Appeal by DP World Sydney Limited - [2013] FWCFB 9230

[2013] FWCFB 9230

The attached document replaces the document previously issued with the above code on 22 
November 2013.

This version corrects typographical errors, paragraph referencing errors and party name in 
paragraph [6].

Vanja Bulut
Associate to Vice President Catanzariti

Dated 27 November 2013















1

Fair Work Act 2009 
s.604 - Appeal of decisions

DP World Sydney Limited
v
Mr Stephen Lambley
(C2012/3296)

VICE PRESIDENT CATANZARITI
VICE PRESIDENT LAWLER
COMMISSIONER CAMBRIDGE

SYDNEY, 22 NOVEMBER 2013

Appeal against decision [[2012] FWA 1250] and order [PR521151] of Deputy President 
Sams at Sydney on 21 March 2012 in matter number U2011/10711. Rehearing of application 
for unfair dismissal remedy. Misconduct - fighting in breach of policy – whether dismissal 
harsh. Application dismissed.

REASONS FOR DECISION OF VICE PRESIDENT CATANZARITI AND 
COMMISSIONER CAMBRIDGE

[1] This is an appeal against a decision1 of Deputy President Sams in relation to an 
application (Application) by Mr Stephen Lambley for an unfair dismissal remedy pursuant to 
s.394 of the Fair Work Act 2009 (the Act). The Application arose from the termination of Mr 
Lambley’s employment by DP World Sydney Limited (DP World) for serious misconduct. 
The Deputy President found that there was a valid reason for the dismissal however, in the 
circumstances, concluded that the dismissal was harsh and ordered that Mr Lambley be 
reinstated. A differently constituted Full Bench found that the Deputy President had erred and 
quashed the decision.2

[2] At the hearing of the appeal, before the reconstituted Full Bench, Mr S Crawshaw of 
Senior Counsel and Ms L Doust of Counsel with permission appeared for Mr Lambley and 
Mr I Taylor of Senior Counsel and Mr D Mehendra of Counsel with permission appeared for 
DP World.

Procedural history

[3] The Application was heard by the Deputy President in Sydney on 5 to 8 December 
2011. On 21 March 2012, the Deputy President handed down a decision in favour of Mr 
Lambley, ordering that Mr Lambley be reinstated, that there be continuity of service and 
partial lost remuneration.

[4] DP World filed an appeal against that decision on 3 April 2012 and the appeal was 
heard by a differently constituted Full Bench on 1 June 2012. That Full Bench found that:

[2013] FWCFB 9230

DECISION


E AUSTRALIA FairWork Commission




 



[2013] FWCFB 9230

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“[33] For the above reasons we consider that the Deputy President erred in the exercise 
of his discretion. As a result there has been an unjust result to Mr Lambley’s unfair 
dismissal application. In our view it is in the public interest that decisions in unfair 
dismissal matters are consistent with established principles and involve the sound 
exercise of the discretions vested in the tribunal. We therefore grant permission to 
appeal, allow the appeal and quash the decision of the Deputy President.”

[5] The decision of the first Full Bench was subsequently appealed to the Federal Court of 
Australia. On 10 January 2013, Katzmann J, in Lambley v DP World Sydney Limited [2013] 
FCA 4, found, at [50], that:

“...In the passages to which DP World referred, however, the Full Bench was explaining 
how the discretion of the Deputy President miscarried. It is clear that the Full Bench 
took the view that any proper exercise of the discretion would have resulted in only 
one answer, namely, that the dismissal was not harsh, unjust or unreasonable. At [33] it 
described the way in which the Deputy President had exercised his discretion as 
“unjust”. But the Full Bench did not purport to exercise the discretion for itself. It 
made no order disposing of the application. I therefore accept Mr Lambley’s 
submission that the Full Bench did not go on to exercise the discretion for itself. Yet, 
this was not a jurisdictional error as Mr Lambley contended because s 607 of the Act 
does not require the Full Bench to exercise the discretion for itself. It could have done 
so (see s 607(3)), but it did not. Consequently, mandamus does not lie: Bodruddaza v 
Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 
651 at [70]. The decision of the Deputy President having been quashed, the 
application now needs to be determined afresh.”

(emphasis added)

[6] Both parties appealed the decision of Katzmann J, and that appeal is still before the 
Full Court of the Federal Court of Australia. However, in light of her Honour’s view that the 
first Full Bench did not dispose of the Application (a matter contested by DP World), Mr 
Lambley wrote to the Fair Work Commission (the Commission) seeking that the matter be 
“determined afresh”. 

[7] The matter was brought before Vice President Lawler, as a member of a Full Bench 
comprising of the Vice President, Senior Deputy President Harrison and Commissioner 
Cambridge, for directions. It was determined by a majority of that Full Bench that the 
Commission should await the outcome of the Full Court of the Federal Court of Australia 
decision prior to the matter being “determined afresh” by the Commission. However, the Full 
Court of the Federal Court of Australia was of the view that the matter should proceed before 
the Commission as the appeal proceedings before it are not an impediment. 

[8] Accordingly, by a somewhat unusual method, the matter comes before this Full Bench 
to determine the Application “afresh” in light of the decision of Katzmann J.

Factual background

[9] Mr Lambley had been employed by DP World (and its predecessor entity, Container 
Terminals Australia Ltd) since October 1981. At the time of his dismissal, Mr Lambley was 






http://www.austlii.edu.au/au/cases/cth/HCA/2007/14.html#para70
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http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282007%29%20228%20CLR%20651
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employed as a Grade 5 Stevedore at the Port Botany Terminal predominantly performing 
clerical duties.

[10] On 5 June 2011, Mr Lambley was involved in a physical altercation with another DP 
World employee, Mr Peter Smith (who was commonly known by the nickname “Romper”). 
The lead up to the altercation was subject to some conflicting evidence, but the altercation 
itself was captured by three closed circuit televisions (CCTV) cameras. 

[11] Most of the details of the altercation were not in dispute. It is accepted that a heated 
verbal exchange occurred between Mr Lambley and Mr Smith at about 10:05 pm while Mr 
Lambley was waiting for the commencement of his shift, which was to commence at 10:25 
pm. Mr Lambley gave evidence that he and Mr Smith were seated around four metres apart in 
the lunch room, they exchanged heated words, including Mr Smith’s repeatedly threatened 
that he would “cave [Mr Lambley’s] head in”, and that Mr Smith goaded him into meeting 
him outside for a fight in 10 minutes time. At about 10:07 pm, Mr Lambley left the canteen 
and waited in the car park until about 10:16 pm. He then returned to the premises, it was 
suggested to use the bathroom, and returned to the car park at about 10:19 pm. He waited in 
the car park until Mr Smith exited the premises at approximately 10:27 pm.

[12] The first Full Bench described what happened next:

“[7] When Mr Smith exited the premises Mr Lambley approached him quickly with 
his clenched fists raised. Mr Lambley threw the first punch. Mr Smith did not fight 
back or raise his hands, and during the entire altercation, he did not throw any punches. 
Mr Lambley punched Mr Smith again in the face with force, got him into a headlock 
and punched him 2-3 more times, grabbed him by the shoulders and threw him to the 
ground, and while Mr Smith was on the ground, moved around his body and kicked 
him in the head as hard as he could. He then tried to pull Mr Smith up to continue to 
fight. At that stage, about 10.30pm the fight broke up and Mr Lambley re-entered the 
DP World premises.”

[13] It should be noted that Mr Lambley’s son, who was also employed by DP World, was 
present during the physical altercation, and kept within close proximity of the fight.

[14] DP World carried out an investigation into the incident and decided to dismiss both Mr 
Lambley and Mr Smith. 

[15] As noted by the Deputy President in his decision at first instance, the General Manager 
of the Port Botany terminal, Mr Mark Bellears gave evidence that he believed that dismissal 
was appropriate because: 

“(a) the CCTV footage clearly showed that Mr Lambley punched and kicked Mr 
Smith and Mr Lambley had not denied it in the meeting on 20 July 2011;

(b) Mr Lambley did not take any steps to avoid an altercation in the car park with 
Mr Smith;

(c) the conduct was a contravention of DP World’s zero tolerance approach to 
verbal and physical violence, as set out in the P&O Ports Human Resources 
Handbook.”3








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[16] DP World had a policy (inherited after its acquisition of P &O Ports) which stated that 
fighting on site and the use of abusive or threatening language or physical force with the 
intent to harass, victimise, coerce or injure was conduct that could lead to suspension or 
dismissal. 

[17] In his Application to the Commission, Mr Lambley submitted that the decision to 
dismiss him was unfair because of the “intense preconceived provocation and goading” by Mr 
Smith over a number of years and immediately before the assault. Furthermore, Mr Lambley 
contended that the dismissal was unfair because DP World had not considered all the 
circumstances. He said that those circumstances included:

“that the incident was an isolated one, that Mr Lambley in nearly 30 years of service has 
not had any similar events recorded against him, and the adverse effect and negative 
life position the dismissal leaves Mr Lambley and his family in, renders the dismissal 
in all the circumstances harsh, unjust and unreasonable.”

Decision at first instance

[18] The Deputy President’s primary conclusions are set out in the following extract from 
his decision: 

“[143] On any objective analysis, the undisputed evidence in this case, most 
particularly the CCTV footage and the applicant’s own admissions, provide an 
irresistible foundation for the respondent’s decision to dismiss the applicant. In other 
words, there can be little doubt that there was a valid reason for the applicant’s 
dismissal (s 387(1) of the Act). The Union’s non-submission of the subject properly 
acknowledged this reality. Without more, one might even expect that the totality of Mr 
Taylor’s submissions would be accepted by FWA. However, given the other 
extraordinary and inexplicable circumstances revealed during the proceedings, that 
cannot possibly be the end of the matter. 

[144] As incredible and unbelievable as it may seem, and notwithstanding I have no 
evidence from Mr Smith as to his version of events, I am prepared to accept, on the 
balance of probabilities, that Mr Smith ‘set up’ the applicant in order to portray him as 
the aggressor, with the express intention of securing his dismissal. I am fortified to this 
conclusion, by the following evidence, which I accept. 

(a) Mr Smith goaded the applicant into a physical altercation by 
threatening that he was intending to ‘cave his head in’. I accept the applicant’s 
and his son’s evidence that this threat had been repeated on a number of 
occasions.

(b) Mr Smith had a long history of abusive, threatening and bullying 
behaviour towards the applicant, and other employees, who he perceived were 
not supportive of him, or that he simply did not like.

(c) The applicant was very nervous at the prospect of a fight with Mr 
Smith; someone much younger and of a larger build. He had sent his son to 
intervene with Mr Smith. I accept that the applicant was so nervous as to what 








[2013] FWCFB 9230

5

might happen, that he was forced to the toilet three times, within 10 minutes. 
This physiological manifestation is indicative of a ‘very, very nervous’ person. 
Such an admission was embarrassing and unlikely to have been ‘made up’ by 
the applicant.

(d) It is curious that Mr Smith would goad the applicant to hit him, then 
throw no punches and end up on the ground in the context of having said he 
was ‘going to cave the applicant’s head in’. On the other hand, Mr Smith’s 
feigned passivity is entirely consistent with his ‘set up’ of the applicant as the 
aggressor, in order to falsely portray himself as the innocent victim.

(e) Mr Smith’s aggressive and uncalled for responses to Mr Lewis and Mr 
King, who were merely coming to his assistance, is hardly demonstrative of a 
person who had been injured in the altercation. The conduct taints the 
suggestion of a real assault by the applicant. In addition, I reject Mr Bolger’s 
suggestion that Mr Smith merely wanted to thank Mr King for helping him. 
Apart from being entirely inconsistent with Mr King’s version of events, which 
I accept, thanking someone does not explain Mr Smith’s phone pestering of Mr 
King in the following days. What it does perfectly demonstrate is that Mr 
Smith knew his plan might come undone if Mr King told management what 
really occurred.

(f) Mr Smith’s ‘wink’ to Mr King makes clear to me that Mr Smith was 
acting out the role of the innocent party in the fight. I found Mr King to be an 
unbiased observer, who did not involve himself in workplace disagreements. 
He was a credible witness whose evidence has a ‘ring of truth’ about it. He did 
not ‘gild the lily’ and did not appear to have been coached as to his evidence or 
to have rehearsed it. While he sometimes seemed confused when Mr Bolger 
put contrary propositions to his evidence, in my view, this demonstrated a 
person who was unfamiliar with giving evidence in the Tribunal and was 
confused by Counsel putting things to him which he knew to be at odds with 
his own recollection of the truth. Far from demonstrating a lack of credibility, 
these responses enhanced it.

(g) I accept Mr McIntyre’s evidence that about a month before the 
incident, Mr Smith had told him that ‘I am going to get him (the applicant), I 
am going to fuck him up’. This is clear and corroborative evidence that Mr 
Smith was intent on a course of action to harm the applicant through getting 
him dismissed. It was probably shortly thereafter that he conceived of the plan 
to ‘set him up’.

(h) I also accept Mr Barnes’ evidence that he had overheard a discussion 
between the applicant and Mr Smith in which Mr Smith blamed Ms Hunter’s 
return to work on him. The root cause of Ms Hunter’s psychological injury 
which was well known to management, was the harassment and bullying by 
Mr Smith. Accepting Ms Hunter’s evidence, as I do, demonstrates a pattern of 
reprehensible behaviour by Mr Smith towards fellow employees of which his 
‘set up’ of the applicant, is but one further poor example.

...








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[145] The most significant evidence was the extraordinary CCTV footage. There is 
no doubt it was manually manipulated by an unknown person who followed the 
altercation and zoomed in at relevant times which would seem to indicate that 
someone had been enlisted to ensure clear coverage of the incident. Ms Taylor’s 
evidence was that the footage was ‘jumpy’, zoomed in and out and followed the 
‘action’. It seems to me to be instructive that Mr Smith had said he would see the 
applicant outside in 10 minutes. While there is no evidence of who manipulated the 
camera, or for what purpose, it is open to conclude that the 10 minute notice was given 
so Mr Smith could organise someone to manipulate the camera. I do not accept the 
alternative theories that someone just happened to know a fight was on and just 
followed it with the camera out of interest or a supervisor had filmed it. In either 
scenario, the unknown cameraperson was guilty of not seeking to prevent the 
altercation by reporting it or attempting to intervene. 

...

[149] In my opinion, it is reasonable to find that the respondent’s decision to dismiss 
the applicant, knowing the history and previous conduct of Mr Smith (most notably 
towards Ms Hunter) was coloured and ultimately tainted by a perception - which Ms 
Taylor candidly acknowledged - that there would be trouble if one of them was 
reinstated, but not the other. I apprehend that Mr Smith had not foreshadowed his own 
dismissal. To put it bluntly, the respondent appears to have taken the easy way out by 
dismissing both of them. However, it did so without properly weighing up (or at all) 
Mr Smith’s motive, provocation, past history and in the applicant’s favour, his long 
and relatively unblemished service, honesty during the investigation and his remorse 
and contrition...

[150] When viewed in this way whilst I am satisfied that the respondent had a valid 
reason for the applicant’s dismissal (see Culpepper v International Ship Management 
PR960313), I am nevertheless comfortably satisfied that his dismissal was otherwise 
‘harsh, unreasonable and unjust’ within the meaning of s 387 of the Act. 

[151] I make this finding because I believe the applicant’s dismissal was an utterly 
flawed and unbalanced response to the incident of 5 June 2011. Moreover, the 
respondent’s decision has resulted in a ‘manifest injustice’, of the rare kind, expressed 
by the majority of the Full Bench in Lawrence v Coal & Allied Mining Services Pty 
Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089...

[19] Ultimately, the Deputy President found that Mr Lambley had been set up by Mr Smith 
with the express intention of procuring his dismissal. The Deputy President accepted that Mr 
Lambley’s conduct provided a valid reason for his dismissal. Nevertheless, he found the 
termination was harsh, unjust and unreasonable because he considered it to be “an utterly 
flawed and unbalanced response” to the incident.

Decision of first Full Bench

[20] DP World appealed the decision of the Deputy President on the ground that the 
Deputy President:








[2013] FWCFB 9230

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 erred in finding that Mr Lambley was “set up”;

 erred in failing to find that the gravity of the misconduct outweighed all other 
factors;

 erred in ordering reinstatement.

[21] The first Full Bench found as follows:

“[27] This present matter concerns fighting by Mr Lambley. The principles outlined 
above establish that fighting at the workplace usually amounts to a valid reason for 
dismissal, an employer has every right to establish policies against fighting and an 
employer has every right to ensure compliance with those policies by dismissing 
employees who are found to have engaged in fighting absent some extenuating 
circumstances. These principles are consistent, for example, with regulation 1.07 of the 
Fair Work Act Regulations 2009, which relevantly defines ‘serious misconduct’ as 
including conduct that causes serious and imminent risk to the health or safety of a 
person, or assault. Importantly, the authorities also establish that the dismissal of an 
employee found guilty of fighting at the workplace can only be found to be harsh, 
unjust or unreasonable in extenuating circumstances. 

[28] The Deputy President in the extracts set out above paid due regard to the 
circumstances of the employee including his long service. We accept that much of this 
analysis is appropriate. He is also critical of the decision-making process of the 
employer, the failure to fully consider allegations of Mr Smith’s bullying, and the 
failure to have regard to allegations that Mr Smith set up Mr Lambley. We do not 
consider that these matters were soundly balanced by the Deputy President by way of 
a finding that they amount to significant mitigating factors that render Mr Lambley’s 
otherwise serious misconduct excusable. Such an approach does not give appropriate 
weight to the seriousness of the conduct, nor the need for employers to be able to 
establish policies against fighting, and to enforce such policies when they are 
breached. It does not accord a fair go all round to each side. Nor do we consider that 
these factors are capable of amounting to such mitigating circumstances. Mr Lambley 
may have been goaded into a fight, but he engaged in it willingly and after 
contemplation. He had other choices and he chose not to follow them. He chose to 
fight. In the fight he was the aggressor - indeed the sole aggressor. He cannot be 
described as acting in self defence. He did not simply throw a single unwise punch. He 
continued to assault Mr Smith when Mr Smith was not fighting back and when Mr 
Smith was on the ground, moved into a position to kick him in the head as hard as he 
could. On the scale of physical altercations Mr Lambely’s (sic) conduct was very high 
on the scale.

[29] If Mr Smith had set up Mr Lambley to engage in this conduct in front of 
CCTV cameras, it does not in any way excuse Mr Lambley’s conduct or suggest that 
an employer cannot reasonably discipline an employee for the conduct in which they 
have clearly engaged. We do not consider that this possibility, even if correct, is 
capable of outweighing the otherwise inherent fairness of dismissing an employee for 
engaging in a serious assault after following a procedurally fair investigation. 








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[30] If the history of the conflict between the two involved bullying and 
intimidation by Mr Smith, this did not excuse the conduct. An employer is entitled to 
implement its disciplinary policies in a way designed to ensure employees comply 
with its standards of behaviour. 

[31] In our view the Deputy President did not adopt an approach consistent with 
these principles and his conclusion was unreasonable and plainly unjust as a result. In 
our view the Deputy President has appropriately had regard to the circumstances of the 
dismissed employee including his long service, and other matters. In many respects his 
careful analysis of those circumstances is useful and appropriate. However, he has not 
appropriately balanced all the circumstances of the matter nor given due weight to the 
factors in s.387. Counsel for DP World has established that the Deputy President’s 
decision in this respect involves an error of the House v R kind. 

[32] In view of our conclusion on this ground of appeal it is unnecessary that we 
consider the other grounds of appeal.”

[22] The first Full Bench proceeded to conclude that the finding below was unjust and that 
it was in the public interest that decisions in unfair dismissal cases be consistent with 
established principles and involve the sound exercise of the discretion. Consequently, it 
granted permission to appeal, allowed the appeal and quashed the decision of the Deputy 
President. 

Decision of the Federal Court

[23] Mr Lambley appealed the decision of the first Full Bench to the Federal Court of 
Australia. Justice Katzmann observed that the first Full Bench emphatically disagreed with 
the Deputy President, although her Honour did not accept that the first Full Bench decided to 
set aside the Deputy President’s decision simply because of a difference of opinion.

[24] Although her Honour did not accept Mr Lambley’s contention that the first Full Bench 
gave greater emphasis or focus to the valid reason criterion over any other factor in s.387 of 
the Act, it was noted that there was merit in Mr Lambley’s other complaints.

[25] Specifically, her Honour found that, as was accepted by DP World, the first Full 
Bench overstated the position in stating that the authorities establish that the dismissal of an 
employee found guilty of fighting at the workplace “can only be found” to be harsh, unjust or 
unreasonable in extenuating circumstances. Her Honour noted that this was certainly not an 
accurate reflection of what Moore J said in AWU–FIME Amalgamated Union v Queensland 
Alumina Limited (1995) 62 IR 385, which was one of the two authorities to which the first 
Full Bench referred. Secondly, her Honour noted that the first Full Bench also relied on a 
sweeping statement which did not correctly, or fully, paraphrase Byrne and Australian Meat 
Holdings Pty Ltd v McLauchlan (1998) 84 IR 1. 

[26] However, noting these errors, her Honour concluded that:

“[42] ... the Full Bench expressly recognised the limits of its functions and powers. It 
correctly understood that its functions were to decide whether it was in the public 
interest to grant permission to appeal and whether the Deputy President had made an 
error of the kind described in House v The King. It considered a ground of appeal 








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which, if successful, would determine the outcome of the appeal. It concluded that the 
particular ground should succeed because the Deputy President had made a relevant 
error. In coming to that conclusion, it was not doing something it lacked the power to 
do. It was deciding matters within its jurisdiction, albeit incorrectly.”

[27] As replicated at [5] above, her Honour, in dismissing the appeal, noted that the first 
Full Bench had not exercised its discretion to rehear the matter, and given that the Application 
was not remitted to a member of the Commission, the Application is still outstanding as there 
is no order to dismiss it.

Submissions and consideration

Role of this Full Bench

[28] It was agreed by both parties that in circumstances where the first Full Bench granted 
DP World permission to appeal, found appealable error and quashed the decision below, all 
that remains for this Full Bench to do is complete the rehearing of the matter by exercising the 
discretion, as contained in s.607 of the Act, that Katzmann J considered the first Full Bench 
had not exercised. 

[29] It should be noted that DP World, in its appeal before the Full Court of the Federal 
Court of Australia, is contending that the first Full Bench did exercise the discretion and so 
concluded the matter, even though it did not issue an order dismissing the Application. If that 
were so, there is nothing further for this Full Bench to do. However, for the purpose of these 
proceedings, DP World has accepted that this reconstituted Full Bench will proceed on the 
basis that the first Full Bench did not complete the rehearing.

[30] We agree with the parties that all that remains for this Full Bench is to rehear the 
Application and, based on the correct legal principles, determine whether Mr Lambley’s 
dismissal was harsh, unjust or unreasonable.

[31] A determination of the Application afresh does not require that the evidence be heard 
again. The parties agreed that this Full Bench should rely on the evidence called in the 
proceedings before the Deputy President at first instance and that there is no need for further 
evidence.

Submissions

[32] It was submitted by Mr Lambley that the exchange between his and Mr Smith prior to 
the physical confrontation was extraordinary. On Mr Lambley’s account, Mr Smith told him 
to “Get outside, you dog cunt, I am going to cave your head in”.  It was submitted that the 
language used could not have been anything other than calculated to be both threatening and 
provocative. Furthermore, the goading, which continued later, involved Mr Smith 
approaching Mr Lambley saying, “Hit me, hit me”. Overall, it was submitted, this conduct 
indicates that Mr Smith was more than an aggressor and his intention was to provoke a 
response from Mr Lambley. It was submitted that Mr Smith’s conduct, as displayed on the 
CCTV video, was inconsistent with the normal efforts at self-defence one would expect to see 
made by any person confronted by another person with their fists raised, and that this 
supported the finding that Mr Smith had “set up” Mr Lambley.








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[33] With respect to the factors outlined in s.387 of the Act, to the extent that they are 
relevant, Mr Lambley submitted that:

 there was a valid reason within the terms of s.387(a) given by DP World for the  
dismissal;

 he was notified of the reasons for his termination by letter dated 1 August 2011;

 he participated in meetings concerning the incident and was accompanied by his then 
legal representative at two out of the three meetings; and

 in relation to s.387(h) of the Act, there are a number of other relevant matters which 
should be taken into account by the Commission when considering whether it is 
satisfied that a dismissal was harsh, unjust or unreasonable. They fall into three 
categories:

 matters that explain the uncharacteristic conduct that resulted in the 
termination - being the serious and unprovoked threat by Mr Smith, who 
had a history of abusive, threatening and bullying behaviour as well as 
the evidence which supports the “set up” theory;

 matters relating to Mr Lambley’s employment history, including that the 
conduct was uncharacteristic and unlikely to be repeated, the fact that Mr 
Lambley was 53 years old and had over 30 years service with the DP 
World and its corporate predecessor, the fact that Mr Lambley was an 
employee without any appreciable disciplinary history, a person of good 
character, a competent employee, who has had difficulty in obtaining 
alternative employment of a similar standard. It was also noted that Mr 
Lambley responded honestly to the investigation of the incident and 
demonstrated remorse and contrition for the conduct; and

 matters related to DP World’s disciplinary policy, which does not require 
the dismissal of Mr Lambley for his misconduct.

[34] In summary, it was submitted by Mr Lambley that although there was a valid reason 
for the dismissal, the circumstances of the case are such that the dismissal was nonetheless 
harsh.

[35] In response, DP World submitted that the CCTV footage shows the fight in detail and 
that the evidence, which is not in dispute, shows that:

 Mr Lambley approached Mr Smith quickly and was the only one to have his arms 
raised and fists clenched to fight;

 In the fight Mr Lambley:

 threw the first punch;

 was the only one to throw any punch;








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11

 after some punches that connected, continued to fight, punching Mr 
Smith in the face with a right jab that connected with force even though 
Mr Smith was not fighting back;

 got Mr Smith into a headlock and while holding him in the headlock hit 
him with 2-3 uppercuts;

 grabbed Mr Smith by the shoulders and threw him to the ground;

 while Mr Smith was lying on the ground, Mr Lambley went around Mr 
Smith’s prone body to line up the best position to deliberately kick Mr 
Smith as hard as he could in the head, which Mr Lambley admitted was 
done in an attempt to cause as much injury as he could; and 

 tried to pull Mr Smith up so he could keep fighting, saying words to the 
effect of “come on, fight”.

[36] It was submitted that these uncontested facts inevitably lead to the following findings:

 Mr Lambley’s conduct was wilful and knowing, and “excessive and inappropriate”;

 Mr Lambley was not “provoked” in the sense that he was reacting in the heat of the 
moment;

 Mr Lambley chose to engage in a fight, rather than to talk, to back off or to prevent it 
by reporting it;

 Mr Lambley brought on the fight by waiting for and then approaching Mr Smith 
quickly, and with intent to fight him;

 Mr Lambley was the aggressor during the fight itself, being the only one who raised 
his fists or physically attacked; and

 Mr Lambley was not defending himself from attack (indeed was not himself under  
any physical attack) but aggressively attacking Mr Smith including well after it was 
clearly apparent to him that Mr Smith posed no danger to him, with the intention of 
causing as much harm as possible.

[37] It was submitted that the only conclusion which can be drawn from the uncontested 
evidence is that Mr Lambley’s assault of Mr Smith was an act of misconduct in the most 
serious category.

[38] With respect to the factors outlined in s.387 of the Act, to the extent that they are 
relevant, it was submitted that:

 The existence of a valid reason is not in issue;

 Mr Lambley was notified of the reasons for dismissal on 1 August 2011;








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 Mr Lambley does not make any complaint about being provided with an opportunity 
to respond to the allegations; and

 Given that the other factors required to be taken into account by s.387 are not 
relevant, the “weighing” exercise required involves weighing the seriousness of the 
misconduct (s.387(a)) against any “other factors” (s.387(h)).

[39] It was also submitted that the “set up” theory should be rejected by this Full Bench as 
there is insufficient evidence on the balance of probabilities to prove that Mr Smith had 
engaged in a conspiracy with one or more others to film the fight in order to “set up” Mr 
Lambley. There would need to be evidence that was more than mere speculation and 
supposition for such a finding: Briginshaw v Briginshaw.

[40] Furthermore, it was submitted that given the seriousness of the misconduct (a 
premeditated attack that involved substantially more than a single punch), the absence of any 
evidence justifying or the conduct (such as self-defence), it would be unprecedented to find 
the dismissal to be harsh, unjust or unreasonable.

Rehearing

[41] Although we have had the benefit of the decision and the reasoning of the first Full 
Bench, it is the role of this Full Bench to determine Mr Lambley’s Application for an unfair 
dismissal remedy afresh and in accordance with the correct legal principles. In saying that, we 
are very mindful of the errors, within jurisdiction, made by the first Full Bench and 
highlighted by Katzmann J. We do not accept, as was pressed by DP World, that our 
discretion, in determining the Application, is somehow fettered by the findings of the first 
Full Bench. 

[42] We have also had regard to the factual findings made by the Deputy President at first 
instance. As was noted by Gleeson CJ, Gummow and Kirby JJ in the High Court’s decision in 
Fox v Percy:

“On the one hand, the appellate court is obliged to “give the judgment which in its 
opinion ought to have been given in the first instance”. On the other, it must, of 
necessity, observe the “natural limitations” that exist in the case of any appellate court 
proceeding wholly or substantially on the record. These limitations include the 
disadvantage that the appellate court has when compared with the trial judge in respect 
of the evaluation of witnesses’ credibility and of the “feeling” of a case which an 
appellate court, reading the transcript, cannot always fully share. Furthermore, the 
appellate court does not typically get taken to, or read, all of the evidence taken at the 
trial. Commonly, the trial judge therefore has advantages that derive from the 
obligation at trial to receive and consider the entirety of the evidence and the 
opportunity, normally over a longer interval, to reflect upon that evidence and to draw 
conclusions from it, viewed as a whole.”4

[43] It is accepted by all the parties that the weighing exercise required to be undertaken 
pursuant to s.387 of the Act requires this Full Bench to weigh the seriousness of the 
misconduct against any mitigating factors. This is because it is accepted, by the parties and by 
this Full Bench, that the other factors outlined in s.387 are either accepted as being non-
contentious or not relevant to the Application.








[2013] FWCFB 9230

13

[44] It is well established and accepted that a dismissal may still be harsh notwithstanding 
that there exists a valid reason for dismissal. In Byrne v Australian Airlines Ltd5, McHugh and 
Gummow JJ said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not 
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust because 
the employee was not guilty of the misconduct on which the employer acted, may be 
unreasonable because it was decided upon inferences which could not reasonably have 
been drawn from the material before the employer, and may be harsh in its 
consequences for the personal and economic situation of the employee or because it is 
disproportionate to the gravity of the misconduct in respect of which the employer 
acted.”6

[45] Much has been said in the decision at first instance, and in the decision of the first Full 
Bench, about the principles surrounding fighting in the workplace. In one of the leading 
authorities on the issue, AWU-FIME Union v Queensland Alumina Ltd7, Moore J observed 
that:

“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.”8

[46] Although dismissal of an employee due to fighting in the workplace may very well be 
viewed as not harsh, unjust or unreasonable, the circumstances surrounding the fight and the 
employee’s personal circumstances must be considered prior to such a conclusion being 
drawn. 

[47] We agree with the majority in the decision of B, C, and D v Australia Postal 
Corporation t/as Australia Post9(Australia Post) that the approach the Full Bench is to take in 
determining whether the dismissal was harsh, unjust or unreasonable is to:

 determine if there is a valid reason based on conduct; and then

 engage in a weighing up process, weighing:

 the gravity of the misconduct; against

 the mitigating circumstances and other relevant matters that may 
properly be brought to account as weighing against a finding that 
dismissal was a fair and proportionate response to the particular 
misconduct.








[2013] FWCFB 9230

14

[48] Relevant to this Application is the majority’s finding in Australia Post that:

“... there are some forms of wilful misconduct (like deliberate fraud against the 
employer or a serious unprovoked assault) that will almost certainly merit dismissal 
irrespective of an employee’s length of service, good disciplinary record and personal 
circumstances. Employees do not need to be warned that such conduct will be treated 
seriously by the employer. (Albeit that, even then, it is possible construct extreme 
scenarios where it may be objectively unfair to dismiss the employee – for example, 
the misconduct occurred while the employee was suffering a one-off episode of 
automatism arising from a injury caused negligently by another employee). There are 
other forms of misconduct that are clearly not such as to merit summary dismissal but 
should be the subject of a warning or warnings or ‘active steps’ that bring home to the 
employee that the employer regards the conduct in question as serious and meriting 
dismissal before dismissal occurs, particularly where the employee has substantial 
service...”10

[49] As was correctly and appropriately conceded, this is an instance where there is no 
doubt that there was a valid reason, which was communicated to Mr Lambley, for his 
dismissal. DP World had a policy which clearly stated that employees who engage in physical 
altercation may be terminated. In any event, even if such a policy was not in place, it is 
plainly evident that fighting in the workplace creates a serious risk to health and safety and 
would reasonably provide a “valid reason” for termination.

[50] Having considered the evidence, including the CCTV video and the oral evidence of 
Mr Lambley and other employees provided at first instance, we accept that Mr Smith 
provoked and threatened Mr Lambley and that this conduct was not uncharacteristic of Mr 
Smith who was largely seen as a bully. It should be noted that DP World had not taken any 
action against Mr Smith prior to this incident, even though they may have had their 
suspicions, because there had not been sufficient complaints raised with DP World with 
respect to Mr Smith’s conduct. It was accepted by DP World that there was an anti-“dobbing” 
or anti-“dogging” mentality in the workplace which meant that potentially serious matters 
were not brought to its attention. It goes without saying that this is an issue that DP World 
needs to seriously investigate and remedy.

[51] We also accept that Mr Lambley was an otherwise exemplary employee with over 30 
years’ service, without any appreciable disciplinary history, a person of good character who 
was unlikely to repeat the misconduct. He was honest during the investigation, and before the 
Commission, and showed remorse for his conduct. Given his age, it is accepted that he has 
had, and will likely continue to have, difficulty obtaining employment of a similar standard to 
that enjoyed with DP World. These are of course important matters which weigh in favour of 
a finding that Mr Lambley’s dismissal was harsh.

[52] Although we accept that this incident is, in light of the surrounding circumstances, 
quite extraordinary, we find it troubling that Mr Lambley, a man not prone to violence in the 
workplace, would engage in such a forceful, physical manner with Mr Smith some 20 minutes 
after Mr Smith had made provocative comments to Mr Lambley. Not only did Mr Lambley 
have sufficient time to commence work, consult management, or simply walk away, but the 
CCTV footage clearly shows that, regardless of any verbal provocation or gesturing on Mr 
Smith’s part, Mr Lambley was not only the only aggressor during the physical altercation, but 








[2013] FWCFB 9230

15

that serious and very deliberate actions were taken by Mr Lambley to hurt and injure Mr 
Smith. The following exchanges during the cross-examination of Mr Lambley (at first 
instance) are illustrative:

“But the position is this, isn't it, that having been asked by Mr Smith to "See you outside 
in 10 minutes" - - -?---Yes.

You could have - - -?---I could have. Yes.

- - -walked away, couldn't you?---Yes.

You've told other blokes to walk away in the same situation, haven't you? ---
Exactly what I told the other blokes. Yes. Yes.

The other thing you could have done is that you could have approached a 
supervisor about the incident, couldn't you?---Yes. I could have. Yes.

You could have gone to someone and said that you'd just been threatened by
Mr Smith with physical violence; you could have done that? ---Yes. Yes.

...

Mr Lambley, you went out there - - -? ---Yes.

- - -and hung around - - -? ---Yes.

- - -waiting for Mr Smith to come out, didn't you?---Yes.

And you accept, albeit with hindsight, that you had a choice; you could have
walked away? ---Yes. Yes.

...

Do you agree with me that as you've watched that footage Mr Smith has been thrown 
to the ground?---Yes. Yes.

And you've thrown him to the ground?---Yes.

And you've walked around him, haven't you?---Yes.

You've deliberately and intentionally kicked him in the head?---That's what it 
says. Yes.

In doing so you were trying to cause as much injury to him as you could; weren't 
you?---At the time, yes.

...

Well, you knew that Mr Smith exited through the back door?---Yes.








[2013] FWCFB 9230

16

Why did you move from the front door through to the back door, outside in the
carpark?---Good question.

And the answer is because you were looking to have a fight with Mr Smith, 
weren't you?---I was sticking up for my rights. I was sick of getting bullied and 
harassed at work.

You were looking to fight him because you'd asked him outside for a fight?---No I 
didn't offer anyone out for a fight.

Your shift had started by the time Mr Smith had come out?---Yes.

Why hadn't you gone back through the front door and got on with your work?---
Because Mr Smith offered me outside.”11

(emphasis added)

[53] These admissions made by Mr Lambley are extraordinary. Not only did Mr Lambley 
have some 20 minutes to consider his options and undertake any of the alternatives, including 
the obvious choice of commencing his shift at 10:25 pm, but he also had waited outside for 
Mr Smith with the intention to fight him and “to cause as much injury to him as [he] could”. 
In light of these admissions, we consider the misconduct to be so serious that it outweighs the 
findings outlined in [47]-[48] above. The Full Bench accepts DP World’s submission that a 
kick to the head is potentially extremely dangerous. It is notorious that a sharp knock to the 
head can lead to serious injury, even death. Mr Smith was lucky that Mr Lambley was 
wearing runners and not steel capped work boots. It cannot be reasonably argued that in such 
circumstances dismissal is disproportionate to the gravity of the misconduct.

[54] While we have considered the “set up” theory and the findings of the Deputy President 
at first instance, we do not consider it necessary for this Full Bench to make a finding 
regarding this theory. This is because, in light of the findings above, even if there was 
sufficient evidence to conclude that Mr Smith had “set up” Mr Lambley, it would not 
outweigh the voluntary and deliberate conduct of Mr Lambley which was intended to cause 
Mr Smith as much injury as possible. Regardless of Mr Smith’s conduct, Mr Lambley’s 
actions were so severe and so serious that the dismissal cannot be regarded as harsh, unjust or 
unreasonable.

Conclusion

[55] Having considered the factors contained in s.387 of the Act, and having weighed the 
seriousness of the conduct against the mitigating circumstances, we consider that Mr 
Lambley’s dismissal by DP World was not harsh, unjust or unreasonable. Accordingly, the 
Application must be dismissed. Appropriate orders will be issued with this decision.

[56] We note that parties had requested further time to file additional submissions relating 
to Mr Lambley’s income since his dismissal by DP World. This information is of course 
relevant when determining the appropriate remedy. Given the finding above, we did not 
consider it necessary to consider these submissions or to wait for such submissions to be filed. 








[2013] FWCFB 9230

17

[57] Finally, it is also relevant to briefly mention the issue involving broader policy 
implications that might follow with any finding in favour of Mr Lambley. The suggestion that 
a finding in favour of Mr Lambley which was accompanied by some significant financial 
penalty, would not offer implicit condonation of fighting in the workplace, is with respect, a 
proposition based upon the erroneous assumption that such an outcome would be subject to 
detailed and rational examination in the workplace. Unfortunately, those who intimidate and 
perpetrate physical violence in the workplace are generally disinclined to undertaking detailed 
examination of issues and instead act and react to very basic concepts and communications.

REASONS FOR DECISION OF VICE PRESIDENT LAWLER

[58] I have had the advantage of reading the reasons for decision of the majority in draft 
form.  Unfortunately, I find myself unable to agree with the majority.

[59] On 21 March 2012 Deputy President Sams delivered a decision allowing an 
application for an unfair dismissal remedy by Mr Lambley and ordering his reinstatement by 
DP World ([2012] FWA 1250).

[60] On 3 April 2012 DP World filed an appeal against that decision.  On 22 June 2012 a 
Full Bench of Fair Work Australia (Watson VP, Hamilton DP and Simpson C) issued a 
decision (DP World Sydney Ltd v Lambley [2012] FWAFB 4810) in which it stated:

“[26] [The factors in s 387] although not an exhaustive list, are a strong indicator of 
the elements of a fair dismissal.  In circumstances where a valid reason is found to 
exist, and procedural fairness has been afforded, significant mitigating circumstances 
are required in order to lead to a conclusion that the termination is nevertheless harsh, 
unjust or  unreasonable. In order to give those factors appropriate weight, they need to 
be seen as such and balanced against factors that might otherwise lead to the 
characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of 
factors involves discretion, but a conclusion must be reached after giving full effect to 
the findings on all relevant circumstances. Different employers may approach a 
misconduct matter differently and take different disciplinary actions. A tribunal 
member determining whether a dismissal is harsh, unjust or unreasonable does not 
stand in the shoes of the employer and determine what action they would take in the 
circumstances. Only if the employer’s disciplinary actions are judged to lie outside the 
description of a reasonable and just response to the relevant conduct and are 
disproportionate, should a finding of unreasonableness or injustice be made. 

[27] This present matter concerns fighting by Mr Lambley. The principles outlined 
above establish that fighting at the workplace usually amounts to a valid reason for 
dismissal, an employer has every right to establish policies against fighting and an 
employer has every right to ensure compliance with those policies by dismissing 
employees who are found to have engaged in fighting absent some extenuating 
circumstances. These principles are consistent, for example, with regulation 1.07 of 
the Fair Work Act Regulations 2009, which relevantly defines ‘serious misconduct’ as 
including conduct that causes serious and imminent risk to the health or safety of a 
person, or assault.  Importantly, the authorities also establish that the dismissal of an 
employee found guilty of fighting at the workplace can only be found to be harsh, 
unjust or unreasonable in extenuating circumstances.








[2013] FWCFB 9230

18

[28] The Deputy President in the extracts set out above paid due regard to the 
circumstances of the employee including his long service.  We accept that much of 
this analysis is appropriate.  He is also critical of the decision-making process of the 
employer, the failure to fully consider allegations of Mr Smith’s bullying, and the 
failure to have regard to allegations that Mr Smith set up Mr Lambley. We do not 
consider that these matters were soundly balanced by the Deputy President by way of 
a finding that they amount to significant mitigating factors that render Mr Lambley’s 
otherwise serious misconduct excusable.  Such an approach does not give appropriate 
weight to the seriousness of the conduct, nor the need for employers to be able to 
establish policies against fighting, and to enforce such policies when they are 
breached.  It does not accord a fair go all round to each side.  Nor do we consider that 
these factors are capable of amounting to such mitigating circumstances. Mr Lambley 
may have been goaded into a fight, but he engaged in it willingly and after 
contemplation. He had other choices and he chose not to follow them. He chose to 
fight. In the fight he was the aggressor - indeed the sole aggressor. He cannot be 
described as acting in self defence. He did not simply throw a single unwise punch. He 
continued to assault Mr Smith when Mr Smith was not fighting back and when Mr 
Smith was on the ground, moved into a position to kick him in the head as hard as he 
could. On the scale of physical altercations Mr Lambely’s (sic) conduct was very high 
on the scale.

[29] If Mr Smith had set up Mr Lambley to engage in this conduct in front of 
CCTV cameras, it does not in any way excuse Mr Lambley’s conduct or suggest that 
an employer cannot reasonably discipline an employee for the conduct in which they 
have clearly engaged. We do not consider that this possibility, even if correct, is 
capable of outweighing the otherwise inherent fairness of dismissing an employee for 
engaging in a serious assault after following a procedurally fair investigation.

[30] If the history of the conflict between the two involved bullying and 
intimidation by Mr Smith, this did not excuse the conduct. An employer is entitled to 
implement its disciplinary policies in a way designed to ensure employees comply 
with its standards of behaviour.

[31] In our view the Deputy President did not adopt an approach consistent with 
these principles and his conclusion was unreasonable and plainly unjust as a result. In 
our view the Deputy President has appropriately had regard to the circumstances of the 
dismissed employee including his long service, and other matters.  In many respects 
his careful analysis of those circumstances is useful and appropriate.  However, he has 
not appropriately balanced all the circumstances of the matter nor given due weight to 
the factors in s.387.  Counsel for DP World has established that the Deputy President’s 
decision in this respect involves an error of the House v R kind.

[32] In view of our conclusion on this ground of appeal it is unnecessary that we 
consider the other grounds of appeal.

Conclusion

[33] For the above reasons we consider that the Deputy President erred in the 
exercise of his discretion. As a result there has been an unjust result to Mr Lambley’s 








[2013] FWCFB 9230

19

unfair dismissal application. In our view it is in the public interest that decisions in 
unfair dismissal matters are consistent with established principles and involve the 
sound exercise of the discretions vested in the tribunal. We therefore grant permission 
to appeal, allow the appeal and quash the decision of the Deputy President.”

(footnotes omitted)

[61] Mr Lambley brought an “appeal” against the decision of the Full Bench in the Federal 
Court.

[62] On 10 January 2013 Katzmann J issued a judgment ([2013] FCA 4) dismissing Mr 
Lambley’s application for review.  Her Honour noted:

“16.  There were three grounds of appeal: 

(1) the Deputy President erred in finding that Mr Lambley was set up; 
(2) the Deputy President erred in failing to find that the gravity of the 

misconduct outweighed all other factors; and 
(3) the Deputy President erred in ordering reinstatement.  

17.  In support of the second ground DP World submitted that, having regard to the 
Deputy President’s findings as to the very serious nature of Mr Lambley’s conduct, the 
conclusion that the assault amounted to a valid reason for his dismissal, and the terms 
of DP’s disciplinary policy against fighting, the Deputy President’s conclusion that the 
dismissal was nevertheless harsh, unreasonable and unjust was “contrary to authority 
and constituted an error because it was a decision that was unreasonable and plainly 
unjust”.  

18.  The Full Bench considered only this ground, upholding DP World’s submission, 
and finding it unnecessary in these circumstances to consider the remaining grounds.”  

[63] Katzmann J held that the reasons of the Full Bench were affected by error:

“33.  The statement in the second sentence of [26] of the reasons of the Full Bench 
appears to be at odds with the proposition that a dismissal may be “harsh in its 
consequences for the personal and economic situation of the employee” (Byrne v 
Australian Airlines Ltd (1995) 185 CLR 410 (“Byrne”)) and if it purports to be a 
proposition of law, it deflects attention from the terms of the statute itself.  The Full 
Bench recognised in [25] that all the factors in s 387 must be given due weight but in 
the paragraphs that follow, it appears to discount as a matter of principle any weight 
being given to factors not expressly mentioned in the section, despite the presence of 
para (h).

34.  DP World accepted that it was an overstatement on the part of the Full Bench to 
say (as it did in [27]) that the authorities establish that the dismissal of an employee 
found guilty of fighting at the workplace “can only be found” to be harsh, unjust or 
unreasonable in extenuating circumstances.  It is certainly not an accurate reflection of 
what Moore J said in AWU–FIME Amalgamated Union v Queensland Alumina 
Limited (1995) 62 IR 385, which is one of the two authorities to which the Full Bench 
referred.  There, his Honour observed that generally the attitude of industrial tribunals 








[2013] FWCFB 9230

20

tends to be that, absent extenuating circumstances, a dismissal for fighting will not be 
regarded as harsh, unjust or unreasonable.  Even if this could be said to be the effect of 
the authorities, it was not a binding rule which could be applied to confine the 
discretion of FWA more narrowly than the Parliament intended (Norbis v Norbis 
(1985) 161 CLR 513 at 537 per Brennan J).  

35.  It is possible that in these passages the Full Bench was doing no more than 
indicating that in practice an employee found to have been fighting at the workplace 
will rarely be able to establish that his or her dismissal was harsh, unjust or 
unreasonable.  But the language it used suggests that it was doing more than this.  

36.  The second “purported principle” (contained in [26] of the reasons of the Full 
Bench) is also a sweeping statement.  The Full Bench cited Byrne and Australian Meat 
Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (“Australian Meat Holdings”) for it.  
DP World submitted that the Full Bench was merely paraphrasing what was said in 
those cases.  I disagree.  In Byrne, which was concerned with whether the dismissal of 
a number of employees was harsh, unjust or unreasonable in breach of the provisions 
of a clause in an industrial award, McHugh and Gummow JJ observed at 465:

[i]t may be that the termination is harsh but not unjust or unreasonable, unjust 
but not harsh or unreasonable, or unreasonable but not harsh or unjust.  In 
many cases the concepts will overlap.  Thus, the one termination of 
employment may be unjust because the employee was not guilty of the 
misconduct on which the employer acted, may be unreasonable because it was 
decided upon inferences which could not reasonably have been drawn from the 
material before the employer, and may be harsh in its consequences for the 
personal and economic situation of the employee or because it is 
disproportionate to the gravity of the misconduct in respect of which the 
employer acted.

37.  In Australian Meat Holdings the Full Bench extracted this passage.  It also 
provided a reasonably accurate summary of it.  In this case, however, the Full Bench 
did neither.  In particular, it omitted any reference to the personal and economic 
consequences for the employee, one of the bases upon which Mr Lambley had 
challenged his dismissal.

38.  The Full Bench concluded at [31] that the Deputy President fell into appealable 
error because he did not adopt an approach consistent with “these principles”.  It is not 
entirely clear what the Full Bench meant by “these principles” but it must at least have 
included the three propositions called into question by Mr Lambley.  In enunciating 
these propositions and in reaching its conclusion relying on them, the Full Bench itself 
erred.”  

(underline emphasis added)

[64] The Federal Court may only interfere with a decision of a Full Bench if jurisdictional 
error is established.  Katzmann J held that the errors she had identified were errors within 
jurisdiction.  Accordingly, no jurisdictional error having been established, her Honour was 
obliged to dismiss Mr Lambley’s application for prerogative relief and did so (para [42]).








[2013] FWCFB 9230

21

[65] Katzmann J identified a further deficiency in the decision of the Full Bench.  Mr 
Lambley had “submitted, in effect, that even if the Full Bench validly found appealable error 
it failed to complete its jurisdictional task because, having found error, it did not go on to 
exercise the discretion for itself.” (para [49]).  Her Honour accepted that argument noting:

“It is clear that the Full Bench took the view that any proper exercise of the discretion 
would have resulted in only one answer, namely, that the dismissal was not harsh, 
unjust or unreasonable.  At [33] it described the way in which the Deputy President 
had exercised his discretion as “unjust”.  But the Full Bench did not purport to exercise 
the discretion for itself.  It made no order disposing of the application. I therefore 
accept Mr Lambley’s submission that the Full Bench did not go on to exercise the 
discretion for itself.  Yet, this was not a jurisdictional error as Mr Lambley contended 
because s 607 of the Act does not require the Full Bench to exercise the discretion for 
itself.  It could have done so (see s 607(3)), but it did not.  Consequently, mandamus 
does not lie:  Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 
228 CLR 651 at [70].  The decision of the Deputy President having been quashed, the 
application now needs to be determined afresh.”

(underline emphasis added)

[66] As a consequence of these findings the President reconstituted the Full Bench to 
complete the function of the Full Bench consistent with her Honour’s reasons for judgment.

[67] In the mean time, Mr Lambley had filed an appeal against the decision of Katzmann J 
and DP World filed a cross-appeal.  That appeal and cross-appeal are yet to be determined.  
An issue arose as to whether the reconstituted Full Bench should deal with the matter before 
the appeal to the Full Court was resolved.  By majority (Lawler VP dissenting), the 
reconstituted Full Bench decided that the matter should be adjourned pending the resolution 
of the appeal and cross-appeal in the Full Court.

[68] When the appeal and cross-appeal came before the Full Court, it considered that the 
reconstituted Full Bench should complete its function before the appeal and cross-appeal in 
the Full Court are determined.  It is also clear that the Full Court considered that issues raised 
by DP World’s cross-appeal should form part of the further consideration of the matter by the 
reconstituted Full Bench.  [See Federal Court transcript of 13 August 2013 in proceedings 
NSD 158 of 2013 at p 14-15.]

What is the Full Bench, as presently constituted, doing?

[69] It will be apparent from the foregoing that this decision arises in very unusual 
circumstances.

[70] The issue of precisely what the Full Bench as presently constituted should do in light 
of the decision of Katzmann J was a matter addressed at a directions hearing, in written 
submissions and in oral argument at the hearing.  Was it open and/or appropriate as a matter 
of discretion for the Full Bench as presently constituted to:

(i) determine the appeal against Sams DP afresh, correcting for the errors in the 
earlier Full Bench decision identified by Katzmann J;








[2013] FWCFB 9230

22

(ii) conduct afresh the re-hearing that Katzmann J found the Full Bench as initially 
constituted had failed to complete; or

(iii) merely complete that re-hearing required as a result of the earlier Full Bench 
decision finding error and quashing the decision of Sams DP by giving effect to 
the conclusion on the re-hearing that was obviously intended by the Full Bench as 
initially constituted? 

Senior Counsel for DP World contended for (iii).  Senior Counsel for Mr Lambley did not 
press for (i), and instead accepted (ii) and argued against (iii).  The hearing before this 
reconstituted Full Bench proceeded as (ii).

[71] For the reasons that follow, I consider that it was open to the Full Bench to undertake 
(i) and that it should now do so, in the proper exercise of its discretion.

[72] Justice Katzmann identified errors in the decision of the Full Bench as initially 
constituted.  However, while those errors went to the heart of Full Bench’s decision, 
Katzmann J found that they were errors within jurisdiction and therefore were not errors that 
her Honour had power to correct.  Katzmann J’s conclusion that there was no jurisdictional 
error meant that the appeal by Mr Lambley before her Honour had to be dismissed.  

[73] However, Katzmann J also concluded that the Full Bench as initially constituted had 
not completed its function - it had not yet completed the re-hearing required as a consequence 
of its finding that the decision of Sams DP was affected by error and it’s quashing of Sams 
DP’s decision.  If the appeal before the Full Bench as initially constituted was not complete 
then the Full Bench was not functus officio.  The appeal needed to be completed and the Full 
Bench had power (and responsibility) to complete it.

[74] It would have been open to the President to permit the Full Bench as initially 
constituted to complete its function.  Instead, the President chose to exercise his power to re-
constitute the Full Bench, no doubt to eliminate any possible apprehension of bias in the 
circumstances.  Member availability issues led to a further two re-constitutions before the Full 
Bench as presently constituted conducted a hearing.

[75] It is a mistake to analyse the situation as if there is a first Full Bench and a second Full 
Bench dealing with separate matters.  A Full Bench has been dealing with the appeal by DP 
World against the decision of Sams DP from the time of its filing and continues to deal with 
that appeal.  The fact that the Full Bench has been reconstituted is immaterial.

[76] It is trite that a court or statutory tribunal, seized of the necessary procedural power, is 
able to correct errors in its processes at any time prior to it becoming functus officio.  The 
recall of a decision before final orders is a well-established, if rarely-occurring, feature of our 
legal system.  That power is inherent in superior courts.  In the case of the Commission, as a 
creature of statute, it has only the powers conferred by statute.  Sections 589 and 602 the Act 
provide:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be 
dealt with.








[2013] FWCFB 9230

23

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.

602 Correcting obvious errors etc. in relation to the FWC’s decisions

(1) The FWC may correct or amend any obvious error, defect or irregularity 
(whether in substance or form) in relation to a decision of the FWC (other than 
an error, defect or irregularity in a modern award or national minimum wage 
order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. 
the instrument under this section (see subsection 598(2)).

Note 2: The FWC corrects modern awards and national minimum wage orders under 
sections 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.”

[77] Section 589 confers a very broad power on the Commission to make procedural and 
interim decisions.  The error in the earlier Full Bench decision, having been identified by a 
judge of the Federal Court in a decision binding on the Commission, must now be regarded as 
an “obvious error, defect or irregularity” within the meaning of s.602(1).

[78] Sections 589 and 602 are separate sources of power for the Full Bench as presently 
constituted to withdraw the decision of the Full Bench as initially constituted and rehear DP 
World’s appeal from the decision of Sams DP, correcting for the errors within jurisdiction 
identified by Katzmann J. A power in the Full Bench as presently constituted to amend the 
earlier decision to correct for those errors is also supported by s.586(a) and the broad 
approach to such a power adopted by the Full Bench in Refined Sugar Services Pty Ltd v 
AWU [2008] AIRCFB 1069.

[79] It is a fundamental principle of the jurisprudence of appeals in the Commission that a 
Full Bench can allow an appeal and exercise its powers under s.607(3) if and only if there 
was error on the part of the member at first instance: Coal and Allied Operations Pty Ltd v 
AIRC (2001) 203 CLR 194 at [17] and [32].  That decision related to a predecessor provision, 
s.45(7) of the Workplace Relations Act 1996, but with reasoning that is equally applicable to 
s.607(3) of the Act.








[2013] FWCFB 9230

24

[80] The Full Bench as initially constituted could only exercise its statutory power to allow 
the appeal and quash the decision of Sams DP if it properly found that the decision was 
affected by an error coming within the principles in House v R.  It is tolerably clear that 
Katzmann J considered that the Full Bench was wrong in finding that Sams DP had 
misapplied the principle in AWU–FIME Amalgamated Union v Queensland Alumina Limited
(1995) 62 IR 385.  To the extent that it is necessary, that is also my conclusion, for the 
reasons given by Katzmann J.

[81] If Sams DP did not err as found by the Full Bench as initially constituted then there 
was no House v R error and the Full Bench in truth had no power to make the orders that it 
did.  If that is so, the proper outcome of DP World’s appeal is an order withdrawing the 
decision of the earlier full bench and appropriate orders flowing from a re-consideration of 
whether the decision of Sams DP was affected by House v R error.  In all the circumstances of 
this case, that is the course that should be adopted.  I note that the relevant powers can be 
exercised at the initiative of the Commission (s.589(2), s.601(3)) and are therefore not 
precluded as a result of the position adopted by Senior Counsel for Mr Lambley.

[82] After correcting for the errors within jurisdiction identified by Katzmann J, I am 
unable to discern any House v R error in the decision of Sams DP but must hold that view as a 
provisional view because the Full Bench as presently constituted did not hear full argument 
on that issue and I may be persuaded to a different view after full argument.

[83] Notwithstanding the extensive debate over what this Full Bench ought be doing, the 
matters noted at paragraph [70] above mean that the parties, and especially DP World, would 
require a further opportunity to be heard if the appeal were to be determined in the manner 
that I favour.  That is what would have occurred if my view of the matter had prevailed.  
However, given the decision of the majority, that will not occur.

[84] I have considered the issues raised in DP World’s cross-appeal in the Full Court but 
conclude that they do not alter my decision in this matter.  In summary:

(a) I consider that Katzmann J was correct in her conclusion that the Full Bench as 
initially constituted had not completed the performance of its functions in 
respect of DP World’s appeal against the decision of Sams DP.

(b) That formal steps required by the Act must occur before the Commission can 
validly complete a function it is performing under the Act.  In this case, those 
steps either occurred or they did not.  A formal step, such as the making of an 
order finally disposing of an application, cannot be taken to have occurred if it 
did not in fact occur.  The Full Bench as initially constituted did not dismiss 
the Mr Lambley’s application for an unfair dismissal remedy.  It cannot be 
taken to have done something that, in fact, it did not do.

(c) The Full Bench, as reconstituted, is not bound to give effect to the obviously 
intended outcome of an earlier decision found by the Federal Court to have 
been affected by error within jurisdiction.  There is a public interest in a Full 
Bench of the Commission taking whatever steps are necessary and appropriate 
and within power to correct such error.








[2013] FWCFB 9230

25

[85] The balance of these reasons addresses my conclusions on the rehearing of Mr 
Lambley’s unfair dismissal application, being conducted as a result of the matters referred to 
in paragraph [70] above.

Rehearing of Mr Lambley’s Unfair Dismissal Application

[86] While there is some debate about whether the doctrine of stare decisis applies within
the Commission, it is certainly the case that the Commission is bound by decisions of the 
Federal Court, or at least decisions of Full Court of the Federal Court and decisions of single 
judges of the Federal Court sitting on appeal from decisions of the Commission or its 
predecessors to the extent that they are on point.  I proceed on the basis that this Full Bench is 
bound by the reasoning and conclusions of Katzmann J to the extent that they bear upon the 
proper resolution of the rehearing.

[87] It follows that the rehearing must be conducted in a manner that is free of the errors 
identified in the judgment of Katzmann J.  Those errors went to the heart of the first Full 
Bench’s reasons for concluding that the appeal should be allowed and what it obviously 
considered was the correct outcome (but did not give effect to), namely that the originating 
application for an unfair dismissal remedy should be dismissed.

[88] It further follows that the reconstituted Full Bench is not bound to conduct the 
rehearing on the basis of the conclusions of, or findings made by, the Full Bench as initially 
constituted and should instead conduct the rehearing afresh in accordance with principle, and 
inconformity with the reasons of Katzmann J.

[89] In particular, it follows that this Full Bench is not bound by the conclusion of the first 
Full Bench that “there has been an unjust result to Mr Lambley’s unfair dismissal application” 
because that conclusion was informed by an erroneous conception of the relevant principles in 
the manner described  by Katzmann J.  It is tolerably clear that Katzmann J apprehended that 
a conclusion that Mr Lambley’s dismissal was harsh, unjust or unreasonable may be open on a 
proper application of the statutory test and applicable principles.

[90] Further, in exercising the discretion for itself and finally “disposing of the 
[originating] application”, this reconstituted Full Bench should take account of all relevant 
matters and submissions, including matters raised in the grounds of appeal not considered by 
the first Full Bench and the issues raised by DP World’s cross-appeal in the Full Federal 
Court.

[91] The Full Bench did not have the benefit of seeing the witnesses give their evidence, 
consistent with the reasoning of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 
214 CLR 118 at [22] - [31], the rehearing should proceed on the basis that primary findings of 
fact made by Sams DP that were likely influenced by his assessment of the witnesses and 
should be accepted unless those findings are shown to be affected by relevant error.  Of 
course, this Full Bench is in as good a position as Sams DP to make intermediate findings of 
fact from the primary findings or to draw inferences and in relation to the ultimate 
determination as to whether, given the findings, the dismissal was harsh, unjust or 
unreasonable (cf. Warren v Coombes (1979) 142 CLR 531 at 551).

[92] Mr Lambley was dismissed for fighting with his supervisor, Mr Peter ‘Romper’ Smith, 
in breach of the DP World’s Disciplinary Policy.  Mr Smith was dismissed as well.








[2013] FWCFB 9230

26

[93] The central issue in the case was whether, on the facts of the case, Mr Lambley’s 
dismissal was harsh, unjust or unreasonable notwithstanding the existence of a valid reason 
for his dismissal, such that he ought be found to have been “unfairly dismissed” within the 
meaning of s.385 (see also s.394(1), s.390(1)(b)).

[94] In determining whether a dismissal was “harsh, unjust or unreasonable”, the 
Commission is required to consider each of the matters specified in s.387(a) to (g) and “other 
matters that FWC considers relevant” as required by s.387(h).

Section 387(a) - 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); and

[95] The P&O Ports Human Resources Handbook makes clear that fighting at work is an 
example of a breach of policy which may result in suspension and/or dismissal.  The 
Disciplinary Policy relevantly states:

“While a decision in respect of a breach is being made, you may be suspended on full 
pay to allow investigation, discussion and representation.  The type of action taken will 
reflect the severity of the breach.  Investigations and involvement of statutory 
authorities and the police may occur for any criminal activities or statutory breaches At 
all stages of the disciplinary procedure you will be allowed to request the presence of 
another P&O Ports employee or appropriate support person.

Disciplinary action following a breach may include, but is not limited to, verbal and/or 
written warning, suspension, removal from role, dismissal with notice or summary 
dismissal.

These principles do not prevent the taking of other additional action available under 
your enterprise agreement, award or conditions of employment.   Nor do they prevent 
further action from a third party.”

[96] Under the heading ‘Suspension, dismissal’, the Disciplinary Policy states:

“Examples of typical breaches

Theft and / or fraud;

Fighting on site;

Falsification of a medical certificate or 
other official documentation;

Refusal of duty;

Using abusive or threatening language or 
physical force, with the intent to harass, 
victimise, coerce or injure;

Sabotage of P & O Ports’ property;

Unauthorised removal of any first aid or 
safety equipment or supplies.

Examples of possible effects:

An act which seriously endangered Possession, consumption or sale of 








[2013] FWCFB 9230

27

persons or has seriously damaged 
property;

An act which adversely affects the 
business;

Involves dishonesty for personal gain or 
the deliberate detriment of others;

Harassment or victimisation of other 
persons of a repeated or serious or violent 
nature;

prohibited substances on site;

Reporting for work or working while 
under the influence of performance 
affecting drugs;

Behaviour or acts which contravene 
common law;

Repeating a breach which had previously 
been subject to a written warning.”

(emphasis added)

[97] The fight occurred in the car park of the Botany Terminal, part of the property of the 
employer.  It occurred while Mr Lambley was ‘on duty’.

[98] The background to the fight is addressed below.

[99] The fight was witnessed by three people who were standing close to it: Mr Lambley’s 
son Michael, Mr Lewis and Mr King.  It was also captured on CCTV recordings.  The CCTV 
recordings show that Mr Lambley left the building and waited in the car park for about 20 
minutes before the fight occurred.  At one point Mr Lambley moves quickly towards a person 
leaving the building but then stops (presumably, Mr Lambley initially thought that this person 
was Mr Smith).  As soon as Mr Smith leaves the building and walks into the carpark, Mr 
Lambley can be seen moving quickly towards him. The two men come together. It is apparent 
that words are exchanged for a short time.  Mr Smith can been seen moving in close to Mr 
Lambley but with his arms remaining by his side.  Mr Lambley throws a punch that connects 
with Mr Smith’s head, grabs him in a right handed headlock and jabs at his head with his left 
fist and then throws him to the ground.  Mr Lambley then circles Mr Smith and delivers a 
kick to Mr Smith head.  The kick is delivered with force (Mr Lambley admitted that he was 
attempting to do damage). Mr Smith does not attempt a blow at any point.  Viewed in 
isolation the CCTV footage suggests that Mr Lambley is the aggressor and that Mr Smith did 
not fight back in any way.

[100] The CCTV recordings have no audio.  Mr Lambley’s account of the actual fight was 
summarised by Sams DP as follows:

“[11] The applicant said that Mr Smith was thrusting his chin and chest out at him.  
He thought there was no way of escaping an altercation.  He was concerned that given 
Mr Smith’s size and that on two other occasions, he had put ‘heads into the concrete,’ 
he should ‘get in’ first.  He then hit Mr Smith twice.  Mr Smith appeared to purposely 
fall to the ground.  The applicant said he then lost control and when he attempted to 
drag him up, he was actively resisting and pulling on him, so he kicked him around the 
head.  Another employee who was present, Daniel Lewis, said ‘break it up, that’s 
enough’.  The applicant said that when he started to walk away, he was worried that 
Mr Smith wasn’t really hurt and he feared turning his back to him.








[2013] FWCFB 9230

28

[12] The applicant said he then heard the following exchange between Mr Lewis 
and Mr Smith:

Lewis: ‘Come on, Romper, I’ll help you up’.
Smith: ‘Fuck off, Roid (steroid) Head’.
Lewis: ‘What did you call me?’.
Smith: ‘You heard, Roid Head, I told you to fuck off’.
Lewis: ‘That’s it, you have done your dash with me’.”

[101] Sams DP accepted that evidence, as do I.  It is not inconsistent with the CCTV 
recordings.

[102] There is no contest that Mr Lambley’s conduct involved a clear and serious breach of 
the Disciplinary Policy that constituted a valid reason for dismissal.

[103] Of course, a finding that Mr Lambley’s conduct constituted a valid reason for 
dismissal is not the end of the matter: the issue remains whether, having regard to all the 
circumstances of the case, the dismissal was harsh, unjust or unreasonable notwithstanding 
the existence of that valid reason.  The resolution of that issue requires weighting the 
seriousness of the misconduct against the factors.  See generally the discussion and authorities 
cited in B, C and D v Australia Post [2013] FWCFB 6191 at [41] and following especially at 
[58] – [59].

Section 387(b) - whether the person was notified of that reason

[104] Mr Lambley was notified of that reason.

Section 387(c) - whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person

[105] Mr Lambley was given an opportunity to respond.

Section 387(d) - any unreasonable refusal by the employer to allow the person to have a 
support person present to assist at any discussions relating to dismissal

[106] DP World allowed Mr Lambley to be represented.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance before the 
dismissal

[107] The dismissal related to misconduct rather than unsatisfactory performance.

Section 387(f) - the degree to which the size of the employer’s enterprise would be likely 
to impact on the procedures followed in effecting the dismissal; and (g) - the degree to 
which the absence of dedicated human resource management specialists or expertise in 
the enterprise would be likely to impact on the procedures followed in effecting the 
dismissal








[2013] FWCFB 9230

29

[108] DP World is a large business with dedicated human resource specialists both of which 
impact on procedures followed in effecting a dismissal.  In this case DP World utilised its 
human resource management specialists and followed a disciplinary process that was 
procedurally fair.

[109] None of the matters in s.387(b) to (g) weigh in favour of the dismissal bring harsh, 
unjust or unreasonable.

Section 387(h) - any other matters that the FWC considers relevant

The broader circumstances giving rise to the misconduct

[110] Sams DP accepted the evidence of Mr Lambley that he summarised as follows:

“[6] The applicant had worked for the respondent (and its predecessor entity, 
Container Terminals Australia Ltd) since October 1981.  At the time of his dismissal 
he was a multi-skilled Grade 5 employee predominantly performing clerical duties.  
The applicant said that in 30 years working at Port Botany, he had never had an 
altercation with any employee and had never had any serious disagreements with 
anyone, except Grade 6 Foreman, Peter Smith (known as ‘Romper’).

[7] The applicant claimed that Mr Smith went out of his way to make things 
difficult for him, including rearranging his allocated tasks or giving him difficult or 
boring jobs for no reason other than to assert his authority.  The applicant said that Mr 
Smith had taunted a number of other employees to fight him at work and away from 
work.  He believed that Mr Smith, who he described as a ‘standover’ man, did not like 
him because he was prepared to speak up for other employees.  In May 2011, Mr 
Smith had shoulder charged him in the canteen for no reason.  However, he did not 
report this incident.

[8] The applicant described another incident involving a female employee, Andrea 
Hunter, who had misplaced her keys and security pass while travelling on the site bus.  
The driver later handed them in to Mr Smith.  When she had asked for her keys, Mr 
Smith said he couldn’t help.  While Ms Hunter was upset, the applicant told her not to 
show it, as this was what Mr Smith wanted.  He told her that it was likely the keys 
would ‘reappear’ at the end of the shift, which they did.  When the applicant had 
confronted Mr Smith, he was told to ‘fuck off’ and ‘mind your own business’.  The 
applicant believed his intervention in support of Ms Hunter upset Mr Smith and was a 
factor in his continued harassment of him.  From that time on, Mr Smith would 
regularly provoke him and say things like, ‘fuck off dog’.

[9] The applicant described his version of events on the night of 5 June, 2011.   
When he arrived for work with his son (who was also working on the night shift), he 
had his name recorded in the canteen by the Charge Foreman, Ray Cummings.  During 
his oral evidence, the applicant drew a diagram of the location of various persons in 
the canteen at the time.  When he went to sit in his usual seat in the canteen, Mr Smith 
was sitting there.  He was surprised by this, as Grade 6 Foremen seldom sat where 
operational wharfies sit in the canteen.  The applicant sat in another seat about four 
metres from Mr Smith.  Soon after the following exchange occurred:








[2013] FWCFB 9230

30

Smith: ‘Get outside, you dog cunt, I am going to cave your head in’.
Lambley: ‘What did you say, are you speaking to me?’
Smith: ‘You heard me, don’t you dog it, I will see you outside in 10 

minutes’.

The applicant was distressed about what might happen next.  He went out into the 
foyer of the building and was soon joined by his son.  He said that he went outside 
through the front door, as he knew that Mr Smith always left the building through the 
back door and he would therefore avoid contact with him.  The applicant asked his son 
to speak to Mr Smith and persuade him to ‘drop off’.  When his son returned, he told 
him that Mr Smith had said ‘that he was going to cave his head in’.

[10] While standing outside, the applicant spoke to several passing persons - one 
was Mark Walden (‘Wombat’), a friend of Mr Smith.   The applicant asked him where 
the bully was and Mr Walden had replied ‘don’t worry, don’t you move, he is right 
behind me’.   The applicant then heard Mr Smith’s voice to his right and some 15 
yards away.   The following exchange occurred:

Smith: ‘Hey dog, I’m up here, come on up here. You stuck up for that 
blonde moll [sic]’.

Lambley: ‘You’re a big tough bikie - you should not be picking on girls’.

[11] The applicant said that Mr Smith was thrusting his chin and chest out at him.  
He thought there was no way of escaping an altercation.  He was concerned that given 
Mr Smith’s size and that on two other occasions, he had put ‘heads into the concrete,’ 
he should ‘get in’ first.  He then hit Mr Smith twice.  Mr Smith appeared to purposely 
fall to the ground.  The applicant said he then lost control and when he attempted to 
drag him up, he was actively resisting and pulling on him, so he kicked him around the 
head.  Another employee who was present, Daniel Lewis, said ‘break it up, that’s 
enough’.  The applicant said that when he started to walk away, he was worried that 
Mr Smith wasn’t really hurt and he feared turning his back to him.

[12] The applicant said he then heard the following exchange between Mr Lewis 
and Mr Smith:

Lewis: ‘Come on, Romper, I’ll help you up’.
Smith: ‘Fuck off, Roid (steroid) Head’.
Lewis: ‘What did you call me?’.
Smith: ‘You heard, Roid Head, I told you to fuck off’.
Lewis: ‘That’s it, you have done your dash with me’.

...

[14] The applicant went over to Mr Cummings’ office to get instructions to go to 
work.   Mr Cummings had said:

‘You idiot, he set you up and you took the bait’.

He replied:

‘Ray if you knew that much why didn’t you say something?’








[2013] FWCFB 9230

31

The applicant was subsequently directed to leave the site.  He was questioned by the 
Police who had arrived at the Terminal after the incident.

...

[26] The applicant reiterated that Mr Smith would regularly reallocate his tasks to 
more difficult or boring jobs.  Other supervisors had told him that it was Mr Smith 
who would change the tasks.  He agreed that he had never complained about Mr Smith 
changing his tasks.  He insisted Mr Smith had taunted and fought with other named 
employees.  He accepted that he was not always present when these incidents had 
occurred.

...

[28] The applicant said that while he was waiting in the foyer he went to the toilet 
three times, as he was ‘very, very nervous’.  He said that he thought Mr Smith would 
exit through the back door (and their paths would not cross) because his locker room 
was right next to the back door.  He denied sending his son back inside to find Mr 
Smith and see when he was coming outside to fight.  Outside the front entrance, the 
applicant denied asking Mr Walden ‘where’s your fat fucking mate?’  He had said 
‘where’s the bully?’ Mr Walden had replied ‘right behind me’.  He had hoped Mr 
Smith had gone home.  He had not offered Mr Smith the fight.  He denied walking 
towards the turnstiles to confront Mr Smith.  He insisted Mr Smith was thrusting his 
chin at him and saying ‘hit me, hit me’.  He denied calling him ‘a dog’.

[29] The applicant insisted that while Mr Smith was on the ground he had said to 
Mr Lewis ‘fuck off roid head’ when he went to help him up.  He had also said to Mr 
King ‘fuck off you black cunt’. ...”

[32] In re-examination, the applicant gave details of an incident in which another 
employee, Mr O’Keefe, had once said ‘I’ve got to go or he’s got to go, one of the two’ 
in regard to Mr Smith’s intimidation and bullying of him.  The applicant had replied 
‘it’s not worth it, just walk away’.  Mr O’Keefe replied ‘I can’t hack it, it’s doing my 
head in’.  Mr O’Keefe had subsequently left the employ of the respondent.  The 
applicant also described an incident in which his tasks had been changed and Mr 
Smith just stood there waiting for him to react.”

[111] It is clear that, with the benefit of seeing the witnesses given their evidence, Sams DP 
accepted this version of events subject to the CCTV recordings.  I respectfully adopt Sams 
DP’s approach to that evidence and find that, in addition to what is evident on the CCTV 
recording, the events unfolded as Mr Lambley contended.

[112] Sams DP summarised the evidence of Mr King, a witness to the fight:

“[40] Mr King is 25 years old and commenced employment with the respondent in 
September, 2008.  He is also a qualified personal trainer.  Mr King said he had not had 
any disputes with Mr Smith, as he was irregularly rostered and had only worked with 
him on a few occasions.  However, he knew his nickname was ‘Romper’.








[2013] FWCFB 9230

32

[41] On the 5 June 2011, as he was leaving the site in his car, he observed the 
applicant outside the front doors.  He wound the window down and observing that he 
seemed ‘wound up and upset’, he asked him what was wrong.  The applicant said that 
it looked like he was going to have to fight someone.  Mr King told him to settle 
down.

[42] Mr King said he then saw ‘Romper’ come ‘flying out’ of the turnstiles and 
down the stairs.  He was calling the applicant ‘a dog’ and other abusive names and as 
he came towards him, he pointed at his chin telling the applicant to hit him.  Mr King 
observed the applicant punch Mr Smith twice.  Mr Smith went to ground and covered 
his head with his hands.  Mr King then jumped between them and said:

‘Get up and go home, Romper.  He didn’t even get you.  Stop putting on an act.  
Get out of here; you don’t want to lose your job.’

Mr King said that ‘Romper’ had then winked at him and it was then that he realised 
that he wasn’t hurt.  The applicant then kicked Mr Smith in the torso.  He then pulled 
the applicant back and told him it was ‘over and no more’.

[43] When Mr King put his hand behind ‘Romper’s’ back to help him up, he 
whacked his hand away.  He then got up quickly, unassisted and then feigned to throw 
a punch at Mr King, which did not connect.  ‘Romper’ then said ‘you little black cunt, 
you’re always hanging out of his arse’.  Mr King told him he was pathetic and as he 
had just been ‘towelled up by an old bloke’ he should not start with him.  A few 
people were now milling around (including Mr Lewis) and ‘Romper’ was lying on the 
ground holding his jaw and pretending he was hurt.  When Mark Dreyer asked Mr 
King what had happened, he replied ‘nothing much - it was a weak effort’.

[44] Later Mr King had three meetings with management and signed a statement 
after the third meeting.  He told management what ‘Romper’ had said to him and that 
he had winked at him while he was on the ground.  He described the incident as ‘very 
strange’ as it was most unlike the applicant to be a fighter, ‘Romper’ had baited him to 
fight and then pretended he was injured.  Mr King added that the applicant was well 
liked at work and stood up for other people.”

(underline emphasis added)

[113] Sams DP accepted Mr King’s evidence (para [144](f)). On the rehearing I accept that 
evidence also.

[114] Sams DP made a finding, inferred from the evidence, that Mr Lambley had been ‘set 
up’ by Mr Smith.  I draw the same inference from the evidence, including in particular:

 About a month before the incident Mr Smith told Mr McIntyre’s that ‘I am going 
to get [Mr Lambley], I am going to fuck him up’ (see para [144](g) for Sams DP’s 
acceptance of Mr McIntyre’s oral evidence to this effect).

 Mr Smith provoked and demanded the fight, and refused to Mr Lambley’s 
requests, conveyed by his son, that the fight not proceed.








[2013] FWCFB 9230

33

 After the two had come together, Mr Smith continued to goad Mr Lambley to fight 
and stepped close to him in a manner calculated to provoke a physical response 
from Mr Lambley.

 Mr Smith’s physical passivity - he did not raise his hands or attempted to defend 
himself in any way when Mr Lambley started fighting.

 Prior to the fight, there had been discussion among employees that Mr Smith was 
being “set up” as suggested, for example, by the remarks of Mr Cummings to Mr 
Lambley immediately after the fight.

 Mr Smith’s wink at Mr King.

 “Mr Smith’s aggressive and uncalled for responses to Mr Lewis and Mr King, who 
were merely coming to his assistance, is hardly demonstrative of a person who had 
been injured in the altercation.” (see Sams DP’s decision at para [144](e)).

 Mr Smith’s pestering of Mr King by phone in the following days and his 
implausible excuse for that action suggesting a consciousness that Mr King could 
expose that things were not as the seemed (see Sams DP at para [144](e)).

 The manual movements of the CCTV camera which strongly suggest that the 
operator had prior knowledge of the fight.

[115] It is true that it is possible that the CCTV camera may have been manually operated by 
another employee who had heard about the fight and acted on their own initiative and without 
any involvement from Mr Smith.  However, like Sams DP, I find that it is more likely than 
not that the camera was operated by an employee at the behest of Mr Smith.  Mr Smith’s 
physical passivity and his wink to Mr King are telling and suggest that Mr Smith was aware 
that he was being filmed.  Given his goading of Mr Lambley, Mr Smith’s physical passivity 
suggest that he wanted Mr Lambley to hit him without any physical response being recorded.

[116] Sams DP also accepted the evidence of Mr Barnes “...that he had overheard a 
discussion between the applicant and Mr Smith in which Mr Smith blamed Ms Hunter’s 
return to work on him.” (at [144](h)).

[117] Sams DP set out the effect of evidence given by Ms Hunter in an unchallenged 
statement.

“[58] Ms Hunter provided an uncontested statement and was not required for cross 
examination.  Her statement described the reasons behind her workplace injury.  She 
said she had a good relationship with all employees and the management team at Port 
Botany - except for Mr Smith.  Ms Hunter said that about a year after she commenced 
employment, Mr Smith would manipulate her shifts, so she would not be upgraded.  
As a result, she was not allocated a fair share of upgrade payments.  When she 
approached Mr Smith about it, he denied being involved in any way.

[59] In late 2009 or early 2010, Ms Hunter noticed a trend of when she signed on 
for her shift, Mr Smith would ignore her and call others out of order.  She said while 
this was a trivial nuisance, she felt embarrassed and humiliated by his behaviour.








[2013] FWCFB 9230

34

[60] On 23 February 2010, Ms Hunter misplaced her personal diary at work.  It 
contained sensitive information about the way Mr Smith had acted to inconvenience, 
embarrass or disadvantage her.  The diary had been handed into another Grade 6 
employee, Mr Greg Cleary, who having established its ownership, had put it in a 
sealed envelope and placed it in the back of the top drawer of a desk in the Grade 6 
Foremen’s Room.  Mr Smith was the Grade 6 Foreman on the following day and the 
diary could not be found.

[61] On 24 March 2010, Ms Hunter misread her roster and rang in to say she could 
get to work quickly, as she only lived 5 minutes away.   She rang the terminal and 
spoke to Mr Smith to say that she could get there in 5 minutes if he could verify her 
allocation.   He didn’t reply and hung up on her.  She called again and the following 
conversation took place over the phone:

Smith: ‘Don’t you fucking dare come in here!  You have been 
replaced.  You won’t get a fucking start’.

Hunter: ‘Why didn’t you phone me? Where’s your duty of care? I might 
have been in a car accident’.

Smith: ‘What are you talking about? We don’t have a duty of care to 
call anyone.  I don’t call anyone if they FTR (fail to report)’.

The call then concluded.

[62] On 9 December 2010, when Ms Hunter was taken to her work location in the 
site bus, she had left her keys on the bus.  When her shift finished early, she called the 
driver, Simon, who told her he had handed them into the Grade 6 Foreman, Mr Smith.  
When she contacted him, he denied any knowledge of her keys.  She contacted Simon 
again, who confirmed he had given the keys to him.  Ms Hunter was getting upset and 
teary and she then spoke to the applicant.  He had said:

‘Don’t let him see you cry because that’s what he wants.  Harden up girl. I am telling 
you things will be alright, you will see.  Your keys will reappear just before knock-off 
time.  This is textbook Romper’.

He said he would speak to Mr Smith about her keys and he did so.  Around 10.10pm, 
another supervisor, Peter McClure approached her with an old safety helmet, 
containing her keys.  She believed it was no mistake that her keys had ended up in the 
helmet.  He agreed and said ‘just forget it’.  The next day, Ms Hunter reported the 
incident to Human Resources.  She was tired and upset and went straight to a doctor 
who gave her three days off as medically unfit for duty.

[63] Ms Hunter returned to work shortly after Mr Smith’s dismissal.  She believed a 
number of people were fearful of becoming involved in these proceedings.  Ms Hunter 
described the applicant as a very kind and generous person who is well liked by other 
employees.  He would stand up for himself and for others.  She believed he was 
pushed to the limit by a bully.   She was sure that the workforce would like to see the 
applicant back at work.  Given that he had given support to other workmates, who 
have been bullied or harassed, when others would simply turn a blind eye, the 
applicant posed no impediment to a safe workplace.”








[2013] FWCFB 9230

35

[118] Like Sams DP, I accept that evidence and also the evidence of Mr Barnes, summarised 
by Sams DP as follows:

“[65]  ... Mr Barnes had overheard a conversation between Mr Smith and the applicant 
about a week before 5 June 2011.  Mr Smith had said ‘I hope you’re happy.  That bitch 
is coming back thanks to you.’  The applicant had replied ‘That’s good’.

[66] Mr Barnes had observed the applicant on the night of 5 June 2011 shortly after 
the canteen exchange with Mr Smith.  He appeared distressed and when he asked what 
was wrong the applicant replied: ‘Peter Smith has asked me outside and I am sick of 
being stood over.  I’ve had enough, I’ve had it.’  Mr Barnes then replied: ‘Don’t worry 
about it, he is only trying to stir you up, he is trying to set you up, come on back 
inside.’  When Mr Barnes headed back to the Terminal, he came across Mr Michael 
Lambley and told him that his father was upset and he should go and see him.

[67] That night, when Mr Barnes later went to get his number ticked off, he found 
that his duties had been altered from Rail Foreman to driving the forklift.  He asked 
Ray Cummings who had changed his work arrangements.  Mr Cummings said it was 
Mr Smith.  Mr Barnes went looking for him and they had a heated discussion.  During 
the discussion, Michael Lambley arrived and interrupted their conversation.  He said: 
‘Peter, what’s going on with my old man, why are you having a go at my old man?’  
Mr Smith replied with his face screwed up: ‘Fuck your old man’.  He realised that 
Michael Lambley was trying to protect his father and stop Mr Smith from fighting 
him.  Mr Barnes could see that he was not getting anywhere concerning his changed 
work allocation, so he left the scene.

[68] Mr Barnes said the applicant was always prepared to give advice and help 
other employees.  The older members of the workforce would be happy to have him 
back.  Other employees had told him that the applicant was unlucky, given Mr Smith’s 
‘standovering’ of people and it was only a matter of time before someone snapped.  
Mr Barnes subsequently told Ms Taylor that management had done nothing about Mr 
Smith over many years, despite complaints from the workforce, particularly from 
women.  He told her that it appeared to suit the Company to have a ‘stand over’ man 
in his position.

[69] In oral evidence, Mr Barnes deposed that a few years ago, Mr Smith had called 
him outside for a fight, but it had just ended up in a verbal clash.”

[119] I adopt Sams DP’s finding (at [144](h)) that:

“The root cause of Ms Hunter’s psychological injury which was well known to 
management, was the harassment and bullying by Mr Smith.  Accepting Ms Hunter’s 
evidence, as I do, demonstrates a pattern of reprehensible behaviour by Mr Smith 
towards fellow employees of which his ‘set up’ of the applicant, is but one further poor 
example.”

(underline emphasis added)








[2013] FWCFB 9230

36

[120] Sams DP included the following in his summary of the evidence of Ms Taylor, the 
employer’s Human Resources Manager at Port Botany:

“[84] Ms Taylor accepted that during the investigation the applicant had raised other 
incidents involving Mr Smith, who he said was a workplace bully.  She was also made 
aware of Mr McIntyre and Mr King’s views of Mr Smith.

[85] Ms Taylor agreed that in the meeting with Mr Bellears and Ms Humphrey on 7 
July 2011, they did not discuss the issue of Mr Smith’s previous conduct as a bully; 
rather the meeting focused on the incident itself.  She also agreed that no inquiries 
were made about Mr Smith’s conduct subsequent to the 7 July 2011 meeting and she 
had no discussion with Mr Bellears about the matter.  Ms Taylor agreed the applicant 
had been completely ‘up front’, showed remorse and said he should have walked 
away.  She agreed he had conveyed to her that he had been pushed beyond all limits of 
tolerance.  In hindsight, she agreed that perhaps Mr Smith’s history should have been 
looked at.  Ms Taylor explained what bullying was, and the characteristics of a bully.  
She accepted that a history of repeated complaints demonstrated a pattern of conduct.  
She confirmed that at no time between 5 June 2011 and 29 July 2011, did the 
respondent undertake any investigation of the applicant’s claims as to Mr Smith’s 
history of bullying.  She conceded that subsequent inquiries tend to corroborate his 
claims.

[86] Ms Taylor agreed she had received numerous reports of Mr Smith’s conduct, 
but nothing could be substantiated.  One person had come forward, but no action had 
been taken.  When she had spoken to Mr Smith he was very convincing and said he 
was just misunderstood.  She agreed he repeatedly used this excuse.  She now accepts 
that Mr Smith had acted with impunity for years.”

(underline emphasis added)

[121] Some significance attaches to those concessions.  If DP World had responded in a 
proper way to the “history of repeated complaints demonstrating a pattern of conduct” by Mr 
Smith, and to his bullying of Ms Hunter, it is more likely than not that action by management 
would have curbed Mr Smith’s propensity to engage in harassment and bullying such that he 
would not have provoked the fight with Mr Lambley in the manner that he did.  In a practical 
and commonsense fashion, that ongoing management failure was one of the causes of the 
incident (compare March v. Stramare (E and MH) Pty. Ltd. (1991) 171 CLR 506 at 515, 522-
523, Wardley v Western Australia (1992) 175 CLR 514 at 525, Medlin v State Government 
Insurance Commission (1995) 182 CLR 1 at 6-7, ACQ Pty Limited v Cook [2009] HCA 28 at 
[27]).

Mr Lambley’s state of mind going into the fight – workplace culture

[122] Mr Lambley’s state of mind is relevant in assessing his level of culpability.  Mr Smith 
was Mr Lambley’s supervisor.  He “had a long history of abusive, threatening and bullying 
behaviour towards the applicant, and other employees, who he perceived were not supportive 
of him, or that he simply did not like” (Sams DP at [144](b))

[123] Mr Lambley had stood up against Mr Smith’s severe bullying and harassment of a 
female subordinate - bullying and harassment that left Ms Hunter on workers’ compensation 








[2013] FWCFB 9230

37

with serious stress and anxiety.  That was an honourable and decent thing for Mr Lambley to 
do.  It is tolerably clear that but for that honourable action, Mr Lambley would never have 
attracted Mr Smith’s focussed adverse attention and thus never found himself being 
challenged to fight by the bully.

[124] About a month before the incident Mr Smith told Mr McIntyre: “I am going to get him 
(the applicant), I am going to fuck him up” (see para [144](g) for Sams DP’s acceptance of 
Mr McIntyre’s evidence).

[125] Mr Smith goaded the applicant into fighting, telling Mr Lambley that he would fight 
him outside and threatening that he would ‘cave his head in’.  That threat had been repeated 
on a number of occasions.  (see Sams DP’s decision at para [144](a)).

[126] I adopt the following findings (at para [144](c)) based on oral evidence accepted by 
Sams DP:

“Mr Lambley was very nervous at the prospect of a fight with Mr Smith; someone much 
younger and of a larger build.  He had sent his son to intervene with Mr Smith.  I 
accept that the applicant was so nervous as to what might happen, that he was forced to
the toilet ...  This physiological manifestation is indicative of a ‘very, very nervous’ 
person.  Such an admission was embarrassing and unlikely to have been ‘made up’ by 
the applicant.”

[127] And at [16]:

“[Mr Lambley] had not liked seeing other people humiliated or stood over by Mr Smith.  
He explained that on 5 June 2011, he did not report Mr Smith’s taunts to go outside as 
he didn’t want to be labelled as a coward.  He also believed nothing would be done 
about it as management was aware of other fights Mr Smith had provoked, but nothing 
had been done.  The applicant said that when he went outside, he did not appreciate he 
was being ‘set up’.  He had hoped for just a verbal altercation.  Moreover, when he 
was taunted again he believed he needed to ‘get in’ first. ...”

[128] Mr Lambley is a working class man with a value system and mindset that Mr Smith 
exploited in setting him up.  There was a strong prevailing workplace culture against an 
employee being a “dog”.  To Mr Lambley it was a matter of honour and decency that he stood 
up for Ms Hunter when she was being bullied by Mr Smith in a nasty and vindictive fashion.  
Mr Smith acted in a way that he knew would force Mr Lambley to fight him as a matter of 
honour and self-respect as a man and as a matter of face within the prevailing workplace 
culture.  Mr Lambley believed, on reasonable grounds, that taking the matter to management 
would be ineffective.  He had sent an emissary to Mr Smith in an effort to prevent the fight.  
In the period leading up to the fight, Mr Lambley genuinely felt he had no other alternative.  
The emissary had been rebuffed. That feeling was still genuine even if wrong and wrong-
headed, as Mr Lambley has subsequently recognised.  Again, these observations do not 
excuse the misconduct but they are relevant to an assessment of Mr Lambley’s moral 
culpability.








[2013] FWCFB 9230

38

The CCTV footage

[129] Senior Council for DP World presented a telling analysis of the CCTV footage to 
demonstrate that Mr Lambley made a considered decision to engage in the fight and that he 
had plenty of opportunity to walk away from the fight.  However, that analysis is not to the 
point.  Mr Lambley does not deny those basic propositions.  Rather, it is put on Mr Lambley’s 
behalf that, in the particular circumstances, Mr Lambley felt that he had no alternative other 
than to fight Mr Smith and that, if the fight could not be avoided (as Mr Lambley had tried to 
achieve), it was better for him to get it over and done with.

Conduct out of character

[130] As with Sams DP, I accept the evidence of Ms Taylor, summarised by Sams DP (at 
[87]):

“Ms Taylor, the HR Manager, accepted that the applicant had been friendly towards her 
and she had no reason not to believe that he was a gentleman.  She now regarded the 
incident as ‘out of character’.  Ms Taylor says she still does not know who started the 
fight.  However, it was now her firm belief that it was more than likely the applicant’s 
account of the verbal altercation in the canteen was true.  Ms Taylor acknowledged 
that Mr Smith’s history was a relevant factor and should have been considered in 
relation to the dismissal.”

(underline emphasis added)

It may be noted that these concessions by Ms Taylor are a significant matter.  They 
demonstrate that DP World’s consideration of the incident at the time of the disciplinary 
investigation were flawed.

[131] As with Sams DP (at [16]), I find that Mr Lambley was “openly honest during the 
disciplinary interviews and regretted his foolish behaviour”.

Length of Service

[132] Mr Lambley had 30 years of service at the time of the dismissal.  That is a very long 
period of service.  Long service is to be accorded particular weight.  That does not mean that 
an employee with very long services is immune from dismissal for misconduct (see 
Queensland Rail v Wake (2006) 156 IR 393 at [17] and [30]), rather it means that the 
dismissal of an employee for particular misconduct in particular circumstances may not be 
harsh for an employee with a relatively short period of services but harsh if the employee has 
very long services.

Disciplinary Record

[133] Over the years, Mr Lambley had been spoken to on a number of occasions about 
particular incidents, but he had never been the subject of any formal warning or disciplinary 
action.  In short, he had quite a good disciplinary record.








[2013] FWCFB 9230

39

Effects of dismissal on the employee and his family

[134] At the time of the dismissal, Mr Lambley was 53 years of age.  As an older employee 
without trade or educational qualifications he has found it difficult to find secure employment.  
He managed to secure two periods of employment, each for about 10 months, that paid half 
his salary as an employee of DP World.  Mr Lambley has had extended periods of 
unemployment since his dismissal notwithstanding his genuine attempts to find employment.  
This experience since dismissal reflects the likelihood that the dismissal would have serious 
effects on Mr Lambley and his family through loss of income.

Conclusion on whether the dismissal was harsh, unjust or unreasonable

[135] There is no dispute that Mr Lambley was protected from unfair dismissal (s.390(1)(a)). 
On the unusual facts of this case, and for the reasons I have given and return to below, after 
weighing relevant matters in the manner specified in Australia Post, I find that that Mr 
Lambley’s dismissal was harsh (s.385(b) and s.387) and that he has been unfairly dismissed 
(s.390(1)(b) and s.385).

Remedy

[136] Under the statutory provisions that were operative for many years under the 
Workplace Relations Act 1996, the authorities held that reinstatement was the “primary 
remedy” for a dismissal found to be harsh, unjust or unreasonable. 

[137] The reinstatement provision in the Act adopts language that is different from the 
reinstatement provision in the Workplace Relations Act 1996.  However, those differences 
only serve to reinforce the proposition that reinstatement is the primary remedy and that, if a 
remedy is appropriate, reinstatement should be ordered if it is sought unless the Commission 
is satisfied on proper grounds that reinstatement is not appropriate. Section 390 of the Act 
relevantly provides:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the 
payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair 
dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

...

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; 
and

(b) the FWC considers an order for payment of compensation is 
appropriate in all the circumstances of the case.”








[2013] FWCFB 9230

40

[138] It may be observed that the statistics published in the annual reports of the Tribunal 
and its predecessors indicate that reinstatement is ordered in a relatively small proportion of 
cases, notwithstanding that members are required to regard reinstatement as the “primary 
remedy”.  If it be the case that this reflects a probable failure to properly give effect to that 
requirement in some cases.  The language of s.390 makes the position pellucidly clear.  The 
Commission “must” order reinstatement unless reinstatement of the person is inappropriate.

[139] The central principles applicable to determining whether reinstatement is inappropriate 
were usefully summarised by the Full Bench in Fletcher v Commonwealth of Australia 
(Australian Federal Police)  [2007] AIRC FB 466 (Watson and Lacy SDPP and Redmond C) 
(Fletcher):

“[24] The Commissioner himself observed:

"The Commission ought be cautious in considering an employer's claim that 
they cannot work again with a dismissed employee, as this might 
inappropriately frustrate the relief of reinstatement provided by the Act." 

[25] This is consistent with the principles set out, in the context of the earlier 
concept of the "practicability" of reinstatement, by a Full Court of the Industrial 
Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd.   Those 
principles were conveniently summarised, and found to be relevant to the 
appropriateness of reinstatement, by a Full Bench in Australian Meat Holdings Pty 
Ltd:

"In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full 
Court of the Industrial Relations Court said:

`. . . we accept that the question whether there has been a loss of trust and 
confidence is a relevant consideration in determining whether reinstatement is 
impracticable, provided that such loss of trust and confidence is soundly and 
rationally based.

At the same time it must be recognised that, where an employer, or a senior 
officer of an employer, accuses an employee of wrongdoing justifying the 
summary termination of the employee's employment, the accuser will often be 
reluctant to shift from the view that such wrongdoing has occurred, irrespective 
of the Court's finding on that question in the resolution of an application under 
Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed 
the relationship of trust and confidence between employer and employee, and 
so made reinstatement impracticable, an employee who was terminated after an 
accusation of wrongdoing but later succeeded in an application under the 
Division would be denied access to the primary remedy provided by the 
legislation. Compensation, which is subject to a statutory limit, would be the 
only available remedy. Consequently, it is important that the Court carefully 
scrutinise any claim by an employer that reinstatement is impracticable because 
of loss of confidence in the employee.








[2013] FWCFB 9230

41

Each case must be decided on its own merits.'

While Perkins was decided under the former statutory scheme the above observations 
remain relevant to the question of whether reinstatement is appropriate in a particular 
case."”

[140] Those observations remain relevant to a consideration of whether reinstatement is 
appropriate under s. 390 of the Act.  The legislature chose to adopt the criterion of 
appropriateness in circumstances where the decision of the Full Court of Industrial Relations 
Court in Perkins is a leading authority of which the legislature may be taken to have been 
aware (see Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, para [3.44]).

[141] The facts and circumstances in Fletcher are instructive and require consideration.

Conclusion on Remedy

[142] In relation to remedy:

(a) Given that the misconduct was out of character and given the experience Mr 
Lambley has been through, I find it is highly unlikely that Mr Lambley would 
ever again engage in such misconduct such that loss of trust and confidence 
should not be an impediment to reinstatement.

(b) I am satisfied that reinstatement is appropriate.

(c) I find it more likely than not that, had Mr Lambley not been dismissed, he 
would have continued working in his prior role at DP World until his 
retirement.

(d) In the exercise of my discretion I would make an order for reinstatement under 
s.390(1) and s.391(1) with an order for continuity under s.390(2) and an order 
for back pay under s.390(3) determined by calculating the pay that Mr 
Lambley would have earned in the period since his dismissal had he not been 
dismissed and had continued working for DP World and deducting from that 
amount:

(i) All income earned by Mr Lambley in that period; and

(ii) An amount of $30,000 on account of the misconduct that Mr Lambley 
admittedly engaged in.

Final Conclusion

[143] The proposition that a finding in favour of Mr Lambley will undermine DP World’s 
policy against fighting or embolden other employees of DP World to disregard a policy 
against fighting (or have those effects on employer and employees more generally) is 
preposterous.








[2013] FWCFB 9230

42

[144] A decision in favour of Mr Lambley of the sort I have described still leaves Mr 
Lambley with an effective penalty of some $30,000.  No rational employee would regard this 
as an insignificant loss or as an outcome that provides an incentive to engage in fighting in 
breach of policy that would not otherwise have occurred.  No rational employee would treat 
such a decision as abating the risk of serious adverse consequences – including dismissal – for 
a breach by them of the employer’s policy against fighting.

[145] The outcome I have determined recognises the validity and importance of employer 
policies against fighting and recognises, as Mr Lambley did, that Mr Lambley engaged in 
misconduct for which disciplinary action was appropriate and that the circumstances on which 
he relied did not absolve him of responsibility for his misconduct and did not excuse his 
misconduct.

[146] I the suggestion in paragraph [57] of the reasons of the majority that the observations 
in paragraphs [143] and [144] are “based upon the erroneous assumption that the outcome [I 
favour] would be subject to detailed and rational examination in the workplace”, because, 
“[u]nfortunately, those who intimidate and perpetrate physical violence in the workplace are 
generally disinclined to undertaking detailed examination of issues and instead act and react 
to very basic concepts and communications”.

[147] First, I make no such assumption. My conclusion remains valid even if the outcome I 
favour were to be transmitted in the workplace in “very basic concepts and communications.”  
At its most basic, the result that I would determine would be encapsulated by:  “The employee 
sacked for fighting got his job back but he copped a $30,000 penalty instead”.

[148] Secondly, and more fundamentally, the position of the majority in paragraph [57] 
depends upon the suppressed major premises that because “those who intimidate and 
perpetrate physical violence in the workplace are generally disinclined to undertaking detailed 
examination of issues and instead act and react to very basic concepts and communications”, 
it is necessary to uphold a dismissal for fighting notwithstanding countervailing factors 
arising from the facts of the particular case, lest a decision to find the dismissal unfair in a 
particular, detailed circumstances of the particular case be misinterpreted by employees who 
“are generally disinclined to undertaking detailed examination of issues”.  That rationale 
would be equally applicable in every case of fighting and is fundamentally incompatible with 
the principle and approach in AWU–FIME Amalgamated Union v Queensland Alumina 
Limited.  It is of a piece with the position of the Full Bench as initially constituted identified 
as erroneous by Katzmann J.  Thus, if the sentiments in paragraph [57] extend to the 
possibility or probability of ignorant employees (inaccurately) characterising the effect of the 
decision I favour as - “the employee sacked for fighting got his job back” - that possibility or 
probability is present in every case of dismissal for fighting.

[149] With  respect to the majority, given:

(a) the nasty and vindictive bullying and harassment of employees engaged in by 
Mr Smith, as DP World’s supervisor of those employees, over an extended 
period; 

(b) the ongoing failure of DP World’s management to address Mr Smith’s bullying 
and harassment despite numerous complaints over an extended period;








[2013] FWCFB 9230

43

(c) that the evidence, and the primary findings of fact by Sams DP, compel a 
finding that Mr Smith deliberately and maliciously staged a setup of Mr 
Lambley in which he deliberately and maliciously goaded Mr Lambley into a 
fight, in a fashion that made it intolerable to resist for a person of Mr 
Lambley’s social value system and mindset in the particular cultural context of 
that workplace, and then arranged for the fight to be captured on CCTV so as 
to procure Mr Lambley’s dismissal;

(d) the fact that Mr Lambley would never have become a target for that setup but 
for the fact that he took a stand against Mr Smith’s nasty and vindictive 
bullying and harassment of a female co-worker - bullying and harassment that 
left that female employee on workers compensation suffering an ongoing 
mental health condition;

(e) the fact that Mr Lambley did not want the fight, made efforts through an 
emissary to avoid it, and engaged in the fight only because, given:

(i) his value system and mindset, and 

(ii) the prevailing workplace culture against an employee being a 
“dog”;

(iii) the ineffectiveness of complaints management about Mr 
Smith’s bulling and harassment,

he genuinely felt at the time of the fight, even if wrongly, that he had no other 
alternative;

(f) the fact that nobody suffered any material injury as a result of the fight;

(g) Mr Lambley’s age and very long period of good service;

(h) the likely dire, long term financial and well-being consequences of dismissal 
for a man of Mr Lambley’s age and educational status;

(i) Mr Lambley’s unqualified acknowledgement that he should not have engaged 
in the fight and was guilty of misconduct as a result and his genuine remorse; 
and

(j) given what he has been through, the profound unlikelihood that Mr Lambley 
would ever again engage in fighting were he to be reinstated.

I do not see how a ‘fair go all round’ demands that DP World’s decision to dismiss Mr 
Lambley should be upheld.

[150] It is not to the point to observe that the circumstances relied upon by Mr Lambley 
were “no excuse” for his misconduct.  The issue is not whether the circumstances relied upon 
by the employee “excuse” the misconduct.  The issue in a case of this sort is whether in all the 
circumstances the dismissal was harsh, notwithstanding that the misconduct constitutes a 
valid reason for the dismissal.








[2013] FWCFB 9230

44

[151] I agree that fighting is a form of misconduct that is prima facie serious, and that the 
fighting engaged in by Mr Lambley was misconduct that must, on the CCTV evidence, be 
regarded as serious.  However, the very point of the seminal decision in AWU–FIME 
Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 was to emphasise that, 
notwithstanding the prima facie seriousness of fighting as a form of misconduct, there can 
still be cases where the dismissal of an employee who has engaged in fighting will be harsh 
notwithstanding that the fighting involved misconduct that constituted a valid reason for 
dismissal.  It is not the case that “self defence” is the only ground that will justify that a 
dismissal for fight was harsh.   Each case must be decided on its own facts and circumstances.  
For the reasons I have given, and without in any way denying the seriousness of the 
misconduct in which Mr Lambley engaged, it seems to me that the factors listed in the 
paragraph [149] weigh decisively in favour of a finding that Mr Lambley’s dismissal was 
harsh in all the circumstances and that he ought be reinstated in the manner I have specified.

[152] However, the decision of the majority prevails and Mr Lambley’s application for an 
unfair dismissal remedy will be dismissed as the majority has determined.

VICE PRESIDENT

Appearances:

S Crawshaw of Senior Counsel with L Doust of Counsel for Mr Lambley
I Taylor of Senior Counsel with D Mehendra of Counsel for DP World Sydney Limited

Hearing details:

2012.
Sydney:
June 1.

2013.
Sydney:
September 23.

Printed by authority of the Commonwealth Government Printer

Price code G, PR544913


OF FAIR RK COMMISSION THE




 



[2013] FWCFB 9230

45

                                               
1  Lambley v DP World Sydney Limited T/A DP World Sydney [2012] FWA 1250.
2  DP World Sydney Limited v Lambley [2012] FWAFB 4810.
3  [2012] FWA 1250 at [95].
4 (2003) 214 CLR 118 at [23].
5 (1995) 185 CLR 410.
6 Ibid at 465.
7 (1995) 62 IR 385.
8 Ibid at 393.
9  [2013] FWCFB 6191 at [58].
10 Ibid at [70].
11 Transcript, 5 December 2011, PN302-PN307, PN317-PN320, PN621-PN625 and PN914-PN919.

Cases cited by this decision: