C2017/6113, Transcript of Proceedings [2017] FWCTrans 521 (14 December 2017)

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PN149

DEPUTY PRESIDENT GOOLEY: Thank you. I'll take the appearances.

PN150

MR M FOLLETT: If the Commission pleases, I appear pursuant to permission granted on 21 November of this year.

PN151

DEPUTY PRESIDENT GOOLEY: Thank you, Mr Follett.

PN152

MS C HOWELL: May it please the Commission, Howell, initial C, I appear for the respondent pursuant to the same grant.

PN153

DEPUTY PRESIDENT GOOLEY: Thank you, Ms Howell. Mr Follett.

PN154

MR FOLLETT: If the Commission pleases. There is a notice of appeal in the appeal book dated 8 November 2017. We have provided an outlined dated 7 November 2017. If the Commission has that outline handy, can I make a number of typographical amendments. Paragraph 7, the third line from the bottom, "Discretion in reaching it" - strike out "was".

PN155

DEPUTY PRESIDENT GOOLEY: Sorry, at paragraph 7?

PN156

MR FOLLETT: Paragraph 7, yes, third line from the bottom.

PN157

DEPUTY PRESIDENT GOOLEY: Yes.

PN158

MR FOLLETT: "Discretion in reaching it" - strike out "was".

PN159

DEPUTY PRESIDENT GOOLEY: Yes.

PN160

MR FOLLETT: Paragraph 14, the third line commences with the word "common", it should have "would be" after that. So the sentence would read: "But a suggestion that the misconduct was common would be." And, finally, on page 8, footnote 51, the reference to Boral Resources and Pike, the year is 1992 in the report, not 1989. Other than those matters, we rely on the outline and our intention today was to not reiterate anything in that outline, but rather attempt to show the Commission that the matters put against us in the respondent's outline of submissions don't provide any persuasive or cogent reason for why our attack on the decision of the Commissioner is a sound one.

PN161

There are a number of fundamental errors in the Commissioner's discretionary decision making process, most of them focus on the unfair aspect, but also on remedy, and we say those errors necessitate the quashing of the decision and a redetermination pursuant to section 607(3). At the outset, and in light of my learned friend's submissions, we want to commence by pointing out the very important distinction or appreciation of the Full Bench's function. Not in all cases, but in many respects, the respondent's outline of submissions approaches the appeal as an exercise in persuading this Full Bench that the Commissioner was capable or able to reach the ultimate conclusion that he did and persuade the Full Bench that if this Full Bench were to hear the case in the first instance it might have come to the same conclusion. Nowhere is that more evident by largely, in our respectful submission, the respondent's submissions not dealing with the decision so much, but focussing more heavily on matters that can be identified in the appeal book.

PN162

Paragraph 4 of the respondent's outline, for instance, opens with a whole lot of facts which can only be there really for the purpose of persuading the Full Bench that it shouldn't interfere because the outcome may have been correct. The appeal is about error. Error is found almost entirely in the reasons, not in the appeal book. Whether or not the ultimate conclusion is right or wrong is irrelevant. There is, however, a mild level of relevance to the question of permission and that is manifested most obviously in paragraph 2(f) of the respondent's outline whereby it could persuade the Full Bench that no other outcome was possibly going to be reached despite error. That may be a reason for not granting permission to appeal. Otherwise, we say those matters are not relevant.

PN163

Relatedly, in our submission, numerous attempts to persuade the Full Bench that, putting the errors aside, the Commissioner still could have or would have reached the same outcome such that those errors should be regarded as immaterial. Now, for the reasons given in our outline repeatedly, it's simply not maintainable. Most of the conclusions which were expressed by the Commissioner which we complain about have a demonstrable impact or effect on the outcome and that's found in the reasons themselves where the Commissioner essentially said so.

PN164

In that respect, we point out, I don't take the Commission to it, but at footnote 69 of our outline there is a reference to the Baxter case which talks about material error. And that was, of course, under a statutory provision in a criminal law context, but they say that if the error had a capacity to infect the outcome, then even if it can't be positively shown that it did infect the outcome, that's still a material error in the sense that it's more than trivial and more than immaterial. And similar sentiments are found in the Formway decision, Batrachenko. Footnote 70, paragraphs 14 and 15, I think the presiding member was on that judgment and the comments there are essentially that if you couldn't be sure that the outcome, the same outcome, would have been reached, then the errors are material and, in fact, significant.

PN165

At paragraph 5 and 6 of the respondent's outline, they're not quite clear, but it looks as if there is some attempt to say that a certain finding which is contended is not afflicted by error of harshness down below and that the Commission should ignore the rest of the reasons, don't read the decision as a whole in supporting that finding. What I would characterise it as a reverse fine-tooth comb argument and we note, of course, that at paragraph 23 of the respondent's submissions, they ask the Commission to read the decision or the paragraph in full. And, of course, that's what we ask the Commission to do.

PN166

In any event, in our submission, there is no substance to the particular contention there at paragraph 110, which is the reference in the decision which is that finding, is directly challenged by grounds 10 and 11. And much like some of the submissions I have already made, it's not clear exactly what the Commission was talking about in paragraph 110 and on that basis, this Commission could have no satisfaction that the errors which we complain afflicts the decision, didn't afflict that outcome either.

PN167

Turning to grounds 1, 4 and 18, we deal with these matters in paragraphs 9 to 14 of our outline, 8 to 13 of the respondent's outline. At paragraph 8 of the respondent's submission, there is what we would characterise, with respect, as an irrelevant observation. The gravamen of our complaint of error is not in the debate, arid or otherwise, about where various factors in the overall weighing process are allocated, either A or H, but rather the weighing exercise that is required and that that weighing exercise needs to be based on proper findings or characterisations of the seriousness or gravity of the misconduct measured against all relevant matters in mitigation.

PN168

The respondent, in our respectful submission, avoids grappling with the strength of these grounds. A sleight of hand is attempted at paragraph 9 where it's suggested that these are really complaints about weight. These are not complaints about weight. You won't see the word "weight" in our notice of appeal and I'm pretty sure you don't see it in our submissions either. It's about character and that is character of the conduct and that assessment of that being a relevant consideration.

PN169

At paragraph 9, the respondent submits that the Commissioner properly identified the misconduct and they give a reference. That reference is quite illuminating because it's a reference to paragraph 16 of the reasons which is merely a recitation of the allegations in the case rather than any particular findings that the Commissioner made. The same thing is repeated in paragraph 10 where it's contended that the Commissioner considered all of the conduct relied upon and they give two references. One, again, is paragraph 16 of the reasons which summarises the allegation, and paragraph 71 which is where the Commissioner rolls out the standard line, "I have considered all relevant matters", or something to that effect. The submission appears to be that if the Commissioner says these things, then the decision is immunised.

PN170

DEPUTY PRESIDENT GOOLEY: But he does at paragraphs 48 through to I think it's 73 address each one of the allegations.

PN171

MR FOLLETT: He does. He does. Our complaint is about the findings that he made with respect to that and then how he deployed those findings in the weighing exercise. And you will see, I think there's a reference in our submissions to the Commissioner should be taken as finding, consistent with the allegations we made, that he either did make those findings or should be taken as made those findings. If that were not accepted, we would amend our ground of appeal to say that was a plain error in not making findings as to the valid reason that was relied upon. So I don't think there's a dispute between us that the relevant conduct which we rely upon was essentially found by the Commissioner. Our complaint is then what was done with that and setting it out and keep in mind those references that you gave me, Deputy President, they were all about assessing valid reason. We don't have a complaint about valid reason. We have a complaint about harshness and the weighing exercise.

PN172

The attempts to support the Commissioner's approach in paragraph 9 in our submission fail at 9A. It's said that because of the mental state of Mr Gosek, none of this matters. That is no matter what the findings of misconduct were, it was inevitably going to be the same outcome and that's simply wrong and, in any event, those findings are challenged about the mental state. 9B, despite saying in the immediately preceding sentence that there was no relevant fact in dispute, there's some complaint about the absence of what's referred to as direct evidence.

PN173

Again, given that we don't complain about the findings that were made or we act on the assumption that relevant findings were made, the status of the evidence as being direct or indirect or hearsay or not hearsay is really not to the point. The evidence is the evidence. The Commissioner acted upon it and we say he made the findings that we asked him to. Again, the error is at the next stage. We make the observation here, and this has come up again later, that to the extent that the material from the employees could be called "hearsay", doesn't really advance matters because, in our respectful submission, it would be admissible hearsay in a court and it would be bound to be taken into account. Of course, it would be subject to submissions about weight, but it still needs to be taken into account and I'll come back to that when we talk about grounds 15 and 16, I believe.

PN174

Paragraph 10 of the respondent's outline, as noted, it's not a complaint about the valid reason and, again, we repeat the submission that I've already made. At paragraph 11, it's said that the material about abusive language in the workplace is relevant if you pull out one particular aspect of the valid reason complaint out of the totality of the misconduct and, in essence, the respondents ask this Full Bench to repeat the very error that we say the Commissioner made below. Again, our complaint is not about the use of the words, per se. It was about the manner and the context in which they were used and at that level, the use of the words in the workplace was not relevant.

PN175

The remainder of paragraph 11, there are various assertions about what the nature of that evidence was before the Commission and it's nothing like what's described in those assertions. And, again, this is all premised not based on what the Commissioner had regard to, but what can be found in the appeal book. If the Commission goes through, and I don't take the Commission to it now, appeal book 502 reference has no relationship. Appeal book 506 reference, no relationship. 550, no relationship. We made extensive submissions below about the nature of the conduct. I would direct the Commission's attention to appeal book 443 and 4, paragraph 9. These are the submissions of the then respondent. They made detailed submissions about the threats and how they should be viewed and characterised at appeal book 444 and 5. See also paragraph 16 of 448 and 9 where a reference, I believe, is made to context. And I've got a note to take the Commission to this particular passage. Paragraph 33, appeal book 456, I could simply read it, I believe.

PN176

Appeal book 456, paragraph 33, yes:

PN177

"The respondent anticipates that the applicant will contend that foul language is used commonly at the mine. However, the foul language is in contrast to the conduct in the present case not directed at individuals and was said in jest or part of banter, and the conduct of the applicant was not a joke or part of banter. Additionally, the foul language seems not to have been the subject of offence."

PN178

Et cetera. "And the respondent doesn't condone the misconduct." And also appeal book 471, again, in the submissions, yes, the final paragraph, paragraph 11 of the final reply submissions: "The respondent notes that there is further evidence relating to the offensiveness of foul language depending on the context." And there's some evidentiary references there.

PN179

So the case was not put that the use of foul language was relevant and all of the submissions that we made were directed to showing that our complaint was not about the foul language. Our complaint was about the threats and the use of that language and as deployed in those threats and in the context. Nothing in the respondent's submissions that I have taken you to grapples with or answers the fundamental errors that we refer to in grounds 1, 4 and 18, and those grounds should be upheld. Grounds 2 and 3, paragraphs 15 to 18 of our outline, 12 to 12 of the respondent's.

PN180

Ground 2, the error there is similar to ground 1 and it's part of a theme in the decision and again, in our respectful submission, the respondent here today offers no cogent answer. There is a reference to paragraph 106 of the decision in paragraph 12 of the respondent's submissions as some form of answer. And, in our respectful submission, that reference is irrelevant. This is the threats of physical altercation with respect to, I believe, two employees.

PN181

Our complaint is about the threats of reprisals and victimisation by Mr Gosek and the CFMEU. It's got nothing to do with the threats of a fight. The respondent there says that the Commissioner's approach reflected the way in which we presented our case. And that, with respect, is a nonsense. They refer to one paragraph of submissions of a document at appeal book 1158 out of five and if the Commission has regard to paragraphs 10 and 11 of the submissions at appeal book 444 through to 446, you will see how we were putting our case and the same at 448 to 450, paragraph 16. The suggestion that this was all about language is not mentioned at paragraph 26 of those same submissions. At appeal book 427 and 428 it's the same.

PN182

They say it was open to the Commissioner to consider Mr Gosek's capacity to give effect to the threats that he had made and they say that's relevant. We don't contest that, but we contest it being used as a justification in the circumstances. And again at paragraph 17 of our submissions, our complaints at paragraph 17 of our submissions here are not mentioned in the decision and not mentioned in the respondent's submissions and that's where heart of the complaint is. The Commissioner completely overlooked: "I will hunt you down. I will get you and make you pay for it. Hunt him down, crucify him, that he knew where the employee lived. Stand up at an aggregate meeting and single everyone out and tell everyone we're all dogs." Now, in respectful submission, to say that he couldn't, didn't have the legal capacity to kick someone out of a lodge, doesn't engage with that behaviour at all.

PN183

Ground 3 reinforces ground 2 and the error we say in relation to how the conduct was viewed. Paragraph 13 of the respondent's submissions doesn't deal with the complaint we make. They deal with a different point altogether. He took it into account in finding a valid reason, but the problem again is not with that finding, it's the overall assessment of gravity and seriousness and that weighing exercise has been skewed there by an irrelevant consideration.

PN184

If I can move to ground 5. We deal with this at paragraphs 19 and 22 of our submission and 14 and 15 of the respondent's. This is a point of principle and the contention is that the internal decision-making process or apparatus of an employer is irrelevant to the question of whether a dismissal was harsh, unjust or unreasonable. We say that submission inevitably follows as a matter of logic. The statutory question is whether the dismissal was harsh, unjust or unreasonable, not whether the employer's dismissal was harsh, unjust or unreasonable, and this submission arises as a consequence, a perhaps unaddressed consequence, of the change in the law brought by Australian Meat Holdings about the nature of the Commission's inquiry.

PN185

DEPUTY PRESIDENT GOOLEY: But it might be irrelevant to the question of whether there is a valid reason. Are you saying it's irrelevant even in regard to other factors that you can have regard to? For example, if an employer had a very clear procedure, disciplinary procedure, which may be included in an enterprise agreement that sets out how they're going to deal with issues of performance, et cetera, and then failed to comply with that, wouldn't that be a relevant consideration under H?

PN186

MR FOLLETT: We say no.

PN187

DEPUTY PRESIDENT GOOLEY: No?

PN188

MR FOLLETT: And that's a good example, Deputy President, because if you attempt to rationalise that logically, in our submission, it ultimately breaks down. It can be tested.

PN189

DEPUTY PRESIDENT GOOLEY: But how could it not be relevant when one of the things you have to have regard to is the size of the business and the procedures adopted by the employer?

PN190

MR FOLLETT: You will note we express the error as matters that don't affect what's described as the employee facing procedural fairness because there are obviously employee facing procedural fairness obligations and the one you specifically mentioned ties into employee facing procedural fairness. If there is no issue of employee facing procedural fairness, then what you're looking at is the back-room functioning, so to speak, of the employer. We say that that back-room functioning and who spoke to who and who viewed what which way and who had a different view the other way is simply not relevant and those inquiries into those things are necessarily going to be misleading the Commission away from what its undoubted statutory function is. We make reference to some of the submissions where this conflict - I know I've put this submission a couple of times myself before and not had too much success, but the Commission's function should really be about a review process of the employer's process and unless it found some error it should not step into the employer's shoes. I think Mermaid Cleaning, I think, is a decision that refers to that. Now, that's not the law. It is pretty clearly not the law.

PN191

DEPUTY PRESIDENT GOOLEY: I'll be looking forward to the next time I hear you make that submission, Mr Follett, and I'll remind you of this one.

PN192

MR FOLLETT: It will be a point of principle, Deputy President. So with that not being the law, and this is all about the Commission's independent statutory decision making, how is it relevant? Now, we use this example. We say you can't have it both ways. If an employer's witness comes in and say, "Look, at this beautiful process we had", you know, Rolls-Royce, and everything was considered and everything was had regard to it, it was all tested, and then a cavalcade of employer witnesses come in and said, "This is the most wonderful procedure I've ever seen, it was so fair, the decision was, you know, great", the Commission is not going to have regard to any of that. They're going to say: "We don't really care much what you think. We have to decide it for ourselves."

PN193

Conversely, if an employer's witnesses said, "I didn't think this was fair" or "I didn't give this guy a document that I said I was going to give to him" or some recommendation in some document wasn't put to the ultimate decision maker or the views of some other person in the business weren't put to the decision maker, how is that relevant either?

PN194

It inevitably leaves the Commission to consider the fairness of the employer's decision-making process, rather than the fairness of the dismissal. The Deputy President's example is a good one, but I'm reminded of all those cases where you say a proposition is not tested by a reference to unrealistic hypothetical outliers. I don't see this is necessarily in that category, but what we ask you to focus on is the particular things had regard to in this case and say: were they relevant? Because I guess we don't need to go so far as we do. We go that far as a point of principle, but whether a recommendation from some other person found its way into the hands of the decision maker is not particularly relevant.

PN195

In paragraph 15 of the respondent's outline, they, in our submission, significantly misrepresent the way these proceedings were conducted below. It's not as if the employer came in and put all this stuff to the Commission and say: "Look at all this. This is wonderful. You should uphold the dismissal." It was all responsive and the arguments that are referred to and the submissions that are referred to are responsive. You will see that this material was - a chronology was told and the chronology was: "Here's the report that I relied upon." And all of this information came out through a notice to produce obtained by the applicant and then put in via cross-examination through a couple of folders that are in the appeal book as applicant's exhibits.

PN196

This material about the internal workings is not referred to in our original submissions. It is not referred to in paragraphs 1 to 30 of the closing submissions which deal with all of the statutory criteria. It's then first referred to as anticipated submissions. So we anticipate the applicant is going to say this and in response we say this. At paragraph 37 and 39 in appeal book 458, this submissions both say that they thought this material and the points that were being put against the employer were irrelevant. And the document actually relied upon to say, well, this is how they put their case, was the final document which was a response to disproportionality and determination to dismiss which was a submission advanced by the applicant.

PN197

Ground 6, the respondent largely ignores the errors that we alleged and at paragraph 16 it said that the Commissioner was entitled to find what he did and set out a whole lot of references. Appeal ground 6A is not mentioned. Appeal ground 6B and 6C, the relevance is said to be that it departed from the usual procedure. Paragraph 17 of the respondent's submission. We say that really demonstrates part of ground 5. We question the relevance of whether an employer departed from its usual procedure stated in some policy or not even in a policy, but just happened to be the background evidence.

PN198

They say that the employee was denied the benefit of the favourable recommendation and we ask, somewhat rhetorically, so what? If the ultimate decision maker had regard to that and still made the same decision that was made, what does it matter that some other employee had a different view? What would the relevance be if it was in support of the decision? Again, peer review, irrelevant. The counterfactual that is put up by the respondent is irrelevant. They say: "Well, if they had have got a peer review, the decision might not have been made to dismiss." Well, we're not in the world where the decision to dismiss was not made. We're in the world where the decision to dismiss was made and we ask the question: what happens if the internal decision was reviewed by a hundred people? How does it change anything this Commission has got to ask itself? What happens if it was a hundred employer representatives saying it was a great decision? Does that make the Commission's decision any harder or easier? What happens if it was 49/51? 70/30? It's just not relevant.

PN199

Grounds 7 to 8, our submissions paragraphs 27 and 29, the respondent's submissions, 18 to 20. At paragraph 18 to 19 of the respondent's submissions, the respondent really just doesn't grapple with the cases which we have referred to, all of which say that an inference in the circumstances was not open. It's not an answer, in our submission, to say, well, we say the inference was open and leave it at that. The state of mind, point of view, we ask the question: what's the relevance of Mr Hatfield's evidence to Mr Plavecky when Mr Plavecky was the decision maker. Mr Plavecky came in and gave evidence and he explained his reasons.

PN200

What relevant evidence could Mr Hatfield have given about Mr Plavecky's state of mind? The only relevant evidence he could have given was: "I had a different view." And we would say, well, that evidence is not relevant. And the case at footnote 35 of our outline basically says that in circumstances where the person who made the relevant decision which is under challenge comes to court and gives evidence, it's not open to infer that the evidence given by some other person who had an involvement in that decision might have been less than favourable.

PN201

At footnote 71 of the respondent's submissions, they put the rather bold proposition that the fact that Mr Hatfield was no longer employed is irrelevant and the cases say that, to the contrary, it's relevant. It may not necessarily mean that the inference ought not be drawn. It may not amount to an adequate explanation. At paragraph 20, it said that this is some form of new argument. Well, the only need to make this argument arises because we say the Commissioner erred. We don't have to in Commission proceedings, we hope, tell the Commissioner all of the errors that he could make that he should avoid in order to leave the way open for us to make a submission of error on appeal.

PN202

They make the submission that the gravamen of the ultimate finding that this was a determined decision was dismiss was in substance put to Mr Plavecky and we say that that's really the rub because it was not. And we make a reference to Reid v Kerr. I might hand up a copy of that. It's a South Australian decision. There's just a passage I want to read to the Full Bench at page 374 under the heading: "Questions whether the cross-examiner is willing to wound yet afraid to strike."

PN203

"It has always seemed to me that some kind of imputation is to be made against a witness then at some stage ultimately the precise nature of the imputation should be made clear to the witness so that he can give an opportunity to meet it and if he can to explain it or destroy it. Several times during August, they were early sitting period, I observed questions that half hinted at some imputation, and yet that imputation was never followed up, was never carried through, and was never put fairly and squarely to a witness so as to enable him to cope with it. Then what was sought to be done was that such answers as the witness was able to give with respect to the hinted imputation were used as the basis for an address to the jury and inviting them to draw an inference that carried the imputation. I regard such a course of cross-examination and address as unfair. It represents the sort of conduct described by Alexander Pope in the well-known passage in which he condemned those who were willing to wound, and yet afraid to strike."

PN204

He goes on and says: "There's devices that can be used by cross-examiners in the structuring and ordering of their questions and we don't advocate that." Then:

PN205

"At some stage and in some fair manner he be given an opportunity of meeting the implication and answering it. The trial judge is placed in a difficult position. If he intervenes, he might destroy the cross-examination. Accordingly, it is essential that counsel should bear in mind the need to be entirely fair to the witness."

PN206

So this is not, you know, the most important of all the grounds of appeal. But, nevertheless, the suggestion that this submission was fairly put to the witness to say that it was open to the Commissioner to make the findings it did is not maintainable. But even if it was put, the inference drawn by the Commissioner was not open unless he did the next thing which was grapple with Mr Plavecky's evidence to the contrary, analyse it and give sufficient findings as to why he didn't believe him.

PN207

Ground 9, paragraph 30 to 34 of our submissions, 21 and 22 of the respondent's. We say there's a clear error here which would justify a redetermination of the appeal alone. At paragraph 21 of the respondent's submissions it said that the conduct was equivalent to. It's not equivalent to and it's not relevant. It's not relevant to say: "X occurred in example 1 and Y occurred in example 2 and, therefore, I'll have regard to those matter." The submission is made that the conduct was not differential, it was not found to be differential, but the treatment was found to be differential. The cases talk about different treatment and that's okay. The cases talk about different treatment in comparable cases. It is not only limited to a narrow view of whether the conduct was the same because, of course, the conduct is not the same and the treatment is not the same.

PN208

What the relevant criteria is, is dismissal versus non-dismissal because again the counterfactual is not relevant. If Mr Gosek was not dismissed, we wouldn't be here. You need to assess, Mr Gosek got dismissed, these other employees did not get dismissed. Is that relevant? I have to concern myself with the totality of those two scenarios and ask myself why were they not dismissed when he was and only if they're sufficiently comparable, as the cases warn, do you have that - do you have to take that into account. If you don't, if they're not sufficiently comparable and you do take it into account, that is appellable error as occurred in the Jetstar case.

PN209

At paragraph 22 of the respondent's submissions, they appear to say: "Well, here's a way in which if he had have drafted his decision, the Commissioner could have come to the conclusion that he did or could have rationalised the way forward without error", but the problem is that's not at all what he did here. Paragraph 112 of the decision is the problem here. To terminate Mr Gosek because of that behaviour. "Behaviour of this kind" is the quote, i.e. the words for the other two gentlemen before that "harassing individual employees". So to terminate Mr Gosek for harassing individual employees, a behaviour of this kind is not fair. That may be so if Mr Gosek harassed individual employees in the same way that the other two gentlemen did. He did not do that.

PN210

Grounds 10 and 11, paragraphs 35 to 38 of our submissions, 22 to 24 of the respondent's. Paragraph 23 of the respondent's outline, in our submission, is wrong. They have equated an actual finding with a state of confusion, and in any event it's wrong to say as the respondent does that the Commission was not required to deal with the question of misconduct. We refer to the Sharp case which says that where an employer contends that the conduct was sufficiently serious to warrant a finding of serious misconduct that the Commission needs to deal with that submission in assessing weight.

PN211

That's at paragraph 35. We don't say obviously that in every single case you have to go through that independent exercise. But as we read paragraph 35 of the Sharp decision it says if it's contended, and of course it was contended in this case. We say it was clearly serious and wilful misconduct and we're not quite sure how the Commissioner reached any alternative conclusion. The reasons given at paragraph 103 of the decision are wholly irrelevant to that question.

PN212

DEPUTY PRESIDENT ANDERSON: Did you say wholly relevant, Mr Follett?

PN213

MR FOLLETT: Wholly irrelevant, yes.

PN214

DEPUTY PRESIDENT ANDERSON: Irrelevant.

PN215

MR FOLLETT: These are the ones about whether it was put, whether it was called serious misconduct at the time and whether we paid notice or not. It's not relevant to the way in which the argument was put at the Commission stage, very much like after acquired knowledge of serious misconduct. You turn up to the Commission, you make your arguments, you put forward your valid reasons, you put forward your evidence and you ask for findings to be made. We say the conduct was clearly wilful and the evidence that was led made that conclusion unavoidable.

PN216

Which then leads us into ground 11 which is another point of principle. That is that it was not open to the Commissioner to excuse or mitigate the seriousness of that misconduct in the absence of sufficient evidence of which there was in essence none. The respondent's erect a straw man at paragraph 24 of their submissions. They say "The appellant says it wasn't open". We don't say that. You won't find it in our material. We say he should not have and that was exactly how the submission was put below. In the absence of medical evidence, in the absence of evidence proving a connection between one and the other you can't find that there was a causative relationship.

PN217

Appeal book 469, paragraph 7, that's the reference that the respondent gives and that's the one that we rely upon, and there's a reference at that particular part of the submissions with Grant, a Full Court decision, and the submission in Grant was to the same effect. In the absence of evidence proving connection, you can't make a finding. Now at paragraph 24 it's then said that there was ample evidence to support the finding and funnily enough we rely on these references as much as the respondent does, to prove our point because none of them provide any evidence in support of the contention.

PN218

484, the employee's own medical diagnosis. The Commissioner said there was a difference between a coalminer and a coalman. There's a difference between a mine worker and a medical practitioner, and Mr Gosek was the former and not the latter. Appeal book 525, nothing to do with the events of 4 October. Appeal book 540 to 541, more self-diagnosis. Appeal book 79, no connection between the state of affairs and the conduct. 83, no connection between the state of affairs and the conduct. 97, more self-diagnosis. Appeal book 1024 to 1025, more self‑diagnosis and appeal book 270 more self-diagnosis.

PN219

If the Full Bench were to endorse the proposition that it is enough for an employee in a misconduct case after the event to come into the Commission and give self-serving evidence about they were depressed, they were having a tough time at home, they weren't sleeping, they were on medication, employees were bullying them, they'd been drinking the night before as an excuse for the misconduct, these provisions, unfair dismissal provisions, would become unworkable and it would destroy the fair go all round and the balance that is attempted to be struck by the provisions.

PN220

DEPUTY PRESIDENT ANDERSON: Mr Follett, how does that alter any evidence that an employee might give which seeks to explain their conduct? Surely an employee giving evidence to the Commission that explains the reasons why they did A or B is a relevant factor in determining (a) whether there was a valid reason and (b) whether or not in the surrounding circumstances it was a harsh, unjust or unreasonable dismissal?

PN221

MR FOLLETT: It very much depends on what you mean by explain the conduct.

PN222

DEPUTY PRESIDENT ANDERSON: You just said - - -

PN223

MR FOLLETT: Now if you mean contextualise - - -

PN224

DEPUTY PRESIDENT ANDERSON: You just said it was self‑serving evidence to ex post facto.

PN225

MR FOLLETT: Yes.

PN226

DEPUTY PRESIDENT ANDERSON: Give evidence about various matters, medication, depression or the like.

PN227

MR FOLLETT: Yes.

PN228

DEPUTY PRESIDENT ANDERSON: And my question to you is how is that any different from an employee giving evidence that seeks to explain their conduct?

PN229

MR FOLLETT: It's always going to come back to the question of how relevant it is and what it actually tells you. Now to contextualise is one thing. To put it forward in this particular case and say "I engaged in this conduct but I want to attempt to persuade you that you shouldn't regard it as serious or egregious" as it was on its face "because of these other circumstances". We don't have a difficulty with that.

PN230

We don't have a difficulty with him leading evidence to say "I was taking this medication and I'd been drinking at the pub". What we have a difficulty with is how far does that evidence take you? It doesn't prove connection between those circumstances and the behaviour and that's the critical point. Otherwise it's not relevant. It's like an employee coming in and saying "Look, I was suffering from diabetes at the time".

PN231

DEPUTY PRESIDENT ANDERSON: So your point is the evidence in this case wasn't sufficiently probative?

PN232

MR FOLLETT: It wasn't sufficiently probative.

PN233

DEPUTY PRESIDENT ANDERSON: Not that it was ex post facto evidence in explanation but you're saying it wasn't sufficiently probative?

PN234

MR FOLLETT: Yes, and the point of my submission, the encapsulating submission at the end about balance and fair go all round was to say if that type of evidence is to be regarded as probative of a connection, causation if you like, between circumstances and conduct such that the Commission should say "Well, I don't regard that as wilful" which that's the ground of the appeal here, the finding that this was not wilful. Now if that's enough to establish connection, causation, then there's a problem. If this was a common law claim in any court, if you want to establish loss was caused by injury you need to do that by evidence.

PN235

If you want to show the conduct was caused by medical circumstances, you need to lead evidence. My friend then makes assertions that there was unchallenged evidence of a connection. There was no evidence of a connection. The submission is made that it was absurd to require medical evidence for a point that wasn't in dispute. This was a central issue in dispute. That he may have been down at the pub drinking, but he took him there himself, and there was no evidence that taking drugs, the drugs that he had, had any impact on his behaviour.

PN236

There was no evidence apart from his own self-serving statements about how the alcohol that he had consumed caused his behaviour, and there was certainly no evidence that because he was suffering depression and under the treatment of a medical practitioner, that that somehow justified his behaviour.

PN237

COMMISSIONER BOOTH: Could I just stop you there, Mr Follett? Wouldn't your arguments be exactly the same if there had been medical evidence though, that you'd be saying that the Commissioner at first instance shouldn't have been persuaded? Because which part of the medical evidence would persuade you that that therefore would have been harsh or directly connected? I mean I just can't imagine a doctor ever being able to say "Look, this definitely caused him to make those phone calls to those people". Just no doctor is going to say that.

PN238

MR FOLLETT: The balance of probabilities. The way doctors give expert reports in all cases, and to directly answer your question, Commissioner, if there was such medical evidence that went to the question of connection and we said you shouldn't make a finding because it's not adequate and a finding was made, unless we could establish that that was a significant error of fact it's not going to be an appeal ground. We don't challenge the mere fact that the finding was made, because we can't. We challenge the fact that there wasn't any evidence at all to support the finding, and there's a very different thing between no evidence and some evidence.

PN239

COMMISSIONER BOOTH: But you accept, I think your evidence was that you accept that he had been taking medication, he had gone to the pub, he was drunk. So it's bringing those connections together that's - - -

PN240

MR FOLLETT: He was drinking.

PN241

COMMISSIONER BOOTH: He was drinking?

PN242

MR FOLLETT: Mr Plavecky was cross‑examined about this point and he said "Well, how am I supposed to know how much he'd been drinking and how am I supposed to know how affected he is?" One of his questions was one man's drunk is another man's sober.

PN243

COMMISSIONER BOOTH: Well, that's my point about I'm just not sure how much more technical medical evidence would have taken this matter any further. We knew about the depression. We knew about the tablets. We knew about the pub visit and we knew about what he did as a result.

PN244

MR FOLLETT: Yes, and the submission that's put against me is that you should just infer based on all of those things.

PN245

MS HOWELL: Direct evidence.

PN246

MR FOLLETT: My friend says direct evidence. My friend perhaps doesn't understand the argument. I don't contend that there was direct evidence of all of those circumstances. There was zero evidence that one caused the other apart from the employee's own self-diagnosis, which is irrelevant. A mine worker, not a medical practitioner.

PN247

DEPUTY PRESIDENT GOOLEY: But was his evidence of that connection challenged below?

PN248

MR FOLLETT: Sorry?

PN249

DEPUTY PRESIDENT GOOLEY: Was his evidence that "I was taking tablets and I was drinking and that caused me to do this" challenged below?

PN250

MR FOLLETT: It wasn't challenged in the sense that an objection was taken to say "Irrelevant".

PN251

DEPUTY PRESIDENT GOOLEY: No, no, no, I mean was it put to him that that wasn't true?

PN252

MR FOLLETT: No but - I'm trying to think of a good example. It's like me saying that - I'm trying to think of a non-politically contentious topic.

PN253

DEPUTY PRESIDENT GOOLEY: Well, that might be hard.

PN254

MR FOLLETT: It's like me saying that greenhouse gases doesn't cause global warming. Now I don't know, I'm not a scientist, I've never done nay training. For me to say yes, one caused the other or one didn't cause the other. What is the point of cross‑examining a mine worker about that sort of question? What was said - I'll find the reference - was that - yes, 469:

PN255

The respondent further notes that the applicant has not put any medical evidence before the Commission to support that the proposition that (a) mixing of alcohol and his medication contributed to his conduct -

PN256

So we're looking at causation here:

PN257

- or (b) his depression contributed to his conduct. In light of this lack of medical evidence it would be inappropriate for the Commission to make findings to those effect.

PN258

So we didn't say "Your self-diagnosis is not much use" because that's a submission. It's not really a puttage matter because it's not something based on observed facts. Now it was said that Mr Plavecky accepted that he was under the influence, and I give you a reference, and the next paragraph, the very next paragraph is where he doesn't accept the connection, PN2206. There's also at footnote 54 references.

PN259

Ground 12. Paragraph 25 of the respondent's submissions ignores the error we focus on in paragraph 117 by reference to something said in paragraph 110 which was not on point. Paragraph 117 of the decision couldn't be clearer. That is or was the Commissioner's finding and it was wrong. The unchallenged evidence was that we clearly accepted what was put and had regard to it as mitigating factors. We just didn't accept that it challenged the outcome. The final sentence of paragraph 25 of the respondent's submissions, "Because of appeal ground 5 that can't be significant error", well we will concede significant error if the Commission were to uphold appeal ground 5.

PN260

Ground 13 I don't intend to advance further on what is in the submissions. All the cases are referred to in both parties' submissions and it's a question of characterisation of the reasons. Ground 14 is very similar to ground 3 and it's simply not answered. There's a heading about ground 14 but it's not otherwise answered. Ground 15 and 16; 44 to 48 of our submissions, 29 to 31 of the respondent's. 29 of the respondent's submissions:

PN261

A challenge to the Commissioner's ultimate finding of fact.

PN262

That is not right. That is a mischaracterisation of what the appeal is all about. There is no answer advanced to paragraph 46 to 47 of our submissions about the Commissioner inverting - whether one calls it an onus or a persuasive onus or an evidentiary onus or an onus of putting sufficient materials before the Commission to move it to make the decision that you ask it to make, that's what he did and there's no answer other than an assertion. At paragraph 30 they say "Well, he referred to all of these matters if you look at paragraph 122" but paragraph 122 just records a submission.

PN263

There's a stack of cases to say that that mere fact that you record a submission and then don't deal with it doesn't mean you've given consideration to it and had regard to it and weighed it and evaluated it in the balance. It's said that the findings that were made by the Commissioner necessarily involved a rejection of those matters. Well, if that were so, ground 17 would be a walk-up start because he certainly doesn't say he rejected them. He doesn't even deal with them. Paragraph 31, no direct evidence. Again repeating something I said earlier, it doesn't matter.

PN264

The evidence was there. It was admitted, it was probative. It is wrong to simply ignore it, and again it rather misses the point about our ground of appeal which was that it wasn't our onus. The submission is made that he was entitled to give no weight to it. This isn't a complaint about him giving no weight to it. This is a complaint about him discarding it and that is the proper construction of what he says in paragraph 127:

PN265

If Illawarra Coal wanted to rely on this hearsay evidence, then some or all of these employees should have been called as witnesses.

PN266

Again the evidence was not inadmissible hearsay, it was hearsay, and there's just one passage from a judgment I haven't got in my materials. I've come across it. I hand an excerpt to the Commission. It's a New South Wales Court of Appeal decision. It's Cain v Glass (No. 2) (1985) 3 NSWLR 230. This is a case about public interest immunity and you will see at page 239 relevantly President Kirby dissented, Judges of Appeal Priestley and McHugh agreed and the relevant passage I want to take you to is from the judgment of Priestley.

PN267

But the Commission will see at page 239 that a subpoena was put on for police running sheets in relation to information about some criminal behaviour and the Commissioner of Police put on an affidavit claiming public interest immunity and explaining that parts of the running sheets included information about informants and that there's a public interest immunity in not disclosing the identity of informers. At page 240 of the report at about point C of the page there's a comment by his Honour that it was debatable about whether the form of the affidavit was sufficient but no objection was taken, and then the relevant passage I want to take you to is at page 243. At about point E there's a commencement of a new paragraph:

PN268

In reaching his conclusion the Magistrate took into account what the Minister had said in his affidavits.

PN269

i.e. the grounds justifying the claim for public interest immunity:

PN270

Without the material in the affidavits he would not have been able to reach that conclusion. No objection had been taken on behalf of the appellants to the form or contents of the Minister's affidavits. No evidence was adduced to the contrary of what the Minister said. In those circumstances I do not see how it can now be said that the Magistrate was in error in acting upon that material...

PN271

And this is where it gets relevant:

PN272

If the form of the material or some of it was open to objection when first put before the Magistrate, nevertheless once it was before him without objection for which the defence may have had good reason, the Magistrate would have been wrong not to take it into account.

PN273

So the point we are making is that once the material is in and once it is before the Commissioner it is wrong to simply ignore it, and we may come down here to a dispute about whether the Commissioner effectively gave it limited or no weight or didn't have regard to it at all. I read his decision as saying "I didn't have regard to it at all" and that sort of final sentence effectively encapsulates that, "If you wanted to rely upon it you should have put it in through the witnesses".

PN274

Ground 17, it's not clear to us why it's said that we ignored paragraph 128 to 131 when our complaints are about 127 and 132. The final observation we make is that if the appeal in terms of error were upheld, the question becomes re‑determination and we would wish to be heard as to exactly what that process were to look like in the event the decision under appeal were quashed. Unless the Commission has any questions, those are the submissions that we advance.

PN275

DEPUTY PRESIDENT GOOLEY: Thank you Mr Follett.

PN276

MR FOLLETT: Thank you.

PN277

DEPUTY PRESIDENT GOOLEY: Ms Howell.

PN278

MS HOWELL: Thank you. If it please the Commission there's a fair bit of confusion about the applicant's case. It has certainly undergone significant change from the case advanced before the Commissioner to the case advanced in the written submissions to the case advanced in oral submissions, and we now - at the beginning we're told this has got nothing to do with weight and then five minutes later, as I heard it, we have no dispute about the findings but we complain about the weight given by the Commissioner to the findings. It's one or the other and in my submission when you look at what's really going on, it's about the weight given by the Commissioner to particular factors.

PN279

We're now told that the appellant doesn't contest the findings as to valid reason but only contests how those findings were dealt with once the Commissioner was considering harsh, unjust or unreasonable. So in that sense much of the complaint in the written submissions goes away because it's really about what findings the Commissioner made about the conduct of Mr Gosek. So there's a fair bit of confusion about what the actual grounds are. That's the first point, and the second point is we are criticised for referring to the evidence.

PN280

The evidence before the Commissioner is critical to what findings were open to the Commissioner and what weight the Commissioner would give to the hearsay evidence of the seven employees about the nature of the conduct. And I should say that evidence was all objected to because of the hearsay and because of the fact that it couldn't be tested, and it's not a matter of Mr Gosek saying "That didn't happen" or "I didn't say that" but it's about the context.

PN281

These things - you cannot just take one line out of a conversation out of context and say "There, that's your serious misconduct". Not without a lot of unfairness to the applicant and really that's what the respondent - the applicant is doing in this appeal, divorcing certain words from the entire context which was before the Commissioner and then expecting the Commission on appeal to pass judgment on isolated little snippets of information. Well, the context has to be considered. I'll come back to that because it's really a response to how the appeal has been advanced today.

PN282

So taking you back to the issue of leave to appeal or permission to appeal, the Commission is well familiar with the authorities and I would only stress a couple of points. That even demonstration of error will not support necessarily a grant of permission. The sole reason that must be found is if it's in the public interest and that's another reason why reference to the evidence is somewhat important, because the Commission in considering what outcome might arise if the matter was re-heard would necessarily have to look at fundamental parts of the evidence which founded the Commissioner's decision.

PN283

I'm aware that we have time limitations and I want to particularly address the question about whether the Commissioner was entitled to find that the combination of severe depression, heavy medication and alcohol had a significant effect on Mr Gosek's behaviour. If he was entitled to find that, as he did, then much of the other complaints about the Commissioner's failure to appreciate the significance of the conduct really dissipates. Because as was noted in the Full Bench in Diaz which is referred to in our cases and also in the bundle, which I don't think we've handed up? We have handed up.

PN284

When considering a valid reason all of the contextual matters including the state of mind of the employee are relevant and required to be considered, and that's particularly the case where as in this case the applicant, the respondent below, has repeatedly emphasised that Mr Gosek's state of mind, his wilful misbehaviour as they seek to put it - before I get to the evidence of course we've referred to some authorities on leave to appeal in our submissions, Inner West Towing Pty Ltd v Maynard, which is in our bundle; even if there is error that doesn't support a ground of leave necessarily.

PN285

In this case first of all there's no point of principle. The matter turns on its own facts entirely. It's not unreasonable or plainly unjust such as to give rise to an inference that there has been a failure properly to exercise a discretion. We say in substance the decision was just and we had a lot of submissions about how Mr Hatfield's view was irrelevant. Mr Hatfield was the investigator. He was the investigator and a senior human resources officer with the respondent and he made the recommendation that Mr Gosek be warned rather than dismissed, and that was before he even knew about the extent of the mitigating circumstances.

PN286

He knew a little bit about them at that stage, but he found out a lot more about them in January, and that was when he recommended to Mr Plavecky that he reconsider his own recommendation to himself effectively. So those considerations are strongly suggestive that the outcome, whatever the Commission thinks about any errors, was a just one and that there would be no utility in permission to appeal. It shouldn't be thought by that submission that we say or concede that there is any error. We don't. We set out in paragraph 4 of our submissions the factual matters which are not in dispute.

PN287

The only one possibly which might be in dispute is whether Mr Gosek, whether the evidence should have been accepted that the depression, alcohol and medication combination caused or contributed to Mr Gosek's behaviour and that's what I'm going to go to shortly. But we say that those matters make clear that a fair go all round was accorded by the Commissioner's decision as is emphasised in the statute, and the employer's interests are protected because if anything resembling a repeat of the conduct occurs then appropriate action can be taken.

PN288

So, essentially a person with an impeccable record in these circumstances was entitled to a second chance. Mr Hatfield saw that and in my submission any reasonable person would. I'm not sure if this lectern, because it can be raised, but I'm having a bit of difficulty with it. It's my poor eyesight. So I'm sorry I'm looking down a lot here, if it please the Commission. Can I now take the Commission to the evidence in the appeal books which is disparagingly referred to in the respondent's submissions because it's not medical evidence, and that is the evidence that Mr Gosek's behaviour was affected by the combination I've referred to.

PN289

It's fundamentally relevant not only to ground 11 but also to the earlier grounds 1, 3 and 4 where it's said that the Commissioner didn't properly weigh the evidence or his findings as the case may be. So as was noted by the Commission, this evidence was not cross‑examined on. Mr Gosek squarely said "Look, these factors affected me" and not only did Mr Gosek squarely say that but there was a whole wealth of other evidence from which the inference could be drawn, not just ex post facto rationalisations but contemporaneous material.

PN290

Can I ask the Commission first to turn to appeal book page 1024. So page 1024 is part of a text sent by Mr Gosek to Mr Pomana who was the only witness who had directly experienced or been a recipient of Mr Gosek's conduct on 4 October to give evidence. He was the only witness who had direct experience of those events. This is Mr Gosek's apology text sent on the 6th, two days later, well before Mr Gosek knew that he was even going to be disciplined let alone dismissed for his out of work conduct. So the Commission will see he says:

PN291

I'm not travelling well. I'm currently battling two issues. One is depression and the other is alcohol abuse, a shithouse combination let me tell you.

PN292

But the text is not complete in this record and it was only when Mr Pomana was under cross‑examination we got the full text which is at page - I'll just read it out. It's at appeal book page 270, paragraph number 2393. Mr Gosek goes on to say:

PN293

This of course is not your fault. I am directing my own anger and frustration at you and others which I normally control, but yesterday I was out of control, drunk and low. Sorry again, mate.

PN294

And Mr Pomana's responses can be found at appeal book 545. He's very forgiving towards Mr Gosek and then Mr Gosek sends a further text which is at page 125:

PN295

Hi mate, just wanted to tell you again how sorry I am. You have always been a friend to me and I have let you down. I wish I could have been stronger and could have helped myself sooner. The regret is eating me but I actually welcome it. It means I feel something. Love you, mate.

PN296

So right from the start - if I said page 125 I should have said 1025. I'm sorry. So it's 1024 and 1025. There's the first evidence that this is connected to Mr Gosek's mental health issues. Not self-serving, but a genuine apology to his friend, and there's no doubt Mr Pomana agreed they are friends, and that was his account. If it please the Commission, Mr Pomana gave evidence about the conversation he had with Mr Gosek, the only direct evidence. What he said was amongst other things:

PN297

Mr Gosek sounded extremely drunk. He was rambling. He was going round in circles.

PN298

And that's at paragraph numbers 2356 to 2362 and 2431 to 2432. Then if it please the Commission, turn to page 503 of the first appeal book. This is the allegations as they were put to Mr Gosek in the course of the investigation and the parts which appear in red are Mr Gosek's responses and that in response to E:

PN299

Do you have anything else you'd like to say regarding this part of the allegation?

PN300

Mr Gosek says:

PN301

As stated and acknowledged by the investigators, I had and continue to have seriously impacting person issues that have influenced me and my judgment in this instance. I cannot offer any reason that would reflect a normal state of mind. I was not in a healthy state of mind. I am embarrassed and ashamed of my actions...

PN302

et cetera, and at the last paragraph:

PN303

I have solid supporting evidence that would confirm the nature of the personal issues. I do not wish to disclose this private and personal information unless it is forced on me.

PN304

Well of course it was forced on him and he did disclose it, and if I can ask the Commission to turn to page 483, 484. This is Mr Gosek's first statement in the proceedings where at paragraph 57 he says - he's talking about the meeting which he had with Mr Hatfield and Ms Thew and he reveals to them he had been suffering from mental illness which had been diagnosed as severe depression in July 2016 et cetera. He provided them with the medical evidence which is also referenced in our submissions. And then over the page at 59 he says - he was asked a lot of further questions.

PN305

He replied explaining that the impact for him and his family had been extremely severe. This had led to some excessive drinking on his part. He confirmed to them that he believed his mental health had impacted on his out of character behaviour on that day. He also explained that it had affected his work as well, and at MG10 and 11 he provides a copy of his notes and there's a deal of further evidence which confirms this. I think given the time, I'll just take the Commission - - -

PN306

DEPUTY PRESIDENT GOOLEY: You don't need to rush, Ms Howell. Just make your submissions.

PN307

MS HOWELL: Thank you, Deputy President. The page 525 again is Mr Gosek's supposedly self-serving evidence, but the point is he wasn't challenged on it and it was never said that it wasn't open to the Commissioner to accept this evidence. He says, the fourth dot point down on page 525 he had been dealing with the loss of a close family member, the depression was running his life as he had no energy to deal with it. He'd been to see his doctor et cetera. His medication dose had been doubled in July 2016 due to his continued struggle with dealing with the symptoms, and he gave them examples of the impact of his illness and how it was affecting his job. He had lost motivation et cetera, and then over the page, the second dot point down:

PN308

At this time I had my medication increased. I'd been having trouble adjusting to its effects. My moods were getting worse, and started to drink more as a result. Drinking alcohol was not so much an addiction to alcohol but it was a way for me to self-destruct, self‑harm.

PN309

And then he goes on to discuss the events, and then if I can just ask the Commission finally to go to page 540 which is Mr Gosek's second statement, he squarely says there at paragraph 41:

PN310

My behaviour on 4th of October 2017 was a result of a combination of factors including major depression, excess alcohol, severe difficulties in my personal life and my feeling of disappointment and frustration at the outcome of the Miller investigation.

PN311

Now none of that evidence was in the slightest bit contested below, and the analogy with the greenhouse effect is frankly ridiculous. My learned friend doesn't have any personal experience or insight into greenhouse effect, I assume. Mr Gosek has a lot of insight into his own condition and how he got to where he was and how he came to behave in a completely uncharacteristic fashion on that day after 11 years of a completely clean record. In my submission, Mr Gotting below properly didn't put that the Commissioner wasn't entitled to accept that evidence. He was, and he did, and that coloured how he approached the rest of the evidence.

PN312

So, ground 11, not only does it have no foundation but the findings challenged undermine any attempt - I withdraw that - they undermine any validity which might otherwise arise form grounds 1, 2 and 4, which are really the gravamen of the applicant's case today.

PN313

DEPUTY PRESIDENT ANDERSON: Ms Howell, given what you have just put to us, you are asking us to accept there was evidence of the nature you have taken us to that justified the Commissioner drawing the conclusions he did. How does that evidence align with what the Commissioner finds in paragraph 117 of his decision where, in the second-last sentence of that paragraph, the Commissioner says:

PN314

He was drinking excessively in the period leading up to 4 October 2016, but claims that he was unaware of the consequences of the alcohol/drug cocktail.

PN315

It seems from that observation by the Commissioner that he is having regard, as some form of mitigation, to what he concludes is a lack of awareness by your client to the consequences of a drug/alcohol cocktail, and yet you have taken us to evidence where your client has suggested, at least, through the course of investigation that he is aware of the impact of alcohol on the antidepressants, and also what you took us to in paragraph 18 of the Commissioner's decision, the communication to Mr Pomana the day following where he refers to a "shithouse combo let me tell you" between the two.

PN316

MS HOWELL: The "shithouse combo" was a combination of alcohol and depression - that's clear from the text - and the evidence was that Mr Gosek only found out about the interaction between Cymbalta and alcohol after 4 October. I can give the Commission the reference to that. It's in one of his statements that, at the time of the conduct, he didn't know about the specific interaction between Cymbalta and alcohol. Subsequently, he found out about it and he told the investigators.

PN317

DEPUTY PRESIDENT ANDERSON: And what he communicates the day following, on 5 October, you say that doesn't constitute any body of knowledge about the combination?

PN318

MS HOWELL: Not about the medication, about the combination of depression and alcohol. It doesn't reference the medication, that text. I will find that reference and give you the paragraph where Mr Gosek explains, again unchallenged, that he found out about the adverse effects of the combination after the event.

PN319

That is the context in which the claims that the Commissioner didn't weigh the evidence properly or didn't weigh the misconduct properly falls to be assessed. The state of mind of Mr Gosek is fundamental to the nature of the misconduct, the seriousness of the misconduct and, again, that's clear from Diaz, where the Commission says all of those factors going to the gravity of the conduct is considered in weighing the question of valid reason.

PN320

We say the Commissioner was very well aware of the nature of the conduct alleged, and we have given references. The authorities are clear that the Commissioner is not required to refer to every piece of evidence and every submission. We have given the Commission Linfox and the other authority is the decision of His Honour Justice Bromwich in the Raman case. Both of those are in our small bundle and both of them talk about the fact that it's not necessary to dissect or even refer to every piece of evidence or submission.

PN321

On the basis of the paragraphs we have referred to, it's clear that the Commissioner did appreciate the nature of the conduct. That's the first thing. The second thing is every allegation relied on by the respondent was found to be proved.

PN322

Now, the state of the evidence was that we had the hearsay interview records of the seven employees, apart from Mr Pomana, which we objected to but which was admitted, and the Commissioner was entitled to admit the evidence. Mr Gosek had no recollection of making any threats and, as I think I have indicated, the difficulty with that is there was no potential for us to test the context in which various things were said. The difficulty of that is clear from Mr Pomana's evidence where he's saying, "Well, he said various things, he was going round in circles, one minute I was his best friend, the next minute he was telling me I was a hopeless joke as a boss", et cetera. So, context really was important in these things.

PN323

The first thing which has to be stressed is the Commissioner dealt with the allegations exactly as they were advanced by the respondent below, the appellant, the applicant. He went through every single allegation.

PN324

Can I just ask the Commission to look at the show cause letter, which is at page 511. This is the main document setting out the misconduct relied upon. There are a few points which should be noted about this letter. First of all, the applicant has repeatedly said, "This is not about the language." Have a look at the allegations and the Commission will see that it is about the language, very much so, and we have given some evidentiary records.

PN325

The first dot point is really an overview, sort of, of the conduct. The second is about the language used. Now, certainly the language is used in a particular context. We don't say these were friendly conversations; we didn't say that below. Mr Gosek was angry. But, there was a contest on the evidence about whether that kind of language was used in the same context in the workplace, so, in other words, when the workers, at work, sober, during working hours had a disagreement, exactly the same language was used. That was the evidence of Mr Gosek and also Mr Hackett, who was another employee called on behalf of the applicant.

PN326

There is no doubt it was about more than just the language, but the evidence taken into account by the Commissioner was not that the language in the abstract was bad but that the language was used in that context in the workplace and that provided the context in which the Commissioner considered the use of this language. It wasn't just that, yes, the C word or the F word was used at work but it was that it was used in a very specific context during disagreements as terms of abuse, and there were plenty of example, which were not challenged, given by Mr Gosek and given by Mr Hackett. That is really jumping ahead to another appeal ground, but, while we are here, it's convenient to make that point.

PN327

The third dot point, given no particular significance at this point, is about the threats also in the subsequent phone conversations and you will note that it refers to fellow CFMEU lodge members. The lodge issue and the CFMEU issue is front and centre at this stage. You wouldn't think it to hear Mr Follett's submissions, but, at the time, it was threats to fellow CFMEU lodge members, for example, about their ongoing involvement and support with the union, being involved in court cases, "Other lodge members will know what they've done", and ongoing employment.

PN328

The show cause letter doesn't even mention the threats which Mr Follett wants to place so much emphasis on now. Things have changed. At the time, the conduct was really viewed as a totality. There was no singling out of specific phrases and saying, "Well, you said this, this is intimidating." It was, "You said all these things, you called them names, the whole conduct was appalling and that's why we want you to show cause why you should not be dismissed." The dismissal letter is in identical terms and when Mr Plavecky gave his evidence in his affidavit, his reasons mirrored precisely those complaints there which were in the show cause letter.

PN329

We have a very different emphasis now in the appeal to what we had when the employer was dismissing Mr Gosek, the reasons they gave, and when Mr Plavecky gave his evidence. Mr Plavecky's evidence is found at appeal book 1158, paragraph 32. What we now have is pulling out a few phrases from somewhere - the evidence isn't even identified - and saying, "Oh, but look at this, the Commissioner didn't consider this."

PN330

When looking at valid reason, the Commissioner considered exactly what the employer had relied on. Indeed, he went a bit further because he took into account a number of the matters which hadn't been relied on by the employer but which were subsequently relied on by the respondent below in its written submissions. But, the Commissioner should not be criticised for dealing with valid reason by reference to precisely the matters that the employer relied on to dismiss. There was no after-acquired knowledge; it's not one of those cases. The employer had all of the evidence, they had all of the interviews with the various employees, of which the records are in the appeal book, and those were the matters they said, "Well, here's what we've found you've done, now show cause."

PN331

The next reason why the Commissioner didn't make any error in not specifically referring to the matters now emphasised by the applicant is the lack of direct evidence of those matters. True it is that Mr Gosek didn't contest that, although he couldn't remember, he may have said those things, so, in that sense, you can pick out from the interviews the phrases which are now relied on, but, context is very important, even leaving aside all the medical issues.

PN332

If someone says, "I'm going to kill you", that can be a response to a practical joke, you say, "I'm going to kill you for that", or it can be a serious threat, or anywhere in between. We don't, and didn't, suggest that Mr Gosek during these conversations was joking - that wasn't our case - but context is, nevertheless, very important and when you can't test the context, you can't really fully evaluate the conduct.

PN333

I want to take the Commission to Mr Cross' evidence in particular, because although we have a lot of general assertions about threats and intimidation, on our understanding of the respondent's or the applicant's submissions, the only person who is really subject to the kind of threats that it's said the Commissioner ignored was Mr Cross. The others were all in the nature of the union-related threats, "I'm going to throw you out of the Lodge." "I am going to tell the whole aggregate(?) meeting what you've done", et cetera. Mr Cross was in a different category and it's Mr Cross - it's things which are said to Mr Cross which are really relied on.

PN334

Can I just, before I take the Commission to Mr Cross, the submissions below and the submissions on appear at paragraph 17 really illustrate the difficulty of not calling direct evidence which could be tested. If I can do this by reference to paragraph 17, those really - there you have the applicant cherry‑picking the worst things that Mr Gosek was said to have said. "I will hunt you down. I will get you and I will make you pay for it." Hunt him down, crucify him and that "he would stand up at an aggregate(?) meeting and single everyone out and tell everyone that we were all dogs."

PN335

Now, just leaving aside the last one, those first several threats are from two different accounts of the same conversation. Mr Cross gave an account to Mr Plavecky and he gave an account to Mr Hatfield and Ms Thew in the interview. And the same as in the applicant's submissions. So you've actually got double-dipping.

PN336

You've got two versions of the same conversation overlapping, but the way it's put here and the way it's put below is as if he'd made all of those threats, but in fact it appears it was two different versions of the same conversation and, in fact, the proposition that Mr Gosek threatened to crucify someone, that appeared in Mr Plavecky's account, but not the account to the investigators.

PN337

It was never put to Mr Gosek, so that just highlights the difference. We have two different accounts of the conversation which have different versions of the threats, and then it's put to the Commissioner and on appeal that all of those things were said by Mr Gosek.

PN338

Now, I don't say anything turns on that, except to illustrate how difficult it is to evaluate the nature of the threats, the seriousness of the threats, the context of the threats when you don't have direct evidence. And that severely disadvantaged Mr Gosek below and it's reason explaining why the Commissioner wouldn't dissect every word that was said when it can't be put in any context properly to evaluate.

PN339

So we have three reasons, at least, why grounds 1, 2 and 4 can't be sustained. One is that the Commissioner had made the findings about Mr Gosek's mental state. Two is that he took the allegations exactly as they were advanced by the employer and three is that without direct evidence he couldn't fully and properly evaluate the threats anyway.

PN340

DEPUTY PRESIDENT ANDERSON: Ms Howell, taking that submission into account, it's nonetheless apparent that this - the facts that were before the Commissioner were facts that this wasn't just about foul language, this was about threats - - -

PN341

MS HOWELL: Yes.

PN342

DEPUTY PRESIDENT ANDERSON: - - - that were made as part of the foul language.

PN343

MS HOWELL: Yes.

PN344

DEPUTY PRESIDENT ANDERSON: And that those threats were made over a series of telephone calls over a series of hours.

PN345

MS HOWELL: Yes.

PN346

DEPUTY PRESIDENT ANDERSON: Now, isn't that context that weighs against mitigation, given that the Commissioner finds that the language was inappropriate and unnecessary? The fact that the language is in the form of threats and the fact that it is repeated, and the fact that it is repeated over a number of hours in separate telephone calls, how does that mitigate the seriousness of the misconduct, rather than compound it?

PN347

MS HOWELL: Well, the first point, if it please the Commission, is that Mr Gosek didn't initiate the calls. He was the recipient of the calls. So it wasn't as if he was premeditating, "Right, I'm going to phone someone up and threaten them." That wasn't what happened. He sent the text. He did send the text calling them dogs, but they then responded - they were his workmates and colleagues. They weren't, you know, people that had ever - and in some case friends - they weren't people he had ever fallen out with.

PN348

So they phoned him back saying, "What's going on?" He is at the Dapto pub getting drunker and drunker and more and more upset, and in the course of these conversations, he makes some of the threats. Now, the serious threats, as I indicated in terms of, "I'm going to hunt you down", et cetera, they were only made to Mr Cross. The rest of them are about, "I'm going to kick you out of the Lodge", et cetera - - -

PN349

DEPUTY PRESIDENT GOOLEY: Surely that's a serious threat.

PN350

MS HOWELL: It's potentially serious - - -

PN351

DEPUTY PRESIDENT GOOLEY: Well, the notion of, "I'm going to get up in front of all the others and I'm going to call you a dog, and I'm going" - you know, "You'll live with the consequences of that." Surely that's a serious threat?

PN352

MS HOWELL: It's a serious threat, Commissioner, but - I'm sorry, Deputy President - but the Commissioner didn't fail to recognise that. The Commissioner recognised that and then discussed some of the other relevant considerations. The first being that Mr Gosek was not in his right state of mind, and that wasn't disputed. The second being he was extremely drunk and getting drunker. The third being as soon as he realised what he'd done, he apologised profusely and indeed tearfully to a number of the - - -

PN353

DEPUTY PRESIDENT GOOLEY: But they may all go to the issue of mitigation in this factors, but in characterising the conduct, they don't change the character of the conduct, do they, if that's what you are saying. Are you saying that actually changes - the fact that I might have been drunk when I threatened you changes the character of the conduct?

PN354

MS HOWELL: The combination may do, Commissioner. We don't need to say just the drunkenness - I'm sorry, Deputy President. The combination of severe depression, alcohol and medication had an effect on Mr Gosek's state of mind. Once you accept that, the case below relied heavily on Mr Gosek's intention to offend people and intention to intimidate them.

PN355

As was said in Diaz, you look at all circumstances surrounding the conduct and that those matters are relevant to assessing the seriousness of the conduct as well as mitigating. That's really - it's sort of like an example - which I hope is better than the greenhouse gas example - which is if an employee is driving a company vehicle and they have a heart attack while they are driving and then crash straight into a pile of valuable objects or into even into another employee, you don't say, "Well, that was serious misconduct, and we should dismiss him, but now let's look at the mitigating circumstances of the heart attack."

PN356

Now, that's a more extreme example, but it's not in principle different in my submission.

PN357

DEPUTY PRESIDENT GOOLEY: Well, except that - in using your example - if the person went to the pub and got drunk and crashed the car, you would.

PN358

MS HOWELL: He did get drunk. He wasn't aware of the interaction of the medication and the alcohol. He didn't initiate the phone calls. So that's - all of those things, all we say, if it please the Commission, is all of those factors were part of the evaluation of how serious the conduct was and the Commissioner took those things into account in evaluating.

PN359

Now, my friend said at the beginning, they didn't have any problem with the evaluation of the valid reason. That wasn't the appeal. The appeal was about the weight given to those factors, because the Commissioner mischaracterised the evidence. That's what is said against us, but when you look at all of those circumstances, in my submission, the Commissioner was entitled to take them into account and entitled to take - especially that Mr Gosek didn't initiate the calls but responded. There's no law against getting drunk. He didn't - - -

PN360

DEPUTY PRESIDENT GOOLEY: In terms of his decision about, for example, the threats about CFMEU membership - - -

PN361

MS HOWELL: Yes.

PN362

DEPUTY PRESIDENT GOOLEY: He doesn't at 105 in his decision say, "Well, these are" - and had regard to the fact that they were done in the circumstances that you talk about. He, in fact, downplayed them because he had - one, because Illawarra Coal has no right to interfere in the operation and conduct of the CFMEU and because he didn't have any authority to terminate their membership.

PN363

So he doesn't say they're less - these threats are less = and also because he thought that the members knew that he couldn't do it. He doesn't downplay those threats because he has regard to his illness, his depression, the combination of drugs. He downplays it because he says he couldn't have given effect to them.

PN364

MS HOWELL: I think elsewhere in his decision he clearly does down - he does evaluate the conduct by reference to those other matters, if it please the Commission and those indeed are the very paragraphs that the applicant says were findings which were not available.

PN365

Paragraph 63, the Commissioner takes into account the inappropriate threats. He then refers to the matters that the Commissioner has just referred to - Gooley DP. Paragraph 64, he was powerless to implement et cetera, but one then has to really look at paragraph 88, 89, 90, 93, 94 and 99. Paragraph 98 and 99 are still in the context of considering valid reason, so the order might be somewhat different to what I've put it in, but the considerations are all there as part of the valid reason.

PN366

I was going to take the Commission to Mr Cross' evidence and this is just part of showing how difficult it is to evaluate the nature of the threats and the full import of them and, you know, taken out of context as the Commissioner has noted, they are serious threats. That context is important in evaluating Mr Gosek's state of mind, but also how the employees perceived them. Did the employees perceive that they were being seriously threatened or did they think Mr Gosek was on a drunken rant, effectively? We didn't have the chance to test that and it's important.

PN367

The relevant evidence of Mr Cross is at page 1007. I think that's appeal book 2. This is the highest the evidence gets about the threats. This is the interview record and immediately following, on pages 1010 and 1011, there's some notes from Mr Cross. The Commission can see that, first of all, there are the threats: "I will hunt you down, I'll get you and I'll make you pay" and "How about you and I go for a beer at The Oaks to sort it out? I took the impression it was a fight he wanted. Received an apology call the next day."

PN368

Then - and Ms Thew translated her handwriting but I think this is accurate - just three lines above point 4: "He rang back full of tears and couldn't apologise enough. I received an apology text the next day. Matt rang on Thursday to apologise." Then, after point 5: "What did Mr Cross do?" "He phoned the union." That's Mr Aaron Herstch. Mr Herstch said: "Let him enjoy his beers and I will talk to him tomorrow." "He seemed stressed, but that is no excuse; it was out of character for him."

PN369

Then, if you go over to page 1010, at the foot of the page: "In his drunken state, he several times suggested I was a nice bloke, then the next breath, I was an f-ing dog C", et cetera. I just draw that - again there's no mention of Mr Cross, any threat that he'd be crucified, so that illustrates the difficulty because that's an additional threat relied on. The Commission can see there's no suggestion from Mr Cross that he felt intimidated or threatened. He certainly felt angry because his family had been exposed to that language.

PN370

There was also some evidence from Mr Gosek about the employees' reactions and how he apologised to them. The substance of that evidence was that the employees didn't even mention any threats but they were concerned about the language used and the fact that they'd been called Cs and dog Cs. The reference is in our footnotes to that evidence and, because of the time, I'm not going to take the Commission to it, but the point being there was a lot of evidence about the context, but we weren't able to get further evidence by testing what the employees said, and Mr Pomana's evidence was very telling in that regard because he gave a very different picture in oral evidence to what you would get from just reading his written interview. He was genuinely concerned that Mr Gosek would commit suicide. That was his view: not afraid, not threatened; annoyed, upset - because Mr Gosek said he wasn't a good supervisor and didn't look after his men - but worried. That was the full context of Mr Gosek's interaction with Mr Pomana.

PN371

The other employees, as Mr Gosek gave evidence, some of them were more upset than others, but none of them said, "Well, you threatened me." They all said, "Well, you called me an f-ing C, you did this, you called me a dog", but none of them said, "Well, I was afraid, you threatened me." They didn't say that to Mr Gosek and they didn't say that to the investigators.

PN372

What that really suggests is, at least in the employees' minds, the main issue was the fact that they were called some bad names, some bad language was used and, in some cases, because the phone was on speaker, family members were exposed to that language. Firstly, Mr Gosek was disadvantaged because that full context couldn't be teased out and, secondly, you know, the Commissioner wasn't in a position to fully evaluate that either.

PN373

So, when you take all of those factors I've raised into account, in my submission, there's no error. First of all, the Commissioner dealt with each allegation made by the respondent below in terms, found each allegation to be proved and, secondly, to the extent that he's criticised for not going further, in my submission, there's no justification to that criticism because of those three factors: Mr Gosek's mental state; the way the complaints were advanced, and the lack of direct evidence of what actually happened. So, really, you know, picking out and isolating a few phrases without context, it's very difficult to evaluate that conduct.

PN374

To the extent that it's put, rightly, about the threats, on their face, were serious, not only did the employees apparently not react in that way, but Mr Gosek's immediate apology the next day would quickly neutralise any thought that they should be fearful because of the threats - even if there was evidence of that, which there wasn't - immediately after the conduct in question. That is why we say the criticism of the Commissioner for the way he dealt with the threats is unfounded.

PN375

The other grounds, to a certain extent, mirror those matters. It is said that the Commissioner overestimated the importance of the language used. I have already indicated, in our submission, the real dispute was not about whether language was used in the workplace but whether it was used in an abusive manner in the workplace. We have given evidentiary references in our submissions to the uncontradicted evidence of Mr Gosek and Mr Hackett, unchallenged evidence, that people did use these terms as terms of abuse, not just in casual conversation or in jest, but when they were having arguments, and that's at work, let alone Mr Gosek using them out of work, off duty, when he was drunk.

PN376

Mr Plavecky, nonetheless, and Mr Wood emphasised in their evidence that the swearing and the use of those terms was important, Mr Wood in particular, and that's why the Commissioner dealt with it as he did because the respondent below made that a big issue by the way they articulated their reasons and by their evidence, and then it became an issue of contest between the parties whether language was used in an abusive way in the workplace and that's why the Commissioner dealt with it as he did.

PN377

I think I want to go now to reinstatement. It's sort of leaping over - I'm not sure how much time I've got; I don't want to tax the Commission too far.

PN378

DEPUTY PRESIDENT GOOLEY: No, okay.

PN379

MS HOWELL: The applicant has said, "The Commissioner didn't take into account the evidence of the respondent on reinstatement." There was no evidence from the seven employees whatsoever. The only evidence - take a step back. The appellant's submissions don't even identify the evidence they are referring to. There was no evidence from the seven employees. The only employee who was called, Mr Pomana, in cross-examination, supported reinstatement. That's the state of the evidence. Mr Plavecky and Mr Wood, a couple of the senior managers, gave evidence of their opinions about what would happen, but there was no direct evidence.

PN380

To the extent that it's said against the Commissioner that he should have taken into account evidence of how the employees would react to reinstatement, we had one employee giving evidence and he said he supported reinstatement, even though he was called by the respondent and even though, needless to say, that wasn't in his written statement. We had competing evidence from Mr Hackett which was also in the nature of hearsay evidence that the seven employees would be happy to see Mr Gosek returned to work, they didn't bear a grudge, they didn't want him sacked, and they would get on with it and be happy to work with him, in effect.

PN381

So, we had two lots of competing hearsay evidence, one from the managers who said, "Oh, no, the employees are worried", and one from Mr Hackett, a co-worker, saying, "The employees would be happy to have him back", and you had one actual employee, Mr Pomana, saying, under oath, "Yes, I'd be happy that Mr Gosek comes back to work."

PN382

That was the state of the evidence. It's not that the Commissioner didn't take into - I withdraw that. In those circumstances, the Commissioner was perfectly entitled to say, "To the extent that there's hearsay evidence of what those seven employees may or may not think, how they might respond, I am not going to take that into account because direct evidence could have been called and I place a lot of weight on the evidence of Mr Pomana."

PN383

At the very least, the finding that reinstatement was appropriate was open to the Commissioner and, frankly, the proposition that he applied the wrong test is simply not made out when you read the Commissioner's reasons.

PN384

He, first of all, finds that there's no reason why the employer should have lost trust and confidence in Mr Gosek. That's his first finding. He then finds that, having regard particularly to the evidence of Mr Pomana, it appears to him that reinstatement is appropriate. He then finds that the matters advanced by the respondent don't make him change that view, don't make him conclude that reinstatement is inappropriate and, therefore, consistent with the statutory scheme, which puts a priority on reinstatement, he concludes that reinstatement is the appropriate order.

PN385

In my submission, not only was that a correct reasoning process, the outcome was available and the outcome was the correct outcome in the circumstances.

PN386

DEPUTY PRESIDENT ANDERSON: Ms Howell, do you say that there's no evidence that could have led the Commissioner to have concluded that there would be a loss of trust and confidence by the employer in respect of its employment of Mr Gosek? The evidence does indicate that Mr Gosek knew that he had a mental illness - depression - knew that he was taking medication for that and knew that he had an alcohol problem directed at self-harm.

PN387

MS HOWELL: Yes.

PN388

DEPUTY PRESIDENT ANDERSON: And the combination of those three manifested itself in misconduct that was directed at other employees.

PN389

MS HOWELL: Yes.

PN390

DEPUTY PRESIDENT ANDERSON: Doesn't that combination of factual circumstances that came to be known to the employer direct itself towards the question of whether the employer could lose, had lost, or could reasonably be said to have lost trust or confidence?

PN391

MS HOWELL: If it pleases the Commission, I don't think the Commissioner said there was no evidence, I think what the Commissioner said was he didn't accept the evidence for a number of reasons. Mr Wood and Mr Plavecky had expressed opinions about the appropriateness of reinstatement, but there was no evidence from the seven employees, and the way the case was advanced, it was all about the seven employees - I withdraw that - it was largely about the seven employees.

PN392

The Commissioner - if I can just take the Commission to paragraph 127 to where the Commissioner briefly sets out his reasoning, or, perhaps more appropriately, first of all, if we go back to paragraph 122, which is really how the respondent advanced its case below:

PN393

Mr Gotting submitted that reinstatement was inappropriate on the basis that:

PN394

a) Mr Gosek's conduct has caused significant divisions amongst the employees at the Dendrobium Mine;

PN395

b) some of the employees on the long wall crew are still suffering the effects -

PN396

et cetera. Now, the complaint on appeal is about a), b) and e) not being considered by the Commissioner. a) and b), that's where the Commissioner said, "Well, I'm not really prepared to accept hearsay evidence which can't be tested, particularly in light of Mr Pomana's evidence, the only employee who was called, who said, 'I didn't want Mr Gosek sacked and I'd like him to be back at work'", effectively. So, that was the only direct evidence from any employee.

PN397

In those circumstances, the evidence of the employees, the seven employees, the hearsay evidence, the Commissioner admitted it over our objection and relied on it to establish the misconduct, the threats, the drunken behaviour. That didn't mean that he had to accept it as evidence against reinstatement. It wasn't anything to do with reinstatement, it was to do with what happened on 4 October. In my submission, the Commissioner was entitled to say, "Well, particularly in light of Mr Pomana's evidence, I am not going to accept any third-hand evidence of what those employees might think about reinstatement without hearing from them and without allowing that to be tested, as was the case with Mr Pomana."

PN398

DEPUTY PRESIDENT ANDERSON: Has the Commissioner asked the correct question of himself by framing his decision about reinstatement around the views of seven employees, or the absence of direct probative evidence that he could rely on concerning the views of seven employees, as distinct from the more objective consideration of whether or not the facts gave rise to evidence of a loss of trust and confidence between the employer and Mr Gosek?

PN399

MS HOWELL: The reason the Commissioner focused on those matters was because of the way it was advanced in paragraph 122. Those were the reasons advanced by the respondent. The Commissioner had already made his finding at paragraph 108 that there was no lawful - I will withdraw that - no cogent reason for a loss of trust and confidence.

PN400

I should add, if it please the Commission, Mr Gosek gave uncontradicted evidence that immediately after this incident, he had given up alcohol completely, so to the extent that it was put that the combination of alcohol, drugs and depression might cause some concern to the employer, Mr Gosek had given up alcohol directly as a result of this incident and Mr Gosek had given evidence about how that had improved his condition significantly. He was still on the same medication, still on the mental health plan, but he was on the road to recovery. That was in his statement in reply and also in answer to a question from the Commissioner about his fitness to go back to work, he elucidated on that further and on why he wouldn't behave in that way again. So, the evidence was before the Commissioner that he had given up alcohol, his mental health was improving.

PN401

It is in that context that he said that he didn't accept that there was a cogent reason for loss of trust and confidence. Bearing in mind the 11 years of unblemished service, the fact that this conduct was completely out of character and the fact that he had given up alcohol as a result, in my submission, it was clearly open to him to find that there was no legitimate reason for loss of trust and confidence having regard to all the circumstances of the case.

PN402

It is in that context that he considered the reasons expressly advanced by the respondent at paragraph 122, and the first two of those are expressly about the reaction of the seven employees to reinstatement, and it's in that context that the Commissioner said, "Well, in the circumstances, I am not prepared to accept hearsay evidence of the position of those employees" because, apart from anything else, the evidence showed - the main evidence was from Mr McLeod saying, "I think the employees would be upset", et cetera.

PN403

Mr McLeod accepted in cross-examination that he didn't know whether the employees concerned knew the full range of Mr Gosek's circumstances, the severe depression, et cetera, the personal issues, the recent family bereavement, et cetera, so, to the extent that any evidence was given of those employees, as far as Mr McLeod knew, they were unaware of all of those circumstances.

PN404

The Commissioner expressly refers to that, that even if that evidence was accepted, there was nothing to show that the opinions were informed opinions, and if you wanted someone's comment on how they would respond to reinstatement, you would want them to know all of the circumstances, as Mr Pomana did. When he gave his evidence, at least, he knew all of the circumstances and he said, "I didn't want him sacked and I'm happy for him to be reinstated."

PN405

That disposes of points a) and b) and then point e) is already disposed of by the Commissioner's finding that there's no basis for loss of trust and confidence in Mr Gosek in all of the circumstances. Those conclusions are enlarged upon at paragraphs 128, 129, 130 and 131.

PN406

Really there is nothing to criticise, in my submission, in the way in which the Commissioner formulated his test, effectively, at paragraph 127, particularly when you have regard to paragraph 108: "I am persuaded that reinstatement is appropriate." He has considered the test, "Is reinstatement appropriate or not?", his conclusion is, "Yes, it is", and then he considers - I withdraw that - then he sets out some of the considerations that have led him to that conclusion.

PN407

I haven't made submissions on quite a few of the grounds beyond our written submissions. If there's any matters that the Commission is particularly troubled by that I could enlarge on?

PN408

DEPUTY PRESIDENT GOOLEY: Thank you, Ms Howell. Mr Follett, anything in reply?

PN409

MS HOWELL: If I could just give the Commission one reference which Mr Pasfield has pointed out. At appeal book 483, paragraph 58, Mr Hatfield and Ms Thew - this is about whether Mr Gosek knew about the effect of alcohol and medication - he said: "I did not know at the time but I've since found out that the two can interact with adverse consequences." I should say that Mr Hatfield provided a lot of detailed evidence about the particular nature of the drug, some of which is set out in the Commissioner's decision.

PN410

May it please the Commission.

PN411

DEPUTY PRESIDENT GOOLEY: Thank you. Mr Follett?

PN412

MR FOLLETT: Quite a number of points. I will start with the most important exchange. My friend made some submissions about what was in the show cause document and Anderson DP, quite rightly, pointed out that the question was based upon the evidence before the Commission. The test is well established that it's the employer's valid reason and the employer's valid reason is whatever reason the employer puts forward at the hearing as justifying the termination. It is undoubtedly the case that when you read the submissions, the entirety of the conduct was our case and that was the conduct that we were relying upon.

PN413

My friend's answers were about context and gave a series of answers to Anderson DP's question directed towards other things that were relevant to the context and it was said that he had regard to all of those things. We don't disagree with the proposition that all of those matters need to be considered in terms of the surrounding context in weighing up the issue.

PN414

Gooley DP then intervened and talked about matters that were not mentioned that went to the question of the seriousness of the conduct and said that all of those matters need to be weighed as well, and my friend said, "Yes, all of the factors need to be taken into account and an evaluation done and they were all taken into account."

PN415

Then my friend had some difficulty in actually going through the decision and trying to identify where the Commissioner had regard to any factor that went to gravity of the misconduct except all of the factors that were put in mitigation, so all of the matters and the paragraphs that my friend took you to were all of the things where the Commissioner sets out all of the things he took account of mitigating the seriousness or gravity, and none of the matters - none of them - going to the actual gravity, including the things that Anderson DP referred to in the context of his question. None of them are referred to, you don't see a mention of them; it's just all of the mitigating things.

PN416

My friend says you have to weigh all of that into account and evaluate it, and that's grounds 1, 4 and 18. That's our case. All he did was have regard to all of the mitigating things and none of the aggravating things and, in that exchange, my learned friend basically, in our respectful submission, conceded the case because she said that's what he had to do and then tried to demonstrate to the Commission that that's what he had done, and he didn't.

PN417

My friend made some submissions about weight. It is apparent that the Bench understands the way we characterise it. It's not a question of weight, it's a question of character. We made that submission at the start of the hearing and it was understood then and we get the impression that it's understood now.

PN418

It was then said that we were all over the place in terms of how we were presenting the case because we were complaining about whether findings were made about valid reason and now we're not complaining about findings. None of our written submissions complain about the nature of the findings made. In footnote 7, we say we are acting on the assumption that the Commissioner found the conduct as we put it before him or be taken to have found that he accepted the conduct as we put it before him.

PN419

If the Commission were not with us on that, then that would be demonstrable of error in any event because you can't deal with an unfair dismissal without making findings about the conduct.

PN420

My friend then made all of these submissions about the significant affectation and how that basically dissipated all of these other considerations. Ultimately, that doesn't really take my learned friend anywhere unless the Full Bench were persuaded that on no view - no view - of the gravity of the misconduct was it possible that the Commissioner could have reached any other conclusion. My friend made reference to all of the things about one-off and apologised and a long period of service. If you look at the Jetstar v Ishak case, that was a case of a one-off event for an employee with seven years' service and the termination of his employment was still upheld. It was well open to a properly assessed Commission to reach the conclusion that the termination of this man was not harsh, unjust or unreasonable and for my friend to focus upon what she calls the "significant affectation" doesn't take my friend as far as she needs to go.

PN421

She then says there's no point of principle. Well, we've got ground 5, ground 10(b) and 11 and grounds 15 and 16, all points of principle.

PN422

Then all of this evidence was gone through about the question of the impact and the nature of the phone calls and the text messages and things. Again, we make the submission that that's not really directed to anything relevant to the appeal, other than attempting to again persuade you that there's nothing to see here. She made a submission that it was never said that it was not open to accept the evidence that he had given. That is so, but we say, "Don't accept it."

PN423

Then there's a question of accepting it for what purpose? We deal with his evidence only on the question of wilfulness. We don't deny the proposition that it has capacity to be relevant to harsh, unjust or unreasonable. That's not our point. Our point is that it was deployed by the Commissioner to say that his conduct was not wilful, and it's at that point where we say, "Well, how does it go to the question of wilfulness?" and there's that Boral case about some of the exchanges that we had. When you go to a pub and you start drinking and then you engage in misconduct, the suggestion that your behaviour is not sufficiently wilful is not one that's likely to be drawn.

PN424

You can have regard to that information on the question of whether that finding of wilfulness should have been made, but that just goes to that one ground of appeal. It is otherwise being deployed, as I said at the outset of my submissions, to persuade the Commission that it shouldn't otherwise interfere with an erroneous decision because there was some capacity the decision might have been reached in any event.

PN425

Again, making out the case that we want to advance, my friend made some extensive submissions about the difficulty with not having the employees before the Commission and not properly understanding the context in which all of this conduct occurred and making submissions about the importance of context. Absolutely right, that's our case, and the Commissioner didn't have regard to the context, or if he did it's not anywhere in the decision, about the repeated to seven employees over a period of hours the specific target and nature of the threats. My friend said the evidence was that people used these terms when they were angry at each other and she used the more amorphous term "in an abusive manner".

PN426

That doesn't really advance matters because what you will not find is any suggestion in the evidence at all that swear words or the word "dog" are deployed in the way that Mr Gosek used them in this case, directed towards the employees because of the way in which they behaved during the employer investigation. It is not in the same ballpark.

PN427

My friend made the submission that at the time the conduct was being viewed as its totality. Absolutely, that's the way the conduct was being viewed and that was the way in which we put our case. What the Commissioner did was pick the eyes out of bits and pieces of it and said, "This little aspect is justifiable by reference to this and this little aspect is justified by reference to that" and didn't assess the totality of the gravity of the misconduct.

PN428

Some emphasis was placed on the amount of employees that particularly egregious things were said to. It's not entirely clear to us that the conduct becomes more justifiable if it's against one, two, three, four, five, six or seven employees. My friend then said there was no evidence that anyone was particularly afraid or scared about the nature of the threats. It looks rather like an eggshell skull submission in reverse, that if the persons who are the recipients of this behaviour are particularly stoic, that somehow means the behaviour isn't as serious as what it actually appears.

PN429

Reinstatement evidence: my friend made some submissions about the nature of the evidence about reinstatement and that it was competing, competing hearsay. Then she started to say, "It's not as if the Commissioner didn't take" - and then stopped and said, "I withdraw that" and then reverted to the findings open. Where my friend was going to go was really the problem: he didn't take it into account. It's not a question of weighing, he just didn't take it into account at all.

PN430

You heard my friend - all the evidence in response to questions again from Anderson DP about trust and confidence and all of those matters and we heard a long submission about all the evidence that was before the Commissioner that would have been undeniably relevant to that question. Most of it was contested. You can see in the submissions that all of these points were challenged.

PN431

As is always the case, people refer to different passages of the transcript. The suggestion that Mr Pomana was, you know, very cheery about Mr Gosek coming back, when you look at the evidence referred to in the submissions of the employer, he said he was going to have difficulty supervising him and he didn't know whether he could continue working there. She refers to this one passage, one answer given in cross-examination, without looking at it in the full context.

PN432

The point I am trying to make is that all of this evidence was referred to as relevant to the question and supporting the conclusion that was open. Where do we see that in the decision? It's nowhere. Ground 17 says we challenge the finding and that reinstatement was not appropriate because there were no reasons given. My friend gave a very good example of some of the reasons that could have been given, but we don't see that in the evidence.

PN433

Now, maybe the Commissioner had regard to those things, maybe that's what he was thinking, maybe not, we just don't know, and that's why we have inadequate reasons appeal grounds because the principle of open justice is that a party should know how they won and how they lost.

PN434

Anderson DP's question about the evidence that was capable of being relevant to the question of trust and confidence, the last sentence of paragraph 108 of the judgment is not quite that, "I wasn't sufficiently persuaded", it was:

PN435

There is no evidence that his work performance is poor or unsafe. In fact, there is no evidence which could substantiate an argument that Illawarra Coal had a bona fide reason to suggest that they had lost trust and confidence.

PN436

That, it would seem to us, is an overstatement. My friend said simply because the employee evidence was admitted on the question of the nature of the misconduct didn't mean it had to be taken into account on the question of reinstatement. We say it does and the outcome of taking that into account doesn't have to be one thing or the other, but it still has to be taken into account, and we refer to the New South Wales decision to support that.

PN437

Unless there is anything else, those are the submissions.

PN438

DEPUTY PRESIDENT GOOLEY: Thank you. We will reserve our decision in relation to this matter and you will be advised in due course.

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Fair Work Commission Transcripts

C2017/6113, Transcript of Proceedings [2017] FWCTrans 521 (14 December 2017)