| FWCFB 3323|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.604—Appeal of decision
Ryan Wilks Pty Ltd
VICE PRESIDENT CATANZARITI
SYDNEY, 17 JUNE 2019
Appeal against decision  FWC 1132 of Commissioner Cambridge at Sydney on 7 March 2019 in matter number U2018/8666.
 Ryan Wilks Pty Ltd (Appellant) has lodged an appeal against a Decision 1 and Order2 issued by Commissioner Cambridge on 7 March 2019. In the Decision, the Commissioner granted Ms Trudi Puszka’s (Respondent) application for an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that the dismissal was harsh, unjust and unreasonable. The Commissioner ordered that the Respondent be reinstated to her employment with the Appellant.
 The Appellant sought a stay of the whole Decision and Order. At the stay hearing on 1 April 2019, Vice President Catanzariti refused the stay application and on 2 April 2019 published the reasons for decision. 3
 The Appellant sought permission to be represented and requested this be determined prior to the hearing listed on 13 May 2019. On 20 April 2019, the Full Bench refused the Appellant’s application for permission to be represented, noting that the Respondent is not legally represented and further, taking into account the complexity of the matter, the matter may be dealt with efficiently without the grant of permission to be represented.
 On 13 May 2019, the Full Bench heard the parties on permission to appeal and the substantive appeal. Both the Appellant and the Respondent appeared unrepresented.
 The Commissioner set out the factual background of the matter in paragraphs  –  of the Decision. By way of summary, we note the following:
• The Respondent worked for the Appellant for about one year as a Project Administrator and there were no performance or conduct issues that arose in respect of her employment prior to the evening on Friday, 20 July 2018.
• The Sydney Opera House (SOH) is a major client of the Appellant, and the Respondent undertook her work as a Project Administrator on site at the SOH.
• On Friday, 20 July 2018, the Respondent attended a farewell drinks function (the function) that had been arranged for an employee who was leaving the SOH. The function occurred after work hours, was held in the public bar areas of the SOH site and attendees purchased their own alcoholic drinks.
• At the function, the Respondent consumed a considerable amount of alcoholic drinks and became intoxicated. There was contest between the parties in respect of the detail of the conduct of the Respondent during her period of drunkenness. The Respondent admitted that she had become drunk, vomited onto the floor of the bar area and been assisted out of the bar and into a taxi. The Respondent rejected that she had made insulting and disparaging statements about employees of the Appellant and SOH employees or that she had made propositions of a sexual nature to a SOH employee.
• On 25 July 2018, the SOH Contracts Manager informed the Appellant’s Project Manager at the SOH site of the Respondent’s drunkenness and vomiting at the function. This information was passed on to the Appellant’s NSW Construction Manager, Mr Crome, and an investigation commenced.
• On 31 July 2018, Mr Crome sent the Respondent an email letter headed “Re: Misconduct”, advising that the Appellant had been made aware about the evening of the function which was said to have involved the Respondent’s misconduct in “that she was overheard insulting a Ryan Wilks employee and SOH employees; that she had made propositions of a sexual nature to a SOH employee; that she had vomited on the forecourt area; and that she was escorted by event members to a taxi because of her intoxication.” 4
• The Respondent attended two meetings with Mr Crome and other managers of the Appellant on 1 August 2019 and 2 August 2019. In the meeting on 2 August 2019, Mr Crome advised the Respondent that the Appellant had deemed her conduct at the function to represent serious misconduct and her employment was being terminated immediately.
 The Commissioner set out section 385 of the Act as stipulating the elements the Fair Work Commission (Commission) must be satisfied are met in order to establish an unfair dismissal, and section 387 of the Act as containing the criteria the Commission must take into account in determining whether a dismissal is harsh, unjust or unreasonable. 5
 Having summarised the case of each party, 6 the Commissioner gave separate consideration to each matter required to be taken into account under s 387 of the Act.
 Under the heading ‘387 (a) - Valid reason for the dismissal related to capacity or conduct’, the Commissioner identified the four aspects of the conduct for which the Respondent was dismissed, that conduct to which the Respondent admitted, and said:
“ Any employer should be very cautious about invoking a summary dismissal, as opposed to dismissal with the required notice. In this regard, it is relevant to repeat an extract from the Judgement of Mr Justice Hungerford in the case of Pastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v. Gartrell White (No 3), (Gartrell White) 1:
“The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it.”
 The following further extract from the same Judgement is relevant:
“...the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future.” (Footnotes omitted)
 Also under this heading, the Commissioner considered the evidence in relation to each of the four identified aspects of the Respondent’s conduct which the employer found to represent serious misconduct upon which the summary dismissal was implemented. At paragraph , the Commissioner concluded that:
“ Consequently, those aspects of the reason for dismissal which involved the applicant (a), allegedly disparaging the employer or other employees of the employer or the SOH, and (b), allegedly making propositions of a sexual nature to a SOH employee, namely Mr Baxter, have no basis in fact. Astonishingly, in respect to the allegation regarding any sexual propositioning of Mr Baxter, the employer knew that allegation to be false and yet it relied upon it as reason for dismissal.” (Emphasis added)
 Subsequently, the Commissioner’s consideration of the Respondent’s misconduct proceeded on the basis that “the extent of the applicant’s [Respondent’s] misconduct was confined to her drunkenness and associated vomiting at the after work hours farewell drinks function.” 7
 In relation to the Respondent’s drunkenness and associated vomiting at the function, the Commissioner, having acknowledged the Respondent’s remorse and the Appellant’s understandable concern, said that “there would seem to be a sound basis for the employer to have implemented some form of disciplinary action”. 8 The Commissioner continued at :
“However, on any reasonable and objective contemplation, a single act of drunkenness at an after work function which did not involve any abusive or aggressive behaviour, and for which no serious risk to the reputation or viability of the employer’s business could be established, would not represent misconduct that provided a sound, defensible and well-founded reason for dismissal. Frankly, if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.”
 The Commissioner noted the Appellant’s decision to invoke summary dismissal as “surprising”, particularly as the Respondent performed her work unrestricted between the date the Appellant became aware of the Respondent’s conduct at the function and the date of dismissal. 9 The Commissioner concluded at  that:
“Upon careful evaluation, the misconduct of the applicant cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for dismissal with notice, let alone summary dismissal.” 10
 Further, in relation to s 387(c) of the Act, the Commissioner found that “the employer [the Appellant] conducted an incomplete and truncated investigation” into the Respondent’s “intoxicated misconduct during the 20 July 2018” 11 and in relation to s 387(d) of the Act that “it was unreasonable [for the Appellant] to suggest to the applicant [Respondent] that she should reconsider her choice of support person at the disciplinary meeting on 1 August 2018.”12
 In respect of remedy, the Commissioner acknowledged that the proceedings before him had “clearly created some tension in the relationship” between the Respondent and Mr Crome. However, the Commissioner did not find that “there has been a genuine loss of trust and confidence such that the employment relationship should not be re-established”. 13 Consequently, the Commissioner concluded that:
“ In the particular circumstances of this case, after considerable contemplation, I have arrived at the conclusion that a significant injustice would occur if the applicant was not provided with the remedy that she has sought. Erroneous findings of serious misconduct were made against the applicant, particularly including that she had made disparaging and insulting comments, and sexually propositioned a work colleague. The applicant is entitled to a remedy that unequivocally expunges these findings. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.”
 Accordingly, an Order to reinstate the Respondent, to maintain continuity and to restore lost pay was issued by the Commissioner. 14
 The Appellant submitted that the Commissioner erred in his approach to considering s.387(a) of the Act. The concept of summary dismissal is foreign to the operation of Part 3-2 and s 387(a) nor is the question of whether conduct constitutes ‘serious misconduct’ relevant to whether a valid reason exists under s 387(a). 15 Whilst the seriousness of conduct remains relevant in determining whether it is capable of constituting a valid reason for dismissal16, it is error to set a higher standard for establishing whether a valid reason for dismissal existed simply because notice has not been given or paid in lieu.
 Further, it is significant that the Decision does not disclose consideration of the policies of either the Appellant or the SOH. Relying on Australia Post 17, breach of a policy is under the test of forming a valid reason for termination. The Commissioner’s finding that “there would seem to be sound basis for the employer to have implemented some form of disciplinary action in respect to the misconduct of the applicant [Respondent] associated with her drunkenness”18 indicates that had the correct approach been taken, the outcome could and likely would have been different.
 The Appellant submitted that the Commissioner’s finding that the Respondent committed only a “single act of inoffensive drunkenness” which did not pose a “serious risk to the reputation and viability of [the Appellant]’s business” was not reasonably open to him on the material, and constitutes a significant error of fact. The Respondent’s conduct ought to have been deemed offensive in circumstances where given she elected to drink to the extent that she became intoxicated and vomited, and that bar staff were required to clean the vomit and the Respondent was carried out of the venue and assisted by security into a vehicle which drove her to the taxi rank. The Appellant submits that the risk to the reputation or viability of the Appellant need not crystallise and it is sufficient that the Respondent’s conduct had the potential to damage the Appellant’s standing with the SOH. A finding that no risk was posed was not open to the Commissioner in circumstances where the SOH is the Appellant’s major client, SOH employees raised the Respondent’s conduct with the Appellant, the SOH has policies regarding the conduct of staff and contractors in and around the venue, including in respect of alcohol consumption. The SOH has imposed contractual obligations on the Appellant in respect of the conduct of the Appellant’s employees.
 It was also submitted by the Appellant that the Commissioner erred in ordering reinstatement. As a result of failing to have regard to a relevant factor, namely the level of risk posed to the Appellant’s business if the Respondent was reinstated, the Commissioner fell into error. The Commissioner failed to have sufficient regard to the damage to the employment relationship and the confidence the Appellant could have in the Respondent following the Respondent’s conduct. Further, the Commissioner erred in his approach to reinstatement, or alternatively had regard to an irrelevant consideration, in that he concluded the Respondent was “entitled to a remedy that unequivocally expunges those findings” of misconduct.
 The Respondent’s written submissions addressed each paragraph of the Appellant’s written submissions and included large excerpts from the Decision. For the reasons summarised below, the Respondent submits that the Decision was correct in finding her dismissal harsh, unjust and unreasonable and hence unfair. This position was confirmed in the Respondent’s oral submissions, where it was submitted that the findings that were made in favour of the Respondent by the Commissioner in the Decision should be accepted. 19
 We understand the Respondent’s main submissions as follows:
• During the employment relationship with the Appellant, the Respondent was a model employee. The Respondent has apologised for her drunkenness at the function and is remorseful for such conduct.
• The Commissioner correctly found that the Appellant undertook “an incomplete and truncated investigation” and that the Respondent “was not given sufficient details of the particular misconduct” alleged against her.
• With respect to breach of policy, the Respondent was treated differently to other employees of the Appellant. The policies of the Appellant and the SOH have not been applied uniformly to all employees.
• The Commissioner correctly noted “if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.” 20
• Reinstatement was an appropriate remedy. There is no direct connection between a single act of drunkenness and one’s ability to perform work. The Respondent notes her history of good performance with the Appellant and believes that reinstatement was appropriate to address the “potential grapevine effect and slander” 21 following the function.
 In addition to the grounds of appeal above, the Appellant submits that it is in the public interest for permission to appeal to be granted for the following reasons:
• the approach taken in respect of both valid reason and remedy appears disharmonious when compared to established authority;
• the appeal raises an issue of general importance and application across Australian workplaces, particularly as it relates to employee conduct; and
• the errors identified in the grounds of appeal are significant and productive of an unjust result. Manifestly unjust decisions undermine public confidence in the administration of justice, which is a matter of public interest.
 An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 22 There is no right to appeal and an appeal may only be made with the permission of the Commission.
 Section 400 of the Act applies to this appeal. It provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
 In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 23 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.24 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 25
 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 26
 We find that permission to appeal should be granted in this matter. We are of the view that the appeal raises important questions about the application of s 387(a) with respect to valid reason. Further, we agree that this matter has significant application across Australian workplaces with respect to employee conduct and is therefore a matter of public interest. Accordingly, permission to appeal is granted.
 The Appellant submits that the Commissioner erred in his approach to s 387(a) of the Act, where at paragraph  –  the Commissioner set out the approach taken by him.
 The Full Bench in Mr Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Mr Michael Hatwell v Esso Australia Pty Ltd T/A Esso  FWCFB 6092 (Esso) made a number of general propositions about s 387 of the Act:
“1. When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
2. There would be a valid reason for termination if the conduct occurred and it justified termination. There would not be a valid reason if the conduct did not occur or it did occur but did not justify termination. For example, an employee may concede that the conduct took place but contend that it involved a trivial misdemeanour.
3. For the purposes of s.387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
4. The existence of a valid reason for a dismissal is not assessed by reference to the existence of a legal right to terminate a contract of employment. As Gray J observed in Miller v University of New South Wales:
‘What is sought is not the existence of a legal entitlement to terminate the employment, but the existence of a reason for the exercise of that right that is related to the factual situation. The validity is not to be judged by reference to legal entitlements, but to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing, or has done, or as to what the employer requires in order to continue its activities.’
5. Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s.387(a).
6. An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter under s.387(h). In that context the issue is whether dismissal (or in the present case, summary dismissal) was a proportionate response to the conduct in question.” (Footnotes omitted)
 Also in Esso, the Full Bench observed that the decision subject to the appeal “must be read fairly and as a whole and not with an eye attuned to detect error.” 27 The Decision which is the subject of this appeal must also be read this way. Esso cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.” 28
 The Appellant relies on the Commissioner’s references to summary dismissal and the severity of the misconduct in support of the view that his consideration of valid reason was contrary to s 387(a) of the Act. However, in reading the Decision fairly and as a whole, we are not satisfied that such references to summary dismissal and the severity of the misconduct are sufficient to find error in the Commissioner’s reasoning.
 It remains unchallenged in this appeal that two of the allegations against the Respondent, namely that she used insulting or disparaging remarks about employees of the Appellant and the SOH and that she made propositions of a sexual nature to a SOH employee, were found to have no basis in fact. With such findings undisturbed, the Respondent’s conduct, and the Appellant’s submission that the Commissioner erred in finding that there was no valid reason for dismissal, is confined to the Respondent’s intoxication to the point of vomiting and that she required assistance to leave the venue.
 Within paragraph  –  of the Decision, the Commissioner set out the nature of the Respondent’s dismissal, being a summary dismissal, and identified precisely the four aspects of the Respondent’s conduct which the Appellant found to represent serious misconduct. With such conduct identified, the Commissioner’s Decision then considered the separate aspects of the misconduct alleged against the Respondent and made findings with respect to each. 29 The Commissioner’s approach here aligns with the first proposition made in Esso.
 To the extent that the Commissioner, at paragraph  and , noted the principles regarding whether particular conduct may justify summary dismissal, the Commissioner appears to have conflated his consideration of misconduct with serious misconduct. Whilst Esso establishes that it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee to demonstrate that there was a valid reason for termination, we are not satisfied that the Commissioner’s conflation here amounts to error with respect to the Commissioner’s approach to whether the Respondent’s drunkenness and associated vomiting at the function provided a valid reason for termination.
 At paragraphs  and  of the Decision, the Commissioner said the following:
• “Frankly, if one act of inoffensive drunkenness at an after work function provided valid reason for dismissal, I suspect that the majority of Australian workers may have potentially lost their jobs.”; and
• “Upon careful evaluation, the misconduct of the applicant cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for dismissal with notice, let alone summary dismissal”.
 We do not agree with the Appellant that the Decision “is not saved” by the Commissioner’s consideration of valid reason in the paragraphs  and  of the Decision. The above paragraph references formed part of the Commissioner’s broader consideration of whether the conduct for which the Respondent, being confined to that conduct described above at , provided a valid reason for termination. The Commissioner’s conclusions at  and  were open to him to make and are, as we accept, indicative of his understanding and application of s 387(a) of the Act.
 Further, at paragraph  of the Decision, the Commissioner commented on the “surprising” decision of the Appellant to invoke summary dismissal as opposed to dismissal with notice. We accept that the Commissioner’s observation here was just that, an additional observation, and one that was open to him to make, noting that the boundaries between the consideration of valid reason and such observations could have been more clearly defined.
 The Appellant submitted that it was not open to the Commissioner to find that the Respondent’s conduct did not pose a serious risk to the Appellant’s reputation or viability. It is evident from the Decision that the Commissioner assessed the presence of risk to the Appellant’s reputation or viability with regard to the evidence before him. At paragraph  of the Decision, the Commissioner noted the Respondent’s acceptance that her conduct had potential to reflect upon the Appellant’s business. Also at paragraph  of the Decision, the Commissioner conveys his understanding of the concerns of the Appellant, in that the Respondent’s conduct might have some impact upon the renewal of its contract with the SOH. On the facts, it was open to the Commissioner to form the view that whilst “there would seem to be sound basis for the employer [Appellant] to have implemented some form of disciplinary action in respect to the misconduct of the applicant [Respondent] associated with her drunkenness”, such conduct did not provide a valid reason for termination.
 For the reasons above, we do not find that the Commissioner erred in concluding that there was no valid reason for the Appellant to terminate the Respondent’s employment or that the Commissioner erred in finding that the Respondent’s conduct did not pose a serious risk to the Appellant’s reputation or viability.
 In relation to remedy, we do not agree that the Commissioner erred in ordering reinstatement. Having been made aware of the nature and severity of the allegations of misconduct surrounding the Respondent’s conduct at the function on 25 July 2018, the Appellant allowed the Respondent to work unrestricted until the date of summary dismissal on 2 August 2018. 30 Having found that the Respondent’s misconduct at the function was “confined to her drunkenness and associated vomiting”31, the Commissioner concluded that “no serious risk to the reputation or viability or the employer’s business could be established”32. The Commissioner’s consideration of whether reinstatement was appropriate, and his ultimate order for such a remedy, reflects the findings made that were open to him on the evidence.
 Contrary to the Appellant’s submissions, the Commissioner considered the employment relationship and the appropriateness of the Respondent returning to work with the Appellant. 33 The Respondent’s dismissal and subsequent evidence presented in the proceedings before the Commissioner were identified as having “clearly created some tension in the relationship between the applicant [Respondent] and Mr Crome”.34 Having considered that there had not been “a genuine loss of trust and confidence such that the employment relationship should not be re-established”, the Commissioner concluded that “the difficulties that may exist in the relationship” between the Respondent and Mr Crome “could not be satisfactorily reconciled”.35 We are of the view that the employment relationship here, like in most cases, is “capable of withstanding some friction and doubts”.36
 For the reasons set out above, we are satisfied that the Appellant’s grounds of appeal have not been made out and the appeal must be dismissed. We order as follows:
• Permission to appeal is granted.
• The appeal is dismissed.
The Appellant appeared unrepresented.
The Respondent appeared unrepresented.
Sydney with video link to Melbourne.
Final written submissions:
Appellant’s final written submissions dated 26 April 2019.
Respondent’s final written submissions dated 7 May 2019.
Printed by authority of the Commonwealth Government Printer
1  FWC 1132.
3  FWC 2135.
4 Decision at .
5 Decision at  and .
6 Decision at  – .
7 Decision at .
8 Decision at .
9 Decision at .
10 Decision at .
11 Decision at 
12 Decision at .
13 Decision at .
15 Sharp v BCS Infrastructure  FWCFB 1053.
16 Appellant’s written submissions dated 26 April 2019.
17 B, C & D v Australia Postal Corporation  FWCFB 6191.
18 Decision at .
19 Transcript of the proceedings on May 13 2019 at PN122-123; PN126-127.
20 Decision at .
21 Respondent’s final written submissions dated 7 May 2019.
22 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at  per Gleeson CJ, Gaudron and Hayne JJ.
23 (2011) 192 FCR 78; (2011) 207 IR 177 at .
24 O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at  per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at -.
25 GlaxoSmithKline Australia Pty Ltd v Makin  FWAFB 5343 at ; [(2010) 197 IR 266].
26 Wan v AIRC (2001) 116 FCR 481 at .
27 Mr Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Mr Michael Hatwell v Esso Australia Pty Ltd T/A Esso  FWCFB 6092 at .
28 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.
29 Decision at  – .
30 Decision at .
31 Decision at 
32 Decision at .
33 Decision at .
34 Decision at .
35 Decision at .
36 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 193 cited in Nguyen & Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter  FWCFB 7198 at .