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[2018] FWCFB 7565
Fair Work Commission (Full Bench)
2018-12-13
Original judgment source is linked above.
s.604 - Appeal of decision
Toyota Motor Corporation Australia Limited T/A Toyota
Appeal against decision [2018] FWC 4192 and order PR609045 of Commissioner Harper-Greenwell at Melbourne on 16 July 2018 in matter number U2016/2952 - permission to appeal granted - appeal upheld - Commissioner's decision relating to remedy quashed - remedy to be re-determined.
[1] On 16 July 2018, Commissioner Harper-Greenwell issued a decision[1] in which she found Mr Adrian Tainsh had been unfairly dismissed from his employment with Toyota Motor Corporation Australia Ltd (Toyota) and ordered that Toyota pay him the amount of $68,350 plus applicable superannuation, less appropriate taxation as required by law.[2]
[2] Mr Tainsh seeks permission to appeal the Commissioner's decision on remedy, the Commissioner having refused to reinstate him.
[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Fair Work Commission's (the Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
[4] Mr Tainsh was employed by Toyota in the position of General Foreperson in the Paint Shop at the time of his dismissal. Mr Tainsh worked the afternoon shift and, as General Foreperson, had overarching supervisory responsibility for approximately 69 team members. The chain of command in the Paint Shop at the time of his dismissal was Team Member, Team Leader, Group Leader, General Foreperson, Department Manager and Plant Manager. Mr Tainsh had been employed by Toyota for approximately 28 years at the time of his dismissal.
[5] Toyota dismissed Mr Tainsh with immediate effect on 2 June 2016 with 5 weeks' pay in lieu of notice following an investigation by Ms Francis O'Brien QC in relation to a range of matters concerning activities in the Paint Shop. The letter dated 2 June 2016 from Toyota to Mr Tainsh (the termination letter) stated Mr Tainsh had failed to perform his supervisory duties as General Foreperson in a consistent and fair manner across the Paint Shop, improperly exercised the power and authority held by him in his position by favouring certain team members over others because of his personal relationships with those team members, fostered an exclusionary culture within the Paint Shop and engaged in conduct which breached Toyota's Workplace Relationships Policy and Procedure, its Leave Without Pay (LWOP) policy, the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2015 (Workplace Agreement) and his duty of good faith to Toyota.[4]
[6] The termination letter also stated that Toyota had placed a high level of trust in Mr Tainsh as a General Foreperson with significant authority and that he was expected to demonstrate competent supervisory abilities and leadership in relation to Toyota's workplace culture, workplace policies, the Workplace Agreement and the 'Toyota Way'. It was further stated in the termination letter that based on his conduct, Toyota had lost all trust and confidence in Mr Tainsh's ability to perform his role as General Foreperson and that he had unacceptably failed to meet the standards and behaviours expected of him.
[7] The Commissioner firstly considered five allegations against Mr Tainsh and concluded as follows:
(a) As to Allegation 1 (that Mr Tainsh inappropriately granted two periods of leave without pay to Ms April de Leon, a Temporary Fixed Term (TFT) employee), while the Commissioner found it was partially substantiated, she also found that the failure to follow Toyota's LWOP policy appears to have been common practice throughout the Production area;
(b) As to Allegation 2 (that Mr Tainsh was in a relationship with Ms de Leon at the time the leave was authorised), the Commissioner found there was an absence of evidence demonstrating that Mr Tainsh was in a relationship with Ms de Leon at the time the leave was granted and did not find that he was engaging in inappropriate behaviour with her;
(c) As to Allegation 3 (Mr Tainsh inappropriately renewed Ms de Leon's TFT contract), the Commissioner was not persuaded it was substantiated;
(d) Allegation 4 (Mr Tainsh inappropriately granted leave without pay to another TFT employee, Ms Chantelle Ngo) the Commissioner also found there was an absence of evidence demonstrating that Mr Tainsh was in a relationship with Ms Ngo at the time her leave was granted and did not find that he was engaging in inappropriate behaviour with her; and
(e) Allegation 5 (Mr Tainsh had been alone with Ms Ngo in the lunch room with the lights off during ordinary hours), whilst the Commissioner was satisfied that Mr Tainsh would sit with Ms Ngo in the group room with the lights out, she was not satisfied that this behaviour on its own was sufficient to conclude that he fostered an exclusionary culture within the Paint Shop and engaged in conduct which breached Toyota's Workplace Relationships Policy and Procedure or the Workplace Agreement.
[8] The Commissioner also considered what Mr Tainsh referred to as 'Tainsh Allegation 6' which was said to be his knowledge of conduct of Mr Homer Abarra, which he contends was taken into account by Toyota. As to this, the Commissioner concluded at [186] of the Decision:
"...This allegation was not raised with Mr Tainsh prior to his dismissal and indeed does not appear to have been raised as a separate allegation by TMCA, rather it was a factor that they considered in determining the severity of Mr Tainsh's conduct. I have taken into account the evidence before me as to Mr Tainsh's knowledge of Mr Abarra's conduct and am not satisfied that this 'allegation' amounts to a valid reason for Mr Tainsh's dismissal, even in conjunction with the allegations that I have found to be substantiated."
[9] On the basis of these findings the Commissioner was not satisfied there was a valid reason for Mr Tainsh's dismissal related to his conduct (s.387(a) of the Act).[5]
[10] The Commissioner found Mr Tainsh was notified of Allegations 1-5 outlined above and that he was given an opportunity to respond to those reasons prior to his dismissal (ss.387(b) and (c) of the Act).[6]
[11] As to Tainsh Allegation 6, the Commissioner noted the evidence of Mr Geoffrey Kershaw that in determining whether to dismiss Mr Tainsh, he took into consideration that Mr Tainsh had not managed Mr Abarra's behaviours and had, by his own conduct, contributed to the perception that management was either indifferent to, or supportive of, 'exclusionary' conduct towards team members. The Commissioner found that this allegation was not put to Mr Tainsh and he was not provided with an opportunity to respond to it.[7]
[12] It was noted by the Commissioner that it was not contended that Toyota had refused to allow Mr Tainsh to have a support person present and that he had a union representative present at his investigation interview and at each of the meetings that followed (s.387(d) of the Act).
[13] As to whether Mr Tainsh had been warned about unsatisfactory performance prior to his dismissal (s.387(e) of the Act), the Commissioner noted both Mr Tainsh's contention that the fact that he had not received any disciplinary warnings prior to being dismissed militated in favour of a finding that the dismissal was unfair and his submission that the reasons relied on by Toyota were allegations about his performance as a supervisor, such that because he had not been warned in relation to these matters his dismissal was unfair. Having regard to her findings in relation to s.387(a) of the Act, the Commissioner agreed with the submission of Mr Tainsh in relation to Allegations 1 and 4.
[14] The Commissioner considered the failure to appropriately enforce the LWOP policy and comply with the Workplace Agreement was a performance concern but found it was a problem throughout the Production group that had been condoned by Mr Tainsh's own manager. The Commissioner further found:
(a) Toyota provided no evidence that they had taken steps to address this non-compliance within the Production group until after Mr Tainsh had been stood down;
(b) Mr Tainsh had not previously been provided with warnings in relation to this behaviour; and
(c) In consideration of Mr Tainsh's long tenure and that the behaviour had been condoned by his own manager, this particular conduct lent itself to performance management at most.[8]
[15] In light of the size of Toyota's enterprise and the human resource management specialists and expertise available within Toyota's enterprise, the Commissioner effectively accepted that the factors in ss.387(f) and (g) were neutral considerations.[9]
[16] The Commissioner considered a range of other relevant matters (s.387(h) of the Act), including:
(a) The submission of Mr Tainsh that the decision to terminate his employment was disproportionate to the gravity of the alleged misconduct and that had he not been dismissed, he would have been entitled to a substantial redundancy package and to participate in the career transition Drive Program;
(c) Mr Tainsh's length of service, unblemished record and that he had never been disciplined;
(d) The submission of Toyota that while Mr Tainsh's length of service was taken into account, it was not sufficient to mitigate against termination given the seniority of his role and the gravity of his misconduct; and
(e) The submission of Toyota that in relation to Mr Tainsh's pending redundancy, the potential harshness of the termination must be balanced against the management prerogative to enforce behavioural standards.
[17] The Commissioner's ultimate findings were:
"Having considered each of the matters specified in section 387, I am satisfied that the dismissal of Mr Tainsh was unjust and unreasonable. TMCA did not have a valid reason for the dismissal of Mr Tainsh and, in light of the numerous mitigating factors, Mr Tainsh's dismissal was particularly harsh."[10]
[18] Having made these findings, the Commissioner then turned to the question of remedy. Mr Tainsh sought an order for reinstatement, the restoration of lost pay and an order to maintain continuity of service. Toyota submitted reinstatement was not appropriate in the circumstances.
[19] The Commissioner found that reinstatement was not appropriate in the circumstances, taking into account her findings that Mr Tainsh:
(a) repeatedly downplayed the seniority of his position and sought to minimise the role that he had in the renewal of contracts and the granting of leave;[11]
(b) gave evidence which was evasive and on a number of issues tended to give answers that avoided answering the questions he was being asked;[12]
(c) was engaging in a relationship of a personal nature with a Temporary Fixed Term (TFT) employee, which was of concern because there was a significant difference in their positions, he was responsible for supervising her and he had not disclosed this to management;[13] and
(d) failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group.[14]
[20] The Commissioner considered that these findings were sufficient to establish an order for reinstatement was not appropriate and that an order for the payment of compensation was appropriate in the circumstances.
[21] Having considered the question of compensation, the Commissioner ordered that Toyota pay Mr Tainsh $68,350 plus applicable superannuation, less appropriate taxation as required by law.[15]
[22] Mr Tainsh outlined 10 grounds of appeal in the notice of appeal which we set out below, although we note that grounds 3 and 8 were not ultimately pressed:[16]
(a) her finding that Mr Tainsh "...downplayed the seniority of his position and sought to minimise the role that he had in the renewal of contracts and the granting of leave";
(b) her finding that Mr Tainsh's "...oral evidence was evasive and on a number of issues he tended to give answers that avoided answering the questions he was being asked";
(c) her finding that Mr Tainsh "...failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group"; and
(d) that Mr Tainsh had been in a relationship of a personal nature with Ms de Leon without disclosing this to Toyota.
(a) the conclusion is inconsistent with the finding set out at [186] of the Decision;
(b) she failed to take into account the material consideration that Mr Tainsh gave uncontested evidence that he was not aware of the alleged conduct of Mr Abarra and that he would have taken appropriate steps to investigate the allegations against Mr Abarra had he been aware of the allegations;
(c) she failed to take into account the material consideration of Mr Tainsh's submission that Toyota had failed to prove the allegation that Mr Tainsh had failed to manage Mr Abarra's conduct; and
(d) she failed to take into account the material consideration that Toyota in its closing submissions did not maintain any submission as to Mr Tainsh's alleged failure to manage Mr Abarra.
(a) she concluded that an order for the payment of compensation was appropriate as a consequence of her conclusion that the reinstatement of Mr Tainsh was inappropriate; and
(b) she failed to take into account the material consideration of Mr Tainsh's submissions that an order for compensation was an inadequate remedy in the circumstances of the case.
(a) Mr Tainsh "...failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group"; and
(b) an order for the payment of compensation would not be an inadequate remedy in the circumstances of the case.
[23] As referred to above, the question of Mr Tainsh's knowledge of alleged conduct of Mr Homer Abarra, which gave rise to the termination of Mr Abarra's employment, was in issue. Mr Abarra's application for unfair dismissal remedy was also the subject of a decision of the Commissioner[17] and has also been the subject of an application for permission to appeal heard by us (the Abarra Appeal). [18]
[24] Mr Bakri, Counsel for Mr Tainsh, submitted in relation to the Abarra Appeal:
"...if the findings in the other matter fall over in some way what's the impact on this appeal. I want to address that matter. We would say that the necessary consequence of that - so if the Commission in the other appeal was to find that those - let's refer to them as the sexualised remark allegations - they were to fall over because there was a particular error about those facts or some other error that impacted those facts, or there was a wholesale retrial if we get up on ground 1, then the finding in this decision here at paragraph 215 about Mr Tainsh's failure to supervise Mr Abarra can't stand. So that finding must fall away. Our submission would then be that that finding at 215 is a fundamental plank or fundamental pillar in the refusal to reinstate. So it will be a significant issue."[19]
[25] Ms Doyle SC, Senior Counsel for Toyota, submitted that even if the allegations of excessive sexual remarks or unhealthy workplace atmosphere "fell over" in the Abarra Appeal, this would not necessarily "infect" the chain of reasoning relating to the skills of Mr Tainsh as a supervisor. Ms Doyle SC submitted the Commissioner was concerned by at least two instances of loss of trust and confidence, with the first being the issue relating to the relationship Mr Tainsh had with Ms de Leon and the second his failures to supervise. As to the first, it was submitted it is "totally immunised" from the Abarra Appeal. As to the second, it was submitted that even if they were found to be cross infected or have a question mark over them, in the event they were to be remitted and tried again, the question relating to the relationship that Mr Tainsh had with Ms de Leon is quite separate, free standing and a matter that clearly troubled the Commissioner in terms of the loss of trust and confidence.[20]
[26] As outlined above, Mr Tainsh relies on 10 grounds of appeal in the notice of appeal.
[27] We will deal firstly with grounds 6 and 7, which Mr Tainsh submits address whether the Commissioner erred by failing to afford him procedural fairness by failing to put him on notice that she was intending to take into account:
• her conclusion that he "...failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group"[21] when determining whether reinstatement of Mr Tainsh was inappropriate (ground 6); and
[28] Mr Tainsh submitted that by doing so, the Commissioner denied him procedural fairness and further, that neither of the matters had been raised by Toyota during the proceeding as a justification for the dismissal.
[29] Toyota submits Mr Tainsh was clearly on notice of the allegations concerning a failure to perform his supervisory duties and contends he responded to such matters both in the course of the investigation and during the hearing. It further submits that Mr Geoff Kershaw, Plant Manager - Paint and Resin, had put Mr Tainsh on notice of the need to disclose workplace relationships where a disparity in seniority might give rise to a conflict of interest. As such, Toyota submits that both issues were clearly live in the proceeding, Mr Tainsh was fairly on notice as to their substance and it was open to the Commissioner to making findings on these matters in the context of loss of trust and confidence.[22]
[30] The Commissioner found that in forming the decision to dismiss Mr Tainsh, Toyota "also took into account that Mr Tainsh had not effectively managed Mr Abarra's behaviours and by his own conduct had contributed to the perception that management was indifferent or supportive of that kind of behaviour."[23] She noted the submission of Mr Tainsh that in considering his alleged failure to effectively manage Mr Abarra's behaviours, Toyota had taken into account the further allegation which he had referred to as "Tainsh Allegation 6" [24] and his reference to the evidence of Mr Kershaw that he (Mr Tainsh) "was expected to effectively supervise the Afternoon shift and to be across, and to deal with any employee issues" and "had not managed Mr Abarra's behaviours."[25]
[31] In his submissions at first instance, Mr Tainsh contended that the evidence established he was not aware of the conduct constituting each of the alleged contraventions of Mr Abarra and that he had given unchallenged evidence that "he was not aware of each of the allegations that were subsequently [made] against Mr Abarra and that had he been aware he would have taken appropriate steps to investigate and resolve the issues"[26], such that the Commissioner was required to dismiss "Tainsh Allegation 6."[27] Mr Tainsh had also submitted, having regard to Toyota's submissions at first instance, that it was unclear whether Toyota had conceded it had failed to establish "Tainsh Allegation 6" on the basis that it was not referred to it its closing submissions.[28]
[32] It bears repeating that as to "Tainsh Allegation 6", the Commissioner found:
"...This allegation was not raised with Mr Tainsh prior to his dismissal and indeed does not appear to have been raised as a separate allegation by TMCA, rather it was a factor that they considered in determining the severity of Mr Tainsh's conduct. I have taken into account the evidence before me as to Mr Tainsh's knowledge of Mr Abarra's conduct and am not satisfied that this 'allegation' amounts to a valid reason for Mr Tainsh's dismissal, even in conjunction with the allegations that I have found to be substantiated."[29]
[33] Consistent with this, when considering remedy, the Commissioner stated that "Tainsh Allegation 6" had not been put to Mr Tainsh for a response and did not appear to have been relied on as a reason for his dismissal.[30]
[34] Mr Tainsh contends that had he been on notice that the Commissioner was going to take into account that he failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group, he would have submitted:
(a) he had given uncontested evidence that he was not aware of any of the alleged conduct of Mr Abarra and that had he been aware of it he would have taken appropriate steps to investigate the allegations and that thus the finding was not open on the evidence; [31] and
(b) Toyota did not maintain any submission as to Mr Tainsh's alleged failure to manage Mr Abarra.[32]
[35] It was Toyota's position that paragraphs [45] and [46] of the Decision demonstrate that Mr Tainsh was on notice that shortcomings in the way he acted as a supervisor were 'in play' and Ms Doyle, Senior Counsel for Toyota, submitted:
"In that context where failure to adequately discharge the role of a supervisor, people management, not engaging in favouritism, not fostering an exclusionary atmosphere, where those things were front and centre from the day that he received that list of reasons of termination it really is artificial and a bit theoretical to be saying that it wasn't known that those matters were in play and that there was no opportunity to answer them, because of course there was an opportunity to answer them under the rubric of the allegations as put through the hearing."[33]
[36] Toyota submits that in so far as the Commissioner referred to a failure to supervise adequately and a failure to "identify" that there existed an unhealthy culture in the Sealer Group,[34] she was describing a failure on the part of Mr Tainsh to actively supervise Mr Abarra, by which means he may have in fact discovered the problems within the Sealer Group.
[37] Toyota submits the Commissioner was entitled to treat the "failure to supervise" as relevant to her evaluative judgment as to whether reinstatement was inappropriate, with her reasons on this topic to be fairly interpreted as making the point that a supervisor who does not know about serious problems among the cohort of employees under their supervision is the very sort of supervisor in whom employers are liable to lose trust and confidence. Toyota submits the witnesses in this proceeding described this as a failure by Mr Tainsh to adhere to "the Toyota Way"[35] and contends this is no more than another way of referring to the orthodox principle of "loss of trust and confidence."[36] Before us, Ms Doyle SC submitted that at paragraph [215] of the Decision the Commissioner was in effect saying:
these matters were not dealt with in a way, either in the workplace or in this hearing, which enables Toyota to say there is a valid reason to terminate Mr Tainsh for these failings, however, they are of great concern because they suggest that if Mr Tainsh was unable to detect this unhealthy atmosphere and these excessive sexual remarks, then he is not much of a supervisor; and
• The way it was handled is not enough to ground Mr Tainsh's termination in a way that is acceptable under the Act, but it is a matter to which regard can be had when remedy is considered.[37]
[38] Toyota submits the Commissioner correctly characterised this lack of supervision as a matter of "great concern" which, when considered with other matters (including what it submitted was Mr Tainsh's propensity to downplay the significance of his supervisory responsibilities) was sufficient to demonstrate that reinstatement was not appropriate.
[39] Mr Tainsh also contends that had he been on notice that the Commissioner was going to take into account that he failed to disclose his relationship with Ms de Leon to Toyota, he would have submitted:
(a) the evidence before the Commission was that during his employment he had disclosed to Toyota that he had been in such a relationship;[38]
(b) Toyota did not submit that the timing of his disclosure of the relationship constituted misconduct; and
(c) Toyota did not submit that the existence of the relationship constituted misconduct.
[40] Toyota submits that while it is technically correct to say that Mr Tainsh disclosed the existence of a relationship with Ms de Leon during the period of his employment, to do so would be to gloss over:
(a) Mr Tainsh's own evidence that he developed a relationship with Ms de Leon in August 2014 that no one at Toyota knew about;
(b) The denials of Mr Tainsh that he was in a relationship with Ms de Leon during his meeting with Mr Kershaw on 16 December 2016;
(c) Mr Tainsh's disclosure of the relationship with Ms de Leon, which only occurred:
i. After allegations concerning Ms de Leon had been raised with him;
ii. During the period of the investigation;[39]
iii. After initially (falsely) denying the existence of such a relationship;[40] and
iv. After Ms de Leon had confirmed the existence of the relationship.[41]
[41] Before us, it was submitted the matter about the relationship between Mr Tainsh and Ms de Leon was "centrally in play" and was the basis upon which Mr Tainsh "successfully batted away a couple of the allegations. He demonstrated he was in a consensual relationship first of all and that some of the rumours flying around about whether she was unhappy about things weren't true, and secondly he managed to demonstrate he hadn't engaged in favouritism. So it was well and truly in play."[42]
[42] Toyota submits the Commissioner's analysis of the relationship at paragraph [214] of the Decision is properly to be regarded as an instance of loss of trust and confidence in Mr Tainsh by his employer and while the Commissioner acknowledges that the failure to disclose a consensual relationship with a subordinate in a timely fashion may not in all circumstances constitute a valid reason for termination, such a matter is nevertheless a factor capable of being relevant to the question whether the employment relationship is too affected by a loss of trust to be repaired.
[43] When it was put to Toyota that the non-disclosure of the relationship between Mr Tainsh and Ms de Leon was not something it relied upon in arguing that there was no trust and confidence in the relationship, Ms Doyle SC responded by saying:
"We accept it wasn't submitted in this way... Loss of trust and confidence was clearly submitted as founding a central reason why reinstatement was inappropriate. We accept that there was no stark submission to the effect that one element of loss of trust and confidence here is the non-disclosure. However it is an objective test, it is one where value judgments are made, it is a remedy that's discretionary, and in that context, in our submission, it is open to a Commissioner to detect objectively a decision that is not advanced in the same way, or put forward formally by either party, but we accept that it wasn't put specifically in those terms."[43]
Denial of Procedural Fairness and its significance
[44] It is well established that members of the Commission are required to act in a judicial manner and accord all parties procedural fairness. This duty must be applied in the context of the particular circumstances including the nature of representation and the nature of the matter before the Commission. In Coal & Allied Mining Services v Lawler,[44] Buchanan J said:
"There is no doubt that members of FWA are (as were members of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission ("the AIRC")) bound to act "judicially" in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality. (See Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519, citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; R v Moore; Ex parte Victoria [1977] HCA 58; (1977) 140 CLR 92 at 101-102. See also Re Polites; Ex parte Hoyts Corporation Pty Limited [1991] HCA 25; (1991) 173 CLR 78; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583). However, it is an important aspect of the work of FWA, at all levels including on appeal (as it was of its statutory predecessors), that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such (although the President has the same status as a judge of this Court and some senior members of FWA retain an equivalent status from earlier statutory arrangements). It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible."[45]
[45] In Kioa v West[46] Mason J (as he then was) said:
"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. News Corporation Ltd. [1984] HCA 29; (1984) 156 CLR 296, at pp.311, 319-321.
In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi [No. 2] (4), per Jacobs J.)."[47]
[46] The Full Bench in City of Stirling v Mr Kevin Emery[48] considered the failure to afford procedural fairness in this way:
"[37] In Stead v State Government Insurance Commission the High Court stated that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial." The Court noted that it is relevant to consider whether further information that might have come before the Court if natural justice had been afforded would have made any difference. The Court went on to state:
"Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. ...It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact."
[38] In our view, these observations are relevant to the approach of a Full Bench of the Commission in considering a contention on appeal that a party has been denied procedural fairness, this being a component of natural justice." (references omitted)
[47] Despite the submission of Toyota that the shortcomings in the way Mr Tainsh acted as a supervisor were "in play", a decision-maker is required to exercise caution if intending to use material that is put in one context (e.g. directed at the question of whether a termination was unfair) for another (e.g. to determine whether reinstatement is inappropriate). If he or she ultimately does so, when a party has not relied on the material for the other context and the decision-maker has not raised this possibility during the course of the proceedings, he or she runs the risk of denying the other party procedural fairness if the material is of "central importance" to the other decision (e.g. on reinstatement).[49] We consider such a risk materialised here and Mr Tainsh was denied procedural fairness.
[48] In addressing remedy in its submissions at first instance, Toyota made no specific submission that Mr Tainsh's failure to adequately supervise Mr Abarra weighed against an order for reinstatement. Nor did Toyota submit that Mr Tainsh's failure to identify what the Commissioner ultimately described as an "extremely unhealthy culture of sexual harassment within the Sealer Group"[50] weighed against an order for reinstatement. Nonetheless, the Commissioner considered these things were "of great concern" and, in conjunction with her other concerns, sufficiently established that an order for reinstatement was not appropriate. In so finding, we consider that Mr Tainsh was denied procedural fairness.
[49] As with the failure to supervise, Toyota made no specific submission at first instance that Mr Tainsh's failure to disclose he had been in a relationship of a personal nature with Ms de Leon weighed against an order for reinstatement. Nonetheless, the Commissioner was concerned about this also, particularly in light of what she characterised as "the significant difference in their positions" and it formed part of the concerns that lead her to conclude that an order for reinstatement was not appropriate. Having regard to this and the concession properly made by Ms Doyle SC outlined above at [43], we are satisfied Mr Tainsh was also denied procedural fairness on the issue of his failure to disclose his personal relationship with Ms de Leon.
[50] We note there were no oral submissions made on the question of reinstatement and therefore no opportunity for the Commissioner to engage in dialogue with the parties in relation to reinstatement in that context. Notwithstanding this and although Toyota had made no specific written submissions that either Mr Tainsh's failure to disclose he was, or had been, in a relationship of a personal nature with Ms de Leon or his failure to supervise Mr Abarra weighed against an order for reinstatement, it would have been open to the Commissioner to raise her concerns with the parties after receipt of the final written submissions and allow them to make any further submissions or lead evidence in relation to them. This would have provided Mr Tainsh an opportunity to respond to the Commissioner's concerns relating to the question of reinstatement, which were clearly important to her. However, this did not occur and Mr Tainsh did not have an opportunity to address them. In our view, a denial of procedural fairness occurred and in all the circumstances we are not satisfied that the denial of natural justice could have made no difference to the outcome of the question of remedy in this case.
[51] This appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[52] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one".[51] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[52] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[53]
[53] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[54] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[55]
[54] For the reasons given, we are persuaded that Mr Tainsh has made out a case of appealable error in relation to grounds 6 and 7 of the notice of appeal. We consider this error has occurred in the context of an issue which is of general importance to dismissal cases involving misconduct, where the employee conduct is not considered sufficient to found a valid reason for the dismissal and yet may be relevant to the Commission's assessment of whether reinstatement is inappropriate. Accordingly, on that basis we find that the public interest for the purposes of granting permission to appeal under s.400(1) of the Act has been enlivened and permission to appeal is granted.
[55] Our conclusions in relation to grounds 6 and 7 in the notice of appeal are sufficient to uphold the appeal. We will nonetheless deal with the remaining appeal grounds in the manner outlined below.
[56] Appeal ground 1 asserts the Commissioner erred by misconstruing the expression "reinstatement of the person is inappropriate" in s.390(3)(a) of the Act.
[57] The powers of the Commission to order a person's reinstatement or the payment of compensation if a dismissal is found to be unfair are dealt with in Division 4 of Part 3-2 of the Act (ss.390-393). Relevantly, s.390 of the Act states:
"390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies."
[58] Having referred us to the Full Bench decisions in Tenterfield Care Centre Limited v Wait[56] (Tenterfield) and Nguyen & Anor v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter[57] (Nguyen), it was submitted on behalf of Mr Tainsh that two key propositions can be distilled from them:
"[14] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is 'inappropriate'. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is 'to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement'. We would observe that to describe reinstatement as the 'primary remedy', is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been 'unfair' is whether reinstatement is appropriate in the particular case.
[15] The general principles concerning consideration of whether the remedy of reinstatement should be granted were dealt with in the Full Bench decision in Nguyen
v Vietnamese Community in Australia. Relevantly, the Full Bench determined that:
[16] The most common argument advanced in support of the proposition that reinstatement is inappropriate is the notion, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.
[17] In Perkins v Grace Worldwide (Aust) Pty Ltd ('Perkins') the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the "practicability" of a reinstatement remedy and said:
'Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.'
[18] Although Perkins was decided in a different statutory context, the Court's observations remain relevant to the question of whether reinstatement is appropriate in the context of s.390.
[20] The question of whether reinstatement is appropriate involves the exercise of a discretion which will invariably be particular to the circumstances of the case. Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be successfully challenged on appeal by showing error in the decision-making process. It is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."[59] (references omitted)
[60] Mr Tainsh contends the Commissioner misconstrued s.390(3) of the Act and because of this, proceeded to take into account four considerations that are irrelevant considerations when making the reinstatement decision, namely her findings outlined in the second appeal ground that:
(a) Mr Tainsh "downplayed the seniority of his position and sought to minimise the role that he had in the renewal of contracts and the granting of leave";
(b) Mr Tainsh's "oral evidence was evasive and on a number of issues he tended to give answers that avoided answering the questions he was being asked";
(c) Mr Tainsh "failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group"; and
(d) Mr Tainsh had been in a relationship of a personal nature with Ms de Leon without disclosing this to Toyota.
[61] It was submitted by Mr Tainsh that because the Commissioner did not expressly explain her construction of the provision, her construction is to be inferred from these four considerations, which it is apparent that she took into account in making the reinstatement decision. Mr Tainsh contends these four considerations are not recognised as matters which may make reinstatement inappropriate within the meaning of s.390(3)(a) of the Act and are irrelevant to the following matters, which have been recognised as matters which may make reinstatement inappropriate:
[62] Mr Tainsh also submitted that the four abovementioned considerations taken into account by the Commissioner do not provide a sound and rational basis for concluding that the restoration of the employment was inappropriate and nor do they relate to the feasibility of the employment relationship being restored. He further submitted downplaying seniority and observations about the demeanour of a witness when giving evidence are irrelevant considerations as to whether the employment relationship can feasibly be restored.
[63] As to the consideration that he had been in a personal relationship with Ms de Leon, Mr Tainsh submitted there was no policy prohibiting this, Toyota knew about it and did not rely on either its existence or any failure to disclose it as a justification for the dismissal and that at first instance, Toyota did not argue it was a reason that made reinstatement inappropriate. In these circumstances, Mr Tainsh submitted the Commissioner's own concerns about the existence of the relationship and it not being disclosed cannot provide a sound basis to refuse reinstatement, because reinstatement is all about the workability of the employment relationship being restored.[60]
[64] Toyota submits the Commissioner set out the statutory provisions under which she was required to make a decision as to remedy[61] and upon a fair reading of the Decision, it is to be reasonably inferred that the Commissioner had proper regard to the task required of her by the Act, namely, to determine whether or not she was satisfied that reinstatement of Mr Tainsh was inappropriate. Toyota further submits the Commissioner was not required to set out a dissertation of authorities dealing with reinstatement under the Act. That the function was understood and carried out by the Commissioner is evident, it says, in the evaluative judgment she made and the various reasons supporting that finding that are set out at [213] - [215] of the Decision.
[65] Toyota also addressed paragraph [212] of the Decision, submitting the way in which it is to be read is:
(a) the Commissioner correctly understood that loss of trust and confidence is one matter that may be relevant to be taken into account in relation to reinstatement;
(b) at the workplace in question there was a body of principles or policies known in a global sense as The Toyota Way, which were themselves in part relevant to an understanding of how a relationship of trust and confidence could be fractured there; and
(c) there was a body of evidence about The Toyota Way, some of which the Commissioner explains in her reasons.
[66] Toyota submits that this amounts to saying in the workplace in question, aspects of the application of The Toyota Way were indicative of the question whether trust and confidence had been fatally fractured or not.
[67] Toyota disputes what it says is a complaint levelled by Mr Tainsh that matters that were either found not to constitute valid reasons for termination or related to things that were not found to be valid reasons cannot be called in aid later when determining remedy (what it described as the second phase or 'phase 2'). Toyota disputes the contention that it is an inappropriate approach for a Commissioner to call in aid matters from 'phase 1' (liability for termination) in phase 2. It also disputes that something found not to constitute a valid reason is inapplicable or unable to be called in aid, in phase 2.[62]
[68] Toyota submits the tests for the two phases are quite different tests, exercised for different purposes and in a different statutory context and so long as the Commissioner displayed an understanding of the difference between the two, then there is certainly no prohibition on using findings in evidence from phase 1 in the remedy assessment in phase 2. Toyota submits it is evident from the reasons in the Decision that the Commissioner understood that different tasks were required to be performed in each phase.[63]
[69] Toyota further submits there is no uncertainty or diversity of decisions in respect of s.390(3)(a) of the Act and the relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been 'unfair' is whether reinstatement is appropriate in the particular case.[64]
[70] Toyota submits the considerations or factors which might render reinstatement inappropriate are not prescribed by the Act and in particular, the Act does not prescribe those matters which are listed in Mr Tainsh's submissions, outlined above at [60], each of which are only examples of matters which might in a particular case be relevant to consider.
[71] It was further submitted by Toyota that those passages of the Decision which are concerned with the appropriate remedy ought not be read in isolation from the balance of the Commissioner's reasons. While the Commissioner concluded that there was no valid reason for the termination, Toyota contends the Commissioner also carefully assessed the evidence and made other important findings which were relevant to the overall assessment as to whether reinstatement was inappropriate. Toyota submits a range of considerations were referred to by the Commissioner in support of her evaluative judgment as to why she considered reinstatement to be inappropriate and that even if any one of the considerations on which she relied were found to be irrelevant, such an error would not itself enliven the public interest.[65]
[72] In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[66] Kirby J observed:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."[67]
[73] We consider the Commissioner set out the relevant statutory provision she was required to consider in making a decision as to remedy and we accept, on a fair reading of the Decision, that she understood her task was to determine whether or not she was satisfied an order for reinstatement was inappropriate. We are satisfied this is evident from paragraphs [210]-[215] of the Decision. We are also satisfied the Commissioner did not misconstrue the expression "reinstatement is inappropriate" in s.390(3)(c) of the Act. We reject ground 1 of the appeal.
[74] As to appeal ground 2, the submission of Mr Tainsh that the four considerations the Commissioner took into account "are not recognised as matters which may make reinstatement inappropriate within the meaning of s.390(3)(a) of the Act" is in our view misplaced. Tenterfield makes it clear that resolving the question of whether reinstatement is appropriate involves the exercise of a discretion which is invariably particular to the circumstances of the case and while it was said in Tenterfield that the Full Bench in Nguyen had determined that reinstatement might be inappropriate when it would be futile, or the employee was incapacitated by illness or injury, or because of a loss of trust and confidence, these were not held to be the only circumstances.
[75] Similarly, to the extent Mr Tainsh has submitted that matters that are not found to have constituted valid reasons for termination cannot later be relied on when determining remedy, we disagree. It will depend on the context. As the Full Bench in Brambleby v Australian Postal Corporation T/A Australia Post[68] discussed, in the context of that case:
"...Contrary to the appellant's submissions it does not necessarily follow that where there is a finding that termination was not justified based on employee misconduct there must be some other factor, other than the misconduct, to make reinstatement inappropriate. An example serves to illustrate this proposition. An employee engages in misconduct. The employer has a range of disciplinary options to it, including transfer to another position at a lower level (a demotion) but chooses to terminate the employee for misconduct. The Commission subsequently finds that the sanction of termination was unreasonable as it was disproportionate to the misconduct and a lesser form of sanction would have been appropriate. In these circumstances if the Commission was of the view that the misconduct was serious enough to warrant a demotion we can see no reason in principle why that would not be a relevant consideration in deciding whether or not reinstatement was inappropriate."[69]
[76] We do not accept Mr Tainsh's submission that any of the four matters about which he complains were wholly irrelevant to the question of whether reinstatement was inappropriate in the circumstances. In particular, we consider:
(a) the Commissioner's finding that Mr Tainsh "...downplayed the seniority of his position and sought to minimise the role that he had in the renewal of contracts and the granting of leave" is capable of being relevant to the question of whether reinstatement is inappropriate, in that it goes to the question of trust and confidence in a future working relationship with Mr Tainsh;
(b) although questions concerning the demeanour of an applicant in the witness box will not usually be relevant to the question of whether reinstatement is inappropriate, a finding that an applicant was evasive in his oral evidence is capable of being relevant to that question. It goes to the issue of trust and confidence and is a matter for the decision maker at first instance to decide how much weight should be accorded to it;
(c) a finding to the effect that a managerial or supervisory employee failed to adequately supervise employees who reported to them is capable of being relevant to the question of whether reinstatement is inappropriate, because, depending on the circumstances, it may bear on the extent to which the employer could have trust and/or confidence in the employee returning to the workforce and whether the restoration of an employment relationship is workable and/or feasible; and
(d) a failure by a managerial or supervisory employee to disclose to their employer that they are in a personal relationship with a subordinate employee is capable of being relevant to the question of whether reinstatement is inappropriate, because it is likely to bear directly on the degree to which the employer could have trust or confidence in the employee in the future.
[77] How much weight should be accorded to these and other relevant factors in an evaluative assessment as to whether reinstatement is inappropriate is a matter for the decision maker at first instance. We reject ground 2 of the appeal grounds but the question of remedy will be determined through the process we outline below at [94].
[78] Mr Tainsh submitted that the Commissioner made significant errors of fact within the meaning of s.400(2) of the Act by finding that:
(a) Mr Tainsh had been in a relationship of a personal nature with Ms de Leon without disclosing this to Toyota (ground 4); and
(b) Mr Tainsh "failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group" (ground 5).
[79] As to ground 4, there is no dispute between the parties that Mr Tainsh disclosed his relationship with Ms de Leon but they disagree about the context and significance of the timing of his disclosure. A fair reading of the Decision indicates that the Commissioner accepted that the relationship commenced after Mr Tainsh's granting of Ms de Leon's LWOP,[70] that it was not disclosed by either himself or Ms de Leon prior to December 2015, when rumours regarding Mr Tainsh's relationships with a number of young female TFT employees came to the attention of Toyota management[71] and because of the disparity in their respective positions in the Toyota hierarchy, the timing of the disclosure was of concern to her.[72]
[80] Given our conclusion in relation to grounds 6 and 7 of the appeal grounds, we are of the view that these considerations can be addressed through the process by which we have decided the question of remedy will be re-determined.
[81] As to ground 5 of the appeal grounds and the finding that Mr Tainsh "failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group", Mr Tainsh contended it is demonstrably wrong, as it is contrary to the incontrovertible fact that he gave uncontested evidence that he was not aware of any of the alleged conduct of Mr Abarra and that had he been aware of it he would have taken appropriate steps to investigate.[73]
[82] Mr Tainsh asserts the finding is inconsistent with the finding set out in the Decision at [186] and that in its closing submissions, Toyota did not maintain the submission that Mr Tainsh had failed to adequately supervise Mr Abarra.[74]
[83] Mr Tainsh also submitted that none of Toyota's witnesses gave evidence that they had lost trust and confidence in Mr Tainsh because he had failed to supervise Mr Abarra and nor did they identify any issue with Mr Abarra's conduct. It was submitted that in these circumstances, it was not open to the Commissioner, in the absence of any evidence, to opine there had been a loss of trust and confidence.[75]
[84] Mr Tainsh submits these errors of fact are significant errors of fact because they were relied on as "key findings" which supported the decision on reinstatement and in the absence of these errors, it should be inferred the Commissioner would not have refused to reinstate Mr Tainsh.
[85] Toyota contends there is no significant error of fact in this finding and made the submissions we have previously outlined above at paragraphs [36]-[38] regarding what the Commissioner considered to be the failure of Mr Tainsh to supervise adequately and "identify" that there existed an unhealthy culture in the Sealer Group.[76]
[86] Toyota submits that the Commissioner was entitled to treat the "failure to supervise" as relevant to her evaluative judgment on the separate and distinct question of remedy, as to whether reinstatement was inappropriate, with her reasons on this topic to be fairly interpreted as making the point that a supervisor who does not know about serious problems among the cohort of employees under their supervision is the very sort of supervisor in whom employers are liable to lose trust and confidence. Toyota contends the witnesses in the proceeding described this as a failure by Mr Tainsh to adhere to "the Toyota Way"[77] and this is no more than another way of referring to the orthodox principle of "loss of trust and confidence."[78]
[87] We consider that the considerations in relation to ground 5 of the appeal grounds can be addressed through the process by which we have decided the question of remedy will be re-determined, given our conclusion in relation to grounds 6 and 7 of the appeal grounds and our conclusions in the Abarra Appeal.[79]
[88] Given our conclusion in relation to grounds 6 and 7 of the appeal grounds, it is not necessary for us to deal with ground 9 of the appeal grounds. However, we make the observation that the Commissioner was not required to mention every fact or argument relied upon by Mr Tainsh and nor was she required to expose every step of her chain of reasoning.[80] The Decision is required to be read fairly and as a whole and not with an eye attuned to detect error.[81] Moreover, the passages which expressly dealt with reinstatement must be read in the context of the Decision as a whole.[82]
[89] Ultimately, whether reasons are adequate depends upon the circumstances, including the nature of the statutory function being exercised, the decision and the submissions and material in the case.[83]
[90] Mr Tainsh submitted the reinstatement decision is unreasonable and/or plainly unjust and thus a legal error.
[91] Given our conclusion in relation to grounds 6 and 7 of the appeal grounds, it is not necessary for us to deal with this ground of appeal.
[92] For the reasons given, we consider it is in the public interest to grant permission to appeal and that the appeal should be upheld.
[93] The agreed position of the parties is that if the appeal is successful, the application should be remitted to a single member on the question of remedy only and that upon remittal, there be the usual direction for the filing of evidence.
[94] We order as follows:
(3) The Decision ( [2018] FWC 4192), insofar as it determined the remedy to be granted for Mr Tainsh's unfair dismissal, and the Order (PR609045) are quashed.
(4) Mr Tainsh's unfair dismissal remedy application (U2016/2952) is remitted to Commissioner Harper-Greenwell to re-determine the remedy (if any) to be granted in respect of Mr Tainsh's unfair dismissal on the basis of the evidence and submissions received to date and such further evidence and submissions which the Commissioner may determine to admit.
R Doyle SC and P Wheelahan, Counsel for the Respondent
[1] [2018] FWC 4192 (Decision)
[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[16] Mr Tainsh's submissions on appeal dated 31 August 2018 at footnote 9.
[22] Huang v Rheem Australia Pty Ltd (2005) 141 IR 310 at [20] to [31], especially at [22] and [25] - [26].
[24] Mr Tainsh's Submissions at first instance at [6]: AB 1709
[26] Relying on Mr Tainsh's evidence at first instance at PN 1583-1623: AB 193-199
[27] Mr Tainsh's Submissions at first instance at [214]: AB 1758
[28] Mr Tainsh's Reply Submissions at first instance at [131]: AB 1883
[31] Citing PN 1583 to PN 1623 of the Transcript: AB pages 193-199
[32] It was argued this point was brought to the Commissioner's attention in Mr Tainsh's reply submissions at first instance: AB 1883 (Mr Tainsh's submissions on appeal dated 31 August 2018 at footnote 24)
[35] Citing Toyota's Submissions at first instance at [205]: AB 1840; see further PN 1803 - PN 1835/AB 214 - 217; PN 1855 - 1933 / AB 218 - 224; Kerhsaw statement Exhibit R7 at [97]:AB 1230; Box statement Exhibit R5 at [34] - [36]: AB 1187
[36] Citing Perkins v Grace Worldwide (Aust) (1997) 72 IR 186 at 191; Colson v Barwon Health [2013] FWC 8734 at [21] - [22]; Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 at [20] - [21]; Phillip Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341 at [15]
[38] Citing as examples Exhibit A-10 at attachments AT-3: AB 932, AT-4: AB 936 and AT-11: AB 1010 (Mr Tainsh's submissions on appeal dated 31 August 2018 at footnote 25)
[39] Exhibit A10 at Attachment AT3: AB 932
[40] Exhibit R7 at [27]: AB 1220; AB 474 PN 4784
[49] Brambleby v Australian Postal Corporation T/A Australia Post [2014] FWCFB 9000 at [63]
[52] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46]
[53] [2010] FWAFB 5343, 197 IR 266 at [27]
[54] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]
[55] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[59] House v The King (1936) 55 CLR 499 at 505.
[64] Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [14], citing Regional Express Holdings Limited T/A REX Airlines v Richards [2010] FWAFB 8753 at [23]- [24]; Colson v Barwon Health [2014] FWCFB 1949 at [30]- [31]
[65] Nguyen & Anor v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [40]
[71] Decision at [25], [26] and [78]
[73] Citing PN 1583 to PN 1623 of the Transcript: AB pages 193-199
[74] It was argued this point was brought to the Commissioner's attention in Mr Tainsh's reply submissions at first instance: AB 1883 (Mr Tainsh's submissions on appeal dated 31 August 2018 at footnote 19)
[77] Citing Toyota's Submissions at first instance at [205]: AB 1840; see further PN 1803 - PN 1835/AB 214 - 217; PN 1855 - 1933 / AB 218 - 224; Kerhsaw statement Exhibit R7 at [97]:AB 1230; Box statement Exhibit R5 at [34] - [36]: AB 1187
[78] Citing Perkins v Grace Worldwide (Aust) (1997) 72 IR 186 at 191; Colson v Barwon Health [2013] FWC 8734 at [21] - [22]; Nguyen v Vietnamese Community In Australia [2014] FWCFB 7198 at [20] - [21]; Phillip Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341 at [15]
[80] Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [27]
[81] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 per Kirby J. See also Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [29] and the authorities cited therein.
[82] Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [30]
[83] Transport Workers' Union of Australia v WA Freightlines Pty Ltd (2011) 211 IR 369 at [10]
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# Adrian Tainsh
Toyota Motor Corporation Australia Limited T/A Toyota \[2018\] FWCFB 7565
(1989) 167 CLR 513
(1969) 122 CLR 546
(1991) 173 CLR 78
(2001) 116 FCR 481
(1996) 185 CLR 259
(2011) 192 FCR 78
(1989) 168 CLR 210
(2011) 211 IR 369
(1977) 140 CLR 92
(1984) 156 CLR 296
(2005) 141 IR 310
(1985) 159 CLR 550
(1992) 66 ALJR 583
(1963) 113 CLR 475
(2000) 203 CLR 194
(1997) 72 IR 186
(2011) 85 ALJR 398
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