DECISION

Fair Work Act 2009
s.604—Appeal of decision

Metcash Trading Limited T/A Metcash Trading
v
Michael Hudson
(C2021/5021)

Appeal against decision [2021] FWC 2765 of Commissioner Harper-Greenwell at Melbourne on 6 August 2021 in matter number U2020/15861 - permission to appeal granted - appeal dismissed.

Background

[1] Metcash Trading Limited (Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required, against a decision and order of Commissioner Harper-Greenwell (Commissioner) issued on 6 August 2021. 1

[2] In the decision the Commissioner found that the Mr Michael Hudson (Respondent) was dismissed for a valid reason – breach of the Appellant’s Personal Electronic Devices (PED) Protocol – when he used his mobile telephone in a “High Risk Area”. However, given his length of service, clean safety record and the classification of the breach as a “momentary mistake”, the Commissioner found that the dismissal was harsh and therefore unfair. Accordingly, the Commissioner ordered that the Appellant reinstate the Respondent to the position in which he was employed immediately before the dismissal, effective as of 27 August 2021.

[3] The decision was stayed by consent on terms agreed by the parties. 2 Directions were set for the filing of material by the Appellant and the Respondent regarding permission to appeal and merits of the appeal. The appeal was heard by telephone on 7 October 2021. Both parties sought, and were granted, permission to be legally represented, on the basis that the Full Bench was satisfied that it would enable the matter to be dealt with more efficiently, taking into account its complexity.

The Decision

[4] The Commissioner commenced her decision by setting out the history of the matter which can be summarised as follows:

[11] Mr Hudson commenced employment with Metcash at its Laverton North Distribution Centre (Laverton site/Distribution Centre) on 11 March 1997. Metcash has four warehouses at its Laverton site – the dry grocery warehouse, the National Distribution Centre (NDC) warehouse, the perishables warehouse, and the ALM (Liquor) warehouse. There are about 500 to 600 permanent and agency labour hire workers working in the various warehouses at the Distribution Centre.

[12] At the time of his dismissal Mr Hudson performed the role of a Storeperson in the dry grocery warehouse. His duties included using a forklift to take stock from the receiving area of the warehouse and put away or replenish stock in other areas of the warehouse, and using an electric pallet jack (EPJ) to travel through the warehouse to pick and assemble stocks for orders. …

[13] On 27 October 2020 after taking his morning “smoko break” Mr Hudson drove his forklift out of the battery room into aisle B1. Halfway down the aisle Mr Hudson heard his phone ring. He answered his phone, told the person on the other end to wait a moment, and then drove a short distance with his mobile phone to his ear, stopped again, and dismounted his forklift and continued to talk on his mobile phone. Mr Hudson then moved further away from the centre of the aisle into a pick slot in the racking to make sure he was not in the way and because he was having difficulty hearing the caller. After the call when he turned around to face toward the end of the aisle, he saw Mr Demos Mitchell walking around the forklift toward him.

[14] Mr Hudson’s explanation for his actions was that he answered his mobile phone whilst driving after seeing that the caller was the parts distributor whose call he had been waiting on. Mr Hudson had been trying to source car components and a replacement for a faulty item he had purchased which he required in order to make some repairs to his vehicle, being the only source of transport his family owned. The COVID-19 lockdown was making it somewhat difficult to source and obtain the part he was waiting on and he was concerned about missing the call.

[5] The Commissioner records that the Respondent admitted that he immediately realised he had done something stupid, he had had a “brain fade,” and was sorry for his conduct and for potentially endangering his own and others’ safety. 3 In response to a question from Mr Mitchell the Respondent stated that the call did not involve an emergency.4 The Commissioner also found that in a subsequent meeting to discuss the matter, the Respondent took responsibility for his conduct and expressed remorse for breaking the rules and compromising safety. During the meeting, the Respondent was offered the opportunity to have a support person present and was verbally informed that he would be stood down on full pay pending the outcome of an investigation.5

[6] On 5 November 2020 the Warehouse Manager and the Warehouse Supervisor met with the Respondent and his support person to present the allegations and seek a response. The following day, the Respondent provided a written response to the allegations in which he acknowledged using his mobile phone whilst operating a forklift, advised that he used his mobile phone to speak to a distributor in relation to delivery of spare parts for his motor vehicle, advised of personal circumstances including relating to the issues with his car and associated delivery of spare parts, and expressed contrition for his behaviour. 6

[7] On 11 November 2020 the Respondent was provided a show cause letter stating that the allegations had been substantiated. On 13 November 2020 the Respondent provided a written response to the show cause letter in which he acknowledged that he had read the relevant policy when it was handed to him and even though the policy had not been formally explained to him, he understood that he is not to use his mobile phone in the warehouse. The Respondent apologised for his conduct and requested consideration be given to his unblemished safety record, his 22 years of loyal service to the organisation, and that the incident was an isolated occurrence. 7

[8] On 23 November 2020 the Respondent’s employment was terminated, effective that day for serious misconduct. The decision indicates that the Appellant stated that it paid the Respondent in lieu of notice based on his clear disciplinary history and length of service. 8 The Commissioner then discussed the Appellant’s PED Protocols and a “line in the sand” it had drawn regarding the use of mobile phones in the warehouse.9 In summary, the PED Protocol came into effect on 1 February 2019, setting out the Appellant’s requirements regarding mobile phone use while at work. The Respondent did not attend the toolbox talk held in February 2019 to discuss the PED Protocol.

[9] In November 2019 the PED Protocol was reviewed and updated, and “High Risk Areas” and “Low Risk Areas” were introduced. At this point the Appellant decided to “draw a line in the sand” and the PED Protocol stated that a breach in a “High Risk Area” could lead to disciplinary action up to and including termination of employment. 10 The Respondent attended a catch-up toolbox talk where the updated PED protocol was allegedly distributed. The Respondent conceded that it was possible that he did receive a copy of the protocol, and he just could not remember. In any event, the Commissioner found that the Respondent had a reasonable understanding of the PED Protocol and what would constitute a breach.11

[10] The Commissioner commenced her consideration of the matters in s. 387 of the FW Act at [39], under a heading “Was there a Valid Reason for the dismissal – s. 387(a) and Other Relevant Matters – s. 387(h)”. The Commissioner found that the Respondent had been dismissed for a valid reason, namely that he had taken a phone call in breach of the PED Protocol and was aware at that time that such conduct was a breach. 12 In so finding, the Commissioner rejected the Respondent’s assertion that he had not been provided with the PED Protocol and found that it was likely that the Respondent had access to the PED protocol during the December 2019 toolbox talk, and if not, given the history of his employment, he would have known how to access the PED Protocol if it was his intention to do so.13 The Commissioner also observed that the PED Protocol was comprehensive, provided examples in photographic, graphic and written form and set out the Appellant’s expectations in clear and well-defined terms so that employees could not be mistaken as to when and where they could use a PED.14

[11] At [50] – [56] the Commissioner then turned to consider a question of whether the Respondent’s dismissal was harsh. In this regard the Commissioner found that the “line in the sand” referred to the Appellant ensuring that employees are fully aware of it approach to any breach of PED Protocols which is that it “may” take disciplinary action, up to and including termination of employment. The Commissioner found that it had not been suggested that the Policy was one involving zero-tolerance which would result in an employee being immediately dismissed for any breach of safety, and simply suggested that the “line in the sand” simply suggested that any future breaches of the PED Protocol will not be ignored and may be dealt with through the disciplinary process. 15 The Commissioner went on to find that although the Respondent was fully cognisant of the PED Protocols at the time of the incident and breached them knowingly, he assumed that some reasonable consideration would be given to his length of service and his exemplary safety record and “simply did not expect that he would be dismissed for a first incident, especially one that did not cause an accident or injury, and especially during a period where the country was being affected by the COVID-19 pandemic.”

[12] After rejecting the Respondent’s assertion that there had been inconsistent application of the Protocol, the Commissioner set out the following reasons for concluding that the Respondent’s dismissal was harsh:

“[54] …When deciding what disciplinary action could be taken, the merits and surrounding circumstances should be considered. Ms Addison says she did consider Mr Hudson’s length of service being 23 years, his explanation for his conduct, the regret he had expressed for his conduct, and the fact that he had a clean disciplinary record. However, she still came to the decision that an isolated incident that did not cause injury or harm warranted dismissal, an outcome that I find was disproportionate had Ms Addison genuinely considered all of the factors. It is apparent that Mr Hudson, although he possessed a clean safety and disciplinary record, was used as an example for what could happen when drawing a ‘line in the sand’ and not what should have happened.

[55] Mr Hudson had 23 years of service. He had no disciplinary issues and a clean safety record. He is an honest person and was a dedicated and loyal employee. Mr Hudson did not attempt to hide the fact that he had taken a phone call in breach of the PED Protocol, he apologised for his actions, was clearly and genuinely remorseful, and provided reasons for his momentary lapse of judgement which had been affected by the surrounding circumstances and impacted by the COVID-19 pandemic. Although Mr Hudson did not need to repair his vehicle that very day, it is evident that ongoing delays in repairing the vehicle would have placed him at a greater risk of an unplanned breakdown of the vehicle which would be likely to affect his ability to get to work. While it is not the Commission’s place to step into the shoes of an employer and determine what an employer should have done in a particular situation, it was open to Metcash to issue Mr Hudson a first and final warning which would have been a proportionate outcome. Immediately proceeding to terminate Mr Hudson’s employment was clearly disproportionate and overly harsh.

[56] Although I find no fault with Metcash’s implementation of its safety protocols and I have found there was a valid reason for the dismissal, the outcome was disproportionate and for the reasons set out above, I find that Mr Hudson’s dismissal was harsh in the circumstances.”

[13] The Commissioner then went on to consider the criteria set out in ss 387 (c) – (g) finding that the Respondent was notified of the reason for dismissal, given a chance to respond to it prior to his dismissal, permitted to have a support person present during discussion relating to his dismissal and that the Appellant was a large employer with appropriate procedures that were followed.

[14] Having found that the Respondent’s dismissal was harsh in the circumstances, the Commissioner found the dismissal to be unfair. On the question of remedy, the Commissioner found as follows:

“[84] I do not consider returning Mr Hudson to his employment would present a safety risk to Metcash or its employees, neither would it undermine Metcash’s safety policies. There has been no criticism of the roll out of the PED Protocols or the Protocol itself. As stated earlier in this decision, there was a valid reason for the dismissal, and neither Mr Hudson nor any other employee should take a decision to reinstatement him as condoning his conduct. The decision to reinstate Mr Hudson is on the basis that the dismissal was harsh taking into account the relevant surrounding circumstances. Metcash applied a zero-tolerance approach and did not apportion relevant weight to Mr Hudson’s impeccable safety record and his length of service and the conditions under which the incident occurred.

[86] Mr Hudson is to be reinstated to the position in which he was employed immediately before the dismissal. The reappointment should occur within 3 weeks of the issue of the order giving effect to this decision.”

[15] The Commissioner further found that the Appellant should pay the Respondent an amount for his lost renumeration subject to a 25% deduction due to the breach of the PED protocol.

Permission to Appeal

[16] The appeal is made under s.604 of the FW Act. There is no right of appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 16

[17] Section 400 of the FW Act applies to this appeal. It provides that:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”

[18] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as “a stringent one”. 17 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.18 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. These considerations were that:

“… 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 19

[19] 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. 20 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[20] The decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 21 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner at first instance in the absence of appealable error. As the High Court said in House v The King:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 22

Grounds of appeal and Appellant’s submissions

[21] The appeal is made on 5 grounds, as follows:

Ground 1 – error in applying the applicable statutory test

[22] Ground 1 centres on the manner of the Commissioner’s consideration of the matters in ss. 387(a) and (h). Essentially the Appellant contends that by dealing with s. 387(h) in the manner that she did, the Commissioner erred by finding that the Respondent’s dismissal was harsh, “before and without” considering the matters in ss.387(b), (c), (d), (f) and (g) of the Act. This is said to be a significant error of law that is jurisdictional in nature. 23

[23] The Appellant further contends that even though it appears in that part of the Commissioner’s decision where the existence (or not) of valid reason was considered, the Commissioner’s finding that the dismissal was “disproportionate” (or a like response) was not a matter that went to whether the Appellant had a valid reason under s.387(a). To the contrary, the Commissioner expressly found that the Appellant did have a valid reason, and accordingly, the Commissioner fundamentally misunderstood the statutory task required to be undertaken. The error has resulted in the Commission’s discretion miscarrying such that on this error alone permission should be granted, the appeal upheld and the decision quashed.

Ground 2 – errors in determining that the dismissal was harsh

[24] In ground 2 the Appellant contends that the Commissioner’s error in ground 1 compounded the error in ground 2, which was to limit consideration under s.387(h) of the FW Act to those matters the Respondent relied upon and to take into account, or have regard (or proper regard), to relevant matters relied upon by the Appellant, which the Commissioner should have taken into account. Matters the Appellant asserts that the Commissioner did not refer to are:

•  the Appellant’s obligation to uphold safety standards in the workplace;

•  the nature and extent of the Respondent’s breaches of the applicable safety procedures; and

•  that the Respondent’s length of service and seniority with the Appellant meant that the Respondent should have known better than not to comply with the Appellant’s safety procedures.

[25] The Appellant submits that it made submissions directed to each of the matters and that the failure of the Commissioner to refer to them supports the Appellant’s submission that the Commissioner did not consider or take them into account and that the error amounted to a significant error of law that was jurisdictional in nature 24 and failure to resolve the matter in accordance with the law.25 The Appellant also submits that the Commissioner was required to take these matters into account because they were centrally relevant to her consideration of whether the dismissal was harsh, unjust or unreasonable.26 Further, the Appellant submits that the failure to take the matters into account meant that the Commissioner did not have regard to matters relevant to the overall evaluative assessment of whether the dismissal was harsh in the circumstances.

[26] In that regard, the Appellant submits that:

•  an employer’s safety obligations and its need to enforce safety standards need to be considered; 27

•  irrespective of whether an incident causes harm to a person, the significance of a safety incident and the risks created by it is a relevant matter; 28 and

•  an employee’s length of service and expectation that they be familiar with an employer’s safety policies is matter that might tell against a finding of harshness. 29

Grounds 3 and 4 – errors in evaluating the evidence of Ms Addison and standing in the shoes of the Appellant

[27] The Appellant submits that the Commissioner’s error was further compounded by the way she dealt with the evidence of Ms Addison, the Appellant’s Logistic Operations Manager in Victoria. Ms Addison was involved in the Appellant’s decision to terminate the Respondent’s employment. Her evidence included that:

•  in “weighing up” that decision, she considered the Respondent’s “long period of service, some 23 years, his explanation for his conduct, the regret he had expressed for his conduct, and the fact that he had a clean disciplinary history”;

•  “on balance” she decided that termination of employment was appropriate given the seriousness of the breach of the Appellant’s safety policy, the Respondent’s knowledge of the policy and that a breach of it might lead to termination of employment; and

•  the Appellant did not have a “zero tolerance” approach to a breach of its PED protocol, but rather the Appellant approaches each breach “on its merits” and considers all of the circumstances including the seriousness of the breach, whether the employee was aware of the requirements of the safety policy breached, the employee’s disciplinary history and any other relevant matters.

[28] The Appellant contends that Ms Addison was cross-examined but was not challenged on that evidence by the Respondent and nor was Ms Addison subject to any comment or question by the Commissioner and it was never suggested to Ms Addison that her consideration of the Respondent’s mitigating factors, or circumstances generally was not genuine. Despite the unchallenged evidence of Ms Addison, the Commissioner:

•  said that it “appeared” that Ms Addison took a “zero tolerance” approach when deciding whether to terminate the Respondent’s employment; and

•  found that Ms Addison’s decision was disproportionate had she “genuinely considered all of the factors”.

[29] The Appellant challenged those findings and advised that those errors were significant because they were “foundational” to the Commissioner’s finding of harshness. The findings were also material (and therefore significant) in terms of the Commissioner’s subsequent decision to reinstate the Respondent. The Appellant accepted that it is seeking to challenge a factual finding, and as the High Court Held in Robinson Helicopter v McDermott 30:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.”

[30] As a general proposition, the Appellant submits that a court can reject unchallenged evidence if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection. However, unchallenged evidence, which is not inherently incredible, ought to be accepted by the tribunal of fact.

[31] In the present case, the Appellant contends that Ms Addison’s evidence was not contradicted by facts otherwise proved in the evidence. Further, the circumstances of this case did not point to its rejection. Ms Addison’s evidence about the Appellant’s approach to breaches of the PED Protocol demonstrates that the Appellant does not take a “zero-tolerance approach” and that it deals with breaches on their merits. There is also no suggestion in the Commissioner’s decision that the findings were based on any particular advantage that she enjoyed as the trier of fact. The Commissioner’s finding that it appeared that Ms Addison took a zero-tolerance approach fundamentally misunderstands her evidence.

[32] The Appellant also submits that the Commissioner found no fault in the procedure adopted in informing the Respondent of the allegations and the process of effecting the dismissal. Importantly, the Commissioner expressly found that the Appellant complied with s.387(b) and (c) of the FW Act. These are important findings in the overall context of the case because those findings must come with the acceptance – particularly in respect of s.387(c) of the Act – that the Respondent was not simply paying “lip service” to the things that the Respondent advanced as reasons why his employment should not be terminated, which the Appellant noted at the hearing included his clean safety and disciplinary record. The Respondent was given the opportunity to advance matters that might result in the Appellant not terminating his employment. 31

[33] The Appellant submitted that those findings are borne out in the evidence before the Commissioner, including the matters Ms Addison says she had regard to. These are the same matters that the Commissioner found that Ms Addison did not genuinely consider and that finding is inconsistent with the Commissioner’s finding that the Respondent did provide an opportunity to respond; and the Appellant was not merely paying lip service. It must follow that the Ms Addison did genuinely consider those matters. The fact that she determined to terminate the employment does not demonstrate that point. The fact that no one was harmed or injured on 27 October 2020 was irrelevant. 32 Further, the Appellant submitted that this does not demonstrate that Ms Addison did not genuinely consider the matters relied upon by the Respondent.

[34] In light of these matters, the Appellant submits that:

•  the evidence of Ms Addison referred to in paragraph [18] of the decision was uncontested and not contradicted and no other facts were proved that contradicted her evidence, which should have been accepted;

•  it is not otherwise apparent that the Commissioner’s findings were based on what might be referred to as “credit” findings and appellate restraint is therefore not necessary. The Full Bench must conduct a real review into the facts; and

•  the challenged findings are also inconsistent with the finding that the Appellant afforded the Respondent an opportunity to respond.

[35] Accordingly, the Appellant submits that the challenged findings were not reasonably open on the evidence before the Commissioner and there is no proper basis for the Full Bench not to interfere with them on appeal. The appropriate finding to make is that Ms Addison did genuinely consider the Respondent’s circumstances, but for the reasons she advanced still determined that the appropriate sanction was termination of employment.

[36] The Appellant accepted that the proportionality of an employer’s response to conduct in question is a matter that might be relevant under s.387(h) of the Act. However, it is relevant only where the employer fails to take into account mitigating circumstances. 33 The Appellant submitted that the proper finding on the evidence in this case is that the Appellant did take the Respondent’s mitigating circumstances into account. Ultimately, the picture that emerges is that the Commissioner made the findings that she did simply because of a preference she had for a different outcome. That is:

•  the Commissioner determined that the appropriate response or course of action for the Appellant to have taken was to issue the Respondent a warning rather than terminate his employment; and

•  because the Appellant did not do that Ms Addison (and therefore the Appellant) must not have genuinely taken the Respondent’s circumstances into account.

[37] The Appellant contends that the Commissioner’s preference for a different outcome is evident from her comments that a “first and final warning would have been a proportionate outcome” and “immediately proceeding to terminate … was clearly disproportionate and overly harsh”. As the Commissioner noted in her decision, it is a long settled principle that it is not the Commission’s role to step into the shoes of the employer and determine what an employer should have done. 34 The Appellant submits that that is precisely what the Commissioner has done and this is a rational and reasonable explanation for the findings in respect of Ms Addison’s evidence.

Ground 5 – errors in determining that reinstatement was the appropriate remedy in the circumstances

[38] The Appellant accepted that the Commissioner’s decision on remedy involved the exercise of discretion and therefore it must demonstrate error of the type that permits an appellate court to interfere with decisions of that nature. 35

[39] The Appellant submitted that the Commissioner relied upon the factual errors the subject of ground 3 in ordering the Respondent’s reinstatement. The Appellant argued that it is patent that they were significant and material to that decision as evidenced by following passage from the decision linking the erroneous finding to the decision to reinstate:

“The decision to reinstate … is on the basis that the dismissal was harsh taking into account the relevant surrounding circumstances. Metcash applied a zero-tolerance and did not apportion relevant weight to [the Respondent’s] impeccable safety record and his length of service and the conditions under which the incident occurred.”

[40] In coming to her decision that the Respondent would not present a safety risk to other employees, the Commissioner also had regard to statements of Mr Renfrey who did not give evidence and whose statement was not relied upon by the Respondent. It is manifestly unfair to have regard to evidence that has not been tested, or an opportunity given to test it, particularly when it was the Respondent who did not seek to rely upon it. The Respondent also submits that the Commissioner misunderstood the Appellant’s evidence as to why it lost trust and confidence in the Respondent. The Appellant’s position is that the loss in trust was based on the circumstances of the incident on 27 October 2017. Other than some brief questions to Ms Addison, the Appellant’s witnesses were not challenged on that evidence.

[41] The loss was not based on whether the Respondent had not demonstrated he was a “loyal and truthful” employee but had been untruthful about the circumstances of the incident or a lack of commitment by him to comply in the future. The Commissioner was required to assess the facts and circumstances on which the Appellant’s loss of trust was based. The evidence of the Warehouse Manager Mr Van Den Oever, was that the Respondent made a decision to breach an important safety policy, which he knew about, and Mr Van Den Oever could not be satisfied that a “brain fade” might not happen again and the consequences could be much more serious. The Appellant contends that there was nothing irrational about that view. The circumstances relating to the Respondent’s breach on 27 October 2020 was a relatively mundane ordinary occurrence, the type of which might be encountered again during the Respondent’s employment.

[42] Finally, the Appellant submitted that permission to appeal should be granted for the following reasons:

•  The Commissioner’s decision on the overall question to be determined under s. 387 of the FW Act is a significant error of law that is jurisdictional and it is in the public interest that the jurisdiction vested in the Commission is exercised properly;

•  The Commissioner’s misunderstanding of the Appellant’s evidence and disregard of relevant matters pertaining to the consideration under s. 387(h) was an error of law that was also jurisdictional in nature such that there is a public interest in granting permission to correct those errors; and/or

•  The Commissioner’s decision is counter intuitive and disharmonious when compared with other decisions of the Commission.

[43] In oral submissions at the hearing, the Appellant focused on appeal grounds 1 and 3. In relation to ground 1 it was contended that the finding of unfairness was made in paragraph [56] of the decision before the Commissioner had considered the other matters in s. 387 of the FW Act and that a later conclusion in this respect at [69] simply restated what had been determined earlier in the decision. Further the Respondent submitted that the Commissioner approached the task of assessing whether the dismissal was harsh, unjust or unreasonable, by considering only the matters in s. 387(h) or alternatively the matters in s. 387(a) and (h), and without also considering the matters in s. 387(b) and (c). This was not merely a matter for form but rather, a matter of substance.

[44] In relation to appeal ground 3, the Appellant said that the Commissioner’s finding that the Respondent was made aware of the allegations, given an opportunity to respond to them and that the Appellant considered the response before deciding to dismiss, was inconsistent with her finding that these matters were not given weight by the Appellant. Citing the decision of a Full Bench of the Commission in Federation Training v Mr Peter Sheehan 36 and cases cited therein, the Appellant submitted that the obligation imposed on an employer by s. 387(c) is that the employee must be made aware of the allegations concerning the employee’s conduct so as to be given an opportunity to respond to them and given an opportunity to defend himself or herself. The opportunity to defend implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance.

[45] The Appellant submitted that in the present case, if it is found that the employer complied with the obligation to give the Respondent an opportunity to respond, that must mean that the Appellant genuinely considered the matters that the Respondent put forward. For this reason, the Appellant contended that the finding that s. 387(c) was complied with was a very significant contextual matter, because it was inconsistent with the earlier finding that Ms Addison did not consider these factors. Further, the Appellant submitted that it follows from the finding that these matters were considered that they were genuinely considered, resulting in an error because of inconsistency with the finding that they were not genuinely considered by Ms Addison and the Appellant. It followed that the finding of harshness could not stand on the basis that the matters raised by the Respondent were considered by Ms Addison.

[46] Reference was also made to the decision of a Full Bench of the Commission in Sydney Trains v Hilder 37 where it was held that a failure by an employer to consider mitigating circumstances advanced by an employee before deciding to dismiss the employee may be relevant to s. 387(c) on the basis that it would arguably constitute a denial of a real opportunity to respond to a reason for dismissal. The Full Bench in that case also held that if a dismissal was a disproportionate response to conduct because an employer failed to take into account mitigating circumstances, that would be a matter relevant to s. 387(h), but in the context of s. 387(a) this was a distraction.38

Respondent’s submissions

[47] The Respondent filed written submissions in support of his position that permission to appeal should be refused. The Respondent submits that none of the errors complained of by the Appellant raise any significant point of principle requiring determination by a Full Bench.

[48] The Respondent also submits that absent from the Appellant’s case is any suggestion that the decision occasioned a substantial injustice. 39 Nor could any reasonable argument be mounted that it did. The Respondent’s position is that his misconduct was properly characterised by the Commission as a “momentary lapse of judgement”. According to the Respondent, the Appellant does not contend that it was not open to the Commission to conclude that his dismissal, after 23 years’ of service with an unblemished safety record, was disproportionate.

[49] In relation to ground 1, the Respondent submits that apart from the fact that it is inherently improbable that the Commissioner simply failed to apply a basic prescription of the statute, the Commissioner went on to say; “I will now consider each of the matters set out in s. 387 of the Act” 40 and expressly addressed each of the statutory criteria in s 387 before stating her ultimate finding.

[50] Before addressing each of the matters in s. 387 (d), (e), (f) and (g), the Commissioner expressly restated her obligation to take these matters into account. The Commissioner addressed the issues of notification of a valid reason and an opportunity to respond (s 387(b) and (c)) in terms which revealed a clear understanding that these criteria are concerned with the fair treatment of an employee in connection with their dismissal.

[51] The Respondent accepts that in her written reasons, the Commissioner had already set out the considerations which led her to conclude that the dismissal was disproportionate (at [55]-[56]). However, read as a whole, the Commissioner’s reasons do not warrant the Appellant’s allegation that the Commissioner reached this conclusion in complete disregard of the other statutory criteria. The Respondent submits that the Appellant’s complaint arises from a technical and strained reading of the Commissioner’s reasons, contrary to authority of the High Court which has stated that:

“[T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” 41

[52] The Respondent submits that such caution applies to the interpretation of decisions of the Commission in unfair dismissal cases. 42 On a fair reading of the Commissioner’s reasons as a whole, she concluded that Mr Hudson’s dismissal was disproportionate despite the fact that he was afforded procedural fairness in the ways contemplated by s 387(b) – (g). As a matter of logic, there was no need for the Commissioner to refer to s 387(b) – (g) in the portion of her reasons which dealt with the question whether dismissal was a disproportionate response to the respondent’s improper conduct. This question, as the Full Bench of the Commission has observed:

“...involves taking into account a range of potential mitigating factors, which may include matters such as the employee’s length of service and disciplinary record, and weighing them against the gravity of the misconduct in order to determine whether dismissal was too harsh a penalty.” 43

[53] The Respondent’s position is that the fact that he was provided with notice of the reason for his possible dismissal, a support person, and an opportunity to respond, were not matters which had any logical bearing on whether dismissal was a disproportionate penalty. That specific question depended primarily on consideration of the relative gravity of his misconduct in all the circumstances, and his record of service. The Respondent contends that it was open for the Commissioner to conclude that his dismissal was disproportionate and the Appellant does not contend otherwise. The fairness of the procedure which was followed prior to the Respondent’s dismissal provided no basis to conclude that dismissal was proportionate. It follows that the procedural matters in s. 387(b) – (g) did not need to be addressed in that part of the Commissioner’s reasons which considered whether dismissal was a proportionate response. The consideration by the Commission of those criteria do not detract from the reasons the Commissioner gave for concluding that the dismissal was disproportionate.

[54] The Respondent submits that there is nothing in the findings the Commissioner made on the topics in s 387(b) – (g) which could have undermined the conclusion that the dismissal was disproportionate. The Respondent also submits that the Commissioner acquitted her statutory task of considering all of the matters in s 387 before coming to her ultimate conclusion. However, even if the Commissioner’s reasons for concluding that the dismissal was harsh are read as the Appellant urges, there is no material error. Logically, the conclusion that the Appellant’s dismissal was disproportionate stands alone.

[55] In relation to ground 2, the Respondent rejected the Appellant’s submission that the Commissioner failed to take into account three matters relied upon by the appellant at first instance. Regarding the Appellant’s obligation to uphold safety standards, the Respondent submits that it is clear that from the Commissioner’s reasons as a whole that she was conscious of such an obligation. For example, under the heading “Line in the sand: PED Protocols,” the Commissioner referred in detail to the contents of the appellant’s policies governing the use of Personal Electronic Devices in the workplace. The Commissioner made extensive reference to the PED policy which the Appellant adopted and disseminated in November and December 2019 and could not have failed to appreciate that it was a policy introduced to discharge the Appellant’s obligations to ensure a safe workplace.

[56] Further, having dealt with the PED policy and how it was disseminated, the Commissioner concluded: “I am satisfied that Metcash has met its obligation to ensure Mr Hudson had been trained and adequately informed about the contents in [sic] PED Protocol.” 44 According to the Respondent, such references in the Commissioner’s reasons recognise that the Appellant had an obligation to uphold safety standards. The Commissioner was under no obligation to express this recognition in the form of words used, or preferred, by the appellant in order to avoid appealable error. In oral submissions at the hearing the Respondent further referred to the Commissioner’s findings regarding the PED Policy and the Code of Conduct, where she stated as follows:

“[33] [the] Code of Conduct states that it [PED Policy] applies to all team members, casual team members and contractors and they are expected to behave appropriately, and ensure the safety, health and wellbeing of others.”

[57] The Respondent submits that the Commissioner paid careful attention to the details of the PED policy, the reasons for its existence and how it was disseminated. Regarding the nature and extent of the Respondent’s breaches, the Respondent submitted that the facts surrounding the breaches of the PED policy were set out in the Commissioner’s reasons. The CCTV footage, which was adduced in evidence was not disputed. In light of the footage, the Respondent submits that it was open to characterise his conduct as a “genuine momentary lapse of judgement”. The Appellant does not challenge that conclusion.

[58] Finally, the Respondent addressed the Appellant’s submission that the Commissioner was obliged to treat the length of the Respondent’s service as counting against him, on the basis that he should have known better, relying on Singh v Sydney Trains (Sydney Trains). 45The Respondent contended that the Commissioner was not compelled to take this view. It was open to the Commissioner to conclude, as she did, that the Respondent made a momentary mistake which was out of character, and that his length of service and clean safety record supported his case that his dismissal was harsh. The Commissioner’s approach was, on the authorities, orthodox. Further, at the hearing the Respondent distinguished the current matter from the facts in Sydney Trains as the Applicant in that case refused to accept any responsibility for all of the safety incidents concerned and had no remorse or regret for his actions. Nothing in the Sydney Trains decision requires a different conclusion, in the circumstances of the current case, as the Respondent readily accepted that his actions had been careless and breached policy, which he was aware of.

[59] The Respondent understands appeal ground 3 to primarily concern the Commissioner’s characterisation of Ms Addison’s approach to this particular breach of the PED protocol as “zero-tolerance”. The Respondent submits that it is clear the Commissioner recognised that the Appellant’s policy was not, in terms, a “zero-tolerance” policy. Dealing with Ms Addison’s approach to Mr Hudson’s contravention, the Commissioner said:

“[53] ...It is Ms Addison’s evidence that in drawing a ‘line in the sand’ Metcash has not adopted a ‘zero tolerance’ approach to a breach of the PED Protocol in a ‘High Risk Area’ and does not make termination of employment an automatic outcome for such a breach of the PED Protocol. Although she says she considered other factors, it appears Ms Addison has on this occasion taken a ‘zero tolerance approach’ when considering whether or not to terminate Mr Hudson’s employment.” (Emphasis added)

[60] According to the Respondent, this passage makes clear that the Commissioner drew a distinction between the Appellant’s general approach to breaches of the PED Policy, and Ms Addison’s approach to the particular episode of the Respondent’s breach of that policy. This was a characterisation of Ms Addison’s approach that was open on the evidence and reflected the Commissioner’s view that dismissal was a disproportionate response. The Respondent submits that it was open to take the view that Ms Addison’s approach to the PED policy was that strong disciplinary action would be taken, regardless of the circumstances, to make an example of the Respondent.

[61] The Respondent contends that the Commissioner’s approach to this issue was not inconsistent with her finding that the Appellant considered his response before dismissing him. Despite that consideration being given, and the factors in mitigation being very strong, the decision to dismiss the Respondent reflected an uncompromising approach by the Appellant to the enforcement of its PED Policy in response to the breach.

[62] In relation to the Appellant’s contention that the Commissioner took into account an irrelevant consideration when she noted that no injury or harm was caused during the incident, the Respondent submits that whether harm or injury was caused has clear relevance to the assessment of the seriousness of a breach of safety policies, and the proportionality of consequent dismissal. The Full Bench in Bluescope Steel Limited v Knowles 46 did not say otherwise. The Respondent submits that it was obvious that his conduct increased the risk of a harm occurring at the workplace and it is not tenable to contend that the Commissioner was not conscious of this fact.

[63] The Respondent submits that it is untenable for the Appellant to argue that the Commissioner erred by stepping into the shoes of the employer and deciding what the employer should have done. In support of this submission, the Respondent points to the fact that the Commissioner cited the relevant paragraph of the decision in Walton v Mermaid Dry Cleaners Pty Ltd 47, as follows: “[t]he Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.”48

[64] The Respondent further submitted that immediately before concluding that a first and final warning would have been appropriate, the Commissioner again reminded herself of this constraint, saying “it is not the Commission’s place to step into the shoes of an employer and determine what an employer should have done...”. 49

[65] The Respondent maintains that the Commissioner made no error in characterising the decision to dismiss him as reflecting a “zero tolerance approach.” In any event, the Appellant does not explain how this characterisation vitiated the discretion to order reinstatement. The Commissioner’s reasons for ordering reinstatement do not rely on any finding that a “zero-tolerance” approach was taken.

[66] The Respondent accepts that the Appellant was correct to point out that that Mr Renfrey’s evidence was ultimately not relied upon by him. It is clear, however, that an order for reinstatement would have been made regardless of Mr Renfrey’s evidence. The Respondent submits that reinstatement is the primary remedy intended by the legislature for unfair dismissal. The key reasons for ordering Mr Hudson’s reinstatement were articulated by the Commissioner at [80]-[81], [84] and [85] and exist independently from Mr Renfrey’s evidence.

[67] The Respondent further submits that the evidence of Mr Angelo Buljan, a supervisor at the Appellant’s Laverton site, regarding the Respondent’s attitude and conduct with respect to safety, was not challenged in cross examination and it is therefore difficult to see how the Appellant contends that Mr Renfrey’s evidence, which was to the same effect, might have made a material difference to the result.

[68] Further, in oral submissions, the Respondent rejected any assertion from the Appellant that the Commissioner’s reference to Mr Renfrey’s evidence caused concern about the way in which overall, the matter was approached. The Respondent asserted that this was being used as a “make-way” to reinforce other grounds of appeal, which cannot succeed.

[69] Lastly, the Respondent submits that the Commissioner’s reasons do not disclose any basis to assert that she misunderstood the Appellant’s case that it has lost trust and confidence in him. The evidence summarised by the Commissioner on that topic was clearly concerned with the incident which led to his dismissal. However, the Respondent’s view is that in dealing with that issue, the Commissioner was not restricted to considering only that evidence. The Respondent’s truthfulness and loyalty as an employee, and his conduct throughout the disciplinary process, were relevant to whether he should have been reinstated, irrespective of the views of the Appellant’s witnesses. The Respondent contends that the Commissioner was correct to recognise that she was required to assess whether the asserted loss of trust and confidence was soundly and rationally based.

Consideration

[70] It is convenient to consider the grounds of appeal in the order advanced by the Appellant in its written submissions and at the hearing of the appeal. In relation to ground 1, it is well established that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters set out in paragraph (a) – (h) of the section. 50 As a Full Bench of the Commission observed in Sydney Trains v Hilder51 the requirement can only be read as applicable to each element of the trilogy – that is, a finding that a dismissal is or is not harsh, or is or is not unjust, or is or is not unreasonable, must in each case be founded on a consideration of all the matters set out in s. 387(a) – (h).52

[71] A failure to comply with this requirement is a serious error of law. 53 It is also well established that the Commission must consider and weigh up all the factors and that no one factor alone will necessarily be determinative.54 While in some cases, not all the matters in s. 387 will be relevant, it is nonetheless necessary to make a finding in relation to each of them, even if only to set out the basis for the finding of irrelevance.

[72] Ground 1 asserts that the Commissioner reached her conclusion that the dismissal was harsh, on the basis of the considerations in s. 387(a) and (h) and without considering matters in s. 387(b) – (h). This is said to be evident from the part of the Commissioner’s decision dealing with valid reason, which also included a finding that the dismissal was disproportionate. It was contended that such a finding was not a matter that went to whether the Appellant had a valid reason under s. 387(a) of the Act.

[73] We accept that the way the Commissioner dealt with the matters in s. 387(a) and (h) is unorthodox. Generally, the matters in s. 387 should be considered in the order in which they appear in the Act, and findings should be made as to each of the matters before weighing them. However, it should be noted that it is actual failure to weigh each of those matters which constitutes jurisdictional error rather than the order in which they are considered. It is also the case that the exercise of weighing each matter to determine whether a dismissal is or is not harsh, or is or is not unjust, or is or is not reasonable, may result in some matters being considered of little or no relevance depending on which limb of the harsh, unjust or unreasonable trilogy is being addressed.

[74] In Byrne v Australian Airlines 55 the High Court considered the meaning of an award provisions that termination of employment would not be “harsh, unjust or unreasonable”. In their joint judgment McHugh and Gummow JJ said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. …

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable.” 56

[75] A dismissal may be:

“Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.” 57

[76] When this framework is considered, it may be that matters relevant to s. 387(h) are determinative of whether a dismissal is harsh, matters relevant to s. 387(a) are determinative of whether a dismissal is unjust and matters relevant to s. 387 (b) – (g) are determinative of whether a dismissal is unreasonable, or a combination of these matters is relevant to each the three limbs of the harsh, unjust or unreasonable trilogy. The decision-making process involved in weighing the matters in s. 387 may also involve returning to a particular matter and adjusting the weight given to it, to make a finding in relation to unfairness.

[77] Notwithstanding that in the decision under appeal the consideration of s. 387(a) and s. 387(h) was set out sequentially and under a combined heading, the Commissioner has considered all the matters in both sections and has reached conclusions in relation to them. The Commissioner has also considered all other matters in s. 387(b) – (g).

[78] In Sydney Trains v Hilder 58 the Full Bench referred to paragraph [118] of the decision at first instance in finding that the Deputy President did not arrive at his finding that dismissal was unreasonable having considered all the matters set out in s. 387 (a)-(h). In particular, the Full Bench found that the Deputy President found that the dismissal was unreasonable based only on his conclusion under s. 387(a) that there was no valid reason before he gave any consideration to paragraphs (b)-(h) and that this constituted a significant error of law that is jurisdictional in nature.59

[79] However in that matter, the Appellant did not press this ground of appeal and the Full Bench went on to note that had the issue been raised, it might have been said that the error was not of a material nature because once the Deputy President found, pursuant to s. 387(a) that there was no valid reason for the dismissal, there was nothing in the findings directed to s. 387(b) – (h) which could have avoided a conclusion that the dismissal was unreasonable. 60 Despite finding that the Deputy President’s conclusion that there was no valid reason was made in error, the Full Bench affirmed the Deputy President’s conclusion that Mr Hilder’s dismissal was harsh and ultimately found that there was no reason to disturb the orders made by the Deputy President.

[80] We do not accept that in the present case, the way in which the Commissioner ordered her reasons indicates that she reached a conclusion in relation to the harshness of the dismissal before she had considered the other matters. While the Commissioner’s consideration of “harshness” at [50] appears under her consideration of s. 387(h) before dealing with the matters in s. 387(b) to (g), considerations (b) to (g) turn to considerations regarding and relevant to process. It is apparent that the Commissioner had acquainted herself with the process adopted by the Respondent prior to making her findings in relation to s. 387(h) of the Act. So much is evident from her references to the process followed by the Respondent in her findings in relation to the background facts, including paragraphs [20]-[24] of her decision. \.

[81] In the circumstances, that the Commissioner set out her conclusion in relation to harshness, at an earlier point in the decision than the conclusions about other s. 387 matters, does not of itself, constitute failure to weigh all those matters. The nature of the exercise involved in weighing the s. 387 matters does not require that they be considered in a particular order, only that all matters are considered, their relevance assessed and that they are weighed in determining whether a dismissal is or is not harsh, or is or is not unjust, or is or is not unreasonable.

[82] Nor do we accept that the conclusion reached by the Commissioner in relation to valid reason, is compromised by her consideration under the same heading, of matters relevant to s. 387(h). In contrast to the first instance decision considered by the Full Bench in Sydney Trains v Hilder, in the present case the Commissioner concluded that there was a valid reason for the Respondent’s dismissal – that he knowingly breached the PED Protocol, by using his mobile telephone while driving a forklift, after being trained in, and adequately informed about, the protocol.

[83] The significant error of law in the first instance decision considered by the Full Bench in Sydney Trains v Hilder, was that the finding there was no valid reason for the dismissal was made without taking into account the materially relevant considerations. In that case, the error was obvious – there was a conclusive finding made in relation to valid reason as provided in s. 387(a) without reference to the relevant principles and based almost entirely on considerations that were properly matters relevant to s. 387(h).

[84] In the present case, there is no such apparent error. The Commissioner applied the relevant principles and made a finding that there was a valid reason for dismissal, which is not challenged in the appeal. The finding in relation to valid reason had regard to the fact that the Respondent breached a safety procedure, the purpose of the procedure and the consequences of the breach. It was only after reaching her conclusion in relation to s. 387(a) that the Commissioner went on to separately consider matters relevant to s. 387(h). While s. 387(h) was considered immediately after s. 387(a), and the consideration is followed by a finding at [56] that the dismissal was harsh, that finding is not linked to consideration of whether there was a valid reason..

[85] Further, we find that whilst the Commissioner considered s.387(h) prior to considering other key factors that led to the Commissioner’s finding of harshness, this does not establish that the other factors were not considered at all before arriving at her finding that the dismissal was harsh and her ultimate finding that the dismissal was unfair.

[86] The Commissioner’s finding that the dismissal was unfair because it was harsh, is made at [69], at which point the Commissioner had set out her consideration of the matters in s. 387(b) – (g).

[87] As we have noted above, the matters in s. 387(b) to (g) turn to various considerations regarding and relevant to process. It is worth noting that it is open to the Commission to find no deficiencies in the process followed in effecting the dismissal and in the lead up to it but that the dismissal was nevertheless harsh. We find there was nothing in the findings the Commissioner made in relation to s. 387(h) that could have been undermined by her findings with respect to s. 387(b) – (g). . In this regard, the matters in s. 387(b) to (g) were not seriously contested in the proceedings before the Commissioner, and neither are her findings in relation to these matters contested in the appeal.

[88] In those circumstances, the Appellant’s submission that the Commissioner fundamentally misunderstood the statutory task required to be undertaken and the error resulted in the Commission’s discretion miscarrying, such that on this error alone permission to appeal should be granted and the decision quashed, cannot be sustained. There is no basis to go behind the Commissioner’s decision on the basis of what is essentially a formatting issue, where there is no error in the decision that goes to jurisdiction. In the circumstances of this case, to accept ground 1 would elevate form over substance. Appeal ground 1 is rejected.

[89] Appeal ground 2 asserts that the Commissioner’s error in ground 1 was compounded in the manner she dealt with s. 387(h) of the FW Act and that the Commissioner limited her consideration under that section to matters raised by the Respondent and did not consider (or have proper regard to) matters relied on by the Appellant. These matters are said to be the Appellant’s obligation to uphold safety standards in the workplace; the nature and extent of the Respondent’s breach of the applicable safety procedures; and that the Respondent’s length of service and seniority meant that he should have known better than not to comply with the Appellant’s safety procedures.

[90] We do not accept that the Commissioner failed to consider these matters or to have proper regard to them. We accept the Respondent’s submissions that on a fair reading of the Commissioner’s decision, these matters are considered. The Commissioner set out the contents of the PED Policy and the evidence in relation to its introduction and dissemination in the workplace. The Commissioner also noted that the Applicant knew about the Policy or that he should have known how to access it given the length of his service with the Appellant. Further, the Commissioner set out the facts surrounding the Respondent’s breach of the PED Policy in the decision.

[91] In relation to the Respondent’s length of service, it was open to the Commissioner to conclude that the lapse of judgement on his part that led to the breach was genuine and momentary. As the Appellant correctly points out, in Singh v Sydney Trains the Commission found that an employee’s length of service and the expectation that they be familiar with an employer’s safety policies is a matter that might tell against a finding of harshness. However, in that case, it was telling that the dismissed employee had not expressed any remorse or contrition for his actions. Further, it was noted in that case that the employee had engaged in a “belligerent denial of wrongdoing”.

[92] In the present case, the Commissioner acknowledged the length of the Respondent’s service and that given his employment history the Respondent would have known how to access the Policy, which he knew about. The Commissioner also considered that the PED Policy and the terms in which it was explained were clear and well-defined and set out the Appellant’s expectations in a manner such that employees could not be mistaken about where and when they could use a PED.

[93] The Commissioner balanced these matters against considerations that the Respondent had no disciplinary issues and clean record and was a dedicated and loyal employee. Further balancing considerations were that the Respondent had not attempted to hide his breach, apologised for his actions, was clearly and genuinely remorseful and had provided reasons for his momentary lapse of judgement. We do not accept that in noting that no injury or harm was caused by the incident, the Commissioner had regard to an irrelevant consideration. The Commissioner found a valid reason for dismissal and considered this matter under s. 387(h). Implicitly the Commissioner acknowledged the significance of the Respondent’s breach and the importance of the PED Protocol.

[94] The Commissioner dealt with these matters in her consideration under s. 387(h) and for reasons we have set out in relation to ground 1, the fact that the Commissioner dealt with the s. 387(h) considerations immediately after those relating to s. 387(a) and under a combined heading, does not constitute a failure to weigh them in the overall consideration of whether the Respondent’s dismissal was unfair. Appeal ground 2 is rejected.

[95] In appeal ground 3, the Appellant contends that the Commissioner erred in finding that Ms Addison took a zero-tolerance approach to the breach and did not genuinely consider the matters raised by the Respondent. In its submissions in relation to this ground the Appellant focused on an assertion that because certain aspects of Ms Addison’s evidence were unchallenged, it should have been accepted by the Commissioner in the following respects.

[96] Firstly, Ms Addison’s evidence was that she weighed up the decision to dismiss the Respondent and considered his long period of some 23 years’ service, the explanation for the breach, his regret and the fact he had a clean disciplinary history. Secondly, Ms Addison’s evidence was that on balance, she decided termination of employment was appropriate given the seriousness of the breach, the Respondent’s knowledge of the Policy and that breach may lead to dismissal. Thirdly, Ms Addison said that the Respondent does not have a zero-tolerance policy but treats each breach based on all the circumstances including seriousness, whether the employee is aware of the requirements of the policy breached, the employee’s disciplinary history and any other relevant matters. The failure of the Commissioner to accept that evidence was said to have led to significant errors on the part of the Commissioner which were foundational to her findings of harshness.

[97] While we accept that Ms Addison’s evidence on the three matters identified in the appeal was not considered in detail by the Commissioner in her reasons, the decision records that Ms Addison stated she did consider the matters raised in mitigation by the Respondent at [54] and observed (as recorded at [61] and [62]) that the Respondent was provided with an opportunity to provide reasons why his employment should not be terminated and that the response was considered prior to the decision to terminate the Respondent’s employment being made. The Commissioner also noted Ms Addison’s evidence that the Appellant does not have a zero-tolerance approach to breach of the PED Policy in a “High Risk Area” and does not make termination of employment an automatic outcome for such a breach.

[98] We do not consider that it was necessary for the Commissioner to make a finding as to whether Ms Addison’s evidence on these points should be accepted or not. Such a finding was not foundational to the conclusion in relation to harshness and the overall finding that the dismissal was unfair. Consistent with the provisions of s. 387 of the FW Act, the Commissioner undertook the required exercise of weighing the matters in s. 387 and determined that the mitigating factors raised by the Respondent outweighed the matters raised by the Appellant. This exercise can be, and is, frequently undertaken, on the basis that evidence about motivation or belief of a decision maker is weighed in the overall exercise of assessing whether a dismissal is unfair, without a finding being made as to the truthfulness of the evidence. The finding in the present case was that regardless of whether Ms Addison did or did not have regard to the matters identified in her evidence, those matters considered objectively, did not outweigh the matters raised by the Respondent in mitigation and that for this reason the dismissal was unfair, because it was harsh.

[99] The Appellant also submits in relation to this ground, that the finding that the Appellant complied with s. 387(b) and (c) is inconsistent with later findings to the effect that Ms Addison did not genuinely consider matters raised in mitigation by the Respondent. We do not accept that there is an inconsistency in the findings. As we have already noted, the finding in relation to harshness was not based on the genuineness or otherwise of Ms Addison’s consideration of the mitigating factors raised by the Respondent, but rather, by weighing all the considerations and concluding that the Respondent’s dismissal was, on balance, unfair because it was harsh. The Commissioner’s findings in relation to Ms Addison were that her approach to the dismissal of the Applicant was inconsistent with the Appellant’s approach to breaches generally. This finding was open to the Commissioner on the evidence. Ground three is rejected.

[100] Ground 4 relates to ground 3 and asserts that the Commissioner erred by standing in the shoes of the employer and substituting her own view about what the employer should done the harshness of the dismissal. The Appellant refers in support of this ground to the judgement of Moore J in Walton v Mermaid Dry Cleaners. 61 The relevant passage is as follows:

“In my opinion the evidence does not establish that the employer had a valid reason for terminating the employment of Mr Walton. I should, however, make plain – and this has been made plain in many cases decided by this court – that it is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct, and in these proceedings I have concluded that it did.” 62

[101] Firstly, the observation of Moore J is made in relation to whether there was a valid reason for dismissal. It does not establish as a general principle, that the Commission will not over-rule an employer’s decision to dismiss an employee simply on the basis that the employer contends that there was a valid reason for dismissal. It is well established that a valid reason for dismissal is one that is sound, defensible and well founded. 63 Where a dismissal is based on conduct, as it was in the present case, the consideration of whether there was a valid reason for dismissal requires an objective assessment of whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.64 Further, the question of whether a dismissal is unfair, is answered by reference to all matters in s. 387 of the FW Act, which includes at s. 387(h) any other matter that the Commission considers relevant.

[102] Reaching a contrary view to that of the employer about the unfairness of a dismissal, after properly considering all relevant matters, does not amount to standing in the shoes of the employer. We do not accept that the Commissioner did this and ground 4 is rejected.

[103] Ground 5 asserts that the Commissioner erred in determining that reinstatement was an appropriate remedy on the basis of: the factual errors asserted in ground 3; having regard to a statement of Mr Renfrey (who did not give evidence and whose statement was not relied on by the Respondent) and by misunderstanding the Appellant’s evidence about why it had lost trust and confidence in the Respondent. As the Appellant points out, the Commissioner’s decision on remedy involved the exercise of discretion, and it must demonstrate error of the type that permits an appellate court to interfere with discretionary decisions of that nature.

[104] In our view there is no such error in the present case. For the reasons given in relation to ground 3 of the appeal, we do not accept that the Commissioner made factual errors, much less significant errors. We accept that Mr Renfrey’s evidence should not have been considered given that the Respondent did not rely on it. However, we do not accept that the evidence was critical to the decision to reinstate the Respondent. Mr Renfrey was a co-worker. Similar evidence was also given by a Supervisor employed by the Appellant. Further, there was no dispute that in the Respondent’s 23 years of service, he had an impeccable safety record. Accordingly, to the extent that the Commissioner was in error to consider the evidence of Mr Renfrey, we do not consider that the error was significant so that it caused the discretion to decide to reinstate the Respondent to miscarry.

[105] Finally, we do not accept that the Commissioner misunderstood the Appellant’s case that it had lost trust and confidence in the Respondent. The Commissioner had regard to the Appellant’s evidence, but as the Respondent’s submissions point out, was not limited to that evidence in determining whether reinstatement was inappropriate. The Commissioner had also made findings about the Respondent’s work record, his honesty during the investigation and his remorse for the incident. The Commissioner was not in error to have regard to those matters and to decide that reinstatement was appropriate in all the circumstances.

Conclusion

[106] We are satisfied that the grant of permission to appeal would be in the public interest. For reasons which we articulate in this decision we consider that the appeal raises issues of general application in respect to the approach to addressing the matters in s. 387 of the FW Act. However, we dismiss the appeal because we are satisfied that there was no appealable error in the Commissioner’s decision. We order as follows:

1. Permission to appeal is granted.

2. The appeal is dismissed.

VICE PRESIDENT

Appearances:

Mr J Darams of Counsel for the Appellant\

Mr P Doyle of Counsel for the Respondent

Hearing details:

2021.

By telephone.

7 October.

Printed by authority of the Commonwealth Government Printer

<PR737620>

 1   [2021] FWC 2765.

 2   PR733245.

 3   [2021] FWC 2765 at [15].

 4   Ibid at [16].

 5   Ibid at [17] – [18].

 6   Ibid at [20] – [21].

 7   Ibid at [22]-[23].

 8   Ibid at[24].

 9   Ibid at [25] – [35].

 10   Ibid at [28].

 11   Ibid at [46].

 12   Ibid at [49].

 13   Ibid at [48].

 14   Ibid at [49].

 15   Ibid at [50]

 16   Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at

[17] per Gleeson CJ, Gaudron and Hayne JJ

 17   Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [43]

 18   O’Sullivan v Farrer and Another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ;

applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; Coal

& Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [44]-[46].

 19   (2010) 197 IR 266 at [27].

 20   Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30].

 21   House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

 22   Ibid.

 23   Sayer v Melsteel [2011] FWAFB 7498 at [14]; and Sydney Trains v Hilder [2020] FWCFB 1373 at [24].

 24   Soliman v University of Technology, Sydney [2012] FCAFC 146 at [53], [55] – [57].

 25   Soliman v University of Technology, Sydney [2012] FCAFC 146 at [56].

 26   Sipple v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 2586 at [18].

 27   See, BHP Coal Pty Limited v Schmidt [2016] FWCFB 1540 at [8]; and Bluescope Steel Limited v Knowles [2020] FWCFB 3429 at [41].

 28   Bluescope Steel Limited v Knowles [2020] FWCFB 3429 at [61e].

 29   See Singh v Sydney Trains [2019] FWC 182 at [345] on appeal in Singh v Sydney Trains [2020] FWCFB 884 at [31].

 30   [2016] HCA 22, 331.

 31   Federation Training v Sheehan [2018] FWCFB 1679 at [53] citing Wadey v YMCA [1996] IRCA 568.

 32   Bluescope Steel Limited v Knowles [2020] FWCFB 3429 at [61e].

 33   (Sydney Trains at [30],[38]).

 34   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 35   Coal & Allied Operations v AIRC (2000) 203 CLR 194 at [21] (citing House v King); Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [20]

 36   [2018] FWCFB 1679.

 37   [2020] FWCFB 1373.

 38   Ibid at [30.

 39   Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 4552 at [7].

 40   [2021] FWC 2765 at [38]

 41   Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

 42   Monash University v Michael Meaney [2019] FWCFB 2978 at [41]

 43   Diaz v Anzpac Services (Australia) Pty Limited [2016] FWCFB 7204 at [13]

 44   [2021] FWC 2765 at [49]

 45   [2019] FWC 182 at [345].

 46   [2020] FWCFB 3429 at [61](e).

 47   (1996) 142 ALR 681.

 48   Ibid at 685.

 49   [2021] FWC 2765 at [55]

 50   Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [18]; Sawyer v Melsteel [2011] FWAFB 7498 at [14].

 51   [2020] FWCFB 7774.

 52   Ibid at [

 53   Ibid at [24].

 54   Explanatory Memorandum to the Fair Work Bill at paragraph [1541].

 55   (1995) 185 CLR 410.

 56   at 465-468

 57   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines

(1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

 58   [2020] FWCFB 1373 at [24].

 59   [2020] FWCFB 1373 at [24].

 60   [2020] FWCFB 1373 at [25].

 61   (1996) 142 ALR 681.

 62   Ibid at 685.

 63   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

 64   Bista v Glad Group Pty Ltd [2016] FWC 3009.