DECISION

Fair Work Act 2009
s.604—Appeal of decision

Wally Moszko
v
Simplot Australia Pty Ltd
(C2021/6525)

Appeal against decision [2021] FWC 2404 of Commissioner Harper-Greenwell at Melbourne on 4 September 2021 in matter number U2020/15864 – appeal from decision not to order reinstatement in unfair dismissal proceedings – permission to appeal granted – appeal upheld – decision on remedy quashed – rehearing by Full Bench – reinstatement ordered.

Introduction

[1] Mr Wally Moszko was employed as a shift feeder by Simplot Australia Pty Ltd (Simplot) at its potato processing plant in Ulverstone, Tasmania. He was also an AMWU delegate and a work, health and safety representative. Having worked for Simplot for about 23.5 years, Mr Moszko was dismissed on 20 November 2020 in connection with five allegations made against him in respect of his conduct on 20 and 21 October 2020. Commissioner Harper-Greenwell found that none of the five allegations were substantiated and concluded that Mr Moszko’s dismissal was harsh, unjust and unreasonable. 1 The Commissioner went on to find that reinstatement was inappropriate and ordered Simplot to pay compensation to Mr Moszko in the sum of $9,199.01 plus superannuation. Mr Moszko appeals against the decision not to order that he be reinstated by Simplot. No cross-appeal or notice of contention has been filed by Simplot.

[2] The parties filed detailed written submissions, which we have taken into account, and consented to the appeal being determined on the ‘papers’.

The nature of unfair dismissal appeals

[3] An appeal under section 604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing. 2 An appeal may only be made with the permission of the Commission.

[4] This appeal is one to which section 400 of the Act also applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[5] The test under section 400 has been characterised as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin5 a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”

[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6

[7] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 7 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Commissioner’s Decision

[8] The Commissioner received evidence in relation to each of the following five allegations against Mr Moszko: 8

1. At approximately 8:00am on 21 October 2020, Mr Moszko called through to the Control Room and reported that he had completed a bunker drain on Line 1 when, in fact, he had not completed a bunker drain at all.

2. At approximately 9:30am on 21 October 2020, Mr Mark Bryant also called through to the Control Room to report a bunker drain on Line 1. Again, no bunker drain had been completed, but Mr Moszko was complicit in the falsification of the Shift Feeder Log Sheet in indicating that the bunker drain for Line 1 had been completed.

3. During the shift on 21 October 2020, Mr Moszko’s Team Leader, Ms Linda Pilgrim, asked Mr Moszko why he and Mr Bryant had both called through to the Control Room to report a bunker drain on Line 1. Mr Moszko explained that Mr Bryant did not know that he had already done the bunker drain, so they both did it. It is alleged that this was not a truthful answer.

4. On 20 October 2020, Mr Moszko did not complete a bunker drain on Line 1 at any time during the shift.

5. On 20 October 2020, Mr Moszko falsified the Shift Feeder Log Sheet, indicating that the bunker drain for Line 1 had been completed.

[9] The Commissioner made the following observations about the nature of the work undertaken by Mr Moszko before making findings in relation to each of the allegations:

“[92] It is well accepted that it is necessary to undertake a bunker drain and that is a requirement for the shift feeders to complete a bunker drain on each 12 hour shift. It is not the case that each shift feeder has to perform a bunker drain on each shift that they work. When a bunker drain is performed during a shift generally depends on what is occurring during the shift. The shift feeders have to manage the cleaning of the bunkers and it seems in the absence of any specific direction from the Control Room or the Team Leader they are to complete a bunker drain once per shift using their discretion.

[93] The evidence in these proceedings is that the main purpose of a bunker drain was to refresh the RM Hoppers to remove any product that’s stuck to the sides and to check that there is nothing wrong with the product in the RM Hoppers. How a bunker clean is performed will vary depending on the circumstances at the time. Some of the factors that will influence how a bunker clean is performed include what kind of product is going through the Hoppers and how the line is running. The bunkers can be cleaned by lowering the levels of the potatoes in the Hoppers and then hosing them down. If there is a change in product a flume flush is performed by allowing the water in the flume to flow through until there is no more product left in the flume. Although the reasons for why a bunker clean is performed might vary, it is essentially performed in a manner that enables the shift feeder to be able to see if there is any product stuck to the sides or if there is any bad or old product in the bottom. A bunker clean might be performed when there is an issue with the product being fed through or if there is a complete change in product.

[94] The first step in a bunker clean is to run the potatoes off the conveyor belts and ensure they are all in the flumes. This can also be done by stopping the metering wheel and holding the product in the metering wheel. A flume flush is then performed to help stop spoilage. The RM Hoppers don’t need to be fully drained every clean. The Hoppers have to be drained down to a level to enable the feeder to visually see that there isn’t any spoil or bad product in them. Once the Hoppers have been lowered to a level where the feeders can see that there’s no bad or old product in the Hoppers then they can bring in new product over the top.

[95] A bunker drain has a number of variables and it is primarily at the shift feeder’s discretion as to how and when they need to occur. It appears to be that for those reasons employees are trained in how to do bunker drains through on the job learning. In addition to on the job learning there are factory memo’s that get distributed that set out the details of any changes to the process. Employees are required to sign off on those memos once they have read them.

[96] As previously stated, there is no set time at which the bunker clean occurs. The time that the bunkers are drained is recorded on the Shift Feeder Log Sheet. The purpose of the Shift Feeder Log Sheet is so that there is a record of when the last clean occurred should there be an issue with the product.”

[10] The Commissioner then made findings in relation to each of the five allegations against Mr Moszko:

Allegation 1

“[97] It was alleged that Mr Moszko called through to the Control Room and reported that he had completed a bunker drain on Line 1 when in fact he had not. Simplot also submits that regardless of whether he called through he was starting a bunker drain or completing a bunker drain, he simply did not do either and therefore they had a valid reason to dismiss Mr Moszko.

[98] It is not in contention that on 21 October 2020 Mr Moszko and Mr Bryant were changing from shed 15 to shed 2B. Further there is no dispute that Mr Moszko did not complete a bunker drain on Line 1 on that day. Simplot submit that the issue is when someone calls in a bunker drain whether it be at the start or at the completion it is expected to be done. Simplot also submit that there is no evidence that Mr Moszko started a bunker drain because there was no drop in the product level that you would expect if one has been started.

[99] Mr Moszko took his morning break whilst he waited for the remaining potatoes to run from the conveyors into the flumes before he could clean the RM Hoppers. Mr Moszko’s evidence that he called the control room and stated he had finished in shed 15 and was going to start a bunker drain and run the potatoes off the conveyors remained uncontested. Mr Moszko accepted that if he had started a bunker drain then it would be usual for a drop in the product level to have been notable however none was. Mr Moszko’s unchallenged evidence is that this may have been because there was a large amount of product on the conveyors at the time he took his break, and that could have explained why there wasn’t a large drop in the product levels. Mr Moszko’s evidence is that regardless he had intended on completing a bunker drain when he returned from his break however he was informed by Mr Bryant that he himself had in fact completed a bunker drain. Ms Moszko had no reason not to believe his colleague and therefore he did not proceed to take any further action.

[100] Simplot rely on their submission that should a bunker drain be called in then it is essential that it was done. To the best of Mr Moszko’s knowledge he held the belief rightly or wrongly that a bunker drain had been completed by his colleague Mr Bryant and he had no reason to believe otherwise. It was conceded by Mr Griffith in cross-examination that if one line feeder says they have done a bunker drain the other feeders are entitled to rely on that advice. If Mr Bryant lied about his conduct, which on the evidence before me it appears that he did, then Mr Moszko was unaware and there is no evidence before me to suggest otherwise.

[101] The evidence of Ms Temple and Mr Moszko supports a finding that Mr Moszko called the Control Room notifying them that he was commencing a bunker drain, which is common practice. There is no evidence before me that would lead me to a finding that Mr Moszko called the Control Room stating that he had completed a bunker drain. Calling in a bunker drain is usually done at the start of the process. The commencement of the process can be as early as running product off the conveyors, Mr Moszko’s evidence on this point went unchallenged. Further, Mr Moszko’s evidence as to why there may not have been an observed drop in the product level remained undisturbed. There is no evidence to suggest Mr Moszko had not intended to complete a bunker drain after calling it in, he simply didn’t need to because he was led to believe one had already been completed. Therefore, it stands to reason that there is no basis for a finding that Mr Moszko engaged in the conduct alleged.”

Allegation 2

“[102] Simplot relies on its submission that shift feeders work as a team and that both Mr Moszko and Mr Bryant had the responsibility to ensure not only that a bunker drain was done but that the Shift Feeder Log Sheet is completed properly.

[103] The evidence before me is that Mr Bryant completed the Shift Feeder Log Sheet on 21 October 2020. At that time, Mr Moszko held the belief Mr Bryant had completed a bunker drain at the time he recorded on the Shift Feeder Log Sheet. Even if Mr Bryant had falsified the Shift Feeder Log Sheet there is no evidence before me that would lead me to a finding that Mr Moszko was complicit in falsifying the log sheet.”

Allegation 3

“[104] The third allegation arises from Simplot’s findings that no bunker drain had been performed. It was alleged that Mr Moszko told Ms Pilgrim that he had performed a bunker drain.

[105] Ms Pilgrim spoke to Ms Temple who informed her that both Mr Moszko and Mr Bryant had called in a bunker drain yet no bunker drain had been performed. Ms Pilgrim later approached Mr Moszko and Mr Bryant. There are different accounts of what was said during that conversation. Ms Pilgrim’s evidence is that when she inquired with Mr Moszko as to “why they had both called through a bunker drain at different times for the same line” in response Mr Moszko stated that Mr Bryant was on his break when Mr Moszko performed a bunker drain and didn’t know he had done a bunker drain. Mr Moszko denies saying words to that affect.

[106] On the same day she had the conversation with Mr Moszko and Mr Bryant that led to the allegation, Ms Pilgrim sent an email to Mr Spinks providing details of the conversation. Ms Pilgrim’s version of events is as set out in her witness statement. During cross-examination Ms Pilgrim gave evidence that she had asked why Mr Moszko and Mr Bryant had both called through that they had done a bunker drain. Ms Pilgrim says that Mr Moszko responded stating that Mr Bryant was on a break when “he called it through”. Ms Pilgrim did not state that Mr Moszko claimed to have completed a bunker drain.

[107] Mr Moszko does not have an unblemished record at work and he has been actively involved in the work of a delegate. It is highly unlikely in my view that Mr Moszko would have launched into an explanation that would involve confessing to doing a bunker drain, especially when presented with the question in the nature that it was presented. My observation of Mr Moszko during the proceedings is that he would more likely have taken a cautious approach to how he responded. Further it does not make sense given the nature of the question as it was posed by Ms Pilgrim that Mr Moszko would respond stating he had done a bunker drain. I am persuaded by the evidence of Mr Moszko that it is more likely in the circumstances that he responded stating that he had called it in and not that he had completed or done a bunker drain. Mr Moszko does not claim to have completed a bunker drain on 21 October 2020, his response was consistent with him calling in a bunker drain which the evidence supports.

[108] I am satisfied that Mr Moszko did not inform Ms Pilgrim that he had completed a bunker drain, he had informed her that he had called one in. Consequently, I am not satisfied that Simplot has established that the alleged conduct occurred.”

Allegation 4

“[109] It is my view that it was convenient that Mr Moszko did not recall the events of 20 October 2020. His inability to recall what had occurred was at odds with his ability to recall the specific events of the following day. Further I do not accept Mr Moszko’s evidence that there is a lack of understanding as to how bunker drains are performed. One cannot misconstrue the requirement for a shift feeder to be able to determine what process should be applied based on their ability to assess the variabilities that may present themselves with a lack of understanding as to the processes. Mr Moszko’s own evidence is that he is a highly experienced Shift feeder and he clearly demonstrated with his experience and training he was able to assess when to perform a bunker drain and what process he should apply in doing so.

[110] However, the evidence currently before me is that Mr Griffiths reviewed the CCTV footage recorded on 20 October 2020, specifically the times that correlated with those recorded on the Shift Feeder Log Sheet and although there was some footage of Mr Bryant performing certain activities, there was no footage of Mr Moszko performing a bunker drain. Neither does Mr Moszko claim to have completed a bunker drain on that day.

[111] The Shift Feeder Log Sheet has been completed however Mr Lyon could not recall who he spoke to when he filled it out. There is no conclusive evidence before me to suggest Mr Moszko provided Mr Lyon with the information that was subsequently recorded in the Shift Feeders Log Sheet.

[112] Even if I was to accept Mr Griffiths’ evidence that the CCTV footage shows that there was no bunker drain performed on 20 October 2020, that is the extent to which Simplot can advance their argument. There is no evidence before me that can lead me to believe that Mr Moszko has either falsified the log sheet or that he claimed to have performed a bunker drain when he had not.

[113] Prior to Mr Moszko’s dismissal Simplot had an opportunity to properly investigate the events of 20 October 2020. Other than their reliance on CCTV footage that they were unable to produce in any readable format that could be viewed by the Commission or Mr Moszko, Simplot advance no other evidence to support its allegation that Mr Moszko avoided performing his duties on 20 October 2020. Simplot has not met its onus of proving the misconduct and I find this allegation unsubstantiated.”

Allegation 5

“[114] The Shift Feeder Log Sheet shows that Bunker 1 was cleaned at 9:30am, Bunker 2 was cleaned at 9:45am and Bunker 3 was cleaned at 10:00am. Mr Lyon’s evidence is that he filled in the Shift Feeder Log Sheet on 20 October 2020. It was Mr Lyon’s evidence that he spoke to Mr Moszko and Mr Bryant and asked them what time the bunker drain was started and then he recorded what they had told him. I intend no criticism of Mr Lyon however he did not provide any precise information as to who provided him with what information. Mr Lyon openly admitted he was struggling to recall what had occurred as he had unfortunately been quite unwell. Regardless Mr Lyon’s evidence was that he never recorded who actually did the bunker drain nor who the person was that informed him a bunker drain was performed. This is a process Simplot may wish to re-consider moving forward.

[115] Whilst I am inclined to accept Mr Griffiths’ evidence that he reviewed the CCTV footage which showed neither Mr Moszko or Mr Bryant completed a bunker drain at the times recorded on the Shift Feeder Log Sheet, there is no reliable evidence before me that persuades me that it was Mr Moszko who falsified the Log Sheet on that day.”

[11] The Commissioner also made the following general observations about the five allegations levelled against Mr Moszko:

“[116] For the reasons I have set out above there is no basis upon which Simplot could have reasonably concluded that on 21 October 2020 Mr Moszko reported to have completed a bunker drain and yet failed to do so. Mr Moszko did notify he was commencing a bunker drain which is the usual practice for shift feeders, however he did not proceed to take any further action because he relied on the information of Mr Bryant being that he had completed a bunker drain whilst Mr Moszko was on his break. Further, there is no evidence to support a finding that Mr Moszko falsified the Shift Feeder Log Sheet on that day. He again relied on the information provided by Mr Bryant which he was entitled to do so. I am also not satisfied that Mr Moszko told Ms Pilgrim that he had completed a bunker drain. On the evidence before me it is reasonable to conclude in response to the question posed by Ms Pilgrim that Mr Moszko informed her he had started a bunker drain. Further, Mr Moszko provided an explanation as to why prior to the time Mr Bryant called in his bunker drain the product levels hadn’t lowered. That evidence went unchallenged. I am therefore satisfied that allegations one through to three have not been substantiated and therefore Simplot cannot rely on them as a valid reason for Mr Moszko’s dismissal.

[117] Simplot submit that Mr Moszko did not perform a bunker drain on 20 October 2020 thus failing to perform his duties. Simplot merely sought to establish that a bunker drain was not performed on 20 October 2020. However, during proceedings it was established that there are a number of reasons why a bunker drain is performed and that a bunker drain is to be performed once per every 12 hour shift and that does not mean that every individual feeder has to performed a bunker drain. Merely stating that a bunker drain was not performed on 20 October 2020 when responsibility to do so does not rest solely with Mr Moszko is insufficient reasoning and not a valid reason for dismissing an employee. Further, there is no evidentiary basis upon which Simplot relies that would lead me to conclude that Mr Moszko had falsified the shift feeder log sheet on 20 October 2020. I am therefore satisfied that allegations four and five have not been substantiated and therefore Simplot cannot rely on them as a valid reason for Mr Moszko’s dismissal.”

[12] The Commissioner went on to find that Mr Moszko was (a) notified of the reason for his dismissal, (b) given a chance to respond to it prior to his dismissal, and (c) permitted to have a support person present during discussions relating to his dismissal. As to other relevant matters under s 387(h) of the Act, the Commissioner concluded as follows:

“[132] I agree that Simplot is entitled to take disciplinary action against an employee. It is however incumbent on them to properly substantiate their findings before dismissing an employee. Whilst this is not Mr Bryant’s unfair dismissal application, on the evidence before me it is Mr Bryant who claimed to have completed a bunker drain when no drain was completed and it was Mr Bryant who completed the Shift Feeder Log Sheet providing details that a bunker drain had been performed although it had not.

[133] Further there is no evidence to support a finding that Mr Moszko lied about performing a bunker drain or that he falsely completed the Shift Feeder Log Sheet.”

[13] On the question of reinstatement, being the remedy sought by Mr Moszko, the Commissioner summarised the parties’ submissions on the topic and then reasoned as follows:

“[140] Whilst I found allegation four was unsubstantiated and that Simplot had not met its onus to prove the allegation it is clear the circumstances as to why the bunker drain did not occur that day remain unresolved. This is likely to have an ongoing affect on the relationship between Mr Moszko and Simplot in that he is likely to have his work practices closely scrutinised because Simplot no longer trust Mr Moszko’s ability to work unsupervised.

[141] There is also the issue of further allegations that will be put to Mr Moszko should he be reinstated. Whilst I make no assumptions or pre-empt an outcome from an investigation or any disciplinary proceedings that may occur, it is without doubt that Simplot has lost trust in Mr Moszko and that loss of trust when considered with Mr Moszko’s prior work history will likely affect the prospects of a healthy working relationship being re-established.

[142] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider if an order for compensation is appropriate.”

Summary of Mr Moszko’s submissions

[14] Mr Moszko advances two grounds of appeal. First, it is contended that the Commissioner erred:

(a) in finding that reinstatement was inappropriate, including in that:

(i) there was no evidence before her upon which such finding could be made;

(ii) the matters upon which she did relied did not support such finding,

(b) thus in failing to make an order that Mr Moszko be reinstated.

[15] Secondly, in the alternative, it is contended that the Commissioner’s discretion in respect of remedy miscarried in that the Commissioner determined that reinstatement was inappropriate as:

(a) she took irrelevant matters into account;

(b) she misunderstood the task before her; and

(c) the Decision was otherwise unreasonable.

[16] As to the first ground of appeal, Mr Moszko submits that although remedy is discretionary, the discrete question of whether or not the Commission is satisfied that reinstatement is inappropriate involves an evaluative judgement, in that it is a binary choice. As a result, it is submitted that the “correctness standard” applies on appeal. On the material before the Commissioner, it is submitted that there was no proper basis on which she could have formed the necessary state of satisfaction.

[17] By his second ground of appeal, Mr Moszko contends that in the event that the Full Bench considers that the decision that reinstatement was inappropriate was, as part of a discretionary decision, itself discretionary, the Commissioner engaged in House v The King error by:

(a) mistaking the facts in finding that there had been a sufficient loss of trust and confidence justifying dismissal in circumstances where the conduct said to give rise to that had not been substantiated;

(b) acting on a wrong principle in that the Commissioner considered an unsubstantiated allegation could give rise to a finding of inappropriateness;

(c) being guided by irrelevant facts, namely the existence of new, unsubstantiated (or indeed investigated) allegations (as opposed to actual proven wrongdoing); and

(d) failing to take into account material facts, namely any matters at all advanced by Mr Moszko such as his deep desire to return to work and inability to secure permanent work, as well as the absence of any suggestion that he would react poorly to being “closely supervised”.

[18] Mr Moszko accepts that a loss of trust and confidence, such that the relationship is unviable, can form part of the basis upon which the Commission could properly be satisfied that reinstatement of an applicant would be inappropriate. Any such claimed loss must, however, be “soundly and rationally based”. 9 Mr Moszko submits that the fact that an employer has a view that an employee has engaged in misconduct cannot, when the Commission has found that this was not so, continue to support a proposition that reinstatement is inappropriate.10

[19] Even where a loss of trust and confidence is established, while significant, Mr Moszko submits that it is not the sole criterion; its loss is not necessarily determinative. 11 All dismissals for misconduct necessarily at the very least implicitly involve a loss of trust and confidence to some degree. It is contended that the real question is whether, in all the circumstances, the relationship could be restored following reinstatement.12 This requires, so Mr Moszko submits, consideration of the actual working circumstances; the views of senior management of the corporate entity itself will not be determinative.13

[20] Mr Moszko submits that Simplot led evidence from six witnesses, ranging from senior human resources and production managers to his direct supervisors and peers, yet not one of those witnesses gave evidence that they had lost trust and confidence in him as an employee or a colleague. He contends that Simplot’s submissions concerning their alleged loss of trust and confidence were almost entirely based on the five allegations of misconduct it levelled against him. The additional factor was the new allegations, to which reference is made in paragraph [141] of the Decision.

[21] It is submitted that Simplot said nothing about what its position on remedy would be in circumstances where the Commission found that Mr Moszko did not engage in any of the conduct alleged against him. Mr Moszko submits that it cannot be assumed that Simplot would rigidly adhere to its view in the face of the Commission’s determination. Even if it did, he contends that this could not justify a finding that reinstatement was inappropriate.

[22] The Commissioner did observe that it was likely that Simplot would consider it appropriate to supervise Mr Moszko heavily, and closely scrutinise his work practices, if he returned. Mr Moszko submits that this is not a reason that reinstatement is inappropriate – instead, it illustrates the mechanism by which the relationship can be repaired. It is contended that the Commissioner’s reliance on a likely higher level of scrutiny as evidence of an irreparable breakdown demonstrates the error in approach.

[23] The fourth allegation levelled against Mr Moszko was that on 20 October 2020 he did not complete a bunker drain on Line 1 during the shift. It was in issue whether or not Mr Moszko completed a bunker drain and, in circumstances where doing so was not his sole responsibility or something he would necessarily do on each shift, whether this would constitute misconduct. It is submitted that the Commissioner considered this allegation in the Decision at [109] – [113] and found it to be unsubstantiated, in that she was not satisfied that Simplot had proved either that there was no bunker drain performed on 20 October 2020 or that even if there wasn’t, that this constituted misconduct on Mr Moszko’s part. In light of this finding, it is submitted that the Commissioner’s conclusion (at [140]) that the issue “remains unresolved” is wrong, with the consequence that it cannot underpin a finding that reinstatement would be inappropriate.

[24] As to the further allegations and the contention that reinstatement would “almost certainly lead to a further termination of [his] employment” due to allegations which had surfaced post-termination, no witness gave evidence to this effect. Mr Moszko submits that there was a single paragraph (at [54]) of Sandra Wilson’s witness statement where she describes, at a very high level, two allegations which she had been “informed” of by another person. No supporting evidence is provided, nor is it suggested by Ms Wilson or anyone else that these allegations had been the subject of an investigation, let alone that a final view had been reached. Mr Moszko’s point of view had not been heard.

[25] Mr Moszko submits that it cannot be assumed that the allegations would be substantiated by Simplot, such that he would inevitably be dismissed. It is contended that the mere levelling of allegations – the placing of an employee under an unsubstantiated cloud – is not a sound basis on which to assert or conclude, as the Commissioner did (at [141]), that an employer has probably lost trust and confidence in an employee such that a healthy working relationship could not be re-established.

[26] More significantly, even if it was not so, Mr Moszko submits that the evidence of these allegations was not something that could fairly be given any weight by the Commissioner. Paragraph [54] of Ms Wilson’s witness statement was the subject of objection by Mr Moszko. The Commissioner admitted the statement in full but apparently provisionally on the basis that the objections (particularised in a table) would be dealt with during closing submissions. When Mr Moszko’s representative attempted to cross examine Ms Wilson about this evidence, on the basis that at that stage the evidence might well be admitted, he was forestalled first, by an objection from Simplot’s representative on the basis that the paragraph had been the subject of an objection and secondly, by the Commissioner herself suggesting that in light of the objection the questioning lacked relevance, telling him to move on.

[27] Mr Moszko particularised his objection in his written closing submissions, identifying the paragraph as lacking relevance and also being objectionable on the basis of being hearsay. Simplot did not make any response. The Commissioner did not make any express rulings in her Decision in respect of the objections. In those circumstances, Mr Moszko submits that it can be inferred that the paragraph has been let in, but the reason why is not explained. In circumstances where the evidence is highly prejudicial, it consists of unidentified hearsay, it is otherwise hugely vague, Simplot is represented by experienced and sophisticated industrial representatives who are entirely capable of putting evidence in admissible form if it existed, and Mr Moszko says he was actively hamstrung in his attempts to test the evidence, it would be unfair to give the evidence any weight, and the Commissioner erred in taking it into account at all.

[28] Mr Moszko submits that the matter is suitable for redetermination by the Full Bench. He seeks an order reinstating him to his previous position, preserving his continuity of service and requiring backpay to be made to him.

[29] In summary, Mr Moszko argues that granting permission to appeal would be in the public interest for the following reasons:

(a) The Decision raises a question of general importance and application, being the correct approach to the exercise of the Commission’s powers under s 390 of the Act, and in particular as to whether forming a state of satisfaction as to inappropriateness involves an evaluative or discretionary judgement.

(b) The Decision is, in its approach to assessing whether reinstatement is inappropriate, disharmonious with other decisions of the Commission including Full Bench authority.

(c) An arguable case of appealable error is established, and it is in the public interest that this be the subject of appellate scrutiny.

(d) The Decision is affected by error, and it is in the public interest that this be corrected.

Summary of Simplot’s submissions

[30] Simplot submits that the Commission may find it is inappropriate to reinstate an employee notwithstanding an anterior finding that there is no valid reason for the person’s dismissal. The Commission has previously arrived at such a conclusion in unfair dismissal applications. 14

[31] Simplot contends that the case it advanced against Mr Moszko before the Commissioner was run narrowly and with regard to the specific manner in which the allegations within the termination letter were framed. In all cases other than allegation 4, the misconduct asserted concerned deliberate misrepresentation or falsification of material. Simplot submits that it did not contend below that any of the failures to perform duties in ensuring that the bunker drain was completed amounted to a performance issue which in the context of the previous performance related issues would establish a valid reason for termination. Simplot did, however, contend below that this was a relevant factor that should make reinstatement inappropriate. The case against reinstatement was not, so Simplot contends, put on the basis solely of “inappropriateness” due to the alleged misconduct and the Commissioner did not consider it on that basis.

[32] Simplot contends that whilst it is not found in the aspect of the Decision directed to reinstatement but rather the assessment of compensation, the Commissioner also arrived at a conclusion as to the likely longevity of Mr Moszko’s employment (which was determined to be likely no more than four months) and that this too can be regarded as a relevant consideration in the determination of the reinstatement remedy.

[33] Given the broad nature of the discretion under s 390(3), Simplot submits that it was appropriate for the Commissioner to have had regard to a whole range of factors in assessing the question of reinstatement, including the impact of additional (yet to be investigated) allegations, and their impact on the trust and confidence between the parties.

[34] Simplot submits that even if it were to be determined that the unsubstantiated allegations were an irrelevant consideration, Mr Moszko would need to demonstrate that absent the irrelevant consideration there was not a sound and rational basis for the determination that reinstatement was inappropriate. 15 Simplot contends that the Commissioner’s conclusions as to Mr Moszko’s candour in relation to the “unresolved” events of 20 October 2020, together with Mr Moszko’s disciplinary history and the accepted importance of judgement and attention in his role as a shift feeder, provided a sufficient basis for the decision made by the Commissioner that reinstatement was inappropriate.

[35] As to Mr Moszko’s contention that the Commissioner failed to take into account relevant personal factors including his stated desire to return to work and his inability to secure permanent work, Simplot submits first, none of the matters that are now put by Mr Moszko as a failure to consider material facts were advanced by him below. Secondly, whilst there is no explicit reference in the reinstatement section of the Decision as to these considerations, the Decision must be read as a whole avoiding the appellate “fine tooth comb”. 16 Simplot submits that the individual circumstances of Mr Moszko were in the mind of the Commissioner when considering remedy. In this regard Simplot points to paragraphs [146] to [159] of the Decision. Thirdly, even if it were to be held that the Commissioner did not consider the matters now advanced by Mr Moszko, this does not lead to a conclusion that a different outcome would have occurred. The views of Mr Moszko are not determinative of whether reinstatement is appropriate.

[36] Simplot contends that Mr Moszko was not identified any matters of public interest inherent in the appeal. It submits that permission to appeal should be refused and in the event that permission to appeal is granted, both grounds of appeal advanced by Mr Moszko ought be rejected.

Applicable appellate standard of review

[37] There is no doubt that s 390(1) of the Act confers on the Commission a broad discretion to order a person’s reinstatement if the person was protected from unfair dismissal at the time of being dismissed and the person was unfairly dismissed. The exercise of discretion under s 390(1) is “subject to subsection (3)”. Section 390(3) provides that the Commission “must not order the payment of compensation” to a person unless the Commission is “satisfied that reinstatement of the person is inappropriate”.

[38] Mr Moszko contends that whether or not the Commission is “satisfied that reinstatement of the person is inappropriate” within the meaning of s 390(3) is an evaluative judgement, with the result that the “correctness standard” applies on appeal, as distinct from a discretionary decision, an appeal from which is governed by the well-known test explained in House v The King. 17

[39] In our opinion, whether or not the Commission reaches the necessary state of satisfaction that “reinstatement of the person is inappropriate” within the meaning of s 390(3) of the Act is a broad discretionary decision, with the consequence that appealable error must be evaluated in accordance with the well-known test in House v The King. Our reasons for reaching this view are set out below. But first we will address the applicable principles.

[40] The distinction between the two types of decisions under consideration was considered by Justice Gageler in Minister for Immigration and Border Protection v SZVFW (SZVFW). 18 His Honour explained that the “discretion standard” is to be applied where the appellate court reviews “evaluative conclusions in respect of which the applicable legal criteria permitted of some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes”.19 The “correctness standard”, unlike the “discretion standard”, requires the appellate court, where applicable, to substitute its own conclusion where it disagrees with that of the primary judge.20 As to when each standard must be applied, Justice Gageler observed as follows: 

“[49] The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.” 21

[41] Put another way, the label “discretionary” was said by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (Coal and Allied) 22 to describe a situation in which "'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made".23

[42] It is necessary to examine the terms of the statute. Where the relevant statute gives a very wide discretion to the decision maker, it may be inferred that significant latitude must be allowed to the decision maker. 24 In Coal and Allied, Gleeson CJ, Gaudron and Hayne JJ focused upon the statutory breadth of the decision making power, saying:25 

"The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment." 

[43] Decisions of the following kinds have been characterised as “discretionary decisions” requiring judicial restraint and the application of the test in House v The King:

•  a decision as to the satisfaction or otherwise of the Australian Industrial Relations Commission that industrial action being pursued was a threat for the purposes of s 170MW(3) of the Workplace Relations Act, and whether the bargaining period should be terminated; 26

•  a decision as to whether the Commission is satisfied that a group of employees was “fairly chosen”; 27

•  a decision as to whether the Commission is satisfied that an enterprise agreement has been genuinely agreed to by the relevant employees; 28

•  an opinion formed by a primary judge, as a precondition to the exercise of discretion to make a maintenance order in testator's family maintenance proceedings, as to whether an applicant for the order had been left with "inadequate" provision for his or her "proper maintenance, education and advancement in life"; 29

•  the assessment of general damages at common law; 30

•  conclusions as to "just and equitable" apportionment of responsibility between tortfeasors under contribution legislation; 31

•  the valuation of property; 32

•  the best interests of the child under child welfare legislation; 33 and

•  review of an order made by a judge in the exercise of a statutory power conferred on the Family Court to "make such order as it thinks fit altering the interests of the parties" in matrimonial property. 34

[44] On the other hand, the following kinds of decisions have been held to require an application of the “correctness standard” on appeal:

•  whether conduct was unconscionable - like a common law duty of care, a statutory prohibition on conduct that is unconscionable posits a standard of conduct which, on proven facts, a person obliged to meet that standard either has met or has not; 35

•  whether a decision of a tribunal was legally unreasonable; 36

•  whether the defendant had driven negligently; 37 and

•  whether, in accordance with a particular statute, “… the Court finds a contract … to have been unjust”. 38

[45] Section 390(3) of the Act requires a member of the Commission hearing an unfair dismissal application to make a decision as to their satisfaction or otherwise that reinstatement of the applicant is “inappropriate”. A statutory provision of this kind which asks whether the Commission is “satisfied” of the relevant matter can accurately be described as conferring a very wide discretion. 39 In addition, s 390(3) does not stipulate or indicate the considerations which must or may be taken into account in reaching, or not, the necessary state of satisfaction. In our opinion, it is apparent from these features of the Act that parliament intended that some latitude be allowed to the member of the Commission hearing an unfair dismissal case at first instance to decide whether or not they are “satisfied” that reinstatement of the applicant is “inappropriate”. The outcome of this question does not demand a unique outcome. Rather, the concept of “satisfaction” as to “appropriateness” of reinstatement, being the applicable legal criterion, contemplates a range of legally permissible outcomes. Further, we consider that the features of s 390(3) of the Act to which we have pointed are similar to (a) s 170MW(3) of the Workplace Relations Act, which involved satisfaction or otherwise of the Australian Industrial Relations Commission that industrial action being pursued was a threat, (b) s 186(2)(a) of the Act, which involves satisfaction or otherwise as to whether the enterprise agreement has been genuinely agreed to by the employees (c) s 237(2)(c) of the Act, which involves satisfaction or otherwise as to whether the group of employees who will be covered by the enterprise agreement was fairly chosen, and (d) s 9(2) of the Family Provision Act 1982 (NSW), which called for the formation of an opinion by a judge as to whether an applicant for a family provision order had been left with "inadequate" provision for his or her "proper maintenance, education and advancement in life". Appeals from decisions concerning the formation of the requisite “satisfaction” or “opinion” under these provisions have been held to involve the exercise of a broad discretion and require application of the well-known test in House v The King to assess appealable error.40

The remedy of reinstatement

[46] In Nguyen v Vietnamese Community in Australia (Nguyen), 41 a Full Bench of the Commission gave detailed consideration to the remedy of reinstatement in unfair dismissal proceedings. The Full Bench there observed (references omitted):

“[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed. The fact that the employer has filled the position previously occupied by the dismissed employee would rarely, of itself, justify a conclusion that reinstatement was not appropriate...

[19] Reinstatement may be inappropriate if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case. 

[20] The most common argument advanced in support of the proposition that reinstatement is inappropriate is the proposition, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

…

[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. 

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. 

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. 

•  The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

[47] There is no challenge in this appeal to these observations, with which we agree.

Consideration of appeal grounds

[48] In light of our conclusion above that the applicable appellate standard in this case is the “discretionary standard” and not the “correctness standard”, we reject ground one of the notice of appeal and will focus on ground two - the alleged discretionary errors.

[49] The Commissioner’s reasoning in relation to her decision that reinstatement was inappropriate is contained in paragraphs [140] to [142] of the Decision. 42 It is apparent from those paragraphs that the Commissioner had regard to the following matters in determining that reinstatement was inappropriate:

•  First, the circumstances as to why the bunker drain did not occur on 20 October 2020 remain unresolved. This is likely to have an ongoing impact on the relationship between Mr Moszko and Simplot in that he is likely to have his work practices closely scrutinised because Simplot no longer trust Mr Moszko’s ability to work unsupervised.

•  Secondly, further allegations will be put to Mr Moszko if he is reinstated. Although the Commissioner says that she made no assumptions as to the outcome that may eventuate from an investigation of these further allegations, she noted that “Simplot has lost trust in Mr Moszko and that loss of trust when considered with Mr Moszko’s prior work history will likely affect the prospects of a healthy working relationship being re-established”. 43

[50] Allegations 4 and 5 relate to the events which transpired at Simplot’s potato factory on 20 October 2020. The Commissioner made the following relevant findings in relation to these allegations:

(a) It is a requirement for the shift feeders to complete a bunker drain on each 12 hour shift, but it is not the case that each shift feeder has to perform a bunker drain on each shift that they work. The shift feeders have to manage the cleaning of the bunkers and in the absence of any specific direction from the Control Room or the Team Leader, the shift feeders are to complete a bunker drain once per shift using their discretion. 44

(b) Mr Moszko and Mr Bryant were the two shift feeders working on shift in the potato factory on 20 October 2020. 45

(c) Mr Lyon completed the Shift Feeder Log Sheet on 20 October 2020. It stated that bunker 1 was cleaned at 9:30am, bunker 2 was cleaned at 9:45am, and bunker 3 was cleaned at 10am. 46

(d) Mr Griffiths reviewed the CCTV footage in relation to the times stated in the Shift Feeder Log Sheet as to when the bunkers had been cleaned. The CCTV footage showed Mr Bryant performing some activities, but there was no footage of Mr Moszko or Mr Bryant performing a bunker drain at the times recorded on the Shift Feeder Log Sheet. 47

(e) Mr Moszko did not claim to have completed a bunker drain on 20 October 2020. 48

(f) Mr Lyon did not record who performed the bunker cleans on 20 October 2020 and could not recall whether it was Mr Moszko or Mr Bryant that informed him that the bunkers had been drained. 49 As a result, there was no reliable evidence that it was Mr Moszko who provided false information to Mr Lyon about the bunker cleans on 20 October 2020.50

[51] As to the “unresolved” circumstances relating to why the bunker drains were not performed at the times recorded on the Shift Feeder Log Sheet on 20 October 2020, there are a range of possible explanations:

(a) Mr Lyon may have recorded the times incorrectly on the Shift Feeder Log Sheet. The bunker drains may have been performed at times other than those stated on the Shift Feeder Log Sheet;

(b) Mr Lyon may have mistakenly been told the incorrect times for the bunker drains when he completed the Shift Feeder Log Sheet; or

(c) Mr Lyon may have been lied to by the person who gave him information about when the bunker drains were performed on 20 October 2020.

[52] Although this issue remained “unresolved”, it did not provide a sound or rational basis for Simplot to lose trust and confidence in Mr Moszko. That is so for the following reasons. First, if Mr Lyon recorded the times incorrectly on the Shift Feeder Log Sheet, Mr Moszko could not reasonably be blamed for that mistake. Secondly, Mr Lyon gave evidence, which the Commissioner accepted, that he could not recall who told him when the bunker drains were performed on 20 October 2020. Because Mr Lyon could not recall who told him this information, the Commissioner rightly held that she was not persuaded on the evidence that it was Mr Moszko who gave false or incorrect information to Mr Lyon. 51 It follows that Simplot could only have a suspicion that Mr Moszko may have been the person who provided false or incorrect information to Mr Lyon. Holding such a suspicion is not a sound or rational basis to underpin a finding of loss of trust and confidence. Thirdly, the Commissioner’s finding that the “unresolved” issue was “likely to have an ongoing affect on the relationship between Mr Moszko and Simplot in that he is likely to have his work practices closely scrutinised because Simplot no longer trust Mr Moszko’s ability to work unsupervised”52 was not supported by any evidence. None of the witnesses called to give evidence for Simplot gave evidence that they had lost trust and confidence in Mr Moszko as an employee or a colleague, or that they had an ongoing suspicion or belief that he provided false or incorrect information to Mr Lyon which would lead them to closely scrutinise Mr Moszko’s work practices.53 For these reasons, we consider that the “unresolved” circumstances to which the Commissioner referred in paragraph [140] of the Decision were irrelevant considerations to the question of whether reinstatement was inappropriate. In our respectful opinion, it was erroneous for the Commissioner to take this matter into account in considering whether reinstatement was inappropriate.

[53] There is no suggestion in the Commissioner’s reasons for deciding that reinstatement was inappropriate that Mr Moszko’s credibility as a witness in the proceedings before the Commission was taken into account in deciding that question. The Commissioner’s comment in paragraph [140] of the Decision that “the circumstances as to why the bunker drain did not occur on that day remain unresolved” could not, in our view, be fairly read to include or incorporate an assessment of Mr Moszko’s credibility as a witness in the proceedings. As we have explained above, the “unresolved” circumstances relate to why the bunker drains were not performed at the times recorded on the Shift Feeder Log Sheet on 20 October 2020.

[54] Even if, as Simplot contends, the Commissioner’s reasoning on reinstatement included an assessment of Mr Moszko’s credit, it could not soundly or rationally underpin a conclusion that Simplot no longer trusted Mr Moszko’s ability to work unsupervised. The Commissioner did not make any general findings as to Mr Moszko’s credit as a witness in the proceedings before her. She did not find that he was an unreliable or evasive witness. Unlike Mr Bryant, who the Commissioner found on the evidence to have lied about his conduct, 54 no finding was made that Mr Moszko lied or was untruthful in any respect. The Commissioner’s observation of Mr Moszko during the proceedings was that he was a person who took a cautious approach to how he responded to questions.55 In respect of some events the Commissioner preferred Mr Moszko’s evidence over the evidence given by Ms Pilgrim, Production Team Leader.56 In respect of other events the Commissioner questioned Mr Moszko’s “convenience” of being unable to recall what had occurred and did not accept his evidence as to there being a lack of understanding about how a particular task was performed, but did not find that he was being dishonest.57 Mr Moszko’s inability to recall the events of 20 October 2020 is also explicable on the basis that (a) unlike the events of 21 October 2020, which were raised with him on 30 October 2020,58 Mr Moszko was not put on notice about any concerns in relation to what happened on 20 October 2020 until 12 November 2020,59 and (b) Mr Moszko was focused on a range of other issues on that shift.60 The Commissioner’s observations about the reliability and credibility of Mr Moszko’s evidence on particular issues were not such as to provide a sound or rational basis to support a conclusion that Simplot had lost trust and confidence in Mr Moszko.

[55] The second matter which led the Commissioner to form the view that reinstatement was inappropriate was “the issue of further allegations that will be put to Mr Moszko should he be reinstated”. 61 The point was made by the Full Bench in Nguyen that in particular cases reinstatement would be inappropriate on the basis that it “would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination”.62 This is not such a case. The further allegations had not been investigated by Simplot and no view or findings, even on a preliminary basis, had been made by Simplot in relation to them. In those circumstances, it could not be said that reinstatement “would almost certainly lead to a further termination”, or even that further disciplinary action or termination was likely to occur. It was therefore appropriate for the Commissioner to observe that she would not make any “assumptions or pre-empt an outcome from an investigation or any disciplinary proceedings that may occur” in connection with the further allegations. Notwithstanding these observations, the Commissioner went on to conclude that “it is without doubt that Simplot has lost trust in Mr Moszko and that loss of trust when considered with Mr Moszko’s prior work history will likely affect the prospects of a healthy working relationship being re-established”.63 When this finding in paragraph [141] of the Decision is read in the context of the balance of the paragraph, it is apparent that the Commissioner formed the view that Simplot had lost trust in Mr Moszko and part of the reason for that loss of trust was the fact that further allegations had been made against Mr Moszko and they would be put to him should he be reinstated. But there was no evidence to support the alleged loss of trust or that the existence of further allegations had caused such a loss of trust.

[56] The extent of the evidence adduced in relation to these “further allegations” was the following paragraph in Ms Wilson’s witness statement, which was based on an email she received from Ms Pilgrim on 17 December 2020: 64

“54. After Mr Moszko’s employment had been terminated, it was brought to my attention that there were further incidents relating to Mr Moszko’s performance on his two final night shifts on 15 & 16 November, 2020. The first incident related to signing off an area on clean down that apparently had not been cleaned, whilst the second incident related to Mr Moszko and Mr Bryant going on a break together, as they have been previously directed not to do. As a result, there were no potatoes to feed into the factory when it was ready to start up and there was a 90 minute delay in starting the line.” 65

[57] The Commissioner suggested that Mr Moszko’s representative “move on” from cross examining Ms Wilson in relation to this evidence. 66 Accordingly, it has not been tested in any way.

[58] The nature of these “further allegations” is important, as are the duties and responsibilities that Mr Moszko had in his position as a shift feeder at Simplot’s potato factory. That is because “there may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts”. 67 It was obviously important for Mr Moszko to give accurate and reliable information to Simplot and to perform the duties required of him. Simplot could suffer significant financial loss if he did not do so. Notwithstanding these matters, this case is not in the limited category of cases in which “any ripple on the surface of the employment relationship will destroy its viability”. Like most cases, we consider that the employment relationship between Mr Moszko and Simplot was “capable of withstanding some friction and doubts”. Having regard to these matters, we consider that the mere fact that these “further allegations” were made against Mr Moszko and they will be put to him should he be reinstated could not form a sound or rational basis to underpin or contribute to a finding that Simplot had lost trust and confidence in Mr Moszko. It follows that they were irrelevant considerations in the House v The King sense and it was erroneous for the Commissioner to take them into account in making her discretionary decision as to whether reinstatement was inappropriate.

[59] In light of our conclusion in relation to Mr Moszko’s contention that the Commissioner took into account irrelevant considerations in determining that reinstatement was inappropriate, we do not need to address the balance of the appeal grounds.

Conclusion on appeal grounds

[60] We consider that this appeal raises questions of general importance in relation to the appellate standard to be applied in an appeal from a decision on a question of reinstatement. In addition, we have identified appealable error in relation to the two reasons advanced by the Commissioner in support of her determination that reinstatement was inappropriate. For these reasons, we consider that granting permission to appeal would be in the public interest, and accordingly permission to appeal must be granted as required by s 604(2) of the Act. We uphold the appeal on the basis of the two instances of appealable error we have identified and quash the Decision.

Re-determination of remedy

[61] We consider that the most procedurally convenient course is to re-determine the issue of remedy ourselves pursuant to s 607(3)(b) of the Act on the basis of the material that was before the Commissioner and the submissions advanced before us on appeal.

[62] The following considerations are relevant to our assessment as to whether reinstatement is inappropriate:

(a) Mr Moszko’s role as a shift feeder at Simplot’s potato factory is an important one. Simplot needs to be able to rely on Mr Moszko to provide accurate and reliable information and to perform the duties required of him. Simplot could suffer significant financial loss if he does not do so.

(b) The Commissioner found that none of the five allegations made against Mr Moszko and which were relied on by Simplot to terminate his employment were made out. It follows that none of these matters could rationally or soundly underpin a loss of trust and confidence in Mr Moszko.

(c) The absence of a valid reason for dismissal weighs in favour of a finding that reinstatement is appropriate but is not determinative of the issue.

(d) It was not established on the evidence before the Commissioner that Mr Moszko failed to perform any of his duties in connection with draining bunkers on 20 or 21 October 2020. Mr Moszko was not actually required to perform a bunker drain on each shift; he worked on a team with shared responsibility. 68 The fact that bunker drains were not performed at the times stated on the Shift Feeder Log Sheet on 20 October 2020 does not established that Mr Moszko failed to perform his duties on that day.69

(e) Mr Moszko was employed by Simplot for about 23.5 years prior to his dismissal. He has not been able to secure permanent work since being dismissed by Simplot. He wants to return to employment with Simplot. To that end, Mr Moszko gave the following unchallenged evidence:

“I wouldn’t have any problems going back to Simplot. I like and miss all my colleagues. I don’t hold any grudges, what has happened has happened and is water under the bridge. I’m prepared to put it all behind me and move forward.” 70

(f) Mr Moszko gave this evidence in circumstances where his representatives from the AMWU had earlier raised concerns in connection with Simplot’s investigation into the five allegations which led to the termination of his employment. Those concerns were in the nature of allegations of bullying and harassment, the conduct of a “witch hunt”, concerns as to Mr Moszko’s mental health, and the notification of an industrial dispute in relation to the investigation. Given the stark contrast in the findings of the Commissioner in relation to the five allegations (which were all in Mr Moszko’s favour) and the findings made by Simplot in relation thereto during its investigation (which were all against Mr Moszko), it is not surprising that Mr Moszko’s representatives articulated a number of concerns about the investigation being undertaken by Simplot. Further, it was not put to Mr Moszko that he had lost trust and confidence in Simplot. In all the circumstances, the evidence does not persuade us that Mr Moszko has lost trust and confidence in Simplot.

(g) Prior to his dismissal, Mr Moszko had a disciplinary history in his employment with Simplot, including being issued with a first warning and a second final warning. It is rational for the matters the subject of these warnings to have caused Simplot to lose some trust and confidence in Mr Moszko, but the fact that Simplot did not make a decision to dismiss Mr Moszko in connection with these incidents means that there was enough trust and confidence in the relationship for it to continue. Accordingly, these past incidents could not, without more, provide a sound and rational basis for a conclusion that Simplot has lost trust and confidence in Mr Moszko to such an extent so as to make restoring the employment relationship inappropriate.

(h) The onus of establishing a loss of trust and confidence rests on the party making the assertion. 71 Simplot did not adduce any evidence from a supervisor or manager to support its contention that it had lost trust and confidence in Mr Moszko. Nor is there any evidence to support a suggestion that Mr Moszko would react poorly if he were “closely supervised” after his reinstatement.

(i) For the reasons given in paragraph [54] above, Mr Moszko’s credibility and reliability as a witness in the proceedings before the Commissioner could not soundly or rationally underpin a conclusion that Simplot no longer trusted Mr Moszko or his ability to work unsupervised.

(j) For the reasons given in paragraphs [55] to [58] above, the mere fact that “further allegations” were made against Mr Moszko and they will be put to him should he be reinstated could not form a sound or rational basis to underpin or contribute to a finding that Simplot had lost trust and confidence in Mr Moszko

[63] Having regard to all the circumstances, our opinion is that a sufficient level of trust and confidence can be restored to make the relationship between Mr Moszko and Simplot viable and productive. Whether the relationship endures for a significant period of time will depend on a range of factors, including the outcome of any investigation into the “further allegations” foreshadowed by Simplot.

[64] We are satisfied that reinstatement would not be inappropriate. We exercise our discretion pursuant to s 390(1) of the Act to order Mr Moszko’s reinstatement by Simplot. We consider that it is appropriate to do so for the reasons given above.

[65] We also consider it appropriate, for the reasons provided above, to order the payment of backpay and continuity of service.

Conclusion on remedy

[66] We order that:

(a) Permission to appeal is granted.

(b) The order (PR733481) and the Decision, insofar as it concerns the question of remedy, are quashed.

(c) Simplot reinstate Mr Moszko to the position in which he was employed immediately before his dismissal.

(d) Simplot maintain continuity of service for Mr Moszko from the date of termination of his employment to the date of reinstatement.

(e) Simplot pay to Mr Moszko an amount for the remuneration lost, if any, by him because of his dismissal, taking into account the payment in lieu of notice made to Mr Moszko on his dismissal and any payment made by Simplot to Mr Moszko, or for his benefit to a superannuation fund, in accordance with the order (PR733481) made by the Commissioner on 4 September 2021.

(f) This order is to be complied with within 14 days of the date of this order.

(g) Each party has liberty to apply in the event that there is a dispute about the calculation of the amount, if any, to be paid to Mr Moszko pursuant to (e) above.

VICE PRESIDENT

Hearing details:

Matter determined on the basis of written submissions.

Final written submissions:

Respondent’s submissions dated 28 October 2021.

Appellant’s submissions in reply dated 1 November 2021.

Printed by authority of the Commonwealth Government Printer

<PR735651>

 1   [2021] FWC 2404 (Decision) at [135]

 2   This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 3   Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) (2011) 192 FCR 78 at [43]

 4   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; (2011) 192 FCR 78 at [44] -[46]

 5   [2010] FWAFB 5343, 197 IR 266 at [27]

 6   Wan v AIRC (2001) 116 FCR 481 at [30]

 7   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 8   Appeal Book (AB) at p 287

 9   Perkins v Grayson Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191

 10   Ibid

 11   Australasian Meat Industry Employees Union v K&G O'Connor [2000] FCA 627

 12   Regional Express Holdings Ltd v Richards [2010] FWAFB 8753 at [26]

 13   Colson v Barwon Health [2013] FWC 8734 at [21], cited with approval in Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198

 14   See, for example, Lucinda Vennix v Mayfield Childcare Ltd [2020] FWCFB 550 at [25]-[27]

 15   Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 at [42]

 16   Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 291

 17   (1936) 55 CLR 499 at 505

 18   [2018] HCA 30

 19   Ibid at [44]

 20   Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119, 297 IR 210 at [168]

 21   Substantially the same point was made by Edelman J at [150]. See, too, The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 at [61]

 22   (2000) 203 CLR 194

 23   Ibid at 205 [19]

 24   SZVFW at [151]

 25   (2000) 203 CLR 194 at 205 [19]

 26   Coal and Allied

 27   Donnybrook Holdings Pty Ltd v CEPU [2021] FWCFB 1825 at [20]

 28   CFMMEU v Adams Jones Pty Ltd [2021] FWCFB 1698 at [21]

 29   Singer v Berghouse (1994) 181 CLR 201

 30   SZVFW at [44]

 31   Ibid

 32   Ibid

 33   Ibid

 34   Ibid at [43]

 35   SZVFW at [46]

 36   SZVFW

 37   Warren v Coombes (1979) 142 CLR 531

 38   Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [40]

 39   Ibid at [39]; CFMMEU v Adams Jones Pty Ltd [2021] FWCFB 1698 at [21]; Donnybrook Holdings Pty Ltd v CEPU [2021] FWCFB 1825 at [20]

 40   See paragraph [43] above

 41   [2014] FWCFB 7198

 42   See paragraph [13] above.

 43   Decision at [141]

 44   Decision at [92]

 45   Decision at [115]-[116]

 46   Decision at [114]

 47   Decision at [110] & [115]

 48   Decision at [110]

 49   Decision at [111] & [114]

 50   Decision at [112] & [115]

 51   Decision at [111], [112] & [115]

 52   Decision at [140]

 53   Nguyen at [25]

 54   Decision at [100]

 55   Decision at [107]

 56   Decision at [104]-[108]

 57   Decision at [109]

 58   AB at p 273 [67]

 59   AB at p 274 [71]; AB at p 341 [28]-[29]

 60   AB at p 59 PN232

 61   Decision at [141]

 62   Nguyen at [17]

 63   Decision at [141]

 64   AB at p 405; AB at p 216 (PN1924-1926)

 65   AB at p 344

 66   AB at p 217 (PN1928-1931)

 67   Nguyen at [21] & [27]

 68   Decision at [92] & [117]

 69   Decision at [113] & [117]

 70   AB at p 307 [47]

 71   Nguyen at [27]