The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia
[2017] WASCA 86
•2 MAY 2017
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2017] WASCA 86
CORAM: BUSS J
MURPHY J
KENNETH MARTIN J
HEARD: 21 NOVEMBER 2016
DELIVERED : 2 MAY 2017
FILE NO/S: IAC 1 of 2016
BETWEEN: THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
Appellant
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :J H SMITH AP
A R BEECH CC
P E SCOTT ASC
Citation :PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA v THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH [2016] WAIRC 236
File No :FBA 18 of 2015
Catchwords:
Industrial law - Termination of employment - Unfair dismissal - Primary remedy - Reinstatement - Alternative option of re-employment - Capped compensation payment as further alternative - Impracticability of reinstatement or re-employment as remedy - Reversal of reinstatement decision of Commissioner - Full Bench assesses that reinstatement and re-employment are both impracticable - Asserted error of law by Full Bench in construction or interpretation of statute - Meaning of 'impracticable' - Statutory interpretation of that term in the context of reinstatement or re-employment of unfairly dismissed employee - Distinction between error of law in construction or interpretation of statute in contrast to an application of law to underlying facts - No error of law in construction or interpretation of statute - Application of law to facts by Full Bench outside jurisdictional parameters of Industrial Appeal Court
Legislation:
Fair Work Act 2009 (Cth), s 390(3)(a)
Industrial Relations Act 1979 (WA), s 23A and s 90(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr C Fogliani & Ms B Gruber
Respondent: Mr G T W Tannin SC & Mr D Anderson
Solicitors:
Appellant: W G McNally Jones Staff Lawyers
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abbott‑Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49; (2006) 151 IR 361
Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169
Concept Nominees Pty Ltd v The Minister for Mines (Unreported, WASC, Library No 930678, 9 December 1993)
Jayne v National Coal Board [1963] 2 All ER 220
Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186
Liddell v Lembke (t/a Cheryl's Unisex Salon) (1994) 1 IRCR 466; (1994) 56 IR 447
Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20; 3 All ER 1
Moss v Smith (1850) 19 LJCP 225
Nguyen & Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 57 IR 50
Patterson v Newcrest Mining Ltd (1996) 68 IR 419
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Public Transport Authority for Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2015] WASCA 150 (S)
Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408
Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322
Tenix Defence Pty Ltd v Galea (Unreported, AIRC, Library No PR928494, 11 March 2003)
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 01367; (2015) 95 WAIG 1
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00824; (2014) 94 WAIG 1462
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00229; (2015) 95 WAIG 371
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00936; (2015) 95 WAIG 1605
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 01094; (2016) 96 WAIG 71
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 01107; (2015) 96 WAIG 76
Table of Contents
BUSS & MURPHY JJ's REASONS.......................................................................................... 6
The background facts and circumstances
The right of appeal to this court
The ground of appeal
Section 23A of the Act
The majority's reasons for decision
The merits of the ground of appeal
Conclusion
KENNETH MARTIN J'S REASONS...................................................................................... 14
Introduction
Chronology of events
The Union's arguments to this Court
The word 'impracticable' as it manifests in s 23A(4) and s 23A(6) of the IR Act
The Full Bench's reasons
The Union's particulars to the ground of appeal
Observations upon particulars to the ground of appeal
Particular A
Particular B
Particular C
The Union's written outline of submissions of 27 July 2016
Perkins
The Union's written submissions as to a misapplication of Perkins by the Full Bench plurality
Other challenges to the plurality's reasons
Re-employment submission
Further arguments by the Union's counsel at the hearing
Determination
Commonwealth Bank of Australia v Barker
Conclusion
BUSS & MURPHY JJ: The appellant (the Union) is an organisation of employees and the respondent (the PTA) is an employer.
Janet Vimpany is a member of the Union.
Ms Vimpany was employed by the PTA as a passenger ticketing assistant on the PTA's Joondalup railway line.
The PTA unfairly dismissed Ms Vimpany from her employment.
A majority of the Full Bench of the Western Australian Industrial Relations Commission (the WAIRC) held that it was impracticable for the PTA to reinstate or re‑employ Ms Vimpany. See Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408 (Smith AP & Scott ASC; Beech CC dissenting).
The Union has appealed to this court against the majority's decision.
We would dismiss the appeal. Our reasons are as follows.
The background facts and circumstances
Ms Vimpany was employed by the PTA between 31 July 2006 and 8 October 2014.
On 8 October 2014, the PTA dismissed Ms Vimpany from her employment on the ground that the PTA believed that Ms Vimpany had deliberately and dishonestly provided false accounts of the conduct of her supervisor, David Hammon, towards her.
On 27 October 2014, the Union made an unfair dismissal application to the WAIRC in relation to Ms Vimpany's dismissal.
Commissioner Mayman heard and dismissed the unfair dismissal application.
On 5 June 2015, the Union appealed against Commissioner Mayman's decision to the Full Bench of the WAIRC. The Full Bench allowed the appeal. It found that the PTA had unfairly dismissed Ms Vimpany. The Full Court remitted the matter to Commissioner Harrison to determine the issue of remedy.
Commissioner Harrison found that it was not impracticable for Ms Vimpany to be reinstated to her position as a passenger ticketing assistant. The Commissioner ordered the PTA:
(a)to reinstate Ms Vimpany to her former position;
(b)to reinstate Ms Vimpany's accrued entitlements and recognise her service as being continuous; and
(c)to pay Ms Vimpany compensation for all of the remuneration that she had lost between 8 October 2014 and the date of her reinstatement.
On 23 December 2015, the PTA appealed against Commissioner Harrison's decision to the Full Bench of the WAIRC. As we have mentioned, the Full Bench held, by a majority, that it was impracticable for the PTA to reinstate or re‑employ Ms Vimpany and that Commissioner Harrison had erred in finding otherwise.
The right of appeal to this court
Section 90(1)(b) of the Industrial Relations Act 1979 (WA) (the Act) provides, relevantly, that an appeal lies to this court from any decision of the Full Bench 'on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act … in the course of making the decision appealed against … but upon no other ground'.
The ground of appeal
The sole ground of appeal alleges, relevantly, that the majority of the Full Bench erred in law in their construction or interpretation of the word 'impracticable' in s 23A of the Act in the course of making their decision.
Section 23A of the Act
Section 23A of the Act provides, relevantly:
(1)The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.
(2)In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee -
(a)at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and
(b)had been so employed for a period of less than 3 months.
(3)The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
(4)If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers -
(a)the employer has available; and
(b)is suitable.
(5)The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders -
(a)an order it considers necessary to maintain the continuity of the employee’s employment;
(b)an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.
(6)If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal. (emphasis added)
The majority's reasons for decision
The majority summarised the essence of the PTA's case as follows:
The 'heart' of the PTA's case was that because of Ms Vimpany's belief about what occurred in the second altercation during the incident on 27 April 2013 and her opinion of the conduct of the PTA in its investigative process was not only unreliable but that she had formed the opinion that other employees including Mr Hammon had perjured themselves and had conspired against her, the PTA could not have the necessary level of trust and confidence in Ms Vimpany to enable the employment relationship to be restored [109].
The majority added that 'the issue was and is whether the PTA's opinion is objectively reliable' [109].
The majority noted that the Full Bench had not previously considered the proper construction and application of s 23A as currently enacted [92].
The majority then examined a number of cases decided in other jurisdictions in relation to statutory provisions with at least some similarity to s 23A. In particular, the majority referred, with apparent approval, to the following propositions which the majority discerned from their examination of those other cases:
(a)'a relevant factor in determining whether reinstatement is impracticable may be (depending upon the facts of a particular matter) whether a proper working relationship can be established and [the] level of trust between an employer and a claimant required for a continuing relationship of employer and employee' [93];
(b)'where an issue of trust and confidence is a relevant issue, to determine [that] reinstatement is impracticable it must be found that the employer has a genuine and credible distrust and lack of confidence in the employee' [93];
(c)'the issue of trust and confidence, in the context of practicability, [may be] tested by reference to whether the loss of trust and confidence is soundly and rationally based' [94];
(d)'forming an opinion that reinstatement is impracticable can encompass factors other than the level of trust and confidence that an employer may have in an employee': '[f]or example, the claimant's position may have been legitimately abolished, or the claimant's personal circumstances may have changed post‑termination of employment, such as he or she may have moved to live in another location' [95];
(e)'[p]racticable means more than possible': '[f]or example … where re‑engagement of … unfairly dismissed employees, although possible, would [lead] to industrial strife … re‑engagement [may not be] practicable: [f]urther, loss of the necessary mutual trust and confidence between employer and employee may render re‑employment impracticable' [96];
(f)the notion of 'trust and confidence', in this context, is concerned with 'that which is essential to make an employment relationship workable' [102];
(g)'[w]hether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement': '[e]ach case must be decided on its own facts, including the nature of the employment concerned': '[a]n allegation that there has been a loss of trust and confidence must be soundly and rationally based': '[t]he fact that it may be difficult or embarrassing for an employer to be required to re‑employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate' [105]; and
(h)'[u]ltimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive' [105].
The majority then summarised the principles which, in their view, applied 'to an exercise of discretion when considering whether [under s 23A] to order reinstatement of a claimant where a relevant circumstance is a claim by the employer that there has been a loss of trust and confidence in the claimant':
(a)Reinstatement is the primary remedy afforded by s 23A. If reinstatement of a claimant who has been harshly, oppressively or unfairly dismissed is impracticable, the Commission is to consider whether another position is available and suitable for the claimant to be re-employed. If reinstatement or re-employment is impracticable, the Commission may order the employer pay compensation.
(b)The onus is on the employer to establish credible reasons why reinstatement of the claimant is impracticable.
(c)Trust and confidence can be a relevant factor to consider when considering whether reinstatement is impracticable. Whether it is a relevant factor will depend upon the factual circumstances of a particular matter. Trust and confidence is not the sole criterion or even a necessary one in determining whether reinstatement is impracticable.
(d)For reinstatement to be impracticable on grounds of trust and confidence, some embarrassment or doubt by the employer, friction between the claimant, the employer and/or other employees is not sufficient to make the relationship unviable.
(e)The reluctance of an employer to shift from the view of the claimant's conduct, despite an assessment by the Commission that the conduct in question had not been made out, does not provide a sound basis to conclude that the necessary level of trust and confidence is irreparably damaged or destroyed.
(f)The employer's opinion about whether there is a necessary level of trust and confidence must be genuine, credible and rationally based. The necessity of an appropriate level of trust and confidence to restore an employment relationship will depend upon not only the attitude of the claimant towards the employer and/or any other relevant employees and the employer to the claimant, but also whether the attitudes expressed have a reliable foundation and the nature and function of the duties of the employee.
(g)The level of sufficient trust and confidence in an employment relationship will vary depending upon the circumstances of a particular matter.
(h)The assessment of whether there is a sufficient and cogent loss of trust and confidence is a matter for the Commission to determine. The degree of trust and confidence an employer could be said to reasonably expect of one category of employee may be higher or lower than another.
(i)The question to be determined by the Commission is whether there can be, in the circumstances, a sufficient level of trust and confidence restored to make the employment relationship between the employer and the claimant viable and productive [106]. (emphasis added)
The majority said that there were two issues before Commissioner Harrison. First, whether the PTA's opinion about the appropriate level of trust and confidence required of a passenger ticketing assistant and its opinion that it did not have this level of trust and confidence in Ms Vimpany was genuine, credible and rationally based [111]. Secondly, whether the necessary level of trust and confidence in Ms Vimpany could be restored so that, objectively, the Commissioner could form the opinion with confidence that Ms Vimpany, if reinstated, would properly carry out her duties and appropriately interact with her supervisors in the future [111].
The majority were of the opinion that Commission Harrison had erred in the exercise of her discretion under s 23A of the Act. She was mistaken as to the facts before her and, also, she failed to take into account material considerations she was bound to consider [122].
The majority decided that it was open to the Full Bench to vary the decision of Commissioner Harrison and to exercise its own discretion in substitution for the discretion exercised at first instance in that the Full Bench had before it sufficient uncontested material [122] ‑ [123].
The majority made these findings:
(a)the PTA's opinion that it did not have the necessary level of trust and confidence in Ms Vimpany to provide accurate and reliable reports of events, especially in relation to enforcement matters, was genuine, credible and reliable so as to raise doubt as to the future viability of an employment relationship between the PTA and Ms Vimpany [126];
(b)a 'relatively high level of trust and confidence' is required in relation to a passenger ticketing assistant to make the employment relationship between the PTA and the passenger ticketing officer 'viable and productive' [127];
(c)in the circumstances, the PTA had satisfied its onus to prove reinstatement of Ms Vimpany as a passenger ticketing assistant was 'impracticable' [128]; and
(d)the re‑employment of Ms Vimpany in other positions with the PTA was also 'impracticable' because Ms Vimpany's beliefs were sufficiently serious to be destructive of the necessary trust and confidence the PTA was reasonably entitled to hold in its officers [129].
The merits of the ground of appeal
The meaning of the word 'impracticable' in a statutory provision depends, to a significant extent, on the statutory context, but it ordinarily connotes that which is not reasonably feasible or not reasonably capable of being put into practice, done or accomplished. See Shorter Oxford English Dictionary (6th ed, 2007) 2310; Macquarie Dictionary (5th ed, 2009) 1305.
The Act does not define 'impracticable' for the purposes of s 23A or otherwise.
The word 'impracticable' in s 23A takes colour from the statutory context; namely, the making of a determination by the Commission as to whether it is 'impracticable' to order that an employer, who has harshly, oppressively or unfairly dismissed an employee, reinstate the employee to his or her former position or re‑employ the employee in another position.
The word 'impracticable' in s 23A, in the applicable context, connotes that reinstatement or re‑employment by the employer of the employee is not reasonably feasible or reasonably capable of being accomplished on the facts and in the circumstances of the particular case.
In the present case, we are not persuaded that the majority of the Full Bench erred in their construction or interpretation of the word 'impracticable' in s 23A in the course of making their decision.
In our opinion, it is apparent, on a fair reading of the majority's reasons as a whole, that:
(a)the majority, in substance, construed or interpreted the word 'impracticable' in s 23A to require an inquiry as to whether reinstatement or re‑employment by the PTA of Ms Vimpany was not reasonably feasible or reasonably capable of being accomplished on the facts and in the circumstances of the case;
(b)the majority held, correctly, that the presence or absence of trust and confidence between an employer and an employee is relevant in determining whether reinstatement or re‑employment is 'impracticable' and that the level of sufficient trust and confidence will vary depending upon the facts and circumstances of the particular case; and
(c)the majority identified, correctly, the factors that were relevant in the present case in determining whether it was 'impracticable' for the PTA to reinstate or re‑employ Ms Vimpany.
The majority's focus was on whether the reinstatement or re‑employment by the PTA of Ms Vimpany was 'impracticable' because a sufficient level of trust and confidence did not exist between the PTA and Ms Vimpany to make an employment relationship between them viable and productive. The majority's focus was appropriate having regard to the facts and circumstances of the particular case and to the manner in which the PTA and the Union had run their cases and put their submissions.
The ground of appeal is without merit.
Conclusion
We would dismiss the appeal.
KENNETH MARTIN J:
Introduction
The applicant, The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the Union) seeks to appeal to this court, representing the interests of its member, Ms Vimpany. The Union seeks for the court to reverse a decision of the Full Bench of the Western Australian Industrial Relations Commission (the WAIRC) delivered on 20 April 2016.[1] The Full Bench's decision reversed a first instance determination by Commissioner J L Harrison.[2] The respondent to this appeal is the Public Transport Authority of Western Australia (the PTA).
[1] Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408.
[2] The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 01107; (2015) 96 WAIG 76.
In the wake of an earlier determination by the WAIRC as to Ms Vimpany's unfair dismissal by the PTA, Commissioner Harrison had ordered Ms Vimpany's reinstatement as a passenger ticketing assistant. The Full Bench, by majority, then reversed that decision. It concluded by reference to the terms of s 23A(4) and s 23A(6) of the Industrial Relations Act 1979 (WA) (the IR Act) that Ms Vimpany's reinstatement or her re-employment would be 'impracticable'.
The Full Bench plurality, Smith AP and Scott ASC, in joint reasons concluded, in effect, that certain beliefs held by Ms Vimpany, concerning alleged acts of perjury or a conspiracy she believed to have been perpetuated against her by PTA personnel, went to the heart of the future viability of any further employment relationship with the PTA. They concluded that the substantial damage to, or the destruction of the required levels of trust and confidence in the employment relationship between Ms Vimpany and the PTA were so great that it was 'impracticable' for her to be reinstated to her former position.
Additionally, the plurality concluded that it would be 'impracticable' for Ms Vimpany to be re‑employed in other positions within the PTA, an alternative sought by the Union. Again, the Full Bench plurality held this to be 'impracticable' given Ms Vimpany's beliefs, which were expressed
as 'sufficiently serious to be destructive of the necessary trust and confidence the PTA is reasonably entitled to hold in its officers'.[3]
[3] Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 236; (2016) 96 WAIG 408 [129].
The other member of the Full Bench, Beech CC, took a different view. He considered that Ms Vimpany could, and should, be reinstated to her former position as a passenger ticketing assistant.[4]
[4] Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 236; (2016) 96 WAIG 408 [145] - [146].
The Union filed one ground of appeal challenging the Full Bench's decision. The ground essentially contends that the Full Bench plurality erred in law by adopting an erroneous construction or interpretation of the term 'impracticable' as that word is used in s 23A of the IR Act, as regards assessing their (negative) assessments towards the prospects of Ms Vimpany's potential reinstatement or, alternatively, of her re‑employment with the PTA.
Chronology of events
It is necessary to recount some of the procedural history underlying what followed after an incident in Ms Vimpany's employment relationship with the PTA. I will undertake this task utilising significant parts of the chronology provided by the PTA concerning the underlying events which are now, essentially, uncontroversial.
#
Date
Description of event
1
27.04.13
Ms Vimpany, who was then employed by the PTA as a passenger ticketing assistant, was involved in an incident at work. There was contact between Ms Vimpany and her supervisor, Mr David Hammon. Mr Hammon informed Ms Vimpany and another passenger ticketing assistant with whom she was working that they would need to complete their shift rather than, as had apparently been authorised by another supervisor, being allowed to leave early that day.
There was further contact at the end of the shift, when Ms Vimpany and Mr Hammon spoke about the earlier instruction and some apparent levels of offence that it had caused to the two women. Ms Vimpany was alleged to have abused Mr Hammon by threatening behaviour.
2
23.09.13
The PTA alleged Ms Vimpany had knowingly given false accounts of the incident between herself and Mr Hammon on 27 April 2013.
3
17.10.13
Ms Vimpany was reprimanded over her conduct in relation to the 27 April 2013 incident by the PTA.
4
11.02.14
By application filed in the WAIRC, the Union challenged some findings relating to Ms Vimpany's conduct on 27 April 2013. It sought to have the WAIRC interrupt the disciplinary proceedings against her (CR 3 of 2014).
5
01.08.14
Commissioner Kenner dismissed the Union's challenge against findings relating to Ms Vimpany's conduct in the incident (CR 3 of 2014).[5]
6
07.10.14
The PTA informed Ms Vimpany that the allegations against her have been made out and terminated her employment as a consequence.
7
27.10.14
The decision to terminate Ms Vimpany's employment was challenged by the Union on Ms Vimpany's behalf by application made to the WAIRC (CR 32 of 2014).
8
19.12.14
The Union appealed part of Commissioner Kenner's decision to the Full Bench of the WAIRC (FBA 11 of 2014). The Full Bench dismissed that appeal.[6]
9
13.03.15
Concerning the decision to terminate Ms Vimpany's employment, Commissioner Mayman dismissed the unfair dismissal application - finding Ms Vimpany's dismissal was not harsh or unfair (CR 32 of 2014).[7]
10
12.10.15
An appeal against Commissioner Mayman's decision by the Union to the Full Bench (FBA 6 of 2015) was upheld. The appeal was allowed. The Full Bench remitted the unfair dismissal application back to the WAIRC for further hearing and for a determination as to the appropriate relief for Ms Vimpany, in the face of the unfair dismissal determination.[8]
11
18.12.15
Commissioner Harrison ordered the reinstatement of Ms Vimpany (CR 32 of 2014).[9]
12
23.12.15
The PTA appealed Commissioner Harrison's reinstatement decision to the Full Bench (FBA 18 of 2015).[10]
13
22.02.16
The Full Bench by majority upheld that appeal and set aside the orders of Commissioner Harrison which had ordered Ms Vimpany's reinstatement. The majority also rejected the alternative remedy of ordering Ms Vimpany's re‑employment to another position with the PTA.[11] I elaborate upon the content of the reasons of the Full Bench comprising Smith AP, Beech CC and Scott ASC further in these reasons.
[5] The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00824; (2014) 94 WAIG 1462.
[6] The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 01367; (2015) 95 WAIG 1.
[7] The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00229; (2015) 95 WAIG 371.
[8] The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00936; (2015) 95 WAIG 1605.
[9] The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 01094; (2016) 96 WAIG 71.
[10] Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408.
[11] Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408.
The Union's arguments to this Court
The Union essentially contends as regards the word 'impracticable', as used within s 23A(4) and s 23A(6) of the IR Act, that the Full Bench erred, by either misinterpreting or misconstruing the correct meaning of that word, in determining and upholding the appeal against Commissioner Harrison's first instance reinstatement determination favouring Ms Vimpany.
The same alleged error of applying an erroneous meaning of the word 'impracticable' in s 23A would appear to be contended to have also undermined the Full Bench plurality's re‑exercise of discretion upon this issue, in substitution for the discretion exercised by Commissioner Harrison at first instance.
The nature of the Full Bench plurality's alleged error of law, by adopting an asserted misconstruction or misinterpretation of the word 'impracticable' as that word is used within s 23A(4) or s 23A(6), is elaborated upon by the Union within four accompanying particulars to the ground of appeal. Greater elaboration is then found within the Union's written submissions provided to this court dated 26 July 2016. The submissions of counsel for the Union at the hearing of the appeal on 21 November 2016 expanded the basis of the challenge raised by the sole ground of appeal. As will be seen, however, there are some inconsistencies in the Union's position as it is assessed across those three different sources of elaboration. It will be necessary to discretely consider these three sources of arguments advanced by the Union towards it showing an error of law made by the Full Bench falling within the scope of s 90(1)(b) of the IR Act.
The usual jurisdictional question arises at the outset of the present arguments - concerning whether or not the ground of challenge sought to be advanced does, in truth, ventilate an error in the construction or interpretation of an Act of Parliament. Or, as the PTA strongly submits, is this appeal ground, upon examination, only seeking to cavil over what manifests as just a routine instance of the members of the Full Bench applying well settled statutory law, but merely reaching differing conclusions in their applications of that law to underlying facts - a scenario which would lie outside this court's jurisdiction under s 90(1)(b).
As I will explain at the end of these reasons, it has been said on more than one occasion, by reference to s 90(1) of the IR Act that there can be no appeal to this court if a Full Bench has 'merely applied the law which it has correctly understood, to the facts of an individual case'.
The PTA's written outline of submissions contends that this court's jurisdiction has not been legitimately engaged in the attempted appeal. But it goes further to submit that, even if jurisdiction was properly engaged, the joint evaluations of Smith AP and Scott ASC, as the majority of the Full Bench, towards the underlying facts in their joint reasons, concluding as to the ultimately assessed impracticability of Ms Vimpany's reinstatement or her re‑employment, are demonstrably correct and should not be disturbed.
At the outset, it is necessary to scrutinise the terms of s 23A of the IR Act. This section provides a hierarchy of potential remedies for an employee following an assessment that the employee (as was the case here for Ms Vimpany) has been unfairly dismissed by their employer on a basis that was 'harsh, oppressive or unfair' (s 23A(1)).
The word 'impracticable' as it manifests in s 23A(4) and s 23A(6) of the IR Act
The Union's ground of appeal contends that the Full Bench (plurality) erred in law in the construction or interpretation of the term 'impracticable' in s 23A of the IR Act in the course of making their decision in FBA 18 of 2015.[12] The ground as articulated continues:
The error made by the Full Bench has caused the appellant's member, Ms Janet Vimpany, to suffer an injustice in that it has denied her a remedy under s 23A(3) and s 23A(5) of the Act, or alternatively, s 23A(4) and s 23A(5) of the Industrial Relations Act 1979.
[12] Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408.
It is necessary to turn to the content of s 23A of the IR Act.
The legislative history surrounding s 23A was extensively canvassed by Smith AP and Scott ASC in their joint reasons at [82] - [91]. It is unnecessary to repeat all that history here, other than to note that s 23A was introduced by the Industrial Relations Amendment Act 1993 (WA) (Act No 15 of 1993). It was then amended by s 42 of the Industrial Legislation Amendment Act 1995 (WA) (Act No 1 of 1995). At that time the word 'impracticable' was introduced. Smith AP and Scott ASC observed:
This amendment expressly required the Commission to form an opinion that reinstatement was 'impracticable' as a pre-condition to an award of compensation [90].
Section 23A was then amended in 1997 by the Labour Relations Amendment Act 1997 (WA). It now manifests in pt 2, div 2 of the IR Act under the heading, 'Unfair dismissal claims, Commission's powers on'.
Section 23A relevantly provides:
(1)The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.
(2)In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee -
(a)at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and
(b)had been so employed for a period of less than three months.
(3)The Commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
(4)If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers -
(a)the employer has available; and
(b)is suitable.
(5)The Commission may, in addition to making an order under subsection (3) or (4) make either or both of the following orders -
(a)an order it considers necessary to maintain the continuity of the employee's employment;
(b)an order that the employer pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.
(6)If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8) order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.
…
(10)For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.
…
(12)The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.
(In the above extracts, I have highlighted in bold the word 'impracticable', where it is seen to be used twice in s 23A(4) and then in s 23A(6).)
The word 'impracticable' manifests initially under s 23A(4), in a context of assessing an employee's possible reinstatement (under s 23A(3)) to their former position to be impracticable, by reference to the lesser remedy option of potentially ordering the employer to instead 're-employ' the employee in another position - in effect, as a lesser tier remedy than that of ordering a reinstatement to the employee's former position.
The second use of the word 'impracticable' is found in s 23A(6). This time, the word is seen deployed in a context of the apparent legislative emphasis that emanates from the emphatic precatory phrase '[i]f and only if' it is assessed that the remedies of reinstatement or re‑employment are both impracticable. This second use is in a context of the path towards the lowest tier remedy of compensation for the unfairly dismissed employee for loss or injury caused by their (unfair) dismissal.
The present context of the Union's argument is that the Full Bench plurality erred in their construction or interpretation of the word 'impracticable', towards assessing Ms Vimpany's presenting circumstances as regards her potential reinstatement to her former position as a passenger ticketing assistant, or her re-employment to another position with the PTA.
I should note at an early point that the word 'impracticable' is not found to be expressly defined within the IR Act. It is therefore a word which must take its meaning from the overall surrounding text and context of its location within s 23A in pt 2 div 2 of the IR Act and from an objective assessment of the legislative purpose of the provision as a whole.
The Full Bench's reasons
It is necessary, given the nature of the challenges sought to be advanced against the plurality's reasons by the Union on this appeal, to set out at length a number of passages taken from the joint reasons of Smith AP and Scott ASC. In particular, I will collect what is said at [104], [105], [106](a) - (f), [109], [110], [113], [116] - [129] and [131] of the joint reasons and then in the reasons of Beech CC at [132], [136] and [142] - [144].
I commence at [104] of the joint reasons where Smith AP and Scott ASC rendered a series of observations whilst canvassing a series of decisions in the national industrial relations context, dealing with the practicality of the remedy of reinstatement for the unfairly dismissed employee. They said:
104The Full Bench in Nguyen at [24] also considered the observation of Gray J in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627 [42] that with the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished. The Full Bench in Nguyen at [25] adopted the remarks made by Gostencnik DP in Colson v Barwon Heath [2013] FWC 8734 about the point being made by Gray J. In Colson Gostencnik DP observed [21] - [22]:
I do not take his Honour's commences to mean that trust and confidence as an element of the employment relationship is no longer important. It is merely recognition that in many cases it will be important to have regard to the totality of the employment, and that in the case of a corporate employer, the loss of trust and confidence in the employee will be by a manager or managers of the corporate employer. But as his Honour observed, in such cases the 'critical question must be what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned' [2000] FCA 627. It is important to understand that his Honour's observations were made in the context of an interlocutory application while His Honour was considering 'balance of convenience' arguments against reinstatement on an interlocutory basis. His Honour's observations about the effect of the shift from a personal to a corporate employment relationship were made as an introduction to his conclusion that the respondent did not provide any evidence on the 'critical question' as identified. So much is clear from the following passage:
… It might be more significance, for instance, to know the name of Mr Voss's immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence on these matters.
[43] Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person [2000] FCA 627.
In my view, his Honour is merely saying that it is not enough to simply assert that trust and confidence in an employee has been lost. Where this is relied upon then there must be evidence from the relevant managers holding that view and an assessment must be made as to the effect of the loss of trust and confidence on the operations of the workplace. In short, all of the circumstances must be taken into account. This seems evident and is hardly controversial.
105The Full Bench in Nguyen then distilled the following principles from the decided cases concerning the impact of trust and confidence on the question whether reinstatement is appropriate [27] - [28]:
•Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement (Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003), [7] - [8]).
•Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191).
•An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191).
•The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191).
•The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191).
Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.
Having considered those lines of Australian authority, Smith AP and Scott ASC moved to summarise the position for Western Australia in these terms as regards the remedy of reinstatement - where the employer contends there has been a loss of trust and confidence:
106In our opinion, when regard is had to s 23A of the Act, the statutory scheme to provide remedies to a claimant who has been harshly, oppressively or unfairly dismissed and the decided cases the following principles should apply to an exercise of discretion when considering whether to order reinstatement of a claimant where a relevant circumstance is a claim by the employer that there has been a loss of trust and confidence in the claimant:
(a)Reinstatement is the primary remedy afforded by s 23A. If reinstatement of a claimant who has been harshly, oppressively or unfairly dismissed is impracticable, the Commission is to consider whether another position is available and suitable for the claimant to be re-employed. If reinstatement or re-employment is impracticable, the Commission may order the employer pay compensation.
(b)The onus is on the employer to establish credible reasons why reinstatement of the claimant is impracticable.
(c)Trust and confidence can be a relevant factor to consider when considering whether reinstatement is impracticable. Whether it is a relevant factor will depend upon the factual circumstances of a particular matter. Trust and confidence is not the sole criterion or even a necessary one in determining whether reinstatement is impracticable.
(d)For reinstatement to be impracticable on grounds of trust and confidence, some embarrassment or doubt by the employer, friction between the claimant, the employer and/or other employees is not sufficient to make the relationship unviable.
(e)The reluctance of an employer to shift from the view of the claimant's conduct, despite an assessment by the Commission that the conduct in question had not been made out, does not provide a sound basis to conclude that the necessary level of trust and confidence is irreparably damaged or destroyed.
(f)The employer's opinion about whether there is a necessary level of trust and confidence must be genuine, credible and rationally based. The necessity of an appropriate level of trust and confidence to restore an employment relationship will depend upon not only the attitude of the claimant towards the employer and/or any other relevant employees and the employer to the claimant, but also whether the attitudes expressed have a reliable foundation and the nature and function of the duties of the employee.
Having extracted those principles, Smith AP and Scott ASC advanced to evaluate their application towards Ms Vimpany, in the context of evaluating whether there had been any level of error by Commissioner Harrison in ordering Ms Vimpany's reinstatement, as the PTA had argued. They said this:
109The 'heart' of the PTA's case was that because of Ms Vimpany's belief about what occurred in the second altercation during the incident on 27 April 2013 and her opinion of the conduct of the PTA in its investigation process was not only unreliable but that she had formed the opinion that other employees including Mr Hammon had perjured themselves and had conspired against her, the PTA could not have the necessary level of trust and confidence in Ms Vimpany to enable the employment relationship to be restored. Thus, the issue was and is whether the PTA's opinion is objectively reliable. This is not a matter for cross‑examination of the opinion of Ms Vimpany. It was a matter for the Commission to determine.
110When considering whether reinstatement of a claimant is impracticable on grounds of trust and confidence as set out above, an assessment of the nature and level of trust and confidence in an employee by an employer should be considered.
…
113In this matter, Harrison C found that it was not impracticable that Ms Vimpany be reinstated to her former position and found that when Ms Vimpany returns to work trust can be restored between Ms Vimpany and the PTA. Her reasons why she formed this opinion were, apart from the issues related to the incident on 27 April 2013:
(a)Prior to the incident, Ms Vimpany had a lengthy, impeccable and uneventful employment history.
(b)During Ms Vimpany's entire period of employment her performance was unblemished, exemplary, she was of good character, trustworthy and interacted positively with her colleagues.
(c)Ms Vimpany's trustworthiness has not been called into question pre and post the incident. This indicates that potential enforcement proceedings will not be compromised.
(d)A lack of complaints about Ms Vimpany wanting to return to her former position indicates a willingness by Ms Vimpany's supervisors and colleagues to work positively with Ms Vimpany.
…
116When regard is had to all of the evidence before Harrison C it is clear that she erred in that she mistook some of the material facts which, in our respectful opinion, led her to fail to have regard to material matters.
117Whilst, the finding that during Ms Vimpany's entire employment, except for the incident, her performance was unblemished, exemplary, she was of good character, trustworthy and interacted positively with her colleagues is a finding that was open and is a relevant circumstance that was to be given significant weight, there was before Harrison C relevant material circumstances, the effect of which were mistaken by her.
118Commissioner Harrison erred in finding that Ms Vimpany's trustworthiness had not been called into question post the incident which indicates that potential enforcement proceedings will not be compromised. This finding of fact and inference drawn from this finding is inconsistent with the uncontested fact that, at all material times, Ms Vimpany has and continues to maintain that during the incident in question she was not the aggressor. She believes Mr Hammon entered her personal space, yelled and screamed at her. Further, that she still believes this to be the case despite not only the PTA's investigation processes finding otherwise, but also in the face of findings made by Kenner C who rejected her entire version of events. Commissioner Kenner also found that the evidence given by Ms Vimpany in proceedings before him was 'less than frank'. Ms Vimpany's unwavering beliefs about her version of events are a relevant material circumstance. Her beliefs are not only long and strongly held by her, it cannot be said that in the face of those findings made by Kenner C in CR 3 of 2014 that her beliefs have any rational basis.
119The fact that Ms Vimpany's views have no reliable or credible basis is not a matter that was considered by Harrison C. Nor did Harrison C make any assessment of the level of trust and confidence that the PTA should be able to expect of a passenger ticketing officer.
120Whilst no finding of dishonesty has been made against Ms Vimpany, the findings made by Kenner C properly raise a legitimate concern by the PTA of Ms Vimpany's reliability to recount and record events which is a requirement of the duties of a passenger ticketing assistant.
121We do not agree that a positive inference that the lack of complaints about Ms Vimpany returning to work in her former position could be drawn to indicate a willingness by Ms Vimpany's colleagues and supervisors to work positively with her. Whilst some of her colleagues gave highly favourable character evidence and their high regard for Ms Vimpany is an important consideration for which considerable weight should be given, the finding ignores Ms Vimpany's long held and recently restated beliefs about Mr Hammon and the other employees of the PTA that she accuses of perjury and conspiracy. In the face of such serious allegations by Ms Vimpany it does not follow that an inference can be drawn that those persons could work positively with Ms Vimpany.
122For those reasons, we are of the opinion that Harrison C erred in the exercise of her discretion. Not only did she mistake the facts before her, but she also failed to take into account material considerations.
Having concluded that Commissioner Harrison had erred in principle in the respects related, it then fell to Smith AP and Scott ASC to decide how to proceed. They chose, as was clearly open to them and particularly in light of the extensive procedural history of the dispute, to decide themselves what was the appropriate remedy for Ms Vimpany, given the facts. They continued at [122]:
In these circumstances, it is open to the Full Bench to vary the decision of the Commission at first instance and exercise its own discretion in substitution of the discretion at first instance where it has before it sufficient uncontested material.
123In our opinion, the Full Bench has before it such material. Ms Vimpany's stated beliefs are without contest. Whilst most employment relationships are capable of sustaining some doubts that go to trust and confidence, the circumstances raised by Ms Vimpany's stated beliefs of perjury and conspiracy goes to the heart of the employment relationship. These beliefs, together with the potential for her not to provide accurate reports of events that may occur in the heat of the moment, when a requirement to do so is material to the duties of a passenger ticketing assistant, raise circumstances beyond the usual strained relationships between an employee and employer following re-engagement after litigation between them.
124Ms Vimpany's firm belief that not only Mr Hammon and other employees who witnessed the incident in question, but also persons who investigated her conduct and made disciplinary findings against her, engaged in a conspiracy to dismiss her indicates such longstanding substantial acrimony by Ms Vimpany to those persons could be said to constitute substantial damage to, or destruction of trust and confidence between Ms Vimpany and the PTA. Against that circumstance is the opinions of Ms Vimpany's colleagues who gave character evidence in her favour.
125Whilst the opinions of Ms Vimpany's fellow employees gave highly favourable character evidence in her favour, the weight of their evidence is, in our opinion, outweighed by Ms Vimpany's beliefs. Nor does the fact that no other supervisors gave evidence that they could not work with Ms Vimpany have much weight. Against that circumstance is the evidence that if Ms Vimpany is reinstated to the Joondalup line Ms Vimpany could have contact with Mr Hammon and the other employees of the PTA that she has accused of perjury and conspiring against her, when working during special events. Although she contended that she wishes to re-establish good working relationships and put the past behind her, this evidence was contradicted by her in cross-examination when it emerged that her long held beliefs were still strongly held by her. Also of importance, is the circumstance that her allegation of conspiracy relates to all persons who participated in the disciplinary process against her. Even if these circumstances can be said to be outweighed by the fact that Ms Vimpany continued to work as a passenger ticketing assistant for 17 months after the incident competently and without any conflict, the question remains whether Ms Vimpany can be trusted to provide accurate recording of events in her enforcement duties is an issue that goes to the necessary trust and confidence the PTA can [reasonably] expect of its passenger ticketing assistants.
126In light of Ms Vimpany's longstanding and recently restated inaccurate beliefs about what occurred during the incident in question, the opinion of the PTA that it does not have the necessary level of trust and confidence in Ms Vimpany to provide accurate and reliable reports of events, particularly in relation to enforcement matters, this opinion can be said to be genuine, credible and reliable so as to raise doubt as to the future viability of an employment relationship between Ms Vimpany and the PTA.
127As set out in [112] of these reasons, the level of trust and confidence required by a passenger ticketing assistant requires a high level of integrity and accurate reporting of events addressing fare evasion. Consequently, we are satisfied that a relatively high level of trust and confidence is required of such an officer to make the employment relationship between the PTA and a passenger ticketing officer viable and productive.
128In these circumstances, we are satisfied that the PTA has satisfied its onus to prove reinstatement of Ms Vimpany as a passenger ticketing assistant is impracticable.
Having concluded the remedy of reinstatement under s 23A(3) was impracticable in presenting circumstances, Smith AP and Scott ASC then proceeded to evaluate the lesser tier remedy of re‑employment towards Ms Vimpany. They said:
129We are also satisfied that re-employment of Ms Vimpany is impracticable to the other positions sought by the union in these proceedings because Ms Vimpany's beliefs are sufficiently serious to be destructive of the necessary trust and confidence the PTA is reasonably entitled to hold in its officers. In any event, the evidence before Harrison C could not sufficiently support a finding that the PTA has other positions that were available and suitable. Mr Luff's evidence, when questioned about whether Ms Vimpany could be re-employed as a customer service officer, was that they were at that time recruiting for one customer service assistant, but it was a promotional position (that attracted a higher level of pay than a customer ticketing assistant), for which Ms Vimpany would not be considered for such a position as she did not meet the essential criteria, as she had not undertaken a course in safe working accreditation: ts 183 - 184.
Ultimately, Smith AP and Scott ASC concluded:
131In light of these reasons for decision, we are of the opinion that an order should be made to uphold the appeal and that an order should be made to vary the decision by making an order that the PTA pay Ms Vimpany an amount of compensation for loss or injury caused by the dismissal. Prior to making the order, the parties should be heard as to the quantum of compensation that should be paid to Ms Vimpany.
Beech CC gave brief separate reasons. Unlike Smith AP and Scott ASC, he would have dismissed the appeal. Relevantly, however, Beech CC appeared to endorse the underlying principles of the remedies of reinstatement and re‑employment that had been collected and synthesised in the joint reasons. He said:
132I have read in advance the reasons for decision of Her Honour the Acting President and adopt the background to this matter she has set out. I agree with those reasons except her finding that Harrison C failed to have regard to material matters. I shortly state my reasons why I would dismiss the appeal.
Beech CC then moved to his assessment of the underlying facts. He said:
136The fact that Ms Vimpany maintains her view that she was not the aggressor in the incident, despite the PTA's investigation and the finding of Kenner C, cannot be viewed in isolation from the circumstances. The PTA dismissed her because it believed that she had knowingly given false accounts, and had made a false allegation, regarding the events of 27 April 2013. It can be inferred that the PTA did not have sufficient trust and confidence in her because of its belief.
…
142Loss of trust and confidence is the most common argument advanced in support of the proposition that reinstatement is inappropriate, as the Full Bench of the Fair Work Commission stated in Nguyen. It is important to recognise that the exercise of the power in s 23A of the Act to reinstate an unfairly dismissed employee is not focussed upon whether there has been a loss of trust and confidence such that it would not be feasible to re‑establish the employment relationship. Rather it is upon the practicability of the reinstatement.
143What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party: Perkins v Grace Worldwide (Aust) Pty Ltd (191).
144Each case must be decided on its own facts, including the nature of the employment concerned. The evidence that Ms Vimpany worked with her supervisors and other employees as a passenger ticketing assistant without incident and in a professional manner for 17 months after the incident on 27 April 2013, and while holding the opinion she has, is in my experience a unique situation.
As seen, Beech CC, albeit in dissent towards the end result (see [132]), in fact agreed with all but a small component of the joint reasons. In particular, the principles comprehensively collected in [106] in the joint reasons were not controversial. This is an important consideration given that the Union's challenge ultimately directs a strong attack upon the formulation of principles found in [106] of the joint reasons which I have now set out.
The Union's particulars to the ground of appeal
I turn first to the particulars provided to the sole ground of appeal.
The first three particulars are directed at the Full Bench plurality's reasons towards the rejected scenario of Ms Vimpany's potential 'reinstatement' to her former position as a passenger ticketing assistant.
Particular D is seen to be directed at the lesser alternative remedy of re‑employment. That scenario was also rejected by the Full Bench plurality as equally impracticable in this employment relationship.
The particulars as provided by the Union were:
A.The correct construction of section 23A required the Full Bench to start from the position that reinstatement is the primary remedy to be ordered if an employee has been found to have been unfairly dismissed. The Full Bench erred by not proceeding from the basis that there is a clear legislative bias towards it using reinstatement when an employee has been found to have been unfairly dismissed.
B.The term 'impracticable', as it appears in section 23A, ought to have been interpreted according to its plain and ordinary meaning. The Full Bench erred by not looking at the plain meaning of the word 'impracticable' but instead treating the word as a technical one.
C.In order to be satisfied that reinstatement or re-employment was 'impracticable', the Full Bench had to be satisfied that the relationship between the employer and the employee was so bad, poisoned and broken down that it would be impracticable to order reinstatement. The Full Bench erred by instead treating the word 'impracticable' as being able to capture circumstances where there is a mere possibility that the parties may not be able to work together in the future (see pars [125] - [126] of the Full Bench's reasons for decision).
D.The Full Bench found at [129] of their reasons for decision that re‑employment would be impracticable because
(i)re‑employment into a Customer Service Assistant role would result in Ms Vimpany receiving a higher rate of pay; and
(ii)the Public Transport Authority would need to provide Ms Vimpany with an additional week of training in order for her to be able to perform the role.
Neither of those two circumstances fit within the plain meaning of the word 'impracticable'. It is axiomatic from those findings that the Full Bench erred in their interpretation of the word 'impracticable'.
As can be seen these so‑called particulars are essentially argumentative in their character ‑ rather than providing any greater detail to the sole ground. Nevertheless, they provide a starting position of insight to the alleged error.
Observations upon particulars to the ground of appeal
It is not easy to identify from the particulars where precisely within the joint reasons of the Full Bench there manifests an alleged error of law - by way of the asserted misconstruction or misinterpretation of the word 'impracticable'. The Union's arguments deployed in the particulars, largely proceed by taking issue with the end conclusion as to an impracticability in the remedies of reinstatement or of a re-employment for Ms Vimpany. They then seem to work back from that starting premise to assert that there must have been an error(s) of law of a jurisdictional character to support an appeal to this court.
I need to discuss more specifically at this point particulars A, B and C, as regards their elaborations towards the Union's ground of appeal.
Particular A
A reference in particular A to the Full Bench not proceeding from the basis of a 'clear legislative bias' towards reinstatement, in the face of an accepted wrongful dismissal, raises an issue of some problematic nomenclature, as regards the remedy of reinstatement.
The thrust of particular A is seen to be directed towards highlighting the asserted paramountcy of the reinstatement remedy - but not really pointing out where there has been some misunderstanding of the word 'impracticable' displayed by the Full Bench ‑ as regards the plurality's exercise of discretion to not order that remedy.
As now seen, the joint reasons of Smith AP and Scott ASC, at [106](a), (b), (d), (e) and (f), render it absolutely explicit that reinstatement is the primary remedy for an unfair dismissal under s 23A - as, indeed, it is. Smith AP and Scott ASC at those points clearly recognise that reinstatement is ranked as the first tier remedy for consideration above re‑employment before the lowest tier remedy ‑ of compensation to the unfairly dismissed employee.
Smith AP and Scott ASC correctly observe as well that the onus is on an employer to establish why a reinstatement is impracticable for some credible reason. They also observe, again with respect, correctly that a particular employer's strongly held views regarding a deficiency of trust and confidence in the employment relationship, which the employer believes cannot be restored, would not be enough. The employer's concerns cannot be sufficiently grounded just upon an employer's expressed embarrassment, doubts, or expressed workplace friction concerns. None of that would suffice. But Smith AP and Scott ASC clearly recognise in their joint reasons that the employer's views about a necessary level of trust and confidence in the employee need to be shown to be genuine, credible and rationally based.
Implicitly, particular A looks to suggest the observations of Smith AP and Scott ASC did not go far enough. From the Union's perspective, they seem to submit that Smith AP and Scott ASC needed to go further, to also acknowledge a 'clear legislative bias towards … reinstatement' under s 23A.
However, the Union's advocated terminology of 'legislative bias' is a gloss upon the terms of this legislation. Section 23A does not use that expression.
Particular B
By this particular the Union seems to contend that the word 'impracticable', as used in s 23A(4) and s 23A(6), is to be afforded a plain and ordinary meaning. So much may be accepted. But what does the submission pragmatically amount to in context?
In the statutory context of s 23A(4) and s 23A(6), the word 'impracticable' is used as an adverb, applied conjunctionally with the active concepts of a possible reinstatement of the employee or, alternatively, a possible re‑employment of the wrongfully dismissed employee to another position.
It is the intrinsic character of a descriptive word, such as 'impracticable', that it demands an underlying and accompanying factual context for the word to deliver some practical utility in a context of underlying facts. The nature of the word cries out for a context of fact in order to be sensibly evaluated. To say that something is 'impracticable' without more only poses the question - what is it that is said to be impracticable?
The contention of particular B is that the Full Bench plurality erred by treating the word 'impracticable' as a 'technical one', instead of giving it its plain meaning.
The Union's contention necessarily calls for an identification of where within the joint reasons of Smith AP and Scott ASC that this erroneous approach is found to manifest. The omission is not addressed, there or later.
At this point, the real nature of the appellate grievance begins to emerge, essentially as the raising of arguments over rival evaluations made towards underlying facts reached by different members of the Full Bench.
That assessment is reinforced in the dissenting reasons of Beech CC, to which I have now referred. Beech CC would have upheld Commissioner Harrison's first instance reinstatement orders for Ms Vimpany. But even Beech CC in reaching his dissenting evaluation of the facts, between [142] - [144], acknowledged the bespoken factual assessment undertaken towards Ms Vimpany's underlying circumstances that was required in assessing whether or not a reinstatement was impracticable. Beech CC had said:
[142]… Rather it is upon the practicability of reinstatement.
[143]What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.
[144]Each case must be decided on its own facts, including the nature of the employment concerned …
Particular C
This particular is seen to display the Union's advocated necessary standard of 'so bad, poisoned and broken down', as regards evaluating the state of the employment relationship.
The standard is suggested by the Union as regards the asserted level of required satisfaction for the Full Bench before rejecting reinstatement as a remedy, concerning the unsatisfactory state of the employment 'relationship' between employer and employee, and inferentially that this was a higher standard than that (erroneously) used by Smith AP and Scott ASC in reaching their negative assessments towards Ms Vimpany's reinstatement or her re‑employment.
The originating source of this advocated standard, which is not found in s 23A itself, will be discussed. For the present, however, it is enough to observe that the advocated standard is directed at the state of the 'relationship' between an employer and employee as a factual standard. It is not, significantly in my view, directed at showing up any error of interpretation or construction, as regards asserting the true meaning of the word 'impracticable' as it is used in s 23A.
The asserted error of the Full Bench plurality, articulated under particular C, suggests an alleged misdirection of focus - erroneously towards circumstances where there is only a 'mere possibility' that the parties (the employer and the employee) may not be able to work together in the future. That challenge is seen to be directed at [125] - [126] of the joint reasons of Smith AP and Scott ASC. However, as we have now seen in those joint reasons, the phrase 'mere possibility' is not found to be used within those two paragraphs in the plurality's reasons.
The Union's argument that the word 'impracticable' was (mis)understood in that way, as regards the verb 'reinstate', does not easily emerge from an overall reading of what are presented as, essentially, rather orthodox factual observations seen within [125] - [126] of the joint reasons, as set out earlier.
There was a significant elaboration in the Union's position as regards the contentions of these particulars under a written outline of submissions of 26 July 2016 - to which I next turn.
The Union's written outline of submissions of 27 July 2016
The Union's written submissions, under a heading 'The correct construction of s 23A of the Act', provided (page 7) a lengthy extract from statements made to the Legislative Council by the Hon Nicholas Griffiths concerning the Labour Relations Reform Act 2002 (WA).
The submissions refer to an extract from the Hansard for the Legislative Council of 20 June 2002 (pages 11747c - 11774a) (see the Union's submissions, footnote 48). Further references to statements made in the Legislative Council by Mr Griffiths (the Minister in charge of the Bill) follow.
Extracts from these statements by the Honourable Minister reveal that his remarks made before the Committee of the Legislative Council are the root source of the phrase I noted used in particular C of the Union's ground of appeal - concerning the necessary state of the (employment) relationship needing to be so 'bad, poisoned and broken down' that it would be impracticable to order reinstatement. The Hansard material shows the remarks of Mr Griffiths were made during a committee session held in the Legislative Council for the Labour Relations Reform Bill 2002 (WA). They are not from a second reading speech of the Minister concerning that Bill.
The Union's written submissions (at par 29) contend:
Griffiths' statement shows that there is a strong legislative bias towards reinstatement orders being made where an employee has been found to have been unfairly dismissed. The legislative bias adds a gloss to the meaning of the word 'impracticable'. The effect of that gloss is that the standard of proof required to demonstrate impracticability is a high one. A finding that reinstatement is impracticable should only occur in the most exceptional of cases. (my emphasis in bold)
But the submission of the Union contending for this 'gloss' to be given to the meaning of the word 'impracticable' is almost immediately contradicted in the ensuing paragraphs of the written submissions. The Union's submissions at par 30 say:
The word 'impracticable' should be given its plain meaning.
The Union's written submissions advance to canvass and contend for the use of two dictionary meanings for the word.
First, from the Macquarie Concise Dictionary (6th ed), the word 'impracticable' is noted by the Union to be defined as:
1.not practicable; that cannot be put into practice with the available means (an impracticable plan).
2.unsuitable for practical use or purposes, as a device, material, etc.
A second dictionary meaning invoked at par 32 of the submissions (taken from the Australian Concise Oxford Dictionary (5th ed)) states:
a.Impossible in practice; and
b.(of a person or thing) unmanageable.
On the face of it, the two dictionary definitions of 'impracticable', as they are invoked by the Union, contend towards adopting a natural and ordinary meaning of the word 'impracticable'. This serves to highlight a key point I have already made, namely that the word 'impracticable', by its very nature, necessarily requires an associated underlying factual context in order for the word to achieve, in that given context, a functional utility of meaning.
The Union's written submissions at par 33 advance to refer to an extract from a decision of Commissioner O'Sullivan QC, rendered whilst his Honour was sitting as a Commissioner of the Supreme Court in December 1993. This was his decision in Concept Nominees Pty Ltd v The Minister for Mines.[13] His Honour observed, obviously in a different underlying context, that:
It is clear that the word 'impracticable' is a word of wide import, not limited to the concept of physical impossibility.
[13] Concept Nominees Pty Ltd v The Minister for Mines (Unreported, WASC, Library No 930678, 9 December 1993).
So much may be readily accepted.
Commissioner O'Sullivan QC then referred to Jayne v National Coal Board.[14] In that English case Veale J had observed:
'Impracticability' is a conception different from that of 'impossibility'; the latter is absolute, the former introduces at all events some degree of the reason and involves at all events some regard for practice.
[14] Jayne v National Coal Board [1963] 2 All ER 220 [223].
Commissioner O'Sullivan QC also referred to observations by Maule J in Moss v Smith,[15] to the same end. All that may also be accepted.
[15] Moss v Smith (1850) 19 LJCP 225, 228.
Obviously, the word 'impracticable' as it is used in s 23A does not mean 'impossible' (using the guidance provided by the dictionary meanings and from the case authorities cited).
But a basis for a suggestion by the Union that some 'gloss' needs to be applied to the meaning of the word 'impracticable' as it is used within s 23A, arising out of the content of some remarks of a Minister in the Legislative Council during a committee discussion on a Bill, is a misconceived proposition.
An emerging tension between the Union's submissions can now be seen. First, they submit that a legislative 'bias' needs to be added by way of gloss to the meaning of the word 'impracticable', but also, in the next breath, an inconsistent contention that the word 'impracticable' in s 23A carries its plain dictionary meaning. The later position, on my assessment, is correct. The former position is an unsupported assertion that should be dismissed and put to one side as a distracting diversion from the tasks at hand.
At this point, I must digress to isolate out of the Union's written submissions some more arguments it has directed against a use in the plurality's reasons of a decision of the former Industrial Relations Court of Australia, Perkins v Grace Worldwide (Aust) Pty Ltd.[16] It is necessary to examine that decision in greater detail before looking at the Union's assessment regarding how the decision was misapplied by the Full Bench as regards Ms Vimpany.
[16] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.
Perkins
In Perkins, the word 'impracticable' was deployed as a potential 'block' against the ordering of the reinstatement of an unfairly dismissed employee. The Industrial Relations Court of Australia, comprised of Wilcox CJ, Marshall and North JJ, gave extensive consideration to the meaning of the word 'impracticable' which was used in the former Industrial Relations Act 1988 (Cth) s 170EE(2). Although in different terms to s 23A, the decision in Perkins provides valuable insights towards the meaning of the word 'impracticable' in an employment law context.
Within s 170EE(2) the term 'impracticable' had been used then in the federal industrial relations sphere as a constraint against deploying the remedy of reinstatement for an employee who had been unfairly dismissed.
After Perkins in 1997, the relevant Commonwealth legislative industrial employment legislation altered. The adverb used in the Commonwealth legislation, vis-à-vis the verb 'reinstatement' of an employee, changed. The new word used in the federal sphere became 'inappropriate' instead of 'impracticable': see s 170CH(3) of the Workplace Relations Act 1996 (Cth) post 31 December 1996 and s 170CH(6).
The Workplace Relations Act was then replaced. The current Commonwealth legislation, namely s 390(3)(a) of the Fair Work Act 2009 (Cth), continues to use the term 'inappropriate'.
In Perkins, the Industrial Relations Court of Australia discussed a number of cases which had considered the meaning of the word 'impracticable' in the Commonwealth industrial relations legislative context of repercussions of an employee's unfair dismissal. The decisions canvassed included Liddell v Lembke (t/a Cheryl's Unisex Salon),[17] Abbott‑Etheringtonv Houghton Motors Pty Ltd,[18] Patterson v Newcrest Mining Ltd[19] and Nicolson v Heaven & Earth Gallery Pty Ltd.[20]
[17] Liddell v Lembke (t/a Cheryl's Unisex Salon) (1994) 1 IRCR 466; (1994) 56 IR 447, 466 (Wilcox CJ, Keely & Gray JJ).
[18] Abbott‑Etheringtonv Houghton Motors Pty Ltd (1995) 63 IR 394 (Marshall J).
[19] Patterson v Newcrest Mining Ltd (1996) 68 IR 419, 420 (Wilcox CJ).
[20] Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 57 IR 50 (Wilcox CJ, von Doussa & North JJ).
Wilcox CJ, Marshall and North JJ in Perkins (189 - 190) referred to and approved of earlier observations made by Wilcox CJ in Nicolson. The Chief Justice said:
It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word 'impracticable' requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee and to evaluate the practicality of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment, or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement, notwithstanding that the job remains available [210].
Whilst it is clear that the Commonwealth industrial relations legislative regime has sustained considerable changes since 1994, the approved observations in Perkins are still used in that sphere when addressing whether or not a reinstatement is an appropriate remedy for an unfair dismissal event, in the Commonwealth regime.
The continuing relevance of the observations in Perkins towards the word 'impracticable' was relatively recently reaffirmed by the Full Bench of the Commonwealth Fair Work Commission in Nguyen & Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter.[21] Nguyen was a decision of Ross J (President), Gostencnik DP and Wilson C, delivered in October 2014.
[21] Nguyen & Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198.
Shortly stated, issues over whether or not a reinstatement or, indeed, a re‑employment is impracticable or otherwise, in the underlying circumstances of a particular employee's unfair dismissal from their employment are still to be answered in the Commonwealth industrial relations sphere as they are in this state's industrial relations regime, by the court or tribunal undertaking a bespoken evaluation of the underlying facts as they manifest for each particular employment dismissal situation.
As was observed in Perkins:
Each case must be decided on its own merits … In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case [191].
With those observations concerning the status and contemporary relevance of Perkins, I can return to the balance of the Union's written submissions.
The Union's written submissions as to a misapplication of Perkins by the Full Bench plurality
The Union's written submissions advance to contend:
38.Smith AP and Scott ASC in paragraph [106] of their reasons for decision, set out the test that they believe the WAIRC should apply when determining whether reinstatement was impracticable where the employer had raised the issue of trust and confidence. The majority imported that test from the decision of the full bench of the Fair Work Commission in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen).
39.The Full Bench of the Fair Work Commission in Nguyen set out their test for trust and confidence in circumstances where the statutory context required them to consider whether reinstatement was 'inappropriate'.
The Union's contention (under par 38 above) is that [106] of the joint reasons displays the importation of a test that was used by the Full Bench of the Fair Work Commission. Footnote 54 to the Union's submissions asserts: 'Compare paragraphs [105] and [106] of the reasons for decision'. But as has now been seen from the text of [106] of the joint reasons set out earlier, what was said was expressed in careful, elaborate and comprehensive terms. The sub‑criteria in [106](a) ‑ (f) present as a body of carefully assembled principles, directed at an exercise of a remedial discretion - whilst evaluating whether or not to order reinstatement of an unfairly dismissed claimant. Where one presenting circumstance is an assertion by the employer that there has been a disqualifying loss of trust and confidence in the unfairly dismissed employee, the discretion as regards the appropriate remedy must be exercised in a principled fashion and with care.
Scrutiny of the sub‑principles identified at [106](a) ‑ (f) reveals a level of similarity as between [106](c), when contrasted to the first bullet point from a quotation in the joint reasons from Nguyen - seen at the immediately preceding paragraph, [105], in the joint reasons. But that was not at all inappropriate. The proposition sourced from Nguyen is not out of place. The Union's wider proposition of 'wholesale importation' as contended for is not established if the full content of [106] and its sub‑paragraphs is read fairly.
Overall, the multiple principles collected and expressed under [106] of the joint reasons, by my assessment, display a considered and accurate synthesis by Smith AP and Scott ASC of their preceding extensive consideration of case authority and precedent. By my assessment, [106] appropriately and accurately collects the legal principles concerning a discretionary deployment of the statutory power to reinstate an unfairly dismissed employee - in circumstances where the requisite future level of trust and confidence in the employee in a resumed employment relationship is a relevant issue bearing upon the overall exercise of the remedial power in context.
The six sub‑criteria found at [106] of the joint reasons are seen to be a synthesis of principles extracted from the multiple case authorities canvassed between [79] and [105] of the joint reasons. Numerous authorities were earlier discussed, including Perkins and Nguyen. But there was no confusion or conflation of redundant case authority in the joint reasons, as would appear to be suggested by the Union's written submissions. Nguyenwas decided in 2014, in an evolved environment of Commonwealth industrial relations laws (where, as mentioned, the word 'inappropriate' is now used in the current legislation instead of the word 'impracticable' as the relevant brake against a utilisation of the remedy of reinstatement). That changed Commonwealth legislative environment was not a circumstance overlooked by Smith AP and Scott ASC. At [94] they clearly said '[t]he test for reinstatement at that time in the federal jurisdiction pursuant to the Industrial Relations Act 1988 (Cth) was practicability'.
Notwithstanding the significant legislative changes in the Commonwealth industrial legislative sphere, Nguyen in 2014 still acknowledged the continuing relevance of the discussion undertaken concerning the impracticability of a potential reinstatement, as had been undertaken by the Industrial Relations Court of Australia in Perkins, applying Wilcox CJ's observations from Nicolson.
In Nguyen, the Fair Work Commission (Full Bench) said:
As the Full Bench of the AIRC observed in Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 although Perkins was decided under the IR Act, the Court's observations reproduced above [concerning the effect of a loss of trust and confidence on the question of the practicability of reinstatement at page 191 - 192 of Perkins] remain relevant to the question of whether reinstatement is appropriate in a particular case [22].
It may now be better appreciated that the references to Perkins and to Nguyen in the Full Bench plurality's reasons in [106] were not deployed out of place. They were not inappropriate, viewed in an overall context of the extensive synthesis of principle that was assembled at that point by the joint reasons.
Other challenges to the plurality's reasons
The Union's written submissions at pars 40 to 44 descend to an attempted factual dissection of the joint reasons, particularly concerning [125] and [126]. Some arguments raised appeared to be directed at expressing an overall dissatisfaction with the end outcome, as regards not ordering reinstatement and re‑employment, rather than identifying error in the construction or interpretation of the meaning of the word 'impracticable' as that term is used in s 23A of the IR Act by the joint reasons. This challenge by the Union culminates as:
45.The consequence of Smith AP and Scott ASC applying the test from Nguyen (which was framed in the context of the word 'inappropriate') was that it lowered the otherwise high standard of proof that was required by the word 'impracticable' in s 23A of the Act.
46.The majority erred in its interpretation of the word 'impracticable'. That error caused them to find that an award of reinstatement was impracticable despite the relationship between the respondent and Ms Vimpany not having reached the threshold of 'so bad, poisoned and broken down that it would not be "practicable" to order reinstatement'. (emphasis added)
47.There was nothing unusual about the minority reasoning of Beech CC. Beech CC obviously appreciated that the evidentiary threshold to establish inappropriateness was higher than what was set by the majority through their application of the test in Nguyen.
During verbal submissions by the Union's counsel at the appeal, an asserted error in the construction or interpretation towards the word 'impracticable' in the joint reasons emerged. As articulated, the challenge is seen as directed at the first bullet point of the extract from Nguyen (being the first bullet point cited in [105] of the joint reasons) and its deployment under the sub‑criteria 106(c) in the joint reasons, where this had been stated:
Trust and confidence can be a relevant factor to consider when considering whether reinstatement is impracticable. Whether it is a relevant factor will depend upon the factual circumstances of a particular matter. Trust and confidence is not the sole criterion or even a necessary one in determining whether reinstatement is impracticable.
This principle may be accepted to bear a close resemblance to the first bullet point proposition cited from Nguyen. Nguyen, in turn, linked this principle back to Tenix Defence Pty Ltd v Galea[22] (see footnote 31 of Nguyen).
[22] Tenix Defence Pty Ltd v Galea (Unreported, AIRC, Library No PR928494, 11 March 2003) [7] - [8].
But the Full Bench of the Fair Work Commission in Nguyen had crafted that proposition from a number of sources. In particular, observations upon a need for a level of trust and confidence in the employee, when measuring the practicability of reinstatement as a possible remedy, may be seen at [21] of Nguyen which sourced back to the decision in Perkins. That was when s 170EE(2) of the Industrial Relations Act 1988 (Cth) did use the word 'impracticable'. It is not a controversial proposition that the work done by that word as regards its relationship with the verb 'reinstatement' (or with 're‑employment') should be assessed in the environment of the underlying presenting factual circumstances of a particular case.
Proposition [106](c) of the stated reasons of Smith AP and Scott ASC presents only as one sub‑element, manifesting amongst the other propositions assembled within [106] of the joint reasons. As formulated, it is, in my assessment, entirely orthodox. So much is, in effect, acknowledged by the dissenting conclusion of Beech CC at [132] ‑ agreeing with the plurality's reasons (save for the finding that Commissioner Harrison had failed to have regard to material matters).
In other words, the formulation of principles as was ultimately identified at [106](a) - (i) of the joint reasons was, in effect, unanimous by that Full Bench. The only controversial point for that Full Bench was an 'application' of the uncontroversially assembled principles to the underlying facts. That led Beech CC to his different conclusion. Reaching his end position, however, Beech CC said:
Whether that standard is reached in any particular case must depend upon the circumstances of the particular case [143].
Re-employment submission
A last aspect of the Union's written submissions was directed towards the alternative remedy of re-employment to another position. This is linked back to particular D of the ground of the appeal. The challenge is directed against the content of [129] of the joint reasons - where the discretion of Smith AP and Scott ASC was re-exercised, as regards the second tier potential remedy of re-employment, once the first tier reinstatement remedy had been assessed as impracticable.
However, the content of the Union's arguments directed against considerations identified in the joint reasons in this respect, only display yet again what is, on analysis, the bare grievance against the application of law to facts, against the end outcome ‑ rather than pointing out any real mistake or error of law in the reasons, arising from a misunderstanding of the term 'impracticable' within s 23A.
It remains to evaluate what were somewhat differently directed extra verbal submissions by counsel for the Union only advanced at the appeal hearing.
Further arguments by the Union's counsel at the hearing
Mr Fogliani, counsel for the Union, commenced his argument by stating that if the Full Bench was not assessed by the Court to have erred in its interpretation of the word 'impracticable' within s 23A, that this would not be the end of the matter. Mr Fogliani contended that there remained two further challenges addressing a distinct issue of construction, as he termed it.
This was a curious submission. As framed, s 90(1)(b) of the IR Act in relation to an appellant needing to show an alleged error as regards statute law does not, on its face, draw a distinction as between interpretation and the construction of legislation. In other words, the qualifying criterion to engage the appellate jurisdiction of the Industrial Relations Court of Australia is to show an error as regards the meaning of the legislation by the Full Bench. Mr Fogliani's submission to the effect that the concept of a statutory 'interpretation' is a process somehow said to be conceptually different to the concept of 'construction', remained an undeveloped assertion. There is no such distinction, in my view, as regards ascertaining a true legislative meaning.
The next argument by Mr Fogliani was that the concept of trust and confidence (in the employment relationship) did not fall at all within the ambit of the term 'impracticability', as that term is used within s 23A (see ts 3). Plainly, by reference to many case authorities canvassed to date, this submission is also misconceived.
Mr Fogliani's third argument, put as his lesser alternative, was that if the notion of trust and confidence in an employment relationship were relevant to an assessment of impracticability, nevertheless the joint reasons of Smith AP and Scott ASC erred in relation to how they had evaluated 'the meaning of "trust and confidence"'.
This lesser preferred argument of counsel was tied to the assistance Mr Fogliani sought to gather from the ordinary meaning of the word 'impracticable', from the two dictionary definitions earlier mentioned - but then, also coupled by him to the extracts from the committee discussion in the Legislative Council collected in the Union's written submissions, which I have now discussed.
Mr Fogliani submitted (ts 4) that the Hansard material 'helps confirm the ordinary meaning of the word "impracticable"'. As now seen, that submission is immediately inconsistent with par 29 of the Union's written submissions, advocating for a contended 'gloss' to the meaning of that word.
At all events, I would assess the submitted Legislative Council committee discussion material concerning the Labour Relations Reform Bill 2002 (WA), to be of no assistance in the present task. In Attorney General for Western Australia v Her Honour Judge Schoombee,[23] Martin CJ, with whom Newnes and Murphy JJA agreed, referred to observations of Gleeson CJ in Singh v Commonwealth of Australia,[24] to this effect:
[C]are must be taken to avoid scrutiny of parliamentary debates degenerating into 'an exercise in psychoanalysis of the individuals involved in the legislative process'.
Martin CJ continued:
Although extrinsic materials which have been carefully considered and prepared by those involved in the drafting process (such as explanatory memoranda or the Second Reading speech) might be considered more reliable guides to legislative intention in the case of ambiguity than casual remarks made on the spur of the moment during parliamentary debate that may have a political imperative, there are nevertheless risks in placing too much reliance upon extrinsic materials of this kind: see Commissioner of Taxation v Anstis [2010] HCA 40; (2010) 241 CLR 443.
And:
When regard is had to the materials relating to the passage of this legislation through Parliament, in this case, like many others, there are conflicting and contradictory indications which might be drawn from different portions of the materials …
[23] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29.
[24] Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322 [19].
The observations made towards the materials submitted in Attorney General for Western Australia v Her Honour Judge Schoombee (concerning the Criminal Injuries Compensation Act 2003 (WA)), might equally have been directed towards the content of the 31 submitted pages of committee debate from the Legislative Council (20 June 2002, 11747c - 11774a) to which we are directed under Mr Fogliani's submissions. They are an equally unhelpful distraction.
Determination
The plain, ordinary meaning of the word 'impracticable', used in its present context within s 23A(4) and s 23A(6) of the IR Act, is necessarily tied to the underlying contextual circumstances of fact concerning Ms Vimpany's employment in the present case. This requires a bespoken factual evaluation regarding the assessed impracticability in overall context of Ms Vimpany's possible reinstatement, or her possible re‑employment to another position with the PTA as a matter of discretion as to remedy. That was the nature of the exercise conducted by all members of the Full Bench. The observations of the Industrial Relations Court of Australia in Perkins concerning the meaning of the word 'impracticable' used within the framework of the then Industrial Relations Act 1988 (Cth) remain instructive. The observations of Wilcox CJ from Nicolson (210) as approved by Perkins, call for an evaluation as to the practicability of a reinstatement order in a 'common sense way'. The overwhelming logic of that approach has not diminished in 2017.
Mr Fogliani's point of construction sought to submit, as I understood his argument, that one of the sub‑principles within [106] of the joint reasons, namely the proposition in [106](c), was wrong. This was said to follow on the basis that trust and confidence could never be a relevant factor to consider in evaluating whether reinstatement was impracticable. The submission must be rejected as untenable. I have already referred to the history of the derivation for the content of the proposition and a misconceived argument as to its importation from Nguyen.
But in developing these challenges, Mr Fogliani then submitted:
I suppose, the discussion or issue about 'impracticability' just to 'trust and confidence', where, as your Honour said earlier, it requires a broad consideration of everything, and we say that 'trust and confidence' shouldn't be part of that consideration, but if it is, based on previous decisions from different jurisdictions, well, it shouldn't have been the sole criterion of what the Full Bench was considering.
Now, in this case that's all they considered within 'impracticability'. They only looked at 'trust and confidence' … By doing that, they misunderstood what the test required them to do, which is the broader consideration about, overall, was it impracticable to reinstate or re-employ Ms Vimpany (ts 8).
Mr Fogliani's submission misrepresents the formulation of legal principles assembled under [106] in the joint reasons (with which Beech CC, albeit dissenting, had agreed). It is simply not open to read [106](c) of the joint reasons as somehow suggesting that the issue of a required level of trust and confidence in an employee by the employer, had been assessed by the Full Bench as the 'sole' factor in the evaluation towards whether a reinstatement was impracticable or not, in particular circumstances. In fact, [106](c), read fairly, states exactly the opposite to that proposition.
Commonwealth Bank of Australia v Barker
A further verbal submission advanced in the alternative by Mr Fogliani for the Union, was that if an employer's level of (subsisting) trust and confidence in the employee was accepted to be a live consideration, there had been a misunderstanding by the Full Bench of the concept.
The submission was supported by the invocation of a recent decision of the High Court of Australia, Commonwealth Bank of Australia v Barker.[25] That decision saw the High Court's unanimous rejection of a contended implied term argued as being found in all employment contracts, as a matter of law. But the unanimously rejected implied term in Barker was to the effect:
[N]either party will, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between them.
[25] Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169.
See also [15] of the reasons of French CJ, Bell and Keane JJ (182).
The Union's submission concerning Barker only emerged during Mr Fogliani's argument. He submitted:
The problem with that finding is it undermines a key plank of what was said by the Full Court in Perkins, which is saying, 'Well, it is an implied term because it's necessary in the employment relationship'; but the High Court pulling the plank out, saying, 'Well, no, we don't think that trust and confidence is necessary to make the employment relationship work', that totally undermines Perkins. And while there's a big chain of authority that referred to Perkins right up to the High Court's decision in Commonwealth Bank v Barker, since that decision it hasn't been reconsidered by a court whether or not trust and confidence as a relationship issue is something that's necessary.
So this would be the first time since Commonwealth Bank v Barker where a court is going to have to consider whether or not trust and confidence is an element of the relationship, not of the contract, actually exists. Now, as we've seen from Nguyen, Perkins has lived on in the Fair Work Commission, that we say that's not a court, so this court is not bound by that decision. The Fair Work Commission is in the administrative arm of government, not in the hierarchy of courts of the Commonwealth (ts 9).
But, with respect, the submission displays a misunderstanding of the Barker decision. In the first place, the nature of the contractual term sought to be implied as a matter of law in Barker was not, as was suggested, inconsistent with a recognition of an employee's duty of trust and confidence owed to an employer in the employment relationship.
The rejected implied term in Barker contended for what was an implied term of a wider and more mutual dimension. Kiefel J (as she was then) explained the distinction in Barker:
It is necessary in the first place to distinguish between an employee's duty of trust and confidence, which the law has for a long time implied in contracts of employment, and the term recognised in Malik. The former is not concerned with the obligations on the part of an employer, but with obligations of fidelity on the part of an employee to his or her employer, breach of which may justify dismissal. The term of trust and confidence recognised in Malik, on the other hand, imposes obligations on an employer not to engage in 'trust-destroying conduct' which may sound in damages if breached [63].
Her Honour then referred to an earlier decision in the High Court, Blyth Chemicals Ltd v Bushnell,[26] observing:
[26] Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, 72 - 73, 81 - 82.
[T]he Court reiterated what had been said in Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 370, 372 and 378 concerning the maintenance of confidence between employer and employee. Dixon and McTiernan JJ said that any conduct on the part of the employee which is incompatible with his duty, involves conflict between his interests and that duty or 'is destructive of the necessary confidence between employer and employee' is a ground of dismissal [65].
Kiefel J observed in Barker:
The duty of trust and confidence of which these cases speak is not some abstract concept. It refers to conduct, on the part of an employee, which is contrary to the interests of the employer and serious enough to have the effect that the employer could not reasonably be expected to have confidence in the employee. The duty reflects an essential aspect of the relationship between employer and employee. While trust and confidence is maintained, the relationship endures. In that sense, the employee's duty may be said to be directed to the maintenance of the relationship. Yet the law recognises that, where a point of no confidence is reached, it would be intolerable for the employer to continue with the relationship. In such a circumstance, termination of the employment is justified [66].
Her Honour continued:
No decision of this Court has dealt with the question whether the term of trust and confidence recognised in Malik should be implied in employment contracts in Australia [67].
Her Honour concluded:
The words adopted in Malik as to the formulation of the terms of trust and confidence, to be applied in connection with the duties of employers, did not have their origin in decisions of the ordinary courts, but rather those of employment tribunals exercising statutory powers with respect to unfair dismissals [68].
The same fundamental distinction between the different terms is apparent in the joint reasons of French CJ, Bell and Keane JJ at [30] and [41].
All members of the High Court in Barkerhad rejected a contended implied term as had been propounded by reference to the House of Lords decision in Malik v Bank of Credit & Commerce International SA (in liq).[27]
[27] Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20; 3 All ER 1.
Consequently, the implicit premise of Mr Fogliani's verbal submission towards, in effect, the 'game changing' significance of the High Court's rejection in Barker of that mutual implied term of trust and confidence, is misplaced. Nothing has relevantly changed. Barker has not detracted from any established underlying principles of employment law. There is nothing in Barker to suggest that the observations in Perkins, as recently used by the Full Bench of the Fair Work Commission in Nguyen (see [22]) towards whether a non‑reinstatement of an employee on the basis of a perceived lack of sufficient trust and confidence held by the employer in that unfairly dismissed employee, against a reinstatement or re-employment assessed as impracticable or not in a particular case, have lost any contemporary relevance.
Conclusion
Prior decisions in this court have canvassed the confined jurisdictional scope of s 90(1)(b) of the IR Act. In BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers,[28] Le Miere J discussed the limited ambit of the provision. His Honour had discussed prior case authority. His Honour observed:
[109]Appealable questions of law may arise from the reasoning of the Full Bench on the way to its ultimate conclusion. If the Full Bench were, for example, to misinterpret the provisions of the Act, defining 'employee' or 'employer' in the course of deciding that Mr Brandis was not employed under a contract of employment with BHPB that would be an error of law in the construction or interpretation of the Act and would be appealable under s 90(1)(b).
[110]An appeal cannot be made, however, on the ground that there has been an error in the construction or interpretation of the Act where the Full Bench has merely applied law which it has correctly understood to the facts of an individual case. It is for the Full Bench to weigh the relevant facts in the light of the applicable law.
[28] BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49; (2006) 151 IR 361.
In Landsheer v Morris Corporation (WA) Pty Ltd,[29] I applied Le Miere J's observation at [53], concluding at [83] in those reasons:
What unfolded before the Full Bench, essentially, saw an application of uncontroversial contractual law principles to the particular presenting facts before the Industrial Commissioner and then before the Full Bench.
Le Miere J agreed with those observations (see [32]). Buss J reached a similar conclusion (see [26] and [27] of his Honour's reasons).
[29] Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186.
I note as well the same constraining sentiments against jurisdiction were applied in a more recent decision Public Transport Authority for Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch.[30]
[30] Public Transport Authority for Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2015] WASCA 150 (S) [10], [13], [20].
Upon the present application, it is contended by the Union that the majority of the Full Bench erred by a construction or interpretation of the word 'impracticable' in s 23A and thereby erred in law. However, the close review of the majority's reasons now undertaken shows that there was no such misunderstanding or misinterpretation of the term 'impracticable', as that word is used within s 23A(4) or s 23A(6) of the IR Act.
What unfolded concerning Ms Vimpany before the Full Bench only reflects a day‑to‑day application of statute law, correctly understood and identified - then applied to Ms Vimpany's unique underlying facts. That is apparent from the joint reasons of Smith AP and Scott ASC and the reasons of Beech CC. The 2:1 difference of views in the Full Bench is hardly unusual given the word 'impracticable', as used in s 23A(4) and s 23A(6), is essentially an adverb requiring factual assessments and evaluations to be rendered in context, concerning a possible reinstatement or possible re‑employment. The task commands the application of s 23A to an underlying assembly of diverse facts as they present in each unfair dismissal situation. This is a case specific exercise. The word 'impracticable' is not defined by the IR Act. It carries a natural and ordinary meaning from within the overall context of its deployment within s 23A and then, in the overall framework of pt 2 div 2 of the IR Act as a whole.
As now seen, the members of the Full Bench rendered explicit observations towards the inherently factual nature of the remedial exercise at hand concerning what was an exercise of their discretion towards selecting the appropriate remedy in the particular circumstances of a scenario of wrongful dismissal of that employee, Ms Vimpany.
The jurisdictional threshold to advance a challenge in this court against the majority decision of the Full Bench has not been surmounted. Consequently, the Union's appeal must be dismissed.
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