FWAFB 4070
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
Appeal against decision  FWA 1475 of Commissioner Bissett at Melbourne on 16 March 2011 in matter U2010/13014 - valid reason for termination - finding that accident caused by carelessness and recklessness - permission to appeal - reinstatement to position with terms and conditions no less favourable than previous position.
 This is an appeal, for which permission is required, by IGA Distribution (Vic) Pty Ltd (the Company) against decisions 1 and an order2 made by Commissioner Bissett in which she found that the Company had unfairly dismissed Mr. Cong Nguyen (the Applicant) and ordered that he be reinstated in his previous position.
 The background to the appeal may be set out briefly as follows. The Applicant was employed as a forklift driver at the Company’s Distribution Centre in Laverton. On 22 September 2010 there was a collision between the Applicant’s forklift and another forklift. Following the collision, there was an investigation by the Company which included requiring the two employees involved to undergo drug and alcohol tests, interviews with various employees who were at work in the warehouse when the collision occurred and meetings with the Applicant. During the meetings the Applicant was accompanied by a representative of the National Union of Workers (NUW).
 As a result of the investigations, the Company terminated the Applicant’s employment on 23 September 2010. The letter of termination given to the Applicant refers to the reckless and negligent use of the forklift and details the investigation conducted by the Company into the incident. The letter explains the reasons for the Company’s decision to dismiss the Applicant:
“The details of the incident on 22/09/2010 were put to you for your response and explanation prior to a decision being made in respect to your ongoing employment.
In summary it is been put to you that:
You responded that:
As a result of your actions and in accordance with company policy and procedures, your employment will be terminated with notice, effect immediately...
We have taken into account your considerable length of service with the Company in coming to our decision, it does not however mitigate your serious actions and breach of conduct committed by you.”
 The reasons for the termination were also the subject of evidence in the proceedings. These related to the potential consequences of the collision and because it was a health and safety issue. In particular, the Company’s Human Resources Manager came to the conclusion that termination was appropriate because there was nothing in the evidence concerning the collision “that indicates it was just an accident. He deliberately drove his forklift into the other forklift because he was in a hurry.” The Manager also said that the decision to terminate the Applicant’s employment wasn’t taken lightly but it was a decision that needed to be made taking into account the safety of other employees.
 In the decision of 16 March 2011 (the primary decision), the Commissioner considered the relevant provisions of the Fair Work Act 2009 (the Act) and the criteria identified in s.387 which are to be taken into account in considering whether a dismissal was harsh, unjust or unreasonable. The Commissioner concluded that there was not a valid reason for the Applicant’s dismissal as she found on the evidence that, although the collision was caused by his recklessness and carelessness, he had not deliberately hit the other forklift. The Commissioner said:
“ IGA is entitled, and was correct, to treat the collision seriously. That they acted promptly is to their credit. Where an incident with health and safety implications occurs it may well provide a valid reason for dismissal but just because there are health and safety implications does not, in and of itself, provide a valid reason for the dismissal. The surrounding circumstances must be assessed. In this case Mr Nguyen felt pressured to make up time he had lost. He was concerned that he might be given a warning and he was frustrated at the delays.
 On the basis of the evidence before me and the findings I have made with respect to the conduct of Mr Nguyen and the circumstances of the collision I do not find that IGA had a valid reason to terminate Mr Nguyen’s employment in that the decision is not, in my finding, defensible.
 This does not, however, exonerate Mr Nguyen. He was careless and reckless in the matter. His carelessness may have had serious consequences. He should have been subject to appropriate disciplinary action and training. Termination of his employment was however in these circumstances not justified.”
 The Commissioner also took the view that, even if there was a valid reason for the dismissal, there were compelling reasons to consider that the dismissal was harsh. These included: the circumstances surrounding the collision and the concern of the Applicant about completing his work within specified times; the Applicant’s 23 years service with the Company without any history of forklift accidents or disciplinary action; the impact of the termination on the Applicant and his ability to secure other employment given his age and lack of English language skills; and the finding that the collision was not deliberate. It was also noted that the Applicant had not denied his fault in the collision and had expressed remorse for it.
 In these circumstances, and having found that the Applicant’s dismissal was unfair, the Commissioner considered that reinstatement was appropriate. However the Commissioner considered that she did not have adequate information to determine whether the Applicant should be reinstated “into the position he held prior to the termination of his employment or if there are other employment options for him at the site at Laverton.” 3 The parties were given an opportunity in further proceedings to address these issues. In those proceedings, it was submitted by the Applicant that the reinstatement should be to the position which he occupied at the time of dismissal. The Company submitted that the Applicant should not be reinstated, mainly because it had lost trust and confidence in his ability to perform the duties and because of the relations between the Applicant and fellow employees at the warehouse following the collision and the related proceedings. The Company submitted that if the Applicant was to be reinstated, he should be placed in an alternative warehouse at the site, either the Grocery Warehouse or the NDC Warehouse.
 In the decision of 3 June 2011 (the reinstatement decision), the Commissioner considered the evidence and decided that the Applicant would be able to perform the duties of his previous position subject to some re-training 4 and that a proper working relationship with fellow employees could be restored, although it was recognised that there might be some tension in the workplace arising from the reinstatement.5 The Commissioner concluded that it was not a viable option to appoint the Applicant to a position in the Grocery or NDC Warehouses at the Laverton site because of “the substantial difference between the terms and conditions of the two warehouses.”6 Accordingly the Commissioner made an order reinstating the Applicant to the position in which he was employed in the Perishables Warehouse prior to the dismissal. The order made by the Commissioner also maintained the continuity of the Applicant’s employment, provided for a payment to restore lost pay, and required that the Applicant on return to work be given a final written warning with respect to the collision and further training on the safe operation of a forklift and the Company’s requirements for the completion of work tasks.
 In the appeal proceedings, the Company challenged two main aspects of the Commissioner’s decisions: (a) the finding that there was no valid reason for the dismissal and therefore that the termination was unjust; and (b) the finding that it would not be possible to appoint the Applicant into a role in one of the Company’s other warehouses on terms no less favourable than in the previous position.
Valid reason for dismissal
 The Company submitted that the Commissioner erred in finding that there was no valid reason for the dismissal and in then treating that finding as being determinative of the dismissal being unjust. It was contended by the Company that, although the finding as to a valid reason is a very important consideration in any unfair dismissal case 7, it cannot be determinative of the overall unfairness of the dismissal having regard to the criteria identified in s.387 of the Act.
 We have considered the reasoning process adopted by the Commissioner in reaching the conclusion that the dismissal was harsh, unjust or unreasonable including the finding that there was not a valid reason for the dismissal (see s.387 (a)). In this regard, we note that much of the evidence and submissions in the proceedings before the Commissioner was directed at whether the Applicant had deliberately caused the collision between the forklifts. This was understandable given that the decision to dismiss was based largely on the conclusion by the Company’s Human Resources Manager that the collision was not “just an accident” and that the Applicant “deliberately drove his forklift into the other forklift because he was in a hurry.” 8
 In the reinstatement decision, the Commissioner notes that in deciding that the dismissal was harsh, unjust or unreasonable in the primary decision, she also found that:
“— Mr Nguyen did not deliberately cause the collision between his forklift and that of Mr Deralas;
 Although the focus on the deliberateness of the conduct was understandable given the evidence as to the reasons for the dismissal, it is clear that the Commissioner considered a range of other factors. These quite properly included consideration of matters that the Commissioner found frustrated the Applicant, the assertion that there was oil on the warehouse floor, the disputed blood alcohol test and the health and safety issues. The Commissioner’s findings with respect to these matters were open to her on the evidence. However, we think that the Commissioner fell into error in that her conclusion that there was no valid reason to terminate the Applicant’s employment was fundamentally inconsistent with her acknowledgement of the recognised dangers associated with forklifts and this incident in particular. The recognition of those dangers, together with the finding that the collision was caused by the recklessness and carelessness of the Applicant, necessitated a finding that there was a valid reason for dismissal. The issue of whether the Applicant was improperly accused of deliberately colliding with the other forklift is a matter to be considered in the context whether the termination of his employment was fair. In this respect we think the Commissioner confused her assessment of whether there was a valid reason with the overall assessment as to fairness.
 The characterisation of the Applicant’s conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. 10 The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable.
 We have concluded that the Commissioner erred in finding that there was not a valid reason for the Applicant’s dismissal and in determining that, on that basis, the termination was unjust.
 Section 604 of the Act provides that a person who is aggrieved by a decision such as the one made here may appeal to a Full Bench of FWA. However s.400 of the Act limits that right in unfair dismissal cases. It provides:
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 FWA 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.
 As was said by a Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 11:
“ Prior to the introduction of the Act the manner in which an appeal against an unfair dismissal decision proceeded was the same as with appeals from other decisions, but only on the grounds that the Australian Industrial Relations Commission was in error in deciding to make the order. 12 The conventional grounds for granting leave to appeal13 otherwise applied under the Workplace Relations Act 1996, being whether the decision was attended by sufficient doubt to warrant its reconsideration or whether substantial injustice would result if leave were refused. However, even absent the conventional grounds, if the Commission was of the opinion that the matter was of such importance that it was in the public interest that leave should be granted the Commission was required to grant leave. Alternatively, leave could be granted if error could be demonstrated.14
 It can be seen that a significant change to the granting of permission to appeal was wrought by the introduction of the Act.”
 The Full Bench indicated some of the situations in which the public interest might be attracted:
“ Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. 15
 Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
 We consider that the circumstances of this matter, in so far as they raise issues associated with the characterisation of serious safety incidents as valid reasons for the termination of employment, mean that the public interest requirement set out in s.400 of the Act and considered in the decision in GlaxoSmithKline has been met. Accordingly we have decided to grant permission to appeal.
 Having granted permission to appeal, and given the identification of error of the nature referred to in House v The King 16, the appeal proceeds by way of a rehearing.
 Section 387 of the Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
 We have determined that the Applicant’s behaviour was a valid reason for the termination of his employment. We agree with the Commissioner’s conclusions that he was notified of the reason for the termination of his employment, and that, with reservations, he had an opportunity to respond and have a support person involved. We agree with the Commissioner that there were no previous warnings which were relevant to the termination of employment. We note that IGA is a substantial employer with access to human resource management expertise. In terms of other matters considered relevant we agree with the Commissioner’s conclusion that:
“ Even if I had found that the reason for the termination was valid there are compelling reasons to consider that the termination of Mr Nguyen’s employment was harsh. This is so from both the personal effect of the termination on Mr Nguyen but also because of the disproportionate nature of the punishment (termination of employment) following 23 years unblemished service compared to the gravity of the misconduct - that is a collision that was caused by careless or reckless behaviour of Mr Nguyen but has been found by me not to be deliberate.” 17
 The termination of the Applicant’s employment in these circumstances, after 23 years of unblemished work history, is a significant factor which we consider should be taken into account in deciding whether the dismissal was unfair.
 We also agree with the Commissioner’s findings and conclusions with respect to the extent to which: the Applicant felt pressured to complete his assigned tasks within time because of his limited understanding of the Company’s discipline procedure; 18 the collision did not result in damage to stock, damage to forklifts or injury to any person, although it did raise health and safety issues which the Company was entitled to treat seriously;19 the Applicant did not have access to an interpreter during the Company’s investigation of the incident and this may have affected his capacity to engage in the process and respond to allegations against him.20 The Commissioner also referred to the Applicant’s age and length of service and that he had a good work history and no record of any previous disciplinary action.
 In the High Court decision in Byrne and Frew v Australian Airlines Limited 21 McHugh and Gummow JJ stated:
“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.” 22
 Notwithstanding that there was a valid reason for the termination of the Applicant’s employment our subsequent review of the factors in s 387 leads to the conclusion that the termination was harsh, unjust or unreasonable. It was harsh in that inadequate account was taken of the duration and history of the Applicant’s employment. It was unjust in that the circumstances of the incident were improperly characterised by the Company in making the decision to dismiss the Applicant. It was unreasonable in that the Company’s conclusion about the deliberate nature of the incident was founded on flawed inferences.
 For these reasons we have concluded that the termination of the Applicant’s employment was unfair. We now turn to consider the appropriate remedy pursuant to Division 4 of Part 3-2 of the Act. In so doing, we note that s.390 makes it clear that reinstatement is the primary remedy.
 In the appeal, the Company submitted that the Commissioner erroneously discounted the concerns about its loss of trust and confidence in the Applicant’s ability to safely return to the workplace and the concerns held by other employees regarding his reinstatement. It was also submitted that the Commissioner erred in finding that it was not possible to reinstate the Applicant into a role in one of the Company’s other warehouses at the Laverton site.
 In the reinstatement proceedings, evidence was given by the Applicant and several employees of the Company, including managers and other storemen. The Commissioner recognised the concerns of the Company and some fellow employees about the Applicant being reinstated, but considered that these did not take account of the findings she had made in the earlier proceedings about the forklift incident and were therefore not soundly based. In this regard, reference was made to the decision of the Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd 23 where it is stated that:
“the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.” 24
 The Commissioner found that there had not been a loss of trust and confidence such that the employment relationship had been irrevocably destroyed. 25
 Although the concerns and views of the Company’s employees at the warehouse may not have been considered to be determinative as to whether reinstatement was impracticable, they were relevant in the consideration of where the Applicant should be reinstated. In this regard we note that the Commissioner recognised that there may be some tension in the workplace arising from his reinstatement to the Perishables Warehouse.26
 It is for the decision-maker to determine whether reinstatement should be to the previous position or another position. Subsection 391(1) of the Act provides as follows:
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
 As noted in the reinstatement decision, the Company operates three warehouses at the Laverton site: the Perishables Warehouse (where Mr Nguyen worked prior to his dismissal); the Grocery Warehouse; and the NDC Warehouse. The Perishables Warehouse is covered by the IGA Distribution Vic Pty Ltd - National Union of Workers Union Collective Agreement 2008 (NUW Agreement) while the Grocery and NDC Warehouses are covered by the IGA Distribution Vic Pty Ltd and Shop Distributive and Allied Employees Association Enterprise Agreement 2010 (SDA Agreement).
 The Commissioner referred in her decision to the key differences in the terms and conditions under the SDA Agreement and the NUW Agreement as including rates of pay, holidays and annual leave, and working patterns (hours of work per day). The Commissioner said:
“ Section 391(1)(b) allows for reinstatement to be to another position on terms and conditions no less favourable than those on which Mr Nguyen was employed prior to his dismissal. On the basis of the provisions in s.391(1)(b) it would not be possible, as the Respondent seeks, that Mr Nguyen be appointed to either the Grocery or NDC Warehouse under the conditions of the SDA Agreement. These would not be ‘no less favourable’ than the conditions in the Perishables Warehouse under the NUW Agreement.
 It appears that it is not possible to appoint Mr Nguyen to a position in the Grocery or NDC Warehouse on terms and conditions no less favourable than those in the Perishables Warehouse without putting in place particular arrangements for Mr Nguyen. Given the substantial difference between the terms and conditions of the two warehouses I do not consider this a viable option.” 27
 In the appeal proceedings, the Company submitted that it was open to the Commissioner to reinstate the Applicant into one of the other warehouses at Laverton consistent with the requirements of s.391(1)(b) and without having to implement special arrangements for him. This was a somewhat different position to that taken in the proceedings before the Commissioner. We were also referred to the decision of the High Court in Blackadder v Ramsey Butchering Services Pty Ltd 28 in which the Court considered a similar provision regarding the power of reinstatement in the Workplace Relations Act 1996. In that case, it was said that the “position” to which a person might be reinstated referred not only to pay and other benefits, but also to the work performed by the person who fills the position.
 We are not persuaded that the Commissioner's primary conclusion with respect to remedy, that the Applicant should be reinstated, was affected by error, and we propose to maintain that position. However, in the course of the rehearing of the matter, we have taken a different position in that we consider that the reinstatement should be to a position in another warehouse on terms and conditions not less favourable than those which applied to the Applicant immediately before the termination of his employment.
 Subsection 391(1) of the Act provides that an order for reinstatement must be either to reappoint the person to the position they had immediately before the dismissal or to appoint them to another position that has terms and conditions no less favourable than the position they previously held.29 In the proceedings we were referred to the evidence about the terms and conditions between the NUW Agreement and SDA Agreement and, in particular, to the statement of Richard Brown, the Company’s State Distribution Manager, dated 3 May 2011 (at paragraphs 4-10). Although there are some differences, there were other factors to be taken into account in determining whether the terms and conditions in the other warehouses at the Laverton site are “no less favourable”. These include the payment of additional penalties and loadings, the recognition of additional public holidays and the shorter working week under the SDA Agreement. Further it was explained that the significant temperature difference between the Perishables Warehouse and the other warehouses, has meant that there is a disability component relating to the workplace environment which has been absorbed into the base rate of pay in the NUW Agreement.
 We note in Mr Brown’s statement that there is concern expressed about difficulties if the Applicant was reinstated to a position in the other warehouses on the terms and conditions of the NUW Agreement. However this is not necessarily what is contemplated by s.391(1)(b) of the Act. The requirement in this paragraph will be satisfied if the Applicant is put in a position which is an “equivalent position” 30 or a “close substitute"31 to the situation that existed immediately before the employer terminated the employment, provided the terms and conditions of the position are “no less favourable”.
 A reinstatement order appointing a person to another position can be made provided the appointment to the other position is “on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.” It does not require that the terms and conditions be the same. As was said by McHugh J in Blackadder:
“whether the terms and conditions are ‘no less favourable’ can be determined only by examining what the employee is employed to do in the new position.” 32
 On the material and evidence before us and having regard to the submissions in the appeal proceedings, we are satisfied that the Applicant could be employed in the other warehouses at Laverton and under the relevant industrial agreement on terms and conditions which are “no less favourable” than the previous position. In all the circumstances of this matter, we consider this to be the most appropriate approach.
 Accordingly, the order made by the Commissioner will be varied to provide for the reinstatement of the Applicant to another position with forklift duties and on terms “no less favourable” in the Company’s Grocery or NDC warehouse at Laverton. We note that the order made by the Commissioner was stayed 33 on the basis of undertakings given by the Company which included the payment of wages pending the determination of the appeal. The order of the Full Bench will therefore provide for the reinstatement to take effect from 12 September 2011 and for a payment for lost wages to the Applicant in the same amount as that determined by the Commissioner.
SENIOR DEPUTY PRESIDENT
M. Easton of Counsel with M. Cooper for IGA Distribution (Vic) Pty Ltd
D. Mujkic of the National Union of Workers for Mr Nguyen
1  FWA 1475,  FWA 3354.
3  FWA 1475 at paragraph 132.
4  FWA 3354 at paragraph 38.
5  FWA 3354 at paragraphs 38 and 48.
6  FWA 3354 at paragraph 46.
7 See Parmalat Food Products Pty Ltd v Wililo  FWAFB 1166 at paragraph 24.
8  FWA 1475 at paragraphs 60, 63, 64 and 65.
9  FWA 3354 at paragraph 1.
10 See also Parmalat Food Products Pty Ltd v Wililo  FWAFB 1166 at paragraph 26.
11 (2010) 197 IR 266,  FWAFB 5343.
12 Workplace Relations Act 1996, s.685.
13 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at .
14 S.170JF(2) of the pre-Work Choices Workplace Relations Act 1996.
15 Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210.
16 (1936) 55 CLR 499.
17  FWA 1475.
18  FWA 1475 at paragraphs 24-26, 85, 94, 112 and 115.
19  FWA 1475 at paragraphs 76, 78 and 94.
20  FWA 1475 at paragraphs 100, 101 and 105.
21 (1995) 185 CLR 410
22 Ibid at 465
23 (1997) 72 IR 186
24 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at paragraph 191.
25  FWA 3354 at paragraphs 42 and 43.
26  FWA 3354 at paragraph 48.
27  FWA 3354 at paragraphs 45 and 46.
28 (2005) 221 CLR 539.
29 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1557.
30 See e.g. s.391(1A)(b)
31 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 544.
32 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 545
33 See Order PR510341 7 June 2011
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