C2002/1406, Transcript of Proceedings [2002] AIRCTrans 1981 (3 June 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT04093
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT LEARY
COMMISSIONER BLAIR

C2002/1406

APPEAL UNDER SECTION 45 OF THE ACT
BY ANZ BANKING GROUP LIMITED AGAINST
THE DECISION OF COMMISSIONER SIMMONDS
AT MELBOURNE ON 8 MARCH 2002 IN
U2001/570

MELBOURNE

10.08 AM, MONDAY, 20 MAY 2002

PN1

MR J. BOURKE: I seek leave to appear on behalf of the ANZ.

PN2

MR W. FRIEND: I seek leave with my learned friend MR K. FAROUQUE to appear on behalf of the respondent, MR LEVENDAKIS.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. No objection to leave. Leave is granted. We have listed the appeal subject to directions for production of written submissions. They have been received, and the purpose of the hearing this morning is to hear brief oral submissions in support of those submissions. Mr Bourke.

PN4

MR BOURKE: Thank you, your Honour. Your Honour, firstly I do seek leave to amend our notice of appeal to be in accordance with tab A of the appeal book dated 18 March 2002. I understand there is no objection to that.

PN5

MR FRIEND: That is correct, your Honour, I have got no objection

PN6

SENIOR DEPUTY PRESIDENT WATSON: Very well, leave is granted, Mr Bourke.

PN7

MR BOURKE: If the Commission pleases, these submissions will be in four parts. The first will deal with the nature of the appeal and the types of grounds that need to be made out. The second will deal with the errors we say the Commission made in considering the merits of the case. Essentially those criticisms concern, we say, errors of approach in assessing what is a valid reason and in coming to terms with whether the termination was harsh, unjust and unreasonable, and further we will be saying on any objective approach, when one looked at the whole case, that both findings adverse to us were not open. The third part of the submissions will deal with our complaints concerning the reinstatement order. And the fourth part, if the Commission pleases, is we will deal with the question of leave.

PN8

In terms of the nature of the appeal, there was extensive submissions put on behalf of Mr Levendakis. We accept that the decision of the Commission was one of discretion. That decision has to be reviewed on the principles set out in House v R, and essentially based on those principles we need to identify either that the Commissioner has acted on a wrong principle or taken into account irrelevant matters, or failed to take into account relevant matters, or made an error of fact, or in fact given undue weight to a matter or inadequate weight to a matter. And if the Commission pleases, could I just briefly take the Commission to the House v R decision, which has been subject to some examination in the Levendakis submissions. That is in the slimmer folder, Appellant's additional authorities. It is at tab 1, and the relevant passage of the majority is at 505, where some three lines down the court said:

PN9

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 ...(reads)... on the ground that a substantial wrong has in fact occurred.

PN10

And further on, at 507, about point 7 of the page, the court said:

PN11

In the circumstances, we have stated we do not think that we can say that the sentence, although severe, was unreasonable ...(reads)... or from giving undue weight to any circumstance or matter.

PN12

So that in fact an error can occur, not only by way of failing to take a matter into account, but giving undue weight to a matter, and also the other side of the coin, failing to give adequate weight to a matter. And that proposition is further discussed in the Miller decision, which is at tab 2 of the same folder at page 206. At about point 2 of the page the court quotes from Brideson number 2:

PN13

In determining whether leave to appeal from a registrar should be granted by the Commission, it would have been ...(reads)... or that the decision was plainly unreasonable or unjust.

PN14

So there is again a highlight of even failure to give sufficient weight to a matter or, if one finds the decision is plainly unjust, there is a proper basis for finding error. And in terms of the discretion, the wider the discretion, the more latitude an appeal court will accept in terms of a variation from what the appeal court may think is an appropriate result. But if there is a narrow discretion, it is - the authorities have said it can be easier to identify error, and on that basis if the appeal court come to a different view, they are in a stronger position,if there is a narrow discretion, to feel comfort that that outcome is unjust and to disturb it.

PN15

And on the authorities, unlike the House v R case, that was a sentencing case, very broad discretion where one judge may find a non custodial sentence, another judge may find custodial sentences appropriate and still come within the latitude of the discretion. But a finding in relation to an unfair dismissal case is being found by the courts to be a narrow discretion. There is limited latitude. And we say on any proper assessment of the facts, the latitude was not wide enough to make a finding there was no valid reason in this case, and to make also a finding that the termination was harsh, unjust and unreasonable.

PN16

SENIOR DEPUTY PRESIDENT WATSON: Why do you say it is a narrow discretion? Which authorities are you - - -

PN17

MR BOURKE: Well that is discussed, your Honour, in the Miller decision. If I can first go back to that, it is at tab 2 at 43, paragraph 43 of that decision, where there is a reference to discussion of this issue from Coal and Allied:

PN18

Discretion is a notion that signifies a number of different legal concepts. In general terms it refers to ...(reads)... forms a particular opinion or value judgment.

PN19

And then going on from that there is a discussion of the nature of the discretion in a termination case at paragraph 45:

PN20

In our opinion, insofar as the decision of Senior Deputy President here may be described as discretionary ...(reads)... are confined only by the subject matter and object of the legislation.

PN21

That issue is further explored in the Wan v Australian Industrial Relations Commission, which is provided in our primary folder, the larger folder, headed: Appellant's submission, chronology and authorities, at tab 4, where the court discussed the greater ease of identifying error where there is a narrow exercise of discretion, at paragraph 27.

PN22

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN23

MR BOURKE:

PN24

In Coal and Allied, the High Court held that the nature of an appeal pursuant to section 45(1) did not vary according to the nature ...(reads)... the narrower the discretion, the easier it is to demonstrate error.

PN25

So we say that is the starting point in terms of assessing the Commissioner's decision below. Now, in terms of going to an analysis of the Commissioner's approach to the merit side of the case, the Commissioner correctly stated in his decision that he had to have regard to the matters set out in section 170CG(3), and the first of those items, which he was obliged to examine, was whether the termination was for a valid reason. And we say, on any objective view of the facts in this case, we should have met the first hurdle, at least met the first hurdle required of an unfair dismissal case. It is never intended that that would be a high hurdle to meet. The touchstone is the decision of Saveachandran v Peteron Plastics. It needs to be sound, defensible or well-founded. And in discussing that proposition, I will not take you to the authority, but it is at tab 6 of the main folder, at page 373.5, Northrop J made the point:

PN26

It has just got to be applied in a practical commonsense way, and two, it is not intended to impose a severe barrier to an employer's right to dismiss an employee.

PN27

Now, we say, which is our ground number 1, the Commissioner did not approach the task of assessing whether there was a valid reason correctly. Our reasons for termination effectively involve Levendakis's conduct over three days from 27 through to 29 December 2000 in a context of a past history over that year of 2000, which was very bad, and we say the Commissioner essentially focussed on one issue over that three day period. That is in relation to the last day, the 29 December, did Levendakis's absence from the office extend the outage or down-time to the ANZ's computer system.

PN28

That was one act potentially aggravating factor in his conduct over the three days, and we say in fact dominated the Commissioner's approach. He failed to properly assess the other three days, and this is in relation to an outage that was Australia and New Zealand wide. He found, as he was entitled to do on the evidence, that Levendakis's conduct did not extend the outage, and effectively that was essentially the end for us in attempting to establish a valid reason.

PN29

He removed from the equation of assessing valid reason, the overall period of the conduct between the 27th and the 29th, essentially adopting the view, because it was not inconsistent with previous behaviour - that is his decision, paragraph 30 - it is essentially put to one side, and there was a focus on one little part of the reasons. He essentially adopted what I could describe as a "but for" causation approach. He found that but for that particular reason, we would have gone down the performance improvement plan path, we wouldn't have treated it as misconduct, and we therefore didn't have a valid reason for changing from the performance improvement plan strategy to a misconduct strategy.

PN30

His error then becomes a re-working of the test of valid reason, from whether there was a valid reason for the termination, which is really substantive focus, in terms of the conduct, to whether there was a valid reason for not following the performance improvement plan. And that is not the statutory requirement. If I can go to the decision, which is tab B of the court book. At page 13 - your first tab in paragraph 29, the Commissioner identifying that he needs to go through the process under CG(3). And then you have got three paragraphs devoted to whether there was a valid reason for termination. And if I could just read parts of those paragraphs, they are critical:

PN31

I do not consider the Company had a valid reason for terminating Mr Levendakis in the circumstances that existed in January 2001. It is acknowledged that Mr Levendakis ...(reads)... and required review, did not occur.

PN32

And this is critical:

PN33

Mr levendakis's attendance in the period 27 to 29 December was poor but not inconsistent with his previous behaviour.

PN34

Then the Commissioner goes on:

PN35

But for the outage on 29 December 2000, it is probable that the Company would not have proceeded under the policy, and there is little doubt that if there...(reads)... did not cause the delay in remedying the defect.

PN36

And the Commissioner then sets out his analysis of the facts to coming to that conclusion, and if I could go over the page - - -

PN37

COMMISSIONER BLAIR: Mr Bourke, just before you do - - -

PN38

MR BOURKE: Sorry.

PN39

COMMISSIONER BLAIR: - - - I think that there should be a correction. You said in:

PN40

... but for the outage on 29 December 2000, it is probable the Company would not have proceeded ...

PN41

You use the term, "not". It is not in the decision.

PN42

MR BOURKE: I am sorry, I apologise.

PN43

COMMISSIONER BLAIR: I just thought the record should be straight.

PN44

MR BOURKE: Yes, thank you. Now, going to the last paragraph, paragraph 31, the Commissioner went on:

PN45

I accept that had Mr Levendakis been at his desk, he would have been able to be contacted more quickly ...(reads)... would have sped up the process. On the basis of that conclusion -

PN46

and that is a focus on his analysis at paragraph 31 that he did not play a role in extending the outage -

PN47

there is no valid reason for the company to change the approach of Mr Levendakis's poor attendance from performance improvement to misconduct.

PN48

Now, we say that is critical. There has been a reformulation of the statutory requirement to consider whether there was a valid reason for termination and the Commissioner has reformulated that to is there a valid reason for a change in the ANZs approach from the performance improvement plan to misconduct. Now, that is an essentially procedurally focused approach to assessing valid reason, whether a valid reason exists and we say the approach of assessing whether valid reason exists is primarily orientated towards substantive matters.

PN49

If there are procedural criticisms, they can come in in relation to other matters and there is other procedural requirements in CG(3), but that domination of the performance improvement plan to put to one side his poor attendance and to focus solely on the fact that we had no valid reason to change tack because he did not extend the outage, we say is wrong. You have to look at the entire basis for the reasons, not what may have tipped the balance. If there are reasons at 1 to 6, but 6 has possibly tipped the balance, you still look at 1 to 6 in an objective task and we say the Commissioner has failed to do that.

PN50

Further, there has been no meaningful assessment of that conduct over that three days in the context of what we say is very poor conduct over 2000 and the way we put the case, that this was also really the last straw for the ANZ and would be the last straw for any employer. It was never argued below that the only reason was that we thought he had extended the outage. The way it was put by Levendakis below was that it was one of the significant reasons, it was a significant driver for the bank. That is transcript 3964 to 3967.

PN51

And further, in terms of the Commission's objective task in assessing the seriousness of the conduct, that doesn't end because fortuitously it wasn't his area of responsibility that caused the outage, so he wasn't a key player in fixing the problem because his absence which the Commissioner found, his absence from work would have extended the time available to contact him and the evidence was that it was a lot longer time involved, 10 to 15 minutes, logging on at home as distinct from at work and that the evidence clearly showed that his conduct created an exposure of potential aggravation of an outage that would occur when he is playing a major troubleshooting role.

PN52

And the fact that the facts on that day was found that he wouldn't have made any difference, really at the end of the day, should not make that much difference. It is the conduct itself and the exposure to the Bank that he created, that should be seen as important. Now, the other thing that hurts us is that we say not only was the approach wrong in relation to valid reason, but that became a critical part of the overall assessment as to why the termination was found to be harsh, unjust and unreasonable. So it had a very powerful effect on the overall approach of the Commissioner on the merits. And if I can go to paragraph 42 of the decision under the heading, Conclusion:

PN53

Having regard to the above mentioned matters, I consider that the termination of Mr Levendakis in the circumstances of this case was harsh, unjust and ...(reads)... that he was responsible for the delay in remedying ...

PN54

I think there should be a "not" there:

PN55

... was not responsible for the delay in remedying the outage on 29 December 2000.

PN56

So again he has repeated, in this critical paragraph of Conclusion, the critical role played in his failure to find a valid reason, and the basis for which he has found that, on the conclusion that he did - that Levendakis did not extend the outage. And the procedural focus in relation to assessing that question also becomes clear when one reads the second part of that paragraph under Conclusion:

PN57

To the extent that his poor attendance in the period 27 to 29 December 2000 formed a part of the reason, then there was no valid reason for treating it otherwise than in accordance with the agreed performance improvement plan instituted in October 2000.

PN58

So again in that critical paragraph he has reformulated the question of valid reason, and he has explained that because there was no valid reason for changing tack between performance and prove plan to misconduct, I am left with one sole question which is, did he extend the outage, no, he did not. We lose on valid reason and it is a critical part of the case.

PN59

SENIOR DEPUTY PRESIDENT WATSON: Whilst it might raise a procedural issue, it also raises a substantive one, does it not, as to whether the conduct found to have occurred - whether the response to that of termination was proportionate to the conduct? And the Commissioner has plainly found that other processes for dealing with that conduct would have been more reasonable?

PN60

MR BOURKE: Well, we would say in terms of the overall reasonableness, you can factor in whether we should have gone down the performance improvement path, but that should not have been really the end game approach in assessing the valid reason. You should have really looked at the substantive conduct and said, look, on an objective approach, does that really give you to, to get to base 1, a valid reason for termination, and now I will look, in terms of whether it is harsh, or as your Honour used the expression, reasonable, I'll look at whether the performance improvement plan should have been used.

PN61

SENIOR DEPUTY PRESIDENT WATSON: But one could read the reasoning as a finding in effect, that the conduct did not warrant termination.

PN62

MR BOURKE: Well, that is not the way - the Commissioner has said that, but because of no basis of changing tack from the performance improvement plan. There is no indication of an independent assessment of the seriousness of the conduct separate from the improvement plan. When one reads this decision almost any analysis of any issue is dominated by the performance improvement plan. At the end of the day we will - sorry.

PN63

SENIOR DEPUTY PRESIDENT WATSON: Performance improvement plan exists in this case, but there are numerous decisions which reach a finding that termination was harsh, unjust or unreasonable, that some other response to the particular conduct was appropriate. In this case there happened to be another process performance improvement plan in train. But in other cases there was no process at all. But nonetheless a finding that the result of termination was harsh, unjust and unreasonable.

PN64

MR BOURKE: We do not take issue with the Commissioner's entitlement to take into the reckoning of whether it is harsh, unjust and unreasonable, the existence of a performance improvement plan. But we say it should not have effectively dominated the approach of whether there was a valid reason for termination. That is essentially a substantive oriented question looking at the seriousness of the conduct and it did not become a question of, was there a valid reason for departure from the plan?

PN65

DEPUTY PRESIDENT LEARY: So are you saying that the valid reason is because the performance plan wasn't followed, rather than the conduct?

PN66

MR BOURKE: That is correct. That is what the Commissioner has done. And has found that we had no valid reason for not following the plan. And then he has moved from that to the very dangerous area of focussing on - speculating on our subjective mind on what caused us to shift from the performance improvement plan. And he has felt that is because of the - we believe there was an extension of the outage, because of Levendakis, and said there was no basis in fact for that, we lose. And that come sin the passages I have taken you through. That is repeated in the Conclusion section, and in the three paragraphs which were discussed, CG(3)(a).

PN67

And we say, in a sense, the Commissioner's approach has somehow put the overall lack of attendance over these three days to one side, because it fell within the umbrella of the plan, and failed to assess the seriousness of it. And that is a context, we say, where even on those facts there was no basis for that. The evidence was that he had many warnings regarding attendance. So when you add in the performance improvement plan at the end of that, why should that make it less serious? Why should that result in your failing to attend work be put to one side? Particularly as this was a case where Levendakis did not say, oh, look I knew there was all these procedures, I could sit back and not turn up to work with that comfort. He gave evidence that he knew his job was in jeopardy if he did not improve once that performance improvement plan was put in place.

PN68

SENIOR DEPUTY PRESIDENT WATSON: But the Commissioner has addressed that to some extent in paragraph 40 where Levendakis's failure to appreciate, or alternatively disregard the warnings was found by the Commission to be a factor weighing against him.

PN69

MR BOURKE: And we say, your Honour, the fact that the Commission made that finding makes it even more inappropriate that he then approached valid reason on the basis that because his attendance was not inconsistent with the performance and his attendance in the past, I can effectively put it to one side. It is more inappropriate that he adopted that view when he had found that Levendakis at the time of the performance improvement plan, knew he had to improve or his job would be in jeopardy.

PN70

[10.41am]

PN71

SENIOR DEPUTY PRESIDENT WATSON: In his conclusion the Commissioner has considered all of the abovementioned matters, all the matters he took into account, noted some that he had particular regard to, and came to a conclusion on the balance of all of those factors.

PN72

MR BOURKE: The reference of all the above matters is in paragraph 42.

PN73

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN74

MR BOURKE: And at the moment we are looking at a discrete attack, which is one of the statutory requirements is to assess whether there was a valid reason: and if you get that wrong, you are in error. We say when you examine the analysis he has disclosed as to that question whether there was a valid reason, there has been error in terms of approach. We do not take issue with he is otherwise entitled to take all matters into account, including the existence of a performance improvement plan. We say he used that the wrong way, and we will deal with that later in the submission. But there has been a clear delineation in the way the Commissioner has crafted the decision. The reasoning, the disclosure of his reasoning commences at paragraph 30 through to 42, and you have a clear disclosure of his thinking process.

PN75

SENIOR DEPUTY PRESIDENT WATSON: And he has found some factors favour a finding of harsh unjust or unreasonable, some factors work against such a finding, and others such as the service issue are neutral.

PN76

MR BOURKE: That is right.

PN77

SENIOR DEPUTY PRESIDENT WATSON: The length of service was favourable, but the fact of seniority is a factor against him in weighing that balance.

PN78

MR BOURKE: That is correct. We do not argue - some of the factors he took into account, we do not argue with. But in terms of assessing the statutory requirement of dealing with Part A of CG3, he got it wrong. And we will ultimately say he did not make a proper reckoning in terms of the question of harsh, unjust or unreasonable; a proper reckoning of the seriousness of the conduct over the three days, and his serious conduct over the year 2000, that was not properly reckoned into the equation, on a proper reading of the decision. Now, can I deal with - this is grounds 4 to 6 and 9. The role of the performance improvement plan and how that should have been treated, is essentially that has played the role of the conduct over the 27th to the 29th December been put to one side on the question of valid reason and as to the overall merits of the case.

PN79

A focus - the Commissioner concentrating on whether the outage was extended or not, and we say that was wrong. Now, just on that question, the Commissioner, in just the heavy weight he placed on this, makes the point in paragraph 38, that we are not entitled in terms of the merits of the case to treat this as a misconduct issue without, one, giving a prior warning, and, two, conducting a review. Now, that is a very substantial barrier that he felt should be imposed by the existence of the performance improvement plan, and that is discussed, as I said, in paragraph 38:

PN80

I consider that the actions of the company in treating Mr Levendakis' attendance, behaviour and performance ...(reads)... and without conducting a required review.

PN81

Now, we say that raising of the procedural bar, in terms of us having an ability to deal with Mr Levendakis' conduct by way of misconduct was too high, given too much weight, and particularly as that is also part of his approach in relation to valid reason, which we say should be more substantive orientated. This is in a situation, as indicated in the decision at page 7.8, that he knew at the time of the performance improvement plan - he was told he had to improve, or lose your job.

PN82

At the end of the day, we feel that the performance improvement plan should have been treated like another warning; another further placement on notice, after he had already had many verbal warnings about his poor attendance, and should not have resulted in effectively what would other be a neutralising of all those verbal warnings he had, to the point where we now have to give him another warning and have a review of his conduct, irrespective of the circumstances of the seriousness of that conduct between the 27th and the 29th.

PN83

Further, we say it was inappropriate, and the Commissioner erred on any objective assessment of the facts, to find that his behaviour between the 27th and the 29th was not inconsistent with previous behaviour. That is the decision at 30. And was essentially a foundation stone for why that conduct over that period was not put into the reckoning of valid reason. We say that is wrong. If you look at that period over the three days: firstly, his conduct prior to the 27th and 29th, on the evidence, was that he was arriving at work about 10, 10.30, and leaving between 3 and 4 pm. That is Levendakis cross-examination, 613, 636.

PN84

In contrast to that, you have a very serious breach of trust over a critical period of three days where he attends only 8 hours over three days, while being paid his full pay. On the 27th he attends a mere 2 hours 34 minutes, leaving before midday. On the 28th he attends a mere 3 hours 48 minutes. On the 29th he attends 1 hour 43 minutes. And we have on the 29th a critical day; we have to ring him at home at 11 am to find him, when normal business hours are 8.30 to 5 pm. He said he had no explanation for these absences - Levendakis 1916. And then to aggravate the matters, you have the fact that he was the only IMT person - IMS team person rostered on at the time - Levendakis 1629. And that team plays a critical role in ensuring that a core part of the computer system is working properly.

PN85

He was expected to be in attendance 8 hours a day during business hours - Levendakis 1629. It was one of the busiest periods for the bank for Internet and telephone banking - Levendakis 1713. He was not only playing a trouble-shooting role, he had key result areas to work on - Levendakis 1713. His evidence was that if he is not in the office, there is an additional 10 to 15 minutes delay in accessing the computer system - 1728, 1731. And that any outage of any period would be embarrassing for the bank, if it was a national outage - Levendakis 1715, 1717.

PN86

Now in Levendakis' submissions, it was put, oh, well, there was a file note of Ms Matthews, which Mr Annois, the decision maker, adopted, which said that his conduct reflected similar behaviour for which he had been warned. But one has to look at the overall objective facts of the case. The Levendakis submissions point to one line of a document in defending that finding; don't point to anything else. When in fact Mr Annois' evidence was that he saw it of a different character, the conduct, because it involved levels of attendance of less than 3 hours a day, when he was the only IMS member on deck for a critical period for their E-banking, and saw that it clearly moved from a poor performance issue to a serious breach of trust - 3200 to 3203, and also 2902 and 2958.

PN87

Ms Matthews, the Human Resources Consultant, gave similar evidence, saying that she treated it as a misconduct issue because it was only 8 hours attendance over 3 days, a critical period, and he was the only support person rostered on for that team - 3584. She said that the role of the outage - it brought Levendakis' absence to their attention, because they then chose to search the security records. But it was not the reason for the termination: it was because of the overall misconduct - 3644 to 3645.

PN88

We say on any proper objective assessment of his conduct over that period, it could not be put in the category of just like his previous attendance, and should have just been dealt with by way of performance improvement plan. It was of a much more serious nature, and the Commissioner erred in not treating the evidence in that way. We say in fact, to the contrary, the fact that he was on a performance improvement plan should have been our way. It should have been seen as part of an additional warning, additional form of notice to him of how important they saw attendance as an issue, on top of the evidence that in June 2000 he had a verbal warning - Decision at 4.3; and where he committed himself to work 8 hours a day - Levendakis 762.

PN89

On 25 August he was given another verbal warning to attend work 8 hours a day - Decision at 6.8. And he agreed that if there was no change in his behaviour after June 2000 - transcript 1109 - he would then have his four-quarterly review, 8 September 2000, where he is given a very low rating of 4C, and he is told that his hours of work are a concern. He is told that George needs to make a decision as to what he wants his future to be, and whether it should be with the ANZ - this is document E13. Then you have 17 October, it is made a key result area that he work 40 hours a week. We should not have reached that point, given his seniority. And then he has put on the performance improvement plan, where he is told he has to improve or he won't keep his job.

PN90

We say given all that history, the performance improvement plan should have been seen as another attempt for the bank to put him on notice as to the importance of attendance, and his further conduct on the 27th to 29th made it worse, not effectively neutralised it, because it consistent - purportedly consistent with previous behaviour. As I said, Mr Levendakis didn't treat it that way himself. He said he knew he had to improve to hold his job - Levendakis 1462 - at the time he is put on performance improvement plan. The bottom line is he did not improve. The evidence was he never changed his attendance practices, and on 27th to 29th they were vastly worse; less than 3 hours a day, when it is a critical period for the bank.

PN91

THE SENIOR DEPUTY PRESIDENT: And you say the Commissioner gave no weight to the prior warnings about attendance?

PN92

MR BOURKE: He mentioned prior warnings when looking at the question of Part D of CG3. But when one tries to find any assessment of him factoring in the seriousness of the conduct between 27th to 29th, you will not find it. You will not find it. You will find a reference to the fact that it was not inconsistent with previous behaviour in the past for which he was on a performance improvement plan.

PN93

SENIOR DEPUTY PRESIDENT WATSON: But in respect of the prior warnings, paragraph 40 again does count that as a factor against him, and the Commissioner there found it was clear by October 2000 that the job was in jeopardy on the performance issue. October 2000 involved a counselling on the 17th, and the placement on the performance plan on the 26th. So the Commissioner has had regard to the detriment of the respondent to the warnings and the performance plan.

PN94

MR BOURKE: There is an assessment there. But we say when one reads the overall approach, particularly going back to 42 to conclusion, it is clear it was not given any sort of the weight it should have been given. And it is dealt with, your Honour, very interestingly in relation to other relevant matters under (e) - CG(3)(e). It is left out of the equation, which is one of our major complaints in terms of assessing valid reason. We say if you test this case - I spoke about the width of the discretion. At the end of the day, this appeal bench, the essential facts have been that findings have been made by the Commissioner below. We have also provided a chronology setting out the evidence in relation to critical matters.

PN95

You are in as good a position to assess the overall merits. And we say when you make that assessment of the conduct between 27th to 29th, and the conduct over the year 2000, it clearly falls into that category where you could not say no valid reason; you could not say this is harsh, unjust or unreasonable, irrespective of the procedural criticisms. We say it clearly falls in House v The King: that it comes into that unjust category where it needs to be disturbed. One way to test this is, what is the evidence against Levendakis which we say was essentially ignored or neutralised because of the performance improvement plan.

PN96

Take the Levendakis case, and remove the performance improvement plan. You are left with several warnings, or, as the Commissioner found, many warnings about his attendance. And then imagine if he then engaged in this conduct over the 27th to 29th. In my submission, you would clearly say on a proper objective assessment of the facts, there is a valid reason for termination; it was not harsh or unjust. We say you do not get to the wrong side of the line on both those questions by introducing the performance improvement plan. On the substantive side of the case, in terms of what actually occurred, we essentially won on every issue, save for the extension of the outage. Levendakis was left with one card to play: that was the procedural card.

PN97

The performance improvement plan was in place: you should have gone by way of that route, not misconduct. And we say that approach in the end just dominated the Commissioner's approach to the case, and should not have. Ultimately we say it should have been a matter against Mr Levendakis, not against us. The fact that procedural issues should rarely dominate the substantive merits of the case, is a point made in the decision of De Silva by Senior Deputy President Lacy, which is at tab 8 of our main folder. If I could briefly take the Commission to that. At tab 8, paragraph 74 to 75:

PN98

During the proceedings before me counsel for the respondent acknowledged that at the termination meeting on 1 December 2000 there was no opportunity for the applicant to defend herself ...(reads)... is that undue weight will not be given to procedural defects in a termination.

PN99

We say in a House v The King type error, undue weight in this case, we say, on any proper assessment of the facts has been given to a procedural issue of us not departing from - that we should not have departed from the performance improvement plan, and we in fact could not have done so without a warning and a review being done. If I can just say something else about the plan. One thing that was uncontradicted was the HR Consultant Matthews effectively said, look, that performance improvement plan is not gospel. It is a generic document. It is a guide to staff generally, it is to be used flexibly, and you are at liberty to decide the person is not attempting to respond to the performance improvement plan.

PN100

And rather than taking the next step in the plan, which would be some sort of review, to treat the matter as a misconduct issue. That is Matthews, 3913 to 3916. We say that is just a bit like the way the rules are used by the Commission. They are not to become the master. They are to be used in a; common sense way, and where they are inappropriate, they do not have to be followed; you can depart from them. And that is a performance improvement plan, but a compact to say, I will attempt to improve, and we will put a strategy in place to help you improve.

PN101

There is no evidence that Levendakis attempted to improve in relation to that issue of attendance. In fact, it is plain from the 27th to the 29th - you have got the access records - he is fronting up about 3 hours a day, and asking for full pay. And that would not have come to our attention - he did get the money in the pocket - it would not have come to our attention, only there was a blow up in the system, and we checked the records. Now, one other matter - this is Ground 3 - one other matter that we complain about is that on the 29th it wasn't just him failing to front; it wasn't just a lateness to turn up, earliness to go home, as he had done in the past.

PN102

He knew when he was rung at home, he realised that his pager had not been working. That is his explanation why he didn't answer the pager responses. After he is finished with the conference call to try and work out what the problem is in the system, he said that finished at 12 o'clock, and he immediately went into work. He described he had to immediately go into work; it would be irresponsible not to go into work straight after; because he is effectively otherwise uncontactable. And he had just had a major severity one problem where the system went down Australia and New Zealand wide; you don't know what is going to happen around the corner. And he said, "So I went in."

PN103

Now, that was found to be a lie. It was clearly a lie. There is no room to move. The Commissioner found that he didn't attend. That in fact the access records were correct: that he attended at 2.29. He was only 20 minutes away from the office, so there is an unexplained absence of 2 hours at a critical period, and we never heard an explanation of it, because he just said, oh, I did go in. We say that was a very serious dereliction of duty by a senior employee. Unfortunately, the Commissioner has ignored that matter in assessing whether there was, one, a valid reason, or, two, whether the termination was harsh, unjust and unreasonable. We heavily addressed on that issue.

PN104

We said we should win the case on that alone, it is so bad. The Commissioner only dealt with the matter on the question of reinstatement, whether that caused a sufficient loss of trust. Levendakis is falsely suggesting he returned to the office at 12.20 - transcript 1774 to 1781. As I have indicated, the Commissioner preferred the security access records, which is Decision at 43. We say that is clearly serious misconduct, a serious breach of trust by a senior employee, and was another strong basis for why there was a valid reason, and why we were on the correct side on the merits. The Commissioner only dealt with it at paragraph 43, second dot point - if I can just go to that - under Remedy:

PN105

The difficulties facing the company in re-establishing trust in him, in view of his failure to return to work ...(reads)... preparedness to dealt with Mr Levendakis' attendance in accordance with the performance improvement plan.

PN106

The performance improvement plan kicks in again, in relation to reinstatement. Mr Levendakis accepted, in terms of his own evidence, that if he hadn't returned in those circumstances straight into the office, there was no way the bank would tolerate that type of conduct. Two, that given 17 years of service or not, such conduct would be considered unforgivable, and it would be totally irresponsible. That is him - 1795 to 1797.

PN107

Now, it was put in submissions by Levendakis, well, you can kind of ignore that. That is his own evidence. The Commissioner has to make his own assessment of how serious it is. We do not dispute that. But we say in this case, in terms of the Commissioner making that assessment, an assessment he did not do on the merits, what better evidence than the person who will really appreciate the seriousness of the absence to return: Levendakis himself, who, if you read the transcript, was reluctant to make any type of concession, readily made those concessions.

PN108

But, two, we point to this. We extensively addressed on that issue, that it was serious - 4320 to 4327 - including as to valid reason. You have Mr Levendakis giving evidence that he said it was serious. There was no submission made on behalf of Levendakis that we were wrong on that issue. No submission made. They clearly took the punt that the Commissioner would find that the records were wrong and he did turn up. They made no submission that for some reason this was not very serious. We say the Commissioner really should deal with that point in the context of the evidence and submissions before him, and they were all one way.

PN109

We say that constituted clear error in relation to dealing with valid reason and on the overall merits. In Levendakis' submissions, it was put, oh, well, the Commissioner doesn't have to spell out every single point he takes into account. We accept that. But this was a critical matter put. Both in cross-examination and in submissions, we say it had to be dealt with. It could not be reserved, but being dealt with solely on the question of reinstatement. It is also put to us that the decision maker, Richard Annois, did not consider this matter, so it did not have to be considered in terms of valid reason.

PN110

The evidence was that he was concerned about lack of attendance across the whole three days. It did not become apparent to us of this dereliction of duty until we heard his evidence as to what he actually did on that morning. Then it became clear to us that this had occurred. But it clearly was a very serious aggravating matter in relation to the primary reason for termination, which was attendance: or, at the bottom line, it was part of the entire factual matrix that should be taken into account on that question.

PN111

Now, Grounds 1(b) and 2(b) also complain that the Commissioner should have looked at the context of the serious misconduct that we relied upon being the prior conduct over 2000, in assessing whether there was a valid reason. We say there was not a proper assessment. There is no indication in his reasoning part of the Decision that those matters were properly taken into account. The question of valid reason is not considered in a vacuum, concentrating on the reasons. You look at it in terms of the entire conduct. We had led an enormous amount of evidence as to his conduct over that year 2000. If you have a read through Mr Levendakis' statement that he filed with his evidence, you won't get a look in on all the issues we raised.

PN112

There is a very fleeting comment about the performance improvement plan, and how it had been mentioned informally earlier about his attendance: and there is a reference to the fact that he made some curt comments to female staff. All these issues we raised about sabotage, changing the computer system without approval, etcetera, all done down our end. It took an enormous amount of time, and we don't find it in the, if I can call it the money end of the Decision. And as we put it, on any view, we said that was the last straw; that was the last straw. After you looked at that shocking record over 2000 that really was the last straw and valid reason should have been assessed in that way.

[11.10am]

PN113

SENIOR DEPUTY PRESIDENT WATSON: What about the context of the failure of the company to act on continuing poor attendance after the institution of the warnings and the performance improvement plan? I note from the passages you have just taken us to, suggested between September and December Mr Levendakis was attending on average 5.5 hours a day less one for lunch, 4.5. Presumably, that continued between October and December - - -

PN114

MR BOURKE: Correct.

PN115

SENIOR DEPUTY PRESIDENT WATSON: But if the conduct were so serious as to warrant termination, why was that not monitored, that attendance, following the suggestion of a performance plan and acted upon?

PN116

MR BOURKE: We say, look, that could be a relevant matter to put in the reckoning but put on our side of the reckoning the fact that he was not improving over that period after given many warnings on attendance. But just in terms of that. I mean, he is the senior guy. He doesn't clock in, clock off, he is running around doing things throughout the day. We don't pay someone to keep an eye on him. So although we could see no really appreciative improvement we had no appreciation it was only 5.5 hours until after the outage. After the outage we searched the records back to September and we found that over that period he had only been doing 5 1/2 hours.

PN117

I mean, yes, when we criticised a bit we didn't really keep an eye on him. But one of our points of complaint is at the end of the day keep in mind he is a very senior employee. With overtime he gets about 140 grand and that type of criticism, okay, to an extent it is valid but, really, it is the type of thing that might be a very important point with a first year, young apprentice whose whole life and career is just starting out, not someone who has been in the work force a very long time, should know what is expected of them, is earning 120 plus overtime and he is given immense responsibility and as a result we don't have a clock-in system for him.

PN118

SENIOR DEPUTY PRESIDENT WATSON: But the Commissioner's decision suggests there was some tolerance of Mr Levendakis' deficiencies in attendance and the like having regard to his value, his seniority, nature of his position. That seemed to have changed on reading the materials with Mr Jones, I think, the new supervisor. So warnings are given, performance improvement plan put in place but, then, not followed through. The company resorts - sorry, the company reverts to the sort of tolerance that it had previously been given.

PN119

MR BOURKE: Well, there is no suggestion of reverse tolerance. The history that I ran you through was, I think you had verbal - and this is what was found. Verbal warning in June and commitment from Levendakis, "I will now work eight hours a day". That is from a senior member. Commitment completely broken. August, I think the evidence is another verbal warning, "Okay, I will work the eight hours". Completely broken again. You then have where - his key result areas are discussed for the following year and he is told attendance is a concern. So, again, attendance is raised. This is in - a key result area is meant to be something like: You finish this project, or: You fix up this part of the computer system. That is what you are being paid $120,000 to do.

PN120

It should never come to the point where you put it as a key result area. If you turn up to work like everybody else does, 40 hours a week. It should never have come to that. So we do that and then we have got the performance improvement plan. We are not marshalling enormous resources to keep an eye on him but we are hoping he will do the right thing. But it could not be said we are tolerating it, we are escalating, we are continuing raising the matter with him and we - maybe another employer would have been much less, less tolerant but - - -

PN121

SENIOR DEPUTY PRESIDENT WATSON: Well, but for the outage, presumably nothing would have occurred unless and until some follow-up in the performance improvement plan occurred.

PN122

MR BOURKE: But for the outage we would never have known. We would never have searched the access records and found he is only working 5 1/2 hours a day on average. We would never have searched - where he was the only person rostered on for his team - we would never have searched the records and found he has only worked about 3 hours a day over the 27th to 29th. The outage disclosed the seriousness of his conduct.

PN123

But in terms of review we had planned a review. The evidence was we did plan a review on 24 November. This is in the chronology, page 12. He was sick the day of the scheduled review. He then goes on annual leave from 26 November to 11 December. Jones who would be the person to do the review, he is on leave from 8 December to 27 December. So, essentially, because Levendakis was away on the critical period they did not meet and so you have got until the 27th where there is no further opportunity to meet and that is when the events occurred and - - -

PN124

SENIOR DEPUTY PRESIDENT WATSON: The 24 November, there was a planned - - -

PN125

MR BOURKE: Planned review.

PN126

SENIOR DEPUTY PRESIDENT WATSON: - - - review and Mr Levendakis was sick on that day.

PN127

MR BOURKE: Was sick on that day. And two days later - - -

PN128

SENIOR DEPUTY PRESIDENT WATSON: So whoever was conducting that review didn't even bother to check the attendances prior to the review.

PN129

MR BOURKE: No, there is no evidence that we were going to go by his back and start searching the access records. We weren't going to those extremes.

PN130

SENIOR DEPUTY PRESIDENT WATSON: So on what basis was any discussion as to his attendance to occur on the 24th - - -

PN131

MR BOURKE: It was going to be on the basis, I think the evidence was of his - the team leader of the IMS team, Mr Vlok, was from his own observations had been that there had been no improvement. But we did not appreciate that in fact he had gone down to 5 1/2 hours a day and then after he comes back you have that terrible period, 27th to 29th, where he is down to about 3 days. In fact, the Commissioner's finding on this issue - this is at page 7.9 - it is all set out on page 12 of the chronology:

PN132

...is due to absences on leave by both Levendakis and Jones the review did not proceed.

PN133

But we would say, look, really looking at that issue, if we are to be criticised because we should have had a better monitoring system put in place over this period for this very senior person, put that against us in the overall reckoning. But also put into the reckoning you have got a very senior player who has had many warnings and by the time the performance improvement plan he has been told: Improve or you haven't got a job. And this conduct occurs. Put that on the other side. We say that tips the scales.

PN134

If I can say this, your Honour, the Commissioner does discuss this attendance issue but where do we get a lot of the other conduct of Mr Levendakis discussed in the money section of a decision. We don't. Some of that conduct included the outage to the ANZ data base system when he implemented an unauthorised change. His two separate threats of sabotage to the system to his team leader and to Jones. His refusal to participate in a computer system change until he was ordered to by Jones. He got the very bad rating of 4C and then on any view he tells Jones where to get off on any version of what he said.

PN135

I mean, those are issues that don't really seem to get a mention in the analysis and, look, each of those items is terrible for his level of seniority. And we say given that history it adds up to the last straw. I provided an authority in the main folder at tab 7, Qantas Airways, which goes to the point if one looks at the entire factual matrix when assessing whether a valid reason exists. That is at 49(1)(f), 49)2)(c). That was quoted by the Full Bench - or not quoted but referred to by the Full Bench with approval in Erskine v Chalmer Industries which is in our slimmer folder, Additional Authorities. If I just quickly go to that at tab 3 at page 5.2, second dot point:

PN136

It is for the parties seeking to demonstrate a valid reason - - -

PN137

SENIOR DEPUTY PRESIDENT WATSON: Just one moment. Where are we?

PN138

MR BOURKE: Sorry, sir. This is at the folder, slim folder, Appellant's Additional Authorities. It should be at tab 3.

PN139

SENIOR DEPUTY PRESIDENT WATSON: I see, yes.

PN140

MR BOURKE: At page 5, your Honour.

PN141

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN142

COMMISSIONER BLAIR: Sorry, I was having trouble because I thought you said 5.2, I was looking for 5.2.

PN143

MR BOURKE: Sorry, yes. So page 5 at about point 2 of the page.

PN144

COMMISSIONER BLAIR: I always note - it is an interesting observation I have that the pacifists in this world always refer to them as dot points, the more antagonistic people call them bullet points.

PN145

MR BOURKE: I am calling them dot points:

PN146

It is for the parties seeking to demonstrate a valid reason for a termination of employment ...(reads)... consideration must be given to the entire relevant, factual matrix.

PN147

And the citation is of Cornwall v Allied Express:

PN148

In this case the Commissioner, having wrongly in our view, concluded that truck driving was an inherent requirement of the appellant's job failed to properly address other factors that were relevant to a determination of whether or not the termination was capricious.

PN149

And we say really his conduct throughout 2000 has been left out of the equation on validity and that a finding of no validity which was pivotal to the overall merits and should have also been - and that is made clear if one goes back and looks at the reading of the conclusion. And we say that should have also been given proper reckoning on the overall merits of the case. It has been put in Levendakis' submissions that, look, all these things were taken into account because they are referred to in the earlier parts of the Commissioner's decision. Now, we say that is a very artificial reading of the decision.

PN150

There has been, you know, fairly clear authority now of the high standard required of the Commission in terms of disclosing its reasons for decision and we say when, really, a proper analysis of this decision - you have got really a background part which sets out often not findings of fact but summaries of the evidence each side of the fence. And then the Commissioner goes to setting out the submissions of each party and then his reasoning is disclosed. And the importance that he has to disclose his reasoning rather than just the fact that he mentions all these matters in the past is because there is a statutory requirement to go through the various categories in CG(3) and disclose that reasoning.

PN151

So if he has just referred to it earlier that we don't see it in the reasoning part there is no way we could assess whether it has been taken into account and the inference would be unless it has been properly discussed it hasn't been taken into account. And just an example on that. You know, it is hard to say that because he discussed matters earlier that they were brought into the reckoning. When one looks at the way he does discuss issues. If I could just go briefly to page 5 of the decision, the first dot point on page 5:

PN152

On 30 July 2000 there was an unplanned system outage. Subsequently it was established ...(reads)... He freely admitted to making the change when the matter was next discussed with Mr Jones.

PN153

So that matter is set out and the evidence on what that matter is but you can't say that the way that has been set out suggests he is taking that matter into account on any particular item of CG(3). He is just reciting the evidence and our submission, that is just an unreal reading of the decision. There is no indication that it has been given any particular weight, that incident. And that incident does not otherwise get a mention in the critical part of the judgment after paragraph 30.

PN154

Another example is the fourth dot point down. There is a discussion of a meeting in relation to the revised IMS log accumulation process and that Mr Levendakis did not want to do it at the time of his choosing. Mr Jones then put it to him that such a threat threatened the integrity of our IT systems. Asked by Mr Jones if he could carry out the changes directed by him he agreed stating that he should not be expected to do similar work in the future or put himself out. Mr Jones then gave him a written warning which is set out. Mr Levendakis explained his action:

PN155

I was getting sort of desperate to try to get my change in at the right time in the right context ...(reads)... to listen to me and let me put the change in. Then it was more suitable.

PN156

He said he had never - it was never his intention to delete the files. And then there is a discussion there, what Mr Jones does. But there is no indication that has been given any particular weight in the case. Other examples are, for example, third dot point on page 7. Now, the other thing relied upon in Levendakis' submissions is that in paragraph 30 - - -

PN157

SENIOR DEPUTY PRESIDENT WATSON: Were those all matters direct from the performance improvement plan?

PN158

MR BOURKE: No. Attendance was. Issues such as sabotage I don't believe was. I stand corrected but I don't believe issues such as the refusal to implement change and implementing a change in an unauthorised way were part of the performance improvement plan. What he has then relied upon to overcome the fact that his prior conduct was not put in the reckoning in assessing valid reason is at paragraph 30 it said:

PN159

Well, the Commissioner did say, 'I do not consider the company had a valid reason for terminating Mr Levendakis in the circumstances that existed in January 2001'.

PN160

Now, they rely on that line. This is after, you know, the Commissioner has set out those - summary of the evidence and the submissions and then that line and we say that is just completely artificial, it has got to be read in the context of that paragraph and the way he clearly sets out - the performance improvement plan covered attendance and in terms of past issues also covered his behaviour towards staff. It did cover - comply with ANZ changed management procedures.

PN161

SENIOR DEPUTY PRESIDENT WATSON: And after that warning, was there any subsequent difficulty with Mr Levendakis in respect of compliance with company procedures, requests - - -

PN162

MR BOURKE: No.

PN163

SENIOR DEPUTY PRESIDENT WATSON: No. Thank you.

PN164

MR BOURKE: But we say the Commissioner has clearly set out his reasoning in relation to each category of CG(3) and one can't rely on the earlier narrative to bolster the decision. And, again, we say those matters also should have gone into the overall merit assessment as well and don't appear to have arrived there. Although there is some discussion of a conduct towards the women and attendance in the past, there is no reference to the unauthorised change to the computer system, the refusal to implement the change to the computer system and the two threats of sabotage and the poor rating. It is put in Levendakis' submissions that prior conduct has been raised and there was a pointing to paragraph 35 on page 14 of the decision where it said:

PN165

Mr Levendakis received many prior warnings about his attendance and behaviour towards other staff culminating in the introduction of a performance improvement plan pursuant to the company's policy in respect of managing poor performance.

PN166

And then it notes that the program was not reviewed. That does not make any reference at all to the items I have just referred to, the sabotage, the rating, unauthorised change of the system and the refusal to implement change to the system. And when one looks at the other relevant matters we say those matters should have appeared. When one looks at items 1 to 5 the only item that comes up in relation to prior conduct is item number 4 in paragraph 36, the apparent failure of Mr Levendakis to comply with warnings about his poor attendance.

PN167

No reference to any other matters in relation to prior conduct let alone assessing the seriousness of the conduct between 27th to 29th, including the failure to return. And just in relation to that item, when one further examines it, it is clear that he only talks about the 27th to the 29th. Those items are summarised, 1 to 5, and then you have a discrete paragraph on each of these issues. The one in relation to item 4 is dealt with in paragraph 40 and the Commissioner says:

PN168

Whilst there is some dispute about the nature of the prior warnings regarding his attendance ...(reads)... This is a factor that weighs against him.

PN169

That is as good as it gets in terms of assessing any of the prior conduct and when one properly looks at item 4 in paragraph 36 and goes to paragraph 40 all the Commissioner deals with is the period 27th to the 29th, not the fact that he has been given many warnings throughout 2000 and no material attempt to change his behaviour in relation to attendance. And even reading the - in relation to the 27th to the 29th. It doesn't seem to read as if it is given any real meaningful weight that reflects the seriousness of the conduct. And we say, you know, it should have - - -

PN170

SENIOR DEPUTY PRESIDENT WATSON: Well, the Commissioner has explicitly said it is a factor that weighs against him. How can you make that to be - - -

PN171

MR BOURKE: Well, your Honour, the language in which it is expressed doesn't suggest that it is - you know, he doesn't say it is a serious matter, just says "a factor".

PN172

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN173

MR BOURKE: It is one of the five things he raises. And we just say if it can be read generously to say, well, he has given sufficient weight to it. We say he has given no weight to his failure to attend - improve his attendance throughout 2000 despite the warnings in June, August, October and then the performance improvement plan, 26 October. Now, one other thing that involved past conduct over 2000 was his conduct towards three women. And we say there is no evidence that that was given proper weight. There is a reference to the matter in relation to warnings under (d) but where does it turn up in category (e) in terms of just assessing the seriousness of the conduct? What we have is in fact to the contrary. Paragraph 36, number 5, there is a point made:

PN174

That following warnings Mr Levendakis altered his behaviour towards other staff members.

PN175

That is a reference to the three females that - I think they all finished up in tears. That is put in his favour. There is no evidence in other relevant matters, is put into account the fact that he engaged in that conduct. He is a very senior member. Whether he finally gets his act together or not that has an impact in terms of setting an example to other staff. He finally gets his act together, I think the evidence is the last incident was something around August or October and he starts behaving like everybody else is expected to behave. That goes into the scales as to why we are wrong on the merits and not the fact that those three instances occurred.

PN176

We say when - you cannot get away from, we say, really assessing Levendakis' conduct, that the Commissioner, although he made reference to the fact that he was a senior employee, he has not really factored it in; he has not really factored it in. He has been very generous, for example, saying, oh, well, he improved his conduct for a couple of months prior to his termination in relation to female staff is not really factored in. That goes without saying that type of conduct. The fact that it occurred over three times, resulted in one set of counselling, two warning letters, were shocking. And that should have been put against him. Even in terms of the fact that he was warned. I mean, that is discussed under (d) - CG(3)(d) in 35. Even the Commissioner in dealing with that point says - he makes the point:

PN177

That road leads to culminating in the introduction of a performance improvement plan. That program was in place but no review occurred.

PN178

There is no real suggestion of any proper coming to grips with the seriousness of having that occur with a senior member on three occasions over one year. And we say it reflected, really, a lopsided approach where unfortunately because of this performance improvement plan issues that really should have been dealt with in terms of against Mr Levendakis were not put on the scales as to valid reason or as to the overall merits. And one other example of that, and this is ground 11, is his finding that the termination was harsh. If you go to paragraph 42, the last line:

PN179

These features make the termination both unjust and unreasonable ...(reads)... little, if any, regard to the harsh effects it would have on him.

PN180

Now, he found that we did not consider the impact on him in terms of the termination and at the end of the day we have to accept that it was open for him to find that. That is one thing against us. But in terms of the overall process of assessing "harsh", what has happened to the fair go all round of looking at it to the extent the impact of the conduct on us to the extent to which Levendakis brought upon himself the situation that led to his termination. They don't seem to have been placed in the scales and weighing up harsh. And we say that also amounts to error.

PN181

SENIOR DEPUTY PRESIDENT WATSON: But that is in the context of his finding as to the conduct. It would be a very different matter if there were a finding that an employee was engaged in theft of company property and termination for that reason was not harsh or unjust. In that circumstance one would think long service and the effect on the employee, any harshness resulting from that would be of little consequence. But the finding here as to harsh is in the context of the earlier findings.

PN182

MR BOURKE: Well, he does talk about "in those circumstances". But when one looks at 42, has he really discussed in 42 or above the real - how serious this conduct is in terms of the 27th to the 29th in toto rather than whether he extended the outage? And how serious his conduct was over the year 2000? Has he really come to grips with that before he says "in those circumstances"? He has essentially quarantined a substantial part of those matters because of the existence of the performance improvement plan. And I have taken you to a number of matters which - - -

PN183

SENIOR DEPUTY PRESIDENT WATSON: Yes, but the criticism of the final sentence there really comes back to your criticism - - -

PN184

MR BOURKE: Correct.

PN185

SENIOR DEPUTY PRESIDENT WATSON: - - - to his approach to valid reason.

[11.40am]

PN186

MR BOURKE: Yes, that is correct. So we say, look, you know, if you step back from this case, you are in as a good position as the Commissioner to make the assessment. He has made all the critical findings. We are not coming here attempting to re-argue the facts. He has made all the critical findings. We have also set out the breadth of the evidence in terms of the chronology. And we say when you step back, you go through the matters required under CG(3), it should have been, having regard to a fair go all around, it should have been found that we met the first hurdle, we did have a valid reason, and it should have been found we are not on the wrong side of the line. And that both findings were not reasonably open.

PN187

We invite the Commission, as a result, to find that there has been error in process, has also been error that can be inferred, because the decision was just not open, on valid reason or on overall merits. And we say the Commission should exercise their own discretion on the matter, as they are entitled to do under 45(7), and you are in as good a position to do that, and in exercising that power, you have the discussion under CG(3)(b) that he was notified of the reason. We accept the assessment of that issue, and that we can be criticised, we didn't discuss with him whether he extended the outage. We accept the assessment under CG(3)(c), opportunity to respond, and the fact we can be criticised because there was a misleading e-mail regarding the nature of the meeting.

PN188

That essentially he was given an opportunity to respond, but not as to the outage. And the prior warnings have been assessed in paragraph 35CG(3)(d). And we say you come to the relevant matters under (e), the matters we say you should be looking to in terms of the exercise of discretion, and which also point to the fact that there has already - there has been error. Is this seniority, what is expected of such a person, the numerous acts of misconduct and poor performance over 2000, the fact that it would have been the last straw, and the actual overall actual conduct between 27th and 29th, including his failure to return to the - or failure to attend the office during that critical period?

PN189

Irrespective of any procedural criticisms that can be levelled, we say the substantive case is so strong that those should have been the findings, and that should be the finding on any fresh exercise of discretion. If this Full Bench does not want to exercise a fresh discretion, we would say it should go back to a new member for a fresh hearing and determination. that it would be unfair for it to return to the Commissioner below and expect that there be some major re-alignment as to how the case should be assessed and approached. That would be really unreal that that exercise could be undertaken by - - -

PN190

SENIOR DEPUTY PRESIDENT WATSON: Well, why do you say that?

PN191

MR BOURKE: Well, because the Commissioner has emphatically taken a particular view.

PN192

SENIOR DEPUTY PRESIDENT WATSON: And if he is told he is wrong in taking a certain approach and should apply another approach, why would he not be capable of doing that?

PN193

MR BOURKE: Well, because, your Honour, he still, by having taken that view, and set it down on paper, he has essentially entrenched his position. And that it would be extremely difficult for him to re-align his thinking irrespective of - if he was directed as to how to undertake his task.

PN194

SENIOR DEPUTY PRESIDENT WATSON: That would suggest there is little utility in the appeal process, including that to the High Court, referrable back to the Federal Court. There have been numerous occasions where full benches have been required to reconsider matters in accordance with the approach required by the Federal Court.

PN195

MR BOURKE: Well, generally when the approach is given, there is often a fairly heavy guidance as to what the outcome would be. But frequently when at first instance decisions are over-turned by error of process by finding error on the reasoning process, they are frequently returned to a different constituted court, or in this of the Commission, differently constituted member, or - in fact the general practice from our review of the cases generally, is that if the full bench feel in as a good a position, they generally undertake the task themselves.

PN196

SENIOR DEPUTY PRESIDENT WATSON: That is - - -

PN197

MR BOURKE: And that is our primary position.

PN198

SENIOR DEPUTY PRESIDENT WATSON: That is - I am just not sure about the other problem - - -

PN199

MR BOURKE: Yes. But we would say, particularly the lopsidedness - for example, the assessment of the conduct to the three female staff. And we don't find any proper reckoning of the seriousness of that conduct, but a reference to the fact that he has improved his behaviour. We say the whole thing is unbalanced.

PN200

SENIOR DEPUTY PRESIDENT WATSON: But the issue in relation to the three females comes back to the performance improvement plan and the approach to that again, doesn't it?

PN201

MR BOURKE: Well, we say that is the problem with the case. The Commissioner treated it virtually - all roads leading to the performance improvement plan. It was if we were wasting our breath talking about the conduct between the 27th to the 29th, and all the events that occurred over 2000, because we had a performance improvement plan. The Commissioner had to come to grips with those issues, weigh their seriousness, as to valid reason and to the merits, and then factor in in terms of other matters, whether the performance improvement plan - that procedural issue, outweighed all those things. But not to treat them as all being centrally neutralised or quarantined, because of the existence of the plan. And not re-formulate the test of valid reason to be, was there a valid reason to depart from the plan?

PN202

Now can I move to reinstatement? We say again on the facts, this was not within the range of case where reinstatement was open. This is particularly in a circumstance where you have got the senior person - a senior person, where we need to place 100 per cent trust in that person because they are going to get access to a main frame computer system, it deals with millions of dollars a day, and we need to have total confidence in them. And we say given all the history and what occurred over that period 27 to 29, we could never have that again. Now we again point to the conduct that occurred in Levendakis's own words, in his failure to return, his failure to attend the office after he knew his pager wasn't working, and the fact that he lied about that matter, as a very senior employee.

PN203

He lied about that matter and what he saw - agreed, was a very critical and important point. It said to us, we can't argue that point about the fact that he lied, because we didn't argue it below. We take issue with that. At 4320 we discussed the issue of his failure to return on the question of reinstatement, and in making that point we pointed out that that evidence was given under oath. That was also a point recognised, that the evidence was given under oath by the Commissioner at page 12 of the judgment last - I was going to say bullet point - last dot point.

PN204

SENIOR DEPUTY PRESIDENT WATSON: You are getting more aggressive as you go, I think.

PN205

MR BOURKE: And if we are wrong on that, we say there is no prejudice raised, no prejudice shown. It is essentially an evidentiary matter where the evidence is in, and we provided the case on that, the Water Board, which is in the second folder at page 497.2, which discusses the fact that a new ground can be raised where there is no prejudice suffered. And we say in error, the Commissioner set down at 43, second dot point, when discussing his failure to return - or failure to attend the office, that that was the only basis for a loss of trust, because we otherwise put him on the performance improvement plan. Again, we have got the performance improvement plan shutting out all the other conduct over 2000 and the fact - all the conduct that was involved in the 27 to 29 December. You know, the eight hours over three days.

PN206

SENIOR DEPUTY PRESIDENT WATSON: But the other conduct couldn't have constituted a loss of trust such that employment couldn't have continued, otherwise presumably the employment wouldn't have continued at that time?

PN207

MR BOURKE: No, the evidence was that they took time rather than just going in and suspending, they chose to investigate the matter, and that took a period of six or seven days over - from the, I thin, the 2 January when they did the search of the records and so forth. I have set all the history out in the chronology.

PN208

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN209

MR BOURKE: And there is a chain of command in coming to grips with the seriousness of this issue, and there was advice sought, HR, and a number of people in terms of coming to grips with this matter. But it can't be inferred that because we didn't immediately suspend, there is no loss of trust. We are talking about an overall on-going long-term relationship. We say that was really gone, when on proper assessment of what - the conduct he did, irrespective of a performance improvement plan.

PN210

SENIOR DEPUTY PRESIDENT WATSON: But that comes back to the conduct and the findings in relation to that. If you are wrong on that, it would hardly work against the respondent in the appeal in respect to reinstatement, wouldn't it?

PN211

MR BOURKE: Well, we don't - we are not arguing with the findings. Findings of fact are there, as to his hours, and we can't argue with the fact it was found that he didn't extent the outage. We say you look at the conduct. It is not good enough. And you look at the conduct in connection with his conduct over 2000, and we have given a very extensive chronology. The fact that it has to run for so many pages is because there were so many things.

PN212

SENIOR DEPUTY PRESIDENT WATSON: It would be a rather perverse outcome if the Commission were to find that certain conduct didn't justify termination, but did make inappropriate reinstatement, would it not?

PN213

MR BOURKE: To a certain extent, if there is no force in our points on the merits, it loses force on reinstatement.

PN214

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN215

MR BOURKE: But we do point to one - - -

PN216

SENIOR DEPUTY PRESIDENT WATSON: You repeat what you have put in relation to merit? Yes, certainly.

PN217

MR BOURKE: And one of those highlighting things is the failure that non-attendance on the 29th.

PN218

SENIOR DEPUTY PRESIDENT WATSON: But the Commissioner has specifically taken that into account?

PN219

MR BOURKE: He has dealt with that, and we say in the context, that was not given the proper weight. You look at how bad that is.

PN220

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN221

MR BOURKE: Another matter, though, is separate to his conduct, is - there needs to be some recognition - whether the conduct warranted termination or not, there needs to be some sign of recognition of the seriousness of the conduct, and that was not shown by Levendakis during the hearing, which is another matter we put in terms of loss of trust. In terms of his refusal to participate in changing the computer system, he only suggested that was technically wrong. Levendakis, 917. His threats of sabotage, he said probably in hindsight, wrong, 920. His description of the three incidents involving the female staff, he just described that, as curt with other staff, paragraph 11 of his statement. And his eight hours attendance over three days, he did not even accept that was totally inadequate, 1840.

PN222

Levendakis pointed to Mr Nikfarjam's evidence, who was a person from the Bank, who would have been his new manager if he came back, and he effectively said, you know, my job's to make it work. That is at 2014. But his evidence of limited weight, and he last dealt with Levendakis five years ago, and was not a direct report, 2026. It was not an unqualified statement. He said, look, if there's been a loss of trust because you have engaged in inappropriate conduct well then it won't work, 2034. He agreed that you need to acknowledge your level of responsibility. And that there would be other people at the Bank who will be better informed than him as to recent events and whether a loss of trust had occurred, 2037.

PN223

He also proffered an undertaking that he would now attend when required. And we say that was way too late. It was given not at the beginning of the case. He ran the case on the basis, I've gone and done nothing wrong, and at the end of the case when it became apparent he was doing something wrong, he said, oh, okay, I'll give an undertaking. We say that was way too late and worth nothing.

PN224

SENIOR DEPUTY PRESIDENT WATSON: That was a minor consideration.

PN225

MR BOURKE: Yes, that is true.

PN226

SENIOR DEPUTY PRESIDENT WATSON: And the Commission was - - -

PN227

MR BOURKE: But I am putting these matters, if you find error and then have to also re-exercise a fresh discretion. We also point to the lack of candour of Levendakis. There was a complete lack of reference to the many prior warnings we received, and I am nearly finished. In paragraph 16 of his statement he said this. This is on a critical issue of attendance:

PN228

In October 2000, Russell Jones expressed concern that I wa snot at my desk for a full 40 hours a week. I explained the nature of my work had always ...(reads)... with various objectives that I agreed to.

PN229

That was the way he came forward and essentially put his case, until he saw our material. We outlined the verbal warnings, the document and so forth. You know, I mean, what confidence can we have in a senior member that tried to really run a whitewash of how serious his conduct was over that period? And I have already read references to the women was:

PN230

I was curt with other staff.

PN231

I mean they were terrible instances. We say that in itself is enough. In terms of leave to appeal, the test, one recognised category, if there is sufficient doubt to warrant re-consideration. We say there is. Where if substantial injustice will result, and we say there will - will be - deny the proper assessment of the case on the merits. We are facing the burden of paying his foregone remuneration of 136,000, and having to employ a guy we don't trust. And we have provided this authorities with that test as discussed, National Union of Workers, it is paragraph 16, Wan, CFMEU v AIRC. It is also discussed in Millar at paragraph 32.

PN232

We also say the matter is of importance to reconsider the "but for" approach in terms of valid reason is too narrow, it should be corrected. The domination of procedural issues in approaching the merits of a termination and whether there is a valid reason, we say is error and should be corrected by a full bench. If the Commission pleases.

PN233

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, Mr Bourke, we can't accuse you of not devoting sufficient time to the events. Yes, Mr Friend.

PN234

MR FRIEND: If the Commission pleases. The appellant's submissions have - I might say they are very broad ranging, and a substantial proportion of the Commissioner's conclusions have been attacked in them, in the sense there has been a - perhaps in terms of what we have heard this morning rather than the written submissions, a greater attack on what the Commissioner didn't say, than what he did, apart from his conclusions. As we have attempted to show in our written submissions, this approach that the appellant has taken is really fundamentally flawed and on a number of occasions this morning we have heard submissions to the effect that this full bench should exercise its own discretion in relation to this matter.

PN235

And it should take into account matters that were before the Commissioner, but give them a different weight to the weight that he gave them. Now, if all of that is premised upon the finding of some sort of appealable error in the way the Commissioner has dealt with the matter, that is well and good. But you cannot have an appeal to a full bench in a discretionary matter such as this, which constitutes in effect a re-hearing, which is what the full bench is being asked to do.

PN236

SENIOR DEPUTY PRESIDENT WATSON: And that requires error prior to the bench proceeding that way?

PN237

MR FRIEND: Yes.

PN238

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN239

MR FRIEND: Yes. And it is a House v R error that is required. Now in one sense I think we will be able to say, or I hope I will be able to say at the end of this submission that - I am formulating this because it seems to me that what has been put orally this morning is a somewhat different submissions to that which we received written notice of last week or the week before.

PN240

What is really put, and your Honour, the Presiding Member, kept taking my learned friend back to this, is that it all depends upon an error in the way the Commissioner approached the question of valid reason. But the real submissions of the appellant, if we are to look at it in the legal sense, is that there was an error in the way the Commissioner approached the question of valid reason, but somehow he confused it with whether or not the performance improvement plan should have been complied with.

PN241

Now, in a minute I will come to that and say why we say that is wrong. There had been a number of factual matters raised in a general sense this morning. Most of those in terms of the facts that have been raised, were also raised in the written submissions. It is now our intention to go back and refer again to all of the matters that we have put in our written submissions, but we do in a general sense, of course, direct the Commission's attention to those. In terms of House v R, my learned friend put together the two passages from House v R, and the quotation from Brideson dealing with the question of leave to appeal.

PN242

And added from that later passage in House v The King an additional ground of review. The famous passage is the one that we first read at 505 in 55 CLR. Wrong principle, extraneous or irrelevant matters to guide or affect him. It states the fact, does not take into account some material consideration, and then the determination may be reviewed. Now what has been added to that is the item that comes about two pages over where the court says:

PN243

In the circumstance we have stated we do not think that we can say that the sentence ...(reads)... from giving undue weight to any circumstance or matter.

PN244

Now that passage is not often referred to. If it means - and it really needs to mean this for the appellant's case to succeed - if it means that the appeal court, or the appeal bench, has to look at the whole matter and decide what is a - what is due weight or undue weight in respect of everything, then that is exactly the same as saying that the appeal bench re-exercises the discretion. That is a re-hearing. Because if you get into questions of whether the weight given is the right weight or not, then you are re-exercising the discretion.

PN245

Now in our submission, that is clearly not the law and not the way House v R is being applied, not only in this Commission but in courts, for the last 50 or 60 years. You don't re-exercise the discretion. You don't look at whether the weight is the same as you would give it. The repository of the discretion in this matter, was Commissioner Simmonds. The role of the full bench, in our respectful submission, is to determine whether or not the Commissioner erred in one of the primary ways set out in the first passage in House v R.

PN246

Now it may be that the sum scope for saying that a matter, although given some weight, was so far out of proportion that it invalidates the decision. That might be a manner in which it can be approached. But it is certainly not the case that you say, how would we do it? What is the correct weight to each of these items? The starting point is the exercise of the discretion that has already been undertaken, and a determination of whether one of those errors exists.

PN247

So a lot of what was said this morning was really along the lines of, it should have been done a different way because these things, the Bank submits, are important and he didn't give them enough weight. And time and again transcript will bear me out, my learned friend said, this wasn't given enough weight. But nothing was put, even in the formal sense, that there was a clear error because the weight that was given something or failed to be given to something was so extraordinarily out of the ball park, that the decision - the discretion had to miscarry.

PN248

Now, next in relation to the question of the discretion is this issue of whether the discretion is a wide or a narrow one, and one needs to be careful about how the bench approaches this, because what was submitted was in effect - well, there are two types of discretions. There is wide discretion, and there is narrow discretion, and you can easily knock off a narrow one and this is a narrow one. That is not really the effect of the authorities. Millar as referred to at paragraph 43, picks up what the High Court said about discretions in Coal and Allied.

PN249

SENIOR DEPUTY PRESIDENT WATSON: Sorry, Millar was tab 2 of the - - -

PN250

MR FRIEND: It is tab 2 of our submissions, and I think it might be tab - take their folder, because that is the authorised report of the additional - the additional folder.

PN251

SENIOR DEPUTY PRESIDENT WATSON: It is tab 2 of the additional folder, yes.

PN252

MR FRIEND: Picking up from Coal and Allied, jus tin 43, the quotation from Coal and Allied at 21:

PN253

Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged.

PN254

I am sorry, that is the wrong passage. It is at 19, from Coal and Allied:

PN255

The latitude may be considerable, as for example, where the relevant considerations are ...(reads)... a particular opinion or value judgment.

PN256

Now the narrow discretion there, the very narrowest types of discretion might be along the lines of things that we see in the Immigration Act, if the Minister is satisfied that a person is a refugee, then the Minister may grant an entry permit. And there are decisions to the effect that there is no discretion in relation to the second may - but the satisfaction is a discretion, but that is a narrow discretion. The satisfaction of a fact. A similar matter might arise in this Commission in termination of a bargaining period under section 170MW.

PN257

Here we have the Full Court saying at 45, that the discretion is a narrow discretion in the secondary sense, one requiring the decision-maker to make a particular decision if he or she forms a particular opinion or value judgment. Now one should add to that, Wan's case, which is in their first folder, the appellant's first folder, tab 4. This too is a Full Court. And the decision is subsequent to Millar. At 28 the Court says this:

PN258

In the present case, the applicant argued that the Full Bench fell into error by limiting its inquiry to the question of whether the decision under appeal was supportable on the evidence ...(reads)... discretion exercised at first instance as being relatively narrow.

PN259

And then at 29:

PN260

It is likely that this submission reflects a misunderstanding of the decision in Coal and Allied Operations ...(reads)... not necessary, however, to consider this question further.

PN261

So there is not just two types of discretion, broad or narrow. There is a range of discretions. This one might be regarded somewhere towards the narrower rather than the broader end, although certainly not at the narrowest end, but that doesn't necessarily mean that it is one that is more readily reviewable. The question of appealable error is still the first question that needs to be considered. I note that in the Qantas decision - I am sorry, not Qantas, but Erskine v Chalmers Industries which is at tab 3 of the second folder. The Full Bench there and this is again after Miller, but before the matter I just referred to - - -

PN262

SENIOR DEPUTY PRESIDENT WATSON: That is the thin volume again, is it?

PN263

MR FRIEND: This is the think folder, yes.

PN264

SENIOR DEPUTY PRESIDENT WATSON: And, I am sorry, the case is?

PN265

MR FRIEND: Tab 3, which is Erskine v Chalmers Industries. It is the matter in which Commissioner Blair was a member of the Full Bench, so we rely on it heavily. At page 5 of 8 on the print that is here, it is noted in the second last - I am afraid I call them bullet points and I think it is something I picked up from Dr Jessup a long time ago, so you can make of that what you will, the second last bullet point:

PN266

The discretion conferred by 170CH(3) is broad in nature and in each particular case, the exercise of that discretion is a matter of judgment.

PN267

Now, there is a real danger in our submission in approaching these matters by becoming overly formulaic and trying to characterise the discretions as narrow or broad or, you know, 60 per cent narrow or 70 per cent broad or something of that nature. It is a discretion and the question is whether or not an appealable error of the type referred to in House v The King has occurred. The substantive attack on the Commissioner's decision, as I have already said, is in relation to the finding that there was no valid reason.

PN268

Now, whether or not there was a valid reason is a part of the whole, or one of the factors, I should say, that the Commissioner was obliged to and did take into account in determining whether or not the dismissal was harsh, unjust or unreasonable, but the Commission in determining a matter under this section and we say correctly in this case is not obliged to have a checklist of things to tick and then add them up and again apply some formula to determine whether or not the case fits the bill.

PN269

The manner in which a matter such as this is to be determined is to exercise a discretion, taking into account those matters that are listed in the legislation, including valid reason. There is no substantive attack on the other matters that the Commissioner has taken into account. We keep coming back to this question of whether or not the valid reason was wrongly determined because the Commissioner somehow turned it into a question of whether or not the performance improvement plan should have been complied with. Now, in their written submissions, the appellant said at paragraph 28 on page 13:

PN270

In respect of whether there was a valid reason for termination, the Commissioner was required to examine the entire factual matrix ...(reads)... and concluding that by reason of it not doing so, no valid reason existed.

PN271

And Qantas Airways case is relied upon in relation to that. Now, the Qantas case is, indeed, very relevant to this issue because the circumstances in the Qantas case, which is attached to these submissions at tab 7, were that an employee had struck a supervisor. Now, prima facie, striking a supervisor provides a valid reason for termination, one would have thought, but what the Court said in relation to that, well, this is a circumstance where the supervisor was officious, doing the wrong thing and you had to take into account the factual matrix of the assault and in those circumstances, it didn't provide the valid reason for that employee's termination.

PN272

So one of the factual matrices, or one of the facts in the matrix I think is what I meant to say, that the Commissioner was required to take into account in this case was the prior history between the parties, including the existence of the performance improvement plan. There was nothing wrong with that and it might be hypothetically, we don't know, that in the absence of such a plan, the Commissioner may have taken a different view. It may be that he wouldn't have, but what we do know is that he noted that Mr Levendakis was a poor time-keeper, that he had had the performance improvement plan put in place in respect of a number of matters.

PN273

My learned friend read out to you all the matters covered by the performance improvement plan which included relationship with other staff and included compliance with policies in respect of change and time-keeping, in summary, all of the matters that are complained of as having not been taken into account. The Commissioner has noted that that is the way the parties have determined to deal with this issue and in those circumstances, it is different from just not turning up to work. It is different from just hitting the supervisor on the nose.

PN274

It is part of the factual matrix and it is perfectly reasonable and, indeed, correct for the Commissioner to have determined that there wasn't a valid reason in circumstances where the performance improvement plan, which is what ANZ determined was the appropriate manner to deal with these matters, was not complied with and this in circumstances where ANZs witnesses came along and said to the Commission we terminated him because his absence on that day meant there was an extension to the outage, which wasn't true.

PN275

It wasn't true that there was an extension to the outage, but that is why they terminated him. Now, their reason may not be the be all and end all of whether or not there is a valid reason, but the fact that they really did it, because they thought something was the case which wasn't the case, in circumstances where they had a procedure for dealing with the more general issue and they didn't comply with that procedure is an unanswerable set of propositions in relation to the non-existence of a valid reason and in our respectful submission, the Commissioner's approach is completely correct and just unchallengeable.

PN276

SENIOR DEPUTY PRESIDENT WATSON: Mr Friend, we are proposing to adjourn at 12.20 through to 1.45 due to another hearing that Mr Commissioner Blair has. Is that an appropriate time?

PN277

MR FRIEND: It would be, your Honour, yes.

PN278

SENIOR DEPUTY PRESIDENT WATSON: Very well, we will resume at 1.45. I am presuming we won't require a huge amount of time after the break.

PN279

MR FRIEND: I think I will be very short, yes.

PN280

SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you.

LUNCHEON ADJOURNMENT [12.23pm]

RESUMED [1.50pm]

PN281

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Friend.

PN282

MR FRIEND: Thank you, your Honour. Can I conclude what I was saying just before lunch about the valid reason submissions made by the appellant, that what we say to the Commissioner did was by referring to the performance improvement plan and all of the matters that are encompassed within that put the termination in its proper context and determined thereby that there was no valid reason. What the appellant says he should have done was to look at everything except the performance improvement plan and taken that out of the equation.

PN283

Now, to do that would an error. Once it is in there, it is perfectly legitimate for the Commissioner to make the use of it that he has. It should also be borne in mind that the existence of the performance improvement plan is not something that was imposed upon the appellant by the Commission. That element in the factual matrix was something that ANZ had put there. It was the way they had determined to deal with these matters and the thing that changed, the thing that changed that meant that they moved from complying with that plan or, rather, using the plan which the Commissioner finds they didn't really bother about too much and I think he says:

PN284

It appears that the necessary monitoring prior to the review, if it was undertaken at all, was somewhat informal.

PN285

But the thing that changed from that informal monitoring to dismissal was the outage and the belief that there was a delay in repairing the outage because of Mr Levendakis's absence and there is a direct factual finding in relation to that which is contrary to what motivated ANZ and in our submission all of what the Commissioner has said about this stacks up and it makes sense. Now, if the appellant fails in its submission that the Commissioner made an error in his approach, his legal approach to the issue of valid reason, then the rest of the submission that they have made falls into a different category.

PN286

The whole balance of the submission was interlaced with terms such as the Commissioner should have given more weight to this or he should have taken this factor into account here and this was the wrong decision. It was really a submission on the merits and our submission is that there wouldn't be any place for a submission on the merits in the absence of any demonstrated error. If we go through the written submissions that have been filed, it really makes that point clear.

PN287

The first of the submissions, 6 to 8, deal with the valid reason question. We say that is the submission that has really been changed this morning, then there is a failure to have regard or adequate regard to Mr Levendakis's relevant misconduct. Now, failure to have regard - perhaps I should deal with this issue here. The decision is criticised on the grounds that it doesn't spell out the reasoning with sufficient detail. In our submission, in fact, it is a very clearly expressed decision. It is one which sets out all of the relevant facts at one point or another.

PN288

It is not necessary for a Commissioner hearing a matter such as this to set out in detail every step in every train of thought in respect of the reasoning that he or she is engaged in and, in fact, if the test for an appropriate decision of the Commission that my learned friend has tried to set up were adopted, I think it would be fair to say that a number of High Court decisions would fail it. Matters are raised and dealt with, in evidence, in hearing, and don't find their way into a decision in written form. Sometimes they are specified in one part of the decision and don't necessarily appear by direct reference in another part.

PN289

All of the matters that are relied on by my learned friend are dealt with by reference to the decision and there is a good deal of discussion commencing at paragraph 14 of the background to the termination. This is not just a summary of the evidence of the parties which one sometimes sees, this witness gave this evidence, this witness gave this evidence and then there is often a section which puts it together and makes some findings. These are the findings.

PN290

Now, it is impossible, it is impossible for the appellant to succeed in its argument that the Commissioner didn't have all of these relevant factors in mind when he came to his decision. It is not even necessary for this decision, a decision of this detail and complexity, to have what you might call a boilerplate clause in it saying I have taken into account all of the submissions and evidence put before me by the parties, but I think time and again the High Court said that that is enough. You don't have to go beyond that, so you are really getting to the situation here where you have to get to a point where you say it just wasn't open on this material for this decision to be made. Now, if you get to that point which is analogous to the passage in House v The King which says:

PN291

It may not be clear how the decision-makers reached the decision, but it is obviously unjust and wrong.

PN292

Well, then you have got an appealable error, but that is not the position here. In dealing with the matter, the appellant speaks in regard to the relevant misconduct in paragraphs 9 to 11, all matters which were taken into account by the Commissioner, so it is really a question of failing to have adequate regard and again we get to that issue of is this a rehearing on the merits, the exercise of a discretion or an appeal where you have to find appealable error, then in paragraphs 12 to 16 we have a general submission that the relevant misconduct was ignored and yet the paragraph, particularly paragraph 30, makes direct reference back to the relevant misconduct, if it is described as such, because the relevant misconduct was dealt with in the performance improvement plan.

PN293

Paragraph 17 to 24 concern what is alleged to be a failure to consider Mr Levendakis's absence on 29 December after aware that the pager was not working. Now, the Commissioner noted the submission made about that in the course of his decision at page 12 in paragraph 28, in the last bullet point on the page. He noted in relation to the decision about whether the termination was harsh, unreasonable or unjust that he was taking into account Mr Levendakis's attendance in the period between 27 and 29 December which must include that. That is at paragraph 42 and he made specific reference to that point in respect to the way it was raised before him in paragraph 43 under remedy.

PN294

It was raised before him not with regard to misconduct at the section of the transcript that my learned friend, Mr Bourke, referred the Commission to this morning in relation to this, which is paragraph number 4320, but it was raised in submissions in respect to a break-down in trust. Anyway, that is a failure to consider when the matter is clearly there and referred to repeatedly in the Commissioner's decision, then again in paragraphs 25 to 33 there is a failure to have regard to the prior conduct, but, of course, there is regard to the prior conduct. The decision is replete with references to the prior conduct. What is really meant is there is a failure to have sufficient regard, a failure to accord to it the weight that ANZ would say should be accorded to it.

PN295

That proposition is then put specifically in the section commencing at paragraph 34, lack of weight of the relevant misconduct as to whether the termination was harsh, unjust or unreasonable. That is 34 to 38. We come to more specific things at paragraph 39 and following, existence of the performance improvement plan it is said did not prevent the bank terminating Mr Levendakis in respect of matters that come within the ambit of the plan, but that is not what the Commissioner found. What he found was in the whole context, it wasn't a valid reason because of the approach that had been adopted. The next matter at 48 and 49 deals with seniority.

PN296

The Commissioner is said to have ignored the level of seniority that Mr Levendakis had that I think the Commission indeed this morning took my learned friend to the passage where he deals with that; he balances that up against other matters and finds that the question of length of service and seniority are neutral. No weight given to the conduct towards female staff. Well, that is a part of the performance improvement plan and it is certainly referred to in the decision and, again, that is a question of weight. Paragraphs 53 to 59, under the heading termination is not harsh, you need to have regard to Mr Levendakis's own conduct.

PN297

Well, again the decision is replete with references to Mr Levendakis's conduct, findings against him in respect to that conduct and then we move on to reinstatement which I will come to in a minute. Now, I think I have said the Commissioner's decision is closely reasoned. It is compendious and we would say compellingly argued. It is certainly not the case that a person reading that decision would put it down and say, well, how can he possibly have come to that result on those facts? But that is really where the bank has got to get. This might be a set of facts upon which reasonable minds may differ. That doesn't matter. It might be that the bank disagrees vigorously with Commissioner Simmonds' decision, but that doesn't matter.

PN298

If the Commissioner has addressed the right questions and looked at all of the material, as he very, very plainly has and exercised his discretion in this way, then it is unchallengeable. Now, on the question of reinstatement, we took what my learned friend said to be something of a concession, that if he failed on the valid reason point, then the reinstatement point was probably not a good one and I think that came in response to a matter that was put to my learned friend by your Honour, Senior Deputy President Watson, and we would adopt that. It is clear that reinstatement was in issue between the parties. The section of the decision dealing with reinstatement is very clearly argued and there is no reason to interfere with the exercise of that discretion.

PN299

If the Commission is against me on these matters and considers that the discretion has miscarried, then that will be because of matters relating to emphasis perhaps or, well, it is difficult for me to speculate how that could be, but if it happens, we think the matter would need to be sent back and should be sent back to Commissioner Simmonds. There is absolutely no reason why he couldn't deal with the matter. He has heard four days of evidence. He would be in a far better position to deal with this, to deal with the nuances of the importance of various issues in determining how the matter should be disposed of than this Full Bench could be, having heard brief oral submissions today. There is a good deal of evidence in the matter that needs to be considered and taken into account.

PN300

Certainly there is no principle by which the matter shouldn't be sent back to the presiding member to determine it in accordance with law. It happens all the time and I think it brings to mind a matter that I was involved in last year with Marshall J in the matter of Elliott v Kodak. Marshall J made findings on credit, as the Full Court found, without considering all of the relevant evidence and they just remitted it to him to consider all of the relevant evidence and make the findings of credit. There is no reason in principle why that shouldn't happen, but we would submit that there is no reason for it to go back at all, of course. I do want to emphasise that there has been some reference to the evidence this morning.

PN301

We have dealt with the evidence and reference to all of that in the written submissions and I am not going to go back and read that or even read out all those references to the Commission, but we say that each of those matters that is raised by my learned friend, if it ever gets to that point and it won't if our submissions are adopted because this Full Bench shouldn't be weighing these competing considerations in the absence of appealable error. If it gets to that point, then we would draw the Commission's attention to those passages that are referred to in submissions. Unless there is anything further that I can assist the Commission with, those are the submissions of the respondent.

[2.09pm]

PN302

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Friend. Mr Bourke.

PN303

MR BOURKE: Thank you, your Honour. Can I deal with the issue of discretion and appeal grounds. We say there has really been an attempt to hide behind the discretion, and not come to grips with the merits of the decision. We say because it is an exercise of discretion, it is not beyond attack, and it is critical to look at the breadth of the discretion in terms of assessing its ability to be attacked for error. My learned friend said, don't worry about the width of the discretion, don't get involved in that: but that is a very critical matter. That was a matter looked at in Cole and Allied, in Miller, and in the Wan case. They both looked at the latitude of the discretion in that case.

PN304

My learned friend said, well, the Erskine case suggested that the discretion was broad, but that decision was prior to Miller. And Miller has made it clear that it is a narrow discretion, because you are applying statutory requirements for a statutory set out path in determining whether the termination is harsh, unjust or unreasonable. One category clearly recognised as error in House v The King, is if on looking at the material - and you have before you the central mosaic of all the critical facts; there is no need to send it all back; you are in as good a position. And there has nothing been said today about why, in terms of the material before you, including the chronology and the Decision, why you are disadvantaged in any way.

PN305

If you look at that, House v The King said if you find at the end of the day, taking into regard the width of the discretion, the result was unreasonable, or was clearly unjust, well then that is error. That is error. You do not have to even identify where the Commissioner went wrong. That is error. We have taken you through the actual material on the mosaic, in terms of the period 27 to 29 December and the prior conduct in 2000. We say on any proper view, it is way over the right side of the line on valid reason, and that it is not harsh, unjust or unreasonable.

PN306

As we have put, and there has been no answer really put to this, we say remove - and my learned friend's answer to virtually everything that was raised, was that it is all covered by the performance improvement plan - we said test the reasonableness of the decision by removing the performance improvement plan; look at the landscape in terms of the facts. We say it is clearly unreasonable - that there was no valid reason found that the decision was found to be harsh, unjust and unreasonable. Put the performance improvement plan back, and we say that that does not shift the goal post sufficiently to find that we were on the wrong side.

PN307

In fact, as we put, we say the performance improvement plan should have been a matter against Mr Levendakis, as it was an additional notice as to the importance of attendance. It is also put that effectively we condescend into talking about the degree of weight, it is not appealable error. We have to show that there was no weight given to the matter. Now, that is just wrong. It is a standard appeal ground to say that there has been insufficient weight given to a matter, or too much weight given to a matter.

PN308

House v The King, where the court applied the test of appealable error to that sentence, they actually discussed whether there had been a failure to give proper weight, sufficient weight. And I took you to the passage. That application has never been criticised at all. In fact, the standard passage quoted about, there has been no weight given, or weight given to improper matter, is used as a shorthand to include no weight or inadequate weight. They are both categories of error. Reflected in that is the Brideson decision, where that is the way it was couched, as discussed in Miller. And in Miller at page 206, they discussed the Brideson decision as applying the test in House v The King.

PN309

Further to that, we say in a number of our grounds, we say it is not a question of not enough weight, or inadequate weight, we say no weight. One of the matters we point to is the actual conduct on the 29th: his failure to attend work when knowing that his pager was not working. We say that was clearly left out of the equation on valid reason and on merits, although extensively addressed, and in circumstances where he provided no explanation for that conduct, denied he did it, and no submission was put why that should not result in a finding of valid reason; why that should not result in us winning the case on the merits.

PN310

No submission put to the contrary. And what do we have? A clear discussion by the Commissioner of our submission on that on the impact of reinstatement. No clear reference at all. My learned friend relies upon a passing reference to poor attendance. So it was clearly - we put that point in a separate category of a serious breach of trust: not turning up to work late, but knowing when he is uncontactable at a critical period. And to say that he dealt with that is just a nonsense. Further, we point to the following matters in terms of prior conduct, as distinct from the material conduct we relied upon, has not been given any weight, and that is his poor attendance practices in the year 2000, other that the 27th to the 29th.

PN311

We took you to the analysis of the judgment, which showed that in fact he really only analysed the 27th to the 29th. The abuse of female staff, which we say was only given a reckoning regarding to prior warnings in CG(3)(d), the threats of sabotage, unauthorised change to the system, and the refusal to implement change to the system: all not dealt with. We say in terms of assessing whether adequate weight has been given, you can look at the point and say, was that finding clearly unreasonable or plainly unjust. If so, that is an indication that there has been a lack of weight given to a particular matter.

PN312

Consistent with Miller, once you find error, you are then entitled to exercise your own discretion. We have heard really no material submission why you are not in as good a position. Really, my learned friend says - the submission really amounts to, well, the decision was reasonably open. And as Miller says, that is not the question. An end result may have been reasonably open, and we say it wasn't, but even if it was, if we can demonstrate error on the part of the decision making process, that is enough for then the exercise of a fresh discretion. One key matter has been our attack on the assessment about whether there was a valid reason.

PN313

You have heard a defence of that approach of the Commissioner by saying, well, one matter in the entire matrix is the performance improvement plan. We do not say you do not take that into account as part of the overall entire matrix: but we did say, if you do take it into account, it should have been used against Levendakis, and not the lifebuoy, or lifeline that it was. We say it was impermissible to not confine it as one matter as part of the entire matrix, but to use it as a means of reformulating the question of valid reason. We say it is clear that the Commissioner reformulated the question, his statutory task under CG(3)(a), until it became was there a valid reason for not following the performance improvement plan. And we say that is wrong. That is wrong.

PN314

He has even made a very narrow approach in dealing with that, by deciding whether there was an extension to the outage or not. It is very interesting. My learned friend has attempted to defend the valid reason approach by making a submission to this bench that the evidence was that that was the reason we terminated Levendakis. When I took you to the passages of the evidence of Annois and Matthews to show that was not the reason - and in fact I have taken you to the actual submissions of Levendakis below where it was put as a significant matter. That is as high as it got. And now there is an attempt to defend the approach as to valid reason, by escalating it as the only reason.

PN315

There is also really a lowering of the standard of what is expected of the Commission in terms of giving reasons, that if you recite the evidence on the early part of the judgment, it is taken as being good enough, in terms of you have taken into account, if you have referred to a submission, or you refer to a piece of evidence, without indicating any weight or any way you have dealt with the evidence. There have been a number of decisions now that have said that the Commission has really got a duty as high as a court in explaining its reasoning process, particularly when - not to every single matters, but matters which have been critical to the case, have been the subject of evidence and submissions, need to be dealt with in a proper way, so that an appeal bench or an appeal court is in the position to understand the approach which has been adopted.

PN316

We say the only way this decision has been attempted to be defended, is to lower that standard and say, well, he referred to the PIP, the performance improvement plan, he mentioned taking all circumstances into account, so that is enough. That has never been good enough. In a very simple argument over, for example, costs, where it is apparent from the argument you will go one way or the other, you might say taking circumstances into account. But a complex case that went over five days, detailed submissions, detailed evidence, you would need to spell out your reasoning. We say, unfairly, the Commissioner did disclose his reasoning; clearly did, from paragraph 30 on, and that unmasked the errors that were made.

PN317

In terms of reinstatement, we say if we are wrong on the merits, we rely on the additional matters of the lack of candour in terms of the way he put his case, and, in particular, his lying under oath on his conduct on 29 December, as resulting in a loss of trust, and what involves a very senior person. Again, we say if error is found, do not send it back. My learned friend gave one example, but one case I was involved in, The Employment Advocate v Williamson, ultimately the appeal was not upheld, but one of the members of the Federal Court, Branson J, found that the decision was so strong in its views, was so strong in its views, in the way they were voiced, it was inappropriate to remit the matter to the same judge, and it was sent back for a new trial, but because she was in the minority, that did not occur: no other grounds of appeal were found by the majority.

PN318

We say this is in that type of category. You have had a Commissioner taking a very strong position on the evidence, taking a very strong position on the dominance of the performance improvement plan. We can be given no comfort at all if the matter is returned. We would have a clear apprehension that the Commission would, even with proper direction, be unable to put to one side the way he has approached the case. We would say that there is no good reason at all, and none has been put forward, as to why this bench is not in as good a position. If the Commission pleases.

PN319

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Bourke. We intend to reserve our decision in the appeal. We will now adjourn.

ADJOURNED INDEFINITELY [2.23pm]