AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision
PR915678 issued by Commissioner Hodder on 25 March 2002
and order PR915679 issued by Commissioner Hodder on 21 March 2002
ALH Group Pty Ltd
trading as the Royal Exchange Hotel
(C2002/1811)
s.170CE application for relief in respect of termination of employment
Andrew Mulhall
and
ALH Group Pty Ltd
trading as the Royal Exchange Hotel
(U2001/3755)
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT O'CALLAGHAN |
|
COMMISSIONER REDMOND |
MELBOURNE, 21 JUNE 2002 |
Alleged unlawful termination of employment - appeal - reasons under appeal must be read as a whole and considered fairly - not every lapse of expression or phrasing amounts to an error warranting correction on appeal - duty on a party to make a full and frank disclosure to the Commission of all matters relevant to the determination of the application before the Commission - failure to disclose a material change in the applicant's circumstances - where there is a considerable delay between the hearing and the decision it would be prudent to provide the parties with a further opportunity to update the Commission on any material change in circumstances - failure to have regard to evidence relating to the appropriateness of reinstatement - error in the exercise of discretion - appeal upheld in part - remitted to member at first instance to determine the question of remedy.
DECISION
Introduction
[1] This decision deals with an appeal by ALH Group Pty Ltd trading as the Royal Exchange Hotel (the appellant) under s.45 of the Workplace Relations Act 1996 (the WR Act) against the decision and order made by Commissioner Hodder arising out of an application for relief filed by Mr Andrew Mulhall in respect of the termination of his employment. Mr Mulhall was a former employee of the appellant.
[2] In the decision subject to appeal [Print PR915678] the Commissioner found that the termination of Mr Mulhall's employment was "harsh, unjust or unreasonable". The Commissioner issued an order directing the appellant to reinstate Mr Mulhall and pay him an amount equivalent to the remuneration that Mr Mulhall lost as a consequence of the termination of his employment, and that his continuity of employment be maintained.
[3] The order subject to appeal [Print PR915679] is in the following terms:
"FINDING
1. I find that the termination of the applicant's employment was harsh, unjust or unreasonable.
ORDER
2. THE COMMISSION ORDERS:
2.1 That the respondent reinstates the applicant to the position in which he was employed immediately before the termination of his employment as and from Monday, 25 March 2002.
2.2 That the respondent maintains the continuity of the applicant's employment from the date of the termination of his employment until the date of his reinstatement with it.
2.3 That the respondent pays to the applicant an amount equivalent to the remuneration that the applicant lost as a consequence of the termination of his employment by way of compensation from 18 May 2001 up to the date of his reinstatement with it.
2.4 That the compensation for lost remuneration referred to in paragraph 2.3 above be paid by the respondent to the applicant within fourteen days of the date of this order.
2.5 That the applicant's representative provide calculations of the lost remuneration within seven days of the date of this order to the respondent's representative with a copy of same to this Commission. In the event that agreement cannot be reached between the parties within ten days from the date of this order, then upon written advice from either party, the matter shall be relisted for hearing at which time the parties will have the opportunity to make their respective submissions."
Background Facts
[4] Mr Mulhall commenced his employment at the Royal Exchange Hotel (the Hotel) on 4 March 1999. He was initially employed as a casual `General Purpose Utility', commonly known as a `glassie'. This involved collecting glasses from tables and generally keeping his allocated area clean. Some months after he had commenced employment Mr Mulhall was approached by his employer and asked whether he would be willing to obtain a security license and work as a `Crowd Controller'. Mr Mulhall had previously worked as a crowd controller at a number of venues. After giving the matter some thought Mr Mulhall agreed. He subsequently completed an accredited `Security Officer/Crowd Controller' course and obtained a security license.
[5] After obtaining his security license Mr Mulhall was appointed as a casual crowd controller on 8 August 2000 and worked about five shifts per week in that capacity.
[6] In September 2000 Mr Mulhall was injured in the course of performing his duties. While he and a fellow crowd controller were attempting to remove two patrons from the premises, one of the patrons struck Mr Mulhall in the face with a glass. In hotel parlance an incident of this type is referred to as "being glassed". Mr Mulhall was seriously injured, he required 40 stitches to his face and was absent from work for about a month.
[7] In respect of Mr Mulhall's work history the only other matter to which we wish to refer relates to an incident which took place on 8 March 2001. Mr Mulhall's recollection of the incident is set out at paragraphs 30 to 33 of his witness statement, Exhibit M2:
"30. . . . A couple of men had been asked to leave the premises and they refused. A scuffle broke out between these two men and Troy O'Neill and Stuart Campbell, both of whom were Crowd Controllers employed by a contract security provider but working at the RE.
31. There were a number of punches thrown in the exchange. Those thrown by Crowd Controllers were done in their own defence. I was called to assist and the offending patrons were escorted to the car park. Mr. O'Neill asked Gregg Funston, the Assistant Manager, to ring the police and have these patrons removed from the car park. Mr. Funston refused this request saying it was not necessary.
32. We were required to keep an eye on the two patrons in the car park to ensure they didn't attempt to re-enter the venue. The evicted patrons continued to abuse myself and the other Crowd Controllers. They were challenging the Crowd Controllers to fight them. After ten minutes or so of this continuous abuse, I advised the two patrons that we ceased work at 12.30am if they were that interested.
33. At no stage did I feel threatened by the two patrons in the car park and my comments were merely meant to suggest that this was the case. As is normally the case with drunken patrons, their ambition clearly outweighed their ability regarding the possibility of fighting myself and four or five other Crowd Controllers."
[8] On the following Tuesday, 13 March 2001, Mr Mulhall met with Mr Morgan (the Venue Manager) and Mr Funston (the Senior Assistant Manager) about the incident. During the course of that meeting Mr Mulhall signed a "final letter of warning", indicating that he had read and understood its contents. The letter appears at Appendix 2 to Mr Mulhall's witness statement, which was marked as Exhibit M2 in the proceedings at first instance, and is in the following terms:
"Dear Andrew,
This is a final letter of warning with regards to your breach in the venues' code of conduct. On Thursday 8th March 2001, your conduct inflamed a situation through:
· Moving towards the rear of the carpark to fight an evicted male patron who was taunting you. (physical aggression)
This conduct is seriously unsatisfactory. Your apology made on the night in respect to these issues are duly noted, however I do not regard this as reasonable justification.
Noticeable improvement must be seen immediately in your work performance in the following areas:
· The ability to refrain from responding to verbal taunts from patrons
· Only use physical aggression where a patron or staff member are at risk.
I would like to offer you counselling and or training at this point to help you obtain the standards expected in your position as Crowd Controller at the Royal Exchange Hotel.
Unless your work performance improves significantly with regards to the manner with which you hold yourself in the business I shall have no option but to terminate your employment."
[9] On 17 May 2001 Mr Mulhall was involved in an altercation with a hotel patron which led to the termination of his employment. What took place during this altercation was central to the proceedings at first instance.
[10] While there is conflicting evidence in respect of some aspects of the incident, a number of points are not contested.
[11] On the night in question a glass collector employed in the beer garden approached Mr Mulhall and advised him that a patron (the Patron) was becoming a problem. The Patron was apparently trying to trip glass collectors as they went about their work and was generally annoying staff and other patrons.1 Mr Mulhall called Mr James on the two way radio and advised him that he was going to evict a patron. Mr James said that he was on his way.2
[12] Mr Mulhall approached the Patron and asked to speak with him. Consistent with standard procedure Mr Mulhall asked the Patron to accompany him to a quieter part of the hotel. The Patron accompanied Mr Mulhall to the door of the Hotel where another Crowd Controller, Mr Brad Bubb, was standing. Mr Mulhall then said words to the following effect: "unfortunately sir management consider you to be too intoxicated to stay on the premises and I'm going to have to ask you to leave."3
[13] Consistent with standard procedure Mr Mulhall (together with Mr Bubb) remained at the entrance to the Hotel to stop the Patron from re-entering the premises.
[14] At this point the Patron became abusive. The Patron took his jacket off and indicated that he wanted to fight Mr Mulhall, saying "come on, have a go". The Patron continued to direct verbal abuse at Mr Mulhall, saying "Who the fuck are you? I'm just up from Sydney. I've done time in Sydney. I've killed a cunt like you."4
[15] At some point Mr James appeared and witnessed what took place. There is no dispute that the Patron was verbally abusive and that this abuse was primarily directed at Mr Mulhall.5 It is agreed that the Patron was about 1½ to 2 metres away from Mr Mulhall when he flicked a lit cigarette at Mr Mulhall. There is a conflict about what took place next.
[16] Mr Mulhall's recollection of the rest of the incident is as follows:
1. The cigarette hit him on the face and then struck Mr Bubb on the chest.6
2. The Patron was "advancing on" Mr Mulhall at the time he flicked the cigarette7 and Mr Mulhall felt that he was in immediate danger.8 When cross-examined about the basis for Mr Mulhall's concern he said:
"Because when a bloke walks out and challenges you to fight for several minutes, takes off his jacket, shows you all these prison stickers, tells you he's just got out of gaol from Sydney, he's going to do all sorts of unpleasant things to you, then flicks a cigarette in your face and steps towards you, call me crazy but, yes, I took that as very intimidating. I felt very threatened, yes."9
4. He threw four punches, three of which connected and the Patron fell to the ground. 10
5. Mr Bubb said "Mully, go back inside", which he did.11
6. Mr Mulhall went upstairs where he observed that the Patron had regained his footing and was verbally abusing Messrs Bubb and James. There was no apparent injury to the Patron.12
[17] An incident report which was completed by Mr Mulhall later that evening and was tendered in the proceedings at first instance was marked as Exhibit RE2. It states:
"Approx Time |
Crowd Controller Involved |
Details of Persons Injured or Removed from Premises |
9.50 |
39, 05, 020 |
One male asked to leave premises by CC39 due to intoxication. Male was verbally abusive towards 39, continually saying to him "Step out here cunt!. Come up, have a go". Once outside hotel's front gate 39 declined male's offer. Man then attempted to attack 39, throwing a cigarette at his face & rushing towards him. 39 prevented man from re-entering hotel. Police were called for, man continued to harass CCs verbally, rushed into bottle shop, was removed by 05 and 020, & then maintained his aggression before finally leaving telling CCs: "I'm coming back to put a bullet in your heads!". Police arrived, man was no longer at front of hotel. End of incident. Insufficient ID 8 Intoxication 3" |
[18] Mr Mulhall is the CC39 referred to in this report.13
[19] Mr Mulhall was cross-examined in respect of the inconsistency between his evidence and the incident report. In the report he said that the Patron was "rushing towards him" whereas in his oral evidence he said that the Patron "stepped" or `advanced" towards him as he flicked the cigarette.14
[20] The incident in question was also witnessed by Messrs Noonan and James. Mr Noonan's recollection of the incident is set out at paragraphs 5 to 10 of his witness statement, which was marked as Exhibit REH6 in the proceedings below:
"5. Once the patron was removed from the premises I walked through the Public Bar door and stood outside on the footpath to observe what was going on. The patron was at the front of the Hotel verbally abusing the Crowd Controllers. His abuse was mainly directed at Andrew.
6. The patron was smoking a cigarette and while still verbally abusing the Crowd Controllers he flicked his cigarette at Andrew. Andrew then moved towards the patron and punched him four to six times with clenched fists to the head and upper body. The patron fell to the ground. At this time Richard James, Head of Security, moved in and grabbed Andrew by the arm and pulled him away. Richard told Andrew to go out the back.
7. I then walked away towards the Sports Bar to gather my thoughts on what had just happened and what I was going to do. I could still hear the patron verbally abusing the Crowd Controllers.
8. I arranged for the police to be called as the patron was causing a disturbance at the front of the Hotel. The patron left the front of the Hotel before the police arrived.
9. Later I spoke to Richard James about what had happened. I told him that I was concerned about what I had just seen and that I would be speaking to Andrew at the end of the shift.
10. At approximately 12:30 am I spoke to Andrew. I told him that I saw the incident. I stated that I saw the patron flick a cigarette at him and that I had then seen him assault the patron. I told him he should have just held the patron by using the correct holds and put him to the ground but that I couldn't back him on this issue. I then told him that he would be suspended from duties with pay until I spoke to the other Managers. Andrew just nodded and walked away."
[21] A "crisis report" is attached to Mr Noonan's statement. It is signed by Mr Noonan and says:
"CRISIS REPORT ATTACHMENT
18/05/01
"_ Male patron was removed from Beer Garden By CC39 (Andrew Mulhall) Due to intoxication. Removed via Beer Garden Gate.
· Male patron was at the front of the hotel verbally abusing crowd controllers. Abuse was directed at CC39
· Patron was smoking a cigarette at this time and while verbally abusing CC's he flicked his cigarette at CC39. CC39 then proceeded to assault the male patron by using excessive force to the point of Gross Misconduct where CC05 (Richard James) had to move in and restain [sic] CC39 from causing any further damage to patron.
· At this time I walked away towards the Sports bar to gather my thoughts on what had just happened and what I was going to do.
· The male patron continued to verbal [sic] abusive CC's (CC39 had left the area of concern) with the male patron causing a disturbance at the front of the hotel, I had Rebecca Perry (Management Trainee) contact the police. Patron left the front of the hotel before Police arrived.
· After I had spoken to the police I spoke to CC05 (Richard James Head of Security) and spoke about what had just happened. I expressed my concern of what I had just seen and that i would be speaking to CC39 at the end of the shift.
· At Approx. 12.30am I spoke to CC39 and expressed my concerns of what he had done and that I would be suspending him from duties with pay until I spoke to Diana Teitzel (Human Resources Manager) and Pat Morgan (Nominee & Area Manager)
· After this discussion it was decided that the incident was serious for dismissal, Gross Misconduct.
· The dismissal was conducted by Diana Teitzel (Human Resource Manager) and Troy Noonan (Assistant Manager).
[22] Mr James' recollection of the incident is set out at paragraphs 10 to 18 of his witness statement, Exhibit REH7:
"10. During the evening of 17 May 2001 I was informed via my two-way radio that an eviction was about to occur in the Beer Garden due to intoxication. I arrived in the Beer Garden to see a male patron being escorted from the premises by Andrew Mulhall. Andrew was walking beside the patron towards the front gate. There was no physical contact between the patron and Andrew at this time.
11. Once outside, the patron stood on the footpath of High Street and began to verbally abuse the Crowd Controllers who were at the front gate. I was standing on the footpath approximately 4 metres from the patron. The patron's abuse was primarily directed at Andrew. The patron was swearing and being verbally aggressive towards Andrew who did not respond to these verbal taunts.
12. The patron was smoking a cigarette at this stage. The patron then flicked the lit cigarette at Andrew from a distance of approximately two metres. The cigarette hit Andrew in the chest. Andrew then stepped toward the patron and struck him approximately three or four times with clenched fists to the head and face. The patron was obviously intoxicated and had no chance to defend himself. He fell to the ground.
13. Andrew continued to stand over the patron in a threatening manner with his fists still clenched. I approached Andrew and put my hand on his arm and told him to stop. I then instructed him to go back inside the premises, which he did.
14. The patron then got to his feet and continued to verbally abuse myself and the other Crowd Controllers. The patron appeared dazed and had marks on his face.
15. The patron then attempted to enter an adjacent bottle shop. I physically restrained the patron and removed him from the bottle shop to the footpath area. The patron continued to verbally abuse myself and the other Crowd Controllers until he left the scene approximately 10 minutes later.
16. I then spoke to Andrew to make sure he was all right. I said to him that the incident may have looked bad and that several other patrons and Troy Noonan, Assistant Manager, had observed it. Andrew agreed that it looked bad and I told him that we would have to talk more about it after work.
17. Approximately ten minutes after this conversation I was approached by Troy Noonan. Troy stated to me that he was very concerned about the incident and that he would be speaking to Andrew at the end of the night.
18. After closing the Hotel at about 12:45 am Troy spoke to me again and told me he had spoken to Andrew and that he had suspended him from work until he had a meeting with the other Managers."
[23] Messrs Noonan and James were cross-examined about their recollection of the incident on 17 May 2001. In the course of his evidence Mr Mulhall disputed the version of events described by Messrs Noonan and James.15 Before turning to the issues in dispute it is convenient to indicate where each of the witnesses was standing when the incident took place.
[24] Mr Mulhall was standing at the gate to the beer garden, positioned so as to prevent the Patron from re-entering the premises.16 Another crowd controller, Mr Brad Bubb, stood next to Mr Mulhall, to his left.17
[25] The Patron was standing on the footpath facing Messrs Mulhall and Bubb from a distance of about 1½ to 2 metres.
[26] Mr James, the Hotel's head of security, stood on the footpath facing Mr Mulhall and to his left, a "couple of metres" away.18
[27] Mr Noonan, the Assistant Manager of the Hotel, stood behind and to the left of Mr James, about five metres away from Mr Mulhall.19
[28] There are a number of conflicts in the evidence of Messrs Mulhall, Noonan and James about the incident on 17 May 2001. These are set out below.
Description of the Patron
[29] Mr Mulhall described the Patron as "a fairly big guy who had just stated that he was out of prison" and was "heavily tattooed".20
[30] Mr Noonan had only a vague recollection of what the Patron looked like.21 He described him as "quite tall and fairly thin",22 but was unsure of whether he was heavily tattooed or not.23
[31] Mr James described the Patron as "scruffy looking" with longish hair and a three day growth. Mr James also observed that, compared to him, the Patron was "not a particularly large man".24
Nature of the threat
[32] Mr Mulhall said that the Patron was "very intimidating" and that he felt "very threatened" by his behaviour.25 He had assumed that when the Patron advanced towards him it was with the intention of striking him.26
[33] According to Mr James' evidence the Patron did not make any threats of physical violence.27 Similarly Mr Noonan said that no physical threat was made.28
Did the cigarette hit Mr Mulhall?
[34] Mr Mulhall's evidence was that the cigarette hit him in the face and then hit Mr Bubb in the chest.29
[35] According to Mr Noonan the cigarette did not strike Mr Mulhall at all, rather it went over his shoulder.30
[36] Mr James' recollection was that the cigarette hit Mr Mulhall on the chest.31When asked if it might have hit him in the face Mr James replied "I don't think it hit him in the face."32
Did the Patron move towards Mr Mulhall?
[37] Mr Mulhall's evidence was that the Patron "stepped" or "advanced towards" him as the cigarette was flicked.33 He denied that in fact it was him who closed the gap with the Patron.34
[38] In his statement Mr James said that when the Patron flicked the cigarette at Mr Mulhall "Andrew (i.e. Mr Mulhall) then stepped towards the patron and struck him . . ."35 Mr Noonan's evidence is in similar terms.36 Both said that the Patron did not move towards Mr Mulhall.
Did Mr James intervene?
[39] In his evidence Mr James says that after Mr Mulhall had struck the Patron and the Patron had fallen to the ground he (Mr James) approached Mr Mulhall and "put my hand on his arm and told him to stop. I then instructed him to go back inside the premises, which he did."37
[40] Mr Noonan's recollection of this part of the incident is set out at paragraph 6 of his statement, Exhibit REH6 in which he says:
"The patron fell to the ground. At this time Richard James, Head of Security, moved in and grabbed Andrew by the arm and pulled him away. Richard told Andrew to go out the back."
[41] Mr Mulhall's evidence was that after he struck the Patron, the other crowd controller, Mr Bubb said "Mully, go back inside", which he did.38 According to Mr Mulhall no one put their hand on his arm and he specifically rejected Messrs James and Noonan's version of events.39
[42] For the purpose of this decision it is unnecessary to set out what took place following the incident. It is sufficient to note that Mr Mulhall's employment was terminated. The letter terminating Mr Mulhall's employment is signed by a Ms Dianna Teitzel, the appellant's Human Resources Manager and is in the following terms:
"Dear Andrew
I am writing to confirm that your employment with the Royal Exchange Hotel has been terminated effective 18 May 2001.
Your actions displayed on 17 May 2001 are deemed as gross misconduct.
Your physical assault of a patron has not only breached the ALH and Royal Exchange Hotel's Code of Conduct but you have seriously risked the reputation of our Venue and the Company.
As a result, your employment has been terminated.
You will be paid for the shifts you have worked up to, and including, 17 May 2001.
As with previous cases of staff dismissal you are prohibited from entering the Royal Exchange Hotel and participating in any staff related activities until further notice."40
Decision at first instance
[43] Mr Mulhall filed his application for relief in respect of the termination of his employment, pursuant to s.170CE of the Workplace Relations Act 1996 (Cth) (the WR Act). The application was heard by Commissioner Hodder on 5 September 2001. on 21 March 2002 the Commissioner issued a decision in transcript in which he concluded that the termination of Mr Mulhall's employment was "harsh, unjust or unreasonable". The Commissioner ordered that the appellant must reinstate Mr Mulhall, effective 25 March 2002, maintain the continuity of his employment and pay him and amount equivalent to his lost remuneration. On 25 March 2002 the Commissioner handed down his reasons for decision.
[44] The principal findings in the decision at first instance41 in relation to whether the termination of Mr Mulhall's employment was "harsh, unjust or unreasonable" are set out below:
_ the Patron verbally abused the applicant and threatened him with physical violence;42
_ at the time the Patron flicked the lit cigarette at the applicant the Patron made a "forward bodily movement towards the applicant. This movement may not necessarily have even involved a step towards the applicant but it was sufficient to trigger a spontaneous defence reaction by the applicant";43
_ the applicant felt threatened and genuinely feared for his safety, he struck the Patron in an effort to remove that threat.44 The applicant had reasonable grounds to be apprehensive about his physical safety;45
_ the applicant's actions were those of a person spontaneously responding to what he perceived to be threats of physical violence and taking steps to protect himself46 and he was entitled to act in the manner he did;47
_ due to the previous glassing incident in September 2000 the applicant "would undoubtedly have been in a higher state of alert, when compared to the other crowd controllers, in his dealings with troublesome or aggressive patrons who required eviction";48
_ the applicant was denied a "fair go all round";49
_ the respondent did not give any appropriate consideration to the applicant's circumstances before making the decision to terminate his employment;50
_ the decision to terminate the applicant's employment was made before he was provided with an opportunity to respond;51
_ there was no valid reason for the termination of the applicant's employment;52
_ the actions of the respondent in terminating the applicant's employment were disproportionate to the circumstances of the case;53 and
_ pursuant to s.170CG(3)(e) it was relevant to note that the applicant had sustained a serious injury as a result of being glassed in September 2000 and "the applicant returned to his workplace as a crowd controller following the attack, without having had the benefit of counselling, into an environment where the potential for exactly the same type of attack could occur again."54
[45] The Commissioner concluded that the termination of Mr Mulhall's employment was harsh, unjust or unreasonable. He then turned to the question of remedy and made the following findings:
_ orders reappointing the applicant to his former position with continuity of employment and providing for the payment of an amount in respect of lost remuneration would not affect the viability of the respondent's business;55
_ but for the termination of his employment the applicant would have remained employed by the Hotel for at least another 52 weeks;56
_ the loss of remuneration suffered by the applicant as a result of the termination of his employment favoured the making of orders in respect of reinstatement, continuity of employment and lost remuneration;57
_ since the termination of his employment the applicant has met "serious efforts" to mitigate his loss by seeking alternative employment.58
Nature of the Appeal
[46] The appellate jurisdiction conferred on us by s.45(1)(b) in relation to an appeal concerning an order arising from the arbitration of an application under s.170CE is conditioned by s.170JF(1) which limits the grounds of an appeal. The only ground is that the member of the Commission who conducted the arbitration was in error in deciding to make an order. That can be an error of fact or an error of law.59
[47] The nature of an appeal under s.45 of the WR Act was the subject of consideration by the High Court of Australia most recently in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission60 (Coal & Allied). Gleeson CJ, Gaudron and Hayne JJ, in a joint judgment, said:
"Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45." 61
[48] The types of error that may constitute grounds for review of a discretionary decision of the kind here under consideration were re-stated in Coal & Allied in the following way:
"Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
`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. [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ].' "62
Role of the Commission in Unfair Dismissal Cases
[49] Section 170CG(3) of the Act provides:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."63
[50] It is clear from both the language and structure of s.170CG(3), and the statutory context in which it appears, that the section requires the Commission to consider each of the matters referred to in paragraphs 170CG(3)(a) to (e). Not only must the matters be considered but the words "have regard to" signify that each must be treated as a matter of significance in the decision making process. But the Commission is only required to have consideration to such matters in so far as they have application64 or are relevant to the factual circumstances of the particular case.65
[51] Each of the paragraphs (a) to (d) of s.170CG(3) requires the Commission to have regard to "whether" a circumstance existed. Whether it existed must then be taken into account, considered and given due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. A consequence of this construction of s.170CG(3) is that the Commission is obliged to make a finding in respect of each of the circumstances specified in ss.170CG(3)(a) to (d) in so far as each of these paragraphs is relevant to the factual circumstances of a particular case. In Chubb Security Australia Pty Ltd v John Thomas a Full Bench of the Commission expressed this obligation in the following way:
" . . . subject to the qualifications we express in the next paragraph, the Commission, in our view, is not able to have regard to the circumstances specified in ss.170CG(3)(a) to (d) without making a finding with respect to each of them.
We qualify what we have said in the previous paragraph in two respects:
(1) The circumstance in s.170CG(3)(a) contains three considerations:
· the capacity of the employee, or
· the conduct of the employee, or
· the operational requirements of the employer's undertaking, establishment or service.
The need to make a finding under s.170CG(3)(a) will only be in respect of such of these three considerations as is relevant. (In the present case, for instance, the relevant consideration is whether there was a valid reason for the termination of Mr Thomas related to his conduct.)
(2) The circumstance in s.170CG(3)(d) is only relevant `if the termination related to unsatisfactory performance of the employee' (opening words of s.170CG(3)(d)).
Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to `that reason'; that is `a valid reason', being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c)."66
[52] In circumstances where the termination related to the conduct of the employee - as is the case in relation to Mr Mulhall - the Commission must make findings in respect of the following matters:
· whether there was a valid reason for the termination (s.170CG(3)(a));
· whether the employee was notified of that reason (s.170CG(3)(b)); and
· whether the employee was given an opportunity to respond to that reason (s.170CG(3)(c)).
[53] We now turn to deal with each of the particular points advanced by the appellant.
Submissions on Appeal
[54] We have approached the appeal grounds in the same order as they appeared on the appellant's written submission.
Ground 3
[55] At paragraph 76 of his decision the Commissioner found that:
". . . at the time the patron flicked the lit cigarette at the applicant the patron made a forward bodily movement towards the applicant. This movement may not necessarily have even involved a step towards the applicant but it was sufficient to trigger a spontaneous defence reaction by the applicant."
[56] The appellant contends that there is no evidence to support a finding that the Patron made a "forward bodily movement" (which may not necessarily have even involved a step) "towards the applicant". The essence of the appellant's point is that no witness used the expression "forward bodily movement".
[57] We have already referred to the conflict in the evidence between Messrs Mulhall, James and Noonan on this issue. We accept that the expression used by the Commissioner was not used by any of the witnesses to describe what took place. But is seems to us that the Commissioner was simply seeking to reconcile the conflict in the evidence on this point. Further we are not able to discern any material difference between Mr Mulhall's evidence to the effect that the Patron "advanced towards" him and the Commissioner's finding of a "forward bodily movement" which may not have involved a step.
[58] We do not think that the Commissioner erred in the manner suggested by the appellant.
Grounds 4 - 11
[59] These appeal grounds deal with a number of findings made by the Commissioner in respect of an incident in September 2000 in which Mr Mulhall was "glassed" (see paragraph 6 of this decision). Mr Mulhall deals with this issue at paragraphs 22 to 24 of his witness statement67 as follows:
"22. Mr. Campbell and myself approached two men who were abusive towards the other staff. We requested their removal and they refused. It then became apparent that we had to physically remove these two patrons and I placed one of them in an arm lock to remove him from the premises. Mr. Campbell scuffled with the other patron in attempting to remove him. The patron that was being attended to by Mr. Campbell grabbed a glass that was on a table and hit me in the face with it.
23. Being hit in the face resulted in 40 stitches (internal and external) and an artery in my face was severed. I was off work for a month. That matter is still going through the court system and I understand that the patron who hit me with the glass has been charged with grievous bodily harm.
24. After the month off work I returned to the RE and had no difficulties in performing my duties. I received no warning for my conduct in this matter. There was no suggestion at this stage that I receive any counselling concerning the injury that I sustained."
[60] Mr Morgan, an Area Manager employed by the ALH Group Pty Ltd, was cross-examined about the impact of being "glassed":
"PN608 Mr Martin: Have you ever been glassed?
Mr Morgan: No.
PN609 Mr Martin: Are you aware that this Mr Mulhall had been glassed?
Mr Morgan: Yes.
PN610 Mr Martin: Do you think that that may have had an impact on the way in which he viewed people, from that point on?
Mr Morgan: Probably."
[61] The Commissioner makes reference to the "glassing incident" in various parts of his decision. The appellant contends that the significance of the "glassing incident", as considered by the Commissioner, is that it led to his ultimate finding that the termination of Mr Mulhall's employment was "harsh, unjust or unreasonable". In this regard the appellant refers to paragraph 100 of the decision subject to appeal where the Commissioner says:
"[100] This failure by the respondent to exercise its duty of care towards the applicant, aligned with the lack of regard it appeared to exercise towards the ongoing emotional state of the applicant, manifested itself in the occurrences of the 17 May 2001 incident. I find that the applicant's conduct on 17 May 2001 was used as justification to terminate his employment and that such termination was harsh, unjust or unreasonable."
[62] In relation to the proposition that the effects of the "glassing incident" and its aftermath "manifested itself" in the incident of 17 May 2001, the appellant argues that this was not the evidentiary case put on behalf of the applicant at first instance. Indeed there was no evidence adduced from Mr Mulhall about any connection between the "glassing incident" and the incident with the Patron on 17 May 2001. The appellant submits that but for the Commissioner's findings in relation to the ongoing impact of the "glassing incident" on Mr Mulhall, the Commissioner would not have concluded that the termination was "harsh, unjust or unreasonable". On this basis it is said that the Commissioner's findings about the "glassing incident" constituted an error warranting correction on appeal. In this regard the appellant made reference to Curragh Queensland Mining Ltd v Daniel (Curragh), and in particular to the following extract from the judgment of Black CJ:
"A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."68
[63] As the appellant notes, the court in Curragh was dealing with the scope of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). We are engaged on a different task. But it is not necessary for us to comment on the applicability of Black CJ's observations to the task before us. Even if we assume that they do apply, that does not assist the appellant. This is because we are not persuaded that but for the Commissioner's conclusions on the "glassing incident" he would not have reached the conclusion he did. In our view the Commissioner's findings in respect of the glassing incident were not critical to his conclusion.
[64] In this context is it relevant to make some brief observations on the approach taken by industrial tribunals when fighting or an assault has been established. In AWU-FIME Amalgamated Union v Queensland Alumina Limited Moore J summarised the relevant decisions in the following passage:
"What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence."69
[65] We think the authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight or assault in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
_ whether the terminated employee was provoked and whether he or she was acting in self defence;
_ the employer's need to establish and retain discipline amongst its employees; and
_ the service and work record of the employee concerned.
[66] The approach taken by Commissioner Hodder was consistent with the authorities. In many respects the case was quite straightforward. It turned on whether there was a valid reason for the termination of Mr Mulhall's employment arising from the incident on 17 May 2001. The Commissioner's principal findings are set out at paragraph 44 of this decision. In essence he concluded that Mr Mulhall had reasonable grounds to be apprehensive about his physical safety and he was entitled to act in the way he did. When the decision is read as a whole it is apparent that the "glassing incident" and its aftermath was not central to the Commissioner's ultimate finding. In our view the appellant overstates the significance attached by the Commission to the "glassing incident" in reaching his ultimate conclusion.
Ground 12
[67] The appellant submitted that the Commissioner erred in allowing the drunkenness, intoxication or the extent to which the Patron may have been effected by drugs or other intoxicating substances to enter is consideration of how Mr Mulhall's conduct on 17 May 2001 should be viewed. The appellant makes reference to paragraphs 87 and 89 of the Commissioner's decision, which state:
"[87] I find that there was a conflict in the evidence of the various witnesses for the respondent in that inconsistencies existed as to what constituted acceptable behaviour for crowd controllers when faced with verbal abuse and/or physical threats or aggression. However after a consideration of all the evidence it is open to conclude that a crowd controller confronted with an obnoxious, drunken or substance affected person, including at times a violent patron, to be prevented from resorting to the use of his or her fists to restrain such person or protect himself or herself is unrealistic. In fact the evidence of the respondent's witness Mr James confirmed this view (at transcript PN1119 to 1123)."
and
"[89] Realistically, not all patrons in a state of intoxication and or other substances are likely to go willingly or without the potential threat of a violent reaction to the persons required to remove them. If all patrons were to be so well behaved then the use of crowd controllers would not be necessary. I find there would always be a certain degree of uncertainty and unpredictability which undoubtedly would confront all crowd controllers from time to time but especially when undertaking the process of attempting to evict a certain type of clientele. The degree of unpredictability however would undoubtedly escalate with individuals aggressive by nature in combination with a level of intoxication or under the influence of drugs."
[68] On Mr Mulhall's own evidence the Patron was not intoxicated.70 Nor was there any evidence at all to support a finding that the Patron may have been affected by drugs or other intoxicating substances. On this basis the appellant contends that the Commissioner's observations in paragraphs 87 and 89 of his decision were not supported by the evidence and hence constituted an error.
[69] We think that the appellant has misconstrued the nature of the Commissioner's observations. At no stage does the Commissioner find that the Patron was intoxicated or affected by drugs or other intoxicating substances. The extent of the Commissioner's finding on this issue is at paragraph 62 where he says "It appears from the evidence that the patron may have been intoxicated but the extent of such intoxication was uncertain." There was evidence available to support such an observation.71
[70] At paragraph 87 the Commissioner is dealing with what, in general terms, constituted acceptable behaviour for crowd controllers when faced with verbal abuse and/or physical threats or aggression. The Commissioner concluded that:
"a crowd controller confronted with an obnoxious, drunken or substance affected person, including at times a violent patron, to be prevented from resorting to the use of his or her fists to restrain such person or protect himself or herself is unrealistic."
[71] In our view the Commissioner is referring to four potential scenarios which may confront a crowd controller, that is a patron who is:
_ obnoxious;
_ drunk;
_ substance affected; or
_ violent.
[72] He is not making any specific finding about the Patron involved in the incident with Mr Mulhall.
[73] Similarly, in paragraph 89 the Commissioner is making a general finding regarding the nature of a crowd controller's work. The essence of the finding is that attempting to evict a "certain type of clientele" would always give rise to a "degree of uncertainty and unpredictability". Consistent with the Commissioner's observations in paragraph 87 we think that the "certain type of clientele" being referred to are patrons who are obnoxious, drunk, substance affected or violent. The Commissioner's observations are no doubt intended to provide some context to the incident on 17 May 2001, but we do not think that his observations were intended to constitute findings on the particular circumstances which faced Mr Mulhall on 17 May 2001.
[74] We do not think that the Commissioner erred in the manner suggested by the appellant. The observations subject to challenge by the appellant were not central to the Commissioner's decision making process.
Ground 13
[75] At paragraph 103 of the decision the Commissioner makes the following finding:
"A threat to `put a bullet' in a person's head is, I find, an extremely serious threat which, under the circumstances was and should have been taken seriously by the applicant."
[76] The "Register of Crowd Controllers and Incident Report" records that on the night in question the Patron made the following threat: "I'm coming back to put a bullet in your heads! . . ."72 It is generally agreed that this threat was made after the incident between Mr Mulhall and the Patron, and that it was not specifically directed at Mr Mulhall as he was not in attendance at the time.
[77] The Commissioner's finding suggests that he thought that the threat had been made to Mr Mulhall. On this basis the appellant submits that the Commissioner misunderstood the evidence and fell into error in finding that the Patron's threat "should have been taken seriously by the applicant."
[78] We disagree with the appellant's submission on this point. When the finding is viewed in context it is clear that the Commissioner was aware that the threat had been made after Mr Mulhall had struck the Patron. This is apparent from the sentence immediately before the finding challenged by the appellant, which says:
"It was obvious that the patron was highly unstable and was making serious threats of violence following the incident with the applicant." [emphasis added]
[79] It is also apparent from a fair reading of the Commissioner's decision as a whole, that the Commissioner relied on the Patron's threat to come back to "put a bullet in your heads", simply as evidence of the Patron's capacity to make threats of physical violence and as supporting a conclusion that Mr Mulhall's concern for his safety was reasonably based. At paragraph 69 the Commissioner says:
"Exhibit REH 2 confirms the patron's aggressive behaviour and threats and that he was potentially capable of giving the impression that he could and would carry out his threat `. . . to put a bullet in your heads'. I therefore find that under all of the circumstances, the applicant's apprehension and concern about the intentions of the patron was reasonable."73
[80] To our mind this sort of appeal point suffers from the vice described by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, in these terms:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."74
[81] Although his Honour's comments concerned an application for judicial review of a decision of the Refugee Review Tribunal, we think that they are applicable to the matter before us. The Commissioner's reasons must be read as a whole and should be approached fairly. They should not be considered in a manner which would regard every lapse of expression or phrasing as constituting an error warranting correction on appeal.75
[82] While the challenged finding may not accurately express the Commissioner's intention, but it does not, in our view, amount to an error warranting correction on appeal.
Ground 14
[83] In the proceedings at first instance a document entitled "Incident Report for May 17, 2001" was apparently attached to the witness statement of Mr Barrack. The document in question had been prepared by Mr James, but was not attached to his statement. At paragraph 107 of the decision the Commissioner refers to this issue in these terms:
". . . it is interesting to note that this document was not attached to the witness statement of Mr James but rather was attached to the witness statement of Mr Barrack. I find that the non-attachment of this document to the statement of Mr James did not assist the applicant's case and I suspect this may not have been an oversight but in any event was intended to be to the detriment of the applicant."
[84] The appellant contends that the Commissioner's observations in paragraph 107 of his decision are without basis. In particular it is argued that as the relevant document was disclosed in the employer's evidentiary case - albeit incorrectly attached to Mr Barrack's witness statement - no issue could be made, and no adverse inference could be drawn in the circumstances.
[85] We are prepared to assume - without so deciding - that the Commissioner's finding in paragraph 107 of his decision was erroneous. But such a conclusion does not assist the appellant. We agree with the respondent's submission on this point, namely, that the finding is so peripheral to the Commissioner's chain of reasoning as to be entirely inconsequential and any error is not material.
Grounds 16 and 17
[86] At paragraph 136 of his decision the Commissioner states that:
". . . there was no evidence brought by the respondent indicating that there had been an irretrievable breakdown in employment relations between the applicant and the respondent nor that the reinstatement of the applicant's employment would disadvantage the respondent business through loss of trade or employees."
[87] The appellant contends that the Commissioner's finding on this issue ignores the evidence of Mr Barrack. At PN1209 to PN1210 of the transcript of 5 September 2001 the following exchange took place between Mr Rodgers (representing the Hotel) and Mr Barrack:
"Mr Rodgers: In these proceedings the applicant is seeking reinstatement. What are your views on that?
Mr Barrack: No. Absolutely not.
Mr Rodgers: And why do you say that so definitively?
Mr Barrack: I think there's a handful of reasons I guess. One: a serious assault has occurred. Two: that it probably challenges the integrity of the ALH Code of Conduct and that if we had a repeat issue you know we'd need to make sure that we're not going to come into the same situation where we are today. Probably that there's an issue with the hotel was brought into disrepute; that the staff harmony would be upset. But I guess the last thing would be I have to trust all the employees in the venue and I'd struggle to say that I could trust Andrew if he was reinstated."
[88] Mr Barrack was not cross examined on this aspect of his evidence.
[89] In reply, the respondent submitted that the Commissioner made no error in finding that Mr Barrack's evidence did not represent evidence of an irretrievable breakdown in employment relations between the parties because what Mr Barrack said "effectively amounted to no evidence at all." In particular the respondent said:
"It must be recalled that Mr Barrack had no personal knowledge of the respondent, having not commenced employment at the Royal Exchange Hotel until 21 May 2001, 3 days after the respondent's termination of employment. The Commissioner had rejected the allegation of serious misconduct and had therefore rejected reasons (a) and (b) above. There was absolutely no evidence to support any assertion of the hotel being brought into disrepute or that there would be any upset in staff harmony. Mr Barrack's remaining evidence could only be categorised as opinion evidence with no foundation."76
[90] Mr Barrack is the Venue Manager at the Hotel. As the respondent notes, Mr Barrack assumed that position on 21 May 2001, some three days after the incident between Mr Mulhall and the Patron. However, Mr Barrack has been employed by the entity which owns the Hotel for eight and a half years. Moreover it is clear from his witness statement77 that Mr Barrack:
_ discussed the incident involving Mr Mulhall "in a lot of detail" with the previous Venue Manager and the Hotel, Mr Morgan, and also had discussions with Messrs Noonan and James as they had witnessed the incident;
_ met with Mr Mulhall and Ms Diana Teitzel on 23 May 2001 to discuss the incident. At the end of the meeting Mr Barrack said "unfortunately we cannot continue to employ you and you are terminated effective immediately."
[91] It is also relevant to note that Mr Barrack was the only witness to give evidence relating to the issue of remedy. In it's written submissions in the proceedings below the Hotel argued that reinstatement was inappropriate and relied on the unchallenged evidence of Mr Barrack in support. The respondent also made reference to the following extract from Perkins v Grace Worldwide (Aust) Pty Ltd:78
"Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No 606/93, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81--82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based."
[92] In the proceedings at first instance the applicant made no specific submissions regarding the issue of remedy. Paragraph 33 of the written submission filed in support of Mr Mulhall's application for relief simply states:
"The Applicant has had difficulty finding alternative employment since the termination of his employment. Should the Commission find in favour of the Applicant the Applicant would leave the appropriate remedy to the Commission for its determination."
[93] The only observation about remedy in the applicant's reply submission was at paragraph 26, which said:
"26. The Applicant continues to leave the matter of appropriate remedy to the Commission for its determination."
[94] The Hotel's submissions as to the inappropriateness of reinstatement and lack of trust in Mr Mulhall were not challenged by the applicant in the proceedings below.
[95] Generally the nature of any remedy awarded will be a matter for the member at first instance. As a Full Bench of the Commission said in Australian Meat Holdings Pty Ltd v McLauchlan:
"Given the broad nature of the discretion in s.170CH(3) and (6) we think that the question of whether reinstatement is `appropriate' in a particular case will be a matter for the judgment of the Commission member at first instance based on the evidence and material before the Commission."79
[96] In this case we are not satisfied that the Commissioner's decision on remedy was properly based on the evidence and material before him. In this regard it is relevant to note that Mr Barrack's evidence went to, among other things:
_ the extent to which there has been a loss of trust and confidence between Mr Mulhall and his former employer; and
_ the impact of any reinstatement order on staff harmony.
[97] These matters are relevant to the determination of whether reinstatement is an appropriate remedy in this case. We do not say that Mr Barrack's evidence is necessarily determinative of this issue, but it is the only evidence on the point and it is relevant. It should have been taken into account and it was not.
[98] In failing to take into account Mr Barrack's evidence the Commissioner failed to take into account a material consideration. This is an error within the scope of s.170JF(1) of the WR Act.
Ground 20
[99] In appeal ground 20 the appellant contends that the appeal raises for consideration:
". . . the appropriateness of an order for reinstatement, and consequential orders for the maintenance of continuity of the employment of an employee and payment of remuneration lost as a consequence of the termination of employment to the date of reinstatement as at the date ordered for such reinstatement which is a matter of such importance that, in the public interest, leave to appeal should be granted."
[100] Relevant to this appeal ground is an affidavit sworn by Mr Mulhall on 22 March 2002 in which he says, at paragraphs 5 and 6:
"5. I have taken an opportunity to work in Korea. I am catching a flight from Brisbane in the evening of 22 March 2002.
6. I understand that the Industrial Commission has ordered my reinstatement to the Royal Exchange Hotel effective 25 March 2002. I will be unable to attend work on that date due to the prior commitment mentioned in paragraph 5 above."80
[101] The affidavit of 22 March 2002 was sworn to facilitate the settlement of the Commissioner's order of 21 March 2002. The information in the affidavit was not provided to the Commissioner before he made his decision and issued the order subject to appeal. In his oral submissions Mr Horneman-Wren, counsel for the appellant, made it clear that the appellant was not relying on the affidavit to demonstrate error on the part of the Commissioner. Rather, if the appeal was upheld and the issue of remedy had to be reheard then the Commission should have regard to the affidavit.81
[102] During the course of the appeal hearing Mr Martin, appearing on behalf of Mr Mulhall, conceded that it would be reasonable to assume that Mr Mulhall had accepted the offer of employment in Korea some time before the Commissioner handed down his decision.82 The change in Mr Mulhall's employment status and his consequent inability to attend for work at the Hotel was, we think, highly relevant to the form of remedy to be awarded. The Commissioner should have been informed of the change in Mr Mulhall's circumstances.
[103] It is a long standing principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure of all matters which are relevant to the proper determination of the matter before the Commission.83 The approach of the Commission in circumstances where a party has failed to disclose material facts has been considered on a number of occasions. In Re: Rubber, Plastic and Cablemaking Industry Award, Gaudron J said:
"Where an award is obtained without disclosure of material facts, undoubtedly it is prima facie desirable that it be set aside under section 59 of the [Conciliation and Arbitration] Act [1904]. Only when special or extraordinary circumstances are shown to exist would such an award be allowed to remain."84
[104] Her Honour's statement was affirmed on appeal and the appeal bench also said "The test we apply is whether the outcome of the proceedings before the Commission might conceivably have been different if disclosure had taken place."85
[105] In the further written submission filed on behalf of Mr Mulhall it is conceded, properly in our view, that there was a duty on the applicant to notify the Commission of the changed circumstances relevant to the exercise of the Commissioner's discretion as to remedy.86 However the respondent contends that the failure to disclose this information does not give rise to an error warranting correction on appeal as the Commissioner properly determined the matter on the material before him.
[106] Given the concession by counsel for the appellant referred to at paragraph 101 above, and our conclusion in respect of grounds 16 and 17, it is unnecessary for us to determine whether the failure to disclose the change in Mr Mulhall's circumstances gives rise to an error warranting correction on appeal.
[107] However in adopting that course we do not wish to be taken to be accepting the proposition that the failure to disclose the change in Mr Mulhall's circumstances does not give rise to an error warranting correction on appeal. Indeed we would find it odd if the respondent's proposition was correct because it would effectively reward the party who had not fulfilled their obligations to the Commission. Further, in this case it seems likely that the result would have been different if the information had been disclosed. Indeed the further written submission filed on behalf of Mr Mulhall contained the following concession, at paragraph 10:
"It would appear that, in light of the fresh evidence, reinstatement has become impossible and therefore `inappropriate' within the meaning of s.170CH(6)."
[108] Finally on this issue, we note that as a general proposition the time between the hearing of an application under s.170CE and decision is usually about six weeks, hence problems associated with a change in the circumstances of an applicant or respondent would not normally arise. However if the period between the hearing and the decision is considerable, as it was in this case (5 September 2001 to 21 March 2002, over six months). In such circumstances it would be prudent to provide the parties with a further opportunity to update the Commission on any material change in circumstances. Such an issue arose in Greater Dandenong City Council v Australian Municipal, Clerical and Services Union.87 In that matter Wilcox J (with whom Finkelstein J agreed on this point) said:
"113. I agree it would have been inappropriate for the trial judge, after a lengthy reservation of judgement, to proceed immediately with an order for reinstatement of the effected employees, without affording the council an opportunity of alerting him to any situational changes that may have occurred in the meantime. However, Madgwick J did not take that course."
Conclusion
[109] In failing to take into account Mr Barrack's evidence regarding the appropriateness of reinstatement as a remedy in this case, the Commissioner failed to take into account a material consideration. In so doing the Commissioner erred in the exercise of his discretion.
[110] We grant leave to appeal and uphold the appeal in respect of grounds 16 and 17 in the notice of appeal. We refuse leave to appeal in respect of all other grounds of appeal.
[111] Consequent on our decision with respect to appeal grounds 16 and 17 we have decided to set aside paragraphs 2.1 to 2.5 of the Commissioner's order of 25 March 2002.
[112] We have decided to remit the matter to Commissioner Hodder pursuant to s.45(7)(c). We direct the Commissioner to determine the question of remedy after providing the parties with a further opportunity to be heard.
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
S. Horneman-Wren on behalf of the appellant, the Royal Exchange Hotel.
J. Martin on behalf of the respondent, Mr Mulhall.
Hearing details:
2002.
Brisbane:
5 June.
Printed by authority of the Commonwealth Government Printer
<Price code G>
1 Mr Mulhall's witness statement, Exhibit M2 at paragraph 63.
2 Transcript, 5 September 2001 at PN97.
3 Transcript, 5 September 2001 at PN97.
4 Transcript, 5 September 2001 at PN97.
5 See Mr Noonan's evidence at transcript, 5 September 2001 at PN859 and Mr James' evidence at transcript, 5 September 2001 at PN1056.
6 Exhibit M2 at paragraph 68 and transcript, 5 September 2001 at PN102 and 310-312.
7 Transcript, 5 September 2001 at PN102, 314, 330 - 331.
8 Transcript, 5 September 2001 at PN332.
9 Transcript, 5 September 2001 at PN333.
10 Transcript, 5 September 2001 at PN116; Exhibit M2 at paragraph 68.
11 Transcript, 5 September 2001 at PN108, 128, 162.
12 Exhibit M2 at paragraph 69.
13 Transcript, 5 September 2001 at PN365.
14 See generally transcript, 5 September 2001 at PN310-314, 330-333 and 373 - 386.
15 Transcript, 5 September 2001 at PN343 and 348-349.
16 See Mr Mulhall's evidence at transcript, 5 September 2001 at PN575.
17 See Mr Mulhall's evidence at transcript, 5 September 2001 at PN102. In his evidence Mr James conceded that there was another crowd controller standing beside Mr Mulhall but he couldn't remember who it was (Transcript, 5 September 2001 at PN1100). To the best of Mr James' recollection the other crowd controller was standing to Mr Mulhall's right (Transcript, 5 September 2001 at PN1113). As Mr James was standing opposite Mr Mulhall (Transcript, 5 September 2001 at PN1115 and 1116) his evidence about where the crowd controller was standing is consistent with Mr Mulhall's evidence.
18 See Mr James' evidence at transcript, 5 September 2001 at PN1012.
19 See Mr Noonan's evidence at transcript, 5 September 2001 at PN914 and 915.
20 Transcript, 5 September 2001 at PN543.
21 Transcript, 5 September 2001 at PN961.
22 Transcript, 5 September 2001 at PN963.
23 Transcript, 5 September 2001 at PN964-965.
24 Transcript, 5 September 2001 at PN1050.
25 Transcript, 5 September 2001 at PN333.
26 Transcript, 5 September 2001 at PN316.
27 Transcript, 5 September 2001 at PN1042.
28 Transcript, 5 September 2001 at PN877.
29 Exhibit M2 at paragraph 68 and transcript, 5 September 2001 at PN102 and 310-312.
30 Transcript, 5 September 2001 at PN918 - 924.
31 Exhibit REH7 at paragraph 12 and transcript, 5 September 2001 at PN1071 and 1073.
32 Transcript, 5 September 2001 at PN1072.
33 Transcript, 5 September 2001 at PN310-314, 330 - 333 and 373 - 386.
34 Transcript, 5 September 2001 at PN343 and 348 - 349.
35 Exhibit REH7 at paragraph 12.
36 Exhibit REH6 at paragraph 6 and transcript, 5 September 2001 at PN865.
37 Exhibit REH6 at paragraph 13.
38 Transcript, 5 September 2001 at PN108.
39 Transcript, 5 September 2001 at PN110-116 and 124-128.
40 See Appendix 3 to Exhibit M2.
42 Paragraphs 66, 69 and 71 of the decision subject to appeal.
43 Paragraph 76 of the decision subject to appeal.
44 Paragraph 78 of the decision subject to appeal.
45 Paragraphs 69 and 111 of the decision subject to appeal.
46 Paragraph 111 of the decision subject to appeal.
47 Paragraph 88 of the decision subject to appeal.
48 Paragraph 79 of the decision subject to appeal.
49 Paragraph 101 and 115 of the decision subject to appeal.
50 Paragraph 102 of the decision subject to appeal.
51 Paragraph 105 - 106 and 119 of the decision subject to appeal.
52 Paragraph 111 of the decision subject to appeal.
53 Paragraph 123 of the decision subject to appeal.
54 Paragraph 126 of the decision subject to appeal.
55 Paragraph 135 - 137 of the decision subject to appeal.
56 Paragraph 139 of the decision subject to appeal.
57 Paragraph 139 - 141 of the decision subject to appeal.
58 Paragraph 142 of the decision subject to appeal.
59 Edwards v Giudice [1999] FCA 1836 per Moore J.
64 Chubb Security Australia Pty Ltd v Thomas, Print S279, 2 February 2000 per McIntyre VP, Marsh SDP and Larkin C.
65 King v Freshmore (Vic) Pty Ltd, Print L4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.
66 Print S2679, 2 February 2000 per McIntyre VP, Marsh SDP and Larkin C.
67 Exhibit M2 in the proceedings at first instance.
68 (1992) 34 FCR 212 at 220-221.
70 Transcript, 5 September 2001 at PN98 and 103.
71 See evidence of Messrs Noonan and James and transcript, 5 September 2001 at PN955 and 1077 - 1082.
73 Also see paragraphs 66 and 77 of the decision subject to appeal.
75 See further Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 457 per Wright J (President) and Walton J (Vice President).
76 Respondent's written submission, Exhibit R1 at paragraph 42.
77 Exhibit REH8 in the proceedings below.
78 (1997) 72 IR 186 at 188-191 per Wilcox CJ, Marshall and North JJ.
80 Exhibit A2 in the appeal proceedings.
81 Transcript, 5 June 2002 at PN308 - 317.
82 Transcript, 5 June 2002 at PN365 - 376.
83 See Municipal Officers Association v The Mayor, Aldermen, Councillors and Citizens of the City of Greater Brisbane (1927) 25 CAR 932 at 935 per Lukin J; Australian Workers' Union v Energy Developments Limited, Print M9753, 1 March 1996 per Ross VP, Maher DP ad McDonald C.
85 (1975) 167 CR 929 at 932 per Robinson J, Staples J and Portus C. Also see Re: Peck's Australia Pty Limited, Manufacturing Operations Agreement (Rooty Hill) 1993, Print L2022 per Boulton J, Munro J and Lawson C.
86 Paragraph 3 of he respondent's further written submissions dated 7 June 2002.