[2015] FWCFB 478
The attached document replaces the document previously issued with the above code on
30 January 2015, amending various typographical errors and correcting the name of the
appellant in paragraph [1].
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 30 January 2015
1
Fair Work Act 2009
s.604 - Appeal of decisions
Ronald Anderson
v
Thiess Pty Ltd
(C2014/6722)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SIMPSON MELBOURNE, 30 JANUARY 2015
Appeal against decision PR555663 and order PR555664 of Deputy President Asbury at
Brisbane on 19 September 2014 in matter number U2013/11148.
Introduction
[1] Mr Ronald Anderson has filed a notice of appeal under s.604 of the Fair Work Act
2009 (Act) in which he seeks permission to appeal and appeals a decision of Deputy President
Asbury issued on 19 September 20141 (Decision). The Decision concerned an unfair
dismissal remedy application which Mr Anderson lodged under s.394 of the Act in relation to
his dismissal from his employment with Thiess Pty Ltd (Thiess) at the Burton Downs Mine
(Mine) in Queensland on 17 June 2013. In summary, the Deputy President found that there
was a valid reason for Mr Anderson’s dismissal but nonetheless determined that dismissal
was harsh and unreasonable, found that it was not appropriate to reinstate Mr Anderson to his
employment with Thiess, and determined that Thiess pay Mr Anderson the amount of
$28,578.68 in compensation. A separate order was issued giving effect to the compensation
decision.2
[2] In his notice of appeal Mr Anderson has appealed the entire decision, notwithstanding
that he succeeded in obtaining a finding that his dismissal was harsh and unreasonable and an
order for the payment of compensation in his favour. He was only unsuccessful in obtaining
the primary remedy of reinstatement. The grounds of his appeal appear primarily to challenge
the Deputy President’s conclusion, made pursuant to s.387(a) of the Act, that there was a
valid reason for his dismissal.
[3] Section 387 sets out a number of matters which a member of the Commission must
take into account when considering whether a dismissal was harsh, unjust or unreasonable.
Section 387(a), which refers to “whether there was a valid reason for the dismissal related to
the person’s capacity or conduct (including its effect on the safety and welfare of other
employees)”, is one of those matters. We do not consider that a finding made in relation to a
matter required by s.387 to be taken into account in itself constitutes a “decision” which is
appealable under s.604; it is only a finding made on the way to reaching a decision. However
[2015] FWCFB 478
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 478
2
if such a finding is a basis upon which a decision is made as to the remedy to be granted or
denied to an applicant, that finding can obviously be challenged in an appeal against such a
decision.
[4] In his written outline of submissions filed in accordance with the Commission’s
directions, Mr Anderson has criticised certain findings that the Deputy President made in the
Decision in support of her decision not to grant the remedy of reinstatement3, and has
contended that “My position remains that I should be reinstated without loss of income,
seniority or standard of accommodation ...”.4 Noting that Mr Anderson is a self-represented
litigant and the Commission is not a court of pleading, we consider that we should treat Mr
Anderson’s appeal as primarily challenging the Deputy President’s decision not to reinstate
him. Additionally Mr Anderson in his outline of submissions challenges a finding which
“militated against reinstatement as well as being a factor in reducing any compensation”.5
That, we think, can be read as a challenge advanced in the alternative to that part of the
Decision concerning the quantum of compensation to be awarded to him. At the hearing of
the appeal, Mr Anderson confirmed that this was the gravamen of his appeal.
Factual background
[5] Mr Anderson commenced employment with Thiess at the Mine on 30 November
2001. For the first ten years of his employment, Mr Anderson worked as a diesel fitter,
primarily in the workshop, at the Mine. His disciplinary and performance record during this
time was unblemished. In mid-2011, he was moved to the role of Workshop Trainer/Assessor,
with the responsibility to ensure that workshop personnel and contractors complied with the
standards prescribed by the Coal Mining Safety and Health Act 1999 (Qld). This position
required Mr Anderson to make extensive use of Thiess’s email system for the first time.
[6] In March 2013 an issue arose about the large number of non-work related emails that
Mr Anderson was sending to Thiess personnel on the Thiess system. Mr Rodney Nichols, the
Maintenance Manager, informally counselled him to stop sending non-work related emails.
[7] On 17 June 2013 Mr Anderson sent an email message via the Thiess system to a large
range of persons including a large number of Thiess personnel. The email message read as
follows:
“Subject: FW: Fwd: Work War 3 - PASS IT ON
If you watched 60 minutes last night, that was only the tip of the iceberg. The real facts are set
out below. Please contact your Politicians, local government and stop this spread or we will be
a victim in Australia. As you can see they are not a non-violent religion as they claim,
although 70% of them are being hood winked just as it was in the days of Hitler and other
notorious leaders. We need action urgently, and this does not mean to be violent. We must
speak out if we want our Country back... You may have noticed that they did not respect their
Australian Citizenship, as their allegiance is to Allah and the Muslim banner... They have no
intention of assimilating into the Australian way of life and it is evident from this fact sheet
that they have been stealthily working behind the scenes to gain control by minority
population.
Zita Godsell.
...
And my favourite quotation still works for me
[2015] FWCFB 478
3
THE ONLY THING NECESSARY FOR EVIL TO SUCCEED IS FOR GOOD MEN TO DO
NOTHING - Edmund Burke.”
[8] There was an attachment to the email which contained a slideshow under the heading
“The Sword of Militant Islam”. The slideshow contained 29 slides, and can fairly be
characterised as advancing a case through words and pictures that Islam is an aggressive and
violent religion which constitutes a threat to the civilized world. Some of the propositions
headlined in the slideshow included “Islam and Jihad Hand in Hand”, “Islam is a killing
machine!”, “Islam May Become the Greatest Murdering Force in the History of Mankind”,
and “Islam has no place in Europe! Actually it has no place in a civilized world whatsoever!”
It does not appear to be in dispute that Mr Anderson was not the author of the email message
nor the creator of the slideshow; it was emailed to him and he then forwarded it to a number
of persons through the Thiess email system. Mr Anderson confirmed in the appeal hearing
that he had opened the attachment and read at least some of its contents.
[9] The content of the email message, after it was brought to the attention of the Mine’s
management by one of the recipients, caused an investigation and disciplinary process to be
initiated (although the contents of the attachment appeared to escape the attention of
management at this point). This led to Mr Anderson being dismissed later the same day. He
lodged his unfair dismissal remedy application on 4 July 2013.
The Decision
[10] In her Decision the Deputy President, after outlining the basic facts of the matter and
reviewing some of the authorities concerning unfair dismissal cases, turned to consider the
matters required to be taken into account under s.387 of the Act. In relation to the issue of
whether there was a valid reason for Mr Anderson’s dismissal, the Deputy President made the
following findings and conclusions:
There was no dispute that the email message earlier set out was sent on 17 June 2013,
but the contents of the attachments were not properly identified until during the course
of the hearing.6
The text of the email message was highly offensive to persons of the Muslim faith,
vilified persons of that faith and made a number of assertions intended to incite
readers to contact politicians to take action of an unspecified nature.7
The attachments to the email were highly offensive and vilified persons of the Muslim
faith.8
The email caused actual offence, because one of the recipients escalated the matter by
reporting it to Mr Nichols.9
Mr Anderson displayed no awareness about the offensiveness of the email or the
impact it could have on work colleagues or Thiess’ reputation, his answers in cross-
examination showed his lack of understanding about acceptable conduct in a modern
and multicultural workplace in the context of working for an employer with
international operations, and he did not understand that persons other than Muslims
might be offended by religious intolerance. His denial of a characterisation of the
email as racist “constituted ... splitting hairs and did not assist his case.”10
Thiess has extensive policies and procedures in relation to acceptable conduct in the
workplace, employs a multicultural and diverse workforce, endeavours to operate in a
way free from discrimination and harassment on grounds which include religious
[2015] FWCFB 478
4
belief and operates in a number of countries where a variety of religions are
practised.11
For an employee of Thiess to send an email which vilified persons who practised a
particular religion would breach Thiess’ policies and create a real risk of reputational
damage to Thiess.12
Mr Anderson’s claim that he had no knowledge of the policies and procedures relating
to workplace conduct and the appropriate use of email was improbable.13
Although there was some evidence that other Thiess employees had sent emails of an
inappropriate nature, there was no evidence that this was known about by management
and condoned such as to support a claim of differential and unequal treatment.14
Mr Anderson maintained a belligerent and intransigent attitude about the email and its
impact, he genuinely held the views expressed in the email, and his only regret was
that he was dismissed for sending it.15
[11] The Deputy President then stated the following overall conclusions concerning the
valid reason consideration:
“[52] Australia is a free country. Australians are free to practice the religion of their choice and
to hold whatever views they wish to hold. There is no single religion that has a monopoly on
perpetrating acts that members of the community view as violent and evil. Regrettably there
are people who use their freedom to disseminate information that incites violence and
intolerance against others. Mr Anderson is free to hold whatever views he wishes to hold,
however misinformed they might be. He is free to receive and disseminate material expressing
those views, provided that he does not break any law in doing so.
[53] What Mr Anderson is not free to do is to receive and disseminate such material on
Thiess’ electronic information systems while he is on Thiess’ time. The email Mr Anderson
received and forwarded incites intolerance and vilifies others on the basis of their religious
belief. It had the potential to offend others and caused offence to at least one person, who
reported it to a more senior manager.
[54] The email had real potential to damage Thiess’ reputation in Australia and internationally.
Thiess has policies and procedures that prohibit the sending of such emails and has taken
reasonable steps to promulgate those policies in the workplace. It is no answer to the
allegation of misconduct that the images forwarded by Mr Anderson are seen on television and
other forms of media. Thiess is entitled to maintain a workplace where such material is not
disseminated on its computer systems. I am satisfied and find that in all of the circumstances
there was a valid reason for Mr Anderson’s dismissal.”
[12] The Deputy President then dealt with the considerations specified in paragraphs (b)-
(g) of s.387 in a manner which was not the subject of controversy in the appeal. In relation to
s.387(h) the Deputy President treated the following matters as relevant:
his age (65), length of service, and good prior work record;16
the lack of support or assistance Mr Anderson received when he took on the role of
Trainer/Assessor;17
the absence of any record that Mr Anderson was formally trained concerning policies
relating to acceptable email use;18
the fact that Mr Anderson was not formally counselled or warned about his earlier
non-work related emails, with the inadequacy of the informal counselling by Mr
[2015] FWCFB 478
5
Nichols contributing significantly to Mr Anderson failing to appreciate what was
required of him;19
the investigation/disciplinary process initially led to an assessment that Mr Anderson
should receive a final warning, but this was overridden by senior management and
upgraded to a dismissal;20
the investigation process, which took place in a relatively short time, failed to take
relevant matters into account (including that the email had been stopped and blocked
by IT personnel) and failed to identify the exact contents of the email;21
had more time been taken to discuss the matter with Mr Anderson, an outcome might
have been achieved whereby he accepted that his email was inappropriate and
apologised;22
there was no consideration of a penalty less than dismissal;23
Mr Anderson was summarily dismissed and received no payment in lieu of notice;24
and
the prospects of Mr Anderson obtaining other comparable employment are extremely
limited.25
[13] The Deputy President then stated the following conclusions:
“[76] On balance, notwithstanding that there was a valid reason for Mr Anderson’s dismissal, I
am satisfied that the dismissal was unfair on the grounds that it was harsh and unreasonable.
The dismissal was harsh because of its consequences for the personal and economic situation
of Mr Anderson. It was unreasonable because the conclusion that the misconduct engaged in
by Mr Anderson was wilful on the grounds that he had been previously warned about it, was
not reasonably open on the material before the employer.
[77] I do not find that the dismissal was harsh. It was not disproportionate to the gravity of the
misconduct. The misconduct was extremely serious and had significant potential to damage
Thiess’ reputation. Mr Anderson’s misconduct did provide a valid reason for his dismissal and
I do not find that the dismissal was unjust.”
[14] There appears to be a typographical error in the first two sentences of paragraph [77],
having regard to the fact that in paragraph [76] the Deputy President had found the dismissal
to be harsh. It is reasonably apparent that what the Deputy President intended to say was
something to the effect that: “I do not consider that the dismissal was harsh on the basis that it
was disproportionate to the gravity of the misconduct”. In this respect, the Deputy President
appears to have been drawing a distinction with her finding in paragraph [76] that the
dismissal was “harsh because of its consequences for the personal and economic situation of
Mr Anderson” and thereby endeavouring to make it clear that she only found harshness on
one of the two bases identified in the well-known statement in the judgment of McHugh and
Gummow JJ in Byrne v Australian Airlines Ltd26 that a dismissal “may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer acted”
(which statement had been referred to earlier in the Decision27).
[15] The Deputy President then turned to the issue of remedy, and first considered
(consistent with s.390(3) of the Act) whether reinstatement was an appropriate remedy. Her
conclusions were as follows:
“[78] As required by s.390 of the Act, I am satisfied that Mr Anderson was protected from
unfair dismissal and that he has been unfairly dismissed. Mr Anderson should have a remedy
[2015] FWCFB 478
6
for his unfair dismissal. Mr Anderson seeks reinstatement. I am satisfied that reinstatement is
not an appropriate remedy in all of the circumstances of this case for the following reasons.
[79] There was a valid reason for Mr Anderson’s dismissal. Mr Anderson sent an entirely
inappropriate email vilifying persons on the basis of religious belief. The email caused offence
to at least one person and had the potential to offend others regardless of whether or not they
practice any particular religion. The email also had the potential to cause reputational damage
to Thiess in terms of its position as an employer of a multicultural workforce and its
international operations.
[80] Mr Jorquera submits that to reinstate Mr Anderson will send a message that this kind of
email is acceptable. Mr McCarthy states that it is not appropriate that Mr Anderson be
reinstated because he has breached Thiess’ value of trust and clearly does not respect his
colleagues. Mr McCarthy further states that Thiess has a large number of Indonesians working
in its business who are Muslims and that Mr Anderson has no respect for their beliefs. Mr
McCarthy does not want someone with Mr Anderson’s values in Thiess’ business.
[81] I accept Mr McCarthy’s evidence on this point. I am also of the view that Mr Anderson’s
complete lack of contrition and his refusal to accept any culpability for his actions or the
serious implications that sending the email had, militates against reinstatement. This is
compounded by Mr Anderson’s unwavering belief that the contents of the email he
disseminated are true and that he is the one who should be offended. In all of these
circumstances it is not appropriate to reinstate Mr Anderson.”
[16] The Deputy President then turned to the alternative remedy of compensation. The
Deputy President found that compensation was an appropriate remedy, and assessed
compensation in the following manner:
“[84] At the point he was dismissed, Mr Anderson had been employed for over 12
years. Other than sending the email on 17 June 2013 there was no evidence of any
issue being taken with his conduct, capacity or work performance in that period. At the
point this application was heard, the job Mr Anderson held was still being performed
and had been filled by another employee.
[85] In my estimation, but for his dismissal, in a manner and upon grounds which
made the dismissal unfair, Mr Anderson would have remained in employment for a
period of at least a further twelve months and for that period would have received a
base salary of $114,314.72 in accordance with the relevant enterprise agreement,
under which his weekly base rate at the point he was dismissed was $2198.36.
[86] Mr Anderson has not obtained alternative employment. His evidence is that he
has attempted to do so and has made a number of phone calls to his contacts to see if
anyone is hiring and has been unsuccessful. Mr Anderson also points to the fact that
his age will make it difficult for him to obtain other employment. Mr Anderson has
taken some steps to mitigate his loss, but I am not satisfied that he has done all that he
reasonably can in this regard.
[87] In relation to discounting for contingencies, I have concluded that the level of
discount should be 50% in this case. Mr Anderson’s employment could have ended for
any number of reasons and given the attitude that he displayed in this hearing and his
refusal to accept any responsibility for his conduct, had the decision been made to
issue Mr Anderson with a final warning in June 2013 there was a prospect that he
[2015] FWCFB 478
7
could have been dismissed for another reason after that warning was given. Applying a
50% discount for contingencies, reduces the amount of $114.314.72 to $57,157.36.
[88] For the reasons set out above, I am satisfied and find that Mr Anderson made a
significant contribution to the situation he found himself in on 17 June 2013, and I
have concluded that the amount of compensation awarded to him should be adjusted
by 50% for that reason. Making that adjustment results in an amount of $28,578.68.
That amount, less taxation deductions required by law, is to be paid to Mr Anderson
within 14 days of the date of release of this decision. An Order to that effect will issue
with this decision.”
Submissions
[17] Mr Anderson advanced the following principal propositions in his written and oral
submissions:
(1) An employee cannot be dismissed for not complying with a policy concerning
computer and email usage in circumstances where the employee has not been
trained in the use of computers or the relevant policy. The Deputy President’s
finding that there was no record of him having been trained meant that her
other finding that he could not have been oblivious to the relevant policies was
incorrect.
(2) Thiess’s case at first instance that he was a “repeat offender” when it came to
breaching the policy concerning computer usage was not supported by the
evidence. There had been a single statement from Mr Nichols, which he
recalled as being “Back off those muslim emails” and Mr Nichols as “Back off
non-work related emails”. The Deputy President found that Mr Nichols had
not communicated adequately with him about the issue.
(3) The manner in which the outcome of the disciplinary process was modified, as
found by the Deputy President, meant that he should not have been dismissed.
(4) The email which he sent on 17 June 2013 did not vilify persons on the basis of
religious belief, but only referred to the actions of extremists. It was analogous
to a criticism of catholic priests for engaging in sexual assaults upon children,
which could not be taken as offensive to all Catholics or Christians. It could
not be regarded as offensive by anyone other than extremists. The Deputy
President erred in finding otherwise.
(5) The Deputy President erred in accepting evidence that he had no respect for
Muslim beliefs. Mr Anderson specifically submitted: “This injustice was
further compounded when used as the reason for not reinstating me. In view of
the earlier statements of mine that this [is] about extreme radicals and not the
average Muslim I do not see that I should show contrition for holding strong
beliefs about radical muslims, paedophile priests or anyone else who is not
living by the norms of civilized society, and this should not mitigate against me
at these hearings”.
[2015] FWCFB 478
8
(6) The conclusion of the Deputy President, in assessing compensation, that there
should be a 50% discount for contingencies because his employment could
have been terminated for any number of reasons having regard to the attitude
he displayed at the hearing and his refusal to accept any responsibility for his
conduct, was unfounded having regard to his good prior work record, and
impermissibly constituted a punishment for something that might be done in
the future.
(7) The Deputy President’s reliance on his belligerent bearing and lack of
contrition during the hearing should not have been taken into account having
regard to the fact that he was self-represented.
(8) Reinstatement should have been the remedy that was ordered.
[18] Propositions (1), (3)-(5) and (7)-(8) above appear to be relevant to Mr Anderson’s
challenge to the Deputy President’s decision to refuse to order reinstatement, with
propositions (1) and (3)-(5) being primarily directed to the Deputy President’s finding that
there was a valid reason for the dismissal which in part underpinned her refusal of
reinstatement. Proposition (6) is concerned with the assessment of compensation. Proposition
(2) does not appear to involve any contention of error on the part of the Deputy President, but
rather constitutes an attack on one aspect of the case Thiess ran at first instance, and is not
therefore relevant to the appeal.
[19] Mr Anderson submitted that proposition (1) above was one which attracted the public
interest and thus permitted the grant of permission to appeal under s.400(1).
[20] Thiess submitted that:
(1) The Deputy President was correct in finding that there was a valid reason for
Mr Anderson’s dismissal, particularly having regard to her finding that the
email was one which vilified persons of the Muslim faith.
(2) A determination as to whether reinstatement is appropriate or not involves the
making of a discretionary decision. The Deputy President’s findings that Mr
Anderson maintained a belligerent and intransigent attitude about the email
and its impact, lacked any understanding about the capacity of the email to
offend others (whether Muslims or not), and failed to express any contrition
for his conduct in sending the email when given an opportunity to do so were
supported by the evidence and the record of the hearing. The Deputy President
was entitled on the basis of those findings to conclude that reinstatement was
not appropriate.
(3) In relation to the assessment of compensation, the Commission was required
by s.392(2)(c) to consider what remuneration Mr Anderson might have
received had he not been dismissed. In that respect the Deputy President was
entitled to take into account whether, if he had not been dismissed at the time
he was, Mr Anderson’s employment might have subsequently been terminated
due to further misconduct of a similar nature.
[2015] FWCFB 478
9
(4) Mr Anderson had not demonstrated any appellable error in the Decision, and
the public interest was not enlivened. Permission to appeal should be refused,
or, alternatively, the appeal should be dismissed.
Consideration
Reinstatement
[21] We accept the respondent’s submission that a decision as to whether it is appropriate
to order the remedy of reinstatement is discretionary in nature. As was explained in the Full
Bench decision in Nguyen v Vietnamese Community in Australia28, a broad range of factors
may be relevant in a consideration of the appropriateness of reinstatement:
“[9] The question whether to order a remedy in a case where a dismissal has been found to be
unfair remains a discretionary one.
...
[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”. 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. 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.
...
[15] In Australia Meat Holdings Pty Ltd v McLauchlan 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”. 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 termination or if the employer no longer conducts a
business into which the employee may be reappointed.”
[22] The discretionary nature of the decision-making exercise in relation to reinstatement,
which apart from the criterion of appropriateness is not guided by any requirement to take any
particular matter into account, necessarily means that no one consideration and no
combination of considerations is necessarily determinative of the result and that the decision-
maker is allowed some latitude as to the choice of the decision to be made.29 It also means
that in any appeal from a decision concerning the grant or refusal of the remedy of
reinstatement, it is necessary for the appellant to demonstrate error in the decision-making
process.30 Any such error will usually have to be of the type identified in House v The King.31
[2015] FWCFB 478
10
[23] As paragraph [79] of the Decision discloses, in refusing to order reinstatement the
Deputy President took into account the fact that there was a valid reason for Mr Anderson’s
dismissal having regard to the earlier conclusions that the email and its attachments
inappropriately vilified persons on the basis of religious belief, caused offence to at least one
person, had the capacity to offend others regardless of their religious beliefs, and had the
capacity to cause reputation damage to Thiess. We consider that it was clearly open to the
Deputy President to find that there was a valid reason for the dismissal on these bases.
[24] The email (including the attachment) clearly vilifies - that is, defames and traduces32 -
persons of the Muslim faith. We do not accept Mr Anderson’s submission that it was only
directed at violent Muslim extremists. On a fair reading of the email, it denigrates Islam and
its adherents generally. The parts which we have earlier quoted are sufficient to demonstrate
this, and a reading of the email in its entirety does not alter the picture.
[25] While Mr Anderson is no doubt entitled to hold views of the nature articulated in the
email, the expression and propagation of those views in the workplace by the use of the
employer’s computer and email system is a different matter. Even outside the workplace, the
recognition of freedom of expression by the Constitution and the common law is significantly
constrained, as was explained by the Federal Court (Bromberg J) in Eatock v Bolt33:
“[236] The non-absolute and qualified nature of the implied freedom of political
communication has been expressly stated by the High Court on many occasions. That freedom
is not absolute; “It is limited to what is necessary for the effective operation of that system of
representative and responsible government provided for by the Constitution”: Lange at 561.
There are many examples of the High Court finding that laws which intrude upon free political
discourse are nevertheless constitutionally valid because those laws reasonably serve a
countervailing public purpose: see Levy v State of Victoria & Ors [1997] HCA 31; (1997) 189
CLR 579, Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, Langer v
Commonwealth [1996] HCA 43; (1996) 186 CLR 302, Theophanous v Herald& Weekly Times
[1994] HCA 46; (1994) 182 CLR 104, Stephens v West Australian Newspapers Ltd [1994]
HCA 45; (1994) 182 CLR 211 and Lange. See also Chesterman M, Freedom of Speech in
Australian Law at 25-26.
[237] In the United States and in relation to the First Amendment, the content of and the
extent of the restriction on freedom of expression is more limited than in Australia. However,
European and Australian approaches are based on different traditions including a greater
deference to political authority. That the Australian constitutional and legal context in relation
to freedom of expression is different to that of the United States, has been stated a number of
times by the High Court: see Coleman at [188] (Gummow and Hayne JJ); Australian
Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [113]- [114]
(Kirby J); Theophanous 133-134 (Mason CJ, Toohey & Gaudron JJ); Lenah Game Meats (at
[201]-[202] (Kirby J). That “not too much can be taken from the American jurisprudence” was
also recognised by Allsop J in Toben at [148].
[238] The right of freedom of expression at common law is, by definition, qualified by those
exceptions otherwise provided by law. The law of defamation imposes significant limitations
on freedom of expression. Other laws imposing limitations include laws dealing with
blasphemy, contempt of court and of Parliament, confidential information, the torts of
negligent misstatement, deceit and injurious falsehood. Further, a wide range of legislative
provisions dealing with obscenity, public order, copyright, censorship and consumer
protection place restrictions on the exercise of the right to freedom of expression. These laws
recognise that there are legitimate countervailing interests which require the imposition of
limitations upon freedom of expression.”
http://www.austlii.edu.au/au/cases/cth/HCA/2006/46.html#para114
http://www.austlii.edu.au/au/cases/cth/HCA/2006/46.html#para113
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282006%29%20227%20CLR%2057?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/au/cases/cth/HCA/2006/46.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%20182%20CLR%20211?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/au/cases/cth/HCA/1994/45.html
http://www.austlii.edu.au/au/cases/cth/HCA/1994/45.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%20182%20CLR%20104?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/au/cases/cth/HCA/1994/46.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281996%29%20186%20CLR%20302?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/au/cases/cth/HCA/1996/43.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%20182%20CLR%20272?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/au/cases/cth/HCA/1994/44.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281997%29%20189%20CLR%20579?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281997%29%20189%20CLR%20579?stem=0&synonyms=0&query=title(bolt%20)
http://www.austlii.edu.au/au/cases/cth/HCA/1997/31.html
http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/
[2015] FWCFB 478
11
[26] One of the relevant constraints upon freedom of expression which operates in the State
of Queensland is s.124A of the Anti-Discrimination Act 1991 (Qld), which makes religious
vilification by any public act unlawful (subject to some limited exceptions).34 “Public act” is
given a broad definition in s.4A of the Anti-Discrimination Act. We note that it has been held
that it is arguable that an email sent to a large number of persons is a public act.35
[27] In the employment context, the express terms of the employment contract, employer
policies incorporated into or authorised by the employment contract, and the employer’s
lawful and reasonable directions may also operate to impose significant constraints upon an
employee’s freedom of expression. It is not necessary in this case to explore the outer limits
of the extent to which an employer can place limits on the freedom of expression of the
employee. It is sufficient to state two propositions: first, that it is well established that it is
lawful and reasonable for an employer to require an employee to comply with policies and
directions which control the nature of communications over the employer’s electronic
communications system36, and second, that objectively inappropriate and offensive
communications by an employee in the workplace may, depending on the circumstances,
constitute a valid reason for dismissal.37
[28] In relation to the first of those two propositions, the evidence established that Thiess
had a general “Workplace Conduct Policy” which among other things required employees to
treat each other with dignity, courtesy and respect and specifically prohibited religious
vilification, and also had a specific policy concerning appropriate usage of Thiess’s computer
system entitled “Acceptable use of information systems”. Although the Deputy President
found that there was no evidence that Mr Anderson had been specifically trained in the latter
policy, it was open to her to find, as she did, that he could not have been oblivious to the
primary aspects of that policy on the basis that his explanation that his computer did not
display the pop-up-box reminder concerning the policy that was standard on the Thiess
computer system was improbable. It was also open to the Deputy President to find, as she did,
that it was improbable that Mr Anderson had no knowledge of Thiess’s general standards for
conduct in the workplace. Mr Anderson conceded that he was aware that those general
standards included a requirement to treat all employees with dignity, courtesy and respect. If
Mr Anderson did not understand that his email of 17 June 2013 did not meet that requirement,
Mr Nichols’ earlier warning to “Back off those muslim emails” (as described in Mr
Anderson’s own evidence) should have made the position sufficiently clear to a plain-
speaking man such as him. In relation to the second proposition, the email was, objectively
speaking, clearly inappropriate and offensive for the reasons earlier discussed. It was apt to
offend not only Muslims, but anyone who valued religious tolerance and rejected bigotry. It
also, if publicly exposed, had the potential to damage Thiess’s reputation as a company with a
multicultural workforce and international operations which extended to Indonesia, a Muslim-
majority nation.
[29] The existence of a valid reason for dismissal does not of course disqualify an applicant
from the remedy of reinstatement where the applicant’s dismissal has been found to be unfair.
However in this case the Deputy President made the critical findings that Mr Anderson
completely lacked any contrition for his conduct, refused to accept any culpability on his part,
and lacked understanding of the offensive nature of the email or its implications for Thiess
and its workforce. They were findings which were both reasonably open to be made and with
which we agree. During the appeal hearing, Mr Anderson in answer to a question from the
bench gave a cursory indication that he understood that his sending of the email was
[2015] FWCFB 478
12
inappropriate (although most of what he subsequently said in his appeal submissions strongly
suggested otherwise). But the transcript of the hearing before the Deputy President gives
ample demonstration that he had no understanding of or contrition for his conduct in sending
the email. Two extracts from the transcript are sufficient to illustrate the point, although many
other examples may be found. In the first, Mr Anderson was cross-examined by Thiess
concerning whether the email was inappropriate or offensive as follows:
“MS BRATTEY: And you do not think that that is inappropriate or would cause offence?---Not
to any reasonable Muslim. That would cause offence to the people who are trying to do it and
don't want to be found out and up till now one of the guys who was on an invalid pension in
Sydney is now over there in Iraq butchering people.
Now, you said - - -?---That's what this was talking about and it's happening.
Mr Anderson, you sent that type of email on Thiess' system. Now, you've said to me earlier,
you know, we need to treat people with dignity and respect?---Yes.
That email could cause offence?---To who? Who is that going to offend?
Well, Mr Anderson, it has caused offence because it was raised in Thiess?
---Well, if I said to you that there was a Catholic guy, a priest, a Catholic priest who was
molesting children and I spoke out about it and you're a Catholic, are you offended by that?
Again, Mr Anderson, I asked you a question?---No, are you offended by it?”38
[30] In the second, the Deputy President attempted to explore with Mr Anderson whether
he had expressed any regret or contrition for his conduct:
“THE DEPUTY PRESIDENT: Did it occur to you in all of your taking offence at this,
Mr Anderson, did it occur to you that this company deals with people of Muslim faith who
might have taken offence at it or that other colleagues and people that you work with who may
be of the Muslim faith could take offence at it? And did you ever express regret for the fact
that you may have offended somebody with this email?
MR ANDERSON: I have yet to hear who I've offended.
THE DEPUTY PRESIDENT: Okay, but the answer to my question is no?
MR ANDERSON: I'm not - say it again. Ask it again.
THE DEPUTY PRESIDENT: Did you at any point say, "If I have offended someone I'm
sorry. I should not have sent an offensive email"? Did you ever say that?
MR ANDERSON: No, I've never said that to anybody because nobody has asked me.
THE DEPUTY PRESIDENT: All right.
MR ANDERSON: Who should I say it to?
THE DEPUTY PRESIDENT: All right.
MR ANDERSON: And I certainly wouldn't say that you know I regret if it's a Muslim wants
to cut my head off. I'm certainly not going to be you know apologising to him. He wants to
kill me and my children and whoever else.
[2015] FWCFB 478
13
THE DEPUTY PRESIDENT: Mr Anderson, what I'm saying to you is if Thiess was of the
view, which they expressed to you according to the notes of these discussions that they
Muslim people working for them and Muslim customers and they work in Indonesia and that
somebody could have taken offence at this email, did it occur to you to express regret for the
fact you could have offended people rather than just simply saying, "Oh gee, if I'd known I
was going to get the sack I wouldn't have sent it."
MR ANDERSON: If I had offended some Muslim who was a rational normal person of
course I wouldn't want to offend them but I have no qualms whatever about offending
someone who wants to cut my head off.”39
[31] Mr Anderson’s persistent defence of the email (including the attachment) and his
conduct in sending it was all the more remarkable since it became clear that, at the time he
sent it, he had not even read the entirety of its contents. The “attitude” taken by Mr Anderson
in exchanges such as the above was not to be overlooked on the basis that he was self-
represented. This was not a matter of advocacy style, but rather raised the substantive
question as to whether Mr Anderson had gained any insight into the implications of his
behaviour in sending the email. Clearly he had not.
[32] The findings made by the Deputy President to which we have referred meant that it
was a real possibility that, if reinstated, Mr Anderson might engage in similar conduct again.
They provided a sound foundation for the conclusion that reinstatement would not be
appropriate. There was no error in the Deputy President refusing to reinstate Mr Anderson for
the reasons described.
[33] It follows that we do not accept that the Decision was erroneous on the basis of Mr
Anderson’s propositions (1), (3)-(5) and (7)-(6) set out in paragraph [17] above.
Compensation
[34] Section 392(2) of the Act specifies a number of matters which must be taken into
account in the assessment of compensation in respect of an unfair dismissal remedy
application. One of those matters, set out in s.392(2)(c), is “the remuneration that the person
would have received, or would have been likely to receive, if the person had not
been dismissed”. This will usually require an estimation of how long the employee would
have remained in the relevant employment but for the dismissal.40 There will necessarily be a
speculative element in such an assessment41: “[s]uch an assessment is often difficult, but it
must be done”.42 The principles for the assessment of compensation established by this
Commission and its statutory predecessors have also required a deduction, as a step in the
process, for “contingencies” as a means of taking into account the possibility that the
occurrence of contingencies to which the applicant was subject might have brought about
some change in earning capacity or earnings.43 This requirement is referable to paragraphs (c)
and (g) of s.392(2), and is usually applied in respect of prospective loss.44 The point in the
assessment process at which any discount for contingencies is made may differ: in most cases
the discount is considered after the remuneration the dismissed person would have received if
they had not been dismissed has been assessed and the monies earned by them since
termination had been deducted, but in some cases it may be appropriate to apply the
contingency discount directly to the amount that is estimated would have been earned but for
the dismissal before any further deduction is made.45
[2015] FWCFB 478
14
[35] The Deputy President’s assessment of compensation was, we consider, consistent with
the requirements of s.392(2) and the principles to which we have referred. The Deputy
President, as required by s.392(2)(c), estimated that Mr Anderson would have remained in
employment for a further 12 months, and calculated his salary for such a further period. There
was no deduction made for earnings since dismissal, since Mr Anderson had not obtained
alternative employment. The Deputy President then made a 50% discount for contingencies to
take into account the fact that Mr Anderson’s capacity to remain employed and earn his salary
for a further 12 months may have been affected by an earlier dismissal for another reason. The
possibility of dismissal for further misconduct was based upon Mr Anderson’s lack of
contrition for his conduct, his attitude at the hearing, and his refusal to accept any
responsibility for his conduct. In essence, this amounted to a conclusion that because of these
matters, there was a real possibility (as earlier stated) that if he had not been dismissed Mr
Anderson would have engaged in similar conduct again and have been dismissed on that
occasion. Notwithstanding Mr Anderson’s good prior work record, we consider that
conclusion was one which it was reasonably open to the Deputy President to reach. This was
not a case of Mr Anderson being “punished” for something he might do in the future, but an
appropriate step in the estimation the Deputy President was required to make as to what Mr
Anderson’s earnings would have been if he had not been dismissed.
[36] Section 392(3) provides that in assessing compensation the Commission, if it is
satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the
person, must reduce the amount it would otherwise order under s.392(1) by an appropriate
amount on account of the misconduct. Having found that there was a valid reason for Mr
Anderson’s dismissal based upon his misconduct in sending the email46, it was clearly the
case, as the Deputy President found47, that this misconduct contributed to (indeed caused)
Thiess’s decision to dismiss Mr Anderson. The Deputy President was consequently required
by s.392(3) to reduce the amount of compensation which she would otherwise have ordered
by an appropriate amount. This involved the exercise of a broad discretion. We consider that
the Deputy President’s decision to reduce the amount by a further 50%48 was reasonably open
to her. There was therefore no error in the Deputy President’s assessment of the compensation
to be paid by Thiess for Mr Anderson’s unfair dismissal.
Conclusion
[37] The Decision was not, for the reasons we have set out, attended by any appellable
error. The appeal does not otherwise raise any issue of general controversy requiring
resolution. We therefore do not consider that the grant of permission to appeal would be in the
public interest, and permission to appeal must therefore be refused in accordance with
s.400(1) of the Act.
PRESIDENT
[2015] FWCFB 478
15
Appearances:
The Appellant: Mr R. Anderson on his own behalf.
The Respondent: Ms C. Brattey on behalf of Thiess Pty Ltd.
Hearing details:
Brisbane
13 January 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR560226
1 [2014] FWC 6568
2 PR555664
3 Appellant’s Outline of Submissions, paragraph 5
4 Appellant’s Outline of Submissions, paragraph 8
5 Appellant’s Outline of Submissions, paragraph 7
6 Decision at [28]-[32]
7 Decision at [34]
8 Decision at [35]
9 Decision at [36]
10 Decision at [39]-[41]
11 Decision at [46]
12 Decision at [46]
13 Decision at [47]
14 Decision at [48]-[49]
15 Decision at [51]
16 Decision at [64]
17 Decision at [65]
18 Decision at [65]
19 Decision at [66]-[68]
20 Decision at [69]-[71]
21 Decision at [72]-[73]
22 Decision at [74]
23 Decision at [75]
24 Decision at [75]
25 Decision at [75]
26 (1995) 185 CLR 410 at 465-8
27 Decision at [13] and footnote 9
28 [2014] FWCFB 7198
29 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19]
per Gleeson CJ, Gaudron and Hayne JJ
30 Ibid at [21]
31 [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
32 See the definition of “vilify” in the Macquarie Concise Dictionary, 5th edition.
33 [2011] FCA 1103
34 Section 124A of the Anti-Discrimination Act 1991 (Qld) provides:
http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html
[2015] FWCFB 478
16
124A Vilification on grounds of race, religion, sexuality or gender identity unlawful
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group
of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
(2) Subsection (1) does not make unlawful—
(a) the publication of a fair report of a public act mentioned in subsection (1); or
(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute
privilege in proceedings for defamation; or
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other
purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.
35 West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240 at [27]-[32]
36 Wake v Queensland Rail [2006] AIRC 663, PR974391 at [2]-[3] and [21]-[22]; B, C and D v Australian Postal
Corporation T/A Australia Post [2013] FWCFB 6191 at [36]-[39]
37 Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWAFB 7267 at [11]-[20]; Slater v Patrick Port
Logistics Pty Ltd [2012] FWA 7204 [137]-[138]; Dean Leadbetter v Qantas Airways Limited [2009] AIRC 131 At [74]-[78];
Stephen Viney v M & V Brown Pty Ltd [1998] AIRC 569, Print P9930
38 Transcript U2013/11148, 25 June 2014, PN258-PN263
39 Transcript U2013/11148, 25 June 2014, PN745-PN756
40 Ellawala v Australian Postal Corporation [2000] AIRC 1151, Print S5109 at [34]
41 Sprigg v Paul’s Licensed Festival Supermarket [1998] AIRC 989, Print R0235 at [37]
42 Ellawala at [33]
43 Ellawala at [36]
44 Slifka v JW Sanders Pty Limited (1995) 67 IR 316 at 328
45 Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431 at [52]
46 See Decision at [54]
47 See Decision at [88]
48 See Decision at [88]
