C2003/6818, Transcript of Proceedings [2004] AIRCTrans 900 (16 March 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 9763

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
DEPUTY PRESIDENT BLAIN
COMMISSIONER HOFFMAN

C2003/6818

APPEAL UNDER SECTION 45 OF THE ACT
BY INTERCONTINENTAL SHIP MANAGEMENT
AGAINST THE DECISION AND ORDER OF
SENIOR DEPUTY PRESIDENT DRAKE ISSUED
ON 19 DECEMBER 2003 IN U2003/967 RE
TERMINATION OF EMPLOYMENT - APPLICATION
TO VARY STAY ORDER ISSUED BY
SENIOR DEPUTY PRESIDENT MARSH ON
7 JANUARY 2004

SYDNEY

10.32 AM, TUESDAY, 24 FEBRUARY 2004

Continued from 17.2.04 before Senior Deputy President Marsh

PN278

MS S. ZEITZ: May it please the Commission, I seek leave to appear for the appellant in this matter. With me is MR I. IVES, an officer of the appellant.

PN279

MR I. TAYLOR: I seek leave to appear with MR N. KEATS, solicitor, for the respondent on the appeal of Mr Culpeper, who is in the courtroom.

PN280

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you, Mr Taylor. Yes, leave is granted for those appearances.

PN281

MR TAYLOR: While I'm on my feet can I just apologise for the fact that our submissions were not filed as directed on 19 February. I had a problem with my computer late in the afternoon on the 19th, which led me to lose the version that I was working on and I apologise for the fact that we were only able to file them the next morning as a result of that.

PN282

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand the reason, I hope it didn't inconvenience the appellant.

PN283

MR TAYLOR: Yes, I certainly hope it didn't inconvenience either the Commission or my friend.

PN284

SENIOR DEPUTY PRESIDENT MARSH: Yes. No, we appreciated you letting us know the reason and we have all experienced that from time to time.

PN285

MR TAYLOR: Yes, and I apologise for the fact that it does sound a little like: the dog ate my homework.

PN286

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN287

MR TAYLOR: In this case, the computer ate my homework, but it is a very frustrating experience, I can assure the Commission.

PN288

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Taylor. Yes, Ms Zeitz.

PN289

MS ZEITZ: Thank you, your Honour. Do I understand that the Full Commission has a copy of the outline of submissions filed by the appellant?

PN290

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Can I thank both parties for the outline of submissions. We have read them and they were of assistance to us. Yes, thank you. Yes.

PN291

MS ZEITZ: The appellant's case is broadly summarised by the outline and we say by way of introduction that the facts in this matter, insofar as they can be addressed as an overview, are relatively clear. The appellant employed Mr Culpeper in a very senior position of responsibility as a chief engineer on board a vessel it managed, that was the MV Portland, which carries product for Alcoa, between Western Australia and Victoria, and one of two vessels that does that.

PN292

The position of chief engineer is a senior position on board, broadly equivalent to that of the master, although the master has overall responsibility for the vessel, the chief engineer has equivalent responsibility of that of the master for the engineering operations of the vessel and that was evidence before her Honour. Mr Culpeper had a disagreement with another employee, Mr Evans, who was also a chief engineer and that disagreement occurred at what is called the "changeover of swings". The Commission may be aware that the vessels operate on swings of between five and seven weeks where employees - effectively, two full crews are employed on board a vessel and those employees or crews exchange on a regular basis.

PN293

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN294

MS ZEITZ: It is not disputed that there were no witnesses to the incident that occurred between the two individuals. Mr Culpeper and Mr Evans both claim that they were attacked without provocation by the other and that remained their position throughout the hearing before her Honour. Mr Evans suffered significant injuries as a consequence of which he was hospitalised and those injuries were cuts to the scalp, the back of the top of his head, requiring stitches and two broken bones in his hand, one was a broken ring finger, for want of a better description and one in the same general area was a bone broken between the knuckle and the wrist and, again, that was evidence of Mr Evans, and I don't understand is disputed.

PN295

Mr Culpeper suffered minor injuries that required no medical treatment and could be characterised as general bruising around the throat and chest area. The incident was reported by Mr Evans to the master immediately following the incident and there is an entry in the ship's log which was evidence before the Commission to that effect. Mr Culpeper left the vessel. An investigation was carried out by the appellant - or sorry, on behalf of the appellant by Mr Moran, who was a consultant bought in who considered all the material and, as a result of the material and information the appellant formed the view that Mr Culpeper had engaged in serious misconduct, being an assault upon Mr Evans, and that is found in what is in the Appeal Books, document 9, the report of Mr Moran being of that document 9, documents 11 and 22 respectively.

PN296

As a consequence, the appellant then dismissed Mr Culpeper and what is not in dispute between the parties is that there is no suggestion there was a lack of procedural fairness in that process. The fundamental aspect of this matter relates to whether or not her Honour misdirected herself in relation to the test that should be applied with respect to considering the dismissal of Mr Culpeper. It is our submission that leave to appeal should be granted in this matter. The appeal in this matter is of such importance that it is in the public interest for leave to be granted and we say that is because the decision of the Commission at first instance is fundamentally flawed as a matter of law. On that basis we say it is against the public interest to allow a decision to stand that involves errors of law and a failure to have regard to relevant material.

PN297

The fundamental error in our submission is a failure to correctly apply the legislative test to determining whether or not the dismissal is harsh, unjust, or unreasonable. We say that is a significant question of law and an error which goes to the heart of the decision and, in our submission, with respect to her Honour should be corrected. We set out the general principles on appeal in our outline. We have provided in the authorities copies of these decisions referred to. I don't propose to take the Commission to them in detail, I understand the Commission would be familiar with them but, in short, they can be summarised that the Full Commission is entitled to exercise its appellate powers when it is satisfied that there has been an error at first instance.

PN298

The particular reference there, the Commission has been provided with a copy of the AustLII reference and the paragraphs are - of the reference provided are at paragraphs 12 to 15. On appeal we say that the Full Commission is entitled to draw inferences from the facts as found and while it should give weight to the deliberations of the Commission at first instance, it is not bound to follow them and that is House v R, it is a decision with which the Commission is very familiar, and I refer specifically to page 2 of the print there provided.

PN299

We accept that other than in exceptional circumstances the Full Commission should not interfere with finding of facts that rely on the assessment of the credit of witnesses, as it is not in the same position as the Commission at first instance to make an assessment of the credibility of the witnesses, however, we say that in this case the Commission failed to have regard to all of the relevant evidence in reaching its conclusions and on that basis the Full Commission should be prepared to intervene.

PN300

The relevant aspects of her Honour's decision are that she finds that there was a fight between Mr Culpeper and Mr Evans on 22 January 2003, that is certainly not in dispute. She finds that at paragraph 4 of her decision. She finds that Mr Culpeper and Mr Evans were both chief engineers on the same vessel, that is at paragraph 11, and we note by way of background that the evidence of Mr Reid, the master, was that these two individuals had been engaged on board the vessel for some several years in those positions.

PN301

She found that Mr Culpeper suffered bruising to his chest and neck, and that is at paragraph 13 and that again is demonstrated in the bundle of documents, which are identified as document 9 in the Appeal Book No 2 that has been filed and, specifically, document 13 of that bundle. I believe the Full Commission does have colour photographs of that in one of the sets there.

PN302

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN303

MS ZEITZ: She found, at paragraph 14, that Mr Evans had broken bones in his hands and was bleeding from an injury to his head. Now, whilst on that, the findings on the merit were as follows. She stated at paragraph 31 that:

PN304

The employer was in a difficult position and had various difficult choices before it.

PN305

That was clearly a matter that was debated by the party at the time. She found that she could not reliably conclude that Mr Culpeper attacked Mr Evans, or that Mr Evans attacked Mr Culpeper and that is at paragraph 37. She found that there was insufficient material to conclude on balance that the aggressor was Mr Culpeper and that presented generally from paragraphs 37 through to 50 and the particular ones are identified there.

PN306

She inferred that the applicant departing the room with a weapon in his hand which was a stick, a broom stick, or something of that nature, would not have departed the room unless he intended to defend himself. She then concluded at paragraph 46 that there was no valid reason for termination. Now, if her Honour was wrong, she also found that if she was wrong on the existence of a valid reason for termination the dismissal would be harsh, particularly given the one-off nature of the offence and its consequences for the personal and economic situation of the applicant. It then found that:

PN307

Although termination of both employees in such a situation would usually be the case. In this matter, one was the aggressor and the other was innocent.

PN308

And her Honour there said it could only be one or the other, and I should note the reference there should be to paragraph 49 and not 149. Based on those findings, her findings in respect of remedy were:

PN309

Firstly, that the chief engineers were only required to be in each other company's for a very short period every 6 to 7 weeks.

PN310

That is at paragraph 56. That:

PN311

Mr Culpeper had a long history of employment and given his age his dismissal would have serious repercussions.

PN312

That is at paragraph 50, and I note that it was evidence before her Honour that my client took over the contract for that vessel from Howard Smith which vacated the field in 1996. So my client's acquaintance with Mr Culpeper as an employee dates from that time. She found that there was unlikely to be a recurrence of hostilities, that is at paragraph 53. She acknowledged that there would be serious issues for the employer, that is at paragraph 52.

PN313

Then found that the employer can operate if Mr Culpeper was reinstated, at paragraph 55. Before I go to address those findings, I will deal briefly with the principles applying in the case of misconduct. We have set them out there and I won't go to them in great detail save to note that:

PN314

Misconduct justifying dismissal must be conduct that is sufficiently serious to warrant the employer discontinuing employment because it is a matter that goes to the heart of the contract.

PN315

That is a principle that is well used in this Commission and well understood. The case of North v Television Corporation certainly confirms that.

PN316

Serious misconduct and misconduct justifying dismissal destroys the necessary confidence between employer and employee.

PN317

I note and rely, in particular, upon the comments of his Honour, Kirby J, in Blyth Chemicals v Bushnell. The assault of an employee is serious misconduct and that is the, in particular, the case of Jankowski v BHP. I there note that in that decision the Commissioner dealing with the matter found that the misconduct which was in similar circumstances involving an employee who threw hot water at another employee expressed considerable regret at the outcome, that it resulted in this particular employee's dismissal.

PN318

Given the track record and that the victim in that case had given evidence on his behalf but nevertheless found that when applying the objective test and relying on the authorities in those circumstances the assault of a fellow employee was sufficient to maintain the dismissal and for the Commission not to interfere in that outcome and we rely upon that case in the matter that is before the Commission today.

PN319

We say that it is relevant to consider whether the employee was acting in self defence. One of the issues that was before the Commission was: who was the provoker of the event that occurred, or the incident between the parties? We say that in the circumstances before her Honour the issue of aggressor, or the provoker of the incident was certainly important, but it was open on the evidence before her Honour, in fact, she should have concluded, we say, that even if Mr Culpeper initially acted in self defence, by the end of the confrontation that was occurring between the parties he had himself become the aggressor and that is demonstrated by the degree of injury. In other words, excessive self defence still amounts to an assault and is capable of being a provocative act.

PN320

Serious misconduct usually justifies summary dismissal and rarely supports a finding that the dismissal was harsh, unjust or unreasonable. Now, we say that the respondent had the onus of establishing that his dismissal was harsh, unjust or unreasonable, although we accept that as is the case in summary dismissal it was incumbent upon my client to lead sufficient to establish that an act of serious misconduct had occurred and we say that that in fact was established. That does not discharge the onus of proof that nevertheless was vested in and rested upon the respondent with respect to what he was required to establish for the purposes of a finding that the dismissal was harsh, unjust or unreasonable.

PN321

The Workplace Relations Act in its terms requires a fair go all round and it has been said on many occasions that it is not a charter of employee rights. We say, that in these circumstances that were before the Commission the employer considered the circumstances and decided to terminate one of the two employees involved and did so on what, we say, were objectively sustainable grounds when the evidence is considered. Now, in particular, we say, it is not the role of the Commission to stand in the shoes of the employer.

PN322

We rely in that instance on the decision of Hepburn v Department of Justice, I will just refer briefly to two passages from it. The first at 34.6 where the Federal Court, his Honour, Spender J, notes that:

PN323

The adjective "valid" as in valid reason for termination should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudice could never be a valid reason for the purposes of then section 170DE. At the same time the reason must be valid in the context of the employee's capacity or conduct, or based upon the operational requirements of the employer's business.

PN324

At 36.3 to 7 they there quote his Honour, Moore J and say and I will quote it:

PN325

It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants ...(reads)... of the employer is rational and reasonable then in my opinion the employer has established a valid reason. In putting it this way I am not attempting to depart from the view expressed by Northrop J.

PN326

He there refers to Selvachandran v Peteron Plastics and his Honour, Spender J, then goes at about point 6:

PN327

The observations of Moore J are particularly relevant to this case. It is not for the Court to decide whether termination should occur or not. If the view adopted in that case by the members of the disciplinary Tribunal was rational and reasonable the employer has established a valid reason for the purposes of section 170DE.

PN328

Now, we say that the Commission's role is to review the actions of the employer, having regard to the statutory provisions. They don't provide for counsel of perfection. What they do provide is that the actions of the employer be reasonably open on the balance of probabilities and that in assessing whether or not the dismissal was harsh, unjust or unreasonable, her Honour was required to have regard to all the relevant factors including, so far as is relevant, whether there was a valid reason for the termination related to the conduct of the employee. We say that on the evidence before her Honour, there was and I will come to that in a moment.

PN329

Whether the employee was notified of the reason, there is no dispute that he was notified, and whether the employee was given an opportunity to respond, again, there was no dispute. Now, we say that the error that her Honour entered into was that she embarked upon an exercise of stepping into the shoes of the employer, and substituting her own opinion for that of the employer. Her role was to determine whether, on objective criteria, there was sufficient material upon which the employer was entitled to rely in support of its conclusion - in support of concluding that there was a valid reason for termination of Mr Culpeper's employment.

PN330

It was not for her Honour to put herself, effectively, in the shoes of Mr Moran who conducted the investigation on behalf of the employer, and to conduct a forensic inquiry into what she believed occurred, and thereby to determine whether or not it was appropriate that the employer had taken the action that it had. There may have been a range of options available to the employer based on what factual material was available to it. The only question before her Honour was whether, on objective criteria and based on the material that was before her Honour, the action taken was reasonably open to the employer - whether that amounted to a valid reason for termination.

PN331

I say that her putting herself - the Commission putting itself in the shoes of the employer is established by her comments at paragraphs 51 and 52 of her decision where she addresses the question that she can't determine, or establish who the aggressor was and then later on in her decision, thinks there's about a 50/50 chance that it could have been either of them. She acknowledges in her decision that by being unable to establish who the aggressor was, it has the effect of allowing one employee who has lied to its employer to either be reinstated or to continue in employment.

PN332

SENIOR DEPUTY PRESIDENT MARSH: Ms Zeitz, if I could just interrupt you. In paragraph 36, her Honour sets out what her role is, what her task is, and she does expressly say that she is not reviewing the decision of Mr Moran:

PN333

...as if I was hearing an appeal from his decision. I have considered all the facts and independent of Mr Moran's review and reports.

PN334

Isn't that the correct way of going about her inquiry?

PN335

MS ZEITZ: We don't quarrel with the way in which she set out the test. We agree that the test she set out is entirely appropriate.

PN336

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN337

MS ZEITZ: We agree that it wasn't for her to judge - to, sort of, sit in as appeal for Mr Moran but we say, in effect, that the error she entered into, albeit with the best of intentions, was that she then embarked on precisely the same exercise that Mr Moran had embarked upon without considering the material that was before the employer at the time, whether it was substantiated before her in the proceedings and, on that basis, objectively, whether there was sufficient material to justify the conclusion that there was a valid reason for termination or not.

PN338

We say what she did instead and, in a sense, perfectly understandably was to embark upon what was effectively an inquiry into what she thought might have happened. For example, she refers in her decision to the history - I think it is at paragraph 38 - the injury to Mr Evans' hand which, in her opinion, was consistent with his having punched someone:

PN339

...which are factors which have shifted my conclusion more in the direction of Mr Evans than the applicant as the aggressor.

PN340

There was absolutely no evidence before her that warranted that conclusion. There was no medical evidence that supported a finding that the injury was caused by Mr Evans being the aggressor, and there was no evidence of injury to Mr Culpeper which would support a suggestion that he was hit with sufficient force to not only break a finger, but actually break a bone between his knuckle and wrist. That was addressed before her Honour in submissions, but that is - her Honour has drawn a conclusion from a source that was not within the Commission as part of the hearing that was before her.

PN341

SENIOR DEPUTY PRESIDENT MARSH: Yes, I see, thank you.

PN342

DEPUTY PRESIDENT BLAIN: Ms Zeitz, before you go on, I wonder if you could assist in locating the key passage or passages in Hepburn. You'd appreciate that I received the file of authorities only this morning and there appear to be two under the tag of 10.

PN343

MS ZEITZ: My apologies. The correct decision actually should be in the back of the folder. It was the Hepburn decision.

PN344

DEPUTY PRESIDENT BLAIN: The photocopy I have does not appear to have any paragraph numbers on it, and I thought you were quoting such.

PN345

MS ZEITZ: I wasn't quoting the actual number.

PN346

DEPUTY PRESIDENT BLAIN: Page numbers, were they?

PN347

MS ZEITZ: Yes, sorry, your Honour. It was page number 34, and it is the quote of his Honour, Northrop J, which starts at about point 5 of that page. In particular, the second paragraph of that quote is where his Honour, Spender J, quotes Northrop J in considering what is appropriately considered, whether there is a valid reason for termination.

PN348

DEPUTY PRESIDENT BLAIN: Thank you.

PN349

MS ZEITZ: At page 36, the quote starts at about point 3 and, again, it is a quote of his Honour, Moore J, taken from the decision of Wattie v YWCA. Then I continue on. His Honour, Spender J, then makes some observations at about point 6, and it is the balance of that paragraph. Now, the issues of misconduct, whether there was a valid reason for the termination relating to the conduct of the employee, we say what was clearly before her Honour was that there had been a serious misconduct. There had been a fight, and that is not in dispute.

PN350

The issue of who the provoker of that fight was remains in dispute to this day, and certainly between the two individuals involved on the basis of their evidence, and the material before the employer at the time was that one employee had suffered serious injuries requiring hospitalisation, the other, minor bruising, and that in the course of the inquiry that was undertaken, Mr Culpeper had been unable to provide an adequate explanation for the injuries that were suffered by Mr Evans.

PN351

The Commission then, in the course of her consideration of the matter, became, we say, overly focused on the issue of who was the aggressor, and we say - and that is the point I came back to earlier - there is a difference between who initiates the fight in this case, or who instigated the fight, and then whether the response is so excessive and inappropriate that the aggressor actually becomes the person who was originally the defender - that is, whether the person who responds to the incidence of violence, and this is even assuming that Mr Evans were to have started it, has responded in a way that is so excessive and inappropriate that they have behaved, conducted themselves effectively as an aggressor, thus giving rise to a valid reason.

PN352

We say that is important because in her consideration of the matter, the reference by the Commission to attempting to find who was the aggressor really elevated her consideration of the facts to the point of trying to assess who was blameless in the process, and it is quite clear that no-one in that room was blameless at the time. By her focus on who was - on one or the other party being blameless, we say that the Commission then misunderstood the test to be applied and the realities of the situation. That is set out at paragraph 47 of her decision where she says:

PN353

Should I be wrong in relation to the existence of a valid reason for the termination of the applicant's employment, I have considered whether termination of the applicant's employment, where there can be no certainty as to who was the aggressor in the fight, the subject of the termination would be harsh because it would be disproportionate to the gravity of the misconduct in respect of which the employer acted.

PN354

We then go on to say even it is not possible to identify who started the fight, ie the initial aggressor, this does not mean that a valid reason cannot be established. In particular, we say, the fact that the Commission could not determine who was the aggressor did not mean that the appellant had failed to meet the onus of proof on this occasion. What the appellant established before her Honour was the seriousness of the injuries to Mr Evans; that it had conducted an investigation; and had concluded or had ascertained a number of facts that were inconsistent with Mr Culpeper's account.

PN355

They were the existence of blood spatters on the Chief Engineer's side of the desk and on a stapler that was located in the office, and I just refer there to the inconsistency of explanations of Mr Culpeper who maintained throughout the hearing that at no stage did he use anything other than his fists or his hands or his leg in respect of Mr Evans - an ongoing inconsistency on the evidence that was before the employer that was maintained throughout the hearing of the existence of blood on a stapler and, indeed, the nature of the injuries to Mr Evans.

PN356

Again, Mr Culpeper was unable to provide, at any stage during the investigation process, any information about how Mr Evans may have acquired the cuts to the back of the top of his head and broken the bones in his finger or broken the finger and a bone in his hand. Now, that is generally found and the summary of that material, apart from the evidence, is generally found in the report of Mr Moran. That is document numbered 11 in the general document 9, and generally at 2.3.2 of that report. We say that was material that was properly before her Honour for consideration because that was factual evidence that was never challenged as to its existence - that is, where the blood stains were located and that sort of thing during the course of the hearing.

PN357

As we say, her Honour entered into error in the sense that while she was not - while she said quite clearly that she was not appearing in appeal for Mr Moran's investigation and report, nevertheless it was pertinent for her to consider what material Mr Moran, as the employer's investigator, had before him when he was making the recommendation - that material unchallenged - upon which the employer relied, and which throughout the hearing was not the subject of any explanation on the part of Mr Culpeper that he was able to provide.

PN358

By contrast, Mr Evans' evidence was that he was seated on the engineer's side of the desk. That is where the blood spatters appeared. He says that he was hit over the head with something in his evidence, and again there is evidence of a stapler with blood stains on it. The incident was reported by Mr Evans, and there's a Master's Log report of that - that is document 2 in the bundle of documents marked 9 where he goes straight up to the Master and reports the matter immediately after the incident has occurred.

PN359

He reports that he was attacked by Mr Culpeper. Mr Culpeper did not report the incident. He left the vessel and we say, and that is again referred to in Mr Moran's report, that a man who is a senior officer on board a vessel with many years service failed again to provide a reasonable explanation about why he did not immediately go and report the matter. In particular, we say that her Honour failed to take into account that Mr Culpeper left the ship because he said he was in shock and frightened, and a number of other matters. I will take the Commission to those shortly.

PN360

The evidence of Mr Azim, who was the third mate and responsible for first aid, he provided a statement to the Commission. It is document 8 in the bundle of documents. He was not required for cross-examination, and his evidence is therefore unchallenged. Mr Culpeper subsequently sought to challenge it during the course of his cross-examination but the fact remains that her Honour had before her evidence from a third party that does not appear to have been taken into account which demonstrates in entirety what occurred immediately after the incident.

PN361

Mr Azim says that he went to the dispensary. He saw Mr Evans and Mr Culpeper standing in the alleyway. Mr Evans had blood all over his face. Mr Culpeper had what appeared to be a scratch on his upper lip and he then goes about the fact to he sent him off, and he was then subsequently treated and attended the wound. That is inconsistent with the evidence of Mr Culpeper, and we say that on the basis that Mr Azim was not required for cross-examination, her Honour was required to accept that evidence in preference to that of Mr Culpeper. It demonstrated an issue of credit upon which her Honour should have relied.

PN362

SENIOR DEPUTY PRESIDENT MARSH: Can you just encapsulate for me, in the context of House v R, the nature of the error? Is it that her Honour failed to take relevant factors arising from the evidence into account in making findings or drawing inferences, or is it that she misdirected herself in her inquiry?

PN363

MS ZEITZ: We say she misdirected herself on the inquiry. Having misdirected herself, then embarked upon effectively a forensic inquiry as to what occurred and, to that extent, relied upon information inappropriately or drew wrong conclusions on the facts. We say on the basis of House v R, when consideration is had to the material and the evidence that was before the employer at the time, which was not shown to be in error, we say that it would be one thing for an employer to dismiss on the basis of facts as it believed them to be at the time, and then by the time the matter gets to the Commission, some previously undisclosed fact becomes apparent upon which the Commission should properly interfere.

PN364

The facts, as the parties knew them, didn't change. The facts that were before the employer didn't change. The nature of the explanation by Mr Culpeper, in essence, didn't change and indeed, Mr Evans story didn't change. So we say that her Honour's inquiry should not have been directed to, you know: if I get into the shoes of the employer, what would I have done? What would I have had particular regard to? Her inquiry really was to, given this set of - this piece of information, and the fact that there was a conflict between the parties, unless she could be satisfied on the evidence that someone was blatantly lying, which she has not found, we say that she has misdirected herself on the facts.

PN365

Clearly, the options available to the employer on the facts were to dismiss both employees and indeed that was, as was before her Honour, clearly considered by the employer so the movement to dismiss one in preference to the other was a moderation of its initial position. The initial position of the employer, and this was common before the Commission, was that serious misconduct on board a vessel involving fighting, everybody goes essentially. It is serious and wilful misconduct. The evidence of Mr Dally, who is the Chief Executive Officer of Intercontinental Management, said that discipline on board a ship when you have, in this case, a crew of 17 working in fairly confined areas for periods of time, it is not like a large plant where you would have three or four hundred employees working across a larger distance, able to go home at night.

PN366

This is a confined area, and it is - both Mr Ives, who gave evidence, and Mr Dally and, indeed, Mr Reed all talked about the importance of hierarchy and discipline on board a vessel.

PN367

DEPUTY PRESIDENT BLAIN: Ms Zeitz, to assist further, could you perhaps refer to the specific passage in House v R which you would consider to be the most relevant.

PN368

MS ZEITZ: It is at page 2 of the report we provided and it is at about point 5 and I will just quote it:

PN369

The manner in which an appeal against an exercise of discretion should be determined is governed by established...(reads)... has in fact occurred.

PN370

We say, in this case, that is in essence what has occurred here.

PN371

DEPUTY PRESIDENT BLAIN: That is a very broad passage, of course, with a variety of potential sources of error. You did say, earlier, that you considered her Honour misdirected herself. Conducted, as I understand what you submitted, a forensic inquiry and drew wrong conclusions or facts. It is in fact what you are submitting is there are a variety of errors that are the essence of your case?

PN372

MS ZEITZ: The fundamental error, we say, is her Honour has not conducted what is essentially an objective examination of the material for the purposes of determining whether there was a valid reason for the termination of employment. Her Honour has misdirected herself in that she has crossed what can be quite an easy line to cross and we don't say that with any criticism of her Honour but she has actually stepped into the shoes of the employer and taken on what is referred to in the Hepburn v Department of Justice case, as a process of substituting her own opinion for that of the employer. In other words, she has embarked upon a decision of deciding whether or not termination of employment should occur rather than determining whether a valid reason for termination of the employment has been made out in the context of the case.

PN373

DEPUTY PRESIDENT BLAIN: In relation to that case again, which I asked about earlier, the Hepburn case, are you relying on page 36, that paragraph in the centre of the page there?

PN374

MS ZEITZ: Yes. In particular to his Honour, Spender J, where he said:

PN375

It is not for the Court to decide whether termination should occur or not.

PN376

If the view adopted, by the employer, was rational and reasonable, the employer has established a valid reason for the purposes of the relevant section.

PN377

SENIOR DEPUTY PRESIDENT MARSH: So are you saying, in effect, her Honour confined her examination of the evidence to satisfying herself as to who the aggressor was and in doing so she failed to look at or take into consideration and draw inference on the totality of the evidence which would enable her to decide whether or not there was a valid reason for - yes, I understand.

PN378

MS ZEITZ: Yes. We say she sort of went down a particular path and thereby entered into error. When the totality of the evidence was considered, that conclusion was not reasonably open to her.

PN379

SENIOR DEPUTY PRESIDENT MARSH: Was not reasonably open, I understand.

PN380

DEPUTY PRESIDENT BLAIN: Ms Zeitz, was the focus on the exclusion more so than the interpretation of the evidence that was presented?

PN381

MS ZEITZ: Probably a bit of both, your Honour. It is called an each-way bet. We say there are a few things. Firstly, her Honour, in considering whether the decision of the employer in this case was safe, was not applying the appropriate test. It was not a question of whether it was unsafe, safe, whatever. It was whether it was reasonably open, on the facts, whether there was effectively a valid reason for termination based on the facts. It is not whether it is safe to make an adverse finding by her. The test is not whether you can make - it was safe to make an adverse finding about Mr Culpeper. The test was whether, when viewed objectively, there was a valid reason for the termination. That is where we say the real departure, in this case, has occurred.

PN382

There is some suggestion, from the Commission, paragraph 38, that it considered Mr Culpeper may have been acting in self defence and this is, I suppose, in answer to the other point you raised, when consideration is had to the evidence as a whole, there are a number of other viable explanations for the action. It was not open for the Commission to simply draw the inference that was the only viable explanation for what had occurred. In any event, her subsequent conclusions were not consistent with that finding because having said he acted in self defence, she later finds there was a 50 per cent chance he was the aggressor.

PN383

So there is an inconsistency in her Honour's decision about that finding. We submit her Honour failed to draw the obvious inference from the evidence that were not in dispute. That was Mr Culpeper had been involved in a fight with another employee. He had struck the other employee with sufficient force to cause him to be hospitalised. He was unable to give a plausible explanation as to how Mr Evans came to suffer his injuries and he only suffered minor injuries himself.

PN384

Now, the transcript references for that in relation to his evidence, are found at, variously, paragraph 103, 183 to 187, that is the issue of where Mr Evans' blood injuries came from, paragraphs 226 to 230, which deal with the head injury, 235 to 236 regarding the stapler and 290 to 297 regarding the broken fingers where he asserted or gave evidence that the only explanation he could give for the broken fingers was he had somehow managed to break them while trying to pull Mr Evans' hands from his neck.

PN385

Our submission is that the only viable inference that can be drawn from the evidence was that Mr Culpeper violently assaulted another employee and whether or not there is some degree of merit in his claim of self-defence, he acted excessively. In other words, he became the aggressor in the physical confrontation, even if he did not start out as the aggressor. Had the Commission in our submission drawn the appropriate inferences it could only have concluded that there was a valid reason for termination.

PN386

It is not sufficient in our submission for the Commission to refer to the appropriate test and issues, it has to be apparent from the decision that the Commission has applied the appropriate test, and this is the point that your Honour raised earlier. In her decision, her Honour having set the test, has then embarked upon quite a narrow consideration, in other words who was the aggressor, and has failed in our submission to consider all of the material that was before her. In particular, the nature of the injuries and the inconsistency of explanations which pursued the case throughout and remained in dispute right through to the end.

PN387

We say further that the Commission having concluded that even if there was a valid reason for termination, the dismissal would still have been harsh. It was a conclusion that was not reasonably open on the available evidence for the following reasons. Now, firstly, it is well established in this Commission and the cases that we have referred to certainly support it, an act of serious misconduct may in isolation justify serious summary dismissal. It paid no regard to the obligation of the employer to ensure the safety of its employees and the decision BHP that I referred to earlier, Jankowski's case, certainly identified the factor of a safe working environment as a matter that should be appropriately taken into account.

PN388

It involved her Honour reaching conclusions on the evidence that were not open to her and I have cited one example, which was her conclusion about the punching and the injury to Mr Evans' hand. Similarly, in relation to her other conclusions she found - this is at 38:

PN389

The possibility that Mr Evans had consumed some alcohol, no matter how small.

PN390

The only evidence before her Honour was that Mr Evans underwent a blood alcohol - a breathalyser test, my apologies - at the local police station and was told that there was no basis upon which - he had not passed whatever the appropriate test was - they didn't in fact give him a reading. There was no evidence before her Honour other than some hearsay evidence that was referred to, upon which she could have safely drawn any conclusion regarding the consumption of alcohol. Mr Evans had conceded that he had had two glasses of wine, I think it was - two or three I think it was - between the hours of 2 pm and 3 pm that afternoon in the Qantas Club while flying to Portland and that is the only evidence of alcohol consumption that was before her Honour.

PN391

We say that there was certainly no evidence to suggest - and upon which a conclusion could properly be drawn that Mr Evans was somehow having consumed alcohol, no matter how small - and that is her Honour's words - that somehow contributed to the events. We say that that was a misdirection on the facts that were before her, given that there was no evidence that he had consumed alcohol and given that it was open to the - sorry - that he had consumed only a small amount of alcohol and given that it was open to Mr Culpeper to have sought to call that evidence at first instance if they had seriously sought to rely upon it.

PN392

Her decision also fails with respect to have regard to the notion of a fair go all round and focuses instead on the impact of the decision on the employee. I have referred briefly to the nature of the workplace, its confined nature, the fact that there are only 17 employees on board and that they spend a considerable amount of time together and I have also referred to the fact that Mr Culpeper had a very senior position with his employer and on board the vessel and that his conduct - and her Honour we say on the facts should have found that his conduct was inconsistent with the relationship of trust between employer and employee and the position of responsibility that he held.

PN393

Now, we also say that her Honour took a fundamentally flawed approach to the issue of re-employment and that it amounted to an error of law because it failed to have regard to relevant considerations. Now, we say that she failed to give appropriate weight to all of the relevant evidence in reaching her conclusion and we say that that is the case because the evidence of Mr Ives, which was unchallenged, was that the crews on board the vessels had indicated that they didn't wish to swap vessels to accommodate reinstatement - that is at paragraph 795 to 798 of transcript. Mr Dally gave evidence about the issue of fighting on ships being a matter of considerable concern, that is at 1540 to 41, and also at 1626 to 7.

PN394

The evidence of Mr Reid about the practical difficulties of supervising two employees such as Mr Evans and Mr Culpeper were reinstatement to be ordered, on the basis that her Honour found that they could be supervised and she acknowledged that that would create some difficulties, but believed that should occur. I want to go just briefly to paragraph 53 of her decision, where the Commission found that:

PN395

I do not believe a recurrence is at all likely. Both men have had a real wake up, whoever is the guilty party. They face the consequence of their long term antipathy.

PN396

Etcetera. There was no evidence before her that either Mr Evans or Mr Culpeper resiled from the positions they had held since the outset, that is, that the other one started it. There was no resolution of the matter between Mr Culpeper and Mr Evans that took place before her Honour, or that was evidenced in any way before her Honour. Nor was any apology proffered by either to the other in the context of the proceedings. The matter is not resolved at all in terms of the material that was before her Honour and we say that that was a conclusion that again demonstrates what we say was the fundamental of her stepping into the employer's shoes. This may be a view she genuinely held and wished to be the case, but it was not supported by any of the evidence.

PN397

She then found at paragraph 55 that the respondent can operate if the applicant is reinstated. Now, that isn't disputed but what was disputed is the degree of difficulty that would occur. Mr Reed indicated that for him to supervise the handover, he would have to be absent from other duties and it would take time, and I think his evidence was at 936 to 45 and 960 to 963 that it was simply impractical or untenable for him to have to be removed from his duties as master of the vessel to supervise two chief engineers during handover.

PN398

He was asked if it was possible for junior officers to supervise and he said that that wasn't appropriate, given the seniority of the two gentlemen involved. We say that her Honour failed to give adequate weight to the practical difficulties of reinstating Mr Culpeper to the position on board the MV Portland. I note that her Honour then at paragraphs 58 through to 60 then suggests that there can be a swap between the vessels. Now, we simply say that to the extent that her Honour has made that suggestion, she has misdirected herself with respect to the application of section 170CH where CH(3)(a) talks about reinstatement to the position that was held.

PN399

On an alternative to that, which is in CH(3)(b), is reinstatement to another position. Now, the position held by Mr Culpeper was chief engineer on board the Portland. If her Honour was to make the finding that the vessel - that it inappropriate that he be reinstated to the Portland, she should have made that finding, in our submission, and by not doing that she has misdirected herself and should then have considered as a separate question whether it was appropriate to order reinstatement to the MV Lindsay Clark. The two vessels operate broadly in parallel. They both perform - similar size vessels, similar crews doing - both perform charter work for Alcoa.

PN400

At paragraph 59 she again indicated that employment on another vessel was a possibility. Again we say that is a misdirection pursuant to section 170CH(3) and was also contrary to the evidence of Mr Dally who gave evidence that the two vessels are covered by a certified agreement with the same terms and conditions but other vessels that the appellant operates, operate under different employment arrangements that are quite distinct. So we say that in giving priority to reinstatement, the Commission has failed to give weight or appropriate weight to all of the relevant evidence in reaching its conclusion. Instead her Honour has focused upon the impact upon the employee and there she has talked about the loss of employment and the economic issues that arise from that.

PN401

We simply note that in the conduct of the case, Mr Culpeper gave evidence that he had obtained relief work as an engineer. Mr Ives gave evidence that there were, since the termination of his employment, positions available and in fact advertised by another shipping company, ASP. That is at paragraph 543 of transcript. Mr Culpeper indicated that he had made no inquiries of shipping companies for work, although he had picked up casual work with Stolt Nielsen, what is called relief work, for periods during the year. Her Honour in her conclusion has made no reference at all to the amount that Mr Culpeper may have received by way of remuneration, had his employment not been terminated.

PN402

We say that the Commission did not address itself with respect to the effect of the order on the viability of the employer's undertaking. We say that goes simply beyond economic viability. All that it did was note that the respondent could - sorry, the appellant in this case could operate if Mr Culpeper was reinstated and, as I've noted, put forward a number of suggestions as to how this might occur, and we say that that is a fundamental misdirection of the way in which section 170CH(3) is to operate. In summary, we say the appeal should be upheld for the following reasons. Firstly the Commission applied the incorrect onus of proof. While the appellant in this case had the evidentiary burden of proof, the onus of proof to establish that the dismissal was harsh, unjust or unreasonable rested and remained with the respondent throughout.

PN403

Further, that the test to be applied was whether there was a valid reason for the termination of employment, we rely upon Hepburn v Department of Justice for that proposition, and not whether in the Commission's opinion it would have made the same decision as the employer. We say that is where the fundamental error arose. With respect to her Honour, she misdirected herself as to the meaning of misconduct and consequently incorrectly determined the issue which then led to an incorrect assessment of whether or not the dismissal was harsh, unjust or unreasonable.

PN404

Further we say the Commission should have found that the acts of the respondent were a valid reason for dismissal, regardless of their characterisation. Given the amount of material that was before her Honour, we say that consistent with the High Court in House v R, it is clear that the conclusions her Honour has reached have resulted in her acting upon - arise from her acting upon a wrong principle and thereby allowing extraneous or irrelevant matters to guide or affect her, taking into account matters that were not appropriate for the test which was to be applied.

PN405

In any event we say the Commission incorrectly ordered the re-employment of Mr Culpeper on the material on the evidence before her. The particular circumstances of the vessel mitigated against reinstatement. Those issues were properly drawn to the attention of her Honour in the evidence of Mr Dally, Mr Ives and Mr Reed. I've given those references. On that basis we say that the Commission as currently constituted should overturn the decision of her Honour and we ask for the application of Mr Culpeper - for the order of her Honour, the decision order of her Honour to be set aside and Mr Culpeper's application to be dismissed.

PN406

I note too that the reference to the Commission having incorrectly calculated compensation, we say that that arises because her Honour did not take into account in full the earnings of Mr Culpeper during the period since his termination of employment.

PN407

SENIOR DEPUTY PRESIDENT MARSH: Just on that past point, Ms Zeitz, her Honour's order says that:

PN408

The respondent shall pay the applicant all entitlements, etcetera, less any moneys, it is agreed, that the applicant has earned in other employment from the date of termination to reinstatement.

PN409

Does that not meet the criticism that her Honour didn't take in to account income that Mr Culpeper had earned subsequent to his termination?

PN410

MS ZEITZ: I think it does, your Honour.

PN411

SENIOR DEPUTY PRESIDENT MARSH: She does not refer to it in the decision, but the term of the order does provide for that.

PN412

MS ZEITZ: And on that basis I won't pursue that last point. I think at the time, my memory, of course, when we filed the appeal the order was still a bit behind the decision. So I won't pursue that particular aspect.

PN413

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN414

MS ZEITZ: Your Honour, I do have some comments to make on the filed submissions of the respondent but I propose to wait until my friend - to do that by way of reply.

PN415

SENIOR DEPUTY PRESIDENT MARSH: I think that would be more convenient, yes, thank you.

PN416

MS ZEITZ: Unless there are any questions?

PN417

SENIOR DEPUTY PRESIDENT MARSH: Any more questions?

PN418

DEPUTY PRESIDENT BLAIN: Ms Zeitz, you used the word "misdirect" on a number of occasions seeming to place strong emphasis on it. I wasn't clear, from your submissions, whether you were deriving that word from case law or whether in fact it was a logical way of which you were putting the case and I'm wondering if you can clarify what you actually precisely mean by "misdirect"?

PN419

MS ZEITZ: At paragraph 32 of our outline it actually says "this direction", it should be "misdirection" so I will make that amendment. I suppose if I use it in the context of that it is generally understood that in embarking upon a consideration of the statutory function that the Commission is to perform the Commission would look at the - or consider the tests that it is required to apply and then which essentially sets the legal framework and then apply those two particular facts of the matter.

PN420

What we say occurred in this case is that her Honour having formulated the test appropriately in the beginning of her decisions when it came to applying the test, that is, whether there was a valid reason for termination of employment to the facts she, in fact, didn't do that. What she did is said, she effectively put herself in to the shoes of the employer and therefore applied the wrong legal test, that is, would I have dismissed the employee in these circumstances. That is a very simplistic or simple annunciation of what we say occurred and by, in a sense, immersing herself in the facts of the matter she lost sight of that fundamental test and, in fact, misdirected herself as to what the test was.

PN421

DEPUTY PRESIDENT BLAIN: So is it correct to say, from what you are saying, that originally she did direct herself correctly, but subsequently misdirected herself when it came to applying statutory tests to the facts of the case, is that - - -

PN422

MS ZEITZ: We say at the beginning of the decision she clearly correctly stated the legal position and the test that was to be applied. However, when she - if you will excuse the analogy, embarked upon the journey of then considering the material that was before her she hasn't applied that test to the material. What she has done is actually embarked upon a consideration of the material and applied a different test to it.

PN423

DEPUTY PRESIDENT BLAIN: Thank you.

PN424

SENIOR DEPUTY PRESIDENT MARSH: Anything else on that?

PN425

MS ZEITZ: If there is nothing further, I will - - -

PN426

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much, Ms Zeitz. Mr Taylor?

PN427

MR TAYLOR: If it please the Commission, I, like Ms Zeitz, will stick in general terms to the form of the submissions that were filed, but I wish to start by just examining the decision of her Honour at first instance briefly and the way in which her Honour had approached it. I now appreciate my friend's position a little bit clearer in answer to your Honour, Deputy President Blain's question that it is not now put that the wrong test was put by her Honour, but rather when she came to actually apply the test she applied it - or she either applied a different test, or applied the correct test wrongly.

PN428

If I could start with the decision and the way in which her Honour, in fat, approached the matter. The bench would, of course, be familiar with the fact that the decision has a structure of firstly, in the first 25 paragraphs setting out background facts and as I understand it nothing that the appellant says contradicts anything that is said there. There is no issue on appeal taken to those matters set out in those first 25 paragraphs and they include, of course, her Honour's findings that the applicant had long standing employment, since 1982 with the predecessor tot he current respondent, over 20 years and since 1986 in the position of a chief engineer.

PN429

Ms Zeitz says that is disputed. The fact that he has been chief engineer since 1986, I understood was his evidence and I didn't understand he was cross-examined about that and I didn't - certainly there is no appeal point taken as to her Honour's findings about that. Her Honour notes, of course, that there is only one incident relied on by the employer in this case, that is, the fight with Mr Evans. There is no other past conduct of this employee which was raised and, of course, as we come to later, a factor her Honour took in to account in determining harshness and in determining reinstatement is this issue of past work history.

PN430

She notes, of course, at paragraphs 13 and 14 of her decision the essential versions that were put as to what occurred during the fight and she notes that the outside investigator, Mr Moran, was initially unable to determine who was the aggressor. He was then asked by the company if he could try harder, in a sense, to write a second report to actually try and identify who was in fact to blame. It was only on that second report that Mr Moran concluded that on balance noting inconsistencies on both sides he thought, on balance, the respondent, Mr Culpeper, had been the aggressor and the employer's evidence was that it then accepted that recommendation and dismissed Mr Culpeper and did not dismiss Mr Evans.

PN431

The letters that were sent to both Mr Culpeper and Mr Evans are in evidence behind tab 9 of the Appeal Book, that is part of the bundle of documents that were tendered by ISM and the letter of dismissal was document 23 - sorry, the letter to Mr Evans was document 23 and that stated, amongst other things, that:

PN432

There was a physical altercation which was initiated by Mr Culpeper and resulted in injury to you. Your conduct was consist with you acting in self defence. You complied with the company policy.

PN433

And on that basis he was not dismissed, whereas the letter that was sent to Mr Culpeper, which is document 25, said that he assaulted Mr Evans to the point that he suffered actual injury requiring medical treatment. So that was the basis upon the company moved and very much on the basis of the report of Mr Moran as her Honour set out. Now Ms Zeitz did say early this morning that the employer started on the basis that everyone goes for fighting. I don't think she is entirely fair to her client there. In fact the company's approach on the evidence consistent indeed with the approach that her Honour took at first instance. The approach that we think that would be accepted on appeal as the correct approach is that mere fighting is not a sufficient basis for dismissal.

PN434

You need to actually show that there was some misconduct on the part of a person before they are dismissed. If you are attacked by someone the fact that you are in a fight does not itself mean there is a basis for dismissal. Now the evidence of the respondent on this can be found in appeal book 1. Mr Ives firstly put on his statement which is on tab 3 and at paragraph 47 he said this. They had a second report by this stage in his evidence and he said that he discussed it with Mr Dally who is the managing director of the company and concluded on the basis of the investigation that Mr Culpeper was the aggressor and then he says this:

PN435

I was aware that one of the difficulties in sacking both employees is that one would possibly be justified ...(reads)... defending himself was not unfairly treated.

PN436

We say that is an appropriate approach and her Honour certainly was very mindful of that too. Mr Dally, the managing director, gave similar evidence. His statement appears behind tab 7 in volume 1 and at paragraph 42 of his statement he said this:

PN437

A factor that went into my thinking was that it is generally somebody who instigates this kind ...(reads)... because of the other's aggressive behaviour.

PN438

Ms Zeitz opened the case on a similar basis and we say again, correct basis. At paragraph 26, the final two sentences of that paragraph Ms Zeitz said this:

PN439

In other words, if one of them was a victim of assault that would perhaps mean that only one was to be dismissed ...(reads)... or only one should be dismissed.

PN440

Now we say that what her Honour was asked to do by the parties, both parties, was to determine on the objective evidence that was presented before her whether, in fact, there was a valid reason, namely, that Mr Culpeper had committed an act of misconduct in the course of this altercation. The onus as Ms Zeitz correctly submits, was on the company to demonstrate that that act of misconduct occurred and ultimately failed in that. Her Honour had it made a discretionary decision that there was not an act of misconduct.

PN441

Now Ms Zeitz criticises the fact that her Honour focused in her approach to determining whether misconduct occurred, focused very much on the question of who was the aggressor. Matters, at first instance, have of course to be understood against the background in which the cases were put and it was clearly a case of both parties were putting very strongly that the other person so to speak was the aggressor. Mr Culpeper's counsel's case was clearly put on the basis that Mr Culpeper was the victim of an assault and was merely defending himself and that the injuries that arose, which I will come back to, the injuries and the criticism, that there is no acceptable explanation of them. I will came back to that.

PN442

But it was squarely put that the injuries that arose to Mr Evans arose in the act of self defence and Mr Evans's case was squarely put by the respondent on appeal - sorry, the appellant on appeal that to the contrary, Mr Culpeper had been the aggressor and the injuries that he suffered were merely the effect of actions in self defence by Mr Evans. So the expression, who is the aggressor used in the reports of Mr Moran, the company's reports, used by counsel in the address became a shorthand manner of asking the question, which version is to be accepted. Was, in fact, Mr Culpeper attacking or clearly the alternative, was Mr Culpeper merely defending himself from an attack and that is how the injuries arose.

PN443

I can stand to be corrected by my friend but I didn't appreciate in reading the submissions that were put before her Honour that a submission to the effect that even if Mr Culpeper was not the aggressor he, in effect, became the aggressor at some stage during the fight. He was not cross-examined on that basis. He was cross-examined on the basis that he was the aggressor at all material times and I don't appreciate that in the submissions that it was put to her Honour that at some stage an alternative finding that she could make is that at some stage Mr Culpeper took over as the aggressor.

PN444

That the case was always squarely put on the basis of one of them was acting in self defence and one of them was the aggressor and her Honour ultimately, of course, determined that the onus on the employer to show that Mr Culpeper had done some act of misconduct that was not made good. Before I continue in looking at the decision can I just note also the submission that Ms Zeitz put at paragraph 1779. That is something which is quoted at paragraph 29 of the submissions, the respondent's submissions and towards the end of that paragraph there was an acknowledgment we say below. The issue of self defence and who was the aggressor was the central issue for the Commission to decide.

PN445

That is how the case was being put and we say against that context it is entirely appropriate the way in which her Honour went about determining whether there was a valid reason and whether there was, in fact, misconduct on the part of Mr Culpeper. Now returning to the decision. The first 25 paragraphs as I have noted deal with facts in a way which I don't understand is challenged. At paragraphs 26 through to 28 uncontroversially set out the legislative framework and quote from the leading decision in Byrne, B-y-r-n-e in Australian Airlines which, of course, includes the passage that if someone is not guilty of misconduct that might be a basis upon which a decision to dismiss was unreasonable, harsh or unjust.

PN446

Her Honour then from paragraph 30 onwards - sorry, 29 onwards, that deal with her - sets out her conclusions. At paragraph 30 she notes that both Mr Evans and Mr Culpeper might have been confused about the events during the fight but one of them was not telling the truth as to how the fight commenced. At paragraph 32 her Honour notes the employer having a difficult task when it went into the process of attempting to draw inferences from facts and noted, of course, that if the employer was right then that is fine. If the employer is wrong then an innocent man has been dismissed and a guilty man is still working.

PN447

Paragraph 36, her Honour made it clear that what she was not doing is reviewing the decision of Mr Moran and when she says reviewing the decision of Mr Moran that, of course, is the recommendation which the employer then implemented in deciding that Mr Culpeper was aggressor should be discussed and Mr Evans had been only acting in self defence and should be retained.

PN448

So she is not acting as a review of that. She herself is independently determining whether misconduct occurred. That is the approach she then adopts, and we say is the correct approach. I think, if I understand Ms Zeitz correctly, Ms Zeitz says: that that is indeed the correct approach. That it is appropriate for the Commission itself to determine on the objective evidence whether, in fact, misconduct occurred, which is about reason. I don't believe we are at issue now, as I understand her oral submissions about that.

PN449

At paragraph 37 her Honour concludes that: it is impossible to reliably conclude who attacked who. It is simply not enough evidence. While her Honour does not mention the Briginshaw test explicitly, it is clear that what her Honour is doing as she states in paragraph 37: is engaging in a process of attempting to determine the matter on the balance of probabilities, but in circumstances where she has to be satisfied that the misconduct occurred.

PN450

Of course, the Commission would be familiar with the Briginshaw test and the fact that where an employer is alleging conduct which amounts to criminal conduct, in this case an assault, the Commission would apply the usual civil standard about probabilities, but would apply that on the basis that it has to be satisfied on the balance of probabilities that that conduct occurred. Her Honour concludes: that she could not be satisfied on the evidence. Indeed she goes so far as to say that if she had to engage in the process that Mr Moran was engaged in and she was obliged to produce an answer, she would probably decide the other way.

PN451

In paragraph 38 she gives some reasons for that, and those reasons I will come back to. They are amplified at paragraph 46 about - of my written submissions and we, indeed, have some further factors that we say would also point towards Mr Evans being more likely to have been the person who attacked Mr Culpeper, but I will come back to that.

PN452

SENIOR DEPUTY PRESIDENT MARSH: Why is that relevant to this appeal, this reason that her Honour's made a finding that there's insufficient material.

PN453

MR TAYLOR: Yes.

PN454

SENIOR DEPUTY PRESIDENT MARSH: That is her finding upon which her decision is deposited.

PN455

MR TAYLOR: Yes.

PN456

SENIOR DEPUTY PRESIDENT MARSH: She then says: if she was obliged to engage in the process that Mr Moran was engaged in and obliged to produce an answer, she would probably decide the other way, and then goes in to explain why. Now, that is not a finding your Honour has made. She does not rely on that in any way. She relies on the finding that there's not sufficient material to conclude who was the aggressor.

PN457

MR TAYLOR: Yes, your Honour.

PN458

SENIOR DEPUTY PRESIDENT MARSH: For that reason goes further. So I really fail to see the relevance on appeal to taking it any further than that, than the finding on which she then concludes there wasn't a valid reason.

PN459

MR TAYLOR: Yes. Well, we certainly say you don't need to take it further than that, but we rather understood our friend's position on the way in which the appeal points were put, and the way in which the submissions in writing, at least, were put, that it was going to be actively asserted that she was wrong and then, in fact, Mr Culpeper was the aggressor. So in that sense, the bench can be assisted in understanding why - - -

PN460

SENIOR DEPUTY PRESIDENT MARSH: Yes. I understand that argument, if she overlooked or gave the wrong weight, etcetera to relevant considerations or irrelevant considerations or facts. The context in which you are saying is that you would probably have decided the other way and then explaining that that is somehow of relevance. I don't consider it to be relevant.

PN461

MR TAYLOR: Yes, but it - - -

PN462

SENIOR DEPUTY PRESIDENT MARSH: It is relevant to look at the weight of the evidence in the context of her Honour's finding that there was insufficient material to make - to conclude on balance who the aggressor was but, I think, there's a distinction.

PN463

MR TAYLOR: Yes. I accept that distinction, your Honour. For our part we say that once the Commission as constituted forms a view that there is nothing plainly unjust or unreasonable in the conclusion that her Honour's drew, that the employer had failed to meet its onus approving misconduct the Commission, I feel, does not need to go further and say whether, in fact, her Honour was right that if you had to decide one way or the other maybe, in fact, it was Evans, it is sufficient for our part that the employer failed to meet its onus.

PN464

It is only relevant here, we say, that wherein the decision is being attacked for not having considered certain factors it is relevant for the Commission to be aware of the fact that her Honour had certain factors in mind which pointed one way, but ultimately those factors weren't in themselves sufficient to determine one way or the other.

PN465

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN466

MR TAYLOR: That is as far as we put it.

PN467

SENIOR DEPUTY PRESIDENT MARSH: Yes. I understand. Thank you.

PN468

MR TAYLOR: At paragraph 40 her Honour, in a sense, reiterates the lack of evidence to draw a safe adverse finding. Again, without using the language in Briginshaw her Honour is clearly saying that she was not satisfied that the allegation of criminal conduct occurred that such that a finding could be made of misconduct. At paragraphs 43 and 44 her Honour rejected the submission that was put by Mr Culpeper's counsel at first instance, Mr Reitano, that even if Mr Culpeper had, in fact, been the aggressor a dismissal, in the circumstances, would be harsh.

PN469

She says that is - so she rejects that submission, but as we see when she goes on she finds there was a lack of valid reason. She also has an alternative basis to which I will come. She in paragraph 45 specifically addresses 170CG(3) and we understood that there would be an attack on her Honour by way of, as it appeared from the written submissions, that her Honour had not properly taken into account matters there. She with respect, we say that her Honour clearly applied herself to the factors in 170CG(3) and concluded in paragraph 46 that:

PN470

As there was no valid reason, the dismissal was harsh, unjust or unreasonable.

PN471

Then in 47 her Honour put an alternative basis, and we say that the way in which this was put in submissions by the appellant as to what she found he is, is not entirely correct. I think, the appellant put this at 18.6 of the written submissions. I mentioned that as a reference. Her Honour found that because there could be no certainty as to who was the aggressor, then the dismissal would be harsh, even if there was a valid reason. Implicit in that, I submit, is that she was saying: even if it was to be said that being in a fight and causing the injuries that were caused is a valid reason, in circumstances where you could not be certain that Evans had not been the aggressor it would be harsh to dismiss, given the one-off nature of the office.

PN472

Given the history of the employee. It is important to make it clear that what her Honour was doing there was predicating that on her finding that there was no certainty as to who was the aggressor. Something which maybe inadvertently, was not picked up in 18.6 of my friend's written submissions, and we will come back to, but we will submit that that would be an alternative basis that this Commission as constituted could find that the decision was correct. If you can't be certain who was the aggressor, even if there was a fight, even if there were injuries, to conclude given that you can't be certain, and the employer has failed to prove that Mr Culpeper was not attacked in the manner in which he said, that it would be anything other than harsh to dismiss in those circumstances.

PN473

As I said, the employer, to their credit, that was the position that they took. They were not satisfied with the position of terminating someone merely because they had been in a fight. They were concerned that that might result in an innocent person being dismissed. We say that that was an appropriate approach and an approach that her Honour was asked to take and took legitimately and appropriately. Her Honour then, from paragraph 48, deals with the question of remedy and reinstatement. Her Honour set out, we say, all the key relevant facts that were put before her with respect to the issue of reinstatement and I will come back to the submissions my friend made attacking them.

PN474

Just to identify the key aspects, at paragraph 48 her Honour noted that Mr Evans and Mr Culpeper would be required to be in each other's presence for a short period of every 6 to 7 weeks and, of course, the bench is familiar, from Ms Zeitz' opening, that the shift works on swings. The evidence, undisputed evidence, is as the new swing came in there would be a meeting of the chief engineers. That would take - there was various evidence but the highest point was 30 minutes and most of the time referred to 10 to 20 minutes - a meeting between these two people where they would hand over, by way of just bringing each other up to day. The evidence was it could be done quickly because there were detailed written notes that were provided as part of a handover process.

PN475

At paragraph 49, her Honour notes that normally termination of employment arises at fighting because there is fault of both parties. However, in this case, one is the aggressor, one is innocent, one is guilty. It can only be one or the other. She says she cannot be comfortable contemplating the termination of employment of either one of these gentlemen if there is a possibility that he is innocent. In my opinion it would be harsh, unjust or unreasonable to terminate either of the employees who were involved in this altercation. However, in this application, I can only consider the circumstances of the applicant, I will confine my remarks to his circumstances.

PN476

It is worth noting her Honour was mindful of evidence that had been given by Mr Dally, that if ultimately the Commission concluded that Mr Culpeper had been the victim of an attack by Mr Evans, they would take Mr Culpeper back and then dismiss Mr Evans. Indeed, the letter Mr Evans was sent, that I mentioned as document 23 behind tab 9, makes that clear to Mr Evans that if ultimately a Tribunal finds that indeed he was the aggressor the company would dismiss him instead. Her Honour was obviously mindful that in having to determine this matter that while she only had the application of one person before her, in a sense, she was aware her decision might have an impact on Mr Evans to and I would suggest it was against that background her Honour made the comments she did in paragraph 49.

PN477

In paragraph 50 her Honour ultimately says she can't determine who was the aggressor. There was a fifty 50-50 per cent chance that Mr Culpeper was the victim. She notes his seniority, his employment record, his age - I do not think it was dispute he was 50 years old at the time - the effect of termination would be very serious, truly terrible to contemplate the possibility the applicant's employment has been terminate din circumstances where he might not have started the fight.

PN478

Her Honour, in paragraph 52, does consider those things that were put by the employer, about the nature of the industry, does take them into account. Finds, paragraph 53, that a recurrence is not likely and then finds that, as her Honour can't determine guilt, she believes it is preferable to restore the applicant to employment. At paragraph 55 considers whether that means the employer can't operate. At paragraph 56 to 60 considers the practicality of reinstatement against a background in which she was clearly aware, given what she says in those paragraphs, of the evidence that had been lead by the employer about the difficulties involved. Her Honour, in some ways more detailed than might often be done, actively contemplates why, indeed, there is nothing impractical about reinstatement in the circumstances.

PN479

SENIOR DEPUTY PRESIDENT MARSH: Mr Taylor, in the course of your submissions you are going to address the failure of her Honour to expressly have regard to each of the statutory requirements in 170CH?

PN480

MR TAYLOR: Yes, I will, your Honour. I did intend to deal with the matter hereafter in the form of submissions by examining the different grounds of appeal and that particular matter arises under the last heading: Remedy. In short I will be submitting while her Honour might not have expressly referred to the section, her Honour did in fact take account to the extent to which - - -

PN481

SENIOR DEPUTY PRESIDENT MARSH: Well, that is all very well but the authorities say you must expressly - a member, in considering remedy must expressly have regard to each of the considerations under 170CH. Numerous decisions of the Commission go to that point.

PN482

MR TAYLOR: Your Honour, to anticipate the submission - - -

PN483

SENIOR DEPUTY PRESIDENT MARSH: That is why I am interested in the submission. I have read your written submission.

PN484

MR TAYLOR: Your Honour would be aware then that the submission we put is that her Honour, while not specifically mentioning the section, did actively consider those matters - - -

PN485

SENIOR DEPUTY PRESIDENT MARSH: Yes, I know that is the submission, that is not what the authorities say, Mr Taylor.

PN486

MR TAYLOR: I see. Well, your Honour, the submission that would be put is a fact of the member of the bench does, in the decision, refer to the section number itself would not ultimately be a basis for overturning the decision if the bench was satisfied that the Commission, at first instance, had in fact considered the matters appropriate. On appeal, the bench would normally move from the premise that the Commission at first instance has approached the matter properly unless it is clear that facts or circumstances reveal there was a matter of importance that was overlooked. If her Honour has taken into account those things which a bench at first instance would take into account if they had set out the section and addressed each one, then there would be no basis for overturning the matter on appeal, I would submit.

PN487

SENIOR DEPUTY PRESIDENT MARSH: I am interested in that submission.

PN488

MR TAYLOR: The starting point is, of course, leave to appeal. The written submissions that I rely on deal with that at paragraph 6 to paragraph 11 and not, of course, leave to appeal is not a formality. An error has to be demonstrated rather than simply demonstrating a different person might have decided the matter differently. Ultimately the test is whether the matter is of such importance that in the public interest leave should be granted and the submission of the respondent is that where you have what is, in essence, a discretionary decision, based on an analysis of the facts, an every day discretion or decision about whether misconduct occurred or not, there is not the public interest in granting leave to appeal.

PN489

It is, of course, important to ensure the standing of the Commission at first instance, that leave to appeal is not granted readily and only in an appropriate case. In circumstances where you have, essentially, two conflicting versions of facts and the Commission, at first instance, choses to prefer one or, in this case, choses ultimately to say the employer's version was not proved to the requisite standard, the Commission is usually slow, absent clear error to grant leave to appeal to allow consideration of that type of case.

PN490

The focus of the appeal, as we understood it and as was submitted today, was her Honour applied the incorrect test. As I indicated at the outset we now understand it is put on the basis her Honour had the correct test in mind but did not necessarily apply it. It is submitted that ultimately the correct approach that would be taken in a case of this type, a fight case where the employer is relying on serious misconduct, is the approach that is set out at paragraph 30 of the written submissions and which is a summary of the authorities, which I wish to take the Commission to in cases of this type.

PN491

Importantly, in circumstances where Ms Zeitz, as I understand it, is suggesting that what her Honour wrongly did was to immerse herself in the facts, rather than to consider whether the decision of the employer was reasonable, which with respect we say is the wrong approach. What her Honour did was that which is noted in paragraph 21 of the written submissions it has been held needs to be done and, that is:

PN492

Considered actively whether in fact the conduct relied upon occurred.

PN493

I refer there as the written submissions do to Moore Js decision in Edwards v Giudice. Her Honour correctly moved on the premise that she had to determine whether in fact the conduct which is said to be the basis of the valid reason for dismissal in fact occurred. She moved correctly on the premise that the employer had the onus to prove that conduct occurred and ultimately found as a discretionary decision, having heard the facts, that misconduct was not made out to the requisite standard.

PN494

Can I take the Commission to - sorry, before I do that, I just note that the submissions that are set out at paragraphs 23 about the onus - and that does not seem to be in issue - and the Briginshaw standard which is noted there - can I take the Commission to some of the authorities mentioned in paragraph 24, at which is discussed directly the approach that is appropriate to be taken in a fight case, where there is a defence in a sense of self-defence. The first of which is Yew and that appears behind tab 1 of the folder of authorities that my instructing solicitor has prepared for the Commission's assistance today.

PN495

Yew v ACI Glass Packing Pty Ltd (1996) Volume 71 of the IR at 201, is a decision of Wilcox J, a Chief Justice of the Industrial Court of Australia. It was a fight case involving two employees and Yew was dismissed in circumstances where the employer had determined that he had been the aggressor and had caused injuries to Mr Swadling. The matter was heard, as matters were at those times, initially before a Judicial Registrar, so the matter was before his Honour on review and that, of course, meant that he was dealing with a de novo hearing, not an appeal, in the sense that we are here today, but his Honour had to determine for himself in the manner that Senior Deputy President Drake did, whether in fact the misconduct occurred.

PN496

He was doing that on the papers. The nature of the review process was he was reading the evidence below, but determining the matter on the papers and that, of course, left him with a difficulty that he had not seen the witnesses and heard the cross-examination, he only read it. Ultimately, his Honour determined that in those circumstances he was not able to be satisfied that the employer had proved misconduct. He had two competing versions and he could not on the papers determine that misconduct had occurred. A similar finding to the approach that her Honour took that in her case she did hear the evidence, but even with that benefit she could not conclude that the misconduct occurred.

PN497

Can I in particular take the bench to page 204 and at about point 3 on the page - sorry, about point 4 on the page there is a paragraph that starts, "neither account". He says:

PN498

Neither account of the commencement of the fight is inherently improbable.

PN499

Then he says, the next paragraph says this:

PN500

Because of these conclusions about motive my inclination is to think that Mr Yew's account of the commencement of the fight is a little more likely than that of Mr Swadling.

PN501

In that sense, if I can stop there, one might draw some analogy to the way her Honour dealt with in paragraph 37 and 38, the possibility that maybe Mr Evans' account is a little less likely than Mr Culpeper's. His Honour continues:

PN502

But it is not necessary to reach that conclusion, it is sufficient to say that in the absence of seeing and hearing both men I cannot be satisfied on the balance of probabilities that Mr Swadling's version is to be preferred. As ACI bear the onus of proving that there was a valid reason for the termination of Mr Yew's employment, and I am not satisfied that Mr Swadling's version is correct, I would be justified in holding that ACI has discharged this onus only if I concluded that Mr Yew's own account establishes a valid reason for termination of his employment.

PN503

His Honour is certainly moving on the basis, we say an uncontroversial basis, that his Honour has to determine whether in fact the misconduct occurred, unable to do that. He then goes on to note that counsel for ACI contended that the mere fact of fighting was sufficient. His Honour then continues on page 205, the first full paragraph:

PN504

These considerations justify an employer taking a serious view about fighting in the workplace, especially where the fight takes place in the vicinity of heavy equipment, or industrial products as in this case. There is a serious risk of injury to one or both combatants.

PN505

As Moore J recognised:

PN506

It is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a no fighting policy is to be enforced fairly the employer must look behind the fight itself and examine its causes.

PN507

We say her Honour at first instance took that approach of rejecting any suggestion that mere fighting is sufficient to examine whether in fact there was evidence to satisfy her that there was a situation where the applicant at first instance had acted other than in self-defence. Just dropping down the page I will conclude by reading the passage that is at about point 5, that starts:

PN508

I do not wish...

PN509

Here, his Honour is referring to Mr Wilson who did the investigation as to whether the fight occurred and he says this:

PN510

I do not wish to be unduly critical of Mr Wilson, he was faced with a difficult and unpleasant task. I have no doubt he carried it out conscientiously, although he seems not to have sufficiently analysed the facts. For the purposes of this case the critical question is not the sufficiency of Mr Wilson's investigation, or analysis, but whether the evidence establishes that Mr Yew was the aggressor. On Mr Swadling's account of the matter he was. On Mr Yew's own account he was not. If as I must, I have to determine the question of whether ACI has established the existence of a valid reason for the termination by reference to Mr Yew's and not Mr Swadling's account of the incident, I must conclude that ACI has not discharged the onus it bears.

PN511

That approach, we say, is the approach that her Honour took, namely, to determine whether the valid reason was proved before her. The second authority upon which I rely is a decision which is behind tab 2 of the folder of authorities. A decision of this Commission on appeal, Vice President Ross and Senior Deputy Polites and Commissioner Smith in Tenix Defence Systems v Fearnley. This too was a fight case, there was a confrontation between Mr Fearnley and another employee, Mr Bardis. Mr Bardis grabbed Mr Fearnley by the throat, a fight ensued, Mr Bardis received a cut. Both were dismissed in that particular case and the employer's case was that the applicant had been a willing participant in the fight and had, in the vernacular, went on with it.

PN512

An analogy may be drawn to Ms Zeitz's suggestion, now at least on appeal, that there was an excessive response. A similar case was being put there. It is worth noting that in that case there were actually witnesses to the incident, unlike here. The employer called two other witnesses who saw Mr Fearnley striking Mr Bardis. At first instance, the Commission held that there was not a valid reason that Mr Fearnley had been defending himself from attack and on appeal that finding of fact was not found to have been an error in the circumstances of that case.

PN513

The decision may be of some assistance on this occasion because of the similarity in the type of appeal. I draw the Bench's attention to the way in which that appeal bench approached, firstly, its appellate jurisdiction, at paragraph 19, and the reference there to the nature of the error that must be demonstrated, and the basis upon which it must be demonstrated, House v R, and the relevant quote from House v R is there set out. The Bench then, in paragraphs 22, 23 and 24, refer to other previous authorities dealing with fighting cases and in paragraph 25 conclude:

PN514

We think these authorities support the view that in determining whether there is a valid reason for a termination of employment arising from a fight in the workplace, the Commission should have regard to all of the circumstances in which the fight occurred, including but not limited to...

PN515

and they set out three dot points:

PN516

...whether the employee was provoked, and whether he/she was acting in self-defence. The employers need to establish and maintain discipline amongst its employees, and the service and work record of the employee concerned.

PN517

In my respectful submission, her Honour in the decision actively considered those issues in determining - in coming to the discretionary position that she did.

PN518

DEPUTY PRESIDENT BLAIN: Could you clarify for me, if you would Mr Taylor, in relation to the second of those two sub-points concerning how the criterion was dealt with in the original decision?

PN519

MR TAYLOR: Yes. I might need to come back to that. I'm certainly immediately reminded of paragraph 52 of her Honour's decision where she says - where she is dealing, at this stage, with reinstatement. She talks about the alternative having down sides for the employer which have been addressed at length, and that is a reference to, I submit, the submissions that were put by Ms Zeitz about the various difficulties involving a situation where, as Ms Zeitz said again today, you are at sea, a small number of employees, the importance of the policy about no fighting.

PN520

Her Honour then goes on to talk about, in paragraph 52, a senior employee who has assaulted another will be left in employment. The perception of other employees - this was something that was emphasised below - that there would be some view that the no fighting policy was not being properly applied if both of these people remained in employment, and that would somehow affect discipline and would affect the way in which these things are determined so certainly there's that. I might need to over lunch just check to what extent in the first 25 paragraphs her Honour has also picked that up. If I could come back to that?

PN521

DEPUTY PRESIDENT BLAIN: Yes, certainly. That would be helpful, thank you.

PN522

SENIOR DEPUTY PRESIDENT MARSH: I thought her Honour said that the long term service and the seniority of Mr Culpeper was not of assistance to her in paragraph 44.

PN523

MR TAYLOR: Yes. I think her Honour at that point, if I might say, is dealing with a submission that Mr Reitano put that even if her Honour found Mr Culpeper had, in fact, committed the serious misconduct that he was dismissed for, it would be harsh, given his long history and the like, and she concluded, as your Honour notes, that is wrong. I was more thinking of paragraph 47 where her Honour says in circumstances where it can be satisfied - - -

PN524

SENIOR DEPUTY PRESIDENT MARSH: Yes, that is true, yes.

PN525

MR TAYLOR: - - - the work history and the like becomes then important.

PN526

SENIOR DEPUTY PRESIDENT MARSH: Yes, because that is in the context of if I'm wrong about a valid reason.

PN527

MR TAYLOR: Indeed.

PN528

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN529

MR TAYLOR: What I have described as the alternative basis.

PN530

SENIOR DEPUTY PRESIDENT MARSH: I think that is fair. Yes, I think that is fair.

PN531

MR TAYLOR: I was in the middle of looking at Tenix, and at paragraph 29, the Bench note that at least in the case before them and, with respect, I submit similarly here, the case really is a part of a case which says that her Honour's findings were not reasonably open on the evidence, and they then go to findings and that is how the balance of the decision is dealt with. By examining various particular challenges to findings that were made at first instance, the issue of whether Mr Fearnley had been acting in self-defence, had been inappropriately attacking or going on with it, is then discussed and examined in some detail. The conclusion appears in paragraph 56. The Bench say this:

PN532

The nature of Mr Bardis' assault led the applicant to believe that he was fighting for his life. In our view, his response was reasonable and proportionate to the threat he faced. In circumstances where the physical confrontation was over in a matter of seconds and there was some evidentiary conflict about what happened towards the end of that period, there is no sound basis for overturning his Honour's finding that the applicant was not going on with it but, rather, was reacting to a real threat to his physical well-being. This finding was clearly reasonably open on the evidence.

PN533

Now, of course I accept that each case has to be examined on its own facts, and this was a conclusion reached here but I highlight that because in my respectful submission, this Commission will ultimately similarly find that there are conflicts about what occurred, conflicts about how the fight started but also an absolute conflict about how the fight continued. Ms Zeitz now puts more emphasis on the latter, how the fight continued rather than how it started, but there was an equal conflict there on the evidence. With respect, we say that no error is demonstrated in the same way that no error was found on that particular occasion.

PN534

Paragraph 57 and following, that the Bench in that case considered the question of whether an employer policy about no fighting is going to be sufficient, at paragraph 63 and following, the Bench consider remedy. Then at paragraph 70, they deal with other appeal points and can I emphasis the very first paragraph under that heading, paragraph 70, where the Bench say this:

PN535

The decision we have reached in respect of his Honour's conclusion, that there was no valid reason for the applicant's termination, renders it unnecessary for us to deal with the other points advanced by the appellant.

PN536

Now, in that case, the appellant had effectively conceded that was the case. I don't think Ms Zeitz concedes that here, although I couldn't be categoric about that. Certainly, in my respectful submission, if the Bench here, as presently constituted, forms a view that there was no error in a House v R sense in the finding of an absence of valid reason, that will be as far as the Bench needs to go to uphold her Honour's decision subject, of course, to consideration of the other appeal points regarding remedy which I will come to. The third decision in the folder which I now wish to note is another decision of an appeal bench of this Commission in ALH Group v Mulhall. It is reported in vol 117 of the industrial reports at 357.

PN537

This is another fight case. In this case, it was a crowd controller and the allegation - sorry, it was agreed that the crowd controller had struck a patron, punched him down to the ground. This was witnessed by a number of others. It was agreed that it was in circumstances where the patron had been attempted to be escorted out, and there had then been a verbal altercation and the patron had flicked a lit cigarette towards the crowd controller.

PN538

Then there was a real issue on the evidence as to whether firstly, the cigarette had hit him but more importantly whether the patron then advanced on the crowd controller. It was agreed by both parties that what the crowd controller did was strike the man more than once to the ground and the man had not struck him other than the dispute about whether the cigarette had hit him. But it was very much a matter of debate in the first instance whether, in fact, the patron had advanced on him and he was in that sense anticipating an attack and was defending himself or alternatively whether he had advanced on the patron and just struck him down in a sense in retaliation for having the cigarette flicked towards him.

PN539

Again, in this case, there are witnesses other than the people involved who had seen it who were led - the witness is led by the employer to attempt to prove that the crowd controller had not been, in a sense, in danger by being confronted - by the person advancing. But at first instance the Commission found that the patron had advanced and the applicant had felt threatened and therefore he was entitled to punch him more than once in self defence and knock him to the ground. On appeal, again, the bench considers a proper approach on appeal and considers - sorry, the nature of appeal is considered from paragraph 46 onwards and the role of the Commission in unfair dismissal cases is considered from paragraph 49 onwards in a manner in which we say is consistent with the way in which, I am submitting, this bench would approach the matter.

PN540

Paragraph 52, the Commission having considered the role of the Commission in unfair dismissal cases says this:

PN541

In circumstances where the termination related to the conduct of the employee as is the case in ...(reads)... in respect of the following matters.

PN542

And then there are three dot points:

PN543

Whether there was a valid reason. Whether the employee was notified of that reason. Whether the employee was given an opportunity to respond to that reason.

PN544

They then turned to those specific points and as I said I think we now understand the position of the appellant is that her Honour didn't set out the incorrect approach. Certainly there could be no criticism that her Honour can take an approach of the type set out there in paragraph 52.

PN545

The first issue that the appeal bench considered quite briefly in paragraphs 55 to 58 was this issue of the conflicting evidence about whether the patron was advancing on the crowd controller or not. The bench there found no error and the Commission in the first instance preferring the applicant's version over evidence led by others. That while the reasoning is fairly brief we say is consistent with an approach that where the Commission, at first instance, hears the evidence, it is a fairly tough ask for an appellant to say that a different conclusion should have been reached where there is clear conflicting evidence as to what, in fact, occurred and the member, at first instance, saw the witnesses and heard the evidence.

PN546

Can I refer the bench finally here to paragraph 65 and 66 of this decision where the bench referred to the approach to be taken in respect of fight cases. At 65 the bench sets out a position which is essentially the same as that which the bench and Tenix set out about the matters which should be considered. Then in paragraph 66 the bench said this:

PN547

The approach taken by Commissioner Hodder was consistent with the authorities. In many respects ...(reads)... about his physical safety and he was entitled to act in the way he did.

PN548

Then there was a reference to a glassing incident. A matter which had been the subject of some dispute both below and on appeal. But that approach of simply determining whether there is a valid reason was taken on first instance there is, we say, the same approach that her Honour took having - that is, having to be convinced that there was, in fact, a valid reason requires an active onus on the employer to prove the misconduct occurred. That concludes the authorities of finding cases that I wish to the Commission to recorded in paragraph 24. I will just pause for a moment to ask your Honour when your Honour was thinking of breaking. Whether this going to be in time or whether you would prefer to keep going through to 1.00?

PN549

SENIOR DEPUTY PRESIDENT MARSH: No, it may be convenient. The members of the bench have important travel arrangements this afternoon so could we get an indication. I don't want to put her on a spot Mr Taylor.

PN550

MR TAYLOR: Yes.

PN551

SENIOR DEPUTY PRESIDENT MARSH: As to a likely time. Just so that we might be able to tailor the luncheon adjournment accordingly to ensure that we can finish.

PN552

MR TAYLOR: Yes. I would estimate in the order of an hour to an hour and a quarter, your Honour, I will be.

PN553

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Ms Zeitz, you have already foreshadowed that you wish to respond to some of Mr Taylor's written submissions?

PN554

MS ZEITZ: Yes, your Honour. Half an hour I would indicate.

PN555

SENIOR DEPUTY PRESIDENT MARSH: Okay. To be safe we should allow a couple of hours this afternoon.

PN556

MR TAYLOR: That might be appropriate.

PN557

SENIOR DEPUTY PRESIDENT MARSH: Are inconveniencing you, Mr Taylor, if we adjourn until half past one?

PN558

MR TAYLOR: No, not at all, your Honour. I am entirely in your hands.

PN559

SENIOR DEPUTY PRESIDENT MARSH: You are sure?

PN560

MR TAYLOR: Absolutely, yes.

PN561

SENIOR DEPUTY PRESIDENT MARSH: Yes. I think to be safe that might be appropriate.

PN562

MR TAYLOR: Yes, of course.

PN563

SENIOR DEPUTY PRESIDENT MARSH: If that is all right with you, Ms Zeitz?

PN564

MS ZEITZ: Yes.

PN565

SENIOR DEPUTY PRESIDENT MARSH: Very well. We will adjourn until 1.30.

LUNCHEON ADJOURNMENT [12.50pm]

RESUMED [1.35pm]

PN566

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Taylor.

PN567

MR TAYLOR: I was in the process of dealing with that part of the submissions which are headed, in the written submissions, whether applied correct test grounds 1 and 3, which commence at paragraph 17 and continue. Against a background in which it is understood - whether the correct test was applied or not is the ground upon which it is said leave to appeal should be granted. I, of course, took the Commission to the authorities as to what is the correct approach and can I now go on to say that the conclusion of those authorities, I respectfully submit, is an approach, in a fight case, to determining whether the dismissal is harsh, unjust or unreasonable is that which I summarised in paragraph 30 of the written submissions.

PN568

Ms Zeitz referred to Hepburn, the decision in Hepburn and noted there it was said that it was not for the Commission to decide if the employer's decision to terminate was appropriate in the circumstances. I am not sure whether I would embrace that or not but I would certainly say whatever is correct about that it certainly is the case it is the Commission's role to determine if the conduct occurred or not, on the balance of probabilities, which makes good a valid reason, that is an objective test the Commission must do, and that is the approach which I respectfully submit, her Honour at first instance took of determining for herself, objectively, on the evidence, whether the conduct relied upon occurred.

PN569

Namely, fighting in a manner that amounts to serious misconduct. Taking into account the evidence about actions done in self defence. I note, before concluding this, the submission that is put at paragraph 26 of the written submissions, regarding self defence in criminal law, less there be some suggestion that criminal law - an employee or, sorry, the victim has an onus to prove - sorry, not the victim, the accused has an onus to prove self defence - it is well established that at criminal law it is not an assault unless the prosecution can prove, to the requisite standard required for criminal law, that the actions of the accused were not self defence.

PN570

So the analogy here that is drawn, is again, here, the employer had the onus to prove misconduct in circumstances where it was - there was solid evidence all the conduct was occurring in self defence, the employer had the onus to show that the steps that were being taken were misconduct, that is actions other than in self defence. So certainly, by way of conclusion on these first two grounds of appeal, the respondent submits the correct test was not only set out, initially, as Ms Zeitz accepts, was in fact applied. That is, determining whether indeed there was a valid reason on the objective evidence and not standing in the shoes of the employer and appealing the employer or second-guessing the employer but actually determining, for herself, whether the misconduct occurred.

PN571

The second appeal ground deals with - is an allegation that, in essence, the findings were against the weight of the evidence and to some extent that appeal ground can be grouped with appeal ground 4, namely her Honour was in error in not finding it was a valid reason. The grounds relied on under ground 4, are again essentially ones which go to findings being against the weight of the evidence. I have dealt with them separately in the written submissions and while there is some crossover, I am content to deal with them separately in oral submissions as well.

PN572

I rely on the written submissions from paragraph 35 onwards under this heading without taking the Commission through them in detail. Can I say this about it. In essence, this is an attempt to invite the bench, on appeal, to come to a different conclusion to her Honour about the facts of the matter, at first instance. An approach which, it is respectfully submitted, would only succeed where, on appeal, the bench found that the decision of her Honour, at first instance, was unreasonable or plainly unjust. It is a discretionary decision which requires a fairly high standard in circumstances where the member, at first instance, was the person who saw and heard all the evidence.

PN573

In paragraph 37 through to 42, I set out my understanding of the law on the approach an appeal bench takes to finding of fact, are principally drawn from the Full Bench decision in Rode v Burwood Mitsubishi - I do not open that now but I invite the bench to review that decision from paragraph 44 where, the bench there, makes clear, on appeal, a decision on issues regarding credibility of a witness - I interpose there, for example, Ms Zeitz' submission regarding the evidence of Azim and whether that reflects on the credit of Mr Culpeper. Findings on credit are ones which are usually ones that are going to be upheld on appeal, even if the Appellate Court thinks the probabilities of that case are against, even strongly against, the relevant finding of fact.

PN574

As noted at paragraph 41 of the written submissions, the subtle influence of demeanour on the member's determination cannot be overlooked on appeal. So against that background the written submissions then submit that the findings of her Honour regarding what occurred were reasonably open to her, given the nature of the evidence. In paragraph 43 I set out the facts that, as I understood, were not in contention, leading up to the incident. At paragraph 44 and 45 I set out the conflicting evidence of Mr Culpeper and Mr Evans as to what then occurred.

PN575

Ultimately, there were two strongly conflicting accounts. Paragraph 46 I set out those factors which her Honour noted as ones which might lead the Commission more in the direction of Mr Evans being the aggressor, noting, of course, that her Honour ultimately found it was 50-50. These were ones she took into account. The fact that he left the room holding a wooden rod, which would seem to be consistent with wanting to defend himself from further attack. The marks on the neck, they are, of course, in the appeal book in colour at tab 9, document 14. Marks consistent with two hands being put around his neck.

PN576

While ultimately her Honour was not able to determine which version was correct, certainly those marks are consistent with Mr Culpeper's account that he was being held down a desk and strangled, something which he said to Mr McPhail almost immediately after the incident and has maintained consistently thereafter that he as being held down and strangled by Mr Evans. Her Honour noted the past history of complaints by Mr Evans and that evidence was there had been differences between them earlier.

PN577

Essentially, Mr Evans gave evidence-in-chief, that he didn't like the way in which Mr Culpeper dealt with his paperwork. That occasionally he left work for Mr Evans to do which maybe Mr Culpeper could have done, although to Mr Evans credit he, in-chief, said that he maybe also did that from time-to-time and I think he also had a complaint about the way he left - Mr Culpeper left the office. There was a history that Mr Evans had, on a number of occasions, requested that something be done so that they didn't have to work swinging shifts together, including speaking to Mr Dally, the general manager, according to Mr Dally's evidence, on a number of occasions.

PN578

Mr Culpeper, by contrast, his only complaint, according to Mr Reid's evidence, was the fact Mr Evans complained about him and unlike Mr Evans, he never actively sought to change the arrangements. There's the alcohol question. Her Honour noted that some alcohol had been drunk, as Mr Ives conceded. Mr Evans' own evidence was that he had consumed alcohol between 2 and 3 that afternoon. The incident, the exact time at which I don't think is precisely agreed, but it was around 5.30 pm. Possibly give or take half an hour. Both the respondent on appeal and the appellant's master, Mr Reed, gave evidence that a padre who drove Mr Evans to the ship had noticed that Mr Evans had been drinking.

PN579

Now, precisely what the padre said - the padre's name was Mr Hope which, I think, is a fantastic name for a padre. Precisely what the padre said was in dispute and how high he elevated it, but the very fact that he noticed that Mr Evans had been drinking suggests that Mr Evans obviously had some level of alcohol. Her Honour mentions that as a possible factor. Her Honour deals with the injury to the hand as one that is consistent with punching. I think, my friend put it too highly in suggesting that her Honour found that Mr Evans had injured his hand by punching.

PN580

I think, her Honour does not go that far. She merely says: it is consistent with it. The suggestion that there's no injuries to Mr Culpeper that would be consistent with being punched seems to overlook the evidence of bruising to the chest area, which is clear on the photos, and which, in my respectful submission, is consistent with being punched. There are other factors which I set out at paragraph 47 which her Honour didn't mention, but which also might suggest that Mr Culpeper's version of events is the more likely.

PN581

The size of Mr Evans. I think, the evidence was Mr Evans was considerably larger than Mr Culpeper. Her Honour, at one point in transcript, says: in the order of 6 inches higher was her impression. I think, Mr Reed gives evidence-in-chief that Mr Evans was larger than Mr Culpeper. Again, that is hardly conclusive evidence, but it does tend to suggest, I respectfully submit, that Mr Culpeper would have not initiated a fight. He was unlikely to win.

PN582

COMMISSIONER HOFFMAN: Is there some direct correlation either in boxing or normal life that size is a reflection of strength?

PN583

MR TAYLOR: Certainly, in boxing, I wouldn't suggest that, but when we are dealing here with the balance of probabilities and factors, certainly, I don't discount the possibility that a smaller man might attack a larger man and do so successfully, but if we are dealing with what is likely or not likely a factor and we put in a hide in that, is a smaller man is less likely, generally to attack a larger man, given the likely outcome. There's no absolute about it.

PN584

Certainly, I don't put it any higher than that and, I think, her Honour to be fair to my friend - her Honour actively had difficulty with this same submission that I'm putting now when Mr Reitano put it at first instance. We say is still a potential factor. The throat grabbing, again, on Mr Evans' account, he was pushing Mr Culpeper away and while initially he denied that he had gone anywhere near the throat, when Mr Moran, the investigator, put it to Mr Evans in the leading up to the first report that there was bruising around the neck consistent with hands being placed around Mr Culpeper's neck, he then - and this is Moran's description in document 11, tab 9.

PN585

He - Moran said he, sort of, I can't remember the exact words, but to the effect of reluctantly conceded it was possible that he might have pushed in the neck area. Certainly, we say grabbing someone's throat is more consistent with attacking a person than fending them off. Again, not conclusive. Mr Evans' account of what occurred contained a number of inconsistencies, and one of them is dealt with there at 47(c). That is the acknowledgment which I just mentioned about the possibility of grabbing him in the throat.

PN586

Can I mention another one? Mr Evans was cross-examined about this at some length. Ms Zeitz put today, and she put below in closing, that the employer's version of what occurred is that Evans was hit first with a stapler and that is how the blood got on him. Notwithstanding that is the employer's case, it is contrary to what Mr Evans himself said in evidence, that the stapler was thrown at him later. He was initially hit by something and his evidence-in-chief and his cross-examination was he could not be certain what he was initially hit with, but he was very clear on his version the stapler was thrown later.

PN587

So initially he was hit by something. He is not entirely sure whether something held in a hand, whether it is a hand, whether it is something thrown at him. He is unsure, but he does know that after he was hit, I think, his evidence is he blacked out, or he was a bit unclear. He stood up and then two things were thrown at him, he said, in-chief. A stapler and a tape dispenser, and he says nothing in-chief about a brass pen and pencil holder, yet, there was evidence from Mr Reed, the master, that evidence had told him at an earlier time that he was hit by the brass pen and pencil holder.

PN588

That is - the evidence reference to that is paragraph 67 of Mr Reed's statement-in-chief. Confusingly, in cross-examination Mr Reed then said that he had been told by Mr Evans at some point that, in fact, he had been hit by a stapler and the paragraph number there is 902. Document 10 behind tab 9 is a document which records what Mr Lowe L-o-w-e had been told by Mr Evans. Mr Lowe wasn't called to give evidence, but that document reveals that Mr Lowe was told by Mr Evans that he was hit first by a tape dispenser and then the pen and pencil holder were thrown at him.

PN589

There's no mention of a stapler. Mr Ives gives, in document 18 behind tab 9, is an email there to the ship indicating that Paul Evans had told him that he had been hit with a brass pen and pencil holder. In cross-examination Mr Evans at paragraph number 1076 denied telling Lowe he had been hit with a brass pen and pencil holder and generally, if you look at the evidence of Mr Evans, it is clear that what he told who, when, about what he was hit with is something that consistently changed throughout the investigation.

PN590

Maybe most importantly, the point is his own evidence isn't consistent with what my friend says occurred. That is, he was initially hit with a stapler. Going back to paragraph 47 of the submissions. The next one deals with the issue of the bones in the hand being broken. My friend is correct when he says that Mr Evans didn't in his evidence - sorry, Mr Culpeper didn't in his evidence when cross-examined suggest that one possibility was that Mr Evans' fingers had been broken when punching, although it is certainly the case that Mr Culpeper gave evidence that both of them were throwing punches at each other during the course of the fight.

PN591

We say that does not mean that it is not a rational possibility, as her Honour considered it might be. Mr Evans did proffer this though, he did recount that while he was being held down and strangled he was trying to pull back the fingers of Mr Evans and he thought that was a possible reason why the breaks might have occurred. Certainly, in my respectful submission, that is entirely consistent with and not unlikely - consistent with Mr Culpeper's story and not an unlikely possibility.

PN592

There's the evidence that is relied on about being struck on the head and being cut on the head and it is suggested that there's no reasonable explanation or no plausible explanation given by Mr Culpeper for that injury in a cut to the head. When he was cross-examined, in fact, he did give two possible explanations. He did accept that he didn't know how the cut came about. It happened in the course of the fight. He wasn't sure, but at paragraph numbers 172 and 180, he recounted that during the fight, after he was being - he was being held down on the desk with Mr Evans' hands on his throat being strangled, and he got him off by using his right leg to push Mr Evans off. He said one possibility is that as Mr Evans was pushed off, he hit the back of his head on a bookshelf that was there on the wall. He didn't know that had occurred, but that was certainly a possibility.

PN593

Secondly, at paragraph number 223 to 228, he also said that while he was being held down on the desk, laying diagonally across this narrow desk, he was doing all he could to break the grip including throwing punches, and he didn't know that he had picked up anything but he couldn't rule it out. Certainly, it is easy to imagine the possibility, if someone is laying over you with their hands, their response is to be underneath and doing - trying to hit the person, and they are likely to hit the back of the head with their right hand and strike the left back of the head. That is, indeed, where Mr Evans was struck - the left back of his head which is a place, by the way, which is somewhat harder to accept would have occurred at the outset, which is the way Mr Evans tells the story because of the position.

PN594

If the appeal bench look at the photos and look at the video, it is a short 3 minute video, you will see the positioning of the chairs but, in short, Mr Culpeper is facing - is sitting alongside the desk facing, sort of, parallel to the desk, and Mr Evans is sitting over his left shoulder, slight forward, behind the desk in a traditional way. So the back left-hand side of Mr Evans' head is the furthest away from Mr Culpeper, and it is a bit hard to understand how anything thrown or struck could have gone, essentially, over his head and hit the back left-hand side of his head. That is certainly Mr Evans' account. It is respectfully suggested that is a little hard to accept.

PN595

DEPUTY PRESIDENT BLAIN: Wasn't there a suggestion that he turned?

PN596

MR TAYLOR: On Mr Evans' account, he had his - I think he said he had his head down reading at the time, rather than turned. Now, my friend might correct me on that so, I mean, I don't want to say it is impossible. I don't take it that far, that it is impossible he could have been struck in that place but it really would have required someone to have, sort of, reached around the back in that sort of manner which wouldn't, you would have thought, be an obvious way. I'm not saying it is impossible but I certainly put these things in paragraph 47 as being matters which are hard to reconcile with the employee's case.

PN597

I put it no higher than saying that wherein the appellant is attacking whether the finding is open, these factors are ones which go to supporting the conclusion that the finding of her Honour - that is, a failure to prove the case - was open to her. Blood and the location of blood was relied on both below and, again, on appeal. The fact that there was blood on Mr Evans' side of the desk on the chair, and this is in the photos, but if you look at the photos - I think it is document 15 which has some colour photos - there's spots of blood on the desk and on documents on the desk, little spots as well as, I think, the first picture behind document 15 shows on the base of the chair and on the carpet just next to the chair.

PN598

These were photos that Mr Ives gave evidence that he took after Mr Culpeper had left the ship and while Mr Evans was in the hospital. He came on board with Mr McPhail and took these photos. Now, you see there's bits of blood around and about. It is hard, I think, to draw the conclusion that my friend does that the location of the blood is conclusive of the fact that Mr Evans was first struck on the head while on the chair side of the desk. As Mr Moran had to concede when cross-examined, that can only be the case if you assume that Mr Evans didn't, after the fight, return to that side of the desk.

PN599

A head wound is notorious for bleeding, and there's no reason to conclude that the bleeding would only have occurred at the point that the cut took place and could not have continued thereafter, so the location of the blood, with respect, we say is a bit of a red herring. It does not really give us any conclusive evidence as to where Mr Evans was at the point that the injury occurred, contrary to my friend's submission. In short, the evidence that my friend relies on ultimately to prove what the appellant now relies on - that is, excessive force rather than what they put below, namely that Mr Culpeper was the aggressor, really comes down to evidence that Mr Evans had worse injuries at the end.

PN600

If you consider the injuries, Mr Culpeper has bruising to the chest and bruising around the neck, entirely consistent with being punched in the chest and throttled. Now, the fact that he, as a result, didn't have hospitalisation-type injuries, does not mean that if his account is to be believed, he wasn't under serious danger and didn't have very good reason to do everything he could to get out of that situation in the manner that his evidence says he was doing.

PN601

Ultimately, with respect to my friend, it appears their case now is based on the fact of you should dismiss the person who came off best from the fight and with respect that is not a satisfactory basis to conclude misconduct in circumstances. Where it is entirely reasonable that a member at first instance might find that the injuries Mr Evans suffered were consistent with Mr Culpeper's version of events. That he was being throttled and trying to do everything he could to get out of a situation that was potentially quite dangerous.

PN602

Just on this issue of hospitalisation and the like I think it was Mr Ives who gave evidence that in the context of whether they could get a blood alcohol reading from Mr Evans, he gave evidence in cross-examination that the hospital in Portland was used in lieu of a GP. That is where you went when you had an injury. My friend has made a lot of hospitalisation. It is true that there is no disagreement there were two broken bones in the hand. There was a cut which required four stitches but Mr Evans was back on board at 8 pm and slept on board. I just don't want the wrong impression to be gained about the seriousness of it is certainly not serious but I just was not sure that my friend was putting it entirely as it maybe could be put.

PN603

That is right. The last aspect of the evidence of my friend mentioned was this conflict she said which arose between the evidence of Mr Azim who was not cross-examined and Mr Culpeper. Now the evidence of Mr Culpeper was that as he was trying to get off the boat there was a verbal altercation between he and Mr Evans where certain things were said. My friend says well there is an inconsistency there because Mr Azim, a third person there, didn't give evidence that that occurred.

PN604

I think the difficulty my friend has ultimately in making much of that is the fact that Mr Azim's evidence is that he arrived so I will just turn up tab 9 of the appeal book, tab 8. Mr Azim's statement is tab 8 of volume 1 of the appeal book and at paragraph 3 it is clear that - he says this:

PN605

When I was approaching the dispensary I saw Evans and Culpeper standing in the alley way outside the dispensary.

PN606

So he does not view Evans and Culpeper coming together. He is not present when they first come in contact with each other in the alley way outside the dispensary. What he sees and hears is only after he arrives. So there is no clear inconsistency with Mr Culpeper's version that as he was leaving Mr Evans sort of appeared and confronted him stopping him leaving and Mr Azim's account that when he got there the two of them were standing there. Unless my friend has some other inconsistency in mind I say there is not much that turns on that but ultimately these are questions of credit.

PN607

Mr Azim is certainly not a witness to what actually occurred in the chief engineer's office namely the fight. In circumstances where we are talking about credit, about minor matters, those authorities which I earlier referred to and which are set out in Rode, R-o-d-e, would be such that on appeal a potential conflict of the sort that my friend is relying on which can only go to credibility is not going to be sufficient to lead the bench to overturn a finding, even if the bench were strongly against a particular finding of fact. Ultimately, it is submitted, at paragraphs 48 of the written submissions that there is conflicting evidence. My friend has already pointed to some aspect of the evidence which she says point one way and I've spent a little time attempting to assist the Commission to highlight some of the evidence which points the other way.

PN608

Essentially there were two fundamentally conflicting accounts. Mr Culpeper's account of being attacked and held down and doing everything he could to push Mr Evans off is entirely consistent with the objective evidence and the injuries that Mr Evans had are entirely consist with that account. There is nothing, with respect, that the appellant can put before this Commission which would lead this Commission to the view that the findings her Honour made were just unreasonable or not open as to what occurred on that occasion.

PN609

Ultimately, her Honour was unable to determine positively one way or the other what occurred and found that the employer had failed to meet the onus required. While every case is different on its facts, we say, that this Commission like the Full Benches in Tenix which I referred to earlier and ALH would similarly conclude was nothing obviously wrong with her Honour's findings that there was no valid reason namely, that there was no misconduct by Mr Culpeper and that moves in to those submissions which are headed: No valid reason and because no valid reason rests on findings of fact that the like, there was some level of repetition in the written submissions, I try to avoid that orally, but I turn to that now, the ground four: No valid reason.

PN610

I note, in particular, without going through the submissions in detail of what is put at paragraph 54, it is not enough for an employer to simply show he or she acted in the belief that the termination was for a valid reason. it is, of course, for the employer to demonstrate to the satisfaction of the Commission that conduct occurred amounting to a valid reason and the conduct which is relied now in appeal appears to be a partial or entire abandonment of the case run at first instant that Mr Culpeper was the aggressor and now a case which says: well, even if he wasn't the aggressor we can't know that one way or the other. He used excessive force.

PN611

That submission rests on the nature of the injuries and I have dealt with that and I have dealt with the submission that ultimately who has got the worse injuries can't in itself be conclusive. Of course I opened on the basis that as the employer, itself, approached this case, the mere fact that Mr Culpeper was in a fight is not sufficient and I think, and I presume my friend would maintain that now on appeal. Certainly that was the employer's approach. You need to go beyond that. You need to understand whether there was any misconduct.

PN612

The very approach that the company took to Mr Evans in not dismissing him, even though he was in a fight, is consistent with what, we say, is a fair approach, and that you don't dismiss someone if you are not convinced that they were acting other than in self defence. I have already taken the Commission to what Wilcox CJ said in Yew about that and we that is directly applicable here. At paragraph 66 of the written submissions, I deal with paragraph 34 of the appellant's submissions as to matters asserted were not in dispute and as the Commission will note we do say that some of those things were in dispute.

PN613

Certainly, the question of whether there was a plausible explanation for the injuries and I have dealt with that and we certainly take issue with the fact that a person who has a lesser injury is - some adverse finding would necessarily be made as a result of that. The difficulty, of course, and one can be somewhat sympathetic to the employer's point of view, they rightly have concerns about fighting and they ultimately wanted to form a view that one person did it, and one person was the victim. The difficulty that is faced in this proceeding is that they were unable to prove that Mr Culpeper did it and while they might be left in a situation where they are not entirely satisfied to the fact that that, as her Honour said at first instance, that the result might be that one person who started a fight is still employed.

PN614

In the circumstances, her Honour didn't err in saying that if they hadn't proved that Mr Culpeper started the fight then that is a consequence of the way in which the case came before her and while that might be an unhappy outcome, it is an outcome which is just in the circumstances. Better that than Mr Culpeper be dismissed in circumstances where he was the victim of an attack. Ground five is an attack, as I read it, on the alternative basis that her Honour found at first instance that the dismissal was harsh, unjust or reasonable.

PN615

Ms Zeitz did put some submissions today about this again, but essentially, we say, the attack on this aspect of her Honour's decision does not have - I will withdraw that. The attack on this aspect of her Honour's decision ultimately fails because it suggests that her Honour didn't take certain things in to account that she should have but it does not seem to have, with respect, appreciate that at this point her Honour is accepting that there was a valid namely that - and her Honour does not say exactly, but I would submit that one can infer, the valid reason is that there was a fight and that Mr Culpeper caused injuries to Mr Evans.

PN616

So at this point her Honour accepts that there is a valid reason but says nevertheless it is harsh, given that you cannot be certain who started it. So here her Honour is dealing directly with what my friend didn't put below, we say, that now puts that, ie, sort of - well, even if he didn't start it it is still valid because excessive force was used. Her Honour here squarely at paragraph 47 of the decision is saying: well, look, even if there was a valid reason in circumstances where you can't know who started the fight it is harsh to dismiss with that length of service, with no prior misconduct, in circumstances where it is clearly a one off, no evidence of any prior violent or angry outbursts by Mr Culpeper.

PN617

We say that that is a discretionary decision which is in the heart land of discretion and there is no obvious error. The errors that are put by the appellant are put in ground five in subparagraphs (a) to (e) of the appeal notice and at paragraph 74 of the respondent's written submissions I deal with each of them and they can be read by the Commission but, in short, in circumstances where at this point her Honour is actively accepting that there was a valid reason it is hard to understand why it could be said she didn't give that fact appropriate weight.

PN618

Part of the grounds here seem to rest on the assumption by the appellant that the respondent had committed assault at common law and, with respect, her Honour at this point is saying: look, if you can't be certain who started it that is a little difficult to conclude. Her Honour is certainly, we say, placing appropriate weight on the fact that if you don't know who started it, the sort of circumstances which the employer thought were relevant, which we say the Commission did take into account and that are relevant to the employee's circumstances, were clearly appropriately weighed by her Honour to come to the conclusion that it would be harsh in those circumstances. Ultimately, while this ground does not need to be considered if the Commission accepts that her Honour was right there was a valid reason.

PN619

If the Commission is against us and says, her Honour was wrong about that, at a House v R level the Commission is satisfied of error, then we say, well, even if that is the case there is no error at this point of her Honour's decision where she was, even if there was a valid reason, given the circumstances it was harsh. My friend really has to defeat and say there are errors in both of those findings before the Commission would be satisfied that her Honour was wrong to find that it was harsh, unjust or unreasonable.

PN620

The next aspect of the submission deals with Ground 6. I'm not really clear whether my friend is pressing Ground 6, but I think the written submissions that I've put on that can speak for themselves, unless there is a particular question that the bench would like me to address re Ground 6. That takes me to Ground 7 and the question of reinstatement. Again, I am generally satisfied to rely on the written submissions but there are some things which I wish to emphasise. I also wish to deal with the question Your Honour Senior Deputy President Marsh raised with me directly about 170CH.

PN621

Firstly, by way of emphasis, as the written submissions note reinstatement has been accepted as being the first remedy to be considered. It is of course a discretionary decision as to whether it is appropriate and it has been held that the Commission in first instance is best placed to consider the appropriateness or not of reinstatement, having seen the witnesses and heard the evidence. So the Commission would be on appeal slow to conclude error in making that discretionary decision.

PN622

I set out within the written submissions some of the key authorities, essentially, going to the reluctance of the employer to accept reinstatement in cases where there is allegations of serious misconduct. For example, in paragraph 85 there is a well known quote from the Full Court decision in Perkins which, amongst other things, notes that:

PN623

If an employer is of even average fair mindedness the concerns that they are going to have should prove short lived in circumstances where the Commission has not been satisfied that the misconduct occurred.

PN624

At paragraph 89, I summarise the evidence that was led from the respondent's witnesses - sorry, I withdraw "was led" - the evidence of the respondent's witnesses. I think it is predominantly is evidence - I'm summarising here - that came out in cross-examination about the difficulties of reinstatement. At paragraph (a) I note that we are talking about a 10 to 20 minute, or at the outside, 10 to 30 minute hand-over every six or seven weeks. Paragraphs (b) and (c), I note the evidence of Reed, the master of the ship, and Ives the operation superintendent about what they would do if the Commission determined to reinstate and to their credit they said that they would make appropriate efforts to make it as practical as it could be.

PN625

I think most importantly in (d) I reflect the evidence of Mr Dally, who at paragraph number 1628 actively contemplated reinstating the respondent if the Commission were to find that he in fact had been the victim of an attack, which is not consistent with the suggestion that the employer cannot fathom the practicality of Mr Culpeper going back. Ultimately, there was that evidence before her Honour. She gave a consideration, she gave the evidence of Mr Culpeper consideration that he could go back and she, as has already been noted, considered some of the options that were available to the employer, ultimately concluding that it was both appropriate and not impractical.

PN626

When I was looking at the decision of Yew of Wilcox CJ, I didn't take the bench at that time to what his Honour said about reinstatement, but at page 206, his Honour considered submissions about reinstatement and considered submissions by Mr Rothman about how difficult it would be in circumstances where Mr Yew had put another employee in danger and as the instigator of a fight it would be inappropriate because it would appear that fighting was being countenance as acceptable. As his Honour in that case found that approach really assumes a positive finding that the applicant had in fact engaged in the conduct of which he is accused and, in that case, the Court was unable to be satisfied about that, he said:

PN627

It would be incongruous to refuse to reinstate Mr Yew on either of those bases.

PN628

We say similarly here the fact that Mr Culpeper is accused of fighting in circumstances where that is not made out on the evidence, it would be incongruous for him not to be able to be reinstated because of that accusation. That takes me now to the issue of consideration of section 170CH(2). It is of course the case that her Honour set out section 170CH(2) in her decision and she did that - she set out the whole of section 170CH at paragraph 28 of the decision - and so clearly her Honour was mindful of the requirements of section 170CH. The submission against us, as I understand it, Ms Zeitz makes is that her Honour didn't expressly turn her mind to each of the requirements of section 170CH(2). I say this in response, as to the first requirement, (a), the effect of the order on the viability of the employee's undertaking, at paragraph 55, her Honour states that:

PN629

The respondent can operate if the applicant is reinstated. How they operate is a matter for them.

PN630

She does not use the word "viability", but in my respectful submission her Honour is addressing that issue at that point. My friend suggests that "viability" must mean more than simply whether the respondent can operate. It must mean the "viability" of an order. If that is the case then her Honour actively dealt with that in both paragraph 52, where she sets out some of the difficulties the employer put as to an order, and from paragraphs 56 to 60 where she specifically dealt with the potential viability of reinstatement and how it might work.

PN631

In my respectful submission, her Honour dealt squarely with the requirement at CH(2)(a). As for (b), the length of the employee's service, at paragraph 50 of the decision, her Honour, as part of her consideration as to remedy, dealt with the applicant's service, about four lines into that paragraph, she says:

PN632

He is senior with a long employment record. Given his age...

PN633

Etcetera, and we say that she has clearly addressed that. I think to be fair to my friend the appellant's submissions don't seem to take issue with the reference to (a) and (b). The points that my friend rely on are (c) and (d). (c) is of course the remuneration that the employee would have received or would have been likely to receive if the employee's employment had not been terminated.

PN634

The first submission I make about that is that is clearly something that is directed more obviously to a situation where the Commission is considering compensation rather than reinstatement, certainly has a greater significance in that situation. In any event, I submit that her Honour in paragraph 50 had made clear reference to factors which relate to the remuneration of the employee wherein she said in the final two sentences, she referred to the effect on his employment prospects being very serious, truly terrible to contemplate the possibility that he has been terminated in those circumstances.

PN635

She is clearly giving consideration to the potential employment prospects of Mr Culpeper in circumstances where he has been dismissed for fighting, wherein his industry is the shipping industry and all the evidence that the respondent led about how seriously that is taken. Secondly of course, with respect to (c), it is relevant to note that her Honour clearly had it in mind when she came to the order that she made re back-pay, wherein I think as Senior Deputy President Marsh noted when Ms Zeitz was on her feet, she took into account when making the order remuneration he had earned in the past and that, I respectfully suggest, is a further indication that her Honour actively took into account CH(2)(c).

PN636

The last requirement, other than any other matter in (e), is the requirement of (d): the efforts to mitigate loss as a result of the termination. It is accepted that her Honour didn't in the decision itself refer to the fact that Mr Culpeper had led evidence that he had successfully obtained some relief or casual work but again the order makes it clear that her Honour was mindful of that.

PN637

SENIOR DEPUTY PRESIDENT MARSH: That is having serious regard, is it, for each of the factors set out in 170CH(2) as per Moore J in Edwards v Giudice? That was my question this morning, Mr Taylor.

PN638

MR TAYLOR: Yes, I understand that, your Honour.

PN639

SENIOR DEPUTY PRESIDENT MARSH: It wasn't a question of what her Honour did or didn't do. It was a question of whether or not the authorities which have been fairly consistent with respect to the way in which the Commission must go about applying the Act, having serious regard expressly to each of the considerations in 170CH has been met. If you are saying to me because there's something in an order that meets that, well I'm interested in that submission if that is what you are putting. Is that serious regard?

PN640

MR TAYLOR: With respect to (d), we say that is sufficient regard. My respectful submission is that the level of regard must be considered in light of the nature of the remedy being considered and where you are dealing with reinstatement, this is a factor which would be appropriately considered in the order, but not one that would need to be - where there's obvious error, where it is not squarely dealt with at length in the decision itself, where reinstatement is being considered as whether it is appropriate or not. I put that submission. I have an alternative submission which I put in the alternative but certainly that is the submission that I put squarely, your Honour.

PN641

SENIOR DEPUTY PRESIDENT MARSH: Yes, I hear what you are saying, Mr Taylor.

PN642

MR TAYLOR: If the Commission is against the respondent on this and says that ultimately while her Honour may not have erred generally in determining whether reinstatement is appropriate, her Honour erred in not expressly considering a particular sub-part of 170CH(2) and that is a sufficient error to say that her Honour's decision re remedy needs to be set aside. Then the appropriate approach would then be for this Bench to remit the matter back to her Honour Senior Deputy President Drake to further consider that aspect. I refer to the decision of the Full Bench in ALH, one of the decisions on our list, where something similar occurred.

PN643

SENIOR DEPUTY PRESIDENT MARSH: Yes, I think you took us to that decision this morning.

PN644

MR TAYLOR: I did take you to that decision.

PN645

SENIOR DEPUTY PRESIDENT MARSH: In another context, yes.

PN646

MR TAYLOR: In a different context.

PN647

SENIOR DEPUTY PRESIDENT MARSH: Yes, I'm aware of that decision.

PN648

MR TAYLOR: Yes, thank you, your Honour. The final thing, I hope I understood Ms Zeitz's point. It wasn't one that I readily anticipated from the material that had been filed before today but it appeared to be there was some attack being made on the nature of the order and the requirements of section 170CH(3), that is reappointment to a position or reappointing to a position or appointing to another position no less favourable. I hadn't appreciated that as being ground of appeal but in any event in our submission the evidence was that Mr Culpeper was appointed to the position of chief engineer with ISM and her Honour's order was to reinstate him to the position of chief engineer with ISM.

PN649

I don't readily see that the error that is said to arise in that circumstance, I'm certainly not aware of evidence that suggested that Mr Culpeper had - his position was on a particular vessel, and that seemed to be the suggestion, that there was some error in the order that she didn't appoint him to a particular vessel. With respect, we say there's no error in reappointing him to the position he held before the termination. I'm glad to see that I have - it appears I'm about to fall inside my estimate. I'm always a bit nervous making estimates but I'm glad to see I seem to have fallen within it. That really takes me to the end.

PN650

As is clear, I think, from the submissions that I've been making, we say that her Honour didn't err. Ultimately her Honour, it was open to her on the facts to decide that the employer had failed to meet its onus to demonstrate misconduct in circumstances where self-defence was being very squarely raised. In the absence of a valid reason, that in itself is sufficient to make dismissal harsh, unjust or unreasonable. As her Honour said, even if she is wrong about that and there was a valid reason, in circumstances where you cannot tell who started the fight and on appeal where it now appears - and my friend might correct me - to be effectively and almost conceded that you can't tell who started the fight, it is in fact harsh, given the circumstances, to dismiss, given his length of service, given the one-off nature of the incident and the like.

PN651

So no error there and when it comes to remedy, certainly her Honour was well placed to consider the question of remedy. The employer put all the evidence and material they wished to put to her in submissions and her Honour clearly actively considered that material and came to the conclusion that in the circumstances the various factors she had to consider weighed ultimately in favour of reinstatement, and again we say no obvious error or unjustness or unreasonableness in that approach. For that reason ultimately it is submitted this Commission would not grant leave to appeal. There's nothing outstanding in the public interest that makes this case one that deserves leave and in any event the Commission would dismiss the appeal and vacate the stay orders that were made. Are there matters that I can assist the Commission with and I haven't dealt with?

PN652

DEPUTY PRESIDENT BLAIN: Did you have any brief concluding submission, Mr Taylor, in relation to the submission of the appellant about excluded evidence?

PN653

MR TAYLOR: I think my friend's submission was that there was aspects of the evidence her Honour didn't specifically set out. Now, I think I could stand to be corrected. I'm not sure her Honour made the statement that sometimes members make at first instance that there's a lot of evidence before them and they have actively considered it all. That is just sort of a general statement but I think it is a little hard - - -

PN654

SENIOR DEPUTY PRESIDENT MARSH: I think she did, I think she did.

PN655

MR TAYLOR: Well, maybe I'm wrong.

PN656

SENIOR DEPUTY PRESIDENT MARSH: I think she did when she was saying she wasn't reviewing Mr Moran's report, paragraph 36:

PN657

I've not reviewed the decision of Mr Moran. I have considered all the facts and the evidence independent of Mr Moran's review and report.

PN658

So it could be said that it would seem to be saying that she is saying: I've considered all the facts and all the evidence myself.

PN659

MR TAYLOR: Yes. I thank the Commission for that. So on a general level, your Honour, we say that that assists the Commission on appeal to say that certainly her Honour was of the view that she had considered all the material. The fact that her Honour does not set out each and every piece of evidence ultimately would not be found to be in error. Such an obligation on a member at first instance would not be seen to be necessary or appropriate. My friend really has to satisfy your Honour and the Bench that there was something that her Honour at first instance didn't consider which is such that would lead on appeal to the conclusion that the decision was unreasonable or plainly unjust.

PN660

So the mere fact that something isn't there isn't sufficient. My friend has a higher onus than that. She must satisfy your Honour there is something not there which she must have not considered because if she had considered it she must have come to a different conclusion. Nothing my friend said, in my respectful submission, gets to that level. Does that assist?

PN661

DEPUTY PRESIDENT BLAIN: It does assist, yes, thank you.

PN662

MR TAYLOR: Are there other matters that I can assist the Commission with?

PN663

DEPUTY PRESIDENT BLAIN: Perhaps just a brief concluding comment on the submission that was put to us that it was not an objective inquiry.

PN664

MR TAYLOR: Yes. I'm not sure I fully understood my friend's submission. She certainly, as I understood it, accepted that the approach at first instance was appropriately one that her Honour was not effectively sitting on appeal for Mr Moran but herself determining on objective facts that what conduct occurred. I don't think my friend was going to so far as to say that her Honour wasn't objective about it. There was some bias or some other sort of non-objective approach. So ultimately I'm not sure I fully understood the submission and therefore may be in difficulty in responding.

PN665

It certainly, in my respectful submission, her Honour quite clearly went about it in an objective way where she addressed the evidence on its face and determined it on the merits before her without getting into the shoes of the employer and trying to second guess them or decide whey their decisions were right or wrong. But for herself determining whether the conduct occurred or not.

PN666

DEPUTY PRESIDENT BLAIN: Thank you.

PN667

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Taylor.

PN668

MR TAYLOR: Thank you.

PN669

SENIOR DEPUTY PRESIDENT MARSH: Yes, Ms Zeitz.

PN670

MS ZEITZ: Thank you. The matters I wish to address briefly are the - I will just work as briefly as I can through my friend's submissions.

PN671

SENIOR DEPUTY PRESIDENT MARSH: Yes, certainly.

PN672

MS ZEITZ: With respect to his submission at paragraph 11 to say that with respect to him that misunderstands of both the Commission and the appellant and the law. We say that there is an evidentiary onus upon the appellant at first instance where there is issue of summary dismissal but the appellant did not have the - it had only evidentiary onus of proving or establishing that serious misconduct had occurred on the balance of probability. He did not have the burden of proof in the proceedings and if that is what that paragraph is attempting to suggest we say that that is a misstatement of the law.

PN673

My friend referred at paragraph 23 to the role of Briginshaw v Briginshaw which has had a somewhat chequered history in this Commission. I simply note that there are a number of decisions of Full Benches of this Commission which have held that the standard of proof required in these matters is the balance of probabilities. It is not a higher standard of level or higher standard of proof or a higher level of satisfaction required. I rely there on the decision of the Full Commission in Brinks v The Transport Workers Union of Australia. I haven't got a copy of that with me but I - - -

PN674

SENIOR DEPUTY PRESIDENT MARSH: No. I am aware of that. I have got a copy of that.

PN675

MS ZEITZ: Thank you, your Honour. There the Commissioner Embrick at first instance had indicated that a high level of satisfaction was required. The Commission on appeal held that was an error of law and it was merely necessary to be satisfied on the balance of probabilities that the conduct had occurred and we say that that was the test that should have been applied by her Honour. Where she misdirected herself as to the test to be applied was that she sought to make findings that went to issues of whether it was appropriate to make adverse finding. We say that goes beyond the balance of probability and that it was safe or unsafe of the employer to draw certain conclusions.

PN676

We say again the test was whether on the balance of probabilities my client had established that the matters upon which it relies were sufficient to be a valid reason for termination of the employment. I note that her Honour, in fact, made a finding. This is at paragraph 50 of her decision. That there was, in fact, on her finding a 50 per cent chance that Mr Culpeper had been the aggressor. That is probably evens because she made a similar finding with respect to Mr Evans but she has certainly made a finding that we say on the balance of probabilities would discharge that onus. That is where we say she fundamentally entered into error.

PN677

My friend has made much of the need to establish that the defence, the self defence does not apply in a case of serious wilful misconduct engaged in fighting. We submit that where fighting has occurred there is prima facie evidence of serious misconduct. What then occurred affected a two stage process that the employer and indeed the Commission goes through and that is evidenced by all of the cases. But then one looks at the surrounding circumstances pertaining to the fight to determine whether there are any factors which mitigate against dismissal. One of those factors can be self defence.

PN678

We don't resile from that. We say that before her Honour there was no such evidence and I will refer to some of those comments that were made in submissions a little later. I do note that in the decision of Yew to which my friend referred at page 206.6 where his Honour is there addressing a question of reinstatement he notes that - if the Commission - I will come back to that in a moment. But his Honour makes a comment where Mr Yew had expressed his regret about what had occurred and in the course of that judgment something which is noticeably absent from the matter that is before the Commission. It is at 206 point - about 7, I just missed - I've just lost the case:

PN679

It is apparent from their evidence that both men now realise the folly of violence and the undesirability of horse play in the working environment.

PN680

That was a factor which clearly his Honour took in to account in determining that reinstatement was appropriate. No such material was before the Commission on this occasion. With respect to the decision in ALH Group v Mulhall, we don't disagree with the conclusions of the Full Commission in that case. They set out the test quite appropriately as indeed they should. We simply say this, my friend has indicated that the issue of aggressor was the substantive issue before her Honour and that is true.

PN681

The grounds of appeal at - sorry, the outline of our appeal at paragraph 30 sets out the two step process from which we rely. The first one relates clearly to the instigation of the fight and what we do say and where we say that her Honour came in to error was that the fact that one party instigates a fight does not mean the other party is blameless and her Honour has seemed to have drawn a conclusion that one party must have been guilty and one party innocent from the perspective of testing the dismissal and we say that that is an incorrect application of Briginshaw and indeed the test required under the legislation.

PN682

The reference to Mr Azim's evidence, made by my friend, was that we say that where her Honour entered in to error was that in Mr Culpeper's statement which is document 12 at paragraph 32 he alleged that he was in fear and that Mr Azim was required to intervene and push Mr Evans in to the dispensary. That was clearly at odds, clearly at odds with Mr Azim's account and, we say, that Mr Azim's account was not - he was not required to be called and her Honour was in error in not taking that in to account in determining - well, apparently taking that in to account in determining the issue of credit.

PN683

I did particularly want to get in to a detailed analysis of the evidence and I won't. I invite the Full Commission to consider it because it, in one sense, the evidence speaks for itself in terms of the sworn testimony that was before the Commission. My friend sought to make something of the confusion about what items allegedly hit Mr Evans and what was allegedly thrown and what was put to Mr Culpeper and what wasn't.

PN684

What was clear and what the appellant has consistently put and what the appellant says her Honour entered in to error in the conclusion she drew was that Mr Culpeper has consistently denied throwing anything, or hitting Mr Evans with any object whatsoever. That was inconsistent with the evidence regarding the stapler.

PN685

There was no evidence of blood on the book shelf, to which my friend referred, and the evidence of Mr Culpeper was that at the end of the fight he retired to the wash room because his hands and face were covered in blood and he had blood on his shirt. Given all of those factors, we say, that her Honour entered in to error because once those issues were added in to the equation the events that Mr Evans had put forward became more likely, or more likely than not to have been the outcome and they were matters that were based not on the testimony of either of the two involved in the fight, they were based on factual material that existed outside their various accounts.

PN686

I invite the Full Commission to look at the marks on Mr Evans. It was put to Mr Evans, sorry, the marks on Mr Culpeper's throat, was put that those marks were capable of being achieved by a one-handed grip as much as two. Her Honour didn't address that or does not appear to have addressed that in her decision. Again, that was consistent with Mr Evans' story. There is no doubt and we accept this that there was a fundamental dispute between the two protagonists about who did what to who and how it happened.

PN687

We say, where her Honour entered in to error is that instead of looking at what happened and making an assessment based on the balance of probabilities which, we say, would have led inevitably to a finding that there was a valid reason for termination despite the other information my friend has purported to rely at paragraph 47 of his submissions. Despite that, on her Honour's own finding she still finds that there was a 50 per cent chance that Mr Culpeper was the protagonist. At paragraph 47(d) my friend refers to the injury on the back of Mr Evans' head and (d) and (e) are the only two matters I will refer to in any detail.

PN688

The evidence of Mr Evans was that he was struck on the back of the head. When that was demonstrated to her Honour in the witness-box that was demonstrated as to the left of the crown of the head. We got in to sort of showing it in the proceedings at first instance. It was not what might in general discussion be regarded as the back of the head as in behind, it was actually to the left of the crown. Mr Evans described it in re-examination and then it was subsequently further cross-examined, as being behind his ears and therefore he defined that as at the back of his head. So that was where the confusion came from.

PN689

Now, where that is significant is my friend has said, well, if someone is sitting on the other side of the table, 2-1/2 feet away with their head down it is impossible to hit them on the back of their head. We say that that is not consistent with the injury that occurred and that it was entirely possible for a right-handed person, which Mr Culpeper was, to lift an object and strike someone whose head was bending over a desk on the top back left side of their head, which is where the injury occurred.

PN690

Similarly, it is suggested that if Mr Evans broke his fingers that it could have happened while Mr Culpeper was trying to dislodge his throat, that is at (e), we simply say that it is one thing to say that the fingers, a finger in a hand can be bent back sufficiently to break it, it is another thing entirely to break a bone between the knuckle and the wrist which is where the second break occurred. That is not consistent with what my friend has described, as Mr Culpeper's version of how he might have broken a finger.

PN691

DEPUTY PRESIDENT BLAIN: Ms Zeitz, what are you putting to us in relation to an appealable error in that regard?

PN692

MS ZEITZ: What happened was, we say, that the test is whether there was a valid reason for termination of employment and that is whether, on the facts as presented, on the balance of probabilities there was a reasonable basis upon which the employer could move to dismiss. The demonstrable error was that, we say, her Honour, stepped in to the shoes of the employer and said: what would I have done in this situation rather than looking at the evidence as it was because when she did look at the evidence as it was she found that there was at least - sorry, I won't say, at least, it is at paragraph 50, there was a 50 per cent chance that Mr Culpeper had been the instigator.

PN693

So we say that simply on that finding alone her Honour has conceded that there was sufficient evidence before her to determine that the action taken by the employer was within the range of reasonable responses that could be expected of an employer within the meaning of Hepburn v Department of Justice.

PN694

DEPUTY PRESIDENT BLAIN: So these facts that you are - or these events that you are commenting on now, are you submitting that they need to be looked at collectively, rather than individually?

PN695

MS ZEITZ: Yes. I'm only going to, and I'm aware that this is not a re-hearing, but they were raised by my friend in his submission, so I'm simply just putting the converse point. Our fundamental submission is that when viewed as a whole her Honour entered into error in the test that she applied, and that there were a number of matters which we've identified during the course of the proceedings. The issue of the blood, the head wound, the inability of Mr Culpeper to provide an explanation for those matters.

PN696

That may not establish beyond reasonable doubt that he was the instigator of the fight but certainly, on the balance of probabilities, we say and certainly before her Honour was sufficient for her to find that whilst she might have some doubts about guilt or innocence, and she talked in her decision about guilt or innocence, that was not the test. The test was whether it was reasonably open on the facts that were before her. We say when viewed as a whole the conclusion that the employer came to was reasonable open on facts.

PN697

DEPUTY PRESIDENT BLAIN: Thank you.

PN698

MS ZEITZ: Now, the only other matter I would address briefly that was raised by my friend, is the issue of reinstatement or remedy. We say, and it is in our outline of submissions, it was encumbered upon her Honour to make a finding on each of the points identified in CH2. We also say that it was appropriate for her to make similar findings with respect to CH3 and that she hasn't done that, and therefore has entered into error, and we further say that given that there has been no expression of regret by either involved in the innocent, the history of the bad relationship to which my friend referred, and the fact that there is no evidence upon which her Honour could find that there would be no recurrence.

PN699

There were a number of factors that her Honour should have considered under 170CH(2)(e), not the least of which was the necessity for shipboard discipline and maintenance of discipline on board vessels and the somewhat peculiar working environment compared to many people who work on shore, that applies in the circumstances, and in those circumstances we say that the remedy of reinstatement, if those factors had been given appropriate weight would not have been granted. I've already addressed the apology issue that was raised in Yew so I won't go to that again.

PN700

It was also appropriate that her Honour did make findings relating to the effort to mitigate on the part of Mr Culpeper that would have been an issue in relation to which, particularly given recent events, the appellant would have had considerable things to say. We say that that would have been a factor that also went to the question of remedy. Just one other matter, my friend talked about self-defence being a defence to assault. I haven't actually done a plea before a Magistrate's Court for some years, but my recollection was, unless the statute law has changed, that self-defence was never a defence to common law assault.

PN701

It may have been a plea in mitigation, but it was never a defence, certainly not in the jurisdictions that I admitted in. So I take that no further. I don't know that my friend relies on it to a great extent, but we say that to the extent he relies upon the criminal law for the establishment of self-defence, defence that does not assist him at all. My friend spoke briefly about the issue of reinstatement to a position. We simply rely upon the decision of the Full Court of the Federal Court of Australia in Ramsey v Black Adder and, I think, a copy of that has been provided although it is not on the list of authorities. I won't go to it in detail. It is a well-known decision and I'm sure the Commission is aware of its findings in purport. Unless the Commission has any questions, they are my submissions.

PN702

SENIOR DEPUTY PRESIDENT MARSH: Yes, Ms Zeitz, if we assumed or if we formed a view on assumption, just for the purposes of the question that we are with you with respect to the correct approach that her Honour should have taken, particularly with respect to the balance of probabilities and a conclusion applying that test that you say should have been inevitable, particularly in the context where she finds there's a 50 per cent chance that the their part was protagonist, what do you say should happen in the circumstances of this matter?

PN703

That the test applied, put it at its highest, the test applied by her Honour was too high, as a consequence her decision was in error. Do you say that this bench should decide for itself on the balance of probability whether or not there was a valid reason and whether the decision was harsh, unjust or unreasonable, or do you say we draw from her Honour's - the material before her Honour that there was an error and that there was a valid reason? The distinction being do we in a sense - are we obliged as a bench to re-hear the matter in effect?

PN704

MS ZEITZ: Yes.

PN705

SENIOR DEPUTY PRESIDENT MARSH: I just want to be crystal clear on what you are asking us to do or what you say the correct approach is.

PN706

MS ZEITZ: If I spoke purely from the point of view of the wishes of my client, and I'm sure to the - - -

PN707

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes.

PN708

MS ZEITZ: - - - extent Mr Culpeper he was - the dismissal occurred in January of last year - - -

PN709

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN710

MS ZEITZ: - - - and we all like to send an end of the matter one way or the other.

PN711

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes. I'm sure everybody does, and it is in everybody's interest, but I just want to be clear on what you are saying our task is.

PN712

MS ZEITZ: This matter has come before the Full Bench by way of appeal, not by way of a re-hearing.

PN713

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN714

MS ZEITZ: I've invited the Commission to make certain findings on the base of what we say are appealable error. Reluctant as I would be to go back into a hearing mode, given that that is the basis - if the Commission was satisfied that there was sufficient information before it upon which it felt it could clearly draw a finding that there was, in fact, a valid reason for termination of employment, I would urge that upon the Commission. That would be our primary submission that the Commission is in a position, on the papers, to make that decision in a somewhat similar position to Wilcox CJs in the Yew matter.

PN715

SENIOR DEPUTY PRESIDENT MARSH: Yes. Without regard to forming any view in respect of the credit of witnesses. That is a very ask, isn't it?

PN716

MS ZEITZ: It is a huge ask.

PN717

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN718

MS ZEITZ: Which is why I moved - - -

PN719

SENIOR DEPUTY PRESIDENT MARSH: Which is why I'm asking the question, and Mr Taylor, I would like to hear from you on this, too. This is on the assumption of us being with you with respect to what, I perceive, as the thrust of your case, because I don't want to have any misunderstandings. I want to be fully apprised of what the parties - how they think we should deal with the matter, bearing in mind it is a reinstatement and the matter has been on foot for a long, long time.

PN720

MS ZEITZ: Yes. Her Honour hasn't made clear findings of credit. Perhaps, has by implication.

PN721

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN722

MS ZEITZ: Given that it is very much a dispute between the parties, between Mr Culpeper and Mr Evans as to what occurred, I think, I would have to concede that it would be a very difficult task for the Commission as currently constituted to make a finding on who should be believed as to the detail of what occurred, without having the opportunity to hear what they have to say in person.

PN723

I'd have to concede that that is a possible outcome. It would only be if the Commission was, as currently constituted, was - I guess, in a sense, so satisfied on the material that the answer was self-evident on the basis of what we say would be the objective material irrespective of what Mr Evans and Mr Culpeper may say that I could see that the Commission may feel comfortable with.

PN724

SENIOR DEPUTY PRESIDENT MARSH: I must say that is what has been troubling me.

PN725

MS ZEITZ: Yes.

PN726

SENIOR DEPUTY PRESIDENT MARSH: Yes. To be fair to all parties involved, how could the bench on the basis of the papers, be fair, particularly in circumstances where no clear findings of credit have been made by her Honour. In fact, she has put in the balance.

PN727

MS ZEITZ: Yes.

PN728

SENIOR DEPUTY PRESIDENT MARSH: That is the point of her decision.

PN729

MS ZEITZ: Yes.

PN730

SENIOR DEPUTY PRESIDENT MARSH: I can't decide who is the aggressor and didn't directly go to credit. Yes, it just introduces a lot of principles and concerns in terms of procedural fairness.

PN731

MS ZEITZ: As I said, it is an evens bet in a sense of a 50/50 finding - - -

PN732

SENIOR DEPUTY PRESIDENT MARSH: Exactly.

PN733

MS ZEITZ: - - - which creates enormous difficulties for the bench as currently constituted - - -

PN734

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN735

MS ZEITZ: - - - to make a finding. I suppose, in one sense, it would have been easier for everybody if the findings of credit had been made with - we may or may not be here.

PN736

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN737

MS ZEITZ: It would certainly - would have been an easier task to determine whether there had been error and that sort of thing. I do concede that in the event the Commission were to be satisfied that there was an error going to that finding, whether there had been a valid reason for termination, then, given the 50/50 finding by her Honour and the method by which she got to that point, it would be a very difficult task indeed for the Commission not to want to hear from the parties directly.

PN738

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much. Is there anything else?

PN739

COMMISSIONER HOFFMAN: No.

PN740

SENIOR DEPUTY PRESIDENT MARSH: Yes. Mr Taylor, don't feel obliged to address that question, but I would think to myself I would appreciate it if you did have a view.

PN741

MR TAYLOR: Yes, I would appreciate an opportunity to deal with that.

PN742

SENIOR DEPUTY PRESIDENT MARSH: If you don't, well, that is for you.

PN743

MR TAYLOR: I note my friend's position about the difficulty and, certainly, I readily concur with my friend that the bench now were to find that her Honour had erred and then was left in the position of trying to determine the bench for itself, would not be in a position, in the same way that Wilcox J said, he was not in a position to determine.

PN744

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN745

MR TAYLOR: Now, we say that the assumption is that there is error and you have got past that point.

PN746

SENIOR DEPUTY PRESIDENT MARSH: Yes, we have got past that point.

PN747

MR TAYLOR: Got past that point.

PN748

SENIOR DEPUTY PRESIDENT MARSH: On assumption only.

PN749

MR TAYLOR: Yes, of course.

PN750

SENIOR DEPUTY PRESIDENT MARSH: There is not much point not raising it now when the matter is concluding this afternoon.

PN751

MR TAYLOR: No. Of course, what his Honour was able to do, because it was a re-hearing was to say: well, I am not determining it myself and, as such, the employer has failed to meet the onus and, as such, unfair - there is no valid reason, unfair. He could do that because it was genuinely a re-hearing. In this circumstance, certainly as Ms Zeitz I think correctly said, both parties would prefer that this matter was able to be determined at this stage.

PN752

If the Commission then felt it was sufficient satisfied, notwithstanding the error, that the employer had ultimately failed to make out its case - a resolution of the type that Wilcox CJ ultimately found that, notwithstanding what had occurred, he was unable to find in favour of the employer, led to the reinstatement, clearly, that would be something that we would advocate. If the Commission, having made all these assumptions ultimately says: well, we are not satisfied that that is appropriate either, then, it is difficult as my friend said - certainly, the bench I think would lead itself into error if it tried to then determine without hearing the witnesses who was to be believed. There was just a couple of other things.

PN753

SENIOR DEPUTY PRESIDENT MARSH: Yes, certainly. No, thank you for that.

PN754

MR TAYLOR: Yes, there are a couple of other things. My friend - talking about this balance of probabilities - I might have misunderstood my friend but there seemed to be the implication that because her Honour found that there was a 50/50 chance that Mr Culpeper did the things that Mr Evans said and was the aggressor, that that somehow is sufficient. I respectfully suggest the benches would be led into error into concluding that 50 per cent is sufficient.

PN755

I think her Honour was very clearly mindful of the fact that, if someone has the onus to prove something on the balance of probabilities, technically, that requires 51 per cent, and is some High Court authority to that effect. She was quite clearly, by using 50/50, making it clear that she had not been satisfied to the requisite standard. I might have misunderstood my friend but I rather got the impression she was suggesting that 50 per cent might be enough and I don't think - evens, it was evens.

PN756

We would certainly suggest that evens isn't enough, the onus is there and requires, if you want to be mathematical about it, a 51/49. Some very minor matters, there was a mention about:

PN757

No blood on the bookshelf.

PN758

My reading of the evidence is that there was no positive evidence that there was blood on the bookshelf, but there was no negative evidence that there was no blood on the bookshelf. I'm not sure it takes us either way but if my friend believes there was some positive evidence that someone had examined the bookshelf and found no blood, then I stand to be corrected on that, I just had not appreciated that there was positive evidence about whether or not there was blood on the bookshelf.

PN759

My friend also suggested that the bruising on the neck, your Honour had not made a finding about whether that was capable of being achieved with one hand. I just remind the Commission that at paragraph 38 her Honour did say this:

PN760

I find the explanation provided by Mr Evans -

PN761

which of course was one hand -

PN762

for the marks on the applicant's neck unlikely.

PN763

So she did at least say that about that matter. I don't think ultimately we are disagreeing about the evidence about where the injury occurred. I think as the bench will find when they read the evidence, it was put - Mr Evans was cross-examined that he was changing the position from the back of the head - I think ultimately he said it was 8 o'clock - I don't know if that helps the bench either.

PN764

SENIOR DEPUTY PRESIDENT MARSH: Yes, I remember that, yes.

PN765

MR TAYLOR: But that seems to accord with Ms Zeitz's submission that it is the back left, behind the ear, that line of country. One of the difficulties of advocates trying to explain things which are much more easily explained by a witness turning to her Honour has happened and saying: here, your Honour. It is always hard on appeal to try and put these things into words. One of the reasons why, ultimately, benches are somewhat reticent to be too quick to overturn findings of fact, because they aren't in a position to hear this sort of evidence and see it and get the demeanour of the witnesses and the like.

PN766

Your Honours, my friend was just checking this blood on the bookshelf point. Maybe we can leave it on this basis, if I'm wrong and that there was in fact some evidence - positive evidence that someone had checked the bookshelf and there was no blood, one or other of the parties will contact the bench just to make that point - it may just give an evidence reference. Ms Zeitz says that the evidence might go this way - and I'm not sure I take any disagreement - that Mr Ives and Mr McPhail went into the cabin and took photos of places that they saw as being important to take photos of, and you might draw an inference from that, but they would have taken a photo of the bookshelf if they had seen anything there that was worth noting, and I don't disagree with that. I don't go so far as positive evidence that someone checked the bookshelf and there was no blood on it.

PN767

SENIOR DEPUTY PRESIDENT MARSH: I follow, yes.

PN768

COMMISSIONER HOFFMAN: Mr Taylor and Ms Zeitz also. In light of the answers, if I understood you both correctly, to what would happen in the event on the assumption that Senior Deputy President Marsh put to you. You both seem to concede that it would be a big ask, or words to that effect, for the Full Bench to determine the matter more fully without having seen the evidence. What then do you say should be the appropriate procedure then, were we so to decide, eg, if I need to? Are you suggesting that the matter be remitted to Senior Deputy President Drake, or to some other Member, or do you have a view?

PN769

MR TAYLOR: Yes. Well, as you put, Commissioner, the question is predicated on the assumption that there is sufficient error to find that her Honour's decision was - to use the House v R approach - unreasonable, or plainly unjust - there is sufficient error there, but that again, as a second assumption, the evidence is not so clear as to allow the bench to conclude, as we would submit, that the employer had failed to make its case. See, ultimately, we say that you could get that far, you could get to the point that there might have been error, but still be satisfied the employer had not made out its case and you don't need to go any further at that point. You can then say: well, if they haven't made out their case on the balance of probabilities - even if her Honour had properly considered whatever the decision says she should have considered - then no valid reason, harsh, unjust - it follows.

PN770

If the bench says, well, if she had considered those factors that are said to be not having properly considered, she may well have come to a different conclusion, we are unable to determine, then the danger is if the bench then proceeds and says, well, on the papers, we think this is what would have been, that, of course, is a real potential to be leading into error by trying to make that decision without hearing the witness. So it then leads to the conclusion, although this is a hypothetical path, that the matter does have to be re-heard, at first instance.

PN771

We say, Senior Deputy President Drake would be an appropriate person, absent - to some extent, it depends on the errors that have been identified and the nature of them and so forth. There is nothing inherently wrong, we say in the matter being referred to her Honour as against someone else. Maybe it does depend, to some extent, on what it is that is said to be wrong. Maybe, if the error is of a narrow compass, for example the sort that your Honour was raising about CH, well, that is an easy matter to remit. The compass of the error might be a relevant factor, I would have to submit.

PN772

SENIOR DEPUTY PRESIDENT MARSH: Ms Zeitz.

PN773

MS ZEITZ: Subject to what my friend says about the compass of the error, and I suppose I am just trying - looking at possible ways of bringing the matter to an end without perhaps going back before her Honour for re-hearing only to find that we come back up before a Full Bench. Again, I would submit, as a matter of process, it may be appropriate to use the powers under section 45(6) and one of the members of the bench, as currently constituted, hear the evidence and prepare a report to which the parties could then address the Full Bench again, depending on the scope of any decision that may come from the Full Bench. I say that because that brings the matter to finality, in my submission, far earlier and given the time frame we would certainly urge that upon the Commission. If the Commission pleases.

PN774

SENIOR DEPUTY PRESIDENT MARSH: No further submissions? Yes, Mr Taylor.

PN775

MR TAYLOR: Just on that issue of 45(6), I have to submit that I think - what my friend is suggesting, the matter would effectively, therefore, be dealt with on the basis of the appeal bench sitting on appeal, hearing further evidence and determining the appeal. I think there is some real dangers involved. Rather than having it effectively determined, at first instance, the appeal bench would hear further evidence to help it determine an appeal. Still means that you have got difficulties arising from the fact there are - it is still in the nature of an appeal rather than a re-hearing at first instance.

PN776

So you have sort of got a combination which I am not sure, ultimately, is more likely to lead into more difficulties than solutions. I mean, it is a different question to remit it to a member who happens to be a member of the current bench to hear it afresh but to hear the evidence and prepare a report, I am not sure that might not cause difficulties. I am not sure I am expressing that as well as I could.

PN777

SENIOR DEPUTY PRESIDENT MARSH: I understand what you are saying. I think Ms Zeitz had finality in the forefront of her - - -

PN778

MR TAYLOR: I fully understand why she put that submission and my concern - there are many concerns but one practical concern I have is - we have obviously been taking about this on a hypothetical basis but assuming this hypothetical basis, I have a real concern about Mr Culpeper and his income, what happens to the stay orders and the like pending this. If we are left in the situation where he loses the benefit of the stay orders, has to repay the back pay, stops getting any money, the whole process starts again, that is obviously, as a practical consequence, not a very happy one for him and I am very mindful of that and I am sure the bench would be considering the best way to approach that.

PN779

SENIOR DEPUTY PRESIDENT MARSH: That is one of the reasons why I asked the question.

PN780

MR TAYLOR: Indeed.

PN781

MS ZEITZ: I hesitate to get up. I hear what my friend says about the stay. That, I submit, would have to be freshly agitated as an issue before the Full Bench, depending - before a member of the Full Bench, depending on the outcome. The Commission would be fully aware of the capacity of Mr Culpeper to obtain employment so that would be a submissions that would be developed by my client in due course. We say that should not be an issue on its own that prevents the Commission exercising its discretion. If the Commission pleases.

PN782

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much for your assistance today. We will reserve our position. The Commission stands adjourned.

ADJOURNED INDEFINITELY [3.21pm]