[Note: refer to the Federal Court decision dated 10 January 2013 [2013] FCA 4 for result of appeal.]

[2012] FWAFB 4810


Fair Work Act 2009
s.604 —Appeal of decisions

DP World Sydney Limited
Mr Stephen Lambley


SYDNEY, 22 JUNE 2012

Appeal against decision [[2012] FWA 1250] and order [PR521151] of Deputy President Sams at Sydney on 21 March 2012 in matter number U2011/10711 re unfair dismissal - fighting in the workplace - serious misconduct in breach of employer’s policies - applicant set up by other employee - breach of policy justifies summary dismissal- valid reason - gravity of misconduct enough to outweigh other mitigating factors and warrant dismissal - extenuating circumstances need to be present for dismissal for fighting to be harsh, unjust or unreasonable - application of factors in section 387 of the Fair Work Act - balancing factors in section 387 of the Fair Work Act to determine if dismissal is harsh, unjust or unreasonable - permission to appeal - significant error of discretionary nature - public interest test - Fair Work Act ss.381,387,394, 400, 604.


[1] This decision concerns an application for permission to appeal against a decision 1 of Deputy President Sams dated 21 March 2012 in relation to an application by Mr Stephen Lambley for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The application arose from the termination of Mr Lambley’s employment by DP World Sydney Limited (DP World) for serious misconduct. The Deputy President found that there was a valid reason for the dismissal, however in the circumstances, concluded that the dismissal was harsh and ordered that Mr Lambley be reinstated.

[2] At the hearing of the appeal on 1 June 2012, Mr I Taylor SC with Ms H Eager represented DP World, Ms L Doust, of counsel with Mr W Giddins represented Mr Lambley.


[3] Mr Lambley had been employed by DP World (and its predecessor entity, Container Terminals Australia Ltd) since October 1981. At the time of his dismissal, Mr Lambley was employed as a Grade 5 Stevedore at the Port Botany Terminal predominantly performing clerical duties.

[4] On 5 June 2011 Mr Lambley was involved in a physical altercation with another DP World employee, Mr Peter Smith. The lead up to the altercation was subject to some conflicting evidence, but the altercation itself was captured by three CCTV cameras. Relevant CCTV footage of the altercation was tendered in evidence before the Deputy President and was accepted by the parties as an accurate record of the events that constituted the reason for the dismissal of Mr Lambley.

[5] Mr Smith was also dismissed and also made an unfair dismissal application. His application commenced to be heard together with Mr Lambley’s application but was settled during the course of the proceedings.

[6] The lead up to the altercation was subject to some conflicting evidence relating to the content of a heated verbal altercation but most details were not in dispute. It was not in contest that a heated verbal altercation occurred at about 10.05pm while Mr Lambley was waiting for the commencement of his shift, due to commence at 10.25pm. Mr Lambley gave evidence that he and Mr Smith were seated around four metres apart in the lunch room, they exchanged heated words and that Mr Smith goaded him into meeting him outside for a fight in 10 minutes time. At about 10.07pm Mr Lambley left the canteen and waited in the car park until about 10.16pm. He then returned to the premises to go to the toilet and returned to the car park at about 10.19pm. He waited in the car park until about 10.27pm when Mr Smith exited the premises.

[7] When Mr Smith exited the premises Mr Lambley approached him quickly with his clenched fists raised. Mr Lambley threw the first punch. Mr Smith did not fight back or raise his hands, and during the entire altercation, he did not throw any punches. Mr Lambley punched Mr Smith again in the face with force, got him into a headlock and punched him 2-3 more times, grabbed him by the shoulders and threw him to the ground, and while Mr Smith was on the ground, moved around his body and kicked him in the head as hard as he could. He then tried to pull Mr Smith up to continue to fight. At that stage, about 10.30pm the fight broke up and Mr Lambley re-entered the DP World premises.

[8] As a result of investigations undertaken by DP World, both employees, and many others were interviewed. Mr Lambley was provided with an opportunity to give his version of the events and raise any mitigating circumstances. DP World decided to dismiss both employees. It dismissed Mr Lambley on 1 August 2011 by letter dated 29 July 2011 with payment of five weeks pay in lieu of notice.

[9] As noted by the Deputy President in his decision, the General Manager of the Port Botany terminal, Mr Mark Bellears gave evidence that he believed that dismissal was appropriate because:

[10] Mr Bellears said that he also took into account the following:

[11] The employer’s disciplinary policy (continued by DP World after its acquisition of  P &O Ports) contains the following provisions:

[12] Further, under the heading ‘Suspension, dismissal’, the Policy reads:

The Decision under Appeal

[13] The Deputy President’s primary conclusions are set out in the following extract from his decision:

[14] After considering all of the other criteria in s.387 of the Act the Deputy President found the termination was harsh, unjust and unreasonable and ordered that Mr Lambley be reinstated in his employment with continuity of service and partial payment of lost remuneration.

The Grounds of Appeal

[15] Counsel for DP World identified three grounds of appeal as follows:

The Nature of the Appeal

[16] Section 400 of the Act limits the grounds on which permission to appeal can be granted in unfair dismissal matters to cases where Fair Work Australia considers it in the public interest to grant permission to appeal. This criterion has been described as follows: 4

[17] The appeal grounds challenge aspects of the decision which are of a discretionary nature. Hence the following principles from House v R  5 must be applied to the determination of whether an error occurred in the decision-making process:

The Gravity of the Conduct (second appeal ground)

[18] DP World submits that in view of the findings of the Deputy President as to the very serious nature of the conduct, the conclusion that the assault of Mr Smith by Mr Lambley amounted to a valid reason for the dismissal and the terms of the DP World disciplinary policy against fighting, the Deputy President’s conclusion that the termination was nevertheless harsh, unjust and unreasonable was contrary to authority and constituted an error because it was a decision that was unreasonable and plainly unjust.

[19] It was accepted by both sides that a leading case concerning fighting at the workplace is the decision of Justice Moore in AWU-FIME Amalgamated Union v Queensland Alumina Limited. 6 In that case the relevance of employer policies against fighting were described by his Honour as follows:

[20] His Honour then considered a number of decisions of industrial tribunals regarding fighting at the workplace and said:

[21] Counsel for DP World also relied on a recent Full Bench decision in Parmalat Food Products Pty Ltd v Wililo 7 where it was said:

[22] Counsel for Mr Lambley submits that the conclusion reached by the Deputy President that the termination was harsh, unjust and unreasonable was a discretionary decision reached in the absence of error. It was submitted that this appeal ground amounts to no more than an attempt to have the appeal bench substitute its own decision on the balancing of factors involved in reaching a conclusion on the fairness of the dismissal.

[23] Section 381 of the Act sets out the object of Part 3-2 — Unfair Dismissal. It reads:

[24] This object refers to the needs of employers, the needs of employees, and ensuring that a ‘fair go all round’ is accorded to both the employer and employee concerned.

[25] Section 387 of the Act sets out factors which the tribunal must take into account in considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable. It is well established that each of these factors must be given due weight. 8 An appeal bench will only in unusual circumstances overturn a discretionary decision which does take account of and gives weight to all the factors required, and in which the error is alleged to be one of failure to appropriately balance those factors.

[26] However, those factors although not an exhaustive list, are a strong indicator of the elements of a fair dismissal. In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made. 9

[27] This present matter concerns fighting by Mr Lambley. The principles outlined above establish that fighting at the workplace usually amounts to a valid reason for dismissal, an employer has every right to establish policies against fighting and an employer has every right to ensure compliance with those policies by dismissing employees who are found to have engaged in fighting absent some extenuating circumstances. These principles are consistent, for example, with regulation 1.07 of the Fair Work Act Regulations 2009, which relevantly defines ‘serious misconduct’ as including conduct that causes serious and imminent risk to the health or safety of a person, or assault. Importantly, the authorities also establish that the dismissal of an employee found guilty of fighting at the workplace can only be found to be harsh, unjust or unreasonable in extenuating circumstances.

[28] The Deputy President in the extracts set out above paid due regard to the circumstances of the employee including his long service. We accept that much of this analysis is appropriate. He is also critical of the decision-making process of the employer, the failure to fully consider allegations of Mr Smith’s bullying, and the failure to have regard to allegations that Mr Smith set up Mr Lambley. We do not consider that these matters were soundly balanced by the Deputy President by way of a finding that they amount to significant mitigating factors that render Mr Lambley’s otherwise serious misconduct excusable. Such an approach does not give appropriate weight to the seriousness of the conduct, nor the need for employers to be able to establish policies against fighting, and to enforce such policies when they are breached. It does not accord a fair go all round to each side. Nor do we consider that these factors are capable of amounting to such mitigating circumstances. Mr Lambley may have been goaded into a fight, but he engaged in it willingly and after contemplation. He had other choices and he chose not to follow them. He chose to fight. In the fight he was the aggressor - indeed the sole aggressor. He cannot be described as acting in self defence. He did not simply throw a single unwise punch. He continued to assault Mr Smith when Mr Smith was not fighting back and when Mr Smith was on the ground, moved into a position to kick him in the head as hard as he could. On the scale of physical altercations Mr Lambely’s conduct was very high on the scale.

[29] If Mr Smith had set up Mr Lambley to engage in this conduct in front of CCTV cameras, it does not in any way excuse Mr Lambley’s conduct or suggest that an employer cannot reasonably discipline an employee for the conduct in which they have clearly engaged. We do not consider that this possibility, even if correct, is capable of outweighing the otherwise inherent fairness of dismissing an employee for engaging in a serious assault after following a procedurally fair investigation.

[30] If the history of the conflict between the two involved bullying and intimidation by Mr Smith, this did not excuse the conduct. An employer is entitled to implement its disciplinary policies in a way designed to ensure employees comply with its standards of behaviour.

[31] In our view the Deputy President did not adopt an approach consistent with these principles and his conclusion was unreasonable and plainly unjust as a result. In our view the Deputy President has appropriately had regard to the circumstances of the dismissed employee including his long service, and other matters. In many respects his careful analysis of those circumstances is useful and appropriate. However, he has not appropriately balanced all the circumstances of the matter nor given due weight to the factors in s.387. Counsel for DP World has established that the Deputy President’s decision in this respect involves an error of the House v R kind.

[32] In view of our conclusion on this ground of appeal it is unnecessary that we consider the other grounds of appeal.


[33] For the above reasons we consider that the Deputy President erred in the exercise of his discretion. As a result there has been an unjust result to Mr Lambley’s unfair dismissal application. In our view it is in the public interest that decisions in unfair dismissal matters are consistent with established principles and involve the sound exercise of the discretions vested in the tribunal. We therefore grant permission to appeal, allow the appeal and quash the decision of the Deputy President.



I Taylor, SC, with H Eager for DP World Sydney Limited.

L Doust, of counsel, with W Giddins for Mr Lambley.

Hearing details:



June, 1.

 1   [2012] FWA 1250.

 2   Ibid at para [95].

 3   Ibid at para [96].

 4   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

 5   (1936) 55 CLR 499.

 6   [1995] IRCA 346; (1995) 62 IR 385.

 7   [2011] FWAFB 1166.

 8   R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32, 19 July 1979, Gibbs, Mason, Murphy JJ per Mason and Gibbs JJ agreeing at 18, cited in Chubb Security Australia Pty Ltd v Thomas, Print S2679 at para [37], 2 February 2000, McIntyre VP, Marsh SDP, Larkin C.

 9   Bryne v Australian Airlines (1995) 185 CLR 410; see also Australian Meat Holdings Pty Ltd v McLauchlan, Print Q1625.

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