DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Rabbi Pinchas Ash
v
Chabad Institutions of Victoria Limited
(C2020/2576)

Introduction and background

[1] Rabbi Pinchas Ash has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Mansini on 31 March 2020 1 (decision). In that decision, the Deputy President dismissed an application made by Rabbi Ash pursuant to s 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Chabad Institutions of Victoria Limited (Chabad). Chabad is the employing entity of religious teachers at Yeshivah College at St Kilda East in Melbourne (School). Rabbi Ash served as a teacher at the School for more than 40 years until he was dismissed on 29 March 2019. The reason for his dismissal given by the School was that Rabbi Ash had engaged in “misconduct and … unacceptable behaviour over the last several months”, as to which five identified incidents were particularised, as well as prior alleged behaviour of a similar type. The Deputy President found that the last two of the five incidents constituted a valid reason for dismissal. The Deputy President also found that Rabbi Ash had been afforded procedural fairness, the dismissal was not a disproportionate response to the conduct he had been found to have engaged in and, accordingly, the dismissal was not harsh, unjust or unreasonable. Rabbi Ash contends in his appeal that the Deputy President mistook significant facts, failed to take into account material considerations, did not properly exercise the discretion reposed in her, and failed to give adequate reasons.

[2] The factual background to the matter is as follows. Rabbi Ash commenced employment with the School as a Teacher of Jewish Studies in 1978. From 2014, he reported to Rabbi Morozow, the Head of Jewish Studies in the School. From 2010, the Principal of the School was Rabbi Smukler. As at 2019, Rabbi Ash’s rostered duties included 19.75 hours per week of face to face teaching hours and 2.667 supervision hours; the rest of his working hours were taken up with preparation for his teaching hours.

[3] In the last decade or so of Rabbi Ash’s employment, issues were raised with him on a number of occasions concerning alleged failures to comply in various respects with the School’s requirements for the supervision of students. A formal disciplinary process was initiated against him in 2012 but was subsequently put on hold and not thereafter pursued. On 20 February 2019, Rabbi Ash failed to attend to his obligation to supervise students at breakfast in the school cafeteria, and he received a written warning from Rabbi Morozow on 24 February 2019. On 6 March 2019, Rabbi Ash did not attend a class he was rostered to teach. On 25 March 2019, the School’s Board accepted Rabbi Smukler’s recommendation that a process be commenced to terminate Rabbi Ash’s employment, and he was authorised to deal with the matter as he saw fit. On 26 March 2019 Rabbi Ash was sent a letter requiring him to attend a meeting the following day to discuss his failure to attend the rostered class on 6 March 2019 (which was described as “creating an unacceptable safety risk and… another breach of duty of care”) as well as other unspecified behaviours.

[4] Rabbi Ash attended the requested meeting on 27 March 2019, which was also attended by Rabbi Smukler, another member of the School’s Board and the School’s legal representative. The incidents on 20 February and 6 March 2019 were raised with Rabbi Ash, together with another incident which occurred on 30 October 2018. There was also raised an allegation that Rabbi Ash had on a large number of unspecified occasions not complied with directions not to dismiss students early or leave them unsupervised. Rabbi Ash was stood down with pay following the meeting, and required to attend a further meeting on 29 March 2019.

[5] Rabbi Ash attended the 29 March 2019 together with his legal representative. After a discussion and a break, Rabbi Smukler read out a pre-prepared letter which informed Rabbi Ash that his employment was terminated. A copy of the letter was subsequently provided to Rabbi Ash. The letter identified the reasons for the dismissal as follows (with the defined terms used by the Deputy President in the decision to refer to each matter added):

“We refer to our meeting on Wednesday and confirm that Yeshivah-Beth Rivkah Colleges (VBR) has decided to terminate your employment.

As discussed with you at our meeting on Wednesday and today, the reason for this decision is due to your misconduct and your unacceptable behaviour over the last several months and your recent conduct, in particular:

•  On 19 April 2018, you failed to attend for your scheduled class leaving the students under your care unsupervised; (First Incident)

•  Continuously dismissing students early, or allowing them to exit the classroom during scheduled class time, despite repeatedly being asked to ensure the students remain safe, sound and supervised in the class for the duration of the lesson; (Second Incident)

•  After being repeatedly reminded in person and in writing of the absolute requirement to attend and supervise your students, on 30 October 2018, you again failed to attend school assembly to accompany your students, once again leaving the students under your care unsupervised; (Third Incident) and

•  Despite being reminded of your duty of care, explicitly about breakfast supervision on 15 February 2019, only a few days later on 20 February 2019, without notification you again failed to attend for your rostered duty in the school cafeteria, resulting in the students under your care once again being unsupervised. On this occasion a student was injured. (Fourth Incident)

Following each of the incidents outlined above, amongst numerous others in recent and past years, Rabbi Morozow, Head of Jewish Studies and Mesivtah counselled you to highlight the seriousness of these issues, and to make it clear what was expected. Furthermore, following the final incident on 20 February 2019, Rabbi Morozow specifically advised you that, if there was any further incident where you failed to execute your supervisory duties, disciplinary action may be taken and your employment may be terminated.

Despite this unequivocal warning, on 6 March 2019, without notifying YBR or your colleagues, you failed to attend your Year 7 Chassidus class, leaving your students without supervision. Another staff member eventually stepped into your role to run your scheduled class. (Fifth Incident)

Your conduct evidences a pattern of behaviour that has resulted in at least 5 separate incidents in the previous 12 months where you have failed to comply with the requirements of your role and follow the reasonable and lawful instructions of YBR. These incidents occurred following similar type incidences during 2017 and prior. (Prior Conduct)

As discussed with you on numerous occasions, your conduct raises an unacceptable risk for both our students and the school. We have made every effort with you to emphasise the importance of you attending to your duties and attending to the care and supervision of our students, particularly where a failure to comply with those requirements creates a significant risk to the health and safety of those students.

Despite raising these matters with you repeatedly over a lengthy period of time, you have failed to accept the responsibility that comes with your position as a teacher in our school. We are also aware of multiple occasions where you have dismissed students from class and left them unsupervised, failed to follow up with students when they are late to class or have not attended class altogether. These issues have been raised with you time and time again but without true or sustained change in your behaviour or conduct.

At our meeting on Wednesday, and again today, we put these allegations to you and provided you with an opportunity to respond. We also discussed a number of other serious performance issues that have been raised with you and inadequately addressed. While they have not formed the primary basis for this decision, they have informed our decision as to your ability to adequately perform your role. We have considered your responses to the above issues and have taken into account the statements provided by other witnesses, including Rabbi Morozow and others but we do not consider that your response was sufficient to justify your conduct. Given you are a long standing employee we have been patient with you, and genuinely tried to get you to address these concerns. However, given your failure to heed previous instructions and formal warnings we have no confidence that your conduct would change in the future or there is any basis to provide you with further warnings.

We no longer have trust and confidence in your ability to attend to your duties and perform your role, creating an unreasonable risk to the health and safety of the students under YBR's care. YBR also does not have the staffing resources to continue to supervise your attendance and ensure that the students under your care are adequately supervised.

We further note that your decision to publicly disclose the suspension of your employment during this matter reaffirms our view that you are unwilling to conduct yourself appropriately in the workplace in accordance with management instruction.

We note that while the most recent incident of misconduct occurred on 6 March 2019, despite the seriousness of this matter, we elected to delay addressing this matter with you until this week to ensure that this matter did not interfere with your family simcha or the week of 7 Brachos.

In accordance with our minimum statutory requirements, YBR is required to provide you with 7 weeks' notice as well as any outstanding annual leave, long service leave and salary. We do not require you to work out this notice period and your employment will cease today.”

[6] The letter went on to make a confidential proposal for the termination of employment to occur on an agreed basis, subject to Rabbi Ash executing a deed of release, and reminded Rabbi Ash of his post-employment contractual obligations. Rabbi Ash declined to accept the proposal, and filed his unfair dismissal application on 1 April 2019.

The decision

[7] After summarising the factual background and the evidence given by the witnesses, the Deputy President in her decision proceeded to make her factual findings in relation to the matter. The Deputy President commenced by making findings about the reliability of the witness evidence as follows:

“[94] Some initial observations about the evidence, which involved a number of strong contests over relatively fine points of distinction:

a) Some of the incidents (particularly that defined as the Second Incident and the Prior Conduct) occurred many months and years prior to the dismissal. There were a number of contemporaneous or proximate emails in evidence. Rabbi Ash relied on his recollection and the emails but he did not rely on any contemporaneous notes. CIVL’s witnesses had some notes. Wherever possible I have sought to rely on the contemporaneous emails and documentary records in evidence in preference to the bald recollection of one witness over another.

b) I assessed Rabbi Ash as a strong character. He has had a long career devoted to religious education at the School. In evidence before the Commission, Rabbi Ash presented as defensive, and at times evasive. For example, he rarely gave direct answers to questioning in cross-examination. He was regularly strident in his interpretation of events and prone to seizing on minor matters of detail. This approach challenged his credibility.

c) Similarly, I found Rabbi Smukler to be difficult in cross-examination, at times straining to justify his process. Where there are important contests about process I have sought to rely on instances where Rabbi Smukler’s version is corroborated by another witness or supported by the documentary records.”

[8] The Deputy President then dealt with each of the five incidents in turn. In relation to the First Incident, the Deputy President found that Rabbi Ash was notified by Rabbi Morozow that he was required to take an “extra” class on 19 April 2018 at short notice, notwithstanding his stated intention to attend a medical appointment that day, and then did not take the class which was left unsupervised. The Deputy President further found that “at best” Rabbi Ash engaged in a discussion about taking the class 20 minutes beforehand knowing that he had no intention of performing the duty, that the School had no supervision arranged, and that he would decline to engage with a compromise position to allow him to assist with ensuring the supervision of the students as was his professional obligation. The Deputy President noted that Rabbi Ash had offered an apology for the class being left unattended, but also did not accept responsibility for what occurred and denied that he left any class unattended. She also noted that whilst Rabbi Ash had not been formally warned about the incident, he was placed on notice that he had not met Rabbi Morozow’s expectations. 2

[9] As to the Second Incident, the Deputy President found that Rabbi Ash was counselled a number of times about releasing classes early without providing continuing supervision of students. Notwithstanding this, Rabbi Ash continued the practice of releasing classes early on occasion into 2019. 3

[10] The Deputy President accepted Rabbi Ash’s concession that, in relation to the Third Incident, he failed to attend and supervise his class at the assembly on 30 October 2018 as required. The Deputy President did not accept Rabbi Ash’s uncertain recollection that this might have been because he was in the bathroom or unwell, nor did she accept that his absence was justifiable on the basis that other teachers were in attendance and supervising at the assembly. The Deputy President found that Rabbi Ash had been counselled about this via email by Rabbi Morozow, and he had been counselled about an incident of a similar nature in 2012. 4

[11] In relation to the Fourth Incident, the Deputy President found that Rabbi Ash had formed the view that his time was better spent on duties other than supervising breakfast and, on 19 February 2019, he requested Rabbi Morozow to make alternate arrangements. No resolution was reached at this discussion but, notwithstanding this, Rabbi Ash did not perform his breakfast supervision duty on 20 February 2019 and the students were consequently left unsupervised. The Deputy President accepted the evidence of Rabbi Smukler that, during this unsupervised breakfast period, there was an altercation between two students which left one of them with a minor injury.

[12] The Deputy President was satisfied on the evidence that a requirement for Rabbi Ash to perform breakfast supervision on at least Mondays, Wednesdays and Fridays was communicated to him on 15 February 2019, and indeed Rabbi Ash conducted breakfast supervision on 18 February 2019 consistent with this direction. The Deputy President was further satisfied that Rabbi Ash did not have a reasonable, credible or acceptable explanation for his failure to supervise breakfast on 20 February 2019, and did not accept that the fact Rabbi Ash had requested to be relieved of the duty excused him from performing it in the absence of an express rejection of the request by Rabbi Morozow. The Deputy President also found that in an email dated 24 February 2019, Rabbi Ash was warned that further disciplinary action, suspension or termination of employment might follow should there be a further failure to supervise students or perform duties as scheduled. 5

[13] As to the fifth incident, the Deputy President noted that it was not controversial that Rabbi Ash failed to attend his Year 7 Chassidus class on 6 March 2019, and that students were left unsupervised as a result. The Deputy President did not accept Rabbi Ash’s explanation that this was an oversight based on his reliance on an outdated schedule, since she considered that it had been established that Rabbi Ash was expected to appraise himself of his timetable via the School’s learning management system (SEQTA). The Deputy President acknowledged that, when asked about his failure to supervise the class by email on 10 March 2019, Rabbi Ash apologised, but the Deputy President characterised this apology as “casual and insincere” and failing to demonstrate “appreciation of the significance of the issue, any insight into his own conduct and performance” or “any contrition”. The Deputy President found that at the time of the Fifth Incident, Rabbi Ash was the subject of the warning arising from the Fourth Incident, and that the Fifth Incident involved conduct of the same kind as the Fourth Incident. 6

[14] In relation to the “prior conduct” referred to in the dismissal letter, the Deputy President found that to the extent this related to conduct that was not part of the five specified incidents, this conduct either did not relate to the supervision of students or a failure to follow reasonable and lawful directions in this respect or, in relation to conduct from 2010 or before, the evidence was insufficient to permit the Commission to make sound findings as to the truth of these matters. 7 In relation to the conduct of the process which led to Rabbi Ash’s dismissal, the Deputy President made findings of fact which, broadly speaking, were that Rabbi Ash had an opportunity to respond to the allegations concerning all of the five specific incidents, and that the decision to dismiss him was ultimately made by Rabbi Smukler on 29 March 2019.8 As to post-dismissal events, the Deputy President noted that it was not in dispute that Rabbi Ash had not searched for other work post-dismissal, that he held a “Shlichus” which is an appointment of honour within the religious and school communities, and that he accepted that he was employable and held skills that would allow him to be usefully engaged elsewhere albeit in another role that might not be as good.9 The Deputy President did not attach weight to testimonials and other material concerning Rabbi Ash’s effectiveness or otherwise as a teacher.10

[15] The Deputy President proceeded to consider each of the matters required to be taken into account under s 387 of the FW Act. In relation to s 387(a), the Deputy President found that Rabbi Ash’s conduct in respect of the Fourth and Fifth Incidents constituted a valid reason for dismissal. The Deputy President said:

“[136] Having regard to my findings above, the most recent conduct of Rabbi Ash (described as the Fourth and Fifth Incidents above) constitutes a valid reason for his dismissal which in each case amounted to a failure to supervise students as scheduled in breach of his duty of care, and a failure to follow reasonable and lawful directions.

[137] I have found that Rabbi Ash was required to and did not supervise his students at the breakfast supervision duty on 20 February 2019 (the Fourth Incident) and the Year 7 Chassidus class on 6 March 2019 (the Fifth Incident). Rabbi Ash does not dispute that the obligation to supervise students was fundamental to his role as a Teacher at the School. I have found that he was scheduled and therefore required to take the breakfast duty on 20 February 2019 and the Year 7 Chassidus class on 6 March 2019. The scheduling itself amounted to a reasonable and lawful direction to conduct these duties. However, in addition to the schedule, Rabbi Morozow was reminded of his scheduled breakfast supervision duty, just five days prior to the Fourth Incident being the 20 February 2019 breakfast duty which he did not perform. The Fifth Incident on 6 March 2019 followed counselling and the 24 February 2019 email which expressly warned of disciplinary action including termination if such conduct was repeated, just ten days prior. I have not accepted Rabbi Ash’s explanations for the Fourth and Fifth Incidents as reasonable or acceptable and do not consider they excuse his conduct in either case. I have not accepted the minor nature of the student injury on 20 February 2019 to excuse Rabbi Ash’s conduct in the Fourth Incident and, to the contrary, consider the fact of an injury of any magnitude underscores the approach taken by the School in the interests of protecting its students. I have not accepted Rabbi Ash’s “sorry about that” apology for the Fifth Incident as appropriate recognition of the seriousness of his conduct let alone contrition.

[138] Accordingly, both the Fourth and Fifth Incidents amount to a failure by Rabbi Ash to discharge his fundamental obligation to supervise students as scheduled and a failure to follow the School’s reasonable and lawful direction to perform those duties as rostered. I have found no basis to distinguish the Fourth and Fifth Incidents as to consider these isolated or distinct forms of misconduct because one related to a breakfast supervision duty and another related to a contact teaching duty. The simple fact is that both incidents involve a failure to perform Rabbi Ash’s duty as scheduled, resulting in a lack of supervision of the students within his care.”

[16] Having stated these conclusions, the Deputy President considered it to be unnecessary to have regard to every matter raised against Rabbi Ash “over the last ten years of a forty year employment relationship”. The Deputy President noted that she had found the conduct involved in the First and Third Incidents and some but not all of the Second Incident to have occurred and were not subject to any reasonable or acceptable excuse, but concluded that neither these incidents nor any prior conduct constituted a valid reason because they occurred at least five months or more prior to the dismissal. However, the Deputy President indicated that the relevance of those matters to a pattern of behaviour and the proportionality of the decision to dismiss Rabbi Ash would need to be considered further under s 387(h). 11

[17] In relation to s 387(b) and (c) the Deputy President, as earlier stated, found that Rabbi Ash was notified of the reasons for his dismissal which she found to constitute valid reasons (that is, the Fourth and Fifth Incidents), and was given an opportunity to respond. The Deputy President also found that Rabbi Ash was notified and given an opportunity to respond in relation to the Third Incident, but not the First and Second Incidents. 12 In relation to s 387(d), the Deputy President found that there was no unreasonable refusal to allow Rabbi Ash a support person at discussions relating to his dismissal on 27 and 29 March 2019.13 As to s 387(e), the Deputy President found that Rabbi Ash’s dismissal involved issues of both conduct and performance, and that in the latter respect he had been warned of his unsatisfactory performance by email on 24 February 2019. The Deputy President also noted that there had been a range of prior communications which constituted counselling, but that these did not expressly state that Rabbi Ash’s employment was at risk.14 As to s 387(f) and (g), the Deputy President found that neither the size of the enterprise nor the absence of in-house human resources expertise were likely to impact on the procedures followed in effecting Rabbi Ash’s dismissal.15

[18] The Deputy President treated three matters as principally relevant for consideration under s 387(h). First, the Deputy President had regard to “a pattern of behaviour” engaged in by Rabbi Ash. In this respect the Deputy President said:

“[165] Rabbi Ash appreciates that through his religious appointment or otherwise he is not exempt from following reasonable and lawful directions, or immune from the consequences of failing to meet his duty to supervise the students within his care. In a teaching role, this is a most basic duty.

[166] In addition to the examples forming part of the valid reason (the Fourth and Fifth Incidents), I have also found that Rabbi Ash failed to supervise students as scheduled and without reasonable or acceptable excuse on 30 October 2018 (the Third Incident) and 18 April 2018 (the First Incident). An example of the generally described Second Incident, dating back to 2014, was also found to have occurred. There are records of counselling for Rabbi Ash’s failures to supervise the students in 2014, 2016, 2017, 2018 and 2019. Whilst these facts of themselves did not substantiate a valid reason for the dismissal, in the circumstances of this case they are relevant to an overall assessment of whether the dismissal was harsh, unjust or unreasonable.

[167] Throughout his recent career history and these entire proceedings, Rabbi Ash has failed to accept any responsibility for his failures to supervise students within his care. He has sought to explain away his part in these incidents, regularly seeking to place responsibility with others. I have not found these explanations to be plausible or sufficient justification for his failures to supervise students as scheduled. Further, I find the series of excuses and absence of contrition to weigh against a finding of harshness.”

[19] The second matter was the seriousness of the misconduct, and the third was Rabbi Ash’s employment history. The Deputy President said in this connection:

“[164] Rabbi Ash’s age, the fact that he worked as a Teacher at the School for his entire teaching career, his specialist skills as a Jewish studies teacher and his career prospects are relevant matters to which I have had regard. I have also considered it to be relevant that Rabbi Ash holds a religious and spiritual appointment which is undoubtedly significant within the School and its community and which Rabbi Ash believes is lost as a result of the dismissal. However, these matters do not outweigh the issues at the heart of the dismissal, as to result in a finding that the dismissal was unfair.”

[20] The Deputy President’s overall conclusion was as follows (footnote omitted):

“[171] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

[172] I am satisfied there was a valid reason for the dismissal of which Rabbi Ash was properly notified and afforded full opportunity to respond. There was no unreasonable refusal of a support person in discussions related to the dismissal. A warning about the unsatisfactory performance was issued in clear terms prior to the final incident and before the dismissal. The nature of the conduct, the established prior conduct and history of counselling, the absence of an appreciation of the gravity or insight and the serious obligation of the School to protect the safety of its students and discharge its duty of care to the students are paramount to my consideration that the dismissal was not disproportionate to the conduct. The personal circumstances weighing in favour of a conclusion that the dismissal was harsh are significant, but not sufficient to render it harsh, or unjust or unreasonable.”

Appellant’s grounds of appeal and submissions

[21] Rabbi Ash’s notice of appeal identified three grounds of appeal as follows:

(1) The Deputy President erred in that she ought to have found that the dismissal was harsh under s.387(h) and overall under s. 387 because it was disproportionate to the gravity of the misconduct in respect of which the employer acted.

(2) The Deputy President ought to have found that the dismissal was harsh under s.387(h) and overall under s. 387 because the Applicant’s personal circumstances outweighed the matters at the “heart of the dismissal” and the Deputy President erred by making the contrary finding

(3) Further and/or alternatively to Ground 2, the Deputy President erred by failing to give reasons (or alternatively adequate reasons) for her conclusion that the dismissal was not harsh because the Appellant’ personal circumstances did not outweigh the matters at the heart of the dismissal.

[22] These appeal grounds do not contend that the Deputy President erred in finding that Rabbi Ash’s conduct in connection with the Fourth and Fifth Incidents constituted a valid reason for dismissal. Nor do they challenge the Deputy President’s findings, pursuant to s 387(b) and (c), that Rabbi Ash was afforded procedural fairness.

[23] The first ground of appeal contains ten particularised contentions of error. These contentions, and the submissions made in support of them are, in summary, as follows:

(1) The Deputy President erred in finding that Rabbi Ash showed no insight or contrition concerning the gravity of his failures to supervise students. In fact, in relation to the Fifth Incident, Rabbi Ash:

(a) apologised in his email of 10 March 2019;

(b) accepted at the pre-dismissal meeting with Rabbi Smukler on 29 March 2019 that his failure to attend a class on 6 March 2019 justified a warning; and

(c) conceded in his evidence at the hearing that his failure to attend a class was unacceptable.

(2) In relation to the apology in the email of 10 March 2019, the Deputy President’s finding that this was casual and insincere involved a denial of procedural fairness, since at the hearing neither the Deputy President nor the School suggested that the apology was insincere.

(3) It was additionally not reasonably open for the Deputy President to find that the apology in the email of 10 March 2019 was casual and insincere, given its wording and Rabbi Ash’s acknowledgement at the disciplinary meeting that a warning was warranted.

(4) The Deputy President erred in finding that the Fifth Incident was the same in nature as the Fourth Incident, when the Fifth Incident merely involved a genuine oversight on the part of Rabbi Ash.

(5) The Deputy President erred in her assessment of the seriousness of the Fourth Incident by not taking into account that Rabbi Morozow had agreed to look into alternative arrangements for the performance of breakfast supervision, leading Rabbi Ash to believe that he did not have to perform breakfast supervision whilst alternatives were looked into. The Deputy President also gave undue weight to the fact that a student was injured in some way at the unsupervised breakfast, when there was no evidence as to the nature of the injury or that Rabbi Ash’s presence would have made any difference. The School never alleged that the Fourth Incident was so serious that dismissal would be a proportionate response, and the Commission ought not to have upgraded the School’s view of it. It was an error but not an employment ending error.

(6) The Deputy President erred by treating the First, Second and Third Incidents as relevant on the basis that they constituted a pattern of behaviour in failing to supervise students. These incidents were too remote in time and different in substance as to constitute a pattern. The First Incident, where Rabbi Ash failed to attend an “extra”, was one anomaly in over 100 extras that Rabbi Ash taught each year. Rabbi Ash had given prior notice of his unavailability to attend for medical reasons, and the Deputy President also accepted that Rabbi Ash did not see the 11.04am email that he had to attend the “extra”. There was no rejection of Rabbi Ash’s response the same day that he did not understand that he had to teach an extra until 11.45am. As to the Second Incident, the evidence as to any wrongdoing was inconclusive. In relation to the Third Incident, Rabbi Ash could not remember the reason why he did not attend the school assembly on 30 October 2018 when it was first raised five months later, other teachers were present and no student was unsupervised, and missing one assembly in seven years was a minor infraction.

(7) The Deputy President erred in not taking into account Rabbi Morozow’s concession that he had never seen anyone terminated for not showing up for one period.

(8) The Deputy President failed to consider whether the Fourth and Fifth Incidents were anomalous when considered in the context of the hundreds of classes that Rabbi Ash routinely attended.

(9) The valid reasons did not warrant the Deputy President’s conclusion that Rabbi Ash disregarded student safety. Rabbi Ash had a valid reason for his non-attendance in relation to the Fourth Incident, and the Fifth Incident involved a mere oversight on his part.

(10) The Deputy President failed to take into account that a warning was a properly calibrated response to any shortfall in performance or conduct by reason of the Fourth Incident or the Fifth Incident.

[24] Rabbi Ash submitted that the errors with respect to the non-acceptance of responsibility and a pattern of conduct drove the Deputy President’s proportionality conclusion, and therefore constituted significant errors of fact for the purpose of s 400(2). He also pointed to the delay of nine months between the final submissions on 2 July 2019 and the publication of the decision on 31 March 2020 as requiring vigilance in the determination of the appeal to ensure that countervailing evidence has not been forgotten or overlooked.

[25] In relation to the second appeal ground, it was submitted that in the absence of adequate reasons explaining how she had exercised her discretion, notwithstanding the Deputy President’s statement that she had regard to Rabbi Ash’s personal circumstances, the Deputy President did not in substance exercise the discretion reposed in her. Rabbi Ash submitted that in the absence of adequate reasons, it is unreasonable or plainly unjust in the sense discussed in House v The King 16 that a lifelong specialist teacher could lose his career over the infractions in this case, and the Full Bench could infer that the discretion miscarried. The following submission was made:

“... a proper exercise of the discretion may have run: a School’s duty and a teacher’s duty to supervise students is paramount. In this case, once by an exercise of insufficient care and once by forgetting Rabbi Ash fell short of what was required in the fulfilment of that duty. There was a valid reason for his dismissal. Nonetheless, his personal circumstances are striking: he has 42 years’ service. He has highly specialised skills. Dismissal means a loss of his career and a severing of connection to religion and community. Its consequences are drastic for his personal circumstances. His conduct was not deliberate. He apologised for not attending a class and acknowledged his conduct warranted a warning. Previous matters were too remote in time and disparate in substance to constitute any pre-existing pattern of misconduct. Balancing all these factors, a warning was a proportionate response. It would stand as the Commission’s recognition of the importance of a School’s duties to its students and at the same time gives due recognition to Rabbi Ash’s personal circumstances and that any shortfall in his conduct arose from an oversight not a deliberate or repeated repudiation of his duties. Dismissal is disproportionate both in regard to what he did and in its drastic consequences for his personal circumstances.”

[26] In relation to the third appeal ground, Rabbi Ash submitted that the Deputy President failed to give reasons for her conclusion that his personal circumstances “do not outweigh the issues at the heart of the dismissal, as to result in a finding that the dismissal was unfair.” 17 A proper exercise of the discretion required an explanation as to what “tipped the balance”, and reasons for the rejection of the submission that a warning was a proportionate response were warranted.

[27] It was submitted that it was in the public interest that permission to appeal be granted because the decision was affected by significant errors of fact, manifested an injustice and was counter-intuitive. Rabbi Ash submitted that the appeal should be upheld and the Full Bench should re-determine the matter itself. Rabbi Ash seeks the remedy of reinstatement.

Respondent’s submissions

[28] The School submitted that:

•  there was a sound factual and evidentiary basis for the Deputy President’s conclusion that Rabbi Ash had through his recent career history and the proceedings before her failed to accept any responsibility for his failures to supervise students in his care and had sought to explain away his part in these incidents and seek to place responsibility on others;

•  this was demonstrated by Rabbis Ash’s lack of insight as revealed by his perfunctory and disrespectful emails to Rabbi Morozow, his standard approach of making excuses for and downplaying the seriousness of the incidents, and the shifting of blame towards the student who was injured when he failed to supervise students at the breakfast session on 20 February 2019;

•  these facts and this evidence made reasonably open the Deputy President’s finding that Rabbi Ash did not accept responsibility and lacked insight, particularly when her adverse credit finding against Rabbi Ash is considered;

•  the submission that dismissal was disproportionate downplays the relevant history of misconduct, as found by the Deputy President in relation to the First to Third Incidents, and more generally, and the appeal submissions of Rabbi Ash seek to approach the relevant incidents and the overall circumstances of the dysfunctional employment on a piecemeal basis, make fine distinctions and ignore the bigger picture;

•  there was plainly a pattern of failing to take responsibility in relation to supervising students, blaming others and defying those in authority, and the Deputy President who actually saw and heard Rabbi Ash give evidence was well justified in concluding that the series of excuses and the absence of contrition weighed against a finding of harshness;

•  Rabbi Ash’s misconduct was in relation to the most basic duty of a teacher, namely supervising students, and his conduct was serious in nature and posed a risk to students as highlighted by the injury to a student on 20 February 2019;

•  Rabbi Ash’s length of service as a teacher aggravates the seriousness of his failure to supervise students, since he should have known better;

•  the question of whether a dismissal was a proportionate disciplinary response to a student’s conduct was a wholly discretionary matter, and Rabbi Ash had failed to demonstrate any public interest in permission to appeal being granted in respect of a decision founded upon the individual circumstances of the case, nor had he demonstrated any appealable error;

•  in relation to ground 2, a full and fair reading of the decision shows that it cannot be characterised as unreasonable or plainly unjust;

•  the Deputy President addressed the statutory criteria in s 387, made detailed findings of fact and reached sound conclusions in the proper exercise of the discretion;

•  ground 3 of the appeal should not be upheld since the reasons for decision, read as a whole, clearly demonstrate that Rabbi Ash’s personal circumstances were considered but found not to outweigh the serious matters associated with his conduct which were identified by the Deputy President;

•  there is no appealable error in the form of a failure to give adequate reasons, since the Deputy President’s logic and reasoning are exposed, and Rabbi Ash could see why the Deputy President found that his dismissal was not harsh, in detailed and comprehensive terms, and why he lost the case more generally; and

•  the public interest test for the grant of permission to appeal has not been satisfied; alternatively; the appeal should be dismissed.

Consideration

Permission to appeal

[29] We are satisfied that the grant of permission to appeal would be in the public interest. Rabbi Ash’s case has a number of unusual features: his employment lasted for over 40 years, he performed a specialist teaching role of importance to the Chabad community in Melbourne, his dismissal disconnected him from this role in the community, and he was 66 years old as at the date of the hearing before the Deputy President. Those circumstances suggest that dismissal is likely to have had significantly detrimental effects for Rabbi Ash, not just in terms of his financial position and his employment prospects but also in respect of his standing and prestige in the Chabad community. For that reason, we consider that the public interest dictates that there should be a full appellate review of the decision to ensure that no injustice is done to Rabbi Ash. Permission to appeal is therefore granted.

Preliminary observations

[30] Before we proceed to consider each of the grounds of appeal, it is necessary to make two preliminary observations of a general nature about Rabbi Ash’s appeal. The first is that it appears to us that there is a fundamental contradiction at the heart of the appeal. Rabbi Ash does not challenge the Deputy President’s finding under s 387(a) that his conduct in connection with the Fourth and Fifth Incidents constituted a valid reason for his dismissal. A valid reason under s 397(a) is one that provides a sound, defensible and well-founded rationale for dismissal. In order for conduct which has found to have occurred to constitute a valid reason, it must involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify dismissal. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal. 18 In the decision, the Deputy President’s finding that the Fourth and Fifth Incidents constituted a valid reason for Rabbi Ash’s dismissal was founded on a characterisation of his conduct as involving a failure to supervise students as required in breach of his duty of care and a failure to follow reasonable and lawful directions, as well as a rejection of Rabbi Ash’s explanations for the incidents as reasonable or acceptable or providing him with an excuse for his conduct. The appeal must therefore proceed on the basis that these characterisations of Rabbi Ash’s conduct for the purpose of s 387(a) stand unchallenged and that it is not now in contest that the conduct so described was of sufficient gravity to provide a sound, defensible and well-founded reason for Rabbi Ash’s dismissal.

[31] It is difficult to reconcile this position with the submissions advanced on behalf of Rabbi Ash, in respect of the Deputy President’s findings under s 387(h) and her overall conclusion in the matter, that this conduct was the result of mere misunderstandings and oversights and that it was not reasonably open to find that the conduct merited anything more than a warning. It seems to us that in assessing the contentions of error with respect to the Deputy President’s consideration under s 387(h) and her overall exercise of the discretion, full force and effect must be given to the Deputy President’s unchallenged findings pursuant to s 387(a).

[32] The second observation is that the appeal does not challenge the Deputy President’s adverse credit finding concerning Rabbi Ash’s evidence. That credit finding, which involved a conclusion that Rabbi Ash was defensive, at times evasive and strident in his interpretation of events must be borne in mind when considering the submissions advanced by Rabbi Ash – particularly his contention that the Deputy President erred in finding that Rabbi Ash had not expressed contrition or accepted responsibility for his conduct and in not treating Rabbi Ash’s explanations for his conduct as demonstrating that the Fourth and Fifth Incidents were merely the result of miscommunication or an oversight.

First appeal ground

[33] We commence by dealing with Rabbi Ash’s contentions of error concerning the Deputy President’s finding that he showed no insight or contrition into the gravity of his failures to supervise students. It is first necessary to identify the precise findings of the Deputy President which are the subject of these contentions. The finding referred to in the notice of appeal is that in paragraph [172] of the decision (earlier set out), in which the Deputy President identified as a critical consideration in her overall conclusion “...the absence of an appreciation of the gravity or insight and the serious obligation of the School to protect the safety of its students and discharge its duty of care...”. A finding to similar effect was made in the Deputy President’s consideration under s 387(h) in paragraph [167]. There is also the Deputy President’s subsidiary finding in paragraph [118] (also earlier set out) that Rabbi Ash’s apology by email on 10 March 2019 in relation to the Fifth Incident was “...casual and insincere. It does not demonstrate an appreciation of the significance of the issue, any insight into his own conduct and performance, and does not reflect any contrition.”

[34] It is important to note at the outset that the Deputy President’s finding in paragraph [172], as we read it, encompassed Rabbi Ash’s attitude towards the issue of student supervision generally and his conduct across all five of the incidents. However, Rabbi Ash’s challenge to the finding is concerned only with what is said to be his expressions of contrition and responsibility for the Fifth Incident. Consequently, taken at its highest, his challenge does not address the full scope of the Deputy President’s finding.

[35] We turn to the specific matters raised by Rabbi Ash. In respect of what is said to be Rabbi Ash’s apology on 10 March 2019 for the Fifth Incident, it is necessary to consider Rabbi Ash’s email in light of the email to which it responded. Rabbi Morozow’s email, which initiated the exchange, was as follows:

“Dear Rabbi Ash,

I had this in my draft to send last Wednesday, but for some reason this was not sent, so I am sending this to you now.

I hope all is fine, thank you for calling me when you were late for the Mesivtah Gemarah class, I went in to the Mesivtah room and got them learning.

A couple of teachers contacted me after 2.40 to let me know that the Year 7 (Chassidus class) have no teacher.

I went to the class to teach. (one of the general studies teachers, have actually gone in to the class to teach them a general studies subject, since they had no teacher).

I am not sure what happened, but this is year 7's and there is a real issue when they are left without supervision.

B"H there was nothing that I know of that happened, however, as mentioned in an earlier email, this puts the students, the school and yourself at risk.

In a previous email, it was mentioned that next time it will not be enough to communicate, I am now in such a bind, I am stuck between a rock and a hard place. As mentioned this was brought to me by the others, and I need to follow as per my duty to keep in line with the school policy, and this is not the way I want to go. I will be pulled up on this if policy is not followed.

Please explain your absence today for the year 7 Chassidus lesson for period 9.”

[36] It is apparent that in this email, Rabbi Morozow was making it clear to Rabbi Ash that his conduct had placed him in a difficult position, that Rabbi Ash’s non-attendance at the class was a serious matter which had to be dealt with in accordance with the School’s policy, and that an explanation was required. Rabbi Ash’s response – which was sent from his iPhone – was as follows:

“Sorry about that.

My mind was working off the previous few years’ timetables that were Monday and Tuesday.”

[37] We consider that the brevity of this response, and the obvious lack of effort which went into it, wholly justifies the Deputy President’s description of it as “casual”. Rabbi Ash made no acknowledgment of the importance of his duty of care to supervise students by attending classes in accordance with the roster, nor did he communicate a proper acceptance of his responsibility for the incident. His “explanation” did not address why he had not familiarised himself with the current roster. The response gives every indication that Rabbi Ash regarded this as a matter of no importance, notwithstanding the warning he had been given arising from the Fourth Incident. In that sense, the apology might also reasonably be characterised as “insincere”.

[38] We do not consider that the Deputy President’s findings concerning this email involved any denial of procedural fairness. Rabbi Ash’s outline of submissions filed before the hearing below contended that he “promptly apologised” for the Fifth Incident and it was the result of an oversight. In response, the School’s submissions filed in advance of the hearing contended that Rabbi Ash’s submissions sought to “...downplay or to make excuses for the incidents...” and that they reflected “...the Applicant’s history of excuse-making and his failure to take responsibility for his poor performance and misconduct”. In his written closing submissions, Rabbi Ash again contended that he “immediately acknowledged his error” and “apologised for his oversight” in relation to the Fifth Incident. In its closing submissions, the School made specific reference to Rabbi Ash’s email of 10 March 2019 as follows:

“He provided a brief and perfunctory apology by way of email …Even at this point, however, the Applicant saw fit to try to offer up some kind of excuse – in the form of ‘[m]y mind was working off the previous few years’ timetables that were Monday and Tuesday’. This again revealed a lack of insight into his conduct and its serious nature; it was another opportunity forgone to take full responsibility for his failure to supervise; and it constituted a failure to demonstrate to CIVL that there was any prospect that he had reformed. He clearly had not – which is a matter that goes to reinstatement, as well as valid reason.”

[39] These submissions make it clear, we consider, that Rabbi Ash was on notice at all relevant stages of the proceedings before the Deputy President that the School contended that Rabbi Ash had not genuinely expressed contrition or accepted responsibility for his conduct, including in relation to the Fifth Incident. That the 10 March 2019 email exchange was not specifically raised with Rabbi Ash in cross-examination does not diminish the proposition that it was clear that the School sought a finding that there had been a lack of contrition and acceptance of responsibility on Rabbi Ash’s part (and that Rabbi Ash sought a contrary finding). It was therefore available for the Deputy President to make findings to resolve this issue in dispute, including in relation to the Fifth Incident. No denial of procedural fairness was involved (noting that the contention of error in this respect was not articulated as a Browne v Dunn 19 point).

[40] Rabbi Ash’s reliance on the evidence given by Rabbi Smukler concerning the meeting on 29 March 2019 as demonstrating that there was a further acceptance of responsibility by Rabbi Ash for the incident is misplaced. Rabbi Ash must have realised by this time that he faced the prospect of dismissal, and his acceptance that the Fifth Incident merited a warning must be understood in this context. Rabbi Smukler also gave the following evidence about the response given by Rabbi Ash at this meeting:

“Rabbi Ash denied that he was required to be present for breakfast supervision, denied any wrongdoing with respect to the 18 April 2018 non-attendance and claimed that his non-attendance on 6 March 2019 was a mere oversight for which he apologised.”

[41] Accordingly, this evidence is not demonstrative of error in the Deputy President’s finding that Rabbi Ash failed to acknowledge responsibility for or demonstrate insight into his conduct.

[42] The level of contrition which Rabbi Ash displayed at the hearing was mixed. In relation to the Fifth Incident, the submissions of Rabbi Ash place reliance on the following evidence which he gave during cross-examination:

“You said that your attendance on 6 March - your non-attendance I should say on 6 March for class was a mere oversight for which you apologised, is that what happened?---Yes, I don't call it a mere oversight. It's not good not to go to a period. You can see that they haven't - they have gone back to 2005; they have gone back to so many things, but they can't cite one time that I ever missed a period in 41 years. That was the one time that it actually happened, and I know that I'm not meant to talk too much, but you have to realise that you have a timetable for four/five years, which sets this period on a Tuesday afternoon. It sort of becomes ingrained in you, and I made a mistake; that's true, and I felt it was Tuesday was the period, that Wednesday it wasn't - I wasn't having the period and I went home. I didn't stay for that period.

The reality is you can just check the sector system any days?---I admit it's wrong. I mean, I don't need to check the system every day to know what periods they are. Once you start doing them at the beginning of the year, you just keep doing them.” 20

[43] It may be accepted that the above evidence indicates some level of genuine contrition – certainly to a greater degree than Rabbi Ash ever expressed prior to his dismissal. However, Rabbi Ash gave other evidence which denied any fault or responsibility on his part. In his statement of evidence, he said in relation to the First Incident: “At no time, did I leave any class unattended”. In relation to the Third Incident, he said: “...any assertion that I left my students unsupervised at an assembly on 30 October 2018 does not make sense”. In relation to the fourth incident, Rabbi Ash’s evidence was that his understanding was that breakfast duties had not been allocated to him, and that when the issue of his non-attendance at the breakfast session on 20 February 2019 was raised with him by Rabbi Morozow, his response was that he had “executed all of my duties as required and much more”. At the highest therefore, Rabbi Ash indicated some level of contrition and acceptance of responsibility in relation to the Fifth Incident only after he had been dismissed. On a consideration of all the evidence before her, we consider that it was reasonably open for the Deputy President to reach the conclusion that she did concerning Rabbi Ash’s lack of contrition, acceptance of responsibility and self-insight.

[44] We therefore reject the first three contentions of error in respect of the first appeal ground.

[45] We do not accept that there was any error in the Deputy President’s conclusion that the Fourth and Fifth Incidents were the same in nature in that they both involved a failure by Rabbi Ash to attend to his fundamental obligation to attend and supervise students as required. The circumstances by which the failure in each case arose were different, but they both involved Rabbi Ash not undertaking a basic duty of care obligation - in the first case, by wilfully misunderstanding what Rabbi Morozow had told him he was required to do and, in the second case, by failing to take the basic step of informing himself of his class attendance requirements on the SEQTA system. The fourth contention of error is therefore rejected.

[46] The fifth contention of error demonstrates the contradiction in the appeal the subject of our earlier observation. In determining that the Fourth Incident, together with the Fifth Incident, constituted a valid reason for dismissal, the Deputy President found that Rabbi Ash had been made aware of the requirement to perform breakfast supervision and did not accept his explanation for the incident. 21 It is likely that the Deputy President’s adverse credit finding against Rabbi Ash came to bear in reaching this conclusion. Not having challenged the “valid reason” finding in his appeal, we do not consider that it is open for Rabbi Ash to contend that the Fourth Incident should not have been treated as seriously as it was on the basis of his explanation of the incident. The Deputy President did not fail to take into account Rabbi Ash’s explanation at the hearing that he had been led to believe that he would not have to perform breakfast supervision duty while Rabbi Morozow was considering alternative arrangements; rather, the Deputy President had earlier considered this explanation at paragraphs [111] and [112] of the decision and rejected it, not least because it was inconsistent with his initial response when the incident was raised with him. The contention that the Deputy President gave “undue weight” to the fact that a student was injured at the breakfast session he failed to supervise is not a viable contention of appealable error, since the weight to be assigned to this consideration was a matter for the Deputy President in the exercise of her discretion subject to the bounds of legal reasonableness.22 In any event, the fact that a student was injured underlines the importance of student supervision and the potential for legal liability to attach to the School; it does not matter that in this case the evidence did not disclose the precise nature of the injury or the causal circumstances. That the School regarded this as a serious matter at the time is demonstrated by the fact of the warning issued to Rabbi Ash by the School, which threatened termination of employment as one of the potential disciplinary responses should there be a further failure to supervise students.

[47] As to the sixth contention of error, we consider it was reasonably open for the Deputy President to treat the First, Second and Third Incidents as relevant on the basis that they constituted part of a pattern of behaviour for the same reason that it was open to treat the Fourth and Fifth Incidents as involving conduct of the same nature. All involved, in various forms, a failure by Rabbi Ash to supervise students in accordance with the School’s requirements. They were not remote in time: all except the Second Incident occurred within a period of 12 months.

[48] The seventh contention is without merit. It rests on the slender foundation of the following exchange between the Deputy President and Rabbi Morozow:

“THE DEPUTY PRESIDENT: Have you ever seen anyone terminated because of this sort of an issue, not showing up for one period?---Over one period itself, no.” 23

[49] This exchange does not provide any basis for a case of unequal treatment. There is insufficient evidence of any allegedly comparable case to allow for a comparison to be made; 24 indeed the evidence does not make it clear whether there was in fact any other case. Additionally, Rabbi Ash was clearly not terminated simply because he did not show up for one period.

[50] As to the eighth contention of error, we consider that the proposition that the Fourth and Fifth Incidents were anomalous because they were isolated incidents was implicitly rejected by the Deputy President when she found that they formed part of a pattern of behaviour. The contention implicitly involves the proposition that a high rate of attendance at classes is good enough, and that a few non-attendances from time to time without prior notice is not anything remarkable. We reject this, since it entirely diminishes the fundamental importance of the teacher’s duty of care.

[51] The ninth contention of error again contradicts the absence of challenge to the Deputy President’s “valid reason” findings, in that it is submitted that the Fourth and Fifth Incidents did not warrant the conclusion that Rabbi Ash disregarded student safety because he had a valid reason for his non-attendance in relation to the Fourth Incident, and that the Fifth Incident was a mere oversight. However, as earlier explained, the Deputy President’s finding that these incidents constituted a valid reason for dismissal were to a substantial degree founded on her rejection of Rabbi Ash’s explanations for these incidents. It is not open for Rabbi Ash to contend in his appeal that, notwithstanding that he does not challenge the “valid reason” findings, his explanations for the incidents should have been accepted for the purpose of s 387(h).

[52] The final contention is rejected. The Deputy President’s task was, relevantly, not to “stand in the shoes of the employer” and determine what disciplinary action she would have taken in response to Rabbi Ash’s misconduct, but to consider whether the disciplinary action which was actually taken - dismissal - was disproportionate to the misconduct. Once the Deputy President determined that it was not disproportionate and therefore not harsh, it was not open to her to consider nonetheless whether an alternative course of action such as a warning would have been preferable.

[53] For the above reasons, we reject the first ground of appeal.

Second and third grounds of appeal

[54] It is convenient that we deal with these two appeal grounds together. We do not accept that the Deputy President failed to give adequate reasons explaining how she had exercised her discretion. There is no dispute in the appeal that the Deputy President had an obligation to give reasons which articulated the essential grounds for reaching the decision and addressed the material issues of fact and law in a manner which disclosed the steps which led to the result. 25 Having found that there was a valid reason for the dismissal and that Rabbi Ash had been afforded procedural fairness, the remaining critical issues which the Deputy President had to determine were whether dismissal was a disproportionate response to Rabbi Ash’s conduct having regard to his personal circumstances, and thus whether the dismissal was harsh. This required the making of an evaluative judgment involving the weighing up of the competing considerations, properly identified.

[55] It appears to us that the Deputy President properly identified the personal circumstances weighing in Rabbi Ash’s favour in paragraph [164] of the decision, and we do not understand it to be submitted otherwise. However, the Deputy President considered these circumstances to be outweighed in significance by the matters described in some detail in paragraphs [165]-[169] of the decision. Her reasoning in this respect is best summarised in paragraph [172], where the Deputy President said that “The nature of the conduct, the established prior conduct and history of counselling, the absence of an appreciation of the gravity or insight and the serious obligation of the School to protect the safety of its students and discharge its duty of care to the students are paramount to my consideration that the dismissal was not disproportionate to the conduct”. The Deputy President said in the next sentence that Rabbi Ash’s personal circumstances weighing in favour of a finding of harshness were “significant”, thus demonstrating that the Deputy President took these into account and assigned them considerable weight, but ultimately the Deputy President considered that they did not bear “sufficient” weight as compared to the matters which she described as “paramount to my consideration”. In the way described, we consider that the Deputy President did explain adequately what “tipped the balance” and why she considered that dismissal was not a disproportionate response to Rabbi Ash’s conduct.

[56] Rabbi Ash’s case may fairly be said to be a “lineball” one. That the Deputy President determined the matter against him does not render her decision unreasonable or unjust in the sense discussed in House v The King. The submission made on behalf of Rabbi Ash which we have quoted in full in paragraph [25] above would be an attractive one, and one we might favour, if we were hearing Rabbi Ash’s unfair dismissal application ourselves. However, in the context of this appeal, it lacks merit because it merely expresses a preference for a different result rather than demonstrating appealable error in the Deputy President’s decision. The second and appeal grounds are rejected.

Conclusion

[57] Because we have rejected all the appeal grounds, the appeal must be dismissed. We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

VICE PRESIDENT

Appearances:

Mr M Champion of counsel on behalf of the appellant.
Mr J Tracey of counsel on behalf of the respondent.

Hearing details:

2020.
Sydney (via Telephone).
12 June.

Printed by authority of the Commonwealth Government Printer

<PR722056>

 1   [2020] FWC 1744

 2   Ibid at [96]-[101]

 3   Ibid at [102]-[104]

 4   Ibid at [106]-[109]

 5   Ibid at [110]-[115]

 6   Ibid at [116]-[119]

 7   Ibid at [120]-[121]

 8   Ibid at [122]-[124]

 9   Ibid at [125]-[126]

 10   Ibid at [129]

 11   Ibid at [139]

 12   Ibid at [141]-[148]

 13   Ibid at [149]-[152]

 14   Ibid at [153]-[159]

 15   Ibid at [160]-[162]

 16   [1936] HCA 40, 55 CLR 499 at pp.504-505

 17   Ibid at [164]

 18   See Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [117]; Titan Plant Hire Pty Ltd v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25]- [35]; Bista v Glad Group Pty Ltd [2016] FWC 3009 at [34]-[41]

 19   (1893) 6 R 67

 20   Transcript, 3 June 2019, PNs 493-494

 21   [2020] FWC 1744 at [137]

 22   See Re Restaurant and Catering Association of Victoria [2014] FWCFB 1996, 243 IR 132 at [58]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [125]-[126]

 23   Transcript, 3 June 2019, PN 1755

 24   Darvell v Australian Postal Corporation [2010] FWAFB 4082, 195 IR 307 at [21]- [24]

 25   Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277, 226 IR 214 at [41]-[46]; Barach v University of New South Wales [2010] FWAFB 3307, 194 IR 259 at [16]