Fair Work Act 2009
s.604 - Appeal of decisions

Permission to appeal against decision [2015] FWC 3830 of Commissioner Riordan at Sydney on 17 June 2015 in matter number U2015/3547.

Introduction

[1] Toll Holdings Limited trading as Toll Transport and Toll Transport Pty Ltd trading as Toll Priority (collectively “Toll”) has appealed against a decision of Commissioner Riordan issued ex tempore on 3 June 2015 and published in a revised form on 17 June 2015 1 (Decision). In the Decision the Commissioner ordered, among other things, the reinstatement of Mr Joseph Johnpulle to his employment with Toll. Mr Johnpulle had been dismissed by Toll for serious misconduct on 9 February 2015.

[2] The matter was listed before us for hearing on 25 August 2015 on the question of whether permission to appeal should be granted. After hearing the parties’ submissions, we issued an ex tempore decision that day in which we granted permission to appeal. In that decision we indicated that we were satisfied that it was in the public interest to grant permission to appeal. The hearing on the merits of the appeal occurred on 16 November 2015.

Factual background

[3] Mr Johnpulle’s dismissal arose out of an exchange which occurred between him and a fellow Toll employee, Mr Younas Karzi, on 7 January 2015. Mr Karzi alleged that Mr Johnpulle had said to him words to the effect of “Does Islam say to kill?”, “Younas, are you from the Taliban?”, “I enjoy seeing people having their heads cut off, do you enjoy it too?” and (after Mr Karzi remonstrated with him about these topics of conversation) “No, I am just asking, because people think everyone from Afghanistan is a Talib”. Mr Johnpulle’s version of events was radically different. He said that Mr Karzi had a history of expressing his personal and religious beliefs at work, and in the course of a conversation between them on 7 January 2015 had asserted that the American Army was killing innocent people in Arab countries and had actually perpetrated the much publicised ISIS beheadings, and said words to the effect of:

“See what’s happening in my country, in Afghanistan. The Americans have gone in there was some stupid Afghanis have joined the Americans and they are raping the mothers, daughters, and sisters of Afghanistan ... Joe, if someone raped your mother, or sister, or daughter, what would you do? You would have to defend her, right?”

[4] After Mr Karzi complained to the management of Toll about the incident, an investigation occurred. As often happens, this investigation went beyond the complaint which initiated it and examined other matters, namely earlier incidents between Mr Johnpulle and Mr Karzi. Ultimately Mr Johnpulle was required to respond to four allegations in total, the first being that concerning the incident on 7 January 2015. The second was that on 24 or 25 September 2014, he had said to Mr Karzi words to the effect of “Younas, what the Taliban did in America was very good. I enjoyed when the building was coming down. Did you like it or not?” The third was that in early November 2014, Mr Johnpulle had said to Mr Karzi words to the effect of: “Younas, it’s good what the Taliban did to America. Look what they are doing to the Afghan people.” The fourth was that on about 19 or 20 November 2014, Mr Johnpulle had said to Mr Karzi words to the effect of: “Oh Younas, last night I watched a video. The Taliban was killing someone.” It was further alleged that the second and third of these incidents had been the subject of earlier complaints by Mr Karzi to his Team Leader, Mr Mostafa Fath, that after the second incident Mr Fath had told Mr Johnpulle to cease conversing with Mr Karzi about such matters and that Mr Johnpulle had agreed to do so.

[5] Mr Johnpulle denied all these allegations, including that Mr Fath had spoken to him as alleged. However Toll’s management found that all the allegations were substantiated. In a letter from Mr Cameron Grant, the General Manager International Operations and Development of Toll Priority, to Mr Johnpulle dated 9 February 2015, the reasons for Toll’s conclusion that all four allegations were substantiated were set out in detail. The letter stated that Mr Johnpulle’s “inappropriate and offensive comments to Younas Karzi indicate a pattern of unacceptable behaviour, particularly when you were asked by Younas and team leader Mostafa Fath to cease and particularly because you indicated you would”. The letter concluded by informing Mr Johnpulle that he was dismissed with immediate effect, and would be paid one month’s wages in lieu of notice and any accrued entitlements.

The hearing and the Decision

[6] The hearing before the Commissioner ran for three days and involved a large number of witnesses who gave conflicting evidence about the conduct of Mr Johnpulle and Mr Karzi. It is sufficient to say that while a number of witnesses gave evidence which supported Toll’s conclusion concerning the allegations against Mr Johnpulle, other witnesses gave evidence supportive of Mr Johnpulle’s assertion that it was Mr Karzi who had a history of making inflammatory religious and political remarks in the workplace.

[7] In the Decision, the Commissioner stated the following finding and conclusion relevant to the requirement in s.387(a) of the Fair Work Act 2009 (FW Act) to take into account whether there was a valid reason for the dismissal related to the dismissed person’s capacity or conduct:

“[16] I find that Mr Johnpulle made comments to Mr Karzi on 7 January which caused him distress and anxiety. I have no reason not to believe the evidence of Mr Karzi in relation to the comments that he attributes to Mr Johnpulle on that day. As such, I find that there was a valid reason for the termination of Mr Johnpulle (s.387(a)).”

[8] The Commissioner went on to deal with the other matters which s.387 requires to be taken into account. In relation to s.387(h), which requires the Commission to take into account “any other matters that the FWC considers relevant”, the Commissioner considered the earlier three allegations made against Mr Johnpulle in the following way:

“[21] In final submissions, Ms Alam took me to the four allegations that were contained in the show cause letter of January 16, 2015, and the termination letter of 9 February 2015 which was signed by Mr Robinson on behalf of Mr Grant. The relevance of allegation 2, 3 and 4 are important considerations in relation to determining whether or not the dismissal was harsh, unjust, or unreasonable. It is fair to say that allegations 2, 3 and 4 contained comments that are nowhere near the severity or inappropriateness of the alleged comments of January 7 2015. I also note that, these three issues, were all resolved by way of a shop floor resolution, for want of a better term, where Mr Johnpulle had acknowledged the comments and indicated that he would not make such comments again.

[22] It is fair to say that I do not accept that Mr Johnpulle has been forthright in relation to the comments that he has allegedly made throughout the last 18 months of his employment. But in saying that, that does not necessarily mean that the comments that have been made necessarily lead to a determination that the dismissal was not harsh, unjust, or unreasonable.
...
[25] I find the practice of going back to revisit settled disputes, issues and allegations to be inappropriate and unfair. It fails the fair go test for an employee to be subjected to a form of double jeopardy in relation to conduct which has been dealt with previously by management. It is not fair or consistent for Toll to be able to ignore or claim that Mr Karzi’s involvement in a matter in 2013 is settled and concluded, yet not provide the same courtesy to Mr Johnpulle. I have taken this into account.

...

[28] Mr Robinson indicated, in his evidence, that he had the capacity to sign off on a first and final warning. He also agreed that it would be appropriate for an employee to be given a formal warning in relation to misconduct. Mr Johnpulle was not given a formal warning. In relation to any form of a disciplinary process, Mr Johnpulle had been spoken to on two occasions by his leading hand Mr Fath, a leading hand who has no direct control, in a disciplinary sense, over Mr Johnpulle. It is a quantum leap from an informal verbal warning for conduct which may be bordering on inappropriate, to being terminated for serious misconduct when the company claims there is an escalation and continuation of inappropriate conduct. I have taken this into account.

[29] Having found that it was inappropriate and unfair for Toll to rely on allegations 2, 3 and 4, as identified in the termination letter, I now seek to turn to the commentary in allegation 1...”

[9] Other relevant matters taken into account by the Commissioner under s.387(h) included that the investigation process was flawed 2, that there was a hostile work environment at the relevant site in which some employees had engaged in intimidation, vilification and harassment3, that Mr Karzi was not fearful or concerned about working alongside Mr Johnpulle after the 7 January 2015 incident4, that Mr Johnpulle had not been given any formal warning about his earlier conduct prior to dismissal5, that Mr Johnpulle had behaved inappropriately by professing to have no recollection of the 7 January 2015 incident when first asked about it6, that it was grossly unfair to Mr Johnpulle that the involvement of the Transport Workers’ Union (TWU) delegates on his behalf was treated by Toll as a “key component” of the decision to dismiss him7, and that Mr Karzi had behaved towards another employee (Mr Tony Monda) in a manner that was equally offensive and inappropriate but this had not been dealt with consistently compared with Mr Johnpulle and had not even been investigated.8 The conclusion reached by the Commissioner concerning the dismissal was as follows:

“[38] For the reasons stated I find that the dismissal of Mr Johnpulle to be harsh, unjust or unfair. Mr Johnpulle was not given a formal warning for his ongoing conduct, nor was he treated in a consistent manner. The decision to terminate was based on a flawed investigation and unreasonable assumption. He was not afforded a fair go.”

[10] In relation to his grant of the primary remedy of reinstatement, the Commissioner simply said: “In accordance with s.381(1)(c) of the Act, I order that Mr Johnpulle’s be reinstated, with no loss of continuity of service” [sic]. 9 The Commissioner also ordered that Mr Johnpulle receive a back payment of seven weeks’ ordinary pay, less the amount paid to him in lieu of notice, and also that he “be issued with a final warning ... to remain on his file for a period of 12 months”.10 The Commissioner also stated:

“[40] Mr Johnpulle’s conduct cannot be condoned in 2015. It is highly offensive and inappropriate to insinuate or assert that one’s religion or culture can be generalised in the manner in which occurred in January. I also believe that Mr Karzi should be issued with a formal warning. Making comments about other religions, or comments in relation to the supremacy of his religion, in the workplace, are also inappropriate and a breach of the policies of Toll. I so order.”

Submissions

[11] Toll submitted that the Decision was subject to appealable error in that the Commissioner:

(1) erred in finding that it was inappropriate and unfair for Toll to have regard to the second, third and fourth allegations in determining to dismiss Mr Johnpulle, given that the Commissioner found the conduct alleged against him had occurred, and was of a similar type to that engaged in on 7 January 2015;

(2) erred in finding that there had been inconsistent treatment in respect of Mr Karzi’s conduct towards Mr Monda, because Mr Monda’s allegations against Mr Karzi had been the subject of an independent investigation commissioned by Toll which had concluded that Mr Karzi did not engage in any misconduct;

(3) had no proper basis to find that Toll’s investigation was flawed;

(4) erred in taking into account that Mr Johnpulle had not previously been given a formal warning in circumstances where his conduct on 7 January 2015 had been found, in and of itself, to constitute a valid reason for his dismissal;

(5) erred in treating as a relevant factor that the TWU’s involvement was a “key component” in the decision to dismiss Mr Johnpulle because there was no evidence to support such a conclusion and in any event the Commissioner found that the conduct alleged against Mr Johnpulle on 7 January 2015 had occurred and that it constituted a valid reason for dismissal;

(6) gave no reasons as to why reinstatement was ordered in circumstances where he had an obligation to provide such reasons; and

(7) made orders that Mr Johnpulle and Mr Karzi be given a final warning and a formal warning respectively which he had no power to make.

[12] Toll further submitted that the appropriate course to be taken was to uphold the appeal, quash the Decision and dismiss Mr Johnpulle’s application for an unfair dismissal remedy.

[13] Mr Johnpulle made the following submissions:

(1) The Commissioner was entitled to take into account that Toll had relied upon the past allegations in deciding to dismiss Mr Johnpulle. It was well-established that an employer which continued to employ an employee with knowledge of the employee’s misconduct cannot later rely on that misconduct to dismiss the employee. Toleration or condonation of misconduct was relevant to whether a dismissal was harsh, unjust or unreasonable.

(2) The Commissioner was entitled, on the evidence before him, to find that Mr Karzi had engaged in conduct of a similar nature to that alleged against Mr Johnpulle. Mr Monda gave evidence that he had complained about Mr Karzi’s conduct in this respect in 2013 and 2014 and that no action had been taken. It was also clear that Mr Monda had raised this conduct during the investigation into Mr Johnpulle’s conduct in January and February 2015. The later independent investigation commissioned by Toll did not constitute a disciplinary investigation by Toll, but arose out of industrial action at the worksite.

(3) The investigation was flawed because of the failure to investigate the allegations made by Mr Monda against Mr Karzi.

(4) The Commissioner was entitled to treat the absence of any formal warning prior to dismissal as a relevant matter. Toll’s own witnesses accepted that a formal warning could have been given to Mr Johnpulle.

(5) The dismissal letter of 9 February 2015 as well as the evidence of Toll’s witness Mr Robinson confirmed that the involvement of the TWU delegates in the matter was regarded as supporting a conclusion that Mr Johnpulle had engaged in the conduct alleged against him.

(6) The Commissioner gave adequate reasons for his decision to order reinstatement. The ex tempore decision (unlike the published Decision) stated: “In relation to remedy, I order, for the reasons stated above, Mr Johnpulle’s reinstatement, with no loss of continuity of service” (underlining added). 11 This demonstrated that the Commissioner relied upon the reasons he gave for finding that the dismissal was unfair to conclude that reinstatement was the appropriate remedy.

(7) There was no objection to the orders for the issue of warnings to be quashed, but the appeal should otherwise be dismissed.

[14] We consider that the Decision was attended by significant appealable error in three respects. The first is that the Commissioner erred in not taking into account as a significant consideration, in relation to both whether the dismissal was unfair and the question of remedy, the three allegations of previous inappropriate conduct towards Mr Karzi on the part of Mr Johnpulle. It is reasonably apparent from paragraphs [21] and [22] of the Decision that the Commissioner accepted that Mr Johnpulle had engaged in the earlier instances of conduct as alleged, had been told not to engage in that conduct again and had agreed he would not do so. It is also clear that on each occasion it was essentially the same conduct as that which the Commissioner found occurred on 7 January 2015 and constituted a valid reason for dismissal. In those circumstances that earlier conduct could not fail to be a relevant matter.

[15] It may be accepted that, under the general law, an employer is disentitled to summarily dismiss an employee for an earlier instance of misconduct on the part of that employee where the employer with full knowledge of the misconduct had decided to retain the employee in employment. 12 It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct by an employee in this way and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee. The Commissioner therefore did not err in declining to find that the instances of misconduct described in the second, third and fourth allegations against Mr Johnpulle constituted valid reasons for his dismissal. It may also be accepted that, for the purpose of s.387(h), the Commissioner was entitled to treat as relevant that Toll had previously elected not to dismiss Mr Johnpulle for his earlier instances of inappropriate behaviour towards Mr Karzi.13 However the fact that Mr Johnpulle had (as the Commissioner found) engaged in the earlier instances of inappropriate behaviour did not thereby become otherwise irrelevant in the consideration of whether his dismissal was harsh, unjust or unreasonable. The Commissioner’s own findings supported the conclusion, stated in Toll’s dismissal letter, that Mr Johnpulle had engaged in a “pattern of unacceptable behaviour” towards Mr Karzi and had persisted in that behaviour notwithstanding that he had been told by the Team Leader to cease such behaviour and he had agreed to do so. That was necessarily a highly material consideration which, while not necessarily being determinative, was adverse to the conclusion that the dismissal was harsh, unjust or unreasonable. It was also relevant to the issue of reinstatement, since it went to the degree of risk that Mr Johnpulle might repeat such behaviour in future if reinstated.

[16] The Commissioner did not have regard to the fact that Mr Johnpulle’s misconduct was not isolated but was part of a “pattern of unacceptable behaviour”. That was an error in the exercise of his discretion of the type described in House v The King 14 as a failure to “take into account some material consideration”.

[17] The second error was that the Commissioner gave no reasons for his determination to order the remedy of reinstatement. The reference to reinstatement being in accordance with s.381(1)(c) provides no illumination as to why this outcome was determined to be appropriate, since that provision merely states that an object of Part 3-2 of the FW Act is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”.

[18] Given that Toll opposed reinstatement, and called evidence and made written and oral submissions in that connection, the Commissioner was obliged to give reasons for his decision to order the remedy of reinstatement. 15 The obligation to give reasons was described by the Full Bench in Barach v University of New South Wales16 in the following terms (footnotes omitted):

“The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”

[19] As earlier stated, Mr Johnpulle submitted that the Commissioner did give reasons for his decision to reinstate, and pointed to the ex tempore version of the decision in that connection. We cannot accept that submission. It is well established that, in the published version of a transcribed ex tempore judgement, it is permissible for a judge or tribunal member to revise his or her reasons for stylistic or editorial reasons or to correct slips and errors provided that the substance of the reasons is not thereby altered. 17 Neither party suggested that the Commissioner transgressed this rule in the published Decision in a way which required any amendments to the ex tempore version to be disregarded. In those circumstances we do not consider that it is permissible to look beyond the perfected reasons given in the published Decision in search for specific reasons for the decision to reinstate. In any event, we do consider that the reference in the ex tempore decision to “the reasons stated above” satisfies the obligation to give reasons in respect of the decision to reinstate. It leaves unstated which of the earlier reasons are referred to and how those reasons relate to the issue of reinstatement.

[20] The failure to discharge the obligation to give reasons was a significant error in this case. The Commissioner had found that Mr Johnpulle’s conduct towards Mr Karzi on 7 January 2015 had constituted a valid reason for his dismissal, and had apparently also found that there were previous instances of the same type of behaviour. Mr Johnpulle denied engaging in the behaviour alleged against him, and for that reason did not give any expression of contrition for his conduct. In those circumstances, it was necessary to consider in relation to the issue of reinstatement whether there was a risk of such conduct being repeated in future if Mr Johnpulle returned to the workplace. The absence of any reasons makes it impossible to determine whether this material consideration was taken into account.

[21] The third error was that the Commissioner acted beyond power in ordering that written warnings be issued to Mr Johnpulle and Mr Karzi. The Commissioner did not identify the source of power to make such orders. It may not be inappropriate in certain circumstances for a member of the Commission to express an obiter view in an unfair dismissal decision that a person who is to be reinstated should be issued with a warning, but it is quite a different thing to purport to order this. A reinstatement order made under s.391(1) may contain ancillary provisions that are necessary to make it effective, but there is no indication in the Decision that the purported order for Mr Johnpulle to be given a final written warning was issued on this basis. There was no basis for Mr Karzi to be the subject of any substantive order in proceedings to which he was not a party, and the purported order directed to him necessarily involved a denial of procedural fairness. The Decision was therefore attended by jurisdictional error.

[22] These errors are sufficiently significant to require the Decision to be quashed. Toll submitted, as earlier stated, that we should re-hear Mr Johnpulle’s unfair dismissal remedy application ourselves (and dismiss it). We have decided not to take that course. This case was one of significant factual complexity, and it is not clear to us that the findings of fact in the Decision fully engaged with that complexity. We consider that the preferable course is for a single member of this Full Bench to fully re-determine Mr Johnpulle’s application. That will necessarily involve that member making his or her own findings of fact unencumbered by those contained in the Decision.

Orders

[23] We confirm the order previously made granting permission to appeal. We further order as follows:

(1) The appeal is upheld.

(2) The Decision is quashed.

(3) Mr Johnpulle’s unfair dismissal remedy application (U2015/3547) is remitted to Commissioner Bissett for re-determination on the basis of the evidence already admitted and such further evidence as the Commissioner may decide to admit.

VICE PRESIDENT

Appearances:

J. Darams of counsel for Toll Holdings Limited t/a Toll Transport and Toll Transport Pty Ltd t/a Toll Priority.

M. Gibian of counsel for J. Johnpulle.

Hearing details:

2015.

Sydney:

16 November.

 1   [2015] FWC 3830

 2   Decision at [19]

 3   Decision at [24]

 4   Decision at [26]-[27]

 5   Decision at [28]

 6   Decision at [29]-[30]

 7   Decision at [33]-[34]

 8   Decision at [36]

 9   Decision at [39]

 10   Ibid

 11   Transcript 3 June 2015, PN3533

 12   Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [352]; Connor v Grundy Television Pty Ltd [2005] VSC 466 at [150]; Howard v Pilkington (Australia) Ltd [2008] VSC 491 at [49].

 13   See B, C and D v Australian Postal Corporation [2013] FWCFB 6191, (2013) 238 IR 1 at [42]; Nyrstar Hobart Pty Ltd v Cannan and Fuller [2015] FWCFB 888 at [55]

 14   (1936) 55 CLR 499 at 505

 15   Edwards v Giudice (1999) 169 ALR 89 at [10]-[11]

 16   [2010] FWAFB 3307 at [16], (2010) 194 IR 259

 17   Todorovic v Moussa (2001) 53 NSWLR 463 at [41]-[47]; Talbot-Price v Jacobs [2008] NSWCA 189 at [11]- [12]; Spencer v Bamber [2012] NSWCA 274 at [137]-[145].

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