Mr Michael Brambleby v Australian Postal Corporation T/A Australia Post
[2014] FWCFB 9000
•16 DECEMBER 2014
[2014] FWCFB 9000
The attached document replaces the document previously issued with the above code on 16 December 2014.
By adding an appearance and matter number and amending the catchwords.
Annastasia Kyriakidis
Associate to Justice Ross, President
Dated 3 February 2015
| [2014] FWCFB 9000 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Australian Postal Corporation T/A Australia Post
(U2010/15319 & C2011/6623)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 16 DECEMBER 2014 |
Unfair dismissal appeal - s.400 Fair Work Act 2009 (Cth) - public interest enlivened - permission to appeal granted - appeal upheld - Commissioner’s decision quashed - compensation awarded.
Background
[1] Mr Michael Brambleby (the appellant) was dismissed from his employment with the Australian Postal Corporation trading as Australia Post (Australia Post, the respondent) on 13 December 2010. The reason for Mr Brambley’s dismissal was that he had distributed inappropriate material using Australia Post’s email system. Mr Brambleby subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The appellant’s application was joined with three other applications by former Australia Post employees who were dismissed in similar circumstances (Clarke, D’Rozario and Frape), such that there would be a single transcript dealing with all of the evidence but the Commission would make a discrete decision in relation to each application according to its particular facts. 1 The applications were heard by Commissioner Lewin in May and August 2011 and the Commissioner handed down his decision on 4 November 2011.2
[2] In so far as Mr Brambleby was concerned the Commissioner found that the termination of his employment was ‘harsh and unreasonable’ and that an appropriate remedy should be awarded. 3 The Commissioner went on to decide that reinstatement was not appropriate and that there was insufficient material before him to determine the amount of compensation to be awarded in lieu of reinstatement. The Commissioner stated his intention to list Mr Brambleby’s application for the purpose of calling such further evidence as would be relevant to an award of compensation under s.392 of the FW Act. In respect of Messrs Clarke, D’Rozario and Frape, the Commissioner concluded that the termination of their employment was not harsh, unjust or unreasonable and accordingly their applications for a remedy were dismissed. Messrs, Brambleby, Clarke and D’Rozario appealed the Commissioner’s decision. The matter before us is the appellant’s appeal. To put this matter into context and to explain the delay between the decision at first instance and the hearing at Mr Brambleby’s appeal it is necessary to say something about what transpired after Messrs, Brambleby, Clarke and D’Rozario lodged their appeal.
[3] The appeals were lodged on 25 November 2011. In the case of Messrs, D’Rozario and Clarke, those appeals were against the decision that they had not been unfairly dismissed. In the case of Mr Brambleby, the appeal was against the Commissioner’s decision not to reinstate him to his former employment. Australia Post subsequently filed a cross appeal against so much of the Commissioner’s decision as had held that Mr Brambleby had been unfairly dismissed. 4
[4] The appeals were heard in February and April 2012 with final written submissions being filed on 5 May 2012. The Appeal Bench published its decision on 28 August 2013 (the First Appeal decision), some 15 months later. In the result the majority (Vice President Lawler and Commissioner Cribb) held that the employees’ appeals should be allowed and Australia Post’s appeal should be dismissed. The other member of the Appeal Bench, Senior Deputy President Hamberger, would not have granted permission to appeal in any of the appeals. The majority quashed the decision and orders of Commissioner Lewin and remitted the matter of remedy to Vice President Lawler for determination in accordance with the majority reasons for decision. 5
[5] The first matter which was considered by the majority was whether it was in the public interest for permission to appeal to be granted. Having referred to the terms of ss 400 and 604, the majority continued:
“[2] This is not a case where there is any serious challenge to the Commissioner’s primary findings of fact.
[3] There is an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct that invariably merits termination of employment. Such a proposition is inconsistent with basic principle. Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply. In the context of an application for an unfair dismissal remedy, it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters involving reliance on misconduct.
[4] We are satisfied that the emerging prominence of dismissals based on pornography related breaches of employer policy, and a concern that the decision of the Full Bench in Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is being misinterpreted, supplies the public interest required for grant leave to appeal in this case. This case proves to be a suitable vehicle to address that matter of public interest. We grant permission to appeal. Having granted permission to appeal, the appeal proceeds as a rehearing albeit that the Full Bench cannot exercise any of the powers conferred by s 607(3) unless error is established: Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at [17] and [32].”
[6] The succeeding 66 paragraphs of the reasons of the majority were concerned with the issues of principle by reference to which permission to appeal had been granted.
[7] Turning to the facts of the case before them, the majority upheld Commissioner Lewin’s conclusion that there had been a valid reason for the dismissal of the employees, and also adopted the Commissioner’s consideration of the matters specified in paras (b) – (g) of s.387 of the FW Act. By reference to a number of other matters that the majority considered relevant under s.387(h), however, they upheld the appeal and found that the dismissal of Messrs, D’Rozario and Clarke had been harsh. They dismissed the appeal by Australia Post insofar as it related to Commissioner Lewin’s finding that the dismissal of Mr Brambleby had been harsh. The majority addressed the issue of remedy in the following terms:
“[116]Having concluded that each of the dismissals were harsh, we are also satisfied that each of the Appellants was unfairly dismissed such that the requirement in s.390(1)(b) is satisfied. We are satisfied that, in the circumstances we have set out, a remedy is appropriate.
[117] The language of s.390 demonstrates that the legislature intended reinstatement to be the primary remedy where FWC was satisfied that the discretion to order a remedy was exercised. The plain words of s.390(3) prohibit FWC from ordering compensation unless FWC is affirmatively satisfied that “reinstatement of the person is inappropriate”.
[118] Given the time that has elapsed since the decision of the Commissioner, and the scope for changed circumstances that may bear upon the issue of whether reinstatement is appropriate, we have decided not to determine remedy ourselves but instead remit the issue of remedy to Vice President Lawler for determination. In making that remitter, we make the following observations:
(a) On the present state of evidence we are not satisfied that reinstatement is inappropriate for each of the Appellants. Indeed, we are affirmatively satisfied that reinstatement with continuity of employment is appropriate. There is nothing about the conduct of Appellants that could reasonably be taken to have undermined fundamental trust and confidence in the employment relationship. It is unlikely that any of the Appellants would engage again in conduct of the sort in issue in this case. The factors that weighed in favour of the dismissal being harsh also weigh in favour of reinstatement being appropriate.
(b) There must be a significant discount in any order for back pay to reflect the fact of the Appellants’ misconduct, quite apart from any other discounts that may be appropriate to reflect a “fair go all round”, particularly in light of the delay in the resolution of these matters. Obviously income earned in the intervening period must be brought to account.”
[8] Vice President Lawler heard the parties in relation to remedy on 22 October 2013 and handed down his decision on 26 November 2013. 6 The Vice President ordered that Messrs, Brambleby, Clarke and D’Rozario be reinstated and that they be paid an amount for the remuneration lost because of their dismissal. The Vice President calculated the amount of lost remuneration in respect of each of the appellants and then discounted that amount by 75% ‘to reflect both the misconduct and the inappropriateness in the peculiar circumstances of this case, of holding Australia Post liable for the whole of the very long period that the course of the unfair dismissal application have taken thus far’.7
[9] On 10 October 2013 Australia Post commenced a proceeding under s.39B of the Judiciary Act 1903 (Cth). At the centre of its case was the proposition that there was no evidence to sustain the finding by the majority that there was “an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct that invariably merits termination of employment”; or the finding that there was, implicitly in the decided cases, an “emerging prominence of dismissals based on pornography related breaches of employer policy”; or the conclusion that the decision of the Full Bench in Queensland Rail v Wake 8was being misinterpreted. In the Federal Court proceedings Australia Post pointed out, correctly, that no “decided cases” of the kind referred to by the majority were mentioned in its reasons of 28 August 2013, and none were mentioned in the parties’ submissions, either written or oral, before the Full Bench. The challenged findings were the findings upon which the majority in the First Appeal decision had relied in granting permission to appeal.
[10] The Full Federal Court dismissed the application for judicial review insofar as it related to Messrs, Clarke and D’Rozario, but granted the application in respect of Mr Brambleby on the basis that the majority in the First Appeal decision simply did not deal with the public interest requirement in Mr Brambleby’s appeal. It followed that the Full Bench did not have jurisdiction to hear that appeal on its merits.
[11] It is common ground that as the decisions and orders of the First Appeal Bench and Vice President Lawler have been quashed insofar as they relate to Mr Brambleby’s appeal, the extant decision which is the subject of Mr Brambleby's application for permission to appeal is Commissioner Lewin's decision that reinstatement is not an appropriate remedy. Mr Brambleby's application for permission to appeal against this part of Commissioner Lewin's decision, and if permission be granted then the substantive appeal, is still to be dealt with by a Full Bench of the Fair Work Commission and that is the matter before us.
[12] It is common ground that the reasons of the majority in the First Appeal decision and of Vice President Lawler subsequently have no legal effect insofar as they apply to Mr Brambleby. The appellant does not submit that the Commission as presently constituted should give those reasons any particular legal significance. The appellant puts it no higher than the reasons in those earlier decisions in effect articulate the grounds which the appellant seeks to put and may be used as a ‘tool of analysis’ for that purpose. For the reasons which follow we have not found it necessary to deal further with this submission.
The Appeal
[13] An appeal under s.604 of the FW 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. 9 Section 604 gives a qualified right of appeal in that an appeal may only be made with the permission of the Commission.
[14] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the FW Act. Section 400 (1) provides that the Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’. In other words while under the general provisions of s.604 the Commission’s satisfaction as to the public interest criterion is a non limiting circumstance that would mandate the granting of permission to appeal, if the decision subject to appeal was made under Part 3-2 the Commission’s satisfaction with respect to that criterion is an essential requirement for the grant of permission to appeal. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).
[15] With respect to the procedure required by the FW Act for the consideration of the public interest requirement, the provisions of s.613(1) should also be noted:
A Full Bench must (except as provided by subsection (2)):
(a) decide under section 604 whether to grant permission to appeal a decision; and
(b) if the Full Bench decides to grant the permission—hear the appeal in accordance with section 607.
[16] Section 613(2) is not of present concern.
[17] The assessment of whether the public interest is met in a particular appeal imports a discretionary value judgment to be made by reference to undefined factual matters subject only to the scope and purpose of the FW Act. 10
[18] As to the scope and purpose of the FW Act, the Commission is given statutory functions by the FW Act in relation to the subject matters set out in s.576. One of those subject matters is ‘unfair dismissal’, which is dealt with in Part 3-2 of the FW Act. The objects of the FW Act are set out in s.3 and the objects of Part 3-2 are set out in s.381, which provides:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) 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.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
[19] Section 577 of the FW Act is also relevant, it directs:
FWA must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
[20] Section 590(1) of the FW Act provides:
FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
[21] Section 591 of the FW Act provides:
FWA is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not FWA holds a hearing in relation to the matter).
[22] In Coal & Allied Mining Services Pty Ltd v Lawler 11 (C & A Mining Services) Buchanan J (with whom Marshall and Cowdroy JJ agreed) considered these statutory provisions in the context of unfair dismissal proceedings and then made the following observation (at [25]):
“It is not inappropriate to say that the members of [FWC] have a statutory mandate to get to the heart of matters as directly and effectively as possible:”
[23] In the same case his Honour described the public interest test in s.400(1) as ‘a stringent one’. 12 The identification of error in the decision subject to appeal is not of itself sufficient to enliven the public interest. Nor is it sufficient that the Appeal Bench would have reached a different conclusion from the Member at first instance.13
[24] What is required by s.400(1) is the formation of a broad value judgment or opinion as to whether the public interest favours the grant of permission to appeal. In GlaxoSmithKline Australia Pty Ltd v Makin 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 issue 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.” 14
[25] As we have observed the public interest test in s.400(1) is a stringent one requiring the formation of a broad value judgment or opinion as to whether the public interest favours the grant of permission to appeal. The nature of the decision subject to appeal is relevant in this context. This is an appeal from the decision of a Member not to order that an unfairly dismissed employee be reinstated.
[26] The circumstances in which the Commission may order a remedy for unfair dismissal are set out in s.390 and we return to that provision shortly. The decision as to whether to make an order for a remedy, and the nature of any order, is discretionary. In Coal and Allied Operations Pty Limited 15the plurality (Gleeson CJ, Gaudron and Hayne JJ) made the following observation about the concept of a ‘discretionary decision’,:
‘Discretion’ is a notion that ‘signifies a number of different legal concepts’. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’. Rather, the decision maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers discretion. On the other hand, it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgment...
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision making process were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if is has the materials for doing so.’
(citations omitted) 16
[27] In determining whether reinstatement is inappropriate (s.390(3)(a)) in a particular case the relevant considerations are confined only by the subject matter and the objects and purpose of the FW Act. In such circumstances a Member has considerable latitude as to whether or not to make a reinstatement order.
[28] The appellant submits that this case attracts the public interest and advances three broad lines of argument, in support of this submission:
(i) The appeal raises the relationship between reinstatement and other disciplinary sanctions which were open to the employer but not taken. It is submitted that this was a critical issue in the Commissioner’s decision not to order reinstatement and that it is an issue which can be expected to arise in each case of termination for misconduct.
(ii) If left uncorrected and unexplained, the inconsistency between the relief given to Mr Bramleby and that given (by the First Appeal Bench) to Messrs, D’Rozario and Clark will give rise to a legitimate sense of injustice. The point advanced by the appellant is not that you cannot have inconsistency but that it has to be explained and it has not been explained.
(iii) There are errors in the decision subject to appeal which should be corrected.
[29] We note that there is a degree of overlap between the first and third submissions, which we will explain shortly.
[30] As to the question of error the amended grounds of appeal, as set out in the Further Amended Notice of Appeal, are as follows:
(a) The Commissioner erred by finding that the reinstatement of Mr Brambleby was inappropriate.
(b) The Commissioner did not give sufficient weight to the objects of the relevant section of the FW Act which provides for an emphasis on reinstatement and the explanatory memorandum that provides that reinstatement is the preferred remedy.
(c) The Commissioner took into account irrelevant considerations, namely, the inability of the Tribunal to impose the disciplinary penalties available to Australia Post. In doing so the Commissioner misdirected himself, acted on a wrong principle and failed to exercise the discretion conferred on the Tribunal.
(d) The Commissioner did not provide adequate reasons as to why reinstatement was inappropriate.
(e) The Commissioner failed to afford Mr Brambleby natural justice by finding reinstatement is inappropriate because of the Tribunal’s inability to impose the disciplinary penalties available to Australia Post without raising that matter with Mr Brambleby’s representative or giving him an opportunity to make submissions on it.
[31] The public interest has to be assessed by the Commission as presently constituted on the material before it. It is relevant to observe that the only basis for finding a public interest in the First Appeal decision regarding the other employees is not argued here. That is, no party contends that there is an ‘emerging trend’ in the decided cases of the type identified by the majority in the First Appeal decision or that Wake is being misinterpreted or that there are inconsistent first instance decisions such that guidance from the Appeal Bench is desirable. Before turning to the submissions advanced in support of permission to appeal we need to summarise the decision subject to appeal.
[32] As we have mentioned the Appellant’s application was heard together with three other applications by former Australia Post employees (Clarke, D’Rozario and Frape). There were some common elements to each matter, in particular, each applicant had been terminated for distributing inappropriate material using Australia Post’s email system, in breach of the relevant policies albeit that the extent of such breaches varied. The events which gave rise to the dismissals occurred at around the same time and three of the applicants were employed at Australia Post’s Dandenong Letter Centre (Brambleby, Clarke and D’Rozario). The other applicant (Frape) was employed at the Geelong Mail Centre.
[33] At [14] the Commissioner sets out the statutory criteria to be taken into account in determining whether a dismissal is unfair (s.387) and he then turns to consider each of the criteria. The issue of whether there was a valid reason for each of the dismissals is addressed at [15] - [31] and the Commissioner makes the following findings:
(i) Each of the applicant’s conceded that they had distributed inappropriate content in or attached to emails using the Australia Post email system, though the material distributed by each of the applicants varied as to the content and volume (see [16]).
(ii) It was unnecessary to construct a ‘taxonomy of inappropriateness’ of the content of the relevant emails, though as a whole the material tendered in the proceedings ranged from ‘inappropriate to highly inappropriate’. Each applicant had distributed content which was ‘highly inappropriate’ (see [20]). The inappropriate content was described as ranging from the banal (such as images of overflowing ashtrays) to highly explicit sexual images (see [21]).
(iii) All of the inappropriate material was irrelevant to the work of the employees and the activities of Australia Post (at [22]).
(iv) The inappropriate material sent, forwarded and distributed became part of the data within Australia Posts information technology system and this was ‘highly prejudicial to the interests of Australia Post (at [22]),:
“The possible receipt, discovery, dissemination or publication of the material was likely to give rise to a range of human responses including shock, offence, indignation or other negative perspectives which would be attributable to Australia Post... the potential consequences and risks for Australia Post particularly the reputational risks would not be explicably or excusable by reliance on the fact that employees were responsible” (at [24]).
(v) The actions of those sending, forwarding or distributing the inappropriate material gave rise to the risks referred to above (at (iv)) and posed potentially serious consequences for Australia Post (at [25]).
(vi) The use of the Australia Post IT system to transmit the relevant content was ‘a wholly inappropriate use of Australia Post’s resources’.
(vii) At [26] to [31] the Commissioner dealt with the applicants’ submission that there was a culture of management practice which encouraged, condoned or tolerated the distribution of inappropriate material. The Commissioner’s conclusion in respect of this issue is set out at [31],:
“...in my judgment, there was a high volume of email traffic containing inappropriate material at the Dandenong Letter Centre where Mr Brambleby, Mr Clarke and Mr D’Rozario were employed and some passive involvement of varying degrees, on the part of some persons who might reasonably be considered to form part of the management of the centre which could be loosely described as a culture of passive participation. I judge that this culture was not one which may be properly characterised as active manager encouragement or condoning of the distribution of inappropriate material. At its highest I think the evidence is indicative of some passive involvement in the high volume of email traffic containing inappropriate material on the part of some individuals who fall within managerial or supervisory positions, overwhelmingly as recipients of emails sent or forwarded by others. I make no finding of this kind in relation to the Geelong Mail Centre where Mr Frape was employed. On balance, I am unable to conclude that these - circumstances invalidate the reason for the termination of the employment of each of the applicants’...”
(viii) In the case of each of the applicants there was a valid reason for the termination of their employment being ‘the use of the Australia Post email system to send, forward or distribute highly inappropriate material contrary to the proper use of the email system and in the knowledge that doing so was a prohibited use of the email system’ (at [31]).
[34] After dealing with whether there was a valid reason for the dismissals the Commissioner went on to find that each of the applicants was notified of that reason (s.387(b); at [32]) and was given an opportunity to respond to the reason for the termination of their employment (s.387(c); at [33]). The Commissioner also found that there was no unreasonable refusal by Australia Post to allow any of the dismissed employees to have a support person present to assist at any discussions relating to dismissal (s.387(d); at [34]).
[35] As the dismissals related to conduct, rather than to unsatisfactory performance by the dismissed employee, the criteria in s.387(e) was not relevant.
[36] As to the matters specified in s.387(f) and (g) (the likely impact of the size of the employer’s enterprise and absence of dedicated human resource management specialists or expertise in the enterprise on the procedures followed in effecting the dismissal), the Commissioner made the following findings:
(i) Australia Post is a large employer equipped with significant human resource management and industrial relations expertise (at [36]); and
(ii) Australia Post has a highly developed set of structured management policies and procedures that include the provision of appropriate procedural fairness in relation to employee discipline, including termination. These procedures were followed in respected of each of the applicants (at [36]).
[37] As to the other relevant matters (s.387(h)) the Commissioner had regard to the range of disciplinary sanctions available to Australia Post under the relevant policy and to the fact that none of the applicants had been the subject of previous disciplinary action. At [38] the Commissioner says:
“The Australia Post Employee Counselling and Discipline Policy and Procedures guide provides for a range of disciplinary action, following an inquiry, short of termination of employment, including transfer to another position at the same or lower level, a reduction in salary, warnings and formal counselling. This is relevant factor that I will take into account in addition to the length of service of the Applicants. I will also take into account that none of the Applicants had been subject to previous disciplinary action in relation to the reason for the termination of their employment.”
[38] On the basis of the findings to which we have referred the Commissioner then turned to consider whether the termination of the applicant’s employment was harsh, unjust or unreasonable, in each case. The Commissioner deals with Mr Brambleby’s circumstances at [44] to [57]. Mr Brambleby was an employee of Australia Post for approximately 13 years and at the time of his dismissal was employed at the Dandenong Letter Centre as a Process Leader. The Commissioner found that the evidence in relation to Mr Brambleby’s use of Australia Post’s email system to distribute inappropriate material involved ‘some relevant distinction from the circumstances of the other Applicants’ (at [45]).
[39] Mr Brambleby used the Australia Post email system to send inappropriate material from the Australia Post system to his home address and, on one occasion, used the Australia Post system to send inappropriate material to one address of one person within the Australia Post system. The Commissioner considered that it was the latter action which was the substantive reason for the termination of Mr Brambleby’s employment (at [50]). The basis for this conclusion was that in other cases Australia Post had regarded the sending of inappropriate material to a private email address as less serious than sending such material to an email address within the Australia Post system (see [49]).
[40] As mentioned above, Mr Brambleby used the Australia Post email system to send inappropriate material to one address of one person within the Australia Post system. Attached to the email sent by Mr Brambleby were 38 sexually explicit colour photographs. 17
[41] The Commissioner rejected (at [52] to [54]) a submission put by Australia Post that Mr Brambleby had not been fulsome in his disclosure during his participation in the Australia Post investigation of his use of the email system. The Commissioner concluded that ‘there was no attempt by Mr Brambleby to mislead the investigations of Australia Post and he was not uncooperative’.
[42] At [56] of his decision the Commissioner posed the question to be determined as: ‘was the termination of Mr Brambleby’s employment harsh, unjust or unreasonable for the reason of him sending or forwarding the single email referred to above in the circumstances described?’. The Commissioner then refers to three relevant considerations - the length of Mr Brambleby’s service; the absence of any prior poor work performance or misconduct; and the availability of other disciplinary options open to Australia Post in the circumstances - and concludes that the termination of Mr Brambleby’s employment was harsh and unreasonable. The relevant part of the Commissioner’s decision is at paragraph 57,:
“In my view, there are three relevant considerations which should be taken into account. The first is the length of Mr Brambleby’s service. The second is the absence of any poor work performance or misconduct, of any kind, prior to the termination, on the evidence, of Mr Brambleby’s employment. The third is the availability of the other disciplinary sanctions within the range of options open to Australia Post in the circumstances, which would have been reasonable. I judge that in these circumstances the non application of an alternative option of this kind in lieu of the termination of Mr Brambleby’s employment was unreasonable and the consequences being that the termination of Mr Brambleby’s employment was harsh and unreasonable. The termination was harsh because of the significant personal consequences for Mr Brambleby of his single and limited act of sending the email in question and unreasonable because penalties of a more appropriate degree, in my judgement, were available and suitable in the circumstances.”
[43] Having decided that Mr Brambleby was unfairly dismissed (at [57]; s.385) the Commissioner then turned to the question of remedy. At [58] of the decision the Commissioner characterised his task in these terms: ‘in the circumstances I must consider whether or not to award a remedy and if so what an appropriate remedy would be.’ With respect to the Commissioner it is somewhat inapt to describe the Commissioner’s task in such circumstances as ‘what an appropriate remedy would be.’ Remedies for unfair dismissals are dealt with in Division 4 of Part 3-2 of the FW Act (ss.390-393). Section 390 is the relevant provision for present purposes, it states:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[44] In the event that the circumstances in ss.390(1)(a) and (b), and (2) are satisfied the first question is whether to make an order for a remedy. If the Commission is persuaded to order a remedy then it may order reinstatement or the payment of compensation. But the choice between those remedies is not at large, as it were. The structure of s.390(3) requires the Commission to first consider the question of reinstatement. It is only if the Commission is satisfied that reinstatement is inappropriate that it may consider an order for the payment of compensation.
[45] As a recent Full Bench observed in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter, 18 (Nguyen) at [10]:
“Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. 19 We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act.20 The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.” 21
[46] The Commissioner decided (at [59]) that an appropriate remedy should be awarded. The Commissioner’s reasons for that conclusion are set out at [59] to [62],:
“[59] I have decided that an appropriate remedy should be awarded. My reason for this conclusion is the length of Mr Brambleby’s satisfactory service with Australia Post. I also consider that the single infringement of the inappropriate use of the email system in the circumstances and the limited extent of that distribution and Mr Brambleby’s evidence of how that event occurred weigh in favour of a remedy.
[60] I have noted that Australia Post had a number of disciplinary remedies available to deal with Mr Brambleby’s circumstances. They include the following:
● Transfer to another position at the same or lower level
● Reduction in salary
● A warning
● Formal Counselling
[61] It follows from consideration of those options and my judgement that disciplinary action from among those options would have not been harsh or unreasonable. I should take such matters into account.
[62] I consider such circumstances weigh in favour of providing a remedy.”
[47] The Commissioner then turned to the type of order he would make and concluded that reinstatement was not appropriate. The Commissioner then observed that there was insufficient material before him to determine the amount of compensation to be awarded and that he would relist Mr Brambleby’s application for the purpose of calling such further evidence as would be relevant to an award of compensation under s.392 of the FW Act. The Commissioner’s conclusion in relation to the question of reinstatement is set out at paragraphs 63 and 64, as follows:
“[63] However, when considering whether an order of reinstatement, as available under the relevant provisions of the Act, is an appropriate remedy it is necessary to note that those provisions do not permit an order of reinstatement which would impose the disciplinary penalties available to Australia Post.
[64] I have considered an order of reinstatement without an order for payment of lost wages. In all the circumstances of the case, however, I have decided that reinstatement is not appropriate. I will therefore consider an order for payment of compensation in lieu of reinstatement.”
[48] It is the Commissioner’s conclusions at [63] and [64] which give rise to the appellant’s first point in support of permission to appeal and are the source of a number of the errors alleged in the further amended notice of appeal. The appellant submits that paragraph [63] of the Commissioner’s decision gives rise to both a question of principle which is of general importance (identified at paragraph 28(i) above) and is demonstrative of error. It is submitted that the reason identified at paragraph [63] of the Commissioner’s decision does not fit conformably with the relevant statutory provisions and the FW Act does not contemplate the logic of the proposition adopted by the Commissioner.
[49] The respondent submits that the appellant overstates the significance of the Commissioner’s observations at paragraph [63] and that the reasons under challenge must be read as a whole and considered fairly. The respondent’s submission is encapsulated by counsel for the respondent in the following way:
“Now, one cannot, in our submission, fairly read that paragraph 63 and 64 as meaning that the relevance of other remedies or other options to Australia Post became the paramount or driving consideration. It was one of the factors, we say, that the Commissioner was entitled to take into account. But when exercising his discretion, what he did was appropriately taking into account all the circumstances of the case. And as we have said, the circumstances of this case were the distribution of inappropriate, sexually explicit material by Mr Brambleby, and in a position where he was a process leader. Now, those were circumstances that were part of the circumstances of this case, they could legitimately be taken into account. That does not show error.” 22
[50] We agree with the proposition that an Appeal Bench should avoid adopting the fine appellate toothcomb approach. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.” 23
[51] The respondent contends, in essence, that the reference to ‘in all the circumstances’ in paragraph [64] of the Commissioner’s decision encompasses a consideration of the nature of the misconduct and Mr Brambleby’s position as a process leader. The Commissioner deals with Mr Brambleby’s misconduct earlier in his reasons, particularly at paragraph [57] (see paragraph [42]above). A number of findings may be extracted from this paragraph of the Commissioner’s reasons:
(i) There were other disciplinary sanctions (ie. other than dismissal) within the range of options open to Australia Post in the circumstances, which would have been reasonable.
(ii) The failure to apply an alternative disciplinary sanction (ie. other than dismissal) was unreasonable.
(iii) The dismissal was unreasonable ‘because penalties of a more appropriate degree...were available and suitable in the circumstances’.
[52] It is abundantly clear that the Commissioner found that Mr Brambleby’s misconduct did not warrant the termination of his employment and that a lesser form of sanction would have been appropriate. In essence the decision to terminate Mr Brambleby was unreasonable as it was disproportionate to his misconduct.
[53] The respondent submits that the appellant’s position as a process leader is a relevant consideration that would tell against an order for reinstatement. We agree. But the Commissioner’s reasons mention the appellant’s position only in passing, at [44], and no particular significance is attached to it. In such circumstances it is not reasonable to infer that it was Mr Brambleby’s position as a process leader which was a significant factor which led the Commissioner to conclude that reinstatement was inappropriate.
[54] It follows from the Commissioner’s reasons - read as a whole and considered fairly - that the substantive reason for the decision not to order reinstatement is the reason given at paragraph [63] of his decision, that is that the FW Act does ‘not permit an order of reinstatement which would impose the disciplinary penalties available to Australia Post’. The issue is whether the approach adopted by the Commissioner is contrary to principle and, hence, erroneous.
[55] The appellant contends that as a matter of logic such a finding provides no support for the Commissioner’s conclusion, at [64], that ‘reinstatement is not appropriate’. During the course of oral argument counsel for the appellant highlighted what was submitted to be the incongruity between the Commissioner’s finding that the misconduct did not warrant dismissal and his later finding that reinstatement was not appropriate:
“So it [Mr Brambleby’s misconduct] does not justify termination. It justified a lesser warning, but does not justify reinstatement...there really is a disconnect between the conclusion that it did not justify the severance of the employment, but I am not going to reinstate it because you could have but didn’t give a lesser sanction...There is the finding that termination was not justified based on the conduct. Now, it is a matter of logic if that is right, there has to be.” 24
[56] We do not agree with this contention. Contrary to the appellant’s submissions it does not necessarily follow that where there is a finding that termination was not justified based on employee misconduct there must be some other factor, other than the misconduct, to make reinstatement inappropriate. An example serves to illustrate this proposition. An employee engages in misconduct. The employer has a range of disciplinary options to it, including transfer to another position at a lower level (a demotion) but chooses to terminate the employee for misconduct. The Commission subsequently finds that the sanction of termination was unreasonable as it was disproportionate to the misconduct and a lesser form of sanction would have been appropriate. In these circumstances if the Commission was of the view that the misconduct was serious enough to warrant a demotion we can see no reason in principle why that would not be a relevant consideration in deciding whether or not reinstatement was inappropriate.
[57] The Commission cannot order that a person be reinstated to another position at a lower level. Section 391(1) provides that an order for a person’s reinstatement must be an order reinstating the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
[58] In the example given an order for reinstatement may put the employee in a more advantageous position than the Commission may consider appropriate, having regard to their misconduct. The Commission may consider that demotion was the most appropriate sanction to reflect the degree of misconduct and that an order of reinstatement (even with no order as to continuity of employment (under s.391(2)) or for lost pay (under s.392(3))).
[59] It is not clear if that was the precise consideration which the Commissioner had in mind in the present matter. But it would have been open to the Commissioner to take such a matter into account.
[60] However that is not the end of the matter. The appellant submits that assuming that the Commissioner did find that reinstatement was inappropriate because he could not impose a disciplinary sanction which was open to Australia Post but not applied, in so finding, Mr Brambleby was denied procedural fairness. This submission is put on the basis that it was not submitted by Australia Post that reinstatement was inappropriate because the Commission cannot impose the disciplinary sanctions available to Australia Post and nor did the Commissioner indicate to Mr Brambleby’s representative that he was minded to refuse reinstatement on this basis.
[61] This omission is said to be important because had the issues been squarely raised with Mr Brambleby’s representative he then would have had the opportunity to raise cases in which the Commission has fashioned a remedy in such a way that it would have the same effect as disciplinary action by the employer.
[62] The respondent submits that the disciplinary options and their applicability to the appellant were the subject of much evidence in the proceedings, 25 and submissions were made.26 Given the oral and written submissions made in the proceedings at first instance and the nature of the discretionary power reposed in the Commission under challenge in this appeal the respondent submits that the appellant had a reasonable opportunity to present his case.
[63] The disciplinary options available to Australia Post in respect of the appellant were the subject of evidence and submissions in the proceeding below, but this material was put in a particular context. It was directed at the question of whether the termination of the appellant was unfair. It was not submitted by Australia Post that reinstatement was inappropriate because the Commission could not impose the disciplinary sanctions available to Australia Post. 27 Nor did the Commissioner avert to this possibility during the course of the proceedings. Given the central importance of this issue to the Commissioner’s decision that reinstatement was not appropriate the appellant was denied procedural fairness.
[64] Of course the mere identification of error in the decision subject to appeal is not of itself sufficient to enliven the public interest. As the Full Bench observed in Lawrence v Coal Allied Mining Services Pty Ltd, 28 if the identification of error was sufficient ‘that approach would effectively set the limitation in s.400 at nought and would frustrate the obvious intent of the legislature to limit appeals from unfair dismissal decisions’. But in this case the error has arisen in the context of an issue which is of general importance to misconduct based dismissal cases, that is, whether the fact that an employer may have imposed a lesser (and more proportionate) sanction for misconduct is relevant to the Commission’s assessment of whether reinstatement is inappropriate. We are satisfied that it is in the public interest to grant permission to appeal and we grant permission on that basis.
[65] On the basis of the error identified we would also uphold the appeal and quash the Commissioner’s decision as to remedy. In the circumstances it is unnecessary for us to deal with the other grounds of appeal or additional submissions advanced during the course of oral argument.
Remedy
[66] Having granted permission to appeal, upheld the appeal and quashed the Commissioner’s decision as to remedy we propose to make a further decision in relation to the question of remedy (see s.607(3)(b)).
[67] During the course of the appeal hearing we advised the parties that in the event we granted permission to appeal and, having granted permission, upheld the appeal we would be minded to determine the question of remedy ourselves rather than remitting the matter for further hearing. The parties agreed that the question of remedy could be determined on the basis of written submissions. It was also common ground that the evidence relevant to the determination of remedy was:
(i) the evidence before Lewin C at first instance, as contained in the Appeal Books provided to the Full Bench by each of the Appellant and the Respondent on 26 November 2014;
(ii) the undated witness statement of Michael Brambleby (the Appellant) together with its enclosures, originally tendered in proceedings before Lawler VP on 22 October 2013;
(iii) the witness statement dated 10 October 2013 of Michael James Doyle (the Facility Manager of Dandenong Letters Centre (DLC)) together with its enclosures, originally tendered in proceedings before Lawler VP on 22 October 2013;
(iv) the transcript of proceedings before Lawler VP on 22 October 2013, but only insofar as the transcript records the examination of Michael James Doyle (transcript references PN2158 to PN2698).
[68] We have had regard to the written submissions filed on 1 and 10 December 2014 and to the evidence set out at paragraph [67]above.
[69] Mr Brambleby seeks an order pursuant to s.391(1)(a) of the FW Act reappointing him to the position in which he was employed immediately before the dismissal with an orders to maintain the continuity of his service and for lost remuneration. It is accepted that if reinstatement is ordered the Commission will impose a deduction from any lost remuneration ordered to be paid by the respondent to reflect the Mr Brambleby’s admitted misconduct.
[70] It is submitted that reinstatement is an appropriate remedy in the circumstances because:
(i) dismissal was disproportionate to the misconduct engaged in by Mr Brambleby;
(ii) Mr Brambleby admitted the misconduct and has expressed remorse; 29
(iii) Mr Brambleby's evidence that he would never repeat the conduct again and Mr Doyle's acceptance of that proposition;
(iv) Mr Brambleby has not been able to secure comparable employment since his dismissal from Australia Post. His job at Australia Post provided him with financial security and allowed him to plan for the future; 30 and
(v) the submission by the respondent that there is a loss of trust and confidence in Mr Brambleby is not soundly or rationally based.
[71] The appellant also points to the fact that four years after being dismissed Mr Brambleby is still seeking reinstatement to his position at Australia Post.
[72] The respondent submits that reinstatement is inappropriate as it has lost trust and confidence in Mr Brambleby and, further, there have been cultural changes at the Dandenong Letter Centre and changes to hiring and work practices, associated with declining mail volumes, since the termination of Mr Brmableby’s employment in December 2010.
[73] To make good its submission in respect of the loss of trust and confidence the respondent relies on the following matters:
(i) The respondent went to considerable lengths to educate staff, including Mr Brambleby, about sexual harassment and there were clear policies in place prohibiting the transmission of inappropriate emails of the sort sent by Mr Brambleby. 31
(ii) The lawful and reasonable policies of the respondent. In this regard reference is made to the statement of Tracey Smith who, at the relevant time, was the People and Community Manager, Postal Services of the Respondent in Victoria and Tasmania. 32
(iii) Mr Brambleby’s evidence in the proceedings at first instance and in particular his role as a process leader and acting Area Co-ordinator; his acceptance that he had received training about how to conduct oneself as an employee and in the respondent’s policies; his awareness of the policies in place and the risks that others may view the material that was being sent.
(iv) The evidence of Mr Doyle, the delegate in relation to the decision to terminate the appellant.
[74] The circumstances in which the Commission may make an order for a remedy for a person who has been unfairly dismissed are set out in s.390 of the FW Act to which we have referred earlier (see paragraph 43 above). The circumstances referred to in s.390(1)(a) and (b) and (2) are satisfied in this case. The first question then becomes whether to make an order for a remedy. We are satisfied that it is appropriate that such an order be made and no party contended otherwise. It is the nature of the remedy to be ordered which is at issue in these proceedings.
[75] The structure of s.390(3) requires that the question of reinstatement be considered first. It is only if the Commission is satisfied that reinstatement is inappropriate that it may consider an order for the payment of compensation.
[76] In this matter the considerations relevant to the determination of whether reinstatement is inappropriate are finely balanced.
[77] On the one hand, Mr Brambleby was unfairly dismissed after 13 years of unblemished service. The Commissioner at first instance found that his misconduct did not warrant the termination of his employment and that a lesser form of sanction would have been appropriate. The essence of the Commissioner’s decision is that the termination of Mr Brambleby’s employment was unreasonable as it was disproportionate to his misconduct. There is no challenge to this aspect of the Commissioner’s decision. The matters advanced on behalf of Mr Brambleby in the appellant’s written submissions on remedy (summarised at paragraphs [70] - [71] above) also tell in favour of an order for reinstatement. We also accept that the termination of his employment has had significant adverse consequences for Mr Brambleby, 33 a factor which also favours reinstatement.
[78] A number of matters tell against an order for reinstatement. The nature of the misconduct and its context, particularly having regard to the fact that Mr Brambleby held a supervisory position. The passage of time is also relevant consideration. This is an unusual case. It has been four years since the termination of Mr Brambleby’s employment. Since that time there have been significant changes at his former place of employment. Before turning to consider those matters in more detail it is convenient to deal with the respondent’s contention that it has lost trust and confidence in Mr Brambleby.
[79] Nguyen dealt extensively with the impact of a loss of trust and confidence on the question of whether reinstatement was inappropriate. The Full Bench distilled the following propositions from the decided cases: 34
- Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. 35
- Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. 36
- An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. 37
- The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. 38
- The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 39
[80] We accept and adopt these general propositions.
[81] We are not persuaded that Mr Brambleby’s misconduct rationally and reasonably supports the proposition that there has been a loss of trust or confidence such as to render reinstatement inappropriate.
[82] Significantly, Mr Doyle accepted in oral evidence on 22 October 2013 that he did not think Mr Brambleby would repeat his conduct. 40 Mr Doyle also accepted that he had trust and confidence in other employees who had breached the relevant policies related to email breaches of the respondent’s policies (including other process leaders and area supervisors).41 There is no reason to view Mr Brambleby in a different light once it is accepted, as it must be, that the decision to terminate his employment was not justified.
[83] Further, the Commission has reinstated Mr D’Rozario and Mr Clarke both of whom had been included in the email chain of the offending email: the email had been sent to Mr D'Rozario who sent it to Mr Clarke who sent it to Mr Brambleby. There is no evidence that the reinstatement of Messrs, D’Rozario and Clarke has caused any ongoing difficulties for Australia Post.
[84] The onus of establishing a loss of trust and confidence rests on the respondent. Such a proposition must be soundly and rationally based. We are not persuaded that in all the circumstances the respondent has made good its contention that there has been a loss of trust and confidence such that the employment relationship could not be re-established.
[85] We now return to question of Mr Brambleby’s misconduct, and the relevant context, and what has occurred in the four years since the termination of his employment.
[86] The Commissioner found that there was a valid reason for the termination of Mr Brambleby’s employment, being ‘the use of the Australia Post email system to send, forward or distribute highly inappropriate material contrary to the proper use of the email system and in the knowledge that doing so was a prohibited use of the email system’ 42 (emphasis added). Importantly, the Commissioner’s finding includes the fact that Mr Brambleby knew that what he was doing was a prohibited use of the email system at the time he sent the email containing the inappropriate material.
[87] Mr Brambleby used the Australia Post email system to send inappropriate material from the Australia Post system to his home address and, on one occasion, used that system to send inappropriate material to one address of one person within Australia Post. It was the latter action which was the substantive reason for the termination of Mr Brambleby’s employment. Attached to the email sent by Mr Brambleby to another person within the Australia Post system were 38 sexually explicit colour photographs. 43
[88] As to Mr Brambleby’s knowledge at the time he sent this email the following findings may be made from his evidence in the proceedings at first instance: 44
(i) Mr Brambleby received training in relation to a range of issues including harassment, discrimination, bullying and the respondents ‘Our Ethics Policy’; 45
(ii) Mr Brambleby was aware that the respondent’s policies said that employees should not ‘send or use the email system for pornographic or sexually explicit material’ and he had understood that for some time; 46
(iii) Mr Brambleby was aware of the fact that when he logged on to the computer system and clicked ‘agree’ to the IT Daily Declaration that he was making a declaration that he would use the computer system for authorised purposes. 47 The IT Daily Declaration Notice is set out as an attachment to Tracey Smith’s statement.48 It makes it clear that the computer is only to be used for authorised purposes and that Australia Post may take disciplinary action if the facilities, including email, are misused. The Notice expressly states that misuse includes ‘use, access or transmission of pornographic photos...sexually explicit materal’; and
(iv) Mr Brambleby understood that there was a risk that others may view sexually explicit emails. 49
[89] Mr Brambleby was in a supervisory position at the time of the misconduct. As a process leader he supervised 5 to 7 other employees. 50 He had been in that position for the three years prior to his dismissal.51 For the five years prior to his dismissal Mr Brambleby had also acted, from time to time, in the position of Area Coordinator,52 which is the next level above a process leader.53 It is not unreasonable to expect higher standards of supervisory employees particularly in this case having regard to Mr Brambleby’s awareness of the policies in place and the risks that others may view the material that was being sent. We now turn to the changes that have occurred since the termination of Mr Brambleby’s employment since in December 2010.
[90] The further statement of Michael Doyle sets out his evidence concerning changes to hiring and work practices associated with declining mail volumes at the Dandenong Letter Centre since December 2010. The following matters may be extracted from Mr Doyle’s statement:
(i) a decline in mail volume of about 5% year on year; 54
(ii) the number of full time and part time employees employed at the Dandenong Letter Centre has declined from about 830 in 2010 to about 750; 55
(iii) a decline in the use of flexible labour; 56 and
(iv) the instituting of a recruitment freeze from May 2013 across the respondent's mail operations. There has been no new permanent staff employed at the Dandenong Letter Centre since October 2012. The only new appointments since October 2012 have been casual and fixed term night shift staff in the sequencing area, these are not full time positions. 57
[91] Mr Brambleby’s previous position was left vacant for a period after his termination, and later advertised. Another employee was permanently appointed to that position in January 2012. In his further statement Mr Doyle states that there were no other positions at that level available at the Dandenong Letter Centre and it was anticipated that a number of positions at that level would be declared surplus due to declining mail volumes. 58
[92] We accept that the fact that the position occupied by an applicant either no longer exists or is not vacant at the time the Commission comes to consider an order for a remedy would rarely, on its own, justify a conclusion that an order for reinstatement was inappropriate. 59 But this is an unusual case. It has been four years since Mr Brambley’s dismissal. The passage of time and the changes at his former workplace are relevant to our consideration of whether reinstatement is inappropriate. While these matters are relevant they are not decisive. We have taken them into account together with the other matters to which we have referred and all of the circumstances of the case.
[93] We acknowledge that the effluxion of time is not the fault of either party - they have simply exercised their legal rights. Further, we accept that the passage of time has also had adverse consequences for Mr Brambleby.
[94] In our view reinstatement to the supervisory position in which Mr Brambleby was employed immediately before his dismissal would be inappropriate. The nature of his misconduct is such that it is not appropriate to reinstate him to a supervisory role. It would also be inappropriate to appoint Mr Brambleby to another position on terms and conditions no less favourable than those on which he was employed immediately before his dismissal. A demotion to a position without any supervisory responsibilities and on less favourable terms and conditions than those on which he was previously employed may have been an appropriate remedy but the Commission is not empowered to make such an order.
[95] We have considered an order for reinstatement (within the meaning of s.391(1)(a) or (b)) with no order for continuity or to restore lost pay, but are satisfied that such an order is also inappropriate for the reasons outlined above.
[96] In summary, a consideration of all of the circumstances has led us to conclude that in the unusual circumstances of the case reinstatement is inappropriate. In reaching such a conclusion we acknowledge that the failure to make an order reinstating Mr Brambleby will mean that there will be a different result as between Messrs Clarke and D’Rozario (who were reinstated) on the one hand and Mr Brambleby on the other. But in our view the different outcomes are explained by the differences in the facts and circumstances. In particular, in his permanent position Mr Brambleby supervised 5 to 7 other employees and it has been four years since he was dismissed, during which there have been a number of significant changes at his former workplace.
[97] As we are satisfied that reinstatement is inappropriate we now turn to the question of compensation. Section 390(3) provides, relevantly, that the Commission must not order the payment of compensation to a person who has been unfairly dismissed unless:
“... (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[98] We are satisfied that an order for payment of compensation is appropriate in all the circumstances of the case. No party contended to the contrary.
[99] The criteria for determining the amount of compensation is set out in s.392(2) and (3). The amount of compensation ordered by the Commission to be paid to an unfairly dismissed person must not exceed the ‘compensation cap’ (s.392(5) and (6)). The compensation cap in this case is, broadly speaking, the remuneration Mr Brambleby received (or was entitled to receive) in the 26 weeks immediately prior to his dismissal.
[100] The respondent has submitted that in the event we concluded that reinstatement was inappropriate it would consent to an order for the maximum available compensation of six months’ remuneration in lieu of reinstatement.
[101] Consent to an order for the maximum amount of compensation permitted by s.392(5) and (6) is a relevant consideration (within the meaning of s.392(2)(g)) but it is not determinative. We are required to consider the other criteria in s.392(2). As to those matters we make the following findings:
(i) The order will not affect the viability of the respondent’s enterprise 60 (s.392(2)(a)).
(ii) Mr Brambleby had 13 years service with the respondent (s.392(2)(b)).
(iii) The remuneration that Mr Brambleby could have been likely to receive but for his dismissal would have exceeded the 26 weeks’ cap by a substantial amount (s.392(2)(d)).
(iv) The amount of remuneration earned by Mr Brambleby during the period between his dismissal and the making of the order in significantly less than he would have earned had he not been dismissed (s.392(2)(e)).
(v) The amount referred to in s.392(2)(f) is not likely to be significant.
[102] On any view of it the amount of compensation we would order having regard to the criteria in s.392(2) and taking into account a reduction for the appellant’s misconduct (s.392(3)), would exceed the compensation cap. In these circumstances an order for the maximum amount of compensation is appropriate.
[103] The terms of the order should be prepared by the parties with recourse to Commissioner Bissett to settle the order. The compensation should be paid by no later than 4pm on Tuesday 23 December 2014.
PRESIDENT
Appearances:
R. Niall QC for the Appellant
F. Parry QC & M. McKenney of counsel for the Respondent
Hearing details:
Melbourne;
2014
26 November.
Final submissions filed 1 & 10 December 2014.
1 Transcript of the proceedings at first instance, 2 May 2011 at PN33-PN61, Appeal Book p.18.
2 [2011] FWA 7126
3 Ibid at [57]
4 The cross appeal has subsequently been abandoned.
5 [2013] FWCFB 6191 at [120]
6 [2013] FWC 9293
7 Ibid at [22]
8 (2006) 156 IR 393
9 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
10 O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Hogan v Hinch [2011] HCA 4 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43]-[45] per Buchanan J (with whom Marshall and Cowdroy JJ agreed.
11 [2011] FCAFC 54
12 Ibid at [34] and [44]-[45]
13 GlaxoSmithKline Australia Pty Ltd v Makin (Makin) [2010] FWAFB 5343 at [28], cited with approval in C & A Mining Services at [42]-[43]
14 Ibid at [27]
15 (2000) 203 CLR 194
16 Ibid at [19] and [20]
17 See Attachment MDI to the further statement of Mr Doyle dated 10 October 2013
18 [2014] FWCFB 7198
19 Section 381(1)(c) Fair Work Act 2009 (Cth)
20 Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C; Newtronics Pty Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Rowley v EDI Rail Pty Ltd [2008] AIRCFB64; Colson v Barwon Health[2014] FWCFB 1949
21 Regional Express Holdings Limited trading as REX Airlines v Richards[2010] FWAFB 8753 at [23]-[24]; Colson v Barwon Health[2014] FWCFB 1949 at [30]-[31]
22 Transcript 26 November 2014 at PN271
23 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.
24 Transcript 26 November 2014 at paragraph 137 and 292
25 The respondent refers to the evidence at AB275 paragraph 3126; AB354 at paragraphs 4208-4213; AB355 at paragraphs 4214-4239; AB356 at paragraph 4227 and following; AB393 at paragraphs 4699-4700; AB412 at paragraph 4933 and following; AB412 at paragraph 4934 and AB412 at paragraphs 4936-4937
26 Final Submissions of Applicants before Lewin C undated [Tab 4 of the Appellant’s Appeal Book] at paragraphs 30, 34, 35, 37, 78, 80, 85, 106, and 153; Respondent’s Outline of Submissions dated 15 April 2011 [AB references to the Respondent's Appeal Book at AB 511-528]: paragraph 28 (AB 517), paragraph 29 (AB 518), paragraph 30 (AB 519); Respondent’s Final Submissions dated 5 August 2011 [AB references to the Respondent's Appeal Book at AB529 -596]: paragraph 201 (AB 566), paragraph 208 (AB 567) paragraph 221 (AB 570) and paragraph 230 (AB572); Final oral submissions before Lewin C on 16 August 2011 [AB references to the Respondent's Appeal Book at AB 437- 510]: AB 442 (PN5258-5259), AB 443(PN5265), AB 449 (PN5308), AB 450 (PN5322), AB 451 (PN5326), AB 459 (PN5419), AB 462 (PN5450), AB 486 (PN57420, AB 498(PN5889), AB 502 (PN5928-5929), AB 506 (PN5953), AB 507 (PN5965), and AB 509 (PN5973).
27 A point conceded by counsel for the appellant, Transcript 26 November 2014 at PN284.
28 (2010) 202 IR 388 at [28]
29 See AB1133
30 Statement of Michael Brambleby, undated, tendered into evidence on 22 October 2013.
31 In that regard, reference is made to AB688-689 [26]-[28], being the supplementary witness statement of Tracey Smith dated 27 May 2011, AB622-624, being the attachment marked “TS2” detailing the distribution between 2001 and 2010 of the Respondent's policies which is headed “Harassment Brochures – Titles and Release Dates November 2001 to November 2010” and AB772, AB813 and AB842, being the training transcripts of the Appellant over the course of their employment. Other evidence in the Appeal Book related to the distribution of the Respondent's policies is to be found at AB600 [12] of the statement of Tracey Smith dated 15 April 2011.
32 Ms Smith’s evidence is contained at AB599-689. There are two witness statements in the Appeal Book, with the first statement largely consisting of a number of attachments, being the respondent’s policies relevant to the conduct of the appellant, and they are to be found at AB606-673. Also see the respondent’s written submissions of 1 December 2014 at paragraph 13.
33 See paragraphs 5 and 6 of the applicant’s written submissions of 10 December 2014
34 [2014] FWCFB 7198 at [27]
35 Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8]
36 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191
37 Ibid.
38 Ibid.
39 Ibid.
40 Remedy Hearing on 22 October 2013 PN2238-PN2239 and PN2249
41 Remedy Hearing on 22 October 2013 PN2491
42 [2011] FWA 7126 at [31]
43 See Attachment MDI to the further statement of Mr Doyle dated 13 October 2013
44 These matters were identified in the respondent’s written submission on remedy of 1 December 2014 and not challenged in the appellant’s submission of 10 December 2014.
45 Transcript at first instance at PN124 also see the witness statement of Kerrielee Barnes, paragraph 40 and attachment KB9 at Appeal Book 760, 764 and 813
46 Transcript at first instance at PN1249-PN1250
47 Ibid at PN1197
48 Appeal Book 626
49 Ibid at paragraph 1372
50 Ibid at paragraph 1157-1158
51 Mr Brambleby’s witness statement at paragraph 3
52 Ibid
53 Transcript at first instance at PN1159-PN1163
54 Mr Doyle’s further statement at paragraph [16]
55 Ibid at paragraph [17]
56 Ibid at paragraphs [77]-[82]
57 Ibid at paragraphs [19]-[20]
58 Ibid at paragraphs [23]-[24]
59 Nguyen at [17] - [18]
60 Mr Doyle’s evidence, transcript 22 October 2013 at PN2536
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