AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision [PR927597]
and orders [PR927534, PR927535, PR927536, PR927537]
issued by Commissioner Raffaelli on 10 and 11 February 2003
Nationwide News Pty Limited
(C2003/1202)
s.170CE applications for relief in respect of termination of employment
Brian John Agnew
and
Nationwide News Ltd
(U2002/3622)
Barry Joseph Jelly
and
Nationwide News Ltd
(U2002/3623)
Frank Peinado
and
Nationwide News Ltd
(U2002/3624)
George Mandilakis
and
Nationwide News Ltd
(U2002/3627)
SENIOR DEPUTY PRESIDENT HARRISON DEPUTY PRESIDENT IVES COMMISSIONER BACON |
SYDNEY, 27 AUGUST 2003 |
Section 170CE, appeal against order reinstating employees.
DECISION
[1] This decision concerns an appeal by Nationwide News Pty Limited (the appellant) against a decision and orders made by Commissioner Raffaelli. The decision and orders relate to four applications lodged under s.170CE of the Workplace Relations Act 1996 (the Act). Prior to the termination of their employment with the appellant, two of the applicants (the respondents to this appeal) were employed as printers and the other two as production assistants.
[2] In the hearing before us the appellant was represented by Mr Kite SC who appeared with Mr Bennett and the respondents were represented by Mr Moses. Each of the four applications were heard together before Commissioner Raffaelli as was the hearing of the appeal in relation to each order reinstating the respondents.
[3] As many of the findings made by the Commissioner were not challenged on appeal we are able to summarise the relevant parts of his decision briefly.
[4] The Commissioner first considered whether there was a valid reason for the termination of employment of each of the respondents. He noted that each had been drinking alcohol during their lunch break and that was the reason for their dismissal.
[5] The Commissioner found that the appellant had a policy which did not permit the consumption of alcohol during lunch breaks. He said the policy provided that it was to be strictly adhered to and a breach of it "might result, or may result", in termination of employment. He found that the policy was developed by 31 May 2002 and soon after communicated to all employees. He found that the four respondents were among the employees informed of the policy in early June 2002.
[6] The Commissioner found that the adoption of a policy similar to that developed by the appellant, which included termination of employment if breached (particularly in circumstances where employees operated heavy machinery and forklifts) was reasonable.
[7] He said that in the circumstances before him "...where each of the four employees breached the no alcohol at lunch policy, only some few days after being informed of the policy which specifically referred to the possible penalty of dismissal," each of the dismissals was for a valid reason.
[8] The Commissioner gave consideration to the requirements of s.170CG(3)(b) and (c) and found each of the respondents had been notified of the reason for the termination and was given an opportunity to respond to it. He said that the process adopted by the appellant leading to the terminations of employment was "copybook material" and that there was nothing in the process which led to the terminations that "might draw any criticism".
[9] The Commissioner next referred to s.170CG(3)(e.). That section required him to have regard to "any other matter that the Commission considers relevant" when determining whether a termination of employment was harsh, unjust or unreasonable. By reference to this consideration the Commissioner referred to several matters as being of relevance. First he referred to what he described as the difficult time the appellant had battling a culture of drinking during and before working time. It had attempted to address these practices and the Chullora Print Centre ,where the four respondents worked, had started up as a dry site. It had a policy prohibiting drinking during and prior to work. The Commissioner noted that in most instances however warnings had been given for an infringement of the policy. He said that on one occasion (and the employee concerned was identified) an infringement of the policy had led to dismissal. He said that what occurred in relation to that employee reinforced a view that dismissal as the first sanction was not the policy of the appellant. He referred to employee information sheets that had been issued at the time informing employees that the dismissed employee had been consuming alcohol during working hours, that there had previously been incidences of alcohol consumption by that employee and that he had been on a final warning.
[10] Next the Commissioner referred to evidence relied upon by the respondents about persons who had been accused of drinking and infringing the policy but had been counselled or disciplined rather than had their employment terminated. He referred to evidence of the appellant about these matters. He said that there were, at least in the case of two employees and "perhaps" in the case of another "some reason to see that accusations about drinking resulted in penalties other than termination".
[11] The Commissioner said the written policy of the appellant at Chullora had not always been as clear-cut as it now was. He referred to policies that had applied from time to time in previous years. In particular he referred to a policy in force in July 2001 that cast a different light on drinking as it seemed to stress the issue of working unaffected by, or not under the influence of, alcohol. An infringement of that policy provided that employees would be subjected to "normal company discipline procedures". He said that at least up to May 2002 there were mixed signals about the policy and in particular the consequences of drinking during lunch breaks.
[12] The Commissioner relied on the evidence of three of the respondents who had said they did not think that if they had infringed the policy their employment would be terminated. They had thought they would be given a final warning or some lesser sanction than dismissal.
[13] The Commissioner noted that each of the respondents had substantial periods of service with the appellant.
[14] The Commissioner then said that balancing each of the s.170CG(3) considerations, while the appellant had a valid reason to dismiss each respondent and did so by a process which was fair, the termination was "nonetheless harsh for each of the employees in the context of their substantial years of service with no previous warnings in regard to matters such as these, and where they may have expected that they will receive, at most, a penalty of a final warning". He found the each of the terminations of employment was harsh.
[15] Next the Commissioner considered s.170CH(2) of the Act which provides for matters to which the Commission must have regard prior to making any order granting a remedy. There was no challenge in the grounds of appeal to the findings made by the Commissioner by reference to this sub-section and accordingly we need only record that the Commissioner was satisfied that he should make an order in relation to all four applications.
[16] Next the Commissioner referred to s.170CH(3) and said that it was appropriate that an order reinstating the four respondents to the positions they were employed in immediately before the termination should be made. By reference to s.170CH(4)(a) the Commissioner ordered continuity of employment in relation to each respondent. He then referred to s.170CH(4)(b). That section relates to orders the Commission may make in respect of remuneration lost by an employee because of termination of employment. The Commissioner declined to make any such order for any of the respondents.
[17] Finally the Commissioner added what he described as "additional comments". He said the respondents were now aware of the appellant's determination to rid itself of unsafe work practices. He said that he endorsed the appellant's determination to enforce its no drinking policy. He said that in the future, if employees subject to the policy were found to have breached it and had their services terminated, they might be advised to not waste "their time and effort making application" to the Commission.
[18] We turn now to the grounds of appeal argued before us. The first grounds of appeal relate to the provisions of s.170CA and in particular s.170CA(2) of the Act. That subsection is in the following terms:
"(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95."
[19] The appellant submitted that there were matters relevant to at least a "fair go" for the appellant which were not referred to by the Commissioner. We deal with these matters below.
Before we do so however we should note that there were many findings made by the Commissioner with which the appellant did not take issue. In fact it relied upon them to develop its grounds of appeal. In particular they are the findings about the reasonableness of the policy breached by the respondents and that it provided an adequate base to find a valid reason existed for the terminations. The appellant also relied upon the findings by the Commissioner as to the fairness of the investigation and termination process.
[20] It was first submitted that the Commissioner, in his reasons for decision, did not refer to evidence concerning several matters. Each of these were reproduced in paragraph 12 of the appellant's written outline of submissions and further developed by counsel before us. The first matters about which it is said the Commissioner failed to have regard generally relate to occupational health and safety. It is said that the obligations on employers and employees found in the Occupational Health and Safety Act 2000 (NSW) were not taken into account, nor was the increased risk of injury to employees or the property of employers when employees consume alcohol during working hours.
[21] We are not persuaded that this submission reflects any error in the Commissioner's decision. It was unnecessary for the Commission to refer to all the matters addressed in the evidence. He was obliged to consider the relevant provisions of the Act, some of which provide for matters to which he "must" have regard. As we have earlier observed, no point is taken by the appellant of the Commissioner's failure to have regard, as required by the statute, to the provisions of s.170CG(3)(a),(b) and (c). In relation to the issue of occupational health and safety we are not persuaded that the Commissioner disregarded that consideration. We note that in paragraph 7 he considered the fact the employees operated heavy machinery and forklifts. That was one of the reasons that led him to conclude that a valid reason existed for the terminations of employment.
[22] Next it is said that the Commissioner failed to have regard to the appellants' efforts to eliminate behaviour contrary to its no alcohol policy, previous breaches by the respondents of that policy and, the case of one respondent, false representations made by him to the appellant. We are not persuaded this ground of appeal reflects any error. The Commissioner referred in several parts of his decision to the appellants' efforts to eliminate the consumption of alcohol during working hours. He endorsed the appellants' actions. In relation to the issue of previous breaches, and in one case a warning, we have considered the evidence and are not persuaded more needed to be said by the Commissioner. He found that the actions of the respondents in the past had not resulted in any warnings; that was a finding reasonably open to him on the evidence.
[23] It was submitted that when applying the relevant provisions of the Act so as to ensure both the appellant and respondents of fair go all round the Commissioner failed to balance all of the relevant considerations and was overborne by one factor that is the length of service of each respondent. In this respect we note that the respondents' periods of service ranged from 23 to 30 years. It was submitted that length of service should not provide any justification in the circumstances of this case where the respondents had behaved in a serious and wilful way exposing themselves and fellow employees to potential injury. It was submitted the Commissioner failed to have regard or sufficient regard to the gravity of their misconduct.
[24] This ground in part returns to considerations already addressed by us. We think that it is an unfair criticism of the Commissioner's reasons for decision. A fair reading of those reasons reflect the fact the Commissioner took account of several factors, not only the length of service of each respondent. In this respect we refer to paragraphs 11 to 20 of his decision. The appropriateness of the policy, the manner in which it had been applied to employees from time to time, the respondents' belief that a breach would result in a penalty other than dismissal, and the fact that none of them had previously been warned, were also considered. Length of service was one factor only. The Commissioner's consideration of relevant factors was consistent with s.170CG(3)(e). Against that background, his discretionary decision that the terminations were harsh reflects no error of fact or law. We are also not persuaded that the Commissioner was, as is submitted by the appellant, so overborne by the length of service of the respondents that he failed to apply the relevant provisions of the Act consistent with s.170CA(2).
[25] Next it was submitted that the Commissioner took into account a number of irrelevant matters. Each of these is referred to at paragraph 13 of the appellants' written submissions. They relate to earlier versions of the policy, occasions when employees had breached it and the way in which those breaches were dealt with. We are not persuaded that these were irrelevant considerations. Previous occasions when employees had consumed alcohol during working hours or were said to have breached the policy in existence at the time were relevant. We are not persuaded that the reference to them reflects error or that the Commissioner placed undue weight on this aspect of the evidence. We accept the submission of the appellant that merely because in the past, another employee in breach of the policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh. We do not however read the Commissioner's decision as having gone that far. The evidence he referred to was part of setting the relevant background to the attempts by the appellant to eliminate the consumption of alcohol during working hours and the introduction, from time to time, of policies relating to that issue. There was some conflict in the evidence and the Commissioner made some findings about that conflict. That however, on our reading of his reasons, was not the principal point the Commissioner was making. We think it is in paragraphs 16 and 18 he summarises his point; the policy, and the way it was applied in the past, had sent "mixed signals".
[26] The next ground challenged the relevance of the Commissioner's reference to the evidence of three of the respondents that they believed a transgression of the policy would not give rise to the termination of their employment but rather a final warning or some lesser sanction than dismissal. On our reading of the decision, this was one only of several factors taken into account by the Commissioner. It reflects no appellable error. We understand the difficulty that a respondent might have in cross-examining a dismissed employee and suggesting that they could not reasonably have held that view but we doubt that this was a matter lost on the Commissioner. He heard the evidence of each respondent. He was entitled to form a view about their credibility when asserting what they believed would be the consequence of a breach of the policy.
[27] This appeal is made pursuant to s.45 of the Act. Both parties accept that the appeal was against a decision made by the Commissioner based on the exercise of his discretion. The appeal is against both the decision of the Commissioner finding the termination of employment of each respondent was harsh and the order reinstating each respondent in his former employment.
[28] Section 170JF(2) of the Act provides that:
"(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."
Section 170CE is in Subdivision B of Division 3 of the Act. However an appeal under s.45 lies only with the grant of leave by a Full Bench of the Commission.
[29] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 the High Court of Australia considered the provisions of s.45, appeals against decisions made in the exercise of a discretionary judgement and the types of errors which may lead a Full Bench to set aside a decision or order. At page 589 in the joint judgements of the Chief Justice and Justices Gaudron and Hayne it was said :
"[17] Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under subs (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45."
.....
"[21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
`If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ].' "
[30] When considering whether leave to appeal should be granted in this matter the approach we have applied is guided by two decisions of the Federal Court of Australia. These are Miller v Australian Industrial Relations Commission (2001) 104 IR 415 and Wan v Australian Industrial Relations Commission [2001] FCA 1803. Consistent with these two decisions, we have considered whether it is seriously arguable that the decision and orders of Commissioner Raffaelli were wrong or whether an arguable case of appellable error has been demonstrated.
[31] A Full Bench on appeal will only reconsider for itself a decision at first instance if appellable error is identified and if leave to appeal is granted. For the reasons given by us we are not persuaded an arguable case has been made out that the Commissioner was in error in the application of relevant provisions of the Act and in the exercise of his discretion in finding the dismissals were harsh and reinstating the respondents. An appeal is not an occasion for three members of the Commission to consider themselves individually or as a Full Bench what they might have done had they heard the case at first instance. Having said that however we should indicate that we endorse the comments made by the Commissioner in the final part of his reasons for decision. We have referred to these in paragraph 17.
[32] We are not persuaded that any of the grounds of appeal raise matters which, in the public interest or otherwise, warrant the grant of leave to appeal. The appeal is dismissed.
[33] The Stay Order issued on 14 March 2003 will be set aside.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
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