[2016] FWCFB 4185
The attached document replaces the document previously issued with the above code on 19
July 2016.
The Appearances have been updated to include J Bourke of Queen’s Counsel and M Follett of
Counsel who appeared for the Appellant. Paragraph [3] has been updated with this
information.
A typographical error in paragraph [38] has been amended.
Timothy Grellman
Associate to Vice President Catanzariti
Dated 21 July 2016
1
Fair Work Act 2009
s.604—Appeal of decision
Commonwealth of Australia (Australian Taxation Office) T/A Australian
Taxation Office
v
Ron Shamir
(C2016/3149)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT DEAN
COMMISSIONER RIORDAN
MELBOURNE, 19 JULY 2016
Appeal against decision [2016] FWC 1844 of Commissioner Ryan at Melbourne on 23 March
2016 in matter number U2015/11065.
[1] On 23 March 2016 Commissioner Ryan issued a decision1 (Decision) which found
that Mr Ron Shamir (Respondent) was unfairly dismissed by the Australian Taxation Office
(Appellant). The Commissioner subsequently ordered2 (Order) the reinstatement of the
Respondent pursuant to s.391(1)(b) of the Fair Work Act 2009 (FW Act). On 29 March 2016
the Appellant lodged a Notice of Appeal and sought a stay of the Commissioner’s decision.
On 30 March 2016 Senior Deputy President Hamberger ordered a stay of the Commissioner’s
decision pending the hearing and determination of the Appellant’s appeal by a Full Bench of
the Commission.3 On 6 May 2016 permission to appeal was granted and the matter was set
down for appeal.4
[2] We heard the appeal on 24 June 2016 and decided to uphold the appeal and quash the
original Decision and rehear the matter. The first part of this decision provides our reasons for
upholding the appeal. The second part of this decision provides our findings with regards to
the rehearing of the matter.
[3] At the hearing on 24 June 2016, Mr Bourke of Queen’s Counsel and Mr Follett of
Counsel sought permission to appear for the Appellant and Mr Slevin of Counsel sought
permission to appear for the Respondent. Given the complexity of the matter, and having
regard to s.596 of the FW Act, permission was granted to both parties to be represented.
The Appeal
[4] The Appellant submitted seventeen grounds of appeal which the Respondent disputed.
[5] At the heart of the dispute was whether there were errors in accordance with House v
The King.5
[2016] FWCFB 4185
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 4185
2
Appellant’s Submissions
[6] Ground one of the appeal contended that, on the basis that there was a valid reason for
the Respondent’s dismissal, the Decision and Order should be quashed pursuant to s.607(3)(a)
of the FW Act. Ground two of the appeal relied on the Full Bench authority in Parmalat Food
Products Pty Ltd v Tran6 (Parmalat) and concerned s.387(h) of the FW Act which provides
that the Commission may consider “any other matters” it considers relevant when deciding
whether a dismissal was harsh, unjust or unreasonable. The Appellant submitted that the
existence of an unresolved dispute under the Australian Taxation Office Enterprise
Agreement 2011 (ATO EA) may be a relevant consideration under s.387(h) of the FW Act.
The Appellant contended that the existence of an unresolved dispute under the ATO EA was
irrelevant, however, to the assessment of whether there was a valid reason for the dismissal of
the Respondent, pursuant to s.387(a) of the FW Act.
[7] Ground three of the appeal concerned the Commissioner’s consideration of the ATO
EA. Firstly, the Appellant contended that whether the Appellant had followed the processes in
section F of the ATO EA was not an issue in the case, making it a factor that was
inappropriate for the Commissioner to consider. Secondly, the Appellant submitted that what
the Appellant was supposed to do (or not do) under section F of the ATO EA when faced with
an employee’s deliberate non-performance of duties was not explored by the Commissioner.
Thirdly, the Appellant contended that section F of the ATO EA does not deal at all with the
circumstances before the Commissioner, where an employee refuses to perform the duties
required of them, and that therefore, this was not an issue to be dealt with under the ATO EA,
but rather, it was a matter appropriate to be dealt with under s.29(3)(c) of the Public Service
Act 1999 (PS Act).
[8] Grounds five, nine and ten of the appeal concerned what the Commissioner said were
relevant factors pursuant to s.387(h) of the FW Act. The Appellant submitted that these
included the extent to which the Respondent failed to perform his duties, the Respondent’s
level of training in his altered role and the Respondent’s level of competency to perform the
duties assigned to him. The Appellant contended that the Commissioner failed to make
adequate or appropriate findings as to these matters and that this constituted an error of
principle and a failure to provide adequate reasons. The Appellant questions, for example,
how it was possible for the Commissioner to consider and determine whether the degree of
non-performance of duties favoured the Appellant or the Respondent on overall harshness.
The Appellant submits that the Commissioner made no finding as to whether the
Respondent’s training was adequate or appropriate, making it inappropriate for the
Commissioner to decide this issue favourably for the Respondent, which the Appellant
submits occurred. Furthermore, the Appellant posits that likewise, the Commissioner made no
findings as to whether the Respondent was competent in the altered role, making it
inappropriate for the Commissioner to decide this issue favourably for the Respondent.
[9] Grounds five(a)-(c) and twelve of the appeal concerned alleged errors regarding the
Respondent’s non-performance of duties. The Appellant submitted that the Commissioner’s
use of a duty statement for the Respondent’s former role as a Senior Case Profiling Officer in
considering the question of whether the Respondent performed any of his duties in the
relevant period was a significant mistake on the basis that this was a position from which the
Respondent was originally in, but had since moved on from. The Appellant contended that
relatedly, the finding that the Respondent, in agitating and working on a dispute brought by
[2016] FWCFB 4185
3
his union against the Appellant, was performing some of the duties of his employment was
misconceived and wrong.
[10] Grounds four, six, seven and eight of the appeal concerned the construction of the
ATO EA. The Appellant contended that the Commissioner never turned his attention to clause
145 of the ATO EA, never considered what it obliged the parties to do during the pendency of
a dispute and never asked, let alone answered, the question of whether the Respondent had
failed to comply with the process by not working in accordance with his contract of
employment or whether a status quo provision meant that the Respondent could not be
required to perform the disputed duties. The Appellant contended that the Commissioner
either erred in failing to make appropriate findings as to these matters or erred in reaching
what the Appellant submitted were the wrong conclusions.
[11] In ground eleven of the appeal the Appellant submitted that the conclusion that the
dismissal was harsh was a conclusion that was not open to the Commissioner based on the
evidence or the findings made. In support of this ground of appeal, the Appellant posited that;
there was a valid reason for the dismissal, the Respondent was fully notified, there was no
finding as to the extent to which the Respondent did not perform his duties, there was no
finding as to whether the dispute resolution procedure provided for the status quo pending
resolution of the dispute and there was no finding that the Respondent lacked the adequate
skills or training.
[12] Ground thirteen of the appeal concerned the validity of a reinstatement order of the
type made by the Commissioner. The Appellant submitted that there are several reasons why
an order of the type made is invalid, or alternatively, at least fundamentally inappropriate. The
Appellant contended that the Commissioner’s order was either invalid or the discretionary
exercise of power fundamentally miscarried.
[13] In ground fourteen of the appeal the Appellant submitted that the Commissioner relied
on purported rights or entitlements forgone, including rights or entitlements under the PS Act,
that were not even identified. The Appellant contended that no such rights or entitlements
were forgone and that accordingly, the discretion miscarried.
[14] Ground fifteen of the appeal concerned what the Appellant submitted was the
Commissioner’s finding that although it was likely that a reinstatement order would result in
the Respondent being excess to requirements, this was itself a reason why he should be
reinstated, such that a redundancy payment would be forthcoming. The Appellant contended
that it is evident that the Commissioner was attempting to recreate history from 2013,
consistent with a view that the Respondent was redundant at that point in time. The Appellant
posited that this was an irrelevant matter and that the discretion thus miscarried.
[15] Ground sixteen of the appeal concerned the Commissioner’s findings that the
Appellant appeared to be characterising the Respondent as an employee who is not receptive
to change or who is not prepared to let go of the old ways of doing things.7 The Appellant
contended that the Commissioner only considered the Respondent’s evidence and contentions
and completely ignored the Appellant’s submissions. In ground seventeen of the appeal the
Appellant submitted that the Commissioner made a conclusive assertion with regards to s.391
of the Act without any consideration of relevant considerations or the provision of any
adequate reasons.
[2016] FWCFB 4185
4
[16] Relying on these grounds of appeal, the Appellant submitted that the appeal should be
upheld and that the Respondent’s application for a remedy for an unfair dismissal should be
reheard and dismissed on appeal.
Respondent’s Submissions
[17] The Respondent submitted that the Commissioner’s Decision and Order constituted an
unremarkable exercise of the Commission’s powers under Part 3-2 of the FW Act. In relation
to ground one of the appeal, the Respondent contended that the Commissioner’s finding that
non-performance of duties within s.29(3)(c) of the PS Act did not necessarily mean that that
reason was, in the circumstances of the case, a valid reason. The Respondent contended that
s.8(1) of the PS Act provides that the PS Act has effect subject to the FW Act and that
s.387(a) of the FW Act requires the Commission to consider whether the reason for
termination was valid. The Respondent further submitted that the Full Bench authority of
Dunkerly v Commonwealth of Australia8 does not support the proposition that a finding that a
dismissal was for a reason listed in 29(3) of the PS Act necessarily means that the dismissal is
for a valid reason. As such, the Respondent contended that there is no error in the
Commissioner’s approach identified in ground one of the appeal.
[18] In relation to ground two of the appeal and specifically, the Appellant’s reliance on
Parmalat, the Respondent contended that in Parmalat, the Full Bench found that in the first
instance decision of that case, an error was made by conflating the requirement to make a
finding under s.387(a) of the FW Act with the requirement to make a finding under s.387(h).
The Respondent posited that the Commissioner did not make the same error in his Decision
and submitted that it is clear on the face of the Decision that the Commissioner had not
committed the error identified in Parmalat. That the Commissioner was aware of the
distinction between s.387(a) and s.387(h) of the FW Act is clear, the Respondent contended,
at paragraph 29 of the Decision. The Respondent further contended that the Appellant ignored
the Commissioner’s alternative approach later in the Decision where the Commissioner made
it clear that if he was wrong in his approach to considering whether there was a valid reason
for the dismissal, he would still have found the dismissal to be extremely harsh in all of the
circumstances under s.387(h) of the FW Act. For this reason, the Respondent submitted that
the Appellant’s complaints with regards to whether there was a valid reason are somewhat
academic and identify no error of law.
[19] In relation to ground three of the appeal the Respondent submitted that s.387(h) directs
the Commission to take into account any other matters it considers relevant, and that the
Commissioner set out the relevant background of the events in 2013 including the
Respondent’s position being redundant and the transfer that resulted. The Respondent further
contended that the Commissioner made no finding that the Appellant had not followed the
processes in section F of the ATO EA in 2013 and observed that the Appellant had the option
to follow those processes, and if it had, that may have led to the termination of the
Respondent’s employment in accordance with section F of the ATO EA. The Respondent
contended that this was a relevant factor to take into account under s.387(h) of the FW Act
and, that as a result, the Appellant identified no error of law in ground three of the appeal.
[20] With regards to grounds five, nine and ten of the appeal, the Respondent submitted
that the Appellant asserts, but does not identify, an error of principle. The Respondent
contended that the principle as to adequate reasons was set out by a Full Bench of the
Commission in Barach v University of New South Wales9 (Barach) and that the decision of
[2016] FWCFB 4185
5
the Commissioner must be read as a whole and considered fairly. The Respondent posited that
the Commissioner made findings on each of the matters that the Appellant complained about
and the Decision articulates the essential grounds for reaching those findings. The Respondent
contended that the Decision addressed the material questions of fact and law in a manner
which disclosed the steps which led to the findings of the Comissioner. The Respondent
submitted that the Commissioner addressed each of the three matters that the Appellant
submitted had lacked adequate reasons, specifically:
With regards to the Appellant’s contention that there are inadequate findings/reasons
as to the extent to which the Respondent failed to perform his duties, the Respondent
posited that the Commissioner recorded that there was no dispute that there had been
non-performance of duties and addressed the issue of whether the work which the
Respondent performed from 10 April 2015 to 5 June 2015 involved the performance
of some duties. The Respondent contended that in those paragraphs the
Commissioner dealt with that question in a manner which articulated the essential
grounds for reaching the finding that the Respondent had performed some duties
during that period and had thereby not refused to perform all of the duties assigned
to him. The Respondent posited that taken as a whole, and read fairly, the
Commissioner’s reasoning addressed the material questions of fact and law in a
manner which disclosed the steps which led to his conclusion and that as a result, the
reasons were adequate and there is no appellable error;
In relation to the Appellant’s contention that there are inadequate findings/reasons as
to the Respondent’s level of training for his altered role, the Respondent posited that
the Commissioner concluded that the Respondent’s capacity to carry out the duties
that he was dismissed for not performing was an unresolved issue and that it was
unreasonable for the Appellant to dismiss the Respondent without resolving that
issue first. The Respondent contended that the Commissioner provided a detailed
summary of the evidence as to the competing views about the capacity of the
Respondent and that as a result, the reasons were adequate and there is no appellable
error; and
With regards to the Appellant’s contention that there are inadequate findings/reasons
as to the Respondent’s level of competency to perform his altered role, the
Respondent submitted that the Commissioner considered the competing evidence
and preferred the evidence of the witness who attested that the Respondent was not
capable of performing the duties of an Audit Leader. The Respondent contended that
as a result, the reasons are adequate in accordance with Barach and there is no
appellable error.
[21] In relation to grounds five (a) – (c) and twelve of the appeal the Respondent submitted
that even if the duty statement referred to at paragraph [46] of the Decision was a mistake, the
reference to the admission by the Appellant at paragraph [47] makes the reliance upon it of
little or no significance. The Respondent further submitted that the Commissioner did not
transform the requirement on employees to apply employment policies into a requirement to
see to it that the employer complies with the ATO EA. The Respondent contended that the
Decision concludes that workplace relations practice includes the utilisation of the dispute
procedures of the ATO EA, and is uncontroversial.
[2016] FWCFB 4185
6
[22] With regards to grounds four, six, seven and eight of the appeal the Respondent
contended that it is not clear what error these grounds seek to identify. The Respondent
posited that the complaint in these grounds of appeal is simply that inappropriate findings or
wrong conclusions were reached and that this is not an appellable error, rather it is a
complaint that the Appellant disagrees with the Commissioner’s conclusion.
[23] With regards to ground eleven of the appeal the Respondent submitted that this appeal
ground is merely a statement that the Commission has come to the wrong conclusion on the
ultimate question of unfairness. The Respondent contended that there is no basis for the
assertion that the conclusion was not open to the Commissioner on the evidence or findings
made. The Respondent further contended that the Appellant fails to read the decision as a
whole and consider it fairly, and instead proffers its own version of how the question of
unfairness should have been determined. The Respondent submitted that as a result of this,
there is no appellable error identified in this ground of appeal.
[24] With regards to ground thirteen of the appeal, the Respondent submitted that this
appeal ground is an invitation to reconsider a recent Full Bench authority in Technical and
Further Education Commission v Pykett10 (Pykett). The Respondent contended that in Pykett
a Full Bench considered the argument that a reinstatement order pursuant to s.391(1)(b) of the
FW Act must specify the position to which the person is to be appointed and rejected it. The
Respondent posited that the only reason offered by the Appellant to revisit the authority in
Pykett is the suggestion that Cartisano v Sportsmed SA Hospitals Pty Ltd11 inferentially cast
doubt on the proposition. The Respondent submitted that as the Appellant concedes the
specific issue was not argued or decided in that case, there is no cogent reason to reconsider
Pykett and that as a result, there is no appellable error identified in this ground of appeal.
[25] In relation to appeal ground fourteen, the Respondent submitted that the
Commissioner dealt with reinstatement and whether if reinstated the Respondent would be
receptive of change. The Respondent contended that the Commissioner found that the
evidence did not demonstrate that the Respondent was resistant to change and dismissed any
suggestion that challenging the decision to allocate duties or the decision to dismiss under the
PS Act supported a conclusion that the Respondent could not be reinstated. The Respondent
contended that this ground of appeal is an example of the Appellant adopting a narrow
approach to the Commissioner’s Decision, and that there is no appellable error identified in
this ground of appeal.
[26] With regards to ground fifteen of the appeal, the Respondent submitted that the
Commissioner dealt with the evidence and submissions of the Appellant and that as a result,
the Appellant cannot claim on appeal that the matters it raised at first instance and asked the
Commissioner to determine are irrelevant. In relation to ground sixteen of the appeal, the
Respondent contended that this ground is an invitation to reconsider evidence on appeal. The
Respondent further submitted that this ground of appeal appears to complain of a mistake on
the facts which attracts the prescription in s.400(1) of the FW Act. The Respondent contended
that the Appellant does not otherwise identify appellable error and makes no attempt to satisfy
the requirements in s.400(1) of the FW Act. The Respondent further contended that the
Appellant merely asks that the evidence be reconsidered and the Full Bench find otherwise,
and that as a result, there is no appellable error identified in this ground of appeal.
[27] The Respondent submitted that the Decision, read fairly and as a whole, deals with
both issues raised in ground seventeen of the appeal. The Respondent contended that the
[2016] FWCFB 4185
7
failure to perform duties is dealt with throughout the Decision and that the adherence or
otherwise to the disputes procedure is also dealt with in the Decision. The Respondent further
submitted that there was no failure to have regard to these matters and that as a result, there is
no appellable error identified in this ground of appeal.
[28] In light of these submissions, the Respondent submitted that we should find that the
Decision is not affected by appellable error and that the appeal should be dismissed. The
Respondent further submitted that if, in the alternative, error is found and the Full Bench
determines that a rehearing is necessary, the Respondent relies upon the evidence and
submissions at first instance.
Consideration
[29] We note that a decision under appeal is of a discretionary nature and such a decision
can only be successfully challenged on appeal if it is shown that the discretion was not
exercised correctly. We note that it is not open for us to substitute our view on the matters that
fell for determination before the Commissioner in the absence of error of an appellable nature
in the Commissioner’s original Decision. As the High Court said in House v The King12:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. 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.”
[30] The Respondent submitted that the Commissioner appropriately referred to ‘valid
reason’ in accordance with Selvachandran v Peteron Plastics13 (Selvachandran), by requiring
that the reason be being well founded, sound and defensible or just.14 In the Decision, the
Commissioner, relying on Selvachandran, said:
“the reason for dismissal needs to be well founded, sound, defensible or just.”15
[31] Resultantly, the Commissioner proceeded to consider the justness of the reason for the
dismissal of the Respondent, as revealed in paragraph 29 of the Decision:
“[29] … I note at this point that in this paragraph I am considering the justness of the
reason for dismissal and not the justness of the dismissal which is a much broader
consideration of all the relevant criteria in s.387.”16
[32] In Selvachandran however, Justice Northrop said:
[2016] FWCFB 4185
8
“In the Macquarie Dictionary the relevant meaning [of “valid”] is “sound, just or well
founded.” In its context in subsection 170DE(1), the adjective “valid” should be given
the meaning of sound, defensible or well founded.”
[33] Justice Northrop differentiated the meaning given to the word “valid” in the
Macquarie Dictionary from the meaning given to the word “valid” in the legislation that
preceded the FW Act. The word “just” is explicitly excluded from the meaning given to the
word “valid” by Justice Northtrop in the industrial relations context. As a result, it cannot be
concluded that Selvachandran is authority that establishes that the justness of a reason for
dismissal is captured by the scope of whether the reason was valid. On the contrary, Justice
Northrop excluded the word “just” from being a consideration when determining whether
there was a valid reason for a dismissal. It therefore follows that by considering the justness of
the reason for the dismissal of the Respondent, the Commissioner was considering an
irrelevant matter to guide him as to whether there was a valid reason for the Appellant to
dismiss the Respondent. We are therefore of the view that the Commissioner made an error in
accordance with House v The King in exercising his discretion as to whether there was a valid
reason for the Respondent’s dismissal.
[34] In grounds four, six, seven and eight of the Appellant’s submissions the Appellant
contended that the Commissioner failed to take into account a relevant consideration with
regards to the industrial dispute raised by the CPSU about the Respondent being asked to
undertake duties for which he did not have the requisite skills or training. In disputing this
contention, the Respondent posited that these submissions are complaints that inappropriate
findings or wrong conclusions were reached, and are not complaints that expose appellable
errors. Relevant to these grounds of appeal, the Commissioner said:
“[29] In the present matter the decision to dismiss Mr Shamir is unjust. I note at this
point that in this paragraph I am considering the justness of the reason for dismissal
and not the justness of the dismissal which is a much broader consideration of all of
the relevant criteria in s.387. The decision to dismiss was made before the dispute
resolution process in relation to the dispute about what duties Mr Shamir could be
required to perform was resolved. The decision to dismiss denied Mr Shamir the
opportunity to have the dispute over performance of duties resolved in accordance with
the dispute procedures of the ATO EA. The decision to dismiss Mr Shamir could only
have occurred on the basis that the ATO considered at all times that it had a right to
terminate Mr Shamir under s.29 of the PS Act and that that right trumped any
entitlement Mr Shamir had to raise a dispute under the disputes procedure of the ATO
EA and any rights that Mr Shamir had under the ATO EA and or the Fair Work Act.”17
[35] The Commissioner also considered the dispute to be relevant pursuant to s.387(h) of
the FW Act and said:
“[55] The existence of the dispute notified by the CPSU on 7 April 2015 has direct
relevance to this matter. The dispute concerned the performance of duties by Mr
Shamir. Whilst the non-performance of duties by Mr Shamir could have been dealt
with under the dispute handling procedures of the ATO EA, the ATO chose to deal
with the non-performance of duties under the PS Act. It is the very fact that the CPSU
had notified a dispute under the terms of the ATO EA which is relevant to a
consideration of the fairness of the decision of the ATO to dismiss Mr Shamir. Each of
Mr Shamir and Mr Wiesse gave evidence of their understanding that an Assistant
[2016] FWCFB 4185
9
Commissioner at the ATO gave an undertaking to the profilers when their jobs were
made redundant that no profiler would be required to perform audit work until they
were ready for it. The recollections of Mr Weisse and Mr Shamir differ as to detail but
concur as to outcome. Mr Vydelingum gave evidence to a similar effect but without
mentioning any Assistant Commissioner.
[56] Clearly the dispute related to an ongoing issue over the readiness of Mr Shamir to
do the audit work he was being required to perform. The mere existence of an
industrial dispute as to performance of duties does not prevent the ATO from acting
under s.29 of the PS Act but it is relevant in considering whether the dismissal which
flowed from the ATO’s reliance on s.29 of the PS Act is fair or unfair.”
[36] As the Commissioner found that the industrial dispute was relevant in considering
whether the dismissal was fair, it follows that the obligations imposed by the relevant
enterprise agreement during a dispute is a relevant consideration. Clause 145.5 of the ATO
EA prescribes as follows:
“Continuation of work – conduct during dispute
145.5 If there is no imminent risk to their health or safety, employees will continue to
work in accordance with the provisions of their contract of employment or, where this
is not inconsistent, established custom and practice at the workplace while any matter
in dispute is resolved.
If there is an imminent risk to their health and safety, employees will be reassigned to
alternative available work that is safe and appropriate, either at the same or at
another workplace.”
[37] As such, clause 145.5 of the ATO EA prescribed that while the dispute was being
resolved, the Respondent was obliged to continue to work in accordance with the provisions
of his contract on the condition that there is no imminent risk to his health and safety. On the
basis that the Commissioner found that the dispute was a relevant factor pursuant to s.387(a)
and s.387(h) of the FW Act, it follows that this obligation as prescribed in clause 145.5 of the
ATO EA was a relevant matter. It therefore follows that by not taking clause 145.5 of the
ATO EA into account, the Commissioner failed to consider a relevant consideration. As such,
we are persuaded that the Commissioner, by failing to consider a relevant consideration, erred
in accordance with House v The King.
[38] We are not required to identify an appellable error in every ground of appeal for there
to be a rehearing of the matter; a rehearing is warranted upon an appeal bench identifying
error in accordance with House v The King. In light of the above consideration of the parties
submissions and having considered the relevant principles of law, we are of the view that
there are errors in accordance with House v The King in at least five of the grounds of appeal,
being grounds two, four, six, seven and eight, as submitted by the Appellant. As such, we are
of the view that the Commissioner did not properly exercise the discretion which is vested in
the Commission. We are therefore satisfied that the appeal should be upheld and that we
should quash the original Decision. As such, the Commissioner’s Decision is quashed.
[39] On this basis we have proceeded to rehear the application for a remedy for an unfair
dismissal and our findings are provided below.
[2016] FWCFB 4185
10
The unfair dismissal application
[40] The Respondent applied under s.394 of the FW Act for an unfair dismissal remedy and
sought reinstatement with continuity of service and back pay on the basis that the dismissal
was harsh, unjust and unreasonable. The relevant background to the dismissal is provided in
the original Decision:
“[3] Mr Shamir was employed by the ATO as a Senior Case Profiling Officer. That was
the position advertised and each of the “Job description”, “Duty statement” and
“Selection criteria” for the position were clearly that of a profiling analyst with
significant experience. The position of Senior Case Profiling Officer was classified at
the EL1 level.
[4] In 2013 the ATO restructured its business and made the positions of Senior Case
Profiling Officer redundant. Mr Shamir and other case profiling officers were
transferred to other employment within the ATO at the same classification level. In the
case of Mr Shamir he was transferred to a position in an audit team performing an
audit role. Mr Shamir maintained his classification of EL1 but was reporting to a
Team Leader, Indirect Tax, Serious Evasion who was also at the classification level of
EL1. Mr Shamir was expected to make the transition from profiling to audit with some
training provided.
[5] Mr Shamir did not accept that he could or should be transferred into an audit role
and notwithstanding the provision of some training in relation to the audit role Mr
Shamir considered himself to lack the skills necessary to enable him to perform the
audit role he was expected to undertake.
[6] The audit role specifically required that an auditor talk with the client or the
client’s legal representative or accounting advisers. There was no such requirement in
the role of the case profiling officer.
[7] Until March 2015 there had been significant disagreement between Mr Shamir’s
then Team Leader and more senior management as to the need to require Mr Shamir to
undertake client contact duties as part of his audit role. More senior management
expected Mr Shamir to have the skills necessary to undertake the client contact duties
associated with the audit role. The Team Leader at the time was of the view that Mr
Shamir needed much more time before he would be able to perform client contact
duties.
[8] Until March 2015 Mr Shamir had not been required to have contact with clients or
client representatives as his then Team Leader accepted that Mr Shamir considered
himself to lack the skills and ability to properly interact with clients in an audit role.
[9] On 10 March 2015 a new Team Leader was appointed to the audit team
comprising Mr Shamir.
[10] On 7 April 2015 the CPSU confirmed with the ATO the existence of a dispute
under clause 145 of the ATO EA concerning the ATO requiring Mr Shamir to work in
a role outside his skill, competence and training.
[2016] FWCFB 4185
11
[11] The new Team Leader, Mr Konstantinidis, developed a proposed work plan for
Mr Shamir which required him to perform client contact duties. This was
communicated by email to Mr Shamir on 13 April 2015 and Mr Shamir responded by
email on 15 April 2015 declining to discuss the proposed work plan because the matter
was subject to the dispute notification from the CPSU.
[12] Mr Konstantinidis gave directions to Mr Shamir to perform certain specific duties
which included client contact. Mr Shamir refused to perform the duties. Mr Shamir
relied on the notification of the dispute and the status quo provisions of the ATO EA
as providing a basis for his refusal to perform duties which were in dispute.
[13] The decision to dismiss Mr Shamir was made by Mr Miller, Assistant
Commissioner, ATO People on 19 June 2015 and the reason for dismissal was the
non-performance of duties by Mr Shamir during the period 10 April 2015 and 5 June
2015. During that period
Mr Shamir only attended work on 11 days. The non-performance of duties only related
to the non-performance of the specific tasks that Mr Konstantinidis required Mr
Shamir to perform when he was attending work. Mr Shamir did perform work when
he attended work during the period 10 April 2015 and 5 June 2015 but the work he
performed was not the work that Mr Konstantinidis required him to perform.”
[41] Section 385 of the FW Act provides that:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
[42] At the heart of the case were conflicting submissions with regards to s.385(b) of the
FW Act, that is, whether the Respondent’s dismissal was harsh, unjust or unreasonable.
Section 387 of the FW Act requires the Commission, in considering whether a dismissal was
harsh, unjust or unreasonable, to take into account a number of matters specified in
paragraphs (a) to (h) of the section:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
[2016] FWCFB 4185
12
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[43] The ambit of the conduct that may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185
CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[44] We will deal with each of the paragraphs in s.387 of the FW Act in relation to the
dispute in turn below.
387(a) – valid reason
[45] The Appellant must have had a valid reason for the dismissal of the Respondent,
although it need not be the reason given to the Respondent at the time of the dismissal.18 The
reasons should be “sound, defensible and well founded”19 and should not be “capricious,
fanciful, spiteful or prejudiced.”20
[2016] FWCFB 4185
13
[46] It is not the role of the Commission to “stand in the shoes of the employer and
determine whether or not the decision made by the employer was a decision that would be
made by the court.”21 However, the Commission must consider the entire factual matrix in
determining whether an employee’s termination was for a valid reason.22
[47] The parties were in dispute as to whether there was a valid reason for the
Respondent’s dismissal. The Letter of Termination confirms that the Respondent was
dismissed for what the Appellant describes as the Respondent’s failure to undertake his
assigned duties on the eleven days on which he attended work.23 The Respondent admitted in
his submissions that during these eleven days he did not perform any of the duties assigned to
him by the Appellant.24 The Respondent contended that his non-performance was a result of
his lack of capacity to undertake the duties assigned to him and his reliance on clause 145.5 of
the ATO EA.25
[48] With regards to the Respondent’s contention that he did not have the capacity to
undertake the duties assigned to him, the Respondent posited that he did not have the required
tax knowledge to engage in client contact. The evidence indicates however that the
Respondent had completed 68 training courses that were directly relevant to his role as a
Serious Evasion Audit Leader.26 The evidence also indicates that in relation to the
Respondent’s concern that a client may ask questions which were beyond his capacity to
answer,27 the Respondent was entitled to take on notice any questions that he was unable to
answer.28 Furthermore, the evidence indicates that the Respondent had the capacity to prepare
written correspondence to clients who preferred to not communicate by telephone and that if
the Respondent had questions about any written correspondence, someone could review the
correspondence before it was sent.29
[49] It therefore follows that the weight of evidence does not support a conclusion that the
Respondent lacked the capacity to engage in the client contact that would have been required
of him in completing the work that was assigned to him by the Appellant. It also follows that
that the weight of evidence does not support a conclusion that there were no training or
support mechanisms in place to assist the Respondent to perform his assigned duties.
[50] We invited the parties to submit supplementary submissions in relation to clause 145.5
of the ATO EA. The Appellant contended that to rely on clause 145.5 of the ATO EA, the
Respondent would need to persuade us that the work assigned to him in the relevant period
was not work in accordance with his contract of employment and was not otherwise
consistent with established custom and practice. The Appellant posited that in addition to the
Respondent being unable to establish these matters, such a claim would be contrary to the
findings of the Commissioner. The Respondent submitted that the work assigned to the
Respondent in the relevant period required client contact and that ‘no client contact’ was the
status quo up to 10 March 2015 pursuant to clause 145.5 of the ATO EA. The Respondent
submitted that accordingly, clause 145.5 of the ATO EA required the Appellant to conduct
itself on the premise that it ensured that the Respondent was allocated duties other than duties
that involved client contact.
[51] We have read and considered all of the material filed by the parties including the
supplementary submissions, correspondence and relevant authorities in relation to clause
145.5 of the ATO EA. We are of the view that the clause required the Respondent to continue
to work in accordance with his contract of employment while the dispute dated 7 April 2015
proceeded. The Respondent admitted that he did not perform any of the duties assigned to him
[2016] FWCFB 4185
14
in the relevant period.30 The assigned duties that the Respondent admitted he did not perform
were part of his role as an Audit Leader to which he was transferred on 1 July 2013. There is
no basis to accept the proposition that clause 145.5 of the ATO EA entitled the Respondent to
refuse to perform the duties that were part of the role to which he was transferred to on 1 July
2013, well over a year before the 7 April 2015 dispute. There is no basis for accepting the
Respondent’s interpretation of clause 145.5 of the ATO EA which in effect meant that he
could only be required to work in the then abolished role of Profiler until the resolution of the
dispute.31 It therefore follows that the weight of evidence does not support the conclusion that
clause 145.5 of the ATO EA entitled the Respondent to refuse to perform the duties assigned
to him by the Appellant.
[52] The evidence does not provide a justification for the Respondent’s refusal to perform
the duties assigned to him by the Appellant. We are therefore of the view that there was no
justification for the non-performance of the Respondent’s duties. As there was no justification
for the non-performance of those duties, we are persuaded that it follows that the
Respondent’s non-performance of the duties was a sound, defensible and well founded reason
for his dismissal. We are persuaded that the dismissal was a result of the Respondent’s
unjustified non-performance of duties, and was not a result of “capricious, fanciful, spiteful or
prejudiced” reasoning.32 As such, having considered the submissions of the parties and the
relevant authorities, we are of the view that there was a valid reason for the dismissal of the
Respondent in accordance with s.387(a) of the FW Act.
387(b) – notification of reason and 387(c) – opportunity to respond
[53] With regards to s.387(b) and (c) of the FW Act, the Respondent submitted that he was
removed from the Appellant’s premises and locked out of his work computer and other
records during the seven day period that he was required to respond to the Appellant. The
Respondent contended that his request for access to his records was ignored and/or refused
and that as a result, the process was inherently unfair and was conducted in a manner that was
in breach of the ATO EA.
[54] The Appellant contended that the Respondent was directly notified of the steps that he
should take if he required access to the ATO premises and was given a proper opportunity to
respond and availed himself of that opportunity before a final decision was made. The
Appellant also contended that the Respondent was notified of the reason for the proposed
termination pursuant to s.29(3)(c) of the PS Act.
[55] In light of these submissions we are satisfied that the Respondent was given detailed
notice of the reasons for his dismissal in a manner which permitted him to respond to those
reasons. We are satisfied that the Respondent did not make a proper attempt to access his
records and that had he done so, the Appellant was willing to at least consider the
Respondent’s requests. This willingness on the part of the Appellant to at least consider the
Respondent’s request is revealed in the Formal Direction issued to the Respondent.33
Accordingly, each of the criteria in s.387(b) and (c) of the FW Act weigh in favour of a
conclusion that the dismissal was fair.
387(d) – support person during discussions
[56] The Respondent made no submissions with regards to s.387(d) of the FW Act in his
final submissions. In his earlier submissions dated 23 November 2015, the Respondent
[2016] FWCFB 4185
15
acknowledged that he was able to seek legal advice from his solicitor.34 As such, s.387(d) of
the FW Act is not relevant in this matter.
387(e) – unsatisfactory performance
[57] The Respondent contended that to the extent that an alleged failure to undertake some
duties is an issue of unsatisfactory performance, s.387(e) of the Act is relevant. The
Respondent contended that no warnings were received by the Respondent that there would or
could be any adverse consequences if he failed to perform his duties.
[58]
The weight of the evidence indicates that the Respondent was dismissed for the non-
performance – rather than unsatisfactory performance – of his duties. As such, we are of the
view that s.387(e) of the FW Act is not relevant in this matter.
387(f) - the size of enterprise and 387(g) –and dedicated human resources management
[59] The Respondent did not make submissions with regards to s.387(f) and (g) of the FW
Act. We are satisfied that s.387(f) and (g) of the FW Act are not relevant in this matter.
387(h) – any other relevant matter
[60] The Respondent submitted that his medical condition and potential superannuation
benefits were relevant matters pursuant to s.387(h) of the FW Act.
[61] With regards to the Respondent’s medical condition, the Respondent posited that the
Appellant failed to take the Respondent’s medical condition into account in determining
whether he should be dismissed.35 In determining whether the Respondent should be
dismissed, the Appellant confined its consideration to the eleven days that the Respondent
was at work.36 The Respondent acknowledged that during these eleven days he engaged in
CPSU-related work, attended to matters that related to his Comcare claim, attended to an
application in the Fair Work Commission and complied with a notice from the Inspector-
General of Taxation.37 On the basis that the Respondent was able to attend to these matters
during the eleven day period, it does not follow that the Respondent’s medical condition
precluded him from attending to the duties assigned to him by the Appellant in that period.
Furthermore, the Appellant on two occasions offered the Respondent temporary transfers in
light of his medical condition, which the Respondent rejected.38 Therefore, the weight of
evidence does not lead to the conclusion that the manner in which the Appellant dealt with the
Respondent’s medical condition in considering whether the Respondent should be dismissed
was harsh, unjust or unreasonable. As such, we are not persuaded that the Respondent’s
medical condition is a factor that indicates that the dismissal was harsh, unjust or
unreasonable pursuant to s.387(h) of the FW Act.
[62] In relation to the Respondent’s submission that a harsh effect of the dismissal is that
the Respondent’s superannuation benefits are significantly disadvantaged by the dismissal,
the Respondent said:
“if I’d stayed with the ATO for 20 years, then the benefits would have been significant,
whereas after only four years they are almost incidental, not significant.”39
[2016] FWCFB 4185
16
[63] It does not follow that an employer should be restrained or discouraged from
dismissing an employee who refuses to attend to reasonable duties assigned to him or her on
the basis that the employee will receive a greater level of benefits if they remain employed.
As such, we are not persuaded that this submission exposes a factor that indicates that the
dismissal was harsh, unjust or unreasonable pursuant to s.387(h) of the FW Act.
[64] In light of the above, we are of the view that:
There was a valid reason for the dismissal pursuant to s.387(a);
The factors in s.387(b), and (c) weigh in favour of a conclusion that the dismissal
was fair;
Section 387(d) is not relevant;
Section 387(e) is not relevant;
The factors in s.387(f) and (g) are not relevant; and
None of the factors pursuant to s.387(h) indicate that the dismissal was harsh, unjust
or unreasonable.
[65] In balancing these findings, we are not persuaded that the dismissal was harsh, unjust
or unreasonable pursuant to s.387 of the FW Act. As such, we are not persuaded that there
was an unfair dismissal in accordance with s.385 of the FW Act. Accordingly, the application
for a remedy for an unfair dismissal must be dismissed.
Conclusion
[66] The appeal is upheld.
[67] The application for a remedy for an unfair dismissal is dismissed.
VICE PRESIDENT
Appearances:
J Bourke of Queen’s Counsel and M Follett of Counsel for the Appellant
T Slevin of Counsel for the Respondent
Hearing details:
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
[2016] FWCFB 4185
17
9am
24 June 2016
Sydney
Printed by authority of the Commonwealth Government Printer
Price code {C}, PR582076
1 [2016] FWC 1844.
2 PR578347.
3 PR578507.
4 [2016] FWCFB 2661, 10.
5 (1936) 55 CLR 499.
6 [2016] FWCFB 1199.
7 [2016] FWC 1844, 109.
8 [2013] FWCFB 2390.
9 [2010] FWAFB 3307.
10 [2014] FWCFB 714.
11 [2015] FWCFB 1523.
12 [1936] HCA 40.
13 [1995] IRCA 333. GET PROPER REFERENE
14 Respondent’s written submissions, paragraph 13.
15 [2016] FWC 1844, 25.
16 Ibid, 29.
17 Ibid.
18 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
19 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
20 Ibid.
21 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
22 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
23 Appeal book, page 565.
24 Appeal book, page 942, paragraph 87.
25 Appeal book, page 942, paragraph 88.
26 Appeal book, page 570.
27 Appeal book, page 114, PN972.
28 Appeal book, page 173, PN1455.
29 Appeal book, page 174, PN1469.
30 Appeal Book, page 942, paragraph 87.
31 Appeal book, page 86 and 87, PN678.
32 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
33 Appeal book, page 558.
34 Appeal book, page 927, paragraph 45.
35 Appeal book, page 951, paragraph 145.
36 Appeal book, page 566.
37 Appeal book, page 941.
[2016] FWCFB 4185
18
38 Appeal book, page 566.
39 Appeal book, page 118, PN1005.
