Sydney Trains v Merhej Elali
[2023] FWCFB 47
•14 MARCH 2023
[2023] FWCFB 47
The attached document replaces the document previously issued with the above code on 14 March 2023.
The reference in paragraph [4] to a specific metropolitan train station in Sydney has been removed.
Associate to Vice President Catanzariti
Dated 14 March 2023
| [2023] FWCFB 47 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sydney Trains
v
Merhej Elali
(C2022/7298)
| VICE PRESIDENT CATANZARITI | SYDNEY, 14 MARCH 2023 |
Appeal against decision [2022] FWC 2757 of Deputy President Easton at Sydney on 14 October 2022 in matter number U2022/2067 – permission to appeal refused.
Sydney Trains seeks permission to appeal and if granted, appeals a decision of Deputy President Easton (the Deputy President) of 14 October 2022 (Decision).[1] The Deputy President in the Decision determined an application for an unfair dismissal remedy made by Mr Merhej Elali pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President found that Mr Elali had been unfairly dismissed and made an order for his reinstatement, continuity of employment and partial restoration of lost pay.[2]
By consent the Decision and Order made by the Deputy President were stayed upon the basis of undertakings given by Sydney Trains to pay Mr Elali until the appeal is determined.[3]
For the reasons that follow we have concluded that it is not in the public interest to grant permission to appeal.
Background
The Respondent was employed as a Station Duty Manager at a metropolitan train station in Sydney. He was dismissed by the Appellant following an investigation which found that he had acted inappropriately towards a female school student (the student). The substantiated allegation is set out below:
“Allegation 2
It is alleged that on 23 March 2021, whilst on duty as the Station duty manager at [a metropolitan train station in Sydney], Mr Elali acted inappropriately towards a female school student.
The circumstances of the allegation are:
a) At approximately 7:56 AM on Tuesday, 23 March 2021, while Mr Elali was mopping a Concourse area near a station exit, the student identified in Allegation 1 proceeded in his direction.
b) As the student approached Mr Elali, Mr Elali extended his right arm, placed it around her upper back area and embraced her in a hug.
c) As Mr Elali hugged the student, he kissed her on her neck region.
d) Shortly after embracing the student, he said words to the effect of “how old are you?” The student replied that she is in Year 8 to which Mr Elali responded with words to the effect of “you look like you’re in Year 10.”
e) Mr Elali’s actions as outlined in c) above were sexual in nature.
f) Mr Elali’s actions as outlined in b), c) and d) above were unwanted by the student and made her feel uncomfortable.”
On 25 March 2021 the Respondent was charged with two crimes in relation to this conduct. Both charges were initially found to be proven in the NSW Local Court but the findings of guilt were subsequently set aside on appeal to the District Court in a judgment delivered on 31 May 2022.
The Appellant suspended the Respondent at the time he was charged, conducted an investigation and subsequently terminated his employment, effective 28 January 2022, following his conviction in the Local Court.
The Decision under appeal
In the Decision the Deputy President describes the Respondent’s character and his employment with the Appellant in very positive terms. The Deputy President then sets out in sequence the laying of the criminal charges, the conviction, the suspension and dismissal from employment of the Respondent and the appeal against his convictions.
The Deputy President describes the incident on 23 March 2021 (“the Incident”) in the following way:
“ [14] The incident occurred shortly before 8:00am during the commuter peak on Tuesday 23 March 2021 at a suburban railway station. It happened in a public area and was recorded in its entirety on high-definition colour CCTV.
[15] It was raining outside and the CCTV footage shows Mr Elali was mopping the undercover concourse area when the student entered the same area of the station. The student was wearing her school uniform and was on her way to school.
[16] The CCTV footage shows Mr Elali and the student walk towards each other and then hug. The hug lasted two seconds.
[17] The student says that when Mr Elali hugged her he also kissed her on the neck. Mr Elali denies that he kissed the student at all.
[18] The kiss, if there was one, could only have been for a fraction of one second.
[19] After the hug Mr Elali and the student stood near each other and spoke for approximately 90 seconds before the student continued on her way. Many other commuters walked past as the two were speaking.
[20] When the student arrived at school she was upset and told a member of staff about the incident. That school staff member, quite properly, reported the matter to the NSW Police.
[21] Two days later the student was interviewed by police, after which Mr Elali was arrested at his workplace and charged with two offences. Mr Elali’s employment was suspended when he was charged by the police.”
The Deputy President describes the history of contact between the Respondent and the student in the four months prior to the Incident, in which the Respondent had rendered assistance to the student on two occasions. The first occasion was in November 2020 when the student attended his station in a distressed state. The Appellant agreed that the Respondent had acted appropriately on this occasion. The second occasion was on 8 March 2021 when the student did not have her Opal card, and the Respondent again helped her. He also gave her a generic Sydney Trains business card on which he wrote his nickname and his work-issued mobile phone number. The Deputy President noted that the Appellant initially alleged in the disciplinary process that in providing his mobile number the Respondent acted inappropriately but, in the hearing “did not allege that Mr Elali behaved inappropriately in any of his dealings with the student prior to 23 March 2021.”[4]
The Deputy President outlined the evidence adduced by the parties, the student’s account of the Incident at her interview by a police officer on 25 March 2021 and her evidence in the Local Court proceeding. The Deputy President clearly stated that the student’s honesty was not in question, and the Appellant’s decision not to call either her or her sister to give evidence was appropriate.
The Deputy President detailed the evidence of the Appellant and Respondent before him, and then set out an extract from the ex-tempore decision of the Magistrate in the Local Court as well as an excerpt of the District Court Justice’s decision upholding Mr Elali’s appeal. The Deputy President subsequently details his observations of the CCTV footage of the Incident.
The Deputy President turned to consider each of the criterion in s.387 of the Act and makes findings in respect of each. To a large extent the appeal focusses on the Deputy President’s findings in respect of s.387(a) and (h), and so it is helpful to set out in some detail this part of the Deputy President’s reasoning.
In dealing with whether there was a valid reason for the dismissal, the Deputy President began by setting out the well-established principles summarised by the Full Bench in Sydney Trains v Gary Hilder.[5]
The Deputy President then said:
“[86] Sydney Trains relied on two reasons for dismissal:
(a) the fact that Mr Elali kissed the student on the neck; and
(b) even if Mr Elali didn’t kiss the student on the neck, the fact that Mr Elali hugged the student.
[87] Sydney Trains submits that both actions by Mr Elali were misconduct.”
At paragraph [91] the Deputy President recorded that the primary evidence in the matter was the CCTV video footage and that other evidence must necessarily be assessed by reference to the video evidence.
The Deputy President then said at paragraphs [92]-[102]:
“[92] As referred to above, both Mr Elali and the student’s recollections were wrong about a less significant detail – Mr Elali thought that the student extended her arm out to him first and the student thought that Mr Elali hugged her with both hands. Neither mistake damages nor calls into question the reliability of that person’s recollection.
[93] I have viewed the video again and again and I am comfortably satisfied that it does not show that Mr Elali kissed the student.
[94] The quality of the CCTV footage is very good. The video does not support the student’s account as far as it does not show Mr Elali kissing the student on the neck or show even a moment where it could have been possible for Mr Elali to kiss the student on the neck.
[95] The video does not wholly exculpate Mr Elali because his lips are not visible during all of the footage. From one camera angle Mr Elali’s face is rarely visible. From the other camera angle Mr Elali’s face is visible for almost all of the sequence. There is, however, a small portion of the sequence where Mr Elali’s face is obscured by the student’s head.
[96] As the two come together their heads and faces are close for less than two seconds. On the video Mr Elali can be seen tilting his head downwards slightly during part of the two seconds of the hug.
[97] Crucially, the footage does not in my view, show Mr Elali tilting his head or his face towards the student’s neck. If any part of Mr Elali’s face touched the student’s face or neck during the hug, it could not have been Mr Elali’s lips because his head was not ever sufficiently turned towards the student. As Hunt J describes it:
“… the right-hand cheek of [Mr Elali] (given the position of the parties generally) is alongside the hair and about the level of [the student’s] ear.”
[98] The Police Fact Sheet prepared for the local court proceedings refers to the CCTV footage and states that “the accused head and face can be seen nuzzling into the right side of the victim’s neck.” I do not agree. In my view the video is clear and does not show any kind of “nuzzling” by Mr Elali.
[99] I also note that Mr Elali has a beard. None of the student’s statements refer to her feeling Mr Elali’s beard or whiskers on her neck or face.
[100] I cannot therefore find as a matter of fact on the evidence that Mr Elali kissed the student, and therefore cannot find that there was a valid reason to dismiss Mr Elali from his employment in relation to the alleged kiss.
[101] The second reason for dismissal relied on by Sydney Trains in these proceedings is the fact that Mr Elali hugged the student. Quite obviously there is no factual dispute about whether Mr Elali hugged the student.
[102] Mr Elali accepted in his evidence and submissions that hugging the student was inappropriate. Applying the methodology in Hilder’s Case, and in particular principle (4) that it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee to demonstrate that there was a valid reason for the employee’s dismissal, it is quite clear that the hugging of the student constitutes a valid reason for dismissal for the purposes of s.387(a) of the FW Act.”
The findings in relation to ss.387(b)-(g) are not challenged in the appeal and are not repeated here.
In relation to s.387(h) the Deputy President said at paragraphs [112]-[120]:
“[111] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[112] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).
[113] The parties both agreed that Mr Elali acted inappropriately when he hugged the student. I have found this conduct to be a valid reason for dismissal.
[114] Under cross-examination Mr Elali explained that the moment occurred very quickly. He said “this situation it was like a bullet, it wasn’t something I was able to think before. It just happened straight because I was focused on the floors, so it just popped up.” I do not completely accept this explanation because there was approximately six seconds between when the two appear to recognise each other and the hug itself.
[115] There was a connection between Mr Elali and the student insofar as she was not a random schoolgirl passing through his station – he had helped her before when she was distressed and sought protection, and there had been friendly passing exchanges after that event.
[116] This connection did not give Mr Elali permission or licence to invade the student’s personal space, or to touch or hug her against her wishes. However, Mr Elali genuinely believed that the student was about to hug him, and that the hug was consensual.
[117] With the benefit of hindsight Mr Elali acknowledges that what he should have done, even if he thought she was about to hug him, was take some kind of measure to deflect or stop the hug. The added complication for Mr Elali was that in a matter of seconds he needed to find a way to deflect the hug that didn’t cause offence to the student.
[118] In cross-examination (referred to above) Mr Elali raised a concern that he had not received any training on such matters. In closing submissions Sydney Trains lambasted Mr Elali for these statements, submitting that he was blame-shifting and that his answers proved that he lacked insight into his behaviour. I do not accept these submissions.
[119] Lest there be any confusion, an employee does not have to be explicitly told that criminal sexual conduct towards a child is misconduct that will result in summary dismissal. No employee could legitimately claim unfair treatment in their employment if they engage in such criminal conduct. Mr Elali did not make such a complaint.
[120] Rather, Mr Elali expressed uncertainties about the boundaries of appropriateness when dealing with children, particularly in the split-second moment when the child was moving towards him looking like she was about to hug him. His uncertainty is understandable. In his position he was not required to have a Working With Children Check clearance and there is no evidence of any specific training provided by Sydney Trains in relation to dealing with children. Further, it seems to be acknowledged in these proceedings that in some instances it may be necessary and appropriate for an employee of Sydney Trains to touch or hug a child – such as when a child is lost and/or distressed.”
The Deputy President then stated:
“[129] Although a single hug of a child could be a valid reason for dismissal, in all the circumstances of this matter, including particularly Mr Elali’s length of service and his exemplary record, his history of satisfactory if not commendable dealings with the student, it is harsh and/or unreasonable to dismiss Mr Elali without some kind of warning first.
[130] Sydney Trains must be uncompromisingly vigilant about matters of child protection. Sydney Trains must apply and enforce proper boundaries of behaviour to keep staff and customers safe, particularly children.
[131] Staff should not hug customers who are children except in extreme and unusual circumstances, such as providing necessary comfort or protection to a child that is distressed or in danger.
[132] Mr Elali’s action in hugging the child fell on the wrong side of the boundaries that workers must keep within. Workers cannot be physically familiar with customers, particularly when those customers might be children that are inherently vulnerable simply because of their age and inexperience.
[133] However Sydney Trains can be uncompromisingly vigilant and can enforce proper boundaries without dismissing Mr Elali because of one isolated incident in which he hugged a child. In the circumstances the dismissal of Mr Elali was harsh.
[134] It is also important to recognise the dilemma faced by Sydney Trains at the time it decided to terminate Mr Elali’s employment. By December 2021 Mr Elali had been convicted of a serious child-related offence. Mr Elali had lodged an appeal in relation to the conviction but Sydney Trains’ external investigator, and Ms Clark, and the decision maker and a Local Court Magistrate had all formed the view that Mr Elali did in fact kiss the student on the neck. The child protection element in this situation, and the conviction at first instance in the Local Court, combine to make Sydney Trains’ decision eminently understandable.
[135] To be clear, in determining whether Mr Elali kissed the student on the neck (that is, in determining whether there was a valid reason for dismissal) I have not taken into account the fact that Mr Elali was convicted in the Local Court, or the fact that the conviction was quashed. The Commission’s task is to decide for itself whether the alleged misconduct occurred.
[136] The timing of the Local Court and District Court proceedings is relevant to consideration of the position Sydney Trains was in at the time it made its decision, and relevant to matters the harshness of the dismissal - particularly in consideration of whether Sydney Trains should have granted Mr Elali’s application for ongoing unpaid leave pending the outcome of the District Court proceedings.
[137] In my view Sydney Trains’ decision not to allow Mr Elali to take unpaid leave is not a decisive factor.
[138] Mr Elali was suspended on pay for more than eight months from March 2021 until December 2021. Sydney Trains led no evidence of any operational difficulties or imperatives that meant that it could not have allowed Mr Elali to remain on unpaid leave. It was open to Sydney Trains to allow Mr Elali the extra time, particularly after he asked for unpaid leave.
[139] However Sydney Trains had already investigated the matter for its own purposes. Mr Elali had cooperated with the investigation and provided a response. The looming criminal charges did not compromise Mr Elali’s responses to Sydney Trains: for example he did not withhold any responses to Sydney Trains to maintain his privilege against incrimination. Sydney Trains was satisfied that the misconduct had occurred and specifically that Mr Elali had kissed the student on the neck. It is by no means certain that if the appeal to the District Court was successful that Mr Elali would have kept his job, or that Sydney Trains would have changed its view about the facts.”
Overall, the Deputy President found that whilst there was a valid reason for the dismissal, it was harsh and unreasonable and therefore unfair. The Deputy President concluded by stating that the Respondent’s conduct was unacceptable, and the Appellant was entitled, if not required, to take action to prevent such behaviour occurring again. At paragraph [143] the Deputy President said:
“[143] However it was, for the reasons described above, unreasonable for Sydney Trains to dismiss Mr Elali in the circumstances. Sydney Trains had other reasonable actions available to it to address Mr Elali’s inappropriate action in hugging the child that did not involve dismissing him.”
Having found the dismissal was unfair, the Deputy President then considered the question of remedy. The Deputy President ordered the Appellant to reinstate the Respondent to an equivalent position at a different train station, treat his service as continuous and make a partial payment for lost remuneration.
Principles of Appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[6] There is no right to appeal. An appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(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.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others[7], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error[8] or a preference for a different result.[9] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” [10]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[11] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. [12]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[13] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
The decision under appeal is of a discretionary nature. As the Full Bench noted in Metcash Trading v Hudson:
“[20] …Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner at first instance in the absence of appealable error. As the High Court said in House v The King:
“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.”[14] (original footnotes removed).
In Gelagotis v Esso Australia Pty Ltd[15] (Esso) a Full Bench made the following observations as to the general approach where there is a challenge on appeal to findings of fact:
“[43] In each of the appeals before us there are challenges to a number of the Deputy President’s factual findings. Subsection 400(2) provides that such challenges can only be made on the ground that the decision involved ‘a significant error of fact’. It is common ground that to be characterised as ‘significant’ the factual error must vitiate the ultimate exercise of discretion. In a misconduct case, such as these two matters, a significant fact is one which is foundational to the members conclusion about whether the alleged misconduct took place.”
In Helensburgh Coal Pty Ltd v Bartley & Ors the Full Bench observed that in an appeal a Full Bench’s role is not to comb through “the words of the decision-maker with a fine appellate toothcomb, against the prospect that a verbal slip will be found” but rather that the decision should be read as a whole. However there remains a requirement to give adequate reasons for a decision.[16]
Grounds of Appeal
The Appellant advances 21 grounds in the Notice of Appeal, summarised below.
1. The Deputy President erred in:
a) characterising the reasons for dismissal as being limited to whether Mr Elali ‘hugged’ and ‘kissed’ the student on 23 March 2021; and
b) not considering Sydney Trains’ actual reason for dismissal was that Mr Elali had acted inappropriately to the student on 23 March 2021 which included Mr Elali hugging and kissing the student, asking her inappropriate questions and making statements about her age and school year and that the overall interaction (including the hug, kiss, questions and comments) were unwanted by the student and made her feel uncomfortable in the context of earlier interactions.
2. The Deputy President erred in finding that Mr Elali had not kissed the student and thereby erred in not finding there was an additional valid reason for Mr Elali’s dismissal.
3. The Deputy President erred in not finding that there was nonetheless an additional valid reason for dismissal under s.387(a) in that he had acted inappropriately by moving his head and lips in intimate proximity to the student’s head and neck such that the student stated in the police interview that she genuinely believed “his, like face, went on my neck. And then, uh he hugged me and then, like, I felt him kiss me a bit” and, as a result, said she “felt, like uncomfortable and sick around him”.
4. The Deputy President erred in taking into account as mitigating factors under s.387(h) that:
a) “Mr Elali genuinely believed that the student was about to hug him and that the hug was consensual” despite the conduct involving a 13-year-old girl in school uniform;
b) it was “an added complication for Mr Elali was that in a matter of seconds he needed to find a way to deflect the hug that didn’t cause offence to the student”; and
c) Mr Elali had an “understandable basis” for expressing uncertainties about “the boundaries of appropriateness when dealing with children particularly in the split second moment when the child was moving towards him looking like she was about to give him a hug”.
5. The Deputy President erred in not taking into account as an aggravating factor under s.387(h) that Mr Elali did not have a rational basis for having uncertainties about whether hugging a child was appropriate.
6. The Deputy President erred in not taking into account relevant aggravating matters under s.387(h) of the FW Act.
7. The Deputy President erred in not taking into account as a factor under s.387(h) the personal impact of Mr Elali’s misconduct on the student including her distress about the incident after it occurred.
8. The Deputy President erred:
a) in taking into account as a relevant factor under s.387(h) that Sydney Trains can be “uncompromisingly vigilant and can enforce proper boundaries without dismissing Mr Elali” and “had other reasonable action available to it to address Mr Elali’s inappropriate action in hugging the child that did not involve dismissing him”; and
b) in not taking into account under s.387(h) that Sydney Trains would have practical difficulties in monitoring Mr Elali’s behaviour to enforce compliance with proper boundaries of behaviour given that he was employed as Station Duty Manager, being in the most senior leadership position at the train station in which he was expected to model standards of behaviour and represent a beacon of trust and safety for members of the public, and is not supervised in the performance of his role on a day-to-day basis at the train station.
9. The Deputy President erred in taking into account irrelevant factors under s.387(h) of the FW Act that:
a) Sydney Trains had alleged Mr Elali had engaged in a “potentially predatory course of conduct” that had been “flimsily put, endorsed in submissions and then lightly abandoned at hearing” which did not fairly reflect the context of the statement which concerned the appropriateness of Mr Elali’s reinstatement and the evidence including the student’s perception of Mr Elali’s overall conduct which made her feel ‘uncomfortable’; and
b) Sydney Trains did not allow Mr Elali to continue to take unpaid leave after the Local Court found him guilty pending the outcome of an appeal to the District Court when Mr Elali was not placed on unpaid leave and the reasons for his dismissal did not depend on the outcome of the criminal proceedings.
10. The Deputy President erred in finding that Mr Elali’s dismissal was harsh and unreasonable in the circumstances of the case.
11. The Deputy President erred in finding that “there is no reason why [Mr Elali] cannot return to the workplace”.
12. The Deputy President erred, particularly in the highly risky and regulated rail operating environment, by finding that evidence led by Dr Armand Casolin (Chief Health Officer of Transport for NSW) that “Mr Elali might not be fit to return to work” was not “relevant to the question of whether Sydney Trains should be ordered to reinstate Mr Elali”.
13. The Deputy President erred in finding reinstatement the appropriate remedy in light of the lack of contrition and blame shifting of Mr Elali and concerns led in evidence regarding his fitness for the Station Duty Manager role.
Grounds 14 to 21 are that the Deputy President made significant errors of fact as set out and discussed below.
Grounds 9(b), 12 and 21 were not pressed by the Appellant.
Consideration
We have carefully reviewed all the material that was before the Deputy President including the CCTV footage of the Incident together with the submissions of the Appellant and the Respondent.
Grounds 1, 3, 20 – valid reason
Grounds 1-3 and 20 concern the Deputy President’s approach to and findings as to whether there was a valid reason for the Respondent’s dismissal under s.387(a) of the Act.
In the Decision, the Deputy President stated that the Appellant relied on two reasons for the dismissal: that the Respondent kissed the student on the neck and, even if he had not kissed the student on the neck, the fact that he hugged the student.[17] The Deputy President concluded that the Respondent’s hugging of the student was a valid reason for his dismissal.[18] He did not find as a matter of fact on the evidence that the Respondent kissed the student.
The Appellant contends that the Deputy President mischaracterised the actual reasons for dismissal as being limited to the ‘hugging’ and ‘kissing’ of the student. In so doing the Deputy President ignored other inappropriate aspects of the interaction and did not consider all the relevant circumstances. The undue focus on whether the hug and kiss occurred had the effect of diminishing its overall seriousness and meant that the Deputy President did not evaluate the overall inappropriateness of the interaction. Further errors are said to be a failure to have regard to the conversation with the student during the Incident and a failure to refer to or make findings that the student considered the conduct unwanted and made her feel uncomfortable. Sydney Trains also contends the Deputy President erred by failing to make findings as to whether the conduct involved serious and wilful breaches of the Code of Conduct, Dignity and Respect Policy and/or the Harassment Policy (the Policies).[19]
Counsel for the Appellant relied on the decision in Sydney Trains v Hilder as authority for the proposition that the Commission must correctly characterise the reasons for dismissal. In Hilder the Commissioner at first instance found there was no valid reason for the dismissal. The Full Bench found that the Commissioner fell into error by mischaracterising the reason for dismissal. The Commissioner’s characterisation of the reason was that the applicant was not ‘incapable or incoherent when at work’ whereas the actual reason for dismissal was ‘attending for work with a proscribed level of cannabis metabolites in his system.’ The Full Bench noted the critical distinction between these two characterisations.[20]
Similarly, in Bluescope Steel Limited v Agas[21] the Full Bench found that the Commissioner at first instance had inaccurately identified the reason for the dismissal as ‘operational negligence’, whereas the actual reason was ‘for continued unacceptable performance’. This mischaracterisation was found to be a significant error of fact as it meant that the Commissioner failed to have proper regard to the evidence of the final incident before dismissal being the latest in a series of other incidents of unacceptable performance.[22]
The issue in the appeal before us differs to that dealt with in both Hilder and Agas. Unlike those cases, what is put by the Appellant here is not that the Deputy President mischaracterised the reason for dismissal of the Respondent in the sense of wrongly describing it, rather that the Deputy President didn’t consider the entirety of the misconduct of Respondent. By focusing on some of the component elements - looking at the ‘hug’ and the ‘kiss’ in isolation – the Deputy President failed to consider the misconduct in its entirety. This is said to have had the effect of diminishing the severity of the misconduct. In large part, what is put by the Appellant is that there were additional valid reasons for dismissal of which the Deputy President failed to make findings.
More relevant is the decision in Queensland Rail v Rainbow.[23] In that case the Full Bench discussed in detail the required approach in determining whether a valid reason for dismissal exists, in broadly similar circumstances to that before us. The Full Bench dismissed an appeal against a decision finding the applicant had been unfairly dismissed where the Member had made findings in relation to three aspects of alleged misconduct. The Member found that only one of the three – parking a car on a live rail line in breach of safety rules – constituted a valid reason for dismissal. The grounds of appeal included that the Member had failed to properly characterise the totality and gravity of the misconduct, by considering the three aspects of the conduct in isolation rather than considering the totality of the conduct.[24] The Full Bench did not accept a submission advanced that in assessing whether there was a valid reason for dismissal, the reasons for dismissal are required to be considered in totality. The Bench did not accept that the decision in Pearson v Linfox Australia Pty Ltd[25] stood “for the proposition or a decision rule that all conduct must be aggregated in determining whether a valid reason for a dismissal exists.”[26]
The task before the Deputy President in the matter before us is to assess whether there was a valid reason for the dismissal and in making this assessment, is obliged to consider all the relevant circumstances. If the Member ignores or disregards some of the relevant circumstances, this may lead them into error.
We consider that a fair reading of the Decision discloses no appealable error in this regard. Firstly, the Deputy President’s approach to the issue and findings were consistent with how the case was run at first instance. In its outline of submissions at first instance the Appellant only referred to the breaches of Policies in setting out the summary of the evidence before the Deputy President. However, the alleged breaches of Policies do not appear in the submissions concerning whether there was a valid reason for the dismissal. Under the heading of valid reason, the Appellant described the ‘offending conduct’ as the ‘hug’, the ‘kiss’ and the ‘conversation’. The Appellant submitted at first instance that this conduct, when viewed in the context of the Respondent’s senior leadership position with the Appellant, together with his lack of insight and accountability during the investigation and show cause process, constituted a valid reason for the dismissal. The only other matter referred to as part of the valid reason was a submission by the Appellant that the Respondent engaged in a course of targeted conduct towards the student.[27] This submission, however, was not pursued at the hearing at first instance.
Consistent with its written submissions, at the hearing before the Deputy President counsel for Sydney Trains focused on the ‘hug’, the ‘kiss’ and the alleged lack of insight on the Respondent’s part, commencing closing submissions before the Deputy President with:
“Deputy President, there are three questions or three issues Sydney Trains sees need to be resolved in this case. The first one is the issue of the hug. …. The second issue is the question of the kiss. …. The last point …. is the very troubling and profound lack of insight that Mr Elali has demonstrated into the events on 23 March 2021, his unwillingness to accept responsibility or demonstrate any understanding of the seriousness of his wrongdoing, his very strong propensity to deflect responsibility and attribute blame to others for what occurred.”[28]
At the hearing of the appeal, counsel acknowledged that that was how the case was framed before the Deputy President but submitted that didn’t change the task of the Commission in correctly characterising whether there was a valid reason for the dismissal.
As the Full Court of the Federal Court in Linfox v FWC[29] stated:
48 Secondly, a decision-maker called upon to make a decision is generally required to resolve the claims made; there is no general requirement to resolve a claim “never made, which might have been put on another basis”: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 at [31], 211 CLR 441 at 457 per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. There can be neither an “error of law” nor a “question of law” where a decision-maker does not deal with a submission which is not advanced for resolution: cf. Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728-729 per Gummow J; Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24 at [26] per Flick and Jagot JJ. As a general rule, no error is committed by a decision-maker in not addressing issues of fact and law not the subject of argument: Commissioner of Taxation v Glennan [1999] FCA 297 at [82], 90 FCR 538 at 558 per Hill, Sackville and Hely JJ; Culley v Australian Securities and Investments Commission [2010] FCAFC 43 at [5], 183 FCR 279 at 283 per Ryan, Mansfield and McKerracher JJ.
We consider the Full Court’ s observation to be relevant here in relation to the contention that the Deputy President erred in failing to refer to or make findings that the student considered the conduct unwanted and made her feel uncomfortable, and whether the conduct involved serious and wilful breaches of Policies.
It is not appropriate for a party to make a subsequent appeal of a decision on different grounds to those put at first instance. In Metwally v University of Wollongong[30] the High Court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
In relation to the alleged failings in respect of the ‘conversation’ and lack of insight, we consider that despite stating the ‘kiss’ and the ‘hug’ were the two reasons the Appellant relied on for the dismissal,[31] on a fair reading of the Decision the Deputy President also dealt with the issue of the ‘conversation’ and the level of the Respondent’s insight into and remorse for his conduct. As to the ‘conversation’, the Deputy President considered that the conversation was ‘in general terms only and quite harmless’ when considered in its entirety.[32] The Deputy President accepted the Respondent’s evidence at the hearing and was satisfied that he understood and acknowledged that he should not have hugged the student and regretted his actions.[33] This was a finding reasonably open to the Deputy President. We are satisfied that both were taken into consideration in determining whether there was a valid reason for the dismissal.
Secondly, whilst the Deputy President did not expressly make findings in relation to whether the Respondent’s conduct breached the Policies, in the circumstances we do not consider this constitutes an appealable error. The Deputy President did not dismiss or downplay either his assessment of the Respondent’s misconduct, or the Appellant’s concerns. The Deputy President expressly found that the Appellant should not tolerate the Respondent’s misconduct, and that the Appellant must be uncompromisingly vigilant and was right to apply and enforce proper boundaries of behaviour to keep staff and customers, particularly children, safe.[34]
Further, whilst it is well established that a wilful and deliberate breach of a workplace policy will usually constitute a valid reason for dismissal, not every established breach of a policy will do so.[35] Determining whether there is a valid reason for dismissal involves an evaluative assessment.
In this case, the Policies do not provide for termination of employment for any breach.[36] The Code of Conduct notes that the Appellant has zero tolerance for bullying, harassment, discrimination and inappropriate workplace conduct, and provides that breaches are managed in accordance with the Prevention and Management of Bullying and Harassment Policy and the Discrimination Free Workplace Policy and relevant procedures. The Code of Conduct also includes a section entitled ‘Child protection in the workplace’ which requires employees to report incidents involving inappropriate conduct towards a child to their manager, in accordance with the Ombudsman Act 1974 (NSW).[37] However, the Policies provide that disciplinary action, including up to termination, may apply in respect of breaches and do not provide for dismissal in every instance.
Grounds 2 and 14-21 - Significant errors of fact
Grounds 14 to 21 are that the Deputy President made significant errors of fact. For these grounds to succeed the decision must be found to contain “a significant error of fact”. For an error of fact to be ‘significant’ it must vitiate the ultimate exercise of discretion.[38]
Grounds 14-17 relate to findings arising from the Deputy President’s review of the CCTV footage of the Incident.
Grounds 2 and 17 concern the Deputy President’s finding that there was insufficient evidence to conclude that Mr Elali kissed the student.
The Full Bench has carefully reviewed the CCTV footage and we consider that the Deputy President’s finding was open to him on the evidence, and we agree with it. We agree with the Deputy President’s analysis that the CCTV footage does not wholly exculpate the Respondent because his lips are not visible during all the footage. However, as the Deputy President observed, the footage does not show the Respondent tilting his head or face towards the student’s neck, and his lips could not have touched the student’s face or neck during the hug.[39] We also agree with the Respondent’s submission that the CCTV footage does not show anything that would be consistent with the Respondent kissing the student: his head does not turn towards her nor does the video show any reaction from the student. It is also worth noting that the Deputy President’s analysis of the footage was broadly consistent with that of District Court Justice Hunt, albeit in the context of the higher criminal standard of proof.[40]
The Deputy President considered the transcripts of police interviews and the student’s evidence in the Local Court in light of the CCTV footage, recognising that the Respondent did not have an opportunity to query or explore the student’s account of the Incident. The finding there was insufficient evidence to conclude the Respondent kissed the student was open to the Deputy President in light of this material and the Respondent’s consistent denial that he kissed the student, was accepted by the Deputy President to be evidence given truthfully and cooperatively. It is important to be clear, as the Deputy President was, that the student’s honesty is not in question, and there is no suggestion that the account she gave of the Incident to the Police or in the Local Court proceeding was false or dishonest. Further, the decision not to call the student or her sister was entirely appropriate. Having carefully considered all the material before the Deputy President and the submissions on appeal, no error is disclosed.
Ground 14 asserts the Deputy President made a significant error of fact at paragraph [120] of the Decision in finding that the student was moving towards the Respondent looking like she was about to hug him. We do not agree.
It is clear from the footage that the student and the Respondent were moving towards each other, and it was open to the Deputy President to have accepted the Respondent’s evidence that he believed the student was about to hug him and that the hug was consensual.[41] That is so regardless of whether, viewed forensically, there may be a limited basis for such a belief. In relation to the Respondent’s belief that the hug was consensual, we note that the Deputy President’s findings were consistent with the observations of Justice Hunt that “a fair, balanced assessment of what could be seen on the footage is seemingly two people who are pleased to see each other and engaging in a very brief platonic hug.”[42] We agree with this description of what the CCTV footage depicts.
Ground 15 contends that although the Deputy President accepted that the Respondent was the first to reach an arm out to initiate the hug, he accepted that the Respondent needed to find a way to deflect the hug without causing offence to the student. As the Respondent submitted, the fact that the Respondent was the first to reach one hand out is not inconsistent with the belief at that time that the student was about to hug him[43], and the need to deflect it. No appealable error is disclosed.
Ground 16 is that the Deputy President erred in finding that the CCTV footage is not consistent with Mr Elali having tilted his head towards or ‘nuzzling’ the student’s neck. Review of the footage leads us to agree with the Deputy President that the video shows no kind of ‘nuzzling’ by the Respondent.
Ground 18 is that the Deputy President erred in finding at paragraph [120] that the Respondent had an ‘understandable’ uncertainty about the boundaries in dealing with children. It is not clear what factual finding is said to have been made here. In any event, the ground of appeal is not a wholly accurate description of paragraph [120]. Rather, the Deputy President considered that:
“[120] …Mr Elali expressed uncertainties about the boundaries of appropriateness when dealing with children, particularly in the split-second moment when the child was moving towards him looking like she was about to hug him. His uncertainty was understandable. In his position he was not required to have a Working With Children Check clearance and there is no evidence of any specific training provided by Sydney Trains in relation to dealing with children. Further, it seems to be acknowledged in these proceedings that in some instances it may be necessary and appropriate for an employee of Sydney Trains to touch or hug a child...”
Read in context, no error is apparent. This was a conclusion open to the Deputy President on the evidence.
Ground 19 is that the Deputy President erred in finding at paragraph [118] that the Respondent had not sought to deflect blame and had not lacked insight into his conduct. The Appellant did not elaborate on this Ground in either its written submissions or at the hearing of the appeal. We discern no error in the Deputy President’s findings in circumstances where he accepted as genuine the Respondent’s repeated expressions of remorse and regret for hugging the student.[44]
Ground 20 is that the Deputy President erred in finding at paragraphs [127]-[128] that the Appellant had alleged that the Respondent had engaged in a “potentially predatory course of conduct” justifying dismissal that had been “flimsily put, endorsed in submissions and then lightly abandoned at hearing” when this was never presented as a reason for dismissal. We discern no error in this account of how the case was run before the Deputy President. Whilst perhaps superfluous comments to have made in one sense, on a fair reading of the Decision we do not consider that the Deputy President treated them as a relevant factor or attributed any weight to them in considering s.387(h) of the Act.
Grounds 4-9 – s.387(h) other relevant factors
Grounds 4 to 9 contend various errors in the Deputy President’s consideration of relevant factors under s.387(h).
The Deputy President had a broad discretion to consider those matters which he considered relevant under s.387(h). No particular approach is required to be followed, “nor is there any basis for an appellate Full Bench to impose a ‘decision rule’ requiring the discretionary decision-making process to be undertaken in a particular way.”[45]
In its written outline of submissions at first instance, the Appellant submitted that there were 3 matters the Commission should take into account under s.387(h): the Respondent’s alleged lack of contrition and accountability; the personal impact of the dismissal on him; and thirdly that character references for the Respondent that were before the Commission were not relevant considerations.[46] At first instance the Appellant made no submission about the factors it now contends the Deputy President was required to take into account or erred in taking into account, stating simply “I’m not going to go through the factors under s.387, we’ve addressed that in our written submissions adequately.”[47]
In the Decision, the Deputy President considered each of the matters raised by the Appellant. The Deputy President expressly rejected the contention that the Respondent lacked insight into his action and was blame-shifting. As set out above, we consider that this finding was open to the Deputy President, and having so found, the Deputy President was entitled to take this into consideration when considering the gravity of the misconduct.
The Deputy President weighed up the gravity of the misconduct, and in doing so did not entirely accept the Respondent’s explanation that the Incident happened so quickly he was unable to think before hugging the student. The Deputy President clearly considered his conduct to be unacceptable, that the Appellant must be uncompromisingly vigilant about matters of child protection, that the Respondent’s action in hugging the student was wrong, and that “workers cannot be physically familiar with customers” particularly children.[48]
Weighed against the conduct of the Respondent, the Deputy President considered the connection between the Respondent and the student originating in the assistance he had previously rendered her, and his genuine belief that the student was about to hug him. The Deputy President also took into account his finding that the Respondent had not failed to take responsibility for, nor lacked insight into, his conduct. Also considered relevant by the Deputy President was the Respondent’s length of service and exemplary record. The Deputy President was entitled to take each of these matters into account. That he did so does not disclose any appealable error.
As set out earlier in this Decision we find no appealable error in the Deputy President expressing a view about the Appellant’s decision to not press allegations of targeted conduct by the Respondent.
The Deputy President concluded that it was reasonable for the Appellant to refuse the Respondent’s request to take unpaid leave.[49] No error is apparent in this.
We consider that the Deputy President was entitled to have regard to each of the factors he considered relevant under s.387(h) and the weight to be assigned to them. There were mitigating factors and it was reasonably open to the Deputy President to conclude that his dismissal was harsh, notwithstanding that there was a valid reason for his dismissal.
Appeal Ground 10 is no more than a disagreement with the Deputy President’s overall assessment, and we discern no appealable error.
Grounds 11-13 – Reinstatement
Grounds 11-13 assert errors in the Deputy President’s findings in relation to ordering the Appellant to reinstate the Respondent.
Ground 12 is that the Deputy President erred by finding that evidence led by Dr Armand Casolin, Chief Health Officer of Transport for NSW, that “[the Respondent] might not be fit to return to work” was not “relevant to the question of whether [the Appellant] should be ordered to reinstate [the Respondent].” Viewed in the context of her evidence as a whole, no error is apparent. Dr Casolin’s evidence was to the effect that, having reviewed material from his treating psychologist, she considered as at July 2022 that the Respondent may not be fit, or fully fit, to currently work, and that she would not provide him with a medical clearance to be reinstated to any role until it was certified that he was medically fit to do so.[50] Her evidence did not go so far as to assert that this was unattainable and could not occur in any reasonable timeframe. Viewed in the context of the entirety of her evidence, there was no error in the Deputy President concluding that Dr Casolin’s opinion did not preclude the primary remedy of reinstatement being ordered.
Grounds 11 and 13 are no more than restatements of disagreements with the Deputy President’s findings, that we have already found to have been open to him and disclose no error.
Public Interest
Finally, we have considered whether this appeal attracts the public interest, and we are not satisfied that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal.
We are not satisfied that an arguable case of appealable error has been established. We are further not satisfied that the Deputy President acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect his decision, mistook certain facts or failed to take into account material considerations.
Further, we do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust. The Decision is the result of the orthodox application of legal principles to the facts and there is no diversity of decisions in similar cases that would make it in the public interest to provide appellate guidance.
Conclusion
For the above reasons, we are not satisfied that it is in the public interest to grant permission to appeal. Permission to appeal must therefore be refused in accordance with s.400(1) of the Act and the Stay Order of Deputy President Saunders of 10 November 2022[51] is set aside.
VICE PRESIDENT
Appearances:
M Seck of counsel with M Witfred of counsel for the Appellant.
M Elali, Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
December 16.
[1] [2022] FWC 2757.
[2] PR747515.
[3] PR747782.
[4] Decision at [30].
[5] [2020] FWCFB 1373 at [26].
[6] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[7] (2011) 192 FCR 78 at [43].
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[9] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[10] [2010] FWAFB 5343 at [27].
[11] Wan v AIRC (2001) 116 FCR 481 at [30].
[12] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[13] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[14] Metcash Trading Limited v Michael Hudson[2022] FWCFB 2 at [20].
[15] [2018] FWCFB 6092 at [43].
[16] [2022] FWCFB 166 at [30].
[17] Decision at [86].
[18] Decision at [102].
[19] Appellant’s outline of submissions at [4]-[15].
[20] [2020] FWCFB 1373 at [31].
[21] [2014] FWCFB 5993 at [64]-[69].
[22] Ibid at [64]-[66].
[23] [2022] FWCFB 147.
[24] Ibid at [31]-[32].
[25] [2014] FWCFB 1870.
[26] [2022] FWCFB 147 at [37].
[27] Sydney Trains’ outline of submissions at first instance at [65] (Appeal Book at p.312)
[28] Transcript PN1770-1779 (3 August 2022).
[29] Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at 48.
[30] (1985) 60 ALR 68 at [71].
[31] Decision at [86].
[32] Decision at [47]-[49].
[33] Decision at [117]-[120], Transcript PN934-PN935 (28 July 2022), PN2354-PN2372 (3 August 2022).
[34] Decision at [130].
[35] See for example Hilder at [35].
[36] Attachment 26 to Investigation Report at p.8, Attachment 27 to Investigation Report p.8. (Appeal Book at p.643, 653).
[37] Attachment 25 to Investigation Report at p. 14. (Appeal Book at p. 624).
[38] Helensbugh Coal Pty Ltd v Bartley & Ors[2022] FWCFB 166 at [77].
[39] Decision at [97].
[40] Decision at [13].
[41] Transcript PN711-715 (28 July 2022), Transcript of Local Court proceedings, 25 November 2021 (Appeal Book p.361).
[42] Decision at [72].
[43] Respondent’s outline of submissions at [46].
[44] Transcript PN336, PN935 (28 July 2022), PN2354-2372 (3 August 2022).
[45] Mt Arthur Coal Pty Ltd v Goodall[2016] FWCFB 5492 at [66].
[46] Sydney Trains’ outline of submissions at first instance at [76]-[88] (Appeal Book pp.314-315).
[47] Transcript PN2354 (3 August 2022).
[48] Decision at [130]-[132].
[49] Decision at [157].
[50] Exhibit R2, Statement of Dr Armand Casolin at [18]-[22] (Appeal Book p.719-720).
[51] PR747782.
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