FEDERAL COURT OF AUSTRALIA
Lambley v DP World Sydney Limited [2013] FCA 4
Citation: Lambley v DP World Sydney Limited [2013] FCA 4 Parties: STEVEN LAMBLEY v DP WORLD SYDNEY LIMITED and FAIR WORK AUSTRALIA File number: NSD 1109 of 2012 Judge: KATZMANN J Date of judgment: 10 January 2013 Catchwords: INDUSTRIAL LAW – Unfair dismissal – fighting at work – employee dismissed after assaulting fellow employee at workplace – employee applied to Fair Work Australia for unfair dismissal remedy – Deputy President of FWA found that employee’s conduct was a valid reason for dismissal but that dismissal was harsh, unjust and unreasonable and ordered reinstatement ‑ Full Bench of FWA gave permission to appeal, allowed appeal and quashed decision – whether Full Bench relied on erroneous principles ‑ jurisdiction of Full Bench
ADMINISTRATIVE LAW – Application for constitutional writs – whether decision of Full Bench infected by jurisdictional error – scope and operation of principles from House v The King – whether appellate tribunal can only interfere with decision it finds “unreasonable or plainly unjust” where it is not apparent how result was reached ‑ whether Full Bench failed to complete its jurisdictional task by failing to re-exercise discretion for itself
Legislation: Fair Work Act 2009 (Cth) ss 381, 385, 387, 390, 394, 400, 400(1), 400(2), 570, 604(1), 607, 607(3) Cases cited: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194
House v The King (1936) 55 CLR 499
GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343
Gronow v Gronow (1979) 144 CLR 513
Lovell v Lovell (1950) 81 CLR 513
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1994) 43 FCR 280
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
AWU–FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385
Norbis v Norbis (1985) 161 CLR 513
Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 Durham v Durham (2011) 80 NSWLR 335
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (No 2) [2012] FCA 419Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Mr S Crawshaw SC with Ms L Doust Solicitor for the Applicant: Slater & Gordon Counsel for the First Respondent: Mr I Taylor SC with Mr D Mahendra Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: The second respondent filed a submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1109 of 2012
BETWEEN: STEVEN LAMBLEY
ApplicantAND: DP…
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Details
- Case
- [2013] FCA 4
- Decision Date
CaseChat Overview and Summary
In the case of Lambley v DP World Sydney Limited, Mr. Lambley, a long-term employee at Port Botany Terminal, was dismissed following an altercation with a fellow employee, Mr. Smith. Mr. Lambley appealed to the Fair Work Australia (FWA) seeking reinstatement, arguing that his dismissal was unfair due to years of provocation and goading by Mr. Smith, as well as DP World's handling of Mr. Smith's own history of workplace misconduct. The Deputy President of FWA initially found Mr. Lambley’s dismissal to be harsh, unjust, and unreasonable, and reinstated him. DP World then appealed to the Full Bench of FWA, which considered whether the Deputy President’s decision involved an error that warranted overturning.
The legal issues before the Full Bench were whether the Deputy President had erred in his decision to reinstate Mr. Lambley, particularly in his assessment of the fairness of the dismissal and his interpretation of the CCTV footage. The Full Bench needed to determine whether the Deputy President's decision involved a significant error of fact or an error in the exercise of discretion that warranted intervention. The Full Bench's jurisdiction was also a matter of consideration, as it could only grant permission to appeal if it was in the public interest and if the appeal involved a significant error of fact.
The Full Bench found that the Deputy President had indeed erred in his discretionary decision to reinstate Mr. Lambley. The Full Bench concluded that the Deputy President had not adequately considered all relevant factors, including the nature of Mr. Lambley's actions and the lack of a comparable history of misconduct on Mr. Lambley's part. Furthermore, the Full Bench found that the Deputy President had misinterpreted the CCTV footage, which did not support the conclusion that Mr. Smith had feigned innocence. The Full Bench determined that the Deputy President’s decision was tainted by a failure to properly weigh all relevant circumstances, leading to an unbalanced and flawed outcome.
Ultimately, the Full Bench quashed the Deputy President’s decision and remitted the matter back to the Deputy President for reconsideration, ensuring that all relevant factors were appropriately assessed. This decision highlights the importance of thorough consideration and proper weighing of all evidence in employment disputes, particularly when discretionary decisions are involved.
The legal issues before the Full Bench were whether the Deputy President had erred in his decision to reinstate Mr. Lambley, particularly in his assessment of the fairness of the dismissal and his interpretation of the CCTV footage. The Full Bench needed to determine whether the Deputy President's decision involved a significant error of fact or an error in the exercise of discretion that warranted intervention. The Full Bench's jurisdiction was also a matter of consideration, as it could only grant permission to appeal if it was in the public interest and if the appeal involved a significant error of fact.
The Full Bench found that the Deputy President had indeed erred in his discretionary decision to reinstate Mr. Lambley. The Full Bench concluded that the Deputy President had not adequately considered all relevant factors, including the nature of Mr. Lambley's actions and the lack of a comparable history of misconduct on Mr. Lambley's part. Furthermore, the Full Bench found that the Deputy President had misinterpreted the CCTV footage, which did not support the conclusion that Mr. Smith had feigned innocence. The Full Bench determined that the Deputy President’s decision was tainted by a failure to properly weigh all relevant circumstances, leading to an unbalanced and flawed outcome.
Ultimately, the Full Bench quashed the Deputy President’s decision and remitted the matter back to the Deputy President for reconsideration, ensuring that all relevant factors were appropriately assessed. This decision highlights the importance of thorough consideration and proper weighing of all evidence in employment disputes, particularly when discretionary decisions are involved.
Orders
Orders of the court
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Background
Background to the litigation
In broad terms, then, the issues are whether the Full Bench erred in any of these respects and if so, whether the error or errors go to jurisdiction. Factual background Mr Lambley was employed by DP World as a Grade 5 stevedore at the Port Botany Terminal. DP World had a policy which stated that fighting on site and the use of abusive or threatening language or physical force with the intent to harass, victimise, coerce or injure was conduct that could lead to suspension or dismissal. On the night of 5 June 2011 Mr Lambley was filmed at the Terminal by closed circuit television cameras viciously assaulting a fellow employee, Peter Smith. The antecedent circumstances are uncontroversial. Mr Smith had a long history of abusive, threatening and bullying behaviour towards Mr Lambley and other employees. In the proceeding before the Deputy President Mr Lambley gave uncontradicted evidence that Mr Smith had repeatedly threatened that he would “cave his head in”. The assault followed a heated verbal altercation in the canteen while Mr Lambley was waiting to start his shift in which Mr Smith goaded him into meeting outside for a fight in 10 minutes time. Mr Lambley left the canteen and waited in the car park for about nine minutes, left the car park to go to the toilet and returned to wait for Mr Smith. The Full Bench described what happened next:When Mr Smith exited the premises Mr Lambley approached him quickly with his clenched fists raised. Mr Lambley threw the first punch. Mr Smith did not fight back or raise his hands, and during the entire altercation, he did not throw any punches. Mr Lambley punched Mr Smith again in the face with force, got him into a headlock and punched him 2-3 more times, grabbed him by the shoulders and threw him to the ground, and while Mr Smith was on the ground, moved around his body and kicked him in the head as hard as he could. He then tried to pull Mr Smith up to continue to fight. At that stage, about 10.30pm the fight broke up and Mr Lambley re-entered the DP World premises. DP World carried out an investigation into the incident and decided to dismiss both Mr Lambley and Mr Smith. The two men applied for reinstatement but Mr Smith’s application was settled on terms the evidence does not disclose. In his application to FWA Mr Lambley challenged the decision to dismiss him as unfair because of “intense preconceived provocation and goading” by Mr Smith over a number of years and immediately before the assault and because DP World had kept Mr Smith in employment despite a long history of “adverse conduct in the workplace towards fellow employees”. Mr Lambley contended that the dismissal was unfair, too, because DP World had not considered all the circumstances. He said that those circumstances included:that the incident was an isolated one, that Mr Lambley in nearly 30 years of service has not had any similar events recorded against him, and the adverse effect and negative life position the dismissal leaves Mr Lambley and his family in, renders the dismissal in all the circumstances harsh, unjust and unreasonable.The jurisdiction of FWA
Evidence
Evidence Before The Court
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Decision
Reasons for decision
A person who is aggrieved by a decision of FWA may appeal the decision “with the permission of FWA” (s 604(1)). The jurisdiction of the Full Bench is defined by the terms of ss 400 and 607. The Full Bench is constrained from granting permission to appeal unless it considers that it is in the public interest to do so (s 400(1)) and, to the extent that the appeal concerns a question of fact, the appeal can only be made on the ground that the decision involves a significant error of fact (s 400(2)). If permission is granted, the Full Bench may confirm, quash or vary the decision under appeal, make a further decision for itself or refer the matter to a member for further determination (s 607(3)). The decision of DP Sams The Deputy President found that Mr Lambley had been set up by Mr Smith with the express intention of procuring his dismissal. He referred to Mr Smith’s history of threatening and bullying behaviour and the curiosity that, having goaded Mr Lambley into a fight, Mr Smith threw no punches himself. He accepted evidence that about a month before the incident Mr Smith had vowed to “get” Mr Lambley and “fuck him up”. He found that Mr Smith had engaged in a pattern of reprehensible behaviour towards fellow employees. He considered that Mr Smith’s behaviour during the fight was contrived in order to create the false impression that he was an innocent victim. Evidence was given, which the Deputy President found significant, that the CCTV footage skipped about 20 seconds at the very time that it was said that Mr Smith had feigned a punch. The Deputy President thought this raised questions about whether the footage had been manipulated to erase Mr Smith’s punch. The Deputy President accepted that Mr Lambley’s conduct provided a valid reason for his dismissal. Nevertheless, he found the termination was harsh, unjust and unreasonable because he considered it to be “an utterly flawed and unbalanced response” to the incident. He said it was “grossly unfair” for DP World to rely on the CCTV footage to dismiss Mr Lambley while ignoring “the bizarre and unexplained circumstances” in which that footage was created. He held that DP World’s decision was “coloured and ultimately tainted by a perception … that there would be trouble if one of them was reinstated, but not the other”. In the process, he found that DP World had failed to weigh up (properly or at all) the motive, provocation and past history of Mr Smith and Mr Lambley’s “long and relatively unblemished service”, Mr Lambley’s honesty during the investigation and his “remorse and contrition”. The appeal to the Full Bench An appeal to the Full Bench is in the nature of a rehearing, so that the decision of the Deputy President could only be disturbed if error could be demonstrated (see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [18], [32] per Gleeson CJ, Gaudron and Hayne JJ, at [75] per Kirby J). The parties accepted as much. They also accepted that the Deputy President’s decision was a discretionary one, involving as it did the exercise of value judgments (Coal and Allied Operations at [19]), with the result that the kind of error that had to be shown to warrant intervention by the Full Bench was the kind described in House v The King (1936) 55 CLR 499 at 504-5, although they differed about the extent to which the principles in the case applied to appeals in FWA.
Ratio Decidendi
Legal Principle Established
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