1
Fair Work Act 2009
s.604 - Appeal of decisions
City of Stirling
v
Mr Kevin Emery
(C2018/843)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT SYDNEY, 20 APRIL 2018
Appeal against decision [2018] FWC 914 of Deputy President Binet at Perth on 9 February
2018 in matter number U2017/2986.
[1] The City of Stirling (‘City’) has lodged an appeal, for which permission is required,
against a Decision1 issued by Deputy President Binet on 9 February 2018, in which she
determined that Mr Kevin Emery had been unfairly dismissed. She ordered that Mr Emery be
reinstated and paid lost remuneration from the date of dismissal within 14 days, namely by 23
February 2018.
[2] The City of Stirling sought a stay of the Deputy President’s order. On 22 February
2018 Deputy President Colman granted the stay,2 suspending the City’s obligation to reinstate
Mr Emery and pay lost remuneration, pending determination of the appeal.
[3] The application for permission to appeal and the appeal were listed before us on 4
April 2018. For the reasons set out below, we have decided to grant permission to appeal,
quash the Decision and remit Mr Emery’s application for an unfair dismissal remedy to
Commissioner Bissett for rehearing.
Decision at first instance
[4] Mr Emery was employed as a beach inspector with the City of Stirling in Perth. He
was dismissed for having modified the air-conditioning units in two beach inspector vehicles
owned by the City. Mr Emery received a termination letter from the City, stating that the
unauthorised modifications to the vehicles were in breach of policy and had resulted in
substantial damage. The modifications were also said to have affected the capacity of the City
to provide life-saving services to the community.
[5] Mr Emery claimed that his dismissal was unfair. In particular, he said that he made the
modifications to the vehicles with the authority of his supervisor, Mr Snook. Although he was
1 [2018] FWC 914, (‘Decision’).
2 [2018] FWC 1112; PR600622.
[2018] FWCFB 2279
DECISION
E AUSTRALIA FairWork Commission
2
employed as a beach inspector, Mr Emery said that he possessed the required expertise to
perform the modifications, and that he had performed similar tasks for the City during his
employment. Mr Emery also contended that the investigation into his conduct was unfair, as it
was undertaken by Mr Snook, whose role in the matter was at issue.
[6] Mr Emery gave evidence in the proceedings before the Deputy President, as did
another beach inspector. Six witnesses gave evidence for the City of Stirling, including Mr
Snook.
[7] A centrally important and contested fact was whether Mr Snook authorised Mr Emery
to make the modifications to the vehicles. Mr Emery gave evidence that Mr Snook approved
the modifications. Mr Snook denied this.3 The Deputy President preferred the evidence of Mr
Emery and concluded that she was ‘not satisfied that the modifications were unauthorised.’4
[8] In the course of her analysis of the evidence, the Deputy President stated that Mr
Emery had given uncontested evidence that Mr Snook was on a last warning. She stated that
this ‘would provide a clear motivation for Mr Snook to deny authorising the modifications’.5
She also considered that Mr Snook’s failure to exclude himself from the investigation lent
credibility to the ‘assertion that Mr Snook had something to hide’.6
[9] The Deputy President further found that the auto-electrical modifications Mr Emery
made to the vehicles were not so far removed from the tasks he was expected to perform as to
constitute a valid reason for dismissal. She considered that he had been encouraged by the
City to perform similar tasks, given his prior training and experience in auto-electrics.7
[10] The Deputy President was not satisfied that Mr Emery’s conduct constituted a valid
reason for his dismissal. She concluded that, even if there was a valid reason for the dismissal,
the lack of procedural fairness afforded to Mr Emery rendered his termination harsh, unjust
and unreasonable.8
Permission to appeal
[11] An appeal under s.604 of the Fair Work Act 2009 (‘FW Act’) is an appeal by way of
rehearing and the Commission’s powers on appeal are only exercisable if there is error on the
part of the primary decision maker.9 There is no right to appeal and an appeal may only be
made with the permission of the Commission. Section 604(2) of the FW Act states:
“Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.”
3 Decision at [67].
4 Decision at [78].
5 Decision at [74(f)].
6 Decision at [77], [165].
7 Decision at [96].
8 Decision at [135], [172].
9 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3
[12] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.”
[13] In Coal & Allied Mining Services Pty Ltd v Lawler and others the Federal Court
characterised the test under s.400 as ‘stringent’.10 The task of assessing whether the public
interest test is met is a discretionary one involving a broad value judgment.11 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some
of the considerations that may attract the public interest:
‘... the public interest might be attracted where a matter raises 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.’12
[14] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.13 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.14
[15] We have concluded that permission to appeal should be granted in this matter. For the
reasons given below, the propositions that Mr Snook had a motivation to deny authorising the
modifications because he was on a final warning, and that he had something to hide, were not
put to Mr Snook and no opportunity was afforded to the City to contest or resist them. The
City was thereby denied procedural fairness. This constituted appealable error, going to the
Deputy President’s jurisdiction in determining whether Mr Emery was unfairly dismissed. It
manifested an injustice. Accordingly, we find that the public interest for the purposes of
granting permission to appeal under s.400(1) has been enlivened. Permission to appeal is
granted.
10 (2011) 192 FCR 78 at [43].
11 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
12 [2010] FWAFB 5343, 197 IR 266 at [27].
13 Wan v AIRC (2001) 116 FCR 481 at [30].
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
4
The Appeal
[16] The City of Stirling advanced 12 grounds of appeal, variously contending that the
Deputy President’s Decision was affected by errors of law or significant errors of fact, that
these enliven the public interest such as to warrant permission to appeal being granted, and
that the appeal should be upheld. At the hearing before us, the City sought leave to amend its
notice of appeal to add a thirteenth ground of appeal concerning the question of Mr Emery’s
mitigation of loss. This was not opposed, and leave to amend was granted.
[17] The first ground of appeal contends that the Deputy President made findings on two
matters in respect of which the City had no notice, and that it was thereby denied procedural
fairness.
[18] First, at paragraph 74(f) of the Decision, the Deputy President stated:
“Mr Emery gave unchallenged evidence that Mr Snook was on a last warning and
therefore Mr Snook was “loathe (sic) to commit any instructions to writing”[50]. This
would also provide a clear motivation for Mr Snook to deny authorising the
modifications.”
[19] The footnote refers to the following passage from transcript, where Mr Emery is asked
in cross-examination whether there is any document recording Mr Snook’s authorisation of
the modifications to the vehicles:
“PN1030
There is no document in relation to it? --- No. My understanding is Mr Snook is on his
last warning and therefore is very loathe (sic) to commit anything to writing. Most
things are done verbally over the phone.”
[20] Mr Emery had not previously referred in his evidence or written materials to Mr
Snook being on a final warning, or that Mr Snook was loath to commit instructions to writing.
Further, Mr Emery had not contended, either directly or through his counsel, that this would
provide a motivation for Mr Snook to deny authorising the modifications. Mr Emery did not
raise this with the City of Stirling during the investigation, nor did he or his counsel raise the
matter before the Deputy President.
[21] The City of Stirling submitted that Mr Snook was the first witness to give evidence
before the Deputy President. There was an order that witnesses remain out of the courtroom
until they had given evidence. Mr Snook did not hear the assertion about him allegedly being
on a final warning or being loath to commit instructions to writing, and it was not put to him
in cross-examination. Against this, Mr Emery contended that the City of Stirling’s counsel
heard the evidence of Mr Emery, and that the City chose not to address it either through
evidence or submissions.15 He contended that the Deputy President was entitled to make the
finding she did, having heard and observed the witnesses in the witness box.
[22] It is necessary to distinguish between Mr Emery’s evidence under cross-examination
that he believed Mr Snook was on a final warning and loath to commit instructions to writing,
15 Respondent’s submissions on appeal, paragraph 13.
5
and the Deputy President’s inference that this provided a “clear motivation for Mr Snook to
deny authorising the modifications”.
[23] Mr Emery’s evidence that Mr Snook was on a final warning and loath to commit
instructions to writing was, as the Deputy President says, uncontested. Counsel for the City of
Stirling is presumed to have heard Mr Emery’s evidence to this effect, in answer to his
question in cross-examination. Theoretically, counsel for the City could have brought this to
Mr Snook’s attention. The City’s counsel might have expected Mr Emery’s counsel to put the
matter to Mr Snook in cross-examination, if the matter was to be relied on. This did not occur.
In the ordinary course, new evidence is not to be adduced from a witness under re-
examination, the latter being confined to issues arising from cross-examination. Accordingly,
it would have been unorthodox for the City’s counsel to raise the matter of the final warning
with Mr Snook in re-examination. Neither side appears to have seen this evidence as
significant. Mr Emery made no further use of it in his case. Nevertheless, one can say that Mr
Emery gave evidence about the final warning, and his belief that Mr Snook was reluctant to
put instructions in writing, and that this evidence was not contradicted. Further, once the
statement fell from Mr Emery, the City was, most belatedly, on notice of this matter.
[24] However, the inference that the Deputy President drew from this evidence, namely
that the warning provided a motivation for Mr Snook to deny authorising the modifications,
was a matter in respect of which the City of Stirling had no notice. We note that, during the
cross-examination of Ms Watts, the City’s Employee Relations Coordinator, the Deputy
President asked the witness whether it would not be “natural for (Mr Snook) to put the blame
somewhere else”, if in fact he had authorised modifications that had damaged the vehicle.16
The witness says no. Mr Snook was not asked about this. However, this question concerns a
different proposition to the one in respect of which the Deputy President drew an inference,
namely that, because Mr Snook was on a final warning, this would give him a motivation to
deny approving the modifications. The City had no notice of this proposition. Furthermore,
this proposition was not put to Mr Snook either.
[25] Counsel for Mr Emery confirmed before the Full Bench that it was not part of Mr
Emery’s case that Mr Snook had a motivation to deny authorising the modifications because
he was on a final warning.17 No such contention was made in Mr Emery’s written
submissions, including the final written submissions filed after the conclusion of the
proceedings before the Deputy President, nor was it raised in Mr Emery’s evidence or in oral
argument before the Deputy President. Further, had Mr Emery’s counsel sought to make such
a contention, he would have been expected to put the proposition to Mr Snook in cross-
examination, consistent with the principle in Browne v Dunn.18 He did not do so, not by
oversight, but because it was not part of Mr Emery’s case.
[26] The rule in Browne v Dunn is not just a rule of evidence, but a dimension of
procedural fairness.19 It requires that a party give appropriate notice to the other party and its
16 Transcript of Proceedings dated 30 November 2017 at PN2335.
17 Transcript of Proceedings dated 4 April 2018 at PN183, PN184.
18 (1893) 6 ER 67.
19 See Hughes v Momentum Wealth Pty Ltd, [2017] FWCFB 759 at [25].
6
witnesses of any imputation that it intends to make against them, whether as to their conduct
relevant to the case, or to credit.20
[27] Although Mr Emery’s counsel did not contend, or put to Mr Snook, that the final
warning provided a motivation for him to deny authorising the modifications, it would have
been open for the Deputy President to do so herself, if she thought such an inference might be
drawn. If the potential inference occurred to her after the conclusion of proceedings, she could
have raised it with the parties in correspondence and allowed them to make any submissions
or lead evidence in relation to it. This would have provided the City of Stirling an opportunity
to respond to the proposed inference or finding. However, this did not occur. As it was, the
City did not have an opportunity to contest the inference (or resist the finding) that, because of
the alleged final warning, Mr Snook had a motivation to deny authorising the modifications.
In our view, this amounted to a denial of procedural fairness.
[28] Further, we have some doubt whether the inference drawn by the Deputy President
was sound. A fact may be proved by inference if according to common experience it is the
more probable inference.21 The circumstances must do more than give rise to conflicting
inferences of equal degrees of probability.22 In this case, a directly contrary inference appears
to be open, namely that a person who has received a final warning would heed it and exercise
due caution, such that Mr Snook would not approve inappropriate modifications to vehicles,
much less lie about having done so afterwards.
[29] The second finding in respect of which the City of Stirling claims to have had no
notice, and in respect of which it claims to have been denied procedural fairness, was the
Deputy President’s conclusion that Mr Snook had ‘something to hide’. Two such references
appear in the Decision. At paragraph 77, the Deputy President states:
“[77] Mr Snook conducted the investigation so there was no independent assessment
during the course of the investigation as to whether in fact Mr Snook did give approval
for the modifications to occur. The minutes for the Investigation Meeting reveal that
Mr Snook did not seek to challenge the veracity of Mr Emery’s allegation that he
authorised the repairs by asking Mr Emery to provide particulars of when and where
that authorisation occurred. Instead at the Investigation Meeting Mr Snook simply
denied the authorisation was given and avoided any forensic investigation of the
veracity of Mr Emery’s assertion. The opportunity for forensic analysis was shut down
further by the manner in which Mr Snook conducted the investigation in breach of the
City of Stirling Employee Discipline Management Practice. Mr Snook’s failure to
exclude himself from conducting the investigation, his failure to test the veracity of Mr
Emery’s defence and his failure to prepare and tender any written statement in the
course of the investigation gives some credibility to the assertion that Mr Snook had
something to hide.” (Emphasis added).
20 The rule in Browne v Dunn was described in MWJ v The Queen [2005] HCA 74 at paragraph 38 in the following way:
“The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s
witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant
to the case, or a party’s or a witness’ credit.”
21 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6; See also United Group Resources Pty Ltd and Ors v Calabro and
Ors (2011) 198 FCR 514 at [71].
22 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6.
7
[30] The above paragraph is largely restated at paragraph 165 of the Decision, save that the
last sentence of [165] concludes that the series of matters cited ‘gives credibility to Mr
Emery’s assertion that Mr Snook had something to hide’. (Emphasis added)
[31] Mr Emery did not make such an assertion. So much was confirmed by his counsel
before the Full Bench.23 It was not part of Mr Emery’s case that such an assertion had been
made. There is no reference to it in the written submissions or the proceedings before the Full
Bench. It was not put to Mr Snook in cross-examination.
[32] The Deputy President’s statement that Mr Emery had made an assertion that Mr Snook
had something to hide was an error.24 It overstates Mr Emery’s case. As is apparent from the
passage of the Decision extracted above, there was a question in the proceedings below about
whether Mr Snook should have been involved in the investigation. From the outset of the
investigation, Mr Emery had claimed that there was a conflict of interest in Mr Snook
investigating his conduct, in circumstances where Mr Emery’s position was that Mr Snook
approved it. Further, in Mr Emery’s closing submissions there is a contention that Mr Snook
had a ‘vested interest’ to deny that he authorised the modifications, because they subsequently
became controversial.25 It was put to Mr Snook in cross-examination that he had a conflict of
interest between his role as an investigator into Mr Emery’s conduct in making the
modifications, and his personal interest as someone who might be blamed if indeed he had
authorised the work.26 In these circumstances the Deputy President may have considered that
there was an implicit contention by Mr Emery that Mr Snook had something to hide. But this
was not the case.
[33] There is a significant difference between a proposition that a person should not have
conducted an investigation because they had a conflict of interest, and a suggestion that a
person had something to hide. Unlike the former, the latter does not necessarily imply that a
person has done anything wrong. A conflict of interest could indicate, for example, that Mr
Snook did not have an objective perspective on his own actions. But a proposition that a
person had ‘something to hide’ carries an imputation of impropriety.
[34] It was not put to Mr Snook that he was lying or not being candid about the question of
whether he authorised the modifications, or that there was an ‘assertion’ (or potential
inference) that he had ‘something to hide’. Mr Emery did not make any such assertion, either
personally or through his counsel, and there is nothing in the material before the Full Bench to
suggest otherwise. To the extent that the Deputy President considered that an inference might
nevertheless be drawn that Mr Snook did have something to hide, she could have put this to
Mr Snook or raised it with the parties after the hearing in correspondence. But this did not
occur. The City was not afforded an opportunity to contest the inference (or resist the finding)
that Mr Snook had something to hide. This was a denial of procedural fairness.
[35] What then is the significance on appeal of the City having been denied procedural
fairness in the two respects we have identified?
23 Transcript of Proceedings dated 4 April 2018 at PN213, PN214.
24 As noted below, it is not necessary for us to consider whether this constituted a significant error of fact, or deal with the
other appeal grounds.
25 Paragraph 88 AB459.
26 Transcript of Proceedings dated 30 November 2017 at PN2632.
8
[36] Mr Emery contended in his appeal submissions that, quite apart from the Deputy
President’s inferences or findings that Mr Snook had a motivation to deny authorising the
modifications and had something to hide, there was ample evidence for her to properly
conclude that the City had not established that the modifications were unauthorised.27
[37] In Stead v State Government Insurance Commission28 the High Court stated that “not
every departure from the rules of natural justice at a trial will entitle the aggrieved party to a
new trial.” The Court noted that it is relevant to consider whether further information that
might have come before the Court if natural justice had been afforded would have made any
difference.29 The Court went on to state:
“Where, however, the denial of natural justice affects the entitlement of a party to
make submissions on an issue of fact, especially when the issue is whether the
evidence of a particular witness should be accepted, it is more difficult for a court of
appeal to conclude that compliance with the requirements of natural justice could have
made no difference. …It is no easy task for a court of appeal to satisfy itself that what
appears on its face to have been a denial of natural justice could have had no bearing
on the outcome of the trial of an issue of fact.”30
[38] In our view, these observations are relevant to the approach of a Full Bench of the
Commission in considering a contention on appeal that a party has been denied procedural
fairness, this being a component of natural justice.
[39] The Deputy President’s inferences that because Mr Snook was on a final warning he
had a motivation to deny the authorisations, and that he had something to hide, are found at
paragraphs 74 and 77 of the Decision. They related to her consideration of whether Mr Snook
had authorised the modifications to the vehicles. She concluded that she was ‘not satisfied
that the modifications were unauthorised.’31 This in turn was relevant to her consideration of
whether the City of Stirling had a valid reason for dismissal. However, whether there is a
valid reason for dismissal is only one of the considerations that the Commission must take
into account in deciding whether a dismissal was harsh, unjust or unreasonable. At paragraph
172 of the Decision, the Deputy President stated that she did not consider Mr Emery’s
conduct to constitute a valid reason for dismissal, but even if it had, she was satisfied that the
dismissal was unjust and unreasonable, because of the ‘lack of procedural fairness afforded to
him’. Earlier in her Decision, the Deputy President had concluded that Mr Emery was notified
of some but not all of the reasons for dismissal and had an opportunity to respond to some but
not all of these reasons,32 and also that the City had failed to follow its own procedures.33
27 Respondent’s submissions on appeal, paragraph 15.
28 (1986) 161 CLR 141.
29 (1986) 161 CLR 141 at 145.
30 (1986) 161 CLR 141 at 145.
31 Decision at [78].
32 Decision at [140] and [146].
33 Decision at [159] and [160].
9
[40] However, the Deputy President emphasises in her Decision that the evidence of Mr
Snook was “central to the issues in dispute”. These issues were not confined to the question of
whether there was a valid reason for dismissal.34 Had the City of Stirling been afforded
procedural fairness in relation to the matters identified above, it is possible that the Deputy
President might have formed a different view not only on the question of whether the
modifications were authorised and whether there was a valid reason, but also on her overall
assessment of whether the dismissal was unfair. This is not a case where a rehearing would
‘inevitably result in the making of the same order’ as that at first instance.35
[41] Members of the Commission are bound to act in a judicial manner and to observe
procedural fairness in carrying out functions and exercising powers under the Act.36 The
requirements of procedural fairness are not prescribed in a fixed body of rules. What is
required is judicial fairness.37 The Deputy President’s inferences (or findings) that Mr Snook
had a motivation to deny authorising the modifications because he was on a final warning,
and that he had something to hide, were not put to Mr Snook, and the City of Stirling had no
notice of them. In our view, the City of Stirling was denied procedural fairness in this regard.
This constituted appealable error.
[42] Our conclusions in relation to ground 1 in the notice of appeal are sufficient to uphold
the appeal. However, we make some brief observations on one further ground of appeal.
[43] Ground 2 contended that the Decision did not contain adequate reasons concerning the
weight that the Deputy President accorded to evidence, taking into account the parties’
objections and the credibility of witnesses.
[44] At paragraph 16 of the Decision, the Deputy President stated, in relation to objections
that had been raised by each representative to various parts of the witness statements filed by
the other, that where ‘those objections held any merit I adjusted the weight I attached to that
evidence accordingly’. In relation to the matters objected to by the City, the Deputy President
dealt with the objections and admitted the evidence, stating that she would give due weight to
the relevant evidence.38 However, the Decision does not indicate what weight has been
attached to the evidence in question. Where there has been a contest as to whether the
Commission should accept certain evidence or what weight should be afforded to it, it will
ordinarily be appropriate for the member to state whether the evidence has been accepted (as
did occur in this case), but also, if the evidence is relied on or significant, to provide an
indication of what weight has been attributed to it.
[45] Further, at [72], the Deputy President stated that ‘witnesses on both sides gave
evidence which appeared to be exaggerated and/or inconsistent’. She then cited an example in
34 See Decision at [157] and [164].
35 (1986) 161 CLR 141 at [145].
36 Coal and Allied Services Pty Ltd v Lawler (2011) 192 FCR 78 at 83; see also Kioa v Minister for Immigration & Ethnic
Affairs (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte
Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167
CLR 513; 29 IR 148.
37 Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174 at [22].
38 Transcript of proceedings dated 29 November 2017 at PN142.
10
Mr Gugiatti’s evidence. In the following paragraph of the decision, the Deputy President
states:
‘I have made an assessment of the evidence of each witness and where I judged that it
was less credible, because for example it appeared to be exaggerated, I have weighed
it accordingly.’
[46] It is not apparent which witnesses’ evidence the Deputy President considered to be
less credible than others, or why. If a member considers a witness’ evidence to be less
credible than another, for example because it appears to be exaggerated, and if this is
significant in the decision, the member should explain the basis for her or his assessment of
the relevant evidence. Adequate reasons for the decision should explain how significant
evidence has been weighed. This is necessary in order for the parties to understand the basis
for a member’s factual findings and conclusions. The nature and extent of the obligation to
provide reasons has been addressed in other Full Bench decisions and it is not necessary to
restate the relevant principles.39
[47] Given our conclusions in relation to ground 1 in the notice of appeal, it is not
necessary for us to determine whether ground 2 is made out.
Conclusion and orders
[48] For the reasons given, we consider both that it is in the public interest to grant
permission to appeal, and that the appeal should be upheld. We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWC 914) and Order (PR600330) are quashed.
(4) Mr Emery’s application for an unfair dismissal remedy is referred to Commissioner
Bissett for rehearing.
VICE PRESIDENT
Appearances:
T Caspersz for the City of Stirling
39 See Barach v University of New South Wales [2010] FWAFB 3307 at [16]; and Transport Workers’ Union of Australia v
WA Freightlines Pty Ltd [2011] FWAFB 3863 at [10].
WORK ORK COMMISSION THE AFUTBALL THE SEAA
11
P Mullally for Mr Emery
Hearing details:
2018
Melbourne
Perth (VC):
4 April.
Printed by authority of the Commonwealth Government Printer
PR602181
