Pearljit Singh v Metro T/A Metro Trains Melbourne
[2015] FWCFB 6711
•18 DECEMBER 2015
[2015] FWCFB 6711
The attached document replaces the document previously issued with the above code on 18 December 2015.
The signing/issuing date set out at the beginning of the decision has been updated from “15 October 2015” (a typographical error) to “18 December 2015”, being the correct signing/issuing date.
Associate to Deputy President Hamilton
Dated: 21 December 2015
| [2015] FWCFB 6711 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Metro T/A Metro Trains Melbourne
(C2015/3464)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 18 DECEMBER 2015 |
Appeal against decision [[2015] FWC 4275] of Vice President Watson at Melbourne on 10 July in matter number U2014/16160.
[1] On 10 July 2015 Vice President Watson handed down a decision 1 in which he dismissed an application under s.394 by Ms.Singh for an unfair dismissal remedy. On 30 July 2015 Ms.Singh filed an appeal against the decision.
[2] Ms.Singh was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision.
[3] The matter was listed for permission to appeal hearing on 29 September 2015. After that hearing we granted permission to appeal and indicated that reasons would be provided at a later date. We directed that further submissions be provided on the issue of whether the appeal should be granted and if so what if any relief should be provided. The matter was heard on 7 December 2015. At the conclusion of the hearing we indicated that we had decided to grant the appeal, to quash the decision and order under appeal, and the remit the matter for rehearing before Commissioner Roe. We stated that written reasons would be provided as soon as possible. These are our reasons for decision.
The Act
[4] As the decision was from an unfair dismissal decision, s.400 applied to the appeal. That section provides:
‘400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
[5] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’ 2. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, 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 counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters3.
Submissions
[7] In the appeal grounds, Ms.Singh contends that the Vice President erred by determining that there was a valid reason for the termination by assessing whether the Metro’s reasoning was sound and reasonable and did not himself make that assessment on the evidence before him as required by the Act. She submits that the Vice President did not give adequate reasons for his decision, failed to apply Briginshaw v. Briginshaw 4, and that the decision is manifestly unjust and should be reviewed because a substantial wrong has occurred. She submitted that the finding that Ms.Singh was involved in interference with mobile phones was a significant error of fact. It referred to a number of public interest grounds.
[8] These grounds were expanded in written 5 and oral submissions6. Mr.Doyle for Ms.Singh submitted that the Commission had to assess for itself whether or not the alleged misconduct occurred, and the opinions of Metro investigators were irrelevant to this question: King v. Freshmore7. He submitted that the Vice President ‘never articulated his own reasons for concluding that Ms.Singh interfered with the mobile phones. Instead his Honour referred repeatedly to the conclusions reached by Metro’s investigators’. His ultimate conclusion was based on a ‘reasonable basis’ for the conclusion, which was in error. He submitted that the evidence did not support a finding of misconduct. Briginshaw required him to treat the allegation as ‘inherently unlikely’, and to regard ‘slender or inexact proof’ as insufficient. Strong and cogent evidence was required, and there was a failure to apply correct legal standards.
[9] Metro trains submitted that the Vice President made a finding that Ms.Singh was involved in interference with the mobile phones at paragraphs 31 and 40 of his decision, and that it was not necessary to go further and find whether or not there was theft. It is only necessary that the Commission find that there was a valid reason for termination of employment. It pointed out that a second finding of a valid reason, relating to breach of Metro policy, was not challenged. It put other submissions 8. In relation to Briginshaw v. Briginshaw, Mr.Miller for Metro submitted that the Commission made its findings on the balance of probabilities, consistent with that decision. He submitted that:
‘… the fact that the Vice President has reached the same conclusion on the evidence as the investigators reached is unremarkable. Its neither here nor there. An employer cant be disadvantaged by the fact that a thorough investigation has been undertaken that the Commission member then effectively replicates and reaches the same conclusion.
My friend says well, the investigation process should be completely disregarded in the approach taken by the Commission. In my submission there’s no mandate for that. The statutory task is simply to establish whether there was a valid reason. The valid reason was identified with reference to the events concerned, the investigation process, and the conclusions reached. The fact that those are conclusion were supportive of the conclusions reached by the employer, in my submission, emphasises the soundness of the decision rather than undermines it in the way my learned friend submits.’ 9
[10] Further written submissions were provided 10 and the matter was heard on 7 December 2015. We have taken account of all submissions provided.
Consideration
[11] There are four principal challenges to the decision:
● that the Vice President wrongly applied a test in making findings under s.387(a) of whether the employer believed on reasonable grounds that the employee was guilty of the conduct which resulted in termination;
● that adequate reasons for decision have not been provided;
● that the Commission did not apply Briginshaw v. Briginshaw;
● that the evidence did not support a finding of valid reason in relation to the alleged misappropriation of two mobile phones.
[12] It is only necessary that we deal with the first two of these grounds.
[13] In considering whether the Commission is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must apply s.387 of the Act. That section has been in a similar form in legislation governing unfair dismissal applications since 1996 and has been the subject of repeated consideration by the Federal Court and Full Benches over that period. In Chubb Security Australia Pty Ltd v John Thomas 11 a Full Bench said of the equivalent provision of the Workplace Relations Act:
“[35] The first matter we consider is Chubb's contention that his Honour erred in not making a finding with respect to the relevant matter specified in s.170CG(3)(a); that is, whether there was a valid reason for Mr Thomas's termination related to his conduct. Section 170CG(3) required his Honour to have regard to the matters set out in paragraphs (a) to (e) of it. We have set out in our paragraphs [6] to [10] what his Honour said with respect to each of these matters. As appears from this, his Honour did not make a finding as to whether there was a valid reason for Mr Thomas's termination related to his conduct.
[36] Section 170CG(3) says that, in determining whether a termination was harsh, unjust or unreasonable, "the Commission must have regard to" the matters specified in paragraphs (a) to (e).
[37] The words "have regard to" were considered by the High Court in Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552. MasonJ, with whom Gibbs J agreed, said (of a section of an Act which said that the Permanent Head shall have regard to certain costs) that when the section "directs the Permanent Head to 'have regard to' the costs, it directs him to take those costs into account and to give weight to them as a fundamental element in making his determination" (p.554). Murphy J said that the section "tends in itself to show that his [the Permanent Head's] duty in respect of those costs is limited to having regard to them. He must take them into account and consider them and give due weight to them, but he has an ultimate discretion" (p.556).
[38] Each of paragraphs (a) to (d) of s.170CG(3) requires the Commission to have regard to "whether" a circumstance existed. Whether it existed must then (Re Hunt; Ex parte Sean Investments Pty Ltd) be taken into account, considered and given due weight as a fundamental element in determining whether the termination is harsh, unjust or unreasonable.
[39] In this situation, and subject to the qualifications we express in the next paragraph, the Commission, in our view, is not able to have regard to the circumstances specified in ss.170CG(3)(a) to (d) without making a finding with respect to each of them.
[40] We qualify what we have said in the previous paragraph in two respects:
(1) The circumstance in s.170CG(3)(a) contains three considerations:
·the capacity of the employee, or
·the conduct of the employee, or
·the operational requirements of the employer's undertaking, establishment or service.
The need to make a finding under s.170CG(3)(a) will only be in respect of such of these three considerations as is relevant. (In the present case, for instance, the relevant consideration is whether there was a valid reason for the termination of Mr Thomas related to his conduct.)
(2) The circumstance in s.170CG(3)(d) is only relevant "if the termination related to unsatisfactory performance of the employee" (opening words of s.170CG(3)(d)).
[41] Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to "that reason"; that is "a valid reason", being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c).
[42] We are therefore of the opinion that his Honour's failure to make a finding with respect to the relevant matter specified in s.170CG(3)(a) amounted to a failure, contrary to s.170CG(3), to take that matter into account and, accordingly, an error of the type referred to in s.170JF(2). This view is, we think, supported by Moore J's remarks, quoted in our paragraph [33], in Edwards v Giudice that a failure to comply with s.170CG(3)(a) amounts to an error of this type.” 12
[14] In Edwards v. Giudice 13, Moore J of the Federal Court said:
‘6 Paragraph (a) speaks of “whether there was a valid reason ... related to the ... conduct of the employee”. The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.
7 The reason would 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. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found.
…
11. … In my opinion the subject matter of the power to arbitrate under s 170CG, when taken together with the conditional right of appeal conferred by s 45 and the grounds of appeal in s 170JF, point to the conclusion that the Commission is, when determining an application under s 170CE by arbitration, obliged to give reasons for its decision which deal with the material legal and factual issues presented for determination and which deal with the matters the Commission must consider because of s 170CG(3) and the relevant provisions of s 170CH. The power conferred by s 45(6)(b) is, in my opinion, not directed to the provision of reasons by the primary decision maker against whose decision or order an appeal is brought. That provision is intended to facilitate the hearing of an appeal where the Full Bench seeks to investigate itself issues that were not investigated or investigated fully at the original hearing.’
[15] Marshall J said:
‘44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow however that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given.
45 As Deane J said in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366:
“A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made.”
46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant “special circumstance” in the context of the portion of the judgment of Gibbs CJ in Osmond cited above. See Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729, per Priestly JA with whom Powell JA agreed, (at 734-735) and per Handley JA, (at 739).
47 It should be noted that Full Benches of the Commission have thoroughly reviewed the obligation of Commission members to provide adequate reasons for decision on previous occasions and that their decisions accord with the views expressed above. See, for example, Re Astec Pty Ltd (1992) 45 IR 261 and Confectionery Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49, (at 52). See also Dornan v Riordan (1990) 24 FCR 564, in the context of the obligation of the Pharmaceutical Benefits Remuneration Tribunal’s duty to disclose its reasoning process (at 568).
48 Commissioner Tolley’s reasons for decision did not disclose with any certainty an understanding of the reasoning process he applied. The Full Bench, in those circumstances, was entitled to reach the conclusion that the Commissioner was in error in deciding to make the order which flowed from his decision. Accordingly it is my opinion that the Full Bench made no error of law in granting leave to appeal and upholding the appeal. I agree with Moore J that the Full Bench was empowered to remit the matter to a Commissioner other than Commissioner Tolley pursuant to s.45(7)(c) of the Act.’
[16] In King v. Freshmore 14 a Full Bench of the Commission similarly said:
“When a reason for termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the 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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
The decision under appeal
[17] The Vice President came to the conclusion that Ms.Singh interfered with the mobile phones principally in the following passages:
‘[24] The relevant events are summarised above. In this case the employer conducted an investigation into the events and concluded that Ms Singh breached the policy for handling lost property and on the balance of probabilities removed the two mobile phones from the customer’s handbag. The evidence relied on by the employer was adduced before the Commission. Ms Singh contends that a different conclusion should be reached and that it cannot be proven that she removed the two mobile phones. Metro submits that the Commission should make a finding on the facts in line with the conclusion it reached in its investigation.
[25] It is clear that the customer’s mobile phones were interfered with. The customer said they were in her bag and they had Telstra sim cards. The PSOs in their interviews confirmed that the bag contained two iPhone 5s. The mobile phones were not recorded in the list of contents of the bag compiled by Ms Sonnet. They were not in the bag when it was returned to the customer. They were later found, minus their sim cards under Ms Singh’s desk in the Control Room and in the north end toilets of the station. This was a serious matter that concerned interference with a customer’s lost property and warranted a detailed investigation by Metro. Someone engaged in misconduct and it was imperative that Metro attempt to identify who that was and to take appropriate action. Mr Dias, Ms Singh, Ms Sonnet, the PSOs and the cleaner all denied involvement.
[26] Ms Roden described her reasoning process as follows:
“61. I did not believe they could have just fallen out because if they had both would have been in the Control Room.
62. I did not believe that the missing sim cards was something that could be overlooked. The sim cards could not fall out and so must have been taken out deliberately. I did not believe the PSOs would have done so and that meant that either Ms Sonnet, Mr Dias, Ms Singh or the cleaner must have done so.
63. From my assessment of what was said at interview and from the CCTV and from the information provided by Ms Hodkinson it did not seem that Mr Dias had any time with the bag to remove the sim cards and Ms Sonnet, even if she had spent time with the bag could not have caused the phone to be in the Control Room as she did not go there.
64. I did not review the CCTV of the North end toilets personally, but had Kirby Hodgkinson look at it and she confirmed that the cleaner had entered the toilets after the phone incident, but Mr Dias had not.
65. The cleaner went to the North end toilets and Ms Singh was in the Control Room. The only reasonable explanation in my mind was that Ms Singh and the Cleaner had colluded to take the phones. I could not prove that conclusively, but it was my belief on the facts available.
66. I considered whether the cleaner may have been solely responsible, but concluded that was unlikely because if he was it seemed unlikely that Ms Singh would not have noticed what he was doing when taking out the sim cards, or taking the phones.
67. One possibility was that the cleaner took the phones when he first approached the Control Room. If that were the case I could not understand why he would return one and store one in the toilet unless the one he returned was for Ms Singh.
68. Another possibility was that he removed the sim cards whilst he was in the Control Room for 13 minutes, but again I did not consider it reasonably likely that he could have done so without Ms Singh’s knowledge.
69. Each scenario I considered lead me back to Ms Singh at least being involved in the incident.
….
89. Other than the PSOs, Ms Singh was the only person out of these three who was in charge of the bag when it would have had the phones in it. The bag was never far from Ms Singh, she had time alone with the bag and also time with the cleaner. The second phone was found in the toilets at the north end of the station and no-one else had entered or exited the control room.
90. In my mind there was no other reasonable explanation than to conclude the cleaner and Ms Singh were both responsible for the removal of the sim cards and the attempted theft of the phones. I did not feel the cleaner could have removed the sim cards without Ms Singh’s knowledge and on balance I considered this serious misconduct.”
[27] Metro endeavoured to ascertain the identity of the person or persons who interfered with the customer’s mobile phones. It could not prove conclusively who that was. Its reasoning involved eliminating possibilities. The PSOs, Mr Dias and Ms Sonnet were all eliminated as possibilities for reasons that were rational and plausible. It appeared that the cleaner was the person most likely involved in the phone found in the north end male toilets of the station, which he was seen entering. He denied seeing phones and could not remember events but thought he may have spoken to Ms Sonnet. The CCTV footage shows him having a short conversation with Ms Singh shortly after the bag was handed to Ms Singh and returning to the Control Room some 12 minutes later for approximately 3 minutes.
[28] Metro’s conclusion that the cleaner was unlikely to have acted alone or without the knowledge of Ms Singh is sound and reasonable. It is also consistent with the evidence of Ms Singh and Mr Dias that the bag was not left unattended.
[29] Metro’s conclusion that neither Mr Dias nor Ms Sonnet could have been involved is also consistent with the evidence. Its conclusion that the PSOs were unlikely to be involved is also sound.
[30] Ms Singh submits that a person is innocent until proven guilty and the onus should be on management to prove beyond reasonable doubt that she is guilty. She said she had no motive, the investigative procedure was flawed, the conclusions reached were not sound and various irrelevant factors were taken into account in determining whether to terminate her employment. She contends that either the PSOs or Ms Sonnet must have been involved and that she has been blamed because of past unrelated events.
[31] On the evidence before the Commission I find that on the balance of probabilities Ms Singh was involved in the interference with the mobile phones.’
[18] As the Vice President states, Mr.Dias, Ms.Singh, Ms.Sonnet, the PSOs and the cleaner all denied involvement (paragraph 25). Metro examined the evidence in relation to the possible involvement of each of these people, and concluded that Ms.Singh and the cleaner were involved. The Vice President records that Metro decided that the PSOs, Mr.Dias, and Ms.Sonnet were not involved for reasons which were ‘rational and plausible’ (paragraph 27). Metro concluded that the cleaner was unlikely to have acted alone or without the knowledge of Ms.Singh and this conclusion was said by the Vice President to be ‘sound and reasonable’ and consistent with the evidence of Ms.Singh and Mr.Dias that the bag was left unattended (paragraph 28). Finally, the Vice President said that Metro’s conclusion that neither Mr.Dias nor Ms.Sonnett could have been involved ‘is also consistent with the evidence’, and the conclusion that the PSO’s were unlikely to be involved ‘is also sound’ (paragraph 29).
[19] Ms.Roden’s reasoning process is described in paragraph 26 of the decision and provides some of the basis for the Vice President’s conclusions, because those conclusions were expressed mainly by reference to the conclusions of the employer, and her conclusions are quoted shortly before the Vice President reaches his own conclusions.
[20] Ms.Roden for example said that she ‘did not believe the PSOs would have done so [interfered with the mobile phones] and that meant that either Ms.Sonnet, Mr.Dias, Ms.Singh or the cleaner must have done so’ (paragraph 26). She viewed the CCTV and from information provided by Ms.Hodkinson concluded that ‘it did not seem that Mr.Dias has any time with the bag to remove the sim cards and Ms.Sonnet … could not have caused the phone to be in the Control Room as she did not go there’ (paragraph 26). She said that the cleaner went to the North end toilets, where one phone was found, and Ms.Singh to the control room, where another phone was found (paragraph 26). She concluded that ‘the only reasonable explanation in my mind was that Ms.Singh and the Cleaner had colluded to take the phones’ (paragraph 26). She concluded that it was unlikely that the cleaner had acted alone because Ms.Singh would have noticed him taking out the sim cards or taking the phones (paragraph 26). Other scenarios were considered by Ms.Roden which led to the same conclusion. In her view Ms.Singh was the only person in charge of the bag and with proximity to the bag at relevant times, and ‘I did not feel the cleaner could have removed the sim cards without Ms.Singh’s knowledge’ (paragraph 26).
[21] The first point to make is that Ms.Rodden considered different evidence to that led before the Vice President. The witnesses who gave evidence before the Vice President were (paragraph 2):
Ms Pearljit Singh – former Station Officer Grade 3
Ms Emily Roden – Customer Services Manager, Metro
Mr Damian Di Santo – Business Partner – Maintenance – People and Performance, Metro
Ms Kirby Hodkinson – Customer Service Leader (Central), Metro
Mr Shaun Dias – Station Master Level 7, Metro
Ms Kathy Prince – Manager, People and Performance Operations, Metro
[22] Ms.Rodden however also had information provided by the PSOs, and other persons including Ms.Sonnet, and Mr.Bizwazit who are quoted in the Metro ‘investigation report’ 15. Some of this information appears to be hearsay in nature in any event, and was not put to the Commission except as hearsay evidence. We are unable to ascertain from the decision under appeal the basis on which the Vice President accepted Ms.Rodden’s conclusions without hearing direct evidence which supports her conclusions.
[23] Nor are we able to ascertain from the decision why Mr.Dias and Ms.Sonnet could not have gone to the control room, two conclusions reached by Ms.Rodden and quoted above. The Vice President does state (paragraph 10) that Ms.Rodden and Mr.Di Santo viewed the CCTV footage and concluded that Ms.Sonnet ‘did not appear to enter the Control Room’. He does not however make findings himself on whether this conclusion is the correct one after himself reviewing the CCTV footage. There is no summary of the evidence before the Vice President which led him to agree with these two conclusions. These conclusions are an important part of the reasons Ms.Rodden gave for finding that Ms.Singh must have been involved.Nor does the Vice President explain how he concluded that the PSOs were not likely to have been involved. He did not hear evidence from the PSOs. A submission was provided by the employer rejecting Ms.Singh’s claims that they might have been involved 16, but those submissions are not accepted, rejected or otherwise evaluated in the decision. The submissions may or may not be correct. The basis for the valid reason was that other persons could not have interfered with the mobile phones, but the decision does not disclose how such a conclusion was supported by sufficient evidence.
[24] Thirdly, more generally the evidence before the Vice President was not summarised and used to support the general conclusions he reached on a valid reason. Ms.Singh denied that she was involved in the interference with the mobile phones 17. The reason for rejecting that denial on the evidence before the Commission is not clear. It is not enough that Metro thought that she was involved. That was an opinion which had to be supported by evidence before the Commission.
[25] Finally, we wish to make clear that we are not suggesting that it was inappropriate for the Vice President to consider the employer’s investigation. The employer’s investigation was relevant to issues of procedural fairness. There is also nothing inappropriate in noting where the conclusions of the Tribunal and the conclusions of the employer’s investigation align. The relevance of the employer’s investigation will be obvious when, as in this case, the appropriateness of an employer investigation is challenged. Ms.Singh for example said that ‘This dismissal is absolutely unfair as there is no evidence to prove the allegations against me’, the ‘drastic act of dismissal was taken without considering or investigation my denials of allegations towards me’, management ‘failed to provide any explanation’ for why the second mobile phone ‘reached a place which is at least 6 mins away from my office’, the investigation report was not provided to her despite her requests, there was no verbal written warnings or being referred to a disciplinary panel, termination was ‘random’, natural justice was ‘violated’, there was no customer complaint in writing, there was no ‘proper opportunity’ for her to defend herself, no clear evidence was presented before dismissal, there are no witness statements, there is ‘no independent witness’, and other matters 18. Other similar statements are made which are critical of the Metro investigation report and conclusions19. She expressly denied that she removed the two mobile phones in question in the manner alleged by the employer20. In these circumstances it was appropriate to do as the Vice President did and to examine the employer’s investigation in some detail. Some of the allegations made by Ms.Singh were not well founded, for example the allegation that natural justice was not provided.
[26] It is necessary for FWC in determining valid reason under s.387(a) where critical facts are in dispute to make findings as to whether or not the alleged conduct occurred on the evidence before the Commission. In our respectful view, the Vice President relied on findings that the employer believed on reasonable grounds that the employee was guilty of the conduct which resulted in termination. We are also satisfied that adequate reasons for decision have not been provided in respect to the findings of fact necessary for determining valid reason under s.387(a).
Conclusion
[27] In our view this provides a basis for grant of permission to appeal. We are satisfied that it is in the public interest to grant permission to appeal. It is central to the system of justice that adequate reasons be provided and that findings be made on questions of fact and law in s.387 matters before the Commission.
[28] We decided to allow the appeal, to quash the decision and order, and to order that the matter be remitted to Commissioner Roe to rehear. This would in our view be the most expeditious manner of determining the matter. An order is contained in PR574802.
DEPUTY PRESIDENT
Appearances:
Mr Doyle of counsel for the appellant
Mr R Millar of counsel for the respondent
Hearing details:
2015
Melbourne
29 September
1 [2015] FWC 4275
2 (2011) 192 FCR 78 at paragraph 43.
3 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266.
4 (1938) 60 CLR 336
5 Exhibit S1
6 PN9-108
7 [2000] AIRC 2019, at 7, 9 etc
8 PN115-159
9 PN157-158
10 Exhibits M1, Respondents Outline of Submissions on Appeal, S1 Appellant’s Supplementary Submissions, S2 Appellants Submissions in Reply
11 Print S2679
12 See also King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [19]; Tenix Defence Systems Pty Ltd v Fearnley (unreported, AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000) Print S6238 [71]; Annetta v Ansett Australia Ltd (2000) 98 IR 233 [15].
13 [1999] 94 FCR 561
14 Print S4213
15 Exhibit B2, Attachment ER12, p.123 of the appeal book
16 Exhibit M9, Outline of Respondents Submissions, paragraphs 40-41, pp.228-229 of the appeal book
17 Singh witness statement paragraphs 14-21
18 Singh witness statement paragraphs 14-21
19 Eg. PN234-235
20 Singh witness statements, paragraphs 18 and 23
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