DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Glenn Reseigh
v
Stegbar Pty Ltd
(C2019/6862)

Appeal against decision [2019] FWC 7170 of Commissioner Platt at Adelaide on 23 October 2019 in matter number U2019/5992.

Introduction

[1] Glenn Reseigh (Appellant) was employed by Stegbar Pty Ltd (Respondent) as a full-time assembler/glazier from 10 October 1997 until his dismissal on 23 May 2019. The reason given by the Respondent for the Appellant’s dismissal was his “inability to perform the inherent requirements of [his] duties and the fact that [his] absences aggregated for the period cannot be viewed as a short-term absence”. 1

[2] The Appellant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. He sought reinstatement or, in the alternative, compensation. At the time of the dismissal the Appellant had accrued annual and long service leave to a combined period of approximately 6.5 weeks. The application was determined by Commissioner Platt, who on 23 October 2019 decided that he was not satisfied the dismissal of the Appellant had been unfair and dismissed the application (Decision). 2 In so doing the Commissioner found that there was no dispute the Appellant had been unable to attend work for a considerable period in the years since 2016 and that he was also late for work on a large number of occasions.3 The Commissioner also found that there was no dispute that the reasons for the absence and lateness were due to the Appellant’s medical condition exacerbated by his personal circumstances.4

[3] The Commissioner concluded, relevantly, that the Appellant’s work attendance was so poor as to form the basis for a valid reason to dismiss. 5 The Commissioner also concluded that the Appellant was regularly late, resulting in the suboptimal use of assembly labour time, which also constitutes a valid reason for the dismissal.6

[4] By his notice of appeal lodged on 11 November 2019 the Appellant applies for permission to appeal and if granted, appeals the Decision and the order dismissing the application. 7

The Decision

[5] The Commissioner commences with some introductory matters at [1]-[5] of the Decision. At [6] of the Decision the Commissioner sets out a series of uncontested factual matters including the following:

•  The Appellant’s physical and mental health deteriorated in the 2-3 years prior to the dismissal.

•  At the time of the dismissal the Appellant had 109 hours 8 of accrued annual leave and 137 hours of accrued long service leave.

•  The spreadsheet to Mr Vanderlinden’s statement accurately records the days the Appellant was absent and the days on which he was late.

•  The Appellant does not remember every occasion that he was absent from work but he attributes it to his medical condition and that is the default explanation for any absence. 

[6] The Commissioner summarises the evidence given by and on behalf of the Appellant at [11]-[68] of the Decision. The evidence given for the Respondent is summarised at [70]-[134].

[7] The Commissioner next makes the following observations about credit:

[135] There were some differences between Mr Reseigh’s evidence in chief and cross examination. For example, in his initial statement he contended that at the 21 May 2019 meeting he was not aware of the real potential of dismissal, but he readily accepted in cross examination that he was aware that his employment was at risk as he could not complete a full week’s work.

[136] Whilst it is understood that most witnesses are not familiar with giving evidence or being cross-examined, on a number of occasions Mr Reseigh was unable to answer simple questions about matters that were within his knowledge. On one occasion, Mr Reseigh refused to answer a question about why he would turn up to work late.

[137] Mr Reseigh’s chronology of his condition and visits to doctors was at best confusing. 

[138] Mr Reseigh’s evidence as to the conditions he was suffering from that led to the issue of medical certificates was unconvincing. He asserts that the absences were due to his haemorrhoid condition but was unable to explain the reasons for 14 of the consultations between February 2017 and July 2017. Despite the evidence from Dr Lok that Mr Reseigh was symptom-free on 3 April 2018, he submitted a medical certificate from a different doctor on 5 April to the effect that he was unfit for work as a result of his haemorrhoids. Mr Reseigh’s evidence about a relapse in his condition after 3 April 2018, and when he was placed on a waiting list for a further haemorrhoid operation at Modbury Hospital, was inconsistent or at best confused.

[139] I have determined to treat Mr Reseigh’s evidence with caution, except where it is corroborated. 9 [Endnotes omitted]

[8] Next the Commissioner makes a number of findings described as factual findings as follows:

[140] There does not appear to be any dispute that Mr Reseigh had been unable to attend work for a considerable period in the years since 2016 and that he was also late for work on a large number of occasions.

[141] There does not appear to be any dispute that the reasons for the absence and lateness (collectively, attendance issues) were due to Mr Reseigh’s medical condition exacerbated by his personal circumstances.

[142] I accept that Mr Reseigh was spoken to on numerous occasions about Stegbar’s concerns as to his attendance and was assisted by Mr Kirner where he so requested.

[143] I accept that Mr Reseigh was warned on a number of occasions that if his attendance did not improve he could be dismissed.

[144] I find that on the last occasion that Mr Reseigh’s attendance was discussed Stegbar did not expressly advise him that it was considering dismissing him.

[145] I accept that at the time of the dismissal Mr Reseigh was not able to perform his duties on a full-time basis and that the number of weekly absences was progressively increasing.

[146] I accept that this caused disruption to Stegbar’s capacity to provide customers with products on time and resulted in Mr Vanderlinden (and others) having to undertake Mr Reseigh’s duties.

[147] The circumstances of the dismissal do not appear to represent a breach of s.352 of the Act.

[148] At the time of the dismissal the information on hand to Stegbar was such that it appeared that Mr Reseigh’s surgery was some months away and thus the causal factor would not be resolved for that period. 10

[9] The Commissioner summarises the parties’ submissions at [149]-[150] of the Decision, deals with some initial matters at [151]-[154] and discusses the statutory considerations in assessing whether a dismissal is harsh, unjust or unreasonable at [158]-[190].

[10] The Commissioner concluded at [172] of the Decision that there was a valid reason for the Appellant’s dismissal. In doing so the Commissioner reasoned as follows:

[158] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do were it in the employer’s position.

[159] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 

[160] For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.

[161] Regular attendance at the workplace was an inherent requirement of Mr Reseigh’s role.

[162] There is no dispute that Mr Reseigh advised Dr Ganesan on 8 April 2019 that he was unable to work four or five days per week due to his medical condition, even if a 15kg weight restriction was allowed.

[163] Mr Reseigh was absent from work for 120 days in the 12 months prior to 20 May 2019. I accept that Stegbar did not take issue with his paid sick (personal) leave, but was concerned with the amount of unpaid leave and the disruption caused by not attending for work and then accessing annual leave to avoid a loss of wages.

[164] Mr Reseigh was also late for work on numerous occasions.

[165] The evidence reveals that Mr Reseigh appears to rely on his haemorrhoidal condition to explain his absences following his gallbladder surgery. This position is not entirely supported by the medical evidence which reveals that a number of the absences were not due to this condition; however I accept that Mr Reseigh’s life was in turmoil and that this impacted on his capacity to attend work. The poor attendance was not for a short duration; indeed it appears that Stegbar worked unsuccessfully with Mr Reseigh for a number of years to address the underlying causes and to get him back on track, including changing his rostered hours.

[166] I accept that Stegbar did not rush to judgement.

[167] I accept that the number of days that Mr Reseigh would not attend work each week was increasing as time progressed. I accept that at the time of dismissal there appeared to be no end to this issue within a reasonable period of time such that Stegbar should have persisted. It appears to me that based on the information Mr Reseigh provided to Dr Ganesan, Stegbar reasonably held the belief that it could not reasonably rely on Mr Reseigh to attend for work on any given day, and the surgical intervention to improve his condition was as far as 12 months away.

[168] I accept that Mr Reseigh’s absences were not a short term injury or illness within the meaning of s.352 of the Act.

[169] I accept that Mr Reseigh’s life in general appears to have fallen into an abyss prior to his dismissal, but that does not abrogate the requirement to attend for work.

[170] In my view, Mr Reseigh’s work attendance was so poor as to form the basis for a valid reason to dismiss. Mr Reseigh’s absences impacted the business’s capacity to fulfil orders in a timely fashion and impacted on others including Mr Vanderlinden who was taken away from his managerial role to undertake Mr Reseigh’s duties.

[171] In addition, Mr Reseigh was regularly late, resulting in the suboptimal use of assembly labour time, which also constitutes a valid reason in support of dismissal. 11 [Endnotes omitted]

[11] As to whether the Appellant was notified of the reason for dismissal, the Commissioner reasoned as follows:

[173] The Full Bench of the Fair Work Commission has held that s.387(c) of the Act is to be applied in a common sense way to ensure that the Applicant has been treated fairly, and does not necessarily require strict formalities in the sense of conducting a meeting with the employee to inform them of the reasons for the proposed dismissal, or providing the employee with an opportunity to address the employer’s concerns in writing.

[174] The correspondence submitted indicated that many discussions occurred with respect to Mr Reseigh’s work attendance and that on multiple occasions he was advised that if his attendance did not improve he would be subject to sanction up to and including dismissal. I accept that Mr Reseigh was upset at being dismissed but he could not reasonably have been surprised. 12 [Endnote omitted]

[12] The Commissioner next considered whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct as follows:

[175] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.

[176] Stegbar repeatedly raised with Mr Reseigh over an extended period of time its concerns with his late attendance and absences.

[177] Whilst I accept Mr Reseigh was not expressly warned that Stegbar was considering dismissing him at the meeting on 21 May 2019, he had been repeatedly advised previously that if his attendance did not improve his employment would be at risk. Whilst it would have been preferable to advise Mr Reseigh that Stegbar was considering his dismissal, the meeting on 20 May 2019 allowed Mr Reseigh an opportunity, which he used, to respond to the attendance issue.

[178] I also accept that Mr Reseigh was not able to comment on Dr Ganesan’s report. The report however did not include any medical opinion, and merely restated the information provided by Mr Reseigh. Whilst it would have been preferable for Stegbar to have referred to Dr Ganesan’s report on 21 May 2019, it does not appear that Mr Reseigh was disadvantaged by this as the details it provided were within his knowledge.

[179] Having regard to the matters referred to above, I find that Mr Reseigh was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made, and that any technical failure did not have an impact on the outcome. 13 [Endnotes omitted]

[13] The Commissioner deals with the other mandatory considerations under s.387 of the Act, with which issue is not taken on appeal, at [180]-[186] of the Decision. Next the Commissioner sets out other relevant matters he took into account as follows:

[187] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.

[188] I have considered the impact of Mr Reseigh’s application for leave made through Mr Kirner whilst Mr Reseigh was suspended. Stegbar did not respond to the application. In the circumstances I do not believe that Stegbar unreasonably refused to grant leave.

[189] I have taken into account Mr Reseigh’s length of employment.

[190] I have also taken into account Mr Reseigh’s personal circumstances, the turmoil that he was experiencing at that point in his life, and the impact on him of the dismissal. 14

[14] Ultimately, the Commissioner concludes that he is not satisfied that the dismissal of the Appellant was harsh, or unjust, or unreasonable 15 and he dismisses the application.16

Appeal grounds and contentions

[15] The notice of appeal contains four grounds of appeal.

[16] The first ground contends the Commissioner erred in finding that there was a valid reason for dismissal related to the Appellant’s capacity or conduct because the Commissioner:

•  applied the incorrect test for determining the existence of a valid reason in circumstances in which the Appellant’s absences and lateness resulted from incapacity, in particular by applying the test for misconduct rather than capacity; and

•  alternatively, erred in finding that any conduct constituted a valid reason for dismissal.

[17] As to this appeal ground the Appellant submits that in assessing whether there was a valid reason for the dismissal related to the person's capacity or conduct it will be necessary to consider whether the reason or reasons for dismissal concern capacity or conduct or both. The Appellant contends that in cases in which a medical incapacity to perform a job is advanced as a reason for dismissal, the “test” in Jetstar Airways Ltd v Neeteson-Lemkes 17 should be applied. The test is said to comprise three interconnected elements. First, whether the employee was capable of performing the inherent requirements of the role in which the employee was employed as at the time of dismissal. Secondly, whether the employee would be able to perform the inherent requirements of that role at some time in the future. Thirdly, whether there was some reasonable adjustment which could be made to the role to accommodate any current or future incapacity.

[18] The Appellant contends that the only “valid reason” advanced by the Respondent was an inability by the Appellant to perform the inherent requirements of the role. The Appellant contends that the evidence before the Commissioner was that but for his medical incapacity, the Appellant could have remained in employment. Moreover, the Commissioner found that there was no dispute “that the reasons for the absence and lateness (collectively, attendance issues) were due to [The Appellant’s] medical condition exacerbated by his personal circumstances”. 18

[19] The Appellant contends that having made that finding, the Commissioner erred by approaching the consideration of whether there was a valid reason for the Appellant’s dismissal by reference to the principles and authorities concerning misconduct. According to the Appellant the Commissioner thereby failed to apply the considerations enunciated in Jestar and was in error.

[20] As to the second basis underpinning this ground of appeal, the Appellant contends that any “conduct” in which the Commissioner found the Appellant to have engaged, comprised of not attending for work or attending late and did not rise to the level of a valid reason for dismissal because on the evidence the Respondent was able to manage the absences and if the Appellant was medically fit to work, there was no barrier to his ongoing employment from the perspective of the Respondent.

[21] The Respondent contends the issue raised by the Appellant in the first appeal ground is erroneous. It says that the Appellant’s assertion that the only valid reason advanced by the Respondent was the Appellant’s inability to perform the inherent requirements of the role is not correct and is not supported by the evidence before the Commission. That evidence, according to the Respondent, is said to also relate to conduct as a reason for dismissal.

[22] In this regard the Respondent points to:

•  the letter of termination which raises inconsistent attendance for work and "regular pattern of lateness";

•  a number of meetings for which records of interview were in evidence and at which representatives of the Respondent discussed with the Appellant conduct-related issues and opportunities to improve;

•  the Commissioner’s noting of issues concerning the Appellant’s lateness at [20], [23], [24], [27], [33] and [36] of the Decision; and

•  the Commissioner's comments during the hearing that conduct was also part of his considerations. 19

[23] Given the above, the Respondent contends the Appellant is disingenuous to now say that the only valid reason provided for his dismissal was related to his capacity and that this was not the case. Accordingly, the Commissioner did not apply an incorrect test.

[24] As to the alternative basis advanced by the Appellant, the Respondent contends that this appeal ground relies, in part, on the assertion that there was an application of an incorrect test to the capacity reason for dismissal. It says however that it is clear that the Commissioner found that there were conduct issues which gave rise to a valid reason for dismissal.

[25] The Respondent contends further that to the extent the Appellant asserts that the conduct reasons relied upon by the Commissioner did not rise to the level of a valid reason for dismissal, this is a factual argument, and does not give rise to any significant factual error. It contends there was clear and cogent evidence that the conduct issues on which the Commissioner relied provided a valid reason for dismissal.

[26] The second ground of appeal contends the Commissioner erred in failing to consider, or alternatively in failing to give adequate weight to, whether the Appellant was notified of a valid reason for dismissal.

[27] In furtherance of this ground, the Appellant contends the Commissioner was obliged to consider whether the Appellant was notified of the reasons for his dismissal, but the Commissioner did not consider this question at all. The Appellant contends that instead of considering this question, the Commissioner erroneously applied considerations relevant to s.387(c) of the Act.

[28] The Appellant contends the Commissioner’s failure to do so in the instant matter is particularly important, because the reason found by the Commissioner to be a valid reason was not the reason advanced by the Respondent.

[29] The Respondent submits the Appellant does not outline in what way he was not notified of the reason for dismissal. He received the letter of termination. There were records of interviews and warning letters provided to him beforehand. It contends the Appellant criticises the Commissioner's reasons for decision in a hypothetical way, without providing any basis for the Appellant’s assertion that he was not provided with notification of valid reasons.

[30] The third appeal ground contends the Commissioner erred in concluding that the Appellant was given an opportunity to respond to the reason for dismissal.

[31] In support of this appeal ground the Appellant contends that although the Commissioner found that:

•  the Appellant was not advised prior to his dismissal that the employer was considering dismissal; 20 and

•  the Appellant was not given an opportunity to comment on the medical report on which the Respondent relied to dismiss him prior to dismissal, 21 as the medical report was not provided to the Appellant at all prior to dismissal,

the Commissioner nonetheless concluded the Appellant was provided an opportunity to respond, “prior to the decision to dismiss being made”. 22

[32] The Appellant contends the error made is evident because the evidence before the Commissioner was that:

•  the Respondent did not contemplate dismissal at the time of meeting with the Appellant; 23

•  the purpose of the final meeting was to establish the Appellant’s capacity; 24

•  the meeting concluded on the basis that the Appellant would seek further medical assistance; 25 and

•  subsequent to its final meeting with the Appellant, a decision was made to dismiss the Appellant and no opportunity was provided to the Appellant to address any reason for that decision. 26

[33] The Respondent contends the Commissioner was entitled to approach the issue of opportunity to respond in a "common-sense way" as he did at [175] of the Decision. It says the conclusions at [179] of the Decision that any "technical failure" did not have an impact on the outcome was open to the Commissioner on the facts and in the context of the considerable history of the Respondent raising these performance and capacity issues with the Appellant.

[34] The Respondent also says that if the Commissioner’s findings in this regard amount to an error of fact, the error was not a significant error of fact and the Full Bench should not interfere with the Decision. It says the conclusion reached by the Commissioner was reasonably open on the facts.

[35] The fourth appeal ground contends the Commissioner erred in holding that dismissal for misconduct was not harsh having regard to the employer’s concessions that the Appellant would have retained his employment but for his medical incapacity.

[36] We consider these ground below.

Consideration

[37] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 27 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[38] This appeal is one to which s.400 of the Act applies. Section 400 provides that:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[39] The test under s.400 has been characterised as “a stringent one”. 28 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.29 In GlaxoSmithKline Australia Pty Ltd v Makin30 a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 31 

[40] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 32 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.33

Permission to Appeal

[41] For the reasons that follow we are persuaded that appealable error has been established and that there is public interest in granting permission to appeal because to not do so would manifest an injustice to the Appellant and because the appeal raises important questions about the construction and application of aspects of s.387 of the Act. Permission to appeal is therefore granted.

Ground 1

[42] In considering whether he was satisfied the dismissal of the Appellant was harsh, unjust or unreasonable, the Commissioner was required to take into account, inter alia, whether there was a valid reason for the dismissal related to the Appellant’s capacity or conduct (including its effect on the safety and welfare of other employees). 34 The assessment of whether there was a valid reason for the dismissal involves, amongst other things, determining whether the reason related to a person’s capacity or conduct or both. In this context "capacity", as used in s.387(a) of the Act, means the employee's ability to do the work he or she is employed to do.35 A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability.

[43] The reason given by the Respondent for the Appellant’s dismissal was set out in the letter of termination, which was said to be “your inability to perform the inherent requirements of your duties and the fact that your absences aggregated for that period cannot be viewed as a short-term absence”. 36 On its face the reason for the dismissal was one relating to the Appellant’s capacity not his conduct. That the reason for dismissal given by the Respondent related to the Appellant’s capacity is further underscored by the paragraph in the letter of termination which immediately follows the passage just quoted and which provides as follows:

“The circumstances of your termination will not preclude you from applying for a position here should one be open in the future subject to our selection criteria and your personal health being at a stage where a medical certificate states that you have recovered fully to the point where you have capacity to perform full-time work on an ongoing basis”. 37

[44] It is evident from a reading of the Decision that the Commissioner determined that there were valid reasons for the dismissal relating to the Appellant’s conduct. In our view both valid reasons identified at [170]-[171] of the Decision relate to the Appellant’s conduct. This reading is supported by the Commissioner’s discussion of conduct as a valid reason for dismissal at [159] – [160] of the Decision.

[45] The question the Commissioner had to address is whether there was a valid reason for the Appellant’s dismissal. That reason need not be the reason advanced or given by the Respondent.

[46] Although we do not accept the Respondent’s contention that the letter of termination also proffered conduct as a reason for dismissal, we accept that on the evidence it was open to the Commissioner to conclude that the reasons he identified were reasons related to the Appellant’s conduct and that each was a valid reason. As the Respondent has pointed out in its submissions, the Commissioner raised the issue of late attendance as a conduct issue 38 and he set out in the Decision issues concerning the Appellant’s late attendances as a conduct issue39 at [20], [23], [24], [27], [33] and [36].

[47] It is correct as the Appellant has contended that the Commissioner did not engage with the reason given by the Respondent in its letter of termination, namely, that dismissal was because the Appellant could not fulfil the inherent requirements of the position in which he was employed. However, it does not follow that the Commissioner was in error. Even if the Commissioner had concluded that the reason given by the Respondent was not a valid reason, there were other reasons identified by the Commissioner as valid reasons for the Appellant’s dismissal relating to his conduct. Therefore the position arrived at by the Commissioner, as concerns finding a valid reason, is the same.

[48] We also reject the Appellant’s contention that the conduct reasons found by the Commissioner did not rise to the level of a valid reason for dismissal. It was not in contention that the Appellant was regularly and persistently absent or late for work and that this occurred over a significant period immediately preceding the dismissal. Furthermore, the factual findings made by the Commissioner at [142] – [146] of the Decision are not challenged on appeal. Given this, the task for the Commissioner was to assess whether the valid reasons he identified as reasons related to conduct were sound, defensible or well founded. This involves an evaluative judgement and as we have already observed it was a judgement which was open to the Commissioner on the evidence.

[49] Read fairly, as a whole, the Commissioner’s Decision discloses a finding that the Appellant engaged in the relevant conduct (lateness and irregular attendance) and that in the circumstances (length of period over which the conduct persisted and the impact on the Respondent) the conduct justified dismissal (in the sense that the dismissal for those reasons was a valid reason). As we have said, there was evidence to support this conclusion and there is no basis on which it would be proper to interfere with the conclusion.

[50] We are therefore not persuaded that the Commissioner erred in the manner suggested by the Appellant. This ground of appeal fails.

[51] However that the Commissioner determined the existence of one or more valid reasons for dismissal which were different to those upon which the Respondent had at the time of the dismissal relied is relevant to how the Commissioner approached the task of assessing the other matters that he was required to take into account under s.387 of the Act.

Ground 2

[52] This appeal ground concerns whether the Commissioner erred in failing to consider, or alternatively in failing to give adequate weight to, whether the Appellant was notified of a valid reason for dismissal.

[53] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend). 40 That is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.387 in determining whether a decision maker is satisfied that a dismissal was harsh, unjust or unreasonable means that each of the matters must be treated as a matter of significance in the decision-making process.41 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:42

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 43

[54] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications. As Mason J explained in Peko-Wallsend:  

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".” 44 

[55] The matter that is required to be taken into account under s.387(b) of the Act is whether the Appellant “was notified of that reason”. Contextually the reference to “that reason” is the valid reason found to exist under s.387(a). The Commissioner approached the question by making generalised statements about there being no requirement for particular formality and that the consideration should be approached in a common sense way and then concluding that because the Appellant’s work attendance had been the subject of discussions on multiple occasions the Appellant “could not reasonably have been surprised” by the dismissal. 45

[56] It is not evident on the face of the Decision that the Commissioner addressed the relevant question at all. The relevant question was whether the Appellant had been notified of the reasons for his dismissal found to be valid reasons as set out in [170] – [171] of the Decision.

[57] Since the reason articulated by the Respondent for the dismissal in the letter of termination concerned the Appellant’s capacity to fulfil the inherent requirements of the position, if the Appellant was notified of any reason he was notified of that reason but not of the reasons found by the Commissioner to be valid reasons.

[58] The answer to the relevant question whether the Appellant “was notified of that reason” must plainly be “no”. The enquiry is not concerned with whether the Appellant was surprised or otherwise by the dismissal. This might be relevant to the weight to be given to the matter, but not to answer the question posed by the matter. The Commissioner did not address or answer the relevant question and so it inescapably follows he did not take into account a relevant and material consideration. This is an error of the kind described in House v The King. 46

[59] This ground of appeal is therefore upheld.

Ground 3

[60] The third appeal ground contends the Commissioner erred in concluding that the Appellant was given an opportunity to respond to the reason for dismissal.

[61] It is difficult to see how it is that the Appellant was given an opportunity to respond to any reason related to his capacity or conduct in circumstances where the Commissioner found that the Appellant was not advised prior to his dismissal that the employer was considering dismissal. 47 Moreover, the Commissioner also found the Appellant was not given an opportunity to comment on the medical report on which the Respondent relied to dismiss him prior to dismissal,48 as the medical report was not provided to the Appellant at all prior to dismissal.

[62] More fundamentally however the Commissioner does not address whether the Appellant was given an opportunity to comment upon the valid reasons relating to the Appellant’s conduct found by the Commissioner.

[63] There was no “technical failure” as to the opportunity to comment on the reason, as suggested by the Commissioner. Given the factual findings made by the Commissioner together with his findings as to valid reasons which were not those identified by the Respondent as reasons for dismissal in the termination letter, it was simply not open on the evidence to conclude that the Appellant was given an opportunity to respond to any valid reason related to his capacity or conduct. The Commissioner erred in concluding otherwise. The answer to that question must also be ‘no’.

[64] This appeal ground also succeeds.

Ground 4

[65] By ground 4 the Appellant says the Commissioner erred in holding that dismissal for misconduct was not harsh having regard to the employer’s concessions that the Appellant would have retained his employment but for his medical incapacity. That this is the case is evident from the letter of termination of employment. 49

[66] Neither party addressed this ground in their written outlines. Nevertheless, as we apprehend this ground, it is said that the Commissioner did not take into account a relevant consideration – that is, the Respondent did not dismiss on conduct grounds and would consider the Appellant for ongoing future employment if he is medically fit. It might also be said to be a ground founded on legal unreasonableness as described in Minister for Immigration v Li 50 or on the decision being unreasonable or plainly unjust in the House v The King sense.51 But it is unnecessary for the purposes of this appeal ground to give consideration to whether there is relevant unreasonableness.

[67] On the evidence the Respondent dismissed the Appellant for reasons of capacity. It plainly did not regard any conduct on the part of the Appellant as justifying dismissal, at least not at the time of the dismissal. Moreover, it made clear that the Appellant would be considered for reemployment in the event that he was medically fit to resume full-time work. The Respondent’s attitude was plainly a relevant and material consideration in assessing whether a dismissal for reasons related to conduct was harsh, unjust or unreasonable. It is not evident on the face of the Decision that the Commissioner turned his mind to this issue. In failing to do so the Commissioner erred.

[68] This ground of appeal is therefore upheld.

Conclusion

[69] It cannot be said that the appealable errors we have identified taken together would not have made a difference to the ultimate outcome of the Appellant’s application. We propose therefore to uphold the appeal on the grounds identified and to remit the application to the Commissioner for rehearing. We consider that this approach is preferable to the Full Bench rehearing the application since we anticipate that both parties will seek to supplement their evidentiary cases conducted at first instance.

Orders

We order as follows:

a) permission to appeal is granted;

b) the appeal is upheld on grounds 2, 3 and 4 but is otherwise dismissed;

c) the Decision in [2019] FWC 7170 and order in PR713427 are quashed; and

d) the application in U2019/5992 is remitted to Commissioner Platt for rehearing.

DEPUTY PRESIDENT

Appearances:

P Dean of Counsel for the Appellant
I Colgrave of Counsel for the Respondent

Hearing details:

2019
Melbourne
16 December

Written outlines of submissions:

Appellant, 25 November 2019
Respondent, 2 December 2019

Printed by authority of the Commonwealth Government Printer

<PR716353>

 1   Appeal Book at 336

 2   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [194]

 3   Ibid at [140]

 4   Ibid at [141]

 5   Ibid at [170]

 6   Ibid at [171]

 7   PR713427

 8   Noting that at [39] of the Decision the accrued annual leave is said to have been 110 hours

 9   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [135]-[139]

 10   Ibid at [140]-[148]

 11   Ibid at [158]-[171]

 12   Ibid at [173]-[174]

 13   Ibid at [175]-[179]

 14   Ibid at [187]-[190]

 15   Ibid at [193]

 16   Ibid at [194]; See also PR713427

 17   [2013] FWCFB 9075

 18   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [141]

 19   See Appeal Book at 213, PN 1489; Appeal Book at 273, PN 2198 and PN 2199; Appeal Book at 279, PN 2268; Appeal Book at 281-282; PN 2289 - PN 2295; Appeal Book at 291, PN 2379; Appeal Book at 292, PN 2393; and Appeal Book at 299, PN 2466

 20   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [177]

 21   Ibid at [178]

 22   Ibid at [179]

 23   Appeal Book at 258, PN2014

 24   Appeal Book at 246, PN1866

 25   Appeal Book at 252, PN1936

 26   Appeal Book at 258, PN2017

 27   This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] HCA 47, (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 28   Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at [43]

 29   O’Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177 at [44]-[46]

 30   [2010] FWAFB 5343, (2010) 197 IR 266

 31   Ibid at [27]

 32  Wan v Australian Industrial Relations Commission and Another [2001] FCA 1803, (2001) 116 FCR 481 at [30].

 33   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, (2014) 241 IR 177 at [28]

 34   Fair Work Act 2009 (Cth), s.387(a)

 35   See Crozier v Australian Industrial Relations Commission 2001 FCA 1031 at [14], in relation s 170CG(3)(a) of the Workplace Relations Act 1996, which then provided “(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service”

 36   Appeal book at 336

 37   Ibid

 38   Appeal Book at 213, PN 1489; Appeal Book at 273, PN 2198 and PN 2199; Appeal Book at 279, PN 2268; Appeal Book at 281-282; PN 2289 - PN 2295; Appeal Book at 291, PN 2379; Appeal Book at 292, PN 2393; and Appeal Book at 299, PN 2466

 39   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [20], [23], [24], [27], [33] and [36]

 40   [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 41   See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 42   [1987] FCA 233; (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 43   (1987) 16 FCR 167 at 184

 44   [1986] HCA 40; (1986) 162 CLR 24

 45   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [173]-[174]

 46   (1936) 55 CLR 499

 47   Glenn Reseigh v Stegbar Pty Ltd T/A Jeld-wen Glass Australia [2019] FWC 7170 at [177]

 48   Ibid at [178]

 49   Appeal book at 336

 50   (2013) 249 CLR 332 at [63]

 51   (1936) 55 CLR 499 at 505