Others (1999) 169 ALR 89
32 See Qantas ibid
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