DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Richard Hyde
v
Serco Australia Pty Limited T/A Serco Australia Pty Limited
(C2018/2866)

Appeal against decision [2018] FWC 2465 of Commissioner Williams at Perth on 8 May 2018 in matter number U2017/10615 – dismissal based on capacity – application of Jetstar – no public interest – no significant error of fact – permission to appeal refused.

1. Introduction

[1] Mr Richard Hyde has applied for permission to appeal and has appealed against a decision 1 made by Commissioner Williams on 8 May 2018 (the Decision), in which the Commissioner found the Appellant was not unfairly dismissed from his employment with Serco Australia Pty Limited. The Commissioner dismissed the Appellant’s application for an unfair dismissal remedy and issued an order2 to that effect.

[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[3] We deal first with the relevant background before turning to the Decision subject to appeal.

2. Background

[4] Mr Hyde was employed by Serco Australia Pty Ltd (Serco) from September 2009 as a Case Management Custodial Officer (or ‘Custodial Officer’) at the Acacia Prison (the Prison) in Western Australia. The Prison is owned by the Western Australia Department of Justice and managed under contract by Serco. Mr Hyde was employed under the terms of the Serco CPSU Acacia Prison General Enterprise Agreement 2014. 4

[5] The position description for the role of Case Management Custodial Officer is attached to Mr Southerton’s statement. 5

[6] All Custodial Officers employed at the Prison are required to undergo compulsory training as part of their role, including Defensive Equipment Techniques Training (or ‘DETT’). DETT involves a three (3) day course and a two (2) day training refresher annually. The DETT is undertaken in a controlled environment and involves a complexity of movements with a degree of force applied, increasing over the period of the training program. Custodial Officers are trained to intercept, stabilise and resolve situations. A task analysis for the DETT is attached to Mr Southerton’s Statement. 6

[7] In March 2016 Mr Hyde consulted an orthopaedic surgeon, Dr Vara Mukundala, concerning pain and stiffness in his right ankle. On Dr Mukundala’s advice, Mr Hyde decided to undergo surgery to fuse his right ankle. The surgery was performed by Dr Mukundala on 8 June 2016. Mr Hyde took a period of personal leave in order to recover from the operation and undertake rehabilitation.

[8] Mr Hyde performed restricted duties as a Custodial Officer for a number of months in the ‘movements’ unit after his return to work following his surgery. As part of Serco's return to work program, Ms Argiropulos advised Mr Hyde that Serco required additional information from Mr Hyde's treating physician in respect of his medical condition and fitness for work. In November 2016, Ms Argiropulos wrote to Dr Mukundala, with Mr Hyde's consent, seeking further information in relation to Mr Hyde's fitness for work.

[9] Mr Hyde had his last follow-up appointment with Dr Mukundala on 23 November 2016. At that appointment Mr Hyde requested that he be provided with a medical certificate so he could resume his normal duties. Mr Hyde informed Dr Mukundala that he worked as a Custodial Officer at Acacia Prison. Dr Mukundala provided Mr Hyde with a medical certificate dated 23 November 2016 certifying that he ‘is fit for work (full duties) from 24/11/2016’. 7 Mr Hyde has not seen Dr Mukundala following his last appointment on 23 November 2016.

[10] On 24 November 2016 Serco received Dr Mukundala’s medical certificate. Serco formed the view that the medical certificate did not provide adequate detail with respect to Mr Hyde's fitness for work with reference to the inherent requirements of his role, including whether Mr Hyde could, or could not, recommence and perform his full duties with respect to prisoner contact.

[11] In the period 1 December 2016 to 10 January 2017, Mr Hyde was on a period of annual leave. On his return to work, he continued to work in ‘movements’ on restricted duties.

[12] In early February 2017, Serco issued a defence and control training ‘physical readiness form’ in advance of the annual DETT refresher training.

[13] Mr Hyde completed the Physical Readiness Form on 3 February 2017 in which he confirmed that he was not able to run for one (1) kilometre. Serco decided to request a full medical report from Mr Hyde's treating practitioner to understand his ability to complete the DETT refresher training and perform the duties required as part of his Position.

[14] In February 2017 Mr Hyde saw his treating general practitioner, Dr Afilaka, and asked that he provide an assessment and certify if he was fit to resume the full duties of his role.

[15] Mr Hyde was provided with a bundle of documents by Mr Newell (Serco’s Health, Safety and Wellbeing Manager at Acacia Prison) to provide to Dr Afilaka for the purpose of this assessment, including:

•  a position description for a Case Management Officer;

•  a position description that relates to ‘Defence and Control’ strategies;

•  a further position description that relates to training for Defence and Control;

•  three ‘Summary of Job Demands’ documents that collectively set out the full range and frequency of duties that are required as part of the role. 8

[16] Mr Hyde consulted Dr Afilaka on 4 February 2017 and provided him with the documents he had been given by Mr Newell. 9 Dr Afilaka provided a medical certificate, dated 15 February 2017, which certifies that, in his opinion, Mr Hyde ‘will be fit to continue his usual occupation as detailed in his position description – as case management officer, he will be able to go through the defence and control training and defence and control-in field’.10

[17] On 13 March 2017, Mr Lahad, HR Advisor at the Prison, wrote to Dr Mukundala, with Mr Hyde’s permission, seeking further information in respect of Mr Hyde's fitness for work. 11 In particular, Serco sought specific information from Dr Mukundala in relation to the following matters:

(i) Mr Hyde's suitability to perform his pre injury duties, specifically defence movements and the ability to have prisoner contact;

(ii) any side effects from treatments and medication that may impact Mr Hyde's ability to perform his duties;

(iii) any current work restrictions Serco need to be aware of to safety accommodate Mr Hyde's ankle injury;

(iv) any other information Serco should be aware of regarding Mr Hyde's ankle; and

(v) Dr Mukundala's opinion on Mr Hyde's ability to perform the DETT component of his role and whether he is fit to undertake this training.

[18] Serco provided Dr Mukundala with copies of:

(i) the position description for the role of Case Management Officer;

(ii) Task Analysis for Defence and Control Training; and

(iii) the position description for Defence and Control Training for Custodial Officers.

[19] On 1 May 2017, Dr Mukundala responded to Mr Lahad, setting out his expert opinion in relation to Mr Hyde. In that report Dr Mukundala confirms that he performed surgery on Mr Hyde in June 2016 which involved fusing Mr Hyde's right ankle joint using three cannulated screws. The Report confirmed that the surgery was successful and Mr Hyde recovered well as a result of the surgery. The Report goes on to state:

‘I understand that Richard is currently performing his full duties at Acacia Prison. However, he is confined to non-prison facing tasks and administrative duties only. I have also noted that the range of movement of his right lower limb has improved. This is because he has got extra range of movement in other joints other than the ankle joint that has been completely fused. Richard has got a non-antalgic gait but he would find that whenever there is any need for running or sprinting, he would find it very difficult as the ankle joint is completely fused. I have also been informed that his defensive movements are very minimal in the day to day tasks as an officer.

Coming back to your specific questions:

1. Richard’s suitability to perform his pre-injury duties specifically defensive movements and ability to have prisoner contact:

a. If Mr Hyde is not currently fit to perform his pre-injury duties please indicate approximate timeframes for full recovery.

Considering the whole picture on 23 November 2016, I am pretty confident that he has fully recovered from the major surgery he underwent. The right ankle joint has fused both clinically and radiologically. However, one should note that the movements of his joint level are completely abolished. Thereby, Richard would depend more on the flexibility of the other joints other than the ankle that has been fused. Thereby, I would conclude that he would never be fit to perform his pre-injury duties at 100% level. However, he would fit into taking part in defensive movements and get in touch with the prisoners as well. In a case of emergency, he would definitely need aide from his colleagues as he would be unable to sprint/run on this fused ankle joint. One has to remember that the gait on this fused ankle joint is not a normal gait. This surgery has been performed to relieve pain. The downside of his surgery is a loss of movement at the ankle joint level. Thereby, I suggest that we need to compromise his pre-injury duties and I would highly recommend him to have a supernumerary around and response to any emergency or defensive movements whenever they are needed.

2. Any side effects from treatment/medication that may impact his ability to perform his duties?

Currently, I note that he is not on any kind of medication for his pain. Thereby, I am pretty confident that he should be able to perform his duties without any side effects.

3. Any current work restrictions Serco would need to be aware of to safely accommodate Richard’s ankle injury?

As mentioned earlier, Richard would need help from his colleagues in the case of any emergency situation where sprinting/running and defensive movements are involved. Besides this, I would also keep in mind the mild osteoarthritic changes in the sub talar joint which would progress in time to come.

4. Any other information Serco should be aware of regarding Richard’s ankle?

As mentioned before, Richard is also suffering from mild osteoarthritis of the sub talar joint. This could progress in future as the proximal/tibia talar joint has already been fused and there would be more stress at this sub talar joint level which would lead to progression of osteoarthritis in the future. This would also entail him to have surgery done.

5. What is your opinion on Mr Hyde’s ability to perform the DETT component of his role? Is he fit to undertake this training?

I would like to apologise that I am not fully aware of this DETT component. My guess would be that you are relating his role with emergency situations and to undertake training. I am quite happy for Richard to take part in DETT training provided he is able to withstand this training in terms of pain tolerance.’ 12

[20] On 3 June 2017, Serco issued Mr Hyde with a show cause letter seeking further information from Mr Hyde regarding his fitness for work and capacity to undertake the inherent requirements of his role. The Show Cause Letter stated:

‘Serco's view is that the report concludes that you cannot now perform the inherent requirements of your job. Any modifications that Serco needs to consider as a result of the report cannot be reasonably accommodated. Further, accommodations Serco could reasonably make would still/eave you performing restricted duties, not your full range of duties.

Therefore, it is Serco's view that you are incapable of performing the inherent requirements of your job or any modifications thereof.

Consequently, you are now required to show cause by responding either in writing or in an interview with Serco, as to why your employment should not be terminated due to incapacity.’ 13

[21] It was Mr Southerton’s evidence that the purpose of the Show Cause Letter was to provide Mr Hyde with an opportunity to respond to the possible termination of his employment on the grounds of medical incapacity.

[22] On 30 June 2017, Mr Hyde responded in writing to the Show Cause Letter. 14 In Serco’s view, Mr Hyde's response did not address the findings in the Mukundala Report and failed to identify any grounds upon which Mr Hyde's employment should not be terminated on the basis that he could not perform the inherent requirements of the Position.

[23] On 11 September 2017, a meeting took place between Mr Southerton, Mr Hyde and Ms Van Der Merwe (a representative of Mr Hyde’s union). In his witness statement Mr Southerton recalls words to the following effect:

‘Mr Southerton:

“I am going to come straight to the point, this isn't good news. I have a letter for you. You can read it for yourself or I can read it out and discuss any pertinent points. What would you like to do?”

Mr Hyde:

“Can you please read out the letter.’

[24] Mr Southerton proceeded to read out the letter of termination to Mr Hyde dated 11 September 2017 and then handed Mr Hyde his letter of termination confirming his employment had been terminated effective 11 September 2017. Mr Southerton was not cross examined in respect of this aspect of his evidence.

[25] A copy of the letter of termination issued to Mr Hyde on 11 September 2017 is attached to Exhibit R3 (and marked ‘IS-11’). 15 The termination letter states:

‘Serco relies on the findings of Dr Mukundala and confirms the issue is exclusively about your capacity to perform the inherent requirements of the role as a Custodial Officer and is not about your performance or conduct…

Serco requires you as a Custodial Officer, to fulfil the range of duties of a Custodial Officer as set out in the job description.

Dr Mukundala’s recommendations that you must permanently restrict your pre-injury duties and have a supernumerary around to respond to any emergency or defensive movements whenever they are needed is not a form of restriction acceptable to Serco, nor a reasonable modification of your full range of duties.

Serco has taken into consideration all reports and medical evidence available, along with your response. It is determined that you cannot now or for an indefinite period fulfil the inherent requirements of a Custodial Officer role located at Acacia Prison.

Serco is therefore terminating your employment on medical grounds…’

[26] At the date of his dismissal on 11 September 2017, Mr Hyde was 45 years of age and had been employed by the Serco as a Custodial Officer for approximately 8 years.

[27] On 2 October 2017 Mr Hyde lodged an application for an unfair dismissal remedy under s.394 of the Act.

[28] The matter was heard on 30 January 2018 and the final written submissions were filed on 21 February 2018.

3. The Decision

[29] At first instance it was not in dispute that Mr Hyde was dismissed on medical grounds after undergoing surgery to alleviate symptoms of osteoarthritis affecting a joint in his right ankle. The surgery was performed by Orthopaedic Surgeon, Dr Vara Mukundala in June 2016 to fuse a joint in Mr Hyde’s right ankle. Based on a report from Dr Mukundala dated 1 May 2017, Serco maintained the Appellant was unable to perform the inherent requirements of his job.

[30] During the course of the hearing on 30 January 2018 the Appellant led evidence from Dr Craig White, a consultant occupational physician, in respect of Mr Hyde’s capacity to undertake the inherent requirements of the role of Custodial Officer. Dr White reviewed Mr Hyde on 10 November 2017 and his report is dated 12 November 2017. 16 Dr White provided a supplementary report on 20 January 2018.

[31] In the proceedings at first instance Mr Hyde claimed his dismissal was unfair because he was still able to perform the inherent requirements of his job as a Custodial Officer. Relying on CSL Limited t/as CSL Behring v Chris Papaioannou 17(‘CSL’) Mr Hyde submitted that in deciding whether, at the time of his dismissal, he had the requisite capacity to perform the inherent requirements of his role the Commissioner should have had regard to all of the relevant medical evidence before the Commission, in particular:

•  Dr Mukundala’s medical certificate of 24 November 2016;

•  Mr Afilaka’s report of 15 February 2017;

•  Dr Mukundala’s report of 1 May 2017; and

•  Dr White’s reports of 12 November 2017 and 20 January 2017. 18

[32] Serco denied that the termination of Mr Hyde’s employment was unfair and submitted that the application should be dismissed. In particular, Serco submitted that Mr Hyde’s dismissal was:

•  for a valid reason related to Mr Hyde’s capacity to perform the inherent requirements of his role as a Custodial Officer at Acacia Prison;

•  effected in circumstances where Mr Hyde was provided with procedural fairness in that he was given an opportunity to respond to the reasons for dismissal relating to his medical incapacity; and

•  a measured response with respect to the inherent requirements of his role and the medical evidence before Serco at the time of termination of employment.

[33] Serco submitted that the facts and circumstances of this matter can be distinguished from the facts and circumstances in CSL. In CSL there was, prior to the decision to terminate Mr Papaioannou, a material difference of opinion between Dr Bloom, an occupational physician and Dr Congiu, Mr Papaioannou’s treating psychiatrist. Serco submitted that there was no ‘apparent conflict’ in the medical opinions before Serco at the time of Mr Hyde’s dismissal:

‘To the extent that in the Proceedings there was an attempt to create the appearance of an apparent conflict in the medical opinions (which is not conceded by the Respondent) this arose out of a medical report that was prepared at the instigation of the lawyers for the Applicant for the purposes of the unfair dismissal proceedings, and was not a matter that was put before the employer in and around the time of termination. The only other medical certificate provided by Dr Afalaka, (obtained at the instigation of the Applicant) did not attempt to deal with the questions that were initially and repeatedly advanced by Serco with respect to the Applicant’s injury, and were ultimately addressed in detail by the Applicant’s treating orthopaedic surgeon, Dr Mukundala.’ 19

[34] On 8 May 2018, the Commissioner issued his decision (the Decision). 20

[35] In the Decision the Commissioner sets out the events leading to Mr Hyde’s dismissal and an overview of the evidence (at [5]-[88]) before setting out the Applicant’s submissions (at [89]-[100]) and those of the Respondent (at [101]-[113]). The Commissioner then turns to the competing contentions regarding CSL and the relevance of Dr White’s reports, and concludes:

‘[130] Considering the parties’ submissions on the implications of the Full Bench decision in CSL Limited I agree with the Respondent that the Full Bench in CSL Limited was dealing with situations where there were conflicts in the medical opinions known to the employer at the time the decision to dismiss was made. This indeed was the case in both Lion Dairy and the first instance decision the subject of appeal in CSL Limited. However I do not agree that the Full Bench decision in CSL Limited is only applicable to unfair dismissal remedy applications where there is conflicting medical opinion. The decision in my view has general application to cases where a dismissal is related to the person’s capacity.

[131] The Full Bench in CSL Limited rejected the particular part of the Lion Dairy approach which had previously held that the resolution of any conflict in medical opinion was to be left to the employer and instead reinforced the requirement of section 387 (a) of the Act in capacity cases for the Commission to consider and make findings as to whether at the time of the dismissal the employee suffered from the alleged incapacity.

[132] I do not however accept the Applicant’s submission that the Full Bench’s reference in CSL Limited at [77] to the Commission’s findings as to alleged incapacity at the time of dismissal being based on the “…relevant medical and other evidence before the Commission” is authority for the proposition that the Commission must have regard for a new medical opinion an applicant obtains after dismissal which an applicant then argues demonstrates a conflict in medical opinion which the Commission must resolve.

[133] In this matter at the time the decision to dismiss was made the opinion of Dr White had not created any conflict with the medical opinions available to be considered by Serco because Dr White’s opinion did not at that point in time exist.

[134] The evidence is no approach was made to Dr White for a medical opinion until after Mr Hyde had been dismissed and in fact he was only approached after this application had been made to the Commission.

[135] In this case when determining whether there was a valid reason for dismissal the Commission should not have regard for Dr White’s evidence and his reports which were not in existence at the time the decision to dismiss Mr Hyde was made.

[136] Dr White’s medical opinion was not a fact that existed at the time of the dismissal. In this case the medical opinion and evidence of Dr White is not relevant to the determination of whether or not there was a valid reason for Mr Hyde’s dismissal.

[137] Section 394, under which this application is made, is found within Part 3-2 of the Act and section 381 sets out the Objects of Part 3-2. These Objects include, at (2), that the procedures and remedies and the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

[138] In my view it would also not be consistent with providing a “fair go all round” to allow a medical opinion that did not even exist at the time an employer made a decision to dismiss to be used to challenge the validity of the reasons for that decision.

[139] I do accept though that should I decide the dismissal was unfair that Dr White’s evidence may be relevant when considering remedy.’ 21

[36] The Commissioner then turns to the matters he is required to take into account in determining whether Mr Hyde’s dismissal was harsh, unjust or unreasonable (s.387(a)-(h)), and finds:

•  there was a valid reason for the dismissal (s.387(a); see [140]-[177]), based on Dr Mukundala’s report of 1 May 2017, Mr Hyde was not able to perform the inherent requirements of his job at the time of his dismissal:

‘This posed a risk to the safety and welfare of other employees and to Mr Hyde himself had he returned to work as a Custodial Officer. Mr Hyde’s inability to perform the inherent requirements of his job was a valid reason for his dismissal.’ (at [177])

•  Mr Hyde was notified of the reason for his dismissal (s.387(b); see [178]);

•  Mr Hyde had an opportunity to respond to the reason for the dismissal (s.387(c); see [179]);

•  there was no refusal by Serco to allow Mr Hyde to have a support person present to assist at any discussions relating to dismissal (s.387(d); see [180]); and

•  Serco is a large enterprise, with dedicated human resource management specialists and expertise, ‘and the procedure followed by Serco was consistent with this.’ (ss.387(f) and (g); see [181]).

[37] As the dismissal was not related to unsatisfactory performance, s.387(e) was not relevant.

[38] As to ‘any other matters the FWC considers relevant’ (s.387(h)) the Commissioner said:

‘[182] The expert medical opinion was that Mr Hyde cannot perform the inherent requirements of his job as a Custodial Officer. If this was ignored and Mr Hyde had resumed work at the prison there would in my view have been risks to the safety of Mr Hyde himself and other Officers as mentioned above. There would have also been risks to the safety of prisoners and, because Custodial Officers sometimes escort prisoners off-site, risks to members of the public. These concerns weigh against finding that the dismissal of Mr Hyde was unfair.

[183] It is also a relevant matter that Mr Hyde has been employed since 2009.’ 22

[39] The Commissioner concluded that ‘in all the circumstances’ Mr Hyde’s dismissal was not harsh, unjust or unreasonable and on that basis dismissed the application.

4. The Appeal

[40] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 23 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[41] This appeal is one to which s.400 of the Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[42] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 24 

[43] The task of assessing whether the public interest test in s.400(1) is met is a discretionary one involving a broad value judgment. 25 The test is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 26

[44] Before turning to deal with the grounds of appeal we propose to say something about the general approach to challenging findings of fact on appeal.

[45] In the joint reasons in Fox v Percy, 27 in a passage which has been applied since,28 Gleeson CJ, Gummow and Kirby JJ said:

‘[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.’ 29 (citations omitted)

[46] More recently, in Short v Ambulance Victoria, 30 the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances whose those findings rested on assessments of credibility:

‘It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

In Fox v Percy at [26]-[31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.’ (citations omitted).

[47] These principles have been consistently applied by Full Benches of the Commission for many years. In the context of appeals, Full Benches have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’. 31

[48] Mr Hyde has appealed the Decision and advances six grounds of appeal:

1. The Commissioner did not properly apply the legal test to determine if the evidence and expert opinion of Dr White was relevant to the issue of whether a valid reason for dismissal existed.

2. The Commissioner failed to have regard to relevant considerations in Dr White’s evidence and therefore erred in fact and law.

3. The Commissioner erred in law by failing to determine if Dr Mukundala’s evidence was sufficiently clear to support the finding that a valid reason for dismissal existed.

4. The Commissioner’s finding that an inherent requirement of Mr Hyde’s position was that he be able to ‘sprint’, a finding for which there was no evidence.

5. The Commissioner erred in failing to draw inferences as to the assumptions upon which Dr Mukundala’s 1 May 2017 report was based.

6. By failing to draw an adverse inference against the Respondent in accordance with Jones v Dunkel, 32 the Commissioner erred.

[49] We now turn to each of the grounds of appeal.

Grounds 1 and 2

[50] These grounds are directed to the Commissioner’s decision to not have regard to Dr White’s evidence for the purpose of determining whether there was a valid reason for Mr Hyde’s dismissal. The reason given for the Commissioner’s determination in this regard was that ‘Dr White’s medical opinion was not a fact that existed at the time of the dismissal’.

[51] The Appellant submits that the Commissioner erred in failing to give any weight to, or consider the evidence from Dr White and submits that the fact that Dr White’s medical opinion did not exist at the time of dismissal is not determinative (citing Dundovich v P&O Ports). 33

[52] The Appellant contends that the Commissioner was obliged to consider the evidence and opinion of Dr White to the extent that his opinion provided confirmation or was evidence of the facts and circumstances that existed at the time of the dismissal and, by considering only the evidence that was available to the Respondent at the time of the dismissal, the Commission committed an error of law and continued to adopt the approach set out in Lion Dairy and Drinks Milk Limited v Peter Norman (Lion Dairy). 34

[53] The second ground of appeal contends the Commission erred in fact and in law by failing to have regard to the relevant considerations provided in the evidence of Dr White.

[54] The Appellant submits that s.387(a) requires the Commission to determine, on balance of probabilities, whether there was a valid reason for dismissal and to make such a determination by reference to the evidence before it (citing Yew v ACI Glass Packaging Pty Ltd; 35 CSL Limited t/a CSL Behring v Chris Papaioannou (CSL)).36

[55] The Appellant submits that evidence obtained after a dismissal is relevant to a determination under s.387(a) of the Act, provided that the evidence concerns circumstances in existence when the decision to terminate was made (citing Australia Meat Holdings Pty Ltd v McLauchlan 37 and Dundovich at [75]).

[56] The Appellant submits that the Commissioner found the following circumstances and facts to be in existence at the time of the dismissal:

(i) The state of the Appellant’s ankle and his physical capacity was stable, and/or had not materially changed between the date of Dr Mukundala’s report and the date of termination (at [171] of the Decision).

(ii) The findings, underlying assumptions and meaning of comments contained in the medical report by Dr Mukundala dated 1 May 2017 were in dispute (at [78] of the Decision).

(iii) The Appellant’s ability to run was not consistent with the comments and findings contained in Dr Mukundala’s report (at [159] of the Decision).

(iv) Dr Mukundala had not examined the Appellant for 6 months prior to his writing of the report.

[57] The Appellant submits that the medical opinion and evidence of Dr White is directly relevant to the determination of whether the Appellant had capacity to perform the inherent requirements of his job, in particular:

•  The medical reports and evidence of Dr White was based on medical information and employment documents that existed at the date of termination;

•  Dr White’s opinion was also based on a physical examination that took place approximately two calendar months following the dismissal; and

•  Dr White’s opinion was consistent with the Commission’s finding that the Appellant’s condition was stable.

[58] Further, the Appellant contends that in finding that the evidence of Dr White was not relevant to the determination of whether or not there was a valid reason for dismissal (at [136]), the Commission made a material error of fact and law.

[59] Serco submits that the Commissioner’s approach to the assessment of ‘capacity’ for the purposes of s.387(a) was in accordance with the approach in Jetstar and CSL. In short, there was no error. Serco submits that Dr White’s reports could only be relevant to the extent that Dr White gave evidence of the Appellant’s capacity at the time of dismissal:

‘Dr White’s reports could only be relevant to the extent that Dr White gave evidence of the appellant’s capacity at the time of dismissal. Dr White did not do this. Rather Dr White’s evidence was based on an assessment made of the appellant on 10 November 2017, that is after the time of the appellant’s dismissal. Not only was Dr Hyde’s report not in existence at the time of the dismissal (as stated in ground 1 of the appeal) it did not address any fact relating to ‘capacity’ at the time of dismissal.’ 38

[60] We have earlier set out (at [35] above) the extract from the Decision in which the Commissioner deals with this issue. For present purposes [135] – [139] are particularly relevant:

‘[135] In this case when determining whether there was a valid reason for dismissal the Commission should not have regard for Dr White’s evidence and his reports which were not in existence at the time the decision to dismiss Mr Hyde was made.

[136] Dr White’s medical opinion was not a fact that existed at the time of the dismissal. In this case the medical opinion and evidence of Dr White is not relevant to the determination of whether or not there was a valid reason for Mr Hyde’s dismissal.

[137] Section 394, under which this application is made, is found within Part 3-2 of the Act and section 381 sets out the Objects of Part 3-2. These Objects include, at (2), that the procedures and remedies and the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

[138] In my view it would also not be consistent with providing a “fair go all round” to allow a medical opinion that did not even exist at the time an employer made a decision to dismiss to be used to challenge the validity of the reasons for that decision.

[139] I do accept though that should I decide the dismissal was unfair that Dr White’s evidence may be relevant when considering remedy.’

[61] In our view the above passages contain an erroneous statement of principle, but that the Commissioner was correct to exclude Dr White’s evidence from his assessment of whether there was a valid reason for dismissal. In short, the Commissioner reached the correct result, albeit by an erroneous process of reasoning.

[62] In CSL a Full Bench recently considered the approach to be considered in capacity related dismissal cases, concluding that:

‘In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.’ 39

[63] The Full Bench expressly rejected the approach in Lion Dairy – noting that ‘there is no basis to leave the resolution of any conflict in medical opinion to the employer’ 40 – and adopted the approach taken in Jetstar Airways Pty Limited v Monique Neeteson-Lamkes (Jetstar).41

[64] As noted in Jetstar, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. 42 Applying this principle to the matter before us, Dr White’s evidence was correctly excluded from the assessment of whether there was a valid reason for Mr Hyde’s dismissal because it was clearly founded upon a factual situation which came into existence well after the date of Mr Hyde’s dismissal. Dr White examined Mr Hyde on 10 November 2017, some two months after his dismissal, and his evidence concerned Mr Hyde’s capacity as at 10 November 2017; not his capacity as at the date of his dismissal. The validity of that part of Serco’s reason for dismissal which concerned Mr Hyde’s future capacity to perform his duties must be assessed by reference to his state of health, and the expert opinions expressed as to his state of health, as they were at the time of his dismissal.

[65] Dr White’s evidence did not address the Appellant’s capacity at the time of dismissal and on that basis was not relevant to the determination of valid reason.

[66] Our conclusion is consistent with the approach taken in Jetstar, in which the Full Bench excluded expert medical evidence which was based on an assessment of the Respondent’s health some three to four months after her dismissal. We reject the Appellant’s submission that Jetstar was distinguishable on the basis that it concerned psychological injury as opposed to the present matter which concerns physical capacity. In our view the principle remains the same – the relevant evidence must be directed at the applicant’s state of health at the time of dismissal.

[67] We wish to make it clear that this does not mean that expert medical evidence obtained after dismissal is automatically excluded. Such evidence will be relevant to the question of whether there is a valid reason for dismissal provided it is directed at the appellant’s state of health at the time of dismissal. For example, in circumstances where an applicant’s state of health is stable, a medical expert may express an opinion about the applicant’s state of health at the time of their dismissal, which may have occurred some time before they were assessed by the expert. The probative value of such evidence will depend, in part, on the nature of the applicant’s condition and the time between dismissal and assessment.

[68] It follows that we reject the Commissioner’s reasons for excluding Dr White’s evidence – that it was not a fact in existence at the time of dismissal.

[69] We also reject the Commissioner’s observation that such an approach is inconsistent with the provision of a ‘fair go all round’. The expression ‘a fair go all round’ is a reference to the object of Part 3-2 Unfair Dismissal, of the Act. Section 381 sets out that object, in the following terms:

‘Object of this Part

(1) The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.’

[70] It is important to appreciate that the object provides for a ‘fair go all round’ to be accorded to ‘both the employer and employee concerned’. The admission of a medical report obtained after dismissal (provided it relates to the employee’s capacity at the date of dismissal) is simply the analogue of an employer’s ability to rely on facts not known at the time of dismissal (but which existed at that time) in support of an argument that there was a valid reason for dismissal. There is no barrier to the admission of evidence about facts in existence at the time of dismissal, but only discovered by the employer after the dismissal occurred.

[71] His Honour van Doussa J provides an illustration of such a circumstance in Lane v Arrowcrest Group P/L: 43

‘In the example given of the embezzling accountant, the circumstances as they existed at the date of dismissal were that embezzlement had occurred but by reason of the concealment and falsehood of the accountant that fact had not yet come to the knowledge of the employer. On a later review of the decision, after the embezzlement has come to light, the circumstances as they existed when the decision was made would include the embezzlement. In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer's state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.’

[72] Just as an employer can rely on such acquired knowledge of facts in existence at the time of dismissal; so too can an applicant. Such an approach is entirely consistent with the objective of providing a ‘fair go all round’ to both the employer and employee concerned.

[73] For completeness we wish to deal with a submission put by counsel for the Appellant during the course of oral argument, as to the relative reliability of Dr White’s evidence as to that of Dr Mukundala. As counsel put it:

‘MS GILES:  So taking that point, sir, and applying it to this case creates a rather interesting situation, because at the date of dismissal there was in fact no evidence for the employer, leaving aside the Commission, there was no evidence before the employer as to Mr Hyde's fitness as at the date of the dismissal.  The employer had Dr Mukundala's report, but in its terms it could only have referred to either events as Mr Mukundala saw them on 1 May, or considerably earlier than that when he actually examined the appellant.  So there was no evidence, we say, as at the date of dismissal, which I believe was 11 September 2017.  The best was evidence taken six months prior to that date.  We then had Dr White's evidence, as the Commission has correctly observed, which appears to refer to this position two months after the date of dismissal.  So which is right?  Which is more reliable?’ 44

[74] Three things may be said about this. First, in one sense, it is true that there was no evidence before the employer as to Mr Hyde’s fitness as at the date of dismissal. Indeed it would be a rare case where an employer had an employee medically assessed on the day of dismissal. The real issue is whether there was evidence in support of the proposition that there was a valid reason for dismissal based on incapacity. Dr Mukundala’s report provided such evidence. The gap between that report and the date of dismissal is a matter going to the weight to be attributed to that evidence.

[75] Second, this is not a case requiring the resolution of conflicting medical opinions. Dr White’s opinion does not go to the issue of My Hyde’s capacity as at the date he was dismissed, and, on that basis, for the reasons given, it is not relevant to the question of whether there was a valid reason for dismissal.

[76] Finally, we note that Mr Hyde’s union wrote to Serco on 20 June 2017 raising the issue of Mr Hyde getting a second medical opinion. Serco was agreeable to this course, and allowed time for this to occur. But ultimately the union decided not to pursue the matter and as a consequence Mr Hyde did not obtain a second medical opinion prior to Serco making the decision to dismiss him. 45 In retrospect, the provision of a second medical opinion, prior to dismissal, would have been the better course.

Ground 3

[77] The third ground alleges the Commission erred in law by failing to determine whether the medical evidence of Dr Mukundala was sufficiently clear to support a finding that there was a valid reason for the termination (citing Mrs V v Ambulance Victoria 46 and CSL at [67], [68]).

[78] At [141] of the Decision, the Commissioner noted the medical certificate from Dr Mukundala dated 24 November 2016 certified the Appellant as “fit to work (full duties)”. The Appellant submits that the opinion expressed in the medical certificate from Dr Mukundala was in complete contrast to the meaning and findings that the Commissioner subsequently attributed to Dr Mukundala’s subsequent report dated 1 May 2016 (at [171]). It is submitted that Dr Mukundala’s report of 1 May 2017 was prepared based on the physical examination and instructions that were available to Dr Mukundala in November 2016 (see [148], [150] of the Decision).

[79] The Commissioner drew an inference at [143] that Dr Mukundala’s report of 1 May 2018 superseded the opinion given in his initial medical certificate. The Appellant submits that this inference was unsound and unsupported by the evidence. At [143] of the Decision the Commissioner says:

‘Given that Dr Mukundala did provide a detailed response to these same questions at a later date in his 1 May 2017 Report, I take the medical opinion expressed in this later Report as superseding Dr Mukundala’s 24 November 2016 medical certificate.’

[80] The Appellant submits that there was no evidence before the Commission that would establish a reason why Dr Mukundala had reversed his previous opinion and that his report of 1 May 2017 was intended to completely displace the view that he expressed in November 2016.

[81] Serco submits that Dr Mukundala gave clear evidence that the Appellant was incapacitated from performing the inherent requirements of his role and this evidence was identified by the Commissioner at [147]-[177] of the Decision. As to the proposition that Dr Mukundala’s May 2017 report conflicts with the 24 November 2016 certificate, Serco submits:

‘The ‘apparent’ conflict submitted by the appellant between Dr Mukundala’s report of 1 May 2017 and certificate of 24 November 2016 is no conflict at all. The Commissioner concluded that Dr Mukundala’s report of 1 May 2017 superceded his 24 November certificate because Dr Mukundala did not respond to the respondent’s questions in providing the certificate. This was not a case of “competing speculative assumptions”. Rather the Commissioner’s conclusion was one the Commissioner was entitled to make on the evidence before the Commission.’ 47 (citations omitted)

[82] This ground of appeal amounts to little more than a complaint that the Commissioner made findings in respect of Dr Mukundala’s report which did not favour the Appellant’s case. At [140] to [143] the Commissioner explained why the report of Dr Mukundala of 1 May 2017 was preferred over Dr Mukundala’s certificate of 24 November 2016. Similarly, at [145] the Commissioner explained why the evidence of Dr Mukundala was preferred over that of the Appellant’s general practitioner, Dr Afilaka.

[83] The argument put on appeal is in similar terms to submissions advanced at first instance, namely that Dr Mukundala’s report of 1 May 2017 was ‘tainted, unreliable or flawed and could not be relied upon as evidence of Mr Hyde’s capacity as at the date of termination.’ 48 The Commissioner sets out the arguments put in support of this proposition, at [155], deals with them, at [156] to [170], and concludes, at [171], that Dr Mukundala’s report of 1 May 2017 ‘demonstrates that at the time of dismissal Mr Hyde could not perform the inherent requirements of the job.’

[84] This ground of appeal does not disclose any arguable case of appealable error. We are not satisfied that it has been shown that the Commissioner ‘has failed to use or has palpably misused (his) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.

Ground 4

[85] The fourth ground of appeal contends the Commission made a finding at [162] to [165] of the Decision that it is an inherent requirement of the Appellant’s role that he be able to ‘sprint’.

[86] The Appellant contends that at [162]-[165] of the Decision the Commissioner found that it is an inherent requirement of the Appellant’s role that he be able to ‘sprint’. The relevant passages of the Decision are as follows:

‘[162] The concise Macquarie dictionary defines “Sprint” as follows,

1. to race at full speed, especially for a short distance, as in running, rowing, etc

2. to cover by sprinting: to sprint a hundred metres

3. a short race at full speed.

[163] Sprinting therefore means running at full speed for a short distance.

[164] I note that the Summary of Job Demands for a Case Management Officer includes “…running 50 m in short bursts…”.

[165] The evidence is that Mr Hyde was able to run for a distance of 1 km but there is no evidence that he was able to sprint, meaning to run at full speed for a short distance. Consequently Dr Mukundala’s opinion that Mr Hyde would be unable, or find it very difficult, to sprint in a case of emergency stands.’ (citation omitted)

[87] The Appellant submits that the uncontradicted evidence of Graham Carlson and Paul Parsons was that Prison Officers are not expected or required to be able to run. 49 Further, neither the Appellant nor the Respondent led evidence or made submissions that Prison Officers are required to sprint or run at ‘full speed’ as an inherent requirement of their role.

[88] The Appellant contends that the Commissioner’s reasons do not indicate that there was a consideration of the evidence as a whole and that no evidence was led during proceedings to support such an inference and the Commissioner did not put that question to any of the Appellant’s witnesses.

[89] Serco submits that the Appellant’s submission is ‘selective, and narrow and does not reflect the evidence that was before the Commission’. Dr Mukandala’s opinion was that the Appellant “… would never be fit to perform his pre-injury duties at 100% level” 50, and the Commissioner accepted this opinion. Further Dr Mukandala’s opinion that the Appellant would need an aide as he would be unable to sprint/run on his fused ankle joint was in the context of an emergency situation, a factor understood by the Commissioner51 was ignored in the Appellant’s submissions.

[90] Serco also submits that the Commissioner found that Dr Mukundala’s opinion that the Appellant “… would never be fit to perform his pre-injury duties at 100% level” was not confined to whether the Appellant could sprint or run as suggested in the Appellant’s submission. The Commissioner found that this opinion was not infected by Mr Lahad’s statement that Mr Hyde was unable to run or respond with defensive movements. 52

[91] Serco also observes that the Commissioner’s findings were made in the context of the background facts to which the Commissioner referred, including:

(a) The work was primarily calm and ordered however a custodial officer may without warning have to respond to a volatile situation providing defence and control or deal with medical emergencies; 53

(b) Defence and Control strategies may be used by Custodial officers in the execution of their duties where a prisoner becomes aggressive or encroaches on a “Custodial Officers space … a situation can escalate where dual offices use necessary force to restrict movement of the prisoner … there can be continued escalation requiring a custodial officer to bring the prisoner to a secure position where handcuffs can be applied as required;

(c) Defence and control requires transfer of weight from one to two legs; lunging forward when restraining;

(d) Defence and control may be required to escort prisoners with a degree of force – may be in wet weather conditions where ground can become muddy and slippery – running 50m in short bursts. Can be rough trip hazards;

(e) Potential for exposure to confrontational situations eg hostile or aggressive prisoners;

(f) When approaching prisoner or escorting prisoner in restraint position when outdoors in compounds. May be in any weather conditions whilst applying force. May be required to run for a short period. 54

(g) Documentation for the role of custodial officer included being able to run 50m in short bursts and to run for short periods. 55

[92] Further, at first instance the Appellant accepted that he could find himself in that environment either on his own or with someone else and may need to apply the control and defence techniques and so be exposed to danger 56 and that:

(i) (a) control and defence techniques were very much about maintaining balance and stability and that his ankle was fundamental to balance and stability. The appellant agreed that when he braced himself for balance and stability being able to flex his ankle was quite important; 57

(b) the techniques in which he was trained were all about control, sudden lunges and sudden acceleration and that to get that propulsion for the sudden forward lunge would involve some flexibility around the ankle; 58

(c) in using control and defence techniques he may be required to take a prisoner’s weight onto himself and that this weight would be felt on the ankle and that being able to flex the ankle would be a large part of the taking down of the prisoner; 59

(d) getting up off the ground in a dangerous situation with his fused ankle would have its own problems – while the appellant did not have an issue with this the appellant agreed that his treating Orthopaedic Surgeon had a different view; 60

(e) in the work environment prison officers rely on other employees to a point it is almost life-and-death that people do their jobs properly. 61

[93] Further, and in any event, Serco contends that the Commissioner was correct to construe the documentation describing the requirements of a custodial officer’s role as including “…running 50m in short bursts….” as including sprinting or running at full speed. It is said that the Appellant’s submission to the contrary is at odds with the nature and demands of the custodial officer’s role outlined in the evidence.

[94] Serco also submits there was no necessity to meet the rule in Browne v Dunn for additional notice that the requirements of a custodial officer which included “…running 50m in short bursts….” included being able to sprint or run at full speed for a short distance; as this is the natural meaning of the requirement which was tendered as part of the Appellant’s statement. 62

[95] We are not persuaded that the Commissioner erred in the manner contended by the Appellant. As Serco put it, the evidence must be viewed as a whole and when that is done it is apparent that the finding was reasonably open. As recorded in the Decision at [52], it was common ground that the documentation from Serco detailed the inherent requirements of Mr Hyde’s pre-injury position. The Summary of Job Demands for a Case Management Officer includes ‘running 50m in short bursts’. This description was provided to Dr Mukundala in the preparation of his report and Mr Hyde was copied into the email of 13 March 2017 from Mr Lahad to Dr Mukundala requesting his opinion. Mr Hyde voiced no objection at that time to the information included in this email request. 63

[96] Indeed Dr White’s evidence was that Mr Hyde’s position required him to run in short bursts:

‘According to the job description, there is a requirement to run in short bursts, from memory, so I would have to refer to the job description, but I’m pretty sure that’s what it said. So it does seem to be a requirement.’ 64

[97] For these reasons we are not persuaded that the Appellant has established an arguable case of error in respect of this ground of appeal.

Grounds 5 and 6

[98] The fifth ground of appeal contends the Commission erred by failing to draw an inference as to the assumptions upon which Dr Mukundala’s report of 1 May 2017 was based. The sixth ground of appeal contends the Commission erred by failing to draw an adverse inference against the Respondent (under the principle in Jones v Dunkel) 65 in respect of the failure to call Dr Mukundala to provide evidence to clarify and confirm the meaning of findings contained in his report. It is convenient to deal with these grounds together.

[99] The Appellant contends that the email from Mr Lahad contained incorrect information that the Appellant was unable to run. Implicit in Mr Lahad’s email was the proposition that running is an inherent requirement of the Appellant’s role. The Commissioner held at [157] and [158] of the Decision that it was only ‘mere speculation’ and it was not apparent that Dr Mukundala’s report was infected by Mr Lahad’s statements.

[100] The Appellant submits the Commission erred by failing to draw an adverse inference that the assumptions underlying Dr Mukundala’s report were incorrect and/or were not supported by evidence.

[101] Serco submits that Ground 5 is not a legitimate ground of appeal; it is simply a complaint that the Commissioner’s finding was not in the Appellant’s favour. Further, the Appellant’s complaint ignores the finding made by the Commissioner that Dr Mukundala’s opinion that the Appellant ‘would never be fit to perform his pre-injury duties at 100% level’, was not infected by Mr Lahad’s email statement. 66

[102] The rule in Jones v Dunkel has been aptly described as ‘a rule of common sense and fairness in relation to the fact finding process.’ 67 The rule was considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo).68 In that matter the Full Bench made the following general observation about the rule in Jones v Dunkel:

‘1. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case.

The rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability. 69

The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness. Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely involved in the circumstances in question and present during the hearing of the case. 70

The rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn. 71

2. The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference. 72

3. The rule only applies where a party is `required to explain or contradict' something and this depends on the issues thrown up by the evidence in a particular case. 73

4. The rule only applies to the failure to call a witness who is not a party to the proceedings if it would be natural for the party to call that witness, or the party might reasonably be expected to call the witness in question, or as Glass JA said in Payne v. Parker, `the missing witness would be expected to be called by one party rather than another'. His Honour said that this condition:

‘. . . is also described as existing where it will be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reasons there will be for thinking that his knowledge is available to that party rather then to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman; his safety officer; his accountant; his treating doctor.’

A party is not necessarily expected to call their own employees, though the more senior employee the more reason for concluding that the employee's knowledge is available to his or her employer rather than any other party. 74

5. The evidence of the missing witness must be such as would have elucidated the matter. In Payne v. Parker Glass JA said:

‘. . . according to Wigmore the . . . condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary, would have had a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of the principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.’ 75

[103] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s.590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that ‘is fair and just’. As the ‘rule’ in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. We adopt the observations made in Tamayo.

[104] A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. 76 A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.

[105] The impact on the fact finding process of an unexplained failure by a party to call or tender apparently relevant evidence within that party's control is ultimately a matter in the discretion of the member hearing the case at first instance. That discretion is to be exercised in accordance with the dictates of commonsense and fairness. Absent an error of principle, a breach of the rule in Jones v Dunkel will only give rise to error on the part of a member at first instance if the member acted unreasonably in drawing or failing to draw the relevant inference resulting in factual findings that are manifestly unfair.

[106] The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party's ‘camp’.

[107] This requirement is also described as existing where it would be natural for one party to produce the witness or the witness would be expected to be available to one party rather than the other. 77 The witness in this case, Dr Mukundala, was equally available to both parties and in such circumstances the condition is not satisfied.

[108] The Appellant submits (at [55]) that Dr Mukundala should be regarded as a natural or expected witness of the Respondent because:

(i) The Appellant had no faith in the reliability of Dr Mukundala’s report dated 1 May 2017 on the basis that his report was incorrect, unclear and based on wrong assumptions;

(ii) The Appellant had already granted his authority for Dr Mukundala to discuss his medical treatment and condition with the Respondent;

(iii) The Appellant did not have an ongoing relationship with Dr Mukundala as his treating physician;

(iv) The Respondent relied upon the medical opinion of Dr Mukundala in support of its decision to terminate the Appellant’s employment.

[109] We disagree. Two points may be made about the propositions advanced by the Appellant. The first concerns proposition (ii). We doubt that the evidence supports the proposition put. At [72] of his witness statement Mr Hyde says ‘I sent a fax to Dr Mukundala’s surgery to provide them with my authority to discuss my condition with Serco’. The fax sent by Mr Hyde is not in evidence. During his cross examination Mr Hyde acknowledged that he had agreed (in writing) for Dr Mukundala’s report to be provided to Serco. 78 The evidence suggests that the extent of the authority given to Dr Mukundala by Mr Hyde was limited to the provision of the report to Serco. We are not satisfied that the authority given was ‘at large’ to discuss his medical treatment and condition with Serco.

[110] The second point concerns proposition (iv). Both parties in the proceedings at first instance referred to Dr Mukundala’s opinions in support of their respective positions. Attachment D to Mr Hyde’s statement 79 is the medical certificate he obtained from Dr Mukundala on 23 November 2016.80 Mr Hyde provided that medical certificate to Serco in support of his contention that he was ready to resume the full duties of his role. Mr Hyde also attaches a copy of Dr Mukundala’s report of 1 May 2017 to his statement.81

[111] We reject the contention that Dr Mukundala should be regarded as ‘a natural or expected witness of the Respondent’. We accept that the Respondent relied on Dr Mukundala’s report of 1 May 2017 in support of its contention that Mr Hyde lacked the capacity to undertake the inherent requirements of his role. But this is to be balanced against the fact that Dr Mukundala was Mr Hyde’s treating orthopaedic surgeon and that Mr Hyde had relied on Dr Mukundala’s opinion in support of his case and had tendered Dr Mukundala’s medical certificate of 23 November 2016 and his report of 1 May 2017.

5. Conclusion

[112] As we have mentioned, the decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).

[113] We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. Accordingly, permission to appeal is refused.

PRESIDENT

Appearances:

P Giles for the Appellant.

JJ Fernon for the Respondent.

Hearing details:

Melbourne, Perth, Sydney (video hearing).

2018.

11 July.

Printed by authority of the Commonwealth Government Printer

<PR608761>

 1   [2018] FWC 2465.

 2   PR606765.

 3   This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   A copy of the Agreement is attached to Exhibit R3 and marked ‘IS-2’; Appeal Book at 355–388.

 5   Exhibit R3 and marked ‘IS-2’; Appeal Book at 390-397.

 6   Exhibit R3 and marked ‘IS-3’; Appeal Book at 399-448.

 7   See Attachment D to Exhibit A3; Appeal Book at 228.

 8   See Exhibit A3 at [60]-[61]; Appeal Book at 209-210 and 229-252.

 9   Ibid.

 10   Attachment F to Exhibit A3; Appeal Book at 253.

 11   A copy of the email and attachments Mr Lahad sent to Dr Mukundala on 13 March 2017 is attached to Exhibit R3 and marked ‘IS-6’; Appeal Book at 457-554.

 12   Attachment H to Exhibit A3; Appeal Book at 257-258.

 13   A copy of the Show Cause Letter is attached to Exhibit R3 and Marked IS-8; Appeal Book at 560-562.

 14   A copy of My Hyde’s letter in response is attached to Exhibit A3; Appeal Book at 262-265.

 15   Appeal Book at 570-571.

 16   Exhibit A5; Appeal Book at 287-294.

 17   [2018] FWCFB 1005.

 18   See Applicant’s Closing Submissions dated 20 February 2018; Appeal Book at 159-181.

 19   Serco’s Additional Submissions dated 21 February 2018 at [11]; Appeal Book at 184.

 20   [2018] FWC 2465.

 21   [2018] FWC 2465 at [130]-[139].

 22   Ibid at [182]-[183].

 23   This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 24   (2011) 192 FCR 78 at [43].

 25   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].

 26   [2010] FWAFB 5343, 197 IR 266 at [27].

 27   Fox v Percy (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at [23].

 28   Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012] HCA 17 at [130]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at [76].

 29   Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.

 30   Short v Ambulance Victoria [2015] FCAFC 55 at [98]-[99].

 31   Barwon Health – Geelong Hospital v Dr Mark Colson; Dr Mark Colson v Barwon Health – Geelong Hospital [2013] FWCFB 4515; City Motor Transport Group v Devcic [2014] FWCFB 6074; Jones v Ciuzelis [2015] FWCFB 84; Colin Wright v AGL Loy Yang Pty Ltd [2016] FWCFB 4818.

 32   Jones v Dunkel (1959) 101 CLR 298.

 33   PR23358 at [79].

 34   Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218.

 35   Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

 36   CSL Limited t/a CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at [59].

 37   (1998) 84 IR 1 at [14].

 38   Serco’s Outline of Submissions dated 6 July 2018 at [17].

 39   [2018] FWCFB 1005 at [77].

 40   Ibid at [76].

 41   [2013] FWCFB 9075.

 42   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ and Dawson and Toohey JJ; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14; Paech v Big W Monarto Warehouse [2007] AIRCFB 1049 at [8]; Dundovich v P&O Ports Print PR923358; Jetstar at [55].

 43   Lane v Arrowcrest Group P/L (1990) 43 IR 210 at 237-238.

 44   Transcript of proceedings 11 July 2018 at [180].

 45   [2018] FWC 2465 at [73]-[76].

 46   [2011] FWA 8576.

 47   Serco’s Outline of Submissions dated 6 July 2018 at [31].

 48   [2018] FWC 2465 at [154].

 49   Exhibit A1 at [17] and [19]; Exhibit A2 at [27]; Appeal Book at 189 and 196.

 50   [2018] FWC 2465 at [157].

 51   Ibid [160].

 52   Ibid [157].

 53   Ibid at [51].

 54   Ibid.

 55   Ibid at [61].

 56   Ibid at [54].

 57   Ibid at [55].

 58   Ibid at [56].

 59   Ibid at [57].

 60   Ibid at [58].

 61   Ibid at [60].

 62   Exhibit A3; Appeal Book at 235 and 241.

 63   [2018] FWC 2465 at [148] to [149].

 64   Transcript of proceedings 11 July 2018 at [521].

 65   (1959) 101 CLR 298.

 66   [2018] FWC 2465 at [157].

 67   Xiu Zhen Huang v Rheem Australia Pty Ltd Print 954993, 9 February 2005 per Lawler VP, Leary DP and Deegan C at [33].

 68   Print P1859, 4 November 1997 per Ross VP, Drake DP and Cargill C.

 69   Payne v. Parker (1976) 1 NSWLR 191 at 202 per Glass JA.

 70   Dilosa v. Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582.

 71   Café v. Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287.

 72   Jones v. Dunkel, op. cit., at 308, WN (Pt 1) (NSW) 557 at 582; Whitehorn v. R (1983) 152 CLR 657 at 690 per Dawson J.

 73   Jones v. Dunkel, op. cit.

 74   Earle v. Castlemaine District Community Hospital (1974) VR 722 at 728 and 734.

 75   Payne v. Parker (1976) 1 NSWLR 191 at 202.

 76   Brandi v Mingot (1976) 12 ALR 551 at 559-560 per Gibbs ACJ, Stephen, Mason and Aickin JJ; R v Buckland [1977] 2 NSWLR 452 at 457.

 77   O’Donnell v Reichard [1975] VR 916 at [921].

 78   Transcript of proceedings at first instance, 30 January 2018 at [232]-[233].

 79   Exhibit A3; Appeal Book at 197-267.

 80   See Exhibit A3 at [52]-[55].

 81   Attachment H to Exhibit A3; Appeal Book at 256-258.