Newton v Toll Transport Pty Ltd
[2021] FWCFB 3457
•16 JUNE 2021
| [2021] FWCFB 3457 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Steve Newton
v
Toll Transport Pty Ltd
(C2020/9038)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 16 JUNE 2021 |
Appeal against decision [2020] FWC 5960 of Deputy President Boyce at Sydney on 25 November 2020 in matter number U2019/9520 – permission to appeal granted.
1. Introduction
[1] On 23 August 2019 Mr Newton (the Appellant) and a Mr Chambers were dismissed from their employment by Toll Transport Pty Ltd (Respondent, Toll), essentially because of their involvement in a physical altercation at about 10:25pm on 30 May 2019 out the front of the Seasons Botanic Gardens Hotel in Melbourne (the Fight). Mr Newton’s dismissal was also based on a verbal altercation with another Toll employee – Mr Mitchell – on 9 April 2019 (the Verbal Altercation). Messrs Newton and Chambers had been employed by Toll as truck drivers.
[2] Messrs Newton and Chambers filed applications for an unfair dismissal remedy with the Fair Work Commission (Commission) on 26 August 2019 and 4 September 2019 respectively. The applications were ‘heard together’ by Deputy President Boyce.
[3] The Deputy President published his decision in respect of Mr Chambers’ application on 6 November 2020 1 (the Chambers Decision).
[4] In the Chambers Decision the Deputy President decided as follows:
1. There was no evidence of a sufficient nexus between the circumstances of the Fight and Mr Chambers’ employment with Toll and no evidence which demonstrated a rejection or repudiation of Mr Chambers’ continued employment with Toll. 2
2. There was no valid reason to dismiss Mr Chambers:
‘In view of my having found that the impugned conduct vis-a-vis the Fight does not bare [sic] a sufficient connection with Mr Chambers’ employment, and my also having found that Mr Chambers’ held a genuine belief that he was acting in self-defence at the time...’ 3
3. The matters in ss.387(b)-(h) of the Fair Work Act 2009 (Cth) (Act) were neutral considerations. 4
4. Mr Chambers’ dismissal was unfair, within the meaning of s.385 of the Act:
‘Mr Chambers was dismissed by Toll for conduct that did not occur at work, and did not have a sufficient connection with Toll or its workplace. He accepted that Toll was entitled to investigate the Fight that he was involved in, genuinely participated in that investigation, and was open, consistent and honest with Toll in answering the matters raised with, or asked of, him during that investigation. I am therefore satisfied that Mr Chambers dismissal was harsh, unjust, and unreasonable (within the ordinary meaning of those terms).’ 5
5. To order a remedy of reinstatement, reinstating Mr Chambers to the position in which he was employed immediately before the dismissal; an order maintaining the continuity of his employment; and an order that Toll pay the remuneration lost by Mr Chambers between the date of his dismissal and the date he is reinstated. 6
[5] The Deputy President published his decision in respect of Mr Newton’s application, on 25 November 2020 7 (the Decision).
[6] In the Decision the Deputy President concluded, at [147], that Mr Newton was both dishonest and misleading (to both Toll and the Commission) and that his dishonesty in relation to the Fight and/or Verbal Altercation constituted a valid reason for his dismissal. After considering the other s.387 considerations the Deputy President decided to dismiss Mr Newton’s application for an unfair dismissal remedy.
[7] Mr Newton has filed a notice of appeal in which he seeks permission to appeal and appeals the Decision. This matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
[8] The Decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of theAct. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[9] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Tribunal 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...’ 8
[10] For the reasons which follow we have decided that it is in the public interest to grant Mr Newton’s application for permission to appeal and to uphold the appeal.
2. The Decision at First Instance
[11] We begin by summarising the Decision; the paragraph references refer to paragraphs in the Decision.
Facts not in contention
[12] At [1] – [13] the Deputy President deals with various preliminary matters. At [2] the Deputy President states:
‘The matter was heard together with the unfair dismissal application made by Mr Wayne Chambers in Chambers v Toll Transport Pty Ltd (Chambers’ Decision), with evidence in one proceeding being evidence in the other. Many of my core findings in the Chamber’s decision apply equally in this decision.’ (Footnotes omitted)
[13] The ‘core findings’ referred to are not particularised, but it is apparent that a number of the findings made in the Chambers Decision are made in the same terms in the Decision. In the Chambers Decision the Deputy President made certain findings in relation to the fight between Messrs Chambers and Newton. These are set out at [52] – [53] of the Chambers Decision. The same findings are made in the Decision (at [55] – [56]). We have regarded these as the ‘core findings’.
[14] At [14] – [41] the Deputy President sets out a number of factual matters, under the general heading, ‘Facts not in contention’. These findings were not the subject of any challenge on appeal. The Appellant noted that there were ‘a small number of inaccuracies’ within these paragraphs of the Decision, specifically, the Appellant submits:
• at [25](c), it is erroneously asserted that the Respondent covered the cost of the meal attended by Mr Newton on 30 May 2019. The evidence suggested that the cost of the meal was covered by the TWU: Appeal Book, p.1216-1217
• in the second sentence of [33] it is suggested that a medical examination on 31 May 2019 identified that the Appellant was not concussed. The only evidence was that the Appellant had not been told that he had post-traumatic concussion: Appeal Book, p.148, PN493.
[15] The Appellant does not contend that these alleged ‘inaccuracies’ were significant errors of fact within the meaning of s.400(2) of the Act and so we need say no more about them.
The investigative, evidence and factual findings in respect of the fight on 30 May 2019 (the Fight)
[16] The investigation, evidence and factual findings in respect of the Fight are canvassed at [42] – [56].
[17] At [42] – [45] the Deputy President deals with the investigation into the Fight by Mr Raymond Lambie (Group Security Manager, Toll Group).
[18] At [46] – [48] the Deputy President deals with Toll’s decision to terminate the employment of Messrs Chambers and Newton. Relevantly at [47] – [48] the Deputy President found:
‘Each of the decisions to terminate Mr Newton and Mr Chambers were based upon:
(a) the dismissal recommendations contained in the Investigation Report;
(b) the view that the Applicants had engaged in serious misconduct;
(c) the view that the Applicants were both being less than candid in their interviews and statements concerning the Fight (i.e. as to what happened to start the Fight, what was said in the lead up to the Fight, and what occurred during the Fight);
(d) the fact that the outcome of the Fight could have been much worse for all involved (i.e. Mr Newton stumbled and fell during the Fight and hit the back of his head on concrete, which may have resulted in permanent brain injury, or death); and
(e) the need for cultural and behavioural change in the organisation (i.e. fighting behaviour cannot be tolerated, or be seen to be tolerated, by Toll).
The decision to terminate Mr Newton was also based upon the view that he had engaged in inappropriate, aggressive and threatening behaviour towards Mr Mitchell at the TWU Parramatta Conference on 9 April 2019.’
[19] Messrs Newton and Chambers gave conflicting evidence as to who provoked or started the Fight, and about what occurred during the Fight.
[20] The Deputy President preferred the evidence of Mr Chambers to that of Mr Newton. In relation to Mr Chambers’ evidence the Deputy President found that: 9
• he provided direct and responsive answers during cross-examination
• he made concessions contrary to his interests
• there were no significant inconsistences between the answers Mr Chambers provided to Toll in the investigation and the answers he provided in cross-examination
• his body language ‘was open and he did not flinch when answering cross-examination questions’, and
• he appeared to be genuine in his efforts to answer the actual questions that were put to him.
[21] The Deputy President’s characterisation of Mr Newton’s evidence is set out at [51] – [53], as follows:
‘In my view, much of Mr Newton’s evidence as to the Fight was either self-serving or implausible, in that many of his answers, and his demeanour when providing such answers, gave me the impression that he was attempting to either:
(a) shift blame or responsibility for his role in the Fight;
(b) cast Mr Chambers as the antagonist of the Fight, without proper regard to, or honest account of, his own actions;
(c) portray himself as a victim in the Fight;
(d) diminish the overall seriousness of the Fight; and/or
(e) muddy the waters as to the facts to attempt to create an outcome on the evidence where positive findings of fact contrary to Mr Newton’s interests are unable to be made.
Mr Newton’s evidence before the Commission was, in my view, merely a continuation of the same behaviours exhibited by Mr Newton immediately post the Fight, whereby he:
(a) initially and falsely asserted to Toll and other employees that he had been, or might likely have been, “glassed” by Mr Chambers during the Fight;
(b) had totally lost consciousness or “blacked-out” during the Fight; and/or
(c) had been “beaten up” (or “king hit” or “coward punched”, as it is otherwise known) by Mr Chambers for no apparent reason.
Mr Newton’s foregoing assertions against Mr Chambers are, in my view, sinister conduct that can never be justified. I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.’
[22] The Deputy President’s findings in relation to the Fight are set out at [55] – [56]. At [55] the Deputy President made the following findings:
‘(a) The Applicants stepped outside the Hotel foyer/reception and bar/restaurant area, to the Hotel driveway, for a private discussion. The Applicants’ reason for doing so was to accommodate Mr Newton’s desire for a cigarette before he turned in for the night. Mr Chambers carried his unfinished bottle of beer outside with him. There is no suggestion on the evidence that Mr Chambers sought to entice or otherwise prompt Mr Newton to leave the Hotel’s internal restaurant or foyer area in order to be with Mr Newton in a secluded location. As I understand it, Mr Chambers is a non-smoker.
(b) The discussion between the Applicants on the Hotel driveway broadly concerned work related and/or union delegate matters. One topic of discussion concerned two different “yard agreements” that covered the linehaul section of Toll’s business (and the perception that there are differing degrees of fairness between these yard agreements in respect of the differential terms and conditions of employment contained therein).
(c) The Applicants had been consuming alcoholic beverages over the course of the afternoon (post 4.00pm) and evening. I am unable to ascertain on the evidence whether, or to what extent, either of the Applicants were intoxicated. In my view, little turns on this. The evidence simply reveals that the Applicants had each consumed several alcoholic beverages, but neither were wholly inebriated, or intoxicated to the extent that they were visibly incoherent or otherwise dysfunctional. Toll does not suggest that the alcohol consumption by the Applicants was contrary to Toll’s Drugs and Alcohol policy.
(d) During discussions with Mr Chambers, Mr Newton became agitated that the purpose of Mr Chambers raising the different terms and conditions under the two yard agreements was to consolidate the yard agreements, meaning that the terms and conditions under the more beneficial yard agreement may be lost or reduced (as I understand it, the more beneficial yard agreement applies to the work area or section to which Mr Newton is the TWU delegate).
(e) Despite Mr Chambers attempting to placate Mr Newton that his purpose in raising the yard agreement issue was to determine whether Mr Newton would be open to endorsing or supporting the bringing of both of the yard agreements into line with the more beneficial yard agreement, Mr Newton did not accept Mr Chambers assurances in this regard. Instead, Mr Newton said to Mr Chambers, “Fuck you”. Mr Chambers duly responded, “Fuck you too”.
(f) Shortly following the foregoing exchange, Mr Newton removed his jumper and took a boxing stance, raising his fists, and openly challenged Mr Chambers to a fist fight. He stated to Mr Chambers, “Come on, come on”, and pushed Mr Chambers in the chest. Essentially, Mr Newton was now goading for a fight with Mr Chambers.
(g) Despite Mr Chambers stating to Mr Newton, “Are you for real?”, Mr Newton again pushed Mr Chambers, and acted aggressively towards him.
(h) Shortly after this push Mr Chambers stated to Mr Newton, “You [are] fucking for real”. At this point, Mr Newton set upon Mr Chambers, throwing punches wildly at him. Mr Chambers bent down, placed his hands and forearms around his own head to protect his face, and pulled his arms and elbows into his body to protect his ribs and stomach. Mr Newton kept punching at Mr Chambers whilst Mr Chambers held this position.
(i) At some point during the foray, Mr Chambers stepped back, and away from Mr Newton. When he fully stood up, Mr Newton immediately came at him again. Mr Chambers then threw one punch at Mr Newton with his right fist. The punch connected with the side of Mr Newton’s face, and Mr Newton stumbled backwards, fell onto the driveway on his buttocks, and then fell further backwards, hitting the back of his head on the concrete driveway/pavement.
(j) Whilst lying on the pavement, Mr Newton stated to Mr Chambers, “If I get up, I’m gonna kill ya, I’m gonna kill ya”. Standing over Mr Newton, Mr Chambers replied, while looking down upon Mr Newton, “Don’t get up, don’t get up”.
(k) Mr Newton then attempted to get up. His head and shoulders were off the ground, and he was thrashing his legs about in an aggressive manner. Mr Newton’s legs became entangled into the legs of Mr Chambers, which caused Mr Chambers to fall over. As Mr Chambers fell, he threw the beer bottle he was still holding in his left hand to the side (to get it out of the way of his fall). The beer bottle broke on the driveway, and glass scattered. Mr Chambers left hand landed on a piece of broken glass, which cut his left hand open.
(l) At this point, Mr Newton again stated to Mr Chambers, “I’m gonna kill ya. I’m gonna kill ya”.
(m) As both of the Applicants were now on the ground, and Mr Newton was still attempting to get up in an aggressive manner and verbally threatening Mr Chambers, Mr Chambers pushed Mr Newton back to the ground and stated, “Are you going to stop? Are you going to stop?”. Mr Newton repeatedly replied, “I’m gonna kill ya”.
(n) Mr Newton continued to make threatening statements whilst Mr Chambers pinned him to the ground. Further, Mr Newton would not tire, and kept attempting to move his arms around to hit Mr Chambers (again, repeatedly stating to Mr Chambers, “I’m gonna kill ya”).
(o) In an attempt to quell Mr Newton’s on-going resistance and/or to get him to cease his verbal and physical aggression, Mr Chambers again punched (or slapped, or slap-punched) Mr Newton across the face.
(p) After this second contact or strike, Mr Newton immediately stated, “I’ll stop. I’ll stop”, and ceased thrashing about. Mr Chambers then released Mr Newton and walked back to the Hotel foyer. No one had to pull Mr Chambers off Mr Newton. The fight ended upon Mr Newton making it clear that he was surrendering or giving up.’
[23] At [56] the Deputy President expressly rejected aspects of Mr Newton’s evidence, in particular he rejected:
• Mr Newton’s evidence that he removed his jumper, shortly before the commencement of the Fight, because he was going inside to his Hotel room to retire to bed and found that Mr Newton removed his jumper as a prelude to seeking to have a physical altercation with Mr Chambers.
• Mr Newton’s evidence that Mr Chambers initiated or provoked the Fight.
• Mr Newton’s evidence that Mr Chambers was the main aggressor during the Fight.
• Mr Newton’s preliminary assertions that Mr Chambers punched Mr Newton for no reason, and/or that Mr Chambers “coward punched” or “king hit” Mr Newton.
• Mr Newton’s preliminary assertions that Mr Chambers hit Mr Newton with his beer bottle, or otherwise “glassed”, or attempted to “glass”, Mr Newton at any point in time.
• Mr Newton’s evidence that he passed out, blacked-out, or otherwise became unconscious at any point during the Fight.
• The assertion that Mr Chambers used excessive force against Mr Newton in attempting to have Mr Newton cease his verbal threats and physical aggression towards Mr Chambers.
[24] We note that at footnote [14] at paragraph [29] the Deputy President refers to the evidence of Mr Paul Newton who said he said he witnessed an element of the Fight from the window of his hotel room. The Deputy President again refers to this evidence at [36] of the Decision.
[25] Mr Paul Newton gave evidence in the proceeding (Exhibit R4, Appeal Book, pp.1201-1250) and was cross-examined. 10 Mr Paul Newton’s evidence was that he saw Mr Chambers sitting on top of Mr Newton striking him in the face. The Deputy President made the following finding in respect of Mr Paul Newton’s evidence:
‘Mr Paul Newton was called by Toll as a witness in these proceedings, and verified his record of interview during the investigation. However, much of his evidence is hearsay, opinion and/or inconsistent with the timeline of events. He states that Mr Chambers was giving him a blank stare (or ‘stink eye’) in the restaurant area prior to the Fight, and appears to infer that somehow the Fight was or might have been premediated by Mr Chambers. I cannot accept Mr Paul Newton’s evidence as reliable, or at least to the extent that I might make any findings in this decision upon such evidence.’ 11 (Footnotes omitted)
[26] The Deputy President’s findings of fact regarding the Fight are not challenged. The Appellant submits that there is no occasion to challenge the findings given the Deputy President’s finding that the incident did not bear a sufficient connection to his employment to give rise to a valid reason for dismissal.
Mr Newton’s verbal altercation with Mr Mitchell on 9 April 2019 (the Verbal Altercation)
[27] The Deputy President deals with the relevant factual matrix associated with the Verbal Altercation at [57] – [68]. The following facts were not in dispute:
• Mr Newton attended the TWU Parramatta Conference on 9 April 2019 (being held at a hotel in Parramatta, New South Wales) in his capacity as a Toll TWU delegate whilst on paid Delegate’s Leave.
• Mr Robert Mitchell, another Toll TWU delegate was present, as were around 60 other Toll TWU delegates.
• Mr Mitchell stated to Mr William Brian (Toll Truck Driver, and TWU delegate), that he (Mr Mitchell) considers Mr Newton to be a “dickhead”, “fuckwit”, “spastic” or “retard” (I do not place any importance as to what term/s was used). 12
• Mr Brian told Mr Newton that Mr Mitchell had called him (Mr Newton) a “dickhead”. 13
• Prior to the TWU Parramatta Conference commencing, Mr Newton confronted Mr Mitchell about what he had said. This confrontation occurred in a large carpark outside the hotel, where around 60 other Toll TWU delegates were gathering prior to the delegates meeting. The confrontation lasted around one minute or so, and did not escalate into any form of physical confrontation. 14
[28] The Deputy President made the following findings in respect of the disputed facts:
• Mr Newton was annoyed (i.e. “pissed off”) that Mr Mitchell had been calling him a “dickhead” or “retard” behind his back
• Mr Newton approached Mr Mitchell to talk to him about the name-calling
• during those discussions, Mr Newton pushed Mr Mitchell in the chest and challenged Mr Mitchell to step away from the group of gathered delegates to privately discuss the name calling. Inherent in this challenge was the intimation that the name calling could be resolved by way of physical altercation. Shortly before or immediately after that challenge was made, in an effort to intimidate Mr Mitchell and make it clear that he was willing to get physical, Mr Newton removed his false teeth, 15 and
• as quickly as the situation escalated, it de-escalated, lasting only around one minute. No further confrontation on the matter occurred. 16
[29] At [108] – [111] the Deputy President concludes that the Verbal Altercation between Messrs Newton and Mitchell warranted some form of sanction (perhaps a warning) but did not provide a valid reason for dismissal.
[30] The Deputy President’s findings in respect of the Verbal Altercation are not challenged in the appeal.
Legal framework
[31] At [69] – [71] of the Decision the Deputy President sets out the terms of ss.385 and 387 noting that there is no dispute that Mr Newton was dismissed on 23 August 2019 within the meaning of ss.385(a) and 386 of the Act; and that s.385(c) and (d) are not enlivened in this matter.
Valid reason
[32] The Deputy President summarises the ‘general principles’ and ‘relevant law’ at [69] – [84] of the Decision. At [85] – [101] the Deputy President sets out the submissions of Mr Newton and Toll in respect of whether there was a valid reason for the dismissal.
[33] At [102] the Deputy President adopts the principles established in Rose v Telstra 17 and acknowledges that the key issue is whether the conduct complained of, in relation to the Fight itself, bears a sufficient connection to Mr Newton’s employment with Toll, and whether the conduct complained vis the Fight is to be considered of such gravity or importance as to indicate a rejection or repudiation of continued employment by Mr Newton.
[34] At [106] the Deputy President states that the ‘core reasons’ relied upon by Toll to dismiss Mr Newton were that:
• Mr Newton, along with Mr Chambers, had been a willing participant in the Fight
• the Fight occurred at work
• fighting at work amounts to serious misconduct
• the Investigation Report made findings as to serious misconduct, and
• the Investigation Report recommended the dismissal of Mr Newton for his involvement in the Fight.
[35] At [107] the Deputy President concludes that he did not consider ‘Mr Newton’s mere instigation of, or involvement in, the Fight (that occurred outside of work) is, in and of itself, a valid reason for his dismissal’. In reaching that conclusion the Deputy President relied on his findings in [103] – [104], as follows:
‘In regard to the Fight, I have determined that it does not, in and of itself, bear a sufficient connection to Mr Newton’s employment with Toll. The following factors have led me to this conclusion:
(a) On 30 and 31 May 2019, the Applicants were on leave, and away from the Toll workplace. They were neither at work nor on-call. Although they were on Delegates’ Leave, being paid leave provided for under the Agreement (and otherwise authorised by Toll), this fact cannot directly, or by way of implication, in the circumstances of this case, alter the ordinary position that ‘leave is leave’ (i.e. being time when an employee is not ‘at work’). In this case, the Applicants were on leave in respect of their roles as TWU delegates, attending upon meetings organised by the TWU and not by Toll. They were selected by the TWU to attend such meetings, and were not required or directed by Toll to attend such meetings or take Delegate’s Leave. Whilst it is trite that a TWU delegate at Toll is also an employee of Toll, the fact that a TWU delegate wears two hats at the same time does not mean that they must always wear those hats together. Further, this is not a case where the Applicants were attending TWU meetings at a Toll workplace, or before, during, or after a rostered shift. Nor is this a case where the Applicants were attending an enterprise agreement negotiation, or a disciplinary meeting as a representative or support person for another TWU member. The TWU meetings were being conducted, once the Applicants were on Delegate’s Leave, outside of the Applicants’ working hours.
(b) Further to (a), even if I am found to be wrong and the Applicants’ were at work whilst on Delegate’s Leave, any assertion that the Applicants were at work, at its highest, could only extend to the hours of the TWU meetings themselves (noting that there was no work, union or social gathering (or alike) organised by the TWU or Toll post the cessation of the TWU meetings on 30 or 31 May 2019). I am not aware of any basis that I am able to find that post the cessation of the TWU Meetings, the Applicants were other than on their own free time (being time that the Applicants were neither in their capacity as an employee of Toll, or a Toll TWU delegate). Whatever the Applicants got up to, or wanted to get up to, during their “free time”, was a matter for them. Hence, even if it was accepted that the Applicants were at work up until the conclusion of the TWU meetings at 4:00pm on 30 May 2019, there was an interval of “free” or “personal” time between 4:00pm that day, and the recommencement of the TWU Meetings at 8:00am the following day.
(c) For completeness, I reject Toll’s submission that a sufficient connection to the workplace was somehow enlivened because the Applicants were discussing work related matters in the lead up to the Fight commencing. To adopt this line of reasoning would be to fall into reductio ad absurdum. A simple rhetorical proposition puts the argument to bed in short thrift: Would Toll always be willing to recognise a sufficient connection to a person’s employment just because an employee discussed work-related matters outside of rostered hours? The answer must surely be no.
(d) The fact that Toll paid for and/or organised the Applicants airfares, other transportation, accommodation and meals, does not alter my findings in (a) to (c) above. Toll did so, it appears, of its own volition. I have not been directed to any term of the Agreement, or other policy document, that would require Toll to make such payments or arrangements. Further, there is no evidence to suggest that the Applicants would not have attended the TWU meetings anyway (i.e. had Toll not agreed to pay for their airfares, other transportation, accommodation and meals). The Applicants needed to get to Melbourne and the TWU offices in Port Melbourne, they needed accommodation somewhere, and they needed to eat dinner. In the circumstances of this case, whether such matters were arranged and/or paid for by Toll, the TWU, or the Applicants themselves, is not, in my view, a factor that weighs towards a finding that the Applicants were at work at the time of the Fight. In saying this, it is important to clarify that whilst Toll paid for the Applicants’ dinners on 30 May 2019, it do not dictate or arrange where such dinners were to occur.
(e) Toll has submitted that the terms of the Agreement (in relation to TWU delegates), and/or the terms of its policies and procedures, have been breached by the Applicants as a result of the Fight. In relation to cl.49 of the Agreement, I do not consider the Applicants breached its terms. Firstly, the Applicants did not engage in the Fight during working time. Secondly, the Applicants were in their own “free time” at the time they engaged in the Fight (i.e. neither of the Applicants, at the time of the Fight, were in their capacity as an employee of Toll, or a Toll TWU delegate). Thirdly, it follows that neither of the Applicants were performing any functions, responsibilities or duties, by reference to the terms of the Agreement, when the Fight occurred. I do not consider that a fair reading or construction of the terms of Toll’s policies and procedures extends to, or encompasses, the regulation of an employee’s, or TWU delegate’s, “free time”. Further, although I do not construct such policies such a way, if they are to be constructed in such way, I do not consider them to be reasonable to the extent that they would give rise to a sound, defensible or well-founded reason for dismissal in the circumstances of this case.
(f) Toll submits that because Mr Chambers inflicted injuries to Mr Newton that resulted in him being unfit for work, I should find that a sufficient connection to the work exists. The difficulty with this submission is that Newton’s injuries arose outside of the workplace. In my view, it follows that such injuries, or the infliction of same, do not in and of themselves give rise to a sufficient connection to the Applicants’ employment.
Having concluded that Mr Newton was not at work at the time of the Fight, I also conclude that Mr Newton’s involvement in the Fight was not, of itself, of such gravity or importance as to indicate a rejection or repudiation by Mr Newton of his contract of employment with Toll. In this regard:
(a) There is nothing on the evidence to suggest that Toll’s reputation or interests have been damaged. Of course, I accept generally that employees engaging in fighting at work will not assist an employer’s reputation. However, the Fight did not occur at work. Indeed, there is no suggestion that members of the public, or even other Toll TWU delegates, looked upon the Fight and associated it with Toll.
(b) The fact that other employees became aware of the Fight after it had occurred does not, in my view, enable me to make a positive finding that this ‘awareness’ individually, or combined with the other facts and circumstances of this case, has caused Toll’s interests to have been damaged. Further, no members of the public witnessed the Fight, and the Applicants were not wearing any clothing that would give rise to anyone associating them or their conduct with Toll.
(c) The fact that Mr Newton himself believed that he was bound by Toll’s policies and procedures during his own free time, in my view, is neither here nor there. The question is, on a proper construction and application of Toll’s policies and procedures, did they apply to the Applicants at the time of the Fight (when the Applicants were in their own ‘free’ and personal time). I have found that they do not.’ (Footnotes omitted)
[36] At [109] – [111] the Deputy President deals with the Verbal Altercation and, as mentioned earlier, concludes that it did not provide a valid reason for dismissal.
[37] At [112] the Deputy President states:
‘I have set out the basis upon which I have concluded that the two core reasons relied upon by Toll for the dismissal of Mr Newton, individually or combined, do not amount to valid reasons for his dismissal. I stress that these conclusions relate only to these specific reasons for dismissal (as relied upon by Toll).’
Whether Mr Newton’s dishonesty constitutes a valid reason for his dismissal
[38] The Deputy President’s consideration of this issue is set out at [113] – [148] of the Decision. These aspects of the Decision are central to the appeal.
[39] At [113] – [116] the Deputy President finds:
‘In determining to dismiss both of the Applicants, Toll formed the view that both of the Applicants had been dishonest, or at the very least, less than candid, in relation to their versions of the Fight (i.e. as to what happened to start the Fight, what was said in the lead up to the Fight, and what occurred during the Fight).
There are, however, questions concerning Toll’s reliance upon issues of dishonesty in that, at the time of the Applicants’ dismissals, Toll was unable to properly articulate exactly what the Applicants had been dishonest about.
Rather, Toll appears to have proceeded simply on the basis that neither of the Applicants could be believed (to more or less degrees). This is not a criticism of Toll, or its investigation. The Investigation Report highlights the difficulties that Mr Lambie encountered in determining what actually happened in relation to the Fight, especially in circumstances where there were no witnesses to the Fight, and much of the evidence from persons other than the Applicants was based upon hearsay, speculation and innuendo. It was also apparent to Mr Lambie that there was a factional split amongst TWU delegates, which made evidence from other employees difficult to assess in terms of reliability (i.e. having regard to unknown union factional allegiances).
However, the fact that Toll’s reliance upon issues of dishonesty, as at the time it made the decision to dismiss Mr Newton, might have been incomplete or not fully capable of articulation, does not mean that Mr Newton’s dishonesty (as found to have occurred on the evidence in these proceedings) is to be cast aside from the perspective of the Commission’s ability to make a findings about same, or an ultimate finding as to such dishonesty being a valid reason for his dismissal.’
[40] At [117] the Deputy President set out what he regarded as the relevant question for determination:
‘On the evidence before the Commission, in all the circumstances of the case, does a valid reason for dismissal exist as at the time of the dismissal, notwithstanding that such a valid reason might not be one that was relied upon by the employer at the time of the dismissal, but for example comes to light in a hearing before the Commission?’
[41] At [120] – [139] the Deputy President sets out the various accounts by Mr Newton of the Fight and the Verbal Altercation, concluding at [140] that Mr Newton was not honest with Toll, nor with the Commission, in relation to his accounts of these events.
[42] After stating that Mr Newton was required to be honest and candid with Toll in respect of their investigation, the Deputy President’s conclusion in respect of whether there was a valid reason for Mr Newton’s dismissal is set out at [147] – [148]:
‘By representing the facts of the Fight and the Verbal Altercation as he has, Mr Newton has (both to Toll, and before this Commission) been both dishonest and misleading. In this regard, I note the following:
(a) Mr Newton has maintained his version of events. To date, Mr Newton has not recanted, to any substantial degree, his evidence that he did not in any way provoke the Fight. Nor has he moved away from his assertion that he was ‘king hit’ in a cowardly fashion by Mr Chambers, knocked unconscious, and then punched (absent any resistance from him) whilst he lay on the ground (with Mr Chambers sitting on top of him).
(b) Mr Newton’s dishonesty has been completely self-serving, with absolutely no regard to Mr Chambers personal reputation. Indeed, Mr Newton during the First and Second Interviews continued to maintain that he does not really know if he was glassed by Mr Chambers, and made sanctimonious comments about same, such as “I would like to think he wouldn’t have done something like that”. Given that I have rejected Mr Newton’s evidence that he did not provoke the Fight, and was not knocked unconscious during the Fight, his maintenance of the suggestion that he may have been glassed by Mr Chambers (or otherwise ‘king hit’ by Mr Chambers) is appalling.
(c) Mr Newton’s dishonesty in relation to the Verbal Altercation and his interactions with Mr Mitchell on 9 April 2019, whilst not of the same gravity as his dishonesty in relation to the Fight, are equally self-serving, and only serve to reinforce my view as to the self-serving nature of Mr Newton’s evidence more generally in these proceedings.
(d) Mr Newton’s dishonesty has not been in relation to insignificant or trivial matters. Whether the Fight justified dismissal or not, it was nonetheless a physical altercation between two employees that resulted in physical injury. Toll needed to know the truth as to what had occurred, and why it had occurred, so that it could make a proper assessment of any changes it needed to make at the workplace.
(e) Dishonesty of any form in the employment relationship will undermine the trust and confidence between an employer an employee. The seriousness of such dishonesty measures the degree to which such trust and confidence may be weakened. In this case, Mr Newton’s dishonesty was serious. It has had implications for Toll and Mr Chambers, including in terms of Toll’s investigation, the decisions Toll has made in reliance upon such dishonest information, and the impact it has had upon Mr Chambers.
All in all, I find that Mr Newton’s dishonesty in relation to the Fight and/or the Verbal Altercation constitute a valid reason for his dismissal by Toll. This weighs in favour of a finding that Mr Newton’s dismissal was not harsh, unjust or unreasonable.’
[43] Having determined that there was a valid reason for Mr Newton’s dismissal, the Deputy President turned to the remaining s.387 matters and determined as follows:
• Mr Newton was not notified of the reasons which constituted a valid reason for his dismissal (s.387(b)):
‘Mr Newton was not notified of the reason for his dismissal. Toll dismissed Mr Newton for “misconduct” because it formed the view that he engaged in the Fight (and was an active participant in same), and the Verbal Altercation (and was the aggressor in same). However, inherent in Toll’s decision to dismiss Mr Newton was the fact that Toll did not believe Mr Newton’s version of events in relation to the Fight and the Verbal Altercation. The facts in this matter are also unusual in that the Commission has found a valid reason for Mr Newton’s dismissal that existed at the time of his dismissal, being a reason upon which Toll did not expressly identify to Mr Newton at the time he was advised of his dismissal. In the circumstances, I consider this factor a neutral consideration in this matter.’ 18 (Footnotes omitted)
• As to whether Mr Newton was given an opportunity to respond to any reason related to his conduct (s.387(b)) the Deputy President regarded this as a neutral consideration:
‘I agree with Mr Newton that the allegations made against him by Toll lacked specificity, and merely concerned his involvement in the Fight and the Verbal Altercation. However, this is also to be considered in light of the fact that Mr Chambers and Mr Mitchell’s version of events were directly put to him by Toll, but he maintained his assertions as to what occurred. In short, Mr Newton had every opportunity to revise or otherwise correct his version of events, including before this Commission, but chose not to do so.
Further, whilst Toll did not warn Mr Newton that his false denials would give rise to a finding of serious misconduct (before or during the First and Second Interviews), such failure is ameliorated by the fact that questions of dishonesty and/or disparity in his evidence were directly put to him during his evidence before the Commission.
In view of this, I treat any failure by Toll to put specific allegations of dishonesty to Mr Newton during the First and/or Second Interviews, or as part of the disciplinary process, as a neutral consideration in the circumstances of this case.’ 19 (Footnotes omitted)
• s.387(c) is a neutral consideration as ‘Mr Newton’s dismissal was not for reasons of conduct, not unsatisfactory performance.’20
• The matters in ss.387(d), (f) and (g) were regarded as neutral considerations.
• The Deputy President had regard to a range of matters raised by Mr Newton in support of his contention that dismissal was a disproportionate outcome and therefore harsh, and gave these matters weight in his overall determination of whether the dismissal was unfair (see [156] – [158]).
[44] The Deputy President’s conclusion is set out at [165] – [171], relevantly:
‘Having regard to the findings that I have made in this decision, and having given due weight to each of the essential criteria provided for under s.387 of the Act, I am satisfied that Mr Newton’s dismissal was not unfair within the meaning of s.385 of the Act.
In all the circumstances, I have determined that Mr Newton’s unfair dismissal application is to be dismissed.
In weighing the finding I have made as to valid reason, as against the neutral considerations I have identified, and as against the weight to be given to the “other matters” put forward by Mr Newton, I do not consider the latter to be, in the specific facts and circumstances of this case, matters that render Mr Newton’s dismissal harsh, unjust or unreasonable. Mr Newton’s dishonestly [sic] with Toll and before this Commission means that Toll cannot be confident that he will be honest with it into the future. His dishonesty has been in relation to straightforward issues as to his interactions with other persons during the Fight and the Verbal Altercation, however, such straightforward issues have been about significant matters for both Toll and Mr Chambers.
In the circumstances of this case, the question becomes is it harsh, unjust or unreasonable for an employee (even an employee of lengthy service who does not hold a management role) to be dismissed for dishonesty of the gravity engaged in by Mr Newton? Giving due weight to each of the matters set out under s.387 of the Act, I have concluded that it is not.
…
In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both Mr Newton and Toll. I have not found Mr Newton’s dismissal to be unfair, and I have taken into account the needs of both Toll and its employees in reaching this determination.
A separate order will be issued dismissing the Application for an unfair dismissal remedy made by Mr Newton in this matter.’
3. The Appeal
[45] Mr Newton advances a number of arguments as to why the Commission ought to grant permission to appeal, by reference to the appeal grounds advanced. 21 In particular, Mr Newton submits that the appeal raises an important question of principle of general significance to the Commission’s unfair dismissal jurisdiction under Part 3-2 of the Act concerning the circumstances in which an employer can require an employee to answer questions about matters that occur outside the workplace which are not otherwise connected to the employee’s employment in the sense described in Rose v Telstra.22
[46] Mr Newton also contends that the Deputy President made a series of jurisdictional errors. 23
[47] Toll submits that for the reasons set out in its submissions of 3 March 2021, the appeal should be refused because the grounds relied upon by Mr Newton do not engage the public interest. 24
[48] The submissions advanced by Mr Newton and Toll in respect of the various grounds of appeal were summarised in a Background Paper issued by the Commission on 26 March 2021. Question 13 of the Background Paper asked the parties whether the summary of the submissions advanced in respect of each ground of appeal were accurate. In response, Toll did not raise any substantive concerns regarding the summary of the submissions set out at paragraphs [40]-[93] of the Background Document, but reiterated that Toll relies on the entirety of its written outline of submissions dated 3 March 2019 and asks that those submissions be taken into account.
[49] We note here that we have taken account of the written and oral submissions advanced on behalf of Mr Newton and Toll.
4. Consideration
[50] The appeal raises questions of general importance and significance to the Commission’s unfair dismissal jurisdiction, in particular:
1. The correct application of s.387(a).
2. The correct approach to findings of dishonesty which are relied upon to provide a valid reason for dismissal.
3. The correct application of ss.387(b) and (c).
[51] We are satisfied that it is in the public interest to grant permission to appeal and we do so.
[52] It is convenient to categorise the various grounds and arguments advanced on appeal into three broad topics:
• valid reason (s.387(a))
• notification of the valid reason (s.387(b)), and
• the opportunity to respond to the valid reason (s.387(c)).
Valid reason
[53] Section 387(a) of the Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account (among other things):
‘whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)’
[54] Various aspects of the Deputy President’s consideration and application of s.387(a) are challenged on appeal. In essence the Appellant contends that the Deputy President erred in three main respects:
1. Deciding that the Commission is not limited to the reason relied upon by the employer in finding that there was a valid reason for the dismissal (The error of principle).
2. The finding (at [147], also see [148]) that by representing the facts of the Fight and the Verbal Altercation Mr Newton had ‘(both to Toll and before this Commission) been both dishonesty [sic] and misleading’. The Appellant submits that such a finding was a serious one and it was not open to the Deputy President, without giving Mr Newton notice that he was contemplating such a conclusion, to make such a finding: ‘constituting a denial of procedural fairness to Mr Newton and a substantial wrong or miscarriage so as to warrant a grant of permission to appeal and the quashing of the Decision’ (The denial of procedural fairness).
3. In concluding that Mr Newton was required to be honest and candid with Toll in respect of the investigation into the Fight (The requirement to be honest and candid).
1. The Error of Principle
[55] As we have mentioned, the Deputy President purports to summarise the ‘general principles’ and ‘relevant law’ with respect to s.387(a) at [69]-[84] of the Decision. At [72]-[78] he says:
‘[72] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.
[73] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s.387. That said, relevant weight is a matter for the relevant decision-maker.
[74] It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable…
[75] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it (on the balance of probabilities).
[76] Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer…
[78] Where the conduct in question concerns fighting, the attitude of the Commission (generally) will tend to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which a fight occurred, as well as other considerations, such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of a fight, relevant considerations include whether the dismissed employee was provoked, and whether he or she was acting in self-defence.’ (Footnotes omitted, emphasis added)
[56] At [117] the Deputy President sets out the question he poses for determination:
‘On the evidence before the Commission, in all the circumstances of the case, does a valid reason for dismissal exist as at the time of the dismissal, notwithstanding that such a valid reason might not be one that was relied upon by the employer at the time of the dismissal, but for example comes to light in a hearing before the Commission?’
[57] At [118] the Deputy President states:
‘It follows that the Commission’s inquiry as to whether a valid reason for a dismissal exists is not limited to only the reasons given by an employer for a dismissal, but may include, for example, reasons later identified by an employer, or by the Commission, that were in existence at the time a dismissal occurred.’
[58] The propositions at [72], [74] and [75] of the Decision are uncontentious. In short, the Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss. Where – as is the case here – a reason for a termination is based on the conduct of the employee, the Commission must determine whether the alleged conduct took place and what it involved, on the basis of the evidence in the proceedings before it. 25
[59] The Appellant rejects the proposition contained the second sentence of [76] – namely, that in determining whether there is a reason for termination the Commission is not limited to the reason relied on by the employer, if that proposition is understood to mean that the Commission is entitled to embark on a roving or inquisitorial inquiry into reasons which may ground a valid reason for dismissal which are not expressly advanced and argued before the Commission by the employer.
[60] The Appellant contends that such an approach would be:
1. Contrary to the obligation of the Commission to act judicially and accord the parties procedural fairness (citing Edwards v Justice Giudice and Others [1999] FCA 1836 at [44] (Marshall J)).
2. Inconsistent with the principle that the employer bears the onus of establishing the validity of a particular reason for dismissal (citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204).
[61] For the same reasons the Appellant submits that the question posed at [117] and the observation at [118] are erroneous.
[62] The Appellant submits that the statement of principle at [118] is erroneous because:
‘it is not appropriate for the Commission to itself formulate or identify valid reasons for dismissal not expressly relied on and advanced by the employer during the course of a hearing. Whilst an employer can, un-controversially, rely on ‘after acquired’ knowledge of misconduct to establish a valid reason, it cannot rely on conduct which was known to it and not relied on in effecting a dismissal as the employer will have waived the capacity to rely on such conduct.’ 26
[63] The Appellant concedes that an employer can rely on what is actually ‘after acquired’ knowledge of conduct that did not come to light by the time of dismissal but submits that this must be done by the employer, specifically and directly at the hearing, given that it is the employer who bears the onus of establishing a valid reason for dismissal.
[64] The Appellant contends that the correct principles are that an employer:
• can rely to establish a valid reason for dismissal on ‘after acquired’ knowledge of conduct which occurred during the employment but did not come to light by the time of dismissal. 27
• cannot rely to establish a valid reason on conduct which occurred during the employment of which the employer was aware but had waived/condoned by not relying on such conduct in deciding to dismiss the employee. 28
[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. 29 Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.30
[66] We accept that if the Commission determines that there is a valid reason for dismissal which is not expressly advanced by the employer then it must act judicially and accord the parties procedural fairness – an issue to which we will return shortly; but we reject the Appellant’s waiver submission; namely the proposition that in the context of establishing a valid reason for dismissal an employer cannot rely on conduct of which the employer was aware but waived/condoned by not relying on such conduct to dismiss the employee. Two authorities are cited in support of the submission put: Howard v Pilkington (Australia) Ltd 31(Pilkington) and Cannan v Nyrstar Hobart Pty Ltd32 (Nyrstar).
[67] Pilkington concerned a claim for damages for breach of contract arising from the summary dismissal of a manager. The employer in that case had justified the manager’s dismissal by relying on three instances of disobedience of a lawful instruction or direction. One issue in the proceedings was whether Pilkington had acquiesced or condoned the manager’s conduct. In respect of this issue, Judd J held, relevantly:
‘In Rankin v Marine Power International Pty Ltd Gillard J provided a helpful statement of the legal principles to be applied when an employer is taken to have condoned, waived, acquiesced in or decided not to rely upon an employee’s conduct to terminate the contract of employment such as to disentitle the employer from later relying upon that conduct to justify summary dismissal. His Honour said,
352 An employer who has full knowledge of the misconduct of an employee, and who makes a decision to continue to employ the employee, cannot at a later date, unless of course other facts come to his knowledge, dismiss him summarily on the basis of the employee's known misconduct. It is said that the employer has waived his right to dismiss the employee summarily, and thereby condones the misconduct…’ 33 (Footnotes omitted)
[68] Pilkington states the law in respect of waiver or condonation in the context of common law summary dismissal for misconduct. It says nothing about the Commission’s statutory task under s.387. In our view, caution needs to be exercised in seeking to import common law notions into what is a statutory, arbitral function. As Gray J observed in Miller v University of NSW:
‘In terms of legal rights, the employment of most employees in Australia is terminable on some form of notice. The right to terminate by notice might arise from the express or implied terms of the contract of employment, or from an award or other collective instrument governing the terms and conditions of the employment. Generally, the notice may be given by either party. Also generally, it might be given for good reason, bad reason or for no reason at all. If the “valid reason” contemplated by s 170CG(3)(a) of the WR Act involved no more than an inquiry into the legal rights of the parties, in most cases it would be a short inquiry. It would be answered by saying that the employer had a right to dismiss the employee on notice and had exercised that right. The provision refers to a “valid reason” in another sense altogether… What is sought is not the existence of a legal entitlement to terminate the employment, but the existence of a reason for the exercise of that right that is related to the factual situation. The validity is not to be judged by reference to legal entitlements, but to the Commission's assessment of the factual circumstances as to what the employee is capable of doing or has done, or as to what the employer requires in order to continue its activities.’ 34
[69] Nyrstar is a first instance decision in which the Member states:
‘The principle behind the Applicants’ submission of condonation is that an employer, with full knowledge of an employee’s misconduct and continues to employ him [sic], cannot later rely on that misconduct to dismiss the individual. Thus, by knowing the behaviours of Mr Cannan and Mr Fuller and electing to continue the employment of them, Nyrstar ‘condoned’ their conduct and ‘waived’ the right to terminate their employment contracts
The practical manifestation of this principle in the employment context is that a wronged party has the right to elect, in the face of a breach of a condition of an employment contract, either to continue the contract or terminate it for breach. In order for condonation to be present, an employee must provide that:
• the employer had full knowledge of the conduct;
• despite this, the employer retains the employee’s services; and
• with this election, the employer has deliberately given up the right to dismiss the employee summarily.’35 (Footnotes omitted)
[70] A subsequent appeal was upheld, 36 but only on the limited ground that the Member had erred in assessing lost remuneration in her determination of the compensation order. As to the Member’s remarks about condonation the Appeal Bench held:
‘The evidence clearly supports the finding of Deputy President Wells that the Appellant’s managers had condoned the conduct of the Respondents in that they were not disciplined for the conduct and they were rated as satisfactory or better than satisfactory employees in their performance reviews over the time in which the relevant conduct had occurred. The evidence relied on by the Appellant to challenge the finding of the Deputy President went largely to evidence as to the view of managers of the relevant conduct and the evidence of that does not militate against the substantial evidence that the Respondents were not disciplined in relation to the relevant conduct. This conclusion also disposes of the Appellant’s ground 5.3.2 in its written Outline of Submissions.’ 37 (Footnotes omitted)
[71] Two other decisions also bear on this issue. In Toll Holdings Limited t/a Toll Transport v Johnpulle 38 (Johnpulle) the Full Bench addressed the submission that toleration or condonation of misconduct was relevant to whether a dismissal was harsh, unjust or unreasonable, as follows:
‘It may be accepted that, under the general law, an employer is disentitled to summarily dismiss an employee for an earlier instance of misconduct on the part of that employee where the employer with full knowledge of the misconduct had decided to retain the employee in employment. It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct by an employee in this way and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee.’ 39 (Footnotes omitted)
[72] In Conicella v Phillip W Hill & Associates Pty Ltd t/a Hunter Legal & Conveyancing 40 (Conicella), Saunders C (as he then was) relying on Johnpulle, stated:
‘In my view, the following principles are apparent from these authorities on the question of reliance by an employer on earlier instances of misconduct on the part of an employee when making a later decision to dismiss the employee:
• where an employer with full knowledge of earlier instances of misconduct on the part of an employee has decided to retain the employee in employment, those earlier instances of misconduct cannot, of themselves, constitute valid reasons for dismissal;
• however, the earlier instances of misconduct may be relevant to the question of whether there was a valid reason for dismissal because they may increase the gravity of later misconduct, particularly where the earlier misconduct was of the same or a similar character and the employee was warned not to repeat it, thereby contributing to a finding that the reason(s) for dismissal were “sound, defensible and well founded”; and
• the earlier instances of misconduct and any warnings in relation thereto may also be “relevant matters” (s.387(h)) to an assessment of whether the dismissal was too harsh a penalty in the circumstances.’ 41 (Footnotes omitted)
[73] In our view, Nyrstar and Conicella both overstate the position. The proposition that earlier instances of misconduct which have been condoned by the employer ‘cannot, of themselves, constitute valid reasons for dismissal’ is simply wrong. The proposition erroneously conflates the position at common law with the Commission’s statutory task under s.387.
[74] Further, the proposition put is not supported by Johnpulle. The relevant passage from Johnpulle is:
‘It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct … and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee.’ 42 (Emphasis added)
[75] Contrary to the summation in Conicella, the Full Bench in Johnpulle was not stating a decision rule that past (condoned) misconduct cannot constitute a valid reason for dismissal. Properly understood, Johnpulle is authority for the proposition that the attitude of the employer to such misconduct – that is, at the time the employer did not think it sufficiently serious to warrant summary dismissal – is a significant consideration, relevant to whether such misconduct constitute a valid reason for dismissal. However, it is not determinative of the question. 43
[76] If condonation was determinative it would be akin to adopting a subjective test to the question of whether there was a valid reason for the dismissal; that is, one would approach the issue solely from the perspective of the employer. Such an approach is contrary to principle. As we have mentioned, the Commission is required to conduct an objective analysis of all relevant facts in determining – on the basis of the evidence in the proceedings before it – whether there was a valid reason to dismiss.
[77] For completeness we note that we also reject the submission that the Deputy President’s statement of principle of [117] and [118] is ‘inconsistent with the principle that the employer bears the onus of establishing the validity of a particular reason for dismissal’.
[78] The authorities relied on by the Appellant, Yew 44 and Allied Express45 are decisions of the Industrial Relations Court and the Federal Court respectively and provide no support for the proposition put; they were decided under an earlier statutory scheme in which s.170DE(1) stated:
‘An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.’
[79] Further, at the time Yew was decided, s.170EDA expressly dealt with onus of proof stating:
‘the termination is taken to have contravened subsection 170DE(1) unless the employer proves that…there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1)’
[80] There is no equivalent provision in the Act.
[81] Contrary to the Appellant’s contention, the extent to which the legal concept of onus or burden of proof applies to matters before an administrative tribunal such as the Commission is somewhat vexed. As observed by the Full Bench in Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan:
‘As to the issue of onus agitated by the Respondent, it must be said that the extent to which the legal concept of onus or burden of proof arises in relation to matters considered by an administrative tribunal such as the Commission is a difficult one. However, in the context of the question whether a dismissal is unfair, to the extent that there is a legal onus or something analogous to it, the onus rests on the applicant in the sense that it is the applicant who bears the risk of failure if the satisfaction required by s.385 including s.385(c) is not reached. As to evidentiary onus, plainly a party seeking to establish a fact bears onus of adducing evidence necessary to establish that fact. In a practical sense, in most cases the question of where an evidentiary onus resides will be answered by asking: in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about the matter were given?’ 46
[82] For the reasons given the Deputy President did not err in the manner contended by the Appellant. The Commission is not limited to the reason relied upon by the employer in finding that there was a valid reason for dismissal.
2. The Denial of Procedural Fairness
[83] As we have mentioned, the Deputy President concluded – correctly in our view – that the Fight did not have a sufficient connection to Mr Newton’s employment with Toll and accordingly Mr Newton’s involvement in the Fight did not constitute a valid reason for his dismissal. The Deputy President then goes on to make the following finding (at [148]):
‘All in all, I find that Mr Newton’s dishonesty in relation to the Fight and/or the Verbal Altercation constitute a valid reason for his dismissal by Toll. This weighs in favour of a finding that Mr Newton’s dismissal was not harsh, unjust or unreasonable.’ (Emphasis added)
[84] This finding needs to be seen in the context of the decision read as a whole. At [50] the Deputy President states that he strongly preferred the evidence of Mr Chambers (as opposed to Mr Newton) in relation to the Fight and sets out the basis for that preference (see [20] above).
[85] The Deputy President’s characterisation of Mr Newton’s evidence is set out at [51] – [52], as follows:
‘[51] In my view, much of Mr Newton’s evidence as to the Fight was either self-serving or implausible, in that many of his answers, and his demeanour when providing such answers, gave me the impression that he was attempting to either:
(a) shift blame or responsibility for his role in the Fight;
(b) cast Mr Chambers as the antagonist of the Fight, without proper regard to, or honest account of, his own actions;
(c) portray himself as a victim in the Fight;
(d) diminish the overall seriousness of the Fight; and/or
(e) muddy the waters as to the facts to attempt to create an outcome on the evidence where positive findings of fact contrary to Mr Newton’s interests are unable to be made.
[52] Mr Newton’s evidence before the Commission was, in my view, merely a continuation of the same behaviours exhibited by Mr Newton immediately post the Fight, whereby he:
(a) initially and falsely asserted to Toll and other employees that he had been, or might likely have been, “glassed” by Mr Chambers during the Fight;
(b) had totally lost consciousness or “blacked-out” during the Fight; and/or
(c) had been “beaten up” (or “king hit” or “coward punched”, as it is otherwise known) by Mr Chambers for no apparent reason.’ (Emphasis added)
[86] At [53] the Deputy President characterises Mr Newton’s dishonesty as ‘sinister conduct’ and an attempt to save his job by impugning and damaging Mr Chambers’ character and reputation:
‘Mr Newton’s foregoing assertions against Mr Chambers are, in my view, sinister conduct that can never be justified. I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.’ (Footnotes omitted, emphasis added)
[87] At [119] the Deputy President says:
‘Unlike Mr Chambers, I have found Mr Newton to have engaged in dishonest conduct during the course of the investigation into the Fight and the Verbal Altercation, and before this Commission. Mr Newton’s conduct in this regard marks a departure from the circumstances that applied to Mr Chambers. Mr Newton’s dishonest behaviour in terms of a valid reason for dismissal must be considered separately to the conduct relied upon by Toll in dismissing Mr Newton (i.e. for his willing involvement in the Fight and the Verbal Altercation).’ (Emphasis added)
[88] Later at [140]:
‘Based upon my Mr Newton’s responses to Toll during the First and Second Interviews, and his evidence before this Commission, given my findings in this decision, I reiterate my view that Mr Newton has not been honest with Toll or the Commission in relation to his accounts of the Fight and the Verbal Altercation.’ (Original, emphasis added)
[89] At [147] the Deputy President reiterates that ‘by representing the facts of the Fight and the Verbal Altercation as he has, Mr Newton has (both to Toll, and before this Commission) been both dishonest and misleading’ (emphasis added) and notes that:
‘Mr Newton’s dishonesty has been completely self-serving, with absolutely no regard to Mr Chambers personal reputation. Indeed, Mr Newton during the First and Second Interviews continued to maintain that he does not really know if he was glassed by Mr Chambers, and made sanctimonious comments about same, such as “I would like to think he wouldn’t have done something like that”. Given that I have rejected Mr Newton’s evidence that he did not provoke the Fight, and was not knocked unconscious during the Fight, his maintenance of the suggestion that he may have been glassed by Mr Chambers (or otherwise ‘king hit’ by Mr Chambers) is appalling.’ 47
[90] The Appellant submits that the Deputy President made a finding that ‘Mr Newton had been deliberately dishonest and embarked on a malicious and self-serving campaign to impugn Mr Chambers:
‘It was, in effect, a conclusion that Mr Newton had lied during their investigation and had not complied with his oath to give truthful evidence before the Commission.’ 48
[91] Contrary to the Appellant’s submission, Toll submits 49 that it is overstating and misrepresenting the Decision to say that the Deputy President found that Mr Newton had deliberately lied with some sort of malevolent purpose:
‘The Deputy President certainly found that the Appellant’s evidence was completely self-serving. He found that the Appellant’s dishonesty had absolutely no regard to Chambers’ reputation. He found that the Appellant had not recanted or moved away from his assertion that he had been king hit in a cowardly fashion by Mr Chambers. He found that the Appellant’s maintenance of the suggestion that he had been “glassed” by Mr Chambers was appalling. He found that the Appellant’s dishonesty was serious and that it had implications for the Respondent and Mr Chambers.
However, the Deputy President did not make any finding about the Appellant’s motive other than that he was driven by self-interest. The Deputy President did not find that the Appellant had embarked on a malicious self-serving campaign to impugn Mr Chambers or that he acted with some sort of malevolent purpose or that he set out to impugn or damage Mr Chambers’ reputation. This is overreach on the part of the Appellant and the Appellant’s submissions do not point to where such findings were made.’ 50 (Footnotes omitted)
[92] We reject Toll’s contention that the Deputy President did not make a finding about Mr Newton’s motive, other than he was driven by self-interest. At [53] the Deputy President says:
‘I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.’ (Footnotes omitted)
[93] It is plain from the above extract that the Deputy President found that ‘a core purpose’ of what the Deputy President characterised as Mr Newton’s false assertions against Mr Chambers was ‘to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce.’ Further, the Deputy President characterised Mr Newton’s assertion against Mr Chambers as ‘sinister conduct that can never be justified.’
[94] Further, we note that the Deputy President’s earlier finding, at [147], that Mr Newton’s representation of the facts of the Fight and Verbal Altercation was ‘both dishonest and misleading’. The Deputy President’s findings plainly go further than merely rejecting Mr Newton’s evidence. Nor should the earlier findings be divorced from the Deputy President’s ultimate conclusion at [148] – these findings would serve no purpose if there were not relevant to the issue of whether there was a valid reason for the dismissal.
[95] When viewed in the context of the Decision as a whole, it appears to us that the Deputy President found that Mr Newton’s conduct was not only dishonest, but egregiously so, particularly having regard to the comments made by the Deputy President at [51], [53] and [147]. Further, the Deputy President clearly drew the inference that a core purpose in Mr Newton’s false assertions against Mr Chambers was ‘to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll’. The Deputy President characterised Mr Newton’s behaviour as ‘both dishonest and misleading’ (at [147]) and ‘sinister conduct that can never be justified’ (see [53]).
[96] Finally, the Deputy President’s repeated reference to Mr Newton’s ‘dishonest’ conduct before the Commission (see [119] and [140]) gives the clear impression that the Deputy President considered Mr Newton’s conduct during the proceedings as relevant to his consideration of whether Mr Newton was validly dismissed for being dishonest.
[97] It is convenient to deal with the later point first.
[98] On the basis of the paragraphs mentioned above, the Appellant submits:
‘That is the - in a manner that's been enlivened by what the respondent said in its submissions, the Deputy President appears to have taken into account the conduct during the Commission proceedings as itself giving rise to a valid reason for dismissal. That was obviously not open as it was not conduct that existed at the time of the dismissal and obviously post dated the dismissal. It could not have provided a valid reason.’ 51
[99] A valid reason can only be found based on ‘after acquired’ facts if such facts existed at the time of the dismissal. To the extent that Mr Newton was ‘dishonest’ in his evidence before the Commission, such dishonesty took place many months after Mr Newton’s dismissal. Mr Newton’s conduct before the Commission was irrelevant to the question of whether or not there a valid reason for his dismissal within the context of s.387(a).
[100] The Deputy President erred in taking into account Mr Newton’s ‘dishonest conduct’ before the Commission in assessing whether there was a valid reason for dismissal.
[101] We now turn to the Deputy President’s findings about Mr Newton’s dishonesty and the imputed motive for that dishonesty. The central question is whether or not Mr Newton was afforded procedural fairness in respect of these issues.
[102] The finding that Mr Newton had been dishonest and had engaged in ‘sinister conduct’ by embarking on a self-serving campaign to impugn Mr Chambers is a significant and serious finding. It was, in effect, a conclusion that Mr Newton had lied during Toll’s investigation and had not complied with his oath to give truthful evidence before the Commission.
[103] We agree with the Appellant’s contention that there is a significant difference between rejecting a person’s evidence and a finding that they have deliberately lied, particularly where the finding is that they have lied with some sort of malevolent purpose. As the plurality observed in Smith v NSW Bar Association 52(Smith):
‘As a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.’ 53
[104] A finding of the type made by the Deputy President carries with it an obligation to accord the relevant party procedural fairness. In Smith the plurality put it this way:
‘…it is convenient to proceed on the assumption that his Honour also acted on a positive finding that the appellant deliberately lied. But even if the evidence was sufficient to support the findings so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made… In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding… were flawed.’ 54
[105] The High Court’s judgment in Kuhl v Zurich Financial Services Australia Ltd 55(Kuhl) is also apposite.
[106] In Kuhl the appellant was an employee of Transfield Construction Pty Ltd. He was engaged to clean out the reactors used in the production of hot briquetted iron at BHP’s plant in Port Hedland. WOMA (Australia) Pty Ltd supplied the vacuuming equipment used in the cleaning. It was also responsible for directing and supervising the operators of the equipment, for setting up the hose and for clearing blockages in it. In mid-November 1999, the hose Kuhl was using became blocked. Kuhl went to investigate. An employee of Hydrosweep Pty Ltd, Mr Kelleher, attempted to unblock the hose. Hydrosweep also supplied a vacuum truck and two operators for WOMA to use at the site. Kelleher passed the hose from side to side in front of the suction inlet but directed away from Kuhl. The vacuuming facility was in operation at the time. Kuhl’s left arm managed to get sucked into the hose, causing him serious injuries.
[107] In the proceedings at first instance the trial judge made the following observation about the plaintiff’s evidence:
‘The plaintiff was less than expansive when describing how his arm was drawn into the vacuum hose, and I formed the view that for whatever reason he was reluctant to say precisely what happened. I accept the essentially unchallenged evidence of Mr Kelleher that the suction inlet was directed away from the plaintiff as the hose was passed to him, and I am left to infer that some subsequent action by the plaintiff caused his arm to be drawn in by the suction force.
In addition to the sections referred to in the footnote at [152], there were further instances where inconsistencies in Mr Newton’s evidence were put to him.
The relevant extracts are below (our emphasis added):
PN1174
Now at the bottom, the incident at Parramatta is raised where there's another Toll TWU delegate's meeting - about 60 people present - and it's said that you went up where he - as in brother Mitchell was standing, called his name and when he turned around, you pushed him in the chest. You say that didn't happen at all. He walked. He let me start from the beginning with this - let me start from the beginning of this one. And then over the page you give your description of what occurred. You say, "Because there's one common denominator here and it's a bloke by the name of Mark Trevillian." And you say that another delegate, Billy Brain informed you that Mitchell had been slagging you off?---Yes.
PN1175
I don't even know Rob Mitchell and he's 30 years my junior. Right. And he's a big lad. When he turned up I asked him I didn't even - I had to get Billy to point him out to me and I said, "Who is he?" And he's gone, "Oh, him." "I walked over and I said, 'Mate, what's up with you? You want to come for a walk up there and have a chat and let me know what your problem is.'" Do you see that?---Yes.
PN1176
Now you when you say, "You want to come up for a walk up there where did you have in mind going for a walk?"?---Away from the crowd.
*** STEVEN KEITH NEWTON XXN MR RAUF
PN1177
All right. Were you pointing somewhere?---I can't recall. I can't recall. You had just, "Do you want to come for a walk and we're going to have a talk about it. Have a chat."
PN1178
You seem to be referring to come over for a walk up there. I'm just trying to understand where up there is?---Well, it's on the street. It's out on the street. So it could have been that way. It could have been anywhere. It could have - - -
PN1179
You don't now recall?---Okay.
PN1180
"And have a chat and let me know what your problem is." And you say, "I don't even know the guy. I was pissed off that he was walking around slagging me off but why? And Mark Trevillian stepped in, and has gone, 'Hang on Skull.' And I said, 'No leave it go, Mark.' I said, 'He's only saying the things what he's saying because you're telling him to say them. That's what this is about.'" I said, 'Mate, I don't even know you.' So this is back to Mitchell?---Mm.
PN1181
I said, 'If you want to come for a walk over and we will have a chat about it and you can - if you've got any grievances let me know. There's no way I was going to be punching on someone 30 years my junior.'?---That's correct.
PN1182
Why did you feel the need? So this is - well, what you - at the time were you waiting to go into the meeting or what was happening immediately? What were you doing outside or wherever you were at the time?---We were outside before the meeting, having a coffee.
PN1183
I see. And so you've asked Billy Brain, "Well, who is he?" Billy Brain tells you, "Mate, there's this guy slagging you off." You say - you know - you ask him immediately, "Well, who is he?" And you walk over to Mitchell once he's identified, confront him, and you say to him, "Let's walk over there." Wherever there is. Up there. "And have a chat. Let me know what your problem is." So you felt it important then and there to say - go to Mr Mitchell. You're pissed off of course and you want to say to him, "Look, let's go and sort it out now"?---I thought it was a bit funny to start with actually.
PN1184
Right?---Because I don't even know the guy.
PN1185
Yes?---I've never had a conversation with him at all. I don't know him.
*** STEVEN KEITH NEWTON XXN MR RAUF
PN1186
All right. And then as to the teeth being taken out - that's put to you - and you say, "No, I had me teeth done. Yeah, I had an abscess on my teeth and I couldn't - I find it hard to talk. You're only new, you know?" So did you take your teeth off as you approached him?---No.
PN1187
Or when you were with him or - - -?---No. At the table. They were wrapped in me hanky.
PN1188
All right?---I've got a plate with three teeth on it and I've actually got a spare one in me bag now because I'm going through the same problem.
PN1189
Sure?---At the moment.
PN1190
All right. And look I just wanted to understand. And then over the page there's reference to you having a discussion with Leanne Ballard about the incident?---Over the page on?
PN1191
So 184 at the bottom?---Yes.
PN1192
And you were asked questions about your discussion with Leanne Ballard. "What did you tell her?" And you say, "I told him" - should that be a 'her' or "I told her or him he was a fucking idiot. He was walking around. I can't remember the whole discussion I had with him but I just asked him the question. I said, 'Why, what's your problem?' You know?---Leanne put the question to me. I do remember that and asked me how yesterday went and I - - -
PN1193
So she generally asked you, "Look, how was yesterday?"?---Yes.
PN1194
Because she knew that you were at the delegate's meeting?---Yes.
PN1195
And she's - at the workplace - she's come to you, "How did things go yesterday?" And you've said - that's when you've opened up to her about this exchange with Mr Mitchell?---Yes.
PN1196
And because you were perhaps still a bit pissed off by what had happened?---I couldn't understand it. Hang on. I wasn't actually pissed off the day after - that's not me.
PN1197
And so GR is - so that's as I see - that's indicated to be a Grant Rodger. Well, he was your support person was he?---Well, when are you talking about? Which- - -
*** STEVEN KEITH NEWTON XXN MR RAUF
PN1198
Sorry, in this interview. So I see there's if I - in attendance there's Steve Newton, Raymond Lambi, Brian Berry and Grant Rodger?---Yes.
PN1199
Who was Grant Rodger?---He's our union organiser.
PN1200
I see. Had you requested for him to accompany you?---Yes.
PN1201
And so you were there when he made his - gave his sort of observations of what happened in this meeting?---Yes. I suppose so.
PN1202
Right. What I want to put to you is whether you agree with - he describes it as a face to face heated discussion. What do you say about that description?---Yes. Yes. It's not far off.
PN1203
All right. So this is the discussion of Mr Mitchell. So you accept that it was a face to face and it was a heated discussion?---Well, I've already told you that I was pissed off. Yes, I was a little bit pissed off with the names that he was calling me - yes.
PN1204
Yes. We covered yesterday that you also held a belief that you felt that he had been put up to it by Mark Trevillian?---Well, Robert Mitchell is Mark Trevillian's co-delegate. He works in an entirely different yard than I do. We don't interact. We don't work together. And I don't work with Mark Trevillian either.
PN1205
Well, I think you had understood that Mr Mitchell had called you, "Dickhead. Retard. A spastic"?---Mm. Yeah.
PN1206
And just, finally, if I can just take you to one other - at 193 - it was at the bottom of the page again. You described, "No, I was pissed off. I'm not going to bullshit to you. I'm not going to lie about. Yeah, I was pissed off like anyone would. And I think I have the right to know why - as in why he's calling you those things. Maybe I am giving you a reason why. Like, I've just been for the last 25 years doing battle to get these guys pay increases." So, perhaps, understandably you were pissed off because from your perspective you have been serving the interests of the employees over many years and you didn't appreciate that there might be some junior delegate out there, calling you a dickhead, spastic retard?---Yes. That's correct.
*** STEVEN KEITH NEWTON XXN MR RAUF
PN1207
Now, given what we've discussed of the interaction and that it was heated. It's fair to say that you weren't calm and composed in that discussion?---Yes. I was.
PN1208
Right?---Yes, I was. I was composed. It was just a conversation. It was a little bit heated but not - - -
PN1209
What I want to put to you is that you taking your teeth out, approaching Mr Mitchell in front of the other delegates and in the presence of other people challenging him was your way of sending a message that, "Look, if you want to challenge me or have a go at me then let's - you know - I will deal with you right now"?---That's not correct. That's not right at all.
PN1210
And he alleges that you pushed him as well in the chest?---That's not correct.
PN1211
Can I just go back to your - the show cause letter which is attached to your first statement, Mr Newton? It's at SN05, page 23 of your first statement?---Yes.
PN1212
Just tell me when you've turned to that?---Yes.
PN1213
Right, thanks. Now, when you got this you read the concerns about your conduct that were noted at (a) and (b)? Yes?---Yes.
PN1214
And you responded to both of those concerns in your response to the show cause?---Yes.
PN1215
Right. And as to the first one your interaction with Mr Mitchell on the 9 April you denied that it occurred as was alleged by Mr Mitchell that, namely, that you say that you didn't - just give me a moment. You didn't say the things which was alleged that you had said or found that you had said and that your conduct wasn't such as to make Mr Mitchell fear being physically assaulted by you or intimidate Mr Mitchell. Are you saying no that didn't happen.
PN1216
MR GIBIAN: Well, I mean it should be taken what he actually said in the response if they were at other premises.
PN1217
MR RAUF: Happy to do that. SN06?---Sorry - - -
PN1218
So you state at 1.1 you deny the findings that Toll has made in relation to my conversation with Rob Mitchell?---I'm sorry. But I don't even - I don't - are we still looking at this?
*** STEVEN KEITH NEWTON XXN MR RAUF
PN1219
Sorry. Yes. If you can have a look at your response of SN06? Not the show cause. So your response of the show cause at page 25 of your first statement. So that's the next letter over. Rather than paraphrase I'm taking you to what you actually wrote in your show cause response dated 19 August. Do you see that?---Yes.
PN1220
All right. So and I was just referring to paragraph 1.1. Do you see that?---Yes.
PN1221
And there you deny the findings made about your conversation with Rob Mitchell?---Yes. What Rob Mitchell said was not correct. No.
PN1222
Yes. And I'm putting to you now that you knew - also deny that you did anything to intimidate or make Mitchell think that you might physically assault him?---That's correct.
PN1223
Mr Newton, that's not - I want to put to you that that's not consistent with what we've discussed earlier about you being pissed off and having a face to face and heated discussion with Mr Mitchell. What I want to put to you is that it's quite likely that you may have come across and may have been aggressive towards him?---That's not correct.
PN1224
All right. Well, in any event, you responded here - having understood the concerns about the conduct and the show cause letter?---I'm sorry?
PN1225
So you gave your response in this letter, having understood the concerns that were raised about your behaviour?---Yes.
PN1226
Both on the 9 April last year?---Yes. Yes.
PN1227
And then also the 30 May?---Yes.
PN1228
And so for instance on the - with the 9 April incident - it was clear to you that the company was concerned about the nature of your interaction with Mr Mitchell and that it may have been inappropriate?---Yes.
…
PN1260
MR BONCARDO: And this was something that occurred later. When there's silence from the respondent I'll continue. Mr Newton, I just wanted to show you a document. It's RL20 to Mr Lambi's statement? If I could have leave to approach, Deputy President? Sir, do you recognise - just have a look at that and let me know whether you recognise what that represents?---I think that's the front of the Seasons Hotel.
PN1261
All right. And can you tell me, sir, whether or not the incident which is the subject of these proceedings occurred outside of the front of that hotel as depicted in that photograph?---Yeah, I think it was out more towards the footpath. Towards - more towards - - -
PN1262
All right. Can you tell me, sir, that there's - I think - two aspects of the incident. The first aspect concerns you and Mr Chambers having a discussion and then there is - I think described as the second aspect where you're on the ground and there's some allegations as to what occurs there which we'll come to but in relation to that first aspect - when you and Mr Chambers start your conversation. Can you tell me - looking at that pole - that large concrete pole?---Yes.
PN1263
Whether that, as you're looking at, occurred to the left or the right - in that initial conversation?---I couldn't - I couldn't be sure.
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1264
Certainly?---I know that - I don't smoke inside, like under the awning there.
PN1265
Certainly?---I went and walked more towards the footpath.
PN1266
I understand?---I couldn't tell you exactly where.
PN1267
That's completely fine. And just in respect to where you were on the ground, can you say with any degree of certainty as to whether or not that was on the left side, as you're looking at it, of that pylon, or the right side?---I couldn't tell you. I couldn't tell you exactly. It's pretty vague. I couldn't tell you.
PN1268
That's fine, sir. That's fine. That document can be returned. I just want to ask you about what occurred in the restaurant prior to the incident. The restaurant you were at was two storeys. Is that right?---That's - I think it's split-level.
PN1269
Split-level. So there's a high level and a low level?---Yes.
PN1270
And the level that you were on with Ms Harvey, Mr Rodger, Mr Newton?---Yes.
PN1271
And Mr Hosking was the higher level? Correct?---Yeah, where the restaurant is. Yeah.
PN1272
And at some point Mr Chambers joined your table?---Yeah, but I can't sort of remember when he walked in or - - -
PN1273
Certainly?---I couldn't - yeah.
PN1274
Certainly. And he sat - and can I just ask - you were seated next to, I think, Mr Rodger - is that right - and Mr Hosking?---No, I think - Grant was on my left - Grant Rodger. And I think Paul Newton was on my right. I couldn't be - I couldn't be - - -
PN1275
Certainly. And Mr Newton sat - or can I just ask you this question first - you were sitting at a table. Correct?---Yeah.
PN1276
And Mr Newton sat on your side of the table, didn't he? I withdraw that. Sorry, I apologise. Mr Chambers sat on your side of the table. Correct?---Mm - no.
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1277
You don't remember?---I would have - I would noticed him - had - because we were against the wall.
PN1278
I see?---I know that we were against the wall.
PN1279
Right?---And I can't even remember seeing him walk in.
PN1280
All right. Well, what I'm trying to understand, sir, is where you say Mr Chambers was seated when he came and sat with you. And what I want to suggest to you is that he sat on your side of the table?---He may have. He may have and probably without a doubt he probably did because that's probably why I didn't sort of notice him until - - -
PN1281
Thank you, sir. And it's incorrect, isn't it, sir, to suggest that you observed Mr Chambers staring at you whilst he was sitting near you. Correct?---No. That's what was said to me.
PN1282
But you made no independent observation?---No.
PN1283
Thank you. Sir, at paragraph seven of your reply statement, you - I don't need to take you to it - so I'm just going to put this proposition to you. You make a general point that your recollection of what occurred before, during and after the incident on 30 May isn't particularly good?---I'm sorry. Can you say again?
PN1284
You make a general point in your statement - paragraph seven of your recollection of the lead-up to the - and the course of the aftermath of the incident isn't particularly good?---Yes, that's right.
PN1285
And that's a result, I think you say sir, of your consumption of alcohol on the evening?---Yep.
PN1286
And also being hit in the head?---Yep.
PN1287
So you accept, don't you, that there is a possibility that what you say occurred prior to and during the incident may be incorrect?---Yes. May be.
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1288
Thank you. For example, sir, I think in your evidence-in-chief you clarify paragraph 36 of your first statement which reads as follows, "Immediately following the incident I was in a serious medical condition. I was taken to the hospital"?---Um - - -
PN1289
And I think your evidence, sir, was that you never went to the hospital?---No. No, I think we - - -
PN1290
We went through this yesterday?---Yes.
PN1291
But you're wrong to suggest in your statement, initially, that you went to hospital at any point?---Yes. That's correct. I didn't go to hospital.
PN1292
All right. Notwithstanding that in your statement you said pretty clearly that you remembered going to hospital?---No. I went to the doctors the following day.
PN1293
Understood. Thank you. And, sir, just in respect of paragraph 34 of your first statement you say there that after the incident, whilst you were on the ground, I remember - you say - you use the words, "I remember somebody come and - came and pulled Wayne away and somebody helped me up." And then if I can take you to your reply statement, sir, paragraph 7(k) you say this, "I don't recall how or why Wayne got off from me, despite what I have said in paragraph 34 of my statement"?---Yep.
PN1294
So it's the case, isn't sir, that what you said in paragraph 34 was something that you had imagined happen?---The first thing that I sort of remember is somebody - well, it was Johnny Rowe and Frenchie were standing there and I just naturally assumed that that's what happened.
PN1295
So you made an assumption. Correct?---Yeah.
PN1296
All right. And that assumption was and you'd agree with me - one which didn't reflect particularly well on Mr Chambers because he had to be pulled away from you, like when you were on the ground?---Yes.
PN1297
And that was an assumption that you wanted to include in your witness statement to paint Mr Chambers in a negative way?---No, that's not correct.
PN1298
So you were asked some questions this morning about your jumper and you taking off your jumper and I think Mr Rauf put it to you that it was a cold night in Melbourne?---Yes.
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1299
And it was a very cold night in Melbourne, wasn't it?---Yes.
PN1300
And you were outside when you took your jumper off?---Yes.
PN1301
And it's not the case, sir, is it that your room was close to where you were outside was it?---I think it was on the first floor. I can't sort of recall.
PN1302
So to get to your room you have to go back into the hotel?---Yes.
PN1303
Up the lift?---Yes.
PN1304
And into your room?---Yes.
PN1305
And I think - sir, I might be wrong about this - but your evidence is that you took your jumper off because you were going to go to bed?---Yes.
PN1306
Can I suggest to you, sir, that you didn't take your jumper off when you were outside on the bottom level of the hotel for the purposes of going to bed?---That's not correct.
PN1307
And, sir, the reason that you took your jumper off was because you were agitated and upset at the discussion you'd been having with Mr Chambers and you had determined to get into a boxing stance and have a go at him?---That's not correct.
PN1308
And that discussion that you have with Mr Chambers involved telematics and two separate yard agreements that Mr Chambers wanted made into one yard agreement. Correct?---That's right. Yes.
PN1309
And Mr Becky was mentioned during the course of that discussion wasn't he?---Yes. Yes.
PN1310
But at no point can I suggest to you, sir, did Mr Chambers ever suggest that he wanted to take over from Mr Vecchi as the Toll Ipec delegate?---Yes, he did.
PN1311
And, sir, that is something that you have a distinct recollection of is it?---Yes, I do.
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1312
Right?---Yes. I do remember that.
PN1313
Sir, can I suggest to you that what happened was you said something to the effect that Ipec Linehaul has a yard agreement and they're going to keep it?---That's right.
PN1314
You did say that?---Yes.
PN1315
And Wayne Chambers then said he wasn't trying to take the agreement away from Ipec, he just wanted the best from everyone. Correct?---I can't recall him saying that but he may have. I'm - you've got to understand that I was in no - I'd had quite a fair bit to drink and there was some of the conversation that I can't even remember that I had with Wayne.
PN1316
Well, can I suggest to you, sir, that you were told by Mr Chambers that you know Ipec doesn't exist anymore?---Yes. I think he did say that.
PN1317
Right. And that was something that you don't agree with. Correct?---That's correct.
PN1318
And that was something that you - when I say you don't agree with it - you vigorously disagree with it. Correct?---I disagree with the fact that he wants to destroy an agreement just for the benefit of these guys and it really had nothing to do with me.
PN1319
And you told him, "Fuck you." At that point?---Yes.
PN1320
And he then said, "Fuck you." too?---Oh, yes - I - - -
PN1321
And it's at that point that you took off your jumper. Correct?---No. Like I've - I can't - I can't - when I was ending the conversation that's when I took my - - -
PN1322
All right. I suggest to you you took your jumper off, you put your fists up and you got into a boxing stance?---No.
PN1323
And you said, "Come on. Come on"?---No, that's not - - -
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1324
And then you approached Mr Chambers and you pushed him in the chest. Correct?---No.
PN1325
And you pushed him hard and you went backwards?---No. That's - - -
PN1326
And you then got back into your stance and you were ready to fight and have a go at him?---No. That's not correct.
PN1327
And Mr Chambers said to you, "Are you for real?" And you showed him you were for real by pushing him in the chest again. Correct?---No, that's not correct.
PN1328
And then you came at him and you started throwing punches at him?---No. That's not correct.
PN1329
And he put his hands up to protect his face and you were punching him in the side. Correct?---No. That's not right.
PN1330
And you hit him in the side and the ribs a number of times, didn't you?---That's not right.
PN1331
He then took a step backwards and you came towards him again and he hit you in the face?---No. That's not right.
PN1332
Sir, I think your evidence is that you don't recall precisely how or when Mr Chambers punched you on the first occasion?---No. That's right. I don't.
PN1333
And when you say you came to, you were on the ground, lying on your back. Your head was on or near the pavement. Correct?---Yes, that's correct.
PN1334
The back of your head was on or near the pavement?---Yes.
PN1335
Can I suggest this to you, sir? That Mr Chambers didn't hit you at any point in the back of the head. Correct?---Yes. That's correct. At first I thought there was a bottle involved but - - -
PN1336
I think you told people that Mr Chambers had glassed you?---That's the first assumption that I'd come to - - -
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1337
Right?---- - -because of the shards of glass in the back of my head. But I know that not to be true now.
PN1338
Right. And you just agreed with me that Mr Chambers at no point hit you in the back of the head. He didn't dog-shot you so to speak?---He didn't hit me in the back of the head.
PN1339
Right?---The wound on the back of my head was from my head hitting the pavement.
PN1340
Can I suggest to you, sir, that what in fact happened what that he hit you in the front of the head and that you then stumbled back a little way and you fell on to the driveway?---Yes, that's right.
PN1341
And you fell on your back side?---That's - yes.
PN1342
And then you said to Mr Chambers - "If I get up I'm going to kill you and I'm going to kill you"?---No.
PN1343
And Mr Chambers, said, "Don't get up. Don't get up." Do you agree or disagree?---No. I'm just - - -
PN1344
You were trying to get up at this point, weren't you?---Um - - -
PN1345
And you started kicking your legs out and your legs came into contact with Mr Chambers' legs?---I can't recall that.
PN1346
And Mr Chambers fell down and the beer bottle he was holding also fell and shattered?---I can't recall any of that. No.
PN1347
And then after that, sir, Mr Chambers was on top of you and he was holding you down by the shoulders, wasn't he? Do you remember that?---I remember coming semi-conscious and looking up.
PN1348
And - - -?---And he was there.
*** STEVEN KEITH NEWTON XXN MR BONCARDO
PN1349
- - - he was holding you down, sir, and whilst he was holding you down you were trying to swing punches at him, weren't you?---No.
PN1350
And he asked you if you were going to stop and you didn't?---No. That's not correct.
PN1351
And, instead, you continued swinging punches at him and saying, "I'm going to kill you"?---No. I didn't say that.
PN1352
And then Mr Chambers punched you in the head?---That I do remember.
PN1353
And after he punched you in the head you told him, "I'll stop. I'll stop"?---I can't recall. I can't recall.
PN1354
And if you can't recall do you accept that it is possible that after Mr Chambers punched you in the head you said, "I'll stop. I'll stop"?---I may have said that - yes.
PN1355
All right. Thank you. And then Mr Chambers got up and walked away. Correct?---Yes.
PN1356
Thank you. Thank you, Mr Newton?---Thank you.
1 Wayne Chambers v Toll Transport Pty Ltd [2020] FWC 5819 (‘Chambers Decision’).
2 Chambers Decision at [74].
3 Ibid at [85].
4 Ibid at [86]-[89].
5 Ibid at [91].
6 Ibid at [102].
7 Steve Newton v Toll Transport Pty Ltd [2020] FWC 5960 (‘the Decision’).
8 (2010) 197 IR 266 at [27].
9 Decision at [50].
10 Appeal Book, pp. 366-379.
11 Decision at [45].
12 Exhibit R8, Annexure RL-24, pp. 191-192 (pp. 21-22 of the record of interview on 4 July 2019).
13 Transcript, 4 February 2020 at PN403-PN405.
14 Transcript, 5 February 2020 at PN1576.
15 Transcript PN1588-PN1589 (“It was a weird thing”); Exhibit R8, Annexure RL-21, p. 161 (point 0.7 of record of interview with Mr Mitchell on 19 June 2019).
16 Decision at [66].
17 Rose v Telstra Corporation Ltd (unreported, AIRC, Print Q9292, 4 December 1988).
18 Decision at [149].
19 Ibid at [151]-[153].
20 Ibid at [150].
21 Appellant Notice of Appeal, grounds 1-5, p 5.
22 Rose v Telstra Corporation Ltd (unreported, AIRC, Print Q9292, 4 December 1988). See Appellant’s Submissions, 3 February 2021 at [2].
23 Appellant’s Submissions, 3 February 2021 at [3].
24 Respondent’s Submissions, 3 March 2021 at [8].
25 Edwards v Giudice (1999) 169 ALR 89 at [92] per Moore J; see also King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019 at [21]-[25].
26 Appellant’s Submissions, 29 March 2021, p 5.
27 See Lane & Ors v Arrowcrest Group Pty Limited (t/as ROH Alloy Wheels) (1990) 27 FCR 427 at 456 (Van Doussa J); Byrne v Australian Air (1995) 185 CLR 410 at 430 (Brennan CJ, Dawson and Toohey) and at 460 (McHugh and Gummow JJ).
28 See Howard v Pilkington (Australia) Ltd [2008] VSC 491 at [49]; Cannan v Nyrstar Hobart Pty Ltd [2014] FWC 5072 at [255]-[256].
29 Lane v Arrowcrest (1990) 27 FCR 427, 456 cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
30 MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at [42].
31 [2008] VSC 491 at [49].
32 [2014] FWC 5072 at [255]-[256].
33 [2008] VSC 491 at [49].
34 [2003] FCAFC 180 at [13]-[15]
35 [2014] FWC 5072 at [255]-[256].
36 [2015] FWCFB 888.
37 Ibid at [54].
38 [2016] FWCFB 108.
39 Ibid at [15].
40 [2016] FWC 7906.
41 Ibid at [31].
42 [2016] FWCFB 108 at [15].
43 Also see Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Michael Hatwell v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092.
44 Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.
45 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410.
46 [2019] FWCFB 5104 at [43]. Also see Rick Adaszko v Mitford Investments Pty Ltd ATF The JJG Trust t/a Integro Private Wealth[2021] FWCFB 719 at [28].
47 Decision at [147].
48 Appellant’s Submissions, 3 February 2021 at [44].
49 See Respondent’s Submissions, 3 March 2021 at [71]-[88], especially [74].
50 Respondent’s Submissions, 3 March 2021 at [75]-[76].
51 Transcript, 31 March 2021 at PN134.
52 (1992) 176 CLR 256.
53 Ibid at 268.
54 Ibid at 269.
55 (2011) 243 CLR 361 (‘Kuhl’).
56 Kuhl at [60].
57 Ibid at [61].
58 Ibid at [62], [66].
59 Ibid at [67].
60 Ibid at [74]-[75].
61 Respondent’s Submissions, 3 March 2021 at [84].
62 Ibid at [79].
63 Ibid at [81].
64 Appeal Book, p.655.
65 Respondent’s Submissions, 6 December 2020 at [43](g).
66 Appeal Book, p.729.
67 Respondent’s Submissions, 27 April 2020 at [4.32]; Appeal Book, p.833.
68 Respondent’s Submissions, 27 April 2020 at [4.9]; Appeal Book, p.827.
69 Respondent’s Submissions, 27 April 2020 at [4.10]; Appeal Book, p.827.
70 Respondent’s Submissions, 27 April 2020 at [4.11]; Appeal Book, p.828.
71 Respondent’s Submissions, 27 April 2020 at [4.35]; Appeal Book, p.834.
72 (1998) 81 IR 410.
73 (1998) 81 IR 410, 413. Also see Woodman v The Hoyts Corporation Pty Ltd PR906309, 11 July 2001 per Guidice P, Watson SDP and Granger C.
74 Appellant’s Submission, 3 February 2021 at [25].
75 Respondent’s Submission, 3 March 2021 at [30].
76 Respondent’s Submission, 3 March 2021 at [36].
77 ’s Submissions, 29 March 2021 at [45]-[46].
78 (1933) 49 CLR 66.
79 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359.
80 Concut Pty Ltd v Worrell (2000) HCA 64 at [51].
81 Concut Pty Ltd v Worrell (2000) HCA 64 at [38].
82 [1999] 2 All ER 1005 at 1015.
83 Faccenda Chicken Ltd v Fowler [1986] 1 All ER 617.
84 W.D. & H.O. Wills v Jamieson [1957] AR (NSW) 547; Sinclair v Neighbour [1967] 2 QB 279.
85 Boston Deep Sea Fishing Co. v Ansell (1888) 39 ChD 339.
86 Daily Cleaning Service v Pavlovic (1992) 34 AILR 359.
87 NSW Supreme Court, unreported, 29 March 1995.
88 Ibid at 6.
89 See Kahn-Freund O, "Blackstone's Neglected Child: The Contract of Employment" (1977) 93 Law Quarterly Review 508 at 512.
90 (1995) 185 CLR 410 at 436. See further: Attorney-General (NSW) v Perpetual Trustee Co. Ltd (1955) 92 CLR 113 at 122-123; [1955] AC 457 at 482-483; Wilson v Racher [1974] ICR 428 at 430 per Edmund Davies LJ.
91 Dec 1444/98 N Print Q9292.
92 Appellant Submissions, 3 February 2021 at [25]; Respondent Submissions, 3 March 2021 at [27].
93 (1949) 49 S.R. (N.S.W.) 351.
94 (1949) 49 S.R. (N.S.W.) 351, at 357-358.
95 (2006) 67 NSWLR 73.
96 Ibid at p. 80 per Bryson JA with whom Handley JA and Ipp JA agreed.
97 (2002) 113 IR 1.
98 Ibid at p. 33.
99 See generally, Brianna Harrison, ‘The Shadow of the Right to Silence in the Workplace’ (2002) Australian Journal of Law 15.
100 (1996) 140 ALR 625 at 636.
101 (1974) 3 ACTR 20.
102 Ibid at pp. 29-30.
103 [2008] AIRCFB 15.
104 Ibid at [4] point 14.
105 [2008] AIRCFB 15 at [23].
106 See Stephen Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.
107 (1995) 62 IR 385 at 391.
108 Print S6238, 22 May 2000.
109 (1998) 81 IR 410 at 413.
110 (1998) 83 IR 102 at 109-110.
111 [2018] FWCFB 901 at [42].
112 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41].
113 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [70]-[73], [(2000) 98 IR 137].
114 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
115 Ibid.
116 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [73]; (2000) 98 IR 137.
117 See for example Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626 (Cargill C, 20 December 2012).
7
33
0