1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Glenn Reseigh
v
Stegbar Pty Ltd
(C2019/6862)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT
MELBOURNE, 17 FEBRUARY 2020
Appeal against decision [2019] FWC 7170 of Commissioner Platt at Adelaide on 23 October
2019 in matter number U2019/5992.
Introduction
[1] Glenn Reseigh (Appellant) was employed by Stegbar Pty Ltd (Respondent) as a full-
time assembler/glazier from 10 October 1997 until his dismissal on 23 May 2019. The reason
given by the Respondent for the Appellant’s dismissal was his “inability to perform the
inherent requirements of [his] duties and the fact that [his] absences aggregated for the period
cannot be viewed as a short-term absence”.1
[2] The Appellant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair
dismissal remedy. He sought reinstatement or, in the alternative, compensation. At the time of
the dismissal the Appellant had accrued annual and long service leave to a combined period of
approximately 6.5 weeks. The application was determined by Commissioner Platt, who on 23
October 2019 decided that he was not satisfied the dismissal of the Appellant had been unfair
and dismissed the application (Decision).2 In so doing the Commissioner found that there was
no dispute the Appellant had been unable to attend work for a considerable period in the years
since 2016 and that he was also late for work on a large number of occasions.3 The
Commissioner also found that there was no dispute that the reasons for the absence and
lateness were due to the Appellant’s medical condition exacerbated by his personal
circumstances.4
[3] The Commissioner concluded, relevantly, that the Appellant’s work attendance was so
poor as to form the basis for a valid reason to dismiss.5 The Commissioner also concluded
1 Appeal Book at 336
2 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [194]
3 Ibid at [140]
4 Ibid at [141]
5 Ibid at [170]
[2020] FWCFB 533
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 533
2
that the Appellant was regularly late, resulting in the suboptimal use of assembly labour time,
which also constitutes a valid reason for the dismissal.6
[4] By his notice of appeal lodged on 11 November 2019 the Appellant applies for
permission to appeal and if granted, appeals the Decision and the order dismissing the
application.7
The Decision
[5] The Commissioner commences with some introductory matters at [1]-[5] of the
Decision. At [6] of the Decision the Commissioner sets out a series of uncontested factual
matters including the following:
The Appellant’s physical and mental health deteriorated in the 2-3 years prior to
the dismissal.
At the time of the dismissal the Appellant had 109 hours8 of accrued annual leave
and 137 hours of accrued long service leave.
The spreadsheet to Mr Vanderlinden’s statement accurately records the days the
Appellant was absent and the days on which he was late.
The Appellant does not remember every occasion that he was absent from work
but he attributes it to his medical condition and that is the default explanation for
any absence.
[6] The Commissioner summarises the evidence given by and on behalf of the Appellant
at [11]-[68] of the Decision. The evidence given for the Respondent is summarised at [70]-
[134].
[7] The Commissioner next makes the following observations about credit:
[135] There were some differences between Mr Reseigh’s evidence in chief and cross
examination. For example, in his initial statement he contended that at the 21 May
2019 meeting he was not aware of the real potential of dismissal, but he readily
accepted in cross examination that he was aware that his employment was at risk as he
could not complete a full week’s work.
[136] Whilst it is understood that most witnesses are not familiar with giving evidence
or being cross-examined, on a number of occasions Mr Reseigh was unable to answer
simple questions about matters that were within his knowledge. On one occasion, Mr
Reseigh refused to answer a question about why he would turn up to work late.
[137] Mr Reseigh’s chronology of his condition and visits to doctors was at best
confusing.
[138] Mr Reseigh’s evidence as to the conditions he was suffering from that led to the
issue of medical certificates was unconvincing. He asserts that the absences were due
to his haemorrhoid condition but was unable to explain the reasons for 14 of the
6 Ibid at [171]
7 PR713427
8 Noting that at [39] of the Decision the accrued annual leave is said to have been 110 hours
[2020] FWCFB 533
3
consultations between February 2017 and July 2017. Despite the evidence from Dr
Lok that Mr Reseigh was symptom-free on 3 April 2018, he submitted a medical
certificate from a different doctor on 5 April to the effect that he was unfit for work as
a result of his haemorrhoids. Mr Reseigh’s evidence about a relapse in his condition
after 3 April 2018, and when he was placed on a waiting list for a further haemorrhoid
operation at Modbury Hospital, was inconsistent or at best confused.
[139] I have determined to treat Mr Reseigh’s evidence with caution, except where it
is corroborated.9 [Endnotes omitted]
[8] Next the Commissioner makes a number of findings described as factual findings as
follows:
[140] There does not appear to be any dispute that Mr Reseigh had been unable to
attend work for a considerable period in the years since 2016 and that he was also late
for work on a large number of occasions.
[141] There does not appear to be any dispute that the reasons for the absence and
lateness (collectively, attendance issues) were due to Mr Reseigh’s medical condition
exacerbated by his personal circumstances.
[142] I accept that Mr Reseigh was spoken to on numerous occasions about Stegbar’s
concerns as to his attendance and was assisted by Mr Kirner where he so requested.
[143] I accept that Mr Reseigh was warned on a number of occasions that if his
attendance did not improve he could be dismissed.
[144] I find that on the last occasion that Mr Reseigh’s attendance was discussed
Stegbar did not expressly advise him that it was considering dismissing him.
[145] I accept that at the time of the dismissal Mr Reseigh was not able to perform his
duties on a full-time basis and that the number of weekly absences was progressively
increasing.
[146] I accept that this caused disruption to Stegbar’s capacity to provide customers
with products on time and resulted in Mr Vanderlinden (and others) having to
undertake Mr Reseigh’s duties.
[147] The circumstances of the dismissal do not appear to represent a breach of s.352
of the Act.
[148] At the time of the dismissal the information on hand to Stegbar was such that it
appeared that Mr Reseigh’s surgery was some months away and thus the causal factor
would not be resolved for that period.10
[9] The Commissioner summarises the parties’ submissions at [149]-[150] of the
Decision, deals with some initial matters at [151]-[154] and discusses the statutory
9 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [135]-[139]
10 Ibid at [140]-[148]
[2020] FWCFB 533
4
considerations in assessing whether a dismissal is harsh, unjust or unreasonable at [158]-
[190].
[10] The Commissioner concluded at [172] of the Decision that there was a valid reason for
the Appellant’s dismissal. In doing so the Commissioner reasoned as follows:
[158] In order to be a valid reason, the reason for the dismissal should be “sound,
defensible or well founded” and should not be “capricious, fanciful, spiteful or
prejudiced.” However, the Commission will not stand in the shoes of the employer and
determine what the Commission would do were it in the employer’s position.
[159] Where a dismissal relates to an employee’s conduct, the Commission must be
satisfied that the conduct occurred and justified termination:
“The question of whether the alleged conduct took place and what it involved is to
be determined by the Commission on the basis of the evidence in the proceedings
before it. The test is not whether the employer believed, on reasonable grounds
after sufficient enquiry, that the employee was guilty of the conduct which
resulted in termination.”
[160] For there to be a valid reason related to the Applicant’s conduct, I must find that
the conduct occurred and justified termination.
[161] Regular attendance at the workplace was an inherent requirement of Mr
Reseigh’s role.
[162] There is no dispute that Mr Reseigh advised Dr Ganesan on 8 April 2019 that he
was unable to work four or five days per week due to his medical condition, even if a
15kg weight restriction was allowed.
[163] Mr Reseigh was absent from work for 120 days in the 12 months prior to 20
May 2019. I accept that Stegbar did not take issue with his paid sick (personal) leave,
but was concerned with the amount of unpaid leave and the disruption caused by not
attending for work and then accessing annual leave to avoid a loss of wages.
[164] Mr Reseigh was also late for work on numerous occasions.
[165] The evidence reveals that Mr Reseigh appears to rely on his haemorrhoidal
condition to explain his absences following his gallbladder surgery. This position is
not entirely supported by the medical evidence which reveals that a number of the
absences were not due to this condition; however I accept that Mr Reseigh’s life was
in turmoil and that this impacted on his capacity to attend work. The poor attendance
was not for a short duration; indeed it appears that Stegbar worked unsuccessfully with
Mr Reseigh for a number of years to address the underlying causes and to get him
back on track, including changing his rostered hours.
[166] I accept that Stegbar did not rush to judgement.
[167] I accept that the number of days that Mr Reseigh would not attend work each
week was increasing as time progressed. I accept that at the time of dismissal there
[2020] FWCFB 533
5
appeared to be no end to this issue within a reasonable period of time such that Stegbar
should have persisted. It appears to me that based on the information Mr Reseigh
provided to Dr Ganesan, Stegbar reasonably held the belief that it could not reasonably
rely on Mr Reseigh to attend for work on any given day, and the surgical intervention
to improve his condition was as far as 12 months away.
[168] I accept that Mr Reseigh’s absences were not a short term injury or illness
within the meaning of s.352 of the Act.
[169] I accept that Mr Reseigh’s life in general appears to have fallen into an abyss
prior to his dismissal, but that does not abrogate the requirement to attend for work.
[170] In my view, Mr Reseigh’s work attendance was so poor as to form the basis for
a valid reason to dismiss. Mr Reseigh’s absences impacted the business’s capacity to
fulfil orders in a timely fashion and impacted on others including Mr Vanderlinden
who was taken away from his managerial role to undertake Mr Reseigh’s duties.
[171] In addition, Mr Reseigh was regularly late, resulting in the suboptimal use of
assembly labour time, which also constitutes a valid reason in support of dismissal.11
[Endnotes omitted]
[11] As to whether the Appellant was notified of the reason for dismissal, the
Commissioner reasoned as follows:
[173] The Full Bench of the Fair Work Commission has held that s.387(c) of the Act
is to be applied in a common sense way to ensure that the Applicant has been treated
fairly, and does not necessarily require strict formalities in the sense of conducting a
meeting with the employee to inform them of the reasons for the proposed dismissal,
or providing the employee with an opportunity to address the employer’s concerns in
writing.
[174] The correspondence submitted indicated that many discussions occurred with
respect to Mr Reseigh’s work attendance and that on multiple occasions he was
advised that if his attendance did not improve he would be subject to sanction up to
and including dismissal. I accept that Mr Reseigh was upset at being dismissed but he
could not reasonably have been surprised.12 [Endnote omitted]
[12] The Commissioner next considered whether the Appellant was given an opportunity to
respond to any reason related to his capacity or conduct as follows:
[175] The opportunity to respond does not require formality and this factor is to be
applied in a common sense way to ensure the employee is treated fairly. Where the
employee is aware of the precise nature of the employer’s concern about his or her
conduct or performance and has a full opportunity to respond to this concern, this is
enough to satisfy the requirements.
11 Ibid at [158]-[171]
12 Ibid at [173]-[174]
[2020] FWCFB 533
6
[176] Stegbar repeatedly raised with Mr Reseigh over an extended period of time its
concerns with his late attendance and absences.
[177] Whilst I accept Mr Reseigh was not expressly warned that Stegbar was
considering dismissing him at the meeting on 21 May 2019, he had been repeatedly
advised previously that if his attendance did not improve his employment would be at
risk. Whilst it would have been preferable to advise Mr Reseigh that Stegbar was
considering his dismissal, the meeting on 20 May 2019 allowed Mr Reseigh an
opportunity, which he used, to respond to the attendance issue.
[178] I also accept that Mr Reseigh was not able to comment on Dr Ganesan’s report.
The report however did not include any medical opinion, and merely restated the
information provided by Mr Reseigh. Whilst it would have been preferable for Stegbar
to have referred to Dr Ganesan’s report on 21 May 2019, it does not appear that Mr
Reseigh was disadvantaged by this as the details it provided were within his
knowledge.
[179] Having regard to the matters referred to above, I find that Mr Reseigh was given
an opportunity to respond to the reason for his dismissal prior to the decision to
dismiss being made, and that any technical failure did not have an impact on the
outcome.13 [Endnotes omitted]
[13] The Commissioner deals with the other mandatory considerations under s.387 of the
Act, with which issue is not taken on appeal, at [180]-[186] of the Decision. Next the
Commissioner sets out other relevant matters he took into account as follows:
[187] Section 387(h) of the Act requires the Commission to take into account any
other matters that the Commission considers relevant.
[188] I have considered the impact of Mr Reseigh’s application for leave made
through Mr Kirner whilst Mr Reseigh was suspended. Stegbar did not respond to the
application. In the circumstances I do not believe that Stegbar unreasonably refused to
grant leave.
[189] I have taken into account Mr Reseigh’s length of employment.
[190] I have also taken into account Mr Reseigh’s personal circumstances, the turmoil
that he was experiencing at that point in his life, and the impact on him of the
dismissal.14
[14] Ultimately, the Commissioner concludes that he is not satisfied that the dismissal of
the Appellant was harsh, or unjust, or unreasonable15 and he dismisses the application.16
13 Ibid at [175]-[179]
14 Ibid at [187]-[190]
15 Ibid at [193]
16 Ibid at [194]; See also PR713427
[2020] FWCFB 533
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Appeal grounds and contentions
[15] The notice of appeal contains four grounds of appeal.
[16] The first ground contends the Commissioner erred in finding that there was a valid
reason for dismissal related to the Appellant’s capacity or conduct because the Commissioner:
applied the incorrect test for determining the existence of a valid reason in
circumstances in which the Appellant’s absences and lateness resulted from
incapacity, in particular by applying the test for misconduct rather than capacity; and
alternatively, erred in finding that any conduct constituted a valid reason for dismissal.
[17] As to this appeal ground the Appellant submits that in assessing whether there was a
valid reason for the dismissal related to the person's capacity or conduct it will be necessary to
consider whether the reason or reasons for dismissal concern capacity or conduct or both. The
Appellant contends that in cases in which a medical incapacity to perform a job is advanced
as a reason for dismissal, the “test” in Jetstar Airways Ltd v Neeteson-Lemkes17 should be
applied. The test is said to comprise three interconnected elements. First, whether the
employee was capable of performing the inherent requirements of the role in which the
employee was employed as at the time of dismissal. Secondly, whether the employee would
be able to perform the inherent requirements of that role at some time in the future. Thirdly,
whether there was some reasonable adjustment which could be made to the role to
accommodate any current or future incapacity.
[18] The Appellant contends that the only “valid reason” advanced by the Respondent was
an inability by the Appellant to perform the inherent requirements of the role. The Appellant
contends that the evidence before the Commissioner was that but for his medical incapacity,
the Appellant could have remained in employment. Moreover, the Commissioner found that
there was no dispute “that the reasons for the absence and lateness (collectively, attendance
issues) were due to [The Appellant’s] medical condition exacerbated by his personal
circumstances”.18
[19] The Appellant contends that having made that finding, the Commissioner erred by
approaching the consideration of whether there was a valid reason for the Appellant’s
dismissal by reference to the principles and authorities concerning misconduct. According to
the Appellant the Commissioner thereby failed to apply the considerations enunciated in
Jestar and was in error.
[20] As to the second basis underpinning this ground of appeal, the Appellant contends that
any “conduct” in which the Commissioner found the Appellant to have engaged, comprised of
not attending for work or attending late and did not rise to the level of a valid reason for
dismissal because on the evidence the Respondent was able to manage the absences and if the
Appellant was medically fit to work, there was no barrier to his ongoing employment from the
perspective of the Respondent.
[21] The Respondent contends the issue raised by the Appellant in the first appeal ground is
erroneous. It says that the Appellant’s assertion that the only valid reason advanced by the
17 [2013] FWCFB 9075
18 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [141]
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb9075.htm
[2020] FWCFB 533
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Respondent was the Appellant’s inability to perform the inherent requirements of the role is
not correct and is not supported by the evidence before the Commission. That evidence,
according to the Respondent, is said to also relate to conduct as a reason for dismissal.
[22] In this regard the Respondent points to:
the letter of termination which raises inconsistent attendance for work and "regular
pattern of lateness";
a number of meetings for which records of interview were in evidence and at which
representatives of the Respondent discussed with the Appellant conduct-related issues
and opportunities to improve;
the Commissioner’s noting of issues concerning the Appellant’s lateness at [20], [23],
[24], [27], [33] and [36] of the Decision; and
the Commissioner's comments during the hearing that conduct was also part of his
considerations.19
[23] Given the above, the Respondent contends the Appellant is disingenuous to now say
that the only valid reason provided for his dismissal was related to his capacity and that this
was not the case. Accordingly, the Commissioner did not apply an incorrect test.
[24] As to the alternative basis advanced by the Appellant, the Respondent contends that
this appeal ground relies, in part, on the assertion that there was an application of an incorrect
test to the capacity reason for dismissal. It says however that it is clear that the Commissioner
found that there were conduct issues which gave rise to a valid reason for dismissal.
[25] The Respondent contends further that to the extent the Appellant asserts that the
conduct reasons relied upon by the Commissioner did not rise to the level of a valid reason for
dismissal, this is a factual argument, and does not give rise to any significant factual error. It
contends there was clear and cogent evidence that the conduct issues on which the
Commissioner relied provided a valid reason for dismissal.
[26] The second ground of appeal contends the Commissioner erred in failing to consider,
or alternatively in failing to give adequate weight to, whether the Appellant was notified of a
valid reason for dismissal.
[27] In furtherance of this ground, the Appellant contends the Commissioner was obliged
to consider whether the Appellant was notified of the reasons for his dismissal, but the
Commissioner did not consider this question at all. The Appellant contends that instead of
considering this question, the Commissioner erroneously applied considerations relevant to
s.387(c) of the Act.
[28] The Appellant contends the Commissioner’s failure to do so in the instant matter is
particularly important, because the reason found by the Commissioner to be a valid reason
was not the reason advanced by the Respondent.
[29] The Respondent submits the Appellant does not outline in what way he was not
notified of the reason for dismissal. He received the letter of termination. There were records
19 See Appeal Book at 213, PN 1489; Appeal Book at 273, PN 2198 and PN 2199; Appeal Book at 279, PN 2268; Appeal
Book at 281-282; PN 2289 - PN 2295; Appeal Book at 291, PN 2379; Appeal Book at 292, PN 2393; and Appeal Book at
299, PN 2466
[2020] FWCFB 533
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of interviews and warning letters provided to him beforehand. It contends the Appellant
criticises the Commissioner's reasons for decision in a hypothetical way, without providing
any basis for the Appellant’s assertion that he was not provided with notification of valid
reasons.
[30] The third appeal ground contends the Commissioner erred in concluding that the
Appellant was given an opportunity to respond to the reason for dismissal.
[31] In support of this appeal ground the Appellant contends that although the
Commissioner found that:
the Appellant was not advised prior to his dismissal that the employer was considering
dismissal;20 and
the Appellant was not given an opportunity to comment on the medical report on
which the Respondent relied to dismiss him prior to dismissal,21 as the medical report
was not provided to the Appellant at all prior to dismissal,
the Commissioner nonetheless concluded the Appellant was provided an opportunity to
respond, “prior to the decision to dismiss being made”.22
[32] The Appellant contends the error made is evident because the evidence before the
Commissioner was that:
the Respondent did not contemplate dismissal at the time of meeting with the
Appellant;23
the purpose of the final meeting was to establish the Appellant’s capacity;24
the meeting concluded on the basis that the Appellant would seek further medical
assistance;25 and
subsequent to its final meeting with the Appellant, a decision was made to dismiss the
Appellant and no opportunity was provided to the Appellant to address any reason for
that decision.26
[33] The Respondent contends the Commissioner was entitled to approach the issue of
opportunity to respond in a "common-sense way" as he did at [175] of the Decision. It says
the conclusions at [179] of the Decision that any "technical failure" did not have an impact on
the outcome was open to the Commissioner on the facts and in the context of the considerable
history of the Respondent raising these performance and capacity issues with the Appellant.
[34] The Respondent also says that if the Commissioner’s findings in this regard amount to
an error of fact, the error was not a significant error of fact and the Full Bench should not
20 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [177]
21 Ibid at [178]
22 Ibid at [179]
23 Appeal Book at 258, PN2014
24 Appeal Book at 246, PN1866
25 Appeal Book at 252, PN1936
26 Appeal Book at 258, PN2017
[2020] FWCFB 533
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interfere with the Decision. It says the conclusion reached by the Commissioner was
reasonably open on the facts.
[35] The fourth appeal ground contends the Commissioner erred in holding that dismissal
for misconduct was not harsh having regard to the employer’s concessions that the Appellant
would have retained his employment but for his medical incapacity.
[36] We consider these ground below.
Consideration
[37] An appeal under s.604 of the 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.27 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[38] This appeal is one to which s.400 of the Act applies. Section 400 provides that:
(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.
[39] The test under s.400 has been characterised as “a stringent one”.28 The task of
assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.29 In GlaxoSmithKline Australia Pty Ltd v Makin30 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…”31
[40] 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
27 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] HCA 47, (2000)
203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
28 Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at [43]
29 O’Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in
Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506, 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] FCAFC 54, (2011) 192 FCR 78, (2011)
207 IR 177 at [44]-[46]
30 [2010] FWAFB 5343, (2010) 197 IR 266
31 Ibid at [27]
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2020] FWCFB 533
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of appealable error.32 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.33
Permission to Appeal
[41] For the reasons that follow we are persuaded that appealable error has been established
and that there is public interest in granting permission to appeal because to not do so would
manifest an injustice to the Appellant and because the appeal raises important questions about
the construction and application of aspects of s.387 of the Act. Permission to appeal is
therefore granted.
Ground 1
[42] In considering whether he was satisfied the dismissal of the Appellant was harsh,
unjust or unreasonable, the Commissioner was required to take into account, inter alia,
whether there was a valid reason for the dismissal related to the Appellant’s capacity or
conduct (including its effect on the safety and welfare of other employees).34 The assessment
of whether there was a valid reason for the dismissal involves, amongst other things,
determining whether the reason related to a person’s capacity or conduct or both. In this
context "capacity", as used in s.387(a) of the Act, means the employee's ability to do the work
he or she is employed to do.35 A capacity related reason for dismissal might be concerned
with an employee’s performance, the employee’s physical capacity to perform the work, the
loss of a qualification or licence necessary to perform the work, or an inability to perform the
inherent requirements of the job because of some injury, illness or other disability.
[43] The reason given by the Respondent for the Appellant’s dismissal was set out in the
letter of termination, which was said to be “your inability to perform the inherent
requirements of your duties and the fact that your absences aggregated for that period cannot
be viewed as a short-term absence”.36 On its face the reason for the dismissal was one relating
to the Appellant’s capacity not his conduct. That the reason for dismissal given by the
Respondent related to the Appellant’s capacity is further underscored by the paragraph in the
letter of termination which immediately follows the passage just quoted and which provides
as follows:
“The circumstances of your termination will not preclude you from applying for a
position here should one be open in the future subject to our selection criteria and your
personal health being at a stage where a medical certificate states that you have
32Wan v Australian Industrial Relations Commission and Another [2001] FCA 1803, (2001) 116 FCR 481 at [30].
33 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, (2010)
202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011]
FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663, (2014) 241 IR 177 at [28]
34 Fair Work Act 2009 (Cth), s.387(a)
35 See Crozier v Australian Industrial Relations Commission 2001 FCA 1031 at [14], in relation s 170CG(3)(a) of the
Workplace Relations Act 1996, which then provided “(a) whether there was a valid reason for the termination related to the
capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or
service”
36 Appeal book at 336
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
[2020] FWCFB 533
12
recovered fully to the point where you have capacity to perform full-time work on an
ongoing basis”.37
[44] It is evident from a reading of the Decision that the Commissioner determined that
there were valid reasons for the dismissal relating to the Appellant’s conduct. In our view
both valid reasons identified at [170]-[171] of the Decision relate to the Appellant’s conduct.
This reading is supported by the Commissioner’s discussion of conduct as a valid reason for
dismissal at [159] – [160] of the Decision.
[45] The question the Commissioner had to address is whether there was a valid reason for
the Appellant’s dismissal. That reason need not be the reason advanced or given by the
Respondent.
[46] Although we do not accept the Respondent’s contention that the letter of termination
also proffered conduct as a reason for dismissal, we accept that on the evidence it was open to
the Commissioner to conclude that the reasons he identified were reasons related to the
Appellant’s conduct and that each was a valid reason. As the Respondent has pointed out in
its submissions, the Commissioner raised the issue of late attendance as a conduct issue38 and
he set out in the Decision issues concerning the Appellant’s late attendances as a conduct
issue39 at [20], [23], [24], [27], [33] and [36].
[47] It is correct as the Appellant has contended that the Commissioner did not engage with
the reason given by the Respondent in its letter of termination, namely, that dismissal was
because the Appellant could not fulfil the inherent requirements of the position in which he
was employed. However, it does not follow that the Commissioner was in error. Even if the
Commissioner had concluded that the reason given by the Respondent was not a valid reason,
there were other reasons identified by the Commissioner as valid reasons for the Appellant’s
dismissal relating to his conduct. Therefore the position arrived at by the Commissioner, as
concerns finding a valid reason, is the same.
[48] We also reject the Appellant’s contention that the conduct reasons found by the
Commissioner did not rise to the level of a valid reason for dismissal. It was not in contention
that the Appellant was regularly and persistently absent or late for work and that this occurred
over a significant period immediately preceding the dismissal. Furthermore, the factual
findings made by the Commissioner at [142] – [146] of the Decision are not challenged on
appeal. Given this, the task for the Commissioner was to assess whether the valid reasons he
identified as reasons related to conduct were sound, defensible or well founded. This involves
an evaluative judgement and as we have already observed it was a judgement which was open
to the Commissioner on the evidence.
[49] Read fairly, as a whole, the Commissioner’s Decision discloses a finding that the
Appellant engaged in the relevant conduct (lateness and irregular attendance) and that in the
circumstances (length of period over which the conduct persisted and the impact on the
Respondent) the conduct justified dismissal (in the sense that the dismissal for those reasons
37 Ibid
38 Appeal Book at 213, PN 1489; Appeal Book at 273, PN 2198 and PN 2199; Appeal Book at 279, PN 2268; Appeal Book
at 281-282; PN 2289 - PN 2295; Appeal Book at 291, PN 2379; Appeal Book at 292, PN 2393; and Appeal Book at 299,
PN 2466
39 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [20], [23], [24], [27], [33] and [36]
[2020] FWCFB 533
13
was a valid reason). As we have said, there was evidence to support this conclusion and there
is no basis on which it would be proper to interfere with the conclusion.
[50] We are therefore not persuaded that the Commissioner erred in the manner suggested
by the Appellant. This ground of appeal fails.
[51] However that the Commissioner determined the existence of one or more valid reasons
for dismissal which were different to those upon which the Respondent had at the time of the
dismissal relied is relevant to how the Commissioner approached the task of assessing the
other matters that he was required to take into account under s.387 of the Act.
Ground 2
[52] This appeal ground concerns whether the Commissioner erred in failing to consider, or
alternatively in failing to give adequate weight to, whether the Appellant was notified of a
valid reason for dismissal.
[53] A statutory requirement that a matter be taken into account means that the matter is a
‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another
v Peko-Wallsend Limited and Others (Peko-Wallsend).40 That is, it is a matter which the
decision maker is bound to take into account. The obligation to take into account the matters
set out at s.387 in determining whether a decision maker is satisfied that a dismissal was
harsh, unjust or unreasonable means that each of the matters must be treated as a matter of
significance in the decision-making process.41 As Wilcox J said in Nestle Australia Ltd v
Federal Commissioner of Taxation:42
“To take a matter into account means to evaluate it and give it due weight, having regard
to all other relevant factors. A matter is not taken into account by being noticed and
erroneously discarded as irrelevant”.43
[54] The weight given to a particular matter is ultimately a matter for the Commission
subject to some qualifications. As Mason J explained in Peko-Wallsend:
“It follows that, in the absence of any statutory indication of the weight to be given to
various considerations, it is generally for the decision-maker and not the court to
determine the appropriate weight to be given to the matters which are required to be
taken into account in exercising the statutory power... I say "generally" because both
principle and authority indicate that in some circumstances a court may set aside an
administrative decision which has failed to give adequate weight to a relevant factor of
great importance, or has given excessive weight to a relevant factor of no great
importance. The preferred ground on which this is done, however, is not the failure to
40 [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional
Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the
Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
41 See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition
and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail
Association v Fair Work Commission [2014] FCAFC 118
42 [1987] FCA 233; (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002)
123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]
43 (1987) 16 FCR 167 at 184
[2020] FWCFB 533
14
take into account relevant considerations or the taking into account of irrelevant
considerations, but that the decision is "manifestly unreasonable".”44
[55] The matter that is required to be taken into account under s.387(b) of the Act is
whether the Appellant “was notified of that reason”. Contextually the reference to “that
reason” is the valid reason found to exist under s.387(a). The Commissioner approached the
question by making generalised statements about there being no requirement for particular
formality and that the consideration should be approached in a common sense way and then
concluding that because the Appellant’s work attendance had been the subject of discussions
on multiple occasions the Appellant “could not reasonably have been surprised” by the
dismissal.45
[56] It is not evident on the face of the Decision that the Commissioner addressed the
relevant question at all. The relevant question was whether the Appellant had been notified of
the reasons for his dismissal found to be valid reasons as set out in [170] – [171] of the
Decision.
[57] Since the reason articulated by the Respondent for the dismissal in the letter of
termination concerned the Appellant’s capacity to fulfil the inherent requirements of the
position, if the Appellant was notified of any reason he was notified of that reason but not of
the reasons found by the Commissioner to be valid reasons.
[58] The answer to the relevant question whether the Appellant “was notified of that
reason” must plainly be “no”. The enquiry is not concerned with whether the Appellant was
surprised or otherwise by the dismissal. This might be relevant to the weight to be given to the
matter, but not to answer the question posed by the matter. The Commissioner did not address
or answer the relevant question and so it inescapably follows he did not take into account a
relevant and material consideration. This is an error of the kind described in House v The
King.46
[59] This ground of appeal is therefore upheld.
Ground 3
[60] The third appeal ground contends the Commissioner erred in concluding that the
Appellant was given an opportunity to respond to the reason for dismissal.
[61] It is difficult to see how it is that the Appellant was given an opportunity to respond to
any reason related to his capacity or conduct in circumstances where the Commissioner found
that the Appellant was not advised prior to his dismissal that the employer was considering
dismissal.47 Moreover, the Commissioner also found the Appellant was not given an
opportunity to comment on the medical report on which the Respondent relied to dismiss him
prior to dismissal,48 as the medical report was not provided to the Appellant at all prior to
dismissal.
44 [1986] HCA 40; (1986) 162 CLR 24
45 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [173]-[174]
46 (1936) 55 CLR 499
47 Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [177]
48 Ibid at [178]
[2020] FWCFB 533
15
[62] More fundamentally however the Commissioner does not address whether the
Appellant was given an opportunity to comment upon the valid reasons relating to the
Appellant’s conduct found by the Commissioner.
[63] There was no “technical failure” as to the opportunity to comment on the reason, as
suggested by the Commissioner. Given the factual findings made by the Commissioner
together with his findings as to valid reasons which were not those identified by the
Respondent as reasons for dismissal in the termination letter, it was simply not open on the
evidence to conclude that the Appellant was given an opportunity to respond to any valid
reason related to his capacity or conduct. The Commissioner erred in concluding otherwise.
The answer to that question must also be ‘no’.
[64] This appeal ground also succeeds.
Ground 4
[65] By ground 4 the Appellant says the Commissioner erred in holding that dismissal for
misconduct was not harsh having regard to the employer’s concessions that the Appellant
would have retained his employment but for his medical incapacity. That this is the case is
evident from the letter of termination of employment.49
[66] Neither party addressed this ground in their written outlines. Nevertheless, as we
apprehend this ground, it is said that the Commissioner did not take into account a relevant
consideration – that is, the Respondent did not dismiss on conduct grounds and would
consider the Appellant for ongoing future employment if he is medically fit. It might also be
said to be a ground founded on legal unreasonableness as described in Minister for
Immigration v Li50 or on the decision being unreasonable or plainly unjust in the House v The
King sense.51 But it is unnecessary for the purposes of this appeal ground to give
consideration to whether there is relevant unreasonableness.
[67] On the evidence the Respondent dismissed the Appellant for reasons of capacity. It
plainly did not regard any conduct on the part of the Appellant as justifying dismissal, at least
not at the time of the dismissal. Moreover, it made clear that the Appellant would be
considered for reemployment in the event that he was medically fit to resume full-time work.
The Respondent’s attitude was plainly a relevant and material consideration in assessing
whether a dismissal for reasons related to conduct was harsh, unjust or unreasonable. It is not
evident on the face of the Decision that the Commissioner turned his mind to this issue. In
failing to do so the Commissioner erred.
[68] This ground of appeal is therefore upheld.
Conclusion
[69] It cannot be said that the appealable errors we have identified taken together would not
have made a difference to the ultimate outcome of the Appellant’s application. We propose
therefore to uphold the appeal on the grounds identified and to remit the application to the
49 Appeal book at 336
50 (2013) 249 CLR 332 at [63]
51 (1936) 55 CLR 499 at 505
[2020] FWCFB 533
16
Commissioner for rehearing. We consider that this approach is preferable to the Full Bench
rehearing the application since we anticipate that both parties will seek to supplement their
evidentiary cases conducted at first instance.
Orders
We order as follows:
a) permission to appeal is granted;
b) the appeal is upheld on grounds 2, 3 and 4 but is otherwise dismissed;
c) the Decision in [2019] FWC 7170 and order in PR713427 are quashed; and
d) the application in U2019/5992 is remitted to Commissioner Platt for rehearing.
DEPUTY PRESIDENT
Appearances:
P Dean of Counsel for the Appellant
I Colgrave of Counsel for the Respondent
Hearing details:
2019
Melbourne
16 December
Written outlines of submissions:
Appellant, 25 November 2019
Respondent, 2 December 2019
Printed by authority of the Commonwealth Government Printer
PR716353
FAIR WORK MMISSION SEAL OF THE
