[2013] FWC 1836 [Note: An appeal pursuant to s.604 (C2013/5001) was lodged against this decision - refer to Full Bench decision dated 20 September 2013 [[2013] FWCFB 5834] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Townsley
v
State of Victoria (Department of Education & Early Childhood Development)
(U2012/12667)

COMMISSIONER GREGORY

MELBOURNE, 14 JUNE 2013

S.587 Application to Dismiss.

Introduction

[1] This matter involves an unfair dismissal application brought by Mr Andrew Townsley (the Applicant) against the State of Victoria (Department of Education & Early Childhood Development.) The matter has to date occupied six hearing days primarily involved with cross examination of the Applicant, the only witness who gave evidence in support of the application. At the conclusion of the Applicant’s evidence and cross examination the Respondent indicated it now sought to make an application pursuant to s.587 of the Fair Work Act 2009 (the Act) to dismiss the matter. Leave to pursue that application was vigorously opposed by the Applicant. However, after hearing from the parties the application was allowed to be made. This decision deals with that application. Mr Harrington of Counsel was granted leave to appear on behalf of the Respondent. Mr Townsley, the Applicant’s father, appeared on behalf of the Applicant.

The Issue to be Determined

[2] Section 587(1) “Dismissing Applications” of the Act states:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

[3] Section 587(2) is not relevant in the context of this matter. Section 587(3) continues to indicate:

“The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” 2

[4] The Respondent submits s.587 of the Act enables the Commission to dismiss an application at any time. In its submission the evidence adduced through the Applicant’s cross examination establishes that a valid reason for the Applicant’s dismissal exists based on his failure to comply, in three specific instances, with reasonable and lawful directions given to him and, further, that the considerations in s.387 of the Act that the Commission must have regard to enable it to be satisfied the dismissal was not harsh, unjust or unreasonable. It submits accordingly that the application should be dismissed pursuant to s.587 of the Act without a requirement to admit and test the Respondent’s evidence.

[5] The Applicant vehemently opposes this application. In its view it is unfair and unreasonable to dismiss the application at this point without the Respondent’s evidence being admitted and tested before the matter is determined.

[6] Accordingly, the issue to be determined at this point is whether the application should now be dismissed pursuant to s.587 of the Act on the basis that there is sufficient evidence on the record to dismiss the application.

The Evidence and Submissions

[7] The Respondent submits s.587 of the Act enables the Commission to dismiss an application at any time. This decision can be based on the specific grounds set out in sub paragraphs (a), (b) and (c), in particular, in this context on the basis that the application is “frivolous or vexatious” or “has no reasonable prospects of success”. 3 However, in its submission the opening words at the commencement of s.587(1) indicate the power to dismiss is not limited to these grounds but exists more broadly. Whilst not specifically referred to in the legislation the Respondent submits this broad power equates to the common law “notice of motion” where an application is made to the court for dismissal of the proceedings on the basis there is “no case to answer”.

[8] The Respondent refers to two recent decisions of the Tribunal to illustrate the scope and operation of s.587. The first is the matter of Rebecca Tomas v Symbion Health 4 (Symbion Health) handed down by Commissioner Gooley (as she then was) in August 2011. The Respondent referred, in particular, to the Commissioner’s findings at paragraphs 57 and 58 when she stated (references omitted):

“[57]Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587 (1)(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58]In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.” 5

[9] Commissioner Gooley continued to indicate in conclusion:

“[59] In this matter I find that section 587 empowers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 provides Fair Work Australia with a broad discretion to dismiss an application.” 6

[10] The Respondent also noted that Commissioner Gooley applied the reasoning of the Full Bench in the matter of Brent Gorman v Australia Post 7 handed down in December 2010 in coming to her decision. That decision was subsequently overturned on appeal by Justice Besanko of the Federal Court of Australia, however, in the Respondent’s submission the following conclusions of the Full Bench were not disturbed by the Federal Court decision.

“[11] The meaning of the words “frivolous or vexatious” in the context of the Order 26, rule 18 of the High Court Rules was considered by Barwick C.J. in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, at 129 as follows:

‘The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".’ (at 129)

[12]Although this passage and other cases to which we were referred (see Naqvi v MPB (SA) Pty Ltd (1981) 36 ALR 379, at 383 and Heidt v Chrysler Australia Ltd (1976) 13 ALR 365) relate to court proceedings, they provide an indication of the type and nature of an application that might be found to fall within the meaning of the words ‘frivolous or vexatious’. Those words convey an intention that the power to dismiss an application and to thereby deprive an applicant of the right to pursue an otherwise available cause of action should only be used in limited circumstances.” 8

[11] The Respondent also noted Commissioner Gooley’s reference in the decision to the other statutory provisions the Commission must have regard to namely:

● Section 381(2) in the objects of that Part of the Act dealing with unfair dismissal which states:

“The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.” 9

Sections 577(a) and 578(b) of the Act which deal respectively with the performance of the functions and the exercise of power by members of the Tribunal, and the matters they must take into account in performing those functions. They indicate:

“577Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just;” 10

“578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter”. 11

[12] Against this background the Respondent submits there is sufficient evidence on the record as a consequence of the Applicant’s evidence adduced in cross-examination to enable the Commission to now dismiss the matter pursuant to s.587. In its submission that evidence establishes the Respondent had a valid reason to terminate the Applicant and the remaining criteria the Commission is required to have regard to in s.387 also enable it to be satisfied the dismissal was not harsh, unjust or unreasonable.

[13] In terms of “valid reason” the Respondent variously relies on the Applicant’s failure to comply with or obey lawful and reasonable directions given to him by the Respondent. These fall into two categories described by the Respondent as the “Document Directions” and the “Investigation Direction.”

“The Document Directions”

[14] These concern the Applicant’s failure to comply with formal directions issued to him by the Principal to produce lesson plans and other documents during what was described as the “support and monitoring period.” In its submission these were, in the first instance, “lawful and reasonable directions” 12 that were not complied with or obeyed by the Applicant. The Respondent relied on the following evidence in support of this submission.

[15] It first referred to the letter dated 14 September 2011 from the Principal, Ms Vicki Walters, to the Applicant, provided to him approximately one month into the so-called “support and monitoring period.” The letter states:

“Dear Andrew

Despite being asked to do so, you have not provided your assessment records or lesson plans to members of the support group.

Although I am not required to provide you with a lawful direction in writing I have chosen to do so in this instance so that there can be no misunderstanding.

You are to provide me with your assessment records for 8H Mathematics and Unit 3 & 4 IT Applications by 4:00pm Thursday, 15 September 2011. You are also to provide me, by 4:00pm on Thursday, 15 September 2011 your lesson plans for all of your lessons for the week commencing 19th September 2011. This is a lawful direction to you.

You should be aware that Teaching Service (Employment Conditions, Salaries, Allowances, Selection and Conduct) Order 2009 states:

11.1.5 An employee must not, without reasonable excuse, contravene or fail to comply with a lawful direction given to the employee by a person with authority to give the direction.

I am a person with authority to give the direction.

Further both Division 9A – Unsatisfactory Performance and Part 2. 4 Division 10 – Misconduct of the Education and Training Reform Act 2006 specify the failure to abide by a lawful instruction without reasonable excuse as grounds for action. The relevant sections (in part) are:

2.4.59A Definitions
unsatisfactory performance, in relation to an employee, means the repeated failure of the employee to discharge his or her duties in the manner expected of the employee at his or her level in his or her position as evidenced by one or more of the following –

(c) the employee engaging in unsatisfactory conduct that impacts on the discharge of his or her duties including, without reasonable excuse –

(i) contravening or failing to comply with a lawful direction given to the employee by a person with authority to give the direction; or

2.4.60 Grounds for action
(1) The Secretary, after investigation, may take action under this Part against an employee who –

(g) without reasonable excuse, contravenes or fails to comply with a lawful direction given to the employee by a person with authority to give the direction;

The possible outcomes, should action be taken pursuant to the Education and Training Reform Act 2006 are Reprimand, Fine, Demotion, Termination.” 13

[16] The Applicant confirmed he received and read the letter and subsequently provided a copy to the solicitor acting on his behalf at the time. The Respondent submits that in subsequent email exchanges the Applicant did not question the direction given to him in that letter from the Principal, nor did he suggest what was being requested was unreasonable. It referred to the following email from the Applicant, contained at Appendix 71 to Ms Walters statement:

“Dear Principal,

How do you want the lesson plans submitted to you?
Do you want me to fill out a lesson plan template and if so does the school have a standardised template?

Did you want a detailed lesson plan or brief outline for each lesson I teach next week? What exactly are you after here in your request?

Could you also provide me with a best example of what you expect to see in a lesson plan?” 14

[17] In this context it referred to the following exchanges in the transcript.

“That's as simple as it was, wasn't it, Mr Townsley?---Well, I've answered this before. The normal circumstance is a lawful direction you follow. That's just part of the employment that you're in. That's fair enough. The situation was this: it was an industrial situation. She has asked me for a lot of lesson plans, not - and I was suspicious of the whole thing at the time, you know, with advertising my job, the incidents beforehand. I was a bit stressed at the time. I didn't think that that was - she was being reasonable with that request.

I'm trying to understand what you believe was unreasonable about it?---Well, she's trying to force me to comply with a voluntary process. It's an industrial situation.” 15

[18] The Respondent then referred to Appendix 72 to Ms Walters statement which contains the Principal’s response in the following terms:

“Dear Andrew

In response to your email of 14th September in relation to my request for lesson plans and assessment records to be forwarded to me by Thursday 15th of September 2011.

You are welcome to forward planning documentation that you currently have your lessons. It can be electronically or in hard copy.” 16

[19] The Respondent next referred to Appendix 73 being a letter from the Applicant’s solicitors to the Principal which stated at the outset:

“We advise that we act for Mr Townsley with his complaint against you before the Regional Director Mr Peter Greenwell and with what appeared to be dispute with you in requiring him to provide with his assessment records as indicated with your correspondence dated 14 September 2011.” 17

[20] The letter concluded by indicating:

“For this reason, we are instructed that our client will send to us your requested documents which we can make them available to you in our office as soon as these are provided. Henceforth, in no circumstances we demand that you do not contact our client (sic).” 18

[21] However, the Respondent submits that despite this indication and in the absence of any suggestion by the Applicant that what was being asked was unreasonable or unlawful the documents requested were never produced by him.

[22] The Respondent then referred to the Principal’s response to the above letter from the Applicant’s solicitor contained at Appendix 74 in which Ms Walters states:

“I refer to your letter on behalf of Mr Andrew Townsley.

You are incorrect that Mr Greenwell ‘inhibited’ me from making contact with Mr Townsley. I am assuming that you are referring to Mr Greenwell advising me, in his letter of 12th August 2011, that I should not approach anyone named in this complaint about the complaint. Please note I have not received a letter from Mr Greenwell dated 22nd of July 2011. I have not breached this requirement and have certainly not approached Mr Townsley about the complaint.

I have provided Mr Townsley with a lawful direction to provide me with his lesson plans and his assessment records. If Mr Townsley fails to comply with this direction you may be committing an act of misconduct as set out in my previous letter to him.

I will not be attending your office to view any such documents.

The documents I have requested of Mr Townsley are documents all teachers are required to have.

I will continue to make contact with Mr Townsley as I see fit.” 19

[23] The Respondent submits the Applicant then suggested the Principal should not be contacting him directly because of a complaint made by him about her. However, it submits this related only to issues to do with the complaint and had no bearing on any other normal interaction between the Principal and a teacher at her school.

[24] The Respondent then made reference to what it describes as “the second document direction” contained in Appendix 75 being again a letter from the Principal to the Applicant dated 19 September 2011. It states in part:

“Dear Andrew

I have been informed that you will be absent from 19th September till the 23rd September.

Following my lawful direction to you to provide assessment records and lesson plans by 4:00 pm on Thursday 14th September, those documents have not been received.

To ensure your Year 12 students are not disadvantaged by your absence I require you provide the following documentation;

1. Assessment records for Unit 3 & 4 IT Applications
2. Indications of students who may need to undertake SAC redemptions. The College’s expectations are that all students should complete their SAC’s by the end of term three.
3. Exam preparation materials with clear indications of the areas students need to revise to prepare for the final assessments.
4. Curriculum planning including lesson plans for this week and the week beginning the 10th October till 15th October.

I require the above documentation to be forwarded to me by 4:00pm Wednesday 21st September.

This is a lawful direction to you.” 20

[25] The Respondent then refers to the Applicant’s response contained at Appendix 76 to Ms Walters statement. It submits it again does not suggest the request was unreasonable or that the requested documentation could not be provided. It also refers to the following exchanges in cross-examination in regard to this point.

“Yes. You're not saying, "I'm not providing you with my lesson plans because it's unreasonable." You don't say that, do you?---I wouldn't say that.

But there's nowhere in this 20 September email of you saying, "I refuse to provide the lesson plans"?---I'm not saying - I didn't say that, no.” 21

[26] The Respondent next refers to the witness statement of Mr Peter Greenwell and a detailed letter he provided to the Applicant contained at PG-7. Mr Greenwell is the Regional Director, Southern Metropolitan Region, at the Department of Education and Early Childhood Development. It referred, firstly, to the following extract from page 6 of the letter:

“By letter dated 14 September 2011 Ms Walters gave you a lawful direction to provide your assessment records for Year 8H Mathematics and Unit 3 and 4 IT applications by close of business the following day. In that letter you were also given a lawful direction to provide your lesson plans for all lessons for the week commencing 19 September 2011.

...

By letter dated 19 September 2011 Ms Walters again provided you with a lawful direction to provide her with documents that you should have had available to you.

...

You did not comply with that direction. I find your explanation that you did not provide your planning documents because you are not provided with samples implausible.” 22

[27] The Respondent then makes reference to extracts from page 18 of the letter from Mr Greenwell:

“My view that you have been engaged in unsatisfactory conduct that impacts on the discharge of your duties by, without reasonable excuse, contravening or failing to comply with a lawful direction given to the employee by a person with authority to give the direction is based on the following factors:

By letter dated 14 September 2011 you were given a lawful direction by Ms Walters to provide her with your assessment records...You did not comply with this direction.

By letter dated 19 September 2011 you were given a lawful direction by Ms Walters to provide her with your assessment records for Unit 3 and 4 IT Applications...You did not comply with this direction.

By letter dated 16 May 2011 you were directed that you were not to approach any of the people named in the complaint regarding the complaint. The statements of (student names withheld) were attached to the complaint letter. On 28 October 2011 you questioned (student name withheld) about the statement of why she had made it. On 4 November 2011 you questioned (student name withheld) about her statement. I have considered your response and do not find it compelling. I have also considered your complaint about Ms Jungbahadur and find it is irrelevant to the matter at hand.” 23

[28] The Respondent also points to the Applicant’s explanation in cross-examination in response to a question about why the documents had not been provided:

“I don't recall. That was a reason. There was a couple of other reasons, too, but that's what I said there. Mr Greenwell should know better. If Ms Walters is giving me instructions whilst I'm ill and he's an AEU member, he should know, look, this is a bit of badgering going on here.” 24

“The Investigation Direction”

[29] This matter arises from complaints made in writing to the Principal in May, 2011 about the Applicant by two year eight students. Following receipt of those complaints the Principal wrote to the Applicant on 16 May 2011 in the following terms:

“Dear Andrew

As a result of information received, matters being raised with me and my own concerns, I have decided that I require an explanation as to the substance of the issues being raised.

The complaints from students in 8H and other relevant material i.e. Yr 12 SAC and Year 12 Work Plan dated the 2nd May 2011 are from Duncan Threadgold. The elective proposal from Assistant Principal Jodie Doble on the 12.05.11 and statement from Vicki Hutchinson Head of Senior School dated 08.04.11 are attached.

It is alleged that:

1. When students in 8H request assistance in your class that you walk away without ensuring the student understands the mathematical concept or ignore their requests.
2. When you do respond to a question, you often write the answer down the student’s book without explaining how it was derived.
3. Students find your explanations of mathematical concepts very confusing and difficult to understand.
4. Maths exercises are placed on the board often without any accompanying notes or explanation of examples.
5. You have not assessed the student’s workbook, made any corrections or comments on the student’s work.
6. Homework is not assessed, you simply check to see if the work has been completed and the mark it on the roll.
7. The class is unruly and students find it difficult to concentrate and often don’t know what to do.
8. When students complete written tests, students do not receive the tests back to revise areas of weakness or to show them to their parents.
9. The Mathletics program is not being used to support the teaching and learning curriculum in your classroom.
10. Your Year 12 VCE IT Applications Unit Plan is seriously lacking in detail, i.e. course description and weekly unit planner noting skills, knowledge and assessment that would be covered during the semester.
11. Your SAC Assessment Criteria for Outcome 2 lacked detail and clarity of what was required by the students.
12. You have proposed an elective for 2012 called Games Programming, the proposal lacks detail, does not demonstrate the links to VELS or VCE outcomes and assessment criteria.
13. On the last day of term one 08.04.11 you called Vicki Hutchinson Head of Senior School and Steven Kehayas VCE Co-ordinator to your Year 11 VCE IT redemption class while they were doing a SAC and in front of the group said “Does (student name withheld) have learning disorder?” Students in the room could hear what you were saying regarding one of their peers.

It is appropriate that you respond to the allegations in writing. Your written response should be lodged with me by 9:00a.m. Tuesday 24th May 2011 unless otherwise agreed. Following my consideration of your response I may convene a meeting with you to discuss this matter. You may bring a support person to this meeting. Please note that your support person has no advocacy role.

After consideration of all available information I will make a decision as to what further action, if any, will be taken. With your cooperation I aim to complete the investigation by Monday 6th June 2011.

Please be advised that these matters, if proven, may constitute unsatisfactory conduct or misconduct. This may result in disciplinary action against you pursuant to the Education and Training Reform Act 2006. Actions available under the Act are reprimand, fine, reduction in classification or termination of employment.

I am currently following the Complaints Processes section of the Department’s Guidelines for Managing Complaints, Misconduct and Unsatisfactory Performance. This may be accessed at: (website details not included).

The requirements as to confidentiality are that all persons involved in a complaints process shall keep all information collected in the course of the process confidential except to the extent required to obtain advice or to answer the allegations.

You are not to approach any of the people named in this complaint, regarding the complaint. Should you believe you have identified people who have information relevant to this matter please provide me with their names so I can interview them as part of my investigation.” 25

[30] The final paragraph of the letter contains the direction the Respondent relies on in this context. It submits the Applicant subsequently disobeyed this direction, firstly, by questioning one of the students about the complaint during a lunchtime detention in October that year. It submits the Applicant also raised the issue with the other student during a class in November. The Principal again wrote to the Applicant following these events in a letter dated 7 December 2011 which indicated in part:

“4. You have breached a lawful direction from me that you not approach anyone named in the complaint about the complaint.” 26

[31] The Respondent relies on the Applicant’s answers in cross examination at the following paragraphs in support of its submission that the Applicant again disobeyed a lawful and reasonable direction given to him.

“Okay. Do you see then at appendix 11, you can turn to that, Mr Commissioner, 16 May 2011. It's a letter with some attachments on the back of it. Did you get this letter on about 16 May?---I think it was a few days after that if I remember correctly.

All right. You got the letter, and you read it at the time. Correct?---Yes.

...

The attachments are - you might call them little mini statements from (four student names withheld), 8H. Yes?---Yes.

So if - you got a letter saying, "Here's the complaint," the allegation, they're just allegations, "here's what's being said," summarised in a letter format, and you were provided with typed up, signed off versions of what the students had said to Ms Walters, correct?---Yes, I was a little bit concerned that they didn't write it themselves, but, okay.

Did you see that there - it appears that there are - their signature appears at the bottom?---I understand that. But when I spoke to the girls about it, that's not what they wrote.

You were told not to speak to the girls directly about these things, weren't you? ---It was my understanding that to not during an investigation.

Well, I'll read to you from the last paragraph of the letter, appendix 11:

You are not to approach any of these people named in this complaint regarding the complaint. Should you believe you have identified people with information relevant to this matter, please provide me their names so I can interview them as part of my investigation.

You read that, didn't you?---Yes.

Yes?---It was all part of the guidelines about complaints.

This was a direction to you on 16 May - - - ?---Yes.

- - - put in contemporary or ordinary language, "Don't go and approach people who have made a complaint about you"?---Well - - -

That's what it meant, didn't it?---Well, hang on. If you look at the complaint guideline, this is where it was confusing. It was about the investigation. Now, I'll put it up front, look, I reject the - sorry, I'm - I wish the situation didn't happen.

What situation is that?---Well, I wish didn't speak to the girls.

You spoke to the girls a long - some period of time afterwards, didn't you?---Yes, yes.

Why do you the wish that the situation didn't happen, that you didn't speak to the girls?---Because I think the whole thing is an unfortunate incident of - it could have been handled in another way by the principal and - - -

Okay. Not the - - - ?--- - - - in myself.

Okay. It could have been handled a different by myself. How could you have handled it differently?---Well, I guess, the other way I could have done it is, look, like, basically, you could have - get the information - look, I don't know. If I had my time again, I wouldn't have done it.

You made a mistake, didn't you?---Look, it was a mistake. I'd have to say there was a lot of mistakes, because there was no rule on it. If you look at appendix 127, the conduct and ethics are quite clear about - it's a bit of a grey area. Now, it's my understanding that I can speak - once the investigation is complete, then you might be allowed to do it - sorry, there's no rule against us. Now - and this is where - - -

Well, let's drill down into this: why do you think the principal said on 16 May, when she had four mini statements from students that you taught. Why do you think the principal said, "Don't go and talk to them directly about this"?---"Don't interfere with the investigation."

Yes. But what about the power of disparity between a teacher and a student? Do you think there's a power disparity between a teacher and a student?---Yes, I do.

...

Yes. It was a pretty sensible thing for the principal to say to you, "Whilst we're looking" - sorry, I withdraw that. For her to say to you, "You are not to approach any of the people making this complaint regarding the complaint." Correct? That's what you said? Do you think that was reasonable for her to say that to you? Correct?---During the investigation, yes, that was my understanding.

You say it was reasonable for you to raise the issue of this complaint by the students at some later point in time. Do you say that was reasonable?---Look, I'd say it's an error of judgment.

Why was it an error?---I don't think it's good to me speaking to girls about a complaint which I thought was dodgy. All right. The problem was, the principal said these girls complained. There was four of them, and then the stories changed to two after she was pressured to say. The girls are telling me that there's not a problem, there's not a problem with teaching all the way through the year. At one point they actually - when I spoke to - this was on the spur of the moment - she wasn't behaving well of late. I thought that the situation of the principal, asking her to make a statement, sort of, against her will, you know, I think it might have a bit of an issue to do with what's going on. So I wanted to clarify, establish the facts of what went on.” 27

[32] And further:

“Is it possible your radar was out?---Sorry, Mr Harrington, at the time I was quite well aware - and as I said, I regret the whole incident. I think the whole thing is ugly and certainly wouldn't do it again. But at the time I did not believe that she was intimidated or upset. In fact, she was happy to talk about it and wanted to complain about it. If you see that line, "That's all I can remember," I thought - well, that's a bid (sic) odd too, why is it crossed out there, you know, it sounds like she's been a little spoon fed but...” 28

[33] Against this background the Respondent submits the evidence in support of the Applicant’s failure to obey these lawful and reasonable directions is overwhelming and provides justification to exercise the broad power to dismiss that is available under s.587. It submits that power is akin to the common law motion of “no case to answer” and that the principles concerning such applications provide a reasonable basis for discerning how the broad discretion in s.587 of the Act should be exercised.

[34] In this context it referred to the decision in Protean (Holdings) Ltd (Rec and Mgrs Apptd) and ors v American Home Assurance Co 29 where Young CJ stated there were three possible outcomes when such a submission was made. Firstly, where the trial judge concludes the evidence could sustain a finding against the moving party the no case to answer submission should be overruled and the case allowed to proceed. Secondly, where the case is so finely balanced the trial judge is not satisfied that even if the evidence could sustain a finding against the moving party, and the judge would be prepared to make that a finding then the judge should no doubt allow the case to proceed. Finally, where the trial judge concludes the evidence could not sustain a finding against the moving party the trial judge should uphold the no case to answer submission.30 In the Respondent’s submission the current circumstances fall within this latter category.

[35] The Respondent also referred to the decision of Kaye J in Oakley & Anor v Insurance Manufacturers of Australia Pty Ltd 31 which set out the broad principles to apply when a no case to answer submission is made. These included the following:

“Although the judge, sitting alone, may assess the quality of the evidence in determining a no case submission, nonetheless the test which is to be applied by the judge, at that stage, is different to the test which the judge would apply in determining the ultimate outcome of the case, at the conclusion of a trial. Notwithstanding that the judge, in determining the no case submission, may assess the quality of the evidence, nonetheless the test remains whether, on the evidence so assessed, the judge “could” (not would) find for the respondent party on the evidence so far led. In such a case, the judge would only find against the respondent party if the evidence, so far adduced, is so unsatisfactory or inherently unreliable or equivocal that he were to conclude that he could not be reasonably satisfied of the case made by the respondent party on the evidence thus far adduced.” 32

[36] The Respondent accordingly submits the Commission might deal with the no case to answer submission by asking:

“Upon the combined weight of the facts on the issue of the Investigation Direction, and given the nature of the claim of unfair dismissal by the Applicant, could the Commission find for the Applicant, namely that the dismissal for breach of the Investigation Direction was harsh, unjust or unreasonable?” 33

[37] The Respondent also submits the application could be dismissed pursuant to s.587(1)(b) on the basis that “the application is frivolous or vexatious;”. It noted the nature of the Commission’s power in this context was considered by a Full Bench of The Tribunal in the matter of Brent Gorman v Australia Post 34 referred to previously in the decision of Commissioner Gooley in Symbion Health.

[38] The Respondent also submitted it was open to the Commission to find that the application could be dismissed on the basis of s.587(1)(c) of the Act in that it had “no reasonable prospects of success.” 35 It relied on the decision of Deputy President McCarthy in the matter of Applicant v Respondent 36 in support of this submission. It referred, firstly, to the Deputy President’s statement at paragraphs 5 and 6 of the decision in the following terms (references omitted):

“[5] The Respondent submitted that the legal principles of ‘frivolous and vexatious’ causes of action are well established. They submitted that frivolous proceedings are vexatious in the sense that they put the defendant to the trouble of having to defend proceedings that are useless or futile, are so obviously untenable that it cannot possibly succeed, or the alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide.

[6]In cases in the Australian Industrial Relations Commission (AIRC), matters where there has been consideration as to whether to dismiss an application on the basis that there is no reasonable prospect of success have generally followed Wright v Australian Customs Services (“Wright”). There it was decided that for a matter to have no reasonable prospect of success it must be manifestly untenable and groundless.” 37

[39] However, the decision continued to indicate:

“[7] There are a number of differences in the current legislation and developments since Wright was decided.” 38

[40] The Respondent also referred to the following extracts from the decision (references omitted):

“[10] The distinction between a frivolous and vexatious application and an application that has no reasonable prospect of success is illustrated by examination of the application of s.31A of the Federal Court Act (FC Act). That provision is of a similar nature to that in s.587(1)(c) of the FW Act. Section 31A of the FC Act provides that any party to an action may obtain summary judgment by showing that the other party has ‘no reasonable prospect of successfully prosecuting or defending the whole proceeding or any part of the proceeding’.

[11]The effect of s.31A of the Federal Court Act was canvassed in White Industries Aust Ltd v Federal Commissioner of Taxation (2007), where Lindgren J said:

Under s 31A I must be satisfied that the Applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].” 39

[41] Section 31A “Summary Judgment” of the Federal Court Act 1976 enables the court to give judgement in favour of a party if the court is satisfied that the other party has no reasonable prospect of successfully defending or prosecuting the proceeding or that part of the proceeding. Section 31A(3) states:

“(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.” 40

[42] The Respondent then referred to the following paragraphs from the decision (references omitted):

“[15]Section 587(1)(c) of the FW Act provides for a matter to be dismissed if the application has no reasonable prospects of success. The principles applied by the Federal Court for s.31A of the FC Act were summarised by Foster J in Wang v Anying Group Pty Ltd (“Wang”) and again in Davis v Insolvency and Trustee Service Australia (No 3) as follows (references deleted):

(a) The moving party does not have to demonstrate that the defence is hopeless or unarguable;

(b) The Court must consider the pleadings and the evidence with a “critical eye” in order to see whether the Respondent party has evidence of sufficient quality and weight to be able to succeed at trial;

(c) The Respondent party is not obliged to present its whole case in order to defeat the summary judgment but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b)); and

(d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial.

[16]In my view the approach for s.587(1)(c) of the FW Act should be similar to the approach that the Federal Court has taken in applying s.31A of the FC Act as outlined by Foster J in Wang.” 41

[43] Deputy President McCarthy subsequently dismissed the matter after dealing with it by limiting the evidence to that required to determine the Respondent’s s.587 application. In dismissing the application “as I find that it has no reasonable prospects of success” 42 he noted:

“The most crucial evidence the Applicant will be able to bring is his own evidence. I have had the benefit of hearing evidence of the Applicant. I found his account of events and incidents to be very unconvincing.” 43

[44] The Respondent concluded its submissions by indicating, in summary, that the evidence indicated the directions it relied upon had been given to the Applicant. They were clearly lawful and reasonable in all the circumstances. They were not complied with in circumstances where non-compliance or, as the Respondent put it, the “thumbing of the nose” 44 by the Applicant to those directions went to the heart of the relationship between the Principal and the teacher and evidences a complete lack of respect on the part of the Applicant. It concluded by submitting the question to be answered in determining the matter could be phrased in the following terms:

“Upon all the evidence adduced and before the Commission relating to all of the directions (the documentary and investigation directions) and given the nature of the claim of unfair dismissal by the applicant, could the Commission find for the applicant; namely that the dismissal for breach of those directions was harsh, unjust or unreasonable?” 45

[45] Mr John Townsley, the Applicant’s father, provided a detailed written submission in response to the application to dismiss. It indicated at the outset the application by the Respondent was “a stunt” 46 and “a frontal attack on an individual’s right to respond”47. It continued to indicate:

“10. The transcripts of the hearing so far reveal a high degree of obsession by the Department's counsel with one or two of the elements in this affair, while he studiously ignores or gives a low priority rating to the violations of his client towards Townsley.

11. This avoidance is consistent with a Department strategy to avoid or downplay all issues in the Townsley affair outside of its own manufactured measures to characterise Townsley as inefficient and eventually force a situation where he resigns or is sacked.

12. It requires a full cross examination of the Department's witnesses to illustrate this claim but there should be no doubt that the affair will not end with any decision that emerges from the Department's proposed Application, whichever way it is decided.

13. Mr Harrington's desperate throw of the dice will be met by a vigorous challenge. Some information of a confidential nature I am withholding but an issue of public interest eventually overcomes confidentiality and this issue is moving inexorably in that direction.” 48

[46] The submission also provides the following explanation about why it believes the current application is now being pursued.

“21. Mr Harrington effectively ignores the commission of serious acts of misconduct by Fountain Gate administration and some of the sloppiest administration one could come across in the Public Service. Instead he attempts to obscure the truth by the use of arcane legal argument., liberal doses of stardust in the eyes, and persistent questioning of issues he thinks he can make capital out of.” 49

[47] It also makes allegations about falsification of documents and suggests:

“29. Knowing this, the Department's counsel seems to have made one last desperate effort to avoid his witnesses being examined and revealing the extent of the Department's behaviour in this lengthy saga.” 50

[48] In terms of the so called “document directions” the submission argues that the request could not be complied with because there was no minimum requirement or standard lesson plan format that teachers were required to use. It also submits that the directions were not lawfully issued and were on one occasion issued whilst the Applicant was on sick leave and on another when the parties were involved in “a voluntary process” 51. In its submission:

“120. The Applicant did not need to comply and Mr Harrington has endorsed Townsley's right not to do so.” 52

[49] In relation to the investigation direction the submission states:

“57. No proof, or even evidence, has surfaced that that direction operated beyond the precincts of the Complaints Process. No proof, or first hand credible evidence, has surfaced that Townsley intimidated the girls. No credible proactive statement from either girl has surfaced. At best it has elements of a grey area, which means no action should have been taken on it.

58. But that did not stop Mrs Walters from slapping a third Complaints Process on Townsley. About a week after doing so she admitted in an email to Townsley that neither she nor the Guidelines were clear on when the confidentiality of the May process ended.” 53

[50] The submission continued to indicate:

“74. The Department will accept the word of a 13 year old student and apologise for the word of a mature teacher and hopes it will get away with it. It has some nerve.

75. And as for the other student, (student name withheld), allegedly intimidated by Townsley in those late Oct/early Nov discussions, where is her statement that she was intimidated? There is no record of any statement that (student name withheld) was uncomfortable and intimidated. It appears to be another figment of Mrs Walters fertile imagination.” 54

[51] The submission also contained the following direct response to the Respondent’s position that the Applicant has failed to comply with various lawful and reasonable directions.

“131. The Applicant failed to comply with three (3) lawful and reasonable directions.

Response: There is no proof that three lawful and reasonable directions were issued to Townsley.

132. These directions have been referred to as the two (2) Document Directions.

Response: There is no proof that there was any authority to issue at least one of those directions while Townsley was sick with a doctor's certificate, nor that there is any authority to issue a lawful instruction in a voluntary process, nor that the directions were reasonable.

133. The third direction was issued on 16 May 2011. It directed him not to approach any person associated with a complaint against him in order to discuss the complaint .

Response: In the context in which Mr Harrington is arguing the point, it did no such thing. No evidence has been forthcoming from the Department in almost two years to substantiate Mr Harrington's claim. He really should pay attention to basic facts and stop spinning tales. The third direction made no specific order against speaking to anyone about the 16 May 2011 complaint more than five months after completion of the complaint. And no such inference should be drawn, particularly in view of the fact that the Principal, Mrs Walters, who claimed to have issued the direction, could not confirm whether it had any validity five months after the complaints process, and that the Guidelines were not clear on it either. The Education Department is big enough, it has enough internal and government legal muscle to clear up ambiguities and should not burden the Fair Work Commission to do its work for it. The third direction is a grey area that should not be used as an excuse to launch an application.” 55

[52] The submission also states that s.587 does not, by the Respondent’s own acknowledgement make reference or import into the statute the “no case to answer” concept. It accordingly does not have a role to play in the application of those provisions.

[53] The following clarification was also sought from the Applicant’s representative in the following terms as indicated on transcript:

“THE COMMISSIONER: Just before you commence, Mr Harrington, I want to have the chance to read the submission that Mr Townsley has provided. If I can just ask Mr Townsley just for the sake of my own clarity of understanding; Mr Townsley, do you accept that the applicant has acknowledged at all in cross-examination that he failed to follow any of the lawful and reasonable directions provided to him?

MR TOWNSLEY: No, I do not accept that, sir.

THE COMMISSIONER: So you reject that suggestion; that he has failed to follow any of those lawful and reasonable directions that Mr Harrington submits were provided to him?

MR TOWNSLEY: Well, I would say that he was under no impression at the time that the directions were in any way lawful. He regarded them as just another stunt and if he failed, that's for somebody else to decide. But he doesn't believe he did it. He doesn't believe that they were honourable, decent, reasonable, under any circumstances.” 56

[54] The Applicant’s evidence in his witness statement in response to the direction from the Principal in the letter of 14 September 2011 also restates the evidence he gave in cross examination that he did not need to respond to the Principal’s direction because he was involved in a voluntary process. He indicated:

“On 14 Sep 2011 Ms Walters gave me a ‘lawful instruction’ to comply with a voluntary process. I did not believe this was reasonable. My suspicions were confirmed that Ms Walters was being unreasonable when I was given another ‘lawful instruction’ by Ms Walters to complete work while I was ill during Sept 19–23 2011. Mr Greenwell agreed with this unreasonable action. These ‘lawful instructions’ given to me within day of asking the Ms. Walter’s why she hiring someone else (sic). Despite this, I complied with most of the demands.” 57

[55] The Applicant’s witness statement also challenges the student’s motivations for making the complaint, and questions how many students were involved. However, it does not respond to the evidence about his alleged breach of the Principal’s directions to not approach any of those involved in making the complaint.

Consideration

[56] This is obviously an unusual application. The Applicant’s unfair dismissal application is part heard. After six days of hearing the Applicant’s evidence has been admitted and cross examination of that witness evidence has concluded. The Respondent’s evidence is still to be admitted and tested. However, the Respondent now submits the evidence adduced at this point from that cross examination of the Applicant is sufficient to conclude that the Commission could not find the Applicant’s dismissal was harsh, unjust or unreasonable.

[57] The Respondent submits s.587 of the Act gives the Tribunal power to dismiss a matter at any time. It submits it is appropriate now for that power to be exercised and for the matter to be dismissed because the evidence adduced to this point indicates the Commission could not find that the Applicant’s dismissal, given his actions in not complying with or obeying reasonable and lawful directions given to him, was harsh, unjust or unreasonable. In terms of how the provisions in s.587 of the Act should be applied the Respondent submits they enable a matter to be dismissed pursuant to the specific grounds in sub paragraphs (1)(a), (b) and (c), but the power is not limited to those specific grounds, as the opening words of the section impute a broad power to dismiss. I am satisfied on the basis of the authorities referred to at an earlier point in this decision, in particular, the decision of Commissioner Gooley in Symbion Health that the Commission does have a broad power to dismiss a matter, both in the specific context of the matters referred to in s.587(1)(a), (b) and (c), but more generally as well, given the opening words of the section. I am satisfied this is not at issue.

[58] The Respondent also submits this broad power is akin to the common law notice of motion of “no case to answer” and that a similar approach can be implied into how the provisions in s.587 of the Act are applied. I have set out the Respondent’s submissions on this issue at an earlier point in this decision and don’t restate them now. I do not take issue with those submissions at this point but am satisfied it is not necessary to consider whether that concept needs to be imputed into the Act in the way suggested by the Respondent. Section 587(1)(c) already provides the ground of “no reasonable prospects of success” as a basis upon which the Commission might dismiss a matter. I am satisfied this enables the present application to dismiss to be considered in the manner proposed by the Respondent, but in a way that falls clearly within the statutory framework in the Fair Work Act 2009.

[59] In terms of how this provision is to be applied the Respondent referred to the decision of Deputy President McCarthy in Applicant v Respondent. That matter has also been referred to previously. Deputy President McCarthy did dismiss the matter before him at the time after dealing with it on the basis of limiting the evidence to that required to determine the Respondent’s s.587 application. In dismissing the application “as I find it has no reasonable prospects of success” 58 he also noted:

[60] The Deputy President made reference to the powers available under the Federal Court Act 1976 which enables summary judgment to be given in circumstances where one party can demonstrate the other party has “no reasonable prospect of successfully prosecuting or defending the whole proceeding or any part of the proceeding.” 60 He also noted in that jurisdiction the relevant provisions indicate a matter need not be “hopeless” or “bound to fail” to have no reasonable prospects of success.61

[61] I accept the findings of the Deputy President but am also mindful of the decision of the Full Bench in T. Wright and Australian Customs Service 62. In that matter the Full Bench considered the question in the context of the legislative provisions which at the time required the Tribunal, following conciliation of an unfair dismissal application, to advise the parties “if the Commission considers, having regard to all the materials before the Commission, that the application has no reasonable prospect of success.”63 It stated at paragraphs 23 and 24:

“[23] In our view, the act of issuing of a certificate under s.170CF(4) should be considered in its proper context. That context is an application by an employee under s.170CE of the WR Act. Section 170CE(1) entitles an employee to seek relief in respect of the termination of that employee's employment. Subject to the existence of the requisite jurisdiction and merit, that relief may be obtained, depending upon the ground upon which the claim is based, from either the Commission or a court of competent jurisdiction. The exercise of the power conferred by s.170CF(4) is one that brings proceedings in the Commission to an end in a summary way. The legislative intention, in our view, is to provide the Commission with a means of terminating at an early stage applications which, in so far as they relate to the ground specified in s.170CE(1)(a), are manifestly untenable or groundless. It is important to note that the issue before the Commission in such circumstances is not whether the applicant would probably succeed in the substantive application against the employer. It is whether the material before the Commission demonstrates that the substantive application should not be permitted to go to a hearing in the ordinary way because it is apparent that it must fail.

[24] In this respect, the exercise of the power may be seen to be similar, if not equivalent, to the exercise of the power of a court to terminate an action summarily for want of a cause of action. The power of a court to do so may arise from an inherent jurisdiction or from statute or the court's own rules. In the case of the Commission, the power to issue a certificate and thus bring an end to the application, at least in relation to the ground that the termination was harsh, unjust or unreasonable, arises from the WR Act. The effect of the exercise of the power by the Commission is the same as the effect of the exercise of a court's power to summarily dismiss an application.” 64

[62] However, as the Full Bench noted it was dealing with how a conclusion should be reached after a process of conciliation had occurred, and without the Commission having had the benefit of sworn evidence and therefore being able to make findings of fact on contested issues. As it noted at paragraph 28:

“The process of conciliation does not, of course, involve a formal hearing and the taking of evidence. Its function is directed towards the resolution of the matter by amicable agreement. During the process, concessions may well be made for the purpose of achieving such a resolution. Should the matter not be resolved by conciliation, such concessions would not be binding upon a party in any subsequent arbitration.” 65

[63] The Full Bench indicated in conclusion:

“[32] We reiterate that, in our view, in considering whether the requisite conclusion should be drawn, the Commission should proceed with exceptional caution and only draw that conclusion where, on all the materials before the member, the substantive application is manifestly untenable or groundless. Where, on those materials, there is a real issue of fact to be determined and that issue is relevant to the resolution of the substantive application, it would be unlikely that a conclusion could be formed that the application has ‘no reasonable prospect of success at arbitration’.” 66

[64] Clearly an application to dismiss should only be granted in limited circumstances. However, unlike the situation before the Full Bench, the present matter has not simply been dealt with in conciliation. Whilst still part heard I have had the benefit of the Applicant’s evidence being extensively tested in cross examination. As stated earlier, Deputy President McCarthy indicated in the matter of Applicant v Respondent “the most crucial evidence the Applicant will be able to bring is his own evidence.” I have also had the benefit of hearing that evidence and in a similar manner to Deputy President McCarthy have found it to be very unconvincing.

[65] However, an application to dismiss pursuant to s.587 should only be acceded to in limited circumstances and when the evidence before the Commission enables a conclusion that the substantive application has no reasonable prospects of success. I now turn to consider whether those circumstances exist in the context of the present matter.

[66] Section 385 of the Fair Work Act 2009 states that a person has been unfairly dismissed if the Fair Work Commission is satisfied:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.” 67

[67] In the present matter the Applicant submits his dismissal was harsh, unjust or unreasonable. In considering whether a dismissal is harsh, unjust or unreasonable the Act requires that the Commission take into account the factors set out in s.387. The obligations imposed by s.387 are clear and well understood. They were simply stated by a Full Bench of Fair Work Australia in the matter of L.Sayer v Melsteel Pty Ltd 68 in the following terms:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 69

[68] I now turn to consider the circumstances of the present matter and whether the Applicant’s dismissal can be found to be harsh, unjust or unreasonable given the considerations contained in s.387(a) to (h) I must have regard to.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[69] The existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application and often determinative. In the often cited decision of Parmalat Food Products Pty Ltd v Mr Kasian Wililo 70 the Full Bench made the following statement about the importance of “valid reason”:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 71

[70] The Respondent submits it had a valid reason to dismiss the Applicant given his conduct in not complying with or choosing to disobey lawful and reasonable directions given to him by the Principal. It submits that evidence establishes the existence of a valid reason without taking account of the issues to do with the Applicant’s work performance, which it acknowledges are contested and remain to be substantiated by the Respondent’s witness evidence. It submits this enables the matter to be dismissed pursuant to s.587 without the Respondent’s evidence being admitted and tested. In its submission the Principal, in the face of concerns about the Applicant’s work performance, gave written directions to him to provide copies of his lesson plans to her. It submits the Applicant did not comply with these lawful and reasonable directions, despite indicating in cross-examination they were lawful and within the Principal’s power to make. Various matters were raised by the Applicant in response. At one point solicitors, then acting on behalf of the Applicant, indicated the required documentation would be available to be inspected at its offices. The Applicant also submitted the directions from the Principal could not be complied with because no standard template or common format existed about how a lesson plan should be structured. It was also submitted variously by the Applicant that there was no need to comply with the Principal’s direction because the parties were involved in an industrial situation or a voluntary process, which did not require compliance with the directions provided to the Applicant by the Principal. The submission provided in response to the present application, on behalf of the Applicant, also states:

“131. The Applicant failed to comply with three (3) lawful and reasonable directions.

Response: There is no proof that three lawful and reasonable directions were issued to Townsley.” 72

[71] I do not accept the Applicant’s submissions on this point. I am satisfied that in all the circumstances the Principal gave lawful and reasonable directions to the Applicant. I am also satisfied they were appropriate directions to provide to a teacher in circumstances where concerns about that teacher’s work performance were being explored and investigated. In that context a fundamental part of any process of review and evaluation would be to seek from the teacher what plans or structure were in place for the forthcoming lessons the teacher was to provide to students at the school. In these circumstances and in the face of the Applicant’s failure to provide what was requested I am satisfied the Principal’s directions to the Applicant were entirely appropriate.

[72] I am also satisfied that the evidence indicates those directions were not complied with. It is acknowledged that different teachers may prepare and use different lesson plan formats, but this does not remove the obligation to produce that documentation to a person with the requisite authority to make such directions in circumstances where the teacher’s work performance is being reviewed and evaluated.

[73] The second direction was given to the Applicant by the Principal following complaints made about him by two year eight students. Those complaints were made in writing to the Principal in May 2011. Upon receipt of those complaints the Principal wrote to the Applicant on 16 May detailing the complaints and setting up a process to enable the Applicant to respond. The letter concluded with a direction that the Applicant was not to approach any of the students named in the complaint. However, later in that year the Applicant did approach both students on separate occasions and did raise the issue of the complaint that each had made to the Principal. The first occasion occurred in October when the student was in a detention class being supervised by the Applicant. The second occasion occurred in the following month when the Applicant raised the issue in a discussion with the student during a lesson. The Applicant did eventually acknowledge in cross-examination that if he had his time over things would have been handled differently, and the issue should not have been raised with the two girls. However, the submission made on his behalf in response to this application do not reflect those acknowledgements. It questions the veracity of the complaints made by the students involved and submits there was no evidence of discomfort or intimidation when the students were approached by the Applicant about the complaints they had made. Those submissions also suggest there was no specific direction in place stating that the Applicant was prevented from speaking to the students about the complaints some five or six months after they were first made. The Applicant’s witness statement also questions the motivation of the students who had made the complaint and takes issue with how many were involved. However, it does not make reference to the breach of the direction from the Principal to not approach those students about the complaint they had made.

[74] In my view these submissions are at odds with the Applicant’s own evidence adduced in cross-examination and ignore what should be clearly evident to a teacher in a position of power and authority with an appropriate understanding of his/her role and responsibilities. I am satisfied it should be evident to any teacher in that situation that it is inappropriate in any circumstances to approach a student in this way. It is a consequence that stems from the imbalance in the relationship between the teacher on the one hand and the student on the other. It is a situation that should apply regardless of whether the teacher has been given a specific direction by a Principal or not, and regardless of when it occurs. Ironically in this context the Applicant subsequently sought to rely on the fact he made a complaint against the Principal as reason why the Principal should not be in any form of contact with him.

[75] The Applicant’s representative also responded to a question from the Commission by indicating the directions were “a stunt” and in no way, under any circumstances, could they be considered to be lawful or reasonable. Again, I do not accept this submission. I am satisfied the so-called document and investigation directions given by the Principal to the Applicant were in the circumstances lawful and reasonable. I am also satisfied the evidence indicates they were received and understood by the Applicant in terms of what was being asked of him. I am also satisfied that despite them being lawful and reasonable they were either not complied with or deliberately disobeyed. Further, they deal with matters of fundamental importance in a relationship involving a principal and teacher.

[76] Having considered the evidence provided in this matter I am satisfied that the Respondent had a valid reason to dismiss the Applicant related to his conduct based on the evidence adduced in cross-examination about the issuing of those directions and the failure of the Applicant to either comply with or obey them. I am also satisfied that finding can be made at this point based on the evidence adduced in cross-examination without further testing of the Respondent’s evidence.

(b) whether the person was notified of that reason;

[77] I am satisfied the Applicant was notified of the reason for his dismissal now relied upon by the Respondent. I refer in particular to the 16 page letter provided to the Applicant by Mr Peter Greenwell, which sets out in extensive detail the reasons why the Applicant was dismissed, including his failure to comply with the directions given to him by the Principal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[78] I am satisfied the Applicant was given an opportunity to provide a response about why the directions from the Principal were either not complied with or disobeyed. This opportunity was provided on various occasions including in the letter dated 15 June 2012 from Mr Peter Greenwell to the Applicant contained in PG – 7, which indicated at page 18:

“By letter dated 14 September 2011 you were given a lawful direction by Ms Walters to provide her with your assessment records for 8H Mathematics and Unit 3 and 4 by 4:00pm Thursday, 15 September 2011 as well as you lessons (sic) plans for your lessons for the week commencing 19 September 2011. You did not comply with this direction.

By letter dated 19 September 2011 you were given a lawful direction by Ms Walters to provide her with your assessment records for Unit 3 and 4 IT Applications; indications of students who may need to undertake SAC redemptions; Exam preparation materials with clear indications of the areas students needed to revise to prepare for their final assessments; Curriculum planning including lesson plans for the current week beginning 10th October until 15th October. You did not comply with this direction.

By letter dated 16 May 2011 you were directed that you were not to approach any of the people named in the complaint regarding the complaint. The statements (two student names withheld) were attached to the complaint letter. On 28 October 2011 you questioned (student name withheld) about the statement and why she had made it. On 4 November 2011 you questioned (student name withheld) about her statement. I have considered your response and do not find it compelling. I have also considered your complaint about Ms Jungbahadur and find it irrelevant to the matter at hand.” 73

The letter continued to indicate:

“As I have stated above, I am of the preliminary determination that your performance is unsatisfactory and it would be open to me to find that you have repeatedly failed to discharge or duties in the manner required of an Accomplished Teacher at Fountain Gate Secondary College and I should terminate your employment pursuant to 2.4.59F(3)(c) of the Act.” 74

It concluded by indicating:

“Before I make my determination as to whether or not your performance has been unsatisfactory I invite you to provide a submission to me addressing the matters in the Report and the actions I may take.

Your submission should be provided to me within fourteen (14) days of receipt of this letter. It should be marked ‘Confidential’ and addressed to me.....You should be aware that if I do not receive your submission within the required time I will make my determination based on the information currently available to me.” 75

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[79] I am satisfied the Applicant was not denied the opportunity to have a support person present at any discussions relating to his dismissal.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;

[80] The letter referred to at paragraph [78] provides an example of the warnings given to the Applicant. He was also advised in writing by the principal in the letter contained at paragraph [15] that unsatisfactory performance under the Education and Training Reform Act 2006 included “contravening or failing to comply with a lawful direction given to the employee by a person in authority to give the direction.” He was also warned about the possible outcomes in response to action which was required to be taken. They involve either a reprimand, imposition of a fine, demotion or termination of employment.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[81] The School cannot be said to be a small employer in terms of staff numbers and it was required to comply with the processes and procedures required by the Department of Education & Early Childhood Development. The evidence adduced in cross-examination indicated they involved a thorough and protracted process of responding to the issues involving the Applicant. I am satisfied there is no evidence to suggest the size of the School impacted on the procedures followed in regards to the Applicant’s dismissal.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[82] Similarly, in regard to the matters referred to in the preceding paragraph there is nothing to suggest this consideration had any impact on the procedures followed in effecting the Applicant’s dismissal.

(h) any other matters that the FWC considers relevant

[83] An obvious matter that arises in this context concerns whether the matter can or should be determined without the Applicant having the opportunity to test the Respondent’s evidence. This raises questions of natural justice. Commissioner Gooley in the Symbion Health matter also emphasised that the Commission’s obligations to ensure “a fair go all round” in unfair dismissal matters also need to be considered in any application to dismiss a matter pursuant to s.587.

[84] It has long been established that members of the Commission and its predecessors are bound to apply the rules of natural justice. The fundamental nature of this obligation was emphasised by Gibbs J in R v Moore, Ex Parte the State of Victoria 76 when he stated:

“The members of the Commission are bound to act in accordance with the rules of natural justice: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R 546 at p. 552. They must therefore afford any party to a dispute a proper opportunity to be heard before making an order that affects him. Indeed it is inherent in the very notion of arbitration that there shall be a hearing of the disputants, and a procedure that produced an award without a proper hearing would be outside the Constitutional power: Australian Railways Union v Victorian Railways Commissioners (1930) 44 C.L.R 319, at pp. 384-385.” 77

[85] Clearly the requirements of natural justice will vary depending on the nature of the matter and the circumstances of a particular case. In the circumstances of the present matter the Applicant has had the opportunity to make submissions and call the evidence upon which he seeks to rely. He has not been denied that opportunity.

[86] The concept of “a fair go all round” was identified by the Sheldon J in the matter of Re Loty and Holloway v Australian Workers Union 78 and was seen at the time to be a summary of the approach to dealing with dismissal matters in the various State jurisdictions. Sheldon J stated at [99] in dealing with the duty to ensure a fair go all round:

“The less fetters there are on the discretion the better (none appear in the N.S.W Industrial Arbitration Act) but it is all important that it should be exercised soundly. The objective in these cases is always industrial justice and to this end weight must be given in varying degrees according to the requirements of each case to the importance but not the inviolability of the right of the employer to manage his business, the nature and quality of the work in question, the circumstances surrounding the dismissal and the likely practical outcome if an order of reinstatement is made.” 79

[87] The requirement for “a fair go all round” was later expressly incorporated into Federal legislation in the 1996 Workplace Relations and Other Legislation Amendment Act. That phrase continues to be part of the current Act and now contained in s.381(2) which states:

[88] Clearly, the procedures adopted and followed in dealing with any unfair dismissal applications must ensure this requirement is provided to both the Applicant and Respondent.

[89] The Respondent dealt with this obligation in its concluding submissions in the following terms:

“No, Commissioner. The submissions also suggest that, well, "Why didn't you make this application from the get-go?" My submission is, it would have been improper to make the application right at the start because in a formal sense there was no evidence before you. This is where we get into the terrain of the no case to answer concept, which is you listen to how the plaintiff or applicant puts their case, they call the evidence they wish to call - in this case it was Mr Townsley himself - there's cross-examination on a wide-ranging number of issues and then you sit there and go, "Well, how strong is his case at the end of that?" When you are coming back to the section 381 consideration of fair go all round, Commissioner, you can say, "Well, what 'go' was the applicant given?"

Well, he came here to the public forum. He filed his statements. He was represented by a lawyer on the first three days. He was given every opportunity on day one to go into evidence in chief to refute anything that he'd read in all the respondent's material. There was some evidence in chief; you will remember that, Commissioner. It's on the transcript. He was given every chance to come along and be heard in response to the respondent's material. He then - in the age-old fashion - was exposed to a close examination of his case on the evidence. You might take the view that a number of days were wasted with the asking of those questions, as clearly Mr Townsley Senior does.

But the reason that's age-old is because that's how our system works. It's the notion of the adversary system where there is often a public examination of the assertions or allegations made by one party and the examination clearly is not just as to the opinions formed by the witness or the party generally but also the underlying facts. What are the facts and how did they come about? That's what's critical in terms of the timing of this application, is that Mr Townsley was given his fair go all round to put his best case in his written statement form. Then he was exposed to a very close examination of the total case, of course; his entire case. I fully and openly concede that what remains contentious at this point in time is the nature of the support and monitoring process and what happened.” 81

[90] The Respondent concluded:

“So that's the fair go all round: that he got in the box and was able to respond to the respondent's material, be closely cross-examined, and we now have a factual basis for a finding that there were three lawful and reasonable directions, non-compliance with all of them and - in my submission - no reasonable basis for the non-compliance.” 82

[91] I am satisfied that both the requirements of natural justice and “a fair go all round” have been provided to the Applicant. He has had the opportunity to make submissions and provide the evidence he relies on in support of his unfair dismissal application. I am also satisfied that during the testing of that evidence it has been established that on three occasions he failed to comply with lawful and reasonable directions given to him by the Principal of his school without providing plausible explanations in response for this failure. In these circumstances and having considered all the submissions and evidence in this matter, and the considerations in s.387 I am required to have regard to, I am satisfied it is not possible to find the Applicant’s dismissal was harsh, unjust or unreasonable. I am satisfied in those circumstances it is appropriate to now dismiss the matter in accordance with s.587(1)(c) on the basis that the application has “no reasonable prospects of success”. The application is accordingly dismissed.

Appearances:

J. Townsley appeared on behalf of the Applicant.

N. Harrington of Counsel appeared on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

14, 15 and 16 January.

8, 12 and 19 March.

1 Fair Work Act 2009 (Cth) s.587(1).

2 Ibid at s.587(3).

3 Ibid at s.587(1).

4 [2011] FWA 5458.

5 Ibid at [57] and [58].

6 Ibid at [59].

7 [2010] FWAFB 9413.

8 Ibid at [11]-[13].

9 Fair Work Act 2009 (Cth) s.381(2).

10 Ibid at s.577(a).

11 Ibid at s.578.

12 Exhibit R7 at para 5.

13 Witness Statement of Vicki Walters at Appendix 70.

14 Ibid at Appendix 71.

15 Transcript at PN2608 and PN2609.

16 Witness Statement of Vicki Walters at Appendix 72.

17 Ibid at Appendix 73.

18 Ibid.

19 Ibid at Appendix 74.

20 Ibid at Appendix 75.

21 Transcript at PN2673 and PN2674.

22 Witness Statement of Peter Greenwell, Appendix 7 at page 6.

23 Ibid at page 18.

24 Transcript at PN2695.

25 Witness Statement of Vicki Walters at Appendix 11.

26 Ibid at Appendix 123.

27 Transcript at PN911 - PN938.

28 Ibid at PN979.

29 [1985] VR 187.

30 Ibid at 215.

31 [2008] VSC 68.

32 Ibid at [3].

33 Exhibit R8 at paragraph 10.

34 [2010] FWAFB 9413.

35 Fair Work Act 2009 (Cth) s.587(c).

36 [2010] FWA 1765.

37 Ibid at [5] and [6].

38 Ibid at [7].

39 Ibid at [10] and [11].

40 Federal Court Act 1976 (Cth) at s.31A(3).

41 [2010] FWA 1765 at [15] and [16].

42 Ibid at [34].

43 Ibid at [32].

44 Transcript at PN4916.

45 Ibid at PN4917.

46 Exhibit A3 at paragraph 3.

47 Ibid at paragraph 6.

48 Ibid at paragraph 10-13.

49 Ibid at paragraph 21.

50 Ibid at paragraph 29.

51 Ibid at paragraph 119.

52 Ibid at paragraph 120.

53 Ibid at paragraph 57 and 58.

54 Ibid at paragraph 74 and 75.

55 Ibid at paragraphs 131-133.

56 Transcript at PN4872-PN4875.

57 Exhibit A1 at paragraph 30.

58 [2010] FWA 1765 at [34].

59 Ibid at [32].

60 Federal Court Act 1976 (Cth) at s.31A.

61 160 FCR 298 at 310, as referenced in [2010] FWA 1765.

62 [2002] AIRC 1595; PR926115.

63 Workplace Relations Act 1996 (Cth) at s.170CF(1) as referenced in [2002] AIRC 1595; PR926115.

64 [2002] AIRC 1595; PR926115 at [23] and [24].

65 Ibid at [28].

66 Ibid at [32].

67 Fair Work Act 2009 (Cth) at s.385.

68 [2011] FWAFB 7498.

69 Ibid at [20].

70 [2011] FWAFB 1166.

71 Ibid at [24].

72 Exhibit A3 at paragraph 131.

73 Witness Statement of Peter Greenwell; Exhibit PG7 at page 18.

74 Ibid at page 19.

75 Ibid.

76 [1977] 140 CLR 92.

77 Ibid at page 101-2.

78 [1971] AR (NSW) 95.

79 Ibid at 99.

80 Fair Work Act 2009 (Cth) at s.381(2).

81 Transcript at PN4996-PN4998.

82 Ibid PN5002.

Printed by authority of the Commonwealth Government Printer

Andrew Townsley v State of Victoria (Department of Education & Early Childhood Development)

[2013] FWC 1836

14 JUNE 2013

DECISION

Introduction

The Issue to be Determined

“The Document Directions”

“The Investigation Direction”

Consideration

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

(b) whether the person was notified of that reason;

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

(h) any other matters that the FWC considers relevant