DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jeremy Lee
v
Superior Wood Pty Ltd
(C2019/4915)

Appeal against decision [2019] FWC 5095 of Commissioner Simpson in matter U2018/2253.

1. Introduction

[1] This decision deals with an appeal, for which permission to appeal is required, made by Mr Jeremy Lee under s 604 of the Fair Work Act 2009 (Cth) (FW Act), against a decision¹ of Commissioner Simpson made in connection with Mr Lee’s unfair dismissal application (Decision). The unfair dismissal application was made under s 394 of the FW Act and the matter had been remitted to the Commissioner by a Full Bench of the Commission following an earlier successful appeal 2 by Mr Lee (the first appeal).

[2] During earlier proceedings before this Full Bench, permission to appeal was given. Reasons for so doing are set out later in this decision.

[3] Before dealing with the circumstances of this appeal and the history of the matter, it is appropriate to set out some of the background to the unfair dismissal matter itself.

[4] Mr Lee was employed as a casual general hand and had a total period of service of approximately 3¼ years with his former employer, and the respondent in this matter, Superior Wood Pty Ltd (Superior Wood). Superior Wood operates two sawmills at Melawondi and Imbil in Queensland. At the time of dismissal, there were approximately 150 employees employed by Superior Wood, and approximately 80 of those employees worked at the Imbil site, including Mr Lee. Superior Wood is part of the Finlayson group of companies, and its Managing Director is Mr Skene Finlayson.

[5] On 12 February 2018, Mr Lee was dismissed because he did not comply with Superior Wood’s Site Attendance Policy (the Policy) by refusing to use newly introduced fingerprint scanners to sign on and off for work at the site. Mr Lee had earlier advised Superior Wood that he considered that the biometric data contained within his fingerprint was sensitive personal information and that Superior Wood was not entitled to require that information from him.

2. The earlier proceedings

[6] Mr Lee’s unfair dismissal application was initially heard and determined by Commissioner Hunt, who dismissed the application in a decision 3 issued on 1 November 2018 (first decision). Amongst other findings leading to the conclusion that the dismissal was not unfair, Commission Hunt found, in effect, that the Policy was not unjust and unreasonable, that the refusal to comply with the Policy was a valid reason for dismissal and that the dismissal was not harsh, unjust or unreasonable. Mr Lee successfully appealed this original decision.

[7] The Full Bench in the first appeal considered the direction to comply with the Policy in the context of the Privacy Act 1988 (Cth) (Privacy Act), the related Privacy Principles, the absence of a privacy policy or privacy collection notice issued by Superior Wood, and the extent to which an exemption for employee records applied to the circumstances leading to Mr Lee’s dismissal. The Full Bench concluded on this aspect:

“[58] For the reasons set out above, we consider the direction to Mr Lee to submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection, was not a lawful direction. Moreover we consider that any “consent” that he might have given once told that he faced discipline or dismissal would likely have been vitiated by the threat. It would not have been genuine consent. Given this finding, it is not necessary to consider whether the direction was reasonable. Nonetheless had it been necessary to do so we conclude the direction was unreasonable. A necessary counterpart to a right to consent to a thing is a right to refuse it. A direction to a person to give consent does not vest in that person a meaningful right at all. Such a direction is in the circumstances of this case, unreasonable. It was not a valid reason for dismissal.”

[8] The Full Bench also considered the broader justification for the introduction of the Policy in light of various appeal grounds raised by Mr Lee. Amongst other findings the Full Bench indicated:

“[70] In our view, the primary purpose for introducing the scanners was to address payroll issues across the Finlayson Group. However, we accept that the potential for improved safety was also a reason for its introduction. The Mitrefinch Proposal put forward the prospect of safety improvements. From its initial communication with employees in 2 November 2017, Superior Wood consistently referred to its perceived benefit of helping to keep track of people on site. It appears to us that prima facie, this makes logical common sense.”

[9] And later:

“[85] Overall, the evidentiary basis for concluding that collection of Mr Lee’s fingerprint data was reasonably necessary for Superior Wood’s functions or activities was not compelling. It is clear that Superior Wood’s introduction of the scanners was administratively convenient for FTH, who operated the payroll system on its behalf. We also accept that had the direction to Mr Lee been lawful, it might also have been reasonable to decline to make an exception for him in circumstances where he was the only one of approximately 400 employees seeking a different method. However, neither of those matters establish that it was ‘reasonably necessary’ for Superior Wood to proceed with the collection of Mr Lee’s fingerprint, particularly in circumstances where other options had been identified and had not yet been considered.”

[10] The Full Bench upheld the appeal and the first decision was quashed. On a rehearing, which was conducted in the conventional manner based upon the evidence already before the Commission, it determined that Mr Lee’s dismissal was, on balance, unjust and therefore unfair. 4

[11] The question of remedy was not decided by the Full Bench but remitted to Commissioner Simpson to determine having regard to its findings.

3. The decision under appeal

[12] Before the Commissioner, Mr Lee continued to seek reinstatement to his former position. Ultimately, the Commissioner concluded that an order for reinstatement was inappropriate and after assessing the relevant statutory considerations concerning compensation, awarded, in effect, the maximum compensation available under the FW Act to Mr Lee.

[13] In reaching those conclusions, the Commissioner considered a series of propositions raised by Superior Wood that it claimed militated against reinstatement. These included statements made about the employer’s Managing Director, Mr Finlayson, in a Form F51 application to have Mr Finlayson appear as a witness lodged on behalf of Mr Lee, the tone of the cross-examination, and the manner in which Mr Lee’s case was advanced. It is the conclusion that reinstatement of Mr Lee was not appropriate that is the focus of this appeal.

[14] Having observed that the mere fact that the position previously occupied by Mr Lee had been filled does not render reinstatement inappropriate, the Commissioner referred to relevant Full Bench authority 5 and then found as follows:

“[202] The Full Bench concluded that, “[u]ltimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[203] I do not find either of the cases that the Respondent relied on concerning an employee’s failure to comply with a policy persuasive as the facts in this case are distinguishable. As found by the Full Bench, the Applicant was entitled not to comply with the policy in this case, and a direction to do so was an unlawful direction.

[204] I also have not placed weight on the Respondent’s submission that if reinstated the Applicant will seek to persuade others not to comply with the policy for ulterior motives. In my view this is too speculative.

[205] I also do not see the requirement for the Respondent to provide a payroll system to accommodate the Applicant if he were to be reinstated as a compelling argument against reinstatement given he is entitled not to provide his biometric data.

[206] However the Form 51 document filed by the Applicant and directed at Mr Finlayson reveals an ongoing hostility toward Mr Finlayson, the sole director of the Respondent. The evidence is that during his employment, but for his termination for failing to follow a direction since found to be unlawful, there was no indication that there were any issues that would be a cause for concern in regard to the relationship of trust and confidence between the Applicant and the Respondent. Up to the point of the matter being remitted to me the evidence to that point would have weighed in favour of a finding that reinstatement would be appropriate.

[207] However on 19 June 2019, some 17 months after his termination the Applicant filed the Form F51 in the context of a pending hearing on remedy after he had won the substantive argument that his dismissal was unfair, and included in the statement directed at Mr Finlayson that he was “deceitful, and dishonest”.

[208] In answer to the question 1.3 on the Form F51 ‘How will the appearance of the person(s) assist the Commission in reaching the decision?’ the Applicant stated that “The witness evidence would clearly identify the conduct of the respondent and its impact on the applicant.”

[209] The manner of the cross examination at the remedy hearing was at times conducted as if the question of whether the dismissal was unfair was yet to be decided.

[210] Given the Applicant’s brother was present for the purpose of assisting him it can only be assumed he was representing the Applicant’s views. Much of the cross examination of Mr Finlayson by the Applicant and his brother was directed at obtaining from Mr Finlayson an acceptance that the biometric scanning system did not improve safety or the Respondent’s payroll efficiency, and secondly an admission from Mr Finlayson that the biometric scanner takes a finger print, and not as Mr Finlayson describes it, an algorithm to convert that to a binary code, and that it does not scan all of the finger print and it only scans certain points on the finger.

[211] The Applicant has not been satisfied by his success on Appeal before the Full Bench. As much was said at the remedy hearing when Mr Andrew Lee submitted on behalf of his brother that the Full Bench did not confirm that his brother owns his biometric data, and further that the Commission can claim that he (the Applicant) won but that was not the Applicant’s view.

[212] The Applicant’s conduct is indicative of him having ongoing issues with Mr Finlayson because of the manner in which the biometric scanning system was introduced and the ongoing use of the system. The Applicant is not willing to put historical issues with Mr Finlayson behind him. From the evidence the system is currently in use by the entirety of the Respondent’s workforce. There is no doubt that as found by the Full Bench the introduction of the biometric system by the Respondent was seriously flawed when it upheld the Applicants appeal grounds 1, 2, 5 and 8. The Respondent was not exempt under the Privacy Act prior to the collection of an employee record, it did not have a policy in place, and it could not collect sensitive information without consent. The Respondent also failed to provide a notification of the collection of information.

[213] However biometric scanners are not in and of themselves unlawful. I listened carefully to the evidence of Mr Finlayson and am satisfied that despite the Respondent having been found by the Full Bench to have failed to comply with the Privacy Act and Australian Privacy Principals, Mr Finlayson believed he could follow the course he did at the relevant time based on advice he had received and also believed that the new system would improve both safety and payroll efficiency.

[214] The Full Bench decision made clear that it would be unlawful for the Respondent to seek to enforce its policy against the Applicant. Trust and confidence could have been re-established following the Full Bench decision. However I am satisfied that from the Applicant’s perspective, despite the Full Bench ruling in his favour, the issue is not resolved for him. I explained to the Applicant in the course of the remedy hearing that given the Full Bench decision I could order his reinstatement and the Respondent could not seek to require him to comply with the policy to use the scanner but that did not deter continued focus on the issue.

[215] Rather than seeing the remedy hearing as an opportunity to convince the Commission that it should be satisfied trust and confidence could be restored between the Applicant and the Respondent, the Applicant appeared to be primarily focussed on seeking concessions from Mr Finlayson regarding the biometric scanning system, and not on whether reinstatement was appropriate or otherwise. Whilst the Applicant did provide evidence on the issue of trust and confidence, and there was cross examination of Mr Finlayson on the issue, it did not appear to be the primary focus for the Applicant. I am inclined to the view that the Applicant’s desire to continue to agitate issues concerning the use of the biometric scanning system at the remedy hearing is likely to hinder any restoration of the employment relationship despite his evidence to the contrary.

[216] The strong language the Applicant directed at Mr Finlayson in the Form 51 so long after the events of February 2019 fortifies my view about that. Even if I was to accept the Applicant’s evidence that his comments regarding Mr Finlayson were confined to whether the scanner did not take a fingerprint, the statement was still unjustified in that context and inappropriate. I do not accept Mr Finlayson was being dishonest and deceitful as the Applicant stated on the issue. I accept Mr Finlayson’s evidence that what he said about the function that the biometric scanner performs is what he believed. It is consistent with what he had been told by people with supposed expertise even if the Applicant disagrees and even if the Applicant’s interpretation is correct and Mr Finlayson is wrong.

[217] It is reasonable for Mr Finlayson to feel that the Applicant’s statement about him was offensive, objectionable, and damaged goodwill that might have otherwise existed between the parties before the statement was made.

[218] There are also others factors which weigh against reinstatement. Mr Finlayson said if he is instructed to put the Applicant on he will have to put someone else off and his manufacturing business is struggling. Mr Finlayson said the Applicant worked in the dry mill part of the plant, and that part of the business is particularly under attack at the moment, and Mr Finlayson said that since the Applicant left they had lost the Corinthian business (a two million dollar contract) who have gone to imported product out of China, and the Respondent had tendered for Bunnings and they were not successful with the tender, and the moulding market is under attack and that if the Applicant had to come back he would have to put someone else off.

[219] I accept Mr Finlayson’s evidence regarding the downturn in his business. Given the Respondent has been reducing its workforce it is notable that the Applicant was engaged prior to termination as a casual and not in a permanent position.

[220] On the basis of my findings above I have concluded that the Respondent has a rational basis for loss of trust and confidence in the Applicant. To add to that, the evidence supports the conclusion that the distrust is mutual. Because of that, and the other reasons set out above, I am satisfied an order for reinstatement is inappropriate in this case.”

[15] The Commissioner then determined that it would be appropriate to award compensation to Mr Lee, and made an order 6 that Superior Wood pay Mr Lee the amount of $24,117.08 plus 9.5% superannuation within 14 days of the date of the decision (Order). We understand that the Order has been complied with.

4. The grounds of appeal

[16] Mr Lee advanced numerous grounds of appeal as follows:

“1. The Remedy Decision is a flawed ruling, it proposes to remedy my Unfair Dismissal, by effectively endorsing it. That is not a remedy, it does not make-good a wrong, and it does not reinforce the Full Bench finding that I was justified in refusing to follow an illegal order.

2. The remedy should reinforce that I was Unfairly Dismissed - not contradict it. By again dismissing my claim for reinstatement, what it does instead, is reward the Respondents unlawful conduct.

3. I am an employee with an impeccable record, a fact not disputed by the Respondent. I was threatened, coerced, Unfairly Dismissed, and have suffered substantial harm over a long period as a result. I was right to defend myself, have always sought reinstatement, and despite the Respondent’s ill treatment, have conducted myself with integrity throughout.

4. In short, this ruling, must justify why I have not been rightly reinstated. And without an extremely compelling reason, this ruling is a betrayal of what a fair ruling should be.

5. I did nothing to warrant the treatment I received from the Respondent and was fully entitled to refuse the Respondent’s illegal order to hand over my biometric data. In short, apart from protecting my privacy, I have done nothing else, either before or since, to warrant the Respondent’s Unfair Dismissal or to be denied reinstatement.

6. Cmr Simpson’s denial of my reinstatement rests on the presumption of just two factors. That there has been a loss of trust and confidence and that, although he describes it only in vague terms at [218] and [219], Cmr Simpson presumes that the Respondent would suffer financially if I was reinstated.

7. According to Cmr Simpson, [206] “up to the point of the matter being remitted” to him for remedy, there was no grounds on which to deny my reinstatement. So the Commissioner rests his entire unjust denial of my return to work, on my attempts to represent myself vigorously to actually achieve this.

8. All the ruling has to support this is a Form 51 Order to Appear Application in which I accurately describe the Respondent’s conduct as “deceitful and dishonest to the Applicant”, and my questioning of the Respondent at the Remedy hearing which he describes as [215] “a desire to continue to agitate (the) issues” in my case.

9. The logic of the Remedy ruling puts me as the Unfairly Dismissed Applicant, in a no-win position. A classic Catch-22 where if I represent myself poorly I have no chance of being reinstated; but if I do agitate my case and represent myself energetically I am punished, by not being reinstated.

10. If as Applicant, Cmr Simpson uses my words in arguing my case for reinstatement, as grounds to DENY my reinstatement, then I do NOT have a fair opportunity to argue my case AT ALL.

11. I fail to see where Cmr Simpson has made room for the actual possibility that I should be, or even could be, reinstated. Cmr Simpson’s reasoning is unsound. I am entitled to advance my case robustly and energetically. I must be allowed to do that, especially as a self represented party, and must not be penalized for it.

12. Cmr Simpson attempts to pad-out the alleged loss of trust at [216]: “The strong language the applicant directed at Mr Finlayson in the Form51 so long after the events of Feb2019(sic) fortifies my view about that… Even if the applicant disagrees, and even if the applicant’s interpretation is correct and Mr Finlayson is wrong”.

13. “Even if I was to accept the applicant’s evidence… the statement (on Form 51) was still unjustified…and inappropriate.”

14. Cmr Simpson’s ruling is extraordinary. To describe my reasonable and accurate description of the Respondent’s conduct, as if it was somehow unjustified is outrageous. It is simply unsupportable to deny my ability to challenge the Respondent, especially when the evidence proves his claims to be false.

15. The Commissioner has acted on a wrong principle and the ruling must be extinguished to make way for my reinstatement.

16. The Remedy Decision gives enormous weight to the Respondent’s claims of a loss of trust, and denies my reinstatement on that basis. It is fundamentally unjust to allow the Respondent to sack me for protecting my privacy and refuse to reinstate me because the Respondent alleges that I have offended him with my language.

17. At [149] of the ruling, Cmr Simpson appears so desperate to engineer the Respondent’s supposed loss of trust, and therefore the reason to deny my reinstatement, that he breaks from describing the proceedings in the third person, putting himself in the first person: “It was apparent to me that Mr Finlayson was quite emotional whilst giving evidence on this issue.”

18. This never happened. Mr Finlayson was not “emotional” either then or at any other time, and for Cmr Simpson to rely on it to form some fictional narrative is gravely unfair, and extremely misguided. I could refer to this fiction as irrelevant, however it is simply contrived. If it was true, it is no basis upon which to make a ruling, denying my reinstatement. Cmr Simpson has weighed into his remedy something which did not occur. The Commissioner has mistaken what occurred, and the ruling is profoundly flawed as a result.

19. A wealthy businessman, who has suffered no financial loss, feigns emotion to avoid reinstating an employee who he sacked unfairly. The employee loses 18 months of lost income and is not even entitled to claim compensation for the emotional distress his sacking caused. That is blatantly, and obviously unjust.

20. Where are Cmr Simpson’s considerations of the threats made against me, my sacking and the 18 months of unemployment and lost income that I have suffered? Where is the reinstatement such treatment should warrant?

21. There is no attempt by Cmr Simpson to mitigate and recompense me for what I have actually been subjected to by the Respondent. These are not mere emotions or feelings which can easily be exaggerated or feigned, these are concrete and quantifiable, and yet this ruling prefers to ignore them altogether. My unfair dismissal has cost me over $72,000 in lost income. These are not emotional costs, as I am not even permitted to ask compensation for those. Yet in denying my reinstatement by claiming the Respondent was “emotional”, Cmr Simpson is effectively rewarding the Respondent financially for the same thing I am denied.

22. Instead of seeking to rectify the concrete harms against me, Cmr Simpson prefers instead to concentrate on the Respondent’s claims which are highly subjective and open to interpretation, speculation and abuse.

23. This is exactly why an employer’s claims of a loss of trust are to not to be taken on face value and should be treated with a great deal of caution, especially in my case when there is nothing else of significance to weigh against my reinstatement. Cmr Simpson’s ruling has failed to display any such caution and his ruling is defective as a consequence.

24. From the Commission’s own Benchbook:

“The reason for the loss of trust and confidence must be soundly and rationally based.”

“it is important to carefully scrutinize any claim that reinstatement is impractical due to a loss of confidence…”

And even more pertinent in my case:

“The fact that it may be embarrassing for an employer to re-employ an employee [previously sacked for unlawful reasons]… is not necessarily indicative of a loss of trust and confidence in the relationship.”

“The loss of trust and confidence is a relevant factor…’ but it is not necessarily conclusive.’”

“Ultimately, the question is whether… the relationship can be viable and productive.”

25. That is, Cmr Simpson’s Decision is not soundly and rationally based, and it does not carefully scrutinize Mr Finlayson’s claim of a lack of trust and confidence. This is a grave error given that Mr Finlayson has repeatedly conceded that he would suffer some embarrassment should I be reinstated. Cmr Simpson is aware of this as the ruling at [78] states that “if the Applicant had been allowed to refuse to use the scanner this would not have sent a good message to other staff”.

26. During the remedy hearing at [T607], my brother re-emphasises this point to Cmr Simpson:

AL: Mr Finalyson is concerned that if my brother- and he’s already mentioned this in the other hearings – he’s concerned that if my brother returns to his site that it might cause the other employees to not use his fingerprint scanning system.

So how can we NOT ask questions in relation to that?”

Cmr: Well he can assert that, but I’m really not sure that’s relevant. I’m not sure it’s going to come into my thinking.

Cmr: …I don’t think that particular part of Mr Finlayson’s evidence is very persuasive for me…

AL: That may be true…but it is driving his motivation to prevent my brother being reinstated.

Cmr: Well I’ve told you…I don’t think it’s relevant.

27. The above exchange highlights that Cmr Simpson actively prevented me from questioning Mr Finlayson’s real motivation for opposing my reinstatement.

28. If allowed, this line would have scrutinized the Respondent’s claim of a breakdown in the employment relationship.

29. So Cmr Simpson has prevented me from questioning the central grounds of his ruling, and conspicuously failed to do it himself. Not only that, Cmr Simpson has said he thinks that to scrutinize the Respondent’s grounds for opposing reinstatement is irrelevant!

30. Cmr Simpson’s Decision did not show how the alleged loss of trust and confidence was conclusive. Or that the relationship cannot be viable and productive if reinstatement was ordered.

31. In other words Cmr Simpson’s assertion that Mr Finlayson “has a rational basis for a loss of trust and confidence [in me]” and that the “distrust is mutual” is hollow, and the Cmr did not scrutinize (carefully or otherwise) the Respondent’s claim.

32. My sacking was ruled to be unfair, therefore there must be sound and reasonable grounds to deny me reinstatement and continuance.

33. For myself, I have always sought reinstatement. This is undeniable evidence to the Commission that despite the Respondent’s conduct, I am fully prepared to return to work and continue as before. I have never shown any hesitation in seeking this and yet it has been given no consideration at all by Cmr Simpson.

34. This ruling, takes away a full years income, and the future income from my reinstatement, on the contention of a loss of trust and confidence which is arbitrarily assessed. I fully reject the Commissioner’s assertion that there is any basis for the Respondent to claim a loss of trust or confidence in myself.

35. Furthermore, this ruling means that any Respondent that sacks an employee unfairly, needs merely to claim a loss of trust to avoid reinstatement. Over a period of almost two years, the only thing Cmr Simpson can use to deny my reinstatement is my evidence-supported description of the Respondent’s conduct as deceitful and dishonest in an application form, and my questioning of the Respondent during the Remedy hearing. It is absurd, and if left to stand, totally extinguishes any chance for any employee to be reinstated, no matter how good their record, how unfair their dismissal, or how well they represented their case. It denies them the right to even challenge an employer’s claims at the Commission.

36. That is a travesty, and the ruling must be voided before my full and immediate reinstatement.

37. The Commission has my full employee record and it shows that I never missed a day of work.

I never signed in for another employee.

I never had another employee sign in for me.

I was not late and I did not leave early.

My attendance record was the best of any employee at the workplace.

38. Cmrs Hunt, Sams, McKinnon, Gostencnik, and Simpson are all aware of this, intimately. Cmr Hunt, Mr Finlayson, and Mr Curran have all been through my record, in detail and at considerable length. And yet all of them failed to find fault with it and I have still been denied reinstatement.

39. I have done nothing wrong and I totally oppose the Commission’s bias in giving the party that did the wrong thing any say in my reinstatement. It is a fundamental injustice. This ruling penalizes the party that has done nothing wrong. It is therefore rewarding the party that acted unlawfully. This is the reverse of what should occur and only serves as evidence of a substantial injustice.

40. The Respondent described me as “reliable, honest and punctual” [122]. Indeed, even Cmr Simpson has admitted at [234] that there was never any misconduct on my part. None. Yet he devotes just one line to this important factor and gives it virtually no consideration at all.

41. If the logic of this Remedy Decision is distilled, what you are left with is this:

Without warning or justification Mr Finlayson threatens me with the loss of my position to take something I own; when I refuse to give it to him, he takes my position and income and leaves me with nothing for almost two years; when I appeal to the Commission he claims that, wait for it, HE no longer trusts ME, and the Commission uses this to deny my reinstatement. When I describes his conduct as dishonest, and questions him about it, the Commission uses this too, against me.

42. In effect, this ruling illuminates the fact that the Respondent cannot lose. Far from being penalized for his unlawful conduct, the remedy decision clearly shows that no matter what happens, the Applicant will not be reinstated. It is a reassurance to an already wealthy employer that the Commission will endorse his behavior no matter which employee he sacks, how good their record, how or why he sacks them. That is not a fair ruling and should be quashed.

43. Cmr Simpson complains that I continued to “agitate the issues” with the Respondent, but fails to appreciate that these issues were not raised by me. They were actually raised by the Respondent in his written Submissions, at the hearing with his own lawyer, and even on his own initiative. By penalizing me for challenging these claims, Cmr Simpson is denying me the right to even argue for my reinstatement.

44. The ruling also ignores my evidence during the hearing that [92] “there were no issues with trust prior to (my) dismissal”, and if (I was) reinstated that would continue. Cmr Simpson seems determined to generate this supposed lack of trust on my part, even in the face of my testimony when he concedes at [101] that while employed I was “very complimentary of Mr Finlayson’s honesty and integrity about paying employees and did not shirk paying superannuation.”

45. The only “other factors” Cmr Simpson could point to in denying my reinstatement is his wholesale acceptance of the Respondent’s claims that [218] his business “is under attack” and that to reinstate me “he would have to put someone else off”.

46. Cmr Simpson is quite happy to accept these claims on face value without any evidence whatsoever to support them from the Respondent. Under cross examination at the hearing the Respondent conceded at T688 that he had no evidence at all. The ruling deprives an unfairly dismissed party of a full years salary on the basis of an unsupported assertion from the Respondent who is liable to pay for it. This is irresponsible and it is unsound as a result.

47. This is followed up with another vague justification for his ruling at [219] that I was not a “permanent” employee, merely “casual”, and therefore there is less justification for my reinstatement. Given the recent Federal Court ruling in Workpac v Skene, this is probably wrong.

48. Furthermore, permanent/casual has never been raised by either the Respondent or any of the previous Commissioners as worthy of consideration, at any time, and it is cited nowhere by the Commission as a relevant factor to contemplate.

49. I should also like to point out that the Respondent has had ample opportunity to show his new biometric scanning system improves safety. Over a period of 18 months with numerous hearings the Respondent has failed to bring forth this much touted remotely accessible list of onsite employees -this is the claimed improvement in safety. He has talked about it incessantly, over and over again, yet has never produced it in evidence. And when my brother called for it repeatedly at the latest hearing, he still could not produce it.

50. These claims of improved safety are spurious indeed. If the Respondent had any evidence of it, he would certainly have produced it by now. The evidence, or the total lack of it, actually prove these safety claims to be false.

51. This Remedy ruling rests entirely on the confected claims of a loss of trust and confidence, made by a Respondent who is keen to avoid my reinstatement, and injudiciously given wind by a Commissioner who is warned by his own literature to avoid doing so. Without this fabricated breakdown in the employment relationship, the ruling is just unfair. These claims of a loss of trust and confidence should reasonably have been rejected. The ruling is faulty and should be quashed so that I may be reinstated with full continuance.”

5. Permission for the respondent to be represented

[17] During the earlier permission to appeal proceedings and during the appeal, permission was given by us for Superior Wood to be represented by a lawyer under s 596 of the FW Act. On each occasion we had regard to the circumstances of the matter and the positions advanced by the parties, determined that permission was to be given, and advised that reasons for so deciding would be published as part of this decision.

[18] We observe at the outset that at each of the hearings before this Full Bench, and in all previous proceedings with the one exception, 7 advocacy on behalf of Mr Lee was provided by his brother, Mr Andrew Lee (A Lee). A Lee is articulate and passionate in his brother’s cause. However, he has repeatedly demonstrated that he has no understanding of the proper role of an advocate in the Commission or of how to act in his brother’s best interests. Thus his advocacy was marked by continued unfounded allegations against the respondent, disrespect to the Commission, a refusal to answer the most basic of questions from the Bench, inflammatory rhetoric, and diversions into irrelevant or non-existent issues. No doubt A Lee considered that he was acting in Mr Lee’s interests, but in fact his advocacy obscured the merits of Mr Lee’s case, failed to address the key issues despite persistent invitations from the Bench to do so, and damaged Mr Lee’s prospects of obtaining the remedy which he seeks.

[19] On each occasion before us, Superior Wood essentially relied upon four related propositions in seeking legal representation, being:

•  the legal issues associated with the appeal are complex and legal representation will allow the matter to be dealt with more efficiently;

•  the respondent does not have an in-house lawyer at its disposal or a person who has experience in running hearings or appeals before the Commission. It would be unfair not to permit the respondent to be represented because it is unable to represent itself effectively;

•  both parties were legally represented before Commissioner Hunt with permission and Mr Lee’s election not to continue with representation should not unfairly visited upon the respondent; and

•  given that the same lawyer has had carriage of the matter to this point for the respondent, it would be unfair for another (non-lawyer) representative to familiarise themselves with the significant history of the matter.

[20] Mr Lee opposed permission for representation on grounds that included:

•  he was a “self-represented” appellant who had to navigate unfamiliar procedures, appraise and disassemble “false, misleading and inconsistent” rulings and defend his right to be treated fairly when the “Commission has acted in the interests of the employer” and “bent the procedural rules to suit”;

•  his original legal representative did not properly represent his interests, “colluded with Commissioner Hunt” to obtain his records without consent, and this earlier representation was a flimsy excuse to permit Superior Wood to be represented in subsequent proceedings and in the appeal;

•  he was not afforded a proper opportunity by the earlier Full Bench in the first appeal to object to the respondent’s representation and this has cascaded into subsequent proceedings;

•  the appeal was not a complex matter;

•  it was unfair to give the respondent the advantage of having representation; and

•  the default position was that representation not be granted and this should be applied to refuse the respondent’s request.

[21] Section 596 of the FW Act provides as follows:

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[22] The circumstances contemplated by ss 596(3) and (4) do not apply. Accordingly, Superior Wood required permission under s 596(2) if it was to be represented by a lawyer in the hearing of this matter.⁸

[23] The proper approach to s.596 of the FW Act was summarised by the Full Bench in Grabovsky v United Protestant Association of NSW Limited⁹ in the following terms:

“[35] Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).

[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.

[37] While a decision to grant or refuse permission for a party to be represented by a lawyer or paid agent is an interlocutory decision, it is not properly characterised as a mere procedural decision. As Flick J observed in Warrell v Walton: 

‘It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted.’

[38] For completeness we would note that the power to grant or refuse permission for legal representation in s.596(2) does not carry with it the power to select who that legal representative would be, either by reference to the individual identity of the lawyer or whether the lawyer is a barrister or solicitor, nor does it empower the Commission to choose which member of a party’s legal team might represent the party in proceedings.” (references and footnotes omitted)

[24] In Warrell v Walton,¹⁰ Flick J also reinforced that it is apparent from the terms of the FW Act that a party in a matter before the Commission must normally appear on their own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law; namely only where one or other of the requirements imposed by s 596(2) have been taken into account and satisfied.

[25] As a result, in applying the approach set out above the assessment of whether permission should be granted under s 596 potentially involves a two-step process. The first is consideration as to whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.¹¹ It is only where the first step is satisfied that the second step arises, and involves a consideration as to whether in all of the circumstances the discretion created should be exercised in favour of the party seeking permission.¹²

[26] For reasons that are evident from the history of this matter, and the issues that we are required to deal with, the appeal has a level of complexity. This includes the nature of issues that have led to permission to appeal being granted to Mr Lee and the nature of many of the appeal grounds that rely upon broad propositions based in part on attempts to relitigate matters already determined that bear little relevance to the appeal.

[27] All of these factors are evident in the extent and nature of the material provided and the issues raised and, when considered in the overall context of this matter, mean that there is relevant complexity associated with this particular appeal. We also considered that having regard to the nature of that complexity, the grant of permission to Superior Wood would enable the matter to be dealt with more efficiently, particularly as Superior Wood has had the same legal representative throughout the proceedings and consequently has substantial familiarity with the matter. This satisfied the precondition set out in s 596(2)(a) of the FW Act.

[28] As a result, it was necessary to consider whether we should exercise our discretion to grant permission. This required consideration of all circumstances relevant to the parties and the matter being heard. The history of the proceedings to date did not suggest that the previous grant of permission for legal representation to Superior Wood has caused it any unfair advantage in the proceedings. There has certainly been a significant disparity in the quality of representation, but that is a result of Mr Lee choosing to have A Lee act as his advocate. The disadvantage which this has caused Mr Lee would remain regardless of whether Superior Wood was granted permission for legal representation.

[29] In all of the circumstances of this matter, and in light of our satisfaction as to s 596(2)(a) of the FW Act, we determined to exercise our discretion to permit Superior Wood to be represented by a lawyer.

6. Permission to appeal

[30] An appeal under s 604 of the FW 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. There is no right to appeal and an appeal may only be made with the permission of the Commission.

[31] This appeal is one to which s 400 of the FW Act applies. Section 400 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.

[32] In the Federal Court Full Court decision 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 FW Act as “a stringent one”. 13 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.14 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”. 15 

[33] 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. 16 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.17

[34] For reasons that follow, we considered that permission to appeal should be granted in this case.

[35] The appeal raises at least one aspect of some novelty and general application and this in turn raises an arguable case that the Decision under appeal is attended by appealable error. That is, the extent to which the conduct and behaviour of a self-represented unfair dismissal applicant, or an applicant represented by another person who is without legal or advocacy experience, at or in connection with a hearing conducted to deal with the application is relevant to whether a workable employment relationship can be re-established between the applicant and their former employer. In this case, that issue crystallised in the conduct of A Lee in connection with the hearing before the Commission and the extent to which this could be taken into account in a manner adverse to the interests of Mr Lee. In this way, the issue bears directly upon the assessment as to whether reinstatement is an appropriate remedy in this matter.

[36] Further, for reasons that will become clear, we consider that the Decision under appeal is attended by appealable error on a related basis.

[37] In the circumstances we considered that the appeal attracts the public interest and permission to appeal was granted by us on 2 October 2019.

7. The parties’ contentions

Mr Lee

[38] Mr Lee seeks, in effect, that the Decision be overturned and that this Full Bench determine to grant him reinstatement with “full continuance”, which we understand to be that he receive full payment of any lost income since the dismissal and that continuity of service be provided.

[39] We have earlier set out Mr Lee’s comprehensive grounds of appeal as these properly outline the scope and nature of the many issues advanced by him in this appeal. It is evident from those grounds that Mr Lee seeks to continue to agitate many of the substantive issues that were determined by the first appeal and to emphasise what he considers to be the broader implications of this matter.

[40] In addition, the following submissions were advanced during oral argument by A Lee on Mr Lee’s behalf:

•  this case is about ownership of people’s sensitive data, their biometric data, consent and theft and the well-organised, coordinated attempt to legitimise it;

•  Mr Finlayson “has committed and continues to commit daylight robbery”; 18

•  Mr Lee lost his job and has applied to the Commission for protection of his right to privacy;

•  the robbery of his data was so obvious that it should have led to his immediate reinstatement and yet he has been without his job for 22 months (at the time of the appeal hearing);

•  the failure to reinstate has “endorsed his termination, ignored his rights to privacy and given the green light to Mr Finlayson to continue stealing the biometric data from his other 400 staff”; 19

•  the absence of reinstatement has led to Mr Lee suffering a loss of over $60,000, which was in effect a penalty to an employee unfair dismissed, a financial gain to the respondent employer and “an egregious, arrogant and cynical transfer of wealth from a low paid employee that never missed a day of work in three and half years, to an already very wealthy employer…”; 20

•  Mr Finlayson “could have been honest, he could have talked to his workers, explained his proposal and asked for their consent. Instead, rather than acknowledge ownership and ask for consent, Mr Finlayson decided in option B, steal it”; 21

•  Mr Lee had an impeccable employment record and apart from protecting his privacy, he has done nothing to be denied reinstatement. There were no prior issues of trust and confidence;

•  the decision not to reinstate was unjust and unfair and concentrated upon the respondent’s claims that were mere emotions or feelings that could easily be faked;

•  there was no basis for the finding that trust and confidence had been lost and the Commissioner failed to explain why the relationship could not be productive and viable;

•  Mr Lee could have used a PIN code system rather than using the fingerprint scanner and his immediate reinstatement should have been ordered;

•  the Commissioner used Mr Lee’s robust and energetic representations of his own case in his finding to deny reinstatement and this was unsound;

•  in the hearing the Commissioner denied Mr Lee the capacity to scrutinise the basis of Superior Wood’s objections to reinstatement and indicated that they were irrelevant;

•  the Commissioner took account of Mr Lee’s position as a casual, but this was not raised by the Superior Wood as a relevant consideration; and

•  Mr Lee had also been very complimentary of Mr Finlayson’s honesty and integrity about paying employees and superannuation.

[41] We have left aside from this summary the many personal, ill-informed attacks made on Mr Lee’s behalf against the Commission and those Members that have earlier dealt with this matter. This includes the offensive suggestions that Members have been part of various conspiracies, have lied, and that the decisions issued, including the earlier appeal decision that found for Mr Lee, are fabrications and “beyond reasoning”. These reflect very poorly upon A Lee and by implication Mr Lee, but do not form a relevant part of this appeal except insofar as they underline one of the issues which caused us to grant permission to appeal.

[42] During the appeal, Mr Lee at our request and after a considerable degree of prevarication responded directly (that is, not through A Lee) to some questions from the Full Bench and stated that, if reinstated, he could “trust Mr Finlayson as I did before the dismissal” 22 and that “before I was sacked I was already aware that his site attendance policy was illegal - yet I acted honestly in that I did not miss any days of work. I treated Mr Finlayson with respect when I had occasion to see him, which is not very often, but he does come onto the floor sometimes.”23

Superior Wood

[43] Superior Wood contends that the question about the appropriateness of reinstatement involves the exercise of a discretion, that some latitude is to be afforded to the decision-maker, and that a relevant error in the decision-making process was required for the appeal to be successful. 24 It was not sufficient for the Mr Lee simply to identify an error of any nature or indicate a preference for a different result, and no relevant appealable error had been demonstrated by Mr Lee.

[44] As to the substance of the appeal, Superior Wood contends that:

•  there is no automatic right for an applicant who has found to have been unfairly dismissed to be reinstated, and the Commissioner properly exercised his discretion in determining that reinstatement was inappropriate and instead awarded maximum compensation;

•  the Decision rests on two factors, being the loss of trust and confidence and the presumption that Superior Wood would suffer financially if Mr Lee was reinstated. Both grounds were sound from a legal and factual perspective and there was no error in connection with those findings;

•  the Commissioner did not refuse to reinstate Mr Lee because he had represented himself vigorously; rather he did so because Mr Lee had used language about Mr Finlayson that was offensive, unjustified, and damaging to the goodwill presumed to exist and he had continued to agitate the issues concerning the use of the biometric scanning system at the remedy hearing; and

•  there was no error in the conduct of the hearing by the Commissioner.

[45] In relation to the grounds upon which we had determined to grant permission to appeal, Superior Wood submitted that the issue had not been previously considered by the Commission or any Court; however, there was considerable case law on the issue of the assistance that should be given to a self-representing party. Having regard to that authority, Superior Wood contended that:

“… the perhaps ill-considered conduct and behaviour of a self-represented unfair dismissal applicant, (or an applicant assisted by another person without legal or advocacy experience), at or in connection with a hearing with respect to whether a workable employment relationship can be re-established should be treated no differently to that of a represented applicant.

To do so would:

(a) effect the merits of the case contrary to the case law referred to above;

(b) confer a positive advantage on the self-represented applicant, contrary to the case law referred to above;

(c) constitute a failure to maintain neutrality between the parties giving rise to an apprehension of bias.” 25

[46] Superior Wood also contended in oral submissions that:

•  the Commission could draw inferences, about the appropriateness of reinstatement, from the conduct and statements made by Mr Lee and A Lee, during the proceedings;

•  Mr Lee had continued to defame Mr Finlayson in a very serious manner and in effect suggested that Mr Finlayson was a criminal including through the appeal submissions;

•  the fact that Mr Lee was not now represented by a lawyer meant that the Commission had seen the real Appellant without the “filter of legal representation”;²⁶

•  Mr Lee had used language and descriptions in relation to Mr Finlayson that the Commissioner had correctly considered to be offensive, objectionable and damaging to goodwill. This included the statements to the effect that Mr Finlayson and Superior Wood had been deceitful and dishonest and had breached the privacy and stolen the biometric date of the other employees. These statements were made again in support of the appeal even when the earlier Full Bench had sustained the view that the other employees had given their consent;

•  the “abuse” of Mr Finlayson and his company was repugnant to the employment relationship that Mr Lee sought to re-establish;

•  in the proceedings before the Commissioner and during this appeal, Mr Lee continues to re-agitate the matters previously determined and the “unhelpful fixation” with the use of the biometric scanner in the workplace was not consistent with reinstatement and may frustrate Superior Wood’s attempts to improve safety and payroll functions; and

•  there was no authority for the proposition that Mr Lee should be positively advantaged in relation to the nature of his representation and assistance to be provided to a non-legally represented party should not extend to ignoring statements made by that party or on their behalf.

[47] Superior Wood sought that the appeal be dismissed and in the alternative that it be provide with an opportunity to provide further evidence in the event that the appeal was allowed.

8. Consideration

General principles concerning the remedy of reinstatement

[48] The provisions of Division 4 of Part 3-2 of the FW Act relevant to the remedy of reinstatement are as follows:

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).

(2) the FWC may make the order only if the person has made an application under section 394.

(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.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[49] In Colson v Barwon Heath,²⁷ the Full Bench considered the statutory scheme surrounding the unfair dismissal remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer and observed as follows:

“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).

...

[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:

“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.

[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.”

[50] Further, in Tenterfield Care Centre Limited v Wait, 28 a Full Bench observed in connection with the Commission’s appellate function:

“[20] The question of whether reinstatement is appropriate involves the exercise of a discretion which will invariably be particular to the circumstances of the case. Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be successfully challenged on appeal by showing error in the decision-making process. It is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

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

[51] In Australia Meat Holdings Pty Ltd v McLauchlan²⁹ a Full Bench of the Australian Industrial Relations Commission (AIRC), having considered the language of the Act operating at that time, 30 which is for relevant purposes comparable to the present provision, said:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.

...

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

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.”

[52] The Full Bench of the AIRC further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence,³¹ and that the approach outlined in Perkins remains sound and requires consideration of the “rationality” of the basis of the employer’s concerns.³²

[53] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter³³ (Nguyen) the Full Bench conveniently summarised the approach required as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[54] In Nguyen, the Full Bench also considered the impact of concurrent litigation, in that case an underpayment claim being pursued by the applicant employee, had on the assessment of whether reinstatement was appropriate and stated:

“[37] In pursuing their underpayment claim the Appellants are exercising a workplace right, within the meaning of s.341(1)(b) of the FW Act. Part 3-1 of the FW Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right. It would be incongruous if the exercise of a workplace right operated as a barrier to reinstatement in an unfair dismissal proceeding in circumstances where Part 3-1 of the FW Act prohibits an employer from terminating the employment of an employee who exercises a workplace right.

[38] The fact that the Appellants have pursued an underpayment claim and that this has given rise to a degree of acrimony between the parties is not a matter which should be taken into account in determining whether reinstatement is appropriate. It follows that the Senior Deputy President made an error in his consideration of this issue, in that he took account of an irrelevant consideration.”

[55] For our part, we accept that acrimony that may arise from the existence of proceedings between parties, and the exercise of workplace rights, including by making and forcefully advancing applications and positions, are irrelevant to the present consideration. However, this does not mean that evidence given, and positions taken, in the proceedings will always be so. That is, to the extent that evidence and conduct sheds light upon the likely conduct and attitudes towards the relationships of the parties in the workplace in the event of a reinstatement, this is potentially relevant to the assessment of whether that remedy is appropriate.

Issues raised by the appeal grounds

[56] We have earlier set out in full the extensive grounds of appeal contained in Mr Lee’s notice of appeal. Many of those grounds merely seek to re-argue Mr Lee’s case for reinstatement. However, reading the appeal grounds generously, we consider that they raise two broad contentions of error on the part of the Commissioner:

(1) The Commissioner erred in concluding that Superior Wood had a rational basis for its loss of trust and confidence in Mr Lee based on various statements made by Mr Lee, or A Lee on his behalf, during the course of the proceedings.

(2) The Commissioner failed to take into account a number of matters which weighed in favour of reinstatement – in particular, Mr Lee’s prior unblemished record of employment, the lack of any fault on his part for the dismissal, and the loss he had suffered as a result of the dismissal.

[57] We shall deal with each of these contentions of error in turn.

First contention of error

[58] The Commissioner ultimately concluded that Superior Wood had a rational basis for its loss of trust and confidence in Mr Lee and that the distrust was mutual. He also concluded that as a result of this finding and some other limited reasons he had set out, reinstatement was inappropriate in this matter. 34

[59] It is evident from the Decision that the Commissioner considered and discounted the following factors relied upon by Superior Wood as reasons not to reinstate Mr Lee:

•  Mr Lee’s failure to comply with the Policy – as he was entitled to do given the Full Bench findings in the first appeal that the direction was not lawful;

•  whether Mr Lee would seek to persuade others not to comply with the Policy; and

•  the requirement for Superior Wood to provide a payroll and time recording system taking into account Mr Lee’s refusal to utilise the new system.

[60] Given the evidence before him and the findings of the earlier Full Bench, he was right to do so.

[61] It is also evident from the Decision that the Commissioner fundamentally relied upon the following matters as leading to his conclusions about the loss of trust and confidence and the inappropriateness of reinstatement:

•  The description of Mr Finlayson in the Form F51 as being “deceitful and dishonest”. The Commissioner considered that these and other statements were such that it was reasonable for Mr Finlayson to feel that Mr Lee’s statements about him were offensive, objectionable, and damaging to any goodwill that might have otherwise existed between the parties before the statement was made. 35

• The cross-examination during the hearing was conducted as if the unfairness of the dismissal was yet to be determined and involved attempting to obtain concessions that the biometric scanner was not designed to improve safety and that the scanner actually takes the fingerprint rather than creating an algorithm to convert into a binary code. 36

•  Mr Lee’s conduct was indicative that he had ongoing issues with the scanning system and that continuing to agitate those issues is “likely to hinder any restoration of the employment relationship despite evidence to the contrary”. 37

[62] The importance of these findings in the Decision is reinforced by the fact that the Commissioner also found that up to the point of the matter being remitted to himself, “the evidence to that point would have weighed in favour of a finding that reinstatement would be appropriate”. 38 This was a finding clearly open to the Commissioner and we observe that absent the issues that arose during the further hearing in connection with the remedy before the Commissioner, we would have expected that to be the likely outcome given the findings of the earlier appeal. These findings give further emphasis to the disadvantageous effect that Mr Lee’s representation by A Lee had on the outcome of the matter. They also suggest that the Commissioner focused the consideration of reinstatement almost solely upon the trust and confidence issue, a point which we will return to.

[63] As a result of the focus of the Decision, it is important for us to consider the nature and import of the statements made by or on Mr Lee’s behalf and to consider the relevance of those statements for the capacity to reasonably restore the employment relationship. In so doing, we also consider that it is vital to separate the hyperbole and belligerence in elements of the case advanced on Mr Lee’s behalf from the substance of the case itself.

[64] As the Decision makes clear, a matter which the Commissioner regarded as of importance was the description of Mr Finlayson in the Form F51 as being “deceitful and dishonest”. That statement was defended by Mr Lee in the hearing before the Commissioner as being capable of justification 39, and Mr Lee went on when being cross-examined to say that “I was referring to (Mr Finlayson’s) attempt to take my biometric data, without actually declaring what he was really doing and why he was doing it”.40 Mr Lee subsequently stated in re-examination that the statement in the Form F51 was made as “just a general guide as to what we were going to be asking (Mr Finlayson) about”.41

[65] We observe that in submissions before us, it was contended by A Lee on behalf of Mr Lee that, in respect of the statement in the Form F51: “My brother lives in the real world. He sees his employer and his dishonest actions for what they are and turns up every single day regardless”. 42 He went on to say: “To describe a reasonable and accurate description of the respondent’s conduct as if it was somehow unjustified, is outrageous.”43

[66] In our view, the Commissioner was right to conclude that the statements made about Mr Finlayson were offensive, objectionable, and damaging of goodwill that might have otherwise existed between the parties before the statements were made. These statements were related to the view that Mr Lee holds that the biometric scanner takes an image of the fingerprint which represents his biometric data; whereas Mr Finlayson considers that the scanner only scans certain points of the fingerprint and creates a binary code that cannot be used to recreate a fingerprint. The evidence is also that Superior Wood introduced the scanner system following legal and other advice. Ultimately, the Full Bench in the first appeal took a different view about the operation of the Privacy Act and found that in relation to Mr Lee, who had objected to the use of the scanner and expressly did not give his consent to the biometric scanner, the direction to comply with the policy was not a lawful and reasonable direction. We observe that the first appeal decision did not find that the Policy was itself unlawful and this is a point correctly identified by Commissioner. 44

[67] There has never been any proper basis for the suggestion that, in introducing the Policy, Superior Wood or Mr Finlayson acted in bad faith or for an improper motive. Mr Finlayson is the sole Director of Superior Wood, and although he would not directly supervise Mr Lee upon reinstatement, Mr Lee’s attitude towards Mr Finlayson is relevant to the appropriateness of reinstating the employment relationship.

[68] In that light, the statements made by Mr Lee about Mr Finlayson’s motive and actions were damaging and not objectively justified, and the Commissioner did not therefore err in treating this as a matter which weighed against a finding that a workable relationship was capable of being restored through a reinstatement order.

[69] Mr Lee also made numerous statements made about the merit and implications of the actions undertaken by Mr Finlayson and/or Superior Wood in introducing the scanning system (many of which were repeated in the grounds of appeal and in the submissions before us). These included statements that were either sceptical or completely dismissive of Superior Wood’s position that the scanning system had or would improve workplace safety and accountability for time recording. We also note that some of these statements were made, at least in part, in response to further evidence advanced by Superior Wood seeking to justify the introduction of the scanning system on that basis.

[70] In our view, although some of these statements were perhaps unhelpful and represent exaggerated hyperbole arising from Mr Lee’s strongly held views about the fundamental privacy question associated with the biometric scanners, these are not in their own right such as to indicate that the working relationship would itself be problematic. In particular, these statements do not provide a foundation for any proposition that Mr Lee had, or would in the future, refuse to comply with and respect company policies (other than the Policy at the heart of this matter – which the earlier appeal found he was within his rights to refuse to comply with – or perhaps another policy involving personal biometric data). However, these statements do reveal that the difference of view about how and why the biometric scanners were introduced is likely to remain a source of some continuing tension between Mr Lee and Superior Wood. To that extent, we consider that the Commissioner was entitled to take this into account as a matter weighing against the making of a reinstatement order.

[71] We have considered whether a different view about these matters ought to be taken by reason of the representation of Mr Lee by A Lee. The usual principle is that, on appeal, a party is bound by the conduct of his or her legal representative at first instance. However, of course, A Lee was not the legal representative of Mr Lee, and the usual assumptions that are applied to the conduct of legal representatives – in particular, that they acting in accordance with the instructions of their client and on the basis of a professional assessment of what is in their client’s best interests – are not applicable here. The advocacy of A Lee at first instance (and on appeal) was not only, for the most part, counter-productive from the perspective of his brother’s best interests, but also gave the impression that the matter has “become personal” for A Lee. That initially raised in our minds a real question as to the extent to which any statements or conduct directly attributable to him could be taken into account in a manner adverse to Mr Lee’s interests. However during the appeal hearing Mr Lee, on the few occasions he addressed us directly, made it unmistakeably clear that A Lee spoke on his behalf. 45 Accordingly, to the extent that any of the statements relied upon by the Commissioner to found his conclusion that there was a rationally-based loss of trust and confidence were made by A Lee rather than Mr Lee, we do not consider that there is a proper basis to absolve Mr Lee of responsibility for these.

[72] For these reasons, we reject the first contention of error.

Second contention of error

[73] The authorities to which we have earlier referred, particularly Nguyen, make it clear that while the issue of trust and confidence is a relevant and significant consideration in determining whether reinstatement should be awarded, it is not the only consideration nor is it necessarily the decisive consideration. However we consider that in the Decision, the Commissioner focused on the issue of trust and confidence to the exclusion of a number of matters which plainly favoured Mr Lee’s case. These included that:

•  Mr Lee had a good employment record, with no performance or conduct concerns up to the point that he was instructed to comply with the Policy;

•  he did not contribute to the dismissal, having regard to the findings of the first Full Bench; and

•  when first required to comply with the Policy, he had constructively advanced his objections to the Policy prior to his dismissal without creating any broader issues in the workplace.

[74] The evidence also demonstrated that Mr Lee has suffered continuing unemployment since his dismissal. The maximum amount of monetary compensation permissible under the FW Act clearly does not compensate him for that loss. The loss which an employee who has been found to have been unfairly dismissed has suffered as a result of the dismissal is necessarily a significant matter in the consideration of the award of a remedy under Div 4 of Pt 3-2 of the FW Act. 46

[75] The Commissioner’s consideration of the remedy of reinstatement in the Decision, which we have set out above in full, does not include any reference to these matters. It is therefore necessary for us to conclude that these matters were not taken into account and accordingly not weighed against the matters which were adverse to the grant of reinstatement.

[76] Additionally, insofar as the issue of trust and confidence in the context of the capacity to restore a workable relationship is concerned, we consider that the Commissioner failed to take into account and weigh evidence given by Mr Lee that favoured his position. This included the following:

•  “There were no other outstanding issues or problems with trust prior to me being dismissed. And certainly, if I get reinstated I wouldn’t have any problems with trust. And I don’t think that the employer should either because it would be a continuation of my employment. There is no reason to suggest otherwise.” – Mr Lee when giving evidence in chief. 47

•  Superior Wood should have no concerns about Mr Lee’s willingness to comply with other policies “so long as they don’t require me to give my biometric data.” 48

•  The description of Mr Finlayson’s conduct did not relate to his overall conduct and “while I was working there I was very complimentary of my employer in regard to his honesty and sincerity about paying employees that were due, and that’s quite rare” and Superior Wood “never shirked paying superannuation” - Mr Lee in re-examination. 49

•  Mr Lee has very limited actual contact or dealings with Mr Finlayson in the workplace.

[77] This evidence had a contrary implication for Mr Lee’s attitude towards Mr Finlayson and Superior Wood, and permits the inference that, if reinstated, his workplace behaviour and performance would not be any different to what it was prior to the dismissal. If this evidence had been taken into account, it may have been available to conclude that the hyperbolic rhetoric used by laypersons in the unfamiliar context of litigation did not represent the substance of the matter.

[78] Accordingly, we are of the view that the Commissioner acted on a wrong principle and failed to take into account materially relevant considerations. This constitutes an error of the kind contemplated in House v King. Consequently, we consider that Mr Lee’s second contention of error is made out and in all the circumstances we find that the appeal should be upheld.

[79] Given our findings it is not necessary for us to specifically address the numerous remaining issues ventilated in the grounds of appeal. It is sufficient for us to indicate that none of these grounds have substance and are illustrative of the kind of complexity and largely misinformed distractions that have contributed to the length of time that this matter has already taken.

9. Conclusions and disposition of the matter

[80] For the foregoing reasons we have decided to uphold the appeal and quash the Decision. We have decided to rehear the application as it concerns the remedy to be provided to Mr Lee under the terms of the FW Act. In that regard, we observe that Superior Wood sought the opportunity to provide further submissions and evidence about remedy in the event that we upheld the appeal. Given the lapse of time since the dismissal and the capacity for subsequent relevant developments to impact upon the assessment of the appropriateness of reinstatement for both Mr Lee and Superior Wood, we need to provide an opportunity for the parties to provide further evidence specifically directed to the question of remedy.

[81] In the event of reinstatement, we would also need to consider whether the continuity of service should be provided under s.391(2) of the FW Act and whether an order to restore lost pay should be made under s.391(3), including whether there has been any remuneration under s.391(4) that should be taken into account. The compensation paid by Superior Wood under the Order 50 made by the Commissioner, which has not been appealed, would also need to be considered in this context. Consideration also needs to be given to the fact that we delayed our determination of this appeal because we became aware during the proceedings that Mr Lee had taken the counter-intuitive step of seeking judicial review of the first appeal decision in the Federal Court of Australia. We did not consider it appropriate to determine the appeal of the Commissioner’s decision concerning the proper remedy for Mr Lee’s unfair dismissal in circumstances where he was seeking that the decision in which his dismissal was found to be unfair be quashed. This application was dismissed by the Court on 6 February 2020.

[82] We confirm the grant of permission to appeal, and we order that the appeal be upheld. Directions will shortly be issued to enable the outstanding issues to be determined by this Full Bench.

VICE PRESIDENT

Appearances:

A Lee, on behalf of J Lee the Appellant.

M Curran, with permission for the Respondent.

Hearing details:

2019
Sydney and Brisbane (video hearing) – permission to appeal hearing
October 2

Melbourne and Brisbane (video hearing) – appeal hearing
December 10.

Printed by authority of the Commonwealth Government Printer

<PR717393>

1 [2019] FWC 5095

 2   [2019] FWCFB 2946

 3   [2018] FWC 4762

 4   [2019] FWCFB 2946 at [102] and [103]

 5   Decision at [200] and [201]

 6   PR710580

 7   Mr Lee was represented by a lawyer in the first hearing of his matter before Hunt C.

8 The Fair Work Commission Rules 2013 at rule 12, in effect, provide reviewable standing permission for a lawyer to file documents, correspond with the Commission, and provide written submissions as a representative in relation to a matter before the Commission. That standing permission does not extend to a hearing of this nature.

9 [2018] FWCFB 4362

10 [2013] FCA 291; 233 IR 335

11 See also Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]

12 See also Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]

 13   [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [43]

 14   O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 15   [2010] FWAFB 5343; (2010) 197 IR 266 at [27]

 16   Wan v Australian Industrial Relations Commission [2001] FCA 1803; 116 FCR 481 at [30]

 17   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 18   Appeal transcript 10 December 2019 PN173

 19   Appeal transcript 10 December 2019 PN181

 20   Appeal transcript 10 December 2019 PN221

 21   Appeal transcript 10 December 2019 PN191

 22   Appeal transcript 10 December 2019 PN381

 23   Appeal transcript 10 December 2019 PN383

 24   Relying upon House v King [1936] HCA 40, 55 CLR 499

 25   Written submissions at page 18

26 Appeal transcript 10 December 2019 PN451

27 [2014] FWCFB 1949

 28   [2018] FWCFB 3844

29 AIRC Print Q1625, 5 June 1998; (1998) 84 IR 1

 30   Workplace Relations Act 1996 (Cth)

31 Ibid at [49] to [51]

32 Ibid at [60]

33 [2014] FWCFB 7198

 34   Decision at [220]

 35   Decision at [217]

 36   Decision at [210]

 37   Decision at [215]

 38   Decision at [206]

 39   Transcript 10 July 2019 at PN204 and PN230

 40   Ibid at PN207.

 41   Ibid at PN258.

 42   Appeal transcript 10 December 2019 PN302

 43   Appeal transcript 10 December 2019 PN306

 44   Decision at [213]

 45   Transcript 10 December 2019 PNs 22, 81, 106, 384

 46   Kylie Jeffrey v IBM Australia Limited [2015] FWCFB 397 at [12] and [2015] FWCFB 4171; 250 IR 260 at [5]-[7]; Vennix v Mayfield Childcare Limited [2020] FWCFB 550 at [20]

 47   Transcript 10 July 2019 at PN173

 48   Ibid at PN195

 49   Ibid at PN259 and PN261

 50   PR710580