AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeals against order [Print T2962]
issued by Commissioner Smith on 2 November 2000
Aurora Energy Pty Ltd
(C No. 70342 of 2000)
P Davison
(C No. 70346 of 2000)
SENIOR DEPUTY PRESIDENT WATSON |
|
SENIOR DEPUTY PRESIDENT WILLIAMS |
|
COMMISSIONER HOLMES |
MELBOURNE, 8 MARCH 2001 |
Appeal against order - termination of employment - leave to appeal refused.
DECISION
[1] These are appeals against an order [Print T2962] of Smith C (the Commissioner) in U No. 70032 of 2000, giving effect to a decision in Print T2453. The matter was initiated by an application by Peter Davison (Davison), pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) in respect of the termination of his employment by Aurora Energy Pty Ltd (Aurora).
[2] In his decision, the Commissioner found that there was no valid reason for the termination (s.170CG(3)(a) of the Act), and that, in light of that finding, it was not necessary to make findings in respect of other elements of s.170CG(3) and that the termination was harsh, unjust and unreasonable. In respect of remedy, the Commissioner decided and ordered that Davison be appointed to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination, with continuity of service, but declined to make an order in respect of remuneration lost between the termination and reinstatement.
[3] Aurora appealed against the decision that there was no valid reason for the termination. Davison appealed against the failure to make an order in respect of lost remuneration.
[4] The Davison appeal was lodged out of time, but accepted by us, without objection by Aurora.
[5] The Commissioner's decision in respect of s.170CG(3) is set out in paragraphs 30 to 43 of his decision. His decision in respect of remedy is set out at paragraphs 44 to 49. They are set out in Print T2453. Little benefit would arise from the repetition of the reasons for the purpose of this decision.
[6] Aurora advanced the following grounds of appeal:
· Grounds 1 & 6:
The Commissioner erred in finding that there was no valid reason for the termination. His decision was against the weight of the evidence and misconceived part of the evidence.
· Ground 2:
The Commissioner erred in his approach to the evidence of Davison as to his conduct, in attributing a different meaning to the actual words of the evidence in light of his observations as to the way in which the evidence was given.
· Grounds 3 & 4:
The Commissioner erred in finding the person who made the termination decision within Aurora, Mr D Smith, based his decision in part on wrong information contained in minutes of meetings provided to him. The Commissioner erred in not making any finding as to what information was incorrect. Further, if such a finding were made it would have required a finding that the incorrect matters were insignificant. The Commissioner erred in finding that the decision to terminate was vitiated by Mr D Smith not being apprised of all relevant considerations.
· Ground 5:
The Commissioner erred in failing, against the weight of evidence, to find that from at least Christmas 1999 until the time of termination in March 2000, Davison had made a deliberate decision that he would not carry out work in the manner required by his employer and gave effect to that decision and also erred in failing to make a finding that the applicant had repudiated his contract of employment.
[7] The appeal grounds raise matters of law and discretion. Aurora submitted that the Commissioner made errors of law in failing to provide reasons for finding that minutes provided to Mr D Smith were incorrect and in what respect they were incorrect and in failing to make a finding as to the conduct of the applicant. The other issues raised on appeal by Aurora go to the discretion exercised by the Commissioner.
Errors of Law
[8] We are not satisfied that the Commissioner failed to make relevant findings or to provide reasons for his decision in respect of either the conduct of the applicant or the minutes provided to D Smith.
[9] In the matter below, Aurora urged the Commissioner to make a finding that Davison failed to conduct tests required of him and falsified records and that such conduct constituted a deliberate and persistent dereliction of duty.
[10] In his decision, the Commissioner made findings as to the conduct of Davison and provided reasons. He found:
· Davison had recorded information not supported by his tests in that he failed to carry out required procedures [para 34];
· on the face of transcript, Davison's evidence was damning, but the manner of his giving his evidence reflecting uncertainty, acceptance and resignation, and the evidence of other witnesses, most notably Mr Woodward, caused the Commissioner to question the extent of the alleged record falsification [para 15, 34 & 36];
· inaccurate data may produce serious consequences [para 35] ;
· Davison resisted carrying out correct procedures, but the evidence did not support that this was a long-term approach. The evidence of Woodward suggested Davison's attitude to be a recent phenomena [para 36];
· the conclusion of Aurora that Davison's conduct was deliberate and persistent is not entirely supported by the evidence [para 36];
· the applicant visited all poles and carried out some tests;
· the applicant failed to carry out all of the tests required [para 40];
· the failure of the applicant to carry out the required test could impact upon public safety and compromise the respondent's records [para 40];
· the applicant's attitude was inappropriate during the time that his territory was changed and the demands of Green for a quota impacted on this attitude. In making such a finding it should not be construed that the attitude was to be excused [para 40];
· the applicant recorded results for tests not carried out. However, the extent of this failure is not known. It is accepted that the different method of carrying out the tests could lead to different results, ie the test for soft rot [para 40];
· the failure of the applicant to carry out the tests is, on the evidence, confined to a short period of time and other audits did not find a systematic failure to adhere to procedures [para 40];
· the alleged failure of the applicant to guarantee work is not clear and the subsequent retesting results are not conclusive of a systematic failure to carry out proper testing [para 40].
[11] We are satisfied that the Commissioner both made findings in relation to Davison's conduct and provided adequate reasons.
[12] In relation to the minutes relied upon by D Smith, Aurora submitted that the Commissioner failed to identify the basis upon which he found that minutes of the meeting were inaccurate and that D Smith was not acquainted with all relevant facts at the time of making the decision to terminate. We are satisfied that the Commissioner has identified the inaccuracies in the minutes by reference to the evidence of Green [para 21] and Smith [para 29]. The decision was explicit in relation to Green and clear in relation to Smith by reference to the latter's evidence. There is no error of law by the Commissioner in relation to the minutes. We reject the contention that the inaccuracies identified by reference to the evidence of Green and Smith were insignificant. They were relevant in that Davison was asked to deal with allegations which were incorrect and they contained inaccuracies as to the conduct of Davison, which was relevant as a matter of degree, in the context of a matter where the Commissioner was required to balance a range of considerations.
[13] We are unable to discern any error of law made by the Commissioner in relation to either the conduct of Davison or the minutes provided to D Smith.
[14] The approach of the Commission to an appeal against the exercise of discretion by a Member at first instance is that reflected in House v The King [(1936) 55CLR 499]. The High Court said at 504-505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge that they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
[15] We are not satisfied that Aurora has established that the Commissioner erred in exercising his discretion. We think that the particular findings made by him were reasonably open to him on the evidence and that his decision that there was no valid reason for the termination was reasonably open to him, upon balancing the range of considerations arising from the evidence before him at first instance.
[16] In the appeal Aurora put particular emphasis on the proposition that the Commissioner erred in assessing the conduct of Davison by reference to his observations of the giving of Davison's evidence. That point requires some comment.
[17] The Commissioner dealt with the evidence of Davison as follows:
"In the case of the applicant, there were a number of instances where he agreed that he had not drilled to that depth but had declared the pole to be sound. There is also evidence that he had not drilled at all. Whether the approach adopted by the applicant was one of shorthand or a deliberate attempt to deceive is not entirely clear from the evidence. His evidence was that he sound tested the pole by striking it with a hammer (the previous technique used to test poles).
It may be that the answers given by the applicant seem, on one view, to confirm that his entry was deliberately false. I am not so sure. The applicant was agreeable in his evidence to the point of accepting propositions in a way which indicated uncertainty but embraced a level of acceptance and resignation at the proposition put by the employer. Mr Wallace, in cross-examination, was careful to explain that he did not what to be unfair and on occasions asked the applicant if he wanted to reconsider his answer.
This has been a difficult area for consideration and assessment.
The other conflict in the reports prepared by the applicant and the audit went to the presence or otherwise of soft rot. In this connection the difference in the two reports may be explained, not by any dishonesty of the applicant, but by the different location of the tests. There is little doubt that the applicant was not carrying out the test according to directions. On the evidence this, by itself, had the potential to lead to different results. Again, the answers by the applicant conveyed the impression that he had not carried out the test at all, however he answered in such a way so as to raise a doubt in my mind if he had truly reflected on the question before he gave his answer. In considering the answers given to questions I have been cautious. As with the timely reminder given by Counsel for the respondent, it is important that the applicant be given `a fair go'. Importantly, `a fair go' must also be given to the employer and great care must be taken before clear evidence is given a meaning which the use of ordinary language would not permit. I have had the benefit of seeing the applicant give his evidence which would convey an entirely different understanding from a simple reading of the transcript." [paras 14-17]
"I will begin with the allegation that the applicant falsified records. There are many instances where the applicant admitted in evidence that he had entered information in his data sheet which was not supported by his actions, in that, he did not carry out the procedures necessary to obtain that information. I have already made reference to my apprehensions in relation to some of the evidence given by the applicant. On the face of the transcript the evidence is damning. However the attitude taken by the witness and the evidence of other witnesses causes me to question the extent of alleged record falsification." [para 34]
[18] In essence the Commissioner had regard to the manner in which Davison gave evidence, having observed uncertainty of Davison, whilst embracing a level of acceptance and resignation at propositions put by Aurora, and having considered the evidence of other witnesses. He considered all of these matters in assessing the import of Davison's conduct and questioning the extent of alleged record fabrication. Having reviewed the transcript, which on its face discloses some instances of acceptance by Davison of propositions put to him by Aurora in respect of tests he professed no clear recollection of, the advantage enjoyed by the Commissioner in hearing the evidence and having regard to the reliance by the Commissioner on the evidence of other witnesses in taking a cautious approach, we are satisfied that his approach and conclusions were reasonably open to him.
[19] It is not apparent to us that the Commissioner erred in exercising the discretion available to him. In the absence of any other basis for the granting of leave to appeal in the public interest, leave to appeal is refused.
The Davison Appeal
[20] The Davison appeal was directed to the decision of the Commissioner not to make an order in respect of remuneration lost pursuant to s.170CH(4) of the Act. Section 170CH(4) provides that:
"If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:
(a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment; and
(b) subject to subsection (5)-any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination."
[21] Davison submitted that the terms of s.170CH(4) were not materially different from the terms of s.170EE(1) of the Industrial Relations Act 1988. It was submitted that the Commissioner erred in not applying the approach to s.170EE(1) of Northrop J [in Johns v Gunns Limited, 60 IR 258] and Marshall J [in Klinenberg & Anor v I R Cootes Pty Ltd, 63 IR 370 and Ferry v Minister for Health, Western Australia, 60 IR 258], that being that an order in respect of remuneration lost would follow an order for reinstatement unless exceptional circumstances exist. It was submitted that the Commissioner erred in declining to make an order for lost remuneration in the absence of a finding that exceptional circumstances existed.
[22] We do not accept the interpretation of s.170CH(4) advanced for Davison.
[23] Section 170CH(4) provides a discretion to the Commission to make orders in respect of continuity of service and in respect of remuneration lost. That discretion:
· is to be exercised in the context of the object of Division 3 of Part VIA of the Act (found in s.170CA);
· is conditional upon an order for reinstatement pursuant to s.170CH(3);
· allows the making of any order `the Commission thinks appropriate' to maintain continuity; and
· any order `the Commission thinks appropriate' ... `in respect of the remuneration lost'.
[24] The provisions of s.170CH(4) are materially different from those in the former s.170EE(1). Section 170CH(4) provides that the exercise of the discretion available in s.170CH(4)(a) and (b) is undertaken on the basis of what `the Commission thinks appropriate'. Further, s.170CH(4)(b) provides a discretion for the making of any order to `cause the employer to pay to the employee an amount in respect of the remuneration lost' as distinct from the terms of s.170EE(b)(ii) of the Industrial Relations Act 1988 which provided a discretion to make `an order requiring the employer to pay to the employee the remuneration lost by the employee'. Finally, the discretion in s.170CH(4) is exercised within the context of s.170CA of the Act. The exercise of the discretion to decide on and work out remedies is conditioned by the intention to ensure a `fair go all round' is accorded to both the employer and employee.
[25] The statutory context in which the discretion in s.170CH(4) is exercised is materially different from that of s.170EE(1) of the Industrial Relations Act 1988. In our view, s.170CH(4) permits the making of orders in respect of continuity and/or remuneration lost, depending on what the Commission is satisfied is appropriate in the circumstances of a particular matter.
[26] Davison has not established an arguable case that the Commissioner erred in determining remedy. In the absence of any other basis for the granting of leave to appeal in the public interest, leave to appeal is refused.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
D Wallace for Aurora Energy Pty Ltd.
B McTaggart for P Davison.
Hearing details:
2001.
Hobart:
March 5.
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