Fair Work Act 2009
Section 604 - Appeal of decisions

Qube Ports Pty Limited
v
Rudy Burkhardt
(C2022/1511)

Qube Ports Pty Limited
v
Adrian Pedder
(C2022/1512)

Qube Ports Pty Limited
v
Craig Miller
(C2022/1513)

Qube Ports Pty Limited
v
Igor Butsenko
(C2022/1514)

Qube Ports Pty Limited
v
Richard Iki
(C2022/1515)

Qube Ports Pty Limited
v
Tym Brazel
(C2022/1516)

Appeals against decision and order [2022] FWC 281 of Commissioner Riordan at Sydney on 28 February 2022 in matter numbers U2021/9115, U2021/9181, U2021/9183, U2021/9185, U2021/9190 and U2021/9192

[1] Qube Ports Pty Limited (Qube or the appellant) has lodged Notices of Appeal 1, for which permission to appeal is required, against a decision and orders made by Commissioner Riordan on 28 February 2022 in six unfair dismissal applications jointly heard and determined (Decision).2

[2] The respondents to the appeals are former shift managers of Qube at Fremantle port in Western Australia: Rudy Burkhardt, Adrian Pedder, Craig Miller, Igor Butsenko, Richard Iki and Tym Brazel.

[3] The Commissioner decided that each applicant had been unfairly dismissed and ordered each be reinstated with consequential orders for back payment of wages and continuity of service.

[4] On 16 March 2022 the Decision and orders were stayed pending determination of the appeals. 3

[5] We heard the appeals jointly on 8 April 2022. The appellant and respondents were legally represented, with permission.

Background

[6] Qube conducts stevedoring operations, including at Fremantle port.

[7] The unfair dismissal applications before the Commissioner arose from common circumstances at the Fremantle port between July and September 2021. Stevedores employed by Qube were taking protected industrial action. Each applicant was a shift manager and was asked to perform work, which the Commissioner found to be stevedoring work. The shift managers declined to do so and were dismissed for allegedly not following a lawful and reasonable direction.

[8] Some differences exist in the personal circumstances of each applicant (such as age, length of service and qualifications) and in the nature or timing of Qube’s request of each to perform work and the reason(s) each declined the request, though each cited ‘safety’. Each applicant was, on dates that varied, suspended and issued a show cause letter. Prior to being dismissed, each applicant, through common solicitors, engaged in correspondence with Qube whereby each denied the allegation and contested the proposition that Qube’s direction was lawful and reasonable.

[9] Each applicant was dismissed by letter (Mr Burchardt on 21 September 2021 and Messrs Pedder, Miller, Butsenko, Iki and Brazel on 24 September). The reason for dismissal was common: 4

“… Qube is now satisfied that you failed to follow a lawful and reasonable direction on [dates] and that your conduct constituted serious misconduct in this regard. Your unsatisfactory responses and lack of contrition have failed to show cause as to why your employment should not be terminated and have caused a further diminution in Qube’s trust and confidence in your ability to perform your duties in the important role as a Shift Manager. Qube is now of the view that the requisite trust and confidence cannot be restored.”

Decision

[10] After setting out the applicants and respondent submissions at [15] to [82] of the Decision, the Commissioner proceeded to consider the merits. The Commissioner observed at [87]:

“This present case basically swings on the issue of whether the direction given by the Respondent to the Applicants was a lawful and reasonable direction, a direction which was subsequently ignored by the Applicants which resulted in their summary dismissal for serious misconduct.

[11] We return to this point in considering appeal grounds 3, 4 and 5.

[12] In relation to the evidence called, the Commissioner observed that contested facts existed sufficient to “create confusion and uncertainty”. 5

[13] The Commissioner proceeded to deal with whether a valid reason existed for the dismissals (s 387(a) FW Act). He observed that “the first issue to consider is whether the tasks that were required to be performed by the Shift Managers were incidental to their roles”. 6

[14] Having found that the shift managers were asked by Qube to perform stevedoring work, and after considering Qube’s internal position description for a shift manager and related evidence, the Commissioner observed that “I am not certain that a direction to a Shift Manager to perform stevedoring work is a legal direction”.

[15] The Commissioner found that contractual terms of two of the six shift managers (Messrs Pedder and Brazel) differed from the others, but even with respect to those two managers the Commissioner concluded that “I am not convinced that the wording in the contracts of Mr Pedder and Mr Brazel extend a right to the Respondent for these two Applicants to work outside their utilised skill set and demarcation boundary.” 7

[16] The Commissioner referred (at [102], [107] and [140]) to the 1998 waterfront dispute and stated that: 8

“This historical understanding and the folklore surrounding the ’98 dispute, clarifies the perimeter of the relationship, ie, management performs management duties, stevedores perform stevedoring duties. That is the industry, that is the demarcation, they are the ‘circumstances’.”

[17] After characterising the waterfront as an inherently dangerous and highly regulated workplace, the Commissioner observed that: 9

“Shift Managers are not required to perform work that is described as ‘stevedoring work’ under the Award. They are involved in supervision and planning (see [95]-[96] above). I do not accept the driving of cranes, forklifts or other machinery to be the incidental work of a Shift Manager. Similarly, I do not accept the moving of chains and gluts to be work which is incidental of the Shift Manager’s role. The packing of chains and gluts is the work of a level 2 Stevedore employee. These tasks are not incidental to the planning and supervision of the work being performed.”

[18] As to the reasonableness of the alleged direction, the Commissioner stated: 10

“I am satisfied that the direction of the Respondent for the Applicants to perform stevedoring work was unreasonable. They were not qualified to do the work, nor was it a common practice for them to perform stevedoring work. I do not accept that the work of a stevedore is incidental to the work of a Shift Manger…”.

[19] On valid reason, the Commissioner concluded: 11

“[110] I find that the directions issued by the Respondent to each of the Applicants were not lawful or reasonable. Therefore, the Respondent did not have a valid reason to terminate the Applicants. Without a valid reason, the termination of the Applicants is harsh, unjust and unreasonable.”

[20] The Commissioner made findings concerning what he described as Qube not being “up front and open” 12 with the shift managers:

“At the meeting on 2 August 2021, Mr Kranendonk was everything but definitive when answering questions from the Shift Manager, especially in relation to the requirement to perform the work of the striking stevedores.” 13

“Under cross-examination, Mr Kranendonk eventually testified that the Applicants were going to be required to perform stevedoring work as part of his 4 step plan to ensure the on-going operation of the port. Mr Bell had no hesitation in confirming the requirement and expectation of the Shift Managers performing stevedoring work during this time. The Applicants all expected this scenario to be the case, but Mr Kranendonk refused to be up front and open with the Applicants.” 14

[21] On this issue, the Commissioner concluded:

“The Respondent’s communication strategy was poor. There was no reason why the Shift Manager could not read the confidentiality deed before being requested to sign it – it did not contain any secret strategy or pearl of wisdom. It was a plain confidentiality deed. The fact that such a document was actually needed shows there was a lack of trust with the Shift Managers anyway.” 15

“Mr Kranendonk was deliberately evasive, secretive and vague when dealing with his Shift Managers in relation to the work that they would be performing during the protected action of the stevedoring employees. His refusal to allow the Shift Managers to read a simple confidentiality agreement before they signed it on July 29 was bizarre and ridiculous. His refusal to discuss his plan to use staff labour and labour hire to operate the port until the Shift Managers signed the confidentiality agreement is equally strange.” 16

[22] Having pronounced the dismissals unfair on this basis, the Commissioner proceeded to consider ss 387(b) to (g) of the FW Act in the event that he was “wrong” in his conclusion about valid reason. We return to this issue in considering appeal ground 1.

[23] On ss 387(b) and (c), the Commissioner found that the shift managers had been notified of the reasons for their dismissal and were given an opportunity to respond to Qube’s show cause correspondence. The Commissioner assessed these as “neutral” considerations. 17 We return to this issue in considering appeal ground 2.

[24] The Commissioner also assessed ss 387(d), (e), (f) and (g) considerations as “neutral”.

[25] The Commissioner then turned to s 387(h) (any other matter considered relevant) at [117] to [153]. In this lengthy part of the Decision, the Commissioner considered various matters including discussions between Qube and some of the applicants in advance of the show cause letters (including Qube’s conduct which the Commissioner described as “the most bizarre circumstance that I have ever heard throughout my career” 18), the reasons advanced by the applicants for refusal, the references in evidence to the term ‘scab’, whether the applicants had repudiated their contracts (which the Commissioner found they had not19) and Qube’s approach to communication (which the Commissioner described as “poor” and “deliberately evasive, secretive and vague20).

[26] At this advanced point in the Decision, the Commissioner made a finding of credit (“where there has been contested evidence, I prefer the evidence of the Applicants over Mr Kranendonk”). 21

[27] On merits, the Commissioner concluded: 22

“[156] Following the obiter in Mt Arthur, I am satisfied and find, for the reasons identified above, that the Respondent did not have a valid reason to terminate the Applicants. The Direction issued by the Respondent to the Applicants was not lawful or reasonable. The work that they were ultimately required to perform was not incidental to their role. Any termination without a valid reason naturally results in the termination being harsh, unjust and unreasonable.

[157] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, then I find that their termination was harsh and unjust for the reasons identified above.”

[28] Having found the dismissals unfair in the absence of a valid reason and in any event to have been harsh and unjust, the Commissioner then turned to the question of remedy.

[29] The Commissioner ordered that each shift manager be reinstated to their former role at the Fremantle port for the following reasons: 23

“[171] I do not accept that the requisite level of trust and confidence could not be re-established with the 6 Applicants in order to allow the Applicants to continue their career with the Respondent. Mr Kranendonk and Mr Lee appear to be very reasonable people. I believe that they could get on with anyone, particularly Mr Kranendonk, who seems to have the type of personality that he could walk into any pub in Australia and within 5 minutes not be lonely or thirsty for the rest of the night. I have taken this into account.

[172] It is not in dispute that the primary unfair dismissal remedy in the Act is reinstatement. All of the Applicants want to be reinstated. The Australian Parliament clearly wanted reinstatement to be the preferred outcome of any unfair dismissal application. I have taken this into account.

[173] Based on the obiter and Perkins and Nguyen, I am satisfied and find that the requisite trust and confidence can be re-established between the Applicants and the Respondent. I note that none of the Applicants were dismissed for unsatisfactory performance. All of the Applicants are keen to resume their careers with the Respondent.”

[30] The Commissioner made consequential orders for backpay (including superannuation) and continuity of service.

The Appeal

[31] By Amended Notice of Appeal, Qube advance ten grounds of appeal. The appeal grounds take issue with the Commissioner’s findings, conclusions and orders on both merit and remedy:

● Ground 1: the Commissioner made a jurisdictional error by determining that the dismissals were unfair based solely on s 387(a) considerations, rather than an overall assessment of ss 387(a) to (h);

● Ground 2: the Commissioner erred in assessing s 387(b) and (c) considerations as “neutral” when they ought to have weighed against a finding that the dismissals were unfair;

● Grounds 3, 4 and 5: the Commissioner made jurisdictional errors in concluding that there were no valid reason for the dismissals;

● Ground 6: the Commissioner erred in concluding the dismissals were harsh and unjust even if there was a valid reason;

● Ground 7: the Commissioner gave inadequate reasons;

● Grounds 8 and 9: the Commissioner made errors of fact and law in ordering reinstatement; and

● Ground 10: the Commissioner failed to make necessary findings of fact and failed to deal with all relevant issues.

[32] Ground 10, as originally pleaded, alleged bias on the part of the Commissioner. In the Amended Notices of Appeal, this contention was not pressed. In lieu, Qube contends that the Commissioner’s process of fact-finding miscarried.

[33] Qube’s Amended Notices of Appeal provide additional particulars with respect to grounds 3 and 4 (valid reason). Qube developed each of its grounds of appeal in written and oral submissions.

Submissions

Qube

[34] Qube contend that appeal grounds 1, 3 and 10 establish jurisdictional error. It says that each in its own right is a basis for granting permission to appeal and quashing the Decision.

[35] In relation to the Commissioner’s finding on valid reason, Qube submit that significant errors of fact, of law and in procedural fairness arose such that the finding is contrary to the evidence, irrational and wrong at law.

[36] Qube contend that the Commissioner, by focussing solely on whether Qube’s direction to the shift managers was lawful and reasonable, failed to consider, whether as a matter of fact, each shift manager failed to perform their contractual duties and not merely comply with a direction. Qube submit that each shift manager repudiated their contracts of employment by failing to perform contractual work that was reasonably required of them. In particular, Qube submit that by failing to agree to “consolidate the yard” the shift managers acted in breach of their employment contracts. Qube contend that such a requirement fell within the scope of their employment.

[37] On the question of a direction to perform work, Qube submit that the Commissioner made inconsistent and unclear findings as to whether a direction was issued, to whom and its terms. In particular Qube point to evidence of individual discussions between Qube and each of Mr Burchardt and Mr Miller, distinct from discussions with the other shift managers. Qube submit that the Commissioner erred in treating its discussions with one shift manager as a basis for drawing conclusions about a direction given to others.

[38] Qube submit that the Commissioner was wrong to place reliance on the internal position description for shift managers in circumstances where the evidence was that none of the shift managers had been aware of the position description at the time they entered into their contracts of employment. In the alternative, Qube submit that the level of reliance placed by the Commissioner on the position description was excessive.

[39] Qube submit that the Commissioner’s finding of valid reason miscarried because the Commissioner wrongly placed reliance on a finding that the work requested of the shift managers was ‘stevedoring work’ and not the work of managers. Qube submit that two errors arose in this finding: an error of fact (Qube’s request was not to perform work beyond the manager’s contractual obligation, or beyond their qualifications or that was unsafe) and an failure of procedural fairness. Qube submit that views expressed by the Commissioner about the demarcation between stevedores and managers on the Australian waterfront were not supported by evidence and, in any event, not put to Qube or its witnesses for response in advance of making his findings.

[40] More generally, Qube submit that the Commissioner’s fact-finding miscarried because he made findings relating to the shift managers as a collective instead of making separate findings relevant to each shift manager. Qube submit this was a significant error in approach given that the evidence before the Commissioner was that the managers’ contracts were not identical, that discussions were not held with all managers as one collective, and the managers’ reason(s) for refusing to work in the face of protected action by stevedores was not identical.

[41] Qube also submit that the Commissioner’s reasons were inadequate and that on material issues the Commissioner either made no findings or gave no reasons for his findings. Qube, for example, submit that no reasons were given as to why the Commissioner found that trust and confidence remained sufficiently intact such that a reinstatement order should be made. More generally, Qube point to the myriad of references in the Decision where the Commissioner indicates that he “takes this into account”. Qube submits that the Commissioner did not indicate how doing so weighed in relation to the findings or conclusions that followed. Qube submit that as a consequence, and notwithstanding the length of the reasons, it is unable to discern why it lost the case and why it was ordered to reinstate the managers.

[42] Finally, Qube submit that should the decision be quashed then, given the significant errors of fact and errors in approach to fact-finding, it is not possible for this full bench to redetermine the matter. Qube submit that the matter should be remitted to a different single Member for redetermination.

The respondents

[43] Being commonly represented on the appeals, the respondent shift managers made a collective submission. Each contend there is no appealable error in the Decision or orders, that permission to appeal should be refused and that the appeal should be dismissed.

[44] The respondents submit that grounds 2, 3, 4, 6, 8, 9 and 10 of the Amended Notice of Appeal assert errors of fact which either do not exist on a fair reading of the evidence and Decision, or which (in the alternative) are not significant errors of fact.

[45] The respondents submit that, contrary to the submissions of the appellant, the Commissioner made a finding of credit to the effect that their evidence and recollection of events was more reliable than that of Qube’s principal witness (Mr Kranendonk), and to be preferred.

[46] The respondents submit that in these circumstances the alleged errors of fact are not errors at all because they are supported by the evidence of the managers. The respondents submit that effectively Qube is seeking to re-run its case on appeal, and this is impermissible.

[47] The respondents submit that the alleged jurisdictional errors are not of a kind that meet the description of jurisdictional error, material error or attract the public interest in the sense of requiring appellate intervention. For example, the respondents submit that even if the Commissioner’s formulation as to the effect of s 387(a) was wrong, it was not a material error because the Commissioner’s subsequent consideration of ss 387 (b) to (h) (and in particular his finding of harshness) led to the conclusion that the dismissals were unfair.

[48] On valid reason, the respondents submit that a factual basis for making relevant findings existed and that the conclusion reached was not irrational or inconsistent with the evidence. In particular, the respondents submit that the Commissioner was entitled to place the weight he did on the internal position description. Doing so was a discretionary matter providing no basis for appellate intervention.

[49] Further, the respondents submit that the Commissioner was entitled to make general findings about demarcation between stevedores and managers on the Australian waterfront.

[50] On the issue of alleged inadequate reasons (appeal ground 7), the respondents submit that the appellants are inviting the full bench to read the Decision with an eye keenly attuned to discerning error and that such an approach is contrary to established principle. For example, the respondents submit that when the Decision is read as a whole (as it should), the references by the Commissioner to ‘taking a matter into account’ are readily understood on a fair reading of surrounding context. The respondents further submit that the Commissioner clearly expressed reasons for finding Qube’s direction to perform stevedoring work unlawful and unreasonable, and that the reference at [110] of the Decision to “lawful or reasonable” rather than “lawful and reasonable” was a verbal slip of no appellate consequence.

[51] As to the Commissioner’s finding that the shift managers did not refuse to perform contractual work, the respondents submit this was well open on the evidence. In this respect the respondents submit that it was not error for the Commissioner to take into account not just what a particular shift manager said during meetings with Qube, but also what shift managers said about their intention through their solicitor in subsequent pre-dismissal correspondence with Qube.

[52] The respondents submit that the Commissioner was entitled to draw collective conclusions pertaining to all shift managers concerning relevant matters given the fact that six applications were by consent jointly heard, and in any event the Commissioner did, where appropriate, extract specific evidence relevant to an individual or make an individualised finding.

[53] On the question of remedy, the respondents submit that the appellant simply cavils with the orders made. The respondents submit that the Commissioner did, at [166] to [169] set out reasons why he concluded that trust and confidence was such that it did not preclude a reinstatement remedy. The respondents point to well-established authority that merely because a company officer says that trust and confidence has been lost that does not make it so. The Commissioner made an objective determination open on the evidence. As reinstatement is the primary statutory remedy, the respondents submit that Commissioner’s orders were not made in error.

Consideration

Permission to appeal

[54] An appeal under s 604 of the FW Act is an appeal 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.²⁴ There is no right to appeal and an appeal may only be made with permission of the Commission.

[55] As the Deputy President’s decision was made under Part 3-2 of the FW Act, the Commission must not grant permission unless it considers it is in the public interest to do so. 25

[56] Further, to the extent the appeals concern a question of fact, each appeal can only be made on the ground that the decision involved a significant error of fact. 26 Section 400(2) of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[57] Subsection 604(2) of the FW Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 27 The public interest is not satisfied simply by the identification of error,28 or a preference for a different result.29 In GlaxoSmithKline Australia Pty Ltd v Makin 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 issue 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...” 30

[58] 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.³¹ 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.

[59] In a matter of this kind involving an overall evaluative judgement based on discretionary considerations, and absent appealable error, it is not sufficient that a Full Bench or another Member of the Commission may have come to a different first instance conclusion.

[60] We grant permission to appeal. For reasons that follow, we have concluded that the Decision is affected by appealable error particularly with respect to grounds 1 and 2 of the appeal. Each of these errors is jurisdictional in nature. We do not consider either to be immaterial in terms of granting permission to appeal. The error discerned in ground 1 relates directly to the decision-making process required by the FW Act. It is not a mere technicality. The error discerned in ground 2 mischaracterised two considerations relevant to the required evaluation such that they were not given weight. In that respect, the evaluation was materially compromised.

[61] It is in the public interest that jurisdictional errors of this type be identified and corrected on appeal and that decisions and orders made under Part 3-2 of the FW Act are based on the proper exercise of the statutorily required evaluation.

Ground 1 – determining unfairness based solely on s 387(a)

[62] At [110] and [111] of the Decision, the Commissioner concluded:

“[110] I find that the directions issued by the Respondent to each of the Applicants were not lawful or reasonable. Therefore, the Respondent did not have a valid reason to terminate the Applicants. Without a valid reason, the termination of the Applicants is harsh, unjust and unreasonable.

[111] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, it is necessary for me to deal with the remaining provisions of section 387. I note that the Applicants have raised no issues in relation to sections 387(b-g) of the Act.” (emphasis added)

[63] At [156] and [157] the Commissioner repeats:

“[156] …The work that they were ultimately required to perform was not incidental to their role. Any termination without a valid reason naturally results in the termination being harsh, unjust and unreasonable.

[157] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, then I find that their termination was harsh and unjust for the reasons identified above.” (emphasis added)

[64] The Commissioner found unfairness by adopting two approaches. The first (primary approach) was to conclude that the dismissals were unfair by reference to s 387(a) alone. The second, expressed in the alternative, was to conclude that the dismissals were unfair (in the sense of being harsh and unjust) by reference to at least some of the other considerations in s 387.

[65] Jurisdictional error of the House v The King 32 kind occurs where a decision-maker fails to take into account factors in s 387 to the extent relevant in advance of making an overall assessment whether a dismissal was harsh, unjust or unreasonable. In Titan Plant Hire Pty Ltd v Shaun Van Malsen a full bench observed:33

“That meant, in effect, that the Commissioner only took into account his conclusions with respect to s.387(a)in reaching the conclusion that the dismissal was harsh, unjust and unreasonable. This was contrary to the requirement in s.387 that the Commission must take into account all the matters specified in paragraphs (a)-(h) in considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable. This constituted appealable error of a jurisdictional nature.”

[66] It is readily apparent that the Commissioner concluded, at least in his primary finding of unfairness, that each of the dismissals was harsh, unjust or unreasonable by reference to s 387(a) considerations alone. This was jurisdictional error because the statute required the Commissioner to draw a conclusion as to unfairness only after evaluating all relevant factors in s 387. Whilst material error of this type would not arise in a given case if no other factor in ss 387(b) to (h) was relevant, in these applications at least ss 387(b), (c) and (h) considerations were also relevant.

[67] Further, to the extent that the Commissioner appears to have conducted his alternate (secondary) evaluation by not taking into account ss 387(b) and (c) considerations the Commissioner fell into further error. Contrary to what the Commissioner observed at [111], Qube did at first instance raise issues concerning these sub-sections. We consider these in appeal ground 2.

[68] These errors made by the Commissioner are jurisdictional in nature. They are not cured by his general observations that the absence of a valid reason weighs strongly in favour of a finding of unfair dismissal and that a dismissal may be harsh notwithstanding a valid reason. Although correctly stated, these principles are predicated on the proper exercise of the statutorily required evaluation which, for the aforementioned reasons, did not occur.

[69] Ground 1 is made out.

Ground 2 – assessing ss 387(b) and (c) as neutral

[70] In undertaking his secondary (alternate) assessment of unfairness, and notwithstanding the doubt created by [111] of the Decision as to whether such considerations were ultimately taken into account when conducting his alternate evaluation, the Commissioner dealt with ss 387(b) and (c) at [112] and [113] of the Decision.

[71] Treatment of these issues was, in the context of his lengthy reasons, brief (four short sentences). Each was assessed as “neutral”.

[72] We agree with the appellant that the Commissioner fell into error by characterising each of the ss 387(b) and (c) considerations as neutral.

[73] Having found at [112] that the shift managers “were given an opportunity to respond to the show cause correspondence” it was beyond dispute that each applicant was notified of the reason for their dismissal. Indeed the Commissioner found (at [11]), and it was an undisputed fact, that each letter of termination which followed the show cause process set out the reason for dismissal.

[74] Where an employer has unambiguously informed an employee of the reason for their dismissal then, absent some otherwise unusual circumstance (such as the notification not being in a form or language capable of being received or understood), this consideration would weigh against a finding that a dismissal was harsh, unjust or unreasonable.

[75] Similarly, at [113] the Commissioner found that the shift managers “were given an opportunity to respond to the show cause correspondence”. Leaving aside the Commissioner’s findings of deficiencies in Qube’s dealings with the shift managers prior to the show cause notices being issued (considered in appeal grounds 3, 4, 5 and 6), the extensive communication and correspondence between Qube and the applicants (including through their solicitors) that was in evidence at first instance clearly supports this finding.

[76] Absent circumstances where, for example an opportunity to respond was artificial in the sense that a decision to dismiss had been pre-determined or the response was simply not considered, an employer providing an opportunity to an employee to respond to allegations in advance of making a decision to dismiss is taking action that weighs against a finding of unfairness.

[77] Notwithstanding his findings at [112] and [113], the Commissioner assessed both considerations as “neutral”. In so doing the Commissioner erred. In the circumstances each of these factors weighed at least somewhat against a conclusion that the dismissals were unfair.

[78] Given this mischaracterisation, the Commissioner did not input into the overall evaluation two factors that weighed against the conclusion he ultimately reached in both his primary and secondary (alternate) approach.

[79] Albeit in a somewhat different context but nonetheless apposite, the full bench as currently constituted recently observed that characterising a consideration as “neutral” should be made with some caution. 34 We take the opportunity to expand on that general observation.

[80] Without being exhaustive, a consideration can properly be said to be “neutral” in at least one of two circumstances: where it is simply not relevant (and thus cannot weigh in favour of or against a proposition); or where it is relevant but countervailing considerations exist which broadly cancel each other out such that the consideration cannot be objectively said to weigh one way or the other. This is in contrast to the situation where facts clearly or on balance weigh one way or the other. In that circumstance the consideration is best characterised as weighing in favour or against, as it cannot be strictly said to be neutral. Of course, there are degrees to which a factor may weigh in favour or against. It would not be error to characterise a factor as weighing only slightly or very strongly in favour of or against a proposition if the facts, objectively considered, warrant that course. We emphasise that it is not necessary to explicitly indicate the precise weight to be given to each consideration provided that the relevant considerations are taken into account in accordance with s 387 of the FW Act.

[81] In the matter before the Commissioner facts relevant to both ss 387(b) and (c) were neither irrelevant nor were there countervailing considerations which broadly cancelled each other out. Each weighed against the proposition that the dismissals were unfair though it would have been open for the level of weight to be afforded to each to be, for reasons set out below, less significant than s 387(a) and s 387(h) considerations.

[82] Ground 2 is made out.

Grounds 3, 4 and 5: errors on valid reason

[83] At [156] of the Decision, the Commissioner concluded:

“I am satisfied and find, for the reasons identified above, that the Respondent did not have a valid reason to terminate the Applicants. The Direction issued by the Respondent to the Applicants was not lawful or reasonable. The work that they were ultimately required to perform was not incidental to their role.”

[84] At [137] the Commissioner stated:

“[137] I find that none of the employees had any problem with attending work to perform their normal Shift Manager duties. Whilst they would have had to drive past the picket line to perform their role, they would not be regarded as having crossed the picket line unless they were performing the work of the stevedores who were taking protected action…Neither Mr Miller nor Mr Burkhardt, who were interviewed separately, wanted to cross the picket line, ie they did not want to perform the work of the employees undertaking protected industrial action. Similarly, the other Applicants all stated that they were, at all times, prepared to do their work, but not the work of the stevedores, for a variety of reasons including safety. I have taken this into account.”

[85] It is apparent from these passages, and the Decision read as a whole, that the Commissioner concluded that no valid reason for the dismissals existed because:

● a direction had been given by Qube to each of the managers to work in the face of protected action by stevedores;

● the direction was to perform the work of stevedores;

● the direction was not lawful;

● the work direction was not reasonable; and

● the managers did not refuse to perform their contracted work.

[86] Grounds of appeal 3, 4 and 5 call into issue each of these findings.

[87] On the question of whether a direction was issued, Qube submit that the Commissioner made inconsistent findings.

[88] At [158] the Commissioner concluded:

“I accept the submission from the Applicants that they did not refuse to follow a lawful and reasonable direction at any of the meetings because no instructions were actually given to the Shift Managers.”

[89] Yet at [110] the Commissioner found:

“I find that the directions issued by the Respondent to each of the Applicants were not lawful or reasonable. Therefore, the Respondent did not have a valid reason to terminate the Applicants.”

[90] A similar proposition is advanced at [109].

[91] Inconsistent findings of fact on the face of a decision may give rise to appealable error provided they constitute a significant error of fact (s 400(2) FW Act).

[92] On an examination of the reasons and the evidence, we are not satisfied that these apparently inconsistent findings represent a significant error of fact. A direction was given to each of the shift managers in the sense that each was asked by Qube whether they intended to perform work in the face of protected action by stevedores. Each provided responses, and subsequently a collective response though their solicitors. None attended further for work as each was suspended pending the show cause process and subsequently dismissed.

[93] As the Commissioner’s conclusion on valid reason was predicated on a direction having been issued, and as a direction to work in at least this general sense was given, the decision does not manifest significant error on this account.

[94] At the heart of Qube’s appeal grounds on valid reason is a challenge to the Commissioner’s finding that the direction given was to perform work that was neither lawfully nor reasonably required of the managers.

[95] At [104] the Commissioner stated:

“[104] I accept the evidence of all of the Applicants that they were prepared to perform their work, as per their position description, throughout the industrial dispute. The combined evidence of the Applicants is that they did not want to perform any other functions apart from those associated with their normal roles as Shift Managers. Based on the instruction of Mr Kranendonk on 2 August to “consolidate the yard”, the manager responsible for the area, Mr Minchin, was continuing to work in his role and was automatically the PIC. The only other work for the Shift Managers to perform was stevedoring work, ie, the work of the employees standing outside the gate on the picket line.”

[96] And at [106]:

“[106] Mr Kranendonk acknowledged that he not only wanted the Shift Managers to perform incidental general hand stevedoring work but also any other stevedoring work that they were qualified and certified to perform.”

[97] There is no error of fact in the Commissioner’s finding that each of the shift managers was “prepared to perform their work, as per their position description”. 35 Whilst each, to varying degrees, conveyed an impression during pre-suspension discussions with Qube that each did not wish to cross the picket line for a range of reasons (personal safety, family safety, operational safety, being unqualified to operate stevedoring equipment, potential future conflict with stevedores) none unambiguously declined to work. To the extent there was ambiguity whether the managers were agreeing to work, this was resolved by the pre-dismissal correspondence from their solicitors to the effect that each manager was ready, willing and able to perform their regular contractual duties but not the work of stevedores.

[98] Nor do we consider it to have been in error for the Commissioner to have regard to and give weight to the internal position description of ‘shift manager’. A position description created by an employer governing a role performed in their business is not irrelevant to findings of fact simply because the description is not produced at the time of engagement or not expressly incorporated into contractual terms. Qube’s position description was relevant and its terms, along with other factors (such as the duties which were performed during the course of employment) was clearly relevant to an assessment of what could be lawfully and reasonably required of the shift managers.

[99] Further, whilst the Commissioner attached considerable weight to the position description, we do not consider he did so at the expense of other relevant factors. As a first-instance decision-maker, the level of weight attached was a matter for the Commissioner. It does not represent appealable error.

[100] We conclude that it was reasonably open to the Commissioner to find, as he did, that the shift managers were willing to perform their normal contractual duties. 36

[101] Qube submit this included an obligation to perform work in the yard that could be safely performed consistent with the qualifications and licensing of each manager and not simply managing, supervising and overseeing the work of others. Mr Kranendonk’s desire that the shift managers “consolidate the yard” included clearing space in the yard, moving items and utilising equipment that could overlap with or duplicate work of stevedores, had they not been taking protected action. 37 Qube submit the Commissioner erred in not making a specific finding to this effect.

[102] The Commissioner found the direction not to be lawful or reasonable because such work was “outside their utilised skill set and demarcation boundary”. 38 The Commissioner relied in part on what he referred to as the “historical understanding and the folklore” surrounding the 1998 waterfront dispute:39

“This historical understanding and the folklore surrounding the ’98 dispute, clarifies the perimeter of the relationship, ie, management performs management duties, stevedores perform stevedoring duties. That is the industry, that is the demarcation, they are the ‘circumstances’. There is no dispute that the waterfront is an inherently dangerous workplaces. It is highly regulated for that purpose.”

[103] And at [102]:

“[102] …The waterfront in Australia is a unique workplace. The relationship between the employers and organised labour is accurately described as strained. The waterfront dispute of 1998 has been etched into the folklore of Australia’s industrial relations history.”

[104] These broadly framed propositions by the Commissioner were made without notice to Qube and without providing Qube’s witnesses or counsel and opportunity to respond to such matters. In doing so, Qube was denied procedural fairness on a matter material to the Commissioner’s reasons. That gives rise to appealable error. Further, the propositions were expressed by the Commissioner without an evidentiary basis either in the context of the industry or, more particularly, the business of this employer. The evidence pointed to by the respondents on appeal is about the Award and Qube’s position description and goes nowhere near providing such a foundation. It would be unsurprising if the narrative of significant industrial disputes does not remain contested for years beyond their life. It is unsafe for a decision-maker to place reliance on historical folklore (contested or otherwise) or treat contested matters as akin to taking judicial notice. In so doing, the Commissioner fell into error.

[105] However, whilst these observations were material to the Commissioner’s finding that the direction was unlawful and unreasonable, it was not the sole basis on which that finding was made. The Commissioner also relied on his findings concerning the position description, the (somewhat different) contractual terms of each shift manager and relevant Award terms. These were relevant considerations. Their consideration by the Commissioner was not in error. They, together with the Commissioner’s finding as to a lack of transparency in Qube’s request of its managers to work (considered below), provided a sufficient basis to sustain the finding that a valid reason for dismissal did not exist once the managers had indicated that they were ready, willing and able to perform their contractual role.

[106] That being so, it was not necessary to determine whether performing work that overlapped with the work of stevedores was incidental to or (alternatively, as the Commissioner found) beyond the scope of the role of the managers. Having made clear during the show cause process their willingness to perform their contractual role, that included an obligation to perform all duties reasonably incidental thereto. To the extent the Commissioner used historical folklore to conclude that such work was not incidental he was in error.

[107] Qube take issue with the Commissioner’s finding that the managers did not repudiate their contract. We do not agree. Having found, correctly in our view, that the managers were prepared to perform their contractual work, no question of repudiation arose in the extant circumstances.

[108] The Commissioner also made findings relevant to the level of transparency adopted by Qube in making its request of the shift managers that each perform work in the face of protected action: 40

“Mr Kranendonk asked those present to sign a confidentiality deed before he was prepared to outline his 4-step plan to keep the Port functioning… Unsurprisingly, none of the Applicants signed the Deed.”

[109] The Commissioner added: 41

“I find that it is grossly unfair and unconscionable conduct to ask an employee to sign a document without giving the employee an opportunity to read the document first.”

[110] At [154] the Commissioner concluded:

“[154] Mr Kranendonk was deliberately evasive, secretive and vague when dealing with his Shift Managers in relation to the work that they would be performing during the protected action of the stevedoring employees. His refusal to allow the Shift Managers to read a simple confidentiality agreement before they signed it on July 29 was bizarre and ridiculous. His refusal to discuss his plan to use staff labour and labour hire to operate the port until the Shift Managers signed the confidentiality agreement is equally strange. His response to a legitimate question from Mr Iki, to ‘put two and two together’ and ‘work it out for yourself’ is hardly a conclusive or direct answer.”

[111] As earlier noted, similar findings and conclusions were made by the Commissioner concerning a lack of lack of transparency by Qube at [98], [99], [107] and [145].

[112] These conclusions were reasonably open on the evidence. Whilst the Commissioner assessed this matter in the context of s 387(h) (harshness) we consider that it was also relevant to s 387(a) (valid reason). A direction that an employee perform work requires that employee to have a clear line of sight over what work is required of them. An obligation at common law to perform contractual duties, or an employer lawfully giving a reasonable direction to perform work, requires that minimum level of transparency. To the extent Qube was requiring (as it submitted) no more than the performance of lawfully required contractual duties (including those that could be safely performed and were reasonably incidental to the duties of a shift manager), the absence of transparency on its part concerning what particularly was being asked of its managers had the effect of compromising what otherwise may have been a valid reason for dismissal if contractually required work was then refused to be performed.

[113] In assessing what level of transparency can reasonably be expected, it is proper to take into account contextual matters such as, in this case, the existence of industrial action that was placing pressure on the business and potentially straining workplace relationships. Scope ought to be allowed for understandable caution on the part of a business in fully disclosing its hand in the shadow of such action. This consideration however only goes so far. In order to meet a minimum threshold of reasonableness, a business, even one confronted by industrial action, needs to make clear its work expectations of managers in the wake of such action, especially if it is then minded to take disciplinary action if those employees fail to respond in the manner required. The contextual matters evident here made this aspect more important than in the normal course of affairs.

[114] It follows, given the Commissioner’s finding of a lack of transparency by Qube, which was reasonably open on the evidence, that there was no valid reason for dismissal.

[115] Although we have found error in the reasons by which the Commissioner concluded no valid reason existed, the ultimate conclusion reached was not in error.

[116] Grounds 3, 4 and 5 are not made out.

Ground 6: errors in concluding the dismissals were harsh

[117] For the same reasons we consider Qube’s lack of transparency in communicating to the managers the work they were being required to perform to have compromised what otherwise may have been a valid reason for dismissal, we also consider the dismissal to have been harsh on that basis.

[118] Ground 6 is not made out.

Ground 7: inadequate reasons

[119] Decisions must be read fairly and as a whole. A Decision is capable of manifesting appealable error if reasons are not given or those given are so inadequate or incoherent that an unsuccessful party is unable to reasonably discern the basis on which findings or orders have been made against it. 42

[120] Reasons must articulate the essential ground(s) for reaching the decision and address material questions of fact and law so as to disclose the steps which lead to a particular result. Subject to that qualification, the reasons need not address every detail in the reasoning process or deal with every matter raised in proceedings. The adequacy of reasons depends on the circumstances, including the nature of the statutory function being exercised. 43 Decisions should not be read by an appellate bench with “an eye keenly attuned to discerning error”.44

[121] The Commissioner’s reasons were lengthy. There is nothing unusual about the Commissioner’s detailed recitation of submissions at [15] to [82], followed by a consideration of the merits at [83] to [152], a conclusion on merit at [154] to [161] and then treatment of remedy [162] to [p172]. Broadly speaking, this sequencing was logical and orthodox.

[122] The appellants take issue with two aspects of the reasons, each of which they contend give rise to appealable error: a finding of credit expressed after fact-finding; and the Commissioner’s widespread use of the phrase ‘I have taken this into account’ with little accompanying explanation.

[123] We agree with the appellant that each presents as somewhat unorthodox but for reasons that follow neither gives rise to appealable error.

[124] The Commissioner’s finding of credit appears at [153]. It is the concluding paragraph to the Commissioner’s lengthy consideration of merit. It appears immediately before the conclusion on merit. Whilst from a logical sequencing perspective it would have made more sense for this credit finding to appear before findings were made on contested facts, the sequencing applied by the Commissioner is not nonsensical. The credit finding forms part of the ‘consideration’. It is in that consideration that the Commissioner made findings of fact. It preceded the conclusion on merit. Appealable error may arise if a credit finding is not made on disputed facts that require determination, or if findings on disputed facts are inconsistent with a credit finding and not otherwise explicable. Neither circumstance applies here. The alleged error is a reflection of style and structure rather than a substantive or appealable error.

[125] Somewhat inconsistently, the appellant also contends that the Commissioner failed to make a finding on credit, or made a credit finding that was illogical. We do not agree. Albeit expressed in general terms, a finding on credit was made. The Commissioner had the well-recognised advantage as a first instance decision-maker in observing witnesses and hearing the oral evidence. His credit finding appears to have been made not because Mr Kranendonk was not considered to be “brutally honest” (see [153]) but because of the Commissioner’s view on the reliability of his recall. Whilst it would have been preferable for the Commissioner to explain why he preferred the recall of the shift managers (or more precisely which shift managers) over the recall of Mr Kranendonk, that is an insufficient basis on which the Commissioner’s credit finding can or should be disturbed.

[126] The Decision is replete with a myriad of references to ‘I have taken this into account’.

[127] Reading these references and the Decision as a whole, their context, nature and frequency does not establish appealable error. Narrowly read, some references by the Commissioner to taking a matter “into account” are unhelpfully vague. Multiple vague references of this type can convey an impression of ‘box-ticking’ rather than consideration of matters that inform a decision outcome. However, in other instances the surrounding context provides guidance as to what the Commissioner meant.

[128] Considered overall, we do not consider these references to be mere throw-away lines or passages that did not inform the Commissioner’s conclusions or findings that followed. We are satisfied that the Commissioner’s reasons are not inadequate such that they manifest appealable error on that ground.

[129] Reasons need not address every detail in the reasoning process. A fair reading of the extensive reasons informs Qube as to why it failed to succeed on merit and why orders were made against it even though some references by the Commissioner to taking a matter “into account” are unhelpfully vague.

[130] Ground 7 is not made out.

Grounds 8 and 9: errors in ordering reinstatement

[131] On remedy, the Commissioner concluded: 45

“[169] The Respondent claims to have lost trust and confidence in the Applicants because they have not followed a lawful and reasonable direction, they were not prepared to assist the Respondent to keep the port operational during a critical time for the Respondent, they cannot be trusted that they will simply abandon their employment in the future if this scenario arises again and that their loyalty appears to be aligned with the Union rather than the Respondent.

[170] The Respondent also claimed that there are no vacant Shift Manager roles at Fremantle. The positions of the Applicants have been filled which will create impracticalities if the Applicants were reinstated.

[171] I do not accept that the requisite level of trust and confidence could not be re-established with the 6 Applicants in order to allow the Applicants to continue their career with the Respondent. Mr Kranendonk and Mr Lee appear to be very reasonable people. I believe that they could get on with anyone, particularly Mr Kranendonk, who seems to have the type of personality that he could walk into any pub in Australia and within 5 minutes not be lonely or thirsty for the rest of the night. I have taken this into account.

[172] It is not in dispute that the primary unfair dismissal remedy in the Act is reinstatement. All of the Applicants want to be reinstated. The Australian Parliament clearly wanted reinstatement to be the preferred outcome of any unfair dismissal application. I have taken this into account.”

[132] We find no error in this approach. The Commissioner correctly took into account that the primary remedy for an unfair dismissal under the FW Act is reinstatement. The Commissioner’s references to Perkins and Nguyen at [173] reflected established authority on the issue of reinstatement where trust and confidence are in issue. The decision to order reinstatement was consistent with the principle that merely because a company officer says that trust and confidence has been lost that does not make it so. Indeed, the evidence from Mr Kranendonk was pragmatic: 46

“MR SLEVIN: And so in circumstances if the Commission in these proceedings found that these dismissals were unfair, you would accept that decision, wouldn’t you?

MR KRANENDONK: If that’s the decision that the Commissioner had made, yes.

MR SLEVIN: And if you felt that it might be embarrassing for you that the Commissioner takes a view different to yours, but would you accept the decision of the Commissioner as being a decision you will have to live with, wouldn’t you?

MR KRANENDONK: Correct. Correct.

MR SLEVIN: And if you are ordered to reinstate, you would be able to reinstate these shift managers?

MR KRANENDONK: If there were positions available. Yes”

[133] Qube further submit that the Commissioner fell into error in ordering the reinstatement of Mr Brazel in the face of evidence that Mr Brazel had secured employment with a competitor business. There was no error in the Commissioner’s approach. All applicants including Mr Brazel sought reinstatement. That an unfairly dismissed employee seeking to be reinstated has in the interim secured another job is no reason not to reinstate if the circumstances otherwise warrant. Securing alternate employment is, amongst other matters, conduct that mitigates loss and should not result in a person being denied access to a statutory remedy. A reinstatement order may force that employee to make an election, but there is no artificial impediment to the statutory remedy being accessed or a discretionary order being made simply by virtue of fresh employment having been obtained subsequent to dismissal.

[134] Ultimately the Commissioner made an objective assessment concerning trust and confidence. His reasons included a colourful turn of phrase with respect to Mr Kranendonk (“he could walk into any pub in Australia and within 5 minutes not be lonely or thirsty”) but the issue was nonetheless objectively addressed by the Commissioner’s finding that Mr Kranendonk and Mr Lee were reasonable people who could look beyond the dismissals being overturned and a reinstatement order being made.

[135] Grounds 8 and 9 are not made out.

Ground 10: failure to make necessary findings

[136] This ground advances two broad propositions: firstly, that the Commissioner failed to make individualised findings relevant to each shift manager and instead made collective findings which wrongly conflated the circumstances of one to be the circumstances of all; and secondly, that on some material issues the Commissioner made no findings.

[137] Reading the decision fairly and as a whole, we do not agree.

[138] By consent, the Commissioner heard the six applications jointly. Qube correctly point to the fact that this did not abrogate the Commissioner from the responsibility to make findings relevant to each application sufficient to fully determine each matter.

[139] We are satisfied the Commissioner did so. It was not illogical for the Commissioner, given the broadly common factual matrix (evidenced by the common reason given by Qube for the dismissals) to make common findings and draw collective conclusions. True it was that not all factual matters were identical between applicants. Age, years of service, contractual terms and qualifications differed somewhat. Even more materially there were differing nuances in the evidence about the reason(s) each manager gave for not wanting to work in the face of protected action.

[140] However, at various points in the Decision the Commissioner makes reference to individualised evidence and findings. 47 Whilst the Decision is primarily an expression of collectively made findings and conclusions, it cannot be said that the Decision is wholly so. Further, the evidence was that the shift managers did, during the show cause process, communicate with Qube in a singular manner and as a collective – through a firm of solicitors. It was via this collective and single voice that Qube was ultimately informed by the shift managers that each was ready, willing and able to perform their contractual role but not undertake work they considered beyond those duties. Given this, it was not illogical for the Commissioner to make collective findings and draw conclusions especially on ss 387(a) and (h) matters.

[141] Nor do we consider that the Commissioner failed to make findings on material issues. The issues requiring determination on each application gave rise to extensive evidence and multiple submissions by experienced counsel some of which were advanced in the alternative.

[142] Reasons need not address every matter raised in proceedings. The Commissioner could have been more specific in dealing with some aspects of Mr Kranendonk’s evidence about what was being asked of the managers and what was said in discussions with each. However, it cannot be said that the Commissioner’s failure to engage to that level of detail with Mr Kranendonk’s evidence was appealable error in the face of his credit finding and the reasons read as a whole.

[143] Considered overall, the Commissioner’s decision met the threshold of a sufficient and adequate consideration of the evidence and provision of reasons. The Commissioner did not, in a material sense, fail to make findings or draw conclusions on matters he was required to determine. The Decision did not miscarry on that basis.

[144] Ground 10 is not made out.

Conclusion

[145] In determining the matter by reference to s 387(a) alone, the Commissioner failed to evaluate all relevant considerations required by s 387 of the FW Act.

[146] In his alternate formulation of the Decision, and in conducting the evaluation required by s 387 the Commissioner wrongly failed to give weight to ss 387 (b) and (c).

[147] In light of these appealable errors, permission to appeal is granted.

[148] We allow the appeal with respect to grounds 1 and 2.

[149] We dismiss the appeal with respect to grounds 3, 4, 5, 6, 7, 8, 9 and 10 though with respect to grounds 3, 4 and 5 (valid reason) we have found error in the Commissioner’s reasoning but not the conclusion reached.

[150] The applications require redetermination.

[151] We do not agree with Qube that the applications should not be redetermined by this full bench. Qube’s submission is premised on the proposition that the Commissioner’s credit finding and findings of fact were in error and that evidence before the Commission needs to be assessed afresh. As is apparent from our decision, we have generally not found error in the Commissioner’s fact-finding. Although the Commissioner made appealable errors in assessing s 387(a), his ultimate conclusion that there was no valid reason was not in error.

[152] Nor have we found that the Commissioner made appealable errors of fact or law in ordering reinstatement.

[153] In these circumstances we proceed to redetermine the matter.

Redetermination

[154] We consider it appropriate to redetermine all six applications jointly.

[155] In redetermining the applications we have regard to the evidence and materials before the Commissioner. We adopt the facts as found by the Commissioner save that we have no regard to findings or commentary as to the historical waterfront dispute of 1998 and its legacy. We do not adopt, as we need not do so, the Commissioner’s observation that performing stevedoring work was not incidental to the contractual requirements of the shift managers whose responsibility it was to manage the work of stevedores. We adopt and are informed by but need not repeat the reasons and conclusions we reached when considering appeal grounds 1 to 10.

[156] In relation to matters requiring initial determination in s 396 of the FW Act, we find as follows:

1. Each of the six unfair dismissal applications were made within the period required by s 394(2);

2. Each applicant was a person protected from unfair dismissal;

3. Qube was not a “small business employer” as defined in s 23 of the FW Act. The Small Business Fair Dismissal Code is inapplicable; and

4. No dismissal was a case of genuine redundancy.

[157] We now turn to s 387 considerations.

Valid reason

[158] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. ⁴⁸ In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.

[159] The Commission will not stand in the shoes of the employer and determine what the Commission would have done if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[160] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.⁴⁹

[161] We conclude there was no valid reason for dismissal in each matter.

[162] Each of the six applicants advised Qube prior to being dismissed that they were ready, willing and able to perform their contractual duties. Qube’s lack of transparency in informing each manager the particular duties they were being required to perform in the face of protected industrial action denied each applicant a reasonable opportunity to meet their contractual obligations and comply with their employer’s direction.

[163] Being unable to discern with particularity what was being asked of them, the employees were not in breach of duty. Nor was their conduct misconduct. They did not refuse to perform contractual duties. They did not fail to follow a lawful and reasonable instruction of their employer because the direction to work was not transparent. There being no breach or misconduct, dismissal on that account was not for a valid reason.

[164] This weighs in favour of a finding of unfairness.

Notification of reason for dismissal

[165] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment⁵⁰ and in plain and clear terms.⁵¹

[166] All six applicants were notified of the reason for dismissal in plain and clear terms. The reason was identified prior to dismissal during the show cause process.

[167] This weighs against a finding of unfairness.

Opportunity to respond

[168] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.⁵²

[169] The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.⁵³ Where an 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, that is enough to satisfy this consideration.⁵⁴

[170] A show cause process was conducted by Qube. That process provided a meaningful opportunity for each of the six applicants, though their solicitor, to respond to the allegations of breach and misconduct. Each did so.

[171] This weighs against a finding of unfairness.

Opportunity for support person

[172] This consideration is not relevant as Qube did not refuse, let alone unreasonably, any of the six applicants a support person.

Warnings concerning performance

[173] These matters do not concern performance or competency. This consideration is not relevant.

Size of enterprise and human resource capability

[174] The employer is not a small business within the meaning of the FW Act.

[175] There is no sense in which the size of the employer or its internal human resources capacity mitigated managing workplace or disciplinary matters in a fair manner.

[176] This consideration is not relevant.

Other matters

[177] The lack of reasonable transparency by Qube as to what was specifically being required of the shift managers bears not solely on whether a valid reason for termination existed (s 387(a)). It is also a consideration relevant to s 387(h) as it bears on the harshness of the dismissals given the consequences. Each dismissal occurred absent such transparency. For reasons already expressed and which need not be repeated, we assess this factor under s 387(h) as weighing in favour of a finding of harshness.

Conclusion on merit

[178] Although ss 387(b) and (c) considerations weigh against a finding of unfairness they do not outweigh the consideration under s 387(a) that no valid reason for the dismissals existed. On these applications, the absence of a valid reason is a particularly weighty matter which, properly characterised, outweighs the fact that each of the applicants was given an opportunity to respond (s 387(b)) and was provided reasons for their dismissal (s 387(c)).

[179] That Qube made such provision does not ameliorate the unfairness of these managers being dismissed without a valid reason. Qube was not transparent with the managers in advance of its show cause process or generally. It denied the managers an opportunity to clearly understand what was being asked of them in the face of protected industrial action by those they managed. They were thus denied an effective opportunity to determine whether their employer’s requirements were consistent with their contractual obligations or being reasonably requested. In those circumstances, dismissal for non-compliance with the employer’s requirements was unfair because those very working requirements were not identified by the employer with transparency and particularity.

[180] Had Qube handled the matter differently and in particular had it been transparent about what was being asked of its managers, a refusal to perform contractual duties may have been a breach of contract and, more relevantly, may have provided a valid reason for dismissal. That is not what occurred. In any event, a range of other considerations would apply in those circumstances, including whether any refusal was reasonable having regard to broader workplace health and safety rights and obligations.

[181] As a consequence, each of the dismissals was harsh, unjust and unreasonable.

Remedy

[182] We now turn to remedy.

[183] We do not consider that the evidence establishes an objective basis to conclude that trust and confidence was so compromised by the events leading to dismissal that it would preclude a reinstatement order.

[184] We take to account that, having found the dismissals unfair, that reinstatement is the primary remedy under the FW Act 55 and our earlier findings on grounds 8 and 9 of the appeal. As recently observed by a differently constituted full bench, in circumstances where there is no valid reason for an employee’s dismissal, this will be a material consideration in determining whether reinstatement is appropriate.56 We have so found.

[185] There are no other discretionary reasons not to order reinstatement. It is sought. We note and take into account that not all the circumstances, including the post-dismissal circumstances, of the six shift managers are identical though each seek reinstatement. That one of the dismissed managers has secured alternate employment in the interim is not a reason to not order the remedy sought.

[186] We also take into account our finding that the managers were not in breach of their employment obligations nor was their conduct misconduct.

[187] Having regard to all of the circumstances of each applicant and those of the respondent, including the findings in relation to trust and confidence, we find that reinstatement is the appropriate remedy in each case.

[188] We order that each applicant be reinstated within 28 days of the date of this order.

[189] There are no discretionary reasons not to make an order for continuity of service and back-pay. The back-pay order will include payment of superannuation that would have been payable had each applicant not been dismissed.

[190] However, with respect to back-pay and taking into account the requirements of s 391(4) we will order that remuneration earned by any applicant by way of income from gainful work (whether as employee or contractor) since dismissal and until reinstatement shall be deducted from the quantum of back-pay. We direct each applicant to provide a sworn declaration of such remuneration (if any) to Qube within 28 days of this order. We direct the parties to confer on quantum. A member of this full bench will assist the determination of the terms of any back-pay order if quantum is not agreed.

Disposition

[191] The Commission orders as follows:

1. permission to appeal is granted;

2. the appeals are allowed and the decision and orders of the Commissioner quashed;

3. the applications are redetermined by the full bench;

4. upon redetermination, the dismissal of each applicant is found to be harsh, unjust and unreasonable within the meaning of s 385(b) and s 387;

5. Qube is ordered to reinstate each applicant within 28 days of this decision and order, with consequential orders for continuity of service and back-pay (subject to deduction of any remuneration earned from gainful work (whether as employee or contractor) since the date of dismissal); and

6. each applicant is directed to provide a sworn declaration of post-dismissal remuneration from gainful work (if any) to Qube within 28 days of this order.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740572>

Appearances:

J Tracey and R Minson, of counsel, instructed by M Cochrane, J Allen, M Hamblin and N Dang, with permission for the Appellant.

T Slevin, of counsel, instructed by D Stojanoski, with permission on behalf of the Respondents.

Hearing details:

2022

Adelaide (by video)

8 April

 1   Notices of Appeal 2 March 2022; Amended Notices of Appeal 21 March 2022

 2   [2022] FWC 281

 3   [2022] FWC 588 Anderson DP

 4   Decision [11]

 5   Decision [88]

 6   Decision [93]

 7   Decision [103]

 8   Decision [103]

 9   Decision [108]

 10   Decision [109]

 11   Decision [110]

 12   Decision [99]

 13   Decision [98]

 14   Decision [99]

 15   Decision [145]

 16   Decision [154]

 17   Decision [112] [113]

 18   Decision [129]

 19   Decision [147]

 20   Decision [145] [148] [154]

 21   Decision [153]

 22   Decision [156] [157]

 23   Decision [171] – [173]

24 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne J

 25   Section 400(1)

 26   Section 400(2)

 27   O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] – [46]

 28   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

 29   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 30   [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

31 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

 32   (1936) 55 CLR 499

 33   [2016] FWCFB 5520 at [30]

 34   Thomson v Linx Cargo Care Pty Ltd [2022] FWC 40 at [34]

 35   Decision [104]

 36   Decision [104], [137], [144]

 37   See evidence at PN 1554 (Lee), Statement of Lee (paragraph 73), PN 590 (Pedder), PN 718, PN 734 – 738 and PN 747(Iki), PN 2197, PN 2209, PN 2218 and PN 2307 (Kranendonk) and Statement of Taylor (paragraph 15) and PN 1780 - 1783

 38   Decision [103]

 39   Decision [107]

 40   Decision [127], [130]

 41   Decision [130]

 42   Construction, Forestry, Mining and Energy Union v Kestrel Coal Pty Ltd [2015] FWCFB 2206 at [27]

 43   Soliman v University of Technology [2012] FCAFC 146. See also Barach v University of New South Wales [2010] FWAFB 3307; (2010) 194 IR 259 at [16] and Transport Workers’ Union of Australia v WA Freightlines Pty Ltd [2011] FWAFB 3863; 211 IR 369 at [10]

 44   Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR at 271-272

 45   Decision [169] – [172]

 46   PN 2603 - 2605

 47   For example, [103], [109], [122] – [123], [131], [135], [137], [138] and [143]

48 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]

49 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)

50 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]

51 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)

52 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]

53 RMIT v Asher (2010) 194 IR 1 at 26-30

54 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

 55   Melanie Millington v Traders International Pty Ltd [2014] FWCFB 888 at [66]

 56   Sydney Trains v Andrew Bobrenitsky [2022] FWCFB 32 at [103]