Public Transport Authority of Western Australia v Western Australian Industrial Relations Commission
[2016] WASC 135
•2 MAY 2016
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION [2016] WASC 135
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 135 | |
| Case No: | CIV:2764/2015 | 30 MARCH 2016 | |
| Coram: | BEECH J | 2/05/16 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION |
Catchwords: | Administrative law Whether Full Bench of Industrial Relations Commission exceeded its jurisdiction in upholding an appeal Turns on own facts |
Legislation: | Industrial Relations Act 1979 (WA) |
Case References: | Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Respondent
Catchwords:
Administrative law - Whether Full Bench of Industrial Relations Commission exceeded its jurisdiction in upholding an appeal - Turns on own facts
Legislation:
Industrial Relations Act 1979 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr G T W Tannin SC and Mr A Mason
Respondent : No appearance
Interested Party : Mr C Fogliani
Solicitors:
Applicant : State Solicitor's Office
Respondent : No appearance
Interested Party : Jones Staff Lawyers
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
- BEECH J:
Introduction
1 The Public Transport Authority of Western Australia (PTA) seeks a writ of certiorari to quash a decision of the Full Bench of the Industrial Relations Commission. The PTA claims that, in upholding an appeal from a commissioner of the Industrial Relations Commission (the Commission), the Full Bench exceeded its jurisdiction.
2 In my view, when properly characterised the PTA's complaint is not one of jurisdictional error and, consequently, the application must be dismissed.
3 It is necessary to descend into some detail in order to identify the background to the Full Bench's decision, and the framework in which that decision was to be made.
The Full Bench decision
Background
4 The PTA accepts1 that the background to the appeal to the Full Bench is correctly set out in the reasons of the Full Bench, delivered by Smith AP, with whom Beech CC and Harrison C agreed. The following account is taken from the reasons for decision of Smith AP.
5 The matter before the Full Bench was an appeal against the decision of the Commission in matter CR 32 of 2014. CR 32 was an industrial matter heard and determined under s 44(9) of the Industrial Relations Act 1979 (WA) after the Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the Union) had referred it to the Commission by an application for a compulsory conference under s 44 of the Act to resolve an industrial dispute. The parties had been in dispute about the termination of the employment of Ms Janet Vimpany, a member of the Union, who was employed by the PTA as a passenger ticketing assistant.
6 CR 32 of 2014 was the second matter referred to the Commission relating to disciplinary proceedings against Ms Vimpany. The first was CR 3 of 2014.
7 Both matters arose from an incident on 27 April 2013 involving two interactions between Ms Vimpany and Mr David Hammon, who is employed by the PTA as a station coordinator and who was, at the time of the incident, Ms Vimpany's direct line manager. After the incident on 27 April 2013, Mr Hammon made a complaint about Ms Vimpany's conduct during the second of the two interactions. Following investigation of Mr Hammon's complaint, Ms Vimpany was found to have committed a breach of discipline, which was dealt with by the PTA through the imposition of a reprimand. The Full Bench referred to this as the first disciplinary process.
Matters CR 3 of 2014 and CR 32 of 2014
8 The course of matters CR 3 of 2014 and CR 32 of 2014 was set out in the reasons of Smith AP as follows:2
3 As a result of accounts of the incident on 27 April 2013 given by Ms Vimpany during the course of the disciplinary proceedings, and elsewhere, the PTA also commenced a disciplinary process alleging that Ms Vimpany had deliberately given the PTA false accounts of the incidents on 27 April 2013.
4 Prior to the resolution of [this] disciplinary matter, on behalf of Ms Vimpany, the union in CR 3 of 2014 challenged the findings made in the first disciplinary process and [the] penalty imposed in relation to the events of 27 April 2013 and sought an order restraining the PTA from continuing the second disciplinary process. The matter was not resolved and at a contested hearing in CR 3 of 2014 the following facts were agreed:
'3. On the afternoon of 27 April 2013 between 1500 and 1600 hours, there were two interactions at Perth Railway Station between the Union's member, Ms Janet Vimpany, a Passenger Ticketing Assistant and Mr David Hammon, a Station Coordinator, in the presence of other employees of the Authority.
4. Following the second interaction, Mr Hammon emailed the Authority's Passenger Service Manager Perth, complaining about Ms Vimpany's conduct during their second interaction. Specifically, Mr Hammond [sic] alleged that Ms Vimpany abused his position with threatening behaviour by pointing her finger directly in his face and saying "do not talk to me like that again and who do you think you are anyway?"
5. A memorandum dated 8 May 2013 sent on behalf of the Authority and received by Ms Vimpany on 10 May 2013 (the Memorandum);
(a) notified Ms Vimpany of allegations that she:
(i) "Stormed" into the Station Coordinators' office area;
(ii) Shook her finger in Mr Hammon's face from within approximately two feet; and
(iii) Shouted at him in an intimidating and threatening manner; and
(b) required Ms Vimpany to respond with a written statement explaining her actions.
6. Ms Vimpany booked off work on receipt of the Memorandum on 10 May 2013.
7. On 14 May 2013, Ms Vimpany submitted a Health and Safety Incident Report Form (the Form) in which she alleged that:
(a) Mr Hammon was aggressive, threatening and abusive towards her and bullied and harassed her on 27 April 2013;
(b) she felt anxiety, stress and tension headaches as a result of feeling vulnerable and powerless following her interactions with Mr Hammon on 27 April 2013; and
(c) exposure to these mental stress factors, including receipt of the Memorandum, had resulted in psychological injuries.
8. On 17 May 2013, Ms Vimpany responded to the Memorandum stating that the allegations were false and not a true and correct account of what occurred.
9. Ms Vimpany lodged a workers' compensation claim with the Authority in relation to her absence commencing 10 May 2013.
10. On 24 May 2013, a representative of the Union raised a grievance with the Authority's Manager Human Resource Services relating to the conduct of Mr Hammon on 27 April 2013, alleging that Mr Hammon had humiliated, degraded and threatened Ms Vimpany and the Union's other member, Ms Jennifer Blake in delivering an instruction to them aggressively, by yelling and screaming at them in the presence of other staff.
11. On 29 May 2013, the Authority's Acting Manager Human Resource Services recommended that the grievance first be raised with Mr Hammon's Manager.
12. On 7 June 2013, following a meeting with a representative of the Union and Ms Vimpany, the Authority's Acting Manager Human Resource Services discontinued the grievance on the basis that the disciplinary investigation would take into consideration Ms Vimpany's account of the events on 27 April 2013, and on the basis that Ms Vimpany's workers' compensation claim was still pending.
13. On 11 June 2013, Ms Vimpany submitted a revised response to the Memorandum which alleged that:
(a) During their first interaction, Mr Hammon "stood and glared at us and shouted instructions regarding our finishing time in an aggressive, threatening, intimidating and completely unnecessary manner" such that she had "never in (her) life been spoken to by a male in such a threatening way"; and
(b) During their second interaction, Mr Hammon reacted once again in a threatening, loud and aggressive manner, becoming agitated and unreasonable and entered her personal space.
14. The allegations against Ms Vimpany were referred to the Authority's Acting Supervisor Customer Service for investigation under cl 2.6 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011 (the Disciplinary Investigation). The Investigator stated in the introduction to his report that "As both parties lodged allegations of inappropriate conduct, a formal investigation was deemed necessary, as a finding against either party would be considered a breach of the Authority's Code of Conduct and as such, may result in disciplinary action".
15. An external investigator was also engaged by the Authority's insurer, Riskcover, to investigate Ms Vimpany's workers' compensation claim.
16. On 15 June 2013, Ms Vimpany returned to operational duties.
17. On 28 June 2013, the Union notified the Authority of a dispute under cl 8 of the Agreement contending that TTO [Transperth Train Operations] management were not sufficiently capable, competent or independent to investigate the allegations between Ms Vimpany and Mr Hammon.
18. On 4 July 2013, the Union agreed to allow the Disciplinary Investigation to proceed.
19. During July 2013, interviews were conducted for the Disciplinary Investigation.
20. During the Disciplinary Investigation, Ms Vimpany stated to the Investigator that during their first interaction:
(a) Mr Hammon seemed angry, and was very loud, abusive and threatening;
(b) Specifically, Mr Hammon said loudly "where do you think you are going, you are not off till 1600" and when she replied that the boss had said they could go home earlier, he screamed "I'm the boss now, and you are rostered till 4 and you will stay till 4 so get back out there and don't come back until 4 o'clock".
21. During the Disciplinary Investigation, Mr Hammon stated to the Investigator that during their second interaction:
(a) He was sitting at his desk within his cubicle and stayed seated throughout;
(b) Ms Vimpany confronted him in a threatening manner; and
(c) Specifically, Ms Vimpany entered his area, leant over and pointed her finger at his face (within approximately 30 cm) and said "don't ever shout like that to me again. Who do you think you are?"
22. During the Disciplinary Investigation, Ms Vimpany stated to the Investigator that during their second interaction:
(a) She felt verbally abused and threatened by Mr Hammon; and
(b) Specifically, Mr Hammon got up from his chair and stood face to face with her in her personal space and shouted "I did not scream at you Jan" and then said in a very loud voice "I suggest you leave Jan, leave now" with his arm outstretched and finger pointed to the door.
23. On 10 September 2013, Ms Vimpany's workers' compensation claim was declined by the Authority's insurer, Riskcover, though Ms Vimpany's wages during her absence have been paid due to the failure to meet the statutory 17 day time limit for notifying the decision [sic] as to the response.'
5 The matters referred for hearing and determination in CR 3 of 2014 were as follows:
1. Whether during the first or second interaction between Mr Hammon and Ms Vimpany on 27 April 2013, Mr Hammon:
(a) Conducted himself in an intimidating manner by shouting instructions to Ms Vimpany about her finishing time in an aggressive, loud, abusive, threatening or intimidating manner;
(b) Behaved in an agitated or unreasonable manner, entering her personal space and speaking in a threatening, loud or aggressive manner during the second interaction and yelled or screamed at Ms Vimpany in the company of other staff;
(c) Was aggressive, threatening or abusive towards Ms Vimpany and Ms Blake; or
(d) Bullied, harassed, humiliated, or degraded Ms Vimpany.
2. Whether, during the second interaction between Mr Hammon and Ms Vimpany on 27 April 2013, Ms Vimpany:
(a) Shouted at Mr Hammon;
(b) Leaned over Mr Hammon or shook her finger in his face; and/or
(c) Engaged in threatening or intimidating behaviour towards Mr Hammon in breach of the Authority's code of conduct.
3. Whether, in relation to the events of 27 April 2013, Ms Vimpany, Mr Hammon or any other employee of the Authority conducted themselves dishonestly by:
(a) Initiating an allegation or claim that they knew to be false; or
(b) Giving an account of those events to investigators that they knew to be false.
4. Whether the Authority abused its disciplinary procedures in relation to the events of 27 April 2013, in that the circumstances of the case did not warrant disciplinary action.
6 After hearing the evidence given by Ms Vimpany and her witnesses and the evidence given by the PTA's witnesses, the learned Commissioner hearing the matter, Kenner C, rejected the evidence given by Ms Vimpany about the two incidents. Commissioner Kenner in his reasons for decision ([2014] WAIRC 00824; (2014) 94 WAIG 1462) made the following findings of fact:
(a) On 27 April 2013, at the Perth train station office both Ms Vimpany and Ms Jennifer Blake entered the office at about 3.15 - 3.20 pm and prepared to leave for the day. Unaware of the prior arrangement with the station coordinator on the morning shift, Mr Avatar Singh, Mr Hammon questioned Ms Vimpany and Ms Blake and told them to continue working to their appointed finish time of 4.00 pm.
(b) Mr Hammon has a strong tone of voice, being Scottish and this, to some extent, was reflected in his evidence in the witness box (his evidence was supported by Mr Fabio Pontarolo). Mr Felix Geson was an impressive witness who no longer works for the PTA and therefore has no interest in the outcome of the proceedings. His recollection was that Mr Hammon spoke to Ms Vimpany and Ms Blake normally, when requesting that they resume their station duties as rostered. This was also generally confirmed by Mr Pontarolo and Mr Singh.
(c) Both Ms Vimpany and Ms Blake were not ambivalent about having to work to the end of their shift. They had been led to believe that they could finish work early by the previous station coordinator. It is only natural, that they would be somewhat disappointed that they could no longer leave early as planned. On leaving the office, both Ms Vimpany and Ms Blake may have 'muttered' something and they had facial expressions reflecting that they were less than pleased with the decision made by Mr Hammon. This was the evidence of both Mr Hammon and Mr Geson, which evidence is accepted.
(d) Consistent with this state of affairs, both Ms Vimpany and Ms Blake then had time, on their own testimony, to reflect on Mr Hammon's direction to continue to work to 4.00 pm, when they were on the platform outside the office. Both Ms Vimpany and Ms Blake were quite upset with Mr Hammon.
(e) Ms Vimpany entered the office at around 3.50 pm with the purpose of confronting Mr Hammon as to the earlier exchange.
(f) When she entered the office, Ms Vimpany made a 'beeline' for Mr Hammon, largely as described by the PTA's witnesses. Ms Vimpany did go up behind and to the side of Mr Hammon, and spoke to him in a strong and angry manner whilst pointing her finger at him. She spoke the words alleged and Mr Hammon was taken by surprise by Ms Vimpany's approach and responded to the effect that Ms Vimpany should leave the office.
(g) Mr Geson's testimony is accepted that Ms Vimpany did, on leaving the office, refer to Mr Hammon as an 'ass' or a word to that effect.
(h) Ms Blake's testimony that when Ms Vimpany emerged from the office to go home, she was not upset or overly concerned is not consistent with Ms Vimpany's allegation that she had just been verbally abused and bullied by Mr Hammon, moments earlier. It is, however, quite consistent with Ms Vimpany, having confronted Mr Hammon and having gotten her frustration and upset 'off her chest', by speaking to Mr Hammon as she intended to do.
(i) Importantly, however, to the assessment of credit, is that shortly after the incident on 27 April 2013, all three customer service assistant witnesses (in the office with Mr Hammon) recorded the events they witnessed in writing.
(j) In contrast, it is to be noted that Ms Vimpany was not going to do anything about the alleged bullying and intimidatory behaviour of Mr Hammon. It was only when she received the 'please explain' memorandum from the PTA of 8 May 2013, that matters seemed to take a different complexion for Ms Vimpany. It was not for a further one week after that, that Ms Vimpany put in writing her allegations against Mr Hammon. It is also to be noted, that there were some inconsistencies in the subsequent statements made by Ms Vimpany to the PTA, as to the events of 27 April 2013.
(k) Mr Hammon did not conduct himself in an intimidating, threatening and aggressive manner as alleged. When Ms Vimpany returned to the office shortly before 4.00 pm on 27 April 2013, she shouted at Mr Hammon and engaged with him in an inappropriate manner, pointing her finger at him and at his face while leaning towards him. Such conduct was not appropriate conduct towards a supervisor.
7 ... Kenner C in respect of the third issue that was referred for hearing and determination in CR 3 of 2014 made the following findings [64] - [65]:
'Given the findings I have made above, there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved. This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013.
Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. Their versions of the events, has been largely consistent, since their first reports in April and May 2013. It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events.'
8 The union sought to challenge the learned Commissioner's decision at first instance in FBA 11 of 2014. The Full Bench after hearing the parties made an order that the appeal be dismissed ([2014] WAIRC 01367; (2014) 95 WAIG 1).
9 One of the issues in FBA 11 of 2014 was whether Kenner C had made a finding that Ms Vimpany had conducted herself dishonestly by initiating an allegation or claim that she knew to be false or had given an account of those events to investigators that she knew to be false. This was the matter referred for hearing and determination as issue 3 in CR 3 of 2014.
10 Prior to the determination of FBA 11 of 2014, the PTA dismissed Ms Vimpany.
11 On 11 August 2014, shortly after Kenner C issued his decision in CR 3 of 2014, Mr Ian Luff, the manager of customer service at Transperth Train Operations, sent a letter to Ms Vimpany advising her that she would be stood down on full pay until the general manager had made a final determination on allegations that had been previously notified to her on 23 September 2013; that is that she had knowingly given false accounts and made a false allegation in relation to the events of 27 April 2013. Mr Luff stated in the letter that he was of the view that Kenner C's findings provided sufficient grounds for a conclusion that the allegations were proven. Mr Luff also stated in the letter that if the general manager is satisfied that the allegations are proven and decides to apply a disciplinary penalty, then it would be his recommendation that the general manager seriously consider applying the penalty of dismissal on the basis that:
• Your alleged conduct seriously breached the trust which the PTA is entitled to expect of any employee.
• That alleged breach was not a momentary aberration, but appears to have been sustained over a period of almost a year.
• In addition, the findings made against your credibility by the Commission mean that you have been demonstrated to no longer have the integrity required to fulfil the duties of your position as a Passenger Ticketing Assistant, which require you to be able to:
• issue infringements and, if necessary, give evidence in court in support of your actions; or
• work without supervision at locations spread across the network, and provide reliable feedback in relation to circumstances such as interaction with customers and other employees (e.g. in response to customer complaints or safety investigations).
(a) In Ms Vimpany's response of 29 August 2014, she explained that she prepared a statement on 13 May 2013, that she had taken care at that time to ensure that it was truthful and accurate, that she believed it to be true to the best of her recollection and that she had since maintained the same account, presumably consistent with that statement.
(b) An appeal had been filed challenging whether Kenner C was entitled to make the findings he made on the evidence before him.
(c) Whilst Ms Vimpany had been invited to advise whether she wished to meet with him about her response, she did not seek such an opportunity.
(d) Having no previous background in this matter, he had reviewed documents which had either been generated from the disciplinary process or are transcript or exhibits from CR 3 of 2014. Those documents included statements made by Ms Vimpany, a transcript of evidence in CR 3 of 2014, statements, notes of interview and transcripts of evidence of Ms Blake, Ms Rebecca Johnston, Mr Geson, Mr Pontarolo, Mr Barinder Singh, Mr Avtar Singh and Mr Hammon.
13 Based solely on his review of these documents, Mr Steedman made the following findings (AB 14 - 15):
'[H]aving put to one side the outcome of the Commission hearing, I find that your account that David Hammon intimidated and bullied you during your second interaction with him by screaming (or shouting) at you, getting out of his chair and standing face to face with you in your personal space was false.
I acknowledge that your account was similar on each occasion you gave it. However, your account was contradicted by the accounts of the other people present, in particular Felix Geson and Fab Pontarolo. While not absolutely identical, the other accounts of those present were broadly consistent. Also, I find Jen Blake's evidence that you were not upset after leaving the office on the second occasion more likely to be consistent with the other witnesses account of events during your second interaction with Mr Hammon than your own account.
Having satisfied myself that your account was false, I now turn to consider whether it was knowingly false - whether at the time you gave your accounts prior to September 2013 you knew them to be false.
Based on my review of the documents listed above, I conclude that you were aware and deliberately gave a false account of the relevant events.
First, I can see no innocent explanation for the difference in your account compared to the others present. Initial accounts were recorded by all present very soon after the incident - each within about two weeks, so differences in recollection would not explain so great a difference in the accounts. Nor can exaggeration or differences in perspective or interpretation explain the extent of the difference between your accounts of what happened during the second interaction.
I have to conclude therefore that one or other of the accounts was being given dishonestly.
It is less likely that all of the other employees, some of whom are fellow wages employees and one of whom, by the time of the hearing, was no longer even employed by the PTA, colluded to give detailed false evidence contradicting your account. There was no evasiveness or vagueness in their accounts that might be expected if they had somehow been persuaded to not give a true account.
I am satisfied that it is much more likely that:
• after learning of the notification requesting a response about your alleged behaviour during the second interaction, you decided to respond by initiating a Grievance application and a OSH/Workers Compensation claim against your accuser, on the basis that attack was the best form of defence; and
• you initiated those claims knowing - at least in so far as it dealt with the events of the second interaction - the account of David Hammon's actions upon which your claims were based was false.
I therefore find the allegations against you proved in so far as they relate to your account of the second interaction with Mr Hammon.'
14 In the letter, Mr Steedman noted Ms Vimpany's response that she remained committed to working with the PTA. He then found that it was a very serious matter for an employee to deliberately make false allegations against another employee and observed that integrity is one of the values of the PTA as an organisation. He then said the PTA is entitled to expect to be able to trust its employees to deal with it honestly. He then observed that in this case, if Ms Vimpany's account had been accepted it could have had significant negative consequences for another employee. He then noted that if she had taken the opportunity to withdraw the claims, her conduct to wrongly initiate deliberately false claims in June 2013 could have been characterised as a momentary lapse in judgment. However, she had persisted with the claim throughout and not taken the opportunity to diminish her conduct. In these circumstances, he decided to impose the penalty of dismissal.
15 Mr Steedman then had regard to the findings made by Kenner C and after observing that the learned Commissioner had all the evidence before him and had the opportunity to see the witnesses give oral evidence rather than just read the transcript, this reinforced his finding that the allegations were proved.
16 After considering the reasons for decision of the learned Commissioner, the Full Bench found that Kenner C did not determine the matters in issue 3.
17 The Full Bench in its reasons for decision made the following findings:
(a) The learned Commissioner did not find that Ms Vimpany had been dishonest. His finding of fact about her conduct in respect of the matters raised in issue 3 was vague [46].
(b) The learned Commissioner did not answer the questions referred for hearing and determination in issue 3 [47]. The two questions raised in issue 3 required findings of fact to be made whether Ms Vimpany, Mr Hammon or any other PTA employee conducted themselves 'dishonestly by', initiating a claim 'they knew to be false', or giving an account to investigators 'they knew to be false'. To make such findings, the learned Commissioner would have had to find that Ms Vimpany or any other employee of the PTA had formed an intention to give a false account and that in doing so their conduct was dishonest [48].
(c) Thus, the first matter raised in issue 3 was whether any employee of the PTA had intended to give a false account at any stage during the investigation, including initiating a claim. If the answer to the first matter was yes, the second matter was whether in circumstances the employee in question in doing so had conducted themselves dishonestly [49]?
(d) A finding that a person had formed a state of mind to give a false account, or, put another way, had subjectively determined to give a false account is a very serious matter which attracts a high standard of proof [50] (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).
(e) The issue before the learned Commissioner was not whether Ms Vimpany was honest in her account when giving evidence before the Commission. The PTA did not put to Ms Vimpany in cross-examination that at any time she had formed a state of mind to give a false account. In these circumstances, it was not open to the learned Commissioner to determine the matters raised in issue 3. Nor did he do so [51].
(f) It was open for issue 3 to be determined in any proceedings that flow from the determination of the secondary disciplinary action [52].
18 In an amended memorandum of matters referred for hearing and determination made by Mayman C on 10 February 2015, the union's issues for hearing and determination were as follows:
Oppressiveness of the dismissal
12. Was Ms Vimpany's account of the event 'knowingly false' or 'deliberately false'?
13. Did the respondent have an 'integrity test'? If the answer is yes, then:
a. did the respondent inform Ms Vimpany of the content of that integrity test before it dismissed her?
b. did Ms Vimpany fail the integrity test?
14. Was Ms Vimpany's dismissal oppressive?
15. Does Commissioner Kenner's decision restrict the Commission in this matter?
Unreasonableness/unfairness of the dismissal
16. Does the mere fact that Ms Vimpany's account of the event was different to that of the other people who were present mean that Ms Vimpany's account was dishonest?
17. Did Mr Steedman have sufficient evidence to reasonably conclude that Ms Vimpany had been dishonest?
18. Was Ms Vimpany's dismissal unreasonable or unfair?
Harshness of the dismissal
19. Was the respondent's decision to dismiss Ms Vimpany a disproportionate response to the alleged conduct?
20. Was Ms Vimpany's dismissal harsh?
19 The PTA's issues in the amended memorandum of matters referred for hearing and determination were as follows:
24. The issue of what relevantly occurred on 27 April 2013 has been finally determined by Commissioner Kenner in his decision in ARTBIU v PTA.
25. It would be contrary to the common law and the objects of the Industrial Relations Act 1979 (the Act) set out in s 6 of the Act, and in particular s 6(c), and the guiding principles of the Act set out in s 26, and in particular s 26(1)(a), for the Commission as presently constituted to revisit in any way the matter of what relevantly occurred on 27 April 2013 this having been finally determined by Commissioner Kenner.
26. The only issues for determination before the Commission, as presently constituted, are as follows:
a. whether Ms Vimpany gave deliberately false accounts in relation to what occurred on 27 April 2013 to the respondent and, if so;
b. whether the penalty of dismissal was within the reasonable range of disposition by the respondent and, if not;
c. what was the appropriate penalty?
21 In reasons for decision delivered on 11 March 2015, Mayman C upheld the PTA's objection and made the following declaration and order on 13 March 2015 ([2015] WAIRC 00234; (2015) 95 WAIG 379):
1. DECLARES that Application CR 32 of 2014 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority is part dismissed on public interest grounds pursuant to s 27(1)(a) of the Act with the exception of those matters relating to:
a. whether there were reasonable grounds for the respondent to hold the belief that the applicant's member was guilty of the misconduct alleged, having regard for the principles reflected in the Full Bench decision The Minister for Health v Drake-Brockman (2012) 92 WAIG 203;
b. procedural fairness; and
c. penalty.
2. ORDERS THAT the application, other than those aspects listed in the Declaration, be and is hereby dismissed.
3. ORDERS THAT the application be re-listed at the applicant's and respondent's convenience to hear submissions on the matters referred to in the Declaration.
22 It is important to note in these proceedings that there is no appeal against the decision given by Mayman C on 13 March 2015.
23 When the hearing of CR 32 of 2014 reconvened on 13 April 2015, Mr Steedman gave evidence on behalf of the PTA and the parties' representatives made closing submissions.
The Commission's reasons for decision
9 Smith AP outlined in some detail aspects of the submissions made to the Commission.3 Her outline identified that the Union submitted, and the PTA denied, that the seriousness of the PTA's allegation that Ms Vimpany had given a knowingly false account engaged the principles in Briginshaw v Briginshaw4 in Mr Steedman's decision-making.
10 Smith AP summarised the Commission's outline of the evidence called on behalf of the Union.5 She then continued as follows:6
34 Commissioner Mayman then set out the evidence given on behalf of the PTA by Mr Steedman. Mr Steedman's evidence was that he had made his findings based on all of the documents set out in Ms Vimpany's letter of termination. When asked why he thought Ms Vimpany was being deliberately dishonest, Mr Steedman gave the following response [83] (AB 87):
'I read Ms Vimpany's account, I read Jen Blake's account, I read Felix and Fab and I noticed significant differences between all the versions. Hammon, Fab and Felix's were similar and were at odds with Jan Vimpany's.'
35 When giving evidence, Mr Steedman indicated that no one had raised the issue of Ms Vimpany's ability to issue infringements or ability to give evidence in court, nor had he considered any of Ms Vimpany's performance reviews when making the decision to dismiss. He was of the opinion that the performance reviews were not relevant to his decision. Nor did Mr Steedman review Ms Vimpany's personnel file before making the decision to dismiss her, or consider any commendations or adverse findings that may have been contained in Ms Vimpany's personnel file. However, he did say he was not aware of any disciplinary action that had been taken with respect to Ms Vimpany prior to making the decision to dismiss.
36 After setting out the submissions made on behalf of the union and the PTA, Commissioner Mayman made the following findings:
(a) In respect of credibility of witnesses, she found that each of those persons who gave character references on behalf of Ms Vimpany was accepted as evidence given in good faith and was largely unchallenged [111] (AB 92).
(b) Ms Vimpany was insistent and unwavering that her version of events on 27 April 2013 remains a reality. From the actual day, that being 27 April 2013, through all of the documents in which she gave her version of events, those documents were consistent [113] (AB 92).
(c) She had closely observed Ms Vimpany throughout the giving of her evidence and rejected that aspect of her evidence that related to the events of 27 April 2013 and 'rather considers that with the passage of time that, sadly, for Ms Vimpany she has convinced herself that her version of what occurred on 27 April 2013 has become the reality' [114] (AB 92).
(d) After having regard to the relevant findings made by Kenner C and the relevant documents that were reviewed by Mr Steedman in the investigation process, she found that the principal tasks before the Commission for determination were [118] (AB 95):
- having undertaken a review of relevant materials associated with the investigation into Ms Vimpany were there reasonable grounds for Mr Steedman to consider Ms Vimpany was guilty of the misconduct as alleged. In other words, had Ms Vimpany continued to deliberately give false versions of the incident on 27 April 2013 to the respondent;
- in the process of investigating the misconduct as alleged by the [PTA] was the conduct by the [PTA] procedurally fair; and
- was the penalty of dismissal as determined by the [PTA] a proportionate or disproportionate response?
- (e) The investigation of the alleged misconduct adopted a procedure that was fair and reasonable in the circumstances [122] (AB 97).
- aspects of Ms Vimpany's JDF [Job Description Form] as a [passenger ticketing assistant]. In particular, the responsibilities of the position which require her to:
'Monitor and assist Customers entering/leaving stations via fare gates. This duty includes checking validity of tickets, issuing of infringements, providing basic revenue protection and addressing fare evasion.'
- - Much was made of the integrity test particularly by the [Union's] counsel. It was submitted at the time of Ms Vimpany's dismissal no such test existed and therefore it is impossible for Ms Vimpany to fail to meet the needs of such a test. The Commission finds that Ms Vimpany in her position as a [passenger ticketing assistant] is expected to undertake enforcement skills as part of the responsibilities of the position of a [passenger ticketing assistant].
- the continuing insistence by Ms Vimpany that she remains the victim and Mr Hammon the aggressor. Ms Vimpany continues to hold the view that Mr Hammon was the individual displaying antagonistic behaviours on 27 April 2013. This is in spite of the findings by Kenner C in ARTBUI [sic] v PTA and the view now held by the applicant regarding Kenner C's findings:
'The second thing was to make a determination about whether the accounts were false, which have been dealt with by Commissioner Kenner, it is not in dispute in these proceedings. We're not going there and we're not - we have no intention of going there; never did. I know my learned friend said it's no longer a string in our bow, but it never was a string in our bow because we - at no point have we argued that the Commission should be looking to overturn the findings made by Commissioner Kenner or anything along those lines.'
- - Ms Vimpany in response to questioning from the [PTA's] counsel continues to insist she remains the victim and Mr Hammon the aggressor (ts 77, 78);
- persons classified as a [passenger ticketing assistant] have a higher than normal duty to be honest and trustworthy; and
- that the [PTA] on reasonable grounds 'lost confidence' in [Ms Vimpany].
- 38 Commissioner Mayman also had regard to each of the written accounts provided by Ms Vimpany and found that the views relating to the two incidents on 27 April 2013 established a course of conduct on the part of Ms Vimpany. Commissioner Mayman then found [130] (AB 99):
'The language used by Ms Vimpany is clear. Ms Vimpany states her memory of what occurred is clear and the Commission finds overall there was nothing to impair Ms Vimpany's judgement on the separate occasions she was required to recount events or indeed chose to submit her own views as to what occurred on 27 April 2013. The Commission is not of the view there was anything amiss that may have affected the reliability of the versions that were given on each occasion. The Commission is therefore of the view that the [PTA] was reasonably entitled to ground the view that Ms Vimpany had given false accounts and had done so knowing them to be false.'
39 As to the review conducted by Mr Steedman, Mayman C found that having undertaken a review of the relevant materials associated with the investigation that there were reasonable grounds in those materials for the PTA to consider Ms Vimpany was guilty of the misconduct as alleged. Commissioner Mayman did, however, find that whilst the investigation conducted by Mr Steedman was thorough, Mr Steedman had failed to take into account the circumstances relating to Ms Vimpany's work history, her years of service and the record contained within her personnel file. She, however, found that that failure did not of itself result in Ms Vimpany being treated harshly, oppressively or unfairly by the PTA in its ultimate decision to terminate her employment.
40 Under the heading 'Penalty', the Commissioner set out cl 2.6.9 of the agreement which provides the employer reasonable opportunity to be heard and cl 2.6.10 which provides for a range of disciplinary options open to the PTA. These are [124] (AB 97):
a) a reprimand;
b) a transfer within the Employer;
c) a reduction in grade; or
d) dismissal.
41 After setting out the submissions made by the parties in respect of penalty, the Commissioner found that she was of the view that given the period of time over which false allegations were made by Ms Vimpany the penalty of dismissal was proportionate to the allegations as committed. She also observed that the failure to be honest in an investigation process is considered serious (Pinker v Director General Department of Education [2014] WAIRC 01312; (2014) 94 WAIG 1928).
Grounds of appeal to Full Bench
11 The grounds of appeal from the decision of the Commission to the Full Bench were as follows:7
2.1 The Commissioner erred in dismissing CR 32 of 2014 (See [2015] WAIRC 00389) on the basis that she found:
a. 'The Commission is therefore of the view that the respondent was reasonably entitled to ground the view that Ms Vimpany had given false accounts and had done so knowing them to be false'; (Reasons for Decision at 130) and,
b. 'The Commission considers that having undertaken a review of the relevant materials associated with the investigation into Ms Vimpany, there were reasonable grounds for the respondent to consider Ms Vimpany was guilty of the misconduct as alleged'. (Reasons for Decision at 131)
in circumstances where:
c. it was not reasonably open on the evidence for the Commissioner to make those findings; or,
d. it was unreasonable or plainly unjust for the Commissioner to make those findings.
2.2 The Commissioner erred in dismissing CR 32 of 2014 by failing to provide adequate reasons for her finding that:
'The Commission considers that having undertaken a review of the relevant materials associated with the investigation into Ms Vimpany, there were reasonable grounds for the respondent to consider Ms Vimpany was guilty of the misconduct as alleged'. (Reasons of Decision at 131)
2.3 The Commissioner's decision to dismiss CR 32 of 2014 was unreasonable or plainly unjust in circumstances where the Commission accepted:
a. Ms Vimpany honestly believed that her recollection of the events was truthful; (Reasons of Decision at 114)
b. that Mr Steedman failed to take into account 'those circumstances relating to Ms Vimpany's work history, her years of service and the record contained within her personnel file'; (Reasons of Decision at 133) and,
c. the character evidence of Ms Jennifer Blake, Mr Malcolm Heatherly, Mr Robert Hall, Mr David Scott, Mr Aleksander Sekulovski; Mr John Nobel, Mr Mark Counsel, Ms Helen Martin and Mr Barry Watts. (Reasons of Decision at 111)
Submissions to the Full Bench
13 Smith AP outlined the submissions made on the appeal before the Full Bench. The PTA submitted that the Commission's findings were within the bounds of a reasonable exercise of discretion.8 While others may have found differently, that was not to the point - it was open to the Commission to decide the case as it did.9 The PTA emphasised that in order for the appeal to succeed, it had to be shown that the Commission erred in exercising its discretion.10
The discretionary nature of the appeal
14 Smith AP recognised that the Commission had made a discretionary decision,11 and that a discretionary decision could not be set aside simply because members of the Full Bench would have exercised the discretion differently.12 Smith AP set out the well-known passage from House v The King13 outlining the circumstances in which an appellate court may intervene to set aside a discretionary decision:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The Full Bench's disposition of the appeal
15 Smith AP said that the allegations made against Ms Vimpany could be characterised as being among the most serious allegations of misconduct that an employer can make against an employee.14 In substance, the PTA alleged not simply that Ms Vimpany had made false statements, but that she had done so knowingly, intending to deceive the PTA.15
16 The proceedings before the Commission did not focus on whether the material before Mr Steedman, who had made the decision to dismiss Ms Vimpany, proved the PTA's allegation that Ms Vimpany had deliberately made false statements. Rather, before the Commission it was common ground that the question was whether the decision-maker, Mr Steedman, had reasonable grounds for believing that Ms Vimpany was guilty of that alleged misconduct.16
17 Smith AP summarised the findings made by the Commission relating to whether the alleged misconduct had been established as follows:17
(a) The accounts given by Ms Vimpany in which she set out her version of the events of the two incidents on 27 April 2013 had clarity and established a course of conduct of giving false accounts.
(b) Contrary to the findings made by Kenner C in CR 3 of 2014 that Ms Vimpany had given false accounts of events, Ms Vimpany in the hearing in CR 32 of 2014 did not depart from her version of events and insisted she remained the victim and Mr Hammon the aggressor.
(c) There is no evidence that Ms Vimpany's judgment was impaired when she recounted the events in question, or that there was anything amiss that could have affected the reliability of the versions of events that were given on each occasion.
(d) Ms Vimpany's evidence about the events of 27 April 2013 is rejected.
(e) With the passage of time, Ms Vimpany has convinced herself that her version of what occurred on 27 April 2013 has become the reality.
18 After making some observations as to the facts, and as to findings made by Kenner C, Smith AP identified that the task of the Commission was to review the material and matters taken into account by Mr Steedman to assess whether there was sufficient evidence for the PTA to reasonably hold the belief that Ms Vimpany was guilty of the misconduct alleged by it.18
19 Smith AP said that given the serious nature of the allegation made against Ms Vimpany, and given that this allegation could be said to be in a category of grave moral delinquency, the Commission was required to be satisfied that the evidence and material before Mr Steedman could reasonably satisfy a standard of persuasion that established the allegations on the balance of probabilities unequivocally or with certainty, referring to Briginshaw.19
20 Smith AP found that the task before the Commission did not simply require it to be satisfied that the inference drawn by Mr Steedman was one of two explanations open for the giving of false accounts. Rather, in order for the Commission to be satisfied that there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the alleged misconduct, it had to be shown that the most probable inference open on the evidence and material before Mr Steedman was that Ms Vimpany had intended to give a false account.20
21 Smith AP then posed the question of whether the most probable inference that could be drawn from the evidence and material before Mr Steedman was that Ms Vimpany had intended to give a false account. Smith AP concluded that, when regard was had to a number of matters which she set out, the answer 'must be no'.21
22 Smith AP found that in those circumstances, 'it could not be found' by the Commission with sufficient certainty that there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the misconduct alleged.22 Smith AP concluded as follows:23
For these reasons, Mayman C erred in law by acting upon a wrong principle, in that she did not properly analyse the evidence and material before her by applying the requisite standard of proof as required by the test in Briginshaw v Briginshaw.
The grounds of the application
23 The PTA applies for a writ of certiorari and a declaration. There were three grounds of appeal, but at the hearing of the application the PTA abandoned ground 3.24 Its grounds are as follows:
1. The [Full Bench] made a jurisdictional error in finding that it had jurisdiction to set aside the decision made by the Commission at first instance when the Full Bench only had jurisdiction to intervene if there had been an error on the part of the Commission at first instance of the type empowering the Full Bench to set aside a discretionary decision and there was no such error.
2. While correctly setting out the law in relation to the basis upon which it could intervene, the [Full Bench] made a jurisdictional error by setting aside the decision of the Commission at first instance on the basis that the members of the Full Bench would have exercised the discretion in a different way.
Jurisdictional error: general principles
24 A decision-maker commits a jurisdictional error if they make a decision that exceeds the limits of the functions and powers conferred on them, or if they do something they lack the power to do.25 The PTA submits that insofar as the distinction between an inferior court and another administrative body has utility in discerning jurisdictional error,26 the Commission is akin to an inferior court.27 I proceed on that basis.
25 The categories of jurisdictional error are not closed. The following five categories of jurisdictional error in respect of inferior courts are well-established:28
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
26 Other categories of jurisdictional error include where the decision is made in bad faith and where it is made in breach of natural justice.29
27 The PTA's grounds claim to invoke the second or fifth of the categories set out above.
Grounds 1 and 2 - Did the Full Bench misconceive its function?
28 The PTA submits that when the reasons of the Full Bench are properly analysed it is apparent that the Full Bench did not confine itself to the identification of an error on the part of the Commission at first instance; rather, it determined the matter for itself as if it were the original decision-maker, substituting its own opinion for that of the Commission.30
29 I do not accept this submission. The reasons of the Full Bench demonstrate that it was well aware of the need to identify an error in the Commission's exercise of discretion. Smith AP set out the statement of principle in House v The King. Her analysis and conclusions are expressed in terms that reflect proper appreciation and application of those principles. Contrary to the PTA's submissions, she did not simply state and act upon her own view of the facts and evidence. In this respect, I refer to my earlier outline of the Full Bench's disposition of the appeal. Smith AP's reasoning may be summarised as follows:
(a) The issue before the Commission was not whether the allegations of misconduct were proven, but whether the person who made the decision to terminate Ms Vimpany's employment, Mr Steedman, had reasonable grounds for believing she was guilty of the misconduct.31
(b) The serious nature of the allegations meant that the Briginshaw approach to whether the evidence satisfied the decision-maker applied to Mr Steedman's decision.32
(c) In the circumstances, and given the serious nature of the alleged misconduct, in order to find reasonable grounds for the belief that Ms Vimpany was guilty of the alleged misconduct it was necessary for the Commission to be satisfied that the most probable inference on the material before Mr Steedman was that Ms Vimpany had intended to give a false account.33
(d) Having regard to a number of stated considerations, the answer to whether that had been shown 'must be no'.34
(e) In these circumstances 'it could not be found' by the Commission with the certainty required by the Briginshaw principles that there were reasonable grounds for the PTA to believe that Ms Vimpany was guilty of the misconduct alleged.35
30 Smith AP expressed her conclusion in terms that the Commission 'erred in law by acting upon a wrong principle'.36 That is a reference to the House v The King test for interfering with a discretionary judgment, as was set out earlier in her reasons.37 Smith AP identified the error of principle as the Commission's failure to analyse the evidence in the correct framework of the Briginshaw test of reasonable satisfaction, saying that when the evidence was analysed in that framework, the Commission's finding was one that was not open.
31 It seems to me, from all of this, that Smith AP was plainly cognisant of the need to identify an error in the Commission's exercise of discretion. In determining the appeal, she analysed the facts and concluded that the Commission had erred in law by acting on a wrong principle, justifying an interference with its discretionary decision.
32 The PTA's submissions attack the Full Bench's finding that the Commission did not apply the requisite standard of proof as required by the test in Briginshaw. The PTA submits that the Full Bench's reliance upon Briginshaw does not 'in reality' take its analysis beyond the substitution of its views of the evidence for those of the Commission at first instance.38 In that respect, the PTA submits that, on a proper analysis, Briginshaw has little or no relevance to the question of whether an employer had reasonable grounds to conclude that an employee had engaged in serious misconduct. Further, the PTA submits that Briginshaw was not overlooked by the Commission,39 and that, in any event, that decision does not create a separate or different standard of proof.40
33 In my opinion, those complaints, even if made good, do not reveal a jurisdictional error on the part of the Full Bench. They amount to no more than an assertion that, in finding that the Commission erred in its exercise of discretion, the Full Bench itself erred. That is (if established) an error within the jurisdiction of the Full Bench.
34 In my view, the question on this application is not whether the Full Bench was correct in holding that the considerations explained by Dixon J in Briginshaw apply in the context of an employer considering a serious allegation involving moral delinquency made against an employee. Even if it were shown that, as a matter of industrial law, it is wrong to apply the Briginshaw approach in that context, that would be an error within the jurisdiction of the Full Bench. As Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission41 illustrates, what is important in the present context is how the Full Bench conceived its own function, not the correctness of its conception of the task of the Commission at first instance, and not the correctness of its identification of an error in the first instance decision.
35 In Coal & Allied v AIRC a Full Bench of the Australian Industrial Relations Commission upheld an appeal from a decision of one of its members. The Full Federal Court then granted prerogative relief quashing the decision of the Full Bench, on the ground that, by allowing the appeal, the Full Bench had constructively failed to exercise its jurisdiction. The Full Federal Court analysed the reasons of the Full Bench, concluding that, although the Full Bench had perceived there to be errors in the decision at first instance, on a proper analysis, there was none. The Full Federal Court reasoned that, as a consequence of this, the Full Bench had misconceived the nature of the power being exercised at first instance.
36 The High Court (Kirby J dissenting) upheld an appeal from the decision of the Full Federal Court. Gleeson CJ, Gaudron and Hayne JJ explained that the Full Court erred in coming to the view that the Full Bench's misconception of the role of the decision-maker at first instance constituted a jurisdictional error on the part of the Full Bench.42 There would only have been a jurisdictional error on the part of the Full Bench if it had misunderstood its role or the nature of its jurisdiction, or misconceived its duty, or misunderstood the nature of the opinion which it was to form. The Full Bench had done none of those things.43
37 In my view, the approach taken by the Full Federal Court in Coal & Allied v AIRC is closely analogous to the approach invited by the PTA in this case. The substance of the PTA's case is its complaint that:
(a) while the Full Bench purported to identify a House v The King error, on a proper analysis, the error found by the Full Bench was not made;44 and
(b) as a consequence, on an objective analysis, the Full Bench merely substituted its own decision for that of the Commission, thereby misconceiving its function and exceeding its jurisdiction.45
38 In Coal & Allied v AIRC the plurality stated their conclusion as follows:
In [its] reasons for decision, [the Full Bench] proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J [at first instance]. In this [the Full Bench] was correct. [The Full Bench] held that there was error on the part of Boulton J. If [the Full Bench] was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution [32].
39 To my mind, the same reasoning applies to the present case. Thus, in this case, an error by the Full Bench in its finding of an appealable error in the Commission's first instance decision does not amount to a jurisdictional error. Any error in that regard by the Full Bench is an error within its jurisdiction. Consequently, the PTA has not demonstrated any jurisdictional error on the part of the Full Bench.
40 The PTA submits that the order of the Full Bench to remit the matter in relation to remedy only is an indication that the Full Bench misconceived its function and acted on its own view of the evidence.46 I do not accept that submission. As I read the reasons of the Full Bench, it took the view that when the material before the Commission was considered in the correct analytical framework, including Briginshaw considerations, it was not open to it to find that the PTA had reasonable grounds to conclude that Ms Vimpany had engaged in the serious misconduct alleged. In those circumstances, the Full Bench's order to remit the matter only in relation to remedy is consistent with a proper appreciation by the Full Bench of the limits on appellate interference with an exercise of discretion.
41 The PTA further submits that the Full Bench's rejection of ground 2.2, relating to the adequacy of the Commission's reasons, does not sit well with the Full Bench's decision to overturn the decision below.47 I do not accept that submission. Ground 2.2 of the grounds before the Full Bench was a complaint of a different character to grounds 2.1 and 2.3. Ground 2.2 complained of the inadequacy of the Commission's reasoning; grounds 2.1 and 2.3 asserted that the Commission made findings that were not reasonably open or which were unreasonable or unjust. The rejection of ground 2.2 reveals the Full Bench's conclusion that the Commission's reasoning was adequately exposed. It says nothing about the merits of the other grounds of appeal.
42 In this case, had the Full Bench proceeded on the basis that it could interfere with the Commission's decision if it came to a different conclusion, it would have misconceived its function and thereby exceeded its jurisdiction. 48 However, that is not what occurred. In her reasons, Smith AP set out the statement of principle in House v The King, and stated her conclusion in terms that indicated observance of that principle. Any criticism by the PTA of the grounds on which the Full Bench identified an error of principle on the part of the Commission would, if established, amount to an error within jurisdiction.
43 For these reasons, grounds 1 and 2 fail.
Conclusion
44 For the reasons I have given, I would dismiss the application.
1 Applicant's outline of submissions [33].
2The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00936 [3] - [23].
3 [2015] WAIRC 00936 [25] - [30].
4Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
5 [2015] WAIRC 00936 [30] - [33].
6 [2015] WAIRC 00936 [34] - [41].
7 [2015] WAIRC 00936 [42].
8 [2015] WAIRC 00936 [44].
9 [2015] WAIRC 00936 [49].
10 [2015] WAIRC 00936 [53] - [54].
11 [2015] WAIRC 00936 [56].
12 [2015] WAIRC 00936 [57] - [58].
13House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
14 [2015] WAIRC 00936 [59] - [60].
15 [2015] WAIRC 00936 [61].
16 [2015] WAIRC 00936 [62].
17 [2015] WAIRC 00936 [64].
18 [2015] WAIRC 00936 [71].
19 [2015] WAIRC 00936 [72].
20 [2015] WAIRC 00936 [76] - [77].
21 [2015] WAIRC 00936 [78].
22 [2015] WAIRC 00936 [79].
23 [2015] WAIRC 00936 [80].
24 ts 3 - 4, 11.
25Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR [163]; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [66].
26 As to which, see Kirk [67] - [70].
27 ts 14, referring to s 12 of The Industrial Relations Act; see also s 23, s 24.
28Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181]; Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.
29Kirk [60].
30 Applicant's outline of submissions [25], [49] - [52].
31 [2015] WAIRC 00936 [62].
32 [2015] WAIRC 00936 [72].
33 [2015] WAIRC 00936 [77].
34 [2015] WAIRC 00936 [78].
35 [2015] WAIRC 00936 [79].
36 [2015] WAIRC 00936 [80].
37 [2015] WAIRC 00936 [58].
38 Applicant's outline of submissions [43].
39 Applicant's outline of submissions [43(a)]; ts 5.
40 ts 5 - 6.
41Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194.
42Coal & Allied v AIRC [30].
43Coal & Allied v AIRC [31].
44 ts 6, 10.
45 ts 6, 9 - 10, 13 - 14.
46 ts 10 - 11.
47 ts 5, 7 - 8.
48Coal & Allied v AIRC [29].
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