Linfox Armaguard Pty Ltd T/A Linfox Armaguard v Craig Symes

[2019] FWCFB 556

[2019] FWCFB 556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Linfox Armaguard Pty Ltd T/A Linfox Armaguard
v
Craig Symes
(C2018/7125)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAMS
COMMISSIONER MCKENNA SYDNEY, 31 JANUARY 2019

Application for permission to appeal and appeal of a decision of Deputy President Asbury at Brisbane on 13 December 2018 in matter U2018/4510 – unfair dismissal application – dismissal harsh and unreasonable – reinstatement and payment of part lost remuneration – no arguable case of appealable error – public interest not enlivened – permission to appeal refused – appeal dismissed.

BACKGROUND

[1] Linfox Armaguard Pty Ltd T/A Linfox Armaguard (‘Armaguard’ or ‘the appellant’) has applied, pursuant to s 604 of the Fair Work Act 2009 (the ‘Act’), for permission to appeal and appeal against a decision and order (PR703140) of Deputy President Asbury given at Brisbane on 13 December 2018 in matter U2018/4510: see Symes v Linfox Armaguard Pty Ltd t/a Linfox Armaguard [2018] FWC 7142 (the ‘Decision’).

[2] Shortly stated, Craig Symes (the ‘respondent’ to the appeal) was employed by the appellant for 17½ years as an Armoured Vehicle Operator (AVO) until he was dismissed on 13 April 2018 following a series of events which began on 1 March 2018, and which resulted in the loss of an Armaguard’s client’s cash consignment of $58,710.00. Mr Symes and his Crew Leader, Kelly Bedford, had collected the cash consignment, returned to the depot and, due to a mechanical failure with the armoured vehicle (‘AV’), the cash was left in the transfer safe and not correctly recorded by the Despatch Clerk as being received. The cash remained in the transfer safe, until 4 March 2018, when the vehicle was sent to an external company for routine maintenance and it was there that the cash went missing. The fact that the cash went missing was not discovered by the appellant until mid-March 2018. Following an investigation, Mr Symes and Ms Bedford were both dismissed for substantially the same reason, namely, that they had failed to follow proper procedures which had resulted in the cash consignment going missing and ultimately stolen (although it was later fully recovered).

[3] Both Mr Symes and Ms Bedford filed unfair dismissal applications, pursuant to s 394 of the Act, which were subsequently determined by the Deputy President. This appeal only deals with the determination of Mr Symes’ application, in which the Deputy President found there was no valid reason for his dismissal; his dismissal was harsh and unreasonable, and therefore unfair; and ordered his reinstatement without loss of continuity, and the payment of lost remuneration of $29,037.02 plus superannuation of $2,758.51 after a reduction of 60% for Mr Symes’ negligent and careless conduct. (As to the outcome of Ms Bedford’s application, see Bedford v Linfox Armaguard Pty Ltd T/A Linfox Armaguard [2018] 7574.)

[4] The appellant appears to have conflated both its grounds of appeal with the reasons why it is said it is in the public interest to grant permission to appeal. Armaguard submitted that the Deputy President erred in respect to:

•  the finding that there was no valid reason for the respondent’s dismissal, as the finding failed to take account relevant considerations (Ground One);

•  her ordering of the respondent’s reinstatement, by failing to take into account relevant considerations (Ground Two);

•  receiving evidence from Ms Bedford, despite her not being called in the respondent’s case (Ground Three).

[5] The appeal was listed for permission to appeal only before the Full Bench of the Commission in Sydney, with a video link to Brisbane on 10 January 2019. Mr M Rawlings of Counsel appeared with Ms P Thompson for the appellant, with permission granted for the appellant to be legally represented, pursuant to s 596 of the Act. Mr L Norris, a solicitor employed by the Transport Workers’ Union of Australia (‘the Union’), appeared for the respondent.

The Deputy President’s Decision

[6] The Deputy President set out in summary the events leading to the respondent’s dismissal at [2] as follows:

‘[2] In summary, on 1 March 2018, Mr Symes and Ms Bedford were operating an Armoured Vehicle (AV) and attended at the premises of a client to collect a cash consignment. When they exited the AV they did not note that the outer door of the AV failed to close. When they returned to the AV and noted the open door, Mr Symes entered the vehicle and Ms Bedford placed the consignment into a transfer safe accessible from outside the AV. The money was not removed from the transfer safe before they returned the vehicle to the Company’s Depot. Armaguard’s policy is that cash or valuables are not to be transported in transfer safes. When the AV was unloaded at the Depot the consignment was left in the transfer safe. The consignment was incorrectly recorded by a Despatch Clerk as having been received and its absence was not noted in a global count undertaken by Armaguard. A receipt for the consignment was later mislaid and it was assumed that the consignment had not been collected. The fact that the consignment was missing was not discovered until mid-March 2018.’

[7] Eight witnesses were called to give evidence in the proceeding - four on behalf of Mr Symes and, for the appellant, four Armaguard managers. CCTV footage from cameras in the AV and the depot were tendered in the evidence. The Deputy President’s summary of the evidence in respect to the investigation and dismissal of the respondent, including what the CCTV footage disclosed, is to be found from [14]-[73]. Relevantly, we observe, the Deputy President made credit findings in one respect, at [16] concerning Ms Bedford’s evidence, where the Deputy President said:

‘[16] The evidence given by Ms Bedford in her application was she felt pressured by Mr Lorensini to continue the run and considered that Mr Lorensini had directed her to do so. I therefore consider that it is probable that Ms Bedford relayed her view in this regard to Mr Symes. It was also Ms Bedford’s evidence that if the AV is returned to base and there is a delay in a replacement AV being available, the length of the shift will be extended in contrast to circumstances where there is an AV that they can immediately take out to continue with the run. Ms Bedford also maintained that Mr Lorensini told her that there were no spare AVs or Road Crew to replace Mr Symes. For reasons set out in my Decision in relation to Ms Bedford’s unfair dismissal application, I prefer her evidence on this point to that of Mr Lorensini.’ (References omitted)

[8] At [74]-[77], the Deputy President identifies the relevant legislative provisions and the authorities in relation thereto, which apply to unfair dismissal matters. From [78]-[118], the Deputy President deals with, and makes findings on, each of the matters under s 387 of the Act which must be taken into account in an unfair dismissal case. Her conclusions are summarised at [119] as follows:

‘[119] After weighing the considerations in s. 387, I have concluded that Mr Symes’ dismissal was unfair on the grounds that it was harsh and unreasonable. The dismissal was harsh because the conduct engaged in by Mr Symes while deserving of censure and disciplinary action, was not of sufficient gravity to warrant dismissal, much less summary dismissal. The dismissal was unreasonable because insufficient consideration was given to relevant mitigating circumstances, with the result that inferences were drawn about Mr Symes’ culpability for the consignment going missing and being stolen, in circumstances where the information which was before Armaguard did not support those inferences. In particular insufficient weight was given to other factors which had a greater or at least equal impact on the consignment going missing and being stolen - namely:

•  The malfunctioning doors of the AV;

•  The failure of Mr Lorensini to report the matter to Mr Kesting when Ms Bedford first reported it to him, in circumstances where the malfunction to the doors of the AV was the second in the space of a week;

•  The lack of detail in the Handbook in relation to the suitable guarding position and the lack of refresher training in this regard;

•  The fact that the Handbook did not cover a situation where the door of an AV is open and the alarms indicating a breach are not activated;

•  The fact that it is not uncommon for outer doors of AVs to fail to latch and that there is a technique (holding the door while pushing it instead of swinging it) to ensure that the latch engages which Mr Symes and Ms Bedford were not aware of until the incident on 1 March 2018;

•  The fact that the Despatch Clerk made two errors – failing to see the consignment in the transfer safe and circling the loading docket to indicate that it was received when this was not the case;

•  The failure to account for the consignment in the global count;

•  The fact that the receipt for the missing consignment was mislaid – or as Mr Miller described it “did not make its way across the cash floor” – resulting in an assumption that the consignment had not been collected; and

•  The failure to have a procedure to search AVs before they are sent out for repairs and of Mr Lorensini to check the transfer safe before the vehicle was sent out for repairs.’

[9] We do not understand there to be any serious challenge to the Deputy President’s findings as to s 387(b)-(g) of the Act going essentially to procedural fairness matters.

[10] In respect to remedy, the Deputy President concluded at [122] as follows:

‘[122] In all of those circumstances, I am of the view that Mr Miller’s loss of trust and confidence in Mr Symes is not soundly based and that it should not be an impediment to reinstatement. I also note that a number of Mr Symes’ colleagues gave evidence on his behalf in relation to acting as support persons for him in meetings about the incident that led to his dismissal. Those witnesses were not cross-examined as to whether they had lost confidence in Mr Symes’ ability to carry out the role of an AVO or reluctance to work with him. There is no evidence to that effect – other than an assertion from Mr Miller. I do not consider that this is an impediment to reinstatement. I have also considered Mr Symes’ attitude in the hearing including his persistent refusal to accept responsibility for his part in the events leading to the loss of the consignment and his attempts to saddle Ms Bedford with the blame. Notwithstanding these matters, Mr Symes did retreat from these positions under cross-examination and accordingly I do not see this as an impediment to reinstatement given Mr Symes ultimately accepted that his conduct fell short of what was required. There is no other reason on the evidence before me, why Mr Symes cannot be reinstated. Accordingly I am satisfied that an order should be made requiring that Armaguard reinstate Mr Symes by appointing him to the position in which he was employed immediately before the dismissal.’

[11] The Deputy President made associated orders for no loss of Mr Symes’ continuity of service and payment to him of lost remuneration, with a reduction of 60% in relation to his conduct. In this respect, the Deputy President said at [126]-[127]:

‘[126] I also consider it appropriate that Mr Symes should not receive the full amount of his lost remuneration. The Commission has discretion to order the payment of “an amount” for lost remuneration and such an order may be for the full amount or part of it. Notwithstanding my finding that he was unfairly dismissed, Mr Symes was negligent and careless in the performance of his duties and contributed to the loss of and subsequent theft of a significant sum of money with a real potential to cause reputational and financial damage to Armaguard. Mr Symes had a lengthy period of employment and was qualified as a Crew Leader and frankly should have known better. Mr Symes had significantly more experience than his colleague who was undertaking the role of Crew Leader on 1 March 2018 and his attempts to portray himself as subordinate to her were unimpressive.

[127] The amount by which I intend to reduce the order for lost remuneration is an amount of 60%. That reduction reflects the seriousness of Mr Symes’ conduct and its implications and his level of culpability in comparison with his colleague Ms Bedford. An order will issue with this Decision requiring that Armaguard reinstate Mr Symes with effect from 14 days from the date of this Decision and that the continuity of Mr Symes’ employment and continuous service with Armaguard be maintained. I also intend to Order that Armaguard pay to Mr Symes an amount for lost wages and superannuation contributions for the period between 13 April 2018 when his dismissal took effect, and 21 December 2018, when the Order for reinstatement will take effect.’

SUBMISSIONS

[12] In a written outline of submissions the appellant addressed each of its three grounds of appeal by reference to s 400(1) of the Act in respect to the public interest, as follows:

Ground One – The Commission at first instance erred in finding there was no valid reason for the dismissal of Craig Symes, as such a finding failed to take into account relevant considerations

•  The appellant says the Deputy President erred, firstly, by failing to consider the potentialof damage to the appellant’s commercial reputation.

•  The appellant was entitled to consider the potential of reputational harm caused by the conduct of the respondent: see Fair Work Regulation 2009 (Cth), reg 1.07; Selvachandran v Peterton Plastics Pty Ltd (1995) 62 IR 371, 373; Sexton v Pacific National (ACT) Pty Ltd (2003, AIRC, PR931440 at [20]-[23]. As such, the appellant called evidence that the decision-maker considered potential reputational harm within the cash-in-transit industry, as a consequence of the respondent’s conduct, at the time of dismissal.

•  The respondent, at first instance, did not call evidence about, or challenge any witnesses regarding, reputational harm; he seemingly relied only on the lack of evidence of actual reputational harm.

•  However, the Deputy President limited her consideration only to the reputational harm with the client subject to the loss on 1 March 2018. Accordingly, the appellant says the Commission erred in failing to consider potential reputational harm in the industry when it was clearly raised in the appellant’s case.

•  Secondly, the Deputy President erred by failing to consider the safety and welfare of other employees in her findings in relation to s 387(a) of the Act.

•  The appellant raised the impact of the conduct on safety and welfarein the first instance: see Sayer v Malsteel Pty Ltd [2011] FWAFB 7498 at [14]; Roads Corporation v Dacakis [1995] 2 VR 508, 536.

•  The Commission’s failure to consider the safety and welfare of other employees is an error of law.

•  The appellant says the Commission’s decision that there was no valid reason to dismiss the respondent:

(a) manifests an injustice as the Commission failed to consider the case presented by the appellant, as such is procedurally unfair (s 588(a) of the Act);

(b) is disharmonious with legal principles, as the Commission did not have regard to the appropriate test for valid reason having regard to the evidence before it: see BlueScope Steel Ltd v Sirijovski [2014] FWCFB 2593 at [32]; Selvachandran v Peterton Plastics Pty Ltd (1995) 62 IR 371, 373; Watson v Mermaid (1996) 142 ALR 681, 685; Alidair Limited v Taylor (1977) ICR 446, 453-454; and Sexton v Pacific National (ACT) Pty Ltd (2003, AIRC, PR931440 at [20]-[23]).

Ground Two – The Commission at first instance erred in ordering reinstatement of Craig Symes as such an order failed to take into account relevant considerations

•  In ordering reinstatement, the Deputy President confined considerations to whether the appellant had lost trust and confidence. As such, the appellant says the Deputy President erred by failing to consider the circumstances as a whole.

•  Despite evidence before it, the Commission did not have regard to: the general nature of the appellant’s business; the fact that the client in question was a multinational business and was the informant in relation to the loss of the money; and the importance of a reputation of competently securing money in the cash-in-transit industry.

•  Further, the appellant says the Deputy President erred in failing to take into account her own findings, particularly including that the respondent was operationally negligent, careless, contributed to misplacing client money, and continually refused to accept responsibility.

•  An order for reinstatement must consider the circumstances as a whole, having regard to the impact on the employment relationship and the nature of the employee’s role: see Perkins v Grace Worldwide (1997) 72 IR 186, 191; Regional Express Holdings Limited t/a REX Airlines v Richards [2010] FWAFB 8753 at [26]; Lambley v DP World Sydney Ltd t/a DP World Sydney [2012] FWA 1250 at [166].

•  The appellant says the Commission’s considerations on reinstatement were inadequate:

(a) as the Decision manifests an injustice as the Commission failed to consider the case presented by the appellant and, as such, is procedurally unfair;

(b) as the Decision resulted in a counterintuitive outcome as the employee was found to be negligent and carelessin his role, nevertheless was reinstated to his position with the appellant; and

c) as the Decision is disharmonious with legal principles, as the Commission did not apply the appropriate test at law (which includes taking into account all of the circumstances before it on the basis of authorities earlier referred to in relation to impact on the employment relationship

Ground Three – The Commission at first instance erred in receiving evidence from Kelly Bedford despite not being called in the Respondent’s case

•  The appellant says the Deputy President erred at law by taking into account the evidence of Ms Bedford, who was not a witness in the respondent’s case. The Commission made preliminary orders, acceding to the respondent’s application, that he would present his case separately to Ms Bedford. However, despite the respondent not calling Ms Bedford as a witness, the Commission took into account the evidence of Ms Bedford.

•  The Commission is under an obligation to allow a party to present their case and challenge evidence presented against them, and any departures from these expectations should not disadvantage one party over the other. Should evidence be used for a reason broader than that for which it was called, the relevant parties ought to be placed on notice of the Commission’s intentions: see McCullough v Calvary Health Care Adelaide [2015] FWCFB 873 at [25] citing Suvaal v Cessnock City Council [2003] HCA 41 at [36].

•  In these circumstances, the appellant was denied the right to cross-examine Ms Bedford regarding the evidence of the respondent, and, denied the benefit of any adverse inference associated with Mr Symes’ failure to call a witness. The appellant says the Commission erred in taking into account evidence in this manner, as it deprived the appellant of procedural fairness and contrary to s 577(a) of the Act.

[13] In oral submissions, Mr Rawlings focused primarily on the proposition advanced in Ground Three, namely that the appellant had been denied procedural fairness, in the Deputy President’s acceptance of the evidence of Ms Bedford at [16], when Ms Bedford was not called to give evidence in the respondent’s case. He submitted it was never made clear and the appellant was never put on notice that the evidence of Ms Bedford would be considered across the applications. To the contrary, each application was considered as a ‘silo’ and ran separately: see Holland v Salazar [2014] FWCFB 7813 at [23] as to procedural fairness.

[14] Mr Rawlings put that there was no explicit part of the evidence where there had been support for, or weight given to, either Ms Bedford’s evidence being taken into account or otherwise. Further, there was a denial of the opportunity to cross-examine her on issues associated with the respondent’s application which Ms Bedford may have been privy to.

[15] As to Ground Three, Mr Norris put that the appellant’s arguments amounted to ‘running a fine tooth comb’ through the Decision, without reading the Decision as a whole. In reading the Decision as a whole there is not one example, identified by Mr Rawlings, which could be said to have resulted in a denial of natural justice and no public interest is therefore enlivened.

[16] Returning to Ground One, Mr Norris rejected the appellant’s submission that the Deputy President failed to take into account industry reputational harm, as she was clearly alive to the issue by her reference at [52] to Mr Miller’s evidence in that regard. Moreover, not only did the Deputy President take this matter into account, she ultimately did so adversely to the respondent, at [126] when she gave reasons for the discount of 60% to lost remuneration. When viewed in this way, the appellant is merely quibbling about the weight accorded to all the matters to be taken into account. This does not enliven the public interest. Mr Norris also rejected the submission that the Deputy President did not take into account the safety and welfare of other employees having regard to [101] and other references in the Decision.

[17] In respect to Ground Two, Mr Norris submitted that the Deputy President had correctly considered and applied all the relevant principles to the exercise of discretion in ordering the respondent’s reinstatement. There was no error in the Deputy President’s approach, let alone a significant error of the kind considered in House v R [1936] HCA 40; 55 CLR 499.

CONSIDERATION

[18] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker; s 607(2) of the Act; see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with the permission of the Commission.

[19] This appeal is one to which s 400 of the Act applies. Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[20] In Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43] Buchanan J (with whom Marshall and Cowdroy JJ agreed) (‘Coal & Allied’) characterised the test under s 400 as ‘a stringent one’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment: see O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; and Coal & Allied at [44]-[46]. In GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27] a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’

[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error: see Wan v AIRC (2001) 116 FCR 481 at [30]. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal: see GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[22] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal: see Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]. We deal now with each of the appellant’s Grounds of appeal.

Ground One

[23] We do not consider that a case of appealable error has been made out in respect to Ground One for the following reasons.

[24] While the Deputy President did not make specific findings as to any potential damage to the appellant’s reputation, or the effect on the safety and welfare of other employees, it is apparent from the Deputy President’s conclusions in respect to s 387 of the Act that she weighed all of the considerations in s 387 by making findings on each of them to ground her conclusions as to harshness and unreasonableness: see [119] of the Decision. We refer to DP World v Lambley [2012] FWAFB 4810 at [26].

[25] In any event, it cannot be fairly said that the Deputy President failed to take into account the possible reputational damage to the appellant, as she was clearly alive to the matter by the reference to Mr Miller’s evidence at [52] as follows:

‘[52] Mr Miller considered the potentially serious negative impact on the Company’s reputation within the cash-in-transit industry, in the event that details of the incident became known or were published in the media. Mr Miller also considered that the fact that the missing money was recovered did not lessen the severity of Mr Symes’ breaches of Company policy. Mr Miller said that Mr Symes’ conduct during the incident directly contributed to an unacceptable level of service and professionalism to a client. In the absence of any mitigating circumstances, Mr Miller said that he had lost confidence in Mr Symes necessary to allow him to continue in a very demanding and dangerous role.’

[26] We agree with Mr Norris’s submission that it is apparent the Deputy President took this matter into account when weighing all of the circumstances of the case. The appellant’s contentions to the contrary, advanced by Mr Rawlings, as to appealable error amounts to no more than a complaint about the weight afforded to all of the relevant factors, not a matter which enlivens the public interest test in relation to permission to appeal.

[27] To the extent this ground of appeal might be said to be a failure to provide adequate reasons, we note that a failure to provide adequate reasons, including a failure to disclose the steps in the reasoning process which led to the decision maker’s conclusions, can be an error of law, if the decision maker is under a duty to give reasons. There is no doubt this duty applies to Members of the Commission. In Barach v University of New South Wales (2010)194 IR 259, a Full Bench of Fair Work Australia (as the Commission was then styled) set out the principles on the duty of a Member to give adequate reasons for a decision. At [16], the Full Bench said:

‘[16] The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.’

See also: Edwards v Giudice [1999] FCA 1836 and Ellawala v Australia Postal Corporation Print S5109.

[28] We do not accept that the Deputy President’s reasons were inadequate or insufficient. In our view, the Deputy President clearly articulated the essential foundations for reaching the conclusions she did and carefully addressed the relevant questions of fact and law which disclosed the steps in her reasoning process, which led to the order that the respondent be reinstated.

[29] While acknowledging that ‘potential damage’ to a company’s reputation is a speculative assessment, determining whether this factor outweighs the other considerations as to valid reason requires more than mere assertion in submissions or reliance on the general opinion of management. In any event, it is difficult to give any significant weight to the ‘potential’ for reputational damage in the context of the respondent’s loss of his employment, given that some of the reputational damage was found to have been due to failures in the appellant’s own procedures and policies and the errors made by others, for example the Despatch Clerk.

Ground Two

[30] As to Ground Two, we can discern no case of appealable error in the Deputy President’s decision to order Mr Symes’ reinstatement. On a fair reading of the Decision it cannot be said that the Deputy President:

•  did not have regard to all of the relevant circumstances;

•  did not have regard to the general nature of the appellant’s business, including reputational damage considerations we referred to above; or

•  did not take into account the carelessness and negligence of the respondent’s conduct, in circumstances where a significant financial penalty of a 60% reduction was made for his negligent and careless conduct.

[31] It appears to us that the order of reinstatement is consistent with the primacy afforded to that remedy under the Act. We are also satisfied that the Deputy President’s decision to reinstate the respondent, with a reduction with respect to lost remuneration for poor judgement, negligence and carelessness, was not disharmonious with other comparable decisions of the Commission. We consider there was no error, let alone a House v R error, in the Deputy President’s approach to the discretionary exercise of ordering the respondent’s reinstatement following her consideration of all of the relevant matters and statutory provisions necessary in arriving at that decision.

Ground Three

[32] As to Ground Three, we apprehend this Ground relates to the finding of the Deputy President in [7] and [16] of the Decision that she preferred Ms Bedford’s evidence to that of Mr Lorensini on two specific points: firstly, concerning the practice of an extension of the shift where there is a delay in replacement AV being available when it is returned to the depot, and secondly that Mr Lorensini had told her at the time that there was no spare AV or road crew to replace Mr Symes.

[33] We do not consider this appeal ground discloses any appealable error for the following reasons.

[34] The Deputy President had considered Ms Bedford’s evidence after observing her being cross-examined about the same set of circumstances which have led to the dismissal of both her and the respondent for essentially the same reasons. Moreover, as it was the appellant which had opposed the two applications for unfair dismissal being dealt with in separate hearings (as sought by the Union) and the Deputy President had accepted the appellant’s position, it can hardly now complain that the Deputy President referred to the evidence of Ms Bedford in the Decision in respect to Mr Symes. In this context, Ms Bedford was not a ‘stranger’ to the proceedings, but had given evidence and been cross-examined on the same set of facts and circumstances for which Mr Symes was dismissed.

[35] On one view, the Deputy President was doing no more than referring to her findings on Ms Bedford’s unfair dismissal application at [2018] FWC 7574 at [121] about the same evidence Mr Lorensini gave in respect to Mr Symes’ application. As there was no appeal from that decision, those findings stand as being properly made on the evidence in the totality of the proceedings.

[36] Given the manner in which the proceedings were conducted, it is plain that the Deputy President adopted the sensible approach that the common evidence in Ms Bedford’s case was taken to be evidence in Mr Symes case, and vice versa. So much so is evident in [7] of the decision where the Deputy President said:

‘[7] Permission was given for Armaguard Respondent to be represented by Mr Mitch Rawlings of Counsel on the basis that I was satisfied that this would enable the hearing to be conducted more efficiently given its complexity. Neither Mr Symes nor Ms Bedford gave evidence for each other. Consistent with the views of the TWU I have considered the applications of Mr Symes and Ms Bedford separately although there is some overlap in the evidence. It has also been necessary to consider some of the evidence given by Ms Bedford to deal properly with the application by Mr Symes and vice versa. …’

[37] It is clear that the placement of this reference in [16] was not in the relevant ‘Consideration’ section of the Decision in respect to her conclusions and findings as to Mr Symes’ dismissal. On a fair reading of the Decision, it would seem unlikely Ms Bedford’s evidence was determinative, let alone crucial, to her findings and orders in respect to Mr Symes’ dismissal.

[38] Paragraph [16] of the Decision must be read in the overall context of the Deputy President’s comprehensive, well-structured and detailed consideration of an unusual set of facts and circumstances. To the extent the reference was made to Ms Bedford’s evidence in [16] it was more likely to be an infelicitous reference error, and it is unlikely this was a significant error which would warrant a finding of appealable error. Nor is it likely that the error would have impacted on the outcome of the case. In that context, it might squarely be said that there would be little utility in granting permission to appeal.

[39] We are not satisfied this appeal raises any issues or importance or general application to the Commission’s unfair dismissal jurisdiction. The Deputy President approached the matter and considered the evidence in an orthodox and entirely unremarkable and conventional way. The Decision does not manifest any injustice, or is counterintuitive. In our view, the Decision does not disclose an application of any legal principles which are disharmonious with other comparable Commission decisions. Accordingly, for the reasons we have set out, we are not satisfied there were any significant errors, or any other matters disclosed in the Decision, which would satisfy the relevant tests for the grant of permission to appeal in this case. This being so, permission to appeal must be refused.

[40] We make the following orders:

1. Permission to appeal is refused.

2. The appeal is dismissed.

3. The stay orders made by Deputy President Sams on 29 December 2018 are set aside, subject to compliance with the agreement recorded in [1] (b) of those orders.

VICE PRESIDENT

Appearances:

Mr M Rawlings of Counsel for the appellant.

Mr L Norris, Transport Workers’ Union of Australia, for the respondent.

Hearing details:

2019.

Sydney, with video link to Brisbane and Melbourne:

January 10.

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