s.99 notification of industrial dispute

Appeal - termination of employment - evidentiary findings - onus of proof - error found - decision quashed - rehearing.

This decision, originally published on 29 April 2002, has been republished in an abridged form at the request of the appellant to protect confidential information.

[1] This is an appeal, for which leave is required, by Brinks Australia Pty Ltd (the appellant) against the decision by Commissioner Lewin on 18 October 2001[1] and the consequent order made by the Commissioner on 21 December 2001[2].

[2] The proceedings before Commissioner Lewin arose from a dispute between the appellant and the Transport Workers' Union of Australia (the TWU). The dispute concerned the termination of the employment of a TWU member, Mr Rodolfo Pena. The parties agreed that the dispute should be dealt with as if Mr Pena had lodged an application pursuant to s.170CE of the Act. The parties also agreed that the Commissioner had the power to hear and determine the dispute pursuant to clause 31(v) of the relevant enterprise agreement: the Brinks Australia Tullamarine and Notting Hill Victoria Enterprise Agreement 1999. The Commissioner decided that the termination of Mr Pena's employment was harsh, unjust and unreasonable. He made an order requiring the appellant to pay Mr Pena the amount of $12,881.13 in lieu of reinstatement.

[3] The circumstances surrounding the termination of Mr Pena's employment are generally agreed although there are a number of very important areas of disagreement. Mr Pena was employed by the appellant as a security guard for approximately 2 ½ years. The appellant held a contract with a major bank for the servicing of the bank's automatic telling machines and Mr Pena was employed in connection with that contract.

[4] A finding against Mr Pena on [a particular] issue would have made it unlikely that he would succeed in his case. The Commissioner said that he could not be satisfied [as to that issue]. In finding that the termination of Mr Pena's employment was harsh, unjust and unreasonable the Commissioner specifically relied on that finding as is evident from the following passage:

"[34] In other words I have decided that while the issue of Mr Pena's work performance relating to his conduct was serious, given Mr Pena's satisfactory employment history and the absence of any previous failure of the kind concerned the single event, as I have characterised it, did not constitute a valid reason for termination. I have also taken into account my conclusion that I cannot be affirmatively satisfied that Mr Pena [acted as alleged]. In my view, the nature of the work performance issue as an isolated incident in an otherwise satisfactory employment history is insufficient grounds for termination.

[35] For these reasons I consider that the termination of Mr Pena's employment did not constitute a fair go all round and for the purposes of the legislation was harsh, unjust and unreasonable."

[5] The appellant's grounds of appeal include a ground that in deciding whether Mr Pena had shared his combination, the Commissioner had applied the wrong onus of proof. It relied on the following paragraph in the Commissioner's decision:

"[22] [The conduct alleged] in the circumstances of the company's business has real and potential risk which must be avoided diligently and conscientiously. To reach a conclusion that an employee did so is grave both for the immediate situation of the employment and the potential consequences for future employment in the security industry. Accordingly, in the circumstances and in light of the evidentiary issues I think it appropriate to apply a higher level of satisfaction in relation to the findings of fact involved than the bare civil onus of the balance of probabilities.[3] Lest there be any confusion however, in a proceeding such as this I do not think it necessary that the finding be reached only if there remains no reasonable doubt whatsoever. Moreover, it is not desirable, in my view, to attempt to formulate an intermediate and novel level of satisfaction. I think that the finding involved and the appropriate level of satisfaction required is essentially a matter of discretionary judgment. In my view, the level of satisfaction in respect of the allegation requires more than a judgment of the balance of probabilities."

[6] The appellant's submission is that this passage indicates that the Commissioner fell into error in weighing the evidence because he failed to apply the correct onus of proof - namely, the balance of probabilities. The appellant submitted that the standard in civil proceedings is always proof on the balance of probabilities. Reliance was placed on the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others:[4]

"2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud.[5] On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear[6] or cogent[7] or strict[8] proof is necessary "where so serious a matter as fraud is to be found".[9] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct[10] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw_[11]:_

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading."

[7] It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes. The Commissioner indicated that he thought it appropriate to apply a higher level of satisfaction in relation to findings of fact involved than the bare civil onus of the balance of probabilities. That was an error of law.

[8] It is clear, as we have already indicated, that his conclusion on the issue of whether Mr Pena had [acted as alleged] was a material factor in the Commissioner's decision that the termination was harsh, unjust and unreasonable. The Commissioner went on to conclude that he was not satisfied, "to the level which I require" that Mr Pena [engaged in the conduct alleged]. In the circumstances the error of law was a material one. We cannot exclude the possibility that if the Commissioner had applied the civil standard of proof on the balance of probabilities his finding concerning the critical issue might have been different.

[9] We grant leave to appeal, uphold the appeal and quash the Commissioner's decision.

[10] The appellant submitted that in the event we found as we have we could deal with the matter ourselves or remit the proceedings to a member of the Commission other than Commissioner Lewin for rehearing. Counsel for the TWU, on Mr Pena's behalf, submitted that should we find appellable error we should remit the proceedings to Commissioner Lewin to hear and determine according to law.

[11] A number of other grounds of appeal were advanced. It is not necessary that we deal with them and in the circumstances we do not think it is desirable to do so.

[12] In the circumstances we think the appropriate course is to refer the matter back to Commissioner Lewin for determination after hearing such submissions as the parties wish to put to him in light of our decision and the arguments put on appeal.

R Manuel, of counsel, with S Zeitz for Brinks Australia Pty Ltd

W Mader for the Transport Workers' Union of Australia

Printed by authority of the Commonwealth Government Printer

3 Massoud v SITEL Corporation Australia Pty Limited [2001] NSWIRComm 218, per Grayson DP at para 42 - 43.

4 [1992] HCA 66; (1992) 110 ALR 449 at 449 - 450

5 See, e.g., Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 500; Rejfek v. McElroy [1965] HCA 46; (1965) 112 CLR 517, at pp 519-521

6 Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362; Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691, at p 701; Hocking v. Bell [1944] NSWStRp 31; (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539

8 Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538

10 See, e.g., Motchall v. Massoud [1926] VicLawRp 43; (1926) VLR 273, at p 276

11 (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711