C2015/1884, Transcript of Proceedings [2015] FWCTrans 409 (15 July 2015)

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PN1

VICE PRESIDENT CATANZARITI: Thank you. I'll take the appearances.

PN2

MR Y. SHARIFF: Yes. May it please your Honours. Shariff. I appear for the appellant. I'm instructed by MR R. ALLEN, who’s in Perth and MS K. DOMMERSON, who’s here with me in Sydney.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Shariff. Mr Shariff, we'll grant you permission to appear. We note that the respondent has advised the Commission that they don’t intend to appear in today’s hearing on permission to appear. If something flows from that, we may revisit it, but for the moment that’s how we’re going to proceed.

PN4

MR SHARIFF: That's correct, your Honour.

PN5

VICE PRESIDENT CATANZARITI: You should not view the absence of the respondent as an opportunity to speak for many hours, Mr Shariff.

PN6

MR SHARIFF: I wouldn't have taken that indulgence and I thank the Commission for the indulgence of permitting us the opportunity to take our submissions to four pages. Your Honours, this is a matter that is factually dense and I will do my best to contain myself within the 30 minutes. What I was going to propose to do was first to deal with some introductory matters. Then I was going to take your Honours to some of the facts as best as I can in the time permitted, then I was going to deal with what the appellant contends are the errors in the decision and then I'm going to address the key issue, which is the public interest point and I promise I will do that.

PN7

Your Honours, this is a case in which a man who was paid $223,000 per annum and was employed as a permit coordinator, in other words the very person who was centrally involved in the permit to work system, has been reinstated to his employment even though, first, he engaged in a very serious breach of a fundamental safety procedure; secondly, in doing so he failed to discharge the very job he was employed to perform and highly remunerated to perform; and thirdly, where the Deputy President found that there was a valid reason for the termination and found at paragraph 33 of the decision, which I'll go to shortly, that Mr Rogers had no explanation at all to proffer for his conduct.

PN8

In view of all of that, or despite all of that, not only has this man be reinstated to his position, but he has, pursuant to a subsequent decision issued by the Deputy President, which is not yet the subject of an appeal, been awarded compensation of $35,000 in respect of back payment. Your Honours will have that decision as part of the bundle of authorities that have been provided to the Bench and if I can just quickly ask your Honours to turn to that. It’s a decision that was issued on Tuesday, 31 March. Can I ask your Honours to note paragraph 8 as to the total remuneration paid to the employee?

PN9

Can I then ask your Honours to note that Mr Rogers, upon the termination of his employment, at paragraph 11, received $86,000 worth of benefits. He claimed that his loss, at paragraph 13, was ‑ ‑ ‑

PN10

COMMISSIONER BULL: Sorry, Mr Shariff, I just want to find that decision. What tab is it in?

PN11

MR SHARIFF: Yes, I'm sorry. It was provided to ‑ ‑ ‑

PN12

COMMISSIONER BULL: I'm sure I’ve got it here. What tab is it in?

PN13

MR SHARIFF: It’s not in a tab. I think it was just in the in-sleeve, but I’ve got another copy I can ‑ ‑ ‑

PN14

COMMISSIONER BULL: No, no, I'll have it here. Just let me find it. Sorry, I have a loose copy here, yes. All right.

PN15

MR SHARIFF: Yes.

PN16

COMMISSIONER BULL: So the first paragraph of what, sorry?

PN17

MR SHARIFF: What was paragraph 8 and I was just asking your Honours to note the total remuneration that Mr Rogers received and I was asking your Honours then to note paragraph 11, the compensation he received on termination of his employment. In paragraph 13, Mr Rogers submitted that his loss was $72,000-odd for the period that he was not employed, that being the difference. What the Deputy President did was to not award him compensation in respect of certain allowances. That's dealt with at paragraph 15, but nevertheless when your Honours come to the order at paragraph 29 and then it’s separately published, Mr Rogers was awarded a sum of $35,000-odd.

PN18

Allowing for the fact that certain of the allowances were not paid to him, we would say, with respect, Mr Rogers has suffered very little financial penalty, even though this is a case where his conduct was serious enough to warrant a finding that there was a valid reason for termination and there was a positive finding made that he had no explanation for his conduct. We ask the Commission: is this an appropriate message to be sending to employers and employees at large in the industry and we say that in and ‑ ‑ ‑

PN19

COMMISSIONER BULL: Just a moment, Mr Shariff, just so I follow. You said this further decision is not subject to appeal yet.

PN20

MR SHARIFF: Yes.

PN21

COMMISSIONER BULL: Which I assume means it probably will be.

PN22

MR SHARIFF: Yes. Can I just correct that? I don't have those instructions, but I'm assuming it will be.

PN23

COMMISSIONER BULL: But what I'm really leading to, I suppose, is that you're asking us to rely on the compensation that this applicant received saying he suffered very little financial detriment, but if this decision is appealed, you may be successful, therefore, if we took notice of this we may be doing the wrong thing.

PN24

MR SHARIFF: Can I come back and deal with that when I come back to deal with public interest grounds? But what we’re saying is the combined effect of these decisions, and in due course if the second decision is appealed, which I anticipate it will be, we would say it would be an appropriate vehicle rather than make us jump through the hurdle again for permission for leave to appeal on that separate point for all these matters to be dealt with at the one time? I promise I will come back and deal with why I say all of that is relevant.

PN25

I was just still dealing with introductory matters. Mr Rogers, as your Honours might have noticed, worked on Barrow Island, which is an island located 1300 kilometres north of Perth and 56 kilometres off the coast of Western Australia. That is an island which covers approximately 234 square kilometres and is classified as an A class nature reserve. Oil is processed at the island before being transferred to the market via tankers. Processing of the oil involves removing gas from the oil and that gas is then compressed and fed into the power generation station on Barrow Island.

PN26

For obvious reasons, safety is of critical importance to the appellant’s operations on Barrow Island and it can be accepted wouldn't demur, we say, that the oil and gas industry is an inherently dangerous industry and there is an ever present risk of significant and catastrophic incidents that could occur. The Full Bench would not be surprised to know that there is a network of safety, environmental, biodiversity, et cetera, types of regulations that apply to my client’s operations. My client is also bound by state and federal legislation and it is also subject to international covenants.

PN27

Can I provide your Honours with a document that lists the myriad obligations that my client confronts in its operations?

PN28

DEPUTY PRESIDENT HARRISON: Were these all before the DP?

PN29

MR SHARIFF: These are mostly drawn from the legislation that is the source of safety procedures, et cetera, that are devised and are in evidence. I was going to take your Honours to the actual safety policies very briefly in a moment, but these are publicly available records of what legislation actually governs my client’s operations.

PN30

DEPUTY PRESIDENT HARRISON: This document was not before the DP in this form.

PN31

MR SHARIFF: No, I'm sorry. I'm sorry, Senior Deputy President. That document itself was not before ‑ ‑ ‑

PN32

DEPUTY PRESIDENT HARRISON: There was no doubt reference to legislative obligations and constraints, both federally and state, but possibly not in this level of detail.

PN33

MR SHARIFF: Not in that; yes, that is so. Can I just quickly deal with ‑ ‑ ‑

PN34

VICE PRESIDENT CATANZARITI: Mr Shariff, I'm just concerned about how you wish to lead this document in this way because in the matter at first instance it was dealt with in a very specific way to say, “Well, look, there’s all these pieces of legislation that govern industry which everybody knows about,” but unless there was examination of the witnesses, et cetera, going to those other breaches, et cetera, you can’t do it on an appeal ‑ ‑ ‑

PN35

MR SHARIFF: No, no.

PN36

VICE PRESIDENT CATANZARITI: Permission to sort of say, you know, “We, the Bench, have taken into account this is an important safety – look at all the other things that govern the safety.” What was actually led?

PN37

MR SHARIFF: I accept ‑ ‑ ‑

PN38

VICE PRESIDENT CATANZARITI: I mean, I don't recall that being dealt with in that way at first instance.

PN39

MR SHARIFF: I accept, your Honour, that I can’t rely upon that material to point to error in the Deputy President’s reasons and that’s not the purpose of providing your Honours the document. The purpose of providing your Honours the document is to set the field for the public interest point. I'm not saying there is an error in the Deputy President’s reasons because of a failure to consider, for example, that document. If that’s the way your Honours have misunderstood it, it’s my fault. I haven't communicated it clearly. I'm raising that point, really, in aid of the public interest point which I'll come to.

PN40

What I was next going to move to, your Honours, was the basic facts. Your Honours will know that Mr Rogers was employed in the position of a permit coordinator. That position was central to the permit to work system. Can I just quickly take your Honours to the permit to work system and the relevant policies that applied to it? Can I first take your Honours to appeal book volume 1 at page 278? That's the procedure called the Lifesaving Rules. Can your Honours note point 1 and point 3? Can I then take your Honours to page 379? That's the procedure dealing with permit to work and that’s the permit to work manual. Can I take your Honours to page 385?

PN41

Your Honours, the permit to work system is pretty commonplace in most industries, most safety critical industries. It’s basically a system by which there is a coordination of the safety work that’s to be performed so that there isn't doubling up of work and everyone is clear and aware as to what work is being performed at what time and what equipment is being addressed.

PN42

Can I draw your Honours’ attention on page 385 to the paragraph just above the heading Scope:

PN43

A PTW system does not by itself make a job safe. Effectiveness is dependent upon relevant persons undertaking the PTW process in a conscientious manner. If used correctly, the PTW system shall assist all personnel working at Chevron locations to carry out work in accordance with safe work practices.

PN44

Can I then take your Honours to page 410 and 411? On page 411, the duties of a permit coordinator are set out. Can I trouble your Honours to look at the definition of permit coordinator? The permit coordinator is, and I stress the words, “The central administrative and planning authority of the permit system.” The second bullet point:

PN45

Any person who performs the role of permit coordinator must –

PN46

and it’s capitalised –

PN47

- successfully complete Chevron’s WA oil asset operations PTW training for this role.

PN48

Can I then in the general responsibilities over the page, page 412, stress the fifth bullet point:

PN49

Checks that all requirements for permit close-out have been completed.

PN50

And that’s critical to what happened here. Can I just tell your Honours that Mr Rogers admitted in his evidence that he was familiar with the contents of this manual. The reference to that is at appeal book page 32 at PN100. Importantly, Mr Rogers admitted at appeal book page 38, PN189, that:

PN51

It was the case that all work that is done on Barrow Island has to be done pursuant to a permit.

PN52

He also admitted that as an acting permit coordinator, and he was in that role for 18 months, it was his job to ensure that any machines or equipment that had to be worked on were properly isolated and were certified as being properly isolated. That's at appeal book pages 38 to 39 at PN187. He further admitted that it was his responsibility to ensure that permits and certificates were closed down. That's at appeal book 35 at PN138. He also admitted that it was his responsibility to ensure that equipment which had been de-activated was turned back on and that’s at appeal book 35 at 144.

PN53

He further conceded that he was the person responsible for ensuring that all permits isolation certifications and equipment inhibition certificates were correctly recorded and that’s at appeal book 35 at PN145. All of that is important because in January 2015 what happened was that a compressor at Barrow Island needed to be repaired. Associated with the operation of the compressor at Barrow Island is a thing called a fire and gas detection system, which your Honours would have seen from the decision, is a central system of safety on the island because if there is a gas leak, it is the system that sounds an alarm which automatically causes the compressor to shut down. The work that was to be performed on the compressor in this case required the fire and gas detection system to be shut down. That was given effect to by a thing called “an inhibition certificate”. I'll come to that in a moment.

PN54

What happened in the sequence of events is this: can I take your Honours to the appeal book at page 175. Your Honours will there see a thing called an electrical isolation certificate and this is the certificate that starts the process of saying, “We want to shut the compressor down.” You can see in the top, “For compressor overhaul.” It’s signed by Mr Rogers at 12.40 on the 20th and you can see that in box 3 on the page.

PN55

If your Honours then go to page 178 to 179, your Honours will find a thing called a Chevron isolation certificate and can your Honours see down the bottom of the page in box 8, “Isolation acknowledged”? That's Mr Rogers who signed that at 8.55 on the 20th. Can your Honours note on that page, page 178, there’s a box about point 5 on the page called “electrical isolations and safety device inhibit”? Can your Honours see that they are empty?

PN56

One of the grounds that my client advanced in the proceedings below was that Mr Rogers had failed in his duty because he had failed to complete that part of the document in respect of the inhibit certificate that was issued for the fire and gas detection system. Now, on the final analysis her Honour found that that was something more than a clerical error. It was a serious error, but Mr Rogers had an excuse for it because he hadn’t, she accepted, received training on the completion of that document, but that didn't go to a valid reason for termination.

PN57

Can I ask your Honours just to park that thought and I'll come back to it when I come to address her Honour’s reasons and the errors in it? That was the Chevron isolation certificate. The next document your Honours will find ‑ ‑ ‑

PN58

COMMISSIONER BULL: Sorry, Mr Shariff, you're just going a little bit fast for me. That very first point you made on that document, page 178, you said box 5. What were you referring to there?

PN59

MR SHARIFF: I'm sorry. Box 5, your Honours, if your Honour sees, has the word “safety device inhibit”.

PN60

COMMISSIONER BULL: Yes.

PN61

MR SHARIFF: And you see it’s not been completed.

PN62

COMMISSIONER BULL: Sorry. I thought you said he’d signed off on it.

PN63

MR SHARIFF: I'm sorry. At point 8, box 8, isolation acknowledge, can you see, Commissioner, the name G. Rogers?

PN64

COMMISSIONER BULL: All right. Just this copy I’ve got is quite dark.

PN65

MR SHARIFF: Yes, I'm sorry. I don't think my version is all that better.

PN66

COMMISSIONER BULL: All right. So what are we to make of that?

PN67

MR SHARIFF: This was Mr Rogers. He was the person who acknowledged that there was an electrical isolation to occur as part of the work that was to be done on the compressor.

PN68

COMMISSIONER BULL: Yes, right.

PN69

MR SHARIFF: He should have in box 5 recorded the safety device inhibit, ie, that the fire and gas detection system was being turned off.

PN70

COMMISSIONER BULL: I see. I follow. Thank you.

PN71

MR SHARIFF: He didn't do that. Can I go to page 181, which is the equipment inhibit certificate? This is the document that gives effect to the – if I can call it the isolation or shut down of the fire and gas detection system. Can your Honours see that about point 7 on the page, permit coordinator? Do your Honours see that box? It’s got G. Rogers signing off on it at 10 am on 21 January 2014.

PN72

If your Honours see up the top of the page the third entry down in the box “approval”, “Consequences of inhibit proposed,” the words are written, “Fire and gas inhibited non-operational.” In other words, “We are shutting down the fire and gas detection system.” Mr Rogers is made aware of that fact on the 21st and as the permit coordinator he has signed off saying, “I have read and had explained to me and understand the extent and scope of the temporary inhibit.” If I can then just skip ahead, your Honours, to page 214 in the appeal book, your Honours will see extracted on that page a photo. That is a photo of a whiteboard that was located adjacent to Mr Rogers’ desk and the evidence is that he recorded the fact of the inhibit certificate on that whiteboard and that’s been captured in that photograph.

PN73

So not only does he get the inhibit certificate telling him that the fire and gas detection system has been turned off, he’s the person who records that fact on the whiteboard prominently displayed adjacent to his desk. Can I then come back to the further permits? On page 183 of the appeal book, there is a thing called “a work permit”. And, again, I apologise. These are as good copies as we can get of these permits. Your Honours will see, if your Honours look at the document in landscape form, on the left‑hand page at box numbered 10, there are the words “permit coordinator” and the name G. Rogers. He signed that off at 15 hours and 30 on 21 January.

PN74

Whilst I'm on this page, can I direct your Honours’ attention to the very top right‑hand corner of this left‑hand page? Your Honours will see a small rectangular box that has words adjacent to it called “related permit certificates and JHAs” and you'll see some handwriting has been placed in there, “IC, HA, EIC.” Do your Honours see that?

PN75

VICE PRESIDENT CATANZARITI: Yes.

PN76

MR SHARIFF: The evidence is that Mr Rogers should have also recorded in that box the inhibit certificate identifying that an inhibit certificate had been issued such that the fire and gas detection system had been turned off. Again, that was a ground that my client relied upon to validate the termination in the proceedings below. The Deputy President found that there was an error. It was something more than a clerical error, but that there was an excuse in that Mr Rogers claimed that he had not received training on how to fill out that form, such that that didn't ultimately form a ground for a valid reason for termination.

PN77

What then happened your Honours will note is that document was signed on the 21st. So what’s happened by now is that work needs to be done on the compressor. Mr Rogers has acknowledged isolation certificates. He’s acknowledged a fire and gas detection system had been turned off and he knows as of 21 and 22 January that this work is going to be done and the fire and gas detection system is off. He then leaves, because he’s a fly-in/fly-out worker, on the 22nd. In the meantime, whilst he’s away, the work that was to be done on the compressor is suspended for a period because they're waiting for spare parts and there were other issues and when those parts are received, a further isolation certificate is then issued. Can I take your Honours to that at page 185?

PN78

That isolation certificate at point 8, box 8 on the page, was signed off by a Shaun Kavanagh. He was another permit coordinator, who was the permit coordinator on that day. Mr Rogers wasn't there that day. If your Honours turn the page to 186, your Honours will see at box 15, “Permission to de-isolate.” Mr Rogers has signed off on that on 9 February. So he comes back, my recollection is, on 6 February to the island and he’s signing off on the isolation certificate on 9 February.

PN79

The evidence was, and accepted, that when one closes out the work, one has to ensure that the machinery that’s been isolated is reactivated. It’s fundamental. I took your Honours to the central role of the permit coordinator. I took your Honours to the part that specifically states that it is the job of the permit coordinator to ensure that certificates are closed out properly and he didn't do that.

PN80

That was an error in respect of which, if I can take your Honours to the decision at paragraph 23, the Deputy President made a positive finding that Mr Rogers had no explanation as to why, given he was the one who recorded the equipment inhibit certificate on the whiteboard, he did not see the inhibit certificate was still active when he signed off on the isolation certificate and why that inhibit certificate remained in place until the gas leak was detected – there was a gas leak that was subsequently detected on or about 23 February – why he didn't do that.

PN81

If one steps back, this is a critical failure. It was this man’s job as the permit coordinator to attend to this task. His position to the Commission was, “I have no explanation as to why I didn't do my job, even though I'm the person who is partly responsible for issuing the inhibit certificate and recording it on the whiteboard.” The Deputy President in respect of that ground found, if I can take your Honours to 56 of the decision on appeal book page 16:

PN82

Mr Rogers’ conduct in authorising the de-isolation of the compressor without ensuring that the inhibit certificate was closed off and his continued failure to notice that was not closed off was a breach of a significant safety procedure. There was a valid reason for termination of employment.

PN83

I mentioned before that my client relied upon that ground. My client also relied upon the ground that he had failed to record the inhibit certificate on the isolation certificate and on the hot work permit. In respect of that matter, the Deputy President made the finding at paragraph 49, if I can take your Honours to that:

PN84

While I do not accept the failure to include the reference to the permits and the appropriate forms was a relatively trivial clerical error, I do not consider that Mr Rogers’ failure to record the information was a valid reason for termination.

PN85

The final sentence:

PN86

I accept Mr Rogers’ uncontested evidence that he had not been trained to record that.

PN87

So what the Deputy President was saying was: okay. He’s got an excuse for not writing those things on the document, but he’s got no excuse whatsoever for having closed out the isolation without noticing the inhibit certificate or ensuring that that machinery, the fire and gas detection system, was reactivated. My client issued a show cause letter. Can I take your Honours to that? That's appeal book volume 2, page 642. The key document I wanted to go in this regard was at page 643, which was Mr Rogers’ response through his representative. Can I ask your Honours to focus on the nature of this response? The first response is:

PN88

Glen accepts that he made a –

PN89

and I stress the words –

PN90

- clerical error when he failed to record the details of the equipment inhibit certificate.

PN91

Point 5:

PN92

Glen does not accept that his error, without more, exposed anyone or anything to the risk of injury or damage.

PN93

Paragraph 6:

PN94

Glen’s error is a relatively minor one. That failure is not Glen’s fault.

PN95

These were the explanations coming from a person who earns $223,000 who just failed to do his job and, with respect, it was not a clerical error.

PN96

VICE PRESIDENT CATANZARITI: The Deputy President is with you with all of those things. In the end, she weighed it all up. It’s how she weighs it up that really is the thrust of it. She doesn't dispute all that. She focused on what are the mitigating factors.

PN97

MR SHARIFF: But can I then come immediately to what we say the evidence ‑ ‑ ‑

PN98

VICE PRESIDENT CATANZARITI: That's really why we've given permission to appeal as to whether she’s wrong in relation to that part of the judgment.

PN99

MR SHARIFF: Can I immediately then come to what I say the errors are?

PN100

VICE PRESIDENT CATANZARITI: Yes.

PN101

MR SHARIFF: Your Honours, the first error we say starts from what we say is an uncontroversial legal premise that it’s a trite proposition that in assessing whether the termination is harsh, unjust or unreasonable, the Commission must balance any mitigating factors against the gravity of the relevant misconduct. We know that. That's trite. Can I ask that your Honours in the authorities turn to tab 4? That's the decision of Lambley number 2. Your Honour, the presiding member was in a majority in that case. Can I invite your Honours in that case to go to paragraph 47? The majority said:

PN102

We agree with the majority in the decision of BC v D and the approach the Full Bench is to take is determining whether the dismissal was harsh is to determine if there is a valid reason based on conduct and then engage in a weighing up process, weighing, importantly, the gravity of the misconduct and the mitigating circumstances of other relevant matters that may be properly brought into account as weighing against a finding.

PN103

Can I go to the decision and run through the structure of what the Deputy President did? Can I start, your Honours, at page 14 of the appeal book, paragraph 46? The Deputy President deals at paragraphs 46 to 57 with the valid reason for termination. She comes to a conclusion that there’s a valid reason for termination in respect of the de‑isolation. At paragraphs 58 through to 66, the Deputy President then deals with the criteria in subparagraph (b) through to (g) of section 387. Then the Deputy President comes to subsection (h). Can I first point out in paragraph 67 the Deputy President says – this is midway through the paragraph:

PN104

It was also not disputed that Mr Rogers had not been trained properly to complete the isolation certificates. It is clear this defect in training was not detected in the 18 months he’d filled the position.

PN105

Just pausing there. I'm going to come back to this for the second error that we allege. This factor was not a mitigating factor because the Deputy President had already rejected that point as a valid reason for termination. The training issue only went to the completion of the form not to the closing out of the certificate.

PN106

COMMISSIONER BULL: Sorry, where do you say that she rejected that?

PN107

MR SHARIFF: That's at paragraph 49.

PN108

COMMISSIONER BULL: So she says:

PN109

I accept Mr Rogers’ uncontested evidence that he’d not been trained.

PN110

MR SHARIFF: Yes.

PN111

COMMISSIONER BULL: Right.

PN112

MR SHARIFF: So she says that’s not part of the valid reason for termination and when you come, Commissioner, to paragraph 56:

PN113

It was the conduct in authorising the de-isolation that was the valid reason for termination.

PN114

They were two different things. What the Deputy President then does in 68 is talks about years of experience, 27 years; 69, concerning that he says it’s a clerical error; 70, and I'll come back to 70 in the context she considers Mr Rogers had in some way accepted it was something more than a clerical error. We challenge that. 71 says, “It wasn't an intentional or malevolent act.” 72, “He hasn't been able to find ongoing work.” 73, “Age and personal circumstances.”

PN115

So far the Deputy President has considered each of the criteria in section 387. She then comes to consideration. What we say about the paragraphs 74 through to 87 is that nowhere in those paragraphs will your Honours find any assessment about the gravity of the misconduct. Secondly, nowhere will your Honours find in those paragraphs any assessment of the centrality of the role of a permit coordinator or the seniority of this man’s position.

PN116

There is simply in this case no weighing up as was required. All that happened, if your Honours go to paragraph 79, is that the Deputy President says, “There are significant mitigating factors,” without, we say with respect, in any way grappling with what is the gravity of the misconduct. The trouble with that approach, your Honours, it’s an error, is that you can’t assess mitigating factors without having a reference point. You have to assess mitigating by reference to the seriousness or the gravity of the misconduct otherwise the analysis doesn't work. It falls apart. That’s the first error.

PN117

The first error is that there has been no assessment of the gravity. Related to that is there have been no assessment of factors which we say are relevant and were not taken into account. The factors that were relevant were, first, the seniority of this man’s role; second, the centrality of the role to the overall system in view of the safety critical nature of the industry; and thirdly, his position that he had no explanation at all for his conduct.

PN118

Surely, at least, the last matter, but definitely together with the other two, meant that this instance was at the high end of the level of seriousness. Surely. But there is not a jot of a finding to that effect and so I say, and coming back to the point I raised earlier and, Commissioner, you asked a question about, if one takes a step back and when one is considering the public interest, we must do that, this is a case where a highly remunerated employee has been reinstated to his position and received compensation in these circumstances. Surely, the public interest must be enlivened in those cases in view of the facts.

PN119

When we have a decision from the Commission, with respect, that doesn't properly grapple with those matters, there’s no positive denunciation that this conduct, the opprobrium that should attach to it, in view of the safety critical nature of the industry, my client is entitled to feel a justifiable sense of grievance that its case hasn't properly been taken into account.

PN120

In that regard can I invite your Honours to go in the authorities to Soliman v University of Technology. It should be behind tab 6.

PN121

COMMISSIONER BULL: Before you do that, Mr Shariff, when you say that assessing the gravity of the safety breach you were concerned about the lack of explanation, what explanation would be satisfactory? It appears he just has overlooked this.

PN122

MR SHARIFF: I'm not suggesting that that’s not an honest response, that he completely overlooked it. But that factor must then weigh into the gravity of the offence and that hasn't been done and that’s the error and when I come to the issue - I'm sorry, Commissioner, when I come to the issue about reinstatement, the fact that a man who’s so highly remunerated didn't do the basic job that he was employed to do, surely, is a factor that’s relevant to the question as to whether he is fit to be reinstated and that fact has not been considered. I'm on that page, so I can show your Honours. If your Honours then read the passages under Remedy ‑ ‑ ‑

PN123

COMMISSIONER BULL: I'm sorry?

PN124

MR SHARIFF: On page 20 of the appeal book under the heading Remedy, paragraphs 88 to 92, and again I challenge your Honours to find anywhere in those passages where the Deputy President engages with that point as to whether this man is fit to be reinstated to the position or a like position in view of the evidence he gave.

PN125

COMMISSIONER BULL: What do you say about the applicant’s characterisation of the mistakes as being somewhat trivial?

PN126

MR SHARIFF: Yes. I'm jumping around a bit, but I was going to come to that point. In relation to that, can I take your Honours to paragraph 70. So if I can just pause here and just set the scene of what happened. I took your Honours to the evidence wherein response to the allegation Mr Rogers said, “This was just merely a clerical error, not his fault,” et cetera. Your Honours have seen that; not a serious error. The Deputy President said she was concerned about that. That's at paragraph 69. Do your Honours see that? She says, “It’s concerning.” Then at paragraph 70 she says:

PN127

Well, that can’t be right. It’s not a clerical error because that overlooks the fact that he signed off the isolation certificate and he was representing to others the work was ready to go in a safe manner. This was not a mere clerical error.

PN128

And then she says:

PN129

So much was accepted by Mr Rogers in cross‑examination.

PN130

In other words, she’s saying: he might have said this was a clerical error in response to a show cause letter, but in evidence in the Commission he accepted that it was not a clerical error. The footnote the Deputy President provides to that at 27 is a reference to transcript at PN422. Can I take your Honours to that? That's in the appeal book at 57, PN422. The question is asked, just after the first sentence:

PN131

Do you agree now, giving evidence before the Deputy President, that what you did by failing to do those things wasn't simply a clerical error?

PN132

Then he says this:

PN133

I certainly have never taken this lightly.

PN134

All right. That's not really engaging with the question:

PN135

Certainly, I have someone who follows me in signs and permit who checks my ID.

PN136

That's shifting blame. That's not accepting responsibility. He’s then asked:

PN137

A potentially dangerous situation?‑‑‑Dangerous situation, yes.

PN138

But that’s not accepting responsibility:

PN139

You agree with me, don’t you, you can’t rely on other people all the time?‑‑‑I just have to disagree with that.

PN140

He is not accepting responsibility. 425:

PN141

But you have to take responsibility for doing your job, don’t you?‑‑‑Yes.

PN142

But what does that mean? Your job is to make sure things are completed?‑‑‑Yes.

PN143

You can’t rely upon him to allow your job – do it properly?‑‑‑Well, the only thing I would have to say there, he has to have the final say. I haven't got the final say. He has the final say for the work to commence. I’ve made an error. As I said, it sits in my stomach very strongly. I did make the clerical error for not putting that on, but I don't know if I'm just around and copped the full blame.

PN144

That's not an acceptance of anything but that this was a clerical error. So when the Deputy President says in paragraph 70 in the sentence:

PN145

This was not a mere clerical error. So much was accepted by Mr Rogers in cross‑examination.

PN146

With respect, we say there’s no factual foundation for that. He doesn't accept that. To answer your point, Commissioner Bull, he says:

PN147

I have no explanation for my error.

PN148

That, we would have thought: (1) is a critical feature going to the seriousness or gravity of the offence and it’s not considered; (2) it is a relevant fact as to whether reinstatement was appropriate and it’s not considered. Just on any view of House v R, a failure to take into account a relevant consideration, some kind of miscarriage of discretion is sufficient for me to point to error and your Honours can find error because you look at the decision and you say, “Something has gone wrong in the decision making process.” If something has gone wrong in the decision making process there is error and that’s sufficient for me to establish error and so much was accepted recently by the Full Court in Toms.

PN149

Your Honours, there were other errors we say committed. We say that there was an error, as I pointed out, the Deputy President took into account in mitigation the lack of training in relation to the completion of the documents; but that wasn't a mitigating factor to the valid reason that the Deputy President actually found. The valid reason that the Deputy President actually found was a de‑isolation without regard to what was on the whiteboard and without regard to the inhibit certificate. She’d rejected the other matters. You can’t, having rejected those matters as giving rise to a valid reason, then reintroduce them as part of the mitigation. We say that that’s an error.

PN150

A further error, we say, is in relation to what I’ve just been dealing with. There was no consideration as part of the decision to reinstate of relevant factors, including the safety critical nature of this industry, the fact that this man gave no explanation at all and had no explanation for his error in view of his position and the centrality of this system.

PN151

The next error we say is that her Honour seems to have applied the wrong test in determining whether reinstatement was appropriate. We've addressed that in the written submissions and I don’t say anything further about that now. Can I now – and I appreciate your Honours have given me the indulgence of addressing your Honours on these matters, can I now address why we say the public interest is enlivened?

PN152

First, I say that we have pointed to error. There’s real error here and if I’ve established error, surely, it’s in the public interest for error to be corrected and the authorities, GlaxoSmithKline, et cetera, say that. If there’s an error and it’s wrong, justice should be done. Secondly, we point out in our written submissions that there now appears to be a disconformity in the authorities as to what the appropriate approach this Commission should take when you're dealing with matters involving safety breaches of this type, the very serious ones.

PN153

Can I start with what was said in Parmalat at paragraphs 18 and 19? That's behind tab 5. The Full Bench in that case said:

PN154

In our view, this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in New South Wales. Establishing and enforcing safety rules are an important obligation –

PN155

et cetera. If I pause there to respond to your question, Vice President Catanzariti, I was taking your Honours to the list of legislation to make good that point on public interest not on error. At paragraph 19 the Full Bench says:

PN156

In this case, the employer considered and established to the satisfaction of the Commission that Mr Willio had breached his safety rules and his conduct amounted to serious misconduct. Clearly, disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and, in our view, clearly attracts the public interest.

PN157

We say our case is on all fours with that where this type of conduct is concerned; where there’s a serious breach of a safety procedure and the employee is reinstated to his position. The tribunal can accept as a given that the public has an interest that a man with those qualities has been reinstated to this position on this island and that’s why we say there’s a public interest in it.

PN158

VICE PRESIDENT CATANZARITI: Do you say it’s reinstatement that triggers it? If, for example, the Deputy President had said there was a valid reason, but declined reinstatement and ordered compensation, what would your position be in relation to that in terms of the error?

PN159

MR SHARIFF: That may weaken my case somewhat. It won’t weaken my case in relation to the failure of the Deputy President to at all consider the objective seriousness of the conduct and your Honour knows from safety prosecutions, the first thing that prosecutors will put against you, and judges will put against you on sentencing, is the objective seriousness of the offence. It’s critical. You have to do it because otherwise mitigating factors, subjective factors in a criminal setting, but mitigating factors in this setting, have no reference point. You've got to know what the objective seriousness is.

PN160

I say, yes, it may weaken my case on my challenge to reinstatement, but it doesn't weaken my case on the error relating to a failure to take into account objective seriousness. I said there was some disconformity in the authorities, can I take your Honours – just before I go to the disconformity, the point that the Full Bench was making in Parmalat about sending messages to employers and employees is not an uncommon one. It is a proper role for this Commission to do that and, your Honour, the Vice President, will recall that in Lambley number 2 that issue was front of mind, both in the minority judgment and in the majority judgment in relation to fighting in the workplace.

PN161

If your Honours go back to tab 4, that’s in Lambley, at paragraph 143 in a minority judgment of Lawler VP, this was said:

PN162

The proposition that a finding in favour of Mr Lambley will undermine DP World policy against fighting or involved in other employees of DP World to disregard a policy against fighting will have those effects on employer and employees more generally is preposterous.

PN163

The majority vehemently disagreed with that proposition. Can I take your Honours to paragraph 57:

PN164

Finally, it is also relevant to briefly mention the issue involving broader policy implications that might follow with any finding in favour of Mr Lambley. The suggestion that a finding in favour of Mr Lambley, which was accompanied by some significant financial penalty, would not offer implicit condemnation of fighting in the workplace is, with respect, a proposition based upon the erroneous assumption that such an outcome would be the subject of detailed and rational examination in the workplace.

PN165

That applies here, but it’s worse. It’s worse because not only has Mr Rogers been reinstated, he’s suffered very little, if any, financial penalty.

PN166

COMMISSIONER BULL: But we can’t ‑ ‑ ‑

PN167

MR SHARIFF: I'm not raising that as an - I accept, Commissioner Bull, I'm not raising that to point to an error in this decision. I'm raising it going to public interest.

PN168

COMMISSIONER BULL: Yes.

PN169

MR SHARIFF: That's the result. That's what we’re dealing with here. I was going to the disconformity in the authorities. Can I go to the decision behind tab 8? That's Holcim. I will for the benefit of the court reporter provide a list of our authorities. In Holcim at paragraph 6, if I can take your Honours to that, the Full Bench in this case said:

PN170

We do not consider that the decision in Parmalat is authority for the proposition that leave to appeal is automatic when matters of workplace safety and statutory obligations regarding occupational safety arise for consideration - - -

PN171

et cetera. We say yes, that is so, but Parmalat doesn’t stand for the proposition that permission to appeal should be automatic. It says that there are strong policy considerations as to why permission to leave ought be granted in such matters. No-one said it should be automatic. SO there is, in the authorities now, controversy - we say - that should be quelled by a Full Bench as between the Full Bench authorities that I’ve taken your Honours to about what should be the proper approach to permission to appeal in such cases.

PN172

The second aspect where there is a disconformity is in relation to paragraph 24 of Parmalat. Can I take your Honours to that? That’s again behind tab 5. In paragraph 24 the Full Bench said - I’m picking up from about two-thirds of the way through the paragraph:

PN173

Having found a valid reason for termination, amounting to serious misconduct in compliance with the statutory requirements for procedural fairness, it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in the matter amount to such factors.

PN174

That is a statement of principle which in the schedule that we attach to our written submissions has been cited and applied in numerous cases, both at first instance and on appeal. That has been the prevailing principle that’s been applied in these types of cases since Parmalat was decided in 2011, although there has been some suggestion that that position might be too high, put too highly in some of the Full Bench decisions.

PN175

That proposition has been brought into question by the full court of the Federal Court in Toms. Can I take your Honours to that? That is behind tab one. Can I take your Honours to - if I can start at paragraph 98, if your Honours have that? This is the full court of the Federal Court decision. It’s a decision of Buchanan J but with whom the Allsop CJ and Siopis J agreed. At 98 Buchanan J refers to paragraph 24 of Parmalat. Do your Honours have that? In that his Honour says:

PN176

It is convenient to refer again to Norbis v Norbis - - -

PN177

which is a seminal High Court decision, and he quotes from Norbis:

PN178

It has sometimes been said by judges of high authority that a broad discretion left largely unfettered by parliament cannot be fettered by judicial enunciation of guidance in the form of binding rules governing the manner in which the discretion is to be exercised. However, it does not follow that because a discretion is expressed in general terms parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise. One very significant strand in the development of the law has been the judicial transformation of discretionary remedies into remedies which are granted or refused according to well-settled principles.

PN179

Then the part that’s emphasised:

PN180

The proposition referred to at the beginning of this paragraph should not be seen as inhibiting an appellate court - - -

PN181

of which is what we say your Honours are in the position:

PN182

From giving guidance which falls short of constituting a binding rule as to the manner in which discretion should be exercised.

PN183

Just pausing there. This Full Bench, its predecessors since 1904 has established guiding industrial principles. It’s been at the forefront of it and it shouldn’t stop doing that even where there are discretionary matters involved. At paragraph 100 Buchanan J says:

PN184

Statements of principle often serve a useful and legitimate function. They provide a body of appellate guidance against which to test suggestions of error in future cases. They cannot substitute for or alter a statutory prescription but they are not jurisdictionally fought unless they are given or assumed the status of a rule or are general pronouncements not related sufficiently to the facts of a particular case.

PN185

There’s a reference to Wong, which your Honours will know was a guideline case on sentencing principles in the criminal area. Buchanan J goes on:

PN186

It is arguable that the statement in Parmalat which is set out earlier infringed this restriction. It appears to be a dogmatic pronouncement if it was intended as a general rule. It could not fetter the broader value it had cast assigned by the Fair Work Act using the principles I’ve discussed of a fair go all round. But in cases such the present attention must remain focussed on the significance of the statement for the outcome of the present case, not some other case.

PN187

Your Honours now have a full court decision of the Federal Court that suggests - doesn’t conclude but suggests that the principle in Parmalat might be too dogmatic. The principle in Parmalat has been applied, as I said, by reference to the schedule to our written submissions, in numerous cases and we say the principle in Parmalat is in fact sound. It may be that in light of the decision of the full court in Toms, your Honours need to give some guidance both to employers and employees in industry nationally as to a refined statement of the principle in Parmalat.

PN188

But as far as we know no Full Bench decision has considered this matter - that is, the principle in Parmalat, interaction between safety law and unfair dismissal regime - since the decision in Toms. We say, well, this case is the appropriate vehicle - if I case use an expression used elsewhere where applications are made for leave to appeal - it is the appropriate vehicle to have a proper examination of what guidance the Full Bench should be giving in unfair dismissal matters where there are serious breaches of fundamental safety procedures, especially in light of the decision in Toms.

PN189

SENIOR DEPUTY PRESIDENT HARRISON: I might better understand that submission had the Deputy President below not expressly referred to Parmalat, and consistent with the extract, said:

PN190

This is a case where mitigating factors are to be taken into account.

PN191

MR SHARIFF: My answer to that, Senior Deputy President, is that the Deputy President didn’t do the first part of the exercise. The first part of the exercise is you’ve got to assess the objective seriousness of the conduct. You see, with a client like mine, like many clients in industry, we’re entitled to say, look, “We didn’t really get our case heard here because where is the assessment of how serious this conduct actually is?” Because what the Deputy President does is she goes through the factors enumerated in section - - -

PN192

SENIOR DEPUTY PRESIDENT HARRISON: How serious the consequences of the conduct is.

PN193

MR SHARIFF: Yes.

PN194

SENIOR DEPUTY PRESIDENT HARRISON: There’s a fine line - - -

PN195

MR SHARIFF: I accept there might be a fine line but it is of concern that we have a decision that says yes, there’s a valid reason for termination because you breached a safety procedure, full stop. “I’ll go on to consider the matter and when I come to consider the matter the only factors I’m taking into account are all the mitigating factors.” That’s of concern. Clients such as mine and employers and employees are entitled to have this conduct properly examined and for a tribunal such as this to properly assess the conduct and if necessary there should be a denunciation of the conduct.

PN196

After all, this is the peak industrial body dealing with these matters. If it doesn’t do it then there is now doubt case on Parmalat, as a result of Toms. We say this is the appropriate case in which to examine these matters and to develop those principles.

PN197

SENIOR DEPUTY PRESIDENT HARRISON: Isn’t it the Federal Court, in light of the comment made by Buchanan J plead to do so?

PN198

MR SHARIFF: Save for this: can I take your Honours to paragraph 42 of the decision in Toms - of the decision of Buchanan J? Can I pick up from about two-thirds of the way through that paragraph where Buchanan J said this:

PN199

It should be accepted that parliament intends the examination of the merits of unfair dismissal cases should be the particular province of the Fair Work Commission and proceed upon a practical and pragmatic foundation. That examination necessarily extends to the possibility of review of reasons and outcomes on appeal. Those are matters not readily susceptible to narrow challenges on the ground of jurisdictional error.

PN200

In other words, the Federal Court is not vacating the field but the Federal Court is indicating that our role is confined to correcting jurisdictional error. It’s the province of the Full Bench to develop legal principle and to do so in a way - as it has always done - and there are sound industrial principles that this Commission has developed and its predecessors on fighting. Your Honour the Vice President considered that in Handbook. There are tests that apply to substantial character of work or principle purpose of work when considering award coverage.

PN201

These are sound industrial principles allowing for discretionary judgements that have been developed by this Commission and this Commission should continue to do that and in fact there’s an invitation, if one reads the passages of Buchanan J’s decision together, in light of what - the citation from Norbis v Norbis - an invitation for this Commission to continue doing so but not in a way that overstates things. So we say - if I could just summarise and then I promise I’ll sit down: we have error. We point to error. We say we establish error. That in and of itself we say is sufficient to grant permission for leave to appeal because the error should be corrected.

PN202

Secondly, the decision raises these very important public interest grounds and thirdly, that is all the more the case in circumstances where we’ve got a full court decision in Toms that is casting doubt on the absoluteness of a principle that’s been stated by a Full Bench and that’s been applied across the board in cases both in first instance and on appeal.

PN203

COMMISSIONER BULL: Why isn’t this case one that is solely confined to its facts, Mr Shariff, in that the Deputy President agrees the valid reason but then she does her own balancing act and says, “On the facts of this case all the mitigating factors don’t lead to a conclusion that he should lose his job on the remedy.” That’s really where she turns her mind because she doesn’t make light of the breaches. She acknowledges the breaches. But she says, you know, “Given his track record, his length of service, all the rest of it, I’m exercising my discretion, stating a principle on health and safety,” which is where you want to take the Full Bench, it seems, on issues of safety, saying, “This is a safety case but this narrow safety case here, weighed up in this particular case, I form the view he should get a remedy.” That seems to me from my view the way she’s crafted it.

PN204

MR SHARIFF: Can I urge your Honour against that view because there are errors in the Deputy President’s decision? There are errors that, I mean, there’s an obvious error - I’ve repeated it - that there hasn’t been an assessment of the seriousness of the gravity of his conduct. I’ve laboured that. Secondly, there is an error because the Deputy President did not take into account relevant facts: seniority, centrality of the role, the non-explanation for the conduct. Those are, we have to accept, relevant to the assessment but they are not taken into account in the weighing-up process, so there is error.

PN205

Then we get to reinstatement and there’s an error because the Deputy President proceeds on the basis that this man somehow expressed remorse or contrition or gained some insight into his conduct for which there was no factual foundation. So there’s error. Once there’s error we say, with respect, it would be wrong for the Full Bench to say, “Yes, there might be error in that case - you might have made that good - but there’s not a sufficient public interest for us to grant leave and so you should live with the errors.” We say that would be wrong.

PN206

What we’re saying in addition to that - there is error here and there are public interest grounds.

PN207

COMMISSIONER BULL: All right, Mr Shariff. In the Toms decision in the Parmalat matter it appears to be agreed fact that the conduct of the employee was serious misconduct due to the safety breach.

PN208

MR SHARIFF: Yes.

PN209

COMMISSIONER BULL: Do you say that the applicant in this matter committed serious misconduct?

PN210

MR SHARIFF: Your Honour, I don’t think I can say that - an I answer your Honour’s question this way? Regulation 1.07 of the Fair Work Regulations provides a definition for serious misconduct. For the definition of serious misconduct in section 12 serious misconduct has its ordinary meaning and in subsection (2)(b) says this:

PN211

Conduct that causes serious and imminent risk to (i) the health or safety of a person.

PN212

So it meets the statutory definition. Now, the Deputy President describes the conduct as misconduct. She doesn’t describe it as serious misconduct.

PN213

COMMISSIONER BULL: Yes.

PN214

MR SHARIFF: In the termination letter that was issued to the employee, his conduct was described as a serious breach and as is the practice in the resources industry - that’s what I’m told - he was paid a payment in lieu of conduct though his conduct was a serious breach.

PN215

COMMISSIONER BULL: Yes, that’s why Deputy President - the decisions you’ve taken us to involve safety breaches in - the one in Parmalat the bloke had a history of poor safety conduct. His final act was considered to be serious misconduct whereas this chap has no history and the letter of termination doesn’t actually say - you say the practice provides payment in lieu of notice. It doesn’t refer to his conduct as serious misconduct.

PN216

MR SHARIFF: The questions that you’re raising, Commissioner Bull, may well be relevant to a re-hearing. If I establish error in the decision making process and we come to a re-hearing, the Full Bench reconsiders this matter, those are matters that may well work their way in to what should happen to the case. But at the moment - - -

PN217

COMMISSIONER BULL: The only reason I raise it is you’ve taken us to these decisions and have regard for and they are decisions that relate to serious misconduct.

PN218

MR SHARIFF: That is so but there is, I think in the bundle of authorities, your Honour, can I take you to Lambley number one? That’s behind tab three at paragraph 26. These are the factors in section 387:

PN219

Although not an exhaustive list are a strong indicator of the elements of a fair dismissal in circumstances where a valid reason is found to exist

PN220

Just pausing there, not serious misconduct or misconduct, just a valid reason found to exist.

PN221

and procedural fairness has been afforded significant mitigating factors are required in order to lead to the conclusion.

PN222

So the authorities, at least in this jurisdiction, seem to - some of them refer to serious misconduct, some of them refer to a valid reason for termination. I think the doubt that’s been cast by Buchanan J in paragraph 100 of Toms would apply equally to that statement of principle. Indeed, can I take your Honours to - there was an appeal - sorry, there was an application for judicial review from Lambley number one, as your Honours would know. Katzmann J in the Federal Court heard that case. Can I hand that authority up?

PN223

COMMISSIONER BULL: Just while you’re doing that, Mr Shariff - sorry to make this longer than it need be - but in respect to - your client seems to have accepted that the relevant training wasn’t provided. I’m not sure why that happened and it may not be relevant but does that in any way mean that he wasn’t competent to fill the form out?

PN224

MR SHARIFF: No. Essentially that was the point we made below. Can I take - Commissioner, you’ve raised a very valid point. Can I take your Honours to appeal book two to page 823? Do your Honours have that? Do your Honours recall that I took you to the permit-to-work manual, which set out what the role of the permit coordinator was? This employee, Mr Rogers, received ample training on that manual and if you have a look at paragraph 11, the training program - so what’s said is the training records confirm that Mr Rogers completed the following training courses and do your Honours see, “ABSU permit holder, ABU permit authority, ABU issue work permits; that particular one went for six hours on 12 February,” et cetera. There was comprehensive training provided.

PN225

COMMISSIONER BULL: The reason I ask is that one would think - you pointed to how senior this chap was and the salary he was on - one would find it a bit strange if someone - just to leave a box blank.

PN226

MR SHARIFF: Quite, quite.

PN227

COMMISSIONER BULL: And then to argue later, “I wasn’t even given the training.”

PN228

MR SHARIFF: Especially when your Honours look at the box; it says, “Safety inhibit device,” and that’s the name of the form that he then signs moments later. So his excuse was, “I did not know I had to fill that box out.” It was remarkable. I accept that. But I have a finding against me on that, on the absence of training point, but it’s remarkable but of course if we get into a re-hearing on appeal I may make further submissions about that point. But at the moment I’m just dealing with permission to appeal. But I accept that point; it’s a point that immediately struck me, I must say. Unless there’s anything further - - -

PN229

VICE PRESIDENT CATANZARITI: You were drawing our attention to Katzmann J’s decision.

PN230

MR SHARIFF: Sorry, yes, I was. Now, Katzmann J’s decision at paragraph - now I’ve misplaced my copy - paragraph 32. Can I in fact take your Honours a step back to paragraph 28? Mr Lambley argued that the Full Bench imposed a test in the second sentence of paragraph 26 - that’s the paragraph I took your Honours to - that:

PN231

Absent significant mitigating circumstances where a valid reason for dismissal is found to exist and procedural fairness has been afforded

PN232

Just pausing there. Commissioner Bull, the terminology there is, “valid reason,” not, “serious misconduct.” Mr Lambley further submitted that:

PN233

It was wrong in principle to give the valid reason criterion greater emphasis or focus than other matters or to first form the view that a valid reason was established and then consider whether other matters in section 387 displace that view.

PN234

Just pausing there; that assertion that was made by Mr Lambley would directly contradict paragraph 47 of Lambley number two in a majority judgement and also the ABC&D decision. But anyway, 29, Mr Langley argued that:

PN235

The Full Bench held that only where an employer’s disciplinary actions are judged to lie outside the discretion of reasonable and just response to the relevant conduct are disproportionate should a finding of unreasonableness or injustice be made. In other words, the Full Bench was imposing fetters on jurisdiction - - -

PN236

Et cetera. Thirdly, Mr Lambley submitted that:

PN237

The Full Bench applied a purported principle but the dismissal of an employee found guilty of fighting in the workplace can only be found to be harsh in extenuating circumstances.

PN238

Just pausing there, that principle has existed for at least 25 years. 31:

PN239

As the third purported principle is said to relate to the first it is convenient to deal with them together. 32: I do not think it is fair to say that the Full Bench gave greater emphasis or focus to the valid reason criterion over any other factor in section 387 or first formed the view that a valid reason was established. But I too think that there is merit in Mr Lambley’s other complaints.

PN240

In other words, not only is there the decision of the full court in Toms, there is also the decision in Lambley, the appeal from Lambley number one, that’s casting doubt on these principles that are being applied in the Full Bench. Her Honour goes on:

PN241

The statement in the second sentence of 26 appears to be at odds with the proposition that a dismissal may be harsh in its consequences and if it purports to be a proposition of law it deflects attention from the terms of the statute itself.

PN242

I just pause there. It would be - we say with respect - an appropriate thing for this Full Bench to reassert the principles in Parmalat and Lambley but do so in a refined way that doesn’t attract this type of doubt being cast on those principles. That to our knowledge hasn’t been examined - that point has not been examined by the Full Benches of this Commission since Toms. Indeed, there’s an element of the argument that was put and which Katzmann J said wasn’t what the Full Bench did which may in fact require revisitation.

PN243

The proposition that greater emphasis shouldn’t be given to the valid reason criterion over any other factor surely needs to be examined. Obviously in unfair dismissal cases the Commission must give - must take into account each of the factors in (a) through to (h). There is no doubt about that but surely the valid reason criterion is the most important one in those because if the Commission finds that there is no valid reason for termination, termination is usually unfair, ordinarily; almost inevitably. Valid reason is clearly the most important criterion. That’s not to say you can’t, you don’t and should not take into account each of the other criteria.

PN244

But the valid reason - you can’t have the tail wagging the dog at the end of the day. The valid reason is the starting point and that’s why these authorities, both of this Commission and the full court, say in an unfair dismissal case you must weigh the mitigating circumstances by reference to the objective seriousness of the offence. That’s exactly what that calls for. Unless there is anything further - if your Honours give me a moment?

PN245

VICE PRESIDENT CATANZARITI: We’ll take a short adjournment.

PN246

MR SHARIFF: Yes, may it please.

SHORT ADJOURNMENT [3.55 PM]

RESUMED [4.30 PM]

PN247

VICE PRESIDENT CATANZARITI: Mr Shariff, the Full Bench has had the opportunity to consider the matter and notes in particular the recent decision of 31 March of Gooley DP, which you foreshadowed you might have instructions to lodge an appeal. It seems to us that in those circumstances that it’s premature to deal with permission to appeal part of the matter. Now, they are inextricably linked, in our view. We would like you to, if possible - because you’re still within time of course - to see whether instructions can be obtained as to when or not an appeal is going to be lodged within the next three days and advise the Full Bench.

PN248

Assuming an appeal is lodged in relation to the decision of 31 March, I’ve had the opportunity to make some inquiries about that. It would be appropriate for the same Full Bench to follow on from this and deal with that matter as well.

PN249

MR SHARIFF: Can I just make this inquiry, your Honour; does your Honour envisage that if there is an appeal lodge that we would adjourn the hearing of this application to that time or would you - - -

PN250

VICE PRESIDENT CATANZARITI: Yes.

PN251

MR SHARIFF: Do your Honours have in mind that both matters would then as it were be the subject of an aggregate?

PN252

VICE PRESIDENT CATANZARITI: It would be the subject of an aggregate. We envisage that the second decision will trigger some further matters you wish to draw our attention to in terms of potential error.

PN253

MR SHARIFF: Yes. For my part, certainly - I’ll need to get further instructions - I suppose I put my inquiry very poorly. Might it be contemplated by the Full Bench that if there is an appeal as to the decision on remedy that the question of permission to appeal in this application and the question of permission to appeal in that application would be heard together, together with the actual, substantive appeals - - -

PN254

VICE PRESIDENT CATANZARITI: No. We’ll still deal with permission separately. We feel that the respondent needs to have the transcript of today and an opportunity to respond to the various matters you’ve put today because there have been some matters that have been raised and the respondent may not have appreciated - by the way the appeal was actually formulated in the first matter - the importance of it.

PN255

MR SHARIFF: Yes, your Honour.

PN256

MR ALLEN: I can confirm to the Full Bench that we do have instructions to appeal that matter. The approach that my client was taking in relation to that matter was to see what happened today but in light of the observations that you’ve made, your Honour, I can now confirm that we have instructions to appeal that second decision.

PN257

VICE PRESIDENT CATANZARITI: Then we would encourage you to put on the formal paperwork quickly because we view it as being quite important.

PN258

MR ALLEN: Thank you, yes; we’ll attend to that promptly.

PN259

MR SHARIFF: Does your Honour have in mind giving us some period of time to file some submissions in support of that application so that there can be expedition in respect of that matter as well, your Honour?

PN260

VICE PRESIDENT CATANZARITI: That’s what we’re trying to achieve, expedition. We can’t do anything until there’s a formal application.

PN261

MR SHARIFF: Yes, well, if one assumes that there will be a notice of appeal lodged in respect of that matter in the next 72 hours, do your Honours want from us an outline of submissions within, say, two weeks after that or one week?

PN262

VICE PRESIDENT CATANZARITI: We are in your hands. I mean, the sooner the better, clearly.

PN263

MR ALLEN: I think, your Honour, filing the appeal tomorrow would be - so within 72 hours might not be quite practical but I’m sure we can file it be close of business on Monday. I think we’ll put - when we lodge the appeal we will put a suggested time frame, bearing in mind what your Honour has said and the need, which we fully appreciate, for expedition.

PN264

VICE PRESIDENT CATANZARITI: Also for the respondent to have the transcript of today because we assume they would wish to respond.

PN265

MR ALLEN: Yes, your Honour, and I’m holding back on agreeing to anything in relation to time simply because counsel is in Sydney. I can’t just have that normal little, quiet chat that you normally would have.

PN266

SENIOR DEPUTY PRESIDENT HARRISON: Well, you can, but it mightn’t be wise.

PN267

MR ALLEN: Yes, I think that’s a very wise observation, Senior Deputy President, thank you.

PN268

VICE PRESIDENT CATANZARITI: Okay, well, the Commission is then otherwise adjourned.

PN269

MR SHARIFF: May it please.

ADJOURNED INDEFINITELY [4.35 PM]

Fair Work Commission Transcripts

C2015/1884, Transcript of Proceedings [2015] FWCTrans 409 (15 July 2015)