C2014/6736, Transcript of Proceedings [2015] FWCTrans 54 (12 February 2015)

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PN1.

THE SENIOR DEPUTY PRESIDENT: Yes, I will take appearances, please.

PN2.

MR M RINALDI: Good morning, and happy new year. If the Commission pleases, my name is Rinaldi, initial M, and I seek permission to appear for the appellant.

PN3.

THE SENIOR DEPUTY PRESIDENT: Can you guarantee it’s going to be a happy new year, Mr Rinaldi?

PN4.

MR RINALDI: I certainly can’t guarantee that, your Honour.

PN5.

THE SENIOR DEPUTY PRESIDENT: Thank you for the good wishes, in any case. Yes.

PN6.

MS S KEATING: Good morning. My name is Keating, initial S, of counsel, and I seek permission to appear on behalf of the respondent to the appeal, on the basis of the grounds set out in our written submissions of 22 December 2014.

PN7.

THE SENIOR DEPUTY PRESIDENT: Yes. We’ve had the opportunity to consider the written submissions in respect of permission, and we are persuaded that we should grant permission in each case; that is, permission for counsel to appear. Mr Rinaldi, you can take us to the other permission on the merit.

PN8.

MR RINALDI: Thank you, your Honour, yes. As the Full Bench will have noted in the notice of appeal, there are eight grounds of appeal, plus the usual catch-all which I don’t propose to trouble you with. That is, such further other grounds that may be advanced to the hearing of the appeal. Those eight grounds really boil down to three main areas of error in which we say the Commissioner erred at first instance. They are in relation to valid reason, whether a valid reason existed. We say the Commissioner applied the wrong test and drew the wrong conclusion in relation to the question of valid reason. He should have found that there was a valid reason within the meaning of section 387A.

PN9.

Secondly, that he erred in relation to the opportunity to respond, that the substance of the allegations were put to Mr Farmer and that he had an opportunity to respond and that additional requirements, such as provision of documents that the Commissioner had regard to are irrelevant considerations, and he applied the wrong test and caused himself to fall into error in the sense of House v The King, and - - -

PN10.

THE SENIOR DEPUTY PRESIDENT: Mr Rinaldi, if you’re wrong on valid reason, would it matter in relation to the opportunity to respond?

PN11.

MR RINALDI: If we’re wrong on valid reason, if there was no valid reason, then, as the Full Bench said in Parmalat v Wililo, which is referred to in Harbour City Ferries v Toms, a recent decision of another Full Bench - and I might hand to the members of the Full Bench at this point a small book of authorities. There are a couple of late insertions - - -

PN12.

THE SENIOR DEPUTY PRESIDENT: Hot off the press?

PN13.

MR RINALDI: Hot off the press, just so that you’re aware of those when you open them, that they don’t fall out. There should be, in the inside sleeve - I’ve provided a copy to my learned friend - a copy two decisions, the Harbour City Ferries v Toms decision, which I’ve just referred to, as well as a very recent decision in relation to Yarra Trams, of Kingsley, a decision of Johns C. I’ll refer to that later, but just - - -

PN14.

THE SENIOR DEPUTY PRESIDENT: It may not have been inserted because the hole punches were not in the - - -

PN15.

MR RINALDI: Yes. Well, the last insertion which my instructor has told me, they ran out of two hole punches down at VECCI and I had punched them as a two‑hole punch, that is just inserting in tab 8.

PN16.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17.

MR RINALDI: The next few pages of the “Definition” section, section 3 of the Rail Safety (Local Operations) Act 2006.

PN18.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19.

MR RINALDI: The relevance of those is that, just lest it be in question, that a “railway” includes a “tramway”, as you’ll see from the definition of “railway”. In the Harbour City Ferries case, I just wanted to refer to that for its reference to “valid reason” at paragraph 16, where the Full Bench quotes from Parmalat v Wililo. It’s following on from an earlier quote in paragraph 15, and I will go to that earlier quote shortly, but in terms of valid reason, if we’re wrong and there was not an error by the Commissioner in terms of valid reason and he was correct to find that there was no valid reason, that is not fatal to the appeal. The matter may still not be harsh, unjust or unreasonable, even in the absence of a valid reason, but it has to be conceded that a valid reason is, as the Full Bench says there in Wililo’s case, a very important consideration.

PN20.

As they say in the next sentence, “The absence of a valid reason will almost invariably render the termination unfair.” Now, the argument put against us, as I apprehend it on this point is, well, your reason that you gave was using your mobile phone. That wasn’t proven on the facts.

PN21.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22.

MR RINALDI: We, as rightly noted by my learned friend in her submissions, do not contest the facts. The facts were in dispute and we have to accept that the finding of fact made by the Commissioner who saw the witnesses, verbal witnesses’ stands, and his finding of fact was that the applicant below, the respondent in this appeal, Mr Farmer, had a bag on the side tray of the tram cockpit, if I can call it that, and had some contents which fell out as it crossed the intersection and that he checked his charger which had fallen out; picked it up and checked it as he crossed through the intersection. We say that - - -

PN23.

THE SENIOR DEPUTY PRESIDENT: So it fell out as he crossed the intersection?

PN24.

MR RINALDI: I believe that’s the evidence, your Honour. Just before, yes, and then he’s checking it in the process of going through the intersection, as I apprehend the evidence.

PN25.

THE SENIOR DEPUTY PRESIDENT: Yes. So it fell before - yes. The Commissioner’s found he has the auxiliary charger in his hand and has inspected it whilst crossing the intersection.

PN26.

MR RINALDI: Yes, that’s my understanding.

PN27.

THE SENIOR DEPUTY PRESIDENT: And then picked up other matters, other belongings, when he’s reached the tram stop past the intersection.

PN28.

MR RINALDI: Yes.

PN29.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30.

MR RINALDI: So we say that as far as valid reason is concerned - and this is an important point to go to early on - whilst the belief of the employer was that he was using a mobile phone - and that was the evidence of the witnesses for the employer - the Commissioner didn’t accept that. But notwithstanding that, the Commissioner did accept that he was checking - his own evidence, that is, Mr Farmer’s evidence - the auxiliary charger. That, as Wilson C found, was a breach of the Yarra Trams rules and procedures and if the Full Bench has the Appeal Book in front of them, it is at page 331 of the Appeal Book is the first of the breaches. These are breaches that Ryan C found.

PN31.

THE SENIOR DEPUTY PRESIDENT: Not Ryan C.

PN32.

MR RINALDI: Sorry, I beg your pardon, sorry. Wilson C - sorry, Commissioner - found in his decision, the first being of rule 9(3) which was one of the rules in relation to which Mr Farmer was interviewed by Yarra Trams prior to the dismissal. You’ll see that the three rules that Yarra Trams was relying on mentioned at paragraph 28 of the Commissioner’s decision, paragraph 30, paragraph 34, where he’s recounting the investigation report and the letter that was sent to Mr Farmer on 24 February 2014. So rule 9(3), the Commissioner found cardinal rule number 2, hand-held mobile devices, was in breach as a matter of fact, but at rule 9(3) General Conduct, which appears at 331 of the appeal book, that is:

Drivers must not behave in any way likely to put public safety in danger or undermine public confidence.

PN33.

He says it was - finds that that was breached in respect of the second part, that is, undermining public confidence. And then he says but he’s not sure that such an undermining, that it rises to the level of a valid reason, and I want to go to that, because it’s a very important error, in our submission. He also says, however, that he’s not satisfied - this is at page 13 of his decision, page 19 of the appeal book, paragraph 54. He’s not satisfied that Mr Palmer behaved in a way likely to put public safety in danger. We find that, on the evidence, an impossible finding which is within the scope of the last part of the classic quote from House v The King, which is referred to at the top of page 3 of our outline of submissions, where the High Court said:

It may not appear how the primary judge has reached the result embodied in his order –

well, in this case, his finding –

I am not satisfied that Mr Farmer behaved in a way likely to put public safety in danger –

even though he was satisfied, two paragraphs down on page 13 of the decision, that:

The action of inspecting the auxiliary charger as he crossed the intersection could undermine public confidence which would amount to a breach of subrule 9(3).

PN34.

Going back to House:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

PN35.

And the exercise of discretion should be reviewed on the ground that a substantial wrong has in fact occurred. So that would be, we would say, a substantial error; not a substantial error of fact as required by section 400, it’s a legal conclusion or an inference rather than a finding of fact. That is, is it likely to put public safety in danger? We say that inference is unreasonable, putting the House principle.

PN36.

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Rinaldi, I distracted you, my question, and took you into valid reason.

PN37.

MR RINALDI: Yes.

PN38.

THE SENIOR DEPUTY PRESIDENT: You hadn’t got to the third point of - - -

PN39.

MR RINALDI: Yes. So, to finish off the answer to your question, referring to the quote from Wililo that is in the Harbour City Ferries case, the finding, the next sentence of that quote:

The finding of a valid reason is a very important consideration in establishing the fairness of a termination.

So we accept that, of course, but what we’re saying is - there’s two things: one, even if the valid reason the employer was relying on, in terms of that level of specificity, use of a mobile phone, was not proven on the facts, the very same facts - and this really goes to, as well as answering your Honour’s question, answering the point that my learned friend makes at paragraph 36(c) of her submissions, that a decision based on an event found not to have occurred cannot amount to a valid reason.

PN40.

The facts that were found, the very same actions which were perceived by the two ladies who gave evidence for the respondent below, as Mr Farmer using his mobile phone, but were found by the Commissioner, accepting Mr Farmer’s evidence, to be him inspecting the fallen auxiliary charger, that very same action amounts to a valid reason because it amounts to at least a breach of rule 9(3) of the Yarra Trams rules and procedures, insofar as undermining public confidence. We say it also amounts to a breach of that rule 9(3) in relation to likely to put public safety in danger because if the tram driver is looking at something that they’ve picked up off the floor whilst they’re crossing an intersection, that is, in our submission, likely to put public safety in danger and to find to the contrary is an unreasonable finding.

PN41.

Thirdly, it is, as the Commissioner found in the next dot point on page 13 of his decision, a breach of subrule 23. The Commissioner says 23(3). It’s actually - and I’ve only recently picked this up myself - 23(1) more precisely. It’s at page 337 of the appeal book, and that is, that drivers must not allow themselves to be distracted while their tram is in motion. 23(3) is a more specific requirement about not operating handheld devices, including mobile phones, and obviously on the facts, that wasn’t found to have occurred by the Commissioner.

PN42.

THE SENIOR DEPUTY PRESIDENT: In relation to 9(3), the Commissioner’s finding at page 13, was that Mr Farmer’s action of inspecting the charger could undermine public confidence, but there was no evidence as to the relative severity ‑ - -

PN43.

MR RINALDI: Severity.

PN44.

THE SENIOR DEPUTY PRESIDENT: - - - of such a breach.

PN45.

MR RINALDI: He said it would amount to a breach, but he says, “I don’t know how severe that breach is.”

PN46.

THE SENIOR DEPUTY PRESIDENT: No, he said it could undermine public confidence. There’s no evidence as to the severity of a breach.

PN47.

MR RINALDI: Could undermine public confidence which would amount to a breach, so he accepted it’s a breach, but he says there’s no evidence about the relative severity of it.

PN48.

THE DEPUTY PRESIDENT: He accepted there was a breach, though, didn’t he?

PN49.

MR RINALDI: I beg your pardon?

PN50.

THE DEPUTY PRESIDENT: He said it could happen, and if it did, it would. I’m not sure he went so far as - - -

PN51.

MR RINALDI: I see. Well, he seems to be accepting, and rightly so, in my respectful submission, that - and perhaps it’s not absolutely clear, “I find that his action of inspecting the charger as he crossed the intersection could undermine public confidence”, and that’s what 9(3) is about, at least that part of 9(3). There’s two elements to 9(3), “likely to put public safety in danger or undermine public confidence”, so it’s a likelihood. He says it could undermine public confidence, sounds like a likelihood to me, we might get into question of degree about how likely is “could”, is it possible rather than probable? I don’t know.

PN52.

THE DEPUTY PRESIDENT: That’s directly relevant to the decision to terminate, though, isn’t it?

PN53.

MR RINALDI: It is and he says if it does undermine - well, not even if it does, if it could undermine public confidence, that would amount to a breach.

PN54.

THE DEPUTY PRESIDENT: Yes.

PN55.

MR RINALDI: And he seems to accept that it does constitute a breach, and we say correctly. What he then says, of course is, “Oh, it’s not so serious a breach, in effect, as to constitute a valid reason”, and we say that is where he’s gone wrong because a valid reason, as we all know from the time-honoured phrase of Northrop J from Selvachandran, is sound, well-founded or defensible. It’s not a reason that has to be a strong reason or a particularly compelling reason; it’s just got to be a not spurious reason, or in the words of his Honour, not capricious. We’ve got the Selvachandran case in tab 7 of the authorities folder, and the words of his Honour as to what would not be valid is “capricious, fanciful, spiteful or prejudiced.”

PN56.

So having a policy like this and seeking to enforce it, particularly against the backdrop of the Rail Safety legislative obligations which we have put into the folder at tabs 8 and following, and I don’t need to burden you at length, but they are serious obligations for obvious reasons. It’s the sole tram operator in Victoria, it’s a matter of public safety. There are obligations of both the operator and its employees under those extracts that we have handed up to you. Just by way of illustration, at tab 10, the duties of rail transport operators, which includes tramways by virtue of the definition of “railway” which we’ve inserted this morning, there is a potential fine of $3 million if a railway operator fails to ensure, so far as is reasonably practicable, the safety of the operator’s railway operations.

PN57.

So they’re very serious and for obvious reasons, serious obligations. They’re the same obligations, it’s probably convenient - and I’m sorry to jump around, but it’s the way it’s coming out - to refer to the decision Johns C handed down on 22 December. This has been inserted in your inside cover to the folders. The Commissioner, in that case there were issues of going through or of missing the points at an intersection and continuing on and the derailment of a tram and the tram going backwards in the wrong direction and the breaches of - there are trams rules and procedures that were constituted by that. The relevant part of the decision really which is something that Wilson C, although these matters were submitted to him, as you’ll see from the transcript, the matters of rail safety in the trial, and the Rail Safety (Local Operations) Act obligations, Wilson C doesn’t, I don’t believe, refer to them at all in his decision, and yet, they are an important matter.

PN58.

He has failed to take into account the important, underlying consideration of the obligations of the employer. What Johns C said was there was a valid reason, at 88, still find, make a determination as to whether the dismissal was otherwise harsh, and he looks at paragraphs 90 to 92 at the obligations of Yarra Trams under the Rail Safety (Local Operations) Act 2006 and the safety imperative, as it was called. At paragraph 91, the Commissioner has said that he’s given consideration to all of the relevant matters, but has found the safety imperative a weighty consideration. “Proper to give that weight”, he says, at the end of paragraph 91, when the matter involves a service to the public at large conducted on public roads. “The action of the applicant,” at paragraph 92, he says, “which was not an unconscious or not deliberate conduct, caused a serious risk to the health and safety of the applicant, other passengers on other trams, pedestrians and motorists.” This case is in a similar category and the Commissioner ought to have given weight to the safety imperative or just that of obligations.

PN59.

THE SENIOR DEPUTY PRESIDENT: The proposition you seem to be putting as to the rules and the public interest, is that - - -

PN60.

MR RINALDI: Is that it’s a sound - - -

PN61.

THE SENIOR DEPUTY PRESIDENT: - - - any breach of any of the rules, whatever their nature and the particular circumstances, provides a valid reason for termination? That’s the consequence of what you’re putting, isn’t it?

PN62.

MR RINALDI: Yes, as long as it’s sound, and if it is a breach that is found to have occurred, and they might be more or less serious, of course, but if it is a breach of the rules, that is a valid reason within the meaning of Selvachandran - and I don’t think anyone quibbles with the definition in Selvachandran - it is a sound, defensible or well-founded reason to act. You’ve then got to go onto the next stage of procedural fairness and you’ve got to look at also - - -

PN63.

THE SENIOR DEPUTY PRESIDENT: It’s a valid reason for termination.

PN64.

MR RINALDI: Yes.

PN65.

THE SENIOR DEPUTY PRESIDENT: That’s the critical other element of the phrase.

PN66.

MR RINALDI: Absolutely. That’s correct, in my submission, your Honour.

PN67.

THE SENIOR DEPUTY PRESIDENT: So a driver who doesn’t ensure a smooth ride, except when it’s necessary to use the emergency brake, in any circumstances, of any duration, for any reason, that would provide a valid reason for termination of the driver?

PN68.

MR RINALDI: In my submission, yes, because that is not a - it’s a reason based on the policies. The policies are not spiteful, capricious, fanciful or prejudiced. They’re there for reasons that are mandated by the legislation, safety obligations. The question becomes if, in that scenario that your Honour has just posited, was he given a proper opportunity to respond, and perhaps most importantly, how serious is the transgression in the scheme of things, is the - - -

PN69.

THE SENIOR DEPUTY PRESIDENT: Well, isn’t that what - - -

PN70.

MR RINALDI: If the person is terminated, employment is terminated, is that disproportionate? Not the validity of the reason. You see, what the Commissioner has done here is, he seems to have brought in a reasoning process that really belongs in the overall question of, is it harsh, unjust or unreasonable? And that goes to is it disproportionate, what’s the effect on the employee, what’s the past history of the employee? And it will be recalled that in this case, the very last document in the appeal book, is the agreed statement of facts. It’s exhibit R10, and at paragraph 3 of that, this is not a case where it’s the first time something like this has happened.

PN71.

The applicant had been counselled and warned on a number of previous occasions, including in relation to having earpieces in, which is prohibited by the Yarra Tram rules, and using mobile phones. So paragraph 3 of that agreed statement of facts:

The applicant acknowledges that he was advised and instructed in relation to driving with an earpiece on 30 August 2007 and 25 March 2008, and that he received a written warning on 1 September 2010 regarding the use of mobile phones, and a written direction and a reminder on 5 January 2012 regarding the use of mobile phones and other electronic devices.

So what the Commissioner could and should rightly have done was say, okay, there is a valid reason. I have found two breaches of the rules. The rules are there for proper reasons mandated by legislation. They are not capricious or spiteful or prejudiced or fanciful. They are a reason based on a breach of the rules, is sound, defensible or well-founded. There are two breaches of rules that he’s found; subrule 9(3) and subrule 23(1), it should be, not 23(3). The “not allowing yourself to be distracted whilst driving a tram” is critical and fundamental to the whole issue of safety for the public, travelling public. So that’s a sound, valid reason.

PN72.

So finally answering your Honour’s question about that first main thrust of the appeal, if you’re against us on that, we say that the Commissioner erred in requiring that validity to go beyond the basic level of soundness, of defensibleness - if that’s a word - well-foundedness. He said it’s got to rise to a certain level, it’s got to be serious. That’s incorrect. That’s a fundamental error. That should be corrected by the Full Bench. But if you think it’s not an error and you’re against me on that, then even if it is not an error, there is a valid reason that was found on the facts, and that is what Mr Farmer did do and even if you don’t agree with that, it could - and I think in this case, would - be one of those rare cases where the lack of the valid reason or the misplaced understanding of the valid reason, if you were to find that, by the respondent, would not outweigh the overall question of whether a termination of employment is not harsh, unjust or unreasonable.

PN73.

Where there is a backdrop of at least four examples in the past of similar problems over a number of years, and where there is a backdrop of the public transport safety imperative, provided there was procedural fairness, which is the second part, and I’ve mentioned that and I’ll come back to that in more detail, and then the third part, finally to get back to your Honour’s most recent question is, has the effect of those two errors led the Commissioner to making an error on the overall test of was the termination harsh, unjust or unreasonable.

PN74.

We accept that even if there’s a valid reason, as we say there is, and even if there is procedural fairness in the sense of notification of reason prior to termination and an opportunity to respond being afforded prior to termination, which we say definitely happened in this case, there are, as the High Court said in Byrne v Australian Airlines - there’s still the overall question - harsh, unjust or unreasonable test - of disproportionality, of the punishment being heavier than the crime and so forth. So in the example that your Honour, Watson SDP, gave before of a more minor transgression, if that were somebody with a clean slate, you may well say termination would be disproportionate, even though it’s a valid reason.

PN75.

This is not such a case. Termination is not disproportionate in this case. It is something where the - a situation where the employer has to weigh up. Nobody likes terminating employment, but has to weigh up its obligations to the travelling public and the risks of serious injury and reputational damage, of course, confidence of the public in the public transport system, against the rights of the employee, which obviously have to be considered and accorded fairness.

PN76.

So those are the three main points: the valid reason error; the opportunity to respond error; and the overall harsh, unjust or unreasonable error that occurs as a result. We say that once the Full Bench accepts there is the valid reason and there was a proper opportunity to respond, then there has to be, in this case, a conclusion that the termination was not harsh, unjust or unreasonable because it’s not a case of a minor transgression by somebody who has a clean slate.

PN77.

So on the question of permission to appeal, we accept that there has to be a public interest in the matter for permission to appeal to be granted. We say in this case, very clearly, there is such public interest because it is a case dealing with public safety, dealing with public transport. On that, I refer the Full Bench back to the Harbour City Ferries case from September last year. In the paragraph previous to that which I referred to before, that is, paragraph 15 on page 4 of 7, again, quoting from the Parmalat v Wililo 2011 Full Bench decision, this is a similar case. The Full Bench in Parmalat has quoted, in Harbour City, just after having quoted the High Court’s classic paragraph from House v The King, at paragraph 15 of Harbour City, referring to paragraph 18 of Parmalat, the Full Bench in Parmalat said:

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 NSW.

PN78.

No different in Victoria, we say:

Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

Then in the next paragraph, 19, the third line:

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.

That, probably, nobody would quibble with that disciplinary action. The question is, should it be termination:

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. We therefore grant permission to appeal.

Now, that was a Full Bench in the case of a private sector employer, Parmalat, and its safety obligations. Here, we have a public sector employer, the sole operator of Melbourne’s famous tramway system, and we say it is, to use the vernacular, a monty, that this case attracts the public interest. It’s one of the clearest cases of public interest that - - -

PN79.

THE SENIOR DEPUTY PRESIDENT: The Full Bench in Harbour City then goes on at paragraph 16 to say that - - -

PN80.

MR RINALDI: Each case has to be looked at on its own facts.

PN81.

THE SENIOR DEPUTY PRESIDENT: Yes. It’s not automatically.

PN82.

MR RINALDI: Indeed.

PN83.

THE SENIOR DEPUTY PRESIDENT: And before Wilson C, the issue goes to the particular conduct of Mr Farmer, does it not?

PN84.

MR RINALDI: It does, but that conduct relates to safety issues, and those safety issues are the issues that are put front and centre by the legislation, the Rail Safety (Local Operations) Act, and that are of concern to every member of the public, as Johns C noted in the Kingsley decision, whether they are on the tram, whether they are on the next tram, whether they are on the tram on the other track that this, in his case, the tram then went onto, whether they are a pedestrian who is in the vicinity when the driver is looking at something that’s fallen off the side tray whilst he’s crossing the intersection, whether they are the driver of a car in the vicinity. It affects just about every member of the public potentially because they are going to be a pedestrian, a driver, a commuter.

PN85.

THE SENIOR DEPUTY PRESIDENT: Well, that says that the public has an interest in the safety of public transport which they might utilise or be otherwise affected by.

PN86.

MR RINALDI: Yes.

PN87.

THE SENIOR DEPUTY PRESIDENT: But it doesn’t say that public interest automatically arises in an appeal involving health and safety considerations.

PN88.

MR RINALDI: The Harbour City Ferries case does not say that, it depends on each case.

PN89.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90.

MR RINALDI: But we say that in this case, it is a monty, that you should find there is public interest sufficient to warrant the grant of permission to appeal because the issues involves and what we say are the errors of the Commissioner at first instance go to questions relating to public safety. Obviously, arguable error is one of the traditional grounds.

PN91.

THE SENIOR DEPUTY PRESIDENT: Well, error is another consideration.

PN92.

MR RINALDI: Yes.

PN93.

THE SENIOR DEPUTY PRESIDENT: But you are addressing the public interest - - -

PN94.

MR RINALDI: Yes, I am.

PN95.

THE SENIOR DEPUTY PRESIDENT: - - - of the public in the safety of the transport system.

PN96.

MR RINALDI: That’s right, and because of the importance of that issue - - -

PN97.

THE SENIOR DEPUTY PRESIDENT: But what are the particular facts of this matter which would raise the public interest, absent error?

PN98.

MR RINALDI: Yes. The fact that the conduct of the employee that’s under consideration relates to safety issues in the operation of the tramway system.

PN99.

THE SENIOR DEPUTY PRESIDENT: Well, that sounds like automaticity of permission to me.

PN100.

MR RINALDI: Well, it’s never automatic. Of course, you have to consider it in each case, as the Full Bench says in Harbour City. But in this case, it would, in my respectful submission, beggar belief if the Full Bench weren’t to consider this a matter of such public interest as to warrant the permission to appeal. I know my learned friend says, “Oh, it’s a standard, run-of-the-mill matter with standard, run-of-the-mill reasoning processes applied and established principles,” and so forth, and whether or not there’s an error, there’s no particular public interest. There is public interest because it’s not about - let’s say that there was a tramways’ employee, somebody employed by KDR, trading as Yarra Trams, who was dismissed because they were insubordinate to their superiors, they swore at their boss or something like that. That wouldn’t have the type of public interest, or arguably wouldn’t have the type of public interest that this case has, because that is relating to a non-operational issue that doesn’t relate to safety. That is a run-of-the-mill thing that happens in any workplace, and the sorts of things that might give that public interest would be some important matter of principle that needs to be resolved, based on conflicting authorities in the past, as the Makin v SmithKline case refers to, something of that nature.

PN101.

Here, the public interest exists without going to those other grounds of Makin v SmithKline, such as the need for clarification of conflicting past decisions or something of that nature, because this comes within general public interest because of the safety issue.

PN102.

THE DEPUTY PRESIDENT: Yes. Let me tell you what’s troubling me. You say that the rules are grounded in legislation, their basis is grounded in legislation.

PN103.

MR RINALDI: Yes.

PN104.

THE DEPUTY PRESIDENT: And for your argument to succeed, you have to assume, don’t you, that the rule is correct?

PN105.

MR RINALDI: No. You have to assume that the rule is not spiteful, capricious ‑ ‑ ‑

PN106.

THE DEPUTY PRESIDENT: Well, it’s defensible. It has to be defensible and ‑ ‑ ‑

PN107.

MR RINALDI: Defensible, yes.

PN108.

THE DEPUTY PRESIDENT: It has to be defensible.

PN109.

MR RINALDI: Yes.

PN110.

THE DEPUTY PRESIDENT: So let’s take the proposition of distraction.

PN111.

MR RINALDI: Yes.

PN112.

THE DEPUTY PRESIDENT: Based upon what you’ve put to us, as I understand it, any distraction by whatever means - - -

PN113.

MR RINALDI: You’re going to say if a bird flies across the front of the tram?

PN114.

THE DEPUTY PRESIDENT: And the driver looks - - -

PN115.

MR RINALDI: Something like that. Well, clearly, it’s got to be a deliberate act, you know? That’s not - - -

PN116.

THE DEPUTY PRESIDENT: Well, now you’re making definitions - - -

PN117.

MR RINALDI: That’s not in the same category.

PN118.

THE DEPUTY PRESIDENT: - - - that aren’t in the rules. You see, you’re adding to the definition that the employer has put forward.

PN119.

MR RINALDI: Well, I mean, that was - - -

PN120.

THE DEPUTY PRESIDENT: I’m getting to the question of valid reason that you’re arguing.

PN121.

MR RINALDI: Yes. That’s the approach that Johns C applied. It was a deliberate action. It’s not an unconscious action.

PN122.

THE DEPUTY PRESIDENT: Well, the facts of that case were quite different.

PN123.

MR RINALDI: Yes. So in the unconscious action of a bird flies across and you look - or I had a friend very early on in my university days who rolled his first car because a spider came down from the windscreen. Those are - - -

PN124.

THE DEPUTY PRESIDENT: Or the driver waving to the inspector.

PN125.

MR RINALDI: Yes. Well, now, that would be an interesting one because that would be a deliberate as opposed to an unconscious action.

PN126.

THE SENIOR DEPUTY PRESIDENT: Now, you see, that’s the thing. You put the proposition to us that it instantly constitutes a valid reason and whether or not then after that it is otherwise harsh, unjust or unreasonable is another matter.

PN127.

MR RINALDI: Yes.

PN128.

THE SENIOR DEPUTY PRESIDENT: The trouble I’m having is instantly constituting a valid reason when you don’t look at the substance of the rule.

PN129.

MR RINALDI: Yes. You have to look at the action of the employee, I accept that. It has to be a conscious action, a deliberate action. And if the rule, in substance, was spiteful or capricious or any of those things that is not a valid reason - - -

PN130.

THE SENIOR DEPUTY PRESIDENT: It’s always the application of the rule, it’s not necessarily the rule.

PN131.

MR RINALDI: Well, you see, the application of the rule then goes to the fairness, not the validity of the reason.

PN132.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN133.

MR RINALDI: In my respectful submission, the right of the rule is not capricious or any of those other things, and it’s there for a reason, in this case, for important public, legislatively-mandated reasons, then it is a valid reason. Then you go to the next stage and that’s where we say the Commissioner went wrong here - and we’re going off the permission to appeal point a little bit - but he introduced these new levels of requirements for validity, it appears, in his decision by talking about not rising to the level of a valid reason and not being serious enough to be a valid reason. That is an erroneous approach.

PN134.

THE SENIOR DEPUTY PRESIDENT: Isn’t that a reference to the conduct, the seriousness of the conduct, in the same way that the Full Bench in Harbour City found at paragraph 20, that Lawrence DP below didn’t have regard to a higher level of seriousness involved in the conduct of the ferry driver in that case? That’s going to the seriousness of the conduct rather than the level of the valid reason.

PN135.

MR RINALDI: Yes, and the seriousness of the conduct is to be weighed in the balance of the overall test, the harsh, unjust or unreasonable test. But in terms of the valid reason, it’s simply whether a sound, defensible or well-founded reason existed.

PN136.

THE COMMISSIONER: But is that strictly so, given the language of subrule (3) of rule 9? The Commissioner has been asked to make a finding as to whether or not the driver has behaved in a way likely to undermine public confidence. The use of the word “likely” there has shades of grey in it. It’s degrees.

PN137.

MR RINALDI: Yes. Sure.

PN138.

THE COMMISSIONER: So in that sense, working out whether or not the facts make out conduct likely to undermine public confidence is an assessment more than just, is there a conduct - - -

PN139.

MR RINALDI: Yes.

PN140.

THE COMMISSIONER: - - - but what are the consequences of the conduct, and isn’t that what the Commissioner did at page 13 when he’s looked at the consequences of the conduct? I mean, interestingly, at page 13 in the paragraph under his discussion on rule 9, the first dot point:

I am not satisfied that Mr Palmer behaved in a way likely to put public safety in danger.

He is using the words of the rule and makes a finding there.

PN141.

MR RINALDI: Yes.

PN142.

THE COMMISSIONER: But when he goes to that third paragraph under that dot point, he doesn’t use the actual words of “likely to undermine public confidence”, he talks in terms - - -

PN143.

MR RINALDI: “Could”.

PN144.

THE COMMISSIONER: But he talks in terms of what are the concepts involved, but doesn’t actually use the language. So he doesn’t actually say, “I am satisfied” or “not satisfied that Mr Palmer’s conduct was likely to undermine public confidence.”

PN145.

MR RINALDI: He says “could undermine public confidence”, which - - -

PN146.

THE COMMISSIONER: But it’s not the same language.

PN147.

MR RINALDI: - - - is not the same words as “is likely”, but is to the same effect, in my submission.

PN148.

THE COMMISSIONER: Well, no. “Could” is it’s a possibility.

PN149.

MR RINALDI: Possibility, yes.

PN150.

THE COMMISSIONER: But “likely” is more than a possibility, it’s a probability.

PN151.

MR RINALDI: Yes. Well, and this is what I was discussing with Smith DP before, these shades of grey, and I accept that. But he does seem to acknowledge that that would amount to a breach of subrule 9(3), and we say that’s correct, but the point that we were on before was really that having found breaches of the rules, at least 23(1) - and I would say also 9(3) - and in my submission, also having failed to find, unreasonably, a breach of the first part of 9(3), that is, putting public safety in danger, likely to put public safety in danger, then the Commissioner engrafted this new requirement, this additional level of requirement for validity. This is referred to in paragraph 10 of our submissions, that the breach of 9(3) was not so significant as to amount to a valid reason. He says that at 55, and somewhere else he says it doesn’t rise to the level - this is paragraph 11 - of a valid reason.

PN152.

Now, there’s no levels of valid reason; it either is or it isn’t. It’s either sound or it’s not. That’s the error that - - -

PN153.

THE SENIOR DEPUTY PRESIDENT: Well, valid reason for dismissing.

PN154.

MR RINALDI: Indeed. For dismissal, and then you go to the next stage, procedural fairness, and then you do your overall - any other factors, harsh, unjust or unreasonable, fair go all round.

PN155.

THE COMMISSIONER: But relativity is a factor in considering likeliness.

PN156.

MR RINALDI: Likelihood, yes. I accept that, Commissioner, yes. So here, he’s made a finding that it could have undermined public confidence and that would amount to a breach. We say that’s a correct finding. You might say, - and obviously it’s not the Full Bench’s role to make its own decision on the facts, but if it was you hearing it, you might have said it’s not a breach of 9(3) because “could” is not enough, it’s got to be probable or not possible. The Commissioner has made his finding, but where he’s erred is to say, even though that’s a valid reason - we say it’s a valid reason - he’s added this extra requirement that would be a serious valid reason and there’s no requirement in the Act that it be a serious valid reason.

PN157.

That’s why it’s called simply a valid reason, as it’s got to be not something, if you like, to use a global term, spurious. It’s got to be a sound basis for acting. Then, you’ve got to say, all right, in deciding to act in the way we did, did we do it fairly? The employer - - -

PN158.

THE SENIOR DEPUTY PRESIDENT: To act by dismissing.

PN159.

MR RINALDI: That’s right. By dismissing.

PN160.

THE SENIOR DEPUTY PRESIDENT: You keep dropping off that element.

PN161.

MR RINALDI: No, well, it’s all - this is a dismissal case. So then you go to did he have - was he notified of the reason before termination? Clearly, yes. Paragraph 60 of the Commissioner’s decision acknowledges that, first sentence. Was he given an opportunity to respond? Yes, he was. The decision acknowledges that. He had meetings on, I think, 7 February, from memory, and one on 21 February, which is referred to at paragraph 62. The issue that the Commissioner takes with the procedural fairness is he wasn’t given a copy of an investigation report prior to that meeting on 21 February, and we say that is, again, imposing an additional requirement to what the legislation requires; that is, an opportunity to respond.

PN162.

What’s an opportunity to respond? It’s an opportunity to respond to the substance of the allegation. You don’t have to give them all your reports, if you’re an employer, at any time, let alone prior to the meeting or at any particular period prior to the meeting. You’ve got to put the substance of the allegation and allow an opportunity to respond before deciding on your action, and taking the action. So that point is dealt with at paragraphs 14 and following of the outline of submissions for the appellant, and to say, as the Commissioner said at the end of paragraph 63, that Mr Farmer and his representative were entitled to see prior to the investigation and the recommendation it made as soon as it was completed is not a requirement of the Fair Work Act, and is an error, in my submission.

PN163.

The requirement is to put the substance of the allegation. We say that at paragraph 15. And the precise nature of the employer’s concern is the phrase used in RMIT v Asher, which is footnote 7 on page 6, which refers in turn to the Gibson v Bosmac decision of Wilcox CJ, as his Honour then was, of the Industrial Relations Court. So we do say that engrafting this extra requirement on the opportunity to respond, of being provided with reports at a particular time, or at all, is an irrelevant consideration. It is an error within the House principles, it is not required by section 387 of the Act. We do accept, still, that all of this gets thrown into the mix of harsh, unjust or unreasonable, and there might be a range of outcomes of that consideration of that test, but on these points, in this case, both valid reason and opportunity to respond, the Commissioner has erred in a way that is reviewable pursuant to the House principles.

PN164.

THE DEPUTY PRESIDENT: Is it a significant error in the context of a finding of no valid reason?

PN165.

MR RINALDI: Yes, it is. The procedural fairness finding, yes, absolutely. Because it goes back to Watson SDP's question at the outset. If the no valid reason finding was correct, the no procedural fairness finding would pretty much kill the employer’s case. It would be hard to see how it could not be harsh, unjust or unreasonable if there were neither a valid reason, nor procedural fairness. However, if even despite being held not to be a valid reason, there was procedural fairness and there was a background of past warnings and past issues, and there is an underlying requirement of the safety imperative, then it might still be held not to be harsh, unjust or unreasonable, despite the lack of a valid reason.

PN166.

So the finding on procedural fairness, opportunity to respond, is very important and significant. We say now there are two errors, both serious errors, and they are errors of principle which ought to be fixed. On valid reason and on the opportunity to respond requiring provision of reports and so forth, they combined to then lead to the final error that the Commissioner determined that the termination was harsh, unjust or unreasonable, because as we say at paragraph 17 of the outline he didn’t find against the appellant on any of the other factors in section 387, apart from those two; valid reason and opportunity to respond. Obviously, very important factors, but he didn’t find against them apart from that and there were no other reasons under 387(g) that made him say, notwithstanding those other findings as to the other factors - sorry, 387(h) - that the termination was nonetheless harsh, unjust or unreasonable.

PN167.

He really based it on the validity of the reason which he found was not valid, and the opportunity to respond which he found wasn’t sufficient, but it’s not a question of sufficiency, it’s a question of whether there was an opportunity to respond to the substance of the allegation, just as the question of whether there was a sound, defensible or well-founded reason, not the strength of the reason. The strength of the reason, the extent of the procedural fairness, are certainly relevant to the overall test at the end of harsh, unjust or unreasonable, but in this case, there was a clear process. There were opportunities to respond. In meetings there was a union representative present, there was a valid reason based on policies that were in turn based on legislative requirements. This is not a case of a shoddy process based on a weak, valid reason even though it’s either valid or it’s not, as I’ve said, and a poor procedure by the employer.

PN168.

This is a strong case, so there’s really nothing. If you’re in agreement with the appellant’s submissions, if the Full Bench accepts that there’s been errors on valid reason and on the opportunity to respond, as I submit you should, then there’s really nothing in the nature of this case that would lead, could possibly justify, not overturning the decision of Wilson C that the termination was harsh, unjust or unreasonable. There’s no other mitigating factors. There’s not an employee with, as I say, a complete clean slate record, there’s nothing else to alter the decision that the employer made as being not unfair, which is really the outcome in the Kingsley case that Johns C decided.

PN169.

THE DEPUTY PRESIDENT: Do you see there’s a tension between what you’re asking us to decide in relation to valid reason and the fact that the employee has been previously warned for actually using a mobile phone and wasn’t dismissed?

PN170.

MR RINALDI: No, I don’t see that as a tension. Obviously, people are - there will be debate about how many chances people are entitled to have and so forth, but - - -

PN171.

THE DEPUTY PRESIDENT: No, but under your proposition, there’s no chances.

PN172.

MR RINALDI: No, my proposition is it’s a valid reason no chances. Whether termination is not harsh, unjust or unreasonable will depend on whether it’s the first time or - - -

PN173.

THE DEPUTY PRESIDENT: But the submission that you put to us is that - I see, but you’re adding the history - - -

PN174.

MR RINALDI: Yes, it’s relevant.

PN175.

THE DEPUTY PRESIDENT: - - - to bring about a finding of not interfering with the dismissal?

PN176.

MR RINALDI: Yes.

PN177.

THE DEPUTY PRESIDENT: I follow.

PN178.

MR RINALDI: If this was a once-off first offence, as they say, then that might be different, but it’s not.

PN179.

THE COMMISSIONER: Your proposition seems to be that if we follow the logic of your case, we grant permission to appeal and we grant the appeal and then either we decide the matter or another member decides the matter, possibly it goes back to the member - - -

PN180.

MR RINALDI: Well, my submission, there’s no need for that. You would then say, if you agree with our contentions, and that there was a valid reason and that there was an opportunity to respond within the meaning of the Act, you are in a position, as House says, to make the decision yourself that it’s not harsh, unjust or unreasonable. If you decide there’s some other reason, it might be different.

PN181.

THE COMMISSIONER: Then as part of that process, is part of your criticism of that part of the decision on page 13 which deals with subrule 9(3) is that the Commissioner has introduced issues of relativity in there which he shouldn’t have done because he should have been satisfied that there was valid reason and his error was he’s considered issues of merit or relativity. Your complaint in relation to that part of the decision concerning opportunity to respond is that the Commissioner has erred by going beyond the mere opportunity to respond, and in considering issues such as access to the reports. So even if we got to that stage of saying, “Well, we’re with you on all of that,” it does appear, then, that each of those two matters of which you complain can property be considered by the Full Bench under paragraph (h).

PN182.

MR RINALDI: Yes, I accept that.

PN183.

THE COMMISSIONER: In which case, exactly the same outcome might arise, but simply by rearranging the decision at first instance.

PN184.

MR RINALDI: Yes. That’s a potentiality, I accept that, and the Full Bench is in a position to do that if it wishes to, but what I would say, and as I have said, is once you accept that there indeed was a valid reason, and once you accept that there was an opportunity to respond, unless you’re of the view that there was such a poor opportunity to respond that it resulted in unfairness or it was such a weak valid reason, even though it was valid, that it results in an unfairness, then you have to say it’s not harsh, unjust or unreasonable. In my submission, on the facts of this case looking at it, which you have before you and you’re entitled by way of rehearing to decide, you should find that it is not harsh, unjust or unreasonable, having regard to the backdrop of the past history of the employee and having regard to the underlying requirements of the legislation. That’s my submission in relation to that.

PN185.

I accept that you could be against me on that, but in my submission, those factors make it clear that you ought to find that the termination was not harsh, unjust or unreasonable, but I accept that it’s open to you to make your own decision about that, even accepting that there’s been errors on the valid reason and on the opportunity to respond. Whether that - if the Full Bench made that decision that it was, notwithstanding those things, still a harsh, unjust or unreasonable termination, obviously there would be reasons given by the Full Bench for that. It’s hard for me to see what they would be, and whether or not those things would have been susceptible of judicial review is another matter. But, yes, I understand, Commissioner, and I accept what you say.

PN186.

That pretty much covers the submissions that we wish to make and that are outlined in our outline of submissions. I’ll just have a quick look at my learned friend’s outline to see if there’s anything additional that I haven’t already responded to. I think the permission to appeal, we’ve gone through. As I say, the errors that we say - even though my learned friend doesn’t see them as errors about valid reason that she refers to in paragraph 8 of her submissions and about breaches of the policy in paragraph 9, we say the errors are still that he’s engrafted this extra requirement of seriousness onto validity in relation to paragraph 8, and he’s misapplied or undervalued the importance of the policies. Not that he’s affirmed that breaches are important matters, he hasn’t given them appropriate weight, he hasn’t taken into account that relevant consideration sufficiently.

PN187.

Insufficient evidence is referred to by my learned friend at the top of page 3, fourth line in paragraph 9:

That the tribunal found in this instance, and based on the facts before it, there was insufficient evidence to lead to the view that the applicant’s actions would reasonably lead to such an undermining of public confidence as would require or allow Yarra Trams to dismiss him.

It’s not a matter of evidence, as we’ve said, it’s a matter of valuation of whether, first of all, the reason for acting, for the dismissal, was sound, that is, valid; and secondly, evaluating whether the termination, having regard to all the evidence as found, which, as I say, we have to accept the evidence as found, that that termination was not harsh, unjust or unreasonable. And we say that there’s been a mistaken application of principles to the facts by the Commissioner here. It’s not one that’s consistent with established principles.

PN188.

But even without error, and getting back to the presiding member’s question, even without error, there is public interest in this matter because of the fact that it involves a public transport operation, in relation to safety aspects of the employee’s performance, not something like insubordination or something irrelevant to safety issues. My learned friend says in relation to valid reason at paragraph 14 that the decision is based on five key findings, and says at 15 that the first three of these findings are findings of fact. We would respectfully disagree in relation to the third which appears at 14(c). We say that is a conclusion, not a fact finding, and I think I’ve already made that point. It’s a conclusion as to whether it significantly endangers public safety, the action of retrieving the items whilst crossing the intersection, and there’s not a finding of fact; 4 and 5 are conclusions, as she says, and those are conclusions that we say are erroneous for the reasons that I’ve given.

PN189.

They are not findings of a valid reason, sound, defensible or well-founded, as referred to at the top of page 5 and in the middle of paragraph 16. They are conclusions, they are not findings of fact. We don’t accept what’s said at the end of paragraph 21, that we conflate, at our submissions 9 to 11, the findings as to the applicant’s conduct and a proper characterisation of the conduct with a decision based on those findings. I don’t fully understand that submission. We say our submission is all about the decision and the inferences drawn and we don’t seek to impeach or impugn the findings of fact. They are as found by the primary member who heard the matter.

PN190.

I did want to respond to 24. My learned friend says - this is on the question of these statements by the Commissioner about not so significant as to amount to a valid reason to dismiss, not rising to the level of it forming a valid reason for the dismissal. What my learned friend says is, in the context it is used, that’s qualitative phrasing describing an assessment of whether the conduct was serious enough to warrant dismissal, not whether a decision made by Yarra Trams was valid. That’s clearly wrong. Both of those quotes, the Commissioner uses the very words “valid reason”. He was entitled to, as the Full Bench is, make a decision on weighing up the seriousness of warranting dismissal and the fairness of whether a dismissal decision was not harsh, unjust or unreasonable, but in terms of validity, he wasn’t entitled to impose extra requirements beyond soundness on the concept of validity.

PN191.

As I’ve already said, the correct test is the Selvachandran test. He did not apply the correct test, contrary to what my learned friend says at paragraph 25 of her submissions.

PN192.

THE SENIOR DEPUTY PRESIDENT: But his findings on 55 and 58 are that Yarra Trams did not have a valid reason for the dismissal.

PN193.

MR RINALDI: Yes.

PN194.

THE SENIOR DEPUTY PRESIDENT: Not that didn’t have a valid reason arising to a certain level for dismissal.

PN195.

MR RINALDI: But the basis of that decision, that finding, if you like, or that conclusion on valid reason is his reasoning process of having regard to the seriousness of the valid reason - or the reason, sorry.

PN196.

THE SENIOR DEPUTY PRESIDENT: Or seriousness of the conduct? Is that another way of looking at it?

PN197.

MR RINALDI: Well, he seems to say the seriousness of the reason - - -

PN198.

THE SENIOR DEPUTY PRESIDENT: The severity of the breach.

PN199.

MR RINALDI: Fifty-five; so his finding at 58 is based on “not so significant as to amount to a valid reason”, which he says at 55 in the fourth line, but - - -

PN200.

THE SENIOR DEPUTY PRESIDENT: Sorry, 55?

PN201.

MR RINALDI: Fourth line, “not so significant as to amount to a valid reason to dismiss”.

PN202.

THE SENIOR DEPUTY PRESIDENT: The breaches, not the reason. Not - - -

PN203.

MR RINALDI: “The breaches are not so significant as to amount to a valid reason”.

PN204.

THE SENIOR DEPUTY PRESIDENT: The breaches, that is, the conduct which he found to breach those rules.

PN205.

MR RINALDI: And our point is, if they are breaches, they are valid, they are not capricious, et cetera. The question then is, at the end of the process, is it still harsh, unjust or unreasonable, having regard to the whole test? My learned friend seems to try to defend the Commissioner by saying, “Well, that’s really what he’s saying,” but that’s not what he’s saying. He’s making a conclusion here on valid reason. He’s making a conclusion on 397(a) of the Act. The later point of considering the overall fairness is not yet reached.

PN206.

So in relation to 27 of the respondent’s written submissions, the last sentence about the conclusion being open, the conclusion on valid reason is not a discretionary decision. That’s a finding of fact. It’s not the House test for that 387(a) element. It either is valid or it isn’t, and that’s simply a finding of fact. What was the reason of the employer; is that reason sound, defensible or well‑founded? It’s not an open, a range of outcomes on that, so it’s not a discretionary decision, it’s not a House v The King analysis, in my submission. That comes to the overall test, once again. That’s the discretionary decision. That’s what House v The King applies to.

PN207.

Mistaking the facts on valid reason or drawing a wrong conclusion on valid reason is one ground within House v The King that might render the discretionary decision of harsh, unjust or unreasonable reviewable, and in this case we say it does. In terms of the opportunity to respond, paragraph 29, fifth line, said the appellant offered no reason for the refusal to give the investigation report. Well, in my submission, it doesn’t have to give a reason. It has to give the opportunity to respond to the substance of the allegation or the reason that dismissal is being considered, and it has to give that, not prior to the disciplinary meeting as is said at the end of 30, but has to do so prior to the termination, and it did so.

PN208.

In relation to the point at 34, third sentence, “Where there is no valid reason, a dismissal is quintessentially unfair”, I’ve taken you to the comments from Parmalat that are referred to in the Harbour City Ferries case. Clearly, valid reason is a very important factor, but it doesn’t mean automatically that a lack of a valid reason renders the termination unfair, and in this case, we say there clearly was a valid reason and overall, the termination was not unfair. I’ve already dealt with 36(c). Unless the Full Bench has any other questions, those are the submissions for the appellant.

PN209.

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rinaldi. Ms Keating?

PN210.

MS KEATING: Thank you, your Honour. I’ll approach the appeal in the same way as my learned friend has. He’s identified three key grounds. I’ll address them in turn before coming to the question of leave to appeal. The first ground advanced is the question of valid reason, and there are a number of subsets of issues within that ground, and I’ll go to them in turn. What I need to say first is that I think it is important in the context of a conversation that the Senior Deputy President had with my learned friend about what in fact was the finding of the Commissioner at first instance as to the conduct.

PN211.

I simply note there that those findings are - well, the evidence upon which the ultimate finding is drawn is found at paragraph 40 of the decision of first instance, and this evidence of the applicant was accepted, that the bag spilled its contents as the tram approached the intersection. Some of those items were retrieved, but that as the tram was passing through the intersection, the conduct engaged in was the inspection of the auxiliary charger. There was no finding made that the applicant was retrieving or collecting his items while the tram was passing through the intersection. The balance of the items were then retrieved once he had brought the tram to a halt after the intersection. I mention that only because there was some discussion earlier about the precise nature of the conduct that had been engaged in.

PN212.

Now, we don’t say, as a point of clarification, that there can’t be a valid reason based on the conduct found by the Commissioner in the course of the hearing at first instance, even where that differs from the grounds advanced by the employer at the time of the dismissal. We accept that there can be a valid reason based on the conduct as found by the tribunal, and indeed, that is the task before it. It is not a review of what the employer did. The tribunal is deciding the question for itself based on the evidence that appears in the original hearing.

PN213.

Now, the first thing that needs to be said about my learned friend’s submissions is this: as I understand the proposition that he put to Smith SDP in the exchange that occurred about five minutes ago was that a valid reason will flow automatically from a breach of a policy where that policy itself is sound. Now, that proposition transforms the regime in the Act - - -

PN214.

THE DEPUTY PRESIDENT: I don’t think he put that last word “sound”. That’s what we were discussing, but I suppose it follows from what he says.

PN215.

MS KEATING: Yes. Perhaps you’re right, Deputy President, and I shouldn’t put it in quite that form, but it seemed to be - the proposition to me seemed to be that a valid reason will flow where there has been a breach of a policy of that kind. Now, if that were to be so, that would transform the scheme of the Act from what it is now into something very different. The Bench will no doubt be aware that in earlier iterations of these provisions the question was binary; was there a valid reason? Was an inquiry to be undertaken prior to determining whether or not a dismissal was harsh, unjust or unreasonable? The Act in its current form shifted that, such that valid reason is but one of the things that we consider in that ultimate consideration.

PN216.

If my learned friend’s proposition was correct, we would invert the scheme of the Act further such that valid reason would automatically flow from a breach of a policy in the way that was put to you, and then the balance of the factors that appear in the provision and to which the Commission is required to have regard, would assume a far greater significance than they do. That proposition would, in effect, fetter the capacity of this tribunal to discharge its statutory function, part of which is to determine for itself whether or not a valid reason existed. If we accept that not all conduct - not all conduct - including not all conduct that is in breach of a policy that goes to safety, can amount to a valid reason, which is a proposition that this tribunal has accepted time and time and time again, and that that is sufficient to dispose of the proposition that my learned friend is putting.

PN217.

To make complete that point, the effect of what my learned friend suggests is that the inquiry into which this tribunal can make as to the question of valid reason is in fact almost what we would see in an administrative decision-making capacity. It’s almost a judicial review point rather than the statutory obligation to decide for itself whether it was valid or it wasn’t. Now, the second point that needs to be made is that the Commissioner at first instance in this case acknowledged the importance of the safety policies that were being dealt with, and that’s made plain in the terms of the decision and to the extent that he found that the applicant engaged in conduct that was in breach of those policies, he said that that was not an unimportant matter.

PN218.

So those two things were clearly acknowledged, but this comes back to the point I made a moment ago, which is that in determining whether or not there is a valid reason, we must accept that not all breaches of a safety policy are going to amount to a valid reason. This goes to the heart of what I apprehend my learned friend complains of in terms of the language used by the Commissioner about rising to the level of a valid reason. On any reading, what the Commissioner was doing was nothing more than discharging the task that was before him, which was, first, to identify what the legal test was, and that’s done in express terms; (2) to make findings of fact about what in fact conduct was engaged in; (3) to characterise that conduct, and the Commissioner does so having regard to the employer policies; and then to determine whether or not that conduct gives rise to a valid reason.

PN219.

Now, that necessarily involves a qualitative assessment of the conduct. A small breach, a minor breach of a policy may not lead to a valid reason. A more serious breach might. Somewhere along that spectrum, if we accept it is a spectrum, the relevant conduct has to be placed, it has to be allocated, and that involves a qualitative assessment; and that’s what the Commissioner did in this case. His ultimate conclusion was, having had regard to the conduct, having had regard to the policies, having had regard to the evidence before him, that it - his language was, did not rise to the level of a valid reason. He was saying that on that spectrum that was not conduct that gave rise to a valid reason. “Gave rise to a valid reason” is no different to “rose to the level of.”

PN220.

In all cases we have a spectrum and at some point conduct will amount to a valid reason, and in other cases, it won’t. That qualitative assessment is not binary, although the ultimate decision about whether there is a valid reason or there isn’t is binary. I simply note in passing that the Kingsley decision which has been handed up to you this morning involves conduct of a significantly different nature. To the extent that some parallels are attempted to be drawn between the conduct in that case and the conduct in this case, that is not a helpful inquiry. This case needs to be determined on its own facts, and those facts are markedly different.

PN221.

THE COMMISSIONER: Well, it’s helpful to the extent it might show a spectrum.

PN222.

MS KEATING: Indeed, your Honour, that is so, and in fact, the real point that comes out of Kingsley and other like cases, it gives us a ready point of comparison. In Kingsley, there is significant criticism of the applicant in that case. It talks about wilful conduct, it talks about misconduct, it talks about engaging in actions that the applicant was likely to know would endanger the public. We’re talking about something very, very different in this case, and there’s a couple of particular features of the evidence that I’ll take the Bench to in just a moment.

PN223.

But it’s also not the test to simply consider an employer’s policies and to determine whether or not the conduct was in breach of the policy. It’s well‑accepted in this tribunal that even where an employer has a policy that says in express terms, “Breach of this policy will lead to dismissal,” that that isn’t enough. A policy of that kind, an employer is entitled to have, but when the case comes before this tribunal, if it does, that policy does not and cannot fetter the inquiry of this tribunal which is, was there a valid reason for dismissal? Now, all that means in this case is that while we take the policies into account and we assess them and the Commissioner plainly did that in this case, not all breaches of a policy, to repeat the point I made earlier, are going to give rise to a valid reason for dismissal.

PN224.

Now, Smith DP, you put a proposition to my learned friend earlier as to the effect of an assumption that the rule itself is sound in the context of my learned friend’s proposition that breach of a rule axiomatically leads to a valid reason for dismissal. That is, and my response to that, is another iteration of the proposition I have just put in relation to policies. The relevant legislation in this case does not mandate the content of Yarra Trams’ policies and it does not mandate the outcome of a breach of those policies or conduct that is in contravention of the Act as it pertains to the employment relationship. The content of the policy is a matter for the employer.

PN225.

The reasonableness of the content of that policy is a matter to which this tribunal could have regard in determining whether a dismissal was fair. We make no submissions about that in this case. I put it as a broader proposition, and ultimately, then, it is a matter for the employer to determine the consequences subject to, of course, the right of an employee to come before this tribunal and ask this tribunal to determine the question of whether or not the dismissal was fair. Now, my learned friend repeated the word “sound” with some regularity. In effect, that supplants the test that’s set out in the Act. What is required is an inquiry into whether or not there was a valid reason. Selvachandran sets out what a valid reason is, but it is not just a reason that is sound; it’s a reason that is sound, defensible or well-founded.

PN226.

THE COMMISSIONER: Any of those synonyms is not the language used by the Act.

PN227.

MS KEATING: Indeed. Selvachandran is a useful guide - - -

PN228.

THE COMMISSIONER: Yes, and all that happened in Selvachandran is he went to the Macquarie Dictionary.

PN229.

MS KEATING: Indeed. And the point I make, Commissioner, is simply that we can’t pluck out the word “sound” from Selvachandran and use it outside its context. What was being done, as you rightly point out, was giving content or further exculpation to the meaning of the word “valid”. But if we’re going to go to Selvachandran and we’re going to look at what was said in that case, then we need to give the phrase its composite meaning, which is sound, defensible or well‑founded.

PN230.

THE COMMISSIONER: But they’re only three of the words that are used in the Macquarie Dictionary - - -

PN231.

MS KEATING: Indeed.

PN232.

THE COMMISSIONER: - - - and even in the version of the Macquarie Dictionary that was available then, the current Macquarie Dictionary uses the same words but there’s other words in there and you can use any of the words out of a dictionary, but you can’t supplant the words of the Act.

PN233.

MS KEATING: I completely agree with your Honour. That’s the point that I’m making in a slightly less eloquent way than you’ve just put to me. The question is always, was there a valid reason? While we can look at the dictionary definition to give us some guidance about the process of reasoning by which we might arrive at that decision, nonetheless, that is the test and that is a matter for the Commission to determine for itself, as I put earlier, based on the evidence before it. Despite what my friend says, valid reason is a qualitative decision. It is a question on which reasonable minds might differ and so it is not simply the case that a set of facts axiomatically leads to a conclusion that something is or isn’t valid.

PN234.

Different members of this tribunal might well differ about whether or not that is so, but that was a matter that was within the remit of the Commissioner when he made his decision that, on his view, based on the conduct as found, there was no valid reason. That was wholly open to him, particularly in circumstances where my learned friend does not challenge the findings of fact that were made. The findings of fact are what they are. What we then have is this balancing or weighing up exercise to determine whether or not a valid reason exists. In the view of the Commissioner, there was no valid reason.

PN235.

Now, that’s qualified by two propositions that my learned friend puts. The first goes to whether or not the correct legal test was applied, and the second goes to whether or not there was a failure to make a reasonable decision within the meaning of House v The King, and I’m going to deal with both of those things in fairly short order. The first, for the reason that I have already outlined, which is that what the Commissioner was doing when he used the phrases complained of was engaging in the task of making the qualitative assessment of the conduct in fact engaged in. It wasn’t any reference to the decision itself, it wasn’t any reference to the valid reason itself.

PN236.

He was plainly engaging in the task of (a) determining what conduct Mr Farmer had in fact engaged in, and then (b) characterising that conduct. The language in 55 plainly goes to the question of valid reason. The Commissioner isn’t extrapolating from the lack of a valid reason to the question of whether or not the dismissal was harsh, unjust or unfair in itself, he plainly says that the conduct in fact engaged in, in his view, that he considered Yarra Trams did not have a valid reason to dismiss. That says nothing about his conclusion as to whether or not the dismissal itself was harsh, unjust or unreasonable. He is squarely dealing with subsection (a) when he makes that finding.

PN237.

What I think also is important in this context is that the Commissioner made those findings against the backdrop of having correctly set out the legal test, including correctly noting that in a case of misconduct we have a Briginshaw standard that applies to the evidence that is before the tribunal. When we look at the decision as a whole, as we’re required to do, and not merely particular sentences or paragraphs in it, in its context and looked at as a whole, the Commissioner plainly identified the relevant statutory provisions, set out the relevant background in his findings, and then turned to the legislative factors, noting the Briginshaw test.

PN238.

When we look at all of those things, it is not a reasonable reading of the Commissioner’s use of the phrase “not so significant as to amount to a valid reason” and “rising to the level of”. It is not a fair reading of those phrases that he misunderstood or misapplied the legal test. It is plainly set out; 55, which is the relevant paragraph, follows immediately after his making of various findings of fact and it is plain that it goes to the qualitative assessment necessary to decide valid reason and valid reason alone. The background, we say, has no basis.

PN239.

Now, the third proposition that is put, as I understand it, is that it was patently unreasonable for the tribunal to find that the applicant did not behave in a way likely to put public safety in danger. This comes back to the evidentiary point that I alluded to in my earlier submissions. We need to look very, very carefully at the evidence that was before the Commission. Now, it’s not for this tribunal or for those of us making submissions to attempt to re-litigate the case or to introduce new evidence or submissions about it. There was evidence before the Commissioner as to this question; and that evidence I’ve set out in paragraph 26 of my written submissions.

PN240.

I don’t want to labour the point, but the Commissioner found that the evidence on behalf of Yarra Trams was that while it was unsafe for items to be on the floor of the tram, retrieval of such an object might - might - have to wait until the tram was stopped. That is the level of the evidence that was called on this question. There was no evidence that under no circumstances can you retrieve items that are on the floor of the tram. There was no evidence of that kind at all. So in making the finding that the applicant did not behave in a way, or that he was unable to be satisfied of that matter, that was entirely consistent with the evidence that was given by the Yarra Trams’ witnesses themselves and the evidence of the applicant as to what in fact he did when the bag spilled.

PN241.

That goes back to the point that I raised at the very beginning of my address, which is that the evidence was the bag spilled, some items were retrieved. As the tram crossed the intersection, it was the auxiliary charger that was being inspected and the balance of the items were retrieved at the next tram stop. What there was no evidence of - and the Commissioner expressly notes this - was whether or not the actions of picking up the items from the floor was any more or less dangerous than the actions of leaving them loose on the cabin floor as the tram proceeded through the intersection.

PN242.

In the absence of evidence of that kind, the Commissioner’s finding on that point was squarely open to him, particularly in the context of, as the Commissioner noted, the Briginshaw standard that’s required in a case of this kind. Now, arguments as to unreasonability within the meaning of House v The King suffer from the reality that it is a very high bar to meet the requirement of unreasonableness. The decision itself really has to bespeak error and it simply cannot be said, in the context of the evidence that was before the tribunal and which I’ve just taken the Bench to, that this decision bespeaks error. It was open to the Commissioner to make that finding and the fact that others might have made a different finding is not enough. The bar is high, and, in this case, is not met.

PN243.

Now, on the opportunity to respond ground, I want to start with a broader proposition as to what would be the effect of this ground if there was - if the tribunal was with me that there was no error in the finding of valid reason, where would this ground take us? Now, I accept that it is open - and Parmalat tells us this and I have Parmalat. I don’t think you need it, but I have it if you would like a copy. It’s referred to in the Toms’ decision which has been handed up to you. But I accept that the way the Act is now structured, it is possible for there to be a dismissal that is not harsh, unjust or unreasonable in circumstances where there is no valid reason. I accept it’s open. I cannot conceive of what that case might be, so whether or not it’s really open in practical terms, I’m not sure, but I accept it’s open.

PN244.

But for this ground to have any utility at all, it would have to be the case that this tribunal will be satisfied that even if there was no valid reason, this dismissal could otherwise be harsh, unjust or unreasonable. There is nothing in this case and nothing has been pointed to that suggests that this is one of the cases that could fall within what must be a very rare and unusual set of circumstances, such that an employer having no valid reason for dismissing somebody from their employment, could, nonetheless, be the beneficiary of a finding that it wasn’t harsh, unjust or unreasonable to do so, and nothing has been pointed to in that regard. We say - - -

PN245.

THE DEPUTY PRESIDENT: So is that submission, that if we find there was error in the Commissioner’s view about the provision before the court, doesn’t mean that leave should be granted?

PN246.

MS KEATING: Indeed. That’s precisely the point I’m coming to, Deputy President, that this is a question that goes to whether or not leave ought to be granted. We say leave ought not to be granted because there’s no utility in doing so in circumstances where this wouldn’t change the ultimate outcome of this case, which is not to say that in a different case it mightn’t, but not in this case. But in any event, we say that a fair reading of his Honour’s findings on this point don’t speak to error, and that can be seen if we look at the ultimate conclusion reached by the Commissioner on this ground. That finding is at 65 of the decision. Having weighed up a range of factors, at 65 the Commissioner said:

Notwithstanding this -

being a reference to some earlier evidence -

the impression gained by me from Mr Foudoulis’ evidence is that there was not a meaningful engagement with what Mr Farmer brought forward to the meeting either by way of explanation, or in the form of physical evidence he had with him.

Then in paragraph 66, we see the ultimate conclusion:

I am therefore not satisfied that Mr Farmer was accorded an opportunity to provide and have considered by Yarra Trams a defence of substance that would then be weighed and taken into account …

PN247.

So what we see is a series of - well, there is a discussion in the decision, but the ultimate conclusion that leads to the finding that no proper opportunity was afforded is what appears in 65, which is that at the meeting there was no meaningful engagement with what Mr Farmer brought forward, and that that is why there was no procedural fairness grant or no proper opportunity to respond to the allegations. Now, that rests, in part, on the reality that Mr Farmer wasn’t given access to the material from the investigation report until the meeting. It’s irrelevant whether or not he was given the whole report or part of the report or its findings. That’s not to the point.

PN248.

It might be if, in a different fact scenario, what he had been given was extracts or a summary or the executive summary, for example, and the debate was about whether or not he should have had access to the whole report. That’s not what we’re dealing with here. We’re dealing with the reality that, irrespective of what he should have been given, the Commissioner found that he ought to have been given the information prior to the meeting in which the decision taken to dismiss was made. It was the absence of earlier information, or, to put it in another way, it was the absence of him being given a proper opportunity after he was provided the information in the course of a meeting that led to the lack of a proper opportunity.

PN249.

Now, even if my learned friend is right that the Commissioner misstated the test, even if he’s right about that, it would not affect the ultimate conclusion drawn by the Commissioner. Now, we don’t - - -

PN250.

THE DEPUTY PRESIDENT: Well, his conclusion rested on the basis, didn’t it, that he was entitled to see the product of the investigation? That’s the basis upon which the conclusions rest, doesn’t it?

PN251.

MS KEATING: Yes, and there’s no difficulty with it resting on that basis. He was entitled to see the product of the investigation in such a manner, and this is what paragraph 65 goes to, as to allow him to have a meaningful engagement prior to the decision.

PN252.

THE DEPUTY PRESIDENT: Yes.

PN253.

MS KEATING: Prior to the decision.

PN254.

THE DEPUTY PRESIDENT: But isn’t that - it really goes to the point that there can’t be a meaningful engagement unless the full report is seen?

PN255.

MS KEATING: That might be so on this particular fact scenario. I’m not putting as a general proposition that in all cases a full investigation report must be provided. I’m not putting that as a proposition, but whether or not that is so, I’m agnostic about it, whether or not that is so, in this case, the key information - if we accept - I’ll withdraw that. If we accept that, at a minimum, the employee needs to be given sufficient information to allow meaningful engagement, in whatever form that takes - - -

PN256.

THE DEPUTY PRESIDENT: To answer the accusation.

PN257.

MS KEATING: Correct. If we accept that, in this case, that information was not given until the meeting in question. He was required to respond immediately and then there was a decision to dismiss, and that occurred in circumstances where the investigator’s recommendation was that dismissal take effect. So Yarra Trams knew, at the point this meeting happened, that its investigator had recommended dismissal. So the employee walks in, he’s given such information as he was given, is then required to respond on the spot, and from that engagement a decision to dismiss is taken. Now, whether or not he should have been given the whole report, part of it, bits of it, the executive summary, in this case makes no practical difference because that information he did not get until the meeting and it is the lack of meaningful engagement in that meeting that founds the finding in paragraph 66.

PN258.

So even if my learned friend is right, and I don’t say that he is, but even if he is right, it does not touch upon the elements that go to the ultimate finding in paragraph 66. So we say in the background (a) that ground needs to fail; (b) in any case, granting leave on the basis of that ground would have no utility for the reasons that I outlined earlier. Now, the third broad proposition put by my learned friend was that the two errors that he identified then give rise to error on the overall question of whether or not dismissal was harsh, unjust or unreasonable. He made the comment that no other reasons are given other than valid reason and lack of procedural fairness, and, I think, went on to note that those two factors are significant factors.

PN259.

In my submission, valid reason is not merely a significant factor. It is the most significant factor in the balancing exercise. The fact that other factors - there might have been no complaint or no adverse finding in relation to other factors is in itself relevant. This is a weighing exercise. There might be any number of dismissals where there is no valid reason. None of the other factors point in favour of the respondent or the applicant and a remedy is given. That is truly an exercise of discretion. That is truly a weighing and balancing exercise and there needs to be significant - significant - complaint or error apparent in that balancing or weighing exercise before we reach an error of the kind in House v The King.

PN260.

Now, if this tribunal is satisfied that the Commissioner’s finding as to valid reason was properly made and accepts either proposition I put in relation to the opportunity to respond ground, then no complaint can be taken about the weighing of harsh, unjust or unreasonable for the reason that (1) it was a question of discretion; (2) the Commissioner properly identified the legal test, the findings of fact and appropriately applied them; (3) in relation to the procedural fairness ground, it would have rendered that fact neutral, but we say would not ultimately have had any bearing on the overall outcome.

PN261.

Unless the Bench has questions, I don’t intend to address you any further in relation to the substantive grounds, save to say that I rest on the written submissions that we’ve made, and they should be read in conjunction with the oral submissions I’ve just made. I do want to say two short things about leave. The first is, to pick up again the point that you just raised with me, Smith DP, as to the utility of leave in the context of what we say is the proper consideration of the procedural fairness ground. For the reasons I’ve outlined - well, I withdraw that. Not all error gives rise to leave. Not all error gives rise to leave.

PN262.

Even if there was error in the identification of the proper law regarding the provision of the investigation report, we say that doesn’t amount to an error for which leave should be given. That is so because (1) the conclusion in 66 would have been made, in any event, for the reasons that I took you to, and (2) the overall conclusion wouldn’t be affected. Possibly as a subset, Commissioner, you made the comment earlier as to what this Bench might do in circumstances where it was satisfied that there was error in that part of the decision. My submission as to that is that this tribunal would make the same decision again, that factor would be rendered neutral, the overall outcome would remain and this matter would proceed to go back to the Commissioner for determination as to remedy.

PN263.

But the second and equally significant proposition that I want to put to you is that my learned friend effectively suggested that in all cases involving safety, where the public at large is potentially affected, that leave should be given. Now, we say that that is a misstatement of the principles that come from GlaxoSmithKline, and those principles are well-established. We need to see something more than a general interest in safety for that to be the case. What we need to see are matters of importance or general application, potentially a diversity of decisions, so that guidance from the Appellate Court is required, an original decision manifesting an injustice or a counterintuitive result. That proposition has effectively been put in relation to the reasonableness ground, and I’ve answered it, all legal principles appearing to have been applied in a disharmonious manner when compared with other recent decisions, and I’ve alluded to the fact that the decisions to which this tribunal has referred to are distinguishable on their grounds.

PN264.

There needs to be something more than the substance of the case affecting the public. That doesn’t give rise to public interest. There needs to be something more. In this case, we’re applying wholly orthodox principles. There is nothing in the Commissioner’s decision that does anything to undermine or call into question the right of an employer to have policies or procedures for its safe operation. Indeed, the Commissioner, in express terms, acknowledged the seriousness of breaches of the relevant policies. Absent my learned friend being able to identify any one of those factors, then there is no public interest and leave should be refused.

PN265.

Unless the tribunal has anything else, they are the submissions of the respondent. Thank you.

PN266.

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Keating. Mr Rinaldi?

PN267.

MR RINALDI: Thank you, your Honour. In relation to the permission to appeal point, we do say that it is within the first part of paragraph 27 of the Makin decision which is at tab 4 of our outline. That is, the public interest here is attracted because the matters raises issues of importance and general application, in this case relating to matters of safety to do with public transport. We also say that it comes within the concept that is mentioned later in that paragraph, of legal principles applying which appear disharmonious when compared with other recent decisions dealing with similar matters.

PN268.

An example of such a decision is the Kingsley decision which was handed to the Full Bench this morning. Whilst it’s not on all fours factually with this, it is, again, a driving of a tram issue. It is a safety issue about operation of a railway within the meaning of the Rail Safety Acts, the Rail Safety (Local Operations) Act. So the same principles ought to be applied and the safety imperative, as we called it, of Yarra Trams, ought to be given significant weight. It was not given apparently any weight by this Commissioner, in contrast to the approach of Johns C in the Kingsley case. It is plain, in my submission, that it ought to be given significant weight.

PN269.

So this is a case where permission to appeal, we say, should be granted. My learned friend made submissions about valid reason. In relation to valid reason, can I refer the Full Bench to the submissions of Yarra Trams before the Commissioner that appear in the appeal book at page 485, paragraph 47. It’s very important that Selvachandran is properly understood. It is, of course, simply a judge looking at the dictionary and saying what is meant by “valid”, but the point being valid is not some sort of qualitative assessment beyond it having to be sound, defensible or well-founded. I use the word “sound” as shorthand for that phrase. I didn’t mean to exclude or leave out the importance of the words “defensible or well-founded”. They’re all synonyms.

PN270.

What the Full Bench in the case of BC&D v Australian Postal Corporation that is quoted at paragraph 47 of Yarra Trams’ submissions below said – and it’s very important to recall and to apply - is that valid reason, as noted by Northrop J in Selvachandran, is to be assessed from the perspective of the employer. Valid reason is not a balancing act in itself. That’s the whole point we’ve been trying to make in this case, and my learned friend seems reluctant to accept that. Valid reason is one factor. She said that; we agree. It is one factor under 387. It is erroneous to submit, as she did, that it is the most important factor. It is one of the factors. It is an important factor, of course, as Parmalat says as quoted in Harbour City Ferries, but you can’t attribute - it’s not like the old version of the Act where you had to have a valid reason and then 170DE(1) and then you looked at 170DE(2), harsh, unjust or unreasonable.

PN271.

Here, it’s one of the factors going to the overall question of harsh, unjust or unreasonable. So it’s got to exist, so say the Full Bench in BC&D v Australian Postal Corporation, from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied. So you do, of course, have regard to what the facts are that the employer is relying on, considered in isolation from the broader context in which they occurred. It is the reason of the employer assessed from the perspective of the employer that must be a valid reason where valid has its ordinary meaning of sound, defensible or well-founded.

PN272.

Also, as Northrop J noted – and this is on page 373 in the very next paragraph of Selvachandran, which is at tab 7 of our folder of authorities:

The requirement for a valid reason should not impose a severe barrier to the right of an employer to dismiss an employee.

It’s one of the factors. He was talking, of course, under the old regime where there was the binary test. Now it’s one of the factors in 387. It is relatively straightforward and it should be found to exist, that is, a valid reason, where there is a breach of a policy, provided that policy is not capricious, arbitrary, whatever, spiteful or prejudiced.

PN273.

A breach of a policy, particularly going to safety matters, should be regarded as a valid reason. And my learned friend said that the Commission has time and time and time again, if I understood her submission correctly, held that a breach of a policy regarding safety does not amount or may not amount to a valid reason. I don’t know that that is the case. No authority was cited for that proposition. As to the opportunity to respond, the question remains, and always will be, was the employee given a meaningful opportunity to respond to the substance of the allegation before the termination? That is, were they told the precise nature of the employer’s concern, as stated in RMIT v Asher that’s referred to at the top of page 6 of our submissions.

PN274.

Here, he was. He wasn’t, contrary to the submission of my learned friend to you a short while ago, required to provide an immediate response to the report that was provided. I say the report doesn’t have to be provided, but it was, and he was given a copy of the report to review with his representatives and the evidence below, which appears at 449 of the appeal book, the evidence of Mr Foudoulis, at paragraph 17 on page 449 of the appeal book, is that at the opening of the meeting he outlined the purpose of the meeting and advised the applicant that he would provide a copy of the investigation report for him to review with his representatives. Once he was ready, he would then be asked to respond to the investigation findings.

Ms Bayram and I left the room and waited until we were called back in approximately half an hour later.

PN275.

At paragraph 253 of the transcript, Mr Altieri, Mr Farmer’s union representative, confirmed that he had the report for half an hour. That appears at page 51 of the appeal book. So the opportunity to respond was to the precise nature of the employer’s concern, it was to the substance of the allegation. It was with the document was left with him and his union representative for half an hour and it was the subject of a response given by him. There was an opportunity to respond. Again, opportunity to respond is it either exists or it doesn’t. Yes, there’s a qualitative assessment of was there actually an opportunity to respond, but as to a finding that there’s no opportunity to respond that was made at 66 by the Commissioner, that’s plainly wrong.

PN276.

What might be relevant is to weigh in the balance of whether the whole dismissal decision at the end was harsh, unjust or unreasonable as to the extent of the opportunity to respond, the strength of the valid reason. Those matters can come at the end, but the Commissioner erred here, as we’ve said before, in making them additional requirements of subsection 387A and 387C of the Act.

PN277.

THE SENIOR DEPUTY PRESIDENT: Well, his ultimate conclusion was that there wasn’t an opportunity to provide a defence of substance. And opportunity goes beyond, well, you could have said something. It might not have been a meaningful opportunity, he might not have been able to engage with the employer. What do you say as to the conclusions of the Commissioner at paragraph 65, that Wilson C believed it was not a meaningful engagement with what Farmer brought before to the meeting, either by way of explanation or in the form of physical evidence which he had with him?

PN278.

MR RINALDI: Yes. Well, it’s a little bit vague, with respect to the Commissioner. The impression gained by me is that there was not a meaningful engagement and so forth, with what Mr Farmer brought forward to the meeting, either by way of explanation or in the form of physical evidence he had with him. So to the extent that it’s an impression, it appears to be somewhat vague to then form the basis of 66:

I am therefore not satisfied that he was afforded an opportunity to provide and have considered by Yarra Trams a defence of substance.

But, again, it’s still engrafting additional requirements on section 387C of the Act. That’s erroneous. That’s an irrelevant consideration beyond was there an opportunity to respond.

PN279.

Now, the quality of that opportunity or the quality of the engagement by the employer in considering, and the quality of the employer’s consideration of the response and its decision-making, those are matters that can come into the mix again at the end when looking at is it harsh, unjust or unreasonable.

PN280.

THE SENIOR DEPUTY PRESIDENT: There’s plenty of authority, I think, in relation to 387B, that the opportunity does have to be a meaningful opportunity to respond - - -

PN281.

MR RINALDI: C, yes.

PN282.

THE SENIOR DEPUTY PRESIDENT: - - - in that context.

PN283.

THE DEPUTY PRESIDENT: It can’t be perfunctory, surely?

PN284.

MR RINALDI: Sure. That’s right. But it’s just like a valid - - -

PN285.

THE DEPUTY PRESIDENT: You had the opportunity to respond “yes” or “no”.

PN286.

MR RINALDI: Yes, just like a valid reason can’t be capricious or spiteful. So, exactly. So once there is a meeting held, a report given, a half an hour given with your union representative to think about it, a response heard, that’s not a perfunctory opportunity to respond. The decision may or may not be harsh, unjust or unreasonable at the end of the day, balancing all the factors, but to say there is no opportunity to respond is in error.

PN287.

THE SENIOR DEPUTY PRESIDENT: Well, it’s been held in case after case that it’s not an opportunity where the employer comes to the meeting with their mind made up and is going through the motions, as it were, and the comments of the Commissioner here at 65 and 66 of the reasons - - -

PN288.

MR RINALDI: Suggest that that’s what is - - -

PN289.

THE SENIOR DEPUTY PRESIDENT: - - - suggests that there was an element of predetermination.

PN290.

MR RINALDI: His impression. Yes. Again, it might be that in terms of overall procedural fairness, which is effectively imported into our law of dismissal - - -

PN291.

THE SENIOR DEPUTY PRESIDENT: It goes beyond that. It goes to any meaningful opportunity, doesn’t it?

PN292.

MR RINALDI: Exactly; that procedural fairness wasn’t, if there’s a prejudgment, if you like, but that’s then always a problem of getting into the employer’s mind. The employer has to have a view that it is thinking about terminating because that’s why it’s having a meeting, and then any opportunity in which potential termination is to be discussed, you’ve got to have the opportunity to have a representative or a support person present and you’ve got to have an opportunity to respond. That’s what happened here. It’s looked at from the perspective, as it is with valid reason, of the employer, the employer’s action, and then ultimately, was the employer’s action in dismissing harsh, unjust or unreasonable?

PN293.

Johns C said, “I’m not satisfied that it was,” in the Kingsley case. This Commissioner should also have been similarly not so satisfied, given the backdrop of the legislative requirements, the safety imperative, the past history of this particular employee and the nature of the conduct. That’s all we say. It boils down to that, and when your Honours and Commissioner consider this matter, if you agree with us that there are errors in relation to valid reason and opportunity to respond, then your Honours and Commissioner will consider, was the termination harsh, unjust or unreasonable?

PN294.

For the reasons I’ve indicated, having regard to all of those factors including the safety imperative, including the past history of the employee, you will, should, determine that it was not harsh, unjust or unreasonable. The matter should be dismissed, the application should be dismissed, so an order, you should grant permission to appeal, you should apply the appeal, you should dismiss the application and should not send it back for further consideration by the Commissioner. Those are the submissions of the appellant. Thank you.

PN295.

THE SENIOR DEPUTY PRESIDENT: Very well. We will reserve our decision in the appeal.

ADJOURNED INDEFINITELY [12.05 PM]

Fair Work Commission Transcripts

C2014/6736, Transcript of Proceedings [2015] FWCTrans 54 (12 February 2015)