[2021] FWCFB 1137
The attached document replaces the document previously issued with the above code on 31 March 2021.
In paragraph [9] in the first line, “on x” replaced with “on 26 November 2019”.
In paragraph [47] in the second line, “Mr Webster” replaced with “Mr Fraser”.
In paragraph [60] in the fifth line, “26 November 2020” replaced with “26 November 2019”.
Associate to Vice President Catanzariti
Dated 1 April 2021
| [2021] FWCFB 1137 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sydney Trains
v
Trevor Cahill
(C2020/9228)
VICE PRESIDENT CATANZARITI |
SYDNEY, 31 MARCH 2021 |
Appeal against decision [2020] FWC 6064 of Commissioner McKenna at Sydney on 7 December 2020 and order PR725091 on 16 December 2020 in matter number U2020/2911 – permission to appeal refused.
[1] Sydney Trains seeks permission to appeal and if granted, appeals a decision of Commissioner McKenna dated 7 December 2020 (Decision) 1 and order dated 16 December 2020.2 The Commissioner in the Decision was dealing with an application for an unfair dismissal remedy made by Mr Trevor Cahill (Mr Cahill) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). In so doing the Commissioner found that Mr Cahill had been unfairly dismissed, made an order for his reinstatement and for the restoration of lost pay.
[2] For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.
Background
[3] Before turning to the appeal, it is necessary to set out the background to the Decision.
[4] Mr Cahill commenced employment with RailCorp in NSW as a Customer Service Attendant in March 2000. After RailCorp was split into two entities (Sydney Trains and NSW Trains) in 2012 Mr Cahill’s employment transferred to Sydney Trains. At the time of his dismissal on 6 March 2020, Mr Cahill had been working at the Sydenham railway station. 3
[5] Mr Cahill took annual leave to undertake travel to Victoria for a skiing holiday at Mt Hotham on 1 August 2019. In doing so he used his Sydney Trains Employee Pass (Employee Pass) to secure a discount fare in respect of the Sydney/Albury leg of the XPT train service. He then paid a full fare to travel on a rail service from Albury Wangaratta in Victoria, from where he transferred to Mt Hotham by bus. 4
[6] On his return journey from Mt Hotham on 9 August 2019, Mr Cahill was required to travel to Melbourne via Bairnsdale (where he stayed overnight) before joining an XPT service departing from Melbourne and travelling to Sydney on 10 August 2019, which Mr Cahill boarded at approximately 7.50pm. 5 For the return journey from Melbourne to Sydney Mr Cahill booked a sleeper cabin for the entire trip.6 As he was unable to use his Employee Pass to secure a discount for the Melbourne/Albury leg of the journey he paid the full fare for that leg and used his Employee Pass to secure a discount on the Albury/Sydney leg of the journey. He paid $177.91 for the ticket for the return journey from Melbourne to Sydney, that price including the discount he received for the Albury/Sydney leg of the journey.7
[7] Shortly after the departure of the XPT service (badged as a NSW TrainLink service) from Melbourne, Mr Cahill was involved in a number of interactions with NSW Trains staff which provoked a formal complaint by one of the staff. On 26 August 2019 Mr Cahill was notified of a disciplinary investigation arising from the complaint. 8 In further correspondence to Mr Cahill on 26 September 2019 (the Allegations Letter) he was notified by Sydney Trains of the following specific allegations:
“…The purpose of this letter is to advise you of the allegation made against you, and to provide you with an opportunity to respond in writing.
Allegation
On Saturday 10 August 2019, while travelling as a passenger registered as a Sydney Trains’ employee on a train service between Melbourne and Sydney, you engaged in inappropriate conduct toward NSW TrainLink employees.
The particulars of this allegation are:
a) On 10 August 2019, you travelled on NSW TrainLink Service ST22, Melbourne to Sydney, using your Sydney Trains’ Employee Pass. This service departed Melbourne at around 19:50 hours and you occupied cabin A29.
b) During the journey, you approached Senior Passenger Attendant, Mr Jesse Jacobson, at the buffet counter and requested to purchase two beers. Mr Jacobson restricted your purchase to one beer and you became annoyed and argumentative stating to Mr Jacobson words to the effect of “I haven’t been drinking and you are saying I’m drunk.”
c) While occupying cabin A29, you yelled at Passenger Attendant, Ms Lauren Webster, regarding the restriction of your alcohol purchase and slammed the cabin door in her face, causing her to feel uncomfortable and intimidated.
c) Your conduct was reported to the Rail Operations Centre and subsequently, Passenger Service Supervisor, Mr Murray Fraser, heard yelling coming from your cabin.
e) You later attended the buffet counter to purchase more alcohol. During this time, you became argumentative and disrespectful toward Mr Fraser regarding his decision to contact the Rail Operations Centre, and Mr Jacobson’s decision to restrict your purchase of alcohol.
With regard to the allegation, this conduct, if proven, may represent a breach of the following sections of Our Code of Conduct:
• Section 3 - Staff responsibilities;
• Section 12 - Bullying, harassment, discrimination and inappropriate workplace conduct.
The conduct, if proven, may also be in breach of the Employee Pass conditions of use as detailed in the Sydney Trains & NSW TrainLink Employee Passes Booklet, specifically:
• General Pass conditions
• Misuse of passes
I have enclosed copies of the aforementioned instruments for your reference. …”. 9
[8] In the Allegations Letter, Mr Cahill was invited to provide a written response to the allegations. An investigation report prepared by the appointed Investigator Mr Geoffrey Campey, was provided to Sydney Trains on 5 November 2019 (the Investigation Report). 10 The Investigation Report found that all of the allegations set out above were substantiated.11
[9] A meeting was subsequently conducted on 26 November 2019 which was attended by Mr Cahill, Mr Ronald Churchman (Customer Area Manager) and Ms Ellen Beggs (Professional Conduct Unit Consultant). The purpose of the meeting called by Sydney Trains was to deliver the preliminary outcome to Mr Cahill in relation to the disciplinary investigation, that being the allegations set out in the Allegations Letter had been substantiated and that Sydney Trains had formed a preliminary view that the penalty of dismissal should be imposed. A letter setting out these matters was provided to Mr Cahill on 26 November 2019 (the Preliminary Decision Letter). 12 Mr Cahill was advised during the meeting that he was required to return all Sydney Trains property including his mobile phone. It was alleged that Mr Cahill responded in an argumentative manner during the meeting,13 that conduct being also subsequently relied on by Sydney Trains in supporting its ultimate decision to dismiss Mr Cahill.
[10] On 10 December 2019 the Rail Transport and Bus Union (NSW Branch) (the RTBU) wrote to Sydney Trains on behalf of Mr Cahill in response to the Preliminary Decision Letter. 14 On 9 January 2020 Sydney Trains wrote to Mr Cahill confirming its final view that his conduct warranted dismissal (the Final Decision Letter). Mr Cahill was advised in the correspondence that he was entitled to request a review of the decision under the Interim Discipline Penalty Review Process Guideline (the Request for Review).15 In confirming its final view that dismissal was appropriate based on the substantiation of the initial allegations, Sydney Trains also identified an additional ground on which it relied, that being as follows;
“…Additionally, Sydney Trains considered your behaviour during a meeting with Mr Ron Churchman and Ms Ellen Beggs on 26 November 2019; where you were issued with your preliminary letter. During this meeting you refused to return Sydney Trains issued property and raised your voice in a loud and aggressive tone whilst pointing your finger at Mr Churchman and Ms Beggs, respectively; the latter of which you stood over whilst she was seated. Your behaviour during this meeting was considered aggressive and inappropriate.” 16
[11] On 28 January 2020, the RTBU wrote to Sydney Trains on behalf of Mr Cahill requesting a review of the disciplinary outcome by the Disciplinary Panel. 17 Sydney Trains responded to Mr Cahill on 24 February 2020 affirming the previously communicated “final” decision of dismissal (the Review Decision Letter).18
The Decision
[12] The Commissioner first set out the procedural history and background to the application. Following the resolution of various initial matters, the Commissioner turned to consider the question of whether there was a valid reason for the dismissal related to Mr Cahill’s capacity or conduct. In so doing the Commissioner turned firstly to what she described as “two principal matters” that being the operation of Sydney Trains’ ‘Our Code of Conduct’ (the Code of Conduct) and the ‘Sydney Trains & NSW TrainLink Employee Passes Booklet’ (the Travel Pass). She described the relevant background to her consideration of these two principal matters in the following terms:
“[12] Those two principal matters concerned, first, the operation of the respondent’s Our Code of Conduct (“the Code of Conduct”) and, second, conditions of use of travel passes - in circumstances:
• when the applicant was on holidays and not on any work-related travel;
• when the applicant was travelling within Victoria on the XPT at the time the incidents unfolded, en route back home to Sydney following his skiing holiday in Victoria;
• involving three employees of NSW Trains said to be the applicant’s “colleagues” albeit the applicant and the three employees have two different entities as their respective employers and the applicant and the three employees did not at the time, and never had, worked together; and
• where the applicant was travelling on a leg of the journey between Melbourne and Albury on the XPT for which the applicant had pre-paid on his credit card at full market rates.” 19
[13] The Commissioner set out the relevant introduction to the Code of Conduct, the application of which had been promulgated by the NSW Government Department, Transport for New South Wales, to a number of agencies including NSW Trains and Sydney Trains. 20 Relying on the relevant extract from the Code of Conduct the Commissioner found it applied to standards of behaviour expected of employees “in the performance of their duties” and went on to conclude that Mr Cahill was not engaged in the performance of his duties when returning to Sydney on the XPT service on 10 August 2019.21
[14] The Commissioner also dealt with Sydney Trains’ contention that the Code of Conduct applied to guide behaviour of employees in their “interactions with customers, stakeholders and each other….” and that Mr Cahill’s behaviour directed towards “colleagues” on 10 August 2019 was also in breach of the Code of Conduct. The Commissioner rejected Sydney Trains’ contention that the NSW Trains staff were “colleagues” of Mr Cahill, primarily for the reason that they were employed by a different entity and consequently a different employer. 22 In then dealing with Section 12 of the Code of Conduct which deals with “bullying, harassment, discrimination and inappropriate workplace conduct” the Commissioner concluded as follows:
“[42] As to those parts of the dismissal decision which related to “Bullying, harassment, discrimination and inappropriate workplace conduct”, I can only note that the “workplace conduct” to which reference is made in Section 12 of the Code of Conduct must reasonably be conditioned by the words “in the performance of our duties” within the meaning of section 1 of the Code of Conduct. It may be noted, however, that the Code of Conduct also contains text which reads: “You need to be aware that the reputation of the transport agencies can be affected by your actions at work and, in certain circumstances, by your conduct outside the workplace.” Here, there was no evidentiary hint of any reputational damage caused by the applicant to the respondent.” 23
[15] Having found that the Code of Conduct did not apply, the Commissioner turned to consider the Travel Pass, and in particular the General Pass and Misuse of Passes conditions. As regards the General Pass conditions, which require pass holders to uphold the values and professional standards outlined in the Code of Conduct when travelling on a pass, the Commissioner found that Mr Cahill was not at the time of his interactions with the three staff on the XPT service covered by the conditions of the Travel Pass. The Commissioner’s reasoning for such conclusion was that Mr Cahill paid the full fare for that leg of the journey between Melbourne and Albury. The Commissioner relevantly stated as follows:
“[46] At the time of the interactions between the applicant and the three employees of NSW Trains, the XPT on which the applicant was travelling was well-within Victoria, less than an hour out of Melbourne. That is, the service had left Melbourne at about 7.50pm and the applicant entered the buffet car of the XPT to buy beer about ten minutes later at around 8.00pm; the final interaction was around 8.40pm. Due to the operation of the travel pass arrangements and the exhaustion of his 2019 interstate voucher entitlements, it was simply not available to the applicant to travel using his respondent-issued travel pass on this particular trip on the XPT so as to obtain any free or discounted travel from Melbourne to Albury. I specifically reject the contentions in the respondent’s case to the effect that seeking to dissect the journey is an “artificial distinction”. I find the applicant was not - as a matter of fact, as a matter of geography and as a matter of full fare payment - “using”, within the meaning of the Passes Booklet, his respondent-issued travel pass (or an interstate voucher) on the Melbourne to Albury leg of the journey so as to have any free or discounted travel when the interactions with three NSW Trains employees occurred on 10 August 2019, less than an hour out of Melbourne. The applicant booked a separate private ticket for Melbourne to Albury while also paying full fare on the XPT for the sleeper cabin for that leg of the trip to Melbourne.” 24
[16] The Commissioner then specifically rejected Sydney Trains’ contention that Mr Cahill engaged in ‘misuse’ of the Travel Pass on the basis that the type of conduct envisaged by the “Misuse of Passes” conditions was that of “impropriety-type or dishonesty type conduct”. 25
[17] The Commissioner then relevantly concluded as follows in respect of whether alleged breaches of the Code of Conduct or Travel Pass conditions by Mr Cahill founded a valid reason for his dismissal:
“[51] Based on the foregoing, I find there was no valid reason for the dismissal based on the alleged breaches of the Code of Conduct or the Passes Booklet because these instruments and, hence, the rights and obligations were not engaged at the time of the interactions on the XPT between the applicant and the three employees of NSW Trains.”
[18] The Commissioner then turned to consider in the alternative if she were wrong in finding that there was no valid reason because the Code of Conduct and the Passes Booklet were not engaged, whether the substantive matters addressed in allegations (a) to (e) (set out above at [7]) established a valid reason for Mr Cahill’s dismissal.
[19] As regards allegation (a) the Commissioner found that the allegation was not made out as it was only that leg of the journey between Albury and Sydney that Mr Cahill utilised the Employee Pass. 26
[20] Turning to allegation (b) which concerned Mr Cahill’s first attendance at the buffet counter and his interaction with customer service attendant Mr Jacobson, the Commissioner found that Mr Cahill did become “annoyed and argumentative” but concluded as follows:
“[64] While I find Allegation (b) is made out, I find also that Mr Jacobson in fact misapprehended or misinterpreted the situation in his decision not to sell the applicant alcohol until first asking the applicant if he had been drinking and then restricting the purchase to one beer rather, than the two Young Henry’s mid-strength beers that the applicant had requested. The applicant was a customer at the XPT’s buffet counter and Mr Jacobson misapprehended matters. Regardless, it is not a valid reason to dismiss an employee because he was “annoyed” or even “argumentative” about a customer purchase.” 27
[21] The Commissioner then considered and identified allegation (c) as being the most significant given the stated impact of Mr Cahill’s behaviour on the customer service officer Ms Webster arising from her exchange with Mr Cahill at his sleeper cabin. The incident involved Mr Cahill allegedly yelling and slamming his cabin door in the face of Ms Webster, which it was alleged caused her to feel uncomfortable and intimidated. The Commissioner made the following relevant findings in relation to allegation (c):
• that Mr Cahill spoke to Ms Webster in a “loud” voice during the exchange at his sleeper cabin, at what might be regarded at its peak, which was qualitatively different to yelling 28;
• that Ms Webster did not acquit herself in an entirely professional manner in the circumstances 29;
• that while the door of Mr Cahill’s sleeper cabin was slammed by him, it was not by reason of Ms Webster’s proximity to the door, slammed in her face 30; and
• that some aspects of the claimed impact on Ms Webster of her interaction with Mr Cahill “seemed somewhat overblown” and out of proportion even if her version of events were taken at its highest 31.
[22] The Commissioner summarised her conclusions in relation to allegation (c) as follows:
“[82] I will not speak in this decision about essentially private medical or psychological reactions by Ms Webster as to what occurred, other than to say aspects of what Ms Webster described were potentially seemingly somewhat out of proportion even if Ms Webster’s accounts of her interaction with the applicant were taken at their highest. As it happens, I do not accept those accounts at their highest, for aspects of what were described seemed somewhat overblown. I consider that Ms Webster’s evidence about her reactions would have been far more persuasive and generally more credible in the descriptions had there been more elements of moderation or even understatement - rather than overstatement concerning an exchange about the applicant essentially expressing a complaint about Ms Webster’s colleague, Mr Jacobson. To contextualise this:
• I have found that the applicant spoke to Ms Webster in a loud voice, not involving yelling;
• I have found that the applicant most likely slammed the very narrow door (so as to end the interaction rather than prolonging it), rather than closing it gently, but not “in the face” of Ms Webster;
• there was no evidence of swearing or other obscenities by the applicant;
• there was no evidence of language involving personally-directed invective;
• there was no evidence of sexist put-downs, sexual vilification, comments about her body, appearance or similar;
• there was no evidence of threats of harm or injury being made to Ms Webster or anyone else with whom she was associated;
• there was no evidence that the applicant moved from his sleeper cabin out into the corridor where Ms Webster was standing, albeit Ms Webster suggested the applicant was half-in half-out – which might perhaps be the literal case if, for example, the applicant was standing directly under the door frame;
• there was no evidence of threatened or actual assault; and
• there was no evidence of the applicant ridiculing Ms Webster, or what she said.” 32
[23] Allegation (d) concerned Passenger Service Supervisor Mr Fraser hearing yelling coming from Mr Cahill’s cabin. The alleged yelling by Mr Cahill followed his exchange with Ms Webster which along with the initial buffet car incident led to Mr Fraser then contacting Sydney Trains Rail Operations Centre (ROC) to report Mr Cahill’s behaviour. Mr Cahill was then contacted by telephone in his cabin by a Mr King who works in the ROC. It was the discussion between Mr Cahill and Mr King that was apparently overheard by Mr Fraser. Concluding that Mr Cahill was not yelling but speaking assertively to Mr King, the Commissioner stated as follows in relation to the allegation:
“[95] It is elusive to me as to how the applicant speaking in an assertive manner to an employee of the ROC within the privacy of his sleeper cabin, with the door closed - in a conversation overheard or potentially even eavesdropped by Mr Fraser following his second telephone conversation with Mr Klemesrud (noting particularly that the conversation between the applicant and Mr King was not heard by Ms Elliot, who was located in the adjoining sleeper cabin) - could amount to “inappropriate conduct toward NSW TrainLink employees” or otherwise could form any basis, let alone a valid reason, for dismissal.” 33
[24] Turning to allegation (e) which concerned Mr Cahill’s second visit to the buffet car and alleged interaction with Mr Fraser, the Commissioner considered at length the conflicting versions of events provided by the three NSW Trains staff as well as Mr Cahill’s evidence and concluded as follows:
“[130] In conclusion, as to the first and second limbs of Allegation (e), I find - and it is common ground - the applicant indeed “later attended the buffet counter to purchase more alcohol”. For the reasons outlined earlier, I also find, that during this time:
• the applicant did not become either argumentative or disrespectful toward Mr Fraser regarding Mr Fraser’s decision to contact the ROC;
• the applicant and Mr Fraser were argumentative as between themselves concerning Mr Jacobson’s earlier decision to restrict the applicant’s purchase of alcohol to one beer instead of the two he had requested, particularly on the issue of whether the applicant had been referred to as being (or had been, more accurately, perhaps, - mistakenly - presumed to be) drunk in connection with Mr Jacobson’s decision to restrict the applicant’s purchase to one beer rather than the two he had requested; and
• the applicant was not “disrespectful” to Mr Fraser concerning Mr Jacobson’s earlier decision to restrict his purchase of alcohol to one beer instead of the two he had requested. The applicant was, for the want of a better description, offended at the suggestion he was drunk in connection with the question/s posed to him and the decision, hand-in-hand with that, to restrict the purchase to one beer - when all the applicant had wanted to do (and not having had any alcohol that day before boarding the XPT) was to purchase two beers so he could watch the sportscast of the Bledisloe Cup in his sleeper cabin. The applicant had wanted to do this so he would not have to go backwards-and-forth, from his sleeper cabin to the buffet counter, traversing the other passenger carriages, to make two individual purchases of Young Henry’s mid strength beers.” 34
[25] Having dealt with allegations (a) to (e) the Commissioner then concluded as follows:
“[135] I have concluded earlier that the Code of Conduct and the Passes Booklet were not engaged at the time of the incidents between the applicant and the three NSW Trains employees, and so, to the extent the dismissal turned on those Code of Conduct-related and Pass Booklet-related bases, there was no valid reason for the dismissal concerning either the Code of Conduct or the Passes Booklet. If I am wrong in relation to that conclusion, I have otherwise concluded that the incidents in relation to Allegations (a), (b), (c), (d) and (e) did not, individually or collectively, constitute a valid reason or valid reasons for the dismissal of the applicant.” 35
[26] The Commissioner then turned to consider whether Mr Cahill’s conduct in the meeting held on 26 November 2019 with Mr Churchman and Ms Beggs established a valid reason for his dismissal and variously found that:
• Mr Cahill was not given fair and reasonably timely notice of the meeting 36;
• the RTBU should have been present at the meeting from the outset, that Ms Beggs only felt the need to belatedly enlist the RTBU for assistance, and that Mr Cahill while able to talk to the union by phone during the meeting was not allowed the dignity or privacy to speak alone to the official 37;
• Mr Cahill initially refused to hand over his mobile phone but ultimately returned the phone after returning from the men’s bathroom, the delay being a matter of minutes 38;
• Mr Cahill raised his voice during the meeting in a loud and aggressive manner whilst pointing his finger at Mr Churchman and Ms Beggs 39;
• while standing during the meeting after returning from the bathroom, Mr Cahill did not do so intentionally, that Ms Beggs had herself earlier stood over Mr Cahill while supervising his deletion of some personal ‘apps’ on the phone, but that neither had stood over the other in a pejorative-type sense 40;
• while some of Mr Cahill’s behaviour during the meeting could be characterised as aggressive and inappropriate so too could some of Ms Beggs’ behaviour including her standing over Mr Cahill while he deleted some apps and then pursuing him as he left the meeting to go the bathroom. 41
[27] The Commissioner then relevantly concluded as follows in relation to Mr Cahill’s conduct in the meeting:
“[152] The meeting on 26 November 2019 was an unfortunate meeting all round. Section 387(a) of the Act turns on the consideration of whether there was a valid reason for the dismissal related to the applicant’s conduct on 26 November 2019, including its effect on the safety and welfare of other employees. As to the meeting on 26 November 2019, it may be accepted that the applicant was very upset and, for example, levelled some accusations about Mr Churchman’s role in the preliminary dismissal decision and other matters (whereas Mr Churchman’s evidence was to the effect that he had not been involved in the decision and he was just the messenger). This style of comment by the applicant about Mr Churchman was both inappropriate and seemingly quite unfair to Mr Churchman. That said, any overreactive behaviour by the applicant at the meeting on 26 November 2019 must be contextualised by the sheer surprise of the meeting that had been “sprung” on him and the sense of injustice felt by the applicant that the allegations had been substantiated and that the preliminary decision was dismissal – coupled, now, with my findings that the Allegation/the particulars thereto concerning the XPT interactions did not, individually or collectively, constitute a valid reason or reasons for the dismissal. I have also made findings concerning the quite contradictory, incompatible and/or internally-inconsistent evidence, investigation statements and emails of the three NSW Trains employees and about the peculiarity of the involvement of the ROC in what unfolded on 26 November 2019.
[153] Considered in all the regrettable circumstances of the meeting on 26 November 2019, which properly should have been handled on the day much better by all three individuals involved in the meeting, I conclude that the applicant’s conduct did not constitute a valid reason for dismissal.” 42
[28] In relation to the balance of the s 387 criteria, the Commissioner variously found that:
• Mr Cahill was denied procedural fairness concerning notification of the reasons regarding the 26 November 2019 meeting (s 387(b) 43;
• Mr Cahill was not afforded an opportunity to respond in relation to his alleged conduct during the 26 November 2019 meeting (s 387(c)) 44;
• Mr Cahill was not unreasonably refused a support person to assist in any discussions related to his dismissal (s 387(d)) 45;
• Mr Cahill was not dismissed for unsatisfactory performance and as such that particular consideration was irrelevant (s 387(e)) 46;
• the procedures adopted by Sydney Trains were broadly consistent with what would be expected of an employer of Sydney Trains’ size, although it was surprising that an additional reason for Mr Cahill’s dismissal (the 26 November 2019 meeting) was added in without a modicum of procedural fairness (ss 387(f) & (g)) 47; and
• NSW Trains staff contact with the ROC on 10 August 2019 in relation to Mr Cahill’s behaviour was irregular, questionable, seemingly inappropriate, involved potential privacy breaches 48, that some of the evidence of Mr Fraser, Ms Webster and Mr Jacobson was self-serving and plainly gratuitous and that for the reasons earlier set out in the Decision, the out of hours conduct of Mr Cahill did not meet the high threshold established in Rose v Telstra Corporation Limited49 (s 387(h))50.
[29] Having found that Mr Cahill’s dismissal was harsh, unjust and unreasonable 51 the Commissioner then turned to consider remedy and in doing so awarded reinstatement and made orders for the maintenance of Mr Cahill’s continuity of employment and for an amount of remuneration lost (to be agreed between the parties). In determining to order reinstatement the Commissioner relevantly found that:
• there was nothing arising from the evidence or submissions that indicated reinstatement to Mr Cahill’s former role was impractical 52;
• it was unlikely Ms Beggs would have further contact with Mr Cahill and she was not an employee of Sydney Trains 53;
• the low likelihood of Mr Cahill interacting with the three NSW Trains staff who reside in Albury was not an impediment to reinstatement 54;
• any encounter between Mr Cahill and Mr Mercieca was not an impediment to reinstatement of Mr Cahill 55;
• while the Commissioner had some hesitation in relation to potential periodic interactions between Mr Churchman and Mr Cahill, she expected both Mr Cahill and Mr Churchman to behave professionally in any future dealings 56;
• Mr Cahill “very much wants his job back and he must work to make sure that the reinstatement is a successful one” 57;
• there was no basis not to reinstate Mr Cahill on the basis of Sydney Trains’ submission that it was Mr Cahill that had lost trust and confidence in Sydney Trains 58; and
• Mr Cahill’s employment record did not weigh against reinstatement 59.
Appeal grounds
[30] Sydney Trains’ notice of appeal sets out 12 grounds of appeal as follows:
1. The Commissioner erred (at [11]) by:
a. limiting or excluding from consideration of whether the Sydney Trains had a valid reason for the purposes of s 387(a) of the Act the events that took place on 10 August 2019; and alternatively
b. misconstruing or misunderstanding Sydney Trains’ case as to why it had a valid reason based on the incidents that occurred on 10 August 2019.
2. The Commissioner erred in construing the Code of Conduct in holding, actually or in effect, that:
a. the obligations under the Code of Conduct only applied when Mr Cahill was at work and performing duties (at [32]-[34]); and
b. employees of NSW Trains and Sydney Trains were not colleagues for the purposes of the Code of Conduct (at [39]-40]).
3. The Commissioner erred in finding (at [47] and [51]) that Mr Cahill was not bound by the Code of Conduct at the time of the incident on 10 August 2019 because he was not using his Employee Pass at the time and therefore the obligations not engaged. The Commissioner should have found on the evidence that Mr Cahill:
a. purchased a single ticket from Melbourne to Sydney rather than the erroneous finding (at [46]) that Mr Cahill had “booked a separate private ticket” for travel from Melbourne to Albury; and
b. obtained a discount on the price for the single ticket that he purchased from Melbourne to Sydney because he was an employee of Sydney Trains (and therefore entitled to the discount); and
c. by reason of the matters referred to in subparagraphs a and b above, was using his Employee Pass to travel and bound by the Code of Conduct.
4. The Commissioner erred by failing to find that by reason of the matters referred to in paragraphs 3.a and 3.b above, Sydney Trains was entitled to have regard to Mr Cahill’s conduct on 10 August 2019 in determining whether it had a valid reason to dismiss him.
5. The Commissioner erred in finding that Mr Cahill’s conduct on 10 August 2019 did not constitute a valid reason for dismissal in that the Commissioner:
a. misconstrued or misunderstood (at [52]) the reason relied upon by Sydney Trains being an allegation that Mr Cahill engaged in inappropriate conduct and not five separate allegations (a) – (e) constituted by the particulars of Mr Cahill’s inappropriate conduct and thereby failed to determine whether Mr Cahill’s conduct was inappropriate;
b. should have found that the Mr Cahill engaged in inappropriate conduct and accordingly there was a valid reason in circumstances where the Commissioner:
i. found (at [64]) that Mr Cahill was annoyed and became argumentative when his purchase of alcohol was restricted;
ii. found (at [80]) that Mr Cahill did slam the door to his cabin during his interaction with Ms Webster;
iii. found (at [127]) that Mr Cahill was argumentative with Mr Fraser regarding the earlier decision to restrict Mr Cahill’s purchase of alcohol;
iv. erred (at [66]) in finding that Mr Cahill did not yell at Ms Webster when there was no proper basis to reject the weight of the evidence that Mr Cahill did yell at Ms Webster;
v. erred in failing to find that Ms Webster felt uncomfortable and intimidated by Mr Cahill’s conduct during her interaction with him when there was no proper basis to reject Ms Webster’s evidence that she did feel uncomfortable and intimidated; and
vi. erred (at [113] and [130]) in finding that Mr Cahill was not argumentative and disrespectful towards Mr Fraser concerning Mr Fraser’s decision to contact the ROC, when it was accepted by the Commissioner (at [114]) that Mr Cahill questioned and commented on Mr Fraser’s decision to do so and the weight of the evidence was that Mr Cahill was argumentative and disrespectful.
6. The Commissioner erred (at [153]) in concluding that Mr Cahill’s conduct on 26 November 2019 did not constitute a valid reason for dismissal in circumstances where the Commissioner found (at [149]) that Mr Cahill engaged in the conduct relied upon by Sydney Trains as constituting the aggressive and inappropriate conduct and that much of Sydney Trains’ witnesses’ evidence was uncontested by Mr Cahill.
7. The Commissioner erred by failing to deal with, alternatively failing to provide any or any adequate reasons if the Commissioner dealt with and rejected them, Sydney Trains’ submissions that:
a. it was entitled to have regard to Mr Cahill’s conduct on 10 August 2019 because there was a relevant connection between the conduct and his employment; and
b. the Commission should accept the evidence of Sydney Trains’ witnesses where it conflicted with the evidence of Mr Cahill in respect of the incidents on 10 August 2019 and 26 November 2019.
8. The Commissioner erred (at [30]) in finding that Sydney Trains made the final decision to dismiss Mr Cahill on 26 November 2019 when what was communicated to Mr Cahill was a preliminary view (at [22]).
9. The Commissioner made the following significant errors of fact when she:
a. erred (at [156] – [157]) in finding that Mr Cahill was not notified that his conduct on 26 November 2019 was being relied upon as a reason for his dismissal in the circumstances where the evidence before the Commission (see [26]) demonstrated that Mr Cahill was notified that reason was being relied upon; and
b. erred (at [159]-[160]) in finding that Mr Cahill was not given an opportunity to respond to the reason relating to his conduct on 26 November 2019 in the circumstances where the evidence before the Commission (see [26]-[27]) demonstrated that Mr Cahill was given an opportunity to respond to that reason.
10. The Commissioner erred (at [169]) when she found that she was “bound” to make comments on various parts of the evidence given by Sydney Trains’ witnesses when those matters were not said to be relevant to any matter being considered by the Commission.
11. The Commissioner erred (at [171]) by failing to give any or any proper reasons for accepting Mr Cahill’s submission that the dismissal was harsh and rejecting Sydney Trains’ submissions that if there was a valid reason for the dismissal it would not in the circumstances be harsh.
12. The Commissioner erred (at [178]) by failing to give any or any proper reasons for rejecting Sydney Trains’ submissions that:
a. the evidence demonstrated that Mr Cahill had lost trust and confidence in Sydney Trains; and
b. reinstatement was not appropriate in circumstances where the evidence demonstrated that Mr Cahill had lost trust and confidence in Sydney Trains.
Statutory framework
[31] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 60 There is no right to appeal, and an appeal may only be made with the permission of the Commission.
[32] This appeal is one to which s 400 of the Act applies. 61 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.
[33] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 62 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.63 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.” 64
[34] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 65 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.66
[35] 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. 67 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
[36] For reasons which will become apparent it is convenient for us to deal with appeal grounds 5, 6, 7(b) and 8-12 first before returning to deal with grounds 1-4 and 7(a).
Ground 5
[37] By appeal ground 5, Sydney Trains contends that the Commissioner misconstrued (at [52]) the reason relied on by Sydney Trains for Mr Cahill’s dismissal, that being he had engaged in inappropriate conduct. In doing so, it is said that the Commissioner failed to address whether the conduct was inappropriate. 68 Sydney Trains submits that there is an overlap between this appeal ground and appeal ground 7(b) which is addressed at [54] of this decision.69 It is relevant to note that (at [52]) the Commissioner identified that if her conclusions in relation to the principal matters of the Code of Conduct and Travel Pass were wrong it was necessary for her to address the “substantive matters addressed in Allegation (a) to (e).”
[38] It appears to us that Sydney Trains, by this particular ground of appeal, misapprehends the task the Commissioner was required to undertake. It is uncontroversial that where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.70 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.71
[39] Sydney Trains’ complaint that the Commissioner failed to consider its case as put is rejected. The task required of the Commissioner was not to determine whether Mr Cahill’s conduct was ‘inappropriate’ as contended by Sydney Trains, but rather to determine whether the alleged conduct established a valid reason for his dismissal. This necessarily involved an assessment of the discreet allegations relied on by Sydney Trains (i.e. allegations (a) to (e)) as set out in the Allegations Letter. The Commissioner conducted this analysis in a comprehensive manner. 72 The Commissioner considered each allegation, made findings of which a number were adverse to Mr Cahill73 and concluded that the conduct whether considered singularly or collectively did not establish a valid reason for Mr Cahill’s dismissal74. The Commissioner adopted an orthodox approach to the task, and we discern no appealable error.
[40] The second limb of appeal ground 5 concerns Sydney Trains’ contention that the Commissioner made findings that were either not open on the evidence, and where the Commissioner did make adverse findings as to Mr Cahill’s conduct she should have concluded that the conduct was ‘inappropriate’ and established a valid reason for his dismissal.
[41] Sydney Trains refers to the following conclusions that it says ought to have led to a finding that Mr Cahill engaged in ‘inappropriate’ conduct that established a valid reason for his dismissal:
• that Mr Cahill was annoyed and argumentative with Mr Jacobson when his initial purchase of alcohol was restricted (at [64]);
• that he slammed the door to his sleeper cabin during his interaction with Ms Webster (at [80]); and
• was argumentative with Mr Fraser when he attended the buffet car on the second occasion in relation to the earlier decision to restrict his alcohol purchase (at [127]).
[42] Sydney Trains submits that the Commissioner ought to have concluded that the conduct was inappropriate and established a valid reason for dismissal. However, the Commissioner concluded following a thorough review of the evidence that the gravity of the conduct fell short of the threshold that would found a valid reason for the dismissal. We are not persuaded that an error of the House v R 75 type has been identified by Sydney Trains. We discern no appealable error in the Commissioner’s approach or the discretionary conclusion that Mr Cahill’s conduct did not establish a valid reason for his dismissal.
[43] As to the evidentiary conflicts that Sydney Trains submits were resolved by the Commissioner against the weight of evidence provided by its witnesses, the following points are made.
[44] The Commissioner’s finding (at [66]) that Mr Cahill did not yell at Ms Webster followed consideration of the evidence including that of Ms Elliot who was a passenger in a sleeper cabin adjoining that of Mr Cahill’s. Ms Elliot gave evidence that she heard Mr Cahill speaking in a “loud” voice 76 which the Commissioner ultimately concluded was qualitatively different to yelling, a conclusion with which we agree. The Commissioner also traversed the evidence of the NSW Trains staff, including the differences between their initial reports provided as part of the internal investigation and the evidence provided at hearing77. The Commissioner’s finding that Mr Cahill spoke to Ms Webster in a “loud” voice as opposed to yelling at her was open on the evidence.
[45] Sydney Trains also contends that the Commissioner erred in failing to find that Ms Webster felt uncomfortable and intimidated by Mr Cahill’s behaviour during her interaction with him at the door of his sleeper cabin. The Commissioner did accept that the interaction impacted Ms Webster and specifically acknowledged in the Decision that the evidence indicated that Ms Webster “reacted” to the interaction 78. The Commissioner did not however take Ms Webster’s evidence at its highest for reasons she set out in detail79. Even had the Commissioner accepted Ms Webster’s evidence at its highest, that did not relieve the Commissioner of the requirement to objectively assess and make findings on Mr Cahill’s conduct, which she did. It is the objective assessment and findings in relation to Mr Cahill’s conduct that was required to be undertaken as part of the assessment of whether there was a valid reason for the dismissal. We are not persuaded that the Commissioner’s contended “failure” to make findings sought by Sydney Trains in relation to Ms Webster’s evidence discloses appealable error.
[46] Finally, Sydney Trains contends that the Commissioner erred (at [113] and [130]) in finding that Mr Cahill was not argumentative and disrespectful towards Mr Fraser in respect of Mr Fraser’s decision to contact the ROC when the weight of evidence was to the contrary. It must be firstly said that the weight of evidence Sydney Trains refers to is not immediately apparent to us, nor were we taken to that evidence either in Sydney Trains’ written or oral submissions.
[47] The Commissioner concluded that the evidence did not support a conclusion that Mr Cahill became “argumentative and disrespectful” to Mr Fraser over his contacting the ROC and supported that conclusion with a careful analysis of the differing versions of events provided by Mr Cahill, Mr Fraser, Mr Jacobson and Ms Webster 80. Critically, the Commissioner examined the different versions of events provided by Mr Fraser in the initial email sent 13 August 2019 about the incidents on 10 August 2019, his investigation statement dated 11 September 2019 and his affidavit in the proceedings before the Commission.81 The Commissioner concluded, correctly in our view, that there were “divergent, incompatible accounts” in the evidence of the three NSW Trains employees as to the exchange between Mr Cahill and Mr Fraser. The tension in that evidence and the fact that Mr Cahill on arrival at the buffet counter on the second occasion did not know it was Mr Fraser who had contacted the ROC meant that it was unlikely that Mr Cahill initiated the conversation with Mr Fraser over the ROC contact in a “very abrupt and aggressive” manner. That Mr Cahill questioned Mr Fraser or commented on Mr Fraser having done so (i.e. contacted the ROC) was not considered remarkable by the Commissioner, a sentiment we would also agree with in the circumstances. No appealable error is disclosed in our view.
[48] Appeal ground 5 is dismissed.
Ground 6
[49] By appeal ground 6, Sydney Trains contends that the Commissioner erred in finding that Mr Cahill’s conduct in the meeting on 26 November 2019 did not constitute a valid reason for dismissal. Sydney Trains submits that despite finding that Mr Cahill engaged in the conduct as alleged 82, and that some of his conduct could be characterised as “aggressive” and “inappropriate” the Commissioner did not accept that the conduct founded a valid reason for his dismissal.83 Sydney Trains further contends that the finding was not open on the evidence and that from Sydney Trains perspective the conduct provided a “sound, defensible or well-founded” reason for Mr Cahill’s dismissal.
[50] It is apparent from the Decision that the Commissioner considered the events that unfolded in the meeting on 26 November 2019. The Commissioner’s lengthy analysis included consideration of the conduct of Mr Cahill as well as the conduct of Mr Churchman and Ms Beggs. The Commissioner made adverse findings in relation to Mr Cahill’s conduct, including that he did not immediately return his mobile phone when requested 84, stood over Ms Beggs (although not intentionally in a pejorative sense)85, that some parts of his behaviour could be characterised as aggressive and inappropriate86 and that he levelled inappropriate and unfair accusations at Mr Churchman regarding his role in the preliminary dismissal decision87.
[51] Having made these findings as to Mr Cahill’s conduct, the Commissioner considered whether the conduct established a valid reason for his dismissal, as she was required to. In assessing the gravity of the conduct the Commissioner weighed a number of mitigating contextual factors including; the lack of any advance notice of the meeting or its purpose 88, the meeting was held at the end of a shift when Mr Cahill was tired89, that Ms Beggs stood over Mr Cahill while he deleted personal apps from the phone90 and then pursued Mr Cahill towards the men’s bathroom91, that Mr Cahill was not afforded a fair opportunity to be accompanied by a support person of his choice92 and the fact that Mr Cahill was “upset” at the prospect of losing his job after 20 years’ service over something that started over what he regarded as poor service on the XPT service on 10 August 201993.
[52] The Commissioner approached the task of assessing the conduct and whether it founded a valid reason for Mr Cahill’s dismissal in an orthodox manner. She weighed the contextual factors against Mr Cahill’s conduct and concluded that the conduct did not give rise to a valid reason for his dismissal. It was in our view a discretionary finding that was open on the evidence before the Commissioner and no appealable error is disclosed.
[53] Appeal ground 6 is dismissed.
Ground 7(b)
[54] Appeal ground 7(b) appears to be a restatement of Sydney Trains’ dissatisfaction with the evidentiary findings of the Commissioner in respect of the incidents on 10 August 2019 and the meeting on 26 November 2019. 94 For the reasons earlier stated, we consider that the Commissioner resolved the evidentiary conflicts and where she made findings or preferred particular evidence, she set out the reasons for doing so. We are not persuaded that the Commissioner’s findings were not open on the evidence before her. No appealable error is disclosed in the Commissioner’s evidentiary findings or in the conclusion that that Mr Cahill’s conduct was not sufficiently serious so as to establish a valid reason for his dismissal.
[55] Appeal ground 7(b) is dismissed.
Ground 8
[56] By appeal ground 8, Sydney Trains submits that the Commissioner fell into error in finding (at [30]) that Sydney Trains had made the “final” decision to dismiss Mr Cahill on 26 November 2019 when what was communicated to Mr Cahill in the Preliminary Decision Letter and in the meeting that same day was that a “preliminary decision” to dismiss him had been reached. 95
[57] We accept that the Commissioner mistook or misstated the date that the “final” decision was communicated to Mr Cahill. Sydney Trains contends that this provides some context for the error it relies upon in respect of appeal ground 9. Taking into account our findings in respect of appeal ground 9, we do not consider the error to be material. It does not disclose a significant error of fact in the Commissioner’s reasoning as required by s 400(2) of the Act, or any other appealable error in the determination of whether Mr Cahill’s dismissal was harsh, unjust and unreasonable. We consequently decline to grant permission to appeal in respect of ground 8.
Ground 9
[58] By appeal ground 9 Sydney Trains firstly contends that the Commissioner fell into error by finding (at [156]-[157]) that Mr Cahill was not notified that his conduct in the meeting on 26 November 2019 was also being relied upon as a reason for his dismissal. Secondly, it is contended that the Commissioner erred in finding (at [159]-160]) that Mr Cahill was not given an opportunity to respond to the reason relied on for his dismissal relating to his conduct on 26 November 2019.
[59] In dealing with whether Mr Cahill had been notified by Sydney Trains of a “valid reason” related to his conduct and relied on by Sydney Trains in deciding to terminate his employment, the Commissioner relevantly stated as follows:
“[156] The applicant was not notified of the 26 November 2019 matters which formed the additional reasons in the final dismissal letter. Put at its highest, Ms Beggs said to the applicant, as she pursued the applicant towards the bathroom and that failure to return the mobile telephone “could amount to a separate disciplinary allegation”. No separate disciplinary allegation or notification ensued concerning the return of the mobile telephone or about the other matters concerning the meeting on 26 November 2019. The matters concerning the meeting on 26 November 2019 seemingly were just added-in to the final dismissal letter and without any notification within the meaning of s.387(b) of the Act.
[157] As to s.387(b) of the Act, there was a denial of procedural fairness concerning notification of the reasons regarding the 26 November 2019 meeting.” 96
[60] It is well established that notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 97 and in explicit98 and plain and clear terms.99 Sydney Trains contends such notification did occur by way of the Final Decision Letter on 9 January 2020, notifying Mr Cahill that Sydney Trains was also relying on his conduct in the meeting of 26 November 2019 in support of its decision to dismiss him. Sydney Trains points to the Request for Review process, identified in the Final Decision Letter, that Mr Cahill was entitled to avail himself of (and which the RTBU subsequently sought on his behalf), to support its argument that Mr Cahill was notified before the decision to dismiss him was made.
[61] On one view it may be arguable that Mr Cahill was notified of Sydney Trains’ reliance on the 26 November 2019 meeting prior to the decision being taken to dismiss him given the Request for Review process set out in the Final Decision Letter. It seems to us however that the review was in respect of a decision already made. So much is clear from the language of the Final Decision Letter in which it stated that the “final view” was that dismissal was the appropriate disciplinary outcome. Our view on this is fortified by the contents of Sydney Trains’ Discipline Procedure which relevantly states as follows:
In this final stage of the disciplinary process all the available information, including the employee's response (if provided) is considered and a final decision made on the action that will be taken in relation to the finding of misconduct.
The final decision may be to
• take no further action or
• take remedial action and/or
• take disciplinary action (ie impose one of the penalties identified in section 10 of this Procedure).
The final decision may confirm or vary the preliminary decision.
The DRP, or Chief Executive or delegate will consider any response provided by the employee in relation to the preliminary recommendation on disciplinary action.
The DRP will make a final recommendation on penalty to the relevant General Manager.
The General Manager may accept the DRP's recommendation or refer their own recommendation to the Chief Executive or delegate.
The employee will be advised in writing of the final decision and its date of effect and any appeal rights (see section 13 of this Procedure).” 100
[62] The material before the Commissioner indicated that a “final” decision had been made to dismiss Mr Cahill, this was communicated to him on 9 January 2020 and this was the first time he was notified that Sydney Trains was also relying on the 26 November 2019 meeting events as a basis for his dismissal. In these circumstances it was open to the Commissioner to conclude that Mr Cahill was not notified of one of the reasons relied on by Sydney Trains prior to the decision being made to dismiss him. No appealable error is disclosed in the Commissioner’s conclusion.
[63] Turning to the second limb of ground 9, the Commissioner found in relation to Mr Cahill’s opportunity to respond as follows:
“[159] The applicant was not given any opportunity to respond to reasons related to his conduct concerning the 26 November 2019 meeting. Had the applicant been given an opportunity to respond to the reasons related to that conduct, there are various matters of substance that could have been advanced. Included among those matters were that he had not been afforded any procedural fairness at all concerning the meeting because he did not know about the meeting until minutes before it was scheduled to start; that he did not know what the meeting was about; that he was not given the opportunity to arrange a support person; that he in fact returned the work-issued mobile telephone within minutes; that his conduct was due in part to the shock advice to him at the surprise meeting; and that Ms Beggs had, in fact, stood over him.
[160] As to s.387(b) of the Act, there was a denial of procedural fairness concerning an opportunity to respond to the reasons regarding the 26 November 2019 meeting.” 101
[64] Sydney Trains contends that Mr Cahill was afforded an opportunity to respond to the allegation regarding his conduct in the 26 November 2019 meeting by way of the Final Decision Letter which identified Mr Cahill’s Request for Review right, which right he availed himself of via the RTBU correspondence to Sydney Trains on 28 January 2020. That, according to Sydney Trains, provided Mr Cahill with an opportunity to respond to the allegation regarding his conduct at the 26 November 2019 meeting.
[65] We were not taken to a copy of the Interim Discipline Penalty Review Process Guidelines, which was specifically referred to in the Final Decision Letter, and which may have shed light on the process and scope of the disciplinary decision review process if sought by an employee. Nor is it apparent to us that the Commissioner was taken to that material at first instance. We note that the Sydney Trains Discipline Procedure also refers to the Interim Discipline Penalty Review Process Guidelines under the heading of “Discipline Penalty Review” and states that “An employee can make a request for a discipline penalty review decision to be reviewed in certain circumstances…” 102 The circumstances that would enable a review are unclear, as is whether such review is confined to the penalty determined in the “final” decision or whether the review allows an employee to advance further submissions and/or material in relation to allegations which may have been found to have been substantiated in the “final” decision.
[66] While the nature and scope of the discipline penalty review process is unclear, the disciplinary process through which allegations of Code of Conduct and Safeworking breaches are dealt with by Sydney Trains is very clear and is set out in the Discipline Procedure. In simple terms the Discipline Procedure provides for a 4-step process; Stage 1 – Disciplinary investigation, Stage 2 – Preliminary decision, Stage 3 – Employee response and Stage 4 – Final Decision. 103 That process appears to have been rigorously applied in relation to the initial allegations set out in the Allegations Letter of 26 September 2019.
[67] There does not however appear to have been any evidence before the Commissioner that the 4-step process set out in the Sydney Trains Discipline Procedure, to which we have referred above, was followed in respect of Sydney Trains’ finding regarding Mr Cahill’s conduct at the 26 November 2019 meeting. More specifically, it is unclear whether an investigation was conducted by the Sydney Trains Investigation Unit as required under the procedure (clause 8.1) or that Mr Cahill was put on notice of the allegation/s, or if he was invited to respond to the allegation/s prior to a preliminary decision having been reached in relation to the allegation/s (clause 8.2). Nor does it appear he was afforded an opportunity to provide a response (clause 8.3) to the preliminary decision (if made) prior to a final decision having been made (clause 8.4).
[68] In circumstances where there was an absence of evidence going to Sydney Trains’ compliance with its own Discipline Procedure in relation to Mr Cahill’s conduct during the 26 November 2019 meeting and where the nature and scope of the “Discipline Penalty Review” process is unclear, it was open to the Commissioner to conclude that Mr Cahill was not afforded an opportunity to properly respond to the allegation regarding the 26 November 2019 meeting conduct. We consequently discern no appealable error.
[69] If we are wrong in relation to our conclusions regarding the notification of a valid reason relied on for Mr Cahill’s dismissal and his opportunity to respond to that reason, we would still not grant permission to appeal in respect of this ground of appeal. That is because the decision made by the Commissioner that Mr Cahill was unfairly dismissed was primarily driven by her finding that the dismissal lacked a valid reason, a conclusion that remains undisturbed on appeal. Upholding this procedural ground of appeal would not in our view alter the finding of unfairness in circumstances where a valid reason for dismissal was not present. Accordingly, a finding of appealable error in the Decision as contended by this ground of appeal would not justify a grant of permission to appeal.
Ground 10
[70] Sydney Trains contends by appeal ground 10 that the Commissioner erred in finding that she was “bound” to comment on the evidence of some of Sydney Trains’ witnesses (at [169]). Sydney Trains submits that the matters commented on were not relevant to the Commissioner’s finding that the dismissal was harsh, unjust and unreasonable. Sydney Trains also submits that the Commissioner’s assessment and comments on the evidence of the witnesses offends the rule in Browne v Dunne and the position taken in City of Stirling v Mr Kevin Emery (City of Stirling) 104.
[71] In our view there is nothing remarkable about the comments made by the Commissioner in which she described some of the evidence of Sydney Trains’ witnesses as containing “self-serving and otherwise plainly gratuitous comments in the affidavits and investigation statements”. We accept that there is nothing in the Act that compelled the Commissioner to make comments in this manner. However, such statements were responsive to evidence relied upon by Sydney Trains and contextualises why the Commissioner did not accept some of this material.
[72] The position in City of Stirling is not, in our view, apposite to the circumstances before us. In City of Stirling, an inference was drawn at first instance as to the motivation behind an employer supervisor denying that he had authorised the applicant employee engaging in certain conduct. The point was not part of the applicant employee’s case at first instance. The Full Bench found that if an inference was to be drawn about the supervisor’s motivation for denying that he had authorised the conduct, the rule in Browne v Dunn requires that a party give appropriate notice to the other party and its witnesses of such imputation. In that case, the inference drawn was a matter in respect of which the City of Stirling had no notice. 105
[73] The above can be contrasted with the circumstances before us. The Commissioner’s observations were made in response to the evidence of some of Sydney Trains’ witnesses. In contradistinction to City of Stirling where certain inferences were drawn without notice, the Commissioner dismissed certain evidence on the basis that she did not regard it as directly relevant to Mr Cahill’s application for an unfair dismissal remedy.
[74] We are not persuaded that the Commissioner’s approach offends the rule in Browne v Dunn. Nor do we consider that the assessment of the particular witness evidence led the Commissioner into appealable error in respect of her substantive findings. The appeal ground seems more a complaint as to how the Commissioner has viewed and treated particular evidence of certain Sydney Train witnesses. Ground 10 is consequently rejected.
Ground 11
[75] Sydney Trains contends that the Commissioner erred (at [171]) by failing to give any or any proper reasons for accepting Mr Cahill’s submission that the dismissal was harsh and rejecting its submissions that if there was a valid reason for the dismissal it would not in the circumstances be harsh. The Commissioner relevantly stated as follows:
“[171] I am satisfied the applicant has been unfairly dismissed as the dismissal was, as the union submitted, harsh; I am also satisfied that the dismissal was unjust and unreasonable. The decision has elements both of substantive and procedural unfairness. I am also satisfied the applicant should have an unfair dismissal remedy. Reinstatement is the remedy that has been sought by the applicant and that is the primary remedy under the Act. I am satisfied that reinstatement is the appropriate remedy in this case together with an order to maintain continuity and an order concerning lost pay.” 106
[76] We agree with the parties’ submissions that the principal authority in respect of the requirement to give adequate reasons was that of the Full Bench in Barach v University of New South Wales 107(Barach) where it stated as follows:
“[16] The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”
[77] Read in isolation, we accept that the Commissioner’s finding (at [171]) that the dismissal was harsh does not disclose the reasons for reaching such conclusion. It would be wrong however to read the Decision so narrowly in circumstances where it extended to 192 paragraphs over 64 pages. The Decision involved a careful consideration of the relevant factual matrix and applicable law. True it may be that Sydney Trains’ submissions on harshness 108 were not detailed in the Decision but nor were Mr Cahill’s submissions on this point.109 As made clear in Barach the Commissioner was not required to spell out every submission in her reasoning.
[78] Both submissions at first instance addressed matters relevant to consideration of harshness including Mr Cahill’s age, length of service, loss of income and prospects of obtaining alternate employment. It is clear enough when the Decision is fairly read in its totality that the Commissioner took those matters into account. 110
[79] We are not persuaded that appealable error is established in respect of ground 11. Even if we were so persuaded it is not clear what utility would be served by granting permission to appeal in circumstances where the Commissioner also made separate and discreet findings that the dismissal of Mr Cahill was both unjust and unreasonable.
[80] Appeal ground 11 is rejected.
Ground 12
[81] Sydney Trains, by appeal ground 12, contends that the Commissioner only dealt with in a cursory manner the detailed submissions it made in relation to the Applicant’s loss of trust and confidence in Sydney Trains and that the consideration of Mr Cahill’s employment history also failed to deal with its submissions on those matters. 111
[82] Supporting the finding that reinstatement was appropriate, the Commissioner set out in considerable detail her reasons for reaching this conclusion. Specifically, the Commissioner detailed the size of the Sydney Trains organisation and that there was no evidence that reinstatement to his former position at the Sydenham station would be impractical (at [172]), that interactions with the three NSW Trains employees in the future were unlikely and not an impediment to reinstatement (at [173]) and that Mr Cahill would be unlikely to have any interactions with Ms Beggs (at [174]). The Commissioner then considered the potential for interactions between Mr Cahill and Mr Mercieca and Mr Churchman who were both involved in the disciplinary process. The Commissioner concluded that all parties would be able to act professionally despite some hesitation she held in respect of potential interactions between Mr Cahill and Mr Churchman ([175]-[176]).
[83] The Commissioner noted Sydney Trains’ submission (at [178]) that it was Mr Cahill that has lost “trust and confidence” in Sydney Trains. The Commissioner considered the submission but was not persuaded by it. The absence of detailed reasons on that particular point must be read in the context of her broader reasoning including the statement made (at [177]) that Mr Cahill “very much wants his job back”. It is also apparent that the Commissioner considered Mr Cahill’s employment history (at [179]). Read fairly, the reasons for finding that reinstatement was appropriate are comprehensive and do not disclose error, let alone appealable error. Appeal ground 12 is dismissed.
Grounds 1, 2, 3, 4 & 7(a)
[84] It is convenient for us to deal with appeal grounds 1, 2, 3, 4 and 7(a) together as they go to Sydney Trains’ contention that Mr Cahill’s conduct on 10 August 2019 established a valid reason for his dismissal by reason of the following:
(1) the Code of Conduct applied to Mr Cahill’s out of hours conduct in respect of his behaviour towards the NSW Trains staff on the basis that they were ‘colleagues’;
(2) Mr Cahill was travelling on his Employee Pass, which as a condition of its use, required him to comply with the Code of Conduct; and
(3) Mr Cahill’s conduct on 10 August 2019 had a sufficient connection to his work in the sense described in Rose v Telstra 112.
[85] As earlier set out, the Commissioner dealt with and rejected Sydney Trains’ submissions at first instance that the Code of Conduct applied, either by reason that the NSW Trains employees were Mr Cahill’s ‘colleagues’ or that it (the Code) was engaged because Mr Cahill was travelling on his Employee Pass at the time of the incidents which occurred on the Melbourne/Albury leg of his return journey to Sydney. The Commissioner also found the “high bar” in Rose v Telstra was not met.
[86] It is unnecessary for us to engage with the arguments advanced by Sydney Trains in relation to these grounds of appeal as there is no utility in doing so for the following reasons. The Commissioner dealt at considerable length with the substance of the allegations put in relation to Mr Cahill’s conduct, in the alternative to the findings made as to the application of the Code of Conduct. Even if Sydney Trains is correct in its contention that the Code of Conduct applied to Mr Cahill’s out of hours conduct on 10 August 2019 and/or there was a sufficient connection between his conduct and his employment, it remains necessary for Sydney Trains to demonstrate that there was a valid reason for Mr Cahill’s dismissal relating to that conduct. Sydney Trains was unable to establish in the proceedings before the Commissioner that a valid reason exists. For the reasons set out in this decision, the Commissioner’s findings in relation to ‘valid reason’ remain undisturbed on appeal. Relevantly, the Commissioner concluded (at [135]) that Mr Cahill’s conduct would not have constituted a valid reason for dismissal even if the Code of Conduct applied.
[87] Permission to appeal is consequently rejected in relation to appeal grounds1, 2, 3, 4 and 7(a).
[88] Having regard to the above matters and in light of the conclusions reached, we are not satisfied that appealable error has been identified in the Decision. It is apparent that the Commissioner applied a thorough and orthodox approach to the determination of Mr Cahill’s unfair dismissal application.
[89] Further, we are not satisfied for the purposes of s 400(1) that this appeal attracts the public interest. In particular, we do not consider that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the Decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[90] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s 400(1) of the Act.
[91] Permission to appeal is refused and the stay order 113 is set aside.
VICE PRESIDENT
Appearances:
Mr J Darams of Counsel on behalf of the Appellant
Ms L Saunders of Counsel on behalf of the Respondent
Hearing details:
2021.
Telephone hearing.
12 February.
Printed by authority of the Commonwealth Government Printer
<PR727446>
3 Appeal Book p.389 at [1]-[4]
4 Ibid p.390 at [13], p.391 at [19]-[20]
5 Ibid p.390 at [22] and p.392 at [26]
6 Ibid p.391 at [24]
7 Ibid p.391 at [23]-[24]
8 Ibid at p.545
9 Ibid at p.569
10 Ibid at p.521
11 Ibid
12 Ibid at p.672
13 Ibid at p.504 at [10]-[11]
14 Ibid at p.676
15 Ibid at p.808
16 Ibid
17 Ibid at p.815
18 Ibid at p.820
19 Decision at [12]
20 Ibid at [32]
21 Ibid at [33]-[34]
22 Ibid at [37]-[39]
23 Ibid at [42]
24 Ibid at [46]
25 Ibid at [48]-[50]
26 Ibid at [59]-[60]
27 Ibid at [64]
28 Ibid at [74]
29 Ibid at [75]-[76]
30 Ibid at [78]-[80]
31 Ibid at [82]
32 Ibid at [82]
33 Ibid at [95]
34 Ibid at [130]
35 Ibid at [135]
36 Ibid at [146}
37 Ibid at [146]-[147]
38 Ibid at [149]
39 Ibid
40 Ibid at [150]-[151]
41 Ibid at [151]
42 Ibid at [152]-[153]
43 Ibid at [157]
44 Ibid at [160]
45 Ibid at [161]
46 Ibid at [162]
47 Ibid at [163]-[164]
48 Ibid at [168]
49 [1998] AIRC 1592
50 Decision at [168]-[170]
51 Ibid at [171]
52 Ibid at [172]
53 Ibid at [174]
54 Ibid at [173]
55 Ibid at [175]
56 Ibid at [176]
57 Ibid at [177]
58 Ibid at [178]
59 Ibid at [179]
60 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
61 See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]
62 (2011) 192 FCR 78 at [43]
63 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
64 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
65 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
66 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]
67 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
68 Appellant’s outline of submissions at [19]
69 Ibid at [20]
70 Edwards v Justice Giudice [1999] FCA 1836, [7]
71 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]
72 The Commissioner’s consideration of the relevant conduct is set out from [52]-[135] of the Decision
73 See Decision at [63], [64], [80], [127]
74 Ibid at [135]
75 (1936) 59 CLR 499
76 Decision at [74]
77 Ibid at [67] and [72]
78 Ibid at [83]
79 Ibid at [82]
80 Ibid at [99]-[100]
81 Ibid at [102]-[105]
82 Ibid at [149]
83 Appellant’s outline of submissions at [24] and [25]
84 Ibid at [149]
85 Ibid at [150]
86 Ibid at [150]
87 Ibid at [152]
88 Ibid at [138]
89 Ibid at [138]
90 Ibid at [144]
91 Ibid at [144] and [151]
92 Ibid at [146]
93 Ibid at [148]
94 See Appellant’s outline of submissions at [20] where the overlap between appeal grounds 5 and 7(b) is acknowledged
95 Ibid at [29]
96 Decision at [156]-[157]
97 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151
98 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
99 Ibid
100 Appeal Book at p.590
101 Decision at [159] and [160]
102 Ibid at p.591
103 Ibid at pp,588-590
104 [2018] FWCFB 2279 at [25]-[27]
105 Ibid
106 Decision at [171]
108 Appeal Book, p. 387 at [53]-[54]
109 Appeal Book, p. 369 at [69]-[77]
110 See for example [179] of the Decision
111 Appellant’s outline of submissions at [18]
112 [1998] AIRC1592