PR959835
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision PR957191
issued by Commissioner Whelan on 11 April 2005
J. Ashley
(C2005/2690)
s.170CE application for relief in respect of termination of employment
J. Ashley
and
Statewide Autistic Services Inc
(U2004/5593)
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT O’CALLAGHAN |
|
COMMISSIONER CRIBB |
MELBOURNE, 7 JULY 2005 |
Appeal – termination of employment – errors in decision at first instance – no valid reason for termination of employment – appeal upheld – reinstatement not appropriate – remitted to determine the amount in lieu of reinstatement.
DECISION
Introduction
[1] This decision concerns an appeal by Mr John Ashley (the Appellant) under s.45 of the Workplace Relations Act 1996 (the WR Act) against a decision issued by Commissioner Whelan on 11 April 2005.1 The decision subject to appeal arose out of an application for relief filed by Mr Ashley in respect of the termination of his employment. Mr Ashley was a former employee of the Respondent, Statewide Autistic Services Inc (SASI).
[2] In the decision subject to appeal the Commissioner found that the termination of Mr Ashley’s employment was not “harsh, unjust or unreasonable” and dismissed the application for relief.
Background facts
[3] In 1996 Mr Ashley commenced working with Melbourne Specialized Support Agency (MSSA). MSSA is essentially an employment agency that places workers in a wide range of positions connected with welfare and disability work. During the course of his employment Mr Ashley performed work in a range of establishments, including a fourteen-month placement with Menzies Home for Children located in Frankston.
[4] By letter dated 18 June 1997 Ms Anna Fleming, Manager of MSSA, informed Mr Ashley that the Department of Human Services (DHS) had raised “significant practise issues” concerning his care of an Andrew Johnson, a registered autistic child client of DHS. It was alleged that on two occasions, witnessed by different people, Mr Ashley was seen on Andrew’s bed kissing and cuddling him. The letter is in the following terms:
“MSSA has received correspondence from the Manager of Specialist Services, Department of Human Services, Eastern Metropolitan Region raising significant practise issues to which they have been alerted concerning yourself.
The issues relate to the Johnson family, specifically with Master Andrew Johnson a registered client of the Department.
Issues of concern that have been brought to the Departments attention include:
Allegations that on two occasions, witnessed by different people, you were seen to lie on Andrew’s bed kissing and cuddling him.
Not meeting agreed times. That is, arriving home either early or late from organised activities when this had been clearly indicated as unacceptable because of work being undertaken with Andrew’s older brother who also has autism.
Taking Andrew to venues other than those arranged in the timetable without notifying the family.
Completing personal errands while being in charge of Andrew and supposedly undertaking set programs.
On one occasion being over two hours late in returning Andrew home, and whilst this was allegedly because of a flat tyre, the worker had acknowledged that he had gone to assist his own son who had car trouble and had made no attempt to inform Andrew’s family of his whereabouts.
Picking Andrew up from school on a number of occasions before the school day was over.
The Department considers these behaviours to be unprofessional and of serious concern.
Mr Roach the Manager of Specialist Services has discussed this matter with the Departments’ Legislation and Legal Unit and request that when the Department utilises MSSA services that you not be employed to work with any of the departments clients at this time.
MSSA has also sought advise with the department regarding their funded services.
Yooralla has been informed by Mr Roach of the departments decision and of this date we are awaiting further advise from Ms Marsha Sheridan regarding the status of your work with Mr Daniel Mitchell who is a registered client with the Department.
You will be notified and contacted accordingly.”2
[5] In a letter dated 24 June 19973 Mr Ashley provided a detailed response to the matters raised in the letter of 18 June 1997. He also made numerous attempts to address the allegations made against him. We deal with this issue in more detail later.
[6] From 2001 Mr Ashley was employed by SASI as a casual employee, and then from 31 January 2003 as a permanent part-time employee engaged for 30 hours per week. SASI is a non-profit organisation funded principally by DHS to provide a range of services to persons with Autism Spectrum Disorders. At the time of the termination of his employment Mr Ashley was working as an instructor in the Beachlynn Adult Training Support Service, which is a program run by SASI.
[7] In October 2003 Ms Curtis, the CEO of SASI, received a call from a senior manager within the Department (Ms Spencer) advising that the Department had received a call from a member of the public who had seen Mr Ashley with a group of autistic children in a park in Geelong. The person queried why the Appellant was working with autistic children, as he had been banned from working with DHS clients (Mr Ashley denied ever being in a park in Geelong with autistic children but conceded that he had been to the Fairy Park at Anakie with such a group).
[8] Ms Curtis told Ms Spencer that she was not aware of any “ban” on Mr Ashley working with DHS clients. Ms Spencer informed her that a letter had been sent to Mr Ashley’s former employer stating that a “ban” had been placed on Mr Ashley working with DHS clients. Ms Curtis followed the matter up with Ms Spencer but was unable to obtain any further details. On that basis she determined that she was unable to take the matter further but did take the precautionary measure of ensuring that Mr Ashley was accompanied by another SASI staff member when he was working with DHS-funded clients.
[9] In February 2004 SASI received a call from a person who did not give their name, stating that Mr Ashley was not to be trusted and should not be working with disabled children. As the caller was not willing to identify themself Ms Curtis felt that she could not take the matter further.
[10] In April 2004 Ms Curtis received a call from an employee of another agency in which serious allegations about Mr Ashley were raised. After that phone call Ms Curtis again called Ms Spencer and asked if she had been able to locate the letter DHS had sent to Mr Ashley’s previous employer. Ms Spencer said that she had not located the letter.
[11] On 2 July 2004 Ms Spencer contacted Ms Curtis and suggested that she contact the police to see if they had issued an alert in respect of Mr Ashley. Ms Curtis did not think that they would provide her with this information but telephoned them as suggested. The police told her that they could only release information with the permission of the person concerned or if requested to do so by DHS.
[12] Ms Curtis telephoned Ms Spencer and advised her of the content of her conversation with the police.
[13] On 6 July 2004, Ms Curtis contacted MSSA as she had received advice that Mr Ashley had worked for them. Mr Ashley does not refer to MSSA in the CV he provided to SASI although it appears that the casual jobs in which he was engaged between 1996 and 2001 were obtained through that agency. Mr Ashley said that he told the SASI employee who interviewed him in 2001 that he had been working through MSSA.
[14] MSSA told Ms Curtis that Mr Ashley had worked for them and that they had received a letter from DHS concerning a restriction on Mr Ashley’s employment. They would not provide Ms Curtis with a copy of the letter but suggested that if DHS made such a request they would provide the letter to DHS. Ms Curtis rang Ms Spencer and requested that she obtain a copy of the letter from MSSA.
[15] On 7 July 2004 Ms Curtis telephoned Ms Spencer. Ms Spencer had a copy of the letter from DHS to MSSA. Ms Spencer informed Ms Curtis of the issues raised by the Department with MSSA concerning Mr Ashley’s behaviour and practices. She told Ms Curtis that there had been restrictions placed on Mr Ashley working with DHS-funded clients.
[16] On 9 July 2004 Mr Ashley was called to a meeting with Ms Curtis, Mr O’Shea and Mr Foley. Mr O’Shea is the SASI Administrator and Mr Foley is the program manager at Beachlynn. Mr Ashley was given a letter at the meeting notifying him that he was being stood down on full pay pending a meeting to be held on 13 July 2004. The letter referred to the fact that Mr Ashley was restricted from “working with any agency or organisation funded by the Department” and his failure to disclose this to SASI at the time of his employment.
[17] There is some dispute about what was said during the course of this meeting. The only person who apparently took notes of the discussion was Ms Curtis. Ms Curtis gave evidence that:
[18] Mr Ashley’s evidence was that when he referred in the meeting to a letter he was referring to a letter to himself from MSSA. In relation to the letter from DHS to MSSA Mr Ashley assumed that such a letter existed but had not seen it. He was told by Ms Flemming that the letter was from Mr Roach. He believed the issues only related to one family. He had written to Mr Roach and spoken to him about the matter raised but had been told that the matter was between himself and MSSA.
[19] Mr Foley is the Program Manager of Beachlyn Adult Education Training and Support Services. He was also present at the meeting, but did not take notes. In his evidence he said that during the meeting Mr Ashley had referred to two letters. Mr Foley was aware that DHS had written to MSSA about Mr Ashley and that MSSA had written to Mr Ashley.4 According to Mr Foley, Mr Ashley said “he had them at home”. Mr Foley later said he was not sure if Mr Ashley said “a letter or a couple of letters”. He just knew they were talking about a letter pertaining to an incident or incidents that might effect Mr Ashley’s employment in the future.
[20] Mr O’Shea, the SASI Administrator, was also present at the meeting and did not take notes. He thought that the discussion was about one letter, which SASI believed contained a general restriction on Mr Ashley’s employment. Mr Ashley responded saying that it was a specific restriction on working with one particular family and that he had discussed the content of the letter with the owner of MSSA, Ms Flemming, and had attempted to discuss it with Mr Roach from DHS.
[21] Mr Ashley was asked if he had a copy of the letter and he said that it was on his home file. Ms Curtis asked Mr Ashley to bring in a copy of the letter as that would help clear up any misunderstandings. Mr O’Shea understood Mr Ashley was going to provide a copy of the letter from DHS to MSSA.
[22] Following the meeting, Mr Ashley contacted Mr Bunn, an organiser with the Australian Education Union. The meeting originally scheduled for 13 July 2004 was postponed to 20 July 2004.
[23] On 20 July 2004, Ms Curtis, Mr O’Shea, Mr Foley and Ms Robinson of the Victorian Hospitals’ Industrial Association met with Mr Ashley and Mr Bunn. Ms Curtis referred to the letter of 8 July 2004. Mr Ashley responded by referring to the circumstances that gave rise to the allegations made to DHS and referred by them to MSSA.
[24] Mr Ashley stated that he had discussed the issues with Ms Flemming from MSSA and he was not to work with that family. Mr Ashley was asked why he had not referred to the DHS restriction when he started working with SASI. He responded that he had informed Ms Maynard, who interviewed him, that he had worked for MSSA and reiterated that the restriction only had to do with one family. Ms Curtis then asked Mr Ashley if he would produce the DHS letter. She also referred to the anonymous call she had received in February 2004.
[25] Mr Bunn called for a break in the meeting. After they returned, Mr Ashley said he was not able to produce the letter from DHS to MSSA.
[26] In late July 2004 Ms Curtis telephoned Ms Spencer. She informed Ms Spencer that Mr Ashley was still working with SASI and discussed the allegations made against him. Ms Spencer told Ms Curtis that the allegations were still of concern to the Department. Ms Curtis stated that from the conversation she gained the inference that SASI’s funding might be threatened by the ongoing employment of Mr Ashley.
[27] On 2 August 2004 there was a further meeting involving Ms Curtis, Ms Robinson, Mr Foley and Mr Bunn. Mr Bunn informed the meeting that he had contacted Ms Spencer who would neither confirm nor deny the existence of a “ban” on Mr Ashley’s employment. After a break Ms Robinson informed Mr Ashley that SASI had information from DHS on which it had to act unless there was evidence to the contrary.
[28] By letter dated 2 August 2004, the Chief Executive of SASI terminated Mr Ashley’s employment in the following terms:
“We refer to the information that has come to the attention of management concerning your restriction from working with clients funded by the Department of Human Services (“the Department”).
As you are aware, this information was detailed to you in writing as of 8 July, 2004, and you were given an opportunity to discuss and respond to this allegation at a meeting held with you and your representative, as of 20 July, 2004.
As a result of our investigation into this matter and after careful consideration of your responses, we have found that your responses are unsatisfactory.
As discussed at our meeting this day with you and your representative, we have decided that we are unable to continue your employment with the Service. This is due to the fact that the clients at the Service are funded by the Department, and you are restricted from working with clients funded by the Department.
As such, we wish to advise that your employment with the Service concludes effective as of 2 August, 2004.
Please find attached a cheque for the amount of $3,300.34 … which includes five (5) weeks payment in lieu of notice together with outstanding leave entitlements.”5
[29] The principal findings in the decision at first instance in relation to whether the termination of Mr Ashley’s employment was “harsh, unjust or unreasonable,” are set out below by reference to each of the matters referred to in ss 170CG(3)(a) to (e) of the WR Act.
Valid reason
[30] The Commissioner found that there was a “valid reason” for the termination of Mr Ashley’s employment, within the meaning of s.170CG(3)(a). The subsidiary findings upon which the Commissioner’s conclusion is based are set out later in this decision.
Notification of reason and opportunity to respond
[31] Section 170CG(3)(b) requires the Commission to have regard to “whether the employee was notified of that reason”. The reference to “that reason” is a reference to the “valid reason” for the employee’s termination.6
[32] Section 170CG(3)(c) provides that the Commission must have regard to “whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee”. The “opportunity to respond” referred to in s.170CG(3)(c) is a reference to any such opportunity which is provided before a decision is taken to terminate the employee’s employment.7
[33] In relation to these matters the Commissioner said:
“[60] I am satisfied that there was a valid reason for the termination. Further, I am satisfied that in the discussions on 9 July, 20 July and 2 August 2004, Mr Ashley was given the opportunity to explain what had happened in 1997 and to assure SASI that there were no reasons for that Agency or the Department to have any concerns about him. He did not make the best of that opportunity.”8
Sections 170CG(3)(da) and (db)
[34] In respect of these matters the Commissioner said:
“[61] SASI does not have dedicated human resource personnel but did take advice from an organisation which assisted in the final stages of the process. Mr Ashley was also able to seek assistance from his union.”9
Other matters
[35] Section 170CG(3)(e) provides that in determining whether a termination was “harsh, unjust or unreasonable” the Commission must have regard to “any other matters that the Commission considers relevant”.
[36] The Commissioner dealt with a number of “other matters” in the following terms:
“[62] It was suggested that a reason for the termination related to Mr Ashley’s activity as a union representative and occupational health and safety delegate. On the evidence there is nothing to suggest this.
[63] It was further suggested that the termination was harsh because of Mr Ashley’s contribution to the organisation which was over and above that of other employees. Mr Ashley was involved in program development for the Beachlynn Centre. This was part of his role as an instructor. He did initiate a new program - the radio program. He was also involved in putting proposals to SASI for fundraising activities. From my reading of the material these involved at least a level of ownership by “Foundations for Family Life”, described as a service trust set up by Mr Ashley.
[64] I am not satisfied that these activities should be given undue weight in determining if the termination was harsh, unjust or unreasonable.”10
Conclusion
[37] The Commissioner concluded in the following terms:
“[65] Taking into account that material and all of the circumstances of the case I am not satisfied that the termination of Mr Ashley’s employment was harsh, unjust or unreasonable.
[66] The application is therefore dismissed.”11
Nature of the appeal
[38] The nature of an appeal under s.45 of the WR Act was the subject of consideration by the High Court of Australia most recently in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission12 (Coal and Allied). In that matter Gleeson CJ, Gaudron and Hayne JJ, in a joint judgment, said:
“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 sub-s (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.” 13
[39] In relation to appeals against orders made under Subdivision B of Division 3 of Part VIA of the WR Act, the requirement for error as a precondition to the exercise of the powers to quash or vary the decision under appeal is reinforced by the terms of s.170JF(2). That section reads:
“(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.”
[40] An error in the context of s.170JF(1) may be an error of fact or an error of law.14
[41] The appeal is against a decision dismissing an application for relief in relation to termination of employment brought pursuant to s.170CE(1)(a). In considering applications made pursuant to s.170CE(1)(a) the Commission is required to ensure that “a fair go all round” is accorded to both the employer and the employee concerned (s.170CA(1)). The Commission is also required to have regard to a number of matters specified in s.170CG(3). That section reads:
“(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant.”
[42] It is clear from these provisions that the decision-making process in an application pursuant to s.170CE(1)(a) is one in which no single consideration and no combination of considerations is necessarily determinative of the result. It is appropriate therefore to describe a decision that a termination of employment is or is not harsh, unjust or unreasonable as a discretionary decision.15
[43] The types of error that may constitute grounds for review of a discretionary decision of the kind under consideration here were re-stated in Coal and Allied in the following way:
“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].’ ”16
[44] We note that in the context of this appeal one of the grounds advanced by the Appellant – the alleged denial of procedural fairness – is jurisdictional rather than discretionary in nature.
[45] We applied these principles to the matter before us. We now turn to deal with the arguments raised on appeal.
Submissions on appeal
[46] For reasons that will become apparent, it is unnecessary for us to deal with all of the grounds of appeal advanced by the Appellant. It is only necessary that we deal with the proposition that the Commissioner erred in concluding that there was a valid reason for the termination of Mr Ashley’s employment.
[47] In respect of that issue the Appellant submits that the evidence overwhelmingly supports a finding that the “ban” that had been placed on Mr Ashley in the letter of 18 June 1997 was no longer in place at the time his employment was terminated. It is submitted that the Commissioner “largely ignored this evidence”. On this basis it is argued that the Commissioner was wrong in finding that there was a valid reason for the termination of Mr Ashley’s employment.
[48] In reply the Respondent contends that the Commissioner was correct in finding that there was nothing produced to show that DHS had withdrawn its “request” to MSSA that it not utilise Mr Ashley’s services in respect of DHS clients. The Respondent relied on the fact that the Commissioner had questioned Ms Curtis as to whether Ms Spencer had ever said to her that the “ban” no longer applied or had been lifted and Ms Curtis had said no in response.17 On the basis of this evidence, and Ms Curtis’ evidence that DHS still had concerns about Mr Ashley working with clients funded by DHS, the Respondent submits that the Commissioner was correct in finding that there was a continuing “ban” in respect of Mr Ashley.
[49] In this context the Respondent submitted that Ms Curtis was entitled to rely on information she had received from Ms Spencer. Three points are made in support of this contention:
[50] The Respondent also submitted that the Commissioner was aware of the task she had to perform in striking a balance between the Respondent’s duty of care to its clients, and the need to be fair and afford natural justice to its employees. In this case it is submitted that the Respondent:
[51] It is argued that the Appellant failed to use these opportunities to clear himself of ongoing concerns by DHS.
[52] We now turn to our consideration of the arguments advanced.
[53] Section 170CG(3)(a) provides that in determining whether a termination was “harsh, unjust or unreasonable” the Commission must have regard to “whether there was a valid reason for the termination relating to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service.”
[54] Consistent with the approach taken in a number of cases, a “valid reason” for termination is a reason that is “sound, defensible or well founded”21.
[55] In this matter the Commissioner found that there was a valid reason for the termination of Mr Ashley’s employment. The Commissioner’s conclusion in this regard was based on the following findings:
1. In the Commissioner’s view Ms Curtis was placed in an invidious position. The Department told her there was a ban but were unable to provide her with written confirmation of the circumstances. Even after Ms Spencer of DHS obtained a copy of the letter from MSSA she did not give it to Ms Curtis. MSSA would not provide a copy of the letter to Ms Curtis, although they were prepared to give it to the Department. The police would only provide her with information if Mr Ashley agreed. Mr Ashley told her that he had a letter about the allegations and the restriction but would not give it to her. In these circumstances the Commissioner concluded that SASI did what they could to investigate the issue.
2. Ms Curtis had received a phone call from Ms Spencer in October 2003 raising the issue of the “ban”; an anonymous call in February 2004, making allegations about Mr Ashley’s unsuitability to be caring for children; and a further call in April 2004 from another agency raising allegations concerning Mr Ashley’s behaviour involving a young person. The Commissioner found that Ms Curtis could not ignore these matters having regard to:
3. The Commissioner accepted Ms Curtis’ evidence that:
4. Mr Ashley’s failure to produce the 18 June 1997 letter from MSSA “which he knew dealt directly with the issue (and which further contradicted his assertion that the restriction on him related to one family only) entitled SASI … to conclude that he was not willing to co-operate in any attempt to clear the matter up.”22
5. The Commissioner was satisfied that Ms Curtis was entitled to rely on the information she had received from Ms Spencer, and the fact that Ms Spencer expressed a current concern about Mr Ashley, to assume that DHS’s preference was for Mr Ashley not to work with clients funded by them. In this context the Commissioner noted that Mr Ashley had not given Ms Curtis “the ammunition” to put to DHS that the matter of concern raised by them in 1997 had been dealt with and there was no need for any ongoing concern about him.23
6. The fact that MSSA had placed Mr Ashley with DHS-funded clients after the 18 June 1997 letter “may merely indicate that MSSA did not share the Department’s concerns about Mr Ashley. It may indicate that one part of the Department did not know what another part was doing, as suggested by Mr O’Shea [the administrator of SASI].”24
[56] We agree with the Commissioner’s observation (at paragraph 47 of the decision subject to appeal) that this matter raises important issues concerning the difficult balance that an employer engaged in providing services to vulnerable young people must face when confronted with the duty of care to those clients and the need to be fair to their employees. The balancing exercise in this case has been made more difficult by the role played by DHS.
[57] In order to determine whether it was reasonably open for the Commissioner to conclude that there was a valid reason for the termination of Mr Ashley’s employment it is necessary to consider the evidence and in particular the issue of whether or not DHS had a “ban” on Mr Ashley working with DHS clients.
[58] As we have noted, Mr Ashley’s previous employer (MSSA) informed him by letter dated 18 June 1997 that DHS had raised “significant practise issues” concerning his care of a registered autistic child client of the Department. Specifically, it was alleged that on two occasions (witnessed by different people) Mr Ashley was seen to be on the bed of a child in his care kissing and cuddling him (see paragraph 4 of this decision).
[59] The DHS’s letter to MSSA was marked as an exhibit in the proceedings at first instance.25 In that letter Mr Garry Roach, the DHS’s Manager, Specialist Services, sets out the issue of concern and concludes as follows:
“The Department considers these behaviours to be unprofessional and of serious concern.
I have discussed this matter with our Legislation and Legal Unit and request that when the Department utilises [MSSA] service that Mr Ashley not be employed to work with our clients at this time.”
[60] A number of things may be said about this correspondence. The first is that the use of the words “at this time” suggests that the Department’s “request” that Mr Ashley not work with DHS clients was not intended to be permanent. We note that in her evidence Ms Curtis agreed that the reference to “at this time” contemplated that the restriction would not continue indefinitely26.
[61] The second observation is that the use of the word “request” seems curious. It would have presumably been open to DHS to direct MSSA not to use Mr Ashley’s services in relation to DHS clients, but they chose not to do so.
[62] But the most important point to make is that DHS’s actions were taken apparently without any attempt to provide Mr Ashley with an opportunity to respond to the allegations made against him. Indeed, Mr Ashley’s attempts to respond to the allegations were rebuffed by DHS. Mr Ashley wrote to DHS requesting a round table meeting with all of the concerned parties to address the issues raised in the Department’s correspondence27 and Mr Roach responded, on 16 July 1997, in the following terms:
“In regard to your letter of 7 July, the Department raised a number of practice issues with your employer, Melbourne Specialised Support Agency (MSSA).
It was requested that MSSA address these issues with you.
Information you wish to provide in this matter should be taken up with your employer.”28
[63] Not only did Mr Ashley write to the Department, but he also contacted Mr Roach directly. Mr Ashley’s unchallenged evidence was:
“I still wanted to clear my name completely and on numerous occasions I rang Mr Roach seeking a round table conference to discuss these matters. I spoke to him on two occasions and he said he understood my concerns but that it was nothing to do with the Department but was between my employer and myself.”29
[64] The DHS’s approach to this matter is plainly unsatisfactory and manifestly unfair to Mr Ashley. It is no answer to Mr Ashley’s concerns to say that he should take them up with his supervisor. The complaints about Mr Ashley were made to DHS, not to his employer. Indeed there is nothing to suggest that MSSA even knew the identity of the complainants. In our view it was a matter for the Department to properly investigate those complaints and, in so doing, to provide Mr Ashley with an opportunity to put his side of the story. The Department officers concerned failed to do any such thing, but rather contented themselves with a “request” that Mr Ashley not work with DHS clients “at this time”.
[65] There is no evidence to suggest that DHS made any effort at all to investigate the complaints made about Mr Ashley. The DHS officers concerned seem to have proceeded on the basis that the substance of the complaints was accurate and they did so without giving Mr Ashley any opportunity to put his position. The unfairness of such an approach is manifest. By their conduct it would appear that the DHS officers concerned were more interested in avoiding any legal responsibility in the matter, and in simply shifting the burden to MSSA, than in properly investigating the substance of the complaints made.
[66] Even on the limited material before us there is reason to doubt the veracity of the complaints made. The complaints referred to in the letter were made at least ten months after the incidents to which they refer are said to have taken place. The unexplained failure of those who witnessed these alleged incidents to make a contemporaneous complaint casts some doubt on their veracity.
[67] In concluding that there was a valid reason for the termination of Mr Ashley’s employment the Commissioner proceeds on the assumption that the “ban” imposed in DHS’s letter of 18 June 1997 was still in place. In our view, such an assumption was erroneous.
[68] Ms Curtis’ evidence about what she was told by Ms Spencer concerning any restriction on Mr Ashley is set out at paragraph 15 of Exhibit R2 of the proceedings below:
“On 7 July 2004, I phoned [Ms Spencer] to ascertain whether she had the DHS letter that had been sent in relation to [Mr Ashley]. She said she had a copy of the letter and proceeded to tell me the contents of the letter. In broad terms she told me there had been a restriction placed on [Mr Ashley] working with DHS clients. This restriction was due to practice related issues concerning [Mr Ashley’s] interaction with DHS clients.” [emphasis added]
[69] Ms Curtis was cross-examined about this paragraph and her attention was drawn to the distinction between a “ban” that was still in place and one that had been in place:
“Mr Staindl: Now, you say in paragraph 15 that when you spoke to Karen Spencer, she told you:
‘In broad terms she told me there had been a restriction placed on John working with DHS clients’.
Is that the language that she used?
Ms Curtis: She said there had been restrictions place [sic] on John working with DHS funded clients.
Mr Staindl: Let me just repeat that:
‘There had been restrictions placed on John working with DHS clients’.
Ms Curtis: That is correct.
Mr Staindl: That is correct? That is what she told you?
Ms Curtis: That is what she said.
Mr Staindl: That is the words she used?
Ms Curtis: I believe so.
Mr Staindl: She didn’t tell you there are restrictions on John working with DHS clients, did she?
Ms Curtis: No, she said there had been restrictions.”30
[70] Later in Ms Curtis’ cross-examination the following exchange takes place:
“Mr Staindl: But Ms Spencer did not say to you Mr Ashley is not allowed to work with DHS clients, did she?
Ms Curtis: She had a ban had been placed.
Mr Staindl: Yes, she did not say there is a ban on Mr Ashley, did she?
Ms Curtis: No, she said a ban had been placed.
Mr Staindl: Yes, and that ban was in 1997, wasn’t it?
Ms Curtis: Apparently so. I didn’t know the year of that then.
Mr Staindl: And since then, you knew that Mr Ashley had worked in apparent breach of any ban?
Ms Curtis: Correct.”31
“Mr Staindl: Now, tell me the precise words Ms Spencer used, if you can?
Ms Curtis: I can’t.
Mr Staindl: Can you tell me – well, you say that Ms Spencer said the allegations were still of concern, is that right?
Ms Curtis: I asked her if the allegations were still of concern and she said, yes, the allegations were still of concern.
Mr Staindl: Did you ask her is there a ban on the employment of Mr Ashley?
Ms Curtis: No, no, I didn’t use those words.
Mr Staindl: Did she say – or words to that effect?
Ms Curtis: No.
Mr Staindl: Did she say there was a ban in respect to the employment of Mr Ashley or words to that effect?
Ms Curtis: She had said, yes, that there was allegations about concern around his work practice issues.
Mr Staindl: There were allegations of concerns about his work practice issues?
Ms Curtis: Correct.
Mr Staindl: That picks up the language of the 1997 letter, doesn’t it?
Ms Curtis: Correct.
Mr Staindl: Did she say there is, not there had been, did she say there is a ban?
Ms Curtis: No, she didn’t.”32
[71] The evidence in relation to DHS’s attitude comes only in an indirect manner from Ms Curtis and is based on inference.33 In our view this is not sufficient to provide a valid reason for the termination of Mr Ashley’s employment.
[72] The highest that Ms Curtis was able to put it was that she had inferred that if Mr Ashley were employed by SASI then SASI’s funding would be at risk. The following exchange occurred in cross-examination:
“Mr Staindl: Yes, and Ms Spencer certainly didn’t ask that you prevent Mr Ashley from working with Department funded clients?
Ms Curtis: She inferred that if he was employed by us, that our funding could be at risk.
Mr Staindl: I see?
Ms Curtis: And I actually asked her what the restriction, what the letters stated. She wouldn’t tell me and I said unless I knew what the allegations were, I didn’t believe I could act on them.
Mr Staindl: So she inferred that your funding might be at risk?
Ms Curtis: Correct.
Mr Staindl: What did she say for you to make that inference?
Ms Curtis: I can’t remember her exact words, but her words were something to you as an organisation have to follow policies and procedures and correct guidelines through the Department.” 34
[73] Ms Curtis then gives evidence of a further conversation with Ms Spencer that occurred in about July 2004:
“Mr Staindl: Did she say to you that SASI will lose its funding or some of its funding if it employs Mr Ashley?
Ms Curtis: The inference was that we would.
Mr Staindl: Did she say anything to that effect?
Ms Curtis: She didn’t use those words, no.
Mr Staindl: When you say the inference, what specifically did she say for you to draw that inference?
Ms Curtis: The inference was that we needed to follow Department guidelines around employing and I went through the fact that he had had a police check and we had done all of those things.
Mr Staindl: You need to follow Department employment guidelines?
Ms Curtis: Yes.
Mr Staindl: As far as you were concerned, you had, hadn’t you?
Ms Curtis: That is what I said to her.” 35
[74] This telephone call was the only advice received by Ms Curtis to the effect that Mr Ashley should not work with DHS funded clients.36 In our view an “inference” that SASI needed to follow Department guidelines is simply not good enough.
[75] The evidence shows that Ms Curtis was not told that there was a continuing “ban” in place. All she was told was that in the past there had been a “ban” on Mr Ashley’s employment in relation to DHS-funded clients. On this basis we have concluded that the Commissioner erred in finding, at paragraph 52 of her decision, that:
“In my view Ms Curtis was placed in an invidious position. The Department told her there was a ‘ban’ but were unable to provide her with written confirmation of the circumstances.”
[76] Further, at paragraph 49 of the decision subject to appeal the Commissioner refers to the letter from DHS to MSSA in which DHS raises its concerns about Mr Ashley. She then says:
“It is not clear what occurred after that time. Nothing was produced to show that the Department had withdrawn this ‘request’. MSSA did however place Mr Ashley after that time with other DHS-funded clients.”37
[77] In our view the Commissioner erred in finding that nothing was produced to show that the Department had withdrawn its request that Mr Ashley not work with DHS clients.
[78] While we accept that there is no evidence that the Department explicitly withdrew its request, we think that such a conclusion is the appropriate inference to be drawn from the evidence.
[79] On the second occasion that Mr Ashley spoke to Mr Roach, Mr Ashley told him that he was still working with DHS-funded clients and was working directly for the Department. He was told by Mr Roach that it was in the hands of his supervisor and that if there was anything further then he would be contacted by the Department.38 Given that the “request” in the letter of 18 June 1997 was qualified by the words “at this time” it is reasonable to conclude that from the time of this discussion there was no “ban” in place in respect of Mr Ashley. In addition to Mr Ashley’s unchallenged evidence in respect of his discussion with Mr Roach the documentary evidence supports a finding that Mr Ashley had continued to work for both DHS directly and in respect of DHS-funded clients following his discussion with Mr Roach. In particular:
[80] In light of the evidence concerning Mr Ashley’s work both with DHS and with DHS’s clients after June 1997 the Commissioner was wrong to conclude that nothing was produced to show that DHS had withdrawn the request. The author of the letter of 18 June 1997, Mr Roach, was himself aware that Mr Ashley was working with DHS-funded clients.
[81] We also note that at paragraph 58 of her decision the Commissioner refers to Mr Ashley working directly for the DHS after the June 1997 letter, saying:
“It may indicate that one part of the Department did not know what another part was doing, as suggested by Mr O’Shea.”
[82] At paragraph 12 of his statement Mr O’Shea says:
“… it is possible in my experience as a former Director of Disability Services, for a region not to be aware of restrictions placed on new employees from other regions within the DHS. It is possible to have someone with a restriction in one region being employed in another region.”42
[83] It is important to appreciate that the possibility to which Mr O’Shea alludes is not what happened in this case. This was not a case where one region imposed a ban on Mr Ashley and despite that ban Mr Ashley was able to work with DHS clients in another region. Here the evidence is that Mr Ashley worked directly for DHS in the very region that had imposed the restriction on him. During cross-examination Mr O’Shea was asked about the communication of restrictions within a region and he said: “I expect that if there was a restriction it would be at least communicated within that region.” He also expected that the restriction would be enforced within that region.43
[84] In our view the Commissioner’s observation at paragraph 58 of her decision is erroneous in light of the evidence concerning Mr Roach’s knowledge, and that Mr Ashley worked directly for DHS in the region that had imposed the restriction on him. The Commissioner misconstrued Mr O’Shea’s evidence in this regard.
[85] In our view the evidence should have led the Commissioner to conclude that although there had been a temporary “ban” placed on Mr Ashley in 1997 that “ban” was no longer in existence at the time Mr Ashley’s employment was terminated.
[86] We earlier set out the findings upon which the Commissioner based her conclusion that there had been a valid reason for the termination of Mr Ashley’s employment (see paragraph 55 of this decision). Two of these findings are erroneous. In these circumstances we have concluded that it is seriously arguable that the Commissioner fell into error in concluding that there was a valid reason for the termination. Accordingly we grant leave to appeal and now proceed to consider, for ourselves, whether there was a valid reason for the termination of Mr Ashley’s employment.
[87] We commence by noting that in the letter of 2 August 2004 the Respondent identified two reasons for terminating Mr Ashley’s employment. The first was that “the clients at the Service are funded by the Department and you are restricted from working with clients funded by the Department.”44
[88] As we have already observed, the evidence does not support a finding that there was a “ban” on Mr Ashley working with DHS clients at the time his employment was terminated. But even if we were wrong about that, the mere existence of such a ban would not, of itself, be sufficient. In our view there must be some rational basis for the imposition of such a ban in the first place. The only evidence we have to support the imposition of the “ban” is the fact that in 1997 – and some ten months after the alleged incidents took place – two persons filed complaints with the Department alleging that Mr Ashley acted improperly in the course of caring for a registered autistic child client of DHS. There is no evidence to suggest that the allegations were ever properly investigated, let alone substantiated. Nor was Mr Ashley provided with an opportunity to confront his accusers and respond to the allegations against him. The unfairness here is manifest. It cannot simply be assumed that all complaints are factually correct and that the complainants have acted in good faith. Not all complainants are motivated solely by a desire to protect the vulnerable. For instance, in this case Mr Ashley said that he believed one of the later phone calls to SASI might have come from a woman with whom he had “an involvement” during the previous four years.45
[89] We accept that a DHS officer (Ms Spencer) told the Respondent (Ms Curtis) that the Department had “concerns” about “allegations” involving Mr Ashley’s work with DHS clients. But in our view that is insufficient to provide a valid reason for the termination of Mr Ashley’s employment. We agree with the Appellant’s submission that as a matter of principle the Commission should carefully scrutinise the role of a third party where their involvement brings about the end of an employment relationship.
[90] To allow an employer to dismiss an employee simply at the instigation of a third party invites abuse. For instance, an employer would not have a valid reason for terminating the employment of an employee simply because two people have made complaints about the employee’s conduct; a point properly conceded by Mr McKeown, counsel for the Respondent.46 More is required. Fairness demands that the complaints should be investigated to ascertain if they are of substance and the employee should be given an opportunity to put their side of the story. The dictates of fairness do not change simply because the complaints are made to a third party and then passed on to the employer.
[91] The second reason given by the Respondent for terminating Mr Ashley’s employment was that the responses given by Mr Ashley during the investigation were “unsatisfactory”. In particular the Respondent argues that Mr Ashley’s failure to produce the 18 June 1997 letter at meetings held on 20 July 2004 and 2 August 2004 entitled the Respondent to conclude that the Applicant was not willing to cooperate in any attempt to clear up the matter of the 1997 allegations. In this regard the Respondent submitted that:
“62. The fact that the Applicant conceded he had in his possession the letter detailing the allegations made against him by the Department and he chose not to produce it when requested to do so by the Respondent, contradicts his evidence that he believed, after speaking with Mr. Gary Roach of the Department that the matter had been resolved. If that was the true position, it begs the question as to why the Applicant did not co-operate with the Respondent’s investigation. His evidence is also contradicted by the fact he failed to refer to his service with MSSA in his C.V. submitted to the Respondent when he applied for a position with the Respondent.”47
[92] Earlier we have set out the evidence in relation to what was said at the meeting on 9 July 2004. There is considerable confusion about who said what at this meeting. It is clear that there were two letters that made reference to allegations about Mr Ashley. One was from MSSA to Mr Ashley48 and the other was from DHS to MSSA49. We accept Mr Ashley’s evidence that he had never seen the letter from DHS to MSSA and did not have a copy of that letter. Further, at the 9 July 2004 meeting when Mr Ashley said he would provide a copy of “the letter” we accept that he was referring to the letter sent to him from MSSA.
[93] A misunderstanding arose between Ms Curtis and Mr Ashley as to what letter he had in his possession. The issue became more complicated when, at the meeting on 20 July 2004, Mr Ashley said that he didn’t have a copy of the letter that Ms Curtis was seeking, that is the letter from DHS to MSSA. This statement appeared to conflict with what Mr Ashley had said at the 9 July 2004 meeting. But in fact it did not – Mr Ashley and Ms Curtis were referring to two different letters.
[94] In any event it is clear that Mr Ashley had a copy of the letter sent to him from MSSA and that he refused to provide it to Ms Curtis. In doing so Mr Ashley was acting on the advice of his union representative, Mr Bunn50.
[95] We think that Mr Ashley was wrong in refusing to provide a copy of this correspondence to his employer. He should have co-operated in his employer’s investigation rather than seek to frustrate it. But we do not think that Mr Ashley’s failure to provide a copy of the letter in question gives rise to a valid reason for his dismissal. In reaching this conclusion we have had regard to the passage of time between the original allegations and SASI’s investigation, and Mr Ashley’s belief that the “ban” was no longer in place. It is also relevant to note Ms Curtis’ evidence that had Mr Ashley provided the letter it was “more than likely” that his employment would have been terminated anyway.51
[96] While Mr Ashley’s conduct did not warrant the termination of his employment it is a factor to which we have had regard in determining the appropriate remedy in this matter.
[97] While we have dealt with the reasons given by the Respondent for the termination of Mr Ashley’s employment that does not end our consideration of the issue. The question of whether a valid reason for the termination exists is not limited to whether the reason that was given to the Applicant was a valid reason.52 In this case, in addition to the matters already dealt with, the Respondent relies on two of the Commissioner’s findings to support its contention that there was a valid reason for the termination of Mr Ashley’s employment.
[98] This first of the Commissioner’s findings is at paragraph 54 of the decision subject to appeal, where the Commissioner states that Ms Curtis could not ignore the following matters:
(a) a phone call from Ms Spencer in October 2003 raising the issue of the “ban”;
(b) an anonymous call in February 2004 making allegations about Mr Ashley’s unsuitability to be caring for children; and
(c) a further call in April 2004 from another agency raising allegations concerning Mr Ashley’s behaviour involving a young person.
[99] The Respondent submits that the Commissioner was correct to consider the full factual matrix of the case before her and properly had regard to the matters set out at paragraph 54 of her decision. The evidence before the Commissioner showed that when Ms Curtis was contacted by Ms Spencer on 24 October 2003 concerning the applicant she sought to obtain clarification from DHS regarding the nature of the allegations.53 When Ms Curtis was advised of an anonymous complaint involving Mr Ashley she did not act because the complaint was anonymous.54 When she was apprised of the specifics of the allegations against Mr Ashley in a telephone conversation with Ms Spencer on 7 July 200455 Ms Curtis immediately took steps to put the allegations to Mr Ashley at the meeting held on 9 July 2004.56 Ms Curtis set out the nature of the Respondent’s concerns in a letter to Mr Ashley dated 8 July 2004 in the following terms:
“We wish to inform you that information has come to the attention of management concerning the fact that you are restricted from being employed by an agency funded by the Department of Human Services (“the Department”).
The specifics of this information are that it is alleged that you were restricted from working with any agency or organisation funded by the Department in or around June 1997 and that this restriction was made by the Department.
It is also alleged that you failed to disclose your restriction to the Service at the time of your employment and have continued to fail to disclose this restriction during your employment with the Service. This is despite the fact that the Statewide Autistic Service (“the Service”) is a funded agency of the Department.
We ask you to consider this allegation and direct you to attend a meeting as of Tuesday 13 July, 2004 at 3.00pm in accordance with the Statewide Autistic Service Disciplinary Policy and Procedure (copy attached) at which time you will be given an opportunity to discuss and respond to this allegation.
At this meeting, you may wish to have a representative present (legal/union/other) if you so desire.
Given the serious nature of this allegation, the Service has decided to stand you down from work with full pay, effective as of this date, until the scheduled meeting, as detailed above, takes place.
Whilst you are stood down you are not permitted to access or have cause to access any staff member, client, family of the clients or the premises of the Service. Any breach of this direction will be viewed seriously.
We wish to point out, that the outcome of this process may result in disciplinary action, including the termination of your employment with the Service.
All communication in relation to this matter should be directed to Ms Maureen Curtis, Chief Executive Officer of the Service.”57
[100] A number of observations may be made about the particular matters to which the Respondent refers:
1. The phone call in October 2003 does not raise any new allegations but rather refers back to the 1997 “ban”. It was hearsay evidence from an unnamed source and Mr Ashley was not told of the phone call.58
2. The anonymous phone call in February 2004 can only constitute evidence of the fact of the complaint being made, not of the truth of the complaint. Nor was Mr Ashley informed of the complaint.59
3. The call from another agency in April 2004 raising allegations about Mr Ashley’s behaviour involving a young person was second-hand hearsay from an unnamed complainant. Its evidentiary value is only that a complaint was made. Ms Curtis did not speak to Mr Ashley about the matter.60
[101] It is apparent that these matters lack significant probative force, and that Ms Curtis did not raise these matters with Mr Ashley. We are not persuaded that they provide a valid reason for the termination of Mr Ashley’s employment.
[102] The second of the Commissioner’s findings upon which the Respondent relies is at paragraph 50 of the decision subject to appeal, where the Commissioner found that it was “significant” that Mr Ashley made no reference to MSSA in his CV. The Commissioner says:
“In my view it is significant that Mr Ashley made no reference to MSSA in his CV. MSSA is a major agency in the field and it would not be unusual for a prospective employer to contact them if they wished to obtain a view on Mr Ashley’s suitability particularly as most of the jobs he listed were of a casual nature or of short-term duration.”
[103] The Respondent submits that it was open to the Commissioner to find that it was significant that Mr Ashley had not referred to MSSA in his CV when applying for his position with SASI in view of the following concessions by Mr Ashley:
[104] In our view the fact that Mr Ashley did not refer to MSSA in his CV is a relevant consideration and part of the factual matrix against which the question of whether there was a valid reason for the termination of Mr Ashley’s employment needs to be determined. It is relevant, but we do not regard it as particularly significant, for three reasons:
1. Mr Ashley’s CV made reference to a number of positions he held between 1996 and 1998 including casual relief officer, cottage parent and house worker casual – all of which are suggestive of someone who is working for an agency. If an interviewer wanted more information they would have asked whether he had worked for an agency and if so, which one.65
2. The unchallenged evidence that Mr Ashley told the SASI person interviewing him of his employment with MSSA. At paragraph 13 of Mr Ashley’s witness statement in reply he states:
“In fact I recall that during my job interview for SASI I told Susan Maynard (the interviewer) that I had worked for MSSA on a contract registered as ‘Foundations for Family Life’. This is referred to in my resume”.66
This statement was provided to SASI on or about 18 February 2005 (and the hearing was in March 2005). Thus, SASI was on notice about this evidence and yet chose not to call Ms Maynard (and offered no explanation for failing to call her).
3. There is no duty on an employee to disclose his or her own past faults.67
[105] We are not persuaded that there was a “valid reason” for the termination of Mr Ashley’s employment.
[106] In determining whether or not a termination of employment is harsh, unjust or unreasonable, the Commission must consider each of the matters referred to in paragraphs 170CG(3)(a) to (e). But the Commission is only required to have consideration to these matters in so far as they have application68 or are relevant to the factual circumstances of the particular case.69 If there is no “valid reason” then paragraphs 170CG(3)(b) and (c) have no application. This is because these paragraphs refer to “that reason” and “any reason related to the capacity or conduct of the employee”. In the context of s.170CG(3) these references are clearly to the “valid reason” referred to in s.170CG(3)(a).70 Similarly, unless the termination is related to unsatisfactory performance, paragraph 170CG(3)(d) is of no relevance.
[107] In this case we have concluded that there was no “valid reason” for the termination of Mr Ashley’s employment and hence ss 170CG(3)(b), (c) and (d) are not relevant.
[108] Such a construction is also consistent with commonsense. It is difficult to conceive of the circumstances in which it could reasonably be said that despite the absence of a valid reason for termination the employee had been accorded procedural fairness and therefore the termination was not “harsh, unjust or unreasonable”. As the Full Bench in Steggles Limited v West observed:
“Pursuit of an otherwise faultless process does not imbue merit into a situation otherwise devoid of such a characteristic.”71
[109] We adopt the Commissioner’s findings in respect of ss 170CG(3)(da) and (db).
[110] In respect of s.170CG(3)(e) we have had regard to the “other matters” referred to at paragraphs 62 to 64 of the decision subject to appeal. Further, we think it is appropriate to have regard to the impact upon Mr Ashley of the decision to terminate his employment. In this context we accept Mr Staindl’s unchallenged assertion that:
“…if this decision stands my client’s career in this industry is finished. It’s not a huge industry, the department has, as apparent from this case, has wide responsibilities, wide ranging funding and this decision, in my submission, would have the effect of finishing any career in this industry.”72
[111] We find that the termination of Mr Ashley’s employment was harsh, unjust and unreasonable.
[112] We now turn to consider the question of remedy.
[113] Section 170CH of the WR Act deals with the remedies available in the event that the Commission determines that a termination of employment was “harsh, unjust and unreasonable”.
[114] Two general observations may be made about s.170CH. First, the decision to make an order that provides for a remedy is discretionary. It is a discretion which “may” be exercised, but only in the circumstances set out in s.170CH(1). Before an order can be made to provide for a remedy the Commission must have determined, on completion of the arbitration, that the termination in question was “harsh, unjust or unreasonable”.
[115] Second, the Commission must not make an order that provides for a remedy unless it is satisfied, having regard to all the circumstances of the case including the matters set out at paragraphs 170CH(2)(a) to (e), that the remedy ordered is appropriate. Subsection 170CH(2) is couched in mandatory terms. It should be construed as requiring the Commission to take all circumstances into account and in particular to take into account each of the particular circumstances specified in ss 170CH(2)(a), (b), (c), and (d), as well as any relevant matter within the scope of s.170CH(2)(e). These matters are to be taken into account as fundamental elements in determining whether to make an order providing for a remedy.73
[116] Having regard to the matters identified in s.170CH(2), insofar as they are relevant, and to all of the circumstances of this case, we have decided that it is appropriate to make an order providing for a remedy.
[117] The remedies available are reinstatement, and the payment of an amount in lieu of reinstatement. Each of these is dealt with below. It is apparent from the terms of s.170CH that in determining the question of a remedy the Commission must first consider reinstatement.74
[118] If the Commission considers it “appropriate” it may make an order requiring the employer to reinstate the employee by:
[119] In our view the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate.75 In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins) the Full Court of the Industrial Relations Court said:
“. . . we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
Each case must be decided on its own merits.”76
[120] While Perkins was decided under the former statutory scheme, the above observations remain relevant to the question of whether reinstatement is “appropriate” in a particular case.77
[121] In her witness statement Ms Curtis says:
“I am advised the Commission, if it were to find our Agency breached the statutory provisions under the Act in terminating John’s employment on 2 August 2004, has the power to order John’s reinstatement. From my perspective, it would be extremely difficult to accommodate such an order because I have lost all confidence in John as being an employee I could trust and work with in light of some of his comments made in his witness statement. …”78
[122] Ms Curtis was not cross-examined in respect of this part of her evidence.
[123] Of course the mere assertion by an employer that a working relationship has broken down does not justify a refusal of reinstatement.79 But this is not a case of mere assertion. Mr Ashley’s refusal to co-operate in the investigation of the allegations against him is a serious matter and in our view tells against reinstatement.
[124] In all the circumstances we are satisfied that reinstatement is not appropriate in this case.
[125] Section 170CH(6) provides that if the Commission thinks that reinstatement is inappropriate it may, if it considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount in lieu of reinstatement. In determining an amount for the purposes of an order under s.170CH(6) the terms of s.170CH(7) are relevant, it states:
“(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant.”
[126] During the course of oral argument Mr Staindl, counsel for the Appellant, indicated that he had some current information regarding the income Mr Ashley has earned since the termination of his employment.80 Given that further evidence may be required in respect of the amount to be awarded in lieu of reinstatement, we think the appropriate course is to refer the determination of the amount in lieu of reinstatement to Commissioner Cribb for determination.
BY THE COMMISSION
VICE PRESIDENT
Appearances:
D. Staindl of Counsel for the Appellant.
G. McKeown of Counsel for the Respondent.
Hearing details:
2005.
Melbourne:
June 21.
1 PR957191, 11 April 2005 per Whelan C (the decision subject to appeal).
2 Exhibit A2 of the proceedings below at Attachment 8.
3 Exhibit A2 of the proceedings below at Attachment 9.
4 Transcript of the proceedings below, 8 March 2005 at PNs 1346–1375.
5 Exhibit A1 of the proceedings below at Attachment 6.
6 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137.
7 Ibid.
8 PR957191 at paragraph 60.
9 PR957191 at paragraph 61.
10 PR957191 at paragraphs 62–64.
11 PR957191 at paragraphs 65–66.
12 (2000) 203 CLR 194.
13 Ibid at paragraph 17 on p. 204.
14 Edwards v Giudice (1999) 169 ALR 89 per Moore J.
15 Coal and Allied at paragraph 19 on pp. 204 and 205; Woodman v Hoyts Corp Pty Ltd (2001) 107 IR 172; see also Liu v Windsor Smith, Print Q3462, 13 July 1998 per Giudice J, Polites SDP and Gay C.
16 Coal and Allied at paragraph 21 on p. 205.
17 Transcript of the proceedings below, 7 March 2005 at PN998.
18 Exhibit A2 of the proceedings below at paragraph 6.
19 Exhibit R2 of the proceedings below at paragraph 2; transcript of the proceedings below, 8 March 2005 at PN1496.
20 Transcript of the proceedings below, 7 March 2005 at PN916.
21 Smith v Moore Paragon Australia Ltd, Print PR915674, 21 March 2002 per Ross VP, Lacy SDP and Simmonds C.
22 PR957191 at paragraph 56.
23 PR957191 at paragraph 59.
24 PR957191 at paragraph 58.
25 Exhibit R3 in the proceedings below.
26 Transcript of the proceedings below, 7 March 2005 at PN861.
27 Exhibit A2 of the proceedings below at Attachment 10.
28 Exhibit A2 of the proceedings below at Attachment 11.
29 Exhibit A2 of the proceedings below at paragraph 9.
30 Transcript of the proceedings below, 7 March 2005 at PNs 838–846.
31 Transcript of the proceedings below, 7 March 2005 at PNs 880–883.
32 Transcript of the proceedings below, 7 March 2005 at PNs 908–915
33 See transcript of the proceedings below, 7 March 2005 at PN707–710 and 889–982.
34 Transcript of the proceedings below, 7 March 2005 at PN707–710.
35 Transcript of the proceedings below, 7 March 2005 at PN889.
36 Transcript of the proceedings below, 7 March 2005 at PN982.
37 PR957191 at paragraph 49.
38 Exhibit A2 of the proceedings below at paragraph 9.
39 Exhibit A1 of the proceedings below at Attachment 1.
40 See Exhibit A2 in the proceedings below at Attachment 13.
41 Exhibit A2 of the proceedings below at paragraph 10.
42 Exhibit R5 of the proceedings below at paragraph 12.
43 Transcript of the proceedings below, 7 March 2005 at PNs 1561–1565.
44 Exhibit A1 of the proceedings below at Attachment 6.
45 Exhibit A1 of the proceedings below at paragraph 25.
46 Transcript, 21 June 2005 at PNs 138–143.
47 Exhibit M1 (Respondents written submission on appeal) at paragraph 62.
48 Exhibit A2 of the proceedings below at Attachment 8.
49 Exhibit R3 of the proceedings below.
50 See Transcript of the proceedings below, 7 March 2005 at PNs 392–394, 437, 448–451 and 533–561.
51 Transcript of the proceedings below, 7 March 2005 at PN968.
52 Exhibit M1 (Respondents written submission on appeal) at paragraph 62.
53 Transcript of the proceedings below, 7 March 2005 at PN766.
54 Transcript of the proceedings below, 7 March 2005 at PN771.
55 Exhibit R2 of the proceedings below at paragraph 16.
56 Exhibit R2 of the proceedings below at paragraph 16.
57 Exhibit A1 of the proceedings below at Attachment 3.
58 See Ms Curtis’ evidence, transcript of the proceedings below, 7 March 2005 at PN718.
59 See Ms Curtis’ evidence, transcript of the proceedings below, 7 March 2005 at PN772.
60 See Ms Curtis’ evidence, transcript of the proceedings below, 7 March 2005 at PN816.
61 Transcript of the proceedings below, 7 March 2005 at PN131.
62 Transcript of the proceedings below, 7 March 2005 at PN115.
63 Transcript of the proceedings below, 7 March 2005 at PN228.
64 Transcript of the proceedings below, & March 2005 at PN128.
65 See Ms Curtis’ evidence, transcript of the proceedings below, 7 March 2005 at PNs 1092–1097.
66 Exhibit A2 in the proceedings below. Also see transcript of the proceedings below, 7 March 2005 at PN476.
67 In this context the Appellant relied on Bell v Lever Brothers Limited [1932] AC 161 per Lord Aitken at 227-228 and Concut Pty Ltd v Worrell, [2000] HCA 64, 14 December 2000. Also see Bank of Credit and Commerce International SA v Ali [1999] 2 All ER 1005 at 1015; McCarry (1983) “The Employee’s Right to Silence” 57 Australia Law Journal 607; Collins (1992) “Implied Duty to Give Information During Performance of Contract”, 55 Modern Law Review 556.
68 Chubb Security Australia Pty Ltd v Thomas, Print S2679, 2 February 2000 per McIntyre VP, Marsh SDP and Larkin C.
69 King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.
70 Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000 per Ross VP, Polites SDP and Smith C; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at paragraph 64.
71 Print S5876, 11 May 2000 per Watson SDP, Williams SDP and Smith C at paragraph 9.
72 Transcript, 21 June 2005 at PN10.
73 Queensland Medical Laboratories v Blewett (1988) 84 ALR 615 at 623 per Gummow J; R v Hunt; Ex parte Sean Investment Pty Ltd (1979) 25 ALR 497 at 504 per Mason J; Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.
74 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (McLauchlan); Newtronics Pty Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C.
75 McLauchlan at 17.
76 (1997) 72 IR 186 at 191–192.
77 McLauchlan at 18.
78 Exhibit R2 of the proceedings below at paragraph 37.
79 Wark v Melbourne City Toyota (1999) 89 IR 132 at 137.
80 Transcript, 21 June 2005 at PN126.
Printed by authority of the Commonwealth Government Printer
<Price code G>