1
Fair Work Act 2009
s.604 - Appeal of decisions
M Colson
v
Barwon Health
(C2013/7488)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER WILSON MELBOURNE, 24 MARCH 2014
Appeal against decision [[2013] FWC 8734] of Deputy President Gostencnik at Melbourne
on 11 November 2013 in matter number U2012/10440—Permission to appeal refused—
appeal dismissed.
[1] On 2 December 2013, Dr M Colson (the Appellant) filed an appeal pursuant to s.604
of the Fair Work Act 2009 (the Act) against the decision of Deputy President Gostencnik of
11 November 20131 in U2012/10440. The decision concerned an application by the Appellant
under s.394 of the Act seeking relief in respect of the termination of his employment by
Barwon Health (the Respondent).
[2] As noted by Deputy President Gostencnik, the matter had a long and very public
history, recorded at paragraphs [1] to [7] of his decision. In short:
the Appellant was dismissed from his employment with Barwon Health on 30 May
2012;
the Appellant lodged his application for relief in respect of the termination of his
employment on 13 June 2012;
the matter proceeded to arbitration before Commissioner Roe;
the Commissioner found2 that the termination of the Appellant’s employment was
unfair, concluded that reinstatement was not inappropriate and made an order for
reinstatement;
the Commissioner’s decision was appealed:
by the Respondent, which sought that the decision be set aside and the application
for relief be dismissed; and
by the Appellant, in respect of the Commissioner’s decision not to make an order to
restore lost pay;
[2014] FWCFB 1949
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 1949
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the appeals were heard by a Full Bench (the First Full Bench) of the Fair Work
Commission (the Commission), of which Deputy President Gostencnik was a member.
In its decision of 15 July 2013,3 the First Full Bench concluded that the Commissioner
had made a number of significant errors of fact in his decision, granted the Respondent
permission to appeal, upheld its appeal and quashed the Commissioner’s decision;
upon the rehearing of the matter, the First Full Bench concluded that there were two
matters relating to the Appellant’s conduct which constituted valid reasons for the
termination, but neither could be characterised as serious misconduct justifying
summary dismissal. The First Full Bench took into account all of the matters set out in
s.387 of the Act, adopting the Commissioner’s findings that were not challenged in the
appeal in respect of relevant matters identified and concluded that the termination of
the Appellant’s employment was harsh; and
the matter of remedy was referred to Deputy President Gostencnik for determination
by way of a rehearing, having regard to the conclusions of the First Full Bench as to
valid reason and harshness, and to provide an opportunity to the parties to lead further
evidence as to the prevailing circumstances since Commissioner Roe’s decision. Such
further evidence arose, amongst other things, from the fact that the order of
reinstatement by Commissioner Roe was not stayed, and the Appellant returned to his
position over the period 12 March 2013 to 15 July 2013.4
[3] In his decision as to remedy, the Deputy President declined to make an order
reappointing the Appellant to the position of anaesthetist with the Respondent and decided to
make an order of compensation payable to the Appellant.
[4] Reflecting on the reference by the First Full Bench to Deputy President Gostencnik of
the matter of remedy, this appeal against his decision is directed only to remedy.
Approach to the Appeal
[5] We adopt and apply the approach to an appeal of this type as set out by the First Full
Bench as follows:
“[5] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal
by way of rehearing and the Commission’s powers on appeal are only exercisable if
there is error on the part of the primary decision maker [This is so because on appeal
FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied
v AIRC (2000) 203 CLR 194 at para 17 per Gleeson CJ, Gaudron and Hayne JJ]. There
is no right to appeal, rather an appeal may only be made with the permission of the
Commission.
[6] The decision subject to appeal was made under Part 3–2—Unfair Dismissal—
of the Act. Section 400(1) of the Act provides that permission to appeal must not be
granted from a decision made under Part 3–2 unless the Commission considers that it
is in the public interest to do so. Further, in unfair dismissal matters, appeals on a
question of fact can only be made on the ground that the decision involved a
‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that
the threshold for a grant of permission to appeal is higher in respect of unfair dismissal
appeals than the threshold pertaining to appeals generally.
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[7] The public interest test in s.400(1) is not satisfied simply by the identification
of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v
Makin a Full Bench of the Tribunal identified some of the considerations that may
attract the public interest:
‘. . . the public interest might be attracted where a matter raises issue of
importance and general application, or where there is a diversity of decisions at
first instance so that guidance from an appellate court is required, or where the
decision at first instance manifests an injustice, or the result is counter intuitive
or that the legal principles applied appear disharmonious when compared with
other recent decisions dealing with similar matters . . .’ [(2010) 197 IR 266 at
para 27].” 5
[6] The decision of Deputy President Gostencnik is properly viewed as a discretionary
decision.6 The appeal is therefore to be considered in accordance with the principles of
House v The King,7 subject to modification by s.400(2) of the Act which limits any review
based on a mistake of fact to a significant error of fact.
The Appeal Grounds
[7] The Appellant advanced 22 grounds of appeal said to:
“. . . identify the way in which the Deputy President has erred in his approach to the
exercise of his discretion, within the meaning of House v The King [(1963) 55 CLR
499]: grounds 1 and 2 involve the Deputy President misdirecting himself on the law,
and the other appeal grounds involve the Deputy President in acting upon wrong
principles. The decision as a whole, in failing to award reinstatement, is unreasonable
and plainly unjust, and amenable to appeal before a Full Bench.”8
[8] In order to assist this Full Bench, the Appellant advised in his written submissions that
he considered the principal grounds of appeal to be grounds 1, 2, 3, 9, 20 and 22.9 Although
assisted by the identification by the Appellant of his principal grounds, we will determine the
appeal upon consideration of all the appeal grounds.
[9] In his decision, Deputy President Gostencnik set out s.390 of the Act which outlines
the circumstances in which an order for reinstatement or compensation may be made and
discussed when reinstatement of the person is inappropriate by reference to authority. He
recorded several propositions drawn from the authorities and agreed between the parties in the
proceedings before him.10
[10] The Deputy President then considered the evidence in relation to propositions
advanced by the Respondent about a loss of trust and confidence on the basis of allegations by
the Respondent as to dishonesty, the Appellant’s obstinacy, the capacity of the Appellant to
work with Drs S Tomlinson and C Gordon, and trust and confidence in the Appellant by those
responsible for his management. In doing so, the Deputy President made findings as to the
relevance of these matters to the question of whether reinstatement was inappropriate,
considering whether there had been a loss of trust and confidence, whether that relationship
could be repaired, whether the views expressed by the managers responsible for the Appellant
had a rational basis and the effect of the loss of trust and confidence on the operations of the
workplace.
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[11] The Deputy President also considered and attributed weight to evidence about the
Appellant’s relationship with colleagues and co-workers.
[12] The Deputy President then considered evidence concerning a range of incidents in
relation to the Appellant’s conduct since the reinstatement order which were raised in those
proceedings, finding that some were of no consequence, whilst others underscored concerns
about trust and confidence arising from evidence in relation to the earlier part of the
Appellant’s employment.
[13] The Deputy President considered and made findings in relation to statements
attributed to Dr Tomlinson during a nursing handover meeting of 16 July 2013.
[14] The Deputy President then considered the capacity of the Appellant to obtain
alternative comparable employment in the region, having regard to the impact of the
termination on his professional and family life, and his professional reputation. He found that
the evidence supported a conclusion that establishing a private practice as an anaesthetist in
the region would be challenging for the Appellant, although not impossible. The publicity
associated with the case, particularly in the region, has had a negative impact on the
Appellant’s reputation, which may inhibit the Appellant establishing a private practice in the
region. There is very little doubt that the prospect of the Appellant obtaining employment as
an anaesthetist in the region is extremely low. This will likely require him to look for work
outside of the region “with all the attendant inconvenience, expense and dislocation
accompanying relocation”. The Deputy President found that these factors weighed heavily on
his mind and lent support to a reinstatement order.11
[15] The Deputy President also considered and rejected an argument by the Appellant that
inadequacy of compensation as a remedy was a relevant consideration in determining whether
reinstatement was inappropriate. He considered and placed no weight on the proposition of
the Respondent that the Appellant’s employment was a fixed term of employment.
[16] The Deputy President then weighed up all of the considerations to which he attributed
weight and reached a conclusion about whether the reinstatement was inappropriate:
“Although this matter is finely balanced and the significant consequences for Dr Colson
in not being reinstated has weighed heavily on me, I am satisfied, based on the totality
of the evidence, that reinstatement in this case is inappropriate. The relationship of
trust and confidence between Barwon Health’s managers responsible for Dr Colson
along with the management of the Department and Dr Colson has broken down and the
evidence strongly points to a conclusion that the relationship cannot be repaired
making ongoing employment unworkable. This is not outweighed by the consequences
of no order of reinstatement for Dr Colson.”12
Consideration
[17] Before going to specific appeal grounds, we note that the question of remedy was
referred to Deputy President Gostencnik by the First Full Bench to “provide an opportunity
for the parties to lead further evidence as to the circumstances since Commissioner Roe’s
decision and to make submissions on the basis of our conclusions regarding the valid reasons
for Dr Colson’s dismissal”.13 In reaching his decision, the Deputy President had regard to
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additional evidence concerning the circumstances following the decision of
Commissioner Roe, including evidence in relation to the period in which the Appellant
returned to work, the conclusions of the First Full Bench and the conclusions of
Commissioner Roe, which were not disturbed by the conclusions of the First Full Bench
which were relevant to the question of remedy.
[18] It follows that where the First Full Bench reached a different view to Commissioner
Roe on evidence regarding valid reason but relevant to remedy, the Deputy President was
required to rely on the conclusions of the First Full Bench. For example, he was required to
consider the conclusion of the First Full Bench that a 23 March 2012 letter circulated by the
Appellant contained unwarranted personal attacks on his managers and was circulated with
the intent of damaging their reputations.14
[19] As a consequence, there is no basis for the broadly expressed proposition of the
Appellant that Commissioner Roe’s “conclusion [as to remedy] was soundly based and should
have been adopted by Gostencnik DP when the matter was remitted to him following the
[First] Full Bench decision on 15 July 2013”.15
[20] As a further preliminary observation, this Full Bench notes that aside from grounds 1
and 2 (which allege that the Deputy President acted on a wrong principle), the appeal grounds
are directed to alleged errors in relation to factual conclusions reached by the Deputy
President on the evidence, largely in respect of intermediate findings in relation to
considerations relevant to the question of whether reinstatement was inappropriate. Many of
the appeal grounds relied on alleged errors as to the weight attributed to competing
considerations arising out of the evidence. In relation to these grounds, we are required on
appeal to be satisfied that the Deputy President was plainly wrong and, in the context of Part
3–2—Unfair Dismissal matters that the decision reflects significant error, rather than
determine whether or not this Full Bench would have reached a different conclusion.
[21] In considering grounds raised in the appeal, we will first consider those grounds which
allege that Deputy President Gostencnik acted on a wrong principle.
Grounds 1 and 2—error in finding that “an ‘emphasis on reinstatement’ . . . does not mean ‘no
more than to recognise it as being the first, perhaps even the foremost, remedy under the
Act’” and that “the ‘only question’ is whether reinstatement ‘is inappropriate’”
[22] These grounds were expressed by the Appellant in the following terms:
“1. The Deputy President erred in misdirecting himself in [12], in failing to apply the
object of Part 3–2 of the Act, as the object for there to be an ‘emphasis on
reinstatement’ in the remedies awarded by the Commission does not mean ‘no
more than to recognise it as being the first, perhaps even the foremost, remedy
under the Act’.
2. The Deputy President erred in misdirecting himself in [12] and [15], in that
having decided in [11] that a remedy would be ordered, it is not correct that the
‘only question’ is whether reinstatement ‘is appropriate’, but rather, in accordance
with section 390(3)(a), that whether compensation may be ordered instead if
reinstatement ‘is inappropriate’.”16
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[23] These grounds are based on the proposition that the Deputy President misdirected
himself to the test stated by the Act in relation to when reinstatement may be ordered and
raises the following provisions within Part 3–2—Unfair Dismissal of the Act.
[24] Section 381 of the Act states the following:
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that
balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an
emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
‘fair go all round’ is accorded to both the employer and employee concerned.”
[25] Section 390 of the Act outlines the requirements for when the Commission may order
remedy for unfair dismissal:
“(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.”
[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing
remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2.
Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to
both the employer and employee concerned in deciding on and working out remedies under
Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be
ordered unless the Commission is satisfied that reinstatement of the person is inappropriate
(and an order for compensation is appropriate).
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[27] The Appellant submitted that, in the context of the statutory “emphasis on
reinstatement”, the statement by the Deputy President that “to describe reinstatement as the
‘primary remedy’, is to do no more than to recognise it as being the first, perhaps even the
foremost, remedy under the Act”17 is wrong. The Appellant further submitted that the Deputy
President erred by wrongly using the test that the “only question” was whether reinstatement
“is appropriate”,18 when the Act only allows the ordering of compensation if reinstatement “is
inappropriate”, and compensation “is appropriate”.19
[28] These appeal grounds are directed to limited passages extracted from the section of the
Deputy President’s decision dealing with reinstatement as the primary remedy and
determining whether reinstatement of the person is inappropriate.20 When the reasons of the
Deputy President are read as a whole and considered fairly they do not support a finding or
inference of an error of law.
[29] The passages from which the sentences relied on by the Appellant are extracted clearly
indicate that the Deputy President understood and applied the statutory requirements in
respect of reinstatement,21 as does the broader context of his decision. The Deputy President
noted the primacy of reinstatement as a remedy for an unfair dismissal. His observations
about primacy did no more than state that consideration of reinstatement against the test of
whether it is inappropriate was required (and a finding that it is inappropriate is required)
before compensation in lieu could be ordered22 and does not provide licence to search for a
reason to order an employee’s reinstatement when that is not appropriate. The requirement to
find that reinstatement is inappropriate before considering compensation in s.390 of the Act
gives effect to the emphasis on reinstatement in s.390(1)(c) of the Act.
[30] The contention that the Deputy President erred in specifying and applying a test that
the “only question” is whether reinstatement “is appropriate” is not supported by a fair
reading,23 the surrounding context or the decision as a whole. The Deputy President expressly
referred to the legislative tests.24 The relevant paragraphs on which the extracts relied upon by
the Appellant appear to deal with determining whether “reinstatement of the person is
inappropriate”. In the second sentence, the Deputy President correctly recorded that “[t]he
discretion to order a remedy of compensation may only be exercised if the Commission is
satisfied that reinstatement is inappropriate”.25 Having set out his approach, the Deputy
President then proceeded to consider “[w]hen might reinstatement be inappropriate?” The
ultimate conclusion of the Deputy President was that “reinstatement in this case is
inappropriate”.26 It is only after having made a finding that reinstatement was inappropriate,
that the Deputy President proceeded to consider compensation as a remedy. A fair reading of
the Deputy President’s decision as a whole leads inevitably to a conclusion that he understood
and correctly applied the relevant statutory tests in considering reinstatement as a remedy.
[31] The approach of the Deputy President is consistent with that of the Full Bench in
Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy
is appropriate, compensation must not be ordered unless the tribunal is satisfied that
reinstatement is inappropriate. Seen in the proper context the Commissioner’s
statement that reinstatement is the presumptive remedy is not indicative of any error in
the decision. The section provides that compensation must not be ordered unless
reinstatement has been found to be inappropriate. There is no basis for concluding that
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the Commissioner interpreted the section differently. Rex’s first submission on remedy
must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement is
appropriate.”27
[32] Grounds 1 and 2 disclose no error.
[33] We next consider the other principal grounds identified by the Appellant before
proceeding to consider the remaining grounds of appeal.
Ground 3—error in concluding that “a loss of trust and confidence would make reinstatement
inappropriate without examining whether the claimed loss of trust and confidence would have
that effect”
[34] The Appellant submitted that the Deputy President erred in that having correctly
directed himself that “an assessment must be made as to the effect of the loss of trust and
confidence on the operations of the workplace”28 he proceeded to conclude that a loss of trust
and confidence would make reinstatement inappropriate without examining whether the
claimed loss of trust and confidence would have that effect.
[35] In support of this ground, the Appellant relied on his unchallenged evidence that less
than one per cent of his workplace role involves interaction with his managers. This evidence
was considered and accepted by the Deputy President29 but he did not accept the interaction as
unimportant and found that it was important that Dr Tomlinson (the Appellant’s Director of
the Department) have trust and confidence in the Appellant and that the “relationship between
them be workable”. The Deputy President also had regard to and gave weight to the evidence
brought by the Appellant, accepted the high regard in which he was held by his colleagues
and co-workers in the discharge of the duties for which he was employed and found that “this
is an important consideration in determining whether reinstatement is appropriate”.30
[36] This Full Bench does not accept the proposition of the Appellant that the Deputy
President concluded that a loss of trust and confidence would make reinstatement
inappropriate without examining whether the claimed loss of trust and confidence would have
an effect on the operations of the workplace. This ground of appeal rests upon a narrow
conception of the operations of the workplace focussed on the day-to-day work of the
Appellant with his professional colleagues, with scant consideration of the impact on the
relationship between him and his immediate superiors on the operations of the workplace.
[37] In his decision, the Deputy President specifically noted that the assertion that trust and
confidence in an employee has been lost must be assessed on the evidence and an “assessment
must be made as to the effect of the loss of trust and confidence on the operations of the
workplace.”31 In his decision, the Deputy President considered the evidence and made
numerous findings as to a rationally-based concern of the Appellant’s immediate managers
which would impact on the operations of the workplace and other evidence which supported
their concerns that the Appellant would continue to challenge management at every
opportunity and be a destructive presence in the Department, negatively impacting on the
authority of managers, all of which are relevant considerations in respect of the operations of
the workplace.
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[38] The Appellant has not substantiated the proposition that the Deputy President failed to
consider evidence in relation to the effect of a loss of trust and confidence on the operations of
the workplace.
[39] No error is disclosed in relation to ground 3.
Ground 9—finding that “Dr Tomlinson ‘is unable to have a professional and constructive
relationship with Dr Colson’” is inconsistent with the evidence of Dr Tomlinson about
“having had ‘congenial’ and ‘professional’ interaction with Dr Colson”
[40] The Appellant submitted that the Deputy President erred in his findings that
Dr Tomlinson “is unable to have a professional and constructive relationship with
Dr Colson”32 and that such a finding is inconsistent with the evidence of Dr Tomlinson, about
having a “congenial and professional” interaction with him throughout the period of the
reinstatement, pursuant to the order of Commissioner Roe at first instance.33
[41] We see no error in the finding. The Deputy President considered a range of evidence
in relation to the ability of Dr Tomlinson to have a professional and constructive relationship
with the Appellant. The evidence about having a “congenial” and “professional” interaction
relied upon by the Appellant is evidence that Dr Tomlinson made every effort to make sure
the interaction was “congenial” and “professional” during the reinstatement period and must
be weighed against other evidence considered by the Deputy President on this point,34
including the evidence of Dr Tomlinson that he continued to hold the view that the
relationship had broken down, a view confirmed by the Appellant’s conduct upon returning to
work in March 2013.35
[42] The Deputy President’s finding that Dr Tomlinson’s view that he is unable to have a
professional and constructive relationship with the Appellant is both rationally based and
understandable, and is supported by the evidence before him. It discloses no error.
Ground 20—failure to have regard to the “inadequacy of compensation as a remedy” in
determining remedy
[43] The Appellant submitted that the Deputy President erred in his conclusion, at
paragraph [103], in that the inadequacy of compensation as a remedy in the present
circumstances was a factor to which the Deputy President ought to have regard in determining
the remedy awarded.
[44] In this appeal, this was argued as a failure by the Deputy President to have regard to
the effect of the termination on the Appellant’s future employment and the impact of the
statutory cap on compensation. On the first point, the Deputy President did consider and gave
significant weight to the capacity of the Appellant to obtain alternative comparable
employment. He placed significant weight on the impact of the termination on the Appellant’s
professional and family life and his professional reputation in considering whether
reinstatement was inappropriate.
[45] In the proceedings before Deputy President Gostencnik, the argument concerning the
inadequacy of compensation was argued by reference to the impact of the statutory cap on
compensation in the circumstances of the present matter, in which the Appellant’s income
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exceeded the high income threshold, so that this element of the cap (in s.392(5)(b) of the Act)
applied.
[46] In this respect, the Deputy President found:
“Although it may readily be understood that many who are ‘unfairly dismissed’ might
regard the amount of compensation awarded instead of reinstatement as inadequate,
even manifestly inadequate, in my view the adequacy or otherwise of any
compensation order, is not a matter that should be taken into account in assessing
whether an order for reinstatement is appropriate. The parliament has determined the
level of compensation that may be awarded in circumstances where the Commission
considers that reinstatement is not appropriate and it would be wrong to give any
weight to the level of compensation in assessing the appropriateness of reinstatement.
To do so would result in applicants who are higher income earners always have a more
persuasive argument for reinstatement than applicants who are lower income earners.
Conversely it would also allow the Commission to consider that compensation was an
adequate remedy and thereby justifying the non-award of reinstatement. Such an
approach is surely erroneous.”36
[47] The Appellant’s argument is that the Deputy President erred in not having regard to
the statutory limitations on the level of compensation (s.392(5) of the Act) which can be
ordered by the Commission under s.392 of the Act in considering whether reinstatement was
inappropriate. The Appellant’s contention ignores the two stage process within s.390 of the
Act of determining whether reinstatement is inappropriate, as one of the two conditions for
making an order for compensation. Consideration of the adequacy of compensation which
could be ordered consequent upon the effect of the compensation cap in s.392(5) of the Act in
determining whether reinstatement was inappropriate would frustrate the intended purpose of
the statutory cap where the reinstatement was found to be inappropriate and compensation
was found to be appropriate. Upon those conditions being met, the Commission is required to
determine compensation in accordance with s.392. We are not persuaded that the Deputy
President erred in finding that the adequacy or otherwise of any compensation order is not a
matter that should be taken into account in assessing whether an order for reinstatement is
appropriate.
Ground 22—error in finding that the “relationship of trust and confidence between Barwon
Health’s managers” could not be repaired
[48] The Appellant submitted that the Deputy President erred in his conclusion at
paragraph [106] of his decision as follows:
“‘The relationship of trust and confidence between Barwon Health’s managers
responsible for Dr Colson along with the management of the Department and
Dr Colson has broken down and the evidence strongly points to a conclusion that the
relationship cannot be repaired making ongoing employment unworkable.’
as;
(a) the finding is inconsistent with the successful reinstatement of Dr Colson
pursuant to the order at first instance:
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(b) the finding is inconsistent with the evidence before the Deputy President which
was only of a breakdown in the relationship of trust and confidence with a single
manager responsible for Dr Colson, being Dr Tomlinson, and there was no basis
for concluding that even that relationship could not be repaired; and
(c) even if there had been any loss of trust and confidence, it ought not have been
determinative of the appropriateness of reinstatement, as it would not be a loss
of trust and confidence which would have an effect ‘on the operations of the
workplace’ in accordance with the test correctly stated at [22].”37
[49] This Full Bench is not satisfied that the finding of the Deputy President reflects error.
The finding complained of is taken from the Deputy President’s final conclusion on the
question of whether reinstatement is inappropriate in the circumstances of termination of the
Appellant’s employment:
“Although this matter is finely balanced and the significant consequences for Dr Colson
in not being reinstated has weighed heavily on me, I am satisfied, based on the totality
of the evidence, that reinstatement in this case is inappropriate. The relationship of
trust and confidence between Barwon Health’s managers responsible for Dr Colson
along with the management of the Department and Dr Colson has broken down and the
evidence strongly points to a conclusion that the relationship cannot be repaired
making ongoing employment unworkable. This is not outweighed by the consequences
of no order of reinstatement for Dr Colson.” 38
[50] This appeal ground involves a challenge to subsidiary findings on the evidence in
relation to a range of matters considered by the Deputy President from paragraphs [26] to
[105] of his decision and ultimately to the balancing of those subsidiary findings by the
Deputy President in reaching his ultimate finding. The Appellant contends that the finding
that the relationship had broken down is simply a reflection of the tense relationship between
the Appellant and Dr Tomlinson and that even if there had been an irreparable breakdown in
trust and confidence, that breakdown forms no impediment to reinstatement. The submission
relies on propositions directed to a small part of the argument and evidence before Deputy
President Gostencnik. Some of the propositions reflect other alleged errors which this Full
Bench has found, not to be substantiated.
[51] When the full range of evidence and findings in paragraphs [26] to [105] of the
Deputy President’s decision is considered, it is plain that the ultimate conclusion in paragraph
[106] and the balancing of the various considerations leading to that conclusion is supported
by the evidence. We have dealt with the Appellant’s proposition that the reinstatement of the
Appellant following the decision of Commissioner Roe was “successful” in our decision in
relation to ground 9 (above). The proposition that the relationship breakdown between the
Appellant and Dr Tomlinson is simply a reflection of the tense relationship is not supported
by the Deputy President’s finding that “the rational views expressed by Dr Tomlinson about
the relationship can be described as merely tensions in Dr Colson’s dealings with
management”.39 The proposition that even if there has been an irreparable breakdown in trust
and confidence that breakdown forms no impediment to reinstatement and is not supportable
on the evidence.
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[52] The Appellant has not provided any proper basis for challenging the ultimate
conclusion of the Deputy President that reinstatement in this case was inappropriate. We are
not persuaded that the Deputy President’s conclusion at paragraph [106] reflects error.
Grounds 4 and 5—finding of the Appellant’s explanation as “disingenuous”, which damaged
trust and confidence
[53] The Appellant contended that the suggestion in paragraph [33] of the Deputy
President’s decision that the Appellant’s explanations on 28 March 2012 and 14 May 2012
constituted “a disingenuous attempt to explain his actions” was a conclusion which was not
open to the Deputy President. He submitted that the finding is inconsistent with the finding at
paragraph [32] that the Appellant was not being dishonest and, even if it could be suggested
that the Appellant was attempting to put his actions “in the best possible light”, this ought not
to have been the subject of criticism by the Respondent. The Appellant submitted that there
was no basis to find, in any case, that a disingenuous response affected trust and confidence in
a way which impacted on the workplace and that the response could not have damaged the
relationship given the Appellant’s later acceptance of billing procedures.
[54] We see no substance in these appeal grounds. The Deputy President was invited to
make a finding that the Appellant had been dishonest in his explanations on 28 March 2012
and 14 May 2012. He declined to do so. However, he found that the Appellant was
disingenuous in the sense that he was not being straightforward or candid. There is no
inconsistency between the two findings. A disingenuous explanation rather than a dishonest
response provided a lesser rationality to the lack of trust and confidence of managers under
whose supervision the Appellant worked. However, having regard to the evidence, the Deputy
President was entitled to find that the disingenuous explanations on 28 March 2012 and
14 May 2012 supported the broader evidence in relation to trust and confidence impacting on
the workplace. Further, the later acceptance of the billing procedures would not in itself
remove the impact of the statements on the trust and confidence, as one of reasons for a lack
of trust and confidence was found to exist amongst the Appellant’s managers by the Deputy
President, which was rationally based.
Ground 6—distinction between “double dipping” and “rounding up part units”
[55] The Appellant submitted that the Deputy President erred in failing to maintain the
distinction between the two concepts in paragraph [36] of his decision.
[56] It is not apparent that the finding of the Deputy President that the explanation given by
the Appellant in his position statement and in evidence before Commissioner Roe on this
point in relation to an email of 22 December 2011 goes to a distinction between “double
dipping” and “rounding up part units”. We are not persuaded that the conclusion in paragraph
[36] reflects error on the part of the Deputy President.
Ground 7—The Appellant’s alleged “obstinacy”
[57] The Appellant submitted that the Deputy President erred in finding that reinstatement
is not appropriate by taking into account a finding as to the Appellant’s “obstinacy” in
continuing to insist that he was not given a billing directive on 22 December 2011,
notwithstanding findings of the First Full Bench. The Appellant contended that what the
[2014] FWCFB 1949
13
Deputy President describes as “obstinacy” was nothing more than the Appellant maintaining
that he had given truthful evidence at first instance.
[58] The relevant finding is as follows:
“The question of whether, and if so, to what degree, an employee’s obstinacy is relevant
in assessing its impact on trust and confidence will necessarily vary in every case.
However, in this case I am satisfied that Dr Colson’s obstinacy is a relevant factor in
assessing whether and to what extent there has been a loss of trust and confidence,
whether that relationship can be repaired to the point of workability and whether there
is a rational basis for the views expressed by the managers responsible for Dr Colson
about the status of that relationship.”40
[59] In paragraph [40], when read in context, the Deputy President was addressing the
submission of the Respondent that in continuing “to maintain, in effect, that he was right and
that the Full Bench and Drs Tomlinson and Gordon are wrong, of itself illustrates that
Dr Colson cannot work under the direction and supervision of Drs Tomlinson and Gordon”.41
The Deputy President did not accept the proposition that the Appellant’s adherence to his
position, notwithstanding the First Full Bench findings, was a basis in itself for finding that
reinstatement was inappropriate. Rather, his finding was concerned with the effect on trust
and confidence and the rationality of the views of managers.
[60] In our view the adherence of the Appellant to his position—the “obstinacy”—is
relevant to assessing whether there has been a loss of trust and confidence and whether the
relationship can be restored. This is especially so to the extent that it provides some support to
the rationality of the Respondent’s manager’s view that the relationship of trust and
confidence between the parties has been destroyed, applying the approach in Perkins v Grace
Worldwide (Aust) Pty Ltd42 that it is appropriate to consider the rationality of any attitude
taken by a party. We see no error in the Deputy President finding that the Appellant’s
“obstinacy is a relevant factor in assessing whether and to what extent there has been a loss of
trust and confidence, whether that relationship can be repaired to the point of workability and
whether there is a rational basis for the views expressed by the managers responsible for
Dr Colson about the status of that relationship”.43
Ground 8—The Appellant has a “problem working with Drs Tomlinson and Gordon”
[61] The Appellant submitted that, at paragraph [50], the Deputy President erred in taking
into account his own view, that the Appellant had a “problem” working with Drs Tomlinson
and Gordon and rejecting the Appellant’s evidence that he had “no problem” working with
those two colleagues.
[62] In that section of his decision,44 the Deputy President expressly considered the
evidence of the Appellant, which was relied on in this appeal, and a range of evidence which
suggested otherwise:
the wide distribution and content of the letter from the Appellant of 23 March 2012
which contained unwarranted personal attacks on the Appellant’s managers including
Dr Tomlinson, and was circulated with the intent of damaging their reputations;
a document prepared by the Appellant described as minutes of a disciplinary meeting
occurring on 14 May 2012, which the Deputy President found to be evidence that the
[2014] FWCFB 1949
14
Appellant did not have a high regard for Drs Tomlinson and Gordon, with the
Appellant accusing Dr Tomlinson of “setting him up, of fabricating dismissal grounds,
of bullying and dysfunctional behaviour”, and accusing Dr Gordon of seeking to
damage his employment security in retaliation for a whistleblower complaint made by
the Appellant;
allegations by the Appellant against Dr Gordon during the proceedings before
Commissioner Roe;
evidence that the Appellant continued to maintain that Dr Tomlinson and through him,
the Respondent, dismissed him in retaliation for the whistleblower complaint made in
2008; and
evidence that the Appellant believed Drs Tomlinson and Gordon were untruthful.
[63] This Full Bench is satisfied that, having regard to the evidence as a whole, the Deputy
President was entitled to find that the Appellant had problems working with Drs Tomlinson
and Gordon. His reasoning and his conclusion at paragraph [50] discloses no error.
Ground 10—commitment to abide by policies is not “beside the point”
[64] The Appellant submitted that, at paragraph [57], the Deputy President erred in
accepting the commitment of the Appellant to “abide by the policies and procedures” of the
Respondent, but says “in some respects this commitment is beside the point”.
[65] In paragraph [57], the Deputy President found that:
“In some respects this commitment is beside the point, although I do not discount it in
my considerations. The issue is whether management has the trust and confidence in
Dr Colson that he will carry out its directions in the future. For Dr Tomlinson’s part,
he does not.”
[66] The Deputy President accepted that the Appellant’s commitment to abide by the
Respondent’s policy was a relevant consideration in determining whether reinstatement was
inappropriate. To the extent that the evidence as a whole supported a finding that there was a
rational basis to the view of the Appellant’s managers that they could no longer trust the
Appellant, the issue being addressed by the Deputy President at that point of his decision, his
observation that the commitment was beside the point “in some respects”, read in context, is
correct.
[67] We are not persuaded that the Appellant has established error on the basis of ground
10 in his appeal.
Ground 11—errors in taking into account Dr Gordon’s evidence
[68] The Appellant submitted that the Deputy President erred at paragraphs [58] and [59] in
taking into account evidence given by Dr Gordon at first instance, in circumstances where he
was not called to give evidence before the Deputy President, and that his evidence before
[2014] FWCFB 1949
15
Commissioner Roe lacked the perspective of the experience of the parties during the interim
reinstatement period.
[69] This appeal ground has no basis. The Deputy President was required to determine
remedy having regard to all of the evidence in the matter—the evidence before Commissioner
Roe and the additional evidence before him in relation to relevant factual matters after the
decision of Commissioner Roe—and findings as to relevant factual matters by Commissioner
Roe, which were not disturbed on appeal, and findings as to relevant factual matters by the
First Full Bench. The First Full Bench remitted the matter to the Deputy President to provide
an opportunity for the parties to lead further evidence as to the circumstances since the
Commissioner’s decision and to make submissions on the basis of its conclusions regarding
the valid reasons for the dismissal. It was not remitted for determination of remedy by
consideration of the additional evidence and submissions only. There is no basis for the
proposition that the Deputy President erred in taking into account evidence given by
Dr Gordon at first instance.
Ground 12—evidence does not “merely shows that four individuals have a problem with
Dr Colson’s employment”
[70] The Appellant submitted that the Deputy President erred in not accepting that a
passage from the cross-examination of Mr P Watson, the Respondent’s Executive Director of
Surgical Services, “merely shows that four individuals have a problem with Dr Colson’s
employment”.
[71] The relevant conclusion of the Deputy President was:
“I do not accept that the above exchange merely shows that four individuals have a
problem with Dr Colson’s employment. To come to such a view would require one to
ignore all of the evidence given by Mr Watson and his colleagues.”45
[72] We accept that the cross-examination extracted, in itself, does not provide evidence as
to the nature of the problem the managers have with the Appellant. The extracted evidence46
added nothing to the proposition that “the relationship had broken down irretrievably”.
[73] However, it is clear that the Deputy President’s conclusion at paragraph [64] is that the
Appellant’s proposition that the evidence was “merely that four individuals have a problem”
with his employment is unsustainable in light of the evidence of the relevant individuals as a
whole and the evidence as to the rationality of their view that the relationship had broken
down irretrievably. Whilst the particular extract from the evidence of Mr Watson is in itself
consistent with the Appellant’s proposition, the evidence as a whole is not. Contrary to the
Appellant’s submissions, the evidence before the Deputy President on the “breakdown” of the
relationship extended well beyond assertions made by Mr Watson and Dr Tomlinson about no
longer having trust and confidence in the Appellant.
[74] Even if the first sentence of paragraph [64] is wrong, in isolation, it does not reflect a
significant error of fact. Read in context, the conclusion of the Deputy President went to the
evidence as a whole and his conclusion that the evidence went no further than identifying that
four individuals have a problem with the Appellant’s employment. This ground of appeal is
unsustainable in light of the evidence as a whole and reflects no error.
[2014] FWCFB 1949
16
Ground 13—finding concerning Drs Tomlinson and Gordon having little confidence that a
professional working relationship could be re-established
[75] The Appellant submitted that the finding of the Deputy President at paragraph [66]
that “each have little or no confidence that a professional working relationship as between
managers and Dr Colson can be re-established and maintained”47 is not open in light of
Dr Tomlinson’s apparent willingness to facilitate congenial, professional interaction with the
Appellant, Dr Gordon’s absence from the witness box and the limited contact between the
Appellant and Drs Tomlinson and Gordon during the course of the Appellant’s work.
[76] This ground repeats propositions raised and considered by us in the context of grounds
3, 9 and 11 above. For the reasons there expressed, we find that ground 13 discloses no error.
Ground 14—failing to take into account evidence from other staff
[77] Deputy President Gostencnik found that:
“The evidence shows the high regard in which Dr Colson is held in the discharge of the
duties for which he is employed and this is an important consideration in determining
whether reinstatement is appropriate.”48
[78] The Appellant submitted that, although the Deputy President stated that he disagrees
with the contention that such evidence should be given little weight, in reality he attached no
real significance to this consideration.
[79] This appeal point goes to weight, in which case on appeal, we should be slow to
interfere with the decision of the Deputy President on a ground which involves only a
conflicting assessment of a matter of weight.49 We are not satisfied that there is any basis for
the proposition that the Deputy President attached no weight (or insufficient weight) to this
consideration.
Ground 15—submission should have been accepted as to the Appellant’s “trepidation in his
dealings with management”
[80] The Appellant submitted that during the period of reinstatement he had been reported
for being away from the workplace without authority by Mr Watson, who observed the
Appellant away from the workplace when he was himself away from the workplace running a
private errand. The Appellant submitted that, whilst the Deputy President records that the
incident “reflects poorly on both parties”,50 he was wrong to then accept the incident as an
argument against reinstatement by his view that “it does underscore the suspicion and lack of
trust” between the parties.
[81] No error is disclosed in the Deputy President’s conclusion that the incident and its
aftermath—a request to the Appellant to explain his absence and the Appellant’s response—
underscored the suspicion and lack of trust between the parties, being consistent with other
evidence as to such suspicion affecting trust.
[2014] FWCFB 1949
17
Ground 16—dental injury letter being “unnecessarily critical and rude”
[82] The Appellant submitted that the Deputy President erred in finding that a Department
wide email distributed by the Appellant, in response to a July 2013 email circulated on
instructions from Dr Tomlinson attaching a copy of an updated anaesthetic dental injury
procedure, was “unnecessarily critical and rude”.51
[83] This Full Bench is not persuaded that this conclusion reflects error. The Deputy
President considered the content of the email, noting that it contained “some constructive
suggestions” but also contained “hyperbole” and sarcastic comment.52 His conclusion that the
email was “unnecessarily critical and rude” was available to him and reflects no error.
Ground 17—letter to the Public Sector Standards Commissioner
[84] The Appellant submitted that the Deputy President erred in having regard to the
content of his letter of 29 August 2013 to the Public Sector Standards Commissioner, which
was never properly explored in evidence before him. He submitted, in any event, that the
Appellant’s pursuit of his complaint with the Public Sector Standards Commissioner cannot
be said to bear upon whether the relationship of trust and confidence had been damaged in a
way which would affect the operations of the workplace.
[85] The Deputy President found that the fact that the Appellant “made a complaint about
his employment to the Public Sector Standards Commissioner” is not a matter that should be
taken into “account when determining whether reinstatement is appropriate”,53 and found that
the making of baseless statements within that complaint was relevant to the “assessment of
whether there is a workable relationship of trust and confidence capable of being restored”
and in his “assessment of the validity and rational basis of the views” held by the
Respondent’s managers about the relationship.54
[86] The Deputy President was entitled to have regard to the letter, which had been
admitted into the proceedings without objection, on its face for the purpose stated in his
decision. Either party had the opportunity to apply to recall the Appellant, as a witness, if they
wished to bring evidence from him in relation to the letter beyond its terms. There was no
error in the Deputy President having regard to the contents of the letter is assessing the
question of trust and confidence and the validity and rational basis of the views held by the
Respondent’s managers about the relationship.
Ground 18—error in concluding “no ‘tension between’ the finding of unfairness” and
“reinstatement being inappropriate” and Ground 19—failure to apply finding re likelihood of
relocation
[87] The Appellant submitted that the Deputy President erred in finding that there “is no
tension between the [First] Full Bench’s conclusion that the dismissal of Dr Colson was harsh
and any conclusion by me that reinstatement is inappropriate”.55 In that respect, the First Full
Bench concluded that the termination of employment:
“. . . was harsh, particularly having regard to his 14 years of service and the significant
impact of the termination on his reputation and ability to find suitable employment.”56
[2014] FWCFB 1949
18
[88] The Appellant also submitted that the Deputy President erred in affording no weight,
or sufficient weight, to his finding that:
“There is also very little doubt that the prospect of Dr Colson obtaining employment as
an anaesthetist in the region is extremely low. I accept that if he desires to continue his
career as an employed anaesthetist, this will likely require Dr Colson to look for work
outside of the region and, depending on where he secures such work, it may require
that he and his family relocate, with all the attendant inconvenience, expense and
dislocation accompanying relocation. These are factors that weigh heavily on my mind
and lend support to a reinstatement order.”57
[89] There is no substance to this appeal point. The Deputy President considered this as a
clearly relevant consideration of his decision.58 It is clear from his conclusion that Deputy
President Gostencnik gave significant weight to the prospect of the Appellant obtaining
employment as an anaesthetist in the region.59
[90] In his ultimate conclusion regarding reinstatement, at paragraph [106], the Deputy
President had regard to the significant consequences for the Appellant in not being reinstated;
they weighed heavily in his decision.
[91] To the extent that these grounds go to weight,60 we find that the proposition that the
Deputy President attached no weight (or insufficient weight) to these significant consequences
for the Appellant in not being reinstated is unsustainable.
[92] We see no basis in the proposition that the decision of the Deputy President in relation
to reinstatement was inconsistent with the reasons of the First Full Bench in finding that the
termination was harsh. In considering remedy the Deputy President was required to consider
all matters relevant to the question of whether reinstatement was inappropriate, not simply his
period of service and impact of the termination on the Appellant’s reputation and ability to
find suitable employment. The Act clearly contemplates circumstances in which a termination
is harsh, unjust and/or unreasonable in which reinstatement would be inappropriate. The
Deputy President did consider all matters relevant to the question of whether reinstatement
was inappropriate. His ultimate conclusion balanced the range of considerations which arose
from the evidence, including the impact of the termination on the Appellant’s reputation and
ability to find suitable employment, to which he attributed significant weight.
Ground 21—five year maximum term contract
[93] The Appellant submitted that the Deputy President erred in accepting that the
Appellant’s current employment was “subject to a five-year maximum term contract”61
because there was an inadequate evidentiary foundation to make the finding.
[94] The Deputy President expressly placed no weight on the “relatively short period that
would be left to run on the contract” as a factor against an order for reinstatement.
Accordingly, the Deputy President’s finding as to the remaining period of the Appellant’s
contract had no bearing on the ultimate decision that reinstatement was inappropriate.62
[95] Even if this was an error, on the basis suggested by the Appellant (without deciding
that question), it is not a significant error.
[2014] FWCFB 1949
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Conclusion
[96] The decision of Deputy President Gostencnik that reinstatement in this case is
inappropriate was reached, on balance, following an extensive and careful consideration of
the competing considerations and evidence in relation to them. This Full Bench is not
satisfied that the Appellant has established an error of law or significant error of fact. Whilst
we accept that this matter is of extreme significance to both the Appellant and the
Respondent, in the absence of error, we are not satisfied that it raises matters of public interest
which would support permission to appeal.
[97] Permission to appeal is refused. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
R Millar of Counsel for the Appellant.
M McDonald SC and J Tracey of Counsel for the Respondent.
Hearing details:
2014.
Melbourne:
February 14.
Printed by authority of the Commonwealth Government Printer
Price code C, PR548908
1 [2013] FWC 8734.
2 [2013] FWC 766.
3 [2013] FWCFB 4515.
4 Exhibit RA 1 at para 12, in matter U2012/10440 before Deputy President Gostencnik.
5 [2013] FWCFB 4515.
6 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others (2000) 203 CLR 194.
7 (1936) 55 CLR 499 at 504–505.
8 Written submissions of the Appellant, at para 6.
9 ibid. at para 7.
10 [2013] FWC 8734 at para 25.
11 ibid. at para 101.
12 ibid. at para 106.
13 [2013] FWCFB 4515 at para 159.
14 ibid. at para 130.
15 Written submissions of the Appellant at para 4.
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb4515.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb4515.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb4515.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb4515.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc766.htm
[2014] FWCFB 1949
20
16 Notice of Appeal application at paras 1–2.
17 [2013] FWC 8734 at para 12.
18 ibid. at paras 12 and 15.
19 ibid. at para 103.
20 ibid. at paras 12–16.
21 Section 390 of the Fair Work Act 2009 (the Act).
22 Section 390(3) of the Act.
23 [2013] FWC 8734 at paras 12 and 15.
24 ibid. at para 9.
25 ibid. at para 12.
26 ibid. at para 106, expressed as “not appropriate” in para 8.
27 [2010] FWAFB 8753.
28 [2013] FWC 8734 at para 22.
29 ibid. at para 54.
30 ibid. at para 71.
31 ibid. at para 22.
32 ibid. at para 53.
33 Transcript at para 8507, in matter U2012/10440 before Deputy President Gostencnik.
34 [2013] FWC 8734 at paras 51–53.
35 Exhibit RR 7 at para 6, in matter U2012/10440 before Deputy President Gostencnik.
36 [2013] FWC 8734 at para 103.
37 Notice of Appeal application at para 22.
38 [2013] FWC 8734 at para 106.
39 ibid. at para 54.
40 ibid. at para 40.
41 ibid. at para 35.
42 (1997) 72 IR 186.
43 [2013] FWC 8734 at para 40.
44 ibid. at paras 41–50.
45 ibid. at para 64.
46 ibid. at para 63.
47 ibid. at para 66.
48 ibid. at para 71.
49 Gronow v Gronow (1979) 144 CLR 513 at 519–520, per Stephen J.
50 [2013] FWC 8734 at para 75.
51 ibid. at para 79.
52 ibid. at para 78.
53 ibid. at para 87.
54 ibid. at para 88.
55 ibid. at para 96.
56 [2013] FWCFB 4515 at para 157.
57 [2013] FWC 8734 at para 101.
58 ibid. at paras 95–101.
59 ibid. at para 101.
60 Gronow v Gronow (1979) 144 CLR 513 at 519–520, per Stephen J.
61 [2013] FWC 8734 at para 105.
62 ibid. at para 105.
