1
Fair Work Act 2009
s.604 - Appeal of decisions
Mark Bartlett
v
Ingleburn Bus Services Pty Ltd t/as Interline Bus Services
(C2020/7055)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER MCKINNON SYDNEY, 30 NOVEMBER 2020
Appeal against decision [2020] FWC 2914 of Deputy President Boyce at Sydney on 28
August 2020 in matter number U2019/14460 – permission to appeal and appeal – approach
to procedural fairness in unfair dismissal applications.
Introduction
[1] In a decision published on 28 August 20201 (decision), Deputy President Boyce found
that the dismissal of Mr Mark Bartlett from his employment as a Bus Driver by Ingleburn Bus
Services Pty Ltd (trading as Interline Bus Services) was not unfair. Mr Bartlett now seeks
permission to appeal and to appeal against the decision pursuant to s 604 of the Fair Work Act
2009 (FW Act).
[2] There are three grounds of appeal in Mr Bartlett’s amended notice of appeal,
summarised as follows:
1. Ground 1 – the Deputy President erred in failing to make a positive finding that Mr
Bartlett’s alleged (serious) misconduct in intentionally walking in front of a bus driven
by his colleague Mr Tom Cinick on 18 June 2019 (the Near Miss Incident) actually
occurred;
2. Ground 2 – the Deputy President erred in the approach to consideration of the criteria
in s 387(b) and (c) of the FW Act; and
3. Ground 3 – the Deputy President erred in failing to consider Mr Bartlett’s remorse in
connection with whether the dismissal was harsh in all the circumstances.
[3] For the reasons that follow, we have decided to grant permission to appeal and uphold
the appeal in relation to Ground 2.
1 [2020] FWC 2914
[2020] FWCFB 6429
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 6429
2
The nature of unfair dismissal appeals
[4] An appeal under s 604 of the FW Act is an appeal by way of rehearing.2 An appeal
may only be made with the permission of the Commission.
[5] This appeal is one to which s 400 of the FW Act also applies. Under s 400, the
Commission must not grant permission to appeal from a decision made by the Commission in
relation to unfair dismissal matters unless it considers it in the public interest to do so. An
appeal of an unfair dismissal decision involving a question of fact can only be made on the
ground that the decision involved a significant error of fact.
[6] The test under s 400 has been characterised as “a stringent one”.3 The task of assessing
whether the public interest test is met is a discretionary one involving a broad value
judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin,5 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.”
[7] 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.6
[8] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.7
However, it is necessary to engage with the appeal grounds to consider whether they raise an
arguable case of appealable error.
Grounds of appeal
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see
Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ,
Gaudron and Hayne JJ
3 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
per Buchanan, Marshall and Cowdroy JJ
4 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied
in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and
Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR
177 at [44]-[46]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[2020] FWCFB 6429
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Ground 1 – error in failing to find that Mr Bartlett’s alleged conduct occurred in connection
with the “Near Miss Incident”
[9] By this ground of appeal, it is said that in paragraph [26] of the decision the Deputy
President determined only that it was “reasonable to conclude” that the Near Miss Incident
had occurred as alleged against Mr Bartlett, which fell short of a positive finding about a
significant fact in the proceedings. As such, he submits that the Deputy President applied the
wrong test and failed to enter into or consider the evidence of Mr Bartlett.
[10] The relevant findings are found in paragraphs [25] and [26] of the decision:
“[25] However, there is more to this story than just the Swearing Incident. Indeed, Mr
Oliveri, in making his decision to dismiss the Applicant, relied upon various other
incidents of misconduct committed by the Applicant during his employment. Having
considered the evidence in relation to those other incidents of misconduct, I have
concluded that they are all sustained, but for the Cigarette Incident (upon which I do
not consider there to be sufficient evidence to make a finding that the Applicant was
caught smoking in the bus, as opposed to outside the bus), and the Conflict Incident
(which occurred outside of work). In other words, I have found that in addition to
engaging in misconduct concerning the Swearing Incident, the Applicant also engaged
in misconduct in relation to the Non-Compliance Incident (August 2017 – formal
written warning), Defacing Vest Incident (December 2018 – formal re-issued written
warning), and Near Miss Incident (June 2019 – final written warning).
[26] Specifically, in relation to the Near Miss Incident, the Respondent submits that
the Applicant intentionally walked out in front of Mr Cinick’s vehicle, and that the
Applicant did so to antagonise Mr Cinick. Having reviewed the CCTV footage myself
at hearing, I consider it reasonable to conclude that the Applicant intentionally moved
(wandered) in front of the moving bus being driven by Mr Cinick. This incident
resulted in a final warning being issued to the Applicant (within six months of the
Applicant’s dismissal). It may well be that this final warning concerned the
Applicant’s behaviour in relation to the Near Miss Incident, but it can equally be said
(on any reasonable view) to be a final warning in relation to bad attitude and poor
conduct. Walking in front of a moving bus as a ‘gag’, or to intentionally antagonise
another driver, is nothing less.”
[11] Paragraph [27] of the decision is also relevant. It includes the findings that “on the
evidence, it is unquestionable that the Applicant wilfully engaged in the conduct described in
the …Near Miss … Incidents”; that “this conduct occurred” and that it amounted to one of
many “repeated instances of misconduct”.
[12] It is apparent from the paragraphs above that Ground 1 of the appeal relies on a
selective reading of the decision. The relevant misconduct is first described in paragraph
[6(h)] of the decision, which records the allegation against Mr Bartlett that he had
intentionally walked in front of a bus being driven by Mr Cinick and that Mr Bartlett was
given a final written warning for the incident on 26 June 2019. Paragraph [26] must be read as
part of the decision as a whole, including paragraphs [25] and [27]. In paragraph [25], the
Deputy President makes express findings that various incidents of misconduct including the
Near Miss Incident are “sustained” and that Mr Bartlett “engaged in misconduct” in relation
to the Near Miss Incident.
[2020] FWCFB 6429
4
[13] These findings appear to us to have been reasonably open on the evidence, including
the CCTV footage of the incident and the contemporaneous eyewitness account of another
colleague, Mr Michael Kennedy, who was with Mr Bartlett at the time the Near Miss Incident
occurred.
[14] No arguable case of appealable error is made out in relation to Ground 1.
Ground 2 – error in the approach to consideration of the criteria in s 387(b)-(c)
[15] Mr Bartlett submits that the Deputy President erred in his approach to consideration of
the criteria in s 387(b) and (c) of the FW Act in paragraphs [36]-[37] and [41] of the decision
by finding that:
1. In assessing whether an applicant for an unfair dismissal remedy had been afforded
procedural fairness, it was incumbent on the applicant to point to matters that they
could have identified to the employer prior to dismissal which could have given rise to
the employer altering its decision;
2. An applicant had to show that they would have said something different to the
employer had they been given a proper opportunity to respond;
3. The consequences of the absence of procedural fairness needed to be identified in order
for a denial of procedural fairness to give rise to an overall finding of unfairness;
4. A conclusion that an applicant has not been denied procedural fairness leans away from
an ultimate finding of unfair dismissal;
5. Interline Bus Services complied with s 387(b) of the FW Act by providing Mr Bartlett
with a letter of termination;
6. Interline Bus Services complied with s 387(c) of the FW Act despite not having told
Mr Bartlett that his employment was at risk and/or of the matters that it intended to rely
on in deciding to terminate his employment.
[16] Mr Bartlett contends that the findings of the Deputy President are contrary to settled
jurisprudence and amount to errors of the kind described in House v King.8
[17] The first three contentions of error above deal with the Deputy President’s findings
regarding the onus said to be borne by an applicant in relation to procedural fairness in the
unfair dismissal context, including the consequences of failing to meet the identified
threshold. The fourth is related but goes to the weight afforded to certain matters where no
denial of natural justice is found. The final two deal with factual findings about whether Mr
Bartlett was afforded procedural fairness in connection with his dismissal.
[18] For context, it is useful to set out paragraphs [33] to [41] of the decision in full, which
set out the Deputy President’s consideration pursuant to s 387(b) and (c) (footnotes omitted):
“Was the Applicant notified of the valid reason(s)?
[33] An employee must be given explicit notification of a valid reason for termination
before a decision is made to terminate their employment.
8 [1936] HCA 40; 55 CLR 499
[2020] FWCFB 6429
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[34] The Applicant submits that the Respondent never made its reasoning clear as to
the reason why the Applicant was terminated. The Applicant notes that the
Termination Letter lists the numerous warnings given to the Applicant, and states that
the decision to terminate his employment is “not reversable”. Further, the Applicant
highlights that the letter is dated 4 December 2019, but given to the Applicant on 9
December 2019 (the inference being that the decision to terminate the Applicant was
made before he was given notice of same). Finally, the Applicant submits that the
Termination Letter fails to provide a specific reason in clear and unambiguous terms
as to why the Applicant was actually dismissed. In this regard, the Applicant submits
that the only conclusion that the Commission can make on the evidence is that the
Applicant was not provided with notification of the reason for his dismissal.
[35] As to the supposed deficiency of reasons provided for dismissal, this submission
is easily put aside. The Termination Letter clearly states that the reason for the
Applicant’s dismissal was because of the various misconduct incidents described in
the evidence. The Respondent has clearly and expressly communicated its reasons for
dismissal to the Applicant. No more need be said.
[36] As to the disjunction between the date on the Termination Letter, and the date it
was provided to the Applicant, Mr Oliveri’s evidence was that he directed another
person to draft the letter on 4 December 2019, but that he was still “considering”
whether to terminate the Applicant right up to the end of the termination meeting. I
accept this evidence (Mr Oliveri came across to me as a straight-forward, no nonsense,
truthful witness). Importantly, the Applicant was aware that the Respondent had taken
an unfavourable view as to his conduct prior to the termination meeting. The
Applicant has not pointed to any aspect of the response he provided at the termination
meeting that he now asserts could have given rise to the Respondent altering its
decision. In my view, the consequences of the absence of procedural fairness need to
be identified, not just the absence of procedural fairness itself, if one is to be in a
position to submit that such absence ought give rise to an overall finding as to
unfairness. Even inferences arising from an absence of procedural fairness need to
have at least some evidentiary foundation to be made, and matters of assumption and
speculation ought never be relied upon.
[37] Taking all of the facts and circumstances into account (i.e. those beyond just the
Termination Letter), the foregoing findings lean away from an ultimate finding that
the Applicant’s dismissal was harsh, unjust and/or unreasonable.
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[38] Procedural fairness is neither a science, nor term of art. It requires an employee
protected from unfair dismissal to be provided with an opportunity to respond to any
reason for their dismissal relating to their conduct or capacity. There is no particular
form required for this ‘opportunity to respond’, and an employee may be given such
an opportunity in person, in discussion, or in writing. An opportunity to respond is to
be provided before a decision is taken to terminate an employee’s employment. The
opportunity to respond does not require formality or technicality, and is to be
considered in a common sense manner. Where the employee is aware of the particular
[2020] FWCFB 6429
6
nature of an employer’s concern about his or her conduct or performance, and has an
opportunity to respond to that concern, this will ordinarily be enough to satisfy
legislative requirements.
[39] The Applicant submits that the Respondent did not provide him with an
opportunity to properly respond to the reasons for his termination, and so treated him
unfairly. The Applicant identifies that the allegations made against him were not put to
him in writing, and asserts that because of this, he was not provided an opportunity to
respond to those allegations.
[40] I do not accept the Applicant’s submissions in this regard. The evidence is that
the Applicant was provided with an opportunity to verbally respond to the various
allegations of misconduct (made against him) when they were raised with him in
person by the Respondent’s managers and/or Mr Oliveri. The manner in which the
Respondent sought to address the Applicant’s instances of misconduct, at every step
and turn, whilst not ideal, was nonetheless, in my view, an acceptable approach in the
circumstances, and one in which the Applicant was familiar with (having regard to the
manner in which concerns had been raised with him previously). The Respondent’s
approach was frank, upfront, and appropriate in respect of an employee who, by his
own admission, is not entirely literate. Indeed, the notion that disadvantage or
unfairness might be visited upon an employee who is not entirely literate by having
allegations of misconduct put to them verbally (as opposed to in writing) is
counterintuitive.”
[41] The Applicant’s submissions regarding procedural fairness are unduly pernickety.
In my view, the Respondent did afford the Applicant procedural fairness. The
Applicant was put on notice in regard to the allegations (including their particulars)
made against him and had a dialogue with the Respondent about same. That dialogue,
or response, to the allegations put to him, is maintained by the Applicant in these
proceedings. In other words, it is not the case in these proceedings that the Applicant
says, ‘I was denied an opportunity (or a proper opportunity) to respond to the
allegations made against me, and if I did get that opportunity, I would have said
something different’.”
[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-
established.9 They may be summarised as follows:
(1) Each of the matters specified in s 387, including those in paragraphs (b) and
(c), must be taken into account as matters of significance, to the extent that
they are relevant to the particular case at hand, and given due weight.
(2) Proper consideration of s 387(b) requires a finding to be made as to whether
the applicant has been notified of “that reason” – that is, the reason for
dismissal relating to the capacity or conduct of the applicant found to be valid
under s 387(a) – prior to the decision to dismiss being made.
9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [27], [64]-[73], [75]; Chubb Security Australia Pty
Ltd v Thomas [2000] AIRC 822 at [41]; Wadey v YMCA Canberra [1996] IRCA 568
[2020] FWCFB 6429
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(3) Proper consideration of s 387(c) requires a finding to be made as to whether
the applicant has been given a real opportunity to respond to the reason for
dismissal. As a matter of logic, unless the applicant has been notified of the
reason, it is difficult to envisage that it could be found that the applicant has
been afforded an opportunity to respond to that reason.
(4) Once findings are made in relation to s 387(b) and (c), they may then be
weighed together with the other matters required to be taken into account in
order to form a conclusion as to whether the applicant’s dismissal was harsh,
unjust or unreasonable. Where it is found that the applicant was not notified of
the reasons for dismissal and/or was not given an opportunity to respond, a
relevant consideration as to the weight to be assigned to this is whether this
meant that the applicant was deprived of the possibility of a different outcome
in terms of avoiding his or her dismissal.
[20] Having regard to the above principles, we consider that the Deputy President’s
consideration of s 387(b) and (c) is plainly attended by appealable error in three respects.
[21] First, the Deputy President’s consideration of s 387(b) proceeded on the basis of the
contents of the termination letter, which was given to Mr Bartlett to communicate his
dismissal. It could not, for the purpose of s 387(b), constitute notification of the reason for his
dismissal because it was not provided before the decision to dismiss was made.
[22] The evidence before the Deputy President demonstrated that, at the commencement of
the meeting on 9 December 2019 which ended with Mr Bartlett’s dismissal, he was requested
to provide a response to the Swearing Incident. If the Swearing Incident alone had been found
by the Deputy President to be sufficient to constitute a valid reason for the dismissal, then that
might be sufficient to support a finding under s 387(a) that Mr Bartlett had been notified of
the reason for his dismissal. However, the Deputy President had earlier found that the
Swearing Incident did not by itself justify dismissal;10 rather, he had found that this incident
together with three earlier incidences of misconduct (the Non-Compliance, Defacing Vest and
Near Miss Incidents) constituted a valid reason for dismissal.11 It is clear that Mr Bartlett was
not notified of these additional matters as forming part of the reason for dismissal.
[23] Consequently, the Deputy President made a factually incorrect finding for the purpose
of s 387(b). This was a significant error of fact. The finding that should have been made was
that Mr Bartlett was not notified of the reason for his dismissal.
[24] Second, in relation to s 387(c), to the extent that the Deputy President made any
finding at all, it was the wrong finding. Because, as just explained, Mr Bartlett was not
notified of the reason for his dismissal that the Deputy President found to be valid, he was not
given an opportunity to respond. The Deputy President appears to have considered, in respect
of the three earlier incidents of misconduct, that because Mr Bartlett was given an opportunity
to respond to each of the earlier incidents at the time they occurred, this was sufficient to
constitute the requisite opportunity to respond for the purpose of s 387(c).12 We do not agree.
10 [2020] FWC 2914 at [24]
11 Ibid at [27]-[30], [54]
12 Ibid at [40]-[41], [54]
[2020] FWCFB 6429
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The opportunity to respond to which s 387(c) refers is an opportunity to respond to the reason
for which the employee may be about to be dismissed. The earlier incidents occurred many
months or years before the dismissal, and any opportunity to respond to each incident
individually at the time it occurred does not constitute an opportunity to respond to a reason
for dismissal consisting of four incidents of misconduct considered collectively.
[25] Third, as we read the decision, the Deputy President proceeded on the basis that any
finding of a denial of procedural fairness concomitant upon the findings made pursuant to s
387(b) and (c) could not weigh in favour of a finding of unfair dismissal unless the applicant
can point to something they might have said, or did say, that could have made a difference to
the outcome.13 However, paragraphs (b) and (c) of s 387 are concerned with the observance of
fair decision-making procedures, and not necessarily with the character of the decision that
emerges from those procedures.14 Where a denial of procedural fairness has been found, the
usual approach is that it will not be treated of significance only if it is firmly established that it
could have made no difference to the outcome.15
[26] In approaching the matter from the starting point that unfair dismissal can only flow
from a denial of procedural fairness where there are demonstrated consequences of that
denial, the Deputy President misapprehended the statutory task as it relates to s 387(b) and (c)
of the FW Act and closed his mind to the possibility that Mr Bartlett had been unfairly
dismissed on procedural fairness grounds. A consequence of the denial of procedural fairness
in this case was that Mr Bartlett’s opportunity to respond before he was dismissed was
unfairly narrow in scope, because he did not know that his prior warnings for misconduct
were being relied upon in connection with the decision to dismiss. It may be that an
opportunity to address those matters would not have made any difference to the ultimate
outcome, but it is at least a real possibility that Mr Bartlett would have addressed the
cumulative effect of his conduct when asked why his employment should not be terminated.
Instead, the opportunity to be heard on that issue, and for any response to be considered prior
to his dismissal, was denied. Accordingly, the s 387(b) and (c) considerations should have
been treated as weighing in favour of a finding of unfair dismissal.
[27] For these reasons, we uphold Ground 2 of the appeal.
Ground 3 – error in failing to consider Mr Bartlett’s remorse in connection with whether the
dismissal was harsh in all the circumstances
[28] By this ground, Mr Bartlett submits that the Deputy President did not consider or
weigh his contention that a factor pointing to the harshness of his dismissal was that he was
remorseful and apologetic for his conduct. It is put that the Deputy President denied Mr
Bartlett procedural fairness and made a House v King error by failing to take this into account
as a material consideration about which Mr Bartlett gave unchallenged evidence.
13 Ibid at [36], [41]
14 See, by analogy, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82 at [58] per
Gaudron and Gummow JJ
15 See, again by analogy, Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141
[2020] FWCFB 6429
9
[29] The first point to make is that the evidence about Mr Bartlett’s remorse for his conduct
does not appear to us to have gone unchallenged. Paragraphs [6(n)] and [13(d)] of the
decision summarise the competing evidence from Mr Bartlett and Mr Oliveri, Managing
Director of Ingleburn Bus Services, about Mr Bartlett’s remorse (or lack of remorse) in
relation to the incident that finally led to his dismissal. Mr Bartlett sent a message to Mr
Oliveri on 27 November 2019, two days after the ‘Swearing Incident’ and the day of his
meeting with Mr Oliveri to discuss his response. The message (recounted above) apologises
but in an equivocal way. The Deputy President found Mr Oliveri to be a “straight-forward, no
nonsense, truthful witness”.16 The same cannot be said in relation to Mr Bartlett, whose
evidence the Deputy President described alternatively as “untenable” and seeking to “explain
away, or otherwise downplay” the significance of a series of incidents amounting to
misconduct.17 To the extent that there was unchallenged evidence in relation to Mr Bartlett’s
remorse, it was that of Ms Karen Sherry (recipient of the offensive complaint response) who
testified that Mr Bartlett had not apologised to her despite ample opportunity to do so.
[30] It is true that the Deputy President did not deal expressly with whether Mr Bartlett’s
remorse should weigh in favour of a finding that the dismissal was harsh. That is not to say
that the Deputy President did not turn his mind to the matter. In our view, the structure of the
decision responds to the way the matter of remorse was relied upon in the proceedings. On a
fair reading, we are not persuaded that the Deputy President failed to take into account the
question of Mr Bartlett’s remorse in answering the case before him.
[31] Mr Bartlett relied on his past and present remorse for the purpose of:
1. Demonstrating that there was no valid reason for his dismissal;
2. Submitting that dismissal was a disproportionate (and therefore harsh) response to his
conduct and that he did not receive a “fair go”; and
3. Seeking (unsuccessfully) to persuade the Deputy President to prefer Mr Bartlett’s
evidence over that of other witnesses.
[32] The Deputy President dealt with the question of valid reason at paragraphs [30] to [32]
of the decision.
[33] The Deputy President dealt with the question of proportionality in paragraph [48] of
the decision. Under the heading of “harshness” in closing submissions, the particular matters
relied upon by Mr Bartlett were proportionality (whether termination for serious misconduct
was harsh); length of service; the cursory nature of the allegations; the fact that serious
misconduct had not been made out; denial of procedural fairness; and the impact of the
termination on Mr Bartlett. To the extent that the submissions dealt with remorse, it was only
indirectly or in passing.
[34] We have summarised the Deputy President’s findings in relation to credibility above,
which favoured Mr Oliveri and not Mr Bartlett. It was for the Deputy President to determine
which evidence he preferred, as well as matters of relevance and weight.
[35] No arguable case of appealable error is made out in relation to Ground 3.
16 [2020] FWC 2914 at [36]
17 Ibid at [27]
[2020] FWCFB 6429
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Conclusion on the appeal
[36] For the reasons stated, we grant permission to appeal in respect of Ground 2, uphold
the appeal in respect of this appeal ground and quash the decision. We consider it appropriate
to redetermine Mr Bartlett’s application for an unfair dismissal remedy ourselves.
Rehearing
[37] In relation to the matters requiring initial determination in s 396 of the FW Act, we
find as follows:
1. Mr Bartlett’s unfair dismissal application was made within the period required by s
394(2);
2. Mr Bartlett was a person protected from unfair dismissal;
3. Interline Bus Services was not a “small business employer” as defined in s 23 of the
FW Act, so that the Small Business Fair Dismissal Code is inapplicable; and
4. The dismissal was not a case of genuine redundancy.
[38] In our assessment of whether Mr Bartlett’s dismissal was harsh, unjust or
unreasonable, we adopt the findings of the Deputy President in relation to paragraphs (a) and
(d)-(h) of s 387.18
[39] In relation to s 387(b), for the reasons above we find that Mr Bartlett was not notified
of the reason for his dismissal. This weighs in favour of a finding of unfair dismissal.
[40] In relation to s 387(c), for the reasons above we find that Mr Bartlett was not given an
opportunity to respond to the reason for his dismissal. This weighs in favour of a finding of
unfair dismissal.
[41] On balance, the valid reason for Mr Bartlett’s dismissal, which was the cumulative
result of a series of instances of misconduct over a sustained period of time, outweighs the
denial of procedural fairness in the process leading to dismissal. The process was otherwise
carried out in the presence of his union representative and in a manner suited to the
environment in which Mr Bartlett worked. The consequences of the dismissal in Mr Bartlett’s
case must be assessed to be significant, given in particular his age, his length of service (both
with this particular employer and in the industry) and the financial consequences of the
dismissal. These are clearly matters weighing in favour of a finding of unfairness. If Mr
Bartlett had been dismissed for a single instance of misconduct, this might be sufficient to “tip
the balance” in favour of a finding that the dismissal was unfair. Regrettably, however, he
engaged in a course of unacceptable conduct over a long period of time, and his incapacity to
accept responsibility for that behaviour and rectify his conduct in the face of numerous
warnings from his employer inevitably led to his continued employment becoming untenable.
In this respect, we emphasise the following findings made by the Deputy President, with
which we agree:
18 Ibid at [38]-[42], [43]-[51]
[2020] FWCFB 6429
11
“[27] The Applicant’s evidence that during his employment he was not subject to any
“major” poor performance issues is untenable. In my view, on the evidence, it is
unquestionable that the Applicant wilfully engaged in the conduct described in the
Non-Compliance, Defacing Vest, Near Miss, and Swearing Incidents. The fact that the
Applicant seeks to explain away, or otherwise downplay, the significance of these
incidents (to the Respondent, and in these proceedings) cannot alter the fact that this
conduct occurred. Nor can it alter the fact that such conduct, in my view, amounts to
repeated instances of misconduct to which the Applicant received written warnings
(including two “final written warnings”), and had his employment terminated for
(Swearing Incident).”
[42] In conclusion, the nature of the valid reason for Mr Bartlett’s dismissal is such that it
must be given decisive weight in our consideration. We are not satisfied that the dismissal
was harsh, unjust or unreasonable. Accordingly, it cannot be found to be an unfair dismissal.
Disposition
[43] We order as follows:
1. Permission to appeal is granted in relation to Ground 2.
2. The appeal is upheld.
3. The decision ([2020] FWC 2914) is quashed.
4. On redetermination, the application in U2019/14460 for an unfair dismissal remedy is
dismissed.
VICE PRESIDENT
Determined on the basis of written submissions.
Printed by authority of the Commonwealth Government Printer
PR725001
OF THE FAIR WORK MISSION THE
