1
Fair Work Act 2009
s.604—Appeal of decision
Nyrstar Hobart Pty Ltd
v
N Cannan
(C2014/6727)
and
Nyrstar Hobart Pty Ltd
v
K Fuller
(C2014/6729)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT SMITH
COMMISSIONER WILSON MELBOURNE, 26 FEBRUARY 2015
Appeal against decisions [2014] FWC 5072, and [2014] FWC 7014 and order [PR556256] of
Deputy President Wells at Hobart on 19 September and 7 October 2014 in U2013/15506 and
U2013/15509 – Permission to appeal refused in respect of the decision on transcript of
Deputy President Wells in relation to the bias application and decision in respect of the
terminations being harsh and reinstatement appropriate – Permission to appeal granted in
respect of decision [2014] FWC 7014 – Item A.3 of the order of 7 October 2014 [PR556256]
remit question of the terms of an order for payment of compensation for lost pay by the
Respondents back to Deputy President Wells for determination.
[1] This decision arises from two appeals, pursuant to s.604 of the Fair Work Act 2009
(the Act), by Nyrstar Hobart Pty Ltd (the Appellant) against two decisions by Deputy
President Wells on 19 September 20141 and 7 October 2014.2 The decisions arose out of
applications under s.394 of the Act by Mr N Cannan3 and Mr K Fuller4 (together the
Respondents) for relief in respect of the termination of their employment by the Appellant.
[2] In each decision, Deputy President Wells determined each s.394 application, dealing
with the particular circumstances in relation to the Respondents as necessary.
[3] In the decision of 19 September 2014, Deputy President Wells found each dismissal
was harsh and determined that an order reinstating each Respondent and an order maintaining
the continuity of their service was appropriate. Deputy President Wells also found that an
assessment of an order for payment of compensation for lost pay required further written
[2015] FWCFB 888
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 888
2
submissions relevant to the issues contained in ss.391(3) and (4) of the Act and issued
directions for the filing and service of full written submissions on these matters.
[4] In her 7 October 2014 decision, Deputy President Wells found that it was appropriate
to make an order for some lost pay, with a reduction from the full extent of lost pay to take
account of earnings from other employment since the termination in each case and a 50%
discount in the net loss calculated on account of misconduct found by her to have been
engaged in by each Respondent (in paragraphs 232, 234, 237 and 238 of her 19 September
2014 decision).
Approach to the Appeal
[5] Section 604(1) of the Act provides for an appeal against a decision by a Member of the
Fair Work Commission (the Commission) which is conditioned by permission to appeal.
Section 604(2) of the Act provides that “[w]ithout limiting when the FWC may grant
permission, the FWC must grant permission if the FWC is satisfied that it is in the public
interest to do so”.
[6] However, in relation to an appeal against a decision arising under Part 3–2—Unfair
dismissal of the Act, the right to appeal a decision, with permission, under s.604, is modified
by s.400 of the Act, such that permission to appeal will only be granted if the Commission
considers that it is in the public interest to grant permission and appeals concerning a question
of fact can only be made on the ground that the decision involved a significant error of fact.
[7] It is clear from s.604 of the Act and, in respect of termination of employment matters,
s.400 that the appeal process in the Act does not provide an opportunity for a party to re-argue
a case, and have it determined by an Appeal Bench afresh, as if the decision of the single
member at first instance had not been made. An Appeal Bench will only reconsider and
determine an application itself, if satisfied that permission to appeal ought to be granted
because it is in the public interest to do so and the decision appealed reflects error and, in
relation to an appeal in respect of a termination of employment matter, a significant error of
fact where the appeal concerns a question of fact.
The background to the terminations
[8] The background to the matters before Deputy President Wells, which provides the
context of the matters before her were conveniently summarised by her, as follows:
“[8] Nyrstar is a global company in the mining and mineral processing industry,
having purchased the Risdon Smelter from the previous owner Zinifex in September
2006. The Nyrstar Risdon Smelter workforce contains approximately 480 employees
and 120 contractors.
[9] Mr Cannan, aged 50 years, and Mr Fuller, aged 57 years, commenced
employment with Nyrstar in 1995 as Operators within the Casting Department. At the
time of termination they were Grade 6 Operators under the Nyrstar Hobart Production
Enterprise Agreement 2010 [2010] (the EBA). Between 1998 and 2001 Mr Fuller had
been employed as a Leading Hand, a position he stood down from after the death of
his father.
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[10] Other than two incidents involving Mr Fuller in 2002 and 2006 involving a
contractor, and an incident in the early 2000’s when Mr Cannan was ‘coached’ over
the taking of sick leave, neither Mr Cannan nor Mr Fuller have been the subject of
formal disciplinary action by Nyrstar for performance or behavioural issues.
[11] The Casting Department operates under a rotating shift roster arrangement of
four panels known as A, B, C and D and work a 4 day on, 4 day off rotation. Each
panel works two 12 hour day shifts followed by two 12 hour night shifts, with both
early and late starters for each shift. Mr Cannan and Mr Fuller have worked all their
time at Nyrstar on D-panel. At the time of their termination they were late starters.
There are pre-start (safety) meetings at the commencement of each shift which require
separate pre-start meetings for the early starters and the late starters.
[12] Around mid-December 2012 Mr [J] Fraraccio was appointed to the position of
Team Leader of D-panel in the Casting Department. The role of the Team Leader
changed at that time from operational to non-operational in nature and no consultation
took place with D-panel about the change to the role.
[13] Between late January and May 2013, a number of industrial and safety
disputes were raised by employees from D-panel.
[14] Following a meeting between Mr Fraraccio and Mr Fuller which occurred on
17 April 2013 at which Mr Cannan was present, the issue of bullying by Mr Fraraccio
was raised with Nyrstar management.
[15] On 30 May 2013 Nyrstar appointed Mr [D] Farmer to undertake an
investigation of the bullying allegations made against Mr Fraraccio. Mr Farmer held
interviews and took statements from a number of employees, including the Applicants
(the first investigation). Six D-panel employees made statements relating to
Mr Fraraccio’s behaviour. In late July 2013, Nyrstar determined that the actions of
Mr Fraraccio were reasonable administrative actions and were not bullying.
[16] Following that determination, and as a result of the information gathered,
Nyrstar instructed Mr Farmer to take statements from other employees and to take
further statements from some employees previously interviewed. Twelve additional
statements were taken by Mr Farmer (the 12 statements) and provided to Nyrstar on
4 September 2013.
[17] On 13 August 2013 Nyrstar held a meeting with the six employees from D-
panel who had made statements in the first investigation and advised them that as a
result of that investigation, information had come to hand relating to them displaying
behaviour which could be considered bullying. Nyrstar suspended the six employees
on full pay pending an investigation of the allegations they had bullied Mr Fraraccio.
[18] On 15 August 2013 the Construction, Forestry, Mining and Energy Union (the
CFMEU) notified a dispute to the FWC relating to the suspension of the six
employees. The dispute came before Commissioner Lee who conducted a conciliation
conference and recommended that retired industrial Commissioner Mr [J] Simmonds,
who was suggested by the CFMEU, conduct an investigation into the six employees.
On approximately 30 August 2013 Mr Simmonds was appointed to undertake the
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investigation (the second investigation). Mr Simmonds was provided with copies of
the 12 statements taken by Mr Farmer.
[19] The 12 statements were never provided to Mr Cannan, Mr Fuller or the
CFMEU.
[20] On 20 September 2013 Mr Cannan and Mr Fuller, with union representation,
were interviewed by Mr Simmonds. They both provided information on the matters
put to them. Mr [T] Wilson-Haffenden, Human Resources Manager for Nyrstar,
received Mr Simmonds findings on 27 September 2013.
[21] Nyrstar wrote to Mr Cannan and Mr Fuller on 7 October 2013 (the ‘show
cause’ letters) asking them to ‘show cause’ why their employment should not be
terminated, and advised of Mr Simmonds’ findings.
[22] Mr Cannan, along with Mr [M] Reeves and Ms [S] Shay of the CFMEU,
attended his ‘show cause’ meeting on 17 October 2013. Mr Wilson-Haffenden and
Mr [R] Curtis represented Nyrstar. Mr Cannan raised concerns about the investigation
and findings by Mr Simmonds and gave his response to those findings. Mr Cannan’s
employment was terminated by Nyrstar on 23 October 2013.
[23] Mr Fuller, along with Mr Reeves and Ms Shay of the CFMEU, attended his
‘show cause’ meeting on 23 October 2013, where he responded to the findings of
Mr Simmonds. On 29 October 2013 Nyrstar terminated Mr Fuller’s employment. Both
Applicants’ letters of termination state they were dismissed due to ‘serious misconduct
in that you bullied and harassed fellow employees and have shown to have had a
number of instances of inappropriate conduct’.” [References omitted]
[9] The hearing before Deputy President Wells occurred over seven hearing days, with
1700 pages of witness statements, brought from 20 witnesses (16 for the Appellant and four
for the Respondents).
The decisions of Deputy President Wells
[10] In her 19 September 2014 decision, Deputy President Wells set out:
a summary record of the “evidence” before her under various headings (at pages 4–
25);
a summation of the parties’ “submissions” (at pages 25–35);
the “legislative” matters to which she was required to have regard (at pages 35–36
and 44, see also page 2 of the 7 October 2014 decision); and
considered and made findings in relation to each of the statutory matters, within
s.387 of the Act, which the Commission is required to have regard to in
determining whether a termination is harsh, unjust or unreasonable (at pages 36–
44), and balanced those considerations concluding that the dismissals “were
harsh”.5
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[11] Deputy President Wells then addressed remedy in her 19 September 2014 and
7 October 2014 decisions.
The decision of Deputy President Wells that the terminations were harsh
[12] In respect of valid reason (s.387(a) of the Act), Deputy President Wells considered
bullying behaviours alleged to have been engaged in by the Respondents against team leaders,
which were subject to findings in the Report of Mr Simmonds. In doing so, she considered for
herself and made findings on the evidence in respect of the conduct, as she was required to do.
The Deputy President accepted some conclusions reached by Mr Simmonds and reached a
different conclusion in relation to some of the conduct.6
[13] The Deputy President accepted the Appellant’s argument that bullying does not
require a particular intent behind it, finding that the test for bullying is an objective one and
that the definition for being bullied at work has been established under the Anti-bullying
jurisdiction of the Commission.7 The Deputy President accepted that the Appellant was
entitled to bring evidence of conduct not considered by Mr Simmonds in respect of which he
made no findings against the Respondents, but noted that this raised “concerns of a procedural
nature, in that the substituted findings were not put to the [Respondents]”.8
[14] The Deputy President then considered the evidence and made findings in respect of
the conduct of each of the Respondents.
[15] In respect of Mr Fuller, Deputy President Wells found that:
“The allegation of bullying Mr [P] McCullum and of undermining Mr Fraraccio’s
authority” in relation to an incident involving Mr McCullum was without basis;9
“[t]he raising of workplace disputes by Mr Fuller was in his capacity as union
delegate . . . does not denote misconduct” and Mr Simmonds’ finding that the
raising of the disputes was misconduct in the form of bullying, was wrong and was
not supported by reasons in his Report;10 and
The use of swearing by Mr Fuller “involving the contractor Mr [S] Dodge and use
of inappropriate language with Mr Phillips” was not bullying but did, constitute a
“breach of the Nyrstar Code of Business Conduct which requires employees to act
with courtesy, fairness, dignity and respect”.11
[16] In respect of Mr Cannan, Deputy President Wells found that:
an allegation that Mr Cannan was “disrespectful to Mr Fraraccio on 18 January
2013 . . . was not made out”;12
an “allegation of Mr Cannan raising his voice at Mr Fraraccio” about a “safety
issue involving barrier tape” was not “made out”;13
Mr Cannan’s behaviour toward Mr Fraraccio in relation to an incident on 31 March
2013 concerning “interference by someone in Mr Cannan’s work” and his
behaviour “when he spoken [sic] disparaging about the Process Leader,
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Mr [D] King at a pre-start meeting” was inappropriate and was a breach of the
Nyrstar Code of Business Conduct;14 and
“Mr Cannan was ‘pointedly unpleasant’ to Mr Phillips” was not proven.15
[17] Deputy President Wells then considered evidence in relation to and made findings on
the other alleged inappropriate behaviour in D-panel in which the Respondents worked. The
Deputy President noted that “many of the allegations did not specifically identify an
employee” (referring instead to D-panel in general) and stretched “back to 1999–2000”, She
also noted that “whilst a number of previous D-panel management described working in D-
panel as being harmful to their health and family life, they did not consider that any of the
conduct of Mr Fuller, Mr Cannan or other D-panel members serious enough to take any
action”.16 Nonetheless, Deputy President Wells found “some of the historic, but specific
behaviours that . . . attributed to Mr Cannan and Mr Fuller in pre-start meetings”, were of a
“bullying nature and is a breach of the Nyrstar Code of Business Conduct”17 and “there was a
valid reason for the termination of Mr Cannan and Mr Fuller”.18
[18] In respect of s.387(b) of the Act – Notification of the valid reason – Deputy President
Wells found that the 12 additional statements from other employees obtained by the Appellant
in the course of the investigation of the bullying allegations against Mr Fraraccio, preceding
the Report of Mr Simmonds and the substitution by the Appellant of its own findings in place
of those of Mr Simmonds meant the Respondents, who were advised of Mr Simmonds’
findings in the “show cause” letter, were “not notified of all of the reasons for their
dismissals” prior to or at the time of their dismissal.19
[19] In relation to s.387(c) of the Act – Opportunity to respond to any reason – Deputy
President Wells found that the conclusions of the Appellant’s Human Resources Manager in
substitution for those of Mr Simmonds in relation to allegations against the Respondents,
“together with the content of the 12 statements [relied on by the manager] were not articulated
in the ‘show cause’ letters; were not provided to Mr Cannan or Mr Fuller before their
dismissals and were not outlined in the letters of termination”.20 Deputy President Wells
found that the Respondents “were not afforded an opportunity to respond to all parts of the
reasons for dismissal, only the matters that were found proven by Mr Simmonds”,21 rendering
the termination “process procedurally unfair”.22
[20] The Deputy President also found that in circumstances where the contrition in respect
of their behaviours was a “material consideration” of the Appellant, the failure to disclose all
of the conduct relied on by the Appellant to the Respondents prevented them from addressing
the alleged behaviour.23 The Deputy President found that contrition was expressed by each
Respondent when apprised of relevant conduct, “Mr Fuller during his interview with
Mr Simmonds, and particularly that provided by Mr Cannan under cross-examination”.24
[21] Deputy President Wells concluded that “these were significant failures to accord
fairness in the dismissal process that placed the [Respondents] at a considerable disadvantage
to be able to show cause as to why their employment should not be terminated”.25
[22] Deputy President Wells found that the Respondents “were not refused the right to have
a support person present throughout the investigation”26 (s.387(d) of the Act).
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[23] Deputy President Wells dealt with warnings regarding the Respondents’ conduct, as
against “unsatisfactory performance” in the context of s.387(h) of the Act.27
[24] Deputy President Wells found the size of the Appellant’s “enterprise did not impact
the dismissal procedures followed” and that the Appellant had dedicated human resources
functions28 (ss.387(f) and (g) of the Act).
[25] Deputy President Wells then considered and made findings in relation to a number of
other relevant matters (s.387(h) of the Act), finding:
Both Respondents are “aged 50 years or older and have worked in the one job for
the one employer for 18 years” and this, “coupled with their specific skill set”, will
make it difficult for them to obtain alternate full time employment.29
Toleration or condonation by an employer of misconduct later relied upon to
terminate the employment of an employee is a circumstance bearing upon whether
a dismissal for misconduct is harsh, unjust or unreasonable. Team Leaders of D-
panel gave evidence that “over the long history of this matter, there was a tolerance
or acceptance of the conduct” of the Respondents and concluding that the
Appellant’s “management had full knowledge of the conduct” of the Respondents,
retained the Respondents’ services and did nothing about the conduct and had
“given up the right to dismiss the [Respondents] summarily for that behaviour”.30
The failure of the Appellant’s management to deal effectively and efficiently with
issues at the “heart of the relationship between members of D-panel and their Team
Leader Mr Fraraccio” festered an “environment of little respect on either side” in
which the conduct of the Respondents occurred.31
Both Respondents had a “substantially unblemished employment” record with the
Appellant “over some 18 years, having received satisfactory or good performance
appraisals”, which “did not accord” with the perception of the Appellant as relied
upon for termination in relation to their conduct and left the Respondents to
appropriately “consider they were conducting themselves satisfactorily”.32 The
Respondents’ conduct was not dealt with under the Appellant’s “Performance
Improvement and Disciplinary Policy” and the Respondents were “not afforded an
opportunity to understand and change their behaviour, which added to the
procedural deficiencies in these dismissals”.33
[26] Deputy President Wells balanced her consideration and findings in relation to the
s.387 matters, by concluding that “the dismissals of both Mr Fuller and Mr Cannan were
harsh”.34
The decision of Deputy President Wells that reinstatement was appropriate
[27] Deputy President Wells then considered remedy finding that reinstatement was
appropriate in her first decision and determined the terms of an order to restore lost pay in her
second decision.
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[28] In respect of reinstatement, Deputy President Wells considered the terms of s.390 of
the Act and relevant authorities.35 She found that it was “appropriate to order the
[Respondents’] reinstatement”,36 having regard to:
the absence of evidence that, if reinstated, the Respondents would be surplus to the
Appellant’s business requirements;37
there were no matters that indicated “undisclosed serious misconduct which would
almost certainly lead to a further termination of the [Respondents’] employment”;38
“[t]here was no evidence of a material incapacity” on the part of either Respondent
that would “affect the further performance of their contractual obligations”;39
“contrition expressed by both Mr Cannan in cross-examination and by Mr Fuller in
the interview with Mr Simmonds”, such that the Deputy President was “satisfied
that both [Respondents] are now cognisant of their conduct and are capable of
change”;40 and
the absence of an “irreparable breakdown in the trust and confidence relationship
between the employer and the [Respondents]”.41
The decision of Deputy President Wells in respect of an order for the payment of lost pay
[29] In her second decision Deputy President Wells found that it was “appropriate to make
an order for the restoration of some lost pay”, having regard to her reasons in the first
decision, the written submissions of the parties and relevant authorities.42 The order was based
on the net loss of income of each Respondent, discounted by 50% on account of:
Swearing by Mr Fuller “involving the contractor Mr Dodge and use of
inappropriate language with Mr Phillips . . . to be a breach of the Nyrstar Code of
Business Conduct which requires employees to act with courtesy, fairness, dignity
and respect”;43
Mr Cannan’s behaviour toward Mr Fraraccio in relation to an incident on 31 March
2013 and “when he spoken [sic] disparaging about the Process Leader, Mr King at
a pre-start meeting” which was a “breach of the Nyrstar Code of Business
Conduct”;44 and
Historic, but specific behaviours attributed to Mr Cannan and Mr Fuller in pre-start
meetings, found by the Deputy President to be of a “bullying nature and is a breach
of the Nyrstar Code of Business Conduct”.45
[30] In making her order in respect of the restoration of lost pay, Deputy President Wells at
the conclusion of her first decision sought written submissions relevant to the issues contained
in ss.391(3) and (4) of the Act,46 going to an amount for the remuneration lost, or likely to
have been lost, by the Respondents because of the dismissal and income earned from alternate
sources.
[31] In her second decision, the Deputy President made calculations of the notional loss
based on those submitted by the Respondents, rather than a lesser amount calculated by the
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Appellant having regard to the payment of the Respondents’ notice and accrued entitlements.
On appeal, the Appellant conceded that its calculation contained an arithmetic error which
made its way into the calculations of the Deputy President, in respect of which it undertook to
approach Deputy President Wells to have the decision and order corrected.
Appeal Grounds
[32] The Appellant’s appeal grounds fall within three broad areas:
1. An appeal against a decision in transcript47 in which Deputy President Wells
dismissed an application by the Appellants that she disqualify herself on the
basis of an alleged reasonable apprehension of bias;
2. In respect of the first decision, an appeal against the decision of Deputy
President Wells that the termination of each Respondent was harsh, which
raised issues of alleged error in findings by the Deputy President in relation to
s.387 of the Act considerations and her balancing of those considerations in
finding that the terminations were harsh, and alleged errors of law through the
misapplication of relevant principles and the introduction of erroneous
principles and, in relation to remedy, error in respect of the finding of Deputy
President Wells that reinstatement was appropriate; and
3. In respect of the second decision, denial of natural justice and/or error in
calculating lost earnings of the Respondents.
Decision in relation to bias
[33] The Appellant submitted that Deputy President Wells erred in refusing its application
that she disqualify herself from hearing the applications on the basis of a reasonable
apprehension of bias. This ground was addressed at ground 22 of the Appellant’s written
Outline of Submissions.48
[34] At the commencement of the first day of hearing (3 June 2014) before Deputy
President Wells, the Appellant made an application that the Deputy President disqualify
herself on the basis of a reasonably held “apprehension of bias”. The application was brought
on the basis that Deputy President Wells was, prior to her appointment to the Commission on
21 September 2012, Secretary of the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), Tasmania
Branch which the union was active on the Appellant’s site and was directly “involved in the
site through its organisers at that time” the Deputy President – held that position49 and that the
Deputy President had attended a CFMEU function, marking the retirement of Mr Oliver in
March 201350 and may have had an involvement in enterprise bargaining and disputes at the
site as an Officer of the CEPU,51 but no particular details were advanced. The Appellant
submitted that relevant events in relation to the matter before her occurred over the period in
which she was an official of the CEPU. The Appellant relied on the passage from Livesey v
New South Wales Bar Association (Livesey)52 in the High Court of Australia (High Court)
decision in Re Polites and Another; Ex parte The Hoyts Corporation Pty Ltd and Others (Re
Hoyts)53 which stated that:
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“. . . a judge should not sit to hear a case if in all the circumstances the parties or the
public might entertain a reasonable apprehension that he might not bring an impartial
and unprejudiced mind to the resolution of the question involved in it.”
[35] When pressed to provide particulars of anything she had been involved with as
Secretary of the CEPU which might provide a reasonable apprehension of bias, the Appellant
submitted that its application was directed, in part, to avoid a situation in which the Deputy
President might have disclosed some knowledge of a relevant event.54 The Appellant
identified no circumstance of this kind as having risen in the matter before Deputy President
Wells, either during the course of the hearing before her or in the appeal.
[36] Deputy President Wells dismissed the application finding that none of the submissions
put by the Appellant lead her to “believe that a fair minded observer” would entertain a
reasonable “apprehension of bias”.55
[37] In our view, the decision of Deputy President Wells in relation to the bias application
was correct. It correctly applied the approach in Livesey and its restatement and application in
Re Hoyts. In Re Hoyts the High Court found that Deputy President Polites erred in acceding to
an application to disqualify himself on the basis of apprehended bias on the basis that he had,
during his previous life as solicitor, given advice in relation to negotiating methods and
industrial tactics, in 1986 to a party before him in a matter arising out of events in 1988.
[38] Having noted that the circumstances in which the 1986 advice was given were
different from those which arose in the 1988 matter, the High Court said:
“In the light of these considerations and the fact that appointees to the Commission will
often have had a close association with parties before, or with issues to be determined
by, the Commission, it would not be open to the parties or to a member of the public to
entertain a reasonable apprehension that, by reason of the advice given in the quite
different circumstances of 1986, Mr Deputy President Polites might not bring an
impartial and unprejudiced mind to the assessment of the prosecutors’ conduct in 1988
or to the determination of appropriate wages and conditions, whether they be
determined retrospectively to 1988 or otherwise, for employees in Hoyts theatres.”56
[39] A past association of a Member of the Commission with a party to a proceeding before
them is insufficient, in itself, to have found a reasonable apprehension of bias. It would be
necessary for something specific to arise from the past association relevant to the discharge of
the statutory responsibilities of the Member in relation to the matter before them in order to
cause a member of the public to entertain a reasonable apprehension of bias on the part of that
Member arsing out of the past association. The past association relied upon by the Appellant
in the current matter was unspecific and devoid of any particularity. As the High Court found
in Re Hoyts, it would be wrong to accede to a disqualification application on the basis of
“non-specific and speculative grounds”,57 such as were advanced by the Appellant to Deputy
President Wells.
[40] We refuse permission to appeal in respect of the decision of Deputy President Wells in
relation to apprehended bias.
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Decision in relation to valid reason and reinstatement in the first decision
[41] The Appellant raised a broad range of appeal grounds against the second decision of
Deputy President Wells, which we have grouped into two broad categories:
1. The Deputy President made an error of law in reaching findings based on
incorrect legal principles;
2. The Deputy President erred in making findings on the evidence, involving both
general propositions as to the approach by her Honour to the evidence and
specific findings.
[42] We will examine each appeal ground in each group of appeal grounds by reference to
the numbering utilised by the Appellant in its written Outline of Submissions.58
Errors of law in reaching findings based on incorrect legal principles
[43] In ground 4 of its written Outline of Submissions, the Appellant submitted that Deputy
President Wells erred in finding that: “Industrial conduct is not capable of constituting
bullying or harassing conduct”. This submission was based on the reasoning of the Deputy
President at paragraph 231 of her decision and surrounding reasoning. At paragraph 231, the
Deputy President stated;
“On the evidence before me, much of which was provided by Nyrstar’s own witnesses,
I am satisfied that the raising of workplace disputes by Mr Fuller was in his capacity as
union delegate and were raised over concerns that were genuinely held. Whilst it may
be that D-panel raised more disputes than other panels in Casting that in itself does not
denote misconduct and was done in accordance with the dispute settlement procedures
contained in the EBA. To the extent that Mr Simmonds found the raising of disputes to
amount to misconduct of [sic] bullying, he provided no reasons for this in his report
and I am of the view his findings were in error.”
[44] The Appellant submitted that the legal principle erroneously determined and applied
was inconsistent with legal authority in The Board of Bendigo Regional Institute of Technical
and Further Education v Gregory Paul Barclay & Anor.59
[45] This appeal ground involves a serious mischaracterisation of the decision of Deputy
President Wells. The Deputy President did not make the finding attributed to her, on a
reasonable reading of her decision, or apply the approach which would arise from such a
proposition. Rather, the Deputy President noted that some conduct relied upon by the
Appellant against Mr Fuller occurred in the context of him raising concerns as a union
delegate. She did not find that his representative role took the conduct outside the scope of the
alleged bullying or other inappropriate conduct. The Deputy President’s criticism of
Mr Simmonds’ Report, in this regard, was that he made a finding without reasons disclosing
the basis upon which the particular conduct constituted bullying. Deputy President Wells
assessed the evidence as to the particular conduct and made findings as to the nature of that
conduct and whether it constituted a valid reason for termination,60 as she was required to
do.61
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[46] The Appellant also submitted that the findings and conclusions made by Deputy
President Wells in relation to the conduct were against the evidence and the weight of the
evidence. The Deputy President assessed the evidence in respect of the matters arising in
Mr Simmonds’ Report and the allegations arising from “historic behaviour”, including the
evidence of witnesses for the Appellant, and made findings in relation to specific conduct,
finding that some conduct was in breach of the Nyrstar Code of Business Conduct and other
specific conduct was of a bullying nature and in “breach” of that Code, finding on the basis of
that conduct that there was a valid reason for the terminations.62 We are not satisfied that a
significant error of fact is disclosed in the decision in this regard.
[47] No error is evident in the approach of Deputy President Wells or her findings in
relation to the conduct of the Respondents.
[48] In ground 5, the Appellant submitted that the Deputy President erred in concluding
“that behaviour directed towards a group of workers, namely management employees, the
conduct was not capable of being bullying”.63
[49] Again, this appeal ground mischaracterises the decision of Deputy President Wells.
The Deputy President did not make such a finding or apply such a principle in assessing the
conduct of the Respondents.
[50] The specific finding complained of by the Appellant to support its submission was that
“different incidents of behaviour engaged in by [Mr] Fuller towards different management
employees of the [Respondent] were not capable of constituting bullying behaviour because
they were ‘one off incidents and do not amount to repeated behaviour towards individuals’.”64
The finding related to incidents concerning Mr Dodge, a contractor, and “inappropriate
language” directed to Mr Phillips, a Team Leader. In each case, the Deputy President
considered the evidence in relation to the conduct and found that it did not constitute bullying
but was in breach of the Nyrstar Code of Business Conduct,65 a finding which was open to the
Deputy President on the evidence.
[51] It may be noted that in her decision, the Deputy President considered evidence in
relation to historic behaviour directed towards D-panel management over a period of time
and, where in relation to specified conduct attributable to the Respondents found the conduct
to be of a “bullying nature”.66
[52] In grounds 7 and 18, the Appellant submitted that the Deputy President erred in
finding that the Appellant had condoned the conduct and had “deliberately given up the right
to dismiss . . . summarily for that behaviour”.67
[53] Read in the full context of the relevant paragraph and the broader reasoning of Deputy
President Wells in relation to condonation,68 the finding (paragraph 263) complained of,
formed part of a conclusion that the Appellant’s management had condoned behaviours of the
Respondents, when they occurred, which it sought to rely on in terminating their employment.
Her conclusion was directed to the proposition advanced by the Respondents that an employer
which continues to employ an employee with full knowledge of an employee’s misconduct,
cannot later rely on that misconduct to dismiss the employee. She did so having regard to the
proposition in B, C and D v Australian Postal Corporation T/A Australia Post that toleration
or condonation by the employer of misconduct which is relied on for termination is a relevant
circumstance “bearing upon whether a dismissal for misconduct is harsh, unjust or
[2015] FWCFB 888
13
unreasonable”.69 The finding of Deputy President Wells in paragraph 263 was to the effect
that the employer had condoned the conduct it later relied on to terminate the employment of
the Respondents, reflecting the terminology adopted by Justice Gillard in Rankin v Marine
Power International Pty Ltd.70
[54] The evidence clearly supports the finding of Deputy President Wells that the
Appellant’s managers had condoned the conduct of the Respondents in that they were not
disciplined for the conduct and they were rated as satisfactory or better than satisfactory
employees in their performance reviews over the time in which the relevant conduct had
occurred. The evidence relied on by the Appellant to challenge the finding of the Deputy
President71 went largely to evidence as to the view of managers of the relevant conduct and
the evidence of that does not militate against the substantial evidence that the Respondents
were not disciplined in relation to the relevant conduct.72 This conclusion also disposes of the
Appellant’s ground 5.3.2 in its written Outline of Submissions.
[55] Deputy President Wells was entitled to make her findings as to condonation and to
include the finding that the Appellant had condoned the conduct and relied on that conduct to
effect the terminations as a relevant consideration to be weighed up in the range of matters
considered in determining whether the terminations were harsh, unjust or unreasonable.
[56] In ground 8, the Appellant submitted that the Deputy President erred in finding “[t]hat
contemporaneous file notes must be corroborated to have evidentiary weight”.73
[57] Deputy President Wells did not make a finding or apply the principle that
contemporaneous file notes must be corroborated to have evidentiary weight. The Deputy
President did not accept the Respondents’ submission that the file notes “should not be treated
by the Commission as credible evidence”.74 At paragraph 228 of her decision, the Deputy
President attributed to the file notes, which recorded Mr Fraraccio’s recollection of some
relevant events, the same weight as his oral evidence in relation to the events. In the context
of the Respondents’ submissions,75 the use of the term “corroborated” should be seen as
reflecting a distinction between file notes corroborated as an accurate recollection of the
relevant events by the affected employee and file notes which reflect only the recollection of
the author at the time, which would carry a lesser weight but weight nonetheless, subject to
the testing in cross-examination of their content and an assessment and weighing up of all
relevant evidence in relation to the relevant events, including any corroborative evidence.
[58] In relation to issues in respect of events in which the file notes provided relevant
evidence, Deputy President Wells considered all of relevant evidence and made relevant
findings in relation to the conduct of the Respondents on the basis of all of the evidence
before her.76
[59] The Appellant has not established error in relation to ground 8.
[60] In ground 9, the Appellant submitted that the Deputy President erred in finding “[t]hat
the role of representatives is irrelevant to procedural fairness”.77
[61] As with some earlier grounds, ground 9 involves a mischaracterisation of the decision
of Deputy President Wells. The Deputy President did not make the finding attributed to her or
on a reasonable reading of her decision, apply the approach which would arise from such a
proposition.
[2015] FWCFB 888
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[62] This complaint on appeal, is directed to the finding of Deputy President Wells in
respect of ss.387(b) and (c) of the Act that:
“[240] Mr Cannan and Mr Fuller were aware of the stated reasons for their dismissal
by way of a termination letter, although it was argued that details or particulars of the
reasons needed to be gleaned from other documents. Mr Wilson-Haffenden gave
evidence that part of the reason for the dismissals were the contents of the
12 statements together with Nyrstar substituting its own findings for the general
allegation of bullying (allegation 3 in the allegations letters), where Mr Simmonds had
found that allegation not to be made out. These matters, together with contrition, which
formed part of the dismissal reasoning, were not disclosed to the Applicants prior to or
at the time of dismissal. Accordingly, I have concluded that the Applicants were not
notified of all of the reasons for their dismissals.
[241] Having regard to all of the evidence it is clear Mr Cannan and Mr Fuller were
not afforded an opportunity to respond to all parts of the reasons for dismissal, only
the matters that were found proven by Mr Simmonds.”78
[63] It was a finding made on the basis of the Deputy President’s reasoning that the
substituted findings of the Appellant in place of those by Mr Simmonds in relation to some
conduct, together with the content of the 12 statements in relation to other conduct which
were not put to the Respondents and they were not afforded an opportunity to respond to the
matters arising out of the substituted findings and the 12 statements or address contrition.
[64] Those findings were made on the basis of the evidence before Deputy President Wells
including the evidence that the Appellant’s Human Resources Manager advised a “CFMEU
official that there were more statements”.79 That evidence80 went to general discussion of the
12 statements and did not appraise the Respondents, through their representative of the
specific allegations against them. On the evidence before her, Deputy President Wells was
entitled to find that those discussions did not afford fairness to Mr Cannan or Mr Fuller. It did
not make them aware of all of the particular matters putting their employment at risk or an
opportunity to put a defence of substance against the matters raised against them.
[65] There was no error in the findings of Deputy President Wells in relation to ss.387(b) or
(c) of the Act in relation to the conduct relied upon by the Appellant.
[66] In the related ground 9.4, the Appellant argued that the Deputy President erred “when
she found that the Appellant was under a positive obligation to listen to all of the taped
interviews obtained by Mr Simmonds during the investigation”. Deputy President Wells made
no finding in those terms or to that effect. Her reliance on Mr Simmonds’ tapes in respect of
contrition was for the purpose of her finding that Mr Fuller expressed contrition in the
interview with Mr Simmonds.
[67] We see no error in the decision of the Deputy President in respect of her approach and
findings in relation to “contrition”. It was a relevant consideration in respect of whether the
termination was harsh, unjust or unreasonable81 and whether reinstatement was appropriate.82
[68] In grounds 6 and 12.1, the Appellant submitted that Deputy President Wells erred in
finding “[t]hat each of the Respondents was summarily dismissed”.
[2015] FWCFB 888
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[69] No express finding to that effect was made by the Deputy President. In advancing this
ground, the Appellant relied on findings by the Deputy President:
in her conclusion in respect of s.387 of the Act that whilst she had found there was
a “valid reason for the [Respondents’] dismissals by reason of their misconduct”,
having regard to her other findings under s.387 “the conduct did not justify
summary dismissal”;83 and
in the context of her consideration of condonation under s.387(h) of the Act, the
Deputy President found that “Nyrstar had deliberately given up the right to dismiss
the [Respondents] summarily for that behaviour”.84
[70] We have dealt with the second conclusion in considering appeal grounds 7 and 18
above.
[71] The full context of the first conclusion is as follows:
“[268] Following consideration of each of the matters specified in s.387, I have
concluded that there was a valid reason for the [Respondents’] dismissals by reason of
their misconduct. Mr Cannan had, what I consider, an unblemished employment
history. Whilst Mr Fuller’s disciplinary history is not without incident, the last formal
matter was some 8 years ago and is not significant when applying ‘the standard of men
not angels’. Given their 18 years’ service to Nyrstar, ages at the time of dismissal,
family dependent responsibilities, the denial of procedural fairness in effecting the
dismissals, my findings on the condonation by Nyrstar and lack of managing the
behaviour, I am satisfied the conduct did not justify summary dismissal. I find the
dismissals of both Mr Fuller and Mr Cannan were harsh.”
[72] Clearly, the task before the Deputy President in balancing all of the s.387 matters was
to reach a conclusion as to whether the conduct, found to provide a valid reason for
termination, when balanced against the Deputy President’s other s.387 findings justified
dismissal, rather than justified summary dismissal in considering whether the termination was
harsh, unjust or unreasonable. Deputy President Wells erred in referring to summary
dismissal.
[73] The Appellant submitted that the reference to summary dismissal demonstrates that
the Deputy President erroneously decided the matters before her on the mistaken belief that
the Respondents had been “summarily dismissed” and this resulted in a fundamentally flawed
determination that the dismissals were, notwithstanding there being a valid reason, harsh.85
[74] We are not persuaded that Deputy President Wells erroneously determined the matters
on the mistaken belief that the terminations were summary dismissals.
[75] A fair reading of paragraph 268 does not suggest that the Deputy President proceeded
on that basis. The conclusion of Deputy President Wells commenced with her noting her
finding that there was a “valid reason for the [Respondents’] dismissals by reason of their
misconduct”. Thereafter, she refers to her conclusions in relation to other matters arising
under s.387 of the Act, each of which supports a finding that the terminations were harsh,
unjust or unreasonable. In dealing with each of the s.387 matters, there is nothing to indicate
[2015] FWCFB 888
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that the Deputy President was applying the statutory considerations on the basis of summary
dismissals. The Deputy President expressed her conclusion as to valid reason in terms of
satisfying that there was a “valid reason for the termination of Mr Cannan and Mr Fuller”,86
rather than a valid reason for summary dismissal. Her conclusion, wrongly expressed in terms
of summary dismissal, was to the effect that notwithstanding conduct which provides a valid
reason for termination, when balanced against the other s.387 matters the conduct does not
justify termination. That view of the reasoning of the Deputy President was supported by the
fact that the Deputy President did not address herself to the question of proportionality of
summary dismissal in relation to the conduct as a further consideration within s.387(h), the
context in which the proportionality of summary dismissal was appropriately considered.87
[76] The reference to summary dismissal in relation to condonation, which we have dealt
with in relation to grounds 7 and 18, does not detract from this view of paragraph 268 when
read as a whole and in the broader context of the Deputy President’s reasoning in relation to
s.387 of the Act.
[77] Our view of paragraph 268, read in context, is supported by the fact that Deputy
President Wells did not expressly apply a higher standard of proof,88 nor on a fair reading of
her decision did she, in practice, apply a higher standard of proof in assessing the evidence,
making findings on the evidence or reaching her conclusions on the basis of her findings on
the evidence.
[78] We are not persuaded that the reference to summary dismissal by Deputy President
Wells demonstrates that or misapplied herself on the basis of a mistaken view that the
terminations were summary dismissals. In our view it reflects a “verbal slip” which does not
warrant the “inference of an error of law” of the nature suggested by the Appellant.89 That
error does not cause a manifestly unjust or untenable outcome. It does not provide a basis for
the grant of permission to appeal.
2. Erroneous findings on the evidence
2A. General propositions as to the approach of the Deputy President to the evidence
[79] In ground 14, the Appellant submitted that Deputy President Wells erred in finding
“that the evidence of the Respondents was to be preferred to the evidence of the Appellant in
all material respects”.
[80] No finding in these terms or of this nature was made by Deputy President Wells. In
support of this ground, the Appellant referred to several findings in respect of competing
evidence which it submitted were not available on the evidence or not sufficiently
explained.90
[81] We are satisfied that the findings as to the evidence were available to Deputy President
Wells and that the basis of her findings was adequately explained.
2B. Specific findings
[82] In ground 5.3.3, the Appellant submitted that Deputy President entered into manifest
error when she concluded that “previous Team Leaders lacked the skill and training to
conduct a frank and transparent performance review”. It is not apparent to us how this appeal
[2015] FWCFB 888
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ground affects the determination of the matter by Deputy President Wells. In any case, we are
not persuaded that the Deputy President has erred in reaching this conclusion on the evidence.
[83] In ground 10, the Appellant submitted that Deputy President Wells erred in finding
that the Respondent “craved contrition” and in finding that Mr Cannan had expressed
contrition for his conduct at any relevant time prior to dismissal.
[84] The expression “craved contrition” arose in the first decision of Deputy President
Wells at paragraph 245 in the context of her consideration of the opportunity of the
Respondents to offer contrition, an opportunity which the Deputy President found was not
available to the Respondents in the absence of the disclosure of all of the conduct raised
against them. The expression “craved contrition”, although emotive, in our view refers to the
fact that the employer, in the termination letter, relied on the lack of contrition as one
consideration in its decision to terminate their employment. Understood in that way, there was
no error in the decision of Deputy President Wells. It is self evident that the Respondents
were denied the opportunity to offer contrition, remorse or regret for behaviours which were
not brought to their attention in specific terms.
[85] On the other point, the Deputy President did not find Mr Cannan had expressed
contrition for his conduct prior to dismissal. Her finding was that Mr Cannan provided
contrition under cross-examination during the hearing.91 Having had the benefit of observing
Mr Cannan in giving that evidence, the Deputy President was entitled to make that finding
and to be satisfied that he was sincere in doing so.92
[86] In ground 10.5, the Appellant submitted that the Deputy President “failed to give any
or sufficient weight” to the denial by each of the Respondents of all matters put and their
failure to accept any responsibility or to be accountable whatsoever for the alleged behaviour
and its effects on others.
[87] There is no basis to find that Deputy President Wells failed to give any or sufficient
weight to the denial by each of the Respondents of matters put to them and their failure to
accept responsibility, particularly in circumstances where many of the alleged behaviours held
against them were not put to them. No error is disclosed by this ground of appeal.
[88] In ground 11, the Appellant submitted that the Deputy President erred in finding “[t]he
failure to provide full particulars of all information was a fundamental failure of procedural
fairness warranting a finding that the dismissals were harsh”, and in ground 12 submitted that
the Deputy President erred in finding that the reliance on conduct of the Respondents beyond
that subject to findings against them by Mr Simmonds raised concerns of a procedural nature.
Similar grounds were raised in grounds 13 and 16.
[89] In advancing appeal ground 11, the Appellant again unfairly mischaracterises the
findings made by Deputy President Wells. No finding was made by her in those terms or to
that effect. The Deputy President in fact found, in the particular circumstances of the
investigation and termination process and the evidence before her, that there were “significant
failures to accord fairness in the dismissal process that placed the Respondents at a
considerable disadvantage to be able to show cause as to why their employment should not be
terminated”,93 in light of the reliance on conduct not put to the Respondents. The evidence
supported such a finding, a conclusion which also extends to appeal grounds 12, 13 and 16.
No question arose before the Deputy President or in her first decision that there was an
[2015] FWCFB 888
18
obligation at law or otherwise to provide copies of statements for the purposes of providing an
opportunity to respond to matters concerning conduct which might lead to the termination of
employment. As is evident from a fair reading of the decision of the Deputy President she
addressed herself to the evidence of whether Mr Fuller and Mr Cannan were afforded an
opportunity to respond to matters alleged against them, having regard to the evidence as to
what those matters were and if, when and how those matters were put to them prior to the
termination of their employment. The findings of the Deputy President were available to her
and disclosed no error. These appeal grounds, in substance, amounted to nothing more than a
proposition that different weight should have been given to particular aspects of the evidence
before her and a different conclusion reached.
[90] In ground 15, the Appellant submitted that the Deputy President erred in finding
“Mr Cannan and Mr Fuller did not have adequate or sufficient opportunity to acknowledge to
the employer that their conduct had been inappropriate prior to the termination of their
employment”. This finding related to the inability of the Respondents to reflect on or express
contrition in respect of conduct alleged against them which was not brought to their attention.
As we have noted in relation to ground 15 above, the Respondents were denied the
opportunity to offer contrition for behaviours which were not brought to their attention in
specific terms.
[91] Also in ground 15, the Appellant submitted that the Deputy President erred in finding
that reinstatement was appropriate. It submitted that the Deputy President did not take into
account the conduct of the employees and the impact of bullying in the workplace. This
ground has not been made out. The Deputy President had regard to the conduct and weighed it
against other considerations, including her satisfaction that the Respondents were now
cognisant of their conduct and capable of change. No error in undertaking that balance is
evident.
[92] In the context of the decision to reinstate, the Appellant also submitted that the Deputy
President’s finding that Mr Cannan had an unblemished employment history was against the
evidence and the weight of the evidence. The Deputy President found that Mr Cannan had a
“substantially unblemished employment” record94 and an unblemished employment history95
when considering whether his termination was harsh, unjust or unreasonable. The Deputy
President’s findings were reasonably open to her in light of Mr Cannan’s performance
appraisals and the absence of disciplinary action against him, notwithstanding evidence of
feedback given to Mr Cannan during the course of his employment. The Deputy President’s
findings were reasonably open to her and do not reflect error.
[93] In appeal ground 20.2 of its written Outline of Submissions, the Appellant submitted
that the Deputy President erred in taking into account “length of service, age, employment
prospects and family responsibilities were factors in determining whether the dismissal is
harsh” in circumstances where she erred in finding that:
“20.2.1 the dismissals were summary;
20.2.2 there had been a denial of procedural fairness sufficient to find that the
dismissals were harsh notwithstanding a valid reason for dismissal.
20.2.3 that there had been condonation of the Respondents’ conduct estopping the
Appellant from dismissing the Respondents”.
[2015] FWCFB 888
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[94] This appeal ground rests on errors alleged by the Appellant in the decision which have
not been substantiated in the appeal and, in that circumstance, has no basis.
[95] In appeal ground 20.4, the Appellant submitted that Deputy President Wells erred in
concluding that it was “appropriate to reinstate the Respondents” by giving insufficient
weight to a range of considerations. The Appellant has not established error on the part of
Deputy President Wells in her conclusion that reinstatement was appropriate. This ground of
appeal was no more than a complaint about the weighing up of the range of considerations,
and the evidence in relation to them, by the Deputy President which was reasonably
undertaken by her.
[96] In appeal ground 20.5 the Appellant submitted that Deputy President Wells
“misapplied the decisions referred” to by it. The Appellant identified, in this context, only the
decision in Mary Lou Anning v Virgin Australia Airlines (Anning).96 The Appellant has not
substantiated this appeal ground to the extent that it was a generalised complaint that Deputy
President Wells failed to give any or sufficient weight to the decisions relied upon by it. Even
in relation to Anning, the Appellant did not develop its submission beyond the broad
proposition it advanced. The distinction by the Deputy President of the circumstances of those
in Anning from those in the matters before her97 was properly made. The Deputy President
was required to and did determine the applications before her on the basis of the particular
facts and circumstances of the matters before her.
Conclusion in relation to the appeal against the first decision of Deputy President Wells
[97] Except in relation to appeal ground 6 and 12.1 – concerning the conclusion in respect
of s.387 of the Act at paragraph 268 that “the conduct did not justify summary dismissal”,98
we are not persuaded that the Appellant had established error in the first decision of Deputy
President Wells.
[98] We have found that the reference to summary dismissal in paragraph 268 was of the
nature of a “verbal slip” and not a substantive error. In our view, it does not affect the
reasoning in and outcome of the decision and causes no unjust or counter intuitive outcome. It
is not an error which warrants the grant of permission to appeal and intervention by the Full
Bench on appeal.
[99] In its notice of appeal, the Appellant contended that permission to appeal should be
granted in the public interest on the basis of fundament flaws as a matter of fact and law in the
decision.
[100] As is evident from our reasons above, we are not persuaded that the first decision of
Deputy President Wells is subject to fundamental error which would warrant permission to
appeal in the public interest. In this regard we note that Deputy President Wells had the
benefit of hearing the voluminous evidence, considered all of the evidence, made findings,
which were available to her on the evidence, relevant to the statutory matters going to merit
and reinstatement and balanced her conclusion of the statutory matters. Whilst reasonable
minds may have come to a different view, we are not satisfied that the findings, conclusions
and the balancing of the statutory matters by Deputy President Wells reflects significant error
which would warrant intervention on appeal.
[2015] FWCFB 888
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[101] In its notice of appeal, the Appellant also submitted that permission to appeal in the
public interest is warranted on the basis that the decision raises:
“The interaction of alleged industrial conduct with statutory rights to a safe place of
work, and statutory provisions in respect of bullying and harassment, so as to make
a finding that the dismissals were harsh is a matter that must be clarified in the
public interest”; and
“The determination of proper principles for consideration when determining
matters where bullying conduct is found to have occurred is in the public interest”.
[102] We are not persuaded that these considerations support the grant of permission to
appeal in the public interest against the first decision of Deputy President Wells. The decision
concerns the particular facts and circumstances in relation to the Respondents. It does not
raise or require the determination of general principles in relation to conduct which raises
issues of workplace safety and/or bullying.
[103] We refuse leave to appeal in respect of the first decision of Deputy President Wells.
Decision in relation to lost earnings of the Respondents in the second decision
[104] The Appellant submitted that Deputy President Wells erred in determining the level of
income lost by the Respondents in determining the order for the payment of compensation for
lost pay to the Respondents. This ground was addressed at ground 21 of the Appellant’s
written Outline of Submissions.99
[105] In written submissions in relation to ss.391(3) and (4) of the Act,100 the Respondents
acknowledged the payment of five weeks notice to each Respondent, such that the “effective
date of termination” was 27 November 2013 (Mr Cannan) and 3 December 2013
(Mr Fuller).101 However, the submission did not take this into account either by way of an
arrangement for repayment in the event of reinstatement, nor factor the payment of notice into
the calculation of lost earnings. No consideration was given to the payment of accrued
entitlements in the context of an order for reinstatement and continuity of service.
[106] In its written submissions, the Respondent102 calculated lost earnings net of notice and
accrued entitlements paid and submitted that:
“. . . if any order is made for payment of lost wages it should be fully offset against pro
rata entitlements already paid. Any leave paid but not offset should be subject to an
election by each of the Applicants that they either repay the leave amount to restore
leave entitlements or they accept the leave as taken and any leave accrual commence
from the date of termination.”103
[107] In her decision, Deputy President Wells adopted and applied the calculations advanced
by the Respondents. On appeal the Respondents accepted that its calculations were erroneous
and that the error made its way into the decision and order of Deputy President Wells in
relation to lost earnings.
[2015] FWCFB 888
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[108] We do not accept the contention of the Appellant that in accepting the Respondents’
calculations, without affording the Appellant an opportunity to be heard in relation to the
conflicting figures advanced, Deputy President Wells denied the Appellant natural justice.
The Appellant and the Respondents were each afforded the opportunity to put submissions in
relation to ss.391(3) and (4) of the Act. No attempt was made by the Appellant to seek to
respond to the Respondents’ submissions.
[109] However, we are satisfied that Deputy President Wells denied the Appellant natural
justice in adopting the Respondents’ calculation, in the face of conflicting calculations,
without providing reasons for doing so and without addressing the Appellant’s contention, set
out above, that entitlements paid should be repaid or taken to have been utilised with further
accrual to commence from the date of termination.
[110] Further, we think the failure of Deputy President Wells to offset notice against lost
earnings and to deal with the payment of accrued entitlements in the context of her decision
and order to reinstate and maintain continuity of service constituted significant error.
[111] For that reason, we grant permission to appeal in respect of the second decision of
Deputy President Wells, uphold the appeal, quash that part of the decision (in [2014] FWC
7014) relating to clause 3 of the order and quash clause 3 of the order (of 7 October 2014)104
and remit the question of the terms of an order for payment of compensation for lost pay, or
likely to have been lost by the Respondents because of their dismissal back to Deputy
President Wells for determination.
CONCLUSION
[112] In relation to each appeal:
We refuse permission to appeal in respect of the decision on transcript of Deputy
President Wells in relation to the Appellant’s bias application105 and the first
decision of Deputy President Wells106 in which she found that the terminations
were harsh and that reinstatement was appropriate; and
We grant permission to appeal in respect of the second decision of Deputy
President Wells,107 uphold the appeal, quash the decision and clause 3 of the order
of 7 October 2014108 and remit the question of the terms of an order for payment of
compensation for lost pay, or likely to have been lost by the Respondents because
of their dismissal, back to Deputy President Wells for determination.
SENIOR DEPUTY PRESIDENT
Appearances:
S Zeitz for the Appellant.
R Reitano of Counsel for the Respondents.
[2015] FWCFB 888
22
Hearing details:
2015.
Melbourne:
January 13.
Printed by authority of the Commonwealth Government Printer
Price code C, PR560788
1 [2014] FWC 5072.
2 [2014] FWC 7014.
3 In U 2013/15506.
4 In U 2013/15509.
5 [2014] FWC 5072, at para 268.
6 For example, Mr Simmonds’ finding with respect to Mr McCullum.
7 [2014] FWC 5072, at para 228.
8 [2014] FWC 5072, at para 229.
9 [2014] FWC 5072, at para 230.
10 [2014] FWC 5072, at para 231.
11 [2014] FWC 5072, at para 232.
12 [2014] FWC 5072, at para 233.
13 [2014] FWC 5072, at para 234.
14 [2014] FWC 5072, at para 235.
15 [2014] FWC 5072, at para 236.
16 [2014] FWC 5072, at para 237.
17 [2014] FWC 5072, at para 238.
18 [2014] FWC 5072, at para 239.
19 [2014] FWC 5072, at para 240.
20 [2014] FWC 5072, at para 242.
21 [2014] FWC 5072, at para 241.
22 [2014] FWC 5072, at para 243.
23 [2014] FWC 5072, at para 245.
24 [2014] FWC 5072, at para 245.
25 [2014] FWC 5072, at para 248.
26 [2014] FWC 5072, at para 249.
27 [2014] FWC 5072, at paras 266–267.
28 [2014] FWC 5072, at paras 252–253.
29 [2014] FWC 5072, at para 254.
30 [2014] FWC 5072, at paras 255–263.
31 [2014] FWC 5072, at paras 264–265.
32 [2014] FWC 5072, at para 266.
33 [2014] FWC 5072, at para 267.
34 [2014] FWC 5072, at para 268.
[2015] FWCFB 888
23
35 [2014] FWC 5072, at paras 268–275.
36 [2014] FWC 5072, at para 279.
37 [2014] FWC 5072, at para 276.
38 [2014] FWC 5072, at para 276.
39 [2014] FWC 5072, at para 276.
40 [2014] FWC 5072, at para 277.
41 [2014] FWC 5072, at para 279.
42 [2014] FWC 7014, at para 12.
43 [2014] FWC 5072, at para 232.
44 [2014] FWC 5072, at para 235, although in [2014] FWC 5072, at para 11, Deputy President Wells erroneously cites para
234, in which she found an allegation against Mr Cannan was not made out. Read in context, it is clearly a reference to an
adverse finding against Mr Cannan in respect of conduct dealt with in para 234.
45 [2014] FWC 5072, at paras 237–238.
46 [2014] FWC 5072, at para 282.
47 Appeal Book at pp. 170–171; paras 70–72.
48 Exhibit A1.
49 Appeal Book at p. 162; para 17.
50 Appeal Book at p. 162; para 18.
51 Appeal Book at p. 163; para 28.
52 (1983) 151 CLR 288.
53 (1991) 100 ALR 634.
54 Appeal Book at p. 164; para 37.
55 Appeal Book at pp. 169–170; para 70–72.
56 (1991) 100 ALR 634 at para 18.
57 (1991) 100 ALR 634 at para 19.
58 Exhibit A1.
59 (2012) HCA 32. The Appellant also cited Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014)
HCA 41 at paras 19–20, 46 and 91–93.
60 [2014] FWC 5072 at paras 230–232.
61 King v Freshmore (Vic) Pty Ltd, Print S4213 at para 24.
62 [2014] FWC 5072, at para 238.
63 Exhibit A1 at para 5.2.
64 Exhibit A1 at para 5.
65 [2014] FWC 5072, at para 232.
66 [2014] FWC 5072, at para 238.
67 [2014] FWC 5072, at para 263.
68 [2014] FWC5072, at paras 255–263.
69 [2013] FWCFB 6191, at para 42.
70 [2001] VSC 150.
71 Exhibit A1 at paras 7.1–7.10.
72 See for example, the evidence summarised in [2014] FWC 5072, at paras 96–97, 99–104, 128 and 126–141.
73 Exhibit A1 at para 8.
74 [2014] FWC 5072, at para 167.
75 [2014] FWC 5072, at paras 178 and 218.
76 [2014] FWC 5072, at paras 83 and 230 (in relation to Mr McCullum) and 56, 70, 71, 93, 132, 174, 176, 232 and 236.
77 Exhibit A1 at para 9.
78 [2014] FWC 5072, at paras 240–241.
http://www.austlii.edu.au/au/cases/vic/VSC/2001/150.html
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb6191.htm
[2015] FWCFB 888
24
79 [2014] FWC 5072, at para 243.
80 Appeal Book at pp. 473 and 534.
81 [2014] FWC 5072, at paras 245–248.
82 [2014] FWC 5072, at para 277.
83 [2014] FWC 5072, at para 268.
84 [2014] FWC 5072, at para 263.
85 Exhibit A1 at para 6.4.2.
86 [2014] FWC 5072, at para 239.
87 Potter v WorkCover Corporation (2004) 133 IR 458, at 473 , at para 55.
88 Briginshaw v Briginshaw (1938) 60 CLR 336.
89 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 291 per Kirby J.
90 Exhibit A1 at paras 14.1–14.7.
91 [2014] FWC 5072, at para 277.
92 [2014] FWC 5072, at para 277.
93 [2014] FWC 5072, at para 248.
94 [2014] FWC 5072, at para 266.
95 [2014] FWC 5072, at para 266.
96 [2012] FWA 8414.
97 [2014] FWC 5072, at para 278.
98 [2014] FWC 5072, at para 268.
99 Exhibit A1.
100 Appeal Book at pp. 144–150.
101 Appeal Book at p. 148.
102 Appeal Book at pp. 152–158.
103 Appeal Book at p. 154.
104 PR556256.
105 Appeal Book at pp. 169–170; paras 70–72.
106 [204] FWC 5072.
107 [2014] FWC 7014.
108 PR556256.
http://www.fwc.gov.au/decisionssigned/html/2012fwa8414.htm
