| [2020] FWCFB 5885 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Gary Mellios
v
Qantas Airways Limited
(C2020/5781)
VICE PRESIDENT CATANZARITI |
SYDNEY, 6 NOVEMBER 2020 |
Appeal against decision [2020] FWC 2989 of Deputy President Asbury at Brisbane on 2 July 2020 in matter number U2019/3179.
[1] Mr Gary Mellios (Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Asbury issued on 2 July 2020 (Decision) 1 and an associated order issued by her on the same day 2 (Order). In the Decision the Deputy President found that the dismissal of Mr Gary Mellios by Qantas Airways Limited (Qantas/Respondent) was not unfair. Consequently, his application for an unfair dismissal remedy was dismissed.
[2] The appeal was listed for hearing on 4 September 2020 in relation to both the issue of permission to appeal and merits. At the hearing the Appellant was represented by Ms L Saunders of counsel. Qantas was represented by Mr A Pollock of counsel.
[3] Mr Mellios commenced employment with Qantas on 4 January 1978. He was employed as a Licensed Aircraft Engineer (LAME) through until his dismissal on 26 February 2019. In the Decision the Deputy President summarised the background to the matter as follows:
“[2] In 2016 Qantas issued LAMEs with iPads for use at work. LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees. Upon being issued with the iPad on 26 May 2016, the Applicant, in accordance with instructions from Qantas, enrolled it into the then MDM system. Qantas subsequently changed the MDM system and on 26 June 2017, the Applicant enrolled his iPad into the new system which operated through an application (app) known as “Comp Portal”.
[3] The Comp Portal app has two settings: “corporate” and “personal”. Regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed. When the Applicant enrolled his iPad by installing the Comp Portal app, the privacy statement in the app (which was also set out in a step by step guide to enrolling the iPad), informed him that Qantas could not see a range of personal material stored on the iPad including his web history and photographs.
[4] The Applicant used the iPad to browse a range of URLs and websites containing pornographic material and downloaded and viewed that material on the iPad. Qantas became aware of the Applicant’s use of the iPad to view pornographic material following reports made in or around July and September 2018 by a female refueller (Ms Remfrey) employed by Caltex who alleged that on two occasions during working hours, she had seen the Applicant viewing a video selection page containing pornographic images on his iPad. The Applicant’s iPad was seized by Qantas and forensically examined. Following the forensic examination, an investigation commenced in relation to allegations that the Applicant used his iPad at work and privately, to store, access and view material, variously described as obscene, pornographic and/or offensive. The allegations included that such material had been seen by Ms Remfrey at work, in circumstances where the Applicant knew, or ought to have known, that it was visible and would cause offence.
[5] After the investigation commenced Ms Remfrey reported that another female refueller (Ms Downes) had informed her that she had also seen the Applicant viewing pornographic material on his iPad at work. Ms Downes was approached by Qantas and agreed to make a statement. In that statement Ms Downes alleged that on three occasions in 2016, she witnessed the Applicant viewing pornographic images in the workplace during working time. The investigation was expanded to include an allegation in relation to Ms Downes. Ultimately all allegations were substantiated and following a show cause process the Applicant was dismissed.
[6] The Applicant maintains that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The Applicant contends that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad. The Applicant also contends that there was no valid reason for his dismissal and the dismissal was harsh and unjust due to its disproportionality to the Applicant’s actual conduct, the poor process followed by Qantas and his personal circumstances including that he is 59 years old, has worked for Qantas for 41 years and has minimal prospects of gaining other employment in the only profession that he knows. The Applicant seeks reinstatement to his former position together with orders that he be paid the remuneration lost because of his dismissal and that his continuity of employment be maintained.
[7] Qantas maintains that its investigation substantiated that the Applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy. Qantas contends that the privacy statement in the Comp Portal app relates only to what Qantas can see through the Comp Portal app and does not over-ride the SOC Policy and the IT Policy which apply to personal use of the iPad. Qantas also maintains that the Applicant’s misconduct was compounded by his failure to recognise the seriousness of his actions and misleading responses to questions during the investigation which sought to mitigate the seriousness of his misconduct by misstating its nature. Qantas further maintains that: the totality of the Applicant’s misconduct constitutes a valid reason for dismissal; there was no procedural defect in Qantas’ disciplinary process; and the Applicant has failed to advance any other relevant matters sufficient to sustain a finding that the dismissal was otherwise unfair.
[4] In the Decision the Deputy President, after addressing the preliminary matters 3 required to be considered under s.396 of the Fair Work Act 2009 (FW Act), turned to the matters she was required to take into account under s.387.
[5] However, before doing so the Deputy President set out the correct approach in relation to the employer’s onus and the balance of probabilities as follows:
“[13] The employer bears the onus of establishing that there was a valid reason for a dismissal. 4 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”5 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,6 and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.7
[14] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response. 8 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.9
[15] The Applicant was dismissed as a result of Qantas finding that he had engaged in serious misconduct. The essence of the most serious allegation found to have been substantiated was that the Applicant’s conduct amounted to harassment of two female employees by viewing pornographic material in the workplace in circumstances where he knew or ought to have known that it would be seen by the employees concerned and would cause offence, intimidation or humiliation. In determining whether the Applicant did engage in the conduct alleged and whether there was a valid reason for his dismissal, the standard of proof is the balance of probabilities.
[16] Given the seriousness of the allegations, the principle in Briginshaw v Briginshaw 10 is relevant to the effect that while the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct. In Neat Holdings v Karajan11 the High Court held in relation to earlier consideration of the principle in Briginshaw, that statements to the effect that clear or cogent or strict proof is necessary where a question of whether a person in civil proceedings has engaged in criminal conduct or fraud is to be determined, should not be understood as directed to the standard of proof. Rather such statements should be understood as: “…merely reflecting a conventional perception that members of our society do not ordinarily engage in criminal or fraudulent conduct.”12 The Court went on to observe that:
“When an issue falls for determination on the balance of probabilities and the determination depends on the choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but on an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately however it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” 13
[17] In considering whether there is a valid reason for the Applicant’s dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct. Where the case is inferential the cumulative effect of the evidence must be considered. Proof of any fact on the balance of probabilities can be established by circumstantial evidence – that is by proof of primary or intermediate facts from which a further fact can be inferred. 14 In United Group Resources Pty Ltd and Others v Calabro and Others (No 5)15 McKerracher J set out the principles in civil cases in relation to finding facts by inference, as follows:
“A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible and is not required. All that is necessary is that circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought. For the purpose of considering whether this test is met, the Court must consider the accumulation of the evidence. It is appropriate not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence, by considering the weight which is to be given to the united force of all of the circumstances together. The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference.” 16 (citations omitted).
[18] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.” 17
[6] There is no controversy about the approach articulated by the Deputy President.
[7] The Deputy President then considered the evidence including:
a) Qantas’ policies and procedures 18 and noted that:
[29] In cross-examination, the Applicant agreed that he is familiar with Qantas policies and procedures and has been trained in various policies and procedures during his employment. The Applicant also agreed that as a LAME he understands the importance of policies and procedures in performing all aspects of his work. The Applicant agreed that he had received training in the SOC Policy and that it is accessible on the Company’s intranet site. Further the Applicant agreed that the SOC Policy requires that he be familiar with other Company and applicable Qantas Group policies and procedures and relevant legislation. The Applicant said that he understood that harassment as defined in the SOC Policy included display or circulation, for example by email, text message or on social media, of sexual material, including magazines, posters or pictures and messages and that the SOC Policy prohibited harassment taking that particular form.
b) the provision of the iPad to the Applicant including the training provided when iPads were distributed; 19
c) the complaints in 2018 and the confiscation of the Applicant’s work-provided iPad; 20
d) the analysis of the Applicant’s work-provided iPad; 21
e) the six allegations that were put to the Applicant in a letter dated 30 October 2018 22 and the second letter of allegations dated 5 December 2018 in relation to events between January and September 2016.23
[8] The Deputy President then carefully considered the evidence in relation to each of the seven allegations, 24 before summarising the findings and outcomes of the Qantas investigation,25 and its decision to dismiss the Applicant.26
[9] The balance of the Decision contains the Deputy President’s consideration after first observing the following in relation to the approach to considering pornographic or offensive material in the workplace:
“[231] …. The present case also highlights issues which can arise where employees are using devices for personal purposes which can also connect with their employer’s IT environment. Such devices may be the personal property of employees or issued by the employer on the basis that reasonable personal use is permitted. The practice of employees connecting with their employer’s IT environment on a personal device has developed as modern workplaces demand increasing responsiveness and flexibility on the part of employees. The capacity for interaction between personal devices owned by, or issued to employees, and the employer’s IT environment, doubtless assists both parties. Such interaction means that work can be undertaken remotely by employees at times when the employer requires it to be done or at times that suit the personal needs of employees. However, the interaction between personal devices and an employer’s IT environment raises complex issues concerning the use of such devices to store, access and disseminate material which is work related and material which is not work related.
[232] Notwithstanding the complexity of those issues, it remains the case, as the Full Bench in Wake observed, that:
“…in general it is in the public interest that, subject always to considerations of fairness, the Commission’s decisions should support employers who are striving to stop inappropriate email traffic.” 27
[233] I respectfully agree with those observations and I would add that the Commission’s decisions should also support employers who are striving to establish standards in workplaces where all are treated with respect and are not exposed, in any form, or by any means, to material which is inappropriate or offensive in a workplace or can impact inappropriately on the wellbeing of persons at work. I also share the view of Deputy President Sams who observed in Batterham and Ors v Dairy Farmers Limited 28 (a case decided in 2011) that:
“Obviously, general community standards have changed over time and personal views as to what constitutes ‘hardcore’ and ‘softcore’ pornography will vary widely. On one view, this is hardly the point. What people do in the privacy of their own home is entirely a matter for them, save for unlawful conduct, such as storing or distributing child pornography or soliciting young persons for sex. However, on any objective analysis, the distinctions drawn by the respondent in this case are entirely sensible, fair and rational. Displaying email images in the workplace of male or female genitalia and obvious sexual acts, would obviously be offensive to many people in the community, maybe the large majority. This is really the point.” 29
[234] In the 21st century the proposition that there is no room in the workplace for pornographic, obscene or sexually related images of any kind or in any form, goes without saying. Further, I do not accept the proposition that the viewing or dissemination of such material in any workplace can be explained or excused on the basis that the workforce in a particular workplace is “male-dominated” or “blue collar”. Nor do I accept that disseminating or viewing such material in the workplace is acceptable, whether this occurs on a privately-owned device or a device issued by an employer.
[235] It is also the case, as the Full Bench in Wake observed, that the Commission’s decisions in relation to whether the dissemination of such material is a valid reason for dismissal, are subject to fairness. Considerations relevant to fairness identified by the Full Bench in Wake were that the employer in that case had a firm and well publicised policy prohibiting the use of its electronic communication system to store or transmit sexually related, pornographic or violent material, that policy was supported by appropriate training and education and the employer had taken steps to warn employees that breach of policy could result in termination of their employment. Further, whether a particular breach by an employee is intentional, or the level of seriousness of the breach, may also be relevant to general considerations of fairness. Other relevant matters may be the personal circumstances of the employee – for example length of service, age, financial impact of a disciplinary outcome or the effect of a personal event or health issue on the employee at the relevant time.”
[10] The Deputy President also considered the context in which the events occurred having regard to Qantas’ policies. The Deputy President made the following findings 30:
• It was reasonable for the Applicant to believe that the SOC Policy and the IT Policy did not apply to his personal and lawful use of the iPad when he was at home using his personal Wi-Fi;
• The Applicant genuinely did not understand the interaction between SOC Policy and the IT Policy on the one hand and the Mobility Terms and Conditions and the privacy statement in the enrolment guide and the Comp Portal App on the other;
• It was reasonable for the Applicant to believe that Qantas could never view his browsing history or his camera roll or other personal information stored on the iPad.
[11] However, the Deputy President continued:
“[274] … regardless of lack of clarity in relation to private use of the iPad on the Applicant’s own Wi-Fi when the Applicant was at home, the Applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace. The Applicant also knew that to do so would, at very least, breach the Qantas SOC Policy and could constitute harassment of anyone who saw such material, regardless of whether he intended to harass. In this respect, there was no lack of clarity with regard to the SOC Policy and that harassment included display of sexual, offensive and pornographic material. I do not accept that any definition of what constitutes such material is required beyond the ordinary meanings given to such terms.
[12] In relation to s.387(a), 31 the Deputy President found that there were valid reasons for Mr Mellios’ dismissal. The Deputy President was satisfied that five of the seven allegations were made out:
a) Allegation 1 - On 3 August 2017 “the Applicant used his Qantas-issued iPad to access a lingerie website during work hours …. [and that] the website contained material that could be described as offensive [although not pornographic] …. [and was] in breach of [Qantas’ policies].”
b) Allegation 2 – On 11 July 2018, in a serious breach of Qantas’ policies, the Applicant viewed a pornographic website during work hours where the content could be observed by others. Having found Ms Remfrey “to be an entirely credible witness” the Deputy President did “not accept the Applicant’s denial that he viewed pornographic material in the workplace”. However, although the Applicant’s conduct was intentional, there was no purpose in harassing Ms Remfrey.
c) Allegation 3 – On 24 September 2018, in a serious breach of Qantas’ policies, the Applicant viewed a pornographic website during work hours where the content could be observed by others
d) Allegation 4 (7 stored images) – Six were offensive. One was obscene. None were pornographic. Although created in May 2016, they were accessed between August – September 2018 (not accidentally, but deliberately) in breach of Qantas’ policies.
e) Allegation 7 – Between January – September 2016 the Applicant viewed, in a serious breach of Qantas’ policies, pornographic websites during work hours on at least 3 occasions where the content could be observed by others, having round that Ms Downes was also “an entirely credible witness.” However, although the Applicant’s conduct was intentional, there was no purpose in harassing Ms Downes.
[13] The Deputy President was not satisfied that the following allegations were made out:
a) Allegation 5 (accessing pornographic websites that was inappropriate or in excess of reasonable personal use); and
b) Allegation 6 (exceeding monthly data usage).
[14] In relation to s.387(b) 32 the Deputy President was satisfied that the Appellant was notified of the reason for his dismissal.
[15] However, in relation to s.387(c) 33 the Deputy President concluded that:
“[322] There is substance to the submission for the Applicant that he was not given an opportunity to respond to reasons for his dismissal related to his conduct by virtue of the manner in which he was dealt with by Mr Grimshaw and Ms Hobl. In particular, there was a complete lack of engagement with the Applicant’s responses to the allegations in relation to the Mobility Terms and Conditions and the Comp Portal app and the Applicant’s belief that his private use of the iPad had not breached any Qantas policies.
[323] For the reasons set out above, the Applicant’s views about private use of the iPad were reasonable. Despite the Applicant and his support person demonstrating to Mr Grimshaw that the iPads were set to personal and the privacy statement in the Comp Portal, Mr Grimshaw did not make any inquiries about these matters or have regard to the Applicant’s response. Ms Hobl’s view about these matters was even more fixed than the view of Mr Grimshaw. As a result, Allegation 5 was substantiated in circumstances where it should not have been and Allegations 1 and 4 were given more weight than was justified.”
[16] The findings made by the Deputy President in relation to s.387(d)-(g) 34 were uncontroversial and it is not necessary to repeat them.
[17] In relation to s.387(h), the Deputy President was required to take into account any other matter which she considered relevant. The Deputy President identified 35 a number matters that:
a) Weighed in favour of a finding that the decision was harsh, such as,
i. The Applicant’s length of service;
ii. The Applicant’s unblemished record; and
iii. The likelihood the Applicant will unlikely find a similar role.
b) Weighed against finding that the dismissal was harsh, such as,
i. Viewing pornography at work was a blatant breach of Qantas’ policies;
ii. The Applicant’s steadfast denials;
iii. On five occasions the material was viewed by female employees;
iv. The conduct was not at the lower end of the scale of misconduct.
[18] The Deputy President rejected that other Qantas misconduct cases involved a proper comparison for the purposes of establishing differential treatment. 36
[19] In conclusion the Deputy President held that:
“[334] In all of the circumstances and after weighing the criteria in s 387 of the Act, I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable. In reaching this conclusion I have considered the harshness of the Applicant losing his employment close to the end of a long career with Qantas. I have also considered whether the manner in which Mr Grimshaw and Ms Hobl dealt with the allegations has resulted in the dismissal being unjust. For the reasons set out above, I have concluded that any injustice to the Applicant does not outweigh the validity of the reason for the dismissal.”
[20] The Appellant’s amended notice of appeal filed on 19 August 2020 contained two grounds of appeal as follows:
“The Deputy President’s conclusions were affected by error in that her Honour reached a conclusion that was unreasonable or plainly unjust in the sense discussed in House v R given:
a. the relative seriousness of the conduct found to have occurred and to constitute a valid reason for dismissal, being viewing websites containing pornographic material on four occasions (being twice in 2016 on unspecified dates, 11 July 2018 and 24 September 2018), in circumstances where two female contractors were, albeit inadvertently, briefly exposed to such material;
b. the length of time between the 2016 allegations and the dismissal, and Qantas’ condonation of the 11 July 2018 conduct (by its failure to act);
c. the unfairness of the irrational approach taken by Qantas in its investigation of the allegations and determination of disciplinary action and its effect on Mr Mellios’ ability to properly respond and have such response taken into account;
d. the inconsistency between the actual views and conclusions of the decision-maker in respect of each allegation substantiated by Qantas against Mr Mellios, and the decision ultimately made;
e. Mr Mellios’ demonstrated remorse, and the absence of risk of conduct recurring;
f. the complete inadequacy of Qantas’ relevant training regime, and the resultant unfairness of a ‘zero tolerance’ approach; and
g. Mr Mellios’ 41 years of unblemished, and indeed awarded, service in a specialized aviation trade and the particularly disproportionate impact of the dismissal on him.
Alternatively, the Deputy President’s conclusion as to valid reason: a. mistook the facts, in respect of her Honour’s finding that Mr Mellios viewed ‘pornographic material’ while at work.”
[21] The public interest was said to be enlivened because:
“It is in the public interest to grant permission to appeal as the decision:
a. concerns issues of general importance including:
i. the manner in which employers may manage their IT environment, and respond to issues of accessing inappropriate material at work;
ii. the fairness of ‘zero tolerance’ approaches;
iii. the effect that unreasonable approaches to investigation of allegations against employees will have on unfair dismissal procedures;
iv. the manner in which concessions made by decision-makers should be taken into account in the evaluation of whether a dismissal is or is not unfair, and the utility of the evidence of such persons generally; and
b. is affected by error and should be corrected.”
[22] In his written submissions the Appellant contended that:
a) The first avenue of appeal rests on what has been described as the ‘second limb’ of House v R.
b) Conceded that “it will be a rare case in which such ‘manifest injustice’ is found, and found to justify appellate intervention.”
c) In the case of an unfair dismissal case (as is the present) “the decision must be starkly outside the normal parameters of what is understood to be harsh, unjust or unreasonable.”
d) Although Mr Mellios does not contend that his behaviour was appropriate “when his conduct as found by the Deputy President is viewed in the full factual matrix in which it occurred, it is apparent that his dismissal was a manifest injustice, and is one of the rare cases which justifies appellate intervention on that basis” for the following reasons:
i. “viewed objectively the conduct was at the lower end of the scale of seriousness. Significantly, the Deputy President expressly rejected the suggestion that Mr Mellios was deliberately engineering a situation whereby the two female refuellers would be exposed to inappropriate material...”
ii. “It is simply not the case that, notwithstanding its inappropriateness, viewing pornography at work is “generally… Serious misconduct” in all circumstances: cf decision at [332]. Context remains key. The better approach is that the conduct is misconduct capable of being serious misconduct.”
iii. “To the extent that [332] suggest that the Deputy President took an approach closer to “zero tolerance” this is indicative of error.”
iv. It is notorious that the viewing of inappropriate material work is an endemic and complex issue.
v. Qantas took no steps whatsoever to set a standard beyond simply having a written policy and its training only went to allegations of sexual harassment.
vi. Qantas’ witnesses differed in respect of whether the material in this matter was offensive, obscene or pornographic “and the Deputy President’s views differed again.”
vii. The explanation of a standard “and relatedly… a warning is necessary before a dismissal non-compliance will be fair.”
viii. Qantas cannot fairly apply a zero-tolerance approach to all such conduct. This is what it has done in relation to Mr Mellios.
ix. The process by which Mr Mellios was investigated was atrociously flawed.
x. Mr Grimshaw conceded that if he had followed a fair process he would not have substantiated the allegations against Mr Mellios.
xi. “Mr Mellios’ personal circumstances, including his response to the allegations, when considered, render the dismissal manifestly harsh in the sense discussed in Lawrence.” 37
xii. “there is no serious challenge to the fact that Mr Mellios was genuinely remorseful; nor is there a proper basis to conclude that there is any risk he will engage in the conduct again: see Decision at [185]. In other words, dismissal is not a necessary outcome to manage the danger Mr Mellios presents to Qantas’ operations in future. This strongly suggests that the dismissal is a disproportionate response.”
xiii. “The evident harshness becomes more apparent when one considers Mr Mellios’ background circumstances.”
xiv. Mr Mellios was entitled to defend himself and although the “Deputy President has found against him in that respect … this does not … equate to a finding of dishonesty.”
xv. “On a fair reading [of the Decision] it is suggestive of the finding as a valid reason being given primacy over all other considerations: see [326], [331], [334].”
e) The second ground of appeal contends that there was a significant error of fact in that “the Deputy President mistook the facts, and erred, by finding that [Mr Mellios] had viewed pornographic material at work and been seen, separately, by Ms Remfrey and Ms Downes doing so.”
f) “At issue is whether there was sufficient evidence before the Deputy President to allow her to conclude that this was a correct characterization [sic] of what he was actually looking at.”
g) The Deputy President “did not, however, consider the approach to tendency evidence.”
h) Having regard to the evidence of, separately, both Ms Remfrey and Ms Downes there was insufficient basis to conclude that Mr Mellios actually viewed pornography at work or otherwise engage in serious misconduct.
i) “It appears the Deputy President has, from evidence that Mr Mellios watched pornography at home, drawn an inference that he would engage in the same behaviour work…The evidence does not support the inference drawn, and to the extent that the finding of fact is based on this, it is infected with error.”
[23] In its submissions Qantas contended that:
a) Mr Mellios’ “submissions are conspicuously silent on the question of permission to appeal.”
b) Having regard to the public interest matters raised in the amended Notice of Appeal there is nothing of substance. “The grounds advanced merely attempt to don the two substantive appeal grounds in the new clothes of public interest.”
c) In answer to Appeal Ground 1, the Decision was not manifestly unreasonable because:
i. The Deputy President made findings concerning 3 species of misconduct.
ii. Ground 1 of the appeal does not challenge the factual findings on valid reason.
iii. The Deputy President rejected Mr Mell submission that his conduct “was at the lower end of the scale of seriousness.”
iv. His conduct is not diminished because he was only reckless in exposing other workers to pornography within the workplace, nor that one of the websites was found to be offensive rather than pornographic.
v. “The fact remains that Mr Mellios viewed those various images in the workplace, in circumstances where he knew that doing so was contrary to Qantas’ policies (and was in any event inappropriate in a workplace context)”.
vi. “There was nothing erroneous in the Deputy President’s observation that viewing pornography in the contemporary workplace is “generally… serious misconduct”. That observation does not mean that the Deputy President treated serious misconduct as an immutable conclusion here: indeed, the Deputy President expressly disavowed that approach.”
vii. “…the Deputy President gave detailed consideration to contextual matters...”
viii. “The submission … that the Deputy President adopted a “zero tolerance” approach is unsustainable.”
ix. Watching pornography was “an express prohibition in Qantas’ Standards of Conduct Policy (SOC Policy).”
x. “Qantas trained Mr Mellios in the requirements of its SOC Policy.”
xi. “whilst reasonable minds might differ on whether the images the subject of Allegations one and four were offensive, obscene or pornographic, the fact remains that each was prohibited under the SOC Policy...”
xii. “The Deputy President found that any procedural defects were immaterial having regard to the totality of the process.”
xiii. “The Deputy President’s approach was consistent with … orthodox principles.”
xiv. There are several difficulties with Mr Mellios appealing “to his personal circumstances in aid of a submission that dismissal was manifestly harsh.”
d) In answer to Appeal Ground 2, “the Deputy President’s factual findings were materially informed by her detailed assessment of the credibility of each of Ms Remfrey and Ms Downes in the witness box.”
e) The “Deputy President approached both her assessment of witness credibility - and her subsequent fact-finding exercise - on the totality of the evidence, in light of its cumulative and cooperative effect. That approach was plainly correct.”
f) “The Deputy President’s analysis was as comprehensive as it was carefully considered. It reveals no error (appealable or otherwise). Mr Mellios’ appeal does little more than to re-agitate his case below, and demonstrates no public interest grounds warranting a granted permission to appeal.”
[24] Before the Full Bench, Ms Saunders of counsel for the Appellant, and Mr Pollock of counsel for the Respondent expanded upon their written submissions. We granted both parties permission to be represented under section 596 of the FW Act because we were satisfied that the matter involved some complexity and, further, that we would be assisted in the efficient conduct of the matter if permission for the parties to be represented was granted.
[25] The Appellant also filed a chronology of events by way of an aide-memoir. We have had regard to that chronology.
[26] Ms Saunders contended that the manifest injustice of the Decision is sufficient to enliven public interest in the matter. Ms Saunders then drew attention to the decision of a Full Bench in Ash v Chabad Institutions of Victoria Limited 38 decided the day before the hearing before us. In particular Ms Saunders relied upon paragraph [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.”
[27] Ms Saunders drew comparisons between Mr Mellios and considerations that were found relevant to Rabbi Ash.
[28] Before addressing permission to appeal and, if granted, the merits of the appeal, we need first to decide whether the Appellant should be granted an extension of time to file his appeal. This is because the appeal was filed one day late. On 3 September 2020 the Full Bench advised the parties that the question of an extension of time should be decided on the papers.
[29] In coming to this decision, we have had regard to:
a) The Appellant’s submissions concerning the extension of time dated 19 August 2020;
b) The statement of Sean Morgan, Legal Officer, Australian Licenced Aircraft Engineers Association (ALAEA); and
c) The Respondent’s Outline of Submissions – Extension of Time dated 2 September 2020.
[30] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) requires that an appeal must be filed within 21 calendar days after the date of the decision appealed against, or such time as is allowed by the Commission on application.
[31] As is frequently noted, most recently by a Full Bench of the Commission in Synder v Helena College Council, Inc. t/a Helena College,3 time limits of the kind in rule 56(2) should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
[32] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 39 as follows (footnotes omitted):
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
[33] Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Mr Mellios being granted an extension of time within which to lodge his notice of appeal. 40
Section 1.01 Consideration – extension of time
Reason for the delay
[34] As to the reason for the delay, on behalf of Mr Mellios it was explained that “Mr Mellios relies on representative error as the reason why the Full Bench should allow an extension of time by a single day.”
[35] It was contended that:
“16. This is manifest representative error. It had nothing to do with anything done by Mr Mellios. It was obviously avoidable and should have been avoided. However, this is not the point. It is a genuine mistake by persons on whom Mr Mellios relied, which can in no way be attributed to him.
17. Nor can any other part of the delay be sheeted home to Mr Mellios. He sought advice on appeal immediately and, when such advice was provided, immediately instructed his representatives to file the appeal.
18. Importantly, there was no period of inactivity. An applicant cannot be properly criticized for using the full period of time to consider the matter (themselves or via their representatives); this is particularly so in this matter, which is relatively complex and involves a detailed 79-page decision.”
[36] For its part Qantas recognised that:
“2. Remarkably (and regrettably), this is not the first occasion on which Mr Mellios has sought an extension of time in this proceeding on representative error grounds. Asbury DP allowed an extension in remarkably similar circumstances at first instance: 41 an application filed one day late, due to a miscalculation of the filing deadline for which a representative of the ALAEA took responsibility.
[37] While accepting that the representative error “may in some cases amount to ‘exceptional circumstances … and that [Qantas] is not prejudiced by the delay” Qantas submitted that the extension of time should be refused.
[38] It seems to us that having regard to the fact that this was not the first time that a deadline was missed in this matter Mr Mellios and his legal representatives should have been highly vigilant about compliance with the timeframe when filing the appeal. Although Mr Mellios is again not at fault, we would have expected him to make certain that, on this occasion, his legal representatives did not repeat their error in calculation.
[39] Notwithstanding, this factor weighs in favour of the grant of an extension of time.
Length of delay
[40] Mr Mellios’ appeal was lodged one day outside the statutory timeframe for instituting an appeal. The delay is not significant.
[41] We consider this to be a neutral factor in deciding whether to grant of an extension of time.
Nature of appeal grounds and likelihood that one or more would be upheld if time were extended
[42] In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended.
[43] We deal below more fully with permission to appeal.
[44] In summary, having regard to the nature of the appeal grounds, we are satisfied that they are not reasonably arguable and would not attract the grant of permission to appeal in the public interest. This weighs against the grant of an extension of time to lodge the appeal.
Prejudice to the respondent
[45] Having regard to the short delay in filing the appeal, the grant of an extension of time would not cause prejudice to Qantas. This is not a situation where the grant of an extension of time would require the Respondent to respond to an appeal that is without merit, long after it was entitled to regard the matter as having been resolved.
Disposition of the application for an extension of time
[46] The explanation for the delay in lodging the appeal weighs in favour of allowing a further period of time in which to lodge the appeal. The insignificant length of the delay and lack of prejudice to the Respondent are neutral factors. The likelihood that the appeal grounds would not be upheld if time was extended weigh against allowing a further period of time within which to lodge the appeal. However, on balance, because of the representative error we have concluded that, in all the circumstances, the interests of justice favour Mr Mellios being granted an extension of time.
[47] An extension of time to file the appeal is granted.
Appeal principles - permission to appeal
[48] This appeal, having been brought against a decision made under Pt.3-2 of the FW Act, is one to which s.400 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.
[49] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.42 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 43
Appeal principles - appealable error
[50] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of appealable error. 44 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. 45
[51] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 46 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
The exercise of discretion
[52] It verges on trite to observe that the task of determining whether the dismissal of a person protected from unfair dismissal was harsh, unjust or unreasonable involves the exercise of a discretion. That discretion is a wide one, constrained only by the requirement to take into account the matters specified in paragraphs (a)-(h) of s.387. Section 387(h) itself confers on the decision-maker a wide scope to take into account matters which he or she considers relevant. The determination of whether a dismissal is harsh, unjust or unreasonable requires the making of an evaluative judgment by the decision-maker. In those circumstances, no one consideration and no combination of considerations is necessarily determinative of the result, and the decision-maker has latitude as to the choice of decision to be made. 47 The same principle applies to the making of a decision as to whether it is appropriate to grant the remedy of reinstatement in respect of a dismissal which has been found to be harsh, unjust and/or unreasonable.48
[53] In an appeal from a discretionary decision of this nature, an appellate tribunal is only authorised to set aside the decision if error on the part of the decision-maker has been demonstrated. 49 This error must usually be of one of the types identified in House v The King as follows 50:
“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.”
[54] It follows that an appellate tribunal is not authorised to set aside a discretionary decision on the basis of a preference for an outcome different to that determined by the first instance decision-maker. In this connection, the High Court said in Norbis v Norbis 51:
“The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”
[55] Nor is appealable error demonstrated by a contention that the decision-maker should have given more or less weight to a particular consideration. In the High Court decision in Gronow v Gronow Aickin J (with whom Mason and Wilson JJ agreed) said:
“It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge”. 52
[56] It is only where a relevant matter has been given no weight because it was not considered at all that error in the exercise of the discretion will be demonstrated. 53
Consideration – permission to appeal
[57] In the Decision the subject of this appeal, the Deputy President considered all of the matters she was required to take into account under s.387. In respect of Appeal Ground 1 there is no challenge to the Deputy President’s findings in relation to valid reason. The Deputy President upheld as valid under s.387(a) most of the reasons given by Qantas for its dismissal of Mr Mellios. There was no issue taken with the findings made pursuant to s.387(b)-(g). With respect to s.387(h), the Deputy President identified the additional matters she considered to be relevant and gave reasons as to why they were relevant. The Deputy President then considered all of the matters in totality and arrived at the conclusion that the dismissal was not unfair.
Appeal ground 1
[58] Mr Mellios’ appeal ground 1 invokes what is referred to as the “second limb” of the House v The King 54 test for error in discretionary decision-making, namely that the decision under appeal was unreasonable and plainly unjust and permitted the inference to be drawn that the decision-maker failed properly to exercise the discretion invested in them.
[59] In relation to appeals brought on this basis, the Full Bench in King v Catholic Education Office Diocese of Parramatta 55 said (footnotes omitted):
“[41] ... It is only where the outcome is demonstrated to be wholly outside the range of outcomes reasonably available to the first instance decision-maker that the “manifest injustice” ground of error will allow an appeal to be upheld without specific error being identified. In the unfair dismissal context, if not generally, this will only occur in rare cases.”
[60] Having considered the Decision in its entirety we consider it was reasonably open for the Deputy President to conclude that the dismissal was not unfair. The Deputy President carefully considered the evidence and was satisfied there was a valid reason (s.387(a)) for dismissal. The Deputy President then considered the other matters the Deputy President was required to consider, including matters relevant to s.387(h).
[61] As was stated by the Full Bench majority in B, C and D v Australian Postal Corporation, while “a substantial and wilful breach of a policy will often, if not usually, constitute a ‘valid reason’ for dismissal”, nevertheless “[a]ny notion that a clear and knowing breach of policy will always provide a valid reason for a dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of service and other circumstances, is inconsistent with basic principle. Every case must be assessed by reference to its particular circumstances.” 56 We discern no error in the approach taken by the Deputy President. This was a case that fell to be decided having regard to its particular circumstances.
[62] The finding of valid reason (not challenged on appeal under appeal ground 1) was reasonably open to the Deputy President on the evidence. That valid reason was then considered in the context of all of the elements of s.387. We discern no arguable case of error.
[63] The conclusion that Mr Mellios’ dismissal was not unfair does not on its face appear to be surprising, outlandish or counter-intuitive. Mr Mellios misconducted himself on at least 5 occasions when he viewed offensive material at work on a device supplied by Qantas. It may be the case that Mr Mellios’ service was otherwise long and unblemished. However, there was evidence that actual harm was caused by Mr Mellios’ conduct, witnessed as it was by two women working in the same workplace. There can be no doubt that the personal and financial consequences of the dismissal for Mr Mellios were severe. However, the Deputy President gave due consideration to all of the factors and, on balance, decided that the dismissal was not unfair. The approach of the Deputy President was orthodox. We discern no error in her approach.
[64] Further, noting other cases involving employees who accessed pornography at work, the outcome in the Decision cannot be regarded as significantly disharmonious with cases of a similar nature.
[65] Finally, in relation to the decision in Ash, for our part, we are not satisfied that the facts in this matter are so analogous so as to also warrant a grant of permission to appeal in this matter. Rabbi Ash’s role in the community, his standing and prestige in the Chabab community (as opposed to just the employment relationship) invested that matter with public interest that is absent in this matter.
Appeal ground 2
[66] Mr Mellios’ ground of appeal 2 alleges significant errors of a factual nature. In short it is contended that the Deputy President did not have a sufficient basis to conclude that Mr Mellios actually viewed pornography at work.
[67] The Deputy President made her findings of fact based on the evidence before her and also her findings about the credibility of Ms Remfrey and Ms Downes. Those findings about credibility are not challenged on appeal.
[68] As has recently been observed by a Full Bench in Maxitanis v Department of Justice and Community Safety: 57
“[52] Where, in a decision under appeal, the decision-maker has made findings of fact involving the resolution of a conflict of evidence between witnesses, it is necessary for an appellate tribunal to recognise and respect the advantage the decision-maker has had in seeing and hearing the witnesses give evidence and the role which the credibility and demeanour of the witnesses may have played in the decision-maker’s findings, even if not expressly adverted to in the decision. 58
[69] We respectfully adopt the same and discern no error in the Deputy President’s approach to resolve the conflict in the witnesses’ evidence before her.
[70] A fair reading of the Decision does not support a view that the Deputy President concluded that Mr Mellios had a tendency to view pornography at work because he viewed it at home.
[71] For these reasons we discern no arguable case of significant error of fact or other appealable error in this regard.
[72] We are not satisfied that Mr Mellios’ grounds of appeal disclose an arguable case of appealable error in the Deputy President’s Decision.
[73] Further, there is nothing on the material which satisfies us that it would be in the public interest to grant Mr Mellios permission to appeal. The appeal does not raise any issue of importance or general application. The Decision was made based on the particular circumstances before the Deputy President. The Decision does not manifest any injustice and the outcome determined by the Deputy President was unsurprising given Mr Mellios’ misconduct.
ORDER
[74] The order of the Full Bench is that permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms L Saunders of counsel for the Appellant
Mr A Pollock of counsel for Qantas Airways Pty Ltd
Hearing details:
2020.
Sydney (via video link):
4 September.
Printed by authority of the Commonwealth Government Printer
<PR724226>
3 [2020] FWC 2989, [11]
4 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204
5 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
6 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C
7 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J
8 Bista v Glad Group Pty Ltd [2016] FWC 3009
9 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000
10 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93]
11 (1992) 110 ALR 449
12 Ibid at 450
13 Ibid at 451
14 Shepherd v The Queen (1990) 170 CLR 573 at 579
15 (2011) 198 FCR 514
16 Ibid at 541
17 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ
18 [2020] FWC 2989, [19]-[25]
19 Ibid, [31]-[60]
20 Ibid, [61]-[65]
21 Ibid, [66]-[79]
22 Ibid, [80]-[81]
23 Ibid, [82]
24 Ibid, [88]-[164]
25 Ibid, [165]-[191]
26 Ibid, [192]-[225]
27 Queensland Rail v Wake (2006) 156 IR 393 at 395
29 Ibid at [282]
30 [2020] FWC 2989, [269]
31 Ibid, [238]-[320]
32 Ibid, [321]
33 Ibid, [322]-[326]
34 Ibid, [327]-[329]
35 Ibid, [330]-[332]
36 Ibid, [333]
37 Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089
40 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
41 Mellios v Qantas Airways Limited [2019] FWC 5029
42 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
43 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
44 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
45 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]
46 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
47 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] per Gleeson CJ, Gaudron and Hayne JJ
48 Anderson v Thiess Pty Ltd [2015] FWCFB 478
49 Ibid at [21]
50 [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
51 [1986] HCA 17; (1986) 161 CLR 513 at 518-9 per Mason and Deane JJ
52 [1979] HCA 63; (1979) 144 CLR 513 at 537
53 See Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at [58] and the authorities cited there.
54 (1936) 55 CLR 499
55 [2014] FWCFB 2194; 242 IR 249
56 [2013] FWCFB 6191 at [36], [48]-[51]
58 Abalos v Australian Postal Commission [1990] HCA 47, 171 CLR 167 at 179; Devries v Australian National Railways Commission [1993] HCA 78, 177 CLR 472 at 479, 482-483