[2015] FWCFB 478

The attached document replaces the document previously issued with the above code on 30 January 2015, amending various typographical errors and correcting the name of the appellant in paragraph [1].

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 30 January 2015

Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision PR555663 and order PR555664 of Deputy President Asbury at Brisbane on 19 September 2014 in matter number U2013/11148.

Introduction

[1] Mr Ronald Anderson has filed a notice of appeal under s.604 of the Fair Work Act 2009 (Act) in which he seeks permission to appeal and appeals a decision of Deputy President Asbury issued on 19 September 2014 1 (Decision). The Decision concerned an unfair dismissal remedy application which Mr Anderson lodged under s.394 of the Act in relation to his dismissal from his employment with Thiess Pty Ltd (Thiess) at the Burton Downs Mine (Mine) in Queensland on 17 June 2013. In summary, the Deputy President found that there was a valid reason for Mr Anderson’s dismissal but nonetheless determined that dismissal was harsh and unreasonable, found that it was not appropriate to reinstate Mr Anderson to his employment with Thiess, and determined that Thiess pay Mr Anderson the amount of $28,578.68 in compensation. A separate order was issued giving effect to the compensation decision.2

[2] In his notice of appeal Mr Anderson has appealed the entire decision, notwithstanding that he succeeded in obtaining a finding that his dismissal was harsh and unreasonable and an order for the payment of compensation in his favour. He was only unsuccessful in obtaining the primary remedy of reinstatement. The grounds of his appeal appear primarily to challenge the Deputy President’s conclusion, made pursuant to s.387(a) of the Act, that there was a valid reason for his dismissal.

[3] Section 387 sets out a number of matters which a member of the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable. Section 387(a), which refers to “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)”, is one of those matters. We do not consider that a finding made in relation to a matter required by s.387 to be taken into account in itself constitutes a “decision” which is appealable under s.604; it is only a finding made on the way to reaching a decision. However if such a finding is a basis upon which a decision is made as to the remedy to be granted or denied to an applicant, that finding can obviously be challenged in an appeal against such a decision.

[4] In his written outline of submissions filed in accordance with the Commission’s directions, Mr Anderson has criticised certain findings that the Deputy President made in the Decision in support of her decision not to grant the remedy of reinstatement 3, and has contended that “My position remains that I should be reinstated without loss of income, seniority or standard of accommodation ...”.4 Noting that Mr Anderson is a self-represented litigant and the Commission is not a court of pleading, we consider that we should treat Mr Anderson’s appeal as primarily challenging the Deputy President’s decision not to reinstate him. Additionally Mr Anderson in his outline of submissions challenges a finding which “militated against reinstatement as well as being a factor in reducing any compensation”.5 That, we think, can be read as a challenge advanced in the alternative to that part of the Decision concerning the quantum of compensation to be awarded to him. At the hearing of the appeal, Mr Anderson confirmed that this was the gravamen of his appeal.

Factual background

[5] Mr Anderson commenced employment with Thiess at the Mine on 30 November 2001. For the first ten years of his employment, Mr Anderson worked as a diesel fitter, primarily in the workshop, at the Mine. His disciplinary and performance record during this time was unblemished. In mid-2011, he was moved to the role of Workshop Trainer/Assessor, with the responsibility to ensure that workshop personnel and contractors complied with the standards prescribed by the Coal Mining Safety and Health Act 1999 (Qld). This position required Mr Anderson to make extensive use of Thiess’s email system for the first time.

[6] In March 2013 an issue arose about the large number of non-work related emails that Mr Anderson was sending to Thiess personnel on the Thiess system. Mr Rodney Nichols, the Maintenance Manager, informally counselled him to stop sending non-work related emails.

[7] On 17 June 2013 Mr Anderson sent an email message via the Thiess system to a large range of persons including a large number of Thiess personnel. The email message read as follows:

“Subject: FW: Fwd: Work War 3 - PASS IT ON

If you watched 60 minutes last night, that was only the tip of the iceberg. The real facts are set out below. Please contact your Politicians, local government and stop this spread or we will be a victim in Australia. As you can see they are not a non-violent religion as they claim, although 70% of them are being hood winked just as it was in the days of Hitler and other notorious leaders. We need action urgently, and this does not mean to be violent. We must speak out if we want our Country back... You may have noticed that they did not respect their Australian Citizenship, as their allegiance is to Allah and the Muslim banner... They have no intention of assimilating into the Australian way of life and it is evident from this fact sheet that they have been stealthily working behind the scenes to gain control by minority population.
Zita Godsell.
...
And my favourite quotation still works for me
THE ONLY THING NECESSARY FOR EVIL TO SUCCEED IS FOR GOOD MEN TO DO NOTHING - Edmund Burke.”

[8] There was an attachment to the email which contained a slideshow under the heading “The Sword of Militant Islam”. The slideshow contained 29 slides, and can fairly be characterised as advancing a case through words and pictures that Islam is an aggressive and violent religion which constitutes a threat to the civilized world. Some of the propositions headlined in the slideshow included “Islam and Jihad Hand in Hand”, “Islam is a killing machine!”, “Islam May Become the Greatest Murdering Force in the History of Mankind”, and “Islam has no place in Europe! Actually it has no place in a civilized world whatsoever!” It does not appear to be in dispute that Mr Anderson was not the author of the email message nor the creator of the slideshow; it was emailed to him and he then forwarded it to a number of persons through the Thiess email system. Mr Anderson confirmed in the appeal hearing that he had opened the attachment and read at least some of its contents.

[9] The content of the email message, after it was brought to the attention of the Mine’s management by one of the recipients, caused an investigation and disciplinary process to be initiated (although the contents of the attachment appeared to escape the attention of management at this point). This led to Mr Anderson being dismissed later the same day. He lodged his unfair dismissal remedy application on 4 July 2013.

The Decision

[10] In her Decision the Deputy President, after outlining the basic facts of the matter and reviewing some of the authorities concerning unfair dismissal cases, turned to consider the matters required to be taken into account under s.387 of the Act. In relation to the issue of whether there was a valid reason for Mr Anderson’s dismissal, the Deputy President made the following findings and conclusions:

● There was no dispute that the email message earlier set out was sent on 17 June 2013, but the contents of the attachments were not properly identified until during the course of the hearing. 6
● The text of the email message was highly offensive to persons of the Muslim faith, vilified persons of that faith and made a number of assertions intended to incite readers to contact politicians to take action of an unspecified nature. 7
● The attachments to the email were highly offensive and vilified persons of the Muslim faith. 8
● The email caused actual offence, because one of the recipients escalated the matter by reporting it to Mr Nichols. 9
● Mr Anderson displayed no awareness about the offensiveness of the email or the impact it could have on work colleagues or Thiess’ reputation, his answers in cross-examination showed his lack of understanding about acceptable conduct in a modern and multicultural workplace in the context of working for an employer with international operations, and he did not understand that persons other than Muslims might be offended by religious intolerance. His denial of a characterisation of the email as racist “constituted ... splitting hairs and did not assist his case.” 10
● Thiess has extensive policies and procedures in relation to acceptable conduct in the workplace, employs a multicultural and diverse workforce, endeavours to operate in a way free from discrimination and harassment on grounds which include religious belief and operates in a number of countries where a variety of religions are practised. 11
● For an employee of Thiess to send an email which vilified persons who practised a particular religion would breach Thiess’ policies and create a real risk of reputational damage to Thiess. 12
● Mr Anderson’s claim that he had no knowledge of the policies and procedures relating to workplace conduct and the appropriate use of email was improbable. 13
● Although there was some evidence that other Thiess employees had sent emails of an inappropriate nature, there was no evidence that this was known about by management and condoned such as to support a claim of differential and unequal treatment. 14
● Mr Anderson maintained a belligerent and intransigent attitude about the email and its impact, he genuinely held the views expressed in the email, and his only regret was that he was dismissed for sending it. 15

[11] The Deputy President then stated the following overall conclusions concerning the valid reason consideration:

“[52] Australia is a free country. Australians are free to practice the religion of their choice and to hold whatever views they wish to hold. There is no single religion that has a monopoly on perpetrating acts that members of the community view as violent and evil. Regrettably there are people who use their freedom to disseminate information that incites violence and intolerance against others. Mr Anderson is free to hold whatever views he wishes to hold, however misinformed they might be. He is free to receive and disseminate material expressing those views, provided that he does not break any law in doing so.

[53] What Mr Anderson is not free to do is to receive and disseminate such material on Thiess’ electronic information systems while he is on Thiess’ time. The email Mr Anderson received and forwarded incites intolerance and vilifies others on the basis of their religious belief. It had the potential to offend others and caused offence to at least one person, who reported it to a more senior manager.

[54] The email had real potential to damage Thiess’ reputation in Australia and internationally. Thiess has policies and procedures that prohibit the sending of such emails and has taken reasonable steps to promulgate those policies in the workplace. It is no answer to the allegation of misconduct that the images forwarded by Mr Anderson are seen on television and other forms of media. Thiess is entitled to maintain a workplace where such material is not disseminated on its computer systems. I am satisfied and find that in all of the circumstances there was a valid reason for Mr Anderson’s dismissal.”

[12] The Deputy President then dealt with the considerations specified in paragraphs (b)-(g) of s.387 in a manner which was not the subject of controversy in the appeal. In relation to s.387(h) the Deputy President treated the following matters as relevant:

● his age (65), length of service, and good prior work record; 16
● the lack of support or assistance Mr Anderson received when he took on the role of Trainer/Assessor; 17
● the absence of any record that Mr Anderson was formally trained concerning policies relating to acceptable email use; 18
● the fact that Mr Anderson was not formally counselled or warned about his earlier non-work related emails, with the inadequacy of the informal counselling by Mr Nichols contributing significantly to Mr Anderson failing to appreciate what was required of him; 19
● the investigation/disciplinary process initially led to an assessment that Mr Anderson should receive a final warning, but this was overridden by senior management and upgraded to a dismissal; 20
● the investigation process, which took place in a relatively short time, failed to take relevant matters into account (including that the email had been stopped and blocked by IT personnel) and failed to identify the exact contents of the email; 21
● had more time been taken to discuss the matter with Mr Anderson, an outcome might have been achieved whereby he accepted that his email was inappropriate and apologised; 22
● there was no consideration of a penalty less than dismissal; 23
● Mr Anderson was summarily dismissed and received no payment in lieu of notice; 24 and
● the prospects of Mr Anderson obtaining other comparable employment are extremely limited. 25

[13] The Deputy President then stated the following conclusions:

“[76] On balance, notwithstanding that there was a valid reason for Mr Anderson’s dismissal, I am satisfied that the dismissal was unfair on the grounds that it was harsh and unreasonable. The dismissal was harsh because of its consequences for the personal and economic situation of Mr Anderson. It was unreasonable because the conclusion that the misconduct engaged in by Mr Anderson was wilful on the grounds that he had been previously warned about it, was not reasonably open on the material before the employer.

[77] I do not find that the dismissal was harsh. It was not disproportionate to the gravity of the misconduct. The misconduct was extremely serious and had significant potential to damage Thiess’ reputation. Mr Anderson’s misconduct did provide a valid reason for his dismissal and I do not find that the dismissal was unjust.”

[14] There appears to be a typographical error in the first two sentences of paragraph [77], having regard to the fact that in paragraph [76] the Deputy President had found the dismissal to be harsh. It is reasonably apparent that what the Deputy President intended to say was something to the effect that: “I do not consider that the dismissal was harsh on the basis that it was disproportionate to the gravity of the misconduct”. In this respect, the Deputy President appears to have been drawing a distinction with her finding in paragraph [76] that the dismissal was “harsh because of its consequences for the personal and economic situation of Mr Anderson” and thereby endeavouring to make it clear that she only found harshness on one of the two bases identified in the well-known statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 26 that a dismissal “may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted” (which statement had been referred to earlier in the Decision27).

[15] The Deputy President then turned to the issue of remedy, and first considered (consistent with s.390(3) of the Act) whether reinstatement was an appropriate remedy. Her conclusions were as follows:

“[78] As required by s.390 of the Act, I am satisfied that Mr Anderson was protected from unfair dismissal and that he has been unfairly dismissed. Mr Anderson should have a remedy for his unfair dismissal. Mr Anderson seeks reinstatement. I am satisfied that reinstatement is not an appropriate remedy in all of the circumstances of this case for the following reasons.

[79] There was a valid reason for Mr Anderson’s dismissal. Mr Anderson sent an entirely inappropriate email vilifying persons on the basis of religious belief. The email caused offence to at least one person and had the potential to offend others regardless of whether or not they practice any particular religion. The email also had the potential to cause reputational damage to Thiess in terms of its position as an employer of a multicultural workforce and its international operations.

[80] Mr Jorquera submits that to reinstate Mr Anderson will send a message that this kind of email is acceptable. Mr McCarthy states that it is not appropriate that Mr Anderson be reinstated because he has breached Thiess’ value of trust and clearly does not respect his colleagues. Mr McCarthy further states that Thiess has a large number of Indonesians working in its business who are Muslims and that Mr Anderson has no respect for their beliefs. Mr McCarthy does not want someone with Mr Anderson’s values in Thiess’ business.

[81] I accept Mr McCarthy’s evidence on this point. I am also of the view that Mr Anderson’s complete lack of contrition and his refusal to accept any culpability for his actions or the serious implications that sending the email had, militates against reinstatement. This is compounded by Mr Anderson’s unwavering belief that the contents of the email he disseminated are true and that he is the one who should be offended. In all of these circumstances it is not appropriate to reinstate Mr Anderson.”

[16] The Deputy President then turned to the alternative remedy of compensation. The Deputy President found that compensation was an appropriate remedy, and assessed compensation in the following manner:

“[84] At the point he was dismissed, Mr Anderson had been employed for over 12 years. Other than sending the email on 17 June 2013 there was no evidence of any issue being taken with his conduct, capacity or work performance in that period. At the point this application was heard, the job Mr Anderson held was still being performed and had been filled by another employee.

[85] In my estimation, but for his dismissal, in a manner and upon grounds which made the dismissal unfair, Mr Anderson would have remained in employment for a period of at least a further twelve months and for that period would have received a base salary of $114,314.72 in accordance with the relevant enterprise agreement, under which his weekly base rate at the point he was dismissed was $2198.36.

[86] Mr Anderson has not obtained alternative employment. His evidence is that he has attempted to do so and has made a number of phone calls to his contacts to see if anyone is hiring and has been unsuccessful. Mr Anderson also points to the fact that his age will make it difficult for him to obtain other employment. Mr Anderson has taken some steps to mitigate his loss, but I am not satisfied that he has done all that he reasonably can in this regard.

[87] In relation to discounting for contingencies, I have concluded that the level of discount should be 50% in this case. Mr Anderson’s employment could have ended for any number of reasons and given the attitude that he displayed in this hearing and his refusal to accept any responsibility for his conduct, had the decision been made to issue Mr Anderson with a final warning in June 2013 there was a prospect that he could have been dismissed for another reason after that warning was given. Applying a 50% discount for contingencies, reduces the amount of $114.314.72 to $57,157.36.

[88] For the reasons set out above, I am satisfied and find that Mr Anderson made a significant contribution to the situation he found himself in on 17 June 2013, and I have concluded that the amount of compensation awarded to him should be adjusted by 50% for that reason. Making that adjustment results in an amount of $28,578.68. That amount, less taxation deductions required by law, is to be paid to Mr Anderson within 14 days of the date of release of this decision. An Order to that effect will issue with this decision.”

Submissions

[17] Mr Anderson advanced the following principal propositions in his written and oral submissions:

(1) An employee cannot be dismissed for not complying with a policy concerning computer and email usage in circumstances where the employee has not been trained in the use of computers or the relevant policy. The Deputy President’s finding that there was no record of him having been trained meant that her other finding that he could not have been oblivious to the relevant policies was incorrect.

(2) Thiess’s case at first instance that he was a “repeat offender” when it came to breaching the policy concerning computer usage was not supported by the evidence. There had been a single statement from Mr Nichols, which he recalled as being “Back off those muslim emails” and Mr Nichols as “Back off non-work related emails”. The Deputy President found that Mr Nichols had not communicated adequately with him about the issue.

(3) The manner in which the outcome of the disciplinary process was modified, as found by the Deputy President, meant that he should not have been dismissed.

(4) The email which he sent on 17 June 2013 did not vilify persons on the basis of religious belief, but only referred to the actions of extremists. It was analogous to a criticism of catholic priests for engaging in sexual assaults upon children, which could not be taken as offensive to all Catholics or Christians. It could not be regarded as offensive by anyone other than extremists. The Deputy President erred in finding otherwise.

(5) The Deputy President erred in accepting evidence that he had no respect for Muslim beliefs. Mr Anderson specifically submitted: “This injustice was further compounded when used as the reason for not reinstating me. In view of the earlier statements of mine that this [is] about extreme radicals and not the average Muslim I do not see that I should show contrition for holding strong beliefs about radical muslims, paedophile priests or anyone else who is not living by the norms of civilized society, and this should not mitigate against me at these hearings”.

(6) The conclusion of the Deputy President, in assessing compensation, that there should be a 50% discount for contingencies because his employment could have been terminated for any number of reasons having regard to the attitude he displayed at the hearing and his refusal to accept any responsibility for his conduct, was unfounded having regard to his good prior work record, and impermissibly constituted a punishment for something that might be done in the future.

(7) The Deputy President’s reliance on his belligerent bearing and lack of contrition during the hearing should not have been taken into account having regard to the fact that he was self-represented.

(8) Reinstatement should have been the remedy that was ordered.

[18] Propositions (1), (3)-(5) and (7)-(8) above appear to be relevant to Mr Anderson’s challenge to the Deputy President’s decision to refuse to order reinstatement, with propositions (1) and (3)-(5) being primarily directed to the Deputy President’s finding that there was a valid reason for the dismissal which in part underpinned her refusal of reinstatement. Proposition (6) is concerned with the assessment of compensation. Proposition (2) does not appear to involve any contention of error on the part of the Deputy President, but rather constitutes an attack on one aspect of the case Thiess ran at first instance, and is not therefore relevant to the appeal.

[19] Mr Anderson submitted that proposition (1) above was one which attracted the public interest and thus permitted the grant of permission to appeal under s.400(1).

[20] Thiess submitted that:

(1) The Deputy President was correct in finding that there was a valid reason for Mr Anderson’s dismissal, particularly having regard to her finding that the email was one which vilified persons of the Muslim faith.

(2) A determination as to whether reinstatement is appropriate or not involves the making of a discretionary decision. The Deputy President’s findings that Mr Anderson maintained a belligerent and intransigent attitude about the email and its impact, lacked any understanding about the capacity of the email to offend others (whether Muslims or not), and failed to express any contrition for his conduct in sending the email when given an opportunity to do so were supported by the evidence and the record of the hearing. The Deputy President was entitled on the basis of those findings to conclude that reinstatement was not appropriate.

(3) In relation to the assessment of compensation, the Commission was required by s.392(2)(c) to consider what remuneration Mr Anderson might have received had he not been dismissed. In that respect the Deputy President was entitled to take into account whether, if he had not been dismissed at the time he was, Mr Anderson’s employment might have subsequently been terminated due to further misconduct of a similar nature.

(4) Mr Anderson had not demonstrated any appellable error in the Decision, and the public interest was not enlivened. Permission to appeal should be refused, or, alternatively, the appeal should be dismissed.

Consideration

Reinstatement

[21] We accept the respondent’s submission that a decision as to whether it is appropriate to order the remedy of reinstatement is discretionary in nature. As was explained in the Full Bench decision in Nguyen v Vietnamese Community in Australia 28, a broad range of factors may be relevant in a consideration of the appropriateness of reinstatement:

“[9] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.
...
[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.

...

[15] In Australia Meat Holdings Pty Ltd v McLauchlan a Full Bench of the AIRC gave consideration to the differences in the provisions of the IR Act and the WR Act and concluded that “a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability . . . [I]n considering whether to order the reinstatement the Commission is not confined to an assessment of the practicability of such an order are that must decide whether such an order is appropriate”. We agree with this observation.

[16] We now turn to the relevant question concerning the appropriateness of reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed.”

[22] The discretionary nature of the decision-making exercise in relation to reinstatement, which apart from the criterion of appropriateness is not guided by any requirement to take any particular matter into account, necessarily means that no one consideration and no combination of considerations is necessarily determinative of the result and that the decision-maker is allowed some latitude as to the choice of the decision to be made. 29 It also means that in any appeal from a decision concerning the grant or refusal of the remedy of reinstatement, it is necessary for the appellant to demonstrate error in the decision-making process.30 Any such error will usually have to be of the type identified in House v The King.31

[23] As paragraph [79] of the Decision discloses, in refusing to order reinstatement the Deputy President took into account the fact that there was a valid reason for Mr Anderson’s dismissal having regard to the earlier conclusions that the email and its attachments inappropriately vilified persons on the basis of religious belief, caused offence to at least one person, had the capacity to offend others regardless of their religious beliefs, and had the capacity to cause reputation damage to Thiess. We consider that it was clearly open to the Deputy President to find that there was a valid reason for the dismissal on these bases.

[24] The email (including the attachment) clearly vilifies - that is, defames and traduces 32 - persons of the Muslim faith. We do not accept Mr Anderson’s submission that it was only directed at violent Muslim extremists. On a fair reading of the email, it denigrates Islam and its adherents generally. The parts which we have earlier quoted are sufficient to demonstrate this, and a reading of the email in its entirety does not alter the picture.

[25] While Mr Anderson is no doubt entitled to hold views of the nature articulated in the email, the expression and propagation of those views in the workplace by the use of the employer’s computer and email system is a different matter. Even outside the workplace, the recognition of freedom of expression by the Constitution and the common law is significantly constrained, as was explained by the Federal Court (Bromberg J) in Eatock v Bolt 33: 

“[236] The non-absolute and qualified nature of the implied freedom of political communication has been expressly stated by the High Court on many occasions. That freedom is not absolute; “It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution”: Lange at 561. There are many examples of the High Court finding that laws which intrude upon free political discourse are nevertheless constitutionally valid because those laws reasonably serve a countervailing public purpose: see Levy v State of Victoria & Ors [1997] HCA 31; (1997) 189 CLR 579, Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302, Theophanous v Herald& Weekly Times [1994] HCA 46; (1994) 182 CLR 104, Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 and Lange. See also Chesterman M, Freedom of Speech in Australian Law at 25-26.

[237] In the United States and in relation to the First Amendment, the content of and the extent of the restriction on freedom of expression is more limited than in Australia. However, European and Australian approaches are based on different traditions including a greater deference to political authority. That the Australian constitutional and legal context in relation to freedom of expression is different to that of the United States, has been stated a number of times by the High Court: see Coleman at [188] (Gummow and Hayne JJ); Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [113]- [114] (Kirby J); Theophanous 133-134 (Mason CJ, Toohey & Gaudron JJ); Lenah Game Meats (at [201]-[202] (Kirby J). That “not too much can be taken from the American jurisprudence” was also recognised by Allsop J in Toben at [148].

[238] The right of freedom of expression at common law is, by definition, qualified by those exceptions otherwise provided by law. The law of defamation imposes significant limitations on freedom of expression. Other laws imposing limitations include laws dealing with blasphemy, contempt of court and of Parliament, confidential information, the torts of negligent misstatement, deceit and injurious falsehood. Further, a wide range of legislative provisions dealing with obscenity, public order, copyright, censorship and consumer protection place restrictions on the exercise of the right to freedom of expression. These laws recognise that there are legitimate countervailing interests which require the imposition of limitations upon freedom of expression.”

[26] One of the relevant constraints upon freedom of expression which operates in the State of Queensland is s.124A of the Anti-Discrimination Act 1991 (Qld), which makes religious vilification by any public act unlawful (subject to some limited exceptions). 34 “Public act” is given a broad definition in s.4A of the Anti-Discrimination Act. We note that it has been held that it is arguable that an email sent to a large number of persons is a public act.35

[27] In the employment context, the express terms of the employment contract, employer policies incorporated into or authorised by the employment contract, and the employer’s lawful and reasonable directions may also operate to impose significant constraints upon an employee’s freedom of expression. It is not necessary in this case to explore the outer limits of the extent to which an employer can place limits on the freedom of expression of the employee. It is sufficient to state two propositions: first, that it is well established that it is lawful and reasonable for an employer to require an employee to comply with policies and directions which control the nature of communications over the employer’s electronic communications system 36, and second, that objectively inappropriate and offensive communications by an employee in the workplace may, depending on the circumstances, constitute a valid reason for dismissal.37

[28] In relation to the first of those two propositions, the evidence established that Thiess had a general “Workplace Conduct Policy” which among other things required employees to treat each other with dignity, courtesy and respect and specifically prohibited religious vilification, and also had a specific policy concerning appropriate usage of Thiess’s computer system entitled “Acceptable use of information systems”. Although the Deputy President found that there was no evidence that Mr Anderson had been specifically trained in the latter policy, it was open to her to find, as she did, that he could not have been oblivious to the primary aspects of that policy on the basis that his explanation that his computer did not display the pop-up-box reminder concerning the policy that was standard on the Thiess computer system was improbable. It was also open to the Deputy President to find, as she did, that it was improbable that Mr Anderson had no knowledge of Thiess’s general standards for conduct in the workplace. Mr Anderson conceded that he was aware that those general standards included a requirement to treat all employees with dignity, courtesy and respect. If Mr Anderson did not understand that his email of 17 June 2013 did not meet that requirement, Mr Nichols’ earlier warning to “Back off those muslim emails” (as described in Mr Anderson’s own evidence) should have made the position sufficiently clear to a plain-speaking man such as him. In relation to the second proposition, the email was, objectively speaking, clearly inappropriate and offensive for the reasons earlier discussed. It was apt to offend not only Muslims, but anyone who valued religious tolerance and rejected bigotry. It also, if publicly exposed, had the potential to damage Thiess’s reputation as a company with a multicultural workforce and international operations which extended to Indonesia, a Muslim-majority nation.

[29] The existence of a valid reason for dismissal does not of course disqualify an applicant from the remedy of reinstatement where the applicant’s dismissal has been found to be unfair. However in this case the Deputy President made the critical findings that Mr Anderson completely lacked any contrition for his conduct, refused to accept any culpability on his part, and lacked understanding of the offensive nature of the email or its implications for Thiess and its workforce. They were findings which were both reasonably open to be made and with which we agree. During the appeal hearing, Mr Anderson in answer to a question from the bench gave a cursory indication that he understood that his sending of the email was inappropriate (although most of what he subsequently said in his appeal submissions strongly suggested otherwise). But the transcript of the hearing before the Deputy President gives ample demonstration that he had no understanding of or contrition for his conduct in sending the email. Two extracts from the transcript are sufficient to illustrate the point, although many other examples may be found. In the first, Mr Anderson was cross-examined by Thiess concerning whether the email was inappropriate or offensive as follows:

“MS BRATTEY: And you do not think that that is inappropriate or would cause offence?---Not to any reasonable Muslim. That would cause offence to the people who are trying to do it and don't want to be found out and up till now one of the guys who was on an invalid pension in Sydney is now over there in Iraq butchering people.

Now, you said - - -?---That's what this was talking about and it's happening.

Mr Anderson, you sent that type of email on Thiess' system. Now, you've said to me earlier, you know, we need to treat people with dignity and respect?---Yes.

That email could cause offence?---To who? Who is that going to offend?

Well, Mr Anderson, it has caused offence because it was raised in Thiess?
---Well, if I said to you that there was a Catholic guy, a priest, a Catholic priest who was molesting children and I spoke out about it and you're a Catholic, are you offended by that?

Again, Mr Anderson, I asked you a question?---No, are you offended by it?” 38

[30] In the second, the Deputy President attempted to explore with Mr Anderson whether he had expressed any regret or contrition for his conduct:

“THE DEPUTY PRESIDENT: Did it occur to you in all of your taking offence at this, Mr Anderson, did it occur to you that this company deals with people of Muslim faith who might have taken offence at it or that other colleagues and people that you work with who may be of the Muslim faith could take offence at it? And did you ever express regret for the fact that you may have offended somebody with this email?

MR ANDERSON: I have yet to hear who I've offended.

THE DEPUTY PRESIDENT: Okay, but the answer to my question is no?

MR ANDERSON: I'm not - say it again. Ask it again.

THE DEPUTY PRESIDENT: Did you at any point say, "If I have offended someone I'm sorry. I should not have sent an offensive email"? Did you ever say that?

MR ANDERSON: No, I've never said that to anybody because nobody has asked me.

THE DEPUTY PRESIDENT: All right.

MR ANDERSON: Who should I say it to?

THE DEPUTY PRESIDENT: All right.

MR ANDERSON: And I certainly wouldn't say that you know I regret if it's a Muslim wants to cut my head off. I'm certainly not going to be you know apologising to him. He wants to kill me and my children and whoever else.

THE DEPUTY PRESIDENT: Mr Anderson, what I'm saying to you is if Thiess was of the view, which they expressed to you according to the notes of these discussions that they Muslim people working for them and Muslim customers and they work in Indonesia and that somebody could have taken offence at this email, did it occur to you to express regret for the fact you could have offended people rather than just simply saying, "Oh gee, if I'd known I was going to get the sack I wouldn't have sent it."

MR ANDERSON: If I had offended some Muslim who was a rational normal person of course I wouldn't want to offend them but I have no qualms whatever about offending someone who wants to cut my head off.” 39

[31] Mr Anderson’s persistent defence of the email (including the attachment) and his conduct in sending it was all the more remarkable since it became clear that, at the time he sent it, he had not even read the entirety of its contents. The “attitude” taken by Mr Anderson in exchanges such as the above was not to be overlooked on the basis that he was self-represented. This was not a matter of advocacy style, but rather raised the substantive question as to whether Mr Anderson had gained any insight into the implications of his behaviour in sending the email. Clearly he had not.

[32] The findings made by the Deputy President to which we have referred meant that it was a real possibility that, if reinstated, Mr Anderson might engage in similar conduct again. They provided a sound foundation for the conclusion that reinstatement would not be appropriate. There was no error in the Deputy President refusing to reinstate Mr Anderson for the reasons described.

[33] It follows that we do not accept that the Decision was erroneous on the basis of Mr Anderson’s propositions (1), (3)-(5) and (7)-(6) set out in paragraph [17] above.

Compensation

[34] Section 392(2) of the Act specifies a number of matters which must be taken into account in the assessment of compensation in respect of an unfair dismissal remedy application. One of those matters, set out in s.392(2)(c), is “the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”. This will usually require an estimation of how long the employee would have remained in the relevant employment but for the dismissal. 40 There will necessarily be a speculative element in such an assessment41: “[s]uch an assessment is often difficult, but it must be done”.42 The principles for the assessment of compensation established by this Commission and its statutory predecessors have also required a deduction, as a step in the process, for “contingencies” as a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.43 This requirement is referable to paragraphs (c) and (g) of s.392(2), and is usually applied in respect of prospective loss.44 The point in the assessment process at which any discount for contingencies is made may differ: in most cases the discount is considered after the remuneration the dismissed person would have received if they had not been dismissed has been assessed and the monies earned by them since termination had been deducted, but in some cases it may be appropriate to apply the contingency discount directly to the amount that is estimated would have been earned but for the dismissal before any further deduction is made.45

[35] The Deputy President’s assessment of compensation was, we consider, consistent with the requirements of s.392(2) and the principles to which we have referred. The Deputy President, as required by s.392(2)(c), estimated that Mr Anderson would have remained in employment for a further 12 months, and calculated his salary for such a further period. There was no deduction made for earnings since dismissal, since Mr Anderson had not obtained alternative employment. The Deputy President then made a 50% discount for contingencies to take into account the fact that Mr Anderson’s capacity to remain employed and earn his salary for a further 12 months may have been affected by an earlier dismissal for another reason. The possibility of dismissal for further misconduct was based upon Mr Anderson’s lack of contrition for his conduct, his attitude at the hearing, and his refusal to accept any responsibility for his conduct. In essence, this amounted to a conclusion that because of these matters, there was a real possibility (as earlier stated) that if he had not been dismissed Mr Anderson would have engaged in similar conduct again and have been dismissed on that occasion. Notwithstanding Mr Anderson’s good prior work record, we consider that conclusion was one which it was reasonably open to the Deputy President to reach. This was not a case of Mr Anderson being “punished” for something he might do in the future, but an appropriate step in the estimation the Deputy President was required to make as to what Mr Anderson’s earnings would have been if he had not been dismissed.

[36] Section 392(3) provides that in assessing compensation the Commission, if it is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, must reduce the amount it would otherwise order under s.392(1) by an appropriate amount on account of the misconduct. Having found that there was a valid reason for Mr Anderson’s dismissal based upon his misconduct in sending the email 46, it was clearly the case, as the Deputy President found47, that this misconduct contributed to (indeed caused) Thiess’s decision to dismiss Mr Anderson. The Deputy President was consequently required by s.392(3) to reduce the amount of compensation which she would otherwise have ordered by an appropriate amount. This involved the exercise of a broad discretion. We consider that the Deputy President’s decision to reduce the amount by a further 50%48 was reasonably open to her. There was therefore no error in the Deputy President’s assessment of the compensation to be paid by Thiess for Mr Anderson’s unfair dismissal.

Conclusion

[37] The Decision was not, for the reasons we have set out, attended by any appellable error. The appeal does not otherwise raise any issue of general controversy requiring resolution. We therefore do not consider that the grant of permission to appeal would be in the public interest, and permission to appeal must therefore be refused in accordance with s.400(1) of the Act.

PRESIDENT

Appearances:

The Appellant: Mr R. Anderson on his own behalf.

The Respondent: Ms C. Brattey on behalf of Thiess Pty Ltd.

Hearing details:

Brisbane

13 January 2015

 1   [2014] FWC 6568

 2   PR555664

 3   Appellant’s Outline of Submissions, paragraph 5

 4   Appellant’s Outline of Submissions, paragraph 8

 5   Appellant’s Outline of Submissions, paragraph 7

 6   Decision at [28]-[32]

 7   Decision at [34]

 8   Decision at [35]

 9   Decision at [36]

 10   Decision at [39]-[41]

 11   Decision at [46]

 12   Decision at [46]

 13   Decision at [47]

 14   Decision at [48]-[49]

 15   Decision at [51]

 16   Decision at [64]

 17   Decision at [65]

 18   Decision at [65]

 19   Decision at [66]-[68]

 20   Decision at [69]-[71]

 21   Decision at [72]-[73]

 22   Decision at [74]

 23   Decision at [75]

 24   Decision at [75]

 25   Decision at [75]

 26   (1995) 185 CLR 410 at 465-8

 27   Decision at [13] and footnote 9

 28   [2014] FWCFB 7198

 29   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] per Gleeson CJ, Gaudron and Hayne JJ

 30   Ibid at [21]

 31   [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

 32   See the definition of “vilify” in the Macquarie Concise Dictionary, 5th edition.

 33   [2011] FCA 1103

 34   Section 124A of the Anti-Discrimination Act 1991 (Qld) provides:

124A Vilification on grounds of race, religion, sexuality or gender identity unlawful

(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

(2) Subsection (1) does not make unlawful—

(a) the publication of a fair report of a public act mentioned in subsection (1); or

(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.

 35   West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240 at [27]-[32]

 36   Wake v Queensland Rail [2006] AIRC 663, PR974391 at [2]-[3] and [21]-[22]; B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [36]-[39]

 37   Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWAFB 7267 at [11]-[20]; Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204 [137]-[138]; Dean Leadbetter v Qantas Airways Limited [2009] AIRC 131 At [74]-[78]; Stephen Viney v M & V Brown Pty Ltd [1998] AIRC 569, Print P9930

 38   Transcript U2013/11148, 25 June 2014, PN258-PN263

 39   Transcript U2013/11148, 25 June 2014, PN745-PN756

 40   Ellawala v Australian Postal Corporation [2000] AIRC 1151, Print S5109 at [34]

 41   Sprigg  v Paul’s Licensed Festival Supermarket [1998] AIRC 989, Print R0235 at [37]

 42   Ellawala at [33]

 43   Ellawala at [36]

 44   Slifka v JW Sanders Pty Limited (1995) 67 IR 316 at 328

 45   Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431 at [52]

 46   See Decision at [54]

 47   See Decision at [88]

 48   See Decision at [88]

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