Dec 1572/97 S Print P7680


Workplace Relations Act 1996

s.45 appeal against a decision [Print P1881]

issued by Commissioner Dight on 13 June 1997

Department of Social Security

(C No. 60390 of 1997)

s.170CE Application for relief re termination of employment

Dean Uink


Department of Social Security

(U No. 60032 of 1997)




Appeal re alleged unlawful termination


This decision deals with an appeal by the Department of Social Security (DSS) against an order made by Commissioner Dight on 13 June 1997 (Print P1881) which required the appellant to, among other things, reinstate Mr Dean Uink to the substantive position which he occupied immediately prior to his termination of employment.

Mr Uink commenced employment with the DSS at its regional office in Grosnells, Western Australia, on 2 December 1991. He started work as an Administrative Officer Grade 2 (ASO 2) in the Department's Newstart section, processing unemployment forms which required a basic level of assessment. Shortly after commencement he became an ASO3, dealing with counter inquiries from clients of the Department. Later he became an Aboriginal and Torres Strait Islander Liaison Officer (an AILO) at ASO 4 level. In this position it appears he was required to liaise with outside agencies and communities and maintain an outreach service, including access and equity for aboriginal customers; in addition he was available to assist other staff in dealings with aboriginal customers.

After eighteen months as an AILO Mr Uink was moved back into the Newstart section as an ASO 4 supervisor. As such he was required to approve and determine new claims, deal with the more complex claims assessments, offer technical advice to subordinate staff and to undertake general supervisory duties.

During the period January until June 1996 Mr Uink was the acting Administrative Officer in the Gosnells office on two occasions for several weeks each time. This involved the reconciliation of accounts, repayments by clients of the Department, the taking of minutes of meetings, personnel movements and the like. In his evidence before Commissioner Dight Mr Uink maintained that he was also required by the deputy regional manager to assist the Newstart section in a relief capacity and as required from time to time.

On 6 January 1997 Mr Uink was charged with misconduct under the Public Service Act on three separate charges as follows:

Note: the Schedule referred to the following dates, all in 1996: 2 February, 7 and 23 May, 19 and 20 June, 1, 2 and 3 July.

"VDB" refers to a former employee and customer of the DSS. The Departmental instruction referred to in Charge A provides:

Central to each of the charges, and the substance of charge A, is the relationship between Mr Uink and a DSS customer referred to as VDB. The question of whether VDB was entitled to the benefits approved by Mr Uink was central to charges B and C.

At the commencement of the appeal proceedings the parties tendered an agreed statement of facts [see Exhibit R1]. The agreed statement is in the following terms:

The appeal was heard in Perth on 31 July 1997 and 4 September 1997.

Decision Subject to Appeal

The Commissioner made the following Decision, Finding and Order on 13 June 1997 (Print P1881):

This is an application pursuant to s.170CE(1)(a) of the Act for relief in respect of termination of the employment of Mr Dean Uink (the applicant) by the Department of Social Security (the respondent).


The Commissioner published the reasons for her decision on 17 June 1997 [Print P1965].

Preliminary Matter - Further Evidence

During the hearing of the appeal the appellant applied for leave to adduce further evidence pursuant to s.45(7) of the Act. The evidence in question was an affidavit sworn by Mr Van Der Ende and material relating to the Department's policy concerning lump sum payments.

The application was opposed by the respondent.

The material in the affidavit and the policy statement were available at the time of the hearing before Commissioner Dight but were not put before her. The appellant submitted that the Commissioner should have called for the material.

We refused leave to tender the new material. In our view it is the responsibility of the parties to call all relevant evidence at the hearing before the Commission. The process is not inquisitorial. In addition, one of the annexures to the affidavit sought to be tendered was tendered during the proceedings below but without any of the documents that are now attached to it. The attached documents were not produced to the applicant in the discovery process below.

We indicated to the appellant that should leave to appeal be granted and the appeal succeed the Full Bench would hear the matter on its merits and the application to tender the affidavit and the policy statement could be renewed.

Submissions on Appeal

In relation to the question of leave to appeal the appellant submitted that leave should be granted because it is important, in the public interest, that:

The submissions advanced in support of the merits of the appeal can be conveniently grouped into four categories:

We propose to deal with the arguments advanced in respect of each of the above matters in turn.

Fairness of the Inquiry

It was submitted that the Commissioner erred in finding that Mr Uink was denied procedural fairness in relation to the inquiry into the three charges against him. It was argued that the Commissioner failed to take into account the following evidence:

It was argued that when regard is had to all of the relevant evidence it is clear that Mr Uink was fully aware of the nature of the charges against him and was given every opportunity to respond to them. Procedural fairness did not require Mr Van Der Ende to advise Mr Uink of every individual piece of evidence which contradicted his claim that he and VDB were not friends [see Kioa v West (1985) 159 CLR 550; Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233; Schaale v Hoechst Australia Ltd (1993) 47 IR 249].

If, contrary to the appellant's submissions, it is concluded that Mr Uink was denied procedural fairness in relation to the inquiry into the charges against him then it was submitted that such a denial of procedural fairness did not result in the termination being harsh, unjust or unreasonable [see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 429-430 per Brennan CJ, Dawson and Toohey JJ; and at 468 per MrHugh and Gummow JJ].

The procedures to be adopted in conducting a Departmental disciplinary inquiry are dealt with in the Public Service Discipline Handbook [see Exhibit K2 in the proceedings below]. Paragraph 4.76 states:

Paragraph 4.81 provides that the Inquiry Officer is not bound by the rules of evidence and may inform himself or herself in any manner he or she sees fit. It also states that primary sources of evidence are preferable to secondary ones, disputed facts should if possible be corroborated and hearsay evidence should only be used for corroboration or where otherwise unavoidable.

In the decision subject to appeal the Commissioner concluded that Mr Uink had not been provided with:

- a proper investigation; or

- a proper opportunity to respond before his employment was terminated.

In reaching this conclusion the Commissioner took into account the following factors:

In our view the Commissioner's conclusion was reasonably open to her.

Two particular matters relating to the Inquiry merit comment. The first relates to Mr Uink's request to the Inquiry Officer that he have regard to a statement from Mr Hughes. In the proceedings below Mr Hughes gave evidence which corroborated Mr Uink's testimony in a number of respects, including:

- the absence of a friendship with VDB;

The Inquiry Officer did not contact Mr Hughes in relation to his statement, nor did he identify the statement as one of the matters he had regard to in reaching his conclusion [see Exhibit R2 in the proceedings below]. Mr Hughes statement was shown to a policy expert, Ms Conroy, and the Inquiry Officer accepted Ms Conroy's views in preference to those advanced by Mr Hughes in his statement. The following exchange took place during the course of Mr Van Der Ende's evidence in the proceedings below:

The Inquiry Officer did not contact Mr Hughes to seek to resolve any inconsistencies between his statement and Ms Conroy's views. He simply accepted the views expressed by Ms Conroy.

The appellant submits there was no breach of procedural fairness in not seeking to interview Mr Hughes. The Inquiry Officer had a detailed statement from Mr Hughes. The respondent asked him to speak to Mr Hughes and he did not.

In our opinion it would have been an appropriate, prudent and fair course of action for the Inquiry Officer to speak to Mr Hughes to discuss and investigate those matters from his report with which he disagreed.

Mr Hughes was available. All it required was a telephone call to Canberra. This is particularly significant since the outcome of the investigation was termination, not some lesser penalty. A requirement to speak to a witness whose evidence you otherwise intend to disregard is not onerous.

If an employee raises an issue that can be investigated or a witness who can be interviewed about a matter raised in his defence an employer should attend to it where it is practicable to do so. There was no physical impediment or no need for speed that mitigated against the Inquiry Officer interviewing Mr Hughes in this case.

The second matter we wish to note concerns the failure to provide Mr Uink with documents which formed the basis of Mr Van Der Ende's dismissal determination. In this regard we refer to Ms Conroy's report in particular. The failure to provide this document appears to be a breach of the Department's own guidelines for the conduct of disciplinary inquiries.

We accept the appellant's submission that in conducting a disciplinary inquiry an employer is not required to adopt the standards applied to a judicial inquiry. In this regard we adopt the following remarks by Heerey J in Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at 252:

It is clear from the above extract that what is required is that the employer take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. That did not occur in this case. Both of the points we have referred to above highlight the inadequacy of the Inquiry. The Inquiry Officer did not do all that was necessary. All of the relevant material was not considered and this applicant was not given certain documents which were relied on by the Inquiry Officer. In our view the Inquiry was flawed and Mr Uink was not accorded procedural fairness. This failure was not a mere technical breach and when considered with the other circumstances in the case there was a sufficient basis for the Commissioner to conclude that the termination was harsh, unjust or unreasonable.

The Role of the Commission

It was submitted that an application under s.170CE(1) of the Workplace Relations Act 1996 (the Act) is not an application for merits review of the decision of the employer to terminate the employment of the employee, as is provided for by s.63D of the Public Service Act 1922. The question of whether a termination was `harsh, unjust or unreasonable' is to be determined in light of the facts as they appear at the relevant time. It was argued that provided an employer discharges the obligation to investigate the facts, a dismissal is not `harsh, unjust or unreasonable' merely because it later appears that the true facts differed from those which appeared at the time of the decision to terminate the applicant's employment: Gregory v Phillip Morris Limited (1988) 24 IR 397.

Two further general observations were advanced in relation to the role of the Commission in a 170CG arbitration.

First, where a dismissal is based upon the alleged misconduct of an employee, the employer will satisfy the evidentiary onus upon it if,:

Second, where the termination is for misconduct and the employer honestly believes, on reasonable grounds after sufficient inquiry, that the employee has been guilty of serious misconduct, a `valid reason' exists for the termination within the meaning of s.170CG(3) of the Act [see Sangwin v Imogen Pty Ltd].

In the circumstances of this case it was submitted that there had been a full and extensive investigation into the three charges made against Mr Uink carried out by Mr Van Der Ende. Mr Uink was given every reasonable opportunity and sufficient time to answer those charges. In making his decision in relation to the charges Mr Van Der Ende had reasonable grounds for believing, on the information available at the time, that Mr Uink was guilty of the misconduct alleged. The fact that the Commission, after conducting a review of the termination decision on the merits, reached a different conclusion to the one which Mr Van Der Ende arrived at, does not make Mr Uink's termination `harsh, unjust or unreasonable' within the meaning of the Act.

In the proceedings before us Mr MacLiver, appearing for the appellant, conceded that if we confirmed the Commissioner's conclusion that Mr Uink was not accorded procedural fairness then his point in relation to the role of the Commission does not arise [see Transcript, 31 July 1997, 22 at lines 28-35]. If the inquiry was unfair then the Commission may investigate the merits of the matter itself. The appellant's concession in this regard accords with the authorities. If the relevant facts are not clear then the employer has an obligation to establish those facts before dismissing an employee. As Lord Mackay of Clashfern said in Smith v City of Glasgow District Council [1987] IRLR 326 at 329:

On the basis of our conclusions with respect to the fairness of the inquiry we do not need to deal with the submissions set out above. However, as the point was fully argued we will make some brief observations.

The appellant says that the termination cannot be harsh, unjust or unreasonable because it was determined in a reasonable fashion on the facts available at the relevant time. The employer relies on the following statement in Gregory v Philip Morris Ltd (1988) 24 IR 397 at 412 per Wilcox and Ryan JJ:

Further their Honours said at 413:

In this case the appellant submits that the Commissioner erred in concluding that the facts were different from those determined by the Inquiry Officer or she reached a different conclusion on the merits.

Counsel for the appellant also relied on the following extract from the decision of the South Australian Industrial Commission in Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229-30:

In our view the authorities relied upon by the appellant require some reconsideration in the light of the High Court's decision in Byrne v Australian Airlines Limited (1995) 185 CLR 410 in which the Court expressed approval of part of the judgment of von Doussa J in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456.

In Lane v Arrowcrest Group Pty Ltd, von Doussa J considered the example of the dismissal of an accountant who held a position of trust where it was discovered after the dismissal that the accountant had been systematically embezzling money from the employer. His Honour said that it would be astonishing if the employer could not resist an allegation that the dismissal was harsh, unjust or unreasonable by pointing to those facts discovered after the dismissal, so long as they concerned circumstances in existence when the decision was made. His Honour concluded at 456:

The above conclusion was approved by the High Court in Byrne v Australian Airlines Limited. At 430 their Honours Brennan CJ, Dawson and Toohey JJ said:

We note here that it would seem to us that facts which existed at the time of a dismissal but only come to light after the dismissal may also render the dismissal harsh, unjust or unreasonable.

In our view the question of whether or not a termination was `harsh, unjust or unreasonable' within the meaning of s.170CG is to be determined on the basis of the circumstances in existence when the decision to terminate the employment was made. In this regard the Commission is not bound by any determination of facts made by an inquiry conducted by the employer.

The Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was `harsh, unjust or unreasonable' provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.

Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:

Findings made by an inquiry established by the employer will be relevant to the Commission's determination of the issues before it provided it is established that:

As we have already noted that above elements were not present in the inquiry relevant to this case.

Even where the findings of an employers enquiry are reasonable the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the misconduct [Byrne v Australian Airlines Ltd at 465 per McHugh and Gummow JJ].

Evidentiary Issues

A number of points were advanced in relation to the Commissioner's alleged failure to take into account relevant evidence [see pp 4-9 of Exhibit A2], in particular:

Before turning to the arguments advanced by the appellant we wish to briefly state our view regarding the role of an Appeal Bench in relation to findings of fact made by a member at first instance.

As noted in Pham v Taubmans Pty Ltd [print P2322, 27 June 1997 per Ross VP, Drake DP and Cargill C], an Appeal Bench would be very reluctant to reverse a finding of fact made by a member at first instance and would only do so if satisfied that any advantage enjoyed by the member below as a result of hearing the relevant evidence was not sufficient to justify the findings made. As his Honour Mr Justice McHugh said in Abalos v Australian Postal Commission [(1990) 171 CLR 167 at 178:

Further, a finding of fact made by a member at first instance based, even partly, on the credibility of witnesses should not be set aside on appeal even where the Appeal Bench thinks that the probabilities of the case are strongly against that finding of fact. If a finding made by a member at first instance depends to any substantial degree on the credibility of a witness, that finding must stand, unless it can be shown that the member at first instance:

- acted on evidence inconsistent with facts incontrovertibly established by the evidence;

- acted on `glaringly improbable' evidence; or

Where a member at first instance resolves a conflict of evidence between witnesses the subtle influence of demeanour on the member's determination cannot be overlooked. This is so even where the member at first instance made some observations about the demeanour of the witnesses and their manner of giving evidence but did not expressly rely on demeanour in making any findings of fact: Jones v Hyde (1989) 85 ALR 23 at 27.

Further, it does not necessarily follow that because a member at first instance makes no express reference to demeanour and credibility that such factors played no part in any findings of fact made: Martin v Option Investments (Aust.) Pty Ltd [No. 2} [1982] VR 464 at 468; Ablos v Australian Postal Commission (1988) 171 CLR 167 at 179. As Lord Sumner put it in SS Honestroom v SS Sagaporack [1927] AC 37 at 47:

The position is different when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest. In such circumstances an Appeal Bench is in as good a position as the member at first instance to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the member below. Of course in deciding what is the proper inference to be drawn the Appeal Bench will give due respect and weight to the conclusion of the member at first instance. But if after taking such matters into account an Appeal Bench concludes that the decision subject to appeal was wrong, they should correct it: Warren v Coombes (1979) 142 CLR 531 at 552-553; The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525.

We make two final observations in relation to the review, on appeal, of findings of fact.

1. There is no obligation to make findings about inconsistencies in evidence in respect of peripheral matters which throw no light on the real issues in the case: Jones v Hyde (1989) 63 ALJR 349 at 351.

2. In the event of an inconsistency between a witness's evidence and a member's findings of fact, then the member must be taken to have rejected that evidence: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.

We have applied the general observations set out above to the determination of the matter before us.

In response to the appellant's submissions that there was no evidence to support the Commissioner's findings the respondent tendered two documents. Exhibit R3 is a Summary of Evidence in support of the Commissioner's findings. Exhibit R4 is a response to the matters of evidence raised by the appellant.

The appellant submitted that the Commissioner did not take a balanced view of the evidence. She selected various parts of the evidence and rejected others. In our view the Commissioner did consider all the evidence. By inference she has rejected the evidence that she has not positively accepted. In our view the findings and conclusions made by the Commissioner were reasonably open to her.

The first particular issue identified by the appellant relates to the Commissioner's decision to restrict her consideration to whether there was a relationship between Mr Uink and VDB of a private or personal nature. The appellant submitted that the Commissioner should have considered the evidence which demonstrated that Mr Uink and VDB were `close personal acquaintances'.

We do not think that the Commissioner erred in the manner suggested by the appellant. We have already set out Departmental Instruction CL96007 [see pp 2-3 infra]. In the proceedings below a number of witnesses gave evidence in relation to Instruction CL97007.

Mr Robert Hentry said that the relevant aspect of the Instruction focussed in whether the officer has a relationship in a private capacity. If there was a personal or private relationship then the possibility of a conflict of interest arose. If there had been a previous work friendship but there was no private relationship between a customer and an officer, there would not be a conflict. Mr Hentry is a DSS Area Privacy Officer.

Mr Trevor Sainsbury, the Gosnells Regional Manager, took a narrower interpretation of the Instruction than that advanced by Mr Hentry. Mr Sainsbury said that he would be concerned about a supervisor dealing with a claim by a former employee. He did not limit his concern to circumstances in which more than a work relationship existed.

The Commissioner preferred Mr Hentry's interpretation of the National Instruction for the following reasons:

The Commissioner applied Mr Hentry's interpretation of the National Instruction to the matter before her and concluded:

In our view the approach taken by the Commissioner, and her conclusion, were reasonably open to her.

The other issues raised by the appellant relate to the payment to VDB of the job search allowance and the lump sum advance payment. These issues are central to charges Bond C in the proceedings below. Mr Uink's evidence was that he had simply applied the local practice adopted by staff at the Gosnells office. Mr Hughes, an ASO 4 in the Newstart section at the Gosnells office, corroborated Mr Uink's testimony in relation to the requirements and processes for dealing with transactions on Newstart and lump sum advances.

Ms Catherine Conroy also gave evidence, on behalf of the Department, about eligibility for Newstart allowance and lump sum payments. Ms Conroy disagreed with the interpretation applied by Mr Uink and Mr Hughes. Ms Conroy also said:

The approach adopted by the Commissioner was reasonably open to her. The Commissioner was entitled to prefer the evidence from the officers actively engaged in dealing with customers, rather than the evidence of those more removed form the counter environment.

We also note that in the course of his submissions Mr MacLiver referred to a Departmental policy in respect of advance lump sum payments which was inconsistent with the relevant provision of the Social Security Act [see Transcript, 31 July 1997, 32 at lines 15-35, and 33 at lines 1-26].

In considering whether there was misconduct by Mr Uink in the performance of his duties in terms of charges B and C the Commissioner applied a test of whether Mr Uink and performed his duties in a manner which demonstrated a wilful or improper disregard for the essential conditions of his contract of service in the sense referred to in North v Television Corporation (1976) 11 ALR 599. The appellant submitted that the application of such a test amounted to a legal error and the test which the Commission was bound to apply was whether, in the event that the conduct set out in charges B and C was established, such conduct amounted to `improper conduct as an officer' within the meaning of s.56(d) of the Public Service Act 1922.

We do not agree with the appellant's submission on this point. The Commission's task in arbitrating s.170CE(1) claims is to determine whether or not the termination was `harsh, unjust or unreasonable' having regard to the factors set out in s.170CG(3). There is no warrant for in imposing an additional requirement upon the Commission that it determine whether or not the relevant conduct amounted to `improper conduct as an officer' within the meaning of the Public Service Act 1922.


Section 170JF deals with appeals from orders arising from the determination of whether a termination was harsh, unjust or unreasonable. It states:

Section 45(2) provides that a Full Bench shall grant leave to appeal if `in its opinion, the matter is of such importance that, in the public interest, leave should be granted'. Having regard to the terms of s.170JF(2) we think that leave to appeal should generally not be granted unless the appellant satisfies the Commission that there is an arguable case that the member at first instance had either made a legal error or had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave merely to substitute its decision for the decision under appeal.

Leave to appeal is not a mere formality and a substantive submission is required if leave is to be granted.

The requirement for an arguable case of either legal error or that the discretion has been miscarried means that the appellant must demonstrate that their case has a reasonable prospect of success. This requirement is rigorously applied in order to ensure that the standing and purpose of Commission proceedings at first instance are not diminished by automatic or unwarranted access to an Appeal Bench.

We are satisfied that the conclusion reached by the Commissioner in the decision subject to appeal was reasonably open on the material before her.

The appellant failed to establish an arguable case of either legal error or that the discretion was miscarried. Accordingly, we have decided to refuse leave to appeal and we dismiss the appeal. The stay order issued in transcript on 7 July 1997 is set aside.




P. MacLiver, of counsel, for the appellant.

A. Hodge, of counsel, and M. Keogh for D. Uink.

Hearing details:



July 7 (videoconference);

July 31;

September 4.

Decision Summary


Appeal - termination of employment - unfair dismissal - unlawful termination - administrative officer, Commonwealth employment - appeal against reinstatement - employee charged with misconduct under PS Act - held onus on parties to adduce evidence at original hearing - fairness of termination to be based on circumstances existing when decision to terminate made - AIRC not bound by any determination of facts arising from employer's inquiry and no additional requirement on AIRC to determine whether officer's conduct improper under PS Act - Appeal Bench reluctant to reverse findings of fact in original hearing and in as good a position as member at first instance to decide inferences arising from facts - Commissioner considered all the evidence and decision reasonably open to her - DSS should have afforded applicant procedural fairness - leave to appeal should only be granted where member at first instance appears to have made a legal or factual error or acted ultra vires - appellant failed to make such a case - leave to appeal refused - appeal dismissed - stay order set aside.

Appeal by Department of Social Security against decision and order of Dight C in Print P1881

C No 60390 of 1997

Print P7680

Ross VP

Drake DP

Palmer C


24 December 1997

Printed with the authority of the Australian Industrial Relations Commission

<Price Code F>

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