1
Fair Work Act 2009
s.604—Appeal of decision
Thinh Nguyen
(C2014/5360)
Thanh Le
(C2014/5361)
v
Vietnamese Community in Australia t/a Vietnamese Community Ethnic
School South Australia Chapter
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER WILSON
MELBOURNE, 21 OCTOBER 2014
Unfair dismissal appeal - s.394 Fair Work Act 2009 (Cth) - remedy - reinstatement - loss of
trust and confidence - public interest not enlivened - permission to appeal refused
Introduction
[1] Thinh Nguyen and Thanh Le (the Appellants) were dismissed from their employment
with Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South
Australian Chapter (the Respondent) on 3 February 2014 and subsequently lodged an
application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)
(the FW Act)
[2] On 30 May 2014 Senior Deputy President O’Callaghan dismissed a range of
jurisdictional objections to the applications1 and the merits of the applications were the
subject of a determinative conference on 24 June 2014. At the determinative conference the
Respondent conceded that the Appellants had been unfairly dismissed, within the meaning of
s.387 of the FW Act. We note that this concession was made by counsel on behalf of the
Respondent, who had been granted permission to appear pursuant to s.596(2). On the basis of
the Respondent’s concession and the information before him his Honour found that the
Appellants had been unfairly dismissed and that the Commission’s discretion to order a
remedy was enlivened.2 In a decision issued on 8 July 2014 the Senior Deputy President
[2014] FWCFB 7198
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 7198
2
concluded that reinstatement was inappropriate and made an order for compensation.3 The
Appellants have appealed his Honour’s decision and that is the matter before us.
[3] An appeal under s.604 of the FW 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.4 There is no right to appeal, rather an appeal may only be made with
the permission of the Commission.
[4] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the FW
Act. Section 400 (1) provides that permission to appeal must not be granted from such a
decision unless the Commission considers that it is in the public interest to do so. Further, in
such matters appeals on a question of fact may only be made on the ground that the decision
involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as ‘a stringent one’.5 The Commission must not grant permission to
appeal unless it considers that it is ‘in the public interest to do so’.
[5] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment6. In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“... the public interest might be attracted where a matter raises 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.”7
[6] As we have mentioned the appeal concerns his Honour’s finding that reinstatement
was inappropriate in the circumstances. In the proceedings at first instance the Appellants -
who had been employed as teachers at the Respondent’s school, for many years - sought
orders for reinstatement and the payment of lost remuneration. The Respondents opposed
reinstatement, submitting that it was neither practical nor appropriate on the basis that, among
other things, the relationship between the parties had been so damaged that it could not be
restored and changing teachers part way through the year would be detrimental to the
students.
[7] Before turning to his Honour’s decision we propose to set out the relevant legislative
provisions and to consider the authorities relevant to the Commission’s determination of the
remedy for an unfair dismissal.
[8] Remedies for unfair dismissals are dealt with in Division 4 of Part 3-2 of the FW Act
(ss.390-393). Section 390 is the relevant provision for present purposes, it states:
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:
[2014] FWCFB 7198
3
(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).
(2) The FWC may make the order only if the person has made an application under
section 394.
(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.
Note: Division 5 deals with procedural matters such as applications for remedies.
[9] The question whether to order a remedy in a case where a dismissal has been found to
be unfair remains a discretionary one. No party in the proceedings at first instance suggested
that his Honour exercise his discretion not to order a remedy at all. Indeed the Respondent
was not opposed to an appropriate amount of compensation being awarded.8 It is implicit
from his Honour’s decision that he concluded that a remedy was appropriate in the
circumstances, the issue became the form of the remedy.
[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair
dismissal as the discretion to order a remedy of compensation may only be exercised if the
Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of
Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies
if a dismissal is found to be unfair, with an emphasis on reinstatement”.9 We would observe
that to describe reinstatement as the ‘primary remedy’, is to simply recognise that
reinstatement is the first, perhaps even the foremost, remedy under the Act.10 The relevant
question in determining whether to grant the remedy of reinstatement of an employee in
relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is
appropriate in the particular case.11
[11] Before turning to the authorities relevant to this question we propose to briefly set out
the legislative development of the remedy provisions pertaining to unfair dismissal relief. In
the federal context remedies for ‘unfairly’ dismissed employees first commenced on 30
March 1994 when Part VIA of the Industrial Relations Act 1988 (IR Act) commenced. The
jurisdiction to order a remedy was conferred on the Federal Court12 and section 170EE (2) of
the IR Act then provided:
“If the Court thinks, in respect of a contravention of a provision of this Division (other than
section 170 DB or 170 DD) constituted by the termination of employment of an employee,
that the reinstatement of the employee is impracticable, the Court may, if it considers it
appropriate in all the circumstances of the case, make an order requiring the employer to pay
employee compensation of such amount as the Court thinks appropriate.” (Emphasis added).
[12] On 25 November 1996 the IR Act was renamed the Workplace Relations Act 1996
(WR Act) and from 31 December 1996 the unfair dismissal scheme was amended such that
remedies in respect of a harsh, unjust or unreasonable dismissals were thereafter dealt with by
the Australian Industrial Relations Commission (AIRC) by conciliation and if needed, by
arbitration.13 Section 170CH(3) of the WR Act relevantly provided that the AIRC may make
[2014] FWCFB 7198
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an order requiring the employer to reinstate the employee if it “considers it appropriate”.
Section 170CH(6) of the WR Act provided as follows:
“If the Commission thinks that the reinstatement of the employee is inappropriate, the
commission may, if the commission considers it appropriate in all circumstances of the case,
make an order requiring the employer to pay the employee an amount ordered by the
commission in lieu of reinstatement.” (Emphasis added).
[13] The remedy provisions of the WR Act are to the same effect as section 390 of the Act.
Both schemes emphasise reinstatement as the primary remedy with compensation available as
a remedy only when reinstatement is inappropriate and the only relevant question as to
remedy under both schemes is whether reinstatement is appropriate.
[14] The earlier IR Act provision required a consideration of the ‘practicability’ of
reinstatement, whereas the latter WR Act provisions (at s.390 of the FW Act) focussed
attention on whether reinstatement of the employee is ‘appropriate’ and permitted orders of
compensation to be made only if the Commission thought that reinstatement is
‘inappropriate’.
[15] In Australia Meat Holdings Pty Ltd v McLauchlan14 a Full Bench of the AIRC gave
consideration to the differences in the provisions of the IR Act and the WR Act and concluded
that “a consideration of appropriateness of reinstatement involves the assessment of a broader
range of factors than practicability . . . [I]n considering whether to order the reinstatement the
Commission is not confined to an assessment of the practicability of such an order are that
must decide whether such an order is appropriate”15. We agree with this observation.
[16] We now turn to the relevant question concerning the appropriateness of reinstatement.
[17] Reinstatement might be inappropriate in a whole range of circumstances, for example
if such an order would be futile such as where reinstatement of an employee would almost
certainly lead to a further termination of the employee’s employment because the employer
has since discovered that the employee engaged in an act of serious misconduct which was
only discovered after the employee’s termination16 or if the employer no longer conducts a
business into which the employee may be reappointed.17 The fact that the employer has filled
the position previously occupied by the dismissed employee would rarely, of itself, justify a
conclusion that reinstatement was not appropriate. As a Full Bench of the AIRC observed in
Smith v Moore Paragon Australia Ltd18,:
“It will often, if not typically, be the case that the position occupied by an applicant for relief
under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or
no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion
that an order for reinstatement was not ‘appropriate’. To adopt such an approach would tend
to defeat the remedial purpose of the legislation.”
[18] A similar observation was made by Northrop J in Johns v Gunns Ltd19
[19] Reinstatement may be inappropriate if an employee is incapacitated because of illness
or injury. The weight to be accorded to ongoing incapacity when considering whether
reinstatement is appropriate will depend upon all of the circumstances of the case.20
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[20] The most common argument advanced in support of the proposition that reinstatement
is inappropriate is the proposition, variously expressed, that there has been a loss of trust and
confidence such that it would not be feasible to re-establish the employment relationship.
[21] In Perkins v Grace Worldwide (Aust) Pty Ltd21 the Full Court of the Industrial
Relations Court considered the effect of a loss of trust and confidence on the question of the
“practicability” of a reinstatement remedy and said:
“Trust and confidence is a necessary ingredient in any employment relationship... So we
accept that the question whether there has been a loss of trust and confidence is a relevant
consideration in determining whether reinstatement is impracticable, provided that such loss of
trust and confidence is soundly and rationally based.
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 a loss of confidence in the
employee.
Each case must be decided on its own merits. There may be cases where any ripple on the
surface of the employment relationship will destroy its viability. For example the life of the
employer, or some other person or persons, might depend on the reliability of the terminated
employee, and the employer has a reasonable doubt about that reliability. There may be a case
where there is a question about the discretion of an employee who is required to handle highly
confidential information. But those are relatively uncommon situations. In most cases, the
employment relationship is capable of withstanding some friction and doubts. Trust and
confidence are concepts of degree. It is rare for any human being to have total trust in another.
What is important in the employment relationship is that there be sufficient trust to make the
relationship viable and productive. Whether that standard is reached in any particular case
must depend upon the circumstances of the particular case. And in assessing that question, it is
appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the
employer believed to have been guilty of wrongdoing. The requirement may cause
inconvenience to the employer. But if there is such a requirement, it will be because the
employee’s employment was earlier terminated without a valid reason or without extending
procedural fairness to the employee. The problems will be of the employer’s own making. If
the employer is of even average fair-mindedness, they are likely to prove short-lived.
Problems such as this do not necessarily indicate such a loss of confidence as to make the
restoration of the employment relationship impracticable.”22
[22] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was
decided under the IR Act, the Court’s observations reproduced above remain relevant to the
question of whether reinstatement is appropriate in a particular case.23
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[23] In speaking of ‘trust and confidence’ in this context we are concerned with that which
is essential to make an employment relationship workable. It is not to be confused with an
implied term in a contract of employment of mutual trust and confidence, the existence of
which was recently eschewed by the High Court in Commonwealth Bank of Australia v
Barker.24
[24] While it may be accepted that trust and confidence is a necessary ingredient in any
employment relationship, it would be wrong to assume that it is the sole criterion or even a
necessary one to determine whether or not reinstatement is appropriate.25 As Justice Gray
observed in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd
(O’Connor) the development of the law relating to trust and confidence in the employment
relationship commenced when that relationship invariably involved a close personal
relationship between the employer and employee, but with the emergence of corporate
employers, the importance of trust and confidence in the employment relationship has
diminished.26
[25] Justice Gray’s remarks were considered by Deputy President Gostencnik in Colson v
Barwon Health27 in which the Deputy President observed:
“I do not take his Honour’s comments to mean that trust and confidence as an element of the
employment relationship is no longer important. It is merely recognition that in many cases it
will be important to have regard to the totality of the employment, and that in the case of a
corporate employer, the loss of trust and confidence in the employee will be by a manager or
managers of the corporate employer. But as his Honour observed, in such cases the “critical
question must be what effect, if any, a loss of trust by the manager in an employee is likely to
have on the operation of the workplace concerned”.28 It is important to understand that his
Honour’s observations were made in the context of an interlocutory application while His
Honour was considering “balance of convenience” arguments against reinstatement on an
interlocutory basis. His Honour’s observation about the effect of the shift from a personal to a
corporate employment relationship were made as an introduction to his conclusion that the
respondent did not provide any evidence on the “critical question” as identified. So much is
clear from the following passage:
. . . It might be more significant, for instance, to know the name of Mr Voss’s
immediate supervisor and to know the attitude of that person towards him. If the
immediate supervisor had no trust in Mr Voss, it might also be relevant to know
whether it would be possible to place Mr Voss in another part of the workplace, under
another supervisor, who did have such trust. It would also be relevant to know what
effect any lack of trust by any manager or supervisor in a particular employee might
have on the conduct of operations in the workplace. There is no evidence as to any of
these matters.
[43] Resort to an assertion that trust and confidence in a particular person have been
lost cannot be a magic formula for resisting the compulsory reinstatement in
employment of the particular person.”29
In my view, His Honour is merely saying that it is not enough to simply assert that trust and
confidence in an employee has been lost. Where this is relied upon then there must be
evidence from the relevant managers holding that view and an assessment must be made as to
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the effect of the loss of trust and confidence on the operations of the workplace. In short, all of
the circumstances must be taken into account. This seems evident and is hardly controversial.”
[26] Permission to appeal from Deputy President Gostencnik’s decision was refused.30
[27] The following propositions concerning the impact of a loss of trust and confidence on
the question of whether reinstatement is appropriate may be distilled from the decided cases:
Whether there has been a loss of trust and confidence is a relevant consideration in
determining whether reinstatement is appropriate but while it will often be an
important consideration it is not the sole criterion or even a necessary one in
determining whether or not to order reinstatement.31
Each case must be decided on its own facts, including the nature of the employment
concerned. There may be a limited number of circumstances in which any ripple on
the surface of the employment relationship will destroy its viability but in most
cases the employment relationship is capable of withstanding some friction and
doubts.32
An allegation that there has been a loss of trust and confidence must be soundly and
rationally based and it is important to carefully scrutinise a claim that reinstatement
is inappropriate because of a loss of confidence in the employee. The onus of
establishing a loss of trust and confidence rests on the party making the assertion.33
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed.34
The fact that it may be difficult or embarrassing for an employer to be required to
re-employ an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate.35
[28] Ultimately, the question is whether there can be a sufficient level of trust and
confidence restored to make the relationship viable and productive. In making this
assessment, it is appropriate to consider the rationality of any attitude taken by a party.
[29] In the decision subject to appeal his Honour proceeded on the basis that reinstatement
was the primary remedy and set out the parties’ contentions.36 His Honour’s consideration of
whether reinstatement was an appropriate remedy is set out at paragraphs [10]-[17] of his
decision:
[10] I have considered the appropriate remedy in light of the evidence and material
provided at the initial conference and the evidence at this conference. I have had particular
regard to the evidence given by Mrs Le and Mr Nguyen and by Mrs Lan for the School, at the
conference on 24 June 2014.
[11] Mrs Le’s and Mr Nguyen’s desires to be reinstated are both understandable and
significant with particular reference to their standing in the Vietnamese community. It is clear
to me that they have both provided substantial and committed service to the School and the
[2014] FWCFB 7198
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Vietnamese community and that the termination of their employment and subsequent souring
of their relationship with the School is a matter of real and grave concern to them both.
[12] I have adopted the position that, as reinstatement is the primary remedy in the event of
a finding of unfairness the School bears a substantial onus to demonstrate to me that
reinstatement is not appropriate as distinct from undesirable or difficult. In this respect the
observations of the Full Industrial Relations Court decision in Perkins v Grace Worldwide
(Australia) Pty Ltd remain relevant
[30] His Honour then set out the passage from Perkins which appears at paragraph [21]
above.
[13] In adopting an approach consistent with that position I have noted the legislation now
refers to the concept of inappropriate rather than impractical. I do not consider that change
detracts from the relevance of the approach in Perkins and have, in any event, noted that later
decisions of the FWC have also adopted the approach set out in Perkins.37
[14] I have decided that the application of this approach mitigates against the reinstatement
of the applicants. In this regard I am satisfied that continued litigation relative to the
applicants’ underpayment claims is likely and will bring with it continuing ill-will between the
parties. I am also satisfied that the applicants have both confirmed their position that Mrs and
Mr Loc-Lan from the School “breach Work Place Law”, and they were “unlawfully
discriminated”. In these respects, it may be that further legal action establishes that the
applicants are, in fact, correct, but I consider that the likelihood of substantial acrimony
between the parties who hold such firm views represents a circumstance which meets the test
in Perkins.
[15] In reaching this conclusion I have had regard to the manner of communication and
behaviour of both the applicants and representatives of the School in the course of the
conference on 24 June 2014. Again, this observation is made without apportioning fault but
simply on the basis that the relationship appears to me to be so damaged that it cannot be re-
established.
[16] Further factors are also relevant. I am concerned that the reinstatement of the
applicants could disrupt the operations of the School and the delivery of classes to students,
particularly midway through the school year. I am also concerned that the declaration signed
by the School teachers appears to identify the potential for disruption and conflict between the
applicants and other teachers. Again, this statement is made without apportioning any fault in
this respect.
[17] In reaching this conclusion I have had regard to the extent to which the applicants are
concerned at their reputation within the Vietnamese community. I have adopted the position
that this decision may go some way toward addressing the applicants’ concerns but
reinstatement appears to me to be certain to ensure ongoing conflict.”
[31] It is apparent from this extract from his Honour’s decision that he had regard to the
following matters in determining that reinstatement was inappropriate:
(i) the continued litigation relating to the Appellants’ underpayment claims;
[2014] FWCFB 7198
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(ii) his Honour’s observations as to the manner of communication between the
Appellants and the representatives of the School during the course of the
determinative conference;
(iii) the fact that reinstatement could disrupt the operations of the School and the
delivery of classes to students, particularly midway through the school year;
and
(iv) the declaration signed by the other school teachers which appeared to identify
the potential for disruption and conflict between the Appellants and the other
teachers.
[32] The Appellants submit that there was no evidence in support of the proposition set out
at (iii), that is, that reinstatement would be disruptive for the School and its students.
Contrary to the Appellants’ submission this matter was the subject of evidence in the
proceedings at first instance. Ms Lan Han, the School Supervisor, gave evidence in those
proceedings and the following exchange took place during the course of her cross
examination by Ms Le:
“The Interpreter (Ms Le): Now, you say that by reinstate my appointment, there will be some
disruption I’d like to know what I have done or what I would do to interrupt the school if I get
reinstated?
The Interpreter (Ms Lan Han): I didn’t say that there would be a disruption if you have been
reinstated, but there would be a problem. I have to dismiss the other two teachers to have you
back, and if that’s the case I would probably be in the same situation I am right now ...
The Interpreter (Ms Lan Han): To answer Ms Le’s question, I want to - I’ve got two points.
The first point I’d like to make is, you know, culturally when something like this happens,
when someone brings you to court, of course there will be some, you know, conflict. I mean,
we - like, you know, you and I, we are attend meeting here and we don’t even took at each
other, you know, face to face. You don’t even look at my face, let alone working together
after this incident. The second point I’d like to make is, you know, the children have started
school this year. To dismiss two teachers or two replacements and have you reinstated, it
would be a disruption to the children. The first two terms the children have, you know,
something else, have someone else teaching them and then for the last two terms of school,
school terms, if I put someone new in there, then the children, the students, are not used to
that, and in itself a disruption.”38
[33] The Senior Deputy President was entitled to rely on this evidence in support of the
finding he made that reinstatement would be disruptive for the School and its students.
[34] The Appellants’ submissions canvassed a range of other matters but the essence of
their submission is that the decision not to order reinstatement was unfair in circumstances
where the Respondent had acted unlawfully (in unfairly dismissing them), they (the
Appellants) had done nothing wrong and they had been working for the Respondent for a long
time.
[35] The Appellants’ submissions appear to proceed on the basis that reinstatement
automatically follows from a finding of unfair dismissal. This is not correct. There is no right
to reinstatement consequent upon a finding that an applicant has been unfairly dismissed. The
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Commission has a discretion as to whether a remedy will be awarded in a case where a
dismissal has been found to be unfair. Reinstatement will only be awarded if the Commission
is satisfied that it is appropriate to do so.
[36] The matters raised by the Appellants do not persuade us that the Senior Deputy
President erred in his consideration of the question of remedy. There is however one matter
which was raised during the course of oral argument which we wish to deal with. At
paragraph [14] of his decision the Senior Deputy President states that he has had regard to the
underpayment litigation in his consideration of whether reinstatement is appropriate. His
Honour says, at paragraph [14]:
“... I am satisfied that continued litigation relative to the applicants’ underpayment claims is
likely and will bring with it continuing ill-will between the parties. I am also satisfied that the
applicants have both confirmed their position that Mrs and Mr Loc-Lan from the School
‘breach Work Place Law’, and they were ‘unlawfully discriminated’. In these respects, it may
be that further legal action establishes that the applicants are, in fact, correct, but I consider
that the likelihood of substantial acrimony between the parties who hold such firm views
represents a circumstances which meets the test in Perkins.”
[37] In pursuing their underpayment claim the Appellants are exercising a workplace right,
within the meaning of s.341(1)(b) of the FW Act. Part 3-1 of the FW Act prohibits an
employer from taking adverse action against an employee because, relevantly, that employee
exercises a workplace right. It would be incongruous if the exercise of a workplace right
operated as a barrier to reinstatement in an unfair dismissal proceeding in circumstances
where Part 3-1 of the FW Act prohibits an employer from terminating the employment of an
employee who exercises a workplace right.
[38] The fact that the Appellants have pursued an underpayment claim and that this has
given rise to a degree of acrimony between the parties is not a matter which should be taken
into account in determining whether reinstatement is appropriate. It follows that the Senior
Deputy President made an error in his consideration of this issue, in that he took account of an
irrelevant consideration.
[39] However, the fact that the Member at first instance made an error is not necessarily a
sufficient basis for the grant of permission to appeal. 39 As we have mentioned, s.400(1)
provides that permission to appeal must not be granted unless the Commission considers that
it is in the public interest to do so.
[40] While the Senior Deputy President took account of an irrelevant consideration in his
determination of the appropriateness of reinstatement we are not persuaded that, in the
circumstances of this case, such an error enlivens the public interest. It is apparent from his
Honour’s decision that the irrelevant consideration was not the only matter to which he had
regard in deciding that reinstatement was not appropriate. In particular, he had regard to the
fact that reinstatement would be disruptive to the School and the students and, importantly,
his Honour relied on his direct observation of the interaction between the parties during the
determinative conference. On the basis of his observation of the parties his Honour said, at
paragraph [15] of his decision,:
“... the relationship appears to me to be so damaged that it cannot be re-established.”
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[41] His Honour also took into account the declaration signed by 20 of the School’s
teachers and that it identified the potential for disruption and conflict between the Appellant’s
and these teachers.40
[42] It seems to us that - absent the irrelevant consideration - there was a sound and rational
basis for concluding that it was inappropriate to restore the employment relationship. The
damage to the relationship between the parties that was evident to His Honour during the
conduct of the proceedings combined with the potential for conflict between the Appellants
and a significant number of the School’s teachers seems to us to provide proper basis, without
more, for coming to that conclusion. In such circumstances we are not persuaded that his
Honour’s error in having regard to an irrelevant consideration manifests an injustice. In short,
we are satisfied that the outcome would be the same whether or not the irrelevant
consideration was taken into account.
[43] For the reasons given we are not satisfied that it is in the public interest to grant
permission to appeal and accordingly permission to appeal is refused.
PRESIDENT
Appearances:
Mr Nguyen & Mrs Le on their own behalf
Mr Austin, counsel, for the Respondent
Hearing details:
Melbourne;
19 September 2014.
Final written submission received 8 October 2014.
Printed by authority of the Commonwealth Government Printer
Price code (C) PR556511
1 [2014] FWC 3574; Print PR55152
2 [2014] FWC 4314
3 [2014] FWC 4314 and PR552590
4 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2011) 192 FCR 78 at paragraph 43.
6 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining
Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
[2014] FWCFB 7198
12
7 (2010) 197 IR 266 at paragraph 27.
8 Transcript 24 June 2014 at paragraph 183
9 Section 381(1)(c) Fair Work Act 2009 (Cth)
10 Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C; Newtronics Pty
Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Rowley v EDI Rail Pty Ltd [2008]
AIRCFB64; Colson v Barwon Health [2014] FWCFB 1949
11 Regional Express Holdings Limited trading as REX Airlines v Richards [2010] FWAFB 8753 at [23]-[24]; Colson v
Barwon Health [2014] FWCFB 1949 at [30]-[31]
12 The then Australian Industrial Relations Commission could make an award that provided a remedy of a kind that could be
granted by the Court under section 170EE of the IR Act if the parties made an election to have the matter dealt with by
content arbitration; see section 170EC of the IR Act.
13 See generally subdivision B of Division 3 of Part VIA of the WR Act
14 (1998) 84 IR 1
15 Ibid at 17
16 Such discovery might also be relied upon by the employer as a valid reason for the employee’s dismissal which is the
subject of an unfair dismissal remedy application.
17 Chelvarajah v Global Protection Pty Ltd (2004) 142 FCR 296
18 (2004) 130 IR 446 at 452, [15]
19 (1995) 60 IR 258 at 271-271
20 See generally Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [48]-[54]
21 (1997) 72 IR 186 at 191
22 Ibid
23 (1998) 84 IR 1 at 18. Also see IGA Distribution (Vic) Pty Ltd v Cong Nguyen [2011] FWAFB 4070; Colson v Barwon
Health [2014] FWCFB 1949
24 [2014] HCA 32 (10 September 2014)
25 See Tenix Defence Pty Ltd v Galea, PR928494, 11 March 2003; see also Liddell v Lembke (1994) 1 IRCR 466, per Gray J
at 495 and Abbott-Etherington v Houghton Motors Pty Limited (1995) 63 IR 394, per Marshall J at 396-397; Tenix
Defence Pty Ltd v Galea [2003] AIRC 231 (11 March 2003) at [7]-[8]
26 [2000] FCA 627 at [42]
27 [2013] FWC 8734 at [21]-[22]. A Full Bench refused permission to appeal: [2014] FWCFB 1949
28 Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627
29 Ibid.
30 See [2014] FWCFB 1949
31 Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8]
32 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191
33 Ibid.
34 Ibid.
35 Ibid.
36 [2014] FWC 4314 at [8]-[9]
37 See for example Ngyuen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 where this approach was not challenged on
appeal and EDI Rail Pty Ltd v Rowley [2008] AIRCFB 64
38 Transcript of the proceedings on 24 June 2014 paragraphs 424-425 and 444
39 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal &
Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of
Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
40 [2014] FWC 4314 at [16]
