Fair Work Act 2009
s.604 —Appeal of decisions

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.

Introduction

[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.

Background

[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:

“(a) the CCTV footage clearly showed that Mr Lambley punched and kicked Mr Smith and Mr Lambley had not denied it in the meeting on 20 July 2011;

(b) Mr Lambley did not take any steps to avoid an altercation in the car park with Mr Smith;

(c) the conduct was a contravention of DP World’s zero tolerance approach to verbal and physical violence, as set out in the P&O Ports Human Resources Handbook.” 2

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

“(a) he [Mr Lambley] had been employed by DP World (and its predecessors) for approximately thirty years. I considered that meant my decision was more difficult since Mr Lambley was not an employee with short service;

(b) the potential impact it would have on him personally. I was aware that it would have a serious impact on Mr Lambley;

(c) I was not aware of Mr Lambley being involved in any previous incident of this type and that he had a generally good record of conduct; and

(d) based on the information gathered during the investigation, I thought it more likely that Mr Smith had goaded or provoked Mr Lambley into engaging in the physical altercation in the carpark.”  3

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

“P&O Ports expects all employees to achieve and maintain a high standard of conduct and work performance at all times, with proper regard for co-operation with internal customers and the maintenance of confidence and satisfaction with external customers.

If your performance is unsatisfactory, your immediate Manager will initially deal with it. The Company will determine the level of investigation surrounding any breach, after giving consideration to the nature and severity of the breach.

While a decision in respect of a breach is being made, you may be suspended on full pay to allow investigation, discussion and representation. The type of action taken will reflect the severity of the breach. Investigations and involvement of statutory authorities and the police may occur for any criminal activities or statutory breaches

At all stages of the disciplinary procedure you will be allowed to request the presence of another P&O Ports employee or appropriate support person.

Disciplinary action following a breach may include, but is not limited to, verbal and/or written warning, suspension, removal from role, dismissal with notice or summary dismissal.

These principles do not prevent the taking of other additional action available under your enterprise agreement, award or conditions of employment. Nor do they prevent further action from a third party.

If you believe that you have been treated unfairly under this procedure, then you have the right to seek review of the decision through the Grievance Procedure or in the case of dismissal, through Unfair Dismissal provisions of the Workplace Relations Act.

A complete copy of the Disciplinary Procedures is available in the HR Policy & Procedure Guidelines.”

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

“Examples of typical breaches

Theft and / or fraud; Fighting on site; Falsification of a medical certificate or other official documentation; Refusal of duty;

Using abusive or threatening language or physical force, with the intent to harass, victimise, coerce or injure; Sabotage of P & O Ports’ property; Unauthorised removal of any first aid or safety equipment or supplies.

Examples of possible effects:

An act which seriously endangered persons or has seriously damaged property; An act which adversely affects the business; Involves dishonesty for personal gain or the deliberate detriment of others; Harassment or victimisation of other persons of a repeated or serious or violent nature; ...”

The Decision under Appeal

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

“[143] On any objective analysis, the undisputed evidence in this case, most particularly the CCTV footage and the applicant’s own admissions, provide an irresistible foundation for the respondent’s decision to dismiss the applicant. In other words, there can be little doubt that there was a valid reason for the applicant’s dismissal (s 387(1) of the Act). The Union’s non-submission of the subject properly acknowledged this reality. Without more, one might even expect that the totality of Mr Taylor’s submissions would be accepted by FWA. However, given the other extraordinary and inexplicable circumstances revealed during the proceedings, that cannot possibly be the end of the matter.

[144] As incredible and unbelievable as it may seem, and notwithstanding I have no evidence from Mr Smith as to his version of events, I am prepared to accept, on the balance of probabilities, that Mr Smith ‘set up’ the applicant in order to portray him as the aggressor, with the express intention of securing his dismissal. I am fortified to this conclusion, by the following evidence, which I accept.

(a) Mr Smith goaded the applicant into a physical altercation by threatening that he was intending to ‘cave his head in’. I accept the applicant’s and his son’s evidence that this threat had been repeated on a number of occasions.

(b) Mr Smith had a long history of abusive, threatening and bullying behaviour towards the applicant, and other employees, who he perceived were not supportive of him, or that he simply did not like.

(c) The applicant was very nervous at the prospect of a fight with Mr Smith; someone much younger and of a larger build. He had sent his son to intervene with Mr Smith. I accept that the applicant was so nervous as to what might happen, that he was forced to the toilet three times, within 10 minutes. This physiological manifestation is indicative of a ‘very, very nervous’ person. Such an admission was embarrassing and unlikely to have been ‘made up’ by the applicant.

(d) It is curious that Mr Smith would goad the applicant to hit him, then throw no punches and end up on the ground in the context of having said he was ‘going to cave the applicant’s head in’. On the other hand, Mr Smith’s feigned passivity is entirely consistent with his ‘set up’ of the applicant as the aggressor, in order to falsely portray himself as the innocent victim.

(e) Mr Smith’s aggressive and uncalled for responses to Mr Lewis and Mr King, who were merely coming to his assistance, is hardly demonstrative of a person who had been injured in the altercation. The conduct taints the suggestion of a real assault by the applicant. In addition, I reject Mr Bolger’s suggestion that Mr Smith merely wanted to thank Mr King for helping him. Apart from being entirely inconsistent with Mr King’s version of events, which I accept, thanking someone does not explain Mr Smith’s phone pestering of Mr King in the following days. What it does perfectly demonstrate is that Mr Smith knew his plan might come undone if Mr King told management what really occurred.

(f) Mr Smith’s ‘wink’ to Mr King makes clear to me that Mr Smith was acting out the role of the innocent party in the fight. I found Mr King to be an unbiased observer, who did not involve himself in workplace disagreements. He was a credible witness whose evidence has a ‘ring of truth’ about it. He did not ‘gild the lily’ and did not appear to have been coached as to his evidence or to have rehearsed it. While he sometimes seemed confused when Mr Bolger put contrary propositions to his evidence, in my view, this demonstrated a person who was unfamiliar with giving evidence in the Tribunal and was confused by Counsel putting things to him which he knew to be at odds with his own recollection of the truth. Far from demonstrating a lack of credibility, these responses enhanced it.

(g) I accept Mr McIntyre’s evidence that about a month before the incident, Mr Smith had told him that ‘I am going to get him (the applicant), I am going to fuck him up’. This is clear and corroborative evidence that Mr Smith was intent on a course of action to harm the applicant through getting him dismissed. It was probably shortly thereafter that he conceived of the plan to ‘set him up’.

(h) I also accept Mr Barnes’ evidence that he had overheard a discussion between the applicant and Mr Smith in which Mr Smith blamed Ms Hunter’s return to work on him. The root cause of Ms Hunter’s psychological injury which was well known to management, was the harassment and bullying by Mr Smith. Accepting Ms Hunter’s evidence, as I do, demonstrates a pattern of reprehensible behaviour by Mr Smith towards fellow employees of which his ‘set up’ of the applicant, is but one further poor example.

The CCTV Footage

[145] The most significant evidence was the extraordinary CCTV footage. There is no doubt it was manually manipulated by an unknown person who followed the altercation and zoomed in at relevant times which would seem to indicate that someone had been enlisted to ensure clear coverage of the incident. Ms Taylor’s evidence was that the footage was ‘jumpy’, zoomed in and out and followed the ‘action’. It seems to me to be instructive that Mr Smith had said he would see the applicant outside in 10 minutes. While there is no evidence of who manipulated the camera, or for what purpose, it is open to conclude that the 10 minute notice was given so Mr Smith could organise someone to manipulate the camera. I do not accept the alternative theories that someone just happened to know a fight was on and just followed it with the camera out of interest or a supervisor had filmed it. In either scenario, the unknown cameraperson was guilty of not seeking to prevent the altercation by reporting it or attempting to intervene.

[146] On the respondent’s own evidence, management was aware that ‘something funny was going on’ in respect to the manual control of the CCTV. It acknowledged as much in its letter to the applicant on 14 July 2011 wherein it said:

‘The physical altercation was recorded on the three CCTVs which record the car park and turnstile area. The footage from one of the CCTVs zooms in and out and follows the physical altercation. This could only have occurred through manual control of the CCTV. A wide range of people have access to the CCTV controls and could have manipulated the CCTV. Controls for the CCTVs are located in the clerical control room, supervisor’s office, grade 6 office, superintendent’s office, security office, Danny Bannatyne’s office and Mark Bellears office’.

[147] I ask rhetorically, if a number of people had suggested that the applicant was ‘set up’, was not the unknown manipulation of the camera, clear and cogent corroboration that was, in fact, what had happened? Even with this knowledge, the respondent failed to take its own evidence into account. This omission discloses a serious flaw in the respondent’s decision making process to the applicant’s detriment. Moreover, this omission sits very uncomfortably with the respondent’s other evidence that the CCTV footage was the main factual foundation for determining the applicant’s involvement in the fight. In other words, it was grossly unfair to primarily rely on the CCTV footage to dismiss the applicant, but ignore the bizarre and unexplained circumstances in which the CCTV footage was created.

[148] In addition, I further note that Mr King gave evidence that the CCTV footage had ‘skipped’ about 20 seconds at the very time he said Mr Smith had feigned a punch at him. This skipping is consistent with Ms Taylor’s observations of the footage. It seems an entirely plausible conclusion that someone unknown - probably in Ms Smith’s camp - having viewed the footage and observed a punch thrown by Mr Smith towards Mr King, would have found it most unhelpful to Mr Smith’s version of events. Was the footage manipulated further to erase it? I accept that this is supposition, but it is plausible.

[149] In my opinion, it is reasonable to find that the respondent’s decision to dismiss the applicant, knowing the history and previous conduct of Mr Smith (most notably towards Ms Hunter) was coloured and ultimately tainted by a perception - which Ms Taylor candidly acknowledged - that there would be trouble if one of them was reinstated, but not the other. I apprehend that Mr Smith had not foreshadowed his own dismissal. To put it bluntly, the respondent appears to have taken the easy way out by dismissing both of them. However, it did so without properly weighing up (or at all) Mr Smith’s motive, provocation, past history and in the applicant’s favour, his long and relatively unblemished service, honesty during the investigation and his remorse and contrition. As the Full Court of the Federal Court said in QANTAS Airways Limited v Cornwall [1998] 83 IR 102:

‘We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterise the nature of the conduct involved. Such circumstances are clearly to be distinguished from the consequences of a termination of employment, if that ensues, which are excluded by Victoria v The Commonwealth and Cosco Holdings. In our opinion, the trial judge was entitled to take into account the matters summarised at the commencement of these reasons, and to conclude from them that the conduct found against the respondent did not establish a valid reason for his dismissal’.

[150] When viewed in this way whilst I am satisfied that the respondent had a valid reason for the applicant’s dismissal (see Culpepper v International Ship Management PR960313), I am nevertheless comfortably satisfied that his dismissal was otherwise ‘harsh, unreasonable and unjust’ within the meaning of s 387 of the Act.

[151] I make this finding because I believe the applicant’s dismissal was an utterly flawed and unbalanced response to the incident of 5 June 2011. Moreover, the respondent’s decision has resulted in a ‘manifest injustice’, of the rare kind, expressed by the majority of the Full Bench in Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089, where Lawler VP and Roberts C said at 27-29:

‘We respectfully endorse those observations. The preservation of public confidence in the administration of justice is a matter of deep public interest. That confidence tends to be undermined by decisions that are manifestly unjust. We agree that the public interest is engaged in a case where it is evident that a manifest injustice has been done such that where an appeal bench forms that view there is a public interest in a grant of permission to appeal.

This is not to say that there will be a public interest in granting permission to appeal in any case to which s.400 applies where error is identified. To adopt that approach would effectively set the limitation in s.400 at nought and would frustrate the obvious intent of the legislature to limit appeals from unfair dismissal decisions. Moreover, it is not to say that there will be a public interest in granting permission to appeal merely because the appeal bench would have reached a different conclusion from the member at first instance. Again, such an approach would be at odds with the principles in House v R. Rather, we have in mind a case where the outcome is so at odds with what the Full Bench considers a proper outcome that the epithet “manifest injustice” can properly applied. Such a conclusion will only be reached in rare cases.

In our view, this is such a case. For reasons which will become evident, we consider that the proper exercise of discretion at first instance in this case was, on the evidence before the Commissioner, so clearly in favour of a finding that the dismissal was harsh that the decision to dismiss Mr Lawrence’s application for an unfair dismissal remedy constitutes a manifest injustice that engages the public interest. We are satisfied that there is a public interest in grant of permission to appeal and grant that permission. The appeal then proceeds as a re-hearing’.

[152] In addition, I am fortified in my findings by the open and honest acknowledgements of Ms Taylor, and the extraordinary admission by Mr Bellears, that while he had considered all of the matters raised by the applicant in mitigation during the investigation, ultimately only two facts were determinative - the applicant’s admissions and the CCTV footage. This was a balancing exercise so seriously flawed and unfairly weighted against the applicant’s interests, that it constitutes a gross breach of procedural fairness.

[153] The evidence of the respondent discloses that between 5 June 2011 and 29 July 2011, the respondent took no steps to investigate, let alone make findings about Mr Smith’s history as a bully in the workplace. Ms Taylor even admitted that in the meetings with Mr Bellears and Ms Humphreys, the subject was not even raised. Mr Bellears accepted that they had ‘closed the door’ on Mr Smith’s history. Moreover, this evidence was against a backdrop of the other evidence of Ms Taylor that she:

(a) agreed it was well known that Mr Smith had a bullying reputation.

(b) knew Ms Hunter had been off work on workers’ compensation as a direct result of Mr Smith’s behaviour towards her.

(c) knew someone had told her that ‘Romper’ (Mr Smith) had set up the cameras.

(d) suspected that Mr Lewis had been ‘pre briefed’ before his interview to refute any racist comment having been made by Mr Smith towards Mr King.

(e) had been told by Mr McIntyre that he was very scared for himself and his family if he gave a statement during the investigation. I note that what Mr McIntyre told her was entirely consistent with his statement in these proceedings.

(f) had been told by the applicant, the very next day after the incident, that Mr Smith called him a ‘dog’ and asked him outside. I note that the applicant’s version of events has been consistent since the day after the incident to the evidence he gave in these proceedings. During oral evidence, he recalled conversations without referring to his statement.

(g) acknowledged that Mr Smith’s history was a very relevant factor in the decision to dismiss the applicant and it had not been considered.

[154] Moreover, the respondent’s evidence and its own conclusions of the investigation reveal two startling, yet seemingly overlooked considerations which plainly, and overwhelmingly, fell in the applicant’s favour. Firstly, that the evidence and statements of Mr King and Mr Michael Lambley during the investigation, were believable, and secondly, Ms Taylor and Mr Bellears both accepted that it was more likely that the applicant’s account of events was correct.

[155] Given these concessions I am baffled to understand how a decision was made to dismiss the applicant; let alone deliver the same punishment to him as Mr Smith received. In addition, it seems plain enough to me that the respondent’s procedures as to protecting employees from bullying, were not able to stymie, let alone stop, Mr Smith’s ongoing unacceptable conduct. I agree with Ms Doust that it was perfectly understandable that employees and the applicant in particular, had lost confidence in the respondent’s policies and procedures being able to protect employees from bullying in the workplace.”

[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:

● Deputy President Sams erred in finding that Mr Lambley was set up;
● Deputy President Sams erred in failing to find that the gravity of the misconduct outweighed all other factors;
● Deputy President Sams erred in ordering reinstatement.

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

“[26] 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 to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [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]

[27] 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.”

[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:

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

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:

“It is first necessary to consider whether QAL has proved that there was a valid reason or valid reasons connected with the employee’s capacity or conduct based on the operational requirements of the undertaking. The only relevant conduct is the fighting that occurred in the crib room and the subsequent refusal of both Merritt and Sonter initially to tell the truth when interviewed by McIntosh. It is clear that QAL has a policy that fighting at work is a dismissible offence. Both Sonter and Merritt were aware of this policy. It is not a policy that is entirely rigid in the sense that any person fighting at work will necessarily be dismissed. It allows for exceptions that might arise in particular circumstances. However it is plain that QAL has endeavoured to ensure that no fighting occurs by indicating that the likelihood is that dismissal would follow if it did. QAL operates a large, complex and dangerous industrial plant and the failure of employees to carry out their duties properly can, potentially, lead to death or injury to the workforce and significant loss of production to QAL.”

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

“What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.”

[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:

“[24] ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open....”

[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:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[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.

Conclusion

[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.

VICE PRESIDENT WATSON

Appearances:

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

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

Hearing details:

2012.

Sydney.

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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