Fair Work Act 2009
s.604—Appeal of decision

and

Appeal against decisions [2014] FWC 5072, and [2014] FWC 7014 and order [PR556256] of Deputy President Wells at Hobart on 19 September and 7 October 2014 in U2013/15506 and U2013/15509 – Permission to appeal refused in respect of the decision on transcript of Deputy President Wells in relation to the bias application and decision in respect of the terminations being harsh and reinstatement appropriate – Permission to appeal granted in respect of decision [2014] FWC 7014 – Item A.3 of the order of 7 October 2014 [PR556256] remit question of the terms of an order for payment of compensation for lost pay by the Respondents back to Deputy President Wells for determination.

[1] This decision arises from two appeals, pursuant to s.604 of the Fair Work Act 2009 (the Act), by Nyrstar Hobart Pty Ltd (the Appellant) against two decisions by Deputy President Wells on 19 September 2014 1 and 7 October 2014.2 The decisions arose out of applications under s.394 of the Act by Mr N Cannan3 and Mr K Fuller4 (together the Respondents) for relief in respect of the termination of their employment by the Appellant.

[2] In each decision, Deputy President Wells determined each s.394 application, dealing with the particular circumstances in relation to the Respondents as necessary.

[3] In the decision of 19 September 2014, Deputy President Wells found each dismissal was harsh and determined that an order reinstating each Respondent and an order maintaining the continuity of their service was appropriate. Deputy President Wells also found that an assessment of an order for payment of compensation for lost pay required further written submissions relevant to the issues contained in ss.391(3) and (4) of the Act and issued directions for the filing and service of full written submissions on these matters.

[4] In her 7 October 2014 decision, Deputy President Wells found that it was appropriate to make an order for some lost pay, with a reduction from the full extent of lost pay to take account of earnings from other employment since the termination in each case and a 50% discount in the net loss calculated on account of misconduct found by her to have been engaged in by each Respondent (in paragraphs 232, 234, 237 and 238 of her 19 September 2014 decision).

Approach to the Appeal

[5] Section 604(1) of the Act provides for an appeal against a decision by a Member of the Fair Work Commission (the Commission) which is conditioned by permission to appeal. Section 604(2) of the Act provides that “[w]ithout 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”.

[6] However, in relation to an appeal against a decision arising under Part 3–2—Unfair dismissal of the Act, the right to appeal a decision, with permission, under s.604, is modified by s.400 of the Act, such that permission to appeal will only be granted if the Commission considers that it is in the public interest to grant permission and appeals concerning a question of fact can only be made on the ground that the decision involved a significant error of fact.

[7] It is clear from s.604 of the Act and, in respect of termination of employment matters, s.400 that the appeal process in the Act does not provide an opportunity for a party to re-argue a case, and have it determined by an Appeal Bench afresh, as if the decision of the single member at first instance had not been made. An Appeal Bench will only reconsider and determine an application itself, if satisfied that permission to appeal ought to be granted because it is in the public interest to do so and the decision appealed reflects error and, in relation to an appeal in respect of a termination of employment matter, a significant error of fact where the appeal concerns a question of fact.

The background to the terminations

[8] The background to the matters before Deputy President Wells, which provides the context of the matters before her were conveniently summarised by her, as follows:

“[8] Nyrstar is a global company in the mining and mineral processing industry, having purchased the Risdon Smelter from the previous owner Zinifex in September 2006. The Nyrstar Risdon Smelter workforce contains approximately 480 employees and 120 contractors.

[9] Mr Cannan, aged 50 years, and Mr Fuller, aged 57 years, commenced employment with Nyrstar in 1995 as Operators within the Casting Department. At the time of termination they were Grade 6 Operators under the Nyrstar Hobart Production Enterprise Agreement 2010 [2010] (the EBA). Between 1998 and 2001 Mr Fuller had been employed as a Leading Hand, a position he stood down from after the death of his father.

[10] Other than two incidents involving Mr Fuller in 2002 and 2006 involving a contractor, and an incident in the early 2000’s when Mr Cannan was ‘coached’ over the taking of sick leave, neither Mr Cannan nor Mr Fuller have been the subject of formal disciplinary action by Nyrstar for performance or behavioural issues.

[11] The Casting Department operates under a rotating shift roster arrangement of four panels known as A, B, C and D and work a 4 day on, 4 day off rotation. Each panel works two 12 hour day shifts followed by two 12 hour night shifts, with both early and late starters for each shift. Mr Cannan and Mr Fuller have worked all their time at Nyrstar on D-panel. At the time of their termination they were late starters. There are pre-start (safety) meetings at the commencement of each shift which require separate pre-start meetings for the early starters and the late starters.

[12] Around mid-December 2012 Mr [J] Fraraccio was appointed to the position of Team Leader of D-panel in the Casting Department. The role of the Team Leader changed at that time from operational to non-operational in nature and no consultation took place with D-panel about the change to the role.

[13] Between late January and May 2013, a number of industrial and safety disputes were raised by employees from D-panel.

[14] Following a meeting between Mr Fraraccio and Mr Fuller which occurred on 17 April 2013 at which Mr Cannan was present, the issue of bullying by Mr Fraraccio was raised with Nyrstar management.

[15] On 30 May 2013 Nyrstar appointed Mr [D] Farmer to undertake an investigation of the bullying allegations made against Mr Fraraccio. Mr Farmer held interviews and took statements from a number of employees, including the Applicants (the first investigation). Six D-panel employees made statements relating to Mr Fraraccio’s behaviour. In late July 2013, Nyrstar determined that the actions of Mr Fraraccio were reasonable administrative actions and were not bullying.

[16] Following that determination, and as a result of the information gathered, Nyrstar instructed Mr Farmer to take statements from other employees and to take further statements from some employees previously interviewed. Twelve additional statements were taken by Mr Farmer (the 12 statements) and provided to Nyrstar on 4 September 2013.

[17] On 13 August 2013 Nyrstar held a meeting with the six employees from D-panel who had made statements in the first investigation and advised them that as a result of that investigation, information had come to hand relating to them displaying behaviour which could be considered bullying. Nyrstar suspended the six employees on full pay pending an investigation of the allegations they had bullied Mr Fraraccio.

[18] On 15 August 2013 the Construction, Forestry, Mining and Energy Union (the CFMEU) notified a dispute to the FWC relating to the suspension of the six employees. The dispute came before Commissioner Lee who conducted a conciliation conference and recommended that retired industrial Commissioner Mr [J] Simmonds, who was suggested by the CFMEU, conduct an investigation into the six employees. On approximately 30 August 2013 Mr Simmonds was appointed to undertake the investigation (the second investigation). Mr Simmonds was provided with copies of the 12 statements taken by Mr Farmer.

[19] The 12 statements were never provided to Mr Cannan, Mr Fuller or the CFMEU.

[20] On 20 September 2013 Mr Cannan and Mr Fuller, with union representation, were interviewed by Mr Simmonds. They both provided information on the matters put to them. Mr [T] Wilson-Haffenden, Human Resources Manager for Nyrstar, received Mr Simmonds findings on 27 September 2013.

[21] Nyrstar wrote to Mr Cannan and Mr Fuller on 7 October 2013 (the ‘show cause’ letters) asking them to ‘show cause’ why their employment should not be terminated, and advised of Mr Simmonds’ findings.

[22] Mr Cannan, along with Mr [M] Reeves and Ms [S] Shay of the CFMEU, attended his ‘show cause’ meeting on 17 October 2013. Mr Wilson-Haffenden and Mr [R] Curtis represented Nyrstar. Mr Cannan raised concerns about the investigation and findings by Mr Simmonds and gave his response to those findings. Mr Cannan’s employment was terminated by Nyrstar on 23 October 2013.

[23] Mr Fuller, along with Mr Reeves and Ms Shay of the CFMEU, attended his ‘show cause’ meeting on 23 October 2013, where he responded to the findings of Mr Simmonds. On 29 October 2013 Nyrstar terminated Mr Fuller’s employment. Both Applicants’ letters of termination state they were dismissed due to ‘serious misconduct in that you bullied and harassed fellow employees and have shown to have had a number of instances of inappropriate conduct’.” [References omitted]

[9] The hearing before Deputy President Wells occurred over seven hearing days, with 1700 pages of witness statements, brought from 20 witnesses (16 for the Appellant and four for the Respondents).

The decisions of Deputy President Wells

[10] In her 19 September 2014 decision, Deputy President Wells set out:

● a summary record of the “evidence” before her under various headings (at pages 4–25);

● a summation of the parties’ “submissions” (at pages 25–35);

● the “legislative” matters to which she was required to have regard (at pages 35–36 and 44, see also page 2 of the 7 October 2014 decision); and

● considered and made findings in relation to each of the statutory matters, within s.387 of the Act, which the Commission is required to have regard to in determining whether a termination is harsh, unjust or unreasonable (at pages 36–44), and balanced those considerations concluding that the dismissals “were harsh”. 5

[11] Deputy President Wells then addressed remedy in her 19 September 2014 and 7 October 2014 decisions.

The decision of Deputy President Wells that the terminations were harsh

[12] In respect of valid reason (s.387(a) of the Act), Deputy President Wells considered bullying behaviours alleged to have been engaged in by the Respondents against team leaders, which were subject to findings in the Report of Mr Simmonds. In doing so, she considered for herself and made findings on the evidence in respect of the conduct, as she was required to do. The Deputy President accepted some conclusions reached by Mr Simmonds and reached a different conclusion in relation to some of the conduct. 6

[13] The Deputy President accepted the Appellant’s argument that bullying does not require a particular intent behind it, finding that the test for bullying is an objective one and that the definition for being bullied at work has been established under the Anti-bullying jurisdiction of the Commission. 7 The Deputy President accepted that the Appellant was entitled to bring evidence of conduct not considered by Mr Simmonds in respect of which he made no findings against the Respondents, but noted that this raised “concerns of a procedural nature, in that the substituted findings were not put to the [Respondents]”.8

[14] The Deputy President then considered the evidence and made findings in respect of the conduct of each of the Respondents.

[15] In respect of Mr Fuller, Deputy President Wells found that:

● “The allegation of bullying Mr [P] McCullum and of undermining Mr Fraraccio’s authority” in relation to an incident involving Mr McCullum was without basis; 9

● “[t]he raising of workplace disputes by Mr Fuller was in his capacity as union delegate . . . does not denote misconduct” and Mr Simmonds’ finding that the raising of the disputes was misconduct in the form of bullying, was wrong and was not supported by reasons in his Report; 10 and

● The use of swearing by Mr Fuller “involving the contractor Mr [S] Dodge and use of inappropriate language with Mr Phillips” was not bullying but did, constitute a “breach of the Nyrstar Code of Business Conduct which requires employees to act with courtesy, fairness, dignity and respect”. 11

[16] In respect of Mr Cannan, Deputy President Wells found that:

● an allegation that Mr Cannan was “disrespectful to Mr Fraraccio on 18 January 2013 . . . was not made out”; 12

● an “allegation of Mr Cannan raising his voice at Mr Fraraccio” about a “safety issue involving barrier tape” was not “made out”; 13

● Mr Cannan’s behaviour toward Mr Fraraccio in relation to an incident on 31 March 2013 concerning “interference by someone in Mr Cannan’s work” and his behaviour “when he spoken [sic] disparaging about the Process Leader, Mr [D] King at a pre-start meeting” was inappropriate and was a breach of the Nyrstar Code of Business Conduct; 14 and

● “Mr Cannan was ‘pointedly unpleasant’ to Mr Phillips” was not proven. 15

[17] Deputy President Wells then considered evidence in relation to and made findings on the other alleged inappropriate behaviour in D-panel in which the Respondents worked. The Deputy President noted that “many of the allegations did not specifically identify an employee” (referring instead to D-panel in general) and stretched “back to 1999–2000”, She also noted that “whilst a number of previous D-panel management described working in D-panel as being harmful to their health and family life, they did not consider that any of the conduct of Mr Fuller, Mr Cannan or other D-panel members serious enough to take any action”. 16 Nonetheless, Deputy President Wells found “some of the historic, but specific behaviours that . . . attributed to Mr Cannan and Mr Fuller in pre-start meetings”, were of a “bullying nature and is a breach of the Nyrstar Code of Business Conduct”17 and “there was a valid reason for the termination of Mr Cannan and Mr Fuller”.18

[18] In respect of s.387(b) of the Act – Notification of the valid reason – Deputy President Wells found that the 12 additional statements from other employees obtained by the Appellant in the course of the investigation of the bullying allegations against Mr Fraraccio, preceding the Report of Mr Simmonds and the substitution by the Appellant of its own findings in place of those of Mr Simmonds meant the Respondents, who were advised of Mr Simmonds’ findings in the “show cause” letter, were “not notified of all of the reasons for their dismissals” prior to or at the time of their dismissal. 19

[19] In relation to s.387(c) of the Act – Opportunity to respond to any reason – Deputy President Wells found that the conclusions of the Appellant’s Human Resources Manager in substitution for those of Mr Simmonds in relation to allegations against the Respondents, “together with the content of the 12 statements [relied on by the manager] were not articulated in the ‘show cause’ letters; were not provided to Mr Cannan or Mr Fuller before their dismissals and were not outlined in the letters of termination”. 20 Deputy President Wells found that the Respondents “were not afforded an opportunity to respond to all parts of the reasons for dismissal, only the matters that were found proven by Mr Simmonds”,21 rendering the termination “process procedurally unfair”.22

[20] The Deputy President also found that in circumstances where the contrition in respect of their behaviours was a “material consideration” of the Appellant, the failure to disclose all of the conduct relied on by the Appellant to the Respondents prevented them from addressing the alleged behaviour. 23 The Deputy President found that contrition was expressed by each Respondent when apprised of relevant conduct, “Mr Fuller during his interview with Mr Simmonds, and particularly that provided by Mr Cannan under cross-examination”.24

[21] Deputy President Wells concluded that “these were significant failures to accord fairness in the dismissal process that placed the [Respondents] at a considerable disadvantage to be able to show cause as to why their employment should not be terminated”. 25

[22] Deputy President Wells found that the Respondents “were not refused the right to have a support person present throughout the investigation” 26 (s.387(d) of the Act).

[23] Deputy President Wells dealt with warnings regarding the Respondents’ conduct, as against “unsatisfactory performance” in the context of s.387(h) of the Act. 27

[24] Deputy President Wells found the size of the Appellant’s “enterprise did not impact the dismissal procedures followed” and that the Appellant had dedicated human resources functions 28 (ss.387(f) and (g) of the Act).

[25] Deputy President Wells then considered and made findings in relation to a number of other relevant matters (s.387(h) of the Act), finding:

● Both Respondents are “aged 50 years or older and have worked in the one job for the one employer for 18 years” and this, “coupled with their specific skill set”, will make it difficult for them to obtain alternate full time employment. 29

● Toleration or condonation by an employer of misconduct later relied upon to terminate the employment of an employee is a circumstance bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable. Team Leaders of D-panel gave evidence that “over the long history of this matter, there was a tolerance or acceptance of the conduct” of the Respondents and concluding that the Appellant’s “management had full knowledge of the conduct” of the Respondents, retained the Respondents’ services and did nothing about the conduct and had “given up the right to dismiss the [Respondents] summarily for that behaviour”. 30

● The failure of the Appellant’s management to deal effectively and efficiently with issues at the “heart of the relationship between members of D-panel and their Team Leader Mr Fraraccio” festered an “environment of little respect on either side” in which the conduct of the Respondents occurred. 31

● Both Respondents had a “substantially unblemished employment” record with the Appellant “over some 18 years, having received satisfactory or good performance appraisals”, which “did not accord” with the perception of the Appellant as relied upon for termination in relation to their conduct and left the Respondents to appropriately “consider they were conducting themselves satisfactorily”. 32 The Respondents’ conduct was not dealt with under the Appellant’s “Performance Improvement and Disciplinary Policy” and the Respondents were “not afforded an opportunity to understand and change their behaviour, which added to the procedural deficiencies in these dismissals”.33

[26] Deputy President Wells balanced her consideration and findings in relation to the s.387 matters, by concluding that “the dismissals of both Mr Fuller and Mr Cannan were harsh”. 34

The decision of Deputy President Wells that reinstatement was appropriate

[27] Deputy President Wells then considered remedy finding that reinstatement was appropriate in her first decision and determined the terms of an order to restore lost pay in her second decision.

[28] In respect of reinstatement, Deputy President Wells considered the terms of s.390 of the Act and relevant authorities. 35 She found that it was “appropriate to order the [Respondents’] reinstatement”,36 having regard to:

● the absence of evidence that, if reinstated, the Respondents would be surplus to the Appellant’s business requirements; 37

● there were no matters that indicated “undisclosed serious misconduct which would almost certainly lead to a further termination of the [Respondents’] employment”; 38

● “[t]here was no evidence of a material incapacity” on the part of either Respondent that would “affect the further performance of their contractual obligations”; 39

● “contrition expressed by both Mr Cannan in cross-examination and by Mr Fuller in the interview with Mr Simmonds”, such that the Deputy President was “satisfied that both [Respondents] are now cognisant of their conduct and are capable of change”; 40 and

● the absence of an “irreparable breakdown in the trust and confidence relationship between the employer and the [Respondents]”. 41

The decision of Deputy President Wells in respect of an order for the payment of lost pay

[29] In her second decision Deputy President Wells found that it was “appropriate to make an order for the restoration of some lost pay”, having regard to her reasons in the first decision, the written submissions of the parties and relevant authorities. 42 The order was based on the net loss of income of each Respondent, discounted by 50% on account of:

● Swearing by Mr Fuller “involving the contractor Mr Dodge and use of inappropriate language with Mr Phillips . . . to be a breach of the Nyrstar Code of Business Conduct which requires employees to act with courtesy, fairness, dignity and respect”; 43

● Mr Cannan’s behaviour toward Mr Fraraccio in relation to an incident on 31 March 2013 and “when he spoken [sic] disparaging about the Process Leader, Mr King at a pre-start meeting” which was a “breach of the Nyrstar Code of Business Conduct”; 44 and

● Historic, but specific behaviours attributed to Mr Cannan and Mr Fuller in pre-start meetings, found by the Deputy President to be of a “bullying nature and is a breach of the Nyrstar Code of Business Conduct”. 45

[30] In making her order in respect of the restoration of lost pay, Deputy President Wells at the conclusion of her first decision sought written submissions relevant to the issues contained in ss.391(3) and (4) of the Act, 46 going to an amount for the remuneration lost, or likely to have been lost, by the Respondents because of the dismissal and income earned from alternate sources.

[31] In her second decision, the Deputy President made calculations of the notional loss based on those submitted by the Respondents, rather than a lesser amount calculated by the Appellant having regard to the payment of the Respondents’ notice and accrued entitlements. On appeal, the Appellant conceded that its calculation contained an arithmetic error which made its way into the calculations of the Deputy President, in respect of which it undertook to approach Deputy President Wells to have the decision and order corrected.

Appeal Grounds

[32] The Appellant’s appeal grounds fall within three broad areas:

1. An appeal against a decision in transcript 47 in which Deputy President Wells dismissed an application by the Appellants that she disqualify herself on the basis of an alleged reasonable apprehension of bias;

2. In respect of the first decision, an appeal against the decision of Deputy President Wells that the termination of each Respondent was harsh, which raised issues of alleged error in findings by the Deputy President in relation to s.387 of the Act considerations and her balancing of those considerations in finding that the terminations were harsh, and alleged errors of law through the misapplication of relevant principles and the introduction of erroneous principles and, in relation to remedy, error in respect of the finding of Deputy President Wells that reinstatement was appropriate; and

3. In respect of the second decision, denial of natural justice and/or error in calculating lost earnings of the Respondents.

Decision in relation to bias

[33] The Appellant submitted that Deputy President Wells erred in refusing its application that she disqualify herself from hearing the applications on the basis of a reasonable apprehension of bias. This ground was addressed at ground 22 of the Appellant’s written Outline of Submissions. 48

[34] At the commencement of the first day of hearing (3 June 2014) before Deputy President Wells, the Appellant made an application that the Deputy President disqualify herself on the basis of a reasonably held “apprehension of bias”. The application was brought on the basis that Deputy President Wells was, prior to her appointment to the Commission on 21 September 2012, Secretary of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), Tasmania Branch which the union was active on the Appellant’s site and was directly “involved in the site through its organisers at that time” the Deputy President – held that position 49 and that the Deputy President had attended a CFMEU function, marking the retirement of Mr Oliver in March 201350 and may have had an involvement in enterprise bargaining and disputes at the site as an Officer of the CEPU,51 but no particular details were advanced. The Appellant submitted that relevant events in relation to the matter before her occurred over the period in which she was an official of the CEPU. The Appellant relied on the passage from Livesey v New South Wales Bar Association (Livesey)52 in the High Court of Australia (High Court) decision in Re Polites and Another; Ex parte The Hoyts Corporation Pty Ltd and Others (Re Hoyts)53 which stated that:

“. . . a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”

[35] When pressed to provide particulars of anything she had been involved with as Secretary of the CEPU which might provide a reasonable apprehension of bias, the Appellant submitted that its application was directed, in part, to avoid a situation in which the Deputy President might have disclosed some knowledge of a relevant event. 54 The Appellant identified no circumstance of this kind as having risen in the matter before Deputy President Wells, either during the course of the hearing before her or in the appeal.

[36] Deputy President Wells dismissed the application finding that none of the submissions put by the Appellant lead her to “believe that a fair minded observer” would entertain a reasonable “apprehension of bias”. 55

[37] In our view, the decision of Deputy President Wells in relation to the bias application was correct. It correctly applied the approach in Livesey and its restatement and application in Re Hoyts. In Re Hoyts the High Court found that Deputy President Polites erred in acceding to an application to disqualify himself on the basis of apprehended bias on the basis that he had, during his previous life as solicitor, given advice in relation to negotiating methods and industrial tactics, in 1986 to a party before him in a matter arising out of events in 1988.

[38] Having noted that the circumstances in which the 1986 advice was given were different from those which arose in the 1988 matter, the High Court said:

“In the light of these considerations and the fact that appointees to the Commission will often have had a close association with parties before, or with issues to be determined by, the Commission, it would not be open to the parties or to a member of the public to entertain a reasonable apprehension that, by reason of the advice given in the quite different circumstances of 1986, Mr Deputy President Polites might not bring an impartial and unprejudiced mind to the assessment of the prosecutors’ conduct in 1988 or to the determination of appropriate wages and conditions, whether they be determined retrospectively to 1988 or otherwise, for employees in Hoyts theatres.” 56

[39] A past association of a Member of the Commission with a party to a proceeding before them is insufficient, in itself, to have found a reasonable apprehension of bias. It would be necessary for something specific to arise from the past association relevant to the discharge of the statutory responsibilities of the Member in relation to the matter before them in order to cause a member of the public to entertain a reasonable apprehension of bias on the part of that Member arsing out of the past association. The past association relied upon by the Appellant in the current matter was unspecific and devoid of any particularity. As the High Court found in Re Hoyts, it would be wrong to accede to a disqualification application on the basis of “non-specific and speculative grounds”, 57 such as were advanced by the Appellant to Deputy President Wells.

[40] We refuse permission to appeal in respect of the decision of Deputy President Wells in relation to apprehended bias.

Decision in relation to valid reason and reinstatement in the first decision

[41] The Appellant raised a broad range of appeal grounds against the second decision of Deputy President Wells, which we have grouped into two broad categories:

1. The Deputy President made an error of law in reaching findings based on incorrect legal principles;

2. The Deputy President erred in making findings on the evidence, involving both general propositions as to the approach by her Honour to the evidence and specific findings.

[42] We will examine each appeal ground in each group of appeal grounds by reference to the numbering utilised by the Appellant in its written Outline of Submissions. 58

Errors of law in reaching findings based on incorrect legal principles

[43] In ground 4 of its written Outline of Submissions, the Appellant submitted that Deputy President Wells erred in finding that: “Industrial conduct is not capable of constituting bullying or harassing conduct”. This submission was based on the reasoning of the Deputy President at paragraph 231 of her decision and surrounding reasoning. At paragraph 231, the Deputy President stated;

“On the evidence before me, much of which was provided by Nyrstar’s own witnesses, I am satisfied that the raising of workplace disputes by Mr Fuller was in his capacity as union delegate and were raised over concerns that were genuinely held. Whilst it may be that D-panel raised more disputes than other panels in Casting that in itself does not denote misconduct and was done in accordance with the dispute settlement procedures contained in the EBA. To the extent that Mr Simmonds found the raising of disputes to amount to misconduct of [sic] bullying, he provided no reasons for this in his report and I am of the view his findings were in error.”

[44] The Appellant submitted that the legal principle erroneously determined and applied was inconsistent with legal authority in The Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay & Anor. 59

[45] This appeal ground involves a serious mischaracterisation of the decision of Deputy President Wells. The Deputy President did not make the finding attributed to her, on a reasonable reading of her decision, or apply the approach which would arise from such a proposition. Rather, the Deputy President noted that some conduct relied upon by the Appellant against Mr Fuller occurred in the context of him raising concerns as a union delegate. She did not find that his representative role took the conduct outside the scope of the alleged bullying or other inappropriate conduct. The Deputy President’s criticism of Mr Simmonds’ Report, in this regard, was that he made a finding without reasons disclosing the basis upon which the particular conduct constituted bullying. Deputy President Wells assessed the evidence as to the particular conduct and made findings as to the nature of that conduct and whether it constituted a valid reason for termination, 60 as she was required to do.61

[46] The Appellant also submitted that the findings and conclusions made by Deputy President Wells in relation to the conduct were against the evidence and the weight of the evidence. The Deputy President assessed the evidence in respect of the matters arising in Mr Simmonds’ Report and the allegations arising from “historic behaviour”, including the evidence of witnesses for the Appellant, and made findings in relation to specific conduct, finding that some conduct was in breach of the Nyrstar Code of Business Conduct and other specific conduct was of a bullying nature and in “breach” of that Code, finding on the basis of that conduct that there was a valid reason for the terminations. 62 We are not satisfied that a significant error of fact is disclosed in the decision in this regard.

[47] No error is evident in the approach of Deputy President Wells or her findings in relation to the conduct of the Respondents.

[48] In ground 5, the Appellant submitted that the Deputy President erred in concluding “that behaviour directed towards a group of workers, namely management employees, the conduct was not capable of being bullying”. 63

[49] Again, this appeal ground mischaracterises the decision of Deputy President Wells. The Deputy President did not make such a finding or apply such a principle in assessing the conduct of the Respondents.

[50] The specific finding complained of by the Appellant to support its submission was that “different incidents of behaviour engaged in by [Mr] Fuller towards different management employees of the [Respondent] were not capable of constituting bullying behaviour because they were ‘one off incidents and do not amount to repeated behaviour towards individuals’.” 64 The finding related to incidents concerning Mr Dodge, a contractor, and “inappropriate language” directed to Mr Phillips, a Team Leader. In each case, the Deputy President considered the evidence in relation to the conduct and found that it did not constitute bullying but was in breach of the Nyrstar Code of Business Conduct,65 a finding which was open to the Deputy President on the evidence.

[51] It may be noted that in her decision, the Deputy President considered evidence in relation to historic behaviour directed towards D-panel management over a period of time and, where in relation to specified conduct attributable to the Respondents found the conduct to be of a “bullying nature”. 66

[52] In grounds 7 and 18, the Appellant submitted that the Deputy President erred in finding that the Appellant had condoned the conduct and had “deliberately given up the right to dismiss . . . summarily for that behaviour”. 67

[53] Read in the full context of the relevant paragraph and the broader reasoning of Deputy President Wells in relation to condonation, 68 the finding (paragraph 263) complained of, formed part of a conclusion that the Appellant’s management had condoned behaviours of the Respondents, when they occurred, which it sought to rely on in terminating their employment. Her conclusion was directed to the proposition advanced by the Respondents that an employer which continues to employ an employee with full knowledge of an employee’s misconduct, cannot later rely on that misconduct to dismiss the employee. She did so having regard to the proposition in B, C and D v Australian Postal Corporation T/A Australia Post that toleration or condonation by the employer of misconduct which is relied on for termination is a relevant circumstance “bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable”.69 The finding of Deputy President Wells in paragraph 263 was to the effect that the employer had condoned the conduct it later relied on to terminate the employment of the Respondents, reflecting the terminology adopted by Justice Gillard in Rankin v Marine Power International Pty Ltd.70

[54] The evidence clearly supports the finding of Deputy President Wells that the Appellant’s managers had condoned the conduct of the Respondents in that they were not disciplined for the conduct and they were rated as satisfactory or better than satisfactory employees in their performance reviews over the time in which the relevant conduct had occurred. The evidence relied on by the Appellant to challenge the finding of the Deputy President 71 went largely to evidence as to the view of managers of the relevant conduct and the evidence of that does not militate against the substantial evidence that the Respondents were not disciplined in relation to the relevant conduct.72 This conclusion also disposes of the Appellant’s ground 5.3.2 in its written Outline of Submissions.

[55] Deputy President Wells was entitled to make her findings as to condonation and to include the finding that the Appellant had condoned the conduct and relied on that conduct to effect the terminations as a relevant consideration to be weighed up in the range of matters considered in determining whether the terminations were harsh, unjust or unreasonable.

[56] In ground 8, the Appellant submitted that the Deputy President erred in finding “[t]hat contemporaneous file notes must be corroborated to have evidentiary weight”. 73

[57] Deputy President Wells did not make a finding or apply the principle that contemporaneous file notes must be corroborated to have evidentiary weight. The Deputy President did not accept the Respondents’ submission that the file notes “should not be treated by the Commission as credible evidence”. 74 At paragraph 228 of her decision, the Deputy President attributed to the file notes, which recorded Mr Fraraccio’s recollection of some relevant events, the same weight as his oral evidence in relation to the events. In the context of the Respondents’ submissions,75 the use of the term “corroborated” should be seen as reflecting a distinction between file notes corroborated as an accurate recollection of the relevant events by the affected employee and file notes which reflect only the recollection of the author at the time, which would carry a lesser weight but weight nonetheless, subject to the testing in cross-examination of their content and an assessment and weighing up of all relevant evidence in relation to the relevant events, including any corroborative evidence.

[58] In relation to issues in respect of events in which the file notes provided relevant evidence, Deputy President Wells considered all of relevant evidence and made relevant findings in relation to the conduct of the Respondents on the basis of all of the evidence before her. 76

[59] The Appellant has not established error in relation to ground 8.

[60] In ground 9, the Appellant submitted that the Deputy President erred in finding “[t]hat the role of representatives is irrelevant to procedural fairness”. 77

[61] As with some earlier grounds, ground 9 involves a mischaracterisation of the decision of Deputy President Wells. The Deputy President did not make the finding attributed to her or on a reasonable reading of her decision, apply the approach which would arise from such a proposition.

[62] This complaint on appeal, is directed to the finding of Deputy President Wells in respect of ss.387(b) and (c) of the Act that:

“[240] Mr Cannan and Mr Fuller were aware of the stated reasons for their dismissal by way of a termination letter, although it was argued that details or particulars of the reasons needed to be gleaned from other documents. Mr Wilson-Haffenden gave evidence that part of the reason for the dismissals were the contents of the 12 statements together with Nyrstar substituting its own findings for the general allegation of bullying (allegation 3 in the allegations letters), where Mr Simmonds had found that allegation not to be made out. These matters, together with contrition, which formed part of the dismissal reasoning, were not disclosed to the Applicants prior to or at the time of dismissal. Accordingly, I have concluded that the Applicants were not notified of all of the reasons for their dismissals.

[241] Having regard to all of the evidence it is clear Mr Cannan and Mr Fuller were not afforded an opportunity to respond to all parts of the reasons for dismissal, only the matters that were found proven by Mr Simmonds.” 78

[63] It was a finding made on the basis of the Deputy President’s reasoning that the substituted findings of the Appellant in place of those by Mr Simmonds in relation to some conduct, together with the content of the 12 statements in relation to other conduct which were not put to the Respondents and they were not afforded an opportunity to respond to the matters arising out of the substituted findings and the 12 statements or address contrition.

[64] Those findings were made on the basis of the evidence before Deputy President Wells including the evidence that the Appellant’s Human Resources Manager advised a “CFMEU official that there were more statements”. 79 That evidence80 went to general discussion of the 12 statements and did not appraise the Respondents, through their representative of the specific allegations against them. On the evidence before her, Deputy President Wells was entitled to find that those discussions did not afford fairness to Mr Cannan or Mr Fuller. It did not make them aware of all of the particular matters putting their employment at risk or an opportunity to put a defence of substance against the matters raised against them.

[65] There was no error in the findings of Deputy President Wells in relation to ss.387(b) or (c) of the Act in relation to the conduct relied upon by the Appellant.

[66] In the related ground 9.4, the Appellant argued that the Deputy President erred “when she found that the Appellant was under a positive obligation to listen to all of the taped interviews obtained by Mr Simmonds during the investigation”. Deputy President Wells made no finding in those terms or to that effect. Her reliance on Mr Simmonds’ tapes in respect of contrition was for the purpose of her finding that Mr Fuller expressed contrition in the interview with Mr Simmonds.

[67] We see no error in the decision of the Deputy President in respect of her approach and findings in relation to “contrition”. It was a relevant consideration in respect of whether the termination was harsh, unjust or unreasonable 81 and whether reinstatement was appropriate.82

[68] In grounds 6 and 12.1, the Appellant submitted that Deputy President Wells erred in finding “[t]hat each of the Respondents was summarily dismissed”.

[69] No express finding to that effect was made by the Deputy President. In advancing this ground, the Appellant relied on findings by the Deputy President:

● in her conclusion in respect of s.387 of the Act that whilst she had found there was a “valid reason for the [Respondents’] dismissals by reason of their misconduct”, having regard to her other findings under s.387 “the conduct did not justify summary dismissal”; 83 and

● in the context of her consideration of condonation under s.387(h) of the Act, the Deputy President found that “Nyrstar had deliberately given up the right to dismiss the [Respondents] summarily for that behaviour”. 84

[70] We have dealt with the second conclusion in considering appeal grounds 7 and 18 above.

[71] The full context of the first conclusion is as follows:

“[268] Following consideration of each of the matters specified in s.387, I have concluded that there was a valid reason for the [Respondents’] dismissals by reason of their misconduct. Mr Cannan had, what I consider, an unblemished employment history. Whilst Mr Fuller’s disciplinary history is not without incident, the last formal matter was some 8 years ago and is not significant when applying ‘the standard of men not angels’. Given their 18 years’ service to Nyrstar, ages at the time of dismissal, family dependent responsibilities, the denial of procedural fairness in effecting the dismissals, my findings on the condonation by Nyrstar and lack of managing the behaviour, I am satisfied the conduct did not justify summary dismissal. I find the dismissals of both Mr Fuller and Mr Cannan were harsh.”

[72] Clearly, the task before the Deputy President in balancing all of the s.387 matters was to reach a conclusion as to whether the conduct, found to provide a valid reason for termination, when balanced against the Deputy President’s other s.387 findings justified dismissal, rather than justified summary dismissal in considering whether the termination was harsh, unjust or unreasonable. Deputy President Wells erred in referring to summary dismissal.

[73] The Appellant submitted that the reference to summary dismissal demonstrates that the Deputy President erroneously decided the matters before her on the mistaken belief that the Respondents had been “summarily dismissed” and this resulted in a fundamentally flawed determination that the dismissals were, notwithstanding there being a valid reason, harsh. 85

[74] We are not persuaded that Deputy President Wells erroneously determined the matters on the mistaken belief that the terminations were summary dismissals.

[75] A fair reading of paragraph 268 does not suggest that the Deputy President proceeded on that basis. The conclusion of Deputy President Wells commenced with her noting her finding that there was a “valid reason for the [Respondents’] dismissals by reason of their misconduct”. Thereafter, she refers to her conclusions in relation to other matters arising under s.387 of the Act, each of which supports a finding that the terminations were harsh, unjust or unreasonable. In dealing with each of the s.387 matters, there is nothing to indicate that the Deputy President was applying the statutory considerations on the basis of summary dismissals. The Deputy President expressed her conclusion as to valid reason in terms of satisfying that there was a “valid reason for the termination of Mr Cannan and Mr Fuller”, 86 rather than a valid reason for summary dismissal. Her conclusion, wrongly expressed in terms of summary dismissal, was to the effect that notwithstanding conduct which provides a valid reason for termination, when balanced against the other s.387 matters the conduct does not justify termination. That view of the reasoning of the Deputy President was supported by the fact that the Deputy President did not address herself to the question of proportionality of summary dismissal in relation to the conduct as a further consideration within s.387(h), the context in which the proportionality of summary dismissal was appropriately considered.87

[76] The reference to summary dismissal in relation to condonation, which we have dealt with in relation to grounds 7 and 18, does not detract from this view of paragraph 268 when read as a whole and in the broader context of the Deputy President’s reasoning in relation to s.387 of the Act.

[77] Our view of paragraph 268, read in context, is supported by the fact that Deputy President Wells did not expressly apply a higher standard of proof, 88 nor on a fair reading of her decision did she, in practice, apply a higher standard of proof in assessing the evidence, making findings on the evidence or reaching her conclusions on the basis of her findings on the evidence.

[78] We are not persuaded that the reference to summary dismissal by Deputy President Wells demonstrates that or misapplied herself on the basis of a mistaken view that the terminations were summary dismissals. In our view it reflects a “verbal slip” which does not warrant the “inference of an error of law” of the nature suggested by the Appellant. 89 That error does not cause a manifestly unjust or untenable outcome. It does not provide a basis for the grant of permission to appeal.

2. Erroneous findings on the evidence

2A. General propositions as to the approach of the Deputy President to the evidence

[79] In ground 14, the Appellant submitted that Deputy President Wells erred in finding “that the evidence of the Respondents was to be preferred to the evidence of the Appellant in all material respects”.

[80] No finding in these terms or of this nature was made by Deputy President Wells. In support of this ground, the Appellant referred to several findings in respect of competing evidence which it submitted were not available on the evidence or not sufficiently explained. 90

[81] We are satisfied that the findings as to the evidence were available to Deputy President Wells and that the basis of her findings was adequately explained.

2B. Specific findings

[82] In ground 5.3.3, the Appellant submitted that Deputy President entered into manifest error when she concluded that “previous Team Leaders lacked the skill and training to conduct a frank and transparent performance review”. It is not apparent to us how this appeal ground affects the determination of the matter by Deputy President Wells. In any case, we are not persuaded that the Deputy President has erred in reaching this conclusion on the evidence.

[83] In ground 10, the Appellant submitted that Deputy President Wells erred in finding that the Respondent “craved contrition” and in finding that Mr Cannan had expressed contrition for his conduct at any relevant time prior to dismissal.

[84] The expression “craved contrition” arose in the first decision of Deputy President Wells at paragraph 245 in the context of her consideration of the opportunity of the Respondents to offer contrition, an opportunity which the Deputy President found was not available to the Respondents in the absence of the disclosure of all of the conduct raised against them. The expression “craved contrition”, although emotive, in our view refers to the fact that the employer, in the termination letter, relied on the lack of contrition as one consideration in its decision to terminate their employment. Understood in that way, there was no error in the decision of Deputy President Wells. It is self evident that the Respondents were denied the opportunity to offer contrition, remorse or regret for behaviours which were not brought to their attention in specific terms.

[85] On the other point, the Deputy President did not find Mr Cannan had expressed contrition for his conduct prior to dismissal. Her finding was that Mr Cannan provided contrition under cross-examination during the hearing. 91 Having had the benefit of observing Mr Cannan in giving that evidence, the Deputy President was entitled to make that finding and to be satisfied that he was sincere in doing so.92

[86] In ground 10.5, the Appellant submitted that the Deputy President “failed to give any or sufficient weight” to the denial by each of the Respondents of all matters put and their failure to accept any responsibility or to be accountable whatsoever for the alleged behaviour and its effects on others.

[87] There is no basis to find that Deputy President Wells failed to give any or sufficient weight to the denial by each of the Respondents of matters put to them and their failure to accept responsibility, particularly in circumstances where many of the alleged behaviours held against them were not put to them. No error is disclosed by this ground of appeal.

[88] In ground 11, the Appellant submitted that the Deputy President erred in finding “[t]he failure to provide full particulars of all information was a fundamental failure of procedural fairness warranting a finding that the dismissals were harsh”, and in ground 12 submitted that the Deputy President erred in finding that the reliance on conduct of the Respondents beyond that subject to findings against them by Mr Simmonds raised concerns of a procedural nature. Similar grounds were raised in grounds 13 and 16.

[89] In advancing appeal ground 11, the Appellant again unfairly mischaracterises the findings made by Deputy President Wells. No finding was made by her in those terms or to that effect. The Deputy President in fact found, in the particular circumstances of the investigation and termination process and the evidence before her, that there were “significant failures to accord fairness in the dismissal process that placed the Respondents at a considerable disadvantage to be able to show cause as to why their employment should not be terminated”, 93 in light of the reliance on conduct not put to the Respondents. The evidence supported such a finding, a conclusion which also extends to appeal grounds 12, 13 and 16. No question arose before the Deputy President or in her first decision that there was an obligation at law or otherwise to provide copies of statements for the purposes of providing an opportunity to respond to matters concerning conduct which might lead to the termination of employment. As is evident from a fair reading of the decision of the Deputy President she addressed herself to the evidence of whether Mr Fuller and Mr Cannan were afforded an opportunity to respond to matters alleged against them, having regard to the evidence as to what those matters were and if, when and how those matters were put to them prior to the termination of their employment. The findings of the Deputy President were available to her and disclosed no error. These appeal grounds, in substance, amounted to nothing more than a proposition that different weight should have been given to particular aspects of the evidence before her and a different conclusion reached.

[90] In ground 15, the Appellant submitted that the Deputy President erred in finding “Mr Cannan and Mr Fuller did not have adequate or sufficient opportunity to acknowledge to the employer that their conduct had been inappropriate prior to the termination of their employment”. This finding related to the inability of the Respondents to reflect on or express contrition in respect of conduct alleged against them which was not brought to their attention. As we have noted in relation to ground 15 above, the Respondents were denied the opportunity to offer contrition for behaviours which were not brought to their attention in specific terms.

[91] Also in ground 15, the Appellant submitted that the Deputy President erred in finding that reinstatement was appropriate. It submitted that the Deputy President did not take into account the conduct of the employees and the impact of bullying in the workplace. This ground has not been made out. The Deputy President had regard to the conduct and weighed it against other considerations, including her satisfaction that the Respondents were now cognisant of their conduct and capable of change. No error in undertaking that balance is evident.

[92] In the context of the decision to reinstate, the Appellant also submitted that the Deputy President’s finding that Mr Cannan had an unblemished employment history was against the evidence and the weight of the evidence. The Deputy President found that Mr Cannan had a “substantially unblemished employment” record 94 and an unblemished employment history95 when considering whether his termination was harsh, unjust or unreasonable. The Deputy President’s findings were reasonably open to her in light of Mr Cannan’s performance appraisals and the absence of disciplinary action against him, notwithstanding evidence of feedback given to Mr Cannan during the course of his employment. The Deputy President’s findings were reasonably open to her and do not reflect error.

[93] In appeal ground 20.2 of its written Outline of Submissions, the Appellant submitted that the Deputy President erred in taking into account “length of service, age, employment prospects and family responsibilities were factors in determining whether the dismissal is harsh” in circumstances where she erred in finding that:

“20.2.1 the dismissals were summary;

20.2.2 there had been a denial of procedural fairness sufficient to find that the dismissals were harsh notwithstanding a valid reason for dismissal.

20.2.3 that there had been condonation of the Respondents’ conduct estopping the Appellant from dismissing the Respondents”.

[94] This appeal ground rests on errors alleged by the Appellant in the decision which have not been substantiated in the appeal and, in that circumstance, has no basis.

[95] In appeal ground 20.4, the Appellant submitted that Deputy President Wells erred in concluding that it was “appropriate to reinstate the Respondents” by giving insufficient weight to a range of considerations. The Appellant has not established error on the part of Deputy President Wells in her conclusion that reinstatement was appropriate. This ground of appeal was no more than a complaint about the weighing up of the range of considerations, and the evidence in relation to them, by the Deputy President which was reasonably undertaken by her.

[96] In appeal ground 20.5 the Appellant submitted that Deputy President Wells “misapplied the decisions referred” to by it. The Appellant identified, in this context, only the decision in Mary Lou Anning v Virgin Australia Airlines (Anning). 96 The Appellant has not substantiated this appeal ground to the extent that it was a generalised complaint that Deputy President Wells failed to give any or sufficient weight to the decisions relied upon by it. Even in relation to Anning, the Appellant did not develop its submission beyond the broad proposition it advanced. The distinction by the Deputy President of the circumstances of those in Anning from those in the matters before her97 was properly made. The Deputy President was required to and did determine the applications before her on the basis of the particular facts and circumstances of the matters before her.

Conclusion in relation to the appeal against the first decision of Deputy President Wells

[97] Except in relation to appeal ground 6 and 12.1 – concerning the conclusion in respect of s.387 of the Act at paragraph 268 that “the conduct did not justify summary dismissal”, 98 we are not persuaded that the Appellant had established error in the first decision of Deputy President Wells.

[98] We have found that the reference to summary dismissal in paragraph 268 was of the nature of a “verbal slip” and not a substantive error. In our view, it does not affect the reasoning in and outcome of the decision and causes no unjust or counter intuitive outcome. It is not an error which warrants the grant of permission to appeal and intervention by the Full Bench on appeal.

[99] In its notice of appeal, the Appellant contended that permission to appeal should be granted in the public interest on the basis of fundament flaws as a matter of fact and law in the decision.

[100] As is evident from our reasons above, we are not persuaded that the first decision of Deputy President Wells is subject to fundamental error which would warrant permission to appeal in the public interest. In this regard we note that Deputy President Wells had the benefit of hearing the voluminous evidence, considered all of the evidence, made findings, which were available to her on the evidence, relevant to the statutory matters going to merit and reinstatement and balanced her conclusion of the statutory matters. Whilst reasonable minds may have come to a different view, we are not satisfied that the findings, conclusions and the balancing of the statutory matters by Deputy President Wells reflects significant error which would warrant intervention on appeal.

[101] In its notice of appeal, the Appellant also submitted that permission to appeal in the public interest is warranted on the basis that the decision raises:

● “The interaction of alleged industrial conduct with statutory rights to a safe place of work, and statutory provisions in respect of bullying and harassment, so as to make a finding that the dismissals were harsh is a matter that must be clarified in the public interest”; and

● “The determination of proper principles for consideration when determining matters where bullying conduct is found to have occurred is in the public interest”.

[102] We are not persuaded that these considerations support the grant of permission to appeal in the public interest against the first decision of Deputy President Wells. The decision concerns the particular facts and circumstances in relation to the Respondents. It does not raise or require the determination of general principles in relation to conduct which raises issues of workplace safety and/or bullying.

[103] We refuse leave to appeal in respect of the first decision of Deputy President Wells.

Decision in relation to lost earnings of the Respondents in the second decision

[104] The Appellant submitted that Deputy President Wells erred in determining the level of income lost by the Respondents in determining the order for the payment of compensation for lost pay to the Respondents. This ground was addressed at ground 21 of the Appellant’s written Outline of Submissions. 99

[105] In written submissions in relation to ss.391(3) and (4) of the Act, 100 the Respondents acknowledged the payment of five weeks notice to each Respondent, such that the “effective date of termination” was 27 November 2013 (Mr Cannan) and 3 December 2013 (Mr Fuller).101 However, the submission did not take this into account either by way of an arrangement for repayment in the event of reinstatement, nor factor the payment of notice into the calculation of lost earnings. No consideration was given to the payment of accrued entitlements in the context of an order for reinstatement and continuity of service.

[106] In its written submissions, the Respondent 102 calculated lost earnings net of notice and accrued entitlements paid and submitted that:

“. . . if any order is made for payment of lost wages it should be fully offset against pro rata entitlements already paid. Any leave paid but not offset should be subject to an election by each of the Applicants that they either repay the leave amount to restore leave entitlements or they accept the leave as taken and any leave accrual commence from the date of termination.” 103

[107] In her decision, Deputy President Wells adopted and applied the calculations advanced by the Respondents. On appeal the Respondents accepted that its calculations were erroneous and that the error made its way into the decision and order of Deputy President Wells in relation to lost earnings.

[108] We do not accept the contention of the Appellant that in accepting the Respondents’ calculations, without affording the Appellant an opportunity to be heard in relation to the conflicting figures advanced, Deputy President Wells denied the Appellant natural justice. The Appellant and the Respondents were each afforded the opportunity to put submissions in relation to ss.391(3) and (4) of the Act. No attempt was made by the Appellant to seek to respond to the Respondents’ submissions.

[109] However, we are satisfied that Deputy President Wells denied the Appellant natural justice in adopting the Respondents’ calculation, in the face of conflicting calculations, without providing reasons for doing so and without addressing the Appellant’s contention, set out above, that entitlements paid should be repaid or taken to have been utilised with further accrual to commence from the date of termination.

[110] Further, we think the failure of Deputy President Wells to offset notice against lost earnings and to deal with the payment of accrued entitlements in the context of her decision and order to reinstate and maintain continuity of service constituted significant error.

[111] For that reason, we grant permission to appeal in respect of the second decision of Deputy President Wells, uphold the appeal, quash that part of the decision (in [2014] FWC 7014) relating to clause 3 of the order and quash clause 3 of the order (of 7 October 2014) 104 and remit the question of the terms of an order for payment of compensation for lost pay, or likely to have been lost by the Respondents because of their dismissal back to Deputy President Wells for determination.

CONCLUSION

[112] In relation to each appeal:

● We refuse permission to appeal in respect of the decision on transcript of Deputy President Wells in relation to the Appellant’s bias application 105 and the first decision of Deputy President Wells106 in which she found that the terminations were harsh and that reinstatement was appropriate; and

● We grant permission to appeal in respect of the second decision of Deputy President Wells, 107 uphold the appeal, quash the decision and clause 3 of the order of 7 October 2014108 and remit the question of the terms of an order for payment of compensation for lost pay, or likely to have been lost by the Respondents because of their dismissal, back to Deputy President Wells for determination.

SENIOR DEPUTY PRESIDENT

Appearances:

S Zeitz for the Appellant.

R Reitano of Counsel for the Respondents.

Hearing details:

2015.

Melbourne:

January 13.

 1   [2014] FWC 5072.

 2   [2014] FWC 7014.

 3   In U 2013/15506.

 4   In U 2013/15509.

 5   [2014] FWC 5072, at para 268.

 6   For example, Mr Simmonds’ finding with respect to Mr McCullum.

 7   [2014] FWC 5072, at para 228.

 8   [2014] FWC 5072, at para 229.

 9   [2014] FWC 5072, at para 230.

 10   [2014] FWC 5072, at para 231.

 11   [2014] FWC 5072, at para 232.

 12   [2014] FWC 5072, at para 233.

 13   [2014] FWC 5072, at para 234.

 14   [2014] FWC 5072, at para 235.

 15   [2014] FWC 5072, at para 236.

 16   [2014] FWC 5072, at para 237.

 17   [2014] FWC 5072, at para 238.

 18   [2014] FWC 5072, at para 239.

 19   [2014] FWC 5072, at para 240.

 20   [2014] FWC 5072, at para 242.

 21   [2014] FWC 5072, at para 241.

 22   [2014] FWC 5072, at para 243.

 23   [2014] FWC 5072, at para 245.

 24   [2014] FWC 5072, at para 245.

 25   [2014] FWC 5072, at para 248.

 26   [2014] FWC 5072, at para 249.

 27   [2014] FWC 5072, at paras 266–267.

 28   [2014] FWC 5072, at paras 252–253.

 29   [2014] FWC 5072, at para 254.

 30   [2014] FWC 5072, at paras 255–263.

 31   [2014] FWC 5072, at paras 264–265.

 32   [2014] FWC 5072, at para 266.

 33   [2014] FWC 5072, at para 267.

 34   [2014] FWC 5072, at para 268.

 35   [2014] FWC 5072, at paras 268–275.

 36   [2014] FWC 5072, at para 279.

 37   [2014] FWC 5072, at para 276.

 38   [2014] FWC 5072, at para 276.

 39   [2014] FWC 5072, at para 276.

 40   [2014] FWC 5072, at para 277.

 41   [2014] FWC 5072, at para 279.

 42   [2014] FWC 7014, at para 12.

 43   [2014] FWC 5072, at para 232.

 44   [2014] FWC 5072, at para 235, although in [2014] FWC 5072, at para 11, Deputy President Wells erroneously cites para 234, in which she found an allegation against Mr Cannan was not made out. Read in context, it is clearly a reference to an adverse finding against Mr Cannan in respect of conduct dealt with in para 234.

 45   [2014] FWC 5072, at paras 237–238.

 46   [2014] FWC 5072, at para 282.

 47   Appeal Book at pp. 170–171; paras 70–72.

 48   Exhibit A1.

 49   Appeal Book at p. 162; para 17.

 50   Appeal Book at p. 162; para 18.

 51   Appeal Book at p. 163; para 28.

 52   (1983) 151 CLR 288.

 53   (1991) 100 ALR 634.

 54   Appeal Book at p. 164; para 37.

 55   Appeal Book at pp. 169–170; para 70–72.

 56   (1991) 100 ALR 634 at para 18.

 57   (1991) 100 ALR 634 at para 19.

 58   Exhibit A1.

 59   (2012) HCA 32. The Appellant also cited Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) HCA 41 at paras 19–20, 46 and 91–93.

 60   [2014] FWC 5072 at paras 230–232.

 61   King v Freshmore (Vic) Pty Ltd, Print S4213 at para 24.

 62   [2014] FWC 5072, at para 238.

 63   Exhibit A1 at para 5.2.

 64   Exhibit A1 at para 5.

 65   [2014] FWC 5072, at para 232.

 66   [2014] FWC 5072, at para 238.

 67   [2014] FWC 5072, at para 263.

 68   [2014] FWC5072, at paras 255–263.

 69   [2013] FWCFB 6191, at para 42.

 70   [2001] VSC 150.

 71   Exhibit A1 at paras 7.1–7.10.

 72   See for example, the evidence summarised in [2014] FWC 5072, at paras 96–97, 99–104, 128 and 126–141.

 73   Exhibit A1 at para 8.

 74   [2014] FWC 5072, at para 167.

 75   [2014] FWC 5072, at paras 178 and 218.

 76   [2014] FWC 5072, at paras 83 and 230 (in relation to Mr McCullum) and 56, 70, 71, 93, 132, 174, 176, 232 and 236.

 77   Exhibit A1 at para 9.

 78   [2014] FWC 5072, at paras 240–241.

 79   [2014] FWC 5072, at para 243.

 80   Appeal Book at pp. 473 and 534.

 81   [2014] FWC 5072, at paras 245–248.

 82   [2014] FWC 5072, at para 277.

 83   [2014] FWC 5072, at para 268.

 84   [2014] FWC 5072, at para 263.

 85   Exhibit A1 at para 6.4.2.

 86   [2014] FWC 5072, at para 239.

 87   Potter v WorkCover Corporation (2004) 133 IR 458, at 473 , at para 55.

 88   Briginshaw v Briginshaw (1938) 60 CLR 336.

 89   Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 291 per Kirby J.

 90   Exhibit A1 at paras 14.1–14.7.

 91   [2014] FWC 5072, at para 277.

 92   [2014] FWC 5072, at para 277.

 93   [2014] FWC 5072, at para 248.

 94   [2014] FWC 5072, at para 266.

 95   [2014] FWC 5072, at para 266.

 96   [2012] FWA 8414.

 97   [2014] FWC 5072, at para 278.

 98   [2014] FWC 5072, at para 268.

 99   Exhibit A1.

 100   Appeal Book at pp. 144–150.

 101   Appeal Book at p. 148.

 102   Appeal Book at pp. 152–158.

 103   Appeal Book at p. 154.

 104   PR556256.

 105   Appeal Book at pp. 169–170; paras 70–72.

 106   [204] FWC 5072.

 107   [2014] FWC 7014.

 108   PR556256.

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