[1] This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Senior Deputy President Drake given on 15 November 2005 [1] dismissing an application for relief against termination of employment brought by the appellant.

[2] The Appellant's employment was terminated because of an assault on another employee. The appellant was employed as an international flight steward by Qantas. On 31 December 2004 the appellant was in Singapore on a period of "slip time", having recently arrived on a flight from London. Slip time is a period between flights designed to given flight crew an opportunity to rest and recuperate before they resume duties. As in other foreign ports, Qantas quarters its flight crew in Singapore in a particular hotel with which it has negotiated bulk rates. In Singapore this was the Swisshotel. Qantas had arranged with the hotel to make a function room, the Clark Room, available for the private use of Qantas employees who may wish to celebrate the New Year together. Qantas made a modest contribution of $15 per head towards the cost of drinks.

[3] The appellant attended drinks in the room of another Qantas employee and consumed a quantity of alcohol. It appears that at least two of the drinks consumed by the appellant contained more alcohol than the appellant reasonably appreciated. The appellant later attended the function in the Clark room and consumed more alcohol. Mr Tracey, the victim of the subsequent assault, was also present at the function. Sometime during the evening Mr Tracey made a remark to Ms Thomas, referring to the appellant and another flight steward as "2 peacocks with their chests puffed out".

[4] It does not appear that the appellant heard this remark. By about 2.30am the appellant was quite drunk, having consumed between 11 and 14 drinks. Shortly after this time the appellant was at a table with Mr Tracey and other Qantas employees. Mr Tracey's version of events in a portion of his statement set out by her Honour was as follows:

19. I could hear Mr Donlon and Mr Farquharson talking. I recall Mr Farquharson saying derogatory comments about homosexuals, though I do not recall his words. I said to Mr Farquharson words to the effect:

20. Mr Donlon stood close to Mr Farquharson's face and said words to the effect:

Mr Donlon kept on repeating these words, in a joking or mocking manner.

21. I said to Mr Farquharson words to the effect:

'There's nothing wrong with being gay. They're nice people. I have a few gay friends and they're good work colleagues.'

22. Mr Farquharson said to me words to the effect:

'You and your brother molested me as a child in the park.'

Mr Farquharson said this in a mild manner, without a raised voice.

23. I was surprised at this comment. It was not responsive to the conversation. I responded in words to the effect:

[5] The appellant approached Mr Tracey who was seated and struck him heavily in the face with a closed fist. Mr Tracey said words to the effect "What was that for? That wasn't called for." The appellant said nothing but again hit Mr Tracey in the face with a heavy blow. This blow knocked out a number of Mr Tracey's teeth and left him with facial injuries from which he bled profusely. He was escorted from the Clark Room by other employees and taken to the service desk where police and ambulance were called.

[6] The appellant acknowledged hitting Mr Tracey once and accepted that he may have struck him a second time but claimed that this was in response to Mr Tracey saying to him "Your father molested you as a child". The appellant denied making the remark attributed to him in paragraph 22 of Mr Tracey's statement. The Senior Deputy President found that that remark was made. [2] Counsel for the appellant, quite properly, did not press a challenge to this finding of fact, based as it was, on her assessment of the evidence of the witnesses. It was not a finding that was amenable to challenge within the established principles.[3]

[7] There was an issue before the Senior Deputy President as to whether the appellant had followed Mr Tracey from the room in a manner that suggested the possibility of further aggression. The Senior Deputy President rejected the contention that the appellant had followed Mr Tracey with an apparent intention to continue the assault.

[8] The police and an ambulance attended. Mr Tracey was taken to hospital. In the mean time the appellant had returned to his room. The police and hotel staff spent a considerable period knocking loudly on the appellant's door but he did not answer (he had apparently passed into a deep sleep). Other guests in the hotel were apparently awakened by the protracted loud knocking. Eventually, the police and hotel staff broke into the appellant's room. The appellant was not arrested or charged. The incident did not receive any attention in the media. The appellant tendered a letter from the hotel indicating that it regarded the matter as closed.

[9] There was an issue as to the time lag between when Mr Tracey made the remark about the appellant's father and when the appellant struck the first blow. Mr Tracey claimed that there was a delay of about 2 minutes (indicating a degree of the measured calculation about the assault) whereas the appellant claimed that his response was immediate. The Senior Deputy President did not express a clear finding on that factual contest. For present purposes we are prepared to assume that the appellant's version is correct.

[10] Mr Tracey required hospitalisation for a short period and did not return to work for a period of some weeks.

[11] Where an appeal is against a decision involving the exercise of a discretion, or the application of a broad discretionary standard such as that found in s.170CE, it is well established that the appellant must demonstrate an error within the principles laid down by the High Court in House v The King: [4]

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

[12] The appellant pointed to a number of exculpatory matters which, it was submitted, had rendered the decision to terminate his employment harsh, unjust or unreasonable ("the exculpatory matters"):

• His level of intoxication in the context of a New Year's Eve celebration at a function for Qantas employees where Qantas has contributed toward the cost of providing alcoholic drinks and where two drinks he consumed had more alcohol in them than he might reasonably have assumed.

• The extremely provocative and insulting nature of the remark made by Mr Tracey in the context of the appellant's peculiar sensitivity to an insulting remark about his father arising from the fact that his father had died 18 months earlier, the appellant having significant unresolved psychological issues in relation to his father.

• He was genuinely remorseful, had apologised to Mr Tracey and was unlikely to misbehave this way in the future.

• The significant adverse impact of the termination of employment for the appellant and his family, particularly given the appellant's age and circumstances.

[13] In summary the Appellant submits that the Senior Deputy President erred:

• in describing "slip time" as a grey area, leading her to apply a wrong test in relation to termination based on what was in truth "out of hours" conduct.

• in finding that the incident was likely to damage Qantas' interests.

• by failing to take the exculpatory matters into account or properly into account.

• by failing to find that there was procedural unfairness in the disciplinary process that led to the termination of the appellant's employment.

• by failing to deal with an argument based on inconsistent treatment between the appellant and the Mr Tracey.

Whether correct approach in relation to "out of hours" conduct was applied

[14] The appellant submits that a flight crew member on "slip time" is off duty and the principles governing when an employer may take disciplinary action in relation to off duty or "out of hours" conduct by one of its employees are applicable accordingly. The Senior Deputy President dealt with a slip time in the following way:

"[46] The flight attendants were on what is called slip time. Slip time for a flight attendant is not either time "on duty" or "off duty" as they are ordinarily understood. It is a grey area. The tour of duty for a flight attendant commences when the flight attendant leaves Australia and ceases when the flight attendant returns to Australia. The Full Bench on appeal from my decision in Applicant v. Respondent described slip time for flight attendants as a "……break in their employment obligations" . [(1999) 89 IR 407]

[47] Although slip time is a time when flight attendants are not required to perform work, I do not believe it is a period when they are free of all obligations arising from their employment. Neither is Qantas free from its obligations to the crew. Some mutual obligations continue throughout slip time.

[48] In foreign ports whilst on slip time the obligations which apply to flight attendants govern their conduct. This is not to extend Qantas' entitlement to govern or supervise the private activities of its employees during slip time. It is a recognition of the fact that certain types of conduct during this period might amount to misconduct which the Full Bench described as "…… conduct which the employer would have a legitimate concern to act upon even though it occurred during the break in the employment obligations ." [(1999) 89 IR 407]

[49] Mr Farquharson's obligations whilst on slip time included an obligation to behave reasonably so as not to bring discredit upon Qantas, not to breach the laws of the slip port in any significant fashion, not to act to cause injury to any other person including other Qantas flight attendants and to maintain a continued availability for duty after the compulsory rest period has expired.

[50] Specific standards of behaviour are clearly set out in the Cabin Crew Operations Manual, although I do not believe that prohibitions on conduct such as physically assaulting or intimidating other flight attendants need to be specifically identified in a manual. Such conduct is clearly unacceptable conduct without the need for such specification.

[51] Mr Farquharson's obligations arose not just from the policies of Qantas and any documents that Mr Farquharson might have read or assented to as part of his employment contract but because they are the ordinary obligations to be implied from their relationship, the nature of Mr Farquharson's employment and the situation of Qantas as an international carrier operating in a foreign port with employees who are in a rest and recreation period.

[52] Qantas has responsibilities and obligations to flight crew whilst flight crew are in a foreign port on an air crew visa. These responsibilities and obligations extend to the provision of health care for flight attendants and obligations to render them assistance if they are involved in any legal proceedings or difficulties. Qantas is obliged to provide them with assistance in extricating themselves from these difficulties. Qantas has other obligations but it is not necessary for me to identify them all here."

[15] We do not think that her Honour's description of slip time as a "grey area" was intended to indicate that the appellant was on duty at the time of the incident. [5] Rather it would seem that her Honour was intending to indicate that the appellant was not off duty as that term is ordinarily understood. Her Honour's description of slip time as a "grey area" simply highlighted the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.

[16] In any event, her Honour ultimately approached the case on the basis that the appellant was off duty in the conventional sense:

"[56] If I am in error and slip time is more properly to be regarded as "out of hours" time rather than the sort of grey area that I have categorised it as, then I have concluded that Mr Farquharson's conduct as "out of hours" conduct was conduct likely to damage Qantas' interests." [6]

[17] The appellant challenged this aspect of the decision in two ways. First, relying on the decision of Ross VP in Rose v Telstra [7], the appellant submitted that her Honour erred in approaching the case on the basis that a likelihood of damage to the employer, as distinct from actual damage, was sufficient. Secondly, the appellant submitted that the evidence did not establish even a likelihood of damage to Qantas. We will deal with these arguments in turn.

[18] In Rose v Telstra [8] Ross VP undertook a detailed analysis of the law relating to termination of employment for "out of hours" conduct. Referring to the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines, his Honour noted that the emergence of the modern law of employment can be seen as a movement away the status of servants in a master/servant relationship to a focus on contract with the result that:

"[a]n employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment." [9]

[19] The issue, then, is whether the "out of hours" conduct involves a breach of an express or implied term of the contract of employment. Ross VP then considered the relevant implied terms:

An employee's implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells_. In that case their Honours Dixon and McTiernan JJ said:_

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises."

In the same case their Honours Starke and Evatt JJ note:

"The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer."

The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers_, 'an actual repugnance between the employee's acts and his relationship with his employer must be found'._

More recently the implied term of fidelity and good faith has been expressed as an obligation to serve the employer loyally and not to act contrary to the employer's interest. In England this obligation appears to have been subsumed by the more general obligation of mutual trust and confidence. The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not 'without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'.

If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee then a breach of the implied obligation may arise.

There is some support for the proposition that the existence of an implied term of trust and confidence in contracts of employment has been accepted in Australia.

The words `trust and confidence' in this context are used in a contractual sense rather than as an ingredient of a personal relationship. As McCarry notes:

"... the words `trust and confidence', just like the employee's reciprocal duties of 'fidelity and good faith', do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in an interpersonal relationship."

The above statement is consistent with the shift in the nature of the employment relationship, from status to contract, referred to earlier.

[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:

"It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

• the conduct damages the employer's interests; or

• the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee."

[21] The appellant submitted that her Honour erred because she found a likelihood of damage rather than actual damage as required by the second bullet point of the summary. There are two answers to this submission.

[22] First, while summaries of this sort are useful they are no substitute for the statutory test, namely whether was a "valid reason" in the sense of a reason that is "sound, defensible or well-founded". [10] Conduct which gives rise to a material risk of damage to an employer's interests, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a "valid reason" for termination of employment. Whether such a termination is nevertheless harsh, unjust or unreasonable, notwithstanding the existence of such a "valid reason", will remain to be determined in all the circumstances.

[23] In the context of the "out of hours" conduct by Qantas flight crew the Full Bench in Applicant v Respondent [11] observed:

"...it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees. While the employer in this case was responsible for providing and paying for the overseas accommodation, flight attendants have time off in foreign destinations which is clearly a break from their employment obligations. What they do in their own time during these breaks, ordinarily, is their own business. However, there could be conduct which the employer would have a legitimate concern to act upon even though it occurred during the break in the employment obligations. Her Honour set out some examples in her decision and there are many more which could be cited."

[24] The Full Bench placed emphasis on the "connection" between the out of hours conduct and the interests of the employer. Her Honour's approach was consistent with this.

[25] Secondly, in the present case, cabin crew are required to observe the requirements of Cabin Crew Operations Manual and, indeed, before each flight sign an acknowledgment that they will observe those requirements. Those requirements include a proscription of the sort of conduct that occurred in this case. A failure to comply with such requirements can involve, and in this case did involve, a breach of a reasonable policy with which the employee has been directed to comply amounting to a breach of the contract of employment. [12] In other words, the present case falls within the third bullet point in the summary of principle in Rose v Telstra.

[26] We turn now to the appellant's challenge to the finding that the conduct in question was likely to damage Qantas' interests. Her Honour gave reasons for that finding:

"[57] It was not an act committed before a public gathering but it was committed in a hotel paid for by Qantas in a room provided because the employer of the guests was Qantas. The management and staff of the hotel would have been aware that the attendees were Qantas staff or family of Qantas staff. The hotel security staff became involved and the Singapore police were called. Local knowledge that, whilst drunk, a Qantas flight attendant beat another flight attendant so seriously as to cause severe facial injuries and hospitalisation, must affect the reputation of Qantas' employees in this slip port. To that extent the reputation of those employees is the reputation of Qantas. The fact that the hotel decided to continue the commercial arrangements between itself and Qantas after this event does not demonstrate that there was no damage to Qantas' interests. That result is a predictable pragmatic commercial decision on the part of the hotel.

[58] If Mr Farquharson's conduct took place "out of hours" I have concluded that it was also conduct that was incompatible with his obligations to Qantas as an employee. I have already discussed those obligations in this decision and I have concluded that he breached those obligations."

[27] The appellant placed particular emphasis on the absence of any media reports of the incident, the fact that no charges were laid and the failure by Qantas to call any evidence from a representative of the hotel indicating that the incident had damaged Qantas' reputation with the hotel together with admission by a Qantas manager, Ms Waters, that the incident had not harmed Qantas' reputation.

[28] In our view, the adverse impact on Qantas of incidents such as that which occurred in the present case is obvious. In this case such adverse impact may be inferred from the facts established by the evidence. Mr Tracey was hospitalised as a consequence of the assault and was unable to return to work for a number of weeks. It may be inferred that he was therefore unavailable to work as a flight crew member in accordance with his roster for that period and that alternative arrangements had to be made by Qantas.

[29] While it may be that the hotel regards the matter as closed, it seems obvious to us that if such incidents recurred the reputation of Qantas would be diminished with the hotel and could expose Qantas to liability for medical and legal expenses. As such, Qantas has a legitimate interest in ensuring that no such incidents occur and therefore has a legitimate interest in taking action in relation to any such incident. Moreover, the fact that the hotel regards the matter as closed does not mean that the hotel did not take an adverse view of the incident. On the evidence before her Honour, it is more likely than not that that it did: other patrons were disturbed from their sleep and damage was caused to the door of the appellant's room. A recurrence of such incidents at the hotel may cause it to take a different view in the future.

[30] The fact that no charges were pursued by the Singapore police does not inevitably lead to the inference that the police regarded the matter as trivial. Other explanations are equally plausible. For example, the decision not to charge may have been as a result of representations made to the police by other Qantas staff or by the hotel management in the interests of an important customer. Moreover, it is not fanciful to suppose that an assault leading to significant physical injuries may be the subject of police charges.

[31] In summary, Qantas was entitled to consider potential future damage, and not merely actual damage, to its reputation or interests. Qantas has a legitimate interest in taking action aimed at deterring such behaviour by other employees in the future because such behaviour has the potential to adversely affect Qantas' reputation and its rostering arrangements and exposes Qantas to expense arising out of its obligation to meet the legal and medical expenses of its employees when they are in a foreign port. In any event, on the evidence before her Honour, it is proper to conclude that there was a measure of actual damage to Qantas' interests.

[32] The appellant placed reliance on the passage from the judgement by Wilcox CJ in Yew�v ACI Glass Packaging Pty Limited (1996) 71 IR at 205:

"… But, as Moore J recognised, it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a 'no fighting' policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential, I think, to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence."

[33] We do not think that his Honour was intending to convey that if there was anything in the work environment or the conduct of the other employees that might "incite an employee to resort to violence" then dismissal for fighting could not be justified. Rather, his Honour was focused on rejecting the contrary absolute proposition that "any employee involved in a fight is guilty of serious misconduct" and emphasising that the existence of factors that might incite an employee to resort to violence may detract from the existence of a valid reason for termination of employment or otherwise render a dismissal harsh, unjust or unreasonable. In the present case her Honour considered the issue of incitement and was not persuaded that it justified or excused an attack of the sort perpetrated by the appellant.

Whether insufficient weight was given to the exculpatory matters

[34] The Senior Deputy President in fact addressed each of the exculpatory matters in her decision and explicitly weighed them in the balance. [13] The true complaint of the appellant is that her Honour did not give sufficient weight to these matters, either individually or cumulatively.

[35] A failure to give sufficient weight to a relevant consideration may constitute an error that can be corrected on appeal. [14] The relevant principle was stated by Gibbs CJ in Mallet v Mallet.[15] In that case the High Court (Gibbs CJ, Wilson and Dawson JJ; Mason and Deanne JJ dissenting) allowed an appeal against the Full Court of the Family Court of Australia who had overturned a decision at first instance on the basis that the trial judge had not given sufficient weight to certain matters. The judgment of the trial judge was restored. Gibbs CJ noted:[16]

"The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519, as follows:

"If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court."

(See also per Kitto J., at pp.533-4.) In Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513, the principle was similarly expressed by Stephen J., at pp 519-520, and Aickin J., at pp.534, 537-8; see also per Mason and Wilson JJ., at p.525. In the present case it was clear that Bell J. did not overlook any of the factors to which the Full Court referred. He said nothing to indicate that he did not give them adequate weight. The conclusion reached by the Full Court that he had failed to give them proper weight can only be explained by the fact that their Honours disagreed with his conclusion. However the mere fact that they themselves would have made a more liberal provision for the wife was no justification for substituting their own exercise of discretion for that of the primary judge." (emphasis added)

[36] As noted by Gibbs CJ, in Gronow v Gronow [17] the principle was similarly expressed by Stephen J who said:[18]

"… It will serve little purpose to refer to the numerous authorities which, in varying language but with unvarying emphasis, describe the principles which should be applied by an appellate court in an appeal from a decision founded upon the exercise of a judicial discretion. Both the judgments of the majority and the dissenting judgment of Fogarty J. in the present case refer to appropriate authorities and cite relevant passages. It is not the principles which are in doubt. It is in the application of those principles to particular cases that difficulties arise.

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all." (emphasis added)

[37] One of us, at least, might, if he had been hearing the matter at first instance, have found that the exculpatory matters rendered the termination of the applicant's employment harsh. However, as House v The King makes clear,

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course."

[38] Moreover, in Rhodes v Violet Town Bush Nursing Centre [19] the Full Bench noted:[20]

"Section 170CG(3) sets out the matters to which the Commission must have regard in determining whether a termination of employment was harsh, unjust or unreasonable. When the Commission has regard to those matters, provided it does not have regard to matters to which it should not have regard, it will be rare for a Full Bench to find that the Commission at first instance was in error in determining whether the termination of a person's employment was harsh, unjust or unreasonable."

[39] This is not one of those rare cases. The exculpatory matters relied upon by the appellant had to be weighed against the seriousness of the assault which left Mr Tracey with significant injuries and unable to perform his duties for a number of weeks in circumstances where Qantas has a legitimate interest in ensuring that such behaviour does not occur during "slip time". That is precisely what her Honour did. [21] Moreover, on the facts as found by her Honour, the remark by Mr Tracey that provoked the appellant's attack was in response to a remark by the appellant which was itself deeply offensive. On one view, Mr Tracey's remark was a rejoinder in kind so that the incident may properly be seen as having been initiated by the appellant. While other members may have taken a different view about the weight to be attached to particular exculpatory factors relied upon by the appellant and may, indeed, have come to a different conclusion on whether the termination of the appellant's employment was harsh, unjust or unreasonable, we are unable to conclude that the decision of the Senior Deputy President was, to adopt the words of Stephen J, plainly wrong, her decision being no proper exercise of her discretion. Her Honour's reasons must be given a beneficial reading and, taking that approach, we think her Honour's treatment of the various exculpatory matters does not reflect a failure to give those matters sufficient weight in the relevant sense but rather an attempt by her Honour to explain why they did not move her to conclude that, on balance, the termination of the appellant's employment was harsh, unjust or unreasonable.

[40] The appellant complains about the manner in which Qantas conducted the disciplinary process that led to the termination of his employment. A provision in the relevant certified agreement [22] provides that the parties shall abide by the "rules of natural justice" in relation to disciplinary proceedings. The appellant was not permitted legal representation on his internal appeal and a manager involved in the initial disciplinary decision was also involved in the internal appeal decision. The appellant contends that her Honour erred in finding that the appellant was not prejudiced by these matters and in failing to find a breach of the rules of natural justice and thus a breach of the certified agreement. Even if it is assumed that these matters involved a breach of the rules of natural justice and, consequently, that there was a breach of the certified agreement, we are not persuaded that her Honour erred in failing to find that these matters rendered the termination harsh, unjust or unreasonable.

[41] The fact of unfairness in the employer's decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.

[42] The appellant submitted that her Honour erred in failing to deal with an argument to the effect that the inconsistent treatment between the appellant, on the one hand, and Mr�Tracey on the other rendered the dismissal harsh, unjust or unreasonable. However, there is no substance in that argument. The appellant hit Mr Tracey. Mr Tracey did not hit the appellant. No question of inconsistent treatment for the same or substantially the same misconduct arises.

[43] We are not satisfied that the appeal raises matters of such importance that in the public interest leave to appeal ought be granted. Accordingly, s.45(2) has no application and the question of leave falls to be determined on a discretionary basis pursuant to s.45(1). For the reasons we have given we are not satisfied that the appellant has demonstrated error on the part of the Senior Deputy President warranting a grant leave to appeal. Leave to appeal is refused.

[3] See Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351-352; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178-9 (per McHugh J); Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at paras [23]-[31] (per Gleeson CJ, Gummow and Kirby JJ)

[4] [1936] HCA 40; (1936) 55 CLR 499 at 504 per Dixon, Evatt and McTiernan JJ

[8] Print Q9292, 4 December 1998

[10] the oft cited formulation in Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

[11] (1999) 89 IR 407 at ***

[12] compare Brown v Woolworths Ltd (2005) 145 IR 285.

[13] see especially paras [84] to [95] and [103] to [109]

[14] See for example Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

[15] [1984] HCA 21; (1984) 156 CLR 605

[17] [1979] HCA 63; (1979) 144 CLR 513

[19] PR909974, Giudice J, Kaufman SDP and Simmonds C, 5 October 2001

[21] see especially paras [101] to [109]

[22] Clause 11.2 of Annexure F to the Flight Attendants' Association of Australia - Long Haul Division (Qantas Airways Limited) Enterprise Agreement IV (1998-2001)

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