1
[Note: refer to the Federal Court decision dated 10 January 2013 [2013] FCA 4 for result
of appeal.]
[2012] FWAFB 4810
DECISION
Fair Work Act 2009
s.604 —Appeal of decisions
DP World Sydney Limited
v
Mr Stephen Lambley
(C2012/3296)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SIMPSON SYDNEY, 22 JUNE 2012
Appeal against decision [[2012] FWA 1250] and order [PR521151] of Deputy President
Sams at Sydney on 21 March 2012 in matter number U2011/10711 re unfair dismissal -
fighting in the workplace - serious misconduct in breach of employer’s policies - applicant set
up by other employee - breach of policy justifies summary dismissal- valid reason - gravity of
misconduct enough to outweigh other mitigating factors and warrant dismissal - extenuating
circumstances need to be present for dismissal for fighting to be harsh, unjust or
unreasonable - application of factors in section 387 of the Fair Work Act - balancing factors
in section 387 of the Fair Work Act to determine if dismissal is harsh, unjust or unreasonable
- permission to appeal - significant error of discretionary nature - public interest test - Fair
Work Act ss.381,387,394, 400, 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision1 of
Deputy President Sams dated 21 March 2012 in relation to an application by Mr Stephen
Lambley for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009
(the Act). The application arose from the termination of Mr Lambley’s employment by
DP World Sydney Limited (DP World) for serious misconduct. The Deputy President found
that there was a valid reason for the dismissal, however in the circumstances, concluded that
the dismissal was harsh and ordered that Mr Lambley be reinstated.
[2] At the hearing of the appeal on 1 June 2012, Mr I Taylor SC with Ms H Eager
represented DP World, Ms L Doust, of counsel with Mr W Giddins represented Mr Lambley.
Background
[3] Mr Lambley had been employed by DP World (and its predecessor entity, Container
Terminals Australia Ltd) since October 1981. At the time of his dismissal, Mr Lambley was
employed as a Grade 5 Stevedore at the Port Botany Terminal predominantly performing
clerical duties.
AUSTRALIA FAIR WORK AUSTRALIA
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0004
[2012] FWAFB 4810
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[4] On 5 June 2011 Mr Lambley was involved in a physical altercation with another
DP World employee, Mr Peter Smith. The lead up to the altercation was subject to some
conflicting evidence, but the altercation itself was captured by three CCTV cameras. Relevant
CCTV footage of the altercation was tendered in evidence before the Deputy President and
was accepted by the parties as an accurate record of the events that constituted the reason for
the dismissal of Mr Lambley.
[5] Mr Smith was also dismissed and also made an unfair dismissal application. His
application commenced to be heard together with Mr Lambley’s application but was settled
during the course of the proceedings.
[6] The lead up to the altercation was subject to some conflicting evidence relating to the
content of a heated verbal altercation but most details were not in dispute. It was not in
contest that a heated verbal altercation occurred at about 10.05pm while Mr Lambley was
waiting for the commencement of his shift, due to commence at 10.25pm. Mr Lambley gave
evidence that he and Mr Smith were seated around four metres apart in the lunch room, they
exchanged heated words and that Mr Smith goaded him into meeting him outside for a fight
in 10 minutes time. At about 10.07pm Mr Lambley left the canteen and waited in the car park
until about 10.16pm. He then returned to the premises to go to the toilet and returned to the
car park at about 10.19pm. He waited in the car park until about 10.27pm when Mr Smith
exited the premises.
[7] When Mr Smith exited the premises Mr Lambley approached him quickly with his
clenched fists raised. Mr Lambley threw the first punch. Mr Smith did not fight back or raise
his hands, and during the entire altercation, he did not throw any punches. Mr Lambley
punched Mr Smith again in the face with force, got him into a headlock and punched him 2-3
more times, grabbed him by the shoulders and threw him to the ground, and while Mr Smith
was on the ground, moved around his body and kicked him in the head as hard as he could.
He then tried to pull Mr Smith up to continue to fight. At that stage, about 10.30pm the fight
broke up and Mr Lambley re-entered the DP World premises.
[8] As a result of investigations undertaken by DP World, both employees, and many
others were interviewed. Mr Lambley was provided with an opportunity to give his version of
the events and raise any mitigating circumstances. DP World decided to dismiss both
employees. It dismissed Mr Lambley on 1 August 2011 by letter dated 29 July 2011 with
payment of five weeks pay in lieu of notice.
[9] As noted by the Deputy President in his decision, the General Manager of the Port
Botany terminal, Mr Mark Bellears gave evidence that he believed that dismissal was
appropriate because:
“(a) the CCTV footage clearly showed that Mr Lambley punched and kicked Mr Smith
and Mr Lambley had not denied it in the meeting on 20 July 2011;
(b) Mr Lambley did not take any steps to avoid an altercation in the car park with Mr
Smith;
(c) the conduct was a contravention of DP World’s zero tolerance approach to verbal
and physical violence, as set out in the P&O Ports Human Resources Handbook.”2
[2012] FWAFB 4810
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[10] Mr Bellears said that he also took into account the following:
“(a) he [Mr Lambley] had been employed by DP World (and its predecessors) for
approximately thirty years. I considered that meant my decision was more difficult
since Mr Lambley was not an employee with short service;
(b) the potential impact it would have on him personally. I was aware that it would
have a serious impact on Mr Lambley;
(c) I was not aware of Mr Lambley being involved in any previous incident of this
type and that he had a generally good record of conduct; and
(d) based on the information gathered during the investigation, I thought it more likely
that Mr Smith had goaded or provoked Mr Lambley into engaging in the physical
altercation in the carpark.” 3
[11] The employer’s disciplinary policy (continued by DP World after its acquisition of
P &O Ports) contains the following provisions:
“P&O Ports expects all employees to achieve and maintain a high standard of conduct
and work performance at all times, with proper regard for co-operation with internal
customers and the maintenance of confidence and satisfaction with external customers.
If your performance is unsatisfactory, your immediate Manager will initially deal with
it. The Company will determine the level of investigation surrounding any breach,
after giving consideration to the nature and severity of the breach.
While a decision in respect of a breach is being made, you may be suspended on full
pay to allow investigation, discussion and representation. The type of action taken will
reflect the severity of the breach. Investigations and involvement of statutory
authorities and the police may occur for any criminal activities or statutory breaches
At all stages of the disciplinary procedure you will be allowed to request the presence
of another P&O Ports employee or appropriate support person.
Disciplinary action following a breach may include, but is not limited to, verbal and/or
written warning, suspension, removal from role, dismissal with notice or summary
dismissal.
These principles do not prevent the taking of other additional action available under
your enterprise agreement, award or conditions of employment. Nor do they prevent
further action from a third party.
If you believe that you have been treated unfairly under this procedure, then you have
the right to seek review of the decision through the Grievance Procedure or in the case
of dismissal, through Unfair Dismissal provisions of the Workplace Relations Act.
A complete copy of the Disciplinary Procedures is available in the HR Policy &
Procedure Guidelines.”
[2012] FWAFB 4810
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[12] Further, under the heading ‘Suspension, dismissal’, the Policy reads:
“Examples of typical breaches
Theft and / or fraud;
Fighting on site;
Falsification of a medical certificate or other
official documentation;
Refusal of duty;
Using abusive or threatening
language or physical force, with the
intent to harass, victimise, coerce or
injure;
Sabotage of P & O Ports’ property;
Unauthorised removal of any first aid
or safety equipment or supplies.
Examples of possible effects:
An act which seriously endangered persons or has seriously damaged property;
An act which adversely affects the business;
Involves dishonesty for personal gain or the deliberate detriment of others;
Harassment or victimisation of other persons of a repeated or serious or violent
nature;
...”
The Decision under Appeal
[13] The Deputy President’s primary conclusions are set out in the following extract from
his decision:
“[143] On any objective analysis, the undisputed evidence in this case, most particularly
the CCTV footage and the applicant’s own admissions, provide an irresistible
foundation for the respondent’s decision to dismiss the applicant. In other words, there
can be little doubt that there was a valid reason for the applicant’s dismissal (s 387(1)
of the Act). The Union’s non-submission of the subject properly acknowledged this
reality. Without more, one might even expect that the totality of Mr Taylor’s
submissions would be accepted by FWA. However, given the other extraordinary and
inexplicable circumstances revealed during the proceedings, that cannot possibly be
the end of the matter.
[144] As incredible and unbelievable as it may seem, and notwithstanding I have no
evidence from Mr Smith as to his version of events, I am prepared to accept, on the
balance of probabilities, that Mr Smith ‘set up’ the applicant in order to portray him as
the aggressor, with the express intention of securing his dismissal. I am fortified to this
conclusion, by the following evidence, which I accept.
[2012] FWAFB 4810
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(a) Mr Smith goaded the applicant into a physical altercation by threatening
that he was intending to ‘cave his head in’. I accept the applicant’s and his
son’s evidence that this threat had been repeated on a number of occasions.
(b) Mr Smith had a long history of abusive, threatening and bullying behaviour
towards the applicant, and other employees, who he perceived were not
supportive of him, or that he simply did not like.
(c) The applicant was very nervous at the prospect of a fight with Mr Smith;
someone much younger and of a larger build. He had sent his son to intervene
with Mr Smith. I accept that the applicant was so nervous as to what might
happen, that he was forced to the toilet three times, within 10 minutes. This
physiological manifestation is indicative of a ‘very, very nervous’ person. Such
an admission was embarrassing and unlikely to have been ‘made up’ by the
applicant.
(d) It is curious that Mr Smith would goad the applicant to hit him, then throw
no punches and end up on the ground in the context of having said he was
‘going to cave the applicant’s head in’. On the other hand, Mr Smith’s feigned
passivity is entirely consistent with his ‘set up’ of the applicant as the
aggressor, in order to falsely portray himself as the innocent victim.
(e) Mr Smith’s aggressive and uncalled for responses to Mr Lewis and Mr
King, who were merely coming to his assistance, is hardly demonstrative of a
person who had been injured in the altercation. The conduct taints the
suggestion of a real assault by the applicant. In addition, I reject Mr Bolger’s
suggestion that Mr Smith merely wanted to thank Mr King for helping him.
Apart from being entirely inconsistent with Mr King’s version of events, which
I accept, thanking someone does not explain Mr Smith’s phone pestering of Mr
King in the following days. What it does perfectly demonstrate is that Mr
Smith knew his plan might come undone if Mr King told management what
really occurred.
(f) Mr Smith’s ‘wink’ to Mr King makes clear to me that Mr Smith was acting
out the role of the innocent party in the fight. I found Mr King to be an
unbiased observer, who did not involve himself in workplace disagreements.
He was a credible witness whose evidence has a ‘ring of truth’ about it. He did
not ‘gild the lily’ and did not appear to have been coached as to his evidence or
to have rehearsed it. While he sometimes seemed confused when Mr Bolger
put contrary propositions to his evidence, in my view, this demonstrated a
person who was unfamiliar with giving evidence in the Tribunal and was
confused by Counsel putting things to him which he knew to be at odds with
his own recollection of the truth. Far from demonstrating a lack of credibility,
these responses enhanced it.
(g) I accept Mr McIntyre’s evidence that about a month before the incident, Mr
Smith had told him that ‘I am going to get him (the applicant), I am going to
fuck him up’. This is clear and corroborative evidence that Mr Smith was intent
on a course of action to harm the applicant through getting him dismissed. It
was probably shortly thereafter that he conceived of the plan to ‘set him up’.
[2012] FWAFB 4810
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(h) I also accept Mr Barnes’ evidence that he had overheard a discussion
between the applicant and Mr Smith in which Mr Smith blamed Ms Hunter’s
return to work on him. The root cause of Ms Hunter’s psychological injury
which was well known to management, was the harassment and bullying by Mr
Smith. Accepting Ms Hunter’s evidence, as I do, demonstrates a pattern of
reprehensible behaviour by Mr Smith towards fellow employees of which his
‘set up’ of the applicant, is but one further poor example.
The CCTV Footage
[145] The most significant evidence was the extraordinary CCTV footage. There is no
doubt it was manually manipulated by an unknown person who followed the
altercation and zoomed in at relevant times which would seem to indicate that
someone had been enlisted to ensure clear coverage of the incident. Ms Taylor’s
evidence was that the footage was ‘jumpy’, zoomed in and out and followed the
‘action’. It seems to me to be instructive that Mr Smith had said he would see the
applicant outside in 10 minutes. While there is no evidence of who manipulated the
camera, or for what purpose, it is open to conclude that the 10 minute notice was given
so Mr Smith could organise someone to manipulate the camera. I do not accept the
alternative theories that someone just happened to know a fight was on and just
followed it with the camera out of interest or a supervisor had filmed it. In either
scenario, the unknown cameraperson was guilty of not seeking to prevent the
altercation by reporting it or attempting to intervene.
[146] On the respondent’s own evidence, management was aware that ‘something
funny was going on’ in respect to the manual control of the CCTV. It acknowledged as
much in its letter to the applicant on 14 July 2011 wherein it said:
‘The physical altercation was recorded on the three CCTVs which record the
car park and turnstile area. The footage from one of the CCTVs zooms in and
out and follows the physical altercation. This could only have occurred through
manual control of the CCTV. A wide range of people have access to the CCTV
controls and could have manipulated the CCTV. Controls for the CCTVs are
located in the clerical control room, supervisor’s office, grade 6 office,
superintendent’s office, security office, Danny Bannatyne’s office and Mark
Bellears office’.
[147] I ask rhetorically, if a number of people had suggested that the applicant was ‘set
up’, was not the unknown manipulation of the camera, clear and cogent corroboration
that was, in fact, what had happened? Even with this knowledge, the respondent failed
to take its own evidence into account. This omission discloses a serious flaw in the
respondent’s decision making process to the applicant’s detriment. Moreover, this
omission sits very uncomfortably with the respondent’s other evidence that the CCTV
footage was the main factual foundation for determining the applicant’s involvement
in the fight. In other words, it was grossly unfair to primarily rely on the CCTV
footage to dismiss the applicant, but ignore the bizarre and unexplained circumstances
in which the CCTV footage was created.
[2012] FWAFB 4810
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[148] In addition, I further note that Mr King gave evidence that the CCTV footage
had ‘skipped’ about 20 seconds at the very time he said Mr Smith had feigned a punch
at him. This skipping is consistent with Ms Taylor’s observations of the footage. It
seems an entirely plausible conclusion that someone unknown - probably in Ms
Smith’s camp - having viewed the footage and observed a punch thrown by Mr Smith
towards Mr King, would have found it most unhelpful to Mr Smith’s version of
events. Was the footage manipulated further to erase it? I accept that this is
supposition, but it is plausible.
[149] In my opinion, it is reasonable to find that the respondent’s decision to dismiss
the applicant, knowing the history and previous conduct of Mr Smith (most notably
towards Ms Hunter) was coloured and ultimately tainted by a perception - which Ms
Taylor candidly acknowledged - that there would be trouble if one of them was
reinstated, but not the other. I apprehend that Mr Smith had not foreshadowed his own
dismissal. To put it bluntly, the respondent appears to have taken the easy way out by
dismissing both of them. However, it did so without properly weighing up (or at all)
Mr Smith’s motive, provocation, past history and in the applicant’s favour, his long
and relatively unblemished service, honesty during the investigation and his remorse
and contrition. As the Full Court of the Federal Court said in QANTAS Airways
Limited v Cornwall [1998] 83 IR 102:
‘We have already stated that the respondent, in the present case, struck his
supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on
this conduct as a reason when it terminated the respondent's employment. The
question is whether there was a valid reason. In general, conduct of that kind
would plainly provide a valid reason. However, conduct is not committed in a
vacuum, but in the course of the interaction of persons and circumstances, and
the events which lead up to an action and those which accompany it may
qualify or characterise the nature of the conduct involved. Such circumstances
are clearly to be distinguished from the consequences of a termination of
employment, if that ensues, which are excluded by Victoria v The
Commonwealth and Cosco Holdings. In our opinion, the trial judge was
entitled to take into account the matters summarised at the commencement of
these reasons, and to conclude from them that the conduct found against the
respondent did not establish a valid reason for his dismissal’.
[150] When viewed in this way whilst I am satisfied that the respondent had a valid
reason for the applicant’s dismissal (see Culpepper v International Ship Management
PR960313), I am nevertheless comfortably satisfied that his dismissal was otherwise
‘harsh, unreasonable and unjust’ within the meaning of s 387 of the Act.
[151] I make this finding because I believe the applicant’s dismissal was an utterly
flawed and unbalanced response to the incident of 5 June 2011. Moreover, the
respondent’s decision has resulted in a ‘manifest injustice’, of the rare kind, expressed
by the majority of the Full Bench in Lawrence v Coal & Allied Mining Services Pty
Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089, where Lawler VP
and Roberts C said at 27-29:
‘We respectfully endorse those observations. The preservation of public
confidence in the administration of justice is a matter of deep public interest.
That confidence tends to be undermined by decisions that are manifestly
[2012] FWAFB 4810
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unjust. We agree that the public interest is engaged in a case where it is evident
that a manifest injustice has been done such that where an appeal bench forms
that view there is a public interest in a grant of permission to appeal.
This is not to say that there will be a public interest in granting permission to
appeal in any case to which s.400 applies where error is identified. To adopt
that approach would effectively set the limitation in s.400 at nought and would
frustrate the obvious intent of the legislature to limit appeals from unfair
dismissal decisions. Moreover, it is not to say that there will be a public interest
in granting permission to appeal merely because the appeal bench would have
reached a different conclusion from the member at first instance. Again, such
an approach would be at odds with the principles in House v R. Rather, we
have in mind a case where the outcome is so at odds with what the Full Bench
considers a proper outcome that the epithet “manifest injustice” can properly
applied. Such a conclusion will only be reached in rare cases.
In our view, this is such a case. For reasons which will become evident, we
consider that the proper exercise of discretion at first instance in this case was,
on the evidence before the Commissioner, so clearly in favour of a finding that
the dismissal was harsh that the decision to dismiss Mr Lawrence’s application
for an unfair dismissal remedy constitutes a manifest injustice that engages the
public interest. We are satisfied that there is a public interest in grant of
permission to appeal and grant that permission. The appeal then proceeds as a
re-hearing’.
[152] In addition, I am fortified in my findings by the open and honest
acknowledgements of Ms Taylor, and the extraordinary admission by Mr Bellears, that
while he had considered all of the matters raised by the applicant in mitigation during
the investigation, ultimately only two facts were determinative - the applicant’s
admissions and the CCTV footage. This was a balancing exercise so seriously flawed
and unfairly weighted against the applicant’s interests, that it constitutes a gross
breach of procedural fairness.
[153] The evidence of the respondent discloses that between 5 June 2011 and 29 July
2011, the respondent took no steps to investigate, let alone make findings about Mr
Smith’s history as a bully in the workplace. Ms Taylor even admitted that in the
meetings with Mr Bellears and Ms Humphreys, the subject was not even raised. Mr
Bellears accepted that they had ‘closed the door’ on Mr Smith’s history. Moreover,
this evidence was against a backdrop of the other evidence of Ms Taylor that she:
(a) agreed it was well known that Mr Smith had a bullying reputation.
(b) knew Ms Hunter had been off work on workers’ compensation as a direct
result of Mr Smith’s behaviour towards her.
(c) knew someone had told her that ‘Romper’ (Mr Smith) had set up the
cameras.
(d) suspected that Mr Lewis had been ‘pre briefed’ before his interview to
refute any racist comment having been made by Mr Smith towards Mr King.
[2012] FWAFB 4810
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(e) had been told by Mr McIntyre that he was very scared for himself and his
family if he gave a statement during the investigation. I note that what Mr
McIntyre told her was entirely consistent with his statement in these
proceedings.
(f) had been told by the applicant, the very next day after the incident, that Mr
Smith called him a ‘dog’ and asked him outside. I note that the applicant’s
version of events has been consistent since the day after the incident to the
evidence he gave in these proceedings. During oral evidence, he recalled
conversations without referring to his statement.
(g) acknowledged that Mr Smith’s history was a very relevant factor in the
decision to dismiss the applicant and it had not been considered.
[154] Moreover, the respondent’s evidence and its own conclusions of the
investigation reveal two startling, yet seemingly overlooked considerations which
plainly, and overwhelmingly, fell in the applicant’s favour. Firstly, that the evidence
and statements of Mr King and Mr Michael Lambley during the investigation, were
believable, and secondly, Ms Taylor and Mr Bellears both accepted that it was more
likely that the applicant’s account of events was correct.
[155] Given these concessions I am baffled to understand how a decision was made to
dismiss the applicant; let alone deliver the same punishment to him as Mr Smith
received. In addition, it seems plain enough to me that the respondent’s procedures as
to protecting employees from bullying, were not able to stymie, let alone stop, Mr
Smith’s ongoing unacceptable conduct. I agree with Ms Doust that it was perfectly
understandable that employees and the applicant in particular, had lost confidence in
the respondent’s policies and procedures being able to protect employees from
bullying in the workplace.”
[14] After considering all of the other criteria in s.387 of the Act the Deputy President
found the termination was harsh, unjust and unreasonable and ordered that Mr Lambley be
reinstated in his employment with continuity of service and partial payment of lost
remuneration.
The Grounds of Appeal
[15] Counsel for DP World identified three grounds of appeal as follows:
Deputy President Sams erred in finding that Mr Lambley was set up;
Deputy President Sams erred in failing to find that the gravity of the misconduct
outweighed all other factors;
Deputy President Sams erred in ordering reinstatement.
The Nature of the Appeal
[16] Section 400 of the Act limits the grounds on which permission to appeal can be
granted in unfair dismissal matters to cases where Fair Work Australia considers it in the
public interest to grant permission to appeal. This criterion has been described as follows:4
[2012] FWAFB 4810
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“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference
to undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters, it seems to us that none of those elements is present in
this case.”
[17] The appeal grounds challenge aspects of the decision which are of a discretionary
nature. Hence the following principles from House v R 5 must be applied to the determination
of whether an error occurred in the decision-making process:
“It is not enough that the judges composing the appellate court consider that, if they had
been in the position of the primary judge, they would have taken a different course. It
must appear that some error has been made in exercising the discretion. If the judge
acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or
affect him, if he mistakes the facts, if he does not take into account some material
consideration, then his determination should be reviewed and the appellate court may
exercise its own discretion in substitution for his if it has the materials for doing so. It
may not appear how the primary judge has reached the result embodied in his order,
but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer
that in some way there has been a failure properly to exercise the discretion which the
law reposes in the court of first instance. In such a case, although the nature of the
error may not be discoverable, the exercise of the discretion is reviewed on the ground
that a substantial wrong has in fact occurred.”
The Gravity of the Conduct (second appeal ground)
[18] DP World submits that in view of the findings of the Deputy President as to the very
serious nature of the conduct, the conclusion that the assault of Mr Smith by Mr Lambley
amounted to a valid reason for the dismissal and the terms of the DP World disciplinary
policy against fighting, the Deputy President’s conclusion that the termination was
nevertheless harsh, unjust and unreasonable was contrary to authority and constituted an error
because it was a decision that was unreasonable and plainly unjust.
[19] It was accepted by both sides that a leading case concerning fighting at the workplace
is the decision of Justice Moore in AWU-FIME Amalgamated Union v Queensland Alumina
Limited.6 In that case the relevance of employer policies against fighting were described by
his Honour as follows:
[2012] FWAFB 4810
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“It is first necessary to consider whether QAL has proved that there was a valid reason
or valid reasons connected with the employee’s capacity or conduct based on the
operational requirements of the undertaking. The only relevant conduct is the fighting
that occurred in the crib room and the subsequent refusal of both Merritt and Sonter
initially to tell the truth when interviewed by McIntosh. It is clear that QAL has a
policy that fighting at work is a dismissible offence. Both Sonter and Merritt were
aware of this policy. It is not a policy that is entirely rigid in the sense that any person
fighting at work will necessarily be dismissed. It allows for exceptions that might arise
in particular circumstances. However it is plain that QAL has endeavoured to ensure
that no fighting occurs by indicating that the likelihood is that dismissal would follow
if it did. QAL operates a large, complex and dangerous industrial plant and the failure
of employees to carry out their duties properly can, potentially, lead to death or injury
to the workforce and significant loss of production to QAL.”
[20] His Honour then considered a number of decisions of industrial tribunals regarding
fighting at the workplace and said:
“What emerges from these decisions is that whether a dismissal or termination arising
from a fight in the workplace is harsh, unjust or unreasonable will depend very much
on the circumstances. However, generally the attitude of industrial tribunals tends to be
that in the absence of extenuating circumstances, a dismissal for fighting will not be
viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and
often do, concern the circumstances in which the fight occurred as well as other
considerations such as the length of service of the employee, including their work
record, and whether he or she was in a supervisory position. As to the circumstances of
the fight, relevant considerations include whether the dismissed employee was
provoked and whether he or she was acting in self defence.”
[21] Counsel for DP World also relied on a recent Full Bench decision in Parmalat Food
Products Pty Ltd v Wililo7 where it was said:
“[24] ... The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open....”
[22] Counsel for Mr Lambley submits that the conclusion reached by the Deputy President
that the termination was harsh, unjust and unreasonable was a discretionary decision reached
in the absence of error. It was submitted that this appeal ground amounts to no more than an
attempt to have the appeal bench substitute its own decision on the balancing of factors
involved in reaching a conclusion on the fairness of the dismissal.
[23] Section 381 of the Act sets out the object of Part 3-2 — Unfair Dismissal. It reads:
“381 Object of this Part
(1) The object of this Part is:
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(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
“fair go all round” is accorded to both the employer and employee concerned.”
[24] This object refers to the needs of employers, the needs of employees, and ensuring that
a ‘fair go all round’ is accorded to both the employer and employee concerned.
[25] Section 387 of the Act sets out factors which the tribunal must take into account in
considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable. It is well
established that each of these factors must be given due weight.8 An appeal bench will only
in unusual circumstances overturn a discretionary decision which does take account of and
gives weight to all the factors required, and in which the error is alleged to be one of failure to
appropriately balance those factors.
[26] However, those factors although not an exhaustive list, are a strong indicator of the
elements of a fair dismissal. In circumstances where a valid reason is found to exist, and
procedural fairness has been afforded, significant mitigating circumstances are required in
order to lead to a conclusion that the termination is nevertheless harsh, unjust or
unreasonable. In order to give those factors appropriate weight, they need to be seen as such
and balanced against factors that might otherwise lead to the characterisation of the dismissal
as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a
conclusion must be reached after giving full effect to the findings on all relevant
circumstances. Different employers may approach a misconduct matter differently and take
different disciplinary actions. A tribunal member determining whether a dismissal is harsh,
unjust or unreasonable does not stand in the shoes of the employer and determine what action
they would take in the circumstances. Only if the employer’s disciplinary actions are judged
to lie outside the description of a reasonable and just response to the relevant conduct and are
disproportionate, should a finding of unreasonableness or injustice be made.9
[27] This present matter concerns fighting by Mr Lambley. The principles outlined above
establish that fighting at the workplace usually amounts to a valid reason for dismissal, an
employer has every right to establish policies against fighting and an employer has every right
to ensure compliance with those policies by dismissing employees who are found to have
engaged in fighting absent some extenuating circumstances. These principles are consistent,
[2012] FWAFB 4810
13
for example, with regulation 1.07 of the Fair Work Act Regulations 2009, which relevantly
defines ‘serious misconduct’ as including conduct that causes serious and imminent risk to the
health or safety of a person, or assault. Importantly, the authorities also establish that the
dismissal of an employee found guilty of fighting at the workplace can only be found to be
harsh, unjust or unreasonable in extenuating circumstances.
[28] The Deputy President in the extracts set out above paid due regard to the
circumstances of the employee including his long service. We accept that much of this
analysis is appropriate. He is also critical of the decision-making process of the employer, the
failure to fully consider allegations of Mr Smith’s bullying, and the failure to have regard to
allegations that Mr Smith set up Mr Lambley. We do not consider that these matters were
soundly balanced by the Deputy President by way of a finding that they amount to significant
mitigating factors that render Mr Lambley’s otherwise serious misconduct excusable. Such
an approach does not give appropriate weight to the seriousness of the conduct, nor the need
for employers to be able to establish policies against fighting, and to enforce such policies
when they are breached. It does not accord a fair go all round to each side. Nor do we
consider that these factors are capable of amounting to such mitigating circumstances.
Mr Lambley may have been goaded into a fight, but he engaged in it willingly and after
contemplation. He had other choices and he chose not to follow them. He chose to fight. In
the fight he was the aggressor - indeed the sole aggressor. He cannot be described as acting in
self defence. He did not simply throw a single unwise punch. He continued to assault
Mr Smith when Mr Smith was not fighting back and when Mr Smith was on the ground,
moved into a position to kick him in the head as hard as he could. On the scale of physical
altercations Mr Lambely’s conduct was very high on the scale.
[29] If Mr Smith had set up Mr Lambley to engage in this conduct in front of CCTV
cameras, it does not in any way excuse Mr Lambley’s conduct or suggest that an employer
cannot reasonably discipline an employee for the conduct in which they have clearly engaged.
We do not consider that this possibility, even if correct, is capable of outweighing the
otherwise inherent fairness of dismissing an employee for engaging in a serious assault after
following a procedurally fair investigation.
[30] If the history of the conflict between the two involved bullying and intimidation by
Mr Smith, this did not excuse the conduct. An employer is entitled to implement its
disciplinary policies in a way designed to ensure employees comply with its standards of
behaviour.
[31] In our view the Deputy President did not adopt an approach consistent with these
principles and his conclusion was unreasonable and plainly unjust as a result. In our view the
Deputy President has appropriately had regard to the circumstances of the dismissed
employee including his long service, and other matters. In many respects his careful analysis
of those circumstances is useful and appropriate. However, he has not appropriately balanced
all the circumstances of the matter nor given due weight to the factors in s.387. Counsel for
DP World has established that the Deputy President’s decision in this respect involves an
error of the House v R kind.
[32] In view of our conclusion on this ground of appeal it is unnecessary that we consider
the other grounds of appeal.
[2012] FWAFB 4810
14
Conclusion
[33] For the above reasons we consider that the Deputy President erred in the exercise of
his discretion. As a result there has been an unjust result to Mr Lambley’s unfair dismissal
application. In our view it is in the public interest that decisions in unfair dismissal matters are
consistent with established principles and involve the sound exercise of the discretions vested
in the tribunal. We therefore grant permission to appeal, allow the appeal and quash the
decision of the Deputy President.
VICE PRESIDENT WATSON
Appearances:
I Taylor, SC, with H Eager for DP World Sydney Limited.
L Doust, of counsel, with W Giddins for Mr Lambley.
Hearing details:
2012.
Sydney.
June, 1.
Printed by authority of the Commonwealth Government Printer
Price code C, PR524819
1 [2012] FWA 1250.
2 Ibid at para [95].
3 Ibid at para [96].
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
5 (1936) 55 CLR 499.
6 [1995] IRCA 346; (1995) 62 IR 385.
7 [2011] FWAFB 1166.
[2012] FWAFB 4810
15
8 R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32, 19 July 1979, Gibbs, Mason, Murphy JJ per Mason and Gibbs
JJ agreeing at 18, cited in Chubb Security Australia Pty Ltd v Thomas, Print S2679 at para [37], 2 February 2000,
McIntyre VP, Marsh SDP, Larkin C.
9 Bryne v Australian Airlines (1995) 185 CLR 410; see also Australian Meat Holdings Pty Ltd v McLauchlan, Print Q1625.
