DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steve Newton
v
Toll Transport Pty Ltd
(C2020/9038)

Appeal against decision [2020] FWC 5960 of Deputy President Boyce at Sydney on 25 November 2020 in matter number U2019/9520 – permission to appeal granted.

1. Introduction

[1] On 23 August 2019 Mr Newton (the Appellant) and a Mr Chambers were dismissed from their employment by Toll Transport Pty Ltd (Respondent, Toll), essentially because of their involvement in a physical altercation at about 10:25pm on 30 May 2019 out the front of the Seasons Botanic Gardens Hotel in Melbourne (the Fight). Mr Newton’s dismissal was also based on a verbal altercation with another Toll employee – Mr Mitchell – on 9 April 2019 (the Verbal Altercation). Messrs Newton and Chambers had been employed by Toll as truck drivers.

[2] Messrs Newton and Chambers filed applications for an unfair dismissal remedy with the Fair Work Commission (Commission) on 26 August 2019 and 4 September 2019 respectively. The applications were ‘heard together’ by Deputy President Boyce.

[3] The Deputy President published his decision in respect of Mr Chambers’ application on 6 November 2020 1 (the Chambers Decision).

[4] In the Chambers Decision the Deputy President decided as follows:

1. There was no evidence of a sufficient nexus between the circumstances of the Fight and Mr Chambers’ employment with Toll and no evidence which demonstrated a rejection or repudiation of Mr Chambers’ continued employment with Toll. 2

2. There was no valid reason to dismiss Mr Chambers:

‘In view of my having found that the impugned conduct vis-a-vis the Fight does not bare [sic] a sufficient connection with Mr Chambers’ employment, and my also having found that Mr Chambers’ held a genuine belief that he was acting in self-defence at the time...’ 3

3. The matters in ss.387(b)-(h) of the Fair Work Act 2009 (Cth) (Act) were neutral considerations. 4

4. Mr Chambers’ dismissal was unfair, within the meaning of s.385 of the Act:

‘Mr Chambers was dismissed by Toll for conduct that did not occur at work, and did not have a sufficient connection with Toll or its workplace. He accepted that Toll was entitled to investigate the Fight that he was involved in, genuinely participated in that investigation, and was open, consistent and honest with Toll in answering the matters raised with, or asked of, him during that investigation. I am therefore satisfied that Mr Chambers dismissal was harsh, unjust, and unreasonable (within the ordinary meaning of those terms).’ 5

5. To order a remedy of reinstatement, reinstating Mr Chambers to the position in which he was employed immediately before the dismissal; an order maintaining the continuity of his employment; and an order that Toll pay the remuneration lost by Mr Chambers between the date of his dismissal and the date he is reinstated. 6

[5] The Deputy President published his decision in respect of Mr Newton’s application, on 25 November 2020 7 (the Decision).

[6] In the Decision the Deputy President concluded, at [147], that Mr Newton was both dishonest and misleading (to both Toll and the Commission) and that his dishonesty in relation to the Fight and/or Verbal Altercation constituted a valid reason for his dismissal. After considering the other s.387 considerations the Deputy President decided to dismiss Mr Newton’s application for an unfair dismissal remedy.

[7] Mr Newton has filed a notice of appeal in which he seeks permission to appeal and appeals the Decision. This matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[8] The Decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[9] The public interest test in s.400(1) 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 Tribunal 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...’ 8

[10] For the reasons which follow we have decided that it is in the public interest to grant Mr Newton’s application for permission to appeal and to uphold the appeal.

2. The Decision at First Instance

[11] We begin by summarising the Decision; the paragraph references refer to paragraphs in the Decision.

Facts not in contention

[12] At [1] – [13] the Deputy President deals with various preliminary matters. At [2] the Deputy President states:

‘The matter was heard together with the unfair dismissal application made by Mr Wayne Chambers in Chambers v Toll Transport Pty Ltd (Chambers’ Decision), with evidence in one proceeding being evidence in the other. Many of my core findings in the Chamber’s decision apply equally in this decision.’ (Footnotes omitted)

[13] The ‘core findings’ referred to are not particularised, but it is apparent that a number of the findings made in the Chambers Decision are made in the same terms in the Decision. In the Chambers Decision the Deputy President made certain findings in relation to the fight between Messrs Chambers and Newton. These are set out at [52] – [53] of the Chambers Decision. The same findings are made in the Decision (at [55] – [56]). We have regarded these as the ‘core findings’.

[14] At [14] – [41] the Deputy President sets out a number of factual matters, under the general heading, ‘Facts not in contention’. These findings were not the subject of any challenge on appeal. The Appellant noted that there were ‘a small number of inaccuracies’ within these paragraphs of the Decision, specifically, the Appellant submits:

•  at [25](c), it is erroneously asserted that the Respondent covered the cost of the meal attended by Mr Newton on 30 May 2019. The evidence suggested that the cost of the meal was covered by the TWU: Appeal Book, p.1216-1217

•  in the second sentence of [33] it is suggested that a medical examination on 31 May 2019 identified that the Appellant was not concussed. The only evidence was that the Appellant had not been told that he had post-traumatic concussion: Appeal Book, p.148, PN493.

[15] The Appellant does not contend that these alleged ‘inaccuracies’ were significant errors of fact within the meaning of s.400(2) of the Act and so we need say no more about them.

The investigative, evidence and factual findings in respect of the fight on 30 May 2019 (the Fight)

[16] The investigation, evidence and factual findings in respect of the Fight are canvassed at [42] – [56].

[17] At [42] – [45] the Deputy President deals with the investigation into the Fight by Mr Raymond Lambie (Group Security Manager, Toll Group).

[18] At [46] – [48] the Deputy President deals with Toll’s decision to terminate the employment of Messrs Chambers and Newton. Relevantly at [47] – [48] the Deputy President found:

‘Each of the decisions to terminate Mr Newton and Mr Chambers were based upon:

(a) the dismissal recommendations contained in the Investigation Report;

(b) the view that the Applicants had engaged in serious misconduct;

(c) the view that the Applicants were both being less than candid in their interviews and statements concerning the Fight (i.e. as to what happened to start the Fight, what was said in the lead up to the Fight, and what occurred during the Fight);

(d) the fact that the outcome of the Fight could have been much worse for all involved (i.e. Mr Newton stumbled and fell during the Fight and hit the back of his head on concrete, which may have resulted in permanent brain injury, or death); and

(e) the need for cultural and behavioural change in the organisation (i.e. fighting behaviour cannot be tolerated, or be seen to be tolerated, by Toll).

The decision to terminate Mr Newton was also based upon the view that he had engaged in inappropriate, aggressive and threatening behaviour towards Mr Mitchell at the TWU Parramatta Conference on 9 April 2019.’

[19] Messrs Newton and Chambers gave conflicting evidence as to who provoked or started the Fight, and about what occurred during the Fight.

[20] The Deputy President preferred the evidence of Mr Chambers to that of Mr Newton. In relation to Mr Chambers’ evidence the Deputy President found that: 9

•  he provided direct and responsive answers during cross-examination

•  he made concessions contrary to his interests

•  there were no significant inconsistences between the answers Mr Chambers provided to Toll in the investigation and the answers he provided in cross-examination

•  his body language ‘was open and he did not flinch when answering cross-examination questions’, and

•  he appeared to be genuine in his efforts to answer the actual questions that were put to him.

[21] The Deputy President’s characterisation of Mr Newton’s evidence is set out at [51] – [53], as follows:

‘In my view, much of Mr Newton’s evidence as to the Fight was either self-serving or implausible, in that many of his answers, and his demeanour when providing such answers, gave me the impression that he was attempting to either:

(a) shift blame or responsibility for his role in the Fight;

(b) cast Mr Chambers as the antagonist of the Fight, without proper regard to, or honest account of, his own actions;

(c) portray himself as a victim in the Fight;

(d) diminish the overall seriousness of the Fight; and/or

(e) muddy the waters as to the facts to attempt to create an outcome on the evidence where positive findings of fact contrary to Mr Newton’s interests are unable to be made.

Mr Newton’s evidence before the Commission was, in my view, merely a continuation of the same behaviours exhibited by Mr Newton immediately post the Fight, whereby he:

(a) initially and falsely asserted to Toll and other employees that he had been, or might likely have been, “glassed” by Mr Chambers during the Fight;

(b) had totally lost consciousness or “blacked-out” during the Fight; and/or

(c) had been “beaten up” (or “king hit” or “coward punched”, as it is otherwise known) by Mr Chambers for no apparent reason.

Mr Newton’s foregoing assertions against Mr Chambers are, in my view, sinister conduct that can never be justified. I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.’

[22] The Deputy President’s findings in relation to the Fight are set out at [55] – [56]. At [55] the Deputy President made the following findings:

‘(a) The Applicants stepped outside the Hotel foyer/reception and bar/restaurant area, to the Hotel driveway, for a private discussion. The Applicants’ reason for doing so was to accommodate Mr Newton’s desire for a cigarette before he turned in for the night. Mr Chambers carried his unfinished bottle of beer outside with him. There is no suggestion on the evidence that Mr Chambers sought to entice or otherwise prompt Mr Newton to leave the Hotel’s internal restaurant or foyer area in order to be with Mr Newton in a secluded location. As I understand it, Mr Chambers is a non-smoker.

(b) The discussion between the Applicants on the Hotel driveway broadly concerned work related and/or union delegate matters. One topic of discussion concerned two different “yard agreements” that covered the linehaul section of Toll’s business (and the perception that there are differing degrees of fairness between these yard agreements in respect of the differential terms and conditions of employment contained therein).

(c) The Applicants had been consuming alcoholic beverages over the course of the afternoon (post 4.00pm) and evening. I am unable to ascertain on the evidence whether, or to what extent, either of the Applicants were intoxicated. In my view, little turns on this. The evidence simply reveals that the Applicants had each consumed several alcoholic beverages, but neither were wholly inebriated, or intoxicated to the extent that they were visibly incoherent or otherwise dysfunctional. Toll does not suggest that the alcohol consumption by the Applicants was contrary to Toll’s Drugs and Alcohol policy.

(d) During discussions with Mr Chambers, Mr Newton became agitated that the purpose of Mr Chambers raising the different terms and conditions under the two yard agreements was to consolidate the yard agreements, meaning that the terms and conditions under the more beneficial yard agreement may be lost or reduced (as I understand it, the more beneficial yard agreement applies to the work area or section to which Mr Newton is the TWU delegate).

(e) Despite Mr Chambers attempting to placate Mr Newton that his purpose in raising the yard agreement issue was to determine whether Mr Newton would be open to endorsing or supporting the bringing of both of the yard agreements into line with the more beneficial yard agreement, Mr Newton did not accept Mr Chambers assurances in this regard. Instead, Mr Newton said to Mr Chambers, “Fuck you”. Mr Chambers duly responded, “Fuck you too”.

(f) Shortly following the foregoing exchange, Mr Newton removed his jumper and took a boxing stance, raising his fists, and openly challenged Mr Chambers to a fist fight. He stated to Mr Chambers, “Come on, come on”, and pushed Mr Chambers in the chest. Essentially, Mr Newton was now goading for a fight with Mr Chambers.

(g) Despite Mr Chambers stating to Mr Newton, “Are you for real?”, Mr Newton again pushed Mr Chambers, and acted aggressively towards him.

(h) Shortly after this push Mr Chambers stated to Mr Newton, “You [are] fucking for real”. At this point, Mr Newton set upon Mr Chambers, throwing punches wildly at him. Mr Chambers bent down, placed his hands and forearms around his own head to protect his face, and pulled his arms and elbows into his body to protect his ribs and stomach. Mr Newton kept punching at Mr Chambers whilst Mr Chambers held this position.

(i) At some point during the foray, Mr Chambers stepped back, and away from Mr Newton. When he fully stood up, Mr Newton immediately came at him again. Mr Chambers then threw one punch at Mr Newton with his right fist. The punch connected with the side of Mr Newton’s face, and Mr Newton stumbled backwards, fell onto the driveway on his buttocks, and then fell further backwards, hitting the back of his head on the concrete driveway/pavement.

(j) Whilst lying on the pavement, Mr Newton stated to Mr Chambers, “If I get up, I’m gonna kill ya, I’m gonna kill ya”. Standing over Mr Newton, Mr Chambers replied, while looking down upon Mr Newton, “Don’t get up, don’t get up”.

(k) Mr Newton then attempted to get up. His head and shoulders were off the ground, and he was thrashing his legs about in an aggressive manner. Mr Newton’s legs became entangled into the legs of Mr Chambers, which caused Mr Chambers to fall over. As Mr Chambers fell, he threw the beer bottle he was still holding in his left hand to the side (to get it out of the way of his fall). The beer bottle broke on the driveway, and glass scattered. Mr Chambers left hand landed on a piece of broken glass, which cut his left hand open.

(l) At this point, Mr Newton again stated to Mr Chambers, “I’m gonna kill ya. I’m gonna kill ya”.

(m) As both of the Applicants were now on the ground, and Mr Newton was still attempting to get up in an aggressive manner and verbally threatening Mr Chambers, Mr Chambers pushed Mr Newton back to the ground and stated, “Are you going to stop? Are you going to stop?”. Mr Newton repeatedly replied, “I’m gonna kill ya”.

(n) Mr Newton continued to make threatening statements whilst Mr Chambers pinned him to the ground. Further, Mr Newton would not tire, and kept attempting to move his arms around to hit Mr Chambers (again, repeatedly stating to Mr Chambers, “I’m gonna kill ya”).

(o) In an attempt to quell Mr Newton’s on-going resistance and/or to get him to cease his verbal and physical aggression, Mr Chambers again punched (or slapped, or slap-punched) Mr Newton across the face.

(p) After this second contact or strike, Mr Newton immediately stated, “I’ll stop. I’ll stop”, and ceased thrashing about. Mr Chambers then released Mr Newton and walked back to the Hotel foyer. No one had to pull Mr Chambers off Mr Newton. The fight ended upon Mr Newton making it clear that he was surrendering or giving up.’

[23] At [56] the Deputy President expressly rejected aspects of Mr Newton’s evidence, in particular he rejected:

•  Mr Newton’s evidence that he removed his jumper, shortly before the commencement of the Fight, because he was going inside to his Hotel room to retire to bed and found that Mr Newton removed his jumper as a prelude to seeking to have a physical altercation with Mr Chambers.

•  Mr Newton’s evidence that Mr Chambers initiated or provoked the Fight.

•  Mr Newton’s evidence that Mr Chambers was the main aggressor during the Fight.

•  Mr Newton’s preliminary assertions that Mr Chambers punched Mr Newton for no reason, and/or that Mr Chambers “coward punched” or “king hit” Mr Newton.

•  Mr Newton’s preliminary assertions that Mr Chambers hit Mr Newton with his beer bottle, or otherwise “glassed”, or attempted to “glass”, Mr Newton at any point in time.

•  Mr Newton’s evidence that he passed out, blacked-out, or otherwise became unconscious at any point during the Fight.

•  The assertion that Mr Chambers used excessive force against Mr Newton in attempting to have Mr Newton cease his verbal threats and physical aggression towards Mr Chambers.

[24] We note that at footnote [14] at paragraph [29] the Deputy President refers to the evidence of Mr Paul Newton who said he said he witnessed an element of the Fight from the window of his hotel room. The Deputy President again refers to this evidence at [36] of the Decision.

[25] Mr Paul Newton gave evidence in the proceeding (Exhibit R4, Appeal Book, pp.1201-1250) and was cross-examined. 10 Mr Paul Newton’s evidence was that he saw Mr Chambers sitting on top of Mr Newton striking him in the face. The Deputy President made the following finding in respect of Mr Paul Newton’s evidence:

‘Mr Paul Newton was called by Toll as a witness in these proceedings, and verified his record of interview during the investigation. However, much of his evidence is hearsay, opinion and/or inconsistent with the timeline of events. He states that Mr Chambers was giving him a blank stare (or ‘stink eye’) in the restaurant area prior to the Fight, and appears to infer that somehow the Fight was or might have been premediated by Mr Chambers. I cannot accept Mr Paul Newton’s evidence as reliable, or at least to the extent that I might make any findings in this decision upon such evidence.’ 11 (Footnotes omitted)

[26] The Deputy President’s findings of fact regarding the Fight are not challenged. The Appellant submits that there is no occasion to challenge the findings given the Deputy President’s finding that the incident did not bear a sufficient connection to his employment to give rise to a valid reason for dismissal.

Mr Newton’s verbal altercation with Mr Mitchell on 9 April 2019 (the Verbal Altercation)

[27] The Deputy President deals with the relevant factual matrix associated with the Verbal Altercation at [57] – [68]. The following facts were not in dispute:

•  Mr Newton attended the TWU Parramatta Conference on 9 April 2019 (being held at a hotel in Parramatta, New South Wales) in his capacity as a Toll TWU delegate whilst on paid Delegate’s Leave.

•  Mr Robert Mitchell, another Toll TWU delegate was present, as were around 60 other Toll TWU delegates.

•  Mr Mitchell stated to Mr William Brian (Toll Truck Driver, and TWU delegate), that he (Mr Mitchell) considers Mr Newton to be a “dickhead”, “fuckwit”, “spastic” or “retard” (I do not place any importance as to what term/s was used). 12

•  Mr Brian told Mr Newton that Mr Mitchell had called him (Mr Newton) a “dickhead”. 13

•  Prior to the TWU Parramatta Conference commencing, Mr Newton confronted Mr Mitchell about what he had said. This confrontation occurred in a large carpark outside the hotel, where around 60 other Toll TWU delegates were gathering prior to the delegates meeting. The confrontation lasted around one minute or so, and did not escalate into any form of physical confrontation. 14

[28] The Deputy President made the following findings in respect of the disputed facts:

•  Mr Newton was annoyed (i.e. “pissed off”) that Mr Mitchell had been calling him a “dickhead” or “retard” behind his back

•  Mr Newton approached Mr Mitchell to talk to him about the name-calling

•  during those discussions, Mr Newton pushed Mr Mitchell in the chest and challenged Mr Mitchell to step away from the group of gathered delegates to privately discuss the name calling. Inherent in this challenge was the intimation that the name calling could be resolved by way of physical altercation. Shortly before or immediately after that challenge was made, in an effort to intimidate Mr Mitchell and make it clear that he was willing to get physical, Mr Newton removed his false teeth, 15 and

•  as quickly as the situation escalated, it de-escalated, lasting only around one minute. No further confrontation on the matter occurred. 16

[29] At [108] – [111] the Deputy President concludes that the Verbal Altercation between Messrs Newton and Mitchell warranted some form of sanction (perhaps a warning) but did not provide a valid reason for dismissal.

[30] The Deputy President’s findings in respect of the Verbal Altercation are not challenged in the appeal.

Legal framework

[31] At [69] – [71] of the Decision the Deputy President sets out the terms of ss.385 and 387 noting that there is no dispute that Mr Newton was dismissed on 23 August 2019 within the meaning of ss.385(a) and 386 of the Act; and that s.385(c) and (d) are not enlivened in this matter.

Valid reason

[32] The Deputy President summarises the ‘general principles’ and ‘relevant law’ at [69] – [84] of the Decision. At [85] – [101] the Deputy President sets out the submissions of Mr Newton and Toll in respect of whether there was a valid reason for the dismissal.

[33] At [102] the Deputy President adopts the principles established in Rose v Telstra 17 and acknowledges that the key issue is whether the conduct complained of, in relation to the Fight itself, bears a sufficient connection to Mr Newton’s employment with Toll, and whether the conduct complained vis the Fight is to be considered of such gravity or importance as to indicate a rejection or repudiation of continued employment by Mr Newton.

[34] At [106] the Deputy President states that the ‘core reasons’ relied upon by Toll to dismiss Mr Newton were that:

•  Mr Newton, along with Mr Chambers, had been a willing participant in the Fight

•  the Fight occurred at work

•  fighting at work amounts to serious misconduct

•  the Investigation Report made findings as to serious misconduct, and

•  the Investigation Report recommended the dismissal of Mr Newton for his involvement in the Fight.

[35] At [107] the Deputy President concludes that he did not consider ‘Mr Newton’s mere instigation of, or involvement in, the Fight (that occurred outside of work) is, in and of itself, a valid reason for his dismissal’. In reaching that conclusion the Deputy President relied on his findings in [103] – [104], as follows:

‘In regard to the Fight, I have determined that it does not, in and of itself, bear a sufficient connection to Mr Newton’s employment with Toll. The following factors have led me to this conclusion:

(a) On 30 and 31 May 2019, the Applicants were on leave, and away from the Toll workplace. They were neither at work nor on-call. Although they were on Delegates’ Leave, being paid leave provided for under the Agreement (and otherwise authorised by Toll), this fact cannot directly, or by way of implication, in the circumstances of this case, alter the ordinary position that ‘leave is leave’ (i.e. being time when an employee is not ‘at work’). In this case, the Applicants were on leave in respect of their roles as TWU delegates, attending upon meetings organised by the TWU and not by Toll. They were selected by the TWU to attend such meetings, and were not required or directed by Toll to attend such meetings or take Delegate’s Leave. Whilst it is trite that a TWU delegate at Toll is also an employee of Toll, the fact that a TWU delegate wears two hats at the same time does not mean that they must always wear those hats together. Further, this is not a case where the Applicants were attending TWU meetings at a Toll workplace, or before, during, or after a rostered shift. Nor is this a case where the Applicants were attending an enterprise agreement negotiation, or a disciplinary meeting as a representative or support person for another TWU member. The TWU meetings were being conducted, once the Applicants were on Delegate’s Leave, outside of the Applicants’ working hours.

(b) Further to (a), even if I am found to be wrong and the Applicants’ were at work whilst on Delegate’s Leave, any assertion that the Applicants were at work, at its highest, could only extend to the hours of the TWU meetings themselves (noting that there was no work, union or social gathering (or alike) organised by the TWU or Toll post the cessation of the TWU meetings on 30 or 31 May 2019). I am not aware of any basis that I am able to find that post the cessation of the TWU Meetings, the Applicants were other than on their own free time (being time that the Applicants were neither in their capacity as an employee of Toll, or a Toll TWU delegate). Whatever the Applicants got up to, or wanted to get up to, during their “free time”, was a matter for them. Hence, even if it was accepted that the Applicants were at work up until the conclusion of the TWU meetings at 4:00pm on 30 May 2019, there was an interval of “free” or “personal” time between 4:00pm that day, and the recommencement of the TWU Meetings at 8:00am the following day.

(c) For completeness, I reject Toll’s submission that a sufficient connection to the workplace was somehow enlivened because the Applicants were discussing work related matters in the lead up to the Fight commencing. To adopt this line of reasoning would be to fall into reductio ad absurdum. A simple rhetorical proposition puts the argument to bed in short thrift: Would Toll always be willing to recognise a sufficient connection to a person’s employment just because an employee discussed work-related matters outside of rostered hours? The answer must surely be no.

(d) The fact that Toll paid for and/or organised the Applicants airfares, other transportation, accommodation and meals, does not alter my findings in (a) to (c) above. Toll did so, it appears, of its own volition. I have not been directed to any term of the Agreement, or other policy document, that would require Toll to make such payments or arrangements. Further, there is no evidence to suggest that the Applicants would not have attended the TWU meetings anyway (i.e. had Toll not agreed to pay for their airfares, other transportation, accommodation and meals). The Applicants needed to get to Melbourne and the TWU offices in Port Melbourne, they needed accommodation somewhere, and they needed to eat dinner. In the circumstances of this case, whether such matters were arranged and/or paid for by Toll, the TWU, or the Applicants themselves, is not, in my view, a factor that weighs towards a finding that the Applicants were at work at the time of the Fight. In saying this, it is important to clarify that whilst Toll paid for the Applicants’ dinners on 30 May 2019, it do not dictate or arrange where such dinners were to occur.

(e) Toll has submitted that the terms of the Agreement (in relation to TWU delegates), and/or the terms of its policies and procedures, have been breached by the Applicants as a result of the Fight. In relation to cl.49 of the Agreement, I do not consider the Applicants breached its terms. Firstly, the Applicants did not engage in the Fight during working time. Secondly, the Applicants were in their own “free time” at the time they engaged in the Fight (i.e. neither of the Applicants, at the time of the Fight, were in their capacity as an employee of Toll, or a Toll TWU delegate). Thirdly, it follows that neither of the Applicants were performing any functions, responsibilities or duties, by reference to the terms of the Agreement, when the Fight occurred. I do not consider that a fair reading or construction of the terms of Toll’s policies and procedures extends to, or encompasses, the regulation of an employee’s, or TWU delegate’s, “free time”. Further, although I do not construct such policies such a way, if they are to be constructed in such way, I do not consider them to be reasonable to the extent that they would give rise to a sound, defensible or well-founded reason for dismissal in the circumstances of this case.

(f) Toll submits that because Mr Chambers inflicted injuries to Mr Newton that resulted in him being unfit for work, I should find that a sufficient connection to the work exists. The difficulty with this submission is that Newton’s injuries arose outside of the workplace. In my view, it follows that such injuries, or the infliction of same, do not in and of themselves give rise to a sufficient connection to the Applicants’ employment.

Having concluded that Mr Newton was not at work at the time of the Fight, I also conclude that Mr Newton’s involvement in the Fight was not, of itself, of such gravity or importance as to indicate a rejection or repudiation by Mr Newton of his contract of employment with Toll. In this regard:

(a) There is nothing on the evidence to suggest that Toll’s reputation or interests have been damaged. Of course, I accept generally that employees engaging in fighting at work will not assist an employer’s reputation. However, the Fight did not occur at work. Indeed, there is no suggestion that members of the public, or even other Toll TWU delegates, looked upon the Fight and associated it with Toll.

(b) The fact that other employees became aware of the Fight after it had occurred does not, in my view, enable me to make a positive finding that this ‘awareness’ individually, or combined with the other facts and circumstances of this case, has caused Toll’s interests to have been damaged. Further, no members of the public witnessed the Fight, and the Applicants were not wearing any clothing that would give rise to anyone associating them or their conduct with Toll.

(c) The fact that Mr Newton himself believed that he was bound by Toll’s policies and procedures during his own free time, in my view, is neither here nor there. The question is, on a proper construction and application of Toll’s policies and procedures, did they apply to the Applicants at the time of the Fight (when the Applicants were in their own ‘free’ and personal time). I have found that they do not.’ (Footnotes omitted)

[36] At [109] – [111] the Deputy President deals with the Verbal Altercation and, as mentioned earlier, concludes that it did not provide a valid reason for dismissal.

[37] At [112] the Deputy President states:

‘I have set out the basis upon which I have concluded that the two core reasons relied upon by Toll for the dismissal of Mr Newton, individually or combined, do not amount to valid reasons for his dismissal. I stress that these conclusions relate only to these specific reasons for dismissal (as relied upon by Toll).’

Whether Mr Newton’s dishonesty constitutes a valid reason for his dismissal

[38] The Deputy President’s consideration of this issue is set out at [113] – [148] of the Decision. These aspects of the Decision are central to the appeal.

[39] At [113] – [116] the Deputy President finds:

‘In determining to dismiss both of the Applicants, Toll formed the view that both of the Applicants had been dishonest, or at the very least, less than candid, in relation to their versions of the Fight (i.e. as to what happened to start the Fight, what was said in the lead up to the Fight, and what occurred during the Fight).

There are, however, questions concerning Toll’s reliance upon issues of dishonesty in that, at the time of the Applicants’ dismissals, Toll was unable to properly articulate exactly what the Applicants had been dishonest about.

Rather, Toll appears to have proceeded simply on the basis that neither of the Applicants could be believed (to more or less degrees). This is not a criticism of Toll, or its investigation. The Investigation Report highlights the difficulties that Mr Lambie encountered in determining what actually happened in relation to the Fight, especially in circumstances where there were no witnesses to the Fight, and much of the evidence from persons other than the Applicants was based upon hearsay, speculation and innuendo. It was also apparent to Mr Lambie that there was a factional split amongst TWU delegates, which made evidence from other employees difficult to assess in terms of reliability (i.e. having regard to unknown union factional allegiances).

However, the fact that Toll’s reliance upon issues of dishonesty, as at the time it made the decision to dismiss Mr Newton, might have been incomplete or not fully capable of articulation, does not mean that Mr Newton’s dishonesty (as found to have occurred on the evidence in these proceedings) is to be cast aside from the perspective of the Commission’s ability to make a findings about same, or an ultimate finding as to such dishonesty being a valid reason for his dismissal.’

[40] At [117] the Deputy President set out what he regarded as the relevant question for determination:

‘On the evidence before the Commission, in all the circumstances of the case, does a valid reason for dismissal exist as at the time of the dismissal, notwithstanding that such a valid reason might not be one that was relied upon by the employer at the time of the dismissal, but for example comes to light in a hearing before the Commission?’

[41] At [120] – [139] the Deputy President sets out the various accounts by Mr Newton of the Fight and the Verbal Altercation, concluding at [140] that Mr Newton was not honest with Toll, nor with the Commission, in relation to his accounts of these events.

[42] After stating that Mr Newton was required to be honest and candid with Toll in respect of their investigation, the Deputy President’s conclusion in respect of whether there was a valid reason for Mr Newton’s dismissal is set out at [147] – [148]:

‘By representing the facts of the Fight and the Verbal Altercation as he has, Mr Newton has (both to Toll, and before this Commission) been both dishonest and misleading. In this regard, I note the following:

(a) Mr Newton has maintained his version of events. To date, Mr Newton has not recanted, to any substantial degree, his evidence that he did not in any way provoke the Fight. Nor has he moved away from his assertion that he was ‘king hit’ in a cowardly fashion by Mr Chambers, knocked unconscious, and then punched (absent any resistance from him) whilst he lay on the ground (with Mr Chambers sitting on top of him).

(b) Mr Newton’s dishonesty has been completely self-serving, with absolutely no regard to Mr Chambers personal reputation. Indeed, Mr Newton during the First and Second Interviews continued to maintain that he does not really know if he was glassed by Mr Chambers, and made sanctimonious comments about same, such as “I would like to think he wouldn’t have done something like that”. Given that I have rejected Mr Newton’s evidence that he did not provoke the Fight, and was not knocked unconscious during the Fight, his maintenance of the suggestion that he may have been glassed by Mr Chambers (or otherwise ‘king hit’ by Mr Chambers) is appalling.

(c) Mr Newton’s dishonesty in relation to the Verbal Altercation and his interactions with Mr Mitchell on 9 April 2019, whilst not of the same gravity as his dishonesty in relation to the Fight, are equally self-serving, and only serve to reinforce my view as to the self-serving nature of Mr Newton’s evidence more generally in these proceedings.

(d) Mr Newton’s dishonesty has not been in relation to insignificant or trivial matters. Whether the Fight justified dismissal or not, it was nonetheless a physical altercation between two employees that resulted in physical injury. Toll needed to know the truth as to what had occurred, and why it had occurred, so that it could make a proper assessment of any changes it needed to make at the workplace.

(e) Dishonesty of any form in the employment relationship will undermine the trust and confidence between an employer an employee. The seriousness of such dishonesty measures the degree to which such trust and confidence may be weakened. In this case, Mr Newton’s dishonesty was serious. It has had implications for Toll and Mr Chambers, including in terms of Toll’s investigation, the decisions Toll has made in reliance upon such dishonest information, and the impact it has had upon Mr Chambers.

All in all, I find that Mr Newton’s dishonesty in relation to the Fight and/or the Verbal Altercation constitute a valid reason for his dismissal by Toll. This weighs in favour of a finding that Mr Newton’s dismissal was not harsh, unjust or unreasonable.’

[43] Having determined that there was a valid reason for Mr Newton’s dismissal, the Deputy President turned to the remaining s.387 matters and determined as follows:

•  Mr Newton was not notified of the reasons which constituted a valid reason for his dismissal (s.387(b)):

‘Mr Newton was not notified of the reason for his dismissal. Toll dismissed Mr Newton for “misconduct” because it formed the view that he engaged in the Fight (and was an active participant in same), and the Verbal Altercation (and was the aggressor in same). However, inherent in Toll’s decision to dismiss Mr Newton was the fact that Toll did not believe Mr Newton’s version of events in relation to the Fight and the Verbal Altercation. The facts in this matter are also unusual in that the Commission has found a valid reason for Mr Newton’s dismissal that existed at the time of his dismissal, being a reason upon which Toll did not expressly identify to Mr Newton at the time he was advised of his dismissal. In the circumstances, I consider this factor a neutral consideration in this matter.’ 18 (Footnotes omitted)

•  As to whether Mr Newton was given an opportunity to respond to any reason related to his conduct (s.387(b)) the Deputy President regarded this as a neutral consideration:

‘I agree with Mr Newton that the allegations made against him by Toll lacked specificity, and merely concerned his involvement in the Fight and the Verbal Altercation. However, this is also to be considered in light of the fact that Mr Chambers and Mr Mitchell’s version of events were directly put to him by Toll, but he maintained his assertions as to what occurred. In short, Mr Newton had every opportunity to revise or otherwise correct his version of events, including before this Commission, but chose not to do so.

Further, whilst Toll did not warn Mr Newton that his false denials would give rise to a finding of serious misconduct (before or during the First and Second Interviews), such failure is ameliorated by the fact that questions of dishonesty and/or disparity in his evidence were directly put to him during his evidence before the Commission.

In view of this, I treat any failure by Toll to put specific allegations of dishonesty to Mr Newton during the First and/or Second Interviews, or as part of the disciplinary process, as a neutral consideration in the circumstances of this case.’ 19 (Footnotes omitted)

•  s.387(c) is a neutral consideration as ‘Mr Newton’s dismissal was not for reasons of conduct, not unsatisfactory performance.’²⁰

•  The matters in ss.387(d), (f) and (g) were regarded as neutral considerations.

•  The Deputy President had regard to a range of matters raised by Mr Newton in support of his contention that dismissal was a disproportionate outcome and therefore harsh, and gave these matters weight in his overall determination of whether the dismissal was unfair (see [156] – [158]).

[44] The Deputy President’s conclusion is set out at [165] – [171], relevantly:

‘Having regard to the findings that I have made in this decision, and having given due weight to each of the essential criteria provided for under s.387 of the Act, I am satisfied that Mr Newton’s dismissal was not unfair within the meaning of s.385 of the Act.

In all the circumstances, I have determined that Mr Newton’s unfair dismissal application is to be dismissed.

In weighing the finding I have made as to valid reason, as against the neutral considerations I have identified, and as against the weight to be given to the “other matters” put forward by Mr Newton, I do not consider the latter to be, in the specific facts and circumstances of this case, matters that render Mr Newton’s dismissal harsh, unjust or unreasonable. Mr Newton’s dishonestly [sic] with Toll and before this Commission means that Toll cannot be confident that he will be honest with it into the future. His dishonesty has been in relation to straightforward issues as to his interactions with other persons during the Fight and the Verbal Altercation, however, such straightforward issues have been about significant matters for both Toll and Mr Chambers.

In the circumstances of this case, the question becomes is it harsh, unjust or unreasonable for an employee (even an employee of lengthy service who does not hold a management role) to be dismissed for dishonesty of the gravity engaged in by Mr Newton? Giving due weight to each of the matters set out under s.387 of the Act, I have concluded that it is not.

…

In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both Mr Newton and Toll. I have not found Mr Newton’s dismissal to be unfair, and I have taken into account the needs of both Toll and its employees in reaching this determination.

A separate order will be issued dismissing the Application for an unfair dismissal remedy made by Mr Newton in this matter.’

3. The Appeal

[45] Mr Newton advances a number of arguments as to why the Commission ought to grant permission to appeal, by reference to the appeal grounds advanced. 21 In particular, Mr Newton submits that the appeal raises an important question of principle of general significance to the Commission’s unfair dismissal jurisdiction under Part 3-2 of the Act concerning the circumstances in which an employer can require an employee to answer questions about matters that occur outside the workplace which are not otherwise connected to the employee’s employment in the sense described in Rose v Telstra.22

[46] Mr Newton also contends that the Deputy President made a series of jurisdictional errors. 23

[47] Toll submits that for the reasons set out in its submissions of 3 March 2021, the appeal should be refused because the grounds relied upon by Mr Newton do not engage the public interest. 24

[48] The submissions advanced by Mr Newton and Toll in respect of the various grounds of appeal were summarised in a Background Paper issued by the Commission on 26 March 2021. Question 13 of the Background Paper asked the parties whether the summary of the submissions advanced in respect of each ground of appeal were accurate. In response, Toll did not raise any substantive concerns regarding the summary of the submissions set out at paragraphs [40]-[93] of the Background Document, but reiterated that Toll relies on the entirety of its written outline of submissions dated 3 March 2019 and asks that those submissions be taken into account.

[49] We note here that we have taken account of the written and oral submissions advanced on behalf of Mr Newton and Toll.

4. Consideration

[50] The appeal raises questions of general importance and significance to the Commission’s unfair dismissal jurisdiction, in particular:

1. The correct application of s.387(a).

2. The correct approach to findings of dishonesty which are relied upon to provide a valid reason for dismissal.

3. The correct application of ss.387(b) and (c).

[51] We are satisfied that it is in the public interest to grant permission to appeal and we do so.

[52] It is convenient to categorise the various grounds and arguments advanced on appeal into three broad topics:

•  valid reason (s.387(a))

•  notification of the valid reason (s.387(b)), and

•  the opportunity to respond to the valid reason (s.387(c)).

Valid reason

[53] Section 387(a) of the Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account (among other things):

‘whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)’

[54] Various aspects of the Deputy President’s consideration and application of s.387(a) are challenged on appeal. In essence the Appellant contends that the Deputy President erred in three main respects:

1. Deciding that the Commission is not limited to the reason relied upon by the employer in finding that there was a valid reason for the dismissal (The error of principle).

2. The finding (at [147], also see [148]) that by representing the facts of the Fight and the Verbal Altercation Mr Newton had ‘(both to Toll and before this Commission) been both dishonesty [sic] and misleading’. The Appellant submits that such a finding was a serious one and it was not open to the Deputy President, without giving Mr Newton notice that he was contemplating such a conclusion, to make such a finding: ‘constituting a denial of procedural fairness to Mr Newton and a substantial wrong or miscarriage so as to warrant a grant of permission to appeal and the quashing of the Decision’ (The denial of procedural fairness).

3. In concluding that Mr Newton was required to be honest and candid with Toll in respect of the investigation into the Fight (The requirement to be honest and candid).

1. The Error of Principle

[55] As we have mentioned, the Deputy President purports to summarise the ‘general principles’ and ‘relevant law’ with respect to s.387(a) at [69]-[84] of the Decision. At [72]-[78] he says:

‘[72] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.

[73] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s.387. That said, relevant weight is a matter for the relevant decision-maker.

[74] It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable…

[75] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it (on the balance of probabilities).

[76] Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer…

[78] Where the conduct in question concerns fighting, the attitude of the Commission (generally) will tend 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 a 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 a fight, relevant considerations include whether the dismissed employee was provoked, and whether he or she was acting in self-defence.’ (Footnotes omitted, emphasis added)

[56] At [117] the Deputy President sets out the question he poses for determination:

‘On the evidence before the Commission, in all the circumstances of the case, does a valid reason for dismissal exist as at the time of the dismissal, notwithstanding that such a valid reason might not be one that was relied upon by the employer at the time of the dismissal, but for example comes to light in a hearing before the Commission?’

[57] At [118] the Deputy President states:

‘It follows that the Commission’s inquiry as to whether a valid reason for a dismissal exists is not limited to only the reasons given by an employer for a dismissal, but may include, for example, reasons later identified by an employer, or by the Commission, that were in existence at the time a dismissal occurred.’

[58] The propositions at [72], [74] and [75] of the Decision are uncontentious. In short, the Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss. Where – as is the case here – a reason for a termination is based on the conduct of the employee, the Commission must determine whether the alleged conduct took place and what it involved, on the basis of the evidence in the proceedings before it. 25

[59] The Appellant rejects the proposition contained the second sentence of [76] – namely, that in determining whether there is a reason for termination the Commission is not limited to the reason relied on by the employer, if that proposition is understood to mean that the Commission is entitled to embark on a roving or inquisitorial inquiry into reasons which may ground a valid reason for dismissal which are not expressly advanced and argued before the Commission by the employer.

[60] The Appellant contends that such an approach would be:

1. Contrary to the obligation of the Commission to act judicially and accord the parties procedural fairness (citing Edwards v Justice Giudice and Others [1999] FCA 1836 at [44] (Marshall J)).

2. Inconsistent with the principle that the employer bears the onus of establishing the validity of a particular reason for dismissal (citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204).

[61] For the same reasons the Appellant submits that the question posed at [117] and the observation at [118] are erroneous.

[62] The Appellant submits that the statement of principle at [118] is erroneous because:

‘it is not appropriate for the Commission to itself formulate or identify valid reasons for dismissal not expressly relied on and advanced by the employer during the course of a hearing. Whilst an employer can, un-controversially, rely on ‘after acquired’ knowledge of misconduct to establish a valid reason, it cannot rely on conduct which was known to it and not relied on in effecting a dismissal as the employer will have waived the capacity to rely on such conduct.’ 26

[63] The Appellant concedes that an employer can rely on what is actually ‘after acquired’ knowledge of conduct that did not come to light by the time of dismissal but submits that this must be done by the employer, specifically and directly at the hearing, given that it is the employer who bears the onus of establishing a valid reason for dismissal.

[64] The Appellant contends that the correct principles are that an employer:

•  can rely to establish a valid reason for dismissal on ‘after acquired’ knowledge of conduct which occurred during the employment but did not come to light by the time of dismissal. 27

•  cannot rely to establish a valid reason on conduct which occurred during the employment of which the employer was aware but had waived/condoned by not relying on such conduct in deciding to dismiss the employee. 28

[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. 29 Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.30

[66] We accept that if the Commission determines that there is a valid reason for dismissal which is not expressly advanced by the employer then it must act judicially and accord the parties procedural fairness – an issue to which we will return shortly; but we reject the Appellant’s waiver submission; namely the proposition that in the context of establishing a valid reason for dismissal an employer cannot rely on conduct of which the employer was aware but waived/condoned by not relying on such conduct to dismiss the employee. Two authorities are cited in support of the submission put: Howard v Pilkington (Australia) Ltd 31(Pilkington) and Cannan v Nyrstar Hobart Pty Ltd32 (Nyrstar).

[67] Pilkington concerned a claim for damages for breach of contract arising from the summary dismissal of a manager. The employer in that case had justified the manager’s dismissal by relying on three instances of disobedience of a lawful instruction or direction. One issue in the proceedings was whether Pilkington had acquiesced or condoned the manager’s conduct. In respect of this issue, Judd J held, relevantly:

‘In Rankin v Marine Power International Pty Ltd Gillard J provided a helpful statement of the legal principles to be applied when an employer is taken to have condoned, waived, acquiesced in or decided not to rely upon an employee’s conduct to terminate the contract of employment such as to disentitle the employer from later relying upon that conduct to justify summary dismissal. His Honour said,

352 An employer who has full knowledge of the misconduct of an employee, and who makes a decision to continue to employ the employee, cannot at a later date, unless of course other facts come to his knowledge, dismiss him summarily on the basis of the employee's known misconduct. It is said that the employer has waived his right to dismiss the employee summarily, and thereby condones the misconduct…’ 33 (Footnotes omitted)

[68] Pilkington states the law in respect of waiver or condonation in the context of common law summary dismissal for misconduct. It says nothing about the Commission’s statutory task under s.387. In our view, caution needs to be exercised in seeking to import common law notions into what is a statutory, arbitral function. As Gray J observed in Miller v University of NSW:

‘In terms of legal rights, the employment of most employees in Australia is terminable on some form of notice. The right to terminate by notice might arise from the express or implied terms of the contract of employment, or from an award or other collective instrument governing the terms and conditions of the employment. Generally, the notice may be given by either party. Also generally, it might be given for good reason, bad reason or for no reason at all. If the “valid reason” contemplated by s 170CG(3)(a) of the WR Act involved no more than an inquiry into the legal rights of the parties, in most cases it would be a short inquiry. It would be answered by saying that the employer had a right to dismiss the employee on notice and had exercised that right. The provision refers to a “valid reason” in another sense altogether… What is sought is not the existence of a legal entitlement to terminate the employment, but the existence of a reason for the exercise of that right that is related to the factual situation. The validity is not to be judged by reference to legal entitlements, but to the Commission's assessment of the factual circumstances as to what the employee is capable of doing or has done, or as to what the employer requires in order to continue its activities.’ 34

[69] Nyrstar is a first instance decision in which the Member states:

‘The principle behind the Applicants’ submission of condonation is that an employer, with full knowledge of an employee’s misconduct and continues to employ him [sic], cannot later rely on that misconduct to dismiss the individual. Thus, by knowing the behaviours of Mr Cannan and Mr Fuller and electing to continue the employment of them, Nyrstar ‘condoned’ their conduct and ‘waived’ the right to terminate their employment contracts

The practical manifestation of this principle in the employment context is that a wronged party has the right to elect, in the face of a breach of a condition of an employment contract, either to continue the contract or terminate it for breach. In order for condonation to be present, an employee must provide that:

•  the employer had full knowledge of the conduct;

•  despite this, the employer retains the employee’s services; and

•  with this election, the employer has deliberately given up the right to dismiss the employee summarily.’³⁵ (Footnotes omitted)

[70] A subsequent appeal was upheld, 36 but only on the limited ground that the Member had erred in assessing lost remuneration in her determination of the compensation order. As to the Member’s remarks about condonation the Appeal Bench held:

‘The evidence clearly supports the finding of Deputy President Wells that the Appellant’s managers had condoned the conduct of the Respondents in that they were not disciplined for the conduct and they were rated as satisfactory or better than satisfactory employees in their performance reviews over the time in which the relevant conduct had occurred. The evidence relied on by the Appellant to challenge the finding of the Deputy President went largely to evidence as to the view of managers of the relevant conduct and the evidence of that does not militate against the substantial evidence that the Respondents were not disciplined in relation to the relevant conduct. This conclusion also disposes of the Appellant’s ground 5.3.2 in its written Outline of Submissions.’ 37 (Footnotes omitted)

[71] Two other decisions also bear on this issue. In Toll Holdings Limited t/a Toll Transport v Johnpulle 38 (Johnpulle) the Full Bench addressed the submission that toleration or condonation of misconduct was relevant to whether a dismissal was harsh, unjust or unreasonable, as follows:

‘It may be accepted that, under the general law, an employer is disentitled to summarily dismiss an employee for an earlier instance of misconduct on the part of that employee where the employer with full knowledge of the misconduct had decided to retain the employee in employment. It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct by an employee in this way and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee.’ 39 (Footnotes omitted)

[72] In Conicella v Phillip W Hill & Associates Pty Ltd t/a Hunter Legal & Conveyancing 40 (Conicella), Saunders C (as he then was) relying on Johnpulle, stated:

‘In my view, the following principles are apparent from these authorities on the question of reliance by an employer on earlier instances of misconduct on the part of an employee when making a later decision to dismiss the employee:

•  where an employer with full knowledge of earlier instances of misconduct on the part of an employee has decided to retain the employee in employment, those earlier instances of misconduct cannot, of themselves, constitute valid reasons for dismissal;

•  however, the earlier instances of misconduct may be relevant to the question of whether there was a valid reason for dismissal because they may increase the gravity of later misconduct, particularly where the earlier misconduct was of the same or a similar character and the employee was warned not to repeat it, thereby contributing to a finding that the reason(s) for dismissal were “sound, defensible and well founded”; and

•  the earlier instances of misconduct and any warnings in relation thereto may also be “relevant matters” (s.387(h)) to an assessment of whether the dismissal was too harsh a penalty in the circumstances.’ 41 (Footnotes omitted)

[73] In our view, Nyrstar and Conicella both overstate the position. The proposition that earlier instances of misconduct which have been condoned by the employer ‘cannot, of themselves, constitute valid reasons for dismissal’ is simply wrong. The proposition erroneously conflates the position at common law with the Commission’s statutory task under s.387.

[74] Further, the proposition put is not supported by Johnpulle. The relevant passage from Johnpulle is:

‘It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct … and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee.’ 42 (Emphasis added)

[75] Contrary to the summation in Conicella, the Full Bench in Johnpulle was not stating a decision rule that past (condoned) misconduct cannot constitute a valid reason for dismissal. Properly understood, Johnpulle is authority for the proposition that the attitude of the employer to such misconduct – that is, at the time the employer did not think it sufficiently serious to warrant summary dismissal – is a significant consideration, relevant to whether such misconduct constitute a valid reason for dismissal. However, it is not determinative of the question. 43

[76] If condonation was determinative it would be akin to adopting a subjective test to the question of whether there was a valid reason for the dismissal; that is, one would approach the issue solely from the perspective of the employer. Such an approach is contrary to principle. As we have mentioned, the Commission is required to conduct an objective analysis of all relevant facts in determining – on the basis of the evidence in the proceedings before it – whether there was a valid reason to dismiss.

[77] For completeness we note that we also reject the submission that the Deputy President’s statement of principle of [117] and [118] is ‘inconsistent with the principle that the employer bears the onus of establishing the validity of a particular reason for dismissal’.

[78] The authorities relied on by the Appellant, Yew 44 and Allied Express45 are decisions of the Industrial Relations Court and the Federal Court respectively and provide no support for the proposition put; they were decided under an earlier statutory scheme in which s.170DE(1) stated:

‘An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.’

[79] Further, at the time Yew was decided, s.170EDA expressly dealt with onus of proof stating:

‘the termination is taken to have contravened subsection 170DE(1) unless the employer proves that…there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1)’

[80] There is no equivalent provision in the Act.

[81] Contrary to the Appellant’s contention, the extent to which the legal concept of onus or burden of proof applies to matters before an administrative tribunal such as the Commission is somewhat vexed. As observed by the Full Bench in Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan:

‘As to the issue of onus agitated by the Respondent, it must be said that the extent to which the legal concept of onus or burden of proof arises in relation to matters considered by an administrative tribunal such as the Commission is a difficult one. However, in the context of the question whether a dismissal is unfair, to the extent that there is a legal onus or something analogous to it, the onus rests on the applicant in the sense that it is the applicant who bears the risk of failure if the satisfaction required by s.385 including s.385(c) is not reached.  As to evidentiary onus, plainly a party seeking to establish a fact bears onus of adducing evidence necessary to establish that fact. In a practical sense, in most cases the question of where an evidentiary onus resides will be answered by asking: in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about the matter were given?’ 46

[82] For the reasons given the Deputy President did not err in the manner contended by the Appellant. The Commission is not limited to the reason relied upon by the employer in finding that there was a valid reason for dismissal.

2. The Denial of Procedural Fairness

[83] As we have mentioned, the Deputy President concluded – correctly in our view – that the Fight did not have a sufficient connection to Mr Newton’s employment with Toll and accordingly Mr Newton’s involvement in the Fight did not constitute a valid reason for his dismissal. The Deputy President then goes on to make the following finding (at [148]):

‘All in all, I find that Mr Newton’s dishonesty in relation to the Fight and/or the Verbal Altercation constitute a valid reason for his dismissal by Toll. This weighs in favour of a finding that Mr Newton’s dismissal was not harsh, unjust or unreasonable.’ (Emphasis added)

[84] This finding needs to be seen in the context of the decision read as a whole. At [50] the Deputy President states that he strongly preferred the evidence of Mr Chambers (as opposed to Mr Newton) in relation to the Fight and sets out the basis for that preference (see [20] above).

[85] The Deputy President’s characterisation of Mr Newton’s evidence is set out at [51] – [52], as follows:

‘[51] In my view, much of Mr Newton’s evidence as to the Fight was either self-serving or implausible, in that many of his answers, and his demeanour when providing such answers, gave me the impression that he was attempting to either:

(a) shift blame or responsibility for his role in the Fight;

(b) cast Mr Chambers as the antagonist of the Fight, without proper regard to, or honest account of, his own actions;

(c) portray himself as a victim in the Fight;

(d) diminish the overall seriousness of the Fight; and/or

(e) muddy the waters as to the facts to attempt to create an outcome on the evidence where positive findings of fact contrary to Mr Newton’s interests are unable to be made.

[52] Mr Newton’s evidence before the Commission was, in my view, merely a continuation of the same behaviours exhibited by Mr Newton immediately post the Fight, whereby he:

(a) initially and falsely asserted to Toll and other employees that he had been, or might likely have been, “glassed” by Mr Chambers during the Fight;

(b) had totally lost consciousness or “blacked-out” during the Fight; and/or

(c) had been “beaten up” (or “king hit” or “coward punched”, as it is otherwise known) by Mr Chambers for no apparent reason.’ (Emphasis added)

[86] At [53] the Deputy President characterises Mr Newton’s dishonesty as ‘sinister conduct’ and an attempt to save his job by impugning and damaging Mr Chambers’ character and reputation:

‘Mr Newton’s foregoing assertions against Mr Chambers are, in my view, sinister conduct that can never be justified. I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.’ (Footnotes omitted, emphasis added)

[87] At [119] the Deputy President says:

‘Unlike Mr Chambers, I have found Mr Newton to have engaged in dishonest conduct during the course of the investigation into the Fight and the Verbal Altercation, and before this Commission. Mr Newton’s conduct in this regard marks a departure from the circumstances that applied to Mr Chambers. Mr Newton’s dishonest behaviour in terms of a valid reason for dismissal must be considered separately to the conduct relied upon by Toll in dismissing Mr Newton (i.e. for his willing involvement in the Fight and the Verbal Altercation).’ (Emphasis added)

[88] Later at [140]:

‘Based upon my Mr Newton’s responses to Toll during the First and Second Interviews, and his evidence before this Commission, given my findings in this decision, I reiterate my view that Mr Newton has not been honest with Toll or the Commission in relation to his accounts of the Fight and the Verbal Altercation.’ (Original, emphasis added)

[89] At [147] the Deputy President reiterates that ‘by representing the facts of the Fight and the Verbal Altercation as he has, Mr Newton has (both to Toll, and before this Commission) been both dishonest and misleading’ (emphasis added) and notes that:

‘Mr Newton’s dishonesty has been completely self-serving, with absolutely no regard to Mr Chambers personal reputation. Indeed, Mr Newton during the First and Second Interviews continued to maintain that he does not really know if he was glassed by Mr Chambers, and made sanctimonious comments about same, such as “I would like to think he wouldn’t have done something like that”. Given that I have rejected Mr Newton’s evidence that he did not provoke the Fight, and was not knocked unconscious during the Fight, his maintenance of the suggestion that he may have been glassed by Mr Chambers (or otherwise ‘king hit’ by Mr Chambers) is appalling.’ 47

[90] The Appellant submits that the Deputy President made a finding that ‘Mr Newton had been deliberately dishonest and embarked on a malicious and self-serving campaign to impugn Mr Chambers:

‘It was, in effect, a conclusion that Mr Newton had lied during their investigation and had not complied with his oath to give truthful evidence before the Commission.’ 48

[91] Contrary to the Appellant’s submission, Toll submits 49 that it is overstating and misrepresenting the Decision to say that the Deputy President found that Mr Newton had deliberately lied with some sort of malevolent purpose:

‘The Deputy President certainly found that the Appellant’s evidence was completely self-serving. He found that the Appellant’s dishonesty had absolutely no regard to Chambers’ reputation. He found that the Appellant had not recanted or moved away from his assertion that he had been king hit in a cowardly fashion by Mr Chambers. He found that the Appellant’s maintenance of the suggestion that he had been “glassed” by Mr Chambers was appalling. He found that the Appellant’s dishonesty was serious and that it had implications for the Respondent and Mr Chambers.

However, the Deputy President did not make any finding about the Appellant’s motive other than that he was driven by self-interest. The Deputy President did not find that the Appellant had embarked on a malicious self-serving campaign to impugn Mr Chambers or that he acted with some sort of malevolent purpose or that he set out to impugn or damage Mr Chambers’ reputation. This is overreach on the part of the Appellant and the Appellant’s submissions do not point to where such findings were made.’ 50 (Footnotes omitted)

[92] We reject Toll’s contention that the Deputy President did not make a finding about Mr Newton’s motive, other than he was driven by self-interest. At [53] the Deputy President says:

‘I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.’ (Footnotes omitted)

[93] It is plain from the above extract that the Deputy President found that ‘a core purpose’ of what the Deputy President characterised as Mr Newton’s false assertions against Mr Chambers was ‘to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce.’ Further, the Deputy President characterised Mr Newton’s assertion against Mr Chambers as ‘sinister conduct that can never be justified.’

[94] Further, we note that the Deputy President’s earlier finding, at [147], that Mr Newton’s representation of the facts of the Fight and Verbal Altercation was ‘both dishonest and misleading’. The Deputy President’s findings plainly go further than merely rejecting Mr Newton’s evidence. Nor should the earlier findings be divorced from the Deputy President’s ultimate conclusion at [148] – these findings would serve no purpose if there were not relevant to the issue of whether there was a valid reason for the dismissal.

[95] When viewed in the context of the Decision as a whole, it appears to us that the Deputy President found that Mr Newton’s conduct was not only dishonest, but egregiously so, particularly having regard to the comments made by the Deputy President at [51], [53] and [147]. Further, the Deputy President clearly drew the inference that a core purpose in Mr Newton’s false assertions against Mr Chambers was ‘to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll’. The Deputy President characterised Mr Newton’s behaviour as ‘both dishonest and misleading’ (at [147]) and ‘sinister conduct that can never be justified’ (see [53]).

[96] Finally, the Deputy President’s repeated reference to Mr Newton’s ‘dishonest’ conduct before the Commission (see [119] and [140]) gives the clear impression that the Deputy President considered Mr Newton’s conduct during the proceedings as relevant to his consideration of whether Mr Newton was validly dismissed for being dishonest.

[97] It is convenient to deal with the later point first.

[98] On the basis of the paragraphs mentioned above, the Appellant submits:

‘That is the - in a manner that's been enlivened by what the respondent said in its submissions, the Deputy President appears to have taken into account the conduct during the Commission proceedings as itself giving rise to a valid reason for dismissal.  That was obviously not open as it was not conduct that existed at the time of the dismissal and obviously post dated the dismissal.  It could not have provided a valid reason.’ 51

[99] A valid reason can only be found based on ‘after acquired’ facts if such facts existed at the time of the dismissal. To the extent that Mr Newton was ‘dishonest’ in his evidence before the Commission, such dishonesty took place many months after Mr Newton’s dismissal. Mr Newton’s conduct before the Commission was irrelevant to the question of whether or not there a valid reason for his dismissal within the context of s.387(a).

[100] The Deputy President erred in taking into account Mr Newton’s ‘dishonest conduct’ before the Commission in assessing whether there was a valid reason for dismissal.

[101] We now turn to the Deputy President’s findings about Mr Newton’s dishonesty and the imputed motive for that dishonesty. The central question is whether or not Mr Newton was afforded procedural fairness in respect of these issues.

[102] The finding that Mr Newton had been dishonest and had engaged in ‘sinister conduct’ by embarking on a self-serving campaign to impugn Mr Chambers is a significant and serious finding. It was, in effect, a conclusion that Mr Newton had lied during Toll’s investigation and had not complied with his oath to give truthful evidence before the Commission.

[103] We agree with the Appellant’s contention that there is a significant difference between rejecting a person’s evidence and a finding that they have deliberately lied, particularly where the finding is that they have lied with some sort of malevolent purpose. As the plurality observed in Smith v NSW Bar Association 52(Smith):

‘As a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.’ 53

[104] A finding of the type made by the Deputy President carries with it an obligation to accord the relevant party procedural fairness. In Smith the plurality put it this way:

‘…it is convenient to proceed on the assumption that his Honour also acted on a positive finding that the appellant deliberately lied. But even if the evidence was sufficient to support the findings so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made… In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding… were flawed.’ 54

[105] The High Court’s judgment in Kuhl v Zurich Financial Services Australia Ltd 55 (Kuhl) is also apposite.

[106] In Kuhl the appellant was an employee of Transfield Construction Pty Ltd. He was engaged to clean out the reactors used in the production of hot briquetted iron at BHP’s plant in Port Hedland. WOMA (Australia) Pty Ltd supplied the vacuuming equipment used in the cleaning. It was also responsible for directing and supervising the operators of the equipment, for setting up the hose and for clearing blockages in it. In mid-November 1999, the hose Kuhl was using became blocked. Kuhl went to investigate. An employee of Hydrosweep Pty Ltd, Mr Kelleher, attempted to unblock the hose. Hydrosweep also supplied a vacuum truck and two operators for WOMA to use at the site. Kelleher passed the hose from side to side in front of the suction inlet but directed away from Kuhl. The vacuuming facility was in operation at the time. Kuhl’s left arm managed to get sucked into the hose, causing him serious injuries.

[107] In the proceedings at first instance the trial judge made the following observation about the plaintiff’s evidence:

‘The plaintiff was less than expansive when describing how his arm was drawn into the vacuum hose, and I formed the view that for whatever reason he was reluctant to say precisely what happened. I accept the essentially unchallenged evidence of Mr Kelleher that the suction inlet was directed away from the plaintiff as the hose was passed to him, and I am left to infer that some subsequent action by the plaintiff caused his arm to be drawn in by the suction force.

I am satisfied that the plaintiff was acutely aware of the necessity not to allow any part of the body to come into contact with the suction inlet. Not only does the plaintiff accept that, but the associated risks were obvious.’ 56 (Emphasis added)

[108] The ‘less than expansive’ evidence of the plaintiff which caused the trial judge to conclude that he was ‘reluctant’ was the following evidence-in-chief:

‘What happened when the hose was handed back towards you? --- My arm was caught in it, in the end, opening of it, whatever you want to call it.

If you could just describe in your own words to the court, how was the hose passed back towards you? --- Passed direct ---

What was the physical action? --- Just passed directly back to me. I moved it a bit to the side to grab it as it was the only way to do it and the next thing my arm was gone.

Which arm? --- Left, sucked in.’ 57

[109] The plaintiff was not asked further questions in chief on that subject, nor was he asked any questions in cross-examination about it. The trial judge asked no questions about it.

[110] In Kuhl the plurality (Heydon, Crennan and Bell JJ) characterised the trial judge’s finding that the plaintiff was ‘reluctant to say precisely what happened’ as ‘an important one’:

‘To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth. That is a serious conclusion to reach, for the following reasons…

…it is one thing to say that a plaintiff's evidence is inadequate to make out a claim; it is another thing to say that a plaintiff's evidence is not only inadequate, but that it has been tailored by deliberate non-responsive suppression.’ 58

[111] The plurality then set out the conditions to be met before such a finding is made:

‘It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.’ 59

[112] The plurality held that the second condition had not been satisfied:

‘The plaintiff had no opportunity to deal with the criticism. Normally cross-examining counsel will prefigure and lay the ground work for any criticism a judge may feel minded to make of a witness’s evidence in chief. But here there was no cross-examination on the plaintiff’s evidence in chief about what happened in the moments before he sustained his injuries. This created a difficulty for the trial judge…

There was no point in the trial judge mentioning his conclusion that the plaintiff’s evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff’s evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the judge’s reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff’s evidence.’ 60

[113] In the present matter the Appellant contends that the second condition in Kuhl was not met:

‘at no point during Mr Newton’s evidence, or during the conduct of the case before the Commission, was Mr Newton put on notice that the Deputy President may conclude he was deliberately fabricating his evidence or had conjured up a tale to impugn and damage Mr Chambers’ character and reputation.’

[114] Toll takes a contrary position and submits:

‘…there is no basis to the assertion that the Appellant was not given an opportunity to deal with the allegation that he had been dishonest or less than candid. This reason for dismissal was specifically identified in the Respondent’s Outline of Submissions filed before the hearing – not as an afterthought as alleged by the Appellant. The Appellant had all of the Respondent’s evidence before the hearing. The Appellant sought to meet the Respondent’s evidence in his own witness statements. He knew that his version of events would be the subject of cross-examination. He was cross-examined and given every opportunity to address inconsistencies between his evidence and that of Mr Chambers. At all times he was on notice (or should reasonably have anticipated) that the Respondent would make a final submission that his dishonest conduct in relation to the investigation was a valid reason for dismissal.’ 61

[115] Further, Toll contends that Mr Newton was ‘not ambushed with a finding of dishonesty’:

‘The Appellant’s criticisms of the Deputy President ignore important matters of context, including that the Appellant must be taken to have been well aware that his honesty and credit were on the line when he made his Application… The Appellant must be taken to have known the critical importance of his evidence to the central issues in the case and that it would be scrutinised by the Commission.’ 62

[116] The basis for Toll’s submission is that Mr Chambers and Mr Mitchell's version of events were directly put to the Appellant by Toll, but he maintained his version as to what had occurred (albeit with inconsistencies):

‘The Appellant had every opportunity to revise or otherwise correct his version of events during the investigation and he warranted to the investigator that he had been truthful in his answers. During the course of the proceeding before the Commission, questions of disparity in his evidence were directly put to him during cross-examination, but he doubled-down with his version.’ 63

[117] We begin by considering the reasons given by Toll for Mr Newton’s dismissal at the time the dismissal occurred.

[118] It is apparent that Mr Newton’s ‘dishonesty’ during the investigation was not the reason given by Toll for his dismissal – indeed the Deputy President reached the same conclusion. Notably omitting any reference to dishonesty, at [106] the Deputy President observes that the ‘core reasons’ relied upon by Toll to dismiss Mr Newton were that:

•  Mr Newton, along with Mr Chambers, had been a willing participant in the Fight;

•  the Fight occurred at work;

•  fighting at work amounts to serious misconduct;

•  the Investigation Report made findings as to serious misconduct; and

•  the Investigation Report recommended the dismissal of Mr Newton for his involvement in the Fight.

[119] Further at [119] the Deputy President says:

‘Unlike Mr Chambers, I have found Mr Newton to have engaged in dishonest conduct during the course of the investigation into the Fight and the Verbal Altercation, and before this Commission. Mr Newton’s conduct in this regard marks a departure from the circumstances that applied to Mr Chambers. Mr Newton’s dishonest behaviour in terms of a valid reason for dismissal must be considered separately to the conduct relied upon by Toll in dismissing Mr Newton (i.e. for his willing involvement in the Fight and the Verbal Altercation).’ (Emphasis added)

[120] The Deputy President then goes on to consider whether Toll had dismissed Mr Newton for dishonesty:

‘[113] In determining to dismiss both of the Applicants, Toll formed the view that both of the Applicants had been dishonest, or at the very least, less than candid, in relation to their versions of the Fight (i.e. as to what happened to start the Fight, what was said in the lead up to the Fight, and what occurred during the Fight).

[114] There are, however, questions concerning Toll’s reliance upon issues of dishonesty in that, at the time of the Applicants’ dismissals, Toll was unable to properly articulate exactly what the Applicants had been dishonest about.

[115] Rather, Toll appears to have proceeded simply on the basis that neither of the Applicants could be believed (to more or less degrees). This is not a criticism of Toll, or its investigation. The Investigation Report highlights the difficulties that Mr Lambie encountered in determining what actually happened in relation to the Fight, especially in circumstances where there were no witnesses to the Fight, and much of the evidence from persons other than the Applicants was based upon hearsay, speculation and innuendo. It was also apparent to Mr Lambie that there was a factional split amongst TWU delegates, which made evidence from other employees difficult to assess in terms of reliability (i.e. having regard to unknown union factional allegiances).

[116] However, the fact that Toll’s reliance upon issues of dishonesty, as at the time it made the decision to dismiss Mr Newton, might have been incomplete or not fully capable of articulation, does not mean that Mr Newton’s dishonesty (as found to have occurred on the evidence in these proceedings) is to be cast aside from the perspective of the Commission’s ability to make a findings about same, or an ultimate finding as to such dishonesty being a valid reason for his dismissal.’

[121] There is no challenge to the Deputy President’s characterisation of the conduct relied on by Toll in dismissing Mr Newton.

[122] It is clear that Toll did not rely upon dishonesty in the terms referred to by the Deputy President at the time of Mr Newton’s dismissal. What then was put to Mr Newton during the course of the Commission proceedings?

[123] The Form F3 – Employer’s response to unfair dismissal applications makes no mention of a lack of candour or a similar sentiment, rather it simply asserts that the Respondent had a ‘valid reason’ to terminate Mr Newton’s employment. 64

[124] The proposition that Mr Newton’s dishonesty constituted a valid reason for dismissal was first raised in the Respondent’s submissions of 6 December 2019 65 and not revisited until the Respondent’s final submissions of 27 April 2020, after the hearings had taken place:

•  In its submission of 6 December 2019, at [43], the Respondent states Mr Newton’s ‘involvement in the 30 May incident constitutes a valid reason for dismissal’ and then goes on to particularise the valid reason, stating at subparagraph (g):

‘the Applicant was not honest about the 30 May incident throughout the investigation and disciplinary process’. 66

•  In its final submissions of 27 April 2020, the Respondent contends that:

•  Mr Newton was less than candid during the investigation and disciplinary process and that such a lack of candour is a sound, defensible and well-founded reason for termination of employment: 67

•  although Mr Rugendyke and Mr Lambie had an initial impression that Mr Newton had been a victim of an unprovoked attach, it became apparent during the investigation that Mr Newton had initiated the altercation 68

•  Mr Newton modified explanations relating to his involvement in the 30 May incident over time, and 69

•  Mr Newton’s evidence during the hearings at first instance revealed that Mr Newton provided inconsistent versions of, and sought to downplay his involvement in, the 30 May incident. 70

•  Mr Newton was required to be candid and upfront so that the Respondent could determine and take appropriate action, in particular:

‘Mr Newton had in a number of important respects provided, at worst, dishonest, and otherwise incomplete and misleading responses, including in this statements in these proceedings. His lack of candour and/or prevarication meant that Toll could not be confident Mr Newton would be candid with it in the future, particularly if Mr Newton was involved in other conflict with, for example, an employee who was a delegate. This also was a valid reason for the termination of his employment.’ 71

[125] At [152] of the Decision the Deputy President states that ‘questions of dishonesty and/or disparity in his evidence were directly put to [Mr Newton] during his evidence before the Commission’. The footnote in support of that proposition refers to the transcript at PN1174-1228 and PN1260-1356. The relevant extracts are set out at Attachment A.

[126] At no stage during this aspect of his evidence is it put to Mr Newton that he is being dishonest or engaging in ‘sinister’ behaviour by embarking on a self-serving campaign to impugn Mr Chambers. Mr Newton is challenged on his evidence but it is not put to him that he is being dishonest for a ‘sinister’ purpose. The high water mark appears at [888] – [898] (emphasis added):

PN888

Well, when we look at your first statement in the matter, at paragraph 29 and following, you describe in short terms what happened.  You decided to go to bed.  "So, I took my jumper off and turned around and proceeded to go to bed. But all of a sudden I was out cold.  I remember waking up on the cement."  So, that paints a picture of you, or paints a picture of Mr Chambers, really, engaging with you without any provocation or without any agitation on either of your parts.

PN889

MR GIBIAN:  I object.  The witness is just being asked to characterise his evidence, or to provide commentary upon it, not as to what happened or what he thought.  It's really just not relevant evidence and of no assistance to the Commission.

PN890

THE DEPUTY PRESIDENT:  Isn't he being asked about what he's intending to convey by his evidence, so that, you know – I understand what he's being asked is that the way he's telling his story is one that would assist him as being not the aggressor.  Mr Rauf's taken him to some parts of the evidence where it might indicate that there was some joint engagement that added to the tension and therefore there wasn't simply one aggressor.  I'm prepared for that to be explored.

PN891

MR GIBIAN:  There's been attempts to point to things that were or weren't said at particular times.  I'm not sure it went very far.  But a general question asking the question to characterise part of his evidence, I don't think, with respect, assists.  And that was the last question.

PN892

THE DEPUTY PRESIDENT:  Yes, well, if Mr Rauf wants to reframe it, I guess he can.

PN893

MR RAUF:  Your Honour is correct to note that I'm simply trying to understand the description of the picture – the narrative provided in the first statement.  Mr Newton, again, coming back to that, what you've described, or the way you've described what happened at paragraphs 29 through to 33, really convey a picture of you as not having any contributive role in the altercation?---It says there I pushed him back.

PN894

"He put his hand up on my chest and I pushed him back."  On my reading of it, this is the first time that you've mentioned he has put his hand on your chest?---Okay.

*** STEVEN KEITH NEWTON XXN MR RAUF

PN895

You've described in the investigation that he was in your face, but nowhere have you said that his hand was on your chest and then you pushed him away.  So, what I'm putting to you is even that, the explanation of him pushing you, is a reaction to him making physical contact with you.  Not just getting up close to you in your face, but physically touching you, and then you push him back.  You didn't mention that in the investigation?

PN896

MR GIBIAN:  Look, I do have a concern about the fairness of that question.  It may be accurate, but it really does depend upon interpretation of what is meant by some various words that were said at various parts of the interviews.  Again, I think it's a question – if there's an assertion that something was or wasn't said in all these papers of transcript, then either it was or it wasn't.  Or, as I say, it's a matter of interpretation of what was said, which might be open one way or the other, and should be subject of submission rather than a broad question of the witness, within these 50 pages there's not these words.  And that's a fairer way to deal with, with respect.

PN897

THE DEPUTY PRESIDENT:  Mr Rauf, is there something ultimately you want to put to the witness about his role in the altercation.

PN898

MR RAUF:  Your Honour, nothing beyond what's already been noted in terms of the narrative, and even the context of the pushing.  But, again, yes, presenting a picture of Mr Newton's interaction in a particular light.  But I think that point's been made and I don't pursue that.

[127] In our view the above passage falls well short of what was required. The findings which were made by the Deputy President should have been squarely put to Mr Newton; they were not.

[128] Mr Newton was not afforded procedural fairness in respect of the Deputy President’s findings about his dishonesty and the imputed motive for that dishonesty. Mr Newton was not given a fair opportunity to deal with these issues. As noted by the plurality in Kuhl, absent the matter being squarely put by the cross-examiner it was incumbent on the Deputy President to make the challenge himself.

[129] For completeness, we note that Toll also submits that if the Appellant was not put on notice that the Deputy President may conclude that he ‘was deliberately fabricating his evidence or had conjured up a tale to impugn and damage Mr Chambers’ character and reputation’, it is because no such finding was made against him. For the reasons given we are satisfied that such a finding was made and accordingly the point advanced was without substance.

3. The requirement to be honest and candid

[130] After finding that Mr Newton’s involvement in the Fight and/or the Verbal Altercation did not constitute valid reasons for dismissal the Deputy President went on to observe that ‘Mr Newton was required to be honest and candid with Toll in respect of their investigation into the Fight and the Verbal Altercation’.

[131] The Appellant challenges the proposition that Mr Newton was obliged to be honest with Toll in relation to out of work conduct that lacked the requisite connection to his employment.

[132] The basis for the Deputy President’s observation that Mr Newton was required to be honest with Toll about his ‘out of work conduct’ is set out at [144]-[146] of the Decision:

‘It follows from the foregoing that whilst an employee may engage in conduct or behaviour that does not occur at work, or does not have a requisite connection with work, if such matters are investigated by their employer, such an investigation will occur at work. It equally follows that any answers provided by an employee to questions put to him or her by their employer during such an investigation fall within the scope of the employment relationship. And in so falling within the scope of the employment relationship in this case, Mr Newton had a duty to answer questions and/or give his version of events honestly. As Dixon and McTiernan JJ stated in Blyth Chemicals v Bushnell:

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal...But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises”.

Of course, the case of Blyth Chemicals relates to summary dismissal under an employment contract, but there is no basis to suggest that the principle articulated by the High Court is not equally applicable in forming a view as to whether a sound, defensible or well-founded reason for dismissal exists in proceedings for unfair dismissal. Indeed, in this matter, Toll’s policies and procedures are replete with references to Toll’s core values being underpinned by employees acting with “Integrity and Trust”, being “Open and Transparent”, and “openly participat[ing] in workplace investigations with integrity”.

The entire factual matrix must be considered in determining whether an employee’s lie or dishonesty is a valid reason for dismissal. The Commission follows the approach long taken by its predecessors in weighing the gravity of any finding of dishonesty. In some circumstances, relevant dishonesty can be said to be of such insignificance or triviality that any decision to terminate the employee on the basis of same may be disproportionality “harsh”. In other circumstances, the dishonesty may be of such gravity that any dismissal that follows is an appropriate consequence (and thus not harsh). That said, it would be inappropriate to measure this case against the factual matrix of other cases. The most that can be drawn from a survey of the authorities is that it is open to the Commission to consider the gravamen of the dishonesty in question as to whether it forms a valid reason for dismissal.’ (Footnotes omitted, emphasis added)

[133] The following propositions are uncontentious:

1. The entire factual matrix must be considered in determining whether an employee’s lie or dishonesty is a valid reason for dismissal. Relevant dishonesty can be said to be of such insignificance or triviality that any decision to terminate the employee on the basis of same may be disproportionality “harsh”. In other circumstances, the dishonesty may be of such gravity that any dismissal that follows is an appropriate consequence (and thus not harsh).

2. The Commission considers the gravamen of the dishonesty in determining whether it forms a valid reason for dismissal.

[134] As to these propositions we need only refer to the Full Federal Court’s judgment in Allied Express Transport Pty Limited v Anderson, 72 in which the court rejected the Appellant’s submission that if an employee disobeys a lawful instruction and then tells ‘a lie’ that employee, if dismissed, will in all circumstances be dismissed for a valid reason. As the Court put it:

‘The entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason.’ 73

[135] The extent to which Mr Newton was obliged to honestly answer the question about out of hours conduct is contested.

[136] Mr Newton argues that the proposition that he was obliged to be honest with Toll in relation to his out of work conduct was erroneous because, among other things, the common law recognises no duty or obligation on the part of an employee to participate in or answer questions about matters that do not occur at work. 74

[137] Toll submits that at the time it questioned Mr Newton, it was open to Mr Newton to dispute the lawfulness of those questions⁷⁵ and that the Appellant’s submissions fail to recognise the important difference between a refusal to answer and a giving of a dishonest answer:

‘There is no common law duty for an employee to make disclosures to the employer about their own misconduct or to answer the employer’s questions in relation to matters that do not occur at work or have a relevant connection to the employment or the employer’s business.

However, it does not follow that that there is no implied common law duty to answer questions truthfully where, as here, an employee chooses to respond to an employer’s inquiries about such matters. It is settled law that where an employee chooses to answer a question, there exists a duty to do so honestly. In this respect, the Appellant’s submissions fail to recognise the important difference between a refusal to answer and giving a dishonest answer.’ (Footnotes omitted, emphasis original)

[138] Toll contends that the Appellant’s argument is based on the flawed premise that an employee’s involvement in an out of hours incident extinguishes any obligation or duty for the employee to be honest to his or her employer when responding to inquiries about that incident. Toll contends that although the Deputy President did find that Mr Newton’s involvement in the physical altercation did not occur at work, that finding does not exclude a finding that the incident itself is relevantly related to the employer’s business or business interests and that the employee with knowledge of that incident should give an honest and candid account of what occurred. 76

[139] Toll submits:

‘In the employment sphere, the ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. An employee is ‘‘bound to render faithful and loyal service to the [employer], and not to do anything inconsistent with the continuance of confidence between them’.

It cannot be disputed that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily falls within the class of conduct which, without more, authorises summary dismissal.’ 77 (Footnotes omitted)

[140] Toll refers to the following authorities in support of the propositions advanced: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82; Concut Pty Ltd v Worrell (2000) 103 IR 160 at 172-3 per Kirby J; Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 372 per Starke J.

[141] It seems to us that the authorities relied on by Toll do not support the breadth of the propositions advanced.

[142] Blyth Chemicals 78 speaks of an employee’s duty to faithfully perform his obligations to his employer. Shepherd79 speaks on an employee’s obligation to ‘render faithful and loyal service…and not to do anything inconsistent with the continuance of confidence between them.’ The obiter in Shepherd was reconsidered by Kirby J in Concut in which his Honour observed:

‘The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust’. 80

[143] The plurality in Concut did not characterise the employment relationship in the same terms, noting that:

‘…the outcome of the case turns upon the breach of an obligation implied by law in the employment contract and the right of the employer to rely upon that breach, when subsequently discovered, in answer to a claim for damages for wrongful dismissal, although the dismissal was not based on that ground. The applicable principles are well settled and their application to the undisputed facts produces a result favourable to the employer.’ 81

[144] The plurality also cited, with apparent approval, the following proposition set out by Lightman J in Bank of Credit and Commerce International SA v Ali: 82

‘The current law as generally understood may be stated as follows: that (1) (subject to one exception) neither party to a contract is obliged to disclose facts material to the decision of the other party whether to enter into that contract; (2) the exception is limited to contracts which are uberrimae fidei; (3) neither contracts of employment nor contracts of compromise (unless by way of family arrangement) fall within this exceptional category…’

[145] The concept of a duty of fidelity and good faith is used as a matter of convenience to subsume a range of obligations which are intended to ensure that the employee renders honest and faithful service to the employer. They include:

•  an obligation not to damage the employer's interests by disclosing or using confidential information obtained in the course of employment⁸³

•  an obligation to act honestly in handling the employer's property⁸⁴

•  an obligation not to earn any secret profits, 85 and

•  an obligation not to engage in employment outside of the hours devoted to their main job where the spare time work is for a competitor of the main employer and may damage the employer's business.⁸⁶

[146] The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, 87 ‘an actual repugnance between the employee's acts and his relationship with his employer must be found’.88

[147] Further, the emergence of the modern law of employment can be seen as a movement from status to contract. 89 As McHugh and Gummow JJ observed in Byrne v Australian Airlines:

‘The evolution in the common law as to the relationship of employment has been seen as a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee).’ 90

[148] The modern law of employment necessarily confines the capacity of an employer to discipline an employee in respect of out of work conduct. As noted in Rose v Telstra Corporation Ltd (Rose): 91

‘In earlier times the relationship of master and servant was pervasive. The master controlled many aspects of the servant's life, including the capacity to travel outside of their parish… the relationship was regarded as an extension of the family unit, with the master as head of the family.

But this is no longer the case. The modern law of employment has its basis on contract not status. An employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment.’

[149] The ratio of Rose is worth repeating:

‘It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

•  the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

•  the conduct damages the employer's interests; or

•  the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.³⁰

Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct.’

[150] We endorse the above statement of principle and against that background return to the issue at hand.

[151] In essence, the Deputy President reasons that investigations by employers about matters that do not occur at work and which do not have any requisite connection with work are investigations which ‘occur at work’. It is said to follow from this that: ‘any answers provided by an employee to questions put to him or her by their employer during an investigation fall within the scope of the employment relationship’. In short, because questions (presumably about anything) are asked ‘at work’ the employee has a duty to answer honestly. With respect, we disagree.

[152] Contrary to the proposition advanced by the Deputy President, an employee does not become obliged to answer questions from their employer about matters occurring outside work in their private lives merely because those questions are asked whilst the employee is at work. The mere fact that the employee is asked questions ‘at work’ is insufficient.

[153] To what extent is an employee required to truthfully answer questions put by their employer? We begin by considering the employee’s right to silence.

[154] It is common ground that an employee is not under a common law duty to make voluntary disclosures to their employer about their own misconduct and nor is an employee obliged to answer questions about out of work conduct which lacks the requisite connection to employment. 92

[155] Further, in Associated Dominion Assurance Society Pty. Ltd. v Andrew & Anor 93 (Associated Dominion) Herron J. said:

“…a duty lies upon an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure…

Questions asked relating to the employee’s activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer’s legitimate business associations. It certainly could destroy all confidence between master and servant which is an essential feature of such contracts.” 94 (Emphasis added)

[156] Under Justice Herron’s formulation the questions which must be answered are those which are ‘within the scope of his employment’ and about the employee’s own actions ‘performed as an employee’. However as noted in Murray Irrigation Ltd v Balsdon, 95 Herron J’s statement of principle is qualified by ‘at a proper time’, ‘in a reasonable manner’ and ‘generally speaking’.96 Further, in Patty v Commonwealth Bank of Australia97 Ryan J held that the duty of an employee to give information to their employer ‘is conditioned by a corresponding obligation on the employer to seek the information by questions that are fair and reasonable’.98 Questions put by an employer may not be ‘fair and reasonable’ if they place an employee at risk of self-incrimination.99

[157] An employee is not obliged to answer questions about out of work conduct if that conduct lacks the requisite connection to employment, in the Rose v Telstra sense discussed earlier. In the present matter Mr Newton was not obliged to answer Toll’s questions about the Fight. He had a right to silence.

[158] However, as Toll submits, that does not dispose of the issue. Mr Newton did not decline to answer Toll’s questions; rather he chose to answer, and, on Toll’s submission, answered dishonestly.

[159] If an employee chooses to answer a question by their employer about out of work conduct which lacks the requisite connection to employment, are they obliged to answer truthfully? Does an untruthful answer in such circumstances constitute a valid reason for dismissal?

[160] We begin our consideration by recording our agreement with the following observation of Finn J in McManus v Scott-Charlton (Scott-Charlton):

‘I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.’ 100

[161] Further, as mentioned earlier, the entire factual matrix must be considered in determining whether an employee’s lie or dishonesty is a valid reason for dismissal. The fact that the question relates to conduct which lacks a requisite connection to employment is plainly a relevant contextual matter; as is the fact that the employee is under no obligation to answer such questions.

[162] The decision of the Supreme Court of the ACT in Scanes v Commissioner of Police for the Australian Capital Territory 101 illustrates the factual considerations that were relevant in that case to whether dishonesty provided a proper basis for dismissal. That decision overturned a decision of the Police Appeal Board to uphold the dismissal of two police officers on the grounds that they had wilfully made, in the course of their duty, inaccurate statements. Relevantly for present purposes, Fox J held:

‘The conclusion was that because they had wilfully made inaccurate statements to officers of their own force, they had caused such grave doubts to be cast upon their worth and their reliability that they could not remain in the force. Such a conclusion will be warranted in some circumstances, but it seems to me not to have been warranted in the present case. It fails to take into account that the statements were given under compulsion by way of defence to allegations which were extravagantly inaccurate, and which had to them all the appearance of being part of a malicious and dishonest attempt to have them expelled from the Police Force. It would not be unreasonable to conclude that the constables were bewildered by the course of events, and very apprehensive as to the outcome.  If the allegations, or even most of them, were to be believed, they certainly would be dismissed. The statements they made in answer to questions were not made with a view to affecting third parties; they were not made in the course of their routine police work. A dishonest report implicating third persons would, in my view, be much more serious, and it is doubtless with that type of case that s.26 is principally intended to deal. Here, under compulsion, they were answering their accuser, and by their answers dealing only with their own behaviour. To answer dishonestly was very wrong, and to be deprecated. But in the circumstances what they did was understandably human. It would be dangerous to impose on the Police Force a standard in relation to such matters which is very much higher than that observed by the community in general. The conclusion that because of the untrue statements no trust could be reposed in the appellants and no reliance could be placed on them properly to perform their duties, seems to me, with respect, to be unsound, and not based on ordinary human experience.’102

[163] We accept that in some circumstances a dishonest answer to a question about out of work conduct may provide a valid reason for dismissal. For example, if an employee damages their employer’s interests by dishonestly and intentionally impugning the character of another employee.

[164] The circumstances in Streeter v Telstra Corporation Limited 103 can be used to illustrate the limitations on any obligation to answer questions honestly.

[165] Ms Streeter had attended a social function organised by her work colleagues for which her employer, Telstra, had contributed to funding. Employees who worked with Ms Streeter had booked a hotel room in which to stay after the event. During the course of the night in the hotel room, Ms Streeter bathed with two employees and had sexual intercourse with one of those employees within the view and/or earshot of three other employees. 104 When interviewed, Ms Streeter initially denied engaging in sexual activity and then refused to answer questions.

[166] At first instance it was held that there was a sufficient connection between Ms Streeter’s conduct and her employment but that the conduct was not sufficiently serious to constitute a valid reason for termination. Telstra also relied on Ms Streeter’s lies about engaging in sexual activity during its investigation as a separate valid reason for her dismissal; a proposition which was rejected at first instance.

[167] Telstra appealed. The majority considered that the Member at first instance had erred in concluding that Ms Streeter’s dishonesty could not ground a valid reason for dismissal and decided that there was a valid reason for Ms Streeter’s dismissal due to her dishonesty in her interviews with Telstra management:

‘We think Ms Streeter needed to be honest with Telstra during the investigation, notwithstanding the inherently personal nature of her activities, so that Telstra could determine and take appropriate action to deal with the difficulties. Ms Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed.’ 105

[168] The majority decision in predicated on the earlier finding that there was a sufficient connection between the out of work conduct and employment; a finding in respect of which reasonable minds may differ. 106

[169] But what if, in relation to this scenario, the Commission had found that the out of work conduct did not have the requisite connection to employment (because, for example, no other employees witnessed the conduct)? Would Ms Streeter have been bound to be honest in such circumstances? We think not. There are any number of entirely explicable reasons why an employee may not be candid in replying to questions by their employer about inherently private activities, including consensual, sexual activities which occur outside of work and which lacks the requisite connection to employment.

[170] Whether or not Mr Newton engaged in dishonest conduct of the type found by the Deputy President and whether that conduct provided a valid reason for dismissal will be matters to be determined in the rehearing.

[171] Before leaving those aspects of the appeal dealing with the Deputy President’s findings and conclusion in respect of whether there was a valid reason for Mr Newton’s dismissal, we also wish to comment on the Deputy President’s obiter observation, at [78], that:

‘Where the conduct in question concerns fighting, the attitude of the Commission (generally) will tend to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable.’

[172] In support of the proposition put, the Deputy President relies on the following observation of Moore J in AWU-FIME v Queensland Alumina Limited 107 (AWU-FIME) regarding the approach taken by industrial tribunals when fighting or an assault had been established:

‘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.’

[173] The Deputy President’s observation may be taken as advancing some sort of ‘decision rule’ such that in dismissals for fighting the Commission ‘will tend to’ find that the dismissal is not harsh, unjust or unreasonable, absent extenuating circumstances. With respect, we reject that proposition.

[174] AWU-FIME, and other relevant authorities regarding fighting or assault at work, were considered by a Full Bench of the Commission in Fearnley v Tenix Defence Systems 108 in which the Full Bench concluded:

‘We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight 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.’

[175] To similar effect, the Full Federal Court in Allied Express Transport Pty Ltd v Anderson 109 (Allied Express) held that: ‘the entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason.’ Allied Express was applied by the Full Federal Court in Qantas Airways Limited v Cornwall110 – another fighting case:

‘We accept that in this case, as in Allied Express Transport Pty Ltd v Anderson, it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the ‘relevant factual matrix’, to decide whether the termination was supported, in the words of the statute, by ‘a valid reason . . . connected with the employee’s . . . conduct’. As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is ‘sound, defensible, or well-founded’. But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee’s employment, there was a valid reason connected with the employee’s conduct... conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterise the nature of the conduct involved. In our opinion, the trial judge was entitled...’

[176] In determining whether a dismissal was harsh, unjust or unreasonable the Act directs the Commission to take into account the matters in ss.387(a) – (h). It is not for the Commission to impose an arbitrary limitation not expressed in the Act. 111 The Commission’s statutory task is obfuscated by attempts to articulate a tendency for the Commission to determine certain categories of cases in a particular way.

[177] For the reasons given we have concluded that the appeal should be upheld and the Decision quashed. As the matter is to be reheard it is appropriate that we deal with some of the other appeal grounds, albeit briefly.

Notification of the valid reason

[178] As mentioned earlier, the Deputy President found that Mr Newton had been dishonest and misleading and that he had engaged in ‘sinister conduct’ by embarking on a self-serving campaign to impugn Mr Chambers. These findings provided the basis for the Deputy President’s conclusion that there was a valid reason for Mr Newton’s dismissal.

[179] Section 387(b) of the Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account (among other things) ‘whether the person was notified of that reason’.

[180] At [149] of the Decision, the Deputy President found that Mr Newton was not notified of the reason for his dismissal, but formed the view that this is nonetheless a neutral consideration:

‘Mr Newton was not notified of the reason for his dismissal. Toll dismissed Mr Newton for “misconduct” because it formed the view that he engaged in the Fight (and was an active participant in same), and the Verbal Altercation (and was the aggressor in same). However, inherent in Toll’s decision to dismiss Mr Newton was the fact that Toll did not believe Mr Newton’s version of events in relation to the Fight and the Verbal Altercation. The facts in this matter are also unusual in that the Commission has found a valid reason for Mr Newton’s dismissal that existed at the time of his dismissal, being a reason upon which Toll did not expressly identify to Mr Newton at the time he was advised of his dismissal. In the circumstances, I consider this factor a neutral consideration in this matter.’ (Footnotes omitted)

[181] Notification of ‘the reason’ in the context of s.387(b) refers to the ‘valid reason’ for dismissal, 112 in this instance engaging in dishonest, misleading and sinister conduct.

[182] Notification of the valid reason to terminate must be given to the employee:

•  before the decision to terminate is made 113

•  in explicit terms, 114 and

•  in plain and clear terms. 115

[183] As observed by the Full Bench in Crozier v Palazzo Corporation Pty Ltd: 116

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’

[184] The above statement of principle also applies to ss.387(b) and (c). 117

[185] It is plain that Mr Newton was not notified of the reason – that is, the ‘valid reason’ as found by the Deputy President – for his dismissal. It was not reasonably open for the Deputy President to conclude that this was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable.

The opportunity to respond to the ‘valid reason’

[186] Section 387(c) of the Act provides that in considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must take into account (among other things):

‘whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.’

[187] At [151]-[153] of the Decision, the Deputy President finds that the allegation of dishonest was not put to Mr Newton prior to his dismissal, but forms the view that this a neutral consideration:

‘I agree with Mr Newton that the allegations made against him by Toll lacked specificity, and merely concerned his involvement in the Fight and the Verbal Altercation. However, this is also to be considered in light of the fact that Mr Chambers and Mr Mitchell’s version of events were directly put to him by Toll, but he maintained his assertions as to what occurred. In short, Mr Newton had every opportunity to revise or otherwise correct his version of events, including before this Commission, but chose not to do so.

Further, whilst Toll did not warn Mr Newton that his false denials would give rise to a finding of serious misconduct (before or during the First and Second Interviews), such failure is ameliorated by the fact that questions of dishonesty and/or disparity in his evidence were directly put to him during his evidence before the Commission.

In view of this, I treat any failure by Toll to put specific allegations of dishonesty to Mr Newton during the First and/or Second Interviews, or as part of the disciplinary process, as a neutral consideration in the circumstances of this case.’ (Footnotes omitted)

[188] Section 387(c) focuses on provision of an opportunity to respond to a reason for dismissal prior to the dismissal. The valid reason for dismissal upheld by the Deputy President was not notified to Mr Newton before dismissal and he was not afforded an opportunity to respond to the assertion that he had been dishonest, misleading and had engaged in sinister conduct.

[189] The Deputy President took into account an irrelevant consideration in concluding that any unfairness was ameliorated in the Commission proceedings. Any opportunity to respond to a reason for dismissal must be afforded prior to the dismissal occurring. It was not reasonably open to the Deputy President to conclude that the failure to provide Mr Newton an opportunity to respond to the valid reason as found by the Commission was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable. The weight accorded to a failure to comply with s 387(c) may hinge on whether an employee was deprived of the possibility of a different outcome.

[190] For completeness, we note that the Appellant also submits that the Deputy President failed to enter into, or otherwise consider, articulated arguments that there was a predetermination by Toll that he would be dismissed prior to any investigation and any notification to him of reasons for his proposed dismissal.

[191] Toll submits that there is no basis for concluding that the Deputy President failed to consider this argument and points to [46] where it contends the Deputy President ‘unambiguously found that the decision to dismiss the Appellant was made by Mr Rugendyke.’ Paragraph [46] of the Decision reads as follows:

‘The decision to dismiss Mr Newton was made by Mr Michael Rugendyke (Toll General Manager NSW/ACT Express Parcels). The decision to dismiss Mr Chambers was made by Mr Paul Smith (Toll General Manager Operations). Mr Michael Byrne (Toll, Managing Director) strongly concurred with the decision to terminate the Applicants.’ (Footnotes omitted)

[192] It is clear that the Appellant raised an argument regarding predetermination by Toll to dismiss Mr Newton and that the argument had a substantive evidentiary basis:

•  The Appellant’s Final Submissions dated 25 March 2020 at [55]-[62]:

‘55. Mr Newton was given an opportunity to respond to the show cause letter dated 13 August 2019, however, he was obviously denied procedural fairness because:

(a) Senior management of Toll decided immediately after the 30 May incident that Mr Newton would be dismissed prior to Mr Newton being informed of any allegations or being provided with an opportunity to respond.

(b) Mr Newton was not provided with full particulars of what he was actually alleged to have done and there were reasons for dismissal which were never disclosed to him.

(c) Toll delayed the implementation of the disciplinary process for its own industrial advantage and increased the stress and pressure on Mr Newton for its own ends.

56. The evidence demonstrates that senior management within Toll emphatically determined that Mr Newton would be dismissed very soon after the 30 May incident occurred and well prior to Mr Newton being informed of any allegations or given an opportunity to respond.

57. The statements made by senior managers within Toll following the 30 May incident include the following:

(a) On 31 May 2019 at 4.59pm, the CEO Mr Byrne stated that “if fighting and representing us they will need to be terminated”. Mr Willmott responded the same day that “we are investigating now and agree fighting is termination no questions”.

(b) On 31 May 2019 at 7.55pm, the CEO Mr Byrne stated “Get these thugs out of our business … It is not tolerable”. The Head of Global Security Mr Noonan, who was responsible for the investigation of the incident, responded “Michael, agreed. Regards John”.

(c) When the investigation report was completed, senior managers again expressed the same determination. Mr Willmott determined on 10 July 2019 that “Based on the report we will need to terminate both these individuals – so I agree with the recommendations”.

(d) On 11 July 2019 at 4.58pm, Mr Byrne again stated that “my view would they both need to go. We cannot accept such behaviour” and later on the same day “I am struggling to understand why such people should have a job here and how we will ever change culture and behaviour if we don’t take this on”.

58. Mr Newton was not provided with the show cause letter or any opportunity to respond until 13 August 2019. It is plain that it had been decided well before the show cause letter was sent that Mr Newton would be dismissed.

59. On 20 August 2019, Mr Byrne directed that Mr Newton be dismissed immediately despite his show cause response being sent only on 19 August. Mr Noonan gave the firm instruction on 20 August (the day after the show cause response was sent) that “it is completely unsatisfactory that this matter is not being finalised before the 27th August. This is not in line with the information I was provided earlier this evening. This is a direction from the Managing Director. You are to arrange the terminations of these two employees this week without exception. This is not a request, it is a direction”.

60. Mr Rugendyke asserted that he was the decision-maker with respect to Mr Newton. The Commission would not uncritically accept that evidence. The communications occurring behind the scenes make clear that senior management of Toll were involved in the decision-making. For example, on 9 July 2019 at 6.01pm, the Executive General Manager of Express Parcels, Mr Beacham, wanted a copy of the investigation report to ensure “we are comfortable with the recommendations” and to “co-ordinate our approach”. The show cause letters and letters of termination were drafted by Ms Ballard and not Mr Rugendyke.

61. Mr Rugendyke was made aware that Mr Byrne wanted Mr Newton and Mr Chambers “out of the business”. He was hardly able to make an independent decision about that disciplinary outcome. Even if one were to accept the (implausible) evidence of Mr Rugendyke that, if he disagreed with the outcome Mr Byrne dictated, he might not “put his name to it”, there can be no doubt the determination of the CEO would have been put into effect. Mr Bryne and the other senior managers who had decided Mr Newton needed to be dismissed would no doubt have found someone willing to put his or her name to it.

62. Toll had determined to dismiss Mr Newton immediately after the 30 May incident and well before he was provided with the show cause letter or any opportunity to respond. Any subsequent opportunity to respond was illusory and the disciplinary process a sham.’ (Footnotes omitted)

•  The Appellant’s Final Submissions dated 14 May 2020 at [33]-[36]:

‘33. Toll resists the conclusion of predetermination which arises from the evidence that its own senior management had decided that Mr Newton’s employment was to be terminated immediately following the incident of 30 May 2019. Toll makes those submissions notwithstanding the email correspondence which makes clear that the numerous senior employees of Toll repeatedly stated or agreed that Mr Newton was to be terminated in the period between 31 May 2019 and early July 2019.

34. Toll’s submissions do not grapple with the fact that the following members of Toll’s senior management expressed or were party to unequivocal statements that Mr Newton would be dismissed well in advance of any investigation or opportunity for Mr Newton to respond:

(a) Michael Byrne (Chief Executive Officer);

(b) Rick Willmott (Executive General Manager, Employee Relations);

(c) John Noonan (Global Head of Group Security);

(d) Vikram Cardozo (Global Head of Human Resources);

(e) Alan Beacham (Executive General Manager, Express Parcels); and

(f) Joshua Peacock (Executive General Manager Operations, Express Parcels).

35. It is suggested that the communications by senior managers in relation to Mr Newton’s case were in some way preliminary or equivocal in nature. Toll ignore the terms of the communications themselves, including that it would be “termination no questions”, “get these thugs out of our business”, “both need to go” or “I am struggling to understand why such people should have a job here”. The fact that those determinations were made without the benefit of any investigation or response from Mr Newton demonstrates the degree of prejudgment involved rather than detracting from that conclusion.

36. Toll’s submissions misleadingly suggest that the purported decision-maker, Mr Rugendyke, gave clear and consistent evidence that he was not aware of the email communications and did not have discussions with Mr Byrne. Mr Rugendyke was told by Mr Willmott soon after 31 May 2019 that the CEO, Mr Byrne, wanted Mr Newton and Mr Chambers “out of the business”. Mr Noonan, who was in charge of the investigation, was directly involved in those communications. The proposition that there could then be an independent investigation and decision-making process could not be accepted.’ (Footnotes omitted)

[193] Contrary to Toll’s submission, the above argument, along with the relevant evidence, was not dealt with by the Deputy President. Paragraph [46] of the Decision does not suggest that the argument put was considered and rejected. This issue will fall to be determined on rehearing.

3. Conclusion

[194] For the reasons given, we grant permission to appeal, uphold the appeal and quash the decision. We remit the application for an unfair dismissal remedy to Commissioner Bissett for redetermination.

PRESIDENT

Appearances:

M Gibian SC of Counsel and Mr P. Boncardo for the Appellant.
J Forbes of Counsel for the Respondent.

Hearing details:

2021
Melbourne and Sydney (by video)
March 30.

Printed by authority of the Commonwealth Government Printer

<PR730761>

Attachment A – Extracts of Transcript

At [152] of the Decision, the Deputy President says:

‘Further, whilst Toll did not warn Mr Newton that his false denials would give rise to a finding of serious misconduct (before or during the First and Second Interviews),153 such failure is ameliorated by the fact that questions of dishonesty and/or disparity in his evidence were directly put to him during his evidence before the Commission.154’

In addition to the sections referred to in the footnote at [152], there were further instances where inconsistencies in Mr Newton’s evidence were put to him.

The relevant extracts are below (our emphasis added):

PN1174

Now at the bottom, the incident at Parramatta is raised where there's another Toll TWU delegate's meeting - about 60 people present - and it's said that you went up where he - as in brother Mitchell was standing, called his name and when he turned around, you pushed him in the chest.  You say that didn't happen at all.  He walked.  He let me start from the beginning with this - let me start from the beginning of this one.  And then over the page you give your description of what occurred.  You say, "Because there's one common denominator here and it's a bloke by the name of Mark Trevillian."  And you say that another delegate, Billy Brain informed you that Mitchell had been slagging you off?---Yes.

PN1175

I don't even know Rob Mitchell and he's 30 years my junior.  Right.  And he's a big lad.  When he turned up I asked him I didn't even - I had to get Billy to point him out to me and I said, "Who is he?"  And he's gone, "Oh, him."  "I walked over and I said, 'Mate, what's up with you?  You want to come for a walk up there and have a chat and let me know what your problem is.'"  Do you see that?---Yes.

PN1176

Now you when you say, "You want to come up for a walk up there where did you have in mind going for a walk?"?---Away from the crowd.

*** STEVEN KEITH NEWTON XXN MR RAUF

PN1177

All right.  Were you pointing somewhere?---I can't recall.  I can't recall.  You had just, "Do you want to come for a walk and we're going to have a talk about it.  Have a chat."

PN1178

You seem to be referring to come over for a walk up there.  I'm just trying to understand where up there is?---Well, it's on the street.  It's out on the street.  So it could have been that way.  It could have been anywhere.  It could have - - -

PN1179

You don't now recall?---Okay.

PN1180

"And have a chat and let me know what your problem is."  And you say, "I don't even know the guy.  I was pissed off that he was walking around slagging me off but why?  And Mark Trevillian stepped in, and has gone, 'Hang on Skull.'  And I said, 'No leave it go, Mark.'  I said, 'He's only saying the things what he's saying because you're telling him to say them.  That's what this is about.'"  I said, 'Mate, I don't even know you.' So this is back to Mitchell?---Mm.

PN1181

I said, 'If you want to come for a walk over and we will have a chat about it and you can - if you've got any grievances let me know.  There's no way I was going to be punching on someone 30 years my junior.'?---That's correct.

PN1182

Why did you feel the need?  So this is - well, what you - at the time were you waiting to go into the meeting or what was happening immediately?  What were you doing outside or wherever you were at the time?---We were outside before the meeting, having a coffee.

PN1183

I see.  And so you've asked Billy Brain, "Well, who is he?"  Billy Brain tells you, "Mate, there's this guy slagging you off."  You say - you know - you ask him immediately, "Well, who is he?"  And you walk over to Mitchell once he's identified, confront him, and you say to him, "Let's walk over there."  Wherever there is.  Up there.  "And have a chat.  Let me know what your problem is."  So you felt it important then and there to say - go to Mr Mitchell.  You're pissed off of course and you want to say to him, "Look, let's go and sort it out now"?---I thought it was a bit funny to start with actually.

PN1184

Right?---Because I don't even know the guy.

PN1185

Yes?---I've never had a conversation with him at all.  I don't know him.

*** STEVEN KEITH NEWTON XXN MR RAUF

PN1186

All right.  And then as to the teeth being taken out - that's put to you - and you say, "No, I had me teeth done. Yeah, I had an abscess on my teeth and I couldn't - I find it hard to talk.  You're only new, you know?"  So did you take your teeth off as you approached him?---No.

PN1187

Or when you were with him or - - -?---No.  At the table.  They were wrapped in me hanky.

PN1188

All right?---I've got a plate with three teeth on it and I've actually got a spare one in me bag now because I'm going through the same problem.

PN1189

Sure?---At the moment.

PN1190

All right.  And look I just wanted to understand.  And then over the page there's reference to you having a discussion with Leanne Ballard about the incident?---Over the page on?

PN1191

So 184 at the bottom?---Yes.

PN1192

And you were asked questions about your discussion with Leanne Ballard.  "What did you tell her?"  And you say, "I told him" - should that be a 'her' or "I told her or him he was a fucking idiot.  He was walking around.  I can't remember the whole discussion I had with him but I just asked him the question.  I said, 'Why, what's your problem?'  You know?---Leanne put the question to me.  I do remember that and asked me how yesterday went and I - - -

PN1193

So she generally asked you, "Look, how was yesterday?"?---Yes.

PN1194

Because she knew that you were at the delegate's meeting?---Yes.

PN1195

And she's - at the workplace - she's come to you, "How did things go yesterday?"  And you've said - that's when you've opened up to her about this exchange with Mr Mitchell?---Yes.

PN1196

And because you were perhaps still a bit pissed off by what had happened?---I couldn't understand it.  Hang on.  I wasn't actually pissed off the day after - that's not me.

PN1197

And so GR is - so that's as I see - that's indicated to be a Grant Rodger.  Well, he was your support person was he?---Well, when are you talking about?  Which- - -

*** STEVEN KEITH NEWTON XXN MR RAUF

PN1198

Sorry, in this interview.  So I see there's if I - in attendance there's Steve Newton, Raymond Lambi, Brian Berry and Grant Rodger?---Yes.

PN1199

Who was Grant Rodger?---He's our union organiser.

PN1200

I see.  Had you requested for him to accompany you?---Yes.

PN1201

And so you were there when he made his - gave his sort of observations of what happened in this meeting?---Yes.  I suppose so.

PN1202

Right.  What I want to put to you is whether you agree with - he describes it as a face to face heated discussion.  What do you say about that description?---Yes.  Yes.  It's not far off.

PN1203

All right.  So this is the discussion of Mr Mitchell.  So you accept that it was a face to face and it was a heated discussion?---Well, I've already told you that I was pissed off.  Yes, I was a little bit pissed off with the names that he was calling me - yes.

PN1204

Yes.  We covered yesterday that you also held a belief that you felt that he had been put up to it by Mark Trevillian?---Well, Robert Mitchell is Mark Trevillian's co-delegate.  He works in an entirely different yard than I do.  We don't interact.  We don't work together.  And I don't work with Mark Trevillian either.

PN1205

Well, I think you had understood that Mr Mitchell had called you, "Dickhead.  Retard.  A spastic"?---Mm.  Yeah.

PN1206

And just, finally, if I can just take you to one other - at 193 - it was at the bottom of the page again.  You described, "No, I was pissed off.  I'm not going to bullshit to you.  I'm not going to lie about.  Yeah, I was pissed off like anyone would.  And I think I have the right to know why - as in why he's calling you those things.  Maybe I am giving you a reason why.  Like, I've just been for the last 25 years doing battle to get these guys pay increases."  So, perhaps, understandably you were pissed off because from your perspective you have been serving the interests of the employees over many years and you didn't appreciate that there might be some junior delegate out there, calling you a dickhead, spastic retard?---Yes.  That's correct.

*** STEVEN KEITH NEWTON XXN MR RAUF

PN1207

Now, given what we've discussed of the interaction and that it was heated.  It's fair to say that you weren't calm and composed in that discussion?---Yes.  I was.

PN1208

Right?---Yes, I was.  I was composed.  It was just a conversation.  It was a little bit heated but not - - -

PN1209

What I want to put to you is that you taking your teeth out, approaching Mr Mitchell in front of the other delegates and in the presence of other people challenging him was your way of sending a message that, "Look, if you want to challenge me or have a go at me then let's - you know -  I will deal with you right now"?---That's not correct.  That's not right at all.

PN1210

And he alleges that you pushed him as well in the chest?---That's not correct.

PN1211

Can I just go back to your - the show cause letter which is attached to your first statement, Mr Newton?  It's at SN05, page 23 of your first statement?---Yes.

PN1212

Just tell me when you've turned to that?---Yes.

PN1213

Right, thanks.  Now, when you got this you read the concerns about your conduct that were noted at (a) and (b)?  Yes?---Yes.

PN1214

And you responded to both of those concerns in your response to the show cause?---Yes.

PN1215

Right.  And as to the first one your interaction with Mr Mitchell on the 9 April you denied that it occurred as was alleged by Mr Mitchell that, namely, that you say that you didn't - just give me a moment.  You didn't say the things which was alleged that you had said or found that you had said and that your conduct wasn't such as to make Mr Mitchell fear being physically assaulted by you or intimidate Mr Mitchell.  Are you saying no that didn't happen.

PN1216

MR GIBIAN:  Well, I mean it should be taken what he actually said in the response if they were at other premises.

PN1217

MR RAUF:  Happy to do that.  SN06?---Sorry - - -

PN1218

So you state at 1.1 you deny the findings that Toll has made in relation to my conversation with Rob Mitchell?---I'm sorry.  But I don't even - I don't - are we still looking at this?

*** STEVEN KEITH NEWTON XXN MR RAUF

PN1219

Sorry. Yes.  If you can have a look at your response of SN06?  Not the show cause.  So your response of the show cause at page 25 of your first statement.  So that's the next letter over.  Rather than paraphrase I'm taking you to what you actually wrote in your show cause response dated 19 August.  Do you see that?---Yes.

PN1220

All right.  So and I was just referring to paragraph 1.1.  Do you see that?---Yes.

PN1221

And there you deny the findings made about your conversation with Rob Mitchell?---Yes.  What Rob Mitchell said was not correct.  No.

PN1222

Yes.  And I'm putting to you now that you knew - also deny that you did anything to intimidate or make Mitchell think that you might physically assault him?---That's correct.

PN1223

Mr Newton, that's not - I want to put to you that that's not consistent with what we've discussed earlier about you being pissed off and having a face to face and heated discussion with Mr Mitchell.  What I want to put to you is that it's quite likely that you may have come across and may have been aggressive towards him?---That's not correct.

PN1224

All right.  Well, in any event, you responded here - having understood the concerns about the conduct and the show cause letter?---I'm sorry?

PN1225

So you gave your response in this letter, having understood the concerns that were raised about your behaviour?---Yes.

PN1226

Both on the 9 April last year?---Yes.  Yes.

PN1227

And then also the 30 May?---Yes.

PN1228

And so for instance on the - with the 9 April incident - it was clear to you that the company was concerned about the nature of your interaction with Mr Mitchell and that it may have been inappropriate?---Yes.

…

PN1260

MR BONCARDO:  And this was something that occurred later.  When there's silence from the respondent I'll continue.  Mr Newton, I just wanted to show you a document.  It's RL20 to Mr Lambi's statement?  If I could have leave to approach, Deputy President?  Sir, do you recognise - just have a look at that and let me know whether you recognise what that represents?---I think that's the front of the Seasons Hotel.

PN1261

All right.  And can you tell me, sir, whether or not the incident which is the subject of these proceedings occurred outside of the front of that hotel as depicted in that photograph?---Yeah, I think it was out more towards the footpath.  Towards - more towards - - -

PN1262

All right.  Can you tell me, sir, that there's - I think - two aspects of the incident.  The first aspect concerns you and Mr Chambers having a discussion and then there is - I think described as the second aspect where you're on the ground and there's some allegations as to what occurs there which we'll come to but in relation to that first aspect - when you and Mr Chambers start your conversation.  Can you tell me - looking at that pole - that large concrete pole?---Yes.

PN1263

Whether that, as you're looking at, occurred to the left or the right - in that initial conversation?---I couldn't - I couldn't be sure.

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1264

Certainly?---I know that - I don't smoke inside, like under the awning there.

PN1265

Certainly?---I went and walked more towards the footpath.

PN1266

I understand?---I couldn't tell you exactly where.

PN1267

That's completely fine.  And just in respect to where you were on the ground, can you say with any degree of certainty as to whether or not that was on the left side, as you're looking at it, of that pylon, or the right side?---I couldn't tell you.  I couldn't tell you exactly.  It's pretty vague.  I couldn't tell you.

PN1268

That's fine, sir.  That's fine.  That document can be returned.  I just want to ask you about what occurred in the restaurant prior to the incident.  The restaurant you were at was two storeys.  Is that right?---That's - I think it's split-level.

PN1269

Split-level.  So there's a high level and a low level?---Yes.

PN1270

And the level that you were on with Ms Harvey, Mr Rodger, Mr Newton?---Yes.

PN1271

And Mr Hosking was the higher level?  Correct?---Yeah, where the restaurant is.  Yeah.

PN1272

And at some point Mr Chambers joined your table?---Yeah, but I can't sort of remember when he walked in or - - -

PN1273

Certainly?---I couldn't - yeah.

PN1274

Certainly.  And he sat - and can I just ask - you were seated next to, I think, Mr Rodger - is that right - and Mr Hosking?---No, I think - Grant was on my left - Grant Rodger.  And I think Paul Newton was on my right.  I couldn't be - I couldn't be - - -

PN1275

Certainly.  And Mr Newton sat - or can I just ask you this question first - you were sitting at a table.  Correct?---Yeah.

PN1276

And Mr Newton sat on your side of the table, didn't he?  I withdraw that.  Sorry, I apologise.  Mr Chambers sat on your side of the table.  Correct?---Mm - no.

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1277

You don't remember?---I would have - I would noticed him - had - because we were against the wall.

PN1278

I see?---I know that we were against the wall.

PN1279

Right?---And I can't even remember seeing him walk in.

PN1280

All right.  Well, what I'm trying to understand, sir, is where you say Mr Chambers was seated when he came and sat with you.  And what I want to suggest to you is that he sat on your side of the table?---He may have.  He may have and probably without a doubt he probably did because that's probably why I didn't sort of notice him until - - -

PN1281

Thank you, sir.  And it's incorrect, isn't it, sir, to suggest that you observed Mr Chambers staring at you whilst he was sitting near you.  Correct?---No.  That's what was said to me.

PN1282

But you made no independent observation?---No.

PN1283

Thank you.  Sir, at paragraph seven of your reply statement, you - I don't need to take you to it - so I'm just going to put this proposition to you.  You make a general point that your recollection of what occurred before, during and after the incident on 30 May isn't particularly good?---I'm sorry.  Can you say again?

PN1284

You make a general point in your statement - paragraph seven of your recollection of the lead-up to the - and the course of the aftermath of the incident isn't particularly good?---Yes, that's right.

PN1285

And that's a result, I think you say sir, of your consumption of alcohol on the evening?---Yep.

PN1286

And also being hit in the head?---Yep.

PN1287

So you accept, don't you, that there is a possibility that what you say occurred prior to and during the incident may be incorrect?---Yes.  May be.

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1288

Thank you.  For example, sir, I think in your evidence-in-chief you clarify paragraph 36 of your first statement which reads as follows, "Immediately following the incident I was in a serious medical condition.  I was taken to the hospital"?---Um - - -

PN1289

And I think your evidence, sir, was that you never went to the hospital?---No.  No, I think we - - -

PN1290

We went through this yesterday?---Yes.

PN1291

But you're wrong to suggest in your statement, initially, that you went to hospital at any point?---Yes.  That's correct.  I didn't go to hospital.

PN1292

All right.  Notwithstanding that in your statement you said pretty clearly that you remembered going to hospital?---No.  I went to the doctors the following day.

PN1293

Understood.  Thank you.  And, sir, just in respect of paragraph 34 of your first statement you say there that after the incident, whilst you were on the ground, I remember - you say - you use the words, "I remember somebody come and - came and pulled Wayne away and somebody helped me up."  And then if I can take you to your reply statement, sir, paragraph 7(k) you say this, "I don't recall how or why Wayne got off from me, despite what I have said in paragraph 34 of my statement"?---Yep.

PN1294

So it's the case, isn't sir, that what you said in paragraph 34 was something that you had imagined happen?---The first thing that I sort of remember is somebody - well, it was Johnny Rowe and Frenchie were standing there and I just naturally assumed that that's what happened.

PN1295

So you made an assumption.  Correct?---Yeah.

PN1296

All right.  And that assumption was and you'd agree with me - one which didn't reflect particularly well on Mr Chambers because he had to be pulled away from you, like when you were on the ground?---Yes.

PN1297

And that was an assumption that you wanted to include in your witness statement to paint Mr Chambers in a negative way?---No, that's not correct.

PN1298

So you were asked some questions this morning about your jumper and you taking off your jumper and I think Mr Rauf put it to you that it was a cold night in Melbourne?---Yes.

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1299

And it was a very cold night in Melbourne, wasn't it?---Yes.

PN1300

And you were outside when you took your jumper off?---Yes.

PN1301

And it's not the case, sir, is it that your room was close to where you were outside was it?---I think it was on the first floor.  I can't sort of recall.

PN1302

So to get to your room you have to go back into the hotel?---Yes.

PN1303

Up the lift?---Yes.

PN1304

And into your room?---Yes.

PN1305

And I think - sir, I might be wrong about this - but your evidence is that you took your jumper off because you were going to go to bed?---Yes.

PN1306

Can I suggest to you, sir, that you didn't take your jumper off when you were outside on the bottom level of the hotel for the purposes of going to bed?---That's not correct.

PN1307

And, sir, the reason that you took your jumper off was because you were agitated and upset at the discussion you'd been having with Mr Chambers and you had determined to get into a boxing stance and have a go at him?---That's not correct.

PN1308

And that discussion that you have with Mr Chambers involved telematics and two separate yard agreements that Mr Chambers wanted made into one yard agreement.  Correct?---That's right.  Yes.

PN1309

And Mr Becky was mentioned during the course of that discussion wasn't he?---Yes.  Yes.

PN1310

But at no point can I suggest to you, sir, did Mr Chambers ever suggest that he wanted to take over from Mr Vecchi as the Toll Ipec delegate?---Yes, he did.

PN1311

And, sir, that is something that you have a distinct recollection of is it?---Yes, I do.

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1312

Right?---Yes.  I do remember that.

PN1313

Sir, can I suggest to you that what happened was you said something to the effect that Ipec Linehaul has a yard agreement and they're going to keep it?---That's right.

PN1314

You did say that?---Yes.

PN1315

And Wayne Chambers then said he wasn't trying to take the agreement away from Ipec, he just wanted the best from everyone.  Correct?---I can't recall him saying that but he may have.  I'm - you've got to understand that I was in no - I'd had quite a fair bit to drink and there was some of the conversation that I can't even remember that I had with Wayne.

PN1316

Well, can I suggest to you, sir, that you were told by Mr Chambers that you know Ipec doesn't exist anymore?---Yes.  I think he did say that.

PN1317

Right.  And that was something that you don't agree with.  Correct?---That's correct.

PN1318

And that was something that you - when I say you don't agree with it - you vigorously disagree with it.  Correct?---I disagree with the fact that he wants to destroy an agreement just for the benefit of these guys and it really had nothing to do with me.

PN1319

And you told him, "Fuck you."  At that point?---Yes.

PN1320

And he then said, "Fuck you." too?---Oh, yes - I - - -

PN1321

And it's at that point that you took off your jumper.  Correct?---No.  Like I've - I can't - I can't - when I was ending the conversation that's when I took my - - -

PN1322

All right.  I suggest to you you took your jumper off, you put your fists up and you got into a boxing stance?---No.

PN1323

And you said, "Come on.  Come on"?---No, that's not - - -

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1324

And then you approached Mr Chambers and you pushed him in the chest.  Correct?---No.

PN1325

And you pushed him hard and you went backwards?---No.  That's - - -

PN1326

And you then got back into your stance and you were ready to fight and have a go at him?---No.  That's not correct.

PN1327

And Mr Chambers said to you, "Are you for real?"  And you showed him you were for real by pushing him in the chest again.  Correct?---No, that's not correct.

PN1328

And then you came at him and you started throwing punches at him?---No.  That's not correct.

PN1329

And he put his hands up to protect his face and you were punching him in the side.  Correct?---No.  That's not right.

PN1330

And you hit him in the side and the ribs a number of times, didn't you?---That's not right.

PN1331

He then took a step backwards and you came towards him again and he hit you in the face?---No.  That's not right.

PN1332

Sir, I think your evidence is that you don't recall precisely how or when Mr Chambers punched you on the first occasion?---No.  That's right.  I don't.

PN1333

And when you say you came to, you were on the ground, lying on your back.  Your head was on or near the pavement.  Correct?---Yes, that's correct.

PN1334

The back of your head was on or near the pavement?---Yes.

PN1335

Can I suggest this to you, sir?  That Mr Chambers didn't hit you at any point in the back of the head.  Correct?---Yes.  That's correct.  At first I thought there was a bottle involved but - - -

PN1336

I think you told people that Mr Chambers had glassed you?---That's the first assumption that I'd come to - - -

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1337

Right?---- - -because of the shards of glass in the back of my head.  But I know that not to be true now.

PN1338

Right.  And you just agreed with me that Mr Chambers at no point hit you in the back of the head.  He didn't dog-shot you so to speak?---He didn't hit me in the back of the head.

PN1339

Right?---The wound on the back of my head was from my head hitting the pavement.

PN1340

Can I suggest to you, sir, that what in fact happened what that he hit you in the front of the head and that you then stumbled back a little way and you fell on to the driveway?---Yes, that's right.

PN1341

And you fell on your back side?---That's - yes.

PN1342

And then you said to Mr Chambers - "If I get up I'm going to kill you and I'm going to kill you"?---No.

PN1343

And Mr Chambers, said, "Don't get up.  Don't get up."  Do you agree or disagree?---No.  I'm just - - -

PN1344

You were trying to get up at this point, weren't you?---Um - - -

PN1345

And you started kicking your legs out and your legs came into contact with Mr Chambers' legs?---I can't recall that.

PN1346

And Mr Chambers fell down and the beer bottle he was holding also fell and shattered?---I can't recall any of that.  No.

PN1347

And then after that, sir, Mr Chambers was on top of you and he was holding you down by the shoulders, wasn't he?  Do you remember that?---I remember coming semi-conscious and looking up.

PN1348

And - - -?---And he was there.

*** STEVEN KEITH NEWTON XXN MR BONCARDO

PN1349

- - - he was holding you down, sir, and whilst he was holding you down you were trying to swing punches at him, weren't you?---No.

PN1350

And he asked you if you were going to stop and you didn't?---No.  That's not correct.

PN1351

And, instead, you continued swinging punches at him and saying, "I'm going to kill you"?---No.  I didn't say that.

PN1352

And then Mr Chambers punched you in the head?---That I do remember.

PN1353

And after he punched you in the head you told him, "I'll stop.  I'll stop"?---I can't recall.  I can't recall.

PN1354

And if you can't recall do you accept that it is possible that after Mr Chambers punched you in the head you said, "I'll stop.  I'll stop"?---I may have said that - yes.

PN1355

All right.  Thank you.  And then Mr Chambers got up and walked away.  Correct?---Yes.

PN1356

Thank you.  Thank you, Mr Newton?---Thank you.

 1   Wayne Chambers v Toll Transport Pty Ltd [2020] FWC 5819 (‘Chambers Decision’).

 2   Chambers Decision at [74].

 3   Ibid at [85].

 4   Ibid at [86]-[89].

 5   Ibid at [91].

 6   Ibid at [102].

 7   Steve Newton v Toll Transport Pty Ltd [2020] FWC 5960 (‘the Decision’).

 8   (2010) 197 IR 266 at [27].

 9   Decision at [50].

 10   Appeal Book, pp. 366-379.

 11   Decision at [45].

 12   Exhibit R8, Annexure RL-24, pp. 191-192 (pp. 21-22 of the record of interview on 4 July 2019).

 13   Transcript, 4 February 2020 at PN403-PN405.

 14   Transcript, 5 February 2020 at PN1576.

 15   Transcript PN1588-PN1589 (“It was a weird thing”); Exhibit R8, Annexure RL-21, p. 161 (point 0.7 of record of interview with Mr Mitchell on 19 June 2019).

 16   Decision at [66].

 17   Rose v Telstra Corporation Ltd (unreported, AIRC, Print Q9292, 4 December 1988).

 18   Decision at [149].

 19   Ibid at [151]-[153].

20    Ibid at [150].

 21   Appellant Notice of Appeal, grounds 1-5, p 5.

 22   Rose v Telstra Corporation Ltd (unreported, AIRC, Print Q9292, 4 December 1988). See Appellant’s Submissions, 3 February 2021 at [2].

 23   Appellant’s Submissions, 3 February 2021 at [3].

 24   Respondent’s Submissions, 3 March 2021 at [8].

 25   Edwards v Giudice (1999) 169 ALR 89 at [92] per Moore J; see also King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [21]-[25].

 26   Appellant’s Submissions, 29 March 2021, p 5.

 27   See Lane & Ors v Arrowcrest Group Pty Limited (t/as ROH Alloy Wheels) (1990) 27 FCR 427 at 456 (Van Doussa J); Byrne v Australian Air (1995) 185 CLR 410 at 430 (Brennan CJ, Dawson and Toohey) and at 460 (McHugh and Gummow JJ).

 28   See Howard v Pilkington (Australia) Ltd [2008] VSC 491 at [49]; Cannan v Nyrstar Hobart Pty Ltd [2014] FWC 5072 at [255]-[256].

 29   Lane v Arrowcrest (1990) 27 FCR 427, 456 cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

 30   MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at [42]. 

 31   [2008] VSC 491 at [49].

 32   [2014] FWC 5072 at [255]-[256].

 33   [2008] VSC 491 at [49].

 34   [2003] FCAFC 180 at [13]-[15]

35 [2014] FWC 5072 at [255]-[256].

 36   [2015] FWCFB 888.

 37   Ibid at [54].

 38   [2016] FWCFB 108.

 39   Ibid at [15].

 40   [2016] FWC 7906.

 41   Ibid at [31].

 42   [2016] FWCFB 108 at [15].

 43   Also see Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Michael Hatwell v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092.

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

 45   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410.

 46   [2019] FWCFB 5104 at [43]. Also see Rick Adaszko v Mitford Investments Pty Ltd ATF The JJG Trust t/a Integro Private Wealth [2021] FWCFB 719 at [28].

 47   Decision at [147].

 48   Appellant’s Submissions, 3 February 2021 at [44].

 49   See Respondent’s Submissions, 3 March 2021 at [71]-[88], especially [74].

 50   Respondent’s Submissions, 3 March 2021 at [75]-[76].

 51   Transcript, 31 March 2021 at PN134.

 52   (1992) 176 CLR 256.

 53   Ibid at 268.

 54   Ibid at 269.

 55   (2011) 243 CLR 361 (‘Kuhl’).

 56   Kuhl at [60].

 57   Ibid at [61].

 58   Ibid at [62], [66].

 59   Ibid at [67].

 60   Ibid at [74]-[75].

 61   Respondent’s Submissions, 3 March 2021 at [84].

 62   Ibid at [79].

 63   Ibid at [81].

 64   Appeal Book, p.655.

 65   Respondent’s Submissions, 6 December 2020 at [43](g).

 66   Appeal Book, p.729.

 67   Respondent’s Submissions, 27 April 2020 at [4.32]; Appeal Book, p.833.

 68   Respondent’s Submissions, 27 April 2020 at [4.9]; Appeal Book, p.827.

 69   Respondent’s Submissions, 27 April 2020 at [4.10]; Appeal Book, p.827.

 70   Respondent’s Submissions, 27 April 2020 at [4.11]; Appeal Book, p.828.

 71   Respondent’s Submissions, 27 April 2020 at [4.35]; Appeal Book, p.834.

 72   (1998) 81 IR 410.

 73   (1998) 81 IR 410, 413. Also see Woodman v The Hoyts Corporation Pty Ltd PR906309, 11 July 2001 per Guidice P, Watson SDP and Granger C.

 74   Appellant’s Submission, 3 February 2021 at [25].

75 Respondent’s Submission, 3 March 2021 at [30].

 76   Respondent’s Submission, 3 March 2021 at [36].

 77  ’s  Submissions, 29 March 2021 at [45]-[46]. 

 78   (1933) 49 CLR 66.

 79   Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359.

 80   Concut Pty Ltd v Worrell (2000) HCA 64 at [51].

 81   Concut Pty Ltd v Worrell (2000) HCA 64 at [38].

 82   [1999] 2 All ER 1005 at 1015.

83 Faccenda Chicken Ltd v Fowler [1986] 1 All ER 617.

84 W.D. & H.O. Wills v Jamieson [1957] AR (NSW) 547; Sinclair v Neighbour [1967] 2 QB 279.

 85   Boston Deep Sea Fishing Co. v Ansell (1888) 39 ChD 339.

86 Daily Cleaning Service v Pavlovic (1992) 34 AILR 359.

 87   NSW Supreme Court, unreported, 29 March 1995.

 88   Ibid at 6.

 89   See Kahn-Freund O, "Blackstone's Neglected Child: The Contract of Employment" (1977) 93 Law Quarterly Review 508 at 512.

 90   (1995) 185 CLR 410 at 436. See further: Attorney-General (NSW) v Perpetual Trustee Co. Ltd (1955) 92 CLR 113 at 122-123; [1955] AC 457 at 482-483; Wilson v Racher [1974] ICR 428 at 430 per Edmund Davies LJ.

 91   Dec 1444/98 N Print Q9292.

 92   Appellant Submissions, 3 February 2021 at [25]; Respondent Submissions, 3 March 2021 at [27].

 93   (1949) 49 S.R. (N.S.W.) 351.

 94   (1949) 49 S.R. (N.S.W.) 351, at 357-358.

 95   (2006) 67 NSWLR 73.

 96   Ibid at p. 80 per Bryson JA with whom Handley JA and Ipp JA agreed.

 97   (2002) 113 IR 1.

 98   Ibid at p. 33.

 99   See generally, Brianna Harrison, ‘The Shadow of the Right to Silence in the Workplace’ (2002) Australian Journal of Law 15.

 100   (1996) 140 ALR 625 at 636.

 101   (1974) 3 ACTR 20.

102 Ibid at pp. 29-30.

 103   [2008] AIRCFB 15.

 104   Ibid at [4] point 14.

 105   [2008] AIRCFB 15 at [23].

 106   See Stephen Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

 107   (1995) 62 IR 385 at 391.

 108   Print S6238, 22 May 2000.

 109   (1998) 81 IR 410 at 413.

 110   (1998) 83 IR 102 at 109-110.

 111   [2018] FWCFB 901 at [42].

 112   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].

 113   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [70]-[73], [(2000) 98 IR 137].

 114   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 115   Ibid.

 116   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [73]; (2000) 98 IR 137.

 117   See for example Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626 (Cargill C, 20 December 2012).