[2013] FWCFB 9230
The attached document replaces the document previously issued with the above code on 22 November 2013.
This version corrects typographical errors, paragraph referencing errors and party name in paragraph [6].
Vanja Bulut
Associate to Vice President Catanzariti
Dated 27 November 2013
[2013] FWCFB 9230 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT CATANZARITI |
SYDNEY, 22 NOVEMBER 2013 |
Appeal against decision [[2012] FWA 1250] and order [PR521151] of Deputy President Sams at Sydney on 21 March 2012 in matter number U2011/10711. Rehearing of application for unfair dismissal remedy. Misconduct - fighting in breach of policy – whether dismissal harsh. Application dismissed.
REASONS FOR DECISION OF VICE PRESIDENT CATANZARITI AND COMMISSIONER CAMBRIDGE
[1] This is an appeal against a decision 1 of Deputy President Sams in relation to an application (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. A differently constituted Full Bench found that the Deputy President had erred and quashed the decision.2
[2] At the hearing of the appeal, before the reconstituted Full Bench, Mr S Crawshaw of Senior Counsel and Ms L Doust of Counsel with permission appeared for Mr Lambley and Mr I Taylor of Senior Counsel and Mr D Mehendra of Counsel with permission appeared for DP World.
Procedural history
[3] The Application was heard by the Deputy President in Sydney on 5 to 8 December 2011. On 21 March 2012, the Deputy President handed down a decision in favour of Mr Lambley, ordering that Mr Lambley be reinstated, that there be continuity of service and partial lost remuneration.
[4] DP World filed an appeal against that decision on 3 April 2012 and the appeal was heard by a differently constituted Full Bench on 1 June 2012. That Full Bench found that:
“[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.”
[5] The decision of the first Full Bench was subsequently appealed to the Federal Court of Australia. On 10 January 2013, Katzmann J, in Lambley v DP World Sydney Limited [2013] FCA 4, found, at [50], that:
“...In the passages to which DP World referred, however, the Full Bench was explaining how the discretion of the Deputy President miscarried. It is clear that the Full Bench took the view that any proper exercise of the discretion would have resulted in only one answer, namely, that the dismissal was not harsh, unjust or unreasonable. At [33] it described the way in which the Deputy President had exercised his discretion as “unjust”. But the Full Bench did not purport to exercise the discretion for itself. It made no order disposing of the application. I therefore accept Mr Lambley’s submission that the Full Bench did not go on to exercise the discretion for itself. Yet, this was not a jurisdictional error as Mr Lambley contended because s 607 of the Act does not require the Full Bench to exercise the discretion for itself. It could have done so (see s 607(3)), but it did not. Consequently, mandamus does not lie: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 at [70]. The decision of the Deputy President having been quashed, the application now needs to be determined afresh.”
(emphasis added)
[6] Both parties appealed the decision of Katzmann J, and that appeal is still before the Full Court of the Federal Court of Australia. However, in light of her Honour’s view that the first Full Bench did not dispose of the Application (a matter contested by DP World), Mr Lambley wrote to the Fair Work Commission (the Commission) seeking that the matter be “determined afresh”.
[7] The matter was brought before Vice President Lawler, as a member of a Full Bench comprising of the Vice President, Senior Deputy President Harrison and Commissioner Cambridge, for directions. It was determined by a majority of that Full Bench that the Commission should await the outcome of the Full Court of the Federal Court of Australia decision prior to the matter being “determined afresh” by the Commission. However, the Full Court of the Federal Court of Australia was of the view that the matter should proceed before the Commission as the appeal proceedings before it are not an impediment.
[8] Accordingly, by a somewhat unusual method, the matter comes before this Full Bench to determine the Application “afresh” in light of the decision of Katzmann J.
Factual background
[9] 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.
[10] On 5 June 2011, Mr Lambley was involved in a physical altercation with another DP World employee, Mr Peter Smith (who was commonly known by the nickname “Romper”). The lead up to the altercation was subject to some conflicting evidence, but the altercation itself was captured by three closed circuit televisions (CCTV) cameras.
[11] Most of the details of the altercation were not in dispute. It is accepted that a heated verbal exchange occurred between Mr Lambley and Mr Smith at about 10:05 pm while Mr Lambley was waiting for the commencement of his shift, which was to commence at 10:25 pm. Mr Lambley gave evidence that he and Mr Smith were seated around four metres apart in the lunch room, they exchanged heated words, including Mr Smith’s repeatedly threatened that he would “cave [Mr Lambley’s] head in”, and that Mr Smith goaded him into meeting him outside for a fight in 10 minutes time. At about 10:07 pm, Mr Lambley left the canteen and waited in the car park until about 10:16 pm. He then returned to the premises, it was suggested to use the bathroom, and returned to the car park at about 10:19 pm. He waited in the car park until Mr Smith exited the premises at approximately 10:27 pm.
[12] The first Full Bench described what happened next:
“[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.”
[13] It should be noted that Mr Lambley’s son, who was also employed by DP World, was present during the physical altercation, and kept within close proximity of the fight.
[14] DP World carried out an investigation into the incident and decided to dismiss both Mr Lambley and Mr Smith.
[15] As noted by the Deputy President in his decision at first instance, 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.” 3
[16] DP World had a policy (inherited after its acquisition of P &O Ports) which stated that fighting on site and the use of abusive or threatening language or physical force with the intent to harass, victimise, coerce or injure was conduct that could lead to suspension or dismissal.
[17] In his Application to the Commission, Mr Lambley submitted that the decision to dismiss him was unfair because of the “intense preconceived provocation and goading” by Mr Smith over a number of years and immediately before the assault. Furthermore, Mr Lambley contended that the dismissal was unfair because DP World had not considered all the circumstances. He said that those circumstances included:
“that the incident was an isolated one, that Mr Lambley in nearly 30 years of service has not had any similar events recorded against him, and the adverse effect and negative life position the dismissal leaves Mr Lambley and his family in, renders the dismissal in all the circumstances harsh, unjust and unreasonable.”
Decision at first instance
[18] 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.
...
[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.
...
[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...
[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...
[19] Ultimately, the Deputy President found that Mr Lambley had been set up by Mr Smith with the express intention of procuring his dismissal. The Deputy President accepted that Mr Lambley’s conduct provided a valid reason for his dismissal. Nevertheless, he found the termination was harsh, unjust and unreasonable because he considered it to be “an utterly flawed and unbalanced response” to the incident.
Decision of first Full Bench
[20] DP World appealed the decision of the Deputy President on the ground that the Deputy President:
[21] The first Full Bench found as follows:
“[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 (sic) 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.”
[22] The first Full Bench proceeded to conclude that the finding below was unjust and that it was in the public interest that decisions in unfair dismissal cases be consistent with established principles and involve the sound exercise of the discretion. Consequently, it granted permission to appeal, allowed the appeal and quashed the decision of the Deputy President.
Decision of the Federal Court
[23] Mr Lambley appealed the decision of the first Full Bench to the Federal Court of Australia. Justice Katzmann observed that the first Full Bench emphatically disagreed with the Deputy President, although her Honour did not accept that the first Full Bench decided to set aside the Deputy President’s decision simply because of a difference of opinion.
[24] Although her Honour did not accept Mr Lambley’s contention that the first Full Bench gave greater emphasis or focus to the valid reason criterion over any other factor in s.387 of the Act, it was noted that there was merit in Mr Lambley’s other complaints.
[25] Specifically, her Honour found that, as was accepted by DP World, the first Full Bench overstated the position in stating that the authorities 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. Her Honour noted that this was certainly not an accurate reflection of what Moore J said in AWU–FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385, which was one of the two authorities to which the first Full Bench referred. Secondly, her Honour noted that the first Full Bench also relied on a sweeping statement which did not correctly, or fully, paraphrase Byrne and Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
[26] However, noting these errors, her Honour concluded that:
“[42] ... the Full Bench expressly recognised the limits of its functions and powers. It correctly understood that its functions were to decide whether it was in the public interest to grant permission to appeal and whether the Deputy President had made an error of the kind described in House v The King. It considered a ground of appeal which, if successful, would determine the outcome of the appeal. It concluded that the particular ground should succeed because the Deputy President had made a relevant error. In coming to that conclusion, it was not doing something it lacked the power to do. It was deciding matters within its jurisdiction, albeit incorrectly.”
[27] As replicated at [5] above, her Honour, in dismissing the appeal, noted that the first Full Bench had not exercised its discretion to rehear the matter, and given that the Application was not remitted to a member of the Commission, the Application is still outstanding as there is no order to dismiss it.
Submissions and consideration
Role of this Full Bench
[28] It was agreed by both parties that in circumstances where the first Full Bench granted DP World permission to appeal, found appealable error and quashed the decision below, all that remains for this Full Bench to do is complete the rehearing of the matter by exercising the discretion, as contained in s.607 of the Act, that Katzmann J considered the first Full Bench had not exercised.
[29] It should be noted that DP World, in its appeal before the Full Court of the Federal Court of Australia, is contending that the first Full Bench did exercise the discretion and so concluded the matter, even though it did not issue an order dismissing the Application. If that were so, there is nothing further for this Full Bench to do. However, for the purpose of these proceedings, DP World has accepted that this reconstituted Full Bench will proceed on the basis that the first Full Bench did not complete the rehearing.
[30] We agree with the parties that all that remains for this Full Bench is to rehear the Application and, based on the correct legal principles, determine whether Mr Lambley’s dismissal was harsh, unjust or unreasonable.
[31] A determination of the Application afresh does not require that the evidence be heard again. The parties agreed that this Full Bench should rely on the evidence called in the proceedings before the Deputy President at first instance and that there is no need for further evidence.
Submissions
[32] It was submitted by Mr Lambley that the exchange between his and Mr Smith prior to the physical confrontation was extraordinary. On Mr Lambley’s account, Mr Smith told him to “Get outside, you dog cunt, I am going to cave your head in”. It was submitted that the language used could not have been anything other than calculated to be both threatening and provocative. Furthermore, the goading, which continued later, involved Mr Smith approaching Mr Lambley saying, “Hit me, hit me”. Overall, it was submitted, this conduct indicates that Mr Smith was more than an aggressor and his intention was to provoke a response from Mr Lambley. It was submitted that Mr Smith’s conduct, as displayed on the CCTV video, was inconsistent with the normal efforts at self-defence one would expect to see made by any person confronted by another person with their fists raised, and that this supported the finding that Mr Smith had “set up” Mr Lambley.
[33] With respect to the factors outlined in s.387 of the Act, to the extent that they are relevant, Mr Lambley submitted that:
[34] In summary, it was submitted by Mr Lambley that although there was a valid reason for the dismissal, the circumstances of the case are such that the dismissal was nonetheless harsh.
[35] In response, DP World submitted that the CCTV footage shows the fight in detail and that the evidence, which is not in dispute, shows that:
[36] It was submitted that these uncontested facts inevitably lead to the following findings:
[37] It was submitted that the only conclusion which can be drawn from the uncontested evidence is that Mr Lambley’s assault of Mr Smith was an act of misconduct in the most serious category.
[38] With respect to the factors outlined in s.387 of the Act, to the extent that they are relevant, it was submitted that:
[39] It was also submitted that the “set up” theory should be rejected by this Full Bench as there is insufficient evidence on the balance of probabilities to prove that Mr Smith had engaged in a conspiracy with one or more others to film the fight in order to “set up” Mr Lambley. There would need to be evidence that was more than mere speculation and supposition for such a finding: Briginshaw v Briginshaw.
[40] Furthermore, it was submitted that given the seriousness of the misconduct (a premeditated attack that involved substantially more than a single punch), the absence of any evidence justifying or the conduct (such as self-defence), it would be unprecedented to find the dismissal to be harsh, unjust or unreasonable.
Rehearing
[41] Although we have had the benefit of the decision and the reasoning of the first Full Bench, it is the role of this Full Bench to determine Mr Lambley’s Application for an unfair dismissal remedy afresh and in accordance with the correct legal principles. In saying that, we are very mindful of the errors, within jurisdiction, made by the first Full Bench and highlighted by Katzmann J. We do not accept, as was pressed by DP World, that our discretion, in determining the Application, is somehow fettered by the findings of the first Full Bench.
[42] We have also had regard to the factual findings made by the Deputy President at first instance. As was noted by Gleeson CJ, Gummow and Kirby JJ in the High Court’s decision in Fox v Percy:
“On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” 4
[43] It is accepted by all the parties that the weighing exercise required to be undertaken pursuant to s.387 of the Act requires this Full Bench to weigh the seriousness of the misconduct against any mitigating factors. This is because it is accepted, by the parties and by this Full Bench, that the other factors outlined in s.387 are either accepted as being non-contentious or not relevant to the Application.
[44] It is well established and accepted that a dismissal may still be harsh notwithstanding that there exists a valid reason for dismissal. In Byrne v Australian Airlines Ltd 5, McHugh and Gummow JJ said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 6
[45] Much has been said in the decision at first instance, and in the decision of the first Full Bench, about the principles surrounding fighting in the workplace. In one of the leading authorities on the issue, AWU-FIME Union v Queensland Alumina Ltd 7, Moore J observed that:
“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.” 8
[46] Although dismissal of an employee due to fighting in the workplace may very well be viewed as not harsh, unjust or unreasonable, the circumstances surrounding the fight and the employee’s personal circumstances must be considered prior to such a conclusion being drawn.
[47] We agree with the majority in the decision of B, C, and D v Australia Postal Corporation t/as Australia Post 9(Australia Post) that the approach the Full Bench is to take in determining whether the dismissal was harsh, unjust or unreasonable is to:
[48] Relevant to this Application is the majority’s finding in Australia Post that:
“... there are some forms of wilful misconduct (like deliberate fraud against the employer or a serious unprovoked assault) that will almost certainly merit dismissal irrespective of an employee’s length of service, good disciplinary record and personal circumstances. Employees do not need to be warned that such conduct will be treated seriously by the employer. (Albeit that, even then, it is possible construct extreme scenarios where it may be objectively unfair to dismiss the employee – for example, the misconduct occurred while the employee was suffering a one-off episode of automatism arising from a injury caused negligently by another employee). There are other forms of misconduct that are clearly not such as to merit summary dismissal but should be the subject of a warning or warnings or ‘active steps’ that bring home to the employee that the employer regards the conduct in question as serious and meriting dismissal before dismissal occurs, particularly where the employee has substantial service...” 10
[49] As was correctly and appropriately conceded, this is an instance where there is no doubt that there was a valid reason, which was communicated to Mr Lambley, for his dismissal. DP World had a policy which clearly stated that employees who engage in physical altercation may be terminated. In any event, even if such a policy was not in place, it is plainly evident that fighting in the workplace creates a serious risk to health and safety and would reasonably provide a “valid reason” for termination.
[50] Having considered the evidence, including the CCTV video and the oral evidence of Mr Lambley and other employees provided at first instance, we accept that Mr Smith provoked and threatened Mr Lambley and that this conduct was not uncharacteristic of Mr Smith who was largely seen as a bully. It should be noted that DP World had not taken any action against Mr Smith prior to this incident, even though they may have had their suspicions, because there had not been sufficient complaints raised with DP World with respect to Mr Smith’s conduct. It was accepted by DP World that there was an anti-“dobbing” or anti-“dogging” mentality in the workplace which meant that potentially serious matters were not brought to its attention. It goes without saying that this is an issue that DP World needs to seriously investigate and remedy.
[51] We also accept that Mr Lambley was an otherwise exemplary employee with over 30 years’ service, without any appreciable disciplinary history, a person of good character who was unlikely to repeat the misconduct. He was honest during the investigation, and before the Commission, and showed remorse for his conduct. Given his age, it is accepted that he has had, and will likely continue to have, difficulty obtaining employment of a similar standard to that enjoyed with DP World. These are of course important matters which weigh in favour of a finding that Mr Lambley’s dismissal was harsh.
[52] Although we accept that this incident is, in light of the surrounding circumstances, quite extraordinary, we find it troubling that Mr Lambley, a man not prone to violence in the workplace, would engage in such a forceful, physical manner with Mr Smith some 20 minutes after Mr Smith had made provocative comments to Mr Lambley. Not only did Mr Lambley have sufficient time to commence work, consult management, or simply walk away, but the CCTV footage clearly shows that, regardless of any verbal provocation or gesturing on Mr Smith’s part, Mr Lambley was not only the only aggressor during the physical altercation, but that serious and very deliberate actions were taken by Mr Lambley to hurt and injure Mr Smith. The following exchanges during the cross-examination of Mr Lambley (at first instance) are illustrative:
“But the position is this, isn't it, that having been asked by Mr Smith to "See you outside in 10 minutes" - - -?---Yes.
You could have - - -?---I could have. Yes.
- - -walked away, couldn't you?---Yes.
You've told other blokes to walk away in the same situation, haven't you? ---Exactly what I told the other blokes. Yes. Yes.
The other thing you could have done is that you could have approached a supervisor about the incident, couldn't you?---Yes. I could have. Yes.
You could have gone to someone and said that you'd just been threatened by
Mr Smith with physical violence; you could have done that? ---Yes. Yes.
...
Mr Lambley, you went out there - - -? ---Yes.
- - -and hung around - - -? ---Yes.
- - -waiting for Mr Smith to come out, didn't you?---Yes.
And you accept, albeit with hindsight, that you had a choice; you could have
walked away? ---Yes. Yes.
...
Do you agree with me that as you've watched that footage Mr Smith has been thrown to the ground?---Yes. Yes.
And you've thrown him to the ground?---Yes.
And you've walked around him, haven't you?---Yes.
You've deliberately and intentionally kicked him in the head?---That's what it says. Yes.
In doing so you were trying to cause as much injury to him as you could; weren't you?---At the time, yes.
...
Well, you knew that Mr Smith exited through the back door?---Yes.
Why did you move from the front door through to the back door, outside in the
carpark?---Good question.
And the answer is because you were looking to have a fight with Mr Smith, weren't you?---I was sticking up for my rights. I was sick of getting bullied and harassed at work.
You were looking to fight him because you'd asked him outside for a fight?---No I didn't offer anyone out for a fight.
Your shift had started by the time Mr Smith had come out?---Yes.
Why hadn't you gone back through the front door and got on with your work?---Because Mr Smith offered me outside.” 11
(emphasis added)
[53] These admissions made by Mr Lambley are extraordinary. Not only did Mr Lambley have some 20 minutes to consider his options and undertake any of the alternatives, including the obvious choice of commencing his shift at 10:25 pm, but he also had waited outside for Mr Smith with the intention to fight him and “to cause as much injury to him as [he] could”. In light of these admissions, we consider the misconduct to be so serious that it outweighs the findings outlined in [47]-[48] above. The Full Bench accepts DP World’s submission that a kick to the head is potentially extremely dangerous. It is notorious that a sharp knock to the head can lead to serious injury, even death. Mr Smith was lucky that Mr Lambley was wearing runners and not steel capped work boots. It cannot be reasonably argued that in such circumstances dismissal is disproportionate to the gravity of the misconduct.
[54] While we have considered the “set up” theory and the findings of the Deputy President at first instance, we do not consider it necessary for this Full Bench to make a finding regarding this theory. This is because, in light of the findings above, even if there was sufficient evidence to conclude that Mr Smith had “set up” Mr Lambley, it would not outweigh the voluntary and deliberate conduct of Mr Lambley which was intended to cause Mr Smith as much injury as possible. Regardless of Mr Smith’s conduct, Mr Lambley’s actions were so severe and so serious that the dismissal cannot be regarded as harsh, unjust or unreasonable.
Conclusion
[55] Having considered the factors contained in s.387 of the Act, and having weighed the seriousness of the conduct against the mitigating circumstances, we consider that Mr Lambley’s dismissal by DP World was not harsh, unjust or unreasonable. Accordingly, the Application must be dismissed. Appropriate orders will be issued with this decision.
[56] We note that parties had requested further time to file additional submissions relating to Mr Lambley’s income since his dismissal by DP World. This information is of course relevant when determining the appropriate remedy. Given the finding above, we did not consider it necessary to consider these submissions or to wait for such submissions to be filed.
[57] Finally, it is also relevant to briefly mention the issue involving broader policy implications that might follow with any finding in favour of Mr Lambley. The suggestion that a finding in favour of Mr Lambley which was accompanied by some significant financial penalty, would not offer implicit condonation of fighting in the workplace, is with respect, a proposition based upon the erroneous assumption that such an outcome would be subject to detailed and rational examination in the workplace. Unfortunately, those who intimidate and perpetrate physical violence in the workplace are generally disinclined to undertaking detailed examination of issues and instead act and react to very basic concepts and communications.
REASONS FOR DECISION OF VICE PRESIDENT LAWLER
[58] I have had the advantage of reading the reasons for decision of the majority in draft form. Unfortunately, I find myself unable to agree with the majority.
[59] On 21 March 2012 Deputy President Sams delivered a decision allowing an application for an unfair dismissal remedy by Mr Lambley and ordering his reinstatement by DP World ([2012] FWA 1250).
[60] On 3 April 2012 DP World filed an appeal against that decision. On 22 June 2012 a Full Bench of Fair Work Australia (Watson VP, Hamilton DP and Simpson C) issued a decision (DP World Sydney Ltd v Lambley [2012] FWAFB 4810) in which it stated:
“[26] [The factors in s 387] 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.
[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 (sic) 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.”
(footnotes omitted)
[61] Mr Lambley brought an “appeal” against the decision of the Full Bench in the Federal Court.
[62] On 10 January 2013 Katzmann J issued a judgment ([2013] FCA 4) dismissing Mr Lambley’s application for review. Her Honour noted:
“16. There were three grounds of appeal:
(1) the Deputy President erred in finding that Mr Lambley was set up;
(2) the Deputy President erred in failing to find that the gravity of the misconduct outweighed all other factors; and
(3) the Deputy President erred in ordering reinstatement.
17. In support of the second ground DP World submitted that, having regard to the Deputy President’s findings as to the very serious nature of Mr Lambley’s conduct, the conclusion that the assault amounted to a valid reason for his dismissal, and the terms of DP’s disciplinary policy against fighting, the Deputy President’s conclusion that the dismissal was nevertheless harsh, unreasonable and unjust was “contrary to authority and constituted an error because it was a decision that was unreasonable and plainly unjust”.
18. The Full Bench considered only this ground, upholding DP World’s submission, and finding it unnecessary in these circumstances to consider the remaining grounds.”
[63] Katzmann J held that the reasons of the Full Bench were affected by error:
“33. The statement in the second sentence of [26] of the reasons of the Full Bench appears to be at odds with the proposition that a dismissal may be “harsh in its consequences for the personal and economic situation of the employee” (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (“Byrne”)) and if it purports to be a proposition of law, it deflects attention from the terms of the statute itself. The Full Bench recognised in [25] that all the factors in s 387 must be given due weight but in the paragraphs that follow, it appears to discount as a matter of principle any weight being given to factors not expressly mentioned in the section, despite the presence of para (h).
34. DP World accepted that it was an overstatement on the part of the Full Bench to say (as it did in [27]) that the authorities 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. It is certainly not an accurate reflection of what Moore J said in AWU–FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385, which is one of the two authorities to which the Full Bench referred. There, his Honour observed that generally the attitude of industrial tribunals tends to be that, absent extenuating circumstances, a dismissal for fighting will not be regarded as harsh, unjust or unreasonable. Even if this could be said to be the effect of the authorities, it was not a binding rule which could be applied to confine the discretion of FWA more narrowly than the Parliament intended (Norbis v Norbis (1985) 161 CLR 513 at 537 per Brennan J).
35. It is possible that in these passages the Full Bench was doing no more than indicating that in practice an employee found to have been fighting at the workplace will rarely be able to establish that his or her dismissal was harsh, unjust or unreasonable. But the language it used suggests that it was doing more than this.
36. The second “purported principle” (contained in [26] of the reasons of the Full Bench) is also a sweeping statement. The Full Bench cited Byrne and Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (“Australian Meat Holdings”) for it. DP World submitted that the Full Bench was merely paraphrasing what was said in those cases. I disagree. In Byrne, which was concerned with whether the dismissal of a number of employees was harsh, unjust or unreasonable in breach of the provisions of a clause in an industrial award, McHugh and Gummow JJ observed at 465:
[i]t 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.
37. In Australian Meat Holdings the Full Bench extracted this passage. It also provided a reasonably accurate summary of it. In this case, however, the Full Bench did neither. In particular, it omitted any reference to the personal and economic consequences for the employee, one of the bases upon which Mr Lambley had challenged his dismissal.
38. The Full Bench concluded at [31] that the Deputy President fell into appealable error because he did not adopt an approach consistent with “these principles”. It is not entirely clear what the Full Bench meant by “these principles” but it must at least have included the three propositions called into question by Mr Lambley. In enunciating these propositions and in reaching its conclusion relying on them, the Full Bench itself erred.”
(underline emphasis added)
[64] The Federal Court may only interfere with a decision of a Full Bench if jurisdictional error is established. Katzmann J held that the errors she had identified were errors within jurisdiction. Accordingly, no jurisdictional error having been established, her Honour was obliged to dismiss Mr Lambley’s application for prerogative relief and did so (para [42]).
[65] Katzmann J identified a further deficiency in the decision of the Full Bench. Mr Lambley had “submitted, in effect, that even if the Full Bench validly found appealable error it failed to complete its jurisdictional task because, having found error, it did not go on to exercise the discretion for itself.” (para [49]). Her Honour accepted that argument noting:
“It is clear that the Full Bench took the view that any proper exercise of the discretion would have resulted in only one answer, namely, that the dismissal was not harsh, unjust or unreasonable. At [33] it described the way in which the Deputy President had exercised his discretion as “unjust”. But the Full Bench did not purport to exercise the discretion for itself. It made no order disposing of the application. I therefore accept Mr Lambley’s submission that the Full Bench did not go on to exercise the discretion for itself. Yet, this was not a jurisdictional error as Mr Lambley contended because s 607 of the Act does not require the Full Bench to exercise the discretion for itself. It could have done so (see s 607(3)), but it did not. Consequently, mandamus does not lie: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [70]. The decision of the Deputy President having been quashed, the application now needs to be determined afresh.”
(underline emphasis added)
[66] As a consequence of these findings the President reconstituted the Full Bench to complete the function of the Full Bench consistent with her Honour’s reasons for judgment.
[67] In the mean time, Mr Lambley had filed an appeal against the decision of Katzmann J and DP World filed a cross-appeal. That appeal and cross-appeal are yet to be determined. An issue arose as to whether the reconstituted Full Bench should deal with the matter before the appeal to the Full Court was resolved. By majority (Lawler VP dissenting), the reconstituted Full Bench decided that the matter should be adjourned pending the resolution of the appeal and cross-appeal in the Full Court.
[68] When the appeal and cross-appeal came before the Full Court, it considered that the reconstituted Full Bench should complete its function before the appeal and cross-appeal in the Full Court are determined. It is also clear that the Full Court considered that issues raised by DP World’s cross-appeal should form part of the further consideration of the matter by the reconstituted Full Bench. [See Federal Court transcript of 13 August 2013 in proceedings NSD 158 of 2013 at p 14-15.]
What is the Full Bench, as presently constituted, doing?
[69] It will be apparent from the foregoing that this decision arises in very unusual circumstances.
[70] The issue of precisely what the Full Bench as presently constituted should do in light of the decision of Katzmann J was a matter addressed at a directions hearing, in written submissions and in oral argument at the hearing. Was it open and/or appropriate as a matter of discretion for the Full Bench as presently constituted to:
(i) determine the appeal against Sams DP afresh, correcting for the errors in the earlier Full Bench decision identified by Katzmann J;
(ii) conduct afresh the re-hearing that Katzmann J found the Full Bench as initially constituted had failed to complete; or
(iii) merely complete that re-hearing required as a result of the earlier Full Bench decision finding error and quashing the decision of Sams DP by giving effect to the conclusion on the re-hearing that was obviously intended by the Full Bench as initially constituted?
Senior Counsel for DP World contended for (iii). Senior Counsel for Mr Lambley did not press for (i), and instead accepted (ii) and argued against (iii). The hearing before this reconstituted Full Bench proceeded as (ii).
[71] For the reasons that follow, I consider that it was open to the Full Bench to undertake (i) and that it should now do so, in the proper exercise of its discretion.
[72] Justice Katzmann identified errors in the decision of the Full Bench as initially constituted. However, while those errors went to the heart of Full Bench’s decision, Katzmann J found that they were errors within jurisdiction and therefore were not errors that her Honour had power to correct. Katzmann J’s conclusion that there was no jurisdictional error meant that the appeal by Mr Lambley before her Honour had to be dismissed.
[73] However, Katzmann J also concluded that the Full Bench as initially constituted had not completed its function - it had not yet completed the re-hearing required as a consequence of its finding that the decision of Sams DP was affected by error and it’s quashing of Sams DP’s decision. If the appeal before the Full Bench as initially constituted was not complete then the Full Bench was not functus officio. The appeal needed to be completed and the Full Bench had power (and responsibility) to complete it.
[74] It would have been open to the President to permit the Full Bench as initially constituted to complete its function. Instead, the President chose to exercise his power to re-constitute the Full Bench, no doubt to eliminate any possible apprehension of bias in the circumstances. Member availability issues led to a further two re-constitutions before the Full Bench as presently constituted conducted a hearing.
[75] It is a mistake to analyse the situation as if there is a first Full Bench and a second Full Bench dealing with separate matters. A Full Bench has been dealing with the appeal by DP World against the decision of Sams DP from the time of its filing and continues to deal with that appeal. The fact that the Full Bench has been reconstituted is immaterial.
[76] It is trite that a court or statutory tribunal, seized of the necessary procedural power, is able to correct errors in its processes at any time prior to it becoming functus officio. The recall of a decision before final orders is a well-established, if rarely-occurring, feature of our legal system. That power is inherent in superior courts. In the case of the Commission, as a creature of statute, it has only the powers conferred by statute. Sections 589 and 602 the Act provide:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.
602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.”
[77] Section 589 confers a very broad power on the Commission to make procedural and interim decisions. The error in the earlier Full Bench decision, having been identified by a judge of the Federal Court in a decision binding on the Commission, must now be regarded as an “obvious error, defect or irregularity” within the meaning of s.602(1).
[78] Sections 589 and 602 are separate sources of power for the Full Bench as presently constituted to withdraw the decision of the Full Bench as initially constituted and rehear DP World’s appeal from the decision of Sams DP, correcting for the errors within jurisdiction identified by Katzmann J. A power in the Full Bench as presently constituted to amend the earlier decision to correct for those errors is also supported by s.586(a) and the broad approach to such a power adopted by the Full Bench in Refined Sugar Services Pty Ltd v AWU [2008] AIRCFB 1069.
[79] It is a fundamental principle of the jurisprudence of appeals in the Commission that a Full Bench can allow an appeal and exercise its powers under s.607(3) if and only if there was error on the part of the member at first instance: Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at [17] and [32]. That decision related to a predecessor provision, s.45(7) of the Workplace Relations Act 1996, but with reasoning that is equally applicable to s.607(3) of the Act.
[80] The Full Bench as initially constituted could only exercise its statutory power to allow the appeal and quash the decision of Sams DP if it properly found that the decision was affected by an error coming within the principles in House v R. It is tolerably clear that Katzmann J considered that the Full Bench was wrong in finding that Sams DP had misapplied the principle in AWU–FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385. To the extent that it is necessary, that is also my conclusion, for the reasons given by Katzmann J.
[81] If Sams DP did not err as found by the Full Bench as initially constituted then there was no House v R error and the Full Bench in truth had no power to make the orders that it did. If that is so, the proper outcome of DP World’s appeal is an order withdrawing the decision of the earlier full bench and appropriate orders flowing from a re-consideration of whether the decision of Sams DP was affected by House v R error. In all the circumstances of this case, that is the course that should be adopted. I note that the relevant powers can be exercised at the initiative of the Commission (s.589(2), s.601(3)) and are therefore not precluded as a result of the position adopted by Senior Counsel for Mr Lambley.
[82] After correcting for the errors within jurisdiction identified by Katzmann J, I am unable to discern any House v R error in the decision of Sams DP but must hold that view as a provisional view because the Full Bench as presently constituted did not hear full argument on that issue and I may be persuaded to a different view after full argument.
[83] Notwithstanding the extensive debate over what this Full Bench ought be doing, the matters noted at paragraph [70] above mean that the parties, and especially DP World, would require a further opportunity to be heard if the appeal were to be determined in the manner that I favour. That is what would have occurred if my view of the matter had prevailed. However, given the decision of the majority, that will not occur.
[84] I have considered the issues raised in DP World’s cross-appeal in the Full Court but conclude that they do not alter my decision in this matter. In summary:
(a) I consider that Katzmann J was correct in her conclusion that the Full Bench as initially constituted had not completed the performance of its functions in respect of DP World’s appeal against the decision of Sams DP.
(b) That formal steps required by the Act must occur before the Commission can validly complete a function it is performing under the Act. In this case, those steps either occurred or they did not. A formal step, such as the making of an order finally disposing of an application, cannot be taken to have occurred if it did not in fact occur. The Full Bench as initially constituted did not dismiss the Mr Lambley’s application for an unfair dismissal remedy. It cannot be taken to have done something that, in fact, it did not do.
(c) The Full Bench, as reconstituted, is not bound to give effect to the obviously intended outcome of an earlier decision found by the Federal Court to have been affected by error within jurisdiction. There is a public interest in a Full Bench of the Commission taking whatever steps are necessary and appropriate and within power to correct such error.
[85] The balance of these reasons addresses my conclusions on the rehearing of Mr Lambley’s unfair dismissal application, being conducted as a result of the matters referred to in paragraph [70] above.
Rehearing of Mr Lambley’s Unfair Dismissal Application
[86] While there is some debate about whether the doctrine of stare decisis applies within the Commission, it is certainly the case that the Commission is bound by decisions of the Federal Court, or at least decisions of Full Court of the Federal Court and decisions of single judges of the Federal Court sitting on appeal from decisions of the Commission or its predecessors to the extent that they are on point. I proceed on the basis that this Full Bench is bound by the reasoning and conclusions of Katzmann J to the extent that they bear upon the proper resolution of the rehearing.
[87] It follows that the rehearing must be conducted in a manner that is free of the errors identified in the judgment of Katzmann J. Those errors went to the heart of the first Full Bench’s reasons for concluding that the appeal should be allowed and what it obviously considered was the correct outcome (but did not give effect to), namely that the originating application for an unfair dismissal remedy should be dismissed.
[88] It further follows that the reconstituted Full Bench is not bound to conduct the rehearing on the basis of the conclusions of, or findings made by, the Full Bench as initially constituted and should instead conduct the rehearing afresh in accordance with principle, and inconformity with the reasons of Katzmann J.
[89] In particular, it follows that this Full Bench is not bound by the conclusion of the first Full Bench that “there has been an unjust result to Mr Lambley’s unfair dismissal application” because that conclusion was informed by an erroneous conception of the relevant principles in the manner described by Katzmann J. It is tolerably clear that Katzmann J apprehended that a conclusion that Mr Lambley’s dismissal was harsh, unjust or unreasonable may be open on a proper application of the statutory test and applicable principles.
[90] Further, in exercising the discretion for itself and finally “disposing of the [originating] application”, this reconstituted Full Bench should take account of all relevant matters and submissions, including matters raised in the grounds of appeal not considered by the first Full Bench and the issues raised by DP World’s cross-appeal in the Full Federal Court.
[91] The Full Bench did not have the benefit of seeing the witnesses give their evidence, consistent with the reasoning of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [22] - [31], the rehearing should proceed on the basis that primary findings of fact made by Sams DP that were likely influenced by his assessment of the witnesses and should be accepted unless those findings are shown to be affected by relevant error. Of course, this Full Bench is in as good a position as Sams DP to make intermediate findings of fact from the primary findings or to draw inferences and in relation to the ultimate determination as to whether, given the findings, the dismissal was harsh, unjust or unreasonable (cf. Warren v Coombes (1979) 142 CLR 531 at 551).
[92] Mr Lambley was dismissed for fighting with his supervisor, Mr Peter ‘Romper’ Smith, in breach of the DP World’s Disciplinary Policy. Mr Smith was dismissed as well.
[93] The central issue in the case was whether, on the facts of the case, Mr Lambley’s dismissal was harsh, unjust or unreasonable notwithstanding the existence of a valid reason for his dismissal, such that he ought be found to have been “unfairly dismissed” within the meaning of s.385 (see also s.394(1), s.390(1)(b)).
[94] In determining whether a dismissal was “harsh, unjust or unreasonable”, the Commission is required to consider each of the matters specified in s.387(a) to (g) and “other matters that FWC considers relevant” as required by s.387(h).
Section 387(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
[95] The P&O Ports Human Resources Handbook makes clear that fighting at work is an example of a breach of policy which may result in suspension and/or dismissal. The Disciplinary Policy relevantly states:
“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.”
[96] Under the heading ‘Suspension, dismissal’, the Disciplinary Policy states:
“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; |
Possession, consumption or sale of prohibited substances on site; Reporting for work or working while under the influence of performance affecting drugs; Behaviour or acts which contravene common law; Repeating a breach which had previously been subject to a written warning.” |
(emphasis added)
[97] The fight occurred in the car park of the Botany Terminal, part of the property of the employer. It occurred while Mr Lambley was ‘on duty’.
[98] The background to the fight is addressed below.
[99] The fight was witnessed by three people who were standing close to it: Mr Lambley’s son Michael, Mr Lewis and Mr King. It was also captured on CCTV recordings. The CCTV recordings show that Mr Lambley left the building and waited in the car park for about 20 minutes before the fight occurred. At one point Mr Lambley moves quickly towards a person leaving the building but then stops (presumably, Mr Lambley initially thought that this person was Mr Smith). As soon as Mr Smith leaves the building and walks into the carpark, Mr Lambley can be seen moving quickly towards him. The two men come together. It is apparent that words are exchanged for a short time. Mr Smith can been seen moving in close to Mr Lambley but with his arms remaining by his side. Mr Lambley throws a punch that connects with Mr Smith’s head, grabs him in a right handed headlock and jabs at his head with his left fist and then throws him to the ground. Mr Lambley then circles Mr Smith and delivers a kick to Mr Smith head. The kick is delivered with force (Mr Lambley admitted that he was attempting to do damage). Mr Smith does not attempt a blow at any point. Viewed in isolation the CCTV footage suggests that Mr Lambley is the aggressor and that Mr Smith did not fight back in any way.
[100] The CCTV recordings have no audio. Mr Lambley’s account of the actual fight was summarised by Sams DP as follows:
“[11] The applicant said that Mr Smith was thrusting his chin and chest out at him. He thought there was no way of escaping an altercation. He was concerned that given Mr Smith’s size and that on two other occasions, he had put ‘heads into the concrete,’ he should ‘get in’ first. He then hit Mr Smith twice. Mr Smith appeared to purposely fall to the ground. The applicant said he then lost control and when he attempted to drag him up, he was actively resisting and pulling on him, so he kicked him around the head. Another employee who was present, Daniel Lewis, said ‘break it up, that’s enough’. The applicant said that when he started to walk away, he was worried that Mr Smith wasn’t really hurt and he feared turning his back to him.
[12] The applicant said he then heard the following exchange between Mr Lewis and Mr Smith:
Lewis: ‘Come on, Romper, I’ll help you up’.
Smith: ‘Fuck off, Roid (steroid) Head’.
Lewis: ‘What did you call me?’.
Smith: ‘You heard, Roid Head, I told you to fuck off’.
Lewis: ‘That’s it, you have done your dash with me’.”
[101] Sams DP accepted that evidence, as do I. It is not inconsistent with the CCTV recordings.
[102] There is no contest that Mr Lambley’s conduct involved a clear and serious breach of the Disciplinary Policy that constituted a valid reason for dismissal.
[103] Of course, a finding that Mr Lambley’s conduct constituted a valid reason for dismissal is not the end of the matter: the issue remains whether, having regard to all the circumstances of the case, the dismissal was harsh, unjust or unreasonable notwithstanding the existence of that valid reason. The resolution of that issue requires weighting the seriousness of the misconduct against the factors. See generally the discussion and authorities cited in B, C and D v Australia Post [2013] FWCFB 6191 at [41] and following especially at [58] – [59].
Section 387(b) - whether the person was notified of that reason
[104] Mr Lambley was notified of that reason.
Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[105] Mr Lambley was given an opportunity to respond.
Section 387(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
[106] DP World allowed Mr Lambley to be represented.
Section 387(e) - if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[107] The dismissal related to misconduct rather than unsatisfactory performance.
Section 387(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
[108] DP World is a large business with dedicated human resource specialists both of which impact on procedures followed in effecting a dismissal. In this case DP World utilised its human resource management specialists and followed a disciplinary process that was procedurally fair.
[109] None of the matters in s.387(b) to (g) weigh in favour of the dismissal bring harsh, unjust or unreasonable.
Section 387(h) - any other matters that the FWC considers relevant
The broader circumstances giving rise to the misconduct
[110] Sams DP accepted the evidence of Mr Lambley that he summarised as follows:
“[6] The applicant had worked for the respondent (and its predecessor entity, Container Terminals Australia Ltd) since October 1981. At the time of his dismissal he was a multi-skilled Grade 5 employee predominantly performing clerical duties. The applicant said that in 30 years working at Port Botany, he had never had an altercation with any employee and had never had any serious disagreements with anyone, except Grade 6 Foreman, Peter Smith (known as ‘Romper’).
[7] The applicant claimed that Mr Smith went out of his way to make things difficult for him, including rearranging his allocated tasks or giving him difficult or boring jobs for no reason other than to assert his authority. The applicant said that Mr Smith had taunted a number of other employees to fight him at work and away from work. He believed that Mr Smith, who he described as a ‘standover’ man, did not like him because he was prepared to speak up for other employees. In May 2011, Mr Smith had shoulder charged him in the canteen for no reason. However, he did not report this incident.
[8] The applicant described another incident involving a female employee, Andrea Hunter, who had misplaced her keys and security pass while travelling on the site bus. The driver later handed them in to Mr Smith. When she had asked for her keys, Mr Smith said he couldn’t help. While Ms Hunter was upset, the applicant told her not to show it, as this was what Mr Smith wanted. He told her that it was likely the keys would ‘reappear’ at the end of the shift, which they did. When the applicant had confronted Mr Smith, he was told to ‘fuck off’ and ‘mind your own business’. The applicant believed his intervention in support of Ms Hunter upset Mr Smith and was a factor in his continued harassment of him. From that time on, Mr Smith would regularly provoke him and say things like, ‘fuck off dog’.
[9] The applicant described his version of events on the night of 5 June, 2011. When he arrived for work with his son (who was also working on the night shift), he had his name recorded in the canteen by the Charge Foreman, Ray Cummings. During his oral evidence, the applicant drew a diagram of the location of various persons in the canteen at the time. When he went to sit in his usual seat in the canteen, Mr Smith was sitting there. He was surprised by this, as Grade 6 Foremen seldom sat where operational wharfies sit in the canteen. The applicant sat in another seat about four metres from Mr Smith. Soon after the following exchange occurred:
Smith: ‘Get outside, you dog cunt, I am going to cave your head in’.
Lambley: ‘What did you say, are you speaking to me?’
Smith: ‘You heard me, don’t you dog it, I will see you outside in 10 minutes’.
The applicant was distressed about what might happen next. He went out into the foyer of the building and was soon joined by his son. He said that he went outside through the front door, as he knew that Mr Smith always left the building through the back door and he would therefore avoid contact with him. The applicant asked his son to speak to Mr Smith and persuade him to ‘drop off’. When his son returned, he told him that Mr Smith had said ‘that he was going to cave his head in’.
[10] While standing outside, the applicant spoke to several passing persons - one was Mark Walden (‘Wombat’), a friend of Mr Smith. The applicant asked him where the bully was and Mr Walden had replied ‘don’t worry, don’t you move, he is right behind me’. The applicant then heard Mr Smith’s voice to his right and some 15 yards away. The following exchange occurred:
Smith: ‘Hey dog, I’m up here, come on up here. You stuck up for that blonde moll [sic]’.
Lambley: ‘You’re a big tough bikie - you should not be picking on girls’.
[11] The applicant said that Mr Smith was thrusting his chin and chest out at him. He thought there was no way of escaping an altercation. He was concerned that given Mr Smith’s size and that on two other occasions, he had put ‘heads into the concrete,’ he should ‘get in’ first. He then hit Mr Smith twice. Mr Smith appeared to purposely fall to the ground. The applicant said he then lost control and when he attempted to drag him up, he was actively resisting and pulling on him, so he kicked him around the head. Another employee who was present, Daniel Lewis, said ‘break it up, that’s enough’. The applicant said that when he started to walk away, he was worried that Mr Smith wasn’t really hurt and he feared turning his back to him.
[12] The applicant said he then heard the following exchange between Mr Lewis and Mr Smith:
Lewis: ‘Come on, Romper, I’ll help you up’.
Smith: ‘Fuck off, Roid (steroid) Head’.
Lewis: ‘What did you call me?’.
Smith: ‘You heard, Roid Head, I told you to fuck off’.
Lewis: ‘That’s it, you have done your dash with me’.
...
[14] The applicant went over to Mr Cummings’ office to get instructions to go to work. Mr Cummings had said:
‘You idiot, he set you up and you took the bait’.
He replied:
‘Ray if you knew that much why didn’t you say something?’
The applicant was subsequently directed to leave the site. He was questioned by the Police who had arrived at the Terminal after the incident.
...
[26] The applicant reiterated that Mr Smith would regularly reallocate his tasks to more difficult or boring jobs. Other supervisors had told him that it was Mr Smith who would change the tasks. He agreed that he had never complained about Mr Smith changing his tasks. He insisted Mr Smith had taunted and fought with other named employees. He accepted that he was not always present when these incidents had occurred.
...
[28] The applicant said that while he was waiting in the foyer he went to the toilet three times, as he was ‘very, very nervous’. He said that he thought Mr Smith would exit through the back door (and their paths would not cross) because his locker room was right next to the back door. He denied sending his son back inside to find Mr Smith and see when he was coming outside to fight. Outside the front entrance, the applicant denied asking Mr Walden ‘where’s your fat fucking mate?’ He had said ‘where’s the bully?’ Mr Walden had replied ‘right behind me’. He had hoped Mr Smith had gone home. He had not offered Mr Smith the fight. He denied walking towards the turnstiles to confront Mr Smith. He insisted Mr Smith was thrusting his chin at him and saying ‘hit me, hit me’. He denied calling him ‘a dog’.
[29] The applicant insisted that while Mr Smith was on the ground he had said to Mr Lewis ‘fuck off roid head’ when he went to help him up. He had also said to Mr King ‘fuck off you black cunt’. ...”
[32] In re-examination, the applicant gave details of an incident in which another employee, Mr O’Keefe, had once said ‘I’ve got to go or he’s got to go, one of the two’ in regard to Mr Smith’s intimidation and bullying of him. The applicant had replied ‘it’s not worth it, just walk away’. Mr O’Keefe replied ‘I can’t hack it, it’s doing my head in’. Mr O’Keefe had subsequently left the employ of the respondent. The applicant also described an incident in which his tasks had been changed and Mr Smith just stood there waiting for him to react.”
[111] It is clear that, with the benefit of seeing the witnesses given their evidence, Sams DP accepted this version of events subject to the CCTV recordings. I respectfully adopt Sams DP’s approach to that evidence and find that, in addition to what is evident on the CCTV recording, the events unfolded as Mr Lambley contended.
[112] Sams DP summarised the evidence of Mr King, a witness to the fight:
“[40] Mr King is 25 years old and commenced employment with the respondent in September, 2008. He is also a qualified personal trainer. Mr King said he had not had any disputes with Mr Smith, as he was irregularly rostered and had only worked with him on a few occasions. However, he knew his nickname was ‘Romper’.
[41] On the 5 June 2011, as he was leaving the site in his car, he observed the applicant outside the front doors. He wound the window down and observing that he seemed ‘wound up and upset’, he asked him what was wrong. The applicant said that it looked like he was going to have to fight someone. Mr King told him to settle down.
[42] Mr King said he then saw ‘Romper’ come ‘flying out’ of the turnstiles and down the stairs. He was calling the applicant ‘a dog’ and other abusive names and as he came towards him, he pointed at his chin telling the applicant to hit him. Mr King observed the applicant punch Mr Smith twice. Mr Smith went to ground and covered his head with his hands. Mr King then jumped between them and said:
‘Get up and go home, Romper. He didn’t even get you. Stop putting on an act. Get out of here; you don’t want to lose your job.’
Mr King said that ‘Romper’ had then winked at him and it was then that he realised that he wasn’t hurt. The applicant then kicked Mr Smith in the torso. He then pulled the applicant back and told him it was ‘over and no more’.
[43] When Mr King put his hand behind ‘Romper’s’ back to help him up, he whacked his hand away. He then got up quickly, unassisted and then feigned to throw a punch at Mr King, which did not connect. ‘Romper’ then said ‘you little black cunt, you’re always hanging out of his arse’. Mr King told him he was pathetic and as he had just been ‘towelled up by an old bloke’ he should not start with him. A few people were now milling around (including Mr Lewis) and ‘Romper’ was lying on the ground holding his jaw and pretending he was hurt. When Mark Dreyer asked Mr King what had happened, he replied ‘nothing much - it was a weak effort’.
[44] Later Mr King had three meetings with management and signed a statement after the third meeting. He told management what ‘Romper’ had said to him and that he had winked at him while he was on the ground. He described the incident as ‘very strange’ as it was most unlike the applicant to be a fighter, ‘Romper’ had baited him to fight and then pretended he was injured. Mr King added that the applicant was well liked at work and stood up for other people.”
(underline emphasis added)
[113] Sams DP accepted Mr King’s evidence (para [144](f)). On the rehearing I accept that evidence also.
[114] Sams DP made a finding, inferred from the evidence, that Mr Lambley had been ‘set up’ by Mr Smith. I draw the same inference from the evidence, including in particular:
• About a month before the incident Mr Smith told Mr McIntyre’s that ‘I am going to get [Mr Lambley], I am going to fuck him up’ (see para [144](g) for Sams DP’s acceptance of Mr McIntyre’s oral evidence to this effect).
• Mr Smith provoked and demanded the fight, and refused to Mr Lambley’s requests, conveyed by his son, that the fight not proceed.
• After the two had come together, Mr Smith continued to goad Mr Lambley to fight and stepped close to him in a manner calculated to provoke a physical response from Mr Lambley.
• Mr Smith’s physical passivity - he did not raise his hands or attempted to defend himself in any way when Mr Lambley started fighting.
• Prior to the fight, there had been discussion among employees that Mr Smith was being “set up” as suggested, for example, by the remarks of Mr Cummings to Mr Lambley immediately after the fight.
• Mr Smith’s wink at Mr King.
• “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.” (see Sams DP’s decision at para [144](e)).
• Mr Smith’s pestering of Mr King by phone in the following days and his implausible excuse for that action suggesting a consciousness that Mr King could expose that things were not as the seemed (see Sams DP at para [144](e)).
• The manual movements of the CCTV camera which strongly suggest that the operator had prior knowledge of the fight.
[115] It is true that it is possible that the CCTV camera may have been manually operated by another employee who had heard about the fight and acted on their own initiative and without any involvement from Mr Smith. However, like Sams DP, I find that it is more likely than not that the camera was operated by an employee at the behest of Mr Smith. Mr Smith’s physical passivity and his wink to Mr King are telling and suggest that Mr Smith was aware that he was being filmed. Given his goading of Mr Lambley, Mr Smith’s physical passivity suggest that he wanted Mr Lambley to hit him without any physical response being recorded.
[116] Sams DP also accepted the evidence of Mr Barnes “...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.” (at [144](h)).
[117] Sams DP set out the effect of evidence given by Ms Hunter in an unchallenged statement.
“[58] Ms Hunter provided an uncontested statement and was not required for cross examination. Her statement described the reasons behind her workplace injury. She said she had a good relationship with all employees and the management team at Port Botany - except for Mr Smith. Ms Hunter said that about a year after she commenced employment, Mr Smith would manipulate her shifts, so she would not be upgraded. As a result, she was not allocated a fair share of upgrade payments. When she approached Mr Smith about it, he denied being involved in any way.
[59] In late 2009 or early 2010, Ms Hunter noticed a trend of when she signed on for her shift, Mr Smith would ignore her and call others out of order. She said while this was a trivial nuisance, she felt embarrassed and humiliated by his behaviour.
[60] On 23 February 2010, Ms Hunter misplaced her personal diary at work. It contained sensitive information about the way Mr Smith had acted to inconvenience, embarrass or disadvantage her. The diary had been handed into another Grade 6 employee, Mr Greg Cleary, who having established its ownership, had put it in a sealed envelope and placed it in the back of the top drawer of a desk in the Grade 6 Foremen’s Room. Mr Smith was the Grade 6 Foreman on the following day and the diary could not be found.
[61] On 24 March 2010, Ms Hunter misread her roster and rang in to say she could get to work quickly, as she only lived 5 minutes away. She rang the terminal and spoke to Mr Smith to say that she could get there in 5 minutes if he could verify her allocation. He didn’t reply and hung up on her. She called again and the following conversation took place over the phone:
Smith: ‘Don’t you fucking dare come in here! You have been replaced. You won’t get a fucking start’.
Hunter: ‘Why didn’t you phone me? Where’s your duty of care? I might have been in a car accident’.
Smith: ‘What are you talking about? We don’t have a duty of care to call anyone. I don’t call anyone if they FTR (fail to report)’.
The call then concluded.
[62] On 9 December 2010, when Ms Hunter was taken to her work location in the site bus, she had left her keys on the bus. When her shift finished early, she called the driver, Simon, who told her he had handed them into the Grade 6 Foreman, Mr Smith. When she contacted him, he denied any knowledge of her keys. She contacted Simon again, who confirmed he had given the keys to him. Ms Hunter was getting upset and teary and she then spoke to the applicant. He had said:
‘Don’t let him see you cry because that’s what he wants. Harden up girl. I am telling you things will be alright, you will see. Your keys will reappear just before knock-off time. This is textbook Romper’.
He said he would speak to Mr Smith about her keys and he did so. Around 10.10pm, another supervisor, Peter McClure approached her with an old safety helmet, containing her keys. She believed it was no mistake that her keys had ended up in the helmet. He agreed and said ‘just forget it’. The next day, Ms Hunter reported the incident to Human Resources. She was tired and upset and went straight to a doctor who gave her three days off as medically unfit for duty.
[63] Ms Hunter returned to work shortly after Mr Smith’s dismissal. She believed a number of people were fearful of becoming involved in these proceedings. Ms Hunter described the applicant as a very kind and generous person who is well liked by other employees. He would stand up for himself and for others. She believed he was pushed to the limit by a bully. She was sure that the workforce would like to see the applicant back at work. Given that he had given support to other workmates, who have been bullied or harassed, when others would simply turn a blind eye, the applicant posed no impediment to a safe workplace.”
[118] Like Sams DP, I accept that evidence and also the evidence of Mr Barnes, summarised by Sams DP as follows:
“[65] ... Mr Barnes had overheard a conversation between Mr Smith and the applicant about a week before 5 June 2011. Mr Smith had said ‘I hope you’re happy. That bitch is coming back thanks to you.’ The applicant had replied ‘That’s good’.
[66] Mr Barnes had observed the applicant on the night of 5 June 2011 shortly after the canteen exchange with Mr Smith. He appeared distressed and when he asked what was wrong the applicant replied: ‘Peter Smith has asked me outside and I am sick of being stood over. I’ve had enough, I’ve had it.’ Mr Barnes then replied: ‘Don’t worry about it, he is only trying to stir you up, he is trying to set you up, come on back inside.’ When Mr Barnes headed back to the Terminal, he came across Mr Michael Lambley and told him that his father was upset and he should go and see him.
[67] That night, when Mr Barnes later went to get his number ticked off, he found that his duties had been altered from Rail Foreman to driving the forklift. He asked Ray Cummings who had changed his work arrangements. Mr Cummings said it was Mr Smith. Mr Barnes went looking for him and they had a heated discussion. During the discussion, Michael Lambley arrived and interrupted their conversation. He said: ‘Peter, what’s going on with my old man, why are you having a go at my old man?’ Mr Smith replied with his face screwed up: ‘Fuck your old man’. He realised that Michael Lambley was trying to protect his father and stop Mr Smith from fighting him. Mr Barnes could see that he was not getting anywhere concerning his changed work allocation, so he left the scene.
[68] Mr Barnes said the applicant was always prepared to give advice and help other employees. The older members of the workforce would be happy to have him back. Other employees had told him that the applicant was unlucky, given Mr Smith’s ‘standovering’ of people and it was only a matter of time before someone snapped. Mr Barnes subsequently told Ms Taylor that management had done nothing about Mr Smith over many years, despite complaints from the workforce, particularly from women. He told her that it appeared to suit the Company to have a ‘stand over’ man in his position.
[69] In oral evidence, Mr Barnes deposed that a few years ago, Mr Smith had called him outside for a fight, but it had just ended up in a verbal clash.”
[119] I adopt Sams DP’s finding (at [144](h)) that:
“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.”
(underline emphasis added)
[120] Sams DP included the following in his summary of the evidence of Ms Taylor, the employer’s Human Resources Manager at Port Botany:
“[84] Ms Taylor accepted that during the investigation the applicant had raised other incidents involving Mr Smith, who he said was a workplace bully. She was also made aware of Mr McIntyre and Mr King’s views of Mr Smith.
[85] Ms Taylor agreed that in the meeting with Mr Bellears and Ms Humphrey on 7 July 2011, they did not discuss the issue of Mr Smith’s previous conduct as a bully; rather the meeting focused on the incident itself. She also agreed that no inquiries were made about Mr Smith’s conduct subsequent to the 7 July 2011 meeting and she had no discussion with Mr Bellears about the matter. Ms Taylor agreed the applicant had been completely ‘up front’, showed remorse and said he should have walked away. She agreed he had conveyed to her that he had been pushed beyond all limits of tolerance. In hindsight, she agreed that perhaps Mr Smith’s history should have been looked at. Ms Taylor explained what bullying was, and the characteristics of a bully. She accepted that a history of repeated complaints demonstrated a pattern of conduct. She confirmed that at no time between 5 June 2011 and 29 July 2011, did the respondent undertake any investigation of the applicant’s claims as to Mr Smith’s history of bullying. She conceded that subsequent inquiries tend to corroborate his claims.
[86] Ms Taylor agreed she had received numerous reports of Mr Smith’s conduct, but nothing could be substantiated. One person had come forward, but no action had been taken. When she had spoken to Mr Smith he was very convincing and said he was just misunderstood. She agreed he repeatedly used this excuse. She now accepts that Mr Smith had acted with impunity for years.”
(underline emphasis added)
[121] Some significance attaches to those concessions. If DP World had responded in a proper way to the “history of repeated complaints demonstrating a pattern of conduct” by Mr Smith, and to his bullying of Ms Hunter, it is more likely than not that action by management would have curbed Mr Smith’s propensity to engage in harassment and bullying such that he would not have provoked the fight with Mr Lambley in the manner that he did. In a practical and commonsense fashion, that ongoing management failure was one of the causes of the incident (compare March v. Stramare (E and MH) Pty. Ltd. (1991) 171 CLR 506 at 515, 522-523, Wardley v Western Australia (1992) 175 CLR 514 at 525, Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6-7, ACQ Pty Limited v Cook [2009] HCA 28 at [27]).
Mr Lambley’s state of mind going into the fight – workplace culture
[122] Mr Lambley’s state of mind is relevant in assessing his level of culpability. Mr Smith was Mr Lambley’s supervisor. He “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” (Sams DP at [144](b))
[123] Mr Lambley had stood up against Mr Smith’s severe bullying and harassment of a female subordinate - bullying and harassment that left Ms Hunter on workers’ compensation with serious stress and anxiety. That was an honourable and decent thing for Mr Lambley to do. It is tolerably clear that but for that honourable action, Mr Lambley would never have attracted Mr Smith’s focussed adverse attention and thus never found himself being challenged to fight by the bully.
[124] About a month before the incident Mr Smith told Mr McIntyre: “I am going to get him (the applicant), I am going to fuck him up” (see para [144](g) for Sams DP’s acceptance of Mr McIntyre’s evidence).
[125] Mr Smith goaded the applicant into fighting, telling Mr Lambley that he would fight him outside and threatening that he would ‘cave his head in’. That threat had been repeated on a number of occasions. (see Sams DP’s decision at para [144](a)).
[126] I adopt the following findings (at para [144](c)) based on oral evidence accepted by Sams DP:
“Mr Lambley 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 ... 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.”
[127] And at [16]:
“[Mr Lambley] had not liked seeing other people humiliated or stood over by Mr Smith. He explained that on 5 June 2011, he did not report Mr Smith’s taunts to go outside as he didn’t want to be labelled as a coward. He also believed nothing would be done about it as management was aware of other fights Mr Smith had provoked, but nothing had been done. The applicant said that when he went outside, he did not appreciate he was being ‘set up’. He had hoped for just a verbal altercation. Moreover, when he was taunted again he believed he needed to ‘get in’ first. ...”
[128] Mr Lambley is a working class man with a value system and mindset that Mr Smith exploited in setting him up. There was a strong prevailing workplace culture against an employee being a “dog”. To Mr Lambley it was a matter of honour and decency that he stood up for Ms Hunter when she was being bullied by Mr Smith in a nasty and vindictive fashion. Mr Smith acted in a way that he knew would force Mr Lambley to fight him as a matter of honour and self-respect as a man and as a matter of face within the prevailing workplace culture. Mr Lambley believed, on reasonable grounds, that taking the matter to management would be ineffective. He had sent an emissary to Mr Smith in an effort to prevent the fight. In the period leading up to the fight, Mr Lambley genuinely felt he had no other alternative. The emissary had been rebuffed. That feeling was still genuine even if wrong and wrong-headed, as Mr Lambley has subsequently recognised. Again, these observations do not excuse the misconduct but they are relevant to an assessment of Mr Lambley’s moral culpability.
The CCTV footage
[129] Senior Council for DP World presented a telling analysis of the CCTV footage to demonstrate that Mr Lambley made a considered decision to engage in the fight and that he had plenty of opportunity to walk away from the fight. However, that analysis is not to the point. Mr Lambley does not deny those basic propositions. Rather, it is put on Mr Lambley’s behalf that, in the particular circumstances, Mr Lambley felt that he had no alternative other than to fight Mr Smith and that, if the fight could not be avoided (as Mr Lambley had tried to achieve), it was better for him to get it over and done with.
Conduct out of character
[130] As with Sams DP, I accept the evidence of Ms Taylor, summarised by Sams DP (at [87]):
“Ms Taylor, the HR Manager, accepted that the applicant had been friendly towards her and she had no reason not to believe that he was a gentleman. She now regarded the incident as ‘out of character’. Ms Taylor says she still does not know who started the fight. However, it was now her firm belief that it was more than likely the applicant’s account of the verbal altercation in the canteen was true. Ms Taylor acknowledged that Mr Smith’s history was a relevant factor and should have been considered in relation to the dismissal.”
(underline emphasis added)
It may be noted that these concessions by Ms Taylor are a significant matter. They demonstrate that DP World’s consideration of the incident at the time of the disciplinary investigation were flawed.
[131] As with Sams DP (at [16]), I find that Mr Lambley was “openly honest during the disciplinary interviews and regretted his foolish behaviour”.
Length of Service
[132] Mr Lambley had 30 years of service at the time of the dismissal. That is a very long period of service. Long service is to be accorded particular weight. That does not mean that an employee with very long services is immune from dismissal for misconduct (see Queensland Rail v Wake (2006) 156 IR 393 at [17] and [30]), rather it means that the dismissal of an employee for particular misconduct in particular circumstances may not be harsh for an employee with a relatively short period of services but harsh if the employee has very long services.
Disciplinary Record
[133] Over the years, Mr Lambley had been spoken to on a number of occasions about particular incidents, but he had never been the subject of any formal warning or disciplinary action. In short, he had quite a good disciplinary record.
Effects of dismissal on the employee and his family
[134] At the time of the dismissal, Mr Lambley was 53 years of age. As an older employee without trade or educational qualifications he has found it difficult to find secure employment. He managed to secure two periods of employment, each for about 10 months, that paid half his salary as an employee of DP World. Mr Lambley has had extended periods of unemployment since his dismissal notwithstanding his genuine attempts to find employment. This experience since dismissal reflects the likelihood that the dismissal would have serious effects on Mr Lambley and his family through loss of income.
Conclusion on whether the dismissal was harsh, unjust or unreasonable
[135] There is no dispute that Mr Lambley was protected from unfair dismissal (s.390(1)(a)). On the unusual facts of this case, and for the reasons I have given and return to below, after weighing relevant matters in the manner specified in Australia Post, I find that that Mr Lambley’s dismissal was harsh (s.385(b) and s.387) and that he has been unfairly dismissed (s.390(1)(b) and s.385).
Remedy
[136] Under the statutory provisions that were operative for many years under the Workplace Relations Act 1996, the authorities held that reinstatement was the “primary remedy” for a dismissal found to be harsh, unjust or unreasonable.
[137] The reinstatement provision in the Act adopts language that is different from the reinstatement provision in the Workplace Relations Act 1996. However, those differences only serve to reinforce the proposition that reinstatement is the primary remedy and that, if a remedy is appropriate, reinstatement should be ordered if it is sought unless the Commission is satisfied on proper grounds that reinstatement is not appropriate. Section 390 of the Act relevantly provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
...
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[138] It may be observed that the statistics published in the annual reports of the Tribunal and its predecessors indicate that reinstatement is ordered in a relatively small proportion of cases, notwithstanding that members are required to regard reinstatement as the “primary remedy”. If it be the case that this reflects a probable failure to properly give effect to that requirement in some cases. The language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.
[139] The central principles applicable to determining whether reinstatement is inappropriate were usefully summarised by the Full Bench in Fletcher v Commonwealth of Australia (Australian Federal Police) [2007] AIRC FB 466 (Watson and Lacy SDPP and Redmond C) (Fletcher):
“[24] The Commissioner himself observed:
"The Commission ought be cautious in considering an employer's claim that they cannot work again with a dismissed employee, as this might inappropriately frustrate the relief of reinstatement provided by the Act."
[25] This is consistent with the principles set out, in the context of the earlier concept of the "practicability" of reinstatement, by a Full Court of the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd. Those principles were conveniently summarised, and found to be relevant to the appropriateness of reinstatement, by a Full Bench in Australian Meat Holdings Pty Ltd:
"In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:
`. . . we accept 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.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits.'
While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case."”
[140] Those observations remain relevant to a consideration of whether reinstatement is appropriate under s. 390 of the Act. The legislature chose to adopt the criterion of appropriateness in circumstances where the decision of the Full Court of Industrial Relations Court in Perkins is a leading authority of which the legislature may be taken to have been aware (see Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, para [3.44]).
[141] The facts and circumstances in Fletcher are instructive and require consideration.
Conclusion on Remedy
[142] In relation to remedy:
(a) Given that the misconduct was out of character and given the experience Mr Lambley has been through, I find it is highly unlikely that Mr Lambley would ever again engage in such misconduct such that loss of trust and confidence should not be an impediment to reinstatement.
(b) I am satisfied that reinstatement is appropriate.
(c) I find it more likely than not that, had Mr Lambley not been dismissed, he would have continued working in his prior role at DP World until his retirement.
(d) In the exercise of my discretion I would make an order for reinstatement under s.390(1) and s.391(1) with an order for continuity under s.390(2) and an order for back pay under s.390(3) determined by calculating the pay that Mr Lambley would have earned in the period since his dismissal had he not been dismissed and had continued working for DP World and deducting from that amount:
(i) All income earned by Mr Lambley in that period; and
(ii) An amount of $30,000 on account of the misconduct that Mr Lambley admittedly engaged in.
Final Conclusion
[143] The proposition that a finding in favour of Mr Lambley will undermine DP World’s policy against fighting or embolden other employees of DP World to disregard a policy against fighting (or have those effects on employer and employees more generally) is preposterous.
[144] A decision in favour of Mr Lambley of the sort I have described still leaves Mr Lambley with an effective penalty of some $30,000. No rational employee would regard this as an insignificant loss or as an outcome that provides an incentive to engage in fighting in breach of policy that would not otherwise have occurred. No rational employee would treat such a decision as abating the risk of serious adverse consequences – including dismissal – for a breach by them of the employer’s policy against fighting.
[145] The outcome I have determined recognises the validity and importance of employer policies against fighting and recognises, as Mr Lambley did, that Mr Lambley engaged in misconduct for which disciplinary action was appropriate and that the circumstances on which he relied did not absolve him of responsibility for his misconduct and did not excuse his misconduct.
[146] I the suggestion in paragraph [57] of the reasons of the majority that the observations in paragraphs [143] and [144] are “based upon the erroneous assumption that the outcome [I favour] would be subject to detailed and rational examination in the workplace”, because, “[u]nfortunately, those who intimidate and perpetrate physical violence in the workplace are generally disinclined to undertaking detailed examination of issues and instead act and react to very basic concepts and communications”.
[147] First, I make no such assumption. My conclusion remains valid even if the outcome I favour were to be transmitted in the workplace in “very basic concepts and communications.” At its most basic, the result that I would determine would be encapsulated by: “The employee sacked for fighting got his job back but he copped a $30,000 penalty instead”.
[148] Secondly, and more fundamentally, the position of the majority in paragraph [57] depends upon the suppressed major premises that because “those who intimidate and perpetrate physical violence in the workplace are generally disinclined to undertaking detailed examination of issues and instead act and react to very basic concepts and communications”, it is necessary to uphold a dismissal for fighting notwithstanding countervailing factors arising from the facts of the particular case, lest a decision to find the dismissal unfair in a particular, detailed circumstances of the particular case be misinterpreted by employees who “are generally disinclined to undertaking detailed examination of issues”. That rationale would be equally applicable in every case of fighting and is fundamentally incompatible with the principle and approach in AWU–FIME Amalgamated Union v Queensland Alumina Limited. It is of a piece with the position of the Full Bench as initially constituted identified as erroneous by Katzmann J. Thus, if the sentiments in paragraph [57] extend to the possibility or probability of ignorant employees (inaccurately) characterising the effect of the decision I favour as - “the employee sacked for fighting got his job back” - that possibility or probability is present in every case of dismissal for fighting.
[149] With respect to the majority, given:
(a) the nasty and vindictive bullying and harassment of employees engaged in by Mr Smith, as DP World’s supervisor of those employees, over an extended period;
(b) the ongoing failure of DP World’s management to address Mr Smith’s bullying and harassment despite numerous complaints over an extended period;
(c) that the evidence, and the primary findings of fact by Sams DP, compel a finding that Mr Smith deliberately and maliciously staged a setup of Mr Lambley in which he deliberately and maliciously goaded Mr Lambley into a fight, in a fashion that made it intolerable to resist for a person of Mr Lambley’s social value system and mindset in the particular cultural context of that workplace, and then arranged for the fight to be captured on CCTV so as to procure Mr Lambley’s dismissal;
(d) the fact that Mr Lambley would never have become a target for that setup but for the fact that he took a stand against Mr Smith’s nasty and vindictive bullying and harassment of a female co-worker - bullying and harassment that left that female employee on workers compensation suffering an ongoing mental health condition;
(e) the fact that Mr Lambley did not want the fight, made efforts through an emissary to avoid it, and engaged in the fight only because, given:
(i) his value system and mindset, and
(ii) the prevailing workplace culture against an employee being a “dog”;
(iii) the ineffectiveness of complaints management about Mr Smith’s bulling and harassment,
he genuinely felt at the time of the fight, even if wrongly, that he had no other alternative;
(f) the fact that nobody suffered any material injury as a result of the fight;
(g) Mr Lambley’s age and very long period of good service;
(h) the likely dire, long term financial and well-being consequences of dismissal for a man of Mr Lambley’s age and educational status;
(i) Mr Lambley’s unqualified acknowledgement that he should not have engaged in the fight and was guilty of misconduct as a result and his genuine remorse; and
(j) given what he has been through, the profound unlikelihood that Mr Lambley would ever again engage in fighting were he to be reinstated.
I do not see how a ‘fair go all round’ demands that DP World’s decision to dismiss Mr Lambley should be upheld.
[150] It is not to the point to observe that the circumstances relied upon by Mr Lambley were “no excuse” for his misconduct. The issue is not whether the circumstances relied upon by the employee “excuse” the misconduct. The issue in a case of this sort is whether in all the circumstances the dismissal was harsh, notwithstanding that the misconduct constitutes a valid reason for the dismissal.
[151] I agree that fighting is a form of misconduct that is prima facie serious, and that the fighting engaged in by Mr Lambley was misconduct that must, on the CCTV evidence, be regarded as serious. However, the very point of the seminal decision in AWU–FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 was to emphasise that, notwithstanding the prima facie seriousness of fighting as a form of misconduct, there can still be cases where the dismissal of an employee who has engaged in fighting will be harsh notwithstanding that the fighting involved misconduct that constituted a valid reason for dismissal. It is not the case that “self defence” is the only ground that will justify that a dismissal for fight was harsh. Each case must be decided on its own facts and circumstances. For the reasons I have given, and without in any way denying the seriousness of the misconduct in which Mr Lambley engaged, it seems to me that the factors listed in the paragraph [149] weigh decisively in favour of a finding that Mr Lambley’s dismissal was harsh in all the circumstances and that he ought be reinstated in the manner I have specified.
[152] However, the decision of the majority prevails and Mr Lambley’s application for an unfair dismissal remedy will be dismissed as the majority has determined.
VICE PRESIDENT
Appearances:
S Crawshaw of Senior Counsel with L Doust of Counsel for Mr Lambley
I Taylor of Senior Counsel with D Mehendra of Counsel for DP World Sydney Limited
Hearing details:
2012.
Sydney:
June 1.
2013.
Sydney:
September 23.
1 Lambley v DP World Sydney Limited T/A DP World Sydney [2012] FWA 1250.
2 DP World Sydney Limited v Lambley [2012] FWAFB 4810.
3 [2012] FWA 1250 at [95].
4 (2003) 214 CLR 118 at [23].
5 (1995) 185 CLR 410.
6 Ibid at 465.
7 (1995) 62 IR 385.
8 Ibid at 393.
9 [2013] FWCFB 6191 at [58].
10 Ibid at [70].
11 Transcript, 5 December 2011, PN302-PN307, PN317-PN320, PN621-PN625 and PN914-PN919.
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