C2017/4409, Transcript of Proceedings [2017] FWCTrans 393 (14 September 2017)

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PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning, and apologies for the late start. Ms Fitzgerald, you're appearing for the appellant, pursuant to the permission already granted.

PN2

MS S FITZGERALD: Yes.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Mr Parry, likewise for the respondent.

PN4

MR F PARRY: Yes, your Honour.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you. Yes, Ms Fitzgerald?

PN6

MS FITZGERALD: I understand leave has already been granted. Am I right in that?

PN7

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN8

MS FITZGERALD: Thank you, your Honour. Section 400 of the Act manifests an intention that the threshold in relation to Mr Pearse's application for leave to appeal is different in the words of the explanatory memorandum in respect of unfair dismissal appeals than for appeals generally and permission to appeal must clearly not be granted under section 400(1) unless the Commission considers that it is in the public interest to do so.

PN9

Further, it's acknowledged that appeals on a question of fact may only be made on the ground that a decision involved a significant error of fact and the applicant's appeal meets that different threshold in that there are strong public interest grounds that relate to the determination of a number of legal errors, in addition to which the decision also involves a number of significant errors of fact.

PN10

As the Commission will see from Mr Pearse's notice of appeal, the appeal gives rise to the following important questions of law that have broad application in many, if not all, unfair dismissal cases. The first of those is the question of how the Commission should treat hearsay evidence provided by anonymous sources and other hearsay evidence when making findings in relation to employee misconduct that forms the valid reason for dismissal relied on by an employer in unfair dismissal proceedings.

PN11

The second important question of law the appeal raises is whether the Commission ought explicitly consider the nature of the evidence that it's relying on when making findings of misconduct on the Briginshaw standard of proof.

PN12

The third important question of law raised by Mr Pearse's appeal is whether it's permissible for the Commission to make a finding on the Briginshaw standard solely on the basis of that anonymous hearsay evidence.

PN13

The fourth important question raised by the appeal is whether a Jones v Dunkel inference arises against an employer when it fails to call current employees, whose evidence would shed light on the misconduct.

PN14

Finally, the final important question of law raised by Mr Pearse's appeal is whether the rule in Browne v Dunn applies in unfair dismissal cases or whether the Commission can come to an adverse conclusion in relation to an applicant's behaviour or, rather, an employee's behaviour, without that behaviour ever having been put to the employee to explain it.

PN15

As will be clear from those five points, the grounds of appeal involve three of the most significant principles of evidence and natural justice known to trial lawyers, represented by that trifecta of cases: Jones v Dunkel, Briginshaw and Browne v Dunn. It is in the public interest that these important issues of natural justice and fairness be addressed by the Full Bench.

PN16

The applicant relies on four cases which I'll provide copies of now. The first that will address is the Full Bench's decision in DP World. I'll hand all of them up just to save your clerk.

PN17

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Ms Fitzgerald.

PN18

MS FITZGERALD: I don't propose to read large chunks, given the time I've been allocated. I might just take the Commission to the relevant paragraphs and identify the principles relied on.

PN19

The first two of those cases relate specifically to the judicial guidance that's been provided on the public interest test and the second two of those cases go to the strength of the merits of the underlying appeal, so the application of those rules of evidence in the Fair Work Commission.

PN20

I'd take the Commission to paragraph 16 of the DP World decision, which should be the first case provided and that case usefully quotes from the well-known paragraphs 26 and 27 of Glaxo Smith Klein, which set out the Full Bench's discussion.

PN21

DEPUTY PRESIDENT GOSTENCNIK: I don't think that decision is Robinson Crusoe in that regard.

PN22

MS FITZGERALD: Sorry.

PN23

DEPUTY PRESIDENT GOSTENCNIK: I don't think that decision is Robinson Crusoe in that regard.

PN24

MS FITZGERALD: No, no. What is useful about DP World is that it sets out, I suppose, the motherhood statement in relation to section 400 but it also then goes on to quote the applicable principles from House v The King and then, finally, comes to a conclusion about application of those and I have provided that simply because it does summarise all of the different cases I would - - -

PN25

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN26

MS FITZGERALD: The second case that's been provided is the Full Court's more recent decision in Gregory v Qantas and I would simply highlight paragraphs 50 and 57 of the Full Court's decision, in which partway through paragraph 50 Buchanan J, with whom the other members of agree, highlights what the task is in these matters, noting that in some cases a summary approach may be justified but normally only if it's apparent without further argument that the appeal could not succeed and, finally, noting at paragraph 51 that the nature and character of the issues raised by the appeal and their general significance for the work of the Fair Work Commission may themselves warrant permission to appeal. As you've noted, Deputy President, these are not new concepts, particularly not to the Commission.

PN27

Mr Pearse's notice of appeal sets out a number of grounds of appeal that not only do not warrant dismissal on a summary basis, they are strong on their face and on a fair reading of the decision. The errors of law that are set out in that notice note that Deputy President Anderson, in the applicant's submission, made a number of significant errors of law, which each have broad application in this jurisdiction. The Deputy President failed to, and not only failed to but failed to consider whether he ought to, apply the Briginshaw standard when making significant findings of fact about the effect of certain conduct and that is the effect of sending an email and that effect was central to the Deputy President's conclusion that the sending of that email was a valid reason for dismissal.

PN28

The failure to consider that standard was in the face of submissions from the applicant orally and in writing throughout the applicant's written submissions, that that is the standard that ought be considered. Not only does the Deputy President not apply that standard, there is no reference to the standard, nor is there a reference to the standard by another name. The question of whether the Briginshaw standard ought be applied wasn't considered.

PN29

The second error of law that is relied upon by Mr Pearse is the Deputy President's failure to discount the weight or reliance placed on the anonymous hearsay and other hearsay evidence that was admitted into evidence, despite Mr Pearse's objections. The Deputy President's failure to draw any adverse inference from the failure to call certain employees to give evidence. The fourth error of law raised in the notice of appeal is the Deputy President's failure to consider Mr Pearse's evidence that the reason he did not apologise to the relevant operators was because the company had required him to keep the matters raised by the investigation confidential.

PN30

The fifth error relied upon is the Deputy President's failure to consider the submission that if the peer test had been conducted, it is likely that Mr Pearse would have passed the peer test. Sixthly, the failure to consider Mr Pearse's evidence that since email had been introduced in the refinery approximately 17 years ago, there has never been any management feedback to him identifying inappropriate emails and providing coaching, despite him having been a union delegate using the work email system for union emails that entire time.

PN31

The final error of law raised in Mr Pearse's notice of appeal is the Deputy President's failure to consider the evidence that indicated that the investigator approached the investigation in a biased manner in respect of who he chose to interview, the differential manner in which he recorded management versus operator evidence and how he treated their evidence.

PN32

The Deputy President also made four significant findings of fact in the absence of any evidence as to those matters and those are the finding that the email had an adverse effect, on a small number of employees, the finding that Mr Pearse's conduct compromised the welfare of the targeted employees and their right to work in a safe environment.

PN33

Thirdly, the finding that Mr Pearse did not seek to recall or recall the email and did not seek to reissue it in a less emotive or derogatory form and, finally, that the email was not remediated when it could have been and that most egregiously the Deputy President made two findings against Mr Pearse without putting allegations about those matters to Mr Pearse during the hearing in breach of the rule in Browne v Dunn. These findings were mentioned for the first time in the decision and they're not allegations that were ever made by the employer during the course of the investigation and those two findings are that Mr Pearse did not seek to recall the email and did not seek to reissue it in a less emotive form and, secondly, that the email was not remediated when it could have been.

PN34

In terms of the errors of fact relied on, in my submission those errors are indeed significant, as is required. The errors attacked by the applicant are the findings of fact firstly that the email made some concerned about their relationship with their work colleagues, uneasy about cooperating, made one employee trigger an initial alert to Mr Lewis, the errors about the impact of the email.

PN35

The second error of fact is that Mr Pearse's conduct compromised the welfare of the targeted employees. The third that the intent of the peer test was met in the case of Mr Pearse's conduct and those are the three findings.

PN36

The facts that the applicant says are erroneous were central to the Deputy President's two conclusions that there was a valid reason for dismissal and that the dismissal was not harsh, unjust or unreasonable. The applicant has filed written submissions on leave to appeal and those very brief submissions detail some of the arguments, the merits of some of the arguments that the Commission was wrong to allow and to rely heavily upon anonymous hearsay evidence, was wrong to make significant findings against the applicant without putting those allegations to him during the hearing, made erroneous findings as to Mr Pearse's intent in sending the email and failed to apply the Briginshaw standard when making findings about the valid reason for Mr Pearse's dismissal and the applicant relies on, and given the time constraints, will not repeat those written submissions.

PN37

Given there's not time to fully argue the merits of the appeal at this stage, in my submission the Commission must take those grounds of appeal at their highest and determine the issue of public interest on that basis.

PN38

I rely on two further cases which support the applicant's contentions that Deputy President Anderson was gravely mistaken not to have regard to the rules of evidence and procedural fairness in making the Commission's decision. In that regard I refer the Commission to the decision of Haslam, which should be the third case that's been handed up and I will just take the Commission to paragraph, firstly, 13, where again in what is a well-known concept to the Commission, I'm sure, the Commission notes that it's not bound by the rules of evidence procedure.

PN39

That's not to say the Commission should not have regard to such rules in making its decisions and for good reason, noting that section 591 of the Act provides that evidence doesn't bind it, and then going on to quote the decision of PDS Rural v Corthorn, in which the New South Wales Industrial Commission notes that the rules of evidence are founded in experience, logic and common sense, not to be bound by those rules does not mean that the acceptance of evidence is thereby unrestrained. In that case a decision was made to consider the rules of evidence and when making a decision about whether to admit improperly obtained audio recordings into evidence and I would press the same approach on the Commission in the appeal, which is that the proper approach is to consider the provisions of the Evidence Act but within the context of the provisions of the Fair Work Act and considering the command in section 591, that those rules don't strictly apply.

PN40

The second case - - -

PN41

DEPUTY PRESIDENT GOSTENCNIK: Presumably, Ms Fitzgerald, there was some objection taken at some point to the admission of that evidence?

PN42

MS FITZGERALD: Yes. Yes, there was, Deputy President. There was objection taken on the basis that it would be procedurally unfair not to allow Mr Pearse to test that centrally important evidence and the Deputy President's ruling was that submissions could be made to allow that evidence in and - - -

PN43

DEPUTY PRESIDENT GOSTENCNIK: Submissions as to weight.

PN44

MS FITZGERALD: Submissions could be made in terms of weight. Submissions were made in relation to the weight that ought be given and those submissions were not considered. There is a single line in the Deputy President's decision which acknowledges the fact that the evidence relied on was an unidentified hearsay source essentially and that's at paragraph 40, where His Honour says:

PN45

Mr Lewis said that the employee expressed concern at the email's contents and its impact on him doing his job.

PN46

And this is the sentence:

PN47

I accept the evidence of Mr Lewis on this point.

PN48

Sorry, next sentence:

PN49

However, that employee was not identified by Mr Lewis in his evidence, nor was the person called to give evidence.

PN50

In my submission, that is the only place in which all of those objections are reflected and you'll see from the applicant's written submissions in support of appeal that the question of the impact of this email was a central plank in the finding that it was a valid reason for dismissal. The sending of the email wasn't in dispute. What was in dispute was what was Mr Pearse's intention in sending it and what actually resulted. What was the impact of sending it? So this evidence from a witness that the Commission found to be a poor - the witness who was in the stand was found to be a poor witness and the evidence he gave was of an anonymous source who is the only person who has given evidence about personal impact. You'll see the Deputy President's finding that Mr Lewis was a poor witness at 34, not in relation to credit but largely because he struggled to recall his witness statement and appeared detached from involvement in the proceedings.

PN51

The second decision that's been provided is Walker v Mittagong Sands. That case addresses the various appeal points relating to the failure to apply Briginshaw and other well-known rules of procedural fairness and evidence and I'd take the Commission to paragraph 13 of Walker, in which the Commission or fair work Australia, as it was at the time, sets out the Briginshaw standard, noting it remains the balance of probabilities but looks to the fact that - this is a quote that was mentioned during the hearing. You'll see it in the transcript.

PN52

In fact, I cross-examined the investigator on this standard because the investigator indicated he'd applied this standard and so mention was had of the fact that satisfaction on the balance of the standard of proof being met should not be produced by inexact proofs, indefinite testimony or indirect references or by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. It was my submission at the time that that was all the respondent had when it came to the effect of the email and none of those matters were considered by the Deputy President.

PN53

Then at paragraph 14 of Walker, Fair Work Australia goes on to quote from the Full Bench decision of Re R Budd in which the High Court's subsequent decision in Meat Holdings is considered. Paragraph 16 notes that:

PN54

In relation to fact finding, the Commissioner analysed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected.

PN55

MS FITZGERALD: Briginshaw was a case concerned with findings of fact and notes the way in which - notes that the Briginshaw standard should not be applied to the exercise of judgment after the findings of fact have been made, for example about harshness by the Briginshaw standard should be applied at the first stage, when making factual findings. In my submission that was the failure here.

PN56

I would also simply highlight in the Walker decision paragraphs 62 to 64, in which there's an exploration of the nature of the care that ought be taken when analysing allegations of misconduct on the Briginshaw standard and in my submission there's no indication that this anonymous evidence was examined with that type of care.

PN57

The conclusions that I would seek the Commission draw in relation to this case from the above case law is that accepting that the rules of evidence don't apply strictly, where they are engaged and their application will make a significant difference to the outcome of the case, as here, they ought be carefully considered and explicitly considered in the decision but if not explicitly, implicitly with care, and there must be good reason for departing from them and, in my submission, that was not done here. There is not a single indication in the decision that the Deputy President was aware of the content of these three centrally important rules or had considered whether they ought be applied and in my submission their application would have reversed the outcome in this case.

PN58

In summary, the applicant submits that Deputy President Anderson was mistaken in relation to the following significant facts: of the effect of the email and the intention of Mr Pearse in sending the email.

PN59

Further, the applicant submits that the Deputy President has not properly exercised his jurisdiction because he denied Mr Pearse procedural fairness and he did that in three ways. He relied on untested, anonymous evidence recounted by a poor witness for a central finding. Secondly, he relied on allegations that were never put to Mr Pearse and, worse, by effectively entering the fray and thinking of his own reasons why Mr Pearse ought to have been dismissed, in addition to those raised by the respondent but, which is the issue, thinking of them after the hearing when Mr Pearse did not have a chance to respond and, finally, by not considering the important guidance provided by those three cases that I've spoken about at some length: Briginshaw, Browne v Dunn or Jones v Dunkel.

PN60

These are issues of importance and general application, as I'm sure the Commission is aware. The errors also involve a significant injustice to Mr Pearse, a man who has worked for the respondent for decades, has contributed to his workplace as a union delegate for decades and is of an age which makes it unlikely he will find work in another workplace.

PN61

If one considers the features highlighted by the Full Court in Gregory v Qantas, this is far from a case that ought be dismissed summarily on the basis of three pages of written submissions detailing the merits, not least because many of the grounds are, without further argument, strong. More importantly, the nature and character of the issues raised by the appeal and the general significance to the Commission's work warrants permission to appeal being given and those are Mr Pearse's submissions.

PN62

DEPUTY PRESIDENT GOSTENCNIK: Ms Fitzgerald, there seems to be a suggestion in the decision below that the four sub-questions that the Deputy President considered in turning his mind to whether there was a valid reason were a construct of submission put to him by the parties. My question is this: was it necessary for the Deputy President to consider the effect of the email on other persons or the intention of your client in determining whether there was a valid reason for the termination?

PN63

MS FITZGERALD: If my memory serves me, those four questions fell, to a certain extent, out of the investigation report.

PN64

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN65

MS FITZGERALD: I do accept that the parties, to a certain extent, adopted that structure to a certain extent. In my submission it was necessary to the extent that the respondent's position in final submissions was that - my instructor corrects me. The questions were considered in relation to whether it was considered harsh.

PN66

DEPUTY PRESIDENT GOSTENCNIK: Can I, looking at the structure of the - - -

PN67

MS FITZGERALD: Of the decision.

PN68

DEPUTY PRESIDENT GOSTENCNIK: Just above paragraph 66 there is a heading, "Valid reason" and then, continuing there he says, for example, at just above 97: "Was it less serious having regard to the effect?"

PN69

Above 101:

PN70

Was it less serious by virtue of the apology? Was it less serious by it happened as a single act?

PN71

Et cetera. Then he concludes at 110:

PN72

Having regard to all of the above, I consider that Viva Energy had a valid reason.

PN73

DEPUTY PRESIDENT GOSTENCNIK: He then goes on to consider the other matters, which go to the question of whether dismissal was harsh, unjust or unreasonable.

PN74

MS FITZGERALD: Yes.

PN75

DEPUTY PRESIDENT GOSTENCNIK: He seems to confine that inquiry, putting aside the question of whether it was relevant under another head but under that head was it necessary for the Deputy President to consider those two matters to conclude there was a valid reason.

PN76

MS FITZGERALD: The parties had argued the case on the basis that on its face - well, the applicant's position was that on its face the email did not justify dismissal and the respondent's position was reading between the lines the email justified dismissal and that's a phrase that I used in closing which is you need to read between the lines because on its face it doesn't justify dismissal and so to an extent--

PN77

DEPUTY PRESIDENT GOSTENCNIK: Was there a termination letter?

PN78

MS FITZGERALD: Yes, your Honour, there was.

PN79

DEPUTY PRESIDENT GOSTENCNIK: Have a look. Just point me to that quickly in the appeal book? Perhaps your instructor. You might finish what you're saying and perhaps your instructors can find it.

PN80

MS FITZGERALD: 304, Deputy President, of the Tribunal book.

PN81

DEPUTY PRESIDENT GOSTENCNIK: I'm sorry?

PN82

SPEAKER: 303.

PN83

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN84

MS FITZGERALD: 303.

PN85

DEPUTY PRESIDENT GOSTENCNIK: Yes, I have that, thank you.

PN86

MS FITZGERALD: You'll see there's - - -

PN87

DEPUTY PRESIDENT GOSTENCNIK: I see the motive in allegation 2.

PN88

MS FITZGERALD: Yes, but so there's motive at point two and you'll see in paragraph 5 it had effect of targeting the employees, so - - -

PN89

DEPUTY PRESIDENT GOSTENCNIK: No, I understand. Thank you.

PN90

MS FITZGERALD: Thank you.

PN91

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Ms Fitzgerald.

PN92

MR PARRY: If the Commission pleases, for the assistance of the Commission, and to expedite proceedings, we've prepared an outline of submissions. I can hand that up to the Full Bench.

PN93

DEPUTY PRESIDENT GOSTENCNIK: I appreciate that. Yes.

PN94

MR PARRY: The first part of it deals with the permission to appeal principles, as do the next few paragraph and I'm not going to take this Full Bench full through them. They're well known and the tests are well set out and are well understood. The next part of it deals with, in paragraph 13, on an overview of the decision and the Deputy President followed a structure in the process. He framed the statutory task and then he made certain findings and we've set out those findings in paragraph 14. This was in respect of an email sent to all 170 operators and the Full Bench might note, in paragraph 14, his findings about, in (d):

PN95

The content of the email insulted the fire training attendees in derogatory terms.

PN96

(h):

PN97

The email was designed to flush out the operators who participated in the fire training.

PN98

(n):

PN99

The email was humiliating, intimidating and hostile.

PN100

(o):

PN101

The email was contrary to Viva Energy's policies.

PN102

There's no dispute that they were findings and they were findings open to him and they're not subject to challenge and, indeed, if this Full Bench has read the email, they are unremarkable findings.

PN103

Then he turned to consider whether the policy breaches were sufficiently serious to warrant dismissal and he came to address the four questions about the seriousness of the breach of policy. It's manifest from a fair reading of the decision that he regarded the breach of policy as serious, and he then conducted what he describes as a search for any extenuating or mitigating circumstances and that's in paragraph 18 of our outline.

PN104

The effect of Mr Pearse's email was one of those matters and it was one of those matters that had been dealt with by the investigator below and the investigator had made certain or come to certain conclusions about the effect of the email.

PN105

The written submissions we have from Mr Pearse make particular submissions about the findings in paragraph 40 and 100.

PN106

Paragraph 40 of the decision start with the proposition that Viva Energy Management was alerted to the email and they set out the circumstances how it came to occur and we submit there's no error and there's plenty of evidence to support these propositions.

PN107

Mr Lewis gave evidence at appeal book page 396. If the Commission has the appeal book and goes to page 395 and the Commission will see that here it's the bit footnoted. In paragraph 40 there's a reference to a footnote 18. The reference for that is paragraphs 3 to 6 of the statement of Mr Lewis.

PN108

What was objected to, to make it clear, was paragraphs 6 and paragraph 11. That was the objection and there was no objection to paragraph 3, 4 and 5 and that concerned an employee approaching Mr Lewis with a copy of the email and giving him a copy of the document and this employee is not simply some anonymous employee. This is the employee who was one of the three employees who were engaged in the fire shift training. The fire training.

PN109

The objection was to paragraph 6 and the evidence was about the employee coming in, what he said and how he appeared and his conversation with Mr Lewis.

PN110

Mr Lewis gave evidence about this and was cross-examined extensively and respectfully he wasn't shaken on his evidence of this occurring. Can we say that the suggestion that evidence of Mr Lewis concerning a conversation with an employee, what he said and his demeanour, is certainly not necessarily inconsistent with the laws of evidence as they're sometimes described.

PN111

We have attached to our submissions here paragraphs 66A and section 78 of the Evidence Act. Again I'm assuming this Full Bench is familiar with those sections which allow representations to be made about people's intentions, knowledge or state of mind or about observations they make about what the person sees, hears or perceives. This is not evidence that is somehow inconsistent with the laws of evidence.

PN112

The issue that seems to be part of the debate is the anonymity of the employee. The anonymity of the employee, it is not uncommon in this commission for evidence to be given about what unnamed or unidentified employees say. Sometimes it's admitted, sometimes it's not. It depends on the circumstances, including the reasons for the anonymity. Here, firstly, there had been argument about this and there had been a ruling on the admission of paragraph 6 and paragraph 11. The Commission will note that argument took place at appeal book page 135 and that was a ruling that was made.

PN113

The Commission will see from the argument that there was an objection to, as I said, paragraph 6 and to paragraph 11. There wasn't any objection to the statement of Mr Lewis when he gave evidence in paragraph 12 and the Commission will see paragraph 12 of appeal book page 397:

PN114

The employee who drew the Pearse email to my attention stated he wished to remain anonymous. He didn't explain why, but I gathered he was concerned that being associated with any sort of formal complaint would simply make matters worse for him.

PN115

MR PARRY: That is a rational and reasonable explanation why the employee wish to maintain his anonymity. He was one of the employees that was focussed in the email, who'd participated in the training and, further, might we say, evidence such as this about an employee so mentioned coming to Mr Lewis is inherently plausible. It's doesn't have the immediate reaction or feeling that it requires something more and, as I submit, Mr Lewis was cross-examined about it and we submit there was no suggestion the Deputy President was in error, or even apparent error or suggested error, in accepting the evidence of Mr Lewis. Indeed, we would submit rather strongly that he would have been in significant error by not giving weight to such evidence given, so there's, respectfully, plenty of evidence to support the findings in paragraph 40.

PN116

The next issue raised by the written submissions of the appellant are paragraph 100 of the decision and paragraph 100 deals with certain findings that the Deputy President made. To read paragraph 100 in context, one really has to start from paragraph 98, where you have the position claimed by Mr Pearse.

PN117

Mr Pearse's evidence was those he spoke to generally supported the email's contents. Well, that's a ringing endorsement of the position. However, he did receive communication from at least one operator, Mr Noble, seeking to assure Mr Pearse that he had not undertaken the training. Again, this is consistent with the findings of the Deputy President. Mr McKenzie, in paragraph 99, formed a different view about the email's effect and there is, in the report of Mr McKenzie there's much evidence about his attempts to get statements and so forth.

PN118

Paragraph 100 goes with a finding that the email did not have a significant negative affect across the operator workforce as a whole. That was indeed a finding open to the Deputy President. It's said that did not diminish the seriousness of the breach but the conclusion, that goes on, and it is said, amongst those that had undertaken the training at least, it had the desired effect. It made some concerned about their relationship with their work colleagues and uneasy about cooperating with the investigator.

PN119

That is, as we put in our written submissions, evidence on findings that are supported by those subparagraphs in 25(e)(i), (ii), (iii), (iv) and (v). There is extensive evidence to support these findings and the final part about one employee was sufficiently concerned to trigger the initial alert to Mr Lewis, again that is the subject of the analysis and findings that it occurred in paragraph 40.

PN120

Not only do we have this direct evidence but, should it be necessary, it can also be taken into account that the Deputy President had a raft of other evidence before him, generally through the evidence of Mr McKenzie and Mr Lewis, about the knowledge among operators of the identity of the employees, the importance to the employees of the position of the union, the attitude to the employees expressed in the email and operators making derogatory comments about employees attending the training. That's general evidence but, again, it's consistent with the thesis that underpins the Deputy President's findings and the investigation somehow can't be separated out from the sending of the email. It's an investigation into the sending of the email. The investigation itself was the logical and appropriate and foreseeable consequence of the distribution of the email.

PN121

This was not any random investigation, as these employees who were targeted would well have known. Their reasons for not providing a statement are totally consistent with the effect of the email. Indeed, should it be necessary, we would submit the investigation itself was one of the effects of the email, so there is plenty of evidence, both direct and from which the conclusions in paragraph 100 can be either found or inferred.

PN122

The next issue that the submissions of the appellant or prospective appellant deal with are the denial of procedural fairness, the apologies offered by the appellant and it's somehow submitted that there's been a Browne v Dunn issue. We, in paragraph 31, made it clear in our opening submissions below that Mr Pearse had failed to display any genuine remorse or contrition to until the 11th hour. That appears in our opening submissions before this case commenced.

PN123

There was a cross-examination of Mr Pearse and at appeal book 105 at PN693 - and, to be fair, paragraph 103 there's cross-examination at PN665 about whether he'd given an apology at a meeting on 3 February, clearly sometime after the email, and there had been evidence given at PN666.

PN124

Mr McKenzie will give evidence that you didn't make any apology in the course of that meeting.

PN125

Answer of Mr Pearse:

PN126

Well, in the absence of any evidence to the contrary, I'll have to agree that I must not have apologised at that meeting.

PN127

MR PARRY: Then after that meeting on 3 February, as appears on AB 105 PN688:

PN128

There was meeting on 17 February at which you provided those letters of apology. Did you prepare them?‑‑‑Yes.

PN129

So forth.

PN130

It's the case [PN691] isn't it, that prior to that you had not, in fact, made any offer to apologise in relation to your conduct?

PN131

Then there's a sort of non-responsive answer.

PN132

I don't know. I'll have to read the record of interview.

PN133

Then we see PN693 after this: "All right". Then Mr Pearse:

PN134

But I'll agree I must not have made an apology effort up to that point.

PN135

This argument about Browne v Dunn simply doesn't stack up with the evidence itself and, plainly enough, if Mr Pearse had done something to express his contrition then, given that it was a real issue in the matter and had been put in issue by Viva, then he would have done something about it, as we have submitted in writing. In our submission there's no error in either this finding or any appealable error arising from it.

PN136

The next issue is the intent of Mr Pearse, which we deal with in paragraph 35 and onwards. Again, the Deputy President was of the view, and it appears in the decision, that he was going to conduct an objective and read the document in context and when he was coming to intent, and that starts at paragraph 79 of the decision where he says:

PN137

To make findings on the question of intent, the Commission must consider the email objectively and in context. Intent objectively assessed is not a finding to be based solely on the stated intention of the author of a document or the subjective perceptions of its readers.

PN138

He then goes through what I would respectfully say is a proper and appropriate analysis of the email, the language used. He deals, over the page on paragraph 84, with the evidence of Mr Pearse that he didn't intend anyone to react to this email. He didn't find that evidence to be convincing and so, firstly, he found objectively it was intended to mean something and, secondly, when Mr Pearse gave evidence essentially he wasn't believed. The intention, again, and the analysis discloses no error.

PN139

Finally, Briginshaw. The Briginshaw standard, as it's sometimes called, has been dealt with by a number of Full Benches of this Commission and we have made reference to a couple there. The most recent authority that I could find was one from, I think, the beginning of this year but they all say much the same thing. That is, in these proceedings, being unfair dismissals, the standard of proof is the balance of probabilities. Sometimes Briginshaw is invoked if the findings that are to be made involve fraud or criminal behaviour, things that aren't to be expected of people in society, and that isn't the case here. There's no suggestion of fraud or criminal behaviour. Briginshaw is an argument that really takes the process nowhere. The authorities on this simply say that. The Deputy President carefully made findings after weighing up the evidence and so there's no error in the fact finding process.

PN140

Today my learned friend has taken you through the other appeal grounds. As it stands, they're just assertions made by Mr Pearse essentially from the Bar table without any submissions or detail and they can't found the public interest or the significant error of fact so, in our submission, we oppose leave being granted to Mr Pearse, if the Commission pleases.

PN141

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Mr Parry. Anything in reply, Ms Fitzgerald?

PN142

MS FITZGERALD: Just briefly. In relation to the Browne v Dunn point, I would seek to clarify that the applicant doesn't make the Browne v Dunn point about the findings about Mr Pearse's failure to apologise. That was very much an issue that was a big feature of the hearing and when he finally did apologise and the time at which he apologised was most certainly put to him in cross-examination.

PN143

The Browne v Dunn point arises in relation to two findings made by the Deputy President about the failure to retract or recall the email, which is not something I'm - I don't know what recalling an email is or if it's possible but it certainly wasn't a feature of the hearing. There was no evidence given about - - -

PN144

DEPUTY PRESIDENT GOSTENCNIK: I think, as my limited understanding of IT, is that a recall is something that sends a notice saying that I've recalled it but the original email doesn't come back.

PN145

MS FITZGERALD: Please don't read it, basically, yes.

PN146

DEPUTY PRESIDENT GOSTENCNIK: Essentially.

PN147

MS FITZGERALD: We've all been in a place where we would like the functionality of actually being able to recall an email to exist but whatever it is - - -

PN148

DEPUTY PRESIDENT GOSTENCNIK: I take the conservative approach in drafting, sleeping, then deciding whether or not to send it.

PN149

MS FITZGERALD: Yes. Yes, as opposed to sending at 3 in the morning, which is what happened here, but none of that was a feature. None of that was put to Mr Pearse. There was also a second finding, which was that he didn't then seek straight away afterwards - he did not seek to re-issue it less emotively or remediate it when it could have been.

PN150

Those are different from why didn't you apologise or say sorry? Those are practical questions about next morning why didn't you seek to recall it or do you know what that is? That was most certainly not the subject of any discussion at the hearing and the Deputy President didn't put to Mr Pearse that that would have been an option that he should have taken.

PN151

In relation to Briginshaw, the applicant doesn't suggest that there's any different standard in terms of the burden of proof. What's been said is very much about the nature of the proofs relied on to reach that satisfaction.

PN152

DEPUTY PRESIDENT GOSTENCNIK: Ms Fitzgerald, can I just put to you this proposition in relation to the two matters that you identify, the recall of the email and the not sending of another email. If the Deputy President had simply made the observation that, as a matter of fact, there was no recall email sent and as a matter of fact there was no alternative or correcting email or clarifying email sent, those two things would be right, wouldn't they?

PN153

MS FITZGERALD: There wasn't evidence that there was no recall and there wasn't evidence that there wasn't a follow up email. Mr Pearse - - -

PN154

DEPUTY PRESIDENT GOSTENCNIK: Presumably if there was, Mr Pearse would have called it, wouldn't he?

PN155

MS FITZGERALD: I think that is probably a safe assumption. I simply say that there was no evidence either way about that. It was simply not an issue but I accept it is a conclusion that weighed against Mr Pearse in the Deputy President's mind.

PN156

DEPUTY PRESIDENT GOSTENCNIK: Your point is that you should have been given an opportunity to address it?

PN157

MS FITZGERALD: Yes. Yes, so he could say from the minute I sent that email my computer was broken or - I've obviously invented that.

PN158

DEPUTY PRESIDENT GOSTENCNIK: But he didn't. He didn't.

PN159

MS FITZGERALD: What was that?

PN160

DEPUTY PRESIDENT CLANCY: Presumably your complaint is he wasn't asked why he didn't recall or why he didn't remediate but - - -

PN161

MS FITZGERALD: There might have been something to say about that.

PN162

DEPUTY PRESIDENT CLANCY: But there wasn't anything said about that.

PN163

MS FITZGERALD: But it's not a matter that Mr Pearse was aware was exercising the Deputy President's mind that there was an idea - - -

PN164

DEPUTY PRESIDENT GOSTENCNIK: Let's assume we were with you on that, what evidence are you proposing to lead about that matter.

PN165

MS FITZGERALD: In relation to that matter?

PN166

DEPUTY PRESIDENT GOSTENCNIK: Those two matters, yes.

PN167

MS FITZGERALD: The evidence that was given was that Mr Pearse was directed not to communicate with anyone about the findings of the investigation and his evidence about when he first became aware that there was something problematic about sending the email was that it wasn't until he was pulled up about it and his evidence was at that point he was directed not to communicate about the investigation. Yes, and the other evidence was that he was stood down and didn't have access to his email.

PN168

DEPUTY PRESIDENT CLANCY: Are you saying his evidence was that he didn't think the email was a problem?

PN169

MS FITZGERALD: His evidence was he was asked, and it may have been by the Deputy President, at what point he realised that the sending of the email - - -

PN170

DEPUTY PRESIDENT GOSTENCNIK: Yes, I think it's appeal book 106 at PN697 and he says:

PN171

No, no, I believe in my own mind that would be 13 December. That's when I was first alerted to the email being in question and that's when I thought to myself, 'Gee, you know, yes, you're right. I wish I hadn't sent that'.

PN172

MS FITZGERALD: Then Deputy President above that at the bottom of PN694:

PN173

So, you know, I feel that between 25 January when I had the interview and 15 February there was no contact. There was no opportunity for me to do any apology or anything because I was - you know, you're sitting at home, you're stood down, you're out of it and there was just another many weeks of me sitting at home twiddling my thumbs.

PN174

DEPUTY PRESIDENT CLANCY: If it's only occurred to him that there might be a problem with the email on the 13th, then it stands to reason, doesn't it, that between sending it and the 13th, he wouldn't have tried to recall it or remediate it.

PN175

MS FITZGERALD: At the earlier point but not after he's realised there's an issue with it, yes.

PN176

DEPUTY PRESIDENT CLANCY: Yes, I accept after it but that's once the investigation has started.

PN177

MS FITZGERALD: Look, it simply wasn't put to him that earlier than that he - - -

PN178

DEPUTY PRESIDENT CLANCY: But on his own evidence he wouldn't have done it anyway because until it's being investigated he doesn't think there's a problem with it.

PN179

MS FITZGERALD: That's true. The evidence was that until it was raised with him - - -

PN180

DEPUTY PRESIDENT CLANCY: Ms Fitzgerald, the finding in 112 is a contextual finding that is the Deputy - sorry, 102. The Deputy President says:

PN181

However, the nature of the conduct as well as the context of the matter, Mr Pearse did not express contrition or acknowledgement of the error in the days that followed the email being sent.

PN182

That sets the context. The days that followed. He did not, I read that as, in the days that follow, recall the email. He did not seek, in the days that followed, to reissue a less emotive one. That's correct, isn't it?

PN183

MS FITZGERALD: Yes, your Honour. Yes, Vice President, that is correct. His evidence was that it wasn't until after that point that he realised there was a problem with the email.

PN184

DEPUTY PRESIDENT GOSTENCNIK: Yes, and so that even if those matters had been put to Mr Pearse during the hearing, his answers would have been no. Did you, in the days after, seek to recall the email?

PN185

MS FITZGERALD: If one reads "in the days after", the immediate days after, yes, before he realised.

PN186

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN187

MS FITZGERALD: The only other point in reply was in relation to the application of the Briginshaw standard and it is, the Commission will see from the cases that the applicant has relied on, the second two that have been handed up that the Briginshaw standard, yes, is most certainly applied in cases where there are allegations of fraud but it's accepted - this is obviously a misconduct case - but it is accepted that the Briginshaw - it is a standard which is variable, depending on the decision that's being made, and that the Briginshaw standard most certainly applies when what is at stake is serious, and that's a theme that goes through all of the decisions, that it's about the nature of the allegation, how likely it is that a person would do it, as in the Briginshaw case between the two Briginshaws, but it is also most certainly about cases in which there is a serious impact and that is why, in this case, it is important that the decision about effect not be made on inexact proofs, which is what Mr Pearse says was done in his case.

PN188

COMMISSIONER SAUNDERS: Ms Fitzgerald, there are plenty of cases where the Briginshaw standard is applied in deciding whether or not conduct alleged against an employee of a serious nature actually took place but do you have any authorities to provide to us in relation to whether or not the Briginshaw standard applies to the intent or motive of somebody for doing something, which is your point?

PN189

MS FITZGERALD: I don't. The case that I referred does explore the point at which the Briginshaw or the nature of the exercise to which you apply the Briginshaw standard, which, Commissioner, you've very rightly lighted upon and that case makes it clear that the Briginshaw standard most certainly doesn't apply down the discretionary end where you're talking about harsh, unjust or unreasonable but that it does apply to findings of fact at the what happened stage. The submission is that whilst there was no dispute about the sending of the email, the reasons for the dismissal were very much bound up in what was the intent and effect, not just the fact that the email was sent with its precise contents.

PN190

DEPUTY PRESIDENT GOSTENCNIK: Presumably, Ms Fitzgerald, criminal conduct or fraud, an essential element of which is intention, and so at least limited in that respect Briginshaw cautions against findings of criminal conduct. Inherent in that is intention on the balance of probabilities, having regard to inexact proofs.

PN191

MS FITZGERALD: Yes, precisely. That's my instructor's beautiful fraud and theft have an intent element and it is because of the subtlety of a fraud case that it is often relatively clear what physical act a person has done and it's the why and it is precisely we presume that humans behave in a certain way and if you're going to say they did what they did for another reason, you'll need to really convince me that that's why they did it. Yes, and in this case, whilst I accept that Briginshaw won't apply at the later point, we do say that the why of this case, why the email is sent and what it did, so the harm that was caused by it, that inexact proofs should not have been accepted as one of the foundational planks for those findings.

PN192

I would also simply reiterate that many of the arguments that the respondents have put in their 12 pages of written submissions go to the merits of this case, which obviously are of central importance in the longer term but it is not the Commission's task today to decide those errors and we would rely on Gregory v Qantas and reiterate that the applicant had no intention of coming today to argue 15 grounds of appeal within the half hour allocated and the three pages of written submissions. What we say is it is clear there are some significant non-colourable, substantive grounds of appeal, which raise the three most important procedural fairness questions facing courts and, in our submission - - -

PN193

DEPUTY PRESIDENT GOSTENCNIK: Presumably Mr Parry's intention in highlighting those matters in his submissions is to make good an argument that the points that you raise are not arguable rather than the - - -

PN194

MS FITZGERALD: Yes, and I accept that that is the decision to be made and not whether we have won them.

PN195

DEPUTY PRESIDENT GOSTENCNIK: No.

PN196

MS FITZGERALD: But whether they're arguable.

PN197

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN198

MS FITZGERALD: Yes, and those were the submissions.

PN199

DEPUTY PRESIDENT GOSTENCNIK: Thank you. All right. We thank both counsel for their written and oral submissions and we'll reserve our decision. The next matter needs a video hook-up so we'll leave the Bench and adjourn for a few minutes. Thank you.

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Fair Work Commission Transcripts

C2017/4409, Transcript of Proceedings [2017] FWCTrans 393 (14 September 2017)