C2015/2226, Transcript of Proceedings [2015] FWCTrans 339 (12 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051910

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VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK

C2015/2226

s.604 - Appeal of decisions

Longford v Aboriginal Elders & Community Care Services Inc
(C2015/2226)

Sydney

10.31 AM, WEDNESDAY, 20 MAY 2015

PN1

VICE PRESIDENT CATANZARITI: Thank you. I ll have appearances.

PN2

MR BLEWETT: If the Commission pleases, my name is Blewett. I appear for the appellant.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Blewett.

PN4

MS STEWART: Stewart, initial K, for the respondent.

PN5

VICE PRESIDENT CATANZARITI: Thank you. Now, Ms Stewart, you re seeking permission to appear?

PN6

MS STEWART: Yes, I am. I m here on instruction from Ms Butler of Butler Lawyers, who sent through the application for permission to appear two or three days ago.

PN7

VICE PRESIDENT CATANZARITI: Thank you. Yes. Mr Blewett, is there any objection?

PN8

MR BLEWETT: None at all, sir.

PN9

VICE PRESIDENT CATANZARITI: Thank you. Thank you, Mr Blewett, we ll proceed.

PN10

MR BLEWETT: Can I just check, does the Commission have the appeal book in front of it?

PN11

VICE PRESIDENT CATANZARITI: Yes.

PN12

MR BLEWETT: And also an outline of submissions?

PN13

VICE PRESIDENT CATANZARITI: Yes, we have all that material. So we re only interested in really any supplementary oral submissions. We obviously can read, so as is in the permission to appeal list, it s to keep the matter brief.

PN14

MR BLEWETT: Thank you, sir. Can I take it that the Commission has some familiarity with the facts of this matter and the decision that is appealed against?

PN15

VICE PRESIDENT CATANZARITI: Yes.

PN16

MR BLEWETT: Can I then turn immediately to paragraph 5 of the outline which is where we set out the first of the issues on which we based the appeal and the application. I think it s trite that the Commission is obliged to act judicially and in accordance with the rules of procedural fairness. Our first point is that excessive intervention by a Commissioner in a matter will constitute a fundamental departure from the rules of procedural fairness and will render a hearing unfair.

PN17

That s not to say, as we say in paragraph 6, that intervention is not appropriate and, indeed, desirable in a number of circumstances. In paragraph 7 we point out that it s difficult sometimes to draw the line. In paragraph 8 we say that in effect by taking over the cross-examination of the appellant in this matter, the Commissioner did cross that line. Can I take the Commission briefly to two cases. That s Galea v Galea (1990) 19 NSWLR 263, and then to Burwood Municipal Council v Harvey (1995) 86 LGERA 389.

PN18

In only want to address the principles in each of these cases; not the issues in the case. In Galea, can I refer the Commission to the principles espoused by Kirby, ACJ, as he then was, at pages 280 to 282 of the decision. Does the Commission have I apologise, does the Commission have - - -

PN19

VICE PRESIDENT CATANZARITI: We have those. We have those decisions, yes.

PN20

MR BLEWETT: Thank you. To fairly understand I think the principles set out there by the Acting Chief Justice, as he then was, requires reading really the whole of that statement. There are only two pieces that I d like to highlight for the purposes of this morning. That is, his Honour sets out a number of principles, and principle 1 appears at the top of page 281, where his Honour says:

PN21

The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.

PN22

So that s the nature of the test. Has it created a real danger that the trial has been unfair. Then if I can turn then to principle 3, which is just under point (c) on the page.

PN23

Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel s shoes and into the perils of self-persuasion.

PN24

There s a reference to an article from Sir Robert Megarry. We say it was by moving into counsel s shoes and entering into the perils of self-persuasion, the Commissioner fell into error in this matter. Can I then turn to Burwood Municipal Council v Harvey. Again, to a decision of President Kirby, as he then was, and again just briefly to refer to the principles which are set out at pages 395 to 398 of that decision.

PN25

Again, it s just to little parts of those principles that I seek to highlight this morning, though again the rationale for the rule and the balancing act that s required, is set out in more detail. But if I could take the Commission first to principle 1, which appears about two-thirds the way down the page on page 395.

PN26

A judicial officer enjoys a wide discretion in the conduct of court proceedings appellate supervision, particularly in appeals limited to questions of law, will show restraint and respect for the primacy of a judicial officer conducting a trial.

PN27

Then principle 2 talks about the changes in the nature of litigation which has made judicial intervention more and more a part of current proceedings. Then in principle 3 towards the bottom of page 396 his Honour then says:

PN28

Notwithstanding the foregoing, which sustains an increasingly active role on the part of judicial officers today, a judicial officer observing the conventions of the Australian courts must conform to certain restraints which have been accepted as inherent in a judicial officer necessary to the manifestly neutral determination of the controversy in a court of law.

PN29

Then his Honour cites the very well-known passage from His Honour Lord Justice Denny in Jones v The National Coal Board. Then if I can turn to principle 4, which is on page 397.

PN30

There are also reasons of a practical and substantive character which reinforced the traditional distance, neutrality and limited intervention which had been the features of judicial conduct in our system of justice. They include the need every day to win the confidence of the litigants and their acceptance that the judicial officer has approached the controversy presented to the court with detachment and equal attention to the arguments of each party. The losing party in particular, must not be left with a sense of grievance that the judicial decision-maker has taken on the cause of or become too close to its opponent. To this traditional explanation, may be added one offered by Sir Robert Megarry in his temptations at the bench. The judicial officer must be aware of the perils of self-persuasion. So long as he or she retains a distance and is relatively circumspect in interventions in the conduct of a trial, the appearance and the actuality of self-persuasion will be diminished. If the party feels that the decision-maker is non-neutral, that it has taken on the cause of its opponent, the central point of judicial decision-making will have been lost.

PN31

Then in principle 5 his Honour makes the point that it s hard to determine quite where the line falls.

PN32

DEPUTY PRESIDENT GOSTENCNIK: Mr Blewett, these principles are applied not in abstract but in context, and it s the statutory context which will govern how principles are to be applied, and in particular in the statutory context regulating unfair dismissal, it s for the Commission to be satisfied that relevantly a dismissal was harsh, unjust or unreasonable, taking into account the matters set out in the statute. So on one view in order for the Commission to satisfy itself, that might require a bit more intervention than might be the case in normal inter-party litigation.

PN33

MR BLEWETT: I agree with respect, your Honour. There necessarily is greater latitude in Commission proceedings than in judicial proceedings. So that will depend on the context of the particular proceedings and the context of the unfair dismissal case. For instance, the Commission is often dealing with unrepresented litigants and it will be appropriate to intervene to a greater extent there than where parties are represented by competent representatives.

PN34

Your Honour, it s really why the decision of Davidson v the Aboriginal Islander Child Care Agency is referred to in our outline because there, in an unfair dismissal case, the Australian Industrial Relations Commission appeared to accept the applicability of the general principles coming from, in particular Burwood Municipal Council v Harvey. Unfortunately, there are no page numbers on the copy of the decision that I have, and I assume also that the Commission has, but - - -

PN35

DEPUTY PRESIDENT GOSTENCNIK: I have page numbers.

PN36

MR BLEWETT: Your Honour, there s a heading about four pages in on my copy, called, Relevant Principles . Underneath that are some heading, The general approach to section 170CA, Representative error, and then, Unrepresented parties . Quite some way in the discussion of unrepresented parties, a few paragraphs above the next heading which is, Decision there is reference with apparent approval to that principle that I have referred to in Burwood Municipal Council. Your Honours, is the Commission able to find a line:

PN37

Excessive intervention during the elucidation of evidence is undesirable and may lead to the appearance of bias or prejudice, and it may lead one or both of the parties with the feeling that the proceedings have not been fair.

PN38

VICE PRESIDENT CATANZARITI: Yes, I Have that.

PN39

MR BLEWETT: Then there s reference with apparent approval to Burwood Municipal Council v Harvey. So, in my submission ,these principles although they have been derived from practices in courts, have been found by the Commission s predecessor to be relevant to unfair dismissal proceedings. In my submission, if it s accepted that there is a requirement to act judicially and in accordance with procedural fairness, then, in my submission, these principles have a role to play.

PN40

DEPUTY PRESIDENT GOSTENCNIK: Well, my point wasn t that the principle shouldn t be applied. My point was that in the application of the principles, the statutory context should not be lost.

PN41

MR BLEWETT: Yes, and I don t disagree with that at all, your Honour. Can I then turn directly to how we say the error in the Commission s approach arose in this case, which I ve set out in paragraph 9. Paragraph 9.1 simply records that in accordance with a quite common practice, as I understand it, the appellant s evidence-in-chief came by way of a written statement. There was no supplementary oral evidence-in-chief.

PN42

The cross-examination of the appellant went from 10.13 to 10.41 am. Then there was an exchange between the Commission and counsel at PN99 and following in the transcript. I wonder if I could take the Commission to that extract. It should be in tab 3 of the appeal book, if the Commission pleases. So the Commissioner asked that the appellant leave the hearing room and then addresses the respondent s counsel who was Ms Butler:

PN43

COMMISSIONER: Ms Butler, can I just understand your case, please? Your case is that the applicant had an altercation of some measure with Ms Behan on a date that escapes me on 17 July. Your case is then that he, contrary to instructions, spoke with her on two occasions and that from that point there was an investigation which was conducted by Mr Somes, which led to the applicant s dismissal. Is your case also that the applicant was untruthful or less than honest in the course of that investigation?

PN44

MS BUTLER: Yes.

PN45

THE COMMISSIONER: The reason I am putting this to you is I don t feel I ve got enough evidence by way of cross-examination of the applicant to find against him at this stage. Obviously your case is yet to be put on but if the allegation is that there was an altercation of some measure with Ms Behan on the 17th, then it is going to be necessary to put the full detail of those matters to the applicant.

PN46

Then I think there s a short aside to the appellant s counsel, but then the Commissioner goes on:

PN47

THE COMMISSIONER: If it s the case that he, contrary to instructions, spoke with Ms Behan again, I need a little bit more. If it s then the case that he was untruthful in the course of the investigation, then those things will need to be put to him in some detail.

PN48

So at that point the Commissioner was not apparently satisfied that - - -

PN49

DEPUTY PRESIDENT GOSTENCNIK: But, Mr Blewett, isn t all that amounts to, a Browne v Dunn discussion? Isn t that all that the paragraphs indicate? That if you re going to rely on matters later, you better put the allegations now and you better do so in some detail.

PN50

MR BLEWETT: I think, your Honour, it s a little more than that. It s not simply Browne v Dunn.

PN51

I don t feel I ve got enough evidence by way of cross-examination ... to find against him at this stage.

PN52

That goes a little beyond Browne v Dunn. In my submission, it means what the Commissioner said, which was that he didn t have enough evidence to find against the appellant. There s then a very brief - - -

PN53

DEPUTY PRESIDENT GOSTENCNIK: But sorry - - -

PN54

MR BLEWETT: He then invites - - -

PN55

DEPUTY PRESIDENT GOSTENCNIK: Mr Blewett, I see that but it s hard to ignore the context in which that is put, and the context starts at 201 where the Commissioner asks the solicitor representing the respondent whether the respondent s case is that the applicant was untruthful, et cetera. It s in that context that he explains why he s concerned, and he goes on to indicate that if that is going to be pressed, then the full details of those matters should be put. That s the first observation. The second observation that I make about that is that there s no objection taken.

PN56

MR BLEWETT: If I can come back to the question of no objection and waiver, your Honour. In respect of your Honour s observation about line 201, in my submission it is not simply that the Commissioner was concerned about whether or not there was an allegation that the applicant was untruthful. The Commissioner, in that passage from 199 to 204, seeks to understand the respondent s case, and then says, in respect of each element of that case I haven t got enough evidence to find against the appellant and I would need more to find against him.

PN57

He then invites the respondent to cross-examine again. She does so very briefly and there is nothing, in my submission, in that cross-examination which would enable the Commissioner to have changed his view regarding the evidence that was before him. Then from PN240 through to PN343, it is the Commissioner questioning the appellant and that s for over 20 minutes. It covers just about every issue in this case.

PN58

Now, we make no complaint about the manner of the questioning. It is courteous and polite at all times, but it is also probative probing, I beg your pardon, at points. And it is lengthy and it covers each of the issues in the case. Then, if the Commission pleases, it becomes apparent, the importance of that period of questioning, when one finds in the decision at paragraphs 50 and 51, his conclusion.

PN59

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Blewett, again, before you go to that, at PN343 the Commissioner asks whether there s anything arising out of those questions. That is, the 20 minutes of questions to which you ve just referred. Ms Butler says, No, thank you. He then asks Mr Dean and Mr Dean says:

PN60

Nothing by way of cross-examination, Commissioner. I did wonder before we call the next witness, whether we could confer with the applicant if the applicant is excused.

PN61

So, again, on objection is taken, despite being invited to raise anything that arises out of those questions.

PN62

MR BLEWETT: Yes. As I said, I was planning to come back to the question of no objection and waiver.

PN63

DEPUTY PRESIDENT GOSTENCNIK: That s fine.

PN64

MR BLEWETT: I ll do so now, sir.

PN65

DEPUTY PRESIDENT GOSTENCNIK: I don t want to interrupt you. It s just that I have read the material, so I these are issues that will need to be addressed.

PN66

MR BLEWETT: Yes. If I can address that directly. As I said, the decision at paragraphs 50 and 51 makes findings regarding the credibility of the appellant, and they are findings adverse to the appellant. The Commissioner found:

PN67

Notwithstanding the difficulties with Ms Behan s evidence, Mr Longford s evidence is also problematic, appearing to suffer from selective recall and lack of detail where the detail might not assist his case. For these reasons I prefer Ms Behan s evidence to Mr Longford where there is a conflict between the two.

PN68

In my submission, there are two things about that that are significant. First, the only inference that I say is open on the course of the evidence in this matter, is that the change in the Commissioner s view from not having enough evidence to find against the applicant, to a quite critical finding regarding the applicant s credibility, is the questioning of the applicant by the Commissioner.

PN69

There was nothing in the subsequent cross-examination by the respondent s counsel that could explain that change. This wasn t the case where there was a lot of contemporary documents or other conflicting evidence which would enable a finding so critical of the appellant to have been made. The second point which your Honour, Catanzariti VP s point about waiver, it is only, in my submission, when that finding regarding credit emerges in the decision, that it became it would have become clear to the counsel for the appellant, the nature of the exercise that had been played out by Commissioner Wilson.

PN70

It s very like, in my submission, the High Court case of The Quarter v Kelly which raises the idea of waiver through failure to object of an apparent bias claim, where the High Court in that case found that it was only once it emerged in the judgment that the counsel in that case could be sure that that which had occurred in the courtroom had the effect of manifesting bias.

PN71

We say the same here, that until the finding of credit was made, it couldn t have been apparent to the appellant s counsel that that which was going on was a testing of his credit. The second point I make, and it s the point made in I think by his Honour Kirby J in the Burwood Municipal Council case, is that where a trial has miscarried because of excessive intervention of a judicial officer, it is unlikely that questions of waiver can save that miscarried trial. If the Commission pleases, those are the submissions I make in respect of the substance of that point.

PN72

We re dealing with permission to appeal. In my submission, if the Commission were of the view that the principles derives from Burwood Municipal Council, and Galea v Galea, and cases of that like, apply to proceedings in the unfair dismissal jurisdiction of the Commission, and that there is an arguable case in this matter that the Commissioner crossed the line then, in my submission, this is a matter where permission to appeal ought be granted. It is a matter of general importance, the nature of intervention by the Commission and in my submission it did manifest injustice in respect of the appellant.

PN73

Can I then turn to the unless there s anything further, if I could turn to the second point that we make, and that s from paragraphs 11-16 in the outline regarding the correct identification for the reasons for dismissal. In this case there is no doubt that the reasons for disciplining the appellant were the two interactions with Ms Behan on 17 July and the interaction whereby he gave her an apology on 21 July. But the reasons for dismissing the appellant were those incidents but also conclusions the respondent had made about some prior incidents.

PN74

What we say is that the conclusions about those prior incidents were demonstrably wrong and were never put to the appellant prior to his dismissal. In paragraph 13 we identify that the decision-maker was a Mr Aitken and he gave evidence. It is in a short time, it s a little difficult to encapsulate his evidence because he was quite talkative and not necessarily attuned to the question that was asked of him. But I think fairly read he makes it very clear there were three incidents which he took into account three prior incidents which he took into account and were significant for his decision to dismiss.

PN75

They were, an incident with a Helen Lyle, an incident with a Felicity Richards, and misleading of food safety auditors. In my submission, to demonstrate that he did in fact take those prior matters into account in determining to dismiss, could I ask the Commission to turn to PN1167 to 1168 of the transcript. There, Mr Aitken is asked:

PN76

I asked you earlier if you had taken into account any other matters than those raised in the letter of termination, and you cited the interaction with Felicity that s of Felicity Richards the interaction with Ms Lyle, allegedly lying to health and safety auditors and alleged poor performance. Are you now suggesting you took into account all of those matters which were raised in Ms Butler s line of argument?

PN77

Yes, and that relates to a number of other matters.

PN78

Then at 1168:

PN79

Are you saying that Mr Somes took them into account or are you saying that you personally took them into account?

PN80

The answer is:

PN81

Mr Somes is the industrial relations expert who gathered all this information and put those into a detailed report which you had seen, tabled that information with a recommendation. Of course there s other options in terms of not continuing Mr Longford s employment, however, the overwhelming number of issues that we ve had to deal with Mr Longford, along all the lines or the issues that you, yourself, mentioned by, in particular, the issue of behaviour towards our staff, in particular our female staff. That was a major consideration for terminating his employment.

PN82

Now, if the Commission pleases, in out the outline I ve given a whole series of transcript references. I don t want to take the Commission through those but I don t think it s in dispute that Mr Aitken actively considered that he thought the appellant had mislead food safety auditors in deciding to dismiss, although he had never put that to the appellant, either during his employment or in relation to the decision to dismiss. The evidence is a little no, I withdraw that.

PN83

Secondly, that he did take into account the matter of Helen Lyle. He did not put that to the appellant prior to his dismissal. His conclusion about the interaction in 2011 between the appellant and Ms Lyle was inconsistent with the facts. Thirdly, in relation to Felicity Richards, he did take the 2012 incident with Ms Richards into account. He did not put his conclusion about that interaction to the appellant prior to his dismissal. His conclusion was inconsistent with the contemporaneous documents.

PN84

So what we say is the respondent s own evidence was that it took these prior matters into account. Its own evidence was that those matters were never put to the appellant, and the evidence regarding each of those shows the reliance on the conclusions formed by Mr Aitken in respect to those matters were at the very least unsafe.

PN85

DEPUTY PRESIDENT GOSTENCNIK: Mr Blewett, was the argument you ve just put, put below?

PN86

MR BLEWETT: Yes. Yes, it was. If you give me a moment, I ll try to find where that s put in the outline. I wonder if it might be quicker if I find that for your Honours once I ve completed my submissions.

PN87

DEPUTY PRESIDENT GOSTENCNIK: Yes, that s fine.

PN88

MR BLEWETT: I m sure it was put below.

PN89

DEPUTY PRESIDENT GOSTENCNIK: That s fine, Mr Blewett.

PN90

VICE PRESIDENT WATSON: While you re interrupt, Mr Blewett, can I ask you this. Might it be a question of the context or the nature of which the previous incidents were taken into account? If they re taken into account as the reason for the termination, that might be one thing. If they re taken into account in determining whether to terminate the employment, whether termination is the proper sanction, that might be of a different nature to whether they are the reasons for the termination as such.

PN91

Just, by way of example, I m looking at the exhibit GB3 to the statement of Mr Aitken. That s the investigation report, 31 July. The valid reasons are set out at page 6 of that document, and they don t refer to the prior incidents. Then the report at least goes on to the appropriateness of termination as a sanction, as a separate thing. I m just raising that point. Might it be the way in which the previous incidents were taken into account might bear upon their appropriateness and the extent to which there needs to be the sort of procedural fairness that you re saying was lacking. These matters were not put to him at the time of the termination.

PN92

MR BLEWETT: I take your point, Deputy President. If I can answer it in two ways perhaps. GB3 was the investigation report provided by Mr Somes to Mr Aitken. Mr Aitken then considered that report, and really the cross-examination of Mr Aitken was addressing this point: did you simply adopt Mr Somes recommendations or did you make a separate determination to dismiss.

PN93

It was in that context that Mr Aitken said that, no, I actively took into account these other incidents in determining whether to dismiss. That s why said, A major consideration in the determination to t dismiss was the prior incidents with female staff, and that is Helen Lyle and Felicity Richards. So at a factual level, in my submission, these were reasons for dismissal, taken together with the more proximate causes. If I can answer it also in another way - - -

PN94

VICE PRESIDENT WATSON: Taking them into account in determining termination doesn t mean that they were reasons for termination.

PN95

MR BLEWETT: Well, in my submission, what we ve tried to put in paragraph 12 is that in forming a decision to dismiss, the respondent took into account both the sort of proximate causes and these other incidents. In my submission, if one is taking these other incidents into account in determining whether the appropriate sanction for misbehaviour is dismissal, they are as much reasons for dismissal as are the sort of more proximate causes. If I can perhaps try to make that good with an - - -

PN96

VICE PRESIDENT WATSON: Why would they be more relevant to understanding whether your member had a good understanding of the standards of behaviour that were expected of him, so that the behaviour that led to the termination could be assessed in an overall sense? Why couldn t they be more relevant in that sense, rather than constituting reasons for dismissal, as such?

PN97

MR BLEWETT: Because, in my submission, one can t ultimately there is a decision to dismiss. What precipitated consideration of whether to dismiss were these incidents on 17 and 21 July. But, in my submission, one can t then compartmentalise the decision to dismiss by separating out conclusions formed about prior incidents from the conclusions formed about the proximate incidents and say that, there are two separate decisions here.

PN98

In theory it might be the case that a decision is made that it is appropriate to dismiss, these are my reasons and just before I make the decision I ll check there s nothing in the record of the appellant that should make that wrong. That might be a case like that which, Deputy President, you re putting to me, but where, as here, a major consideration in the decision to dismiss are these prior incidents, in my submission factually one can t compartmentalise the decision to dismiss.

PN99

But what I was going to try to do was try to make that good with an example from facts totally removed from this case. If one assumes an employee engages in misconduct, everyone accepts that provides a valid reason for dismissal. The employer gives evidence that: Normally I would not dismiss for this sort of misconduct as a first offence, but this is a second offence and, therefore, I determine to dismiss.

PN100

In my submission, the fact of the asserted prior offence would form part of the reason for dismissal and if the evidence were that contrary to the employer s belief there was no prior offence, in my submission, that would clearly be relevant and probably determinative of the unfair dismissal.

PN101

In my submission, the facts we are presented with here are more complicated but the reasoning is the same, that the reason for dismissal here with approximate incidents in July of last year and these conclusions that were formed by Mr Aitken about these prior incidents. As we say, they weren t put and I think on the evidence they were unsafe.

PN102

The Commissioner didn t deal with them at all because on a couple of occasions he said these other matters were demonstrably not the reasons for dismissal and we say in that finding he erred by incorrectly identifying what were the reasons for dismissal.

PN103

DEPUTY PRESIDENT GOSTENCNIK: But, Mr Blewett, why was the Commissioner not entitled, as I read his decision at 86, why was he not entitled to simply conclude that the misconduct which he was satisfied had been proven was on its own sufficiently serious to warrant dismissal and therefore a valid reason? I mean, the points that you make might go to the question of whether the applicant had a proper opportunity or a fair opportunity to respond to the allegations. But we are concerned here about reasons. He is entitled, is he not, to conclude that misconduct that was proven was itself a valid reason?

PN104

MR BLEWETT: In my submission, that is probably correct which is why in paragraph 11 we have identified that the correct identification of the reasons affects the assessment of valid reason, the opportunity to respond and whether there are other matters relevant to the consideration. Because, I mean, what has to be put to the appellant are the reasons for dismissal and, in our submission, what was not put to the appellant prior to his dismissal were the conclusions Mr Aitken had formed about these prior incidents which formed a major part of his consideration in dismissing.

PN105

DEPUTY PRESIDENT GOSTENCNIK: You say by not taking that, the failure to take those by not taking into account the failure of the employer to put those other matters to the applicant before his dismissal so he could comment on them, by not dealing with that the Commissioner didn t properly apply the or didn t properly take into account the matters that he was required to take into account in his overall assessment that dismissal was harsh, unjust or unreasonable.

PN106

MR BLEWETT: Yes, your Honour.

PN107

DEPUTY PRESIDENT GOSTENCNIK: Yes. I should say, Mr Blewett, I have found the submission that I asked you earlier to dig up for me. It is at PN1335 and PN1336 of the transcript. So it was put below.

PN108

MR BLEWETT: Thank you. Thank you, your Honour. Again, just to finish off this point, in my submission, if the Commission feels that it is arguable on the facts in this matter, then this is a matter of general and widespread importance and, therefore, permission to appeal in respect of that ought to be granted.

PN109

Can I then turn I realise I have taken a long time quite briefly to the two significant errors of fact that we have identified in the outline from paragraph 17 onwards. The first is, it is really perhaps a little strange, the principal witness for the respondent was a Ms Behan who was the person with whom the appellant interacted in relation to the mis-made cake and the events that followed. She provided evidence. She provided a handwritten statement at about the time of these events. She then provided formally her evidence-in-chief by way of a typewritten statement and then was cross-examined and each of those was inconsistent with the other.

PN110

Most significantly, and the point we make about this is, that there is a high bar for any appellant to complain about the Commission s finding based on credit of witnesses; I accept that. It is a rare case where the Commission might interfere. The decision of Il Migliore, which I refer to in the outline, is one of those decisions but I don t take the Commission to it.

PN111

But in this case, we say it was an error to rely upon the typewritten statement of Ms Behan where it was in conflict with other evidence and we say that because of her concession at, I think, PN540 to 542. In PN540, Ms Behan is asked about why there is something missing from her statement which is her saying: None of this would have happened if you hadn t made a terrible cake. At 541 she is asked: Can you explain why that is not in your statement? And she says: No. Then she is asked: Are you satisfied that this statement actually summarises what you said when it was taken? No.

PN112

Now, given that concession, the Commission ought to have treated the typewritten statement with incredible caution. It is not qualified in any way. She effectively disavows the typewritten statement in her evidence and yet the Commissioner relied upon it, even where it was in conflict with other evidence, and I have referred in paragraph 20 to an example of that in relation to the first interaction that took place on 17 July.

PN113

If one turns to paragraph 14 of the decision that is probably the most convenient place to find Ms Behan s typewritten version of that which occurred in that first interaction and it is the seven lines of paragraph 12 set out in the body of paragraph 14 of the decision which end: And I went out. In particular, referring to the appellant as having told her she was nothing but a hypocrite and a backstabber.

PN114

There is then her evidence in cross-examination at pages 531 to 554 which includes that portion that I have just referred the Bench to. But what is put in that section of cross-examination is the conversation as related by the appellant and the appellant s counsel there painstakingly took Ms Behan through that conversation: You said this. Then this was said. Then he said this. Then this was said. And she essentially agrees with each proposition that was put after it has been re-put to her three times.

PN115

There is no room in that retelling of that which occurred for the material she had in her typewritten statement and, in particular, the allegation that he said: You are nothing but a hypocrite and a backstabber. Yet in paragraph 54 of the decision, the Commissioner finds as follows about three lines down:

PN116

It is more than likely that the conversation degenerated into an unpleasant argument with him accusing her of being a hypocrite and a backstabber and her being rude in return by saying she felt residents deserved better and that the cake was terrible and that he should put some love into his cooking or, well, if you cooked with a bit more love I wouldn t have to say anything.

PN117

Now, that is an amalgamation, I guess, of the evidence. But it clearly relies on the typewritten statement when that is effectively disavowed by Ms Behan in her evidence and it sits alongside a cross-examination of her which allows nothing along the lines of hypocrite and backstabber to have been part of that discussion. There is a similar example, in my submission, in relation to his treatment of the second matter of which we complain which I outline in paragraph 20 of the outline.

PN118

DEPUTY PRESIDENT GOSTENCNIK: Mr Blewett, was the proposition expressly put during cross-examination of Ms Behan that the applicant didn t say those words?

PN119

MR BLEWETT: It was. Look, I apologise, Your Honour. I can t find it at the moment so I should withdraw my remark my positive remark, that it was put exactly in those terms. Again, if I can try to dig that up during the can I then turn to paragraph 20; I apologise. It was significant, in my submission, for the Commissioner, that he found the appellant s conduct in apologising to Ms Behan on 21 July as being threatening behaviour and if the Commission turns to paragraphs 81 to 84 of the Commission s decision, the Commissioner explains why it was significant that this conduct was threatening and makes the finding in paragraph 84 that it was threatening.

PN120

In paragraph 84:

PN121

The conduct of Mr Longford on the days approximate to 21 July raises similar issues. That is, he had approached Ms Behan in a threatening manner. Since the evidence allows me to find that he approached Ms Behan who was upset as a result, the evidence I prefer of the interactions of the two around that time is that of Ms Behan in which she recalls that Mr Longford approached her and that following his approach she was feeling very nervous, even though it was a relatively friendly interaction. The evidence allows, and I find, that Mr Longford approached Ms Behan and that he caused her to feel threatened which is a repetition of the alleged conduct he had been put on notice about on 18 July.

PN122

In the appellant s submission, there is certainly no evidence or any suggestion that the appellant understood that by apologising to Ms Behan that would be perceived as threatening and it was never suggested to the appellant in any questioning of him either by the Commissioner or the respondent s counsel that that was the case. More importantly, though, there is simply no evidence that Ms Behan found that approach to be threatening. The evidence on that topic from Ms Behan is in Exhibit R2 at paragraphs 20 to 21 and behind 12 is Ms Behan s and this is the typewritten statement which I referred to before.

PN123

She sets out her evidence there:

PN124

On the Saturday I was in the server when Michael walked in. Michael said, Hello, Lara, how are you? I said, Good. This interaction was not friendly but quite cold.

PN125

The Commissioner finds there is nothing in that intervention.

PN126

Then on the Monday, Michael approached me and said that he had been told not to approach me but that on Saturday he had gone home and did a lot of thinking and said that he was out of line and his behaviour was uncalled for and that he knew how intimidated I must have felt. I was feeling very nervous at this stage and I just said to Michael to forget about it. I just wanted him to go home. I wanted to get Michael away from me and I did not want to have an altercation with Michael especially in this workplace.

PN127

Bearing in mind what I have said about the reliability of that handwritten statement, the next piece of evidence on this topic is exhibit A5 which is behind tab A in the appeal book. That is a handwritten note of a Ms Piech or Piesh which was made on 21 July just after this approach. It might be a difficult, if the Commission pleases, but as I understand it, it reads this:

PN128

This morning, Michael approached you in the servery. He apologised to Lara saying, "Very sorry", went home and thought about what he had said that he was intimidating and wanted Lara and Michael to come and speak to Jenny and Claire to sort it out because he didn t want to get the union involved. He kept saying that he was sorry and that he liked Lara and wanted to be friends. Lara just replied, "Okay. I would like to get past it". Michael approached Lara a while later in GR. Lara explained why she was upset over the cake incident and Michael said he understood and Lara offered a hug to Michael and said she wanted to get past this.

PN129

That is the contemporaneous account. There is nothing there suggesting anything of the nature of feeling threatened. Then Ms Behan s oral evidence about this really starts at PN381. Ms Behan confirms that she advised Ms Piech that in her last interaction with Mr Longford you had given him a hug, is that correct? Yes. Then PN384:

PN130

After you gave Mr Longford a hug, you said words to the effect that you wanted to move on?‑‑‑That is correct.

PN131

387:

PN132

So perhaps you weren t going to be close friends, but you had resolved the situation at least to the point where you could continue to work?‑‑‑Yes.

PN133

Then at 419 to 21:

PN134

You gave evidence before that at the time of the hug you had resolved the issues so you could move forward. At least you might not be friends but you would be able to work together, is that right?‑‑‑That s correct.

PN135

So can I suggest to you that the interaction you had with him on Monday was a relatively friendly interaction, is that right?‑‑‑Yes.

PN136

Then she is just asked if she could provide a reason why she didn t refer to the hug in her typewritten statement and she couldn t. In my submission, I beg your pardon, there is one in re-examination at PN601 to 2, Ms Behan is asked this:

PN137

Ms Behan, earlier you gave evidence that you hugged Mr Longford. Why did you hug him?

PN138

I think at the time I was just feeling I wanted it all over with. I wanted it to go away. I just wanted to get on with work and, yes, so I just felt it was the right thing to do.

PN139

Then she s asked:

PN140

Were you comfortable hugging him?

PN141

No.

PN142

Now, in my submission, I think that s just about the totality of the evidence on that interaction. There is nothing there which would fairly allow the Commissioner to find that either the appellant ought to have known that that approach was threatening, or more importantly that it was experienced by Ms Behan as threatening.

PN143

The significance of that is that the Commissioner, he found that it was a combination of that interaction and the previous interactions, all of which were threatening to Ms Behan, which provided a valid reason for dismissal. True, the appellant approached Ms Behan to apologise to her, and that was contrary to the direction of the employer not to exacerbate the situation. But the Commissioner didn t rest on the fact of that.

PN144

What was obviously of significance to him was his finding that this apology was in fact threatening behaviour. In my submission, there s just no evidence that would support that finding and it s clearly of critical significance to the finding that there was a valid reason. Your Honours, subject to me being able to flick through the transcript to find if the hypocrite and backstabber comment was put directly to Ms Behan in cross-examination, unless there was anything further that the Commission wished to hear from me about, that s all I proposed to say.

PN145

VICE PRESIDENT CATANZARITI: All right. Thank you. Ms Stewart.

PN146

MS STEWART: Thank you. The respondent submits that it s not in the public interest to grant the appellant permission to appeal. On that point, I just want to remind the Commission of the Full Bench s comments in the case referred to in my list of authorities, being Workpac Proprietary Limited v Bambach from 2012 in which the Full Bench in that case said at paragraph 14 that:

PN147

Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally.

PN148

The appellant argues that it is in the public interest on the basis that the issues that obviously he has raised regarding the degree of intervention by the Commissioner and the Commissioner s findings regarding the reasons for dismissal are matters of general importance, and the decision also contains other errors of fact which are significant enough to give rise to a result which was manifestly unjust.

PN149

The respondent acknowledges that both matters of general importance and scenarios which manifest an injustice to the appellant are to the relevant considerations in determining whether or the public interest has been enlivened, and that was confirmed in the case of GlaxoSmithKline Australia Proprietary Limited v Makin [2010] FWAFB 5343.

PN150

As I ve said, it s the respondent s position that the decision of the Commissioner at first instance did not disclose an appealable error which was either of general importance or which would be said to create a substantial injustice if leave is refused today. For these reasons I would say the public interest has not been enlivened.

PN151

If I deal first of all with the main ground relied on by the appellant, that being the degree of intervention by the Commissioner. He asserts that the Commissioner effectively took over the cross-examination such that it deprived him of a fair hearing. So while it s clear that members of the Commission are obviously bound to act in a judicial manner, the legislative context in which the Commission operates is worthy of remembering.

PN152

Two particular sections of the Act: being section 589, which provides the Commission with statutory power to control its own procedure; and section 591, which confirms that the Commission is not bound by the rules of evidence and procedure in relation to the matter before it.

PN153

So the appellant has not stated how it was that the Commissioner s questions to him actually denied him a fair hearing. There s no suggestion by him that he was denied the opportunity to be heard or to put his case forward. As the Commission has already highlighted, no objection was taken by the appellants counsel at the hearing, either as - - -

PN154

DEPUTY PRESIDENT GOSTENCNIK: Ms Stewart, but Mr Blewett s point is really this, that when you look at the comment made by the Commissioner at PN203, that he didn t presently have enough evidence via cross-examination to find against the appellant at this stage, and then followed by 20 minutes of questioning of the appellant. Mr Blewett s point is that that discloses not merely an intervention by way of clarification but the Commissioner departing from his role as decision-maker and entering into the realm of effectively becoming the advocate for one side. That s his point.

PN155

MS STEWART: Yes. In response to that, I would echo that the Commission s comments earlier when you say that when you look at the relevant parts of the transcript which commence at PN199, it s clear that the context in which those questions were subsequently put by the Commissioner was following a direction to the respondent s representative that were along the lines of complying with Browne v Dunn, and that has obviously been recognised as acceptable assistance in previous cases, two of which are relied on by the appellant being Davidson v Aboriginal and Islander Child Care Agency, and also Burwood Municipal Council v Harvey. Then when you actually look at the questions themselves, and - - -

PN156

VICE PRESIDENT CATANZARITI: That was, with respect, in the context of unrepresented litigants. Here, both parties were represented.

PN157

MS STEWART: That s true, but despite that fact, the Commissioner had clearly come to the view at that particular stage in the proceedings, that the respondent s representative had not done sufficient in order to comply with Browne v Dunn, and in order to ensure procedural fairness to both parties, he was simply alerting her to that fact. Within the context of that discussion - - -

PN158

VICE PRESIDENT CATANZARITI: I accept that it s proper to alert one party about the ruling in Browne v Dunn. I think the point that s being made is quite another, for the Commissioner to then go about rectifying that for himself.

PN159

MS STEWART: I would say that if the questions that were put by the Commissioner were still limited in their nature to merely clarifying particular points that were unclear for the Commissioner from the questions that had already been put by the respondent s representative up until that point, or alternatively for him to have further evidence before him in order to be able to weigh up each side s case, then it s still within the proper confines of appropriate intervention, and does not go so far as what my friend would suggest, because when you actually look at the questions themselves, they do all fall within those categories.

PN160

They are all relevant and I don t understand the appellant to be taking any issue with that. But, moreover, they are simply designed to clarify the evidence or to obtain additional evidence to better equip the Commissioner to choose between the witnesses versions of events. This, as I ve said, this has been recognised as still being within the confines of appropriate intervention, in cases relied on by the appellant and also in the case of Joseph Terry v Monacure Proprietary Limited which is referred to in my list of authorities.

PN161

I would also submit that nothing actually turned on the Commissioner s questions of the appellant and his subsequent answers. The appellant s representative, as was said, was clearly not concerned enough to re-examine the appellant on any of the evidence that he had given by way of cross-examination to the respondent s representative, or in response to the questions by the Commissioner.

PN162

The Commissioner found at paragraph 81 of the decision that the combined effect of the appellant s conduct on 17 July, and of that on the days proximate to 21 July, gave rise to valid reason for his dismissal. Now, the Commissioner s findings in relation to the 17 July incident were not as a result of any of the questions that he put to the appellant following cross-examination by the respondent s agent.

PN163

In my submission, they were a result of the Commissioner considering the totality of the evidence which included consideration of the relevant part of the appellant s witness statement, together with evidence that he gave in cross-examination as well as the evidence of all the other witnesses, and the contents of the investigation report.

PN164

In relation to the appellant s failure to adhere to the direction not to speak to Ms Behan, while I would accept the Commissioner did take into account the appellant s evidence about why he initiated contact despite being directed not to do so. The Commissioner noted at paragraph 80 of his decision that the explanation given by the appellant was not provided to the investigator at the time.

PN165

In my submission, it was on that basis that the Commissioner concluded that it had been reasonable for the investigator to conclude that the appellant had failed to provide an adequate explanation for his conduct. Another case that I believe was referred to by my friend was Galea v Galea, in which the New South Wales Court of Appeal derived certain guidelines from the authorities on what actually classifies as excessive intervention. One of those, it s stated that:

PN166

The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in light of the number, length, terms and circumstances of the interventions.

PN167

He also said that it was:

PN168

Important to draw a distinction between intervention which suggests that an opinion has been finally reached, which could not be altered by further evidence, and one which is provisional put forward to test the evidence and to invite further persuasion.

PN169

I might just mention, when the questions that I have highlighted are looked at and then, furthermore, when they are considered in the context of a trial as a whole, it cannot be said that the Commissioner in the first instance crossed the line in this instance into inappropriate levels of intervention. Therefore, the point of unfairness has not been reached.

PN170

VICE PRESIDENT CATANZARITI: Well, Ms Stewart, you could put your point perhaps another way, couldn t you, to say that should the Commission be passive when the advocacy of one party failed to elicit the evidence to work out whether it s going to be a fair trial or not, and on one view the Commissioner was concerned that these questions had not been raised, and in that sense he wasn t actually advocating a case. He just wanted to get the facts.

PN171

MS STEWART: Well, yes, and as I ve said, yes, the nature of the - - -

PN172

VICE PRESIDENT CATANZARITI: If one looks at section 590, I think it is, it certainly enables the Commissioner or anybody conducting the hearing to inform themselves as they see fit, with limited provided they don t cross the line as an advocate.

PN173

MS STEWART: We would say that the nature of the questions when they re looked at, they do fall within those confines.

PN174

VICE PRESIDENT CATANZARITI: Yes.

PN175

MS STEWART: So if I can move onto the reasons for dismissal argument. The appellant argues that those reasons included conclusions relating to the appellant s work history. In the respondent s submission, the Commissioner made no such error in terms of his findings as to what the reasons for dismissal were. Paragraph 86 of the decision contains the Commissioner s findings in relation to the misconduct and says that he is:

PN176

satisfied that, on the balance of probabilities, the misconduct related in the termination letter of 15 August 2014 took place and that it was sufficiently serious for dismissal.

PN177

In my submission, that finding was reasonably open to him on the evidence that he had available to him. As apparent from the transcript, Mr Aitken s evidence was that he accepted that the findings made in the investigation report regarding misconduct and the recommendation to dismiss it was his evidence, as far as these prior incidents were concerned, was that he took them into account in weighing up whether to decide whether the findings that were made in the investigation report and the recommendations contained in that report as far as the appropriate sanction, should in fact be followed.

PN178

None of those considerations form part of the actual reasons for the appellant s dismissal. Taking those prior considerations into account did not detract from the fact that the reasons for the dismissal were those contained in the termination letter. That was confirmed by Mr Aitken, as you can see in the transcript, at PN1078.

PN179

Then if I can refer the Commission to paragraph 90 of the decision, in that paragraph the Commissioner notes that while the show good cause letter raised consideration of the employment history and that Mr Aitken did take those considerations into account, that those matters were demonstrably not the reasons relied on by the respondent to dismiss. In my submission, that finding was open to the Commissioner and discloses no appealable error.

PN180

I move onto the significant errors of fact which have been led, first of all concerning that of Ms Behan. The Commissioner did in fact acknowledge at paragraph 49 that:

PN181

Ms Behan s evidence was given with some inconsistency.

PN182

He specifically acknowledged that there were inconsistencies between her written statement, her witness statement, and that of her oral evidence as well. In reaching his conclusions regarding the finding of misconduct and preferring Ms Behan s version of events in doing so, in my submission, the Commissioner did not in fact place undue reliance on her written statement in order to come to those findings.

PN183

If I can refer the Commission to paragraphs 53 to 84 of the decision. In my submission, when those paragraphs are read in their entirety, it s clear that the Commissioner took into account the totality of the evidence of the witnesses, including Ms Behan, as well as the content of the investigation report. As far as Ms Behan s evidence was concerned, that included all of considerations relating to her written statement, her witness statement and her oral evidence. There was no undue reliance placed on her written statement which could be properly said to have affected the Commissioner s reasoning in terms of his considerations as to whether the misconduct had in fact occurred.

PN184

So moving onto the apology to Ms Behan, and this constituting threatening conduct. The Commissioner s finding in that regard was that the appellant approached Ms Behan on 21 July and that he caused her to feel threatened. That s contained at paragraph 84 of the decision. Now, he s reached that conclusion based on the evidence of Ms Behan who said that she felt very nervous when the appellant approached her. At 79 of the decision the Commissioner found that there was no evidence to suggest that Ms Behan was anything other than uncomfortable with the more substantial interaction which occurred on 21 July.

PN185

In my submission, those findings were reasonably open for the Commissioner to make but, furthermore, the point being that the threatening aspect of the appellant s conduct on 21 July did not, in my submission, be a determinative factor in the Commissioner concluding that there was a valid reason for the dismissal. The valid reason was the appellant s deliberate contravention of an explicit instruction to him not to approach Ms Behan, by the respondent.

PN186

It was that deliberate contravention in combination with the misconduct which took place on 17 July, that the Commissioner found constituted the misconduct and constituted a valid reason to dismiss. That s confirmed at paragraphs 80 to 82 of his decision. In my submission, the appellant has failed to demonstrate any appealable error which could be said to either be of general importance or which would create a substantial injustice to the applicant if the leave is refused. For those reasons, unless I can be of any further assistance, my submission is that the public interest has not been enlivened and, therefore, permission to appeal should be refused.

PN187

VICE PRESIDENT CATANZARITI: Thank you. Mr Blewett.

PN188

MR BLEWETT: Thank you, sir. Just briefly, can I first - - -

PN189

VICE PRESIDENT CATANZARITI: Keep it brief, Mr Blewett. Keep it very brief. We ve given you a long time in this matter for permission to appeal.

PN190

MR BLEWETT: Can I first apologise to Vice President Catanzariti. It doesn t appear that the allegation about hypocrite and backstabber was put to Ms Behan in cross-examination. Similarly, the appellant was never cross-examined to suggest that he described her as a hypocrite, either by counsel or by the Commissioner.

PN191

In relation to the presiding member s characterisation of that which the Commissioner did as could be described as merely finding facts according to the mandate set out in legislation, in my submission, it can t be that this was confined to the finding of facts because there is no explanation for the finding regarding credibility of the appellant set against the remark at PN203 which can be explained, other than that the Commissioner used that cross-examination to form assessments of credibility. That s the error that we say was made in this case.

PN192

In respect of the argument that these prior incidents didn t form part of the reason, Ms Stewart took you to PN1078 where Mr Aitken says the only reason he was terminated was described in the letter. Of course PN1079 immediately contradicts that where he makes it clear that he took into account previous incidences where he has stood over women in the workforce.

PN193

In my submission, the submission that the finding regarding threatening behaviour formed no part of the reasoning regarding valid reason, doesn t stand up. One can t read paragraphs 80 to 82 in isolation from paragraphs 83 to 84. If the Commission pleases, those are my submissions.

PN194

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is now adjourned.

ADJOURNED INDEFINITELY [11.53 AM]