C2004/6263, Transcript of Proceedings [2005] AIRCTrans 710 (21 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10824

VICE PRESIDENT LAWLER
DEPUTY PRESIDENT IVES
COMMISSIONER EAMES

C2004/6263

s.45 appeal to full bench

APPEAL BY GRENFELL, TREVOR
(C2004/6263)

MELBOURNE

10.05AM, WEDNESDAY, 09 MARCH 2005

Continued from 8/3/2005

PN660

VICE PRESIDENT LAWLER: We have come to the view that this matter is not of such importance that in the public interest leave to appeal should be granted within the meaning of section 45(2), and that in the exercise of our discretion pursuant to section 45(1) leave to appeal should be refused. What follows is an outline of reasons, a more detailed written decision will be issued in due course. We have not covered every argument, or rather we will not cover every argument in this outline of oral reasons, and to the extent that is necessary, the written decision in due course will cover those additional arguments. But we have sought to cover today in oral reasons the main arguments that were advanced on behalf of Mr Grenfell. This is an appeal for which leave is required by Mr Trevor Grenfell against the decision and order of Commissioner Smith on 12 0ctober 2004 dismissing Mr Grenfell's application for relief pursuant to section 170CE of the Workplace Relations Act 1996.

PN661

Mr Grenfell had been employed as a postal delivery officer by Australia Post for more than 18 years, having earlier worked for Australia Post for a further seven years. His employment was terminated on 20 November 2002 for what was described as serious and wilful misconduct. In the light of the Commission's decision, the written submissions of the parties and the concessions properly made by counsel for Mr Grenfell at the outset of the hearing before this Full Bench, we determine that the appropriate course was to determine the question of leave to appeal separately before hearing argument on the appeal proper. Argument on the question of leave occupied a full day, this decision addresses leave to appeal. An appeal to the Full Bench lies only by leave of the Full Bench, section 45(1):

PN662

A Full Bench must grant leave to appeal if, in its opinion, the matter is of such importance in the public interest leave should be granted, section 45(2). Otherwise a grant of leave is covered by the conventional considerations for grant of leave to appeal by an appellant court which include whether the decision is attended with sufficient doubt to warrant its reconsideration, or whether substantial injustice may result if leave is refused.

PN663

However:

PN664

These grounds should not be seen as fetters upon the broad discretion conferred by section 45(1) but as examples of circumstances which would usually be treated as justifying the grant of leave although or rarely if ever be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.

PN665

And that's a reference to the decision the full federal court has won, WAN at 116FCR481. Whereas here the matter of the subject of the appeal involved the exercise of a discretion or the application of a broad standard, the appellant must demonstrate error within the principles in House v the King, and I don't think there is any need to set out that celebrated passage. Where an ultimate discretionary decision is placed upon intermediate determinations which are wrong, an outcome based upon those errors would involve appealable error even if the ultimate decision was open on the evidence. Mr Grenfell sought a review dealing first of all with the Commission's approach to the Board of Reference,
Mr Grenfell sought a review of the decision to terminate his employment before a Board of Reference, the certified agreement provided him with the right to such a review on the ground that the termination was harsh, unjust or unreasonable, that is by reference to the same ground found in section 170CE.

PN666

The Board of Reference confirmed the decision of Australia Post, the decision of the Board of Reference was tendered before Commissioner Smith and received into evidence without objection. The Commissioner dealt with the Board of Reference in the following way, and we would set out in paragraphs 20 through to 29 of the decision and emphasise the whole of paragraph 29. Mr Grenfell submits to the language of paragraph 29 demonstrates that the Commissioner misconceived his proper role, that he erred in placing weight on the decision of the Board of Reference and that his approach to the process involved an erroneous raising of the bar, as it were, in terms of whether the termination was harsh, unjust or unreasonable in the meaning of section 170CE. The Commissioner was conscious that he was not conducting an appeal and he explicitly acknowledged as much.

PN667

On a fair reading of paragraph 29, the Commission was confirming the decision of the Board of Reference only in the sense that he was satisfied on the evidence before him that he ought make the same findings as the Board of Reference and that those findings led to the same conclusion as that reached by the Board of Reference. Given that the Board of Reference decision was received into evidence without objection, and given that Mr Grenfell led evidence attacking the Board of Reference decision, the Commissioner was entitled to deal with it in his decision. To the extent that the Commissioner may have treated the existence of the Board of Reference process as something that in some way altered what was required to establish that the termination of Mr Grenfell's employment is harsh, unjust or unreasonable in the meaning of section 170CE, such an approach would involve error.

PN668

Turning to the role of Mr Grenfell's mental illness, the Commission received evidence from two psychologists who examined Mr Grenfell and found him to have serious psychological problems, in particular Mr Cummins diagnosed
Mr Grenfell suffering from significant adjustment and anxiety disorders. These mental health problems came to light only after the termination of Mr Grenfell's employment. There is no suggestion that either Australia Post or Mr Grenfell were aware of that matter in the period leading up to the termination of his employment. After considering the evidence relating to Mr Grenfell's mental health problems, the Commissioner concluded at paragraph 56:

PN669

Given the evidence I cannot conclude that Mr Grenfell's illness was such as to absolve him of responsibility for his conduct and approach to his employer. It follows that given this finding, together with the earlier findings, the application of Mr Grenfell is dismissed.

PN670

Mr Grenfell submits that the language at paragraph 56 indicates that the Commissioner treated his mental health problems as a matter that went only to whether or not there was a valid reason for the termination of Mr Grenfell's employment within the meaning of section 170CG(3)(a) and therefore did not properly take the matter into account when determining whether overall the termination of Mr Grenfell's employment was harsh, unjust or unreasonable. The phraseology used in paragraph 56 is perhaps unfortunate, however, we are not satisfied that it demonstrates the error for which Mr Grenfell contends. At paragraph 35, the Commissioner concluded:

PN671

Had it not been for the evidence in relation to Mr Grenfell's mental health, then the matter would have been straightforward and the application would have been dismissed through a failure to demonstrate both procedural or substantive unfairness.

PN672

In paragraph 36 and following, the Commissioner then considers the evidence relating to Mr Grenfell's mental health. In paragraph 51, the Commissioner states, and we would emphasise the first part of that paragraph:

PN673

The question then before me is whether or not Mr Grenfell's diagnosed mental illness is the decisive factor which would give rise to a conclusion that his termination was harsh, unjust and unreasonable and also has be seen in the context of the fact that Mr Grenfell's treating physician did not diagnose this long standing condition and that Australia Post had no reason to believe it should treat Mr Grenfell differently from the other employees.

PN674

The emphasised portion of the passage demonstrates that the Commissioner addressed the correct question. Paragraph 56 ought properly be seen as a conclusion that Mr Grenfell's mental condition was not a factor which tipped the balance in favour of a finding whether his termination of employment was harsh, unjust or unreasonable because it was not such as to deprive him of personal responsibility for the conduct that grounded Australia Post's decision to terminate his employment.

PN675

Turning now to procedural fairness and whether Mr Grenfell was notified of the reason for his termination and given an opportunity to respond, that is the matters referred to in sections 170CG(3)(b) and (c). We would refer to the conclusion in paragraph 35 and then continue, those findings reflect the matters that the Commission was required to take into account pursuant to section 170CG(3)(a) to (d). Although the Commission did not make explicit reference to section 170CG(3)(e), it is clear that he in fact addressed other matters that he considered relevant to the determination of Mr Grenfell's application for relief, most notably the mental health problems suffered by Mr Grenfell that were undiagnosed at the time of the dismissal but revealed by psychological assessments that subsequently occurred. Mr Grenfell notes that the charge that led to his dismissal was, "failed to consistently perform to an agreed or prescribed standard or higher". He further submits, correctly, that the real reason for his dismissal was not only poor performance but rather his anti-management attitude and conduct in relation to the introduction of the VSORT sorting system at the Wendouree mail centre and not simply a failure to meet the prescribed sorting standard of 18 letters per minute.

PN676

Finally, Mr Grenfell submits that this difference between the form of the charge and the real reason for his dismissal means that he was not notified of the reason for his termination and not provided with an opportunity to respond to Australia Post's concerns about his conduct, contrary to the findings of the Commissioner. At first blush, there is real substance in that submission. However, we also agree with the submission on behalf of Australia Post, the long disciplinary process was such that a reasonable person in the position of Mr Grenfell must have appreciated that his conduct was part and parcel of the charge and in particular was relied upon by management as the reason for his alleged poor and inconsistent performance. Australia Post's written submissions refer to various steps in the disciplinary process and identify evidence which supports such a conclusion and we would refer to paragraph 79 and following the written submissions. In this context we also note that Mr Cummins found that Mr Grenfell had a full scale IQ of 126 and that only six per cent of the population of his age would score higher.

PN677

Turning to the question of failure to make findings and inadequate reasons, largely for the reasons set out on the respondent's written submissions, we are not satisfied that the Commissioner erred for failing to provide reasons or for not accepting particular matters relied upon by Mr Grenfell, and for not determining factual questions alleged by Mr Grenfell to arise. In particular, in all the circumstances of this case, it was not encumbered upon the Commissioner to determine whether the performance standard of 18 letters per minute was unreasonable when the real reason for Mr Grenfell's dismissal was not his failure to meet that standard per se but rather his conduct in the two years leading up to the dismissal in relation to management attempts to address his perceived poor and inconsistent performance.

PN678

Turning to, failure to consider and take into account relevant matters, first of all, proportionality. We are not satisfied that the Commissioner failed to have regard to the question of proportionality in relation to the dismissal of Mr Grenfell, and of the conduct that led to his dismissal including in line with his mental health problems. While it is true that the reasons for the decision do not expressly address that issue, the Commissioner's description of the case as "tragic" suggests that he turned his mind to the serious consequences of the dismissal for
Mr Grenfell given his age, length of service and his mental health problems, but nevertheless concluded that, given Mr Grenfell's conduct, the dismissal was not harsh, unjust or unreasonable because the dismissal was a disproportionate response to Mr Grenfell's conduct.

PN679

Discriminatory or differential treatment, we are not satisfied that the evidence relied upon by Mr Grenfell for contending that his dismissal was unjust because it involved discriminatory or differential treatment establishes that that contention will cast an evidentiary onus on Australia Post in relation to that contention. That evidence demonstrated no more than that a relatively small percentage of postal delivery officers had failed to achieve a sorting rate of 18 letters per minute, and none of those officers had been dismissed for poor performance. As noted above, the real reason for Mr Grenfell's dismissal was his conduct over a period of two years, which conduct led to his poor and inconsistent performance. If there had been evidence that other officers who failed to meet the performance standard had engaged in conduct similar in its nature and extent to that engaged in by
Mr Grenfell but had not been disciplined or dismissed, then the question of discriminatory or differential treatment would have been a live issue and relevant to the overall determination of whether Mr Grenfell's dismissal was harsh, unjust or unreasonable. However, there was no such evidence.

PN680

Conclusion. We are not persuaded that this appeal is of such importance that the public interest leave to appeal should be granted. Accordingly, we are not obliged to grant leave pursuant to section 45(2) and the question of leave falls to be determined pursuant of discretion conferred by section 45(1). Counsel for
Mr Grenfell contended otherwise on the basis that there was a compelling public interest in a Full Bench of the Commission addressing the question of mental illness undiagnosed at the time of the dismissal and determining whether a termination of employment is harsh, unjust or unreasonable. Obviously, such a circumstance is a relevant matter in determining whether a dismissal is harsh, unjust or unreasonable. The Commissioner clearly proceeded on that basis. The weight to be given to that factor in a particular case will depend upon all the circumstances of the case and the principle of a fair go all around.

PN681

While there may be some public interest in a Full Bench addressing this issue in a more detailed fashion, we are not satisfied that this case is an appropriate vehicle, precisely because we do not think the Commissioner erred in concluding that Mr Grenfell's mental illness did not render his dismissal harsh, unjust or unreasonable. Similarly, counsel for Mr Grenfell submitted there was a compelling public interest in a Full Bench of the Commission addressing the proper treatment of the decision of the Board of Reference in the context of proceedings pursuant to section170CE. We are not persuaded that this is a matter of such importance in the public interest leave to appeal will not be granted. Counsel for Mr Grenfell correctly conceded that the decision of the Commissioner proceeded on the basis that the Commissioner accepted the evidence of management in relation to Mr Grenfell's conduct over the two years leading up to his dismissal and prefer that evidence where it conflicted with evidence given by Mr Grenfell.

PN682

Moreover, there is no challenge to the factual findings that flowed from the Commission's acceptance of the evidence of management, including the matters set out in the chronology next to the Commissioner's decision. In summary, those factual findings compel the conclusion that over a period of two years,
Mr Grenfell engaged in behaviour that was antagonistic, objectively belligerent and uncooperative in relation to management's reasonable and repeated attempts to have him address issues of poor and inconsistent performance in relation to the VSORT sorting system. In short, he persistently and obdurately repudiated the right of management to manage. Notwithstanding that, Mr Grenfell has demonstrated an arguable case of error in relation to some aspects of the decision, although we are not satisfied that this is an appropriate case in which to grant leave to appeal pursuant to section 45(1).

PN683

We are satisfied that Commissioner Smith reached the correct conclusion, notwithstanding the arguable errors to which we have referred. Specifically, given the concession properly made by counsel for Mr Grenfell, we are satisfied that in all circumstances the termination of Mr Grenfell's employment was not harsh, unjust or unreasonable, notwithstanding his undiagnosed mental health problems and notwithstanding that on one view, the form of the charge against Mr Grenfell repeated in Mr Dungey's letter of 12 November 2002 was such that the charge did not notify him of the real reason for his termination and arguably did not provide him with a full and proper opportunity to respond for reasons related to misconduct within the meaning of section 170CG(3). In all the circumstances we are not satisfied that there was a substantial denial of procedural fairness that was sought to which the matters specified in section 170CG(3)(b) and (c) are directed, notwithstanding the arguable inadequacy of the wording and the disciplinary charge against Mr Grenfell.

PN684

Moreover, the course of the disciplinary process and Mr Grenfell's responses and conduct in relation to that process, and the evidence of Mr Cummins, make it substantially more likely than not that Mr Grenfell would not have responded any differently, even if the charge had made express and detailed reference to his conduct. It follows from what we have said that we are not satisfied that a substantial injustice will result if leave to appeal is refused and that the ultimate conclusion in the decision below is not attended with sufficient doubt to warrant its reconsideration. Leave to appeal is refused. As I have indicated that is an outline of the reasons and you can expect some written reasons in due course which will deal with such other arguments as were advanced. Nothing further?

PN685

MR BOURKE: If the Commission pleases.

PN686

VICE PRESIDENT LAWLER: Commission is adjourned.

<ADJOURNED INDEFINITELY [10.22AM]