CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia

APPELLANT: Mr A K Phelps Piper Alderman Lawyers

LEGAL REPRESENTATIVES: RESPONDENT: Mr A Hatcher of counsel INSTRUCTED BY: Mr M Kaine Transport Workers' Union of Australia New South Wales Branch

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, PRESIDENT WALTON J, VICE-PRESIDENT NEAL C

DATE: THURSDAY 29 NOVEMBER 2001 MATTER No IRC 5397 of 2000 CGEA TRANSPORT NEW SOUTH WALES PTY LIMITED t/as SOUTHTRANS v TRANSPORT WORKERS UNION OF AUSTRALIA on behalf of BOLDIZSAR BOGLARI APPEAL AGAINST A DECISION OF COMMISSIONER CONNOR GIVEN ON 16 OCTOBER 2000 IN MATTER No IRC 642 OF 2000

DECISION OF THE COMMISSION [2001] NSWIRComm 287 Introduction 1 This is an application for leave to appeal and appeal by CGEA Transport New South Wales Pty Ltd t/as Southtrans ("the appellant") against a decision of Commissioner Connor given on 16 October 2000. The proceedings at first instance concerned an application brought under s84 of the Industrial Relations Act 1996 ("the Act") by the Transport Workers Union of Australia, New South Wales Branch ("the respondent") alleging that the dismissal of one of its members, Mr Boldizsar Boglari, was harsh, unreasonable or unjust. In the decision published on 16 October 2000, Connor C concluded that the dismissal was harsh, unreasonable or unjust and awarded the sum of $15,500 as compensation pursuant to s89(6) of the Act.

2 Prior to his dismissal, Mr Boglari had been employed by the appellant as a bus driver since late 1998. At the time of his dismissal, Mr Boglari was working out of the appellant's depot at Menai. The immediate circumstances preceding Mr Boglari's dismissal concerned a complaint received by the appellant from a member of the public. On 21 January 2000, a telephone complaint was received from a motorist concerning the driver of one of the appellant's buses. The bus was identified as being driven by Mr Boglari. The ordinary procedures of the appellant required that a complaint be recorded in the "Complaints Register" and later transferred to a "Driver Complaint Response Sheet". The "Driver Complaint Response Sheet" was then given to the driver involved who was required to respond to the complaint within 24 hours. The appellant would then evaluate the complaint and take whatever action was necessary.

3 The complaint was recorded in on the "Driver Complaint Response Sheet" in the following terms: …Bus 123 exited Allison Crescent headed towards Bangor - was flashing his headlights. At shops under bridge bus went to the kerb or LH turn lane, heavily accelerated, undertook both cars then slowed after Yala Road. Bus went slow from Vets to Sutho. Bus exceptionally slow down and up Woni Bends. Motorist upset at this thoughtless driving tactics …

4 A significant issue arises in this appeal as a result of the fact that the complaint was recorded in different terms in the complaints register. In the complaints register, the complaint was recorded in the following terms: … Our bus #123 M/O 7323 exited Allison Crescent at 7.30pm turning left heading towards Bangor. Driver attempted to enter the round-about by forcing two cars to stop that had entered from MMP side of the round-about (Menai Road). As the two cars and bus approached Bangor, the bus driver was flashing his headlights, then swerved to the kerb - undertook whilst heavily accelerating, then veered in front of both cars near traffic lights. Bus went slowly down Woni Bend and even slower up from the Sutho side. Complainant upset by selfish attitude …

5 In the decision at first instance, the Commissioner observed that considerably more detail was provided in the complaint as recorded in the complaints register. The Commissioner observed: Mr Richard's evidence is that it is his practice to fill in the entry in the complaints register first and then transpose that entry to the driver complaint form. That is what he claimed to have done on this occasion. But the entry in the complaints register clearly gives more detail than the complaint form. It uses less abbreviations, eg. "… our Bus #123 M/O 7323 …" instead of "… Bus 123 …", as appears in the driver complaint form and it is neater handwriting than what he recorded in the complaint form which appears to contain a minor correction on one word. Too neat, in my opinion, to record a telephone message as it is being made. Those facts suggest to me that the complaints register was written up later - and, in the process, substantially expanded. It is open to me to conclude, and I do conclude, that the complaint form was filled in first and then later the complaints register entry was made from that entry. How much later is a question of consideration importance in this hearing.

6 In any event, Mr Richards, the Depot Manager, handed the "Driver Complaint Response Sheet" recording the complaint which had been received to Mr Boglari on 24 January 2000. Mr Boglari's evidence was that he responded orally to Mr Richards and understood that Mr Richards was satisfied with his response. The evidence of Mr Richards differed in this respect. Mr Richards gave evidence that he requested that Mr Boglari provide a written response in accordance with the appellant's usual practice. Mr Boglari did not provide a written response.

7 On 27 January 2000, Mr Richards approached Mr Boglari when he arrived at work to discuss whether he had completed the driver complaint form. An altercation ensued between Mr Richards and Mr Boglari. The Commissioner recorded the evidence as follows: When Mr Boglari arrived at work at midday on Thursday, 27 January, 2000 Mr Richards spoke to him in the operations room at the Menai bus depot, asking him if he had completed the driver's complaint form he had been given. Mr Boglari claimed that he responded as follows: "We've already discussed that. I have given you an explanation. I did nothing wrong. I told you there was a dedicated bus lane in front of the Bangor shops."

The recollections of Mr Richards (and Mr Kevin Kidd who overheard the conversation) was that Mr Boglari's response was to the following effect: "It's a load of crap and I'm not going to fill out the form."

Mr Richards informed Mr Boglari that he must still complete the driver's complaint form and he now had 24 hours in which to do it. In other words Mr Richards had, to some extent, stopped the clock with the existing 24 hour period, which would otherwise have run from Tuesday, 25 January, 2000. He was giving Mr Boglari a further 24 hours to formally respond to the complaint.

8 Mr Kidd, the senior manager of the appellant, then entered the operations room and was informed by Mr Richards as to the nature of the complaint and Mr Boglari's refusal to provide a written response. The Commissioner continued: Mr Kidd's evidence in this hearing was that he was returning to work with his lunch in his hand and, according to his written statement, he simply "...heard raised voices..." and went in to investigate. In his written statement Mr Kidd used the plural - "voices" - but in his oral evidence he qualified that to claim that it was only Mr Boglari who had raised his voice. I am inclined to prefer the evidence Mr Kidd gave in his written statement, ie that both Mr Richards and Mr Boglari had been shouting at one another because that is what he originally claimed in his written statement. But certainly, at least there is no doubt that Mr Boglari was shouting at Mr Richards.

Mr Boglari recorded in his written statement that he: "...was getting upset because I did not think that the complaint revealed that I had done anything wrong. Mr Richards then started to retell the complaint, adding parts that were not in the original complaint..."

That is to say giving the expanded version of the incident contained in the complaints register entry and, from Mr Boglari's perception, moving the goal posts substantially. Mr Richards also recalled speaking at that time to Mr Kidd and giving him information which was in the complaints register but not in the driver complaint form that had been provided to Mr Boglari, viz: "Jerry nearly caused an accident at the Allison Crescent round-about. He forced his way into the round-about and the complainant had to stop to avoid running into the bus."

This was the first time that Mr Boglari had heard of the incident in the round-about and he pointed out, accurately enough, there was nothing of that in the driver's complaint form. Mr Boglari's written statement continued: "...I was very upset by this new allegation. Mr Richards had not mentioned it to me and it was not in the complaint that Mr Richards had written down and handed to me earlier. So I interrupted Mr Richards and asked Mr Kidd to instruct Mr Richards to read out the complaint word for word, rather than from memory. Mr Kidd did that and Mr Richards then read out the complaint as originally written..."

Mr Boglari asked Mr Kidd what part of the driver's complaint form spoke about him forcing cars off the road and almost causing an accident and told Mr Kidd that Mr Richards "...was just making it up as he pleases...". Mr Kidd responded to Mr Boglari: "Don't be smart with me. Be civilised."

Mr Kidd then instructed Mr Richards to rewrite the complaint - just to "...re-format it...", according to Mr Kidd - but, in fact, I believe that he intended to add to it the extra incident. He directed Mr Boglari to give him back the original complaint which Mr Boglari refused to do. Mr Kidd claimed that he did this because, in his view, Mr Boglari did not understand the wording of the driver's complaint form and he was attempting to have it rewritten in a form that Mr Boglari would be able to make sense of. I am satisfied that Mr Boglari understood the complaint in its existing form perfectly well and did not need it to be changed for clarification. He simply did not accept it as a legitimate complaint. That seems to me to be a logical conclusion for him to draw.

Mr Boglari became more angry and upset at the way the discussion was progressing. Mr Richards recalled Mr Boglari speaking as follows: "I'm not answering it if it's re-written. He can add anything he wants."

Mr Kidd spoke to Mr Boglari in the following terms: "Jerry, you have to answer the complaint - it's part of our accreditation requirements with the Department of Transport." Mr Boglari's version of the subsequent conversation was as follows:

Mr Boglari: What do you think I am, stupid? You can't instruct him to rewrite a complaint to add things that did not happen. You are totally unprofessional.

Mr Kidd: Look, you have to answer the complaint. That is the system. If you don't give a written response, I am going to refer the matter to the Department of Transport.

Mr Boglari: This is a set-up just to get rid of me. I'm going to seek advice from the Anti-Discrimination Board."

Mr Kidd: You be very, very careful Jerry what you say.

Mr Boglari claimed that Mr Kidd repeated those words several times in a loud voice. According to Mr Richards, Mr Kidd had asked Mr Boglari: "What discrimination? Tell us an instance where we have discriminated against you?"

At that point the discussion deteriorated further. Mr Boglari claimed that he felt very threatened by Mr Kidd and concerned for his safety. He believed that Mr Kidd, who was standing in the doorway and in the confined space of the operations room, was blocking his exit and apparently invading his space. Mr Boglari said in a loud voice: "Don't touch me. Keep away. Don't touch me. Get out of the way. Let me out of here."

Mr Richards claimed in his evidence that Mr Boglari had said to Mr Kidd: "You're assaulting me."

And then: "Someone come and witness this - he won't let me out."

The evidence of Mr Blacklock and Mr Kyriakiolis, who also overheard parts of the conversation at least, is to similar effect. Mr Kyriakiolis recalled Mr Kidd speaking to Mr Boglari as follows: "I'm not touching you. You are free to go. I'm not stopping you."

At no time did it appear to Mr Richards that Mr Kidd or anybody else was physically threatening or restraining Mr Boglari. Mr Kidd recorded in his written statement that he: "...was completely taken aback by what Mr Boglari was doing. I hesitated for a second to work out what was going on. I then moved back out of the doorway of the operations room and across the hallway to the open door into the workshop..."

Mr Kidd's hesitation falls substantially short of any restraint on Mr Boglari, in my opinion. It may have been Mr Boglari's perception that Mr Kidd was blocking his way but I do not accept from the evidence that he was doing so. As Mr Phelps submitted, it was not Mr Boglari's perception, affected as it was by the heat of the moment, on which I may rely but an objective assessment of the situation. Such an objective assessment does not support Mr Boglari's claim, at least on that issue.

Mr Kidd told Mr Boglari, firstly, to calm down or he would call the police and have him removed from the office and when Mr Boglari did not calm down he directed Mr Boglari, secondly, that he must leave the office or he would call the police. Mr Boglari did leave the office. He went to the police station where he took the initiative and reported the incident with Mr Kidd with predictable results. The subsequent police investigation of the matter confirmed that it was not a matter for them but was an in-house industrial issue which, of course, it was.

9 Mr Kidd subsequently telephoned Mr Croft, the Director of operations for the appellant, who arrived at the depot later in the day. Mr Boglari was taken to see Mr Croft who told him he was to be suspended on full pay for seven days.

10 A meeting was arranged for 2 February 2000 to discuss the matter. Mr Boglari attended accompanied by an officer of the respondent union, Mr Nightingale. When Mr Boglari and Mr Nightingale arrived at the meeting, they were provided with certain documentation relating to the complaint. Mr Nightingale objected to the procedure proposed by Mr Croft. Mr Nightingale and Mr Boglari then left the meeting. The respondent subsequently filed a notification of an industrial dispute under s130 of the Act. Pursuant to a direction by the Commissioner, the meeting was reconvened on 8 February 2000 with Mr Boglari again accompanied by Mr Nightingale.

11 Following the meeting, Mr Croft handed Mr Boglari a letter summarily dismissing him from his employment. The letter specified three grounds for Mr Boglari's dismissal, namely:

i. That Mr Boglari did act in an abusive and threatening manner towards Managers, whilst they were pursuing their normal duties. ii. That threats and accusations were made by Mr Boglari, all of which were without substance. iii. That the company was brought into disrepute by the involvement of police officers, based on false accusations.

12 Mr Croft indicated that the matter could have been totally avoided if Mr Boglari had submitted a response to the complaint as requested. Taking into account all the facts, Mr Croft determined that the charge of gross misconduct had been proven and dismissed Mr Boglari immediately.

13 In addition to recording the evidence immediately preceding Mr Boglari's dismissal, the Commissioner set out a number of events occurring in the year preceding the dismissal by way of background to the relationship between Mr Boglari and the appellant. In particular, the Commissioner noted that there had been a history of conflict between Mr Boglari and Mr Richards and Mr Kidd. Conflicts had arisen following a work injury suffered by Mr Boglari on 11 May 1999. Mr Boglari alleged that the appellant failed to make adequate arrangements for his return to work. A dispute also arose at this time in relation to the deduction of taxation from the workers' compensation payments received by Mr Boglari.

14 Mr Boglari alleged that the roster was subsequently changed without him being notified. Mr Boglari claimed that when he went to discuss the matter with Mr Kidd, Mr Kidd instructed him to go home and pushed him out of the office. Mr Boglari reported this incident to police. Mr Boglari was informed that he was suspended from work. Following the intervention of Mr Croft, Mr Boglari was reinstated to the roster. Finally, another dispute arose when Mr Boglari was refused a request for two days recreation leave. Having been refused permission to take leave, Mr Boglari was absent sick on the days in question. It should be observed that the respondent did not seek to rely on these previous incidents to justify the dismissal of Mr Boglari. Rather, they were raised by the respondent as background to the events of 27 January 2000.

15 After recounting the events leading to the dismissal, the Commissioner stated that it was necessary to consider whether the dismissal was harsh, unreasonable or unjust in light of Mr Boglari's employment history. The Commissioner commented: … the past history of an employee is relevant when considering whether a particular incident justifies his dismissal. But that should cut both ways in my opinion: an employee should also be entitled to rely on past difficulties in his relationship with his employer to justify a claim that his reaction on one particular occasion which, looked at in isolation, may represent extraordinary and unacceptable conduct, should be considered in the context of the overall employment record. It is only in that way that the conduct of Mr Boglari on Thursday, 27 January, 2000 makes any sense at all. That being said, the reason for Mr Boglari's dismissal, as Mr Phelps submitted, was still his extraordinary conduct on Thursday, 27 January 2000 in his discussions with Mr Richards and Mr Kidd. Mr Boglari was summarily dismissed for alleged gross misconduct because of that incident. In the first place, the question is whether that conduct was such as to constitute the gross misconduct asserted by Mr Croft. And also how much of the extensive employment history of Mr Boglari with Southtrans, to which Mr Kaine alluded in his submissions, should be brought into consideration. (emphasis added)

16 Taking into account all the circumstances of the case, the Commissioner stated that the conduct of Mr Boglari was "certainly unwise and excessive". However, the Commissioner concluded that his actions were in the heat of the moment and did not affect his contract of employment in a fundamental way. The Commissioner continued: It is universally accepted that a single act of bad temper, accompanied as it may sometimes be with regrettable language, does not usually give rise to summary dismissal. The matter must be assessed according to the standards of men, not angels, and men are often likely to show temper when they are reprimanded [ Jupiter General Insurance Company Limited v. Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]. I note in this case, at least, that Mr Boglari did not use offensive language in the heated exchange he had with Mr Richards and Mr Kidd. It seems clear to me that Mr Boglari has a volatile personality. But he was known to have such a personality by Mr Richards and Mr Kidd and it seems that their conduct, whether by design or not, was very likely to produce the type of outburst they got from him.

Mr Boglari responded poorly to a reprimand he received, forming the view that he was threatened. And, in fact, he appears to me to have been. That threat was not a physical threat to attract police action - Mr Boglari was wrong to involve the police. But it was real enough in his mind - a loss of his job - and that is what ultimately occurred. A self-fulfilling prophecy to some extent. His conduct is not, in my view, a proper basis for a summary dismissal however. And there were other issues which, to my mind, make his dismissal unfair to attract a remedy under Part 6.

17 Having made this determination, the Commissioner proceeded to discuss a number of additional aspects of the case that are central to the submissions advanced by the appellant on appeal. The first matter referred to by the Commissioner concerned the discrepancies between the complaint recorded on the complaints register and the driver complaint response sheet. The Commissioner stated: To begin with, at no time was Mr Boglari ever shown the extended entry in the complaints register prior to his dismissal. It did not come to light until it was produced as an attachment to witness statements for the arbitration of Mr Boglari's Part 6 application. I note that the complaints register is in loose leaf form. There must therefore be a strong suspicion from the evidence before me in this hearing that the entry in the complaints register was made much later than the driver's complaint form, possibly even by way of a replacement page in the loose leaf register to an entry already made but removed - ex poste facto justification of the claim by Mr Richards and possibly Mr Kidd to give retrospective support to their position, ie to avoid any suggestion that Mr Boglari was being set-up by them.

18 The appellant referred to this passage of the decision as the Commissioner's "fabrication findings". After expressing his suspicions as to the entry in the complaint's register, the Commissioner observed that the matter could have been resolved had the motorist who made the complaint been called to give evidence at the hearing. The Commissioner stated: The matter may have been effectively resolved if the motorist who had made the complaint in the first place was brought forward to give evidence in the hearing. The nature of his complaint would have been established as evidence in this hearing. The complainant was identified to Mr Richards since it is his responsibility to follow up such complaints and respond to them. But he was not called as a witness by Mr Phelps . If evidence is available and it is not adduced, the party failing to do so may leave an inference that such evidence is not helpful to its case [ Jones v. Dunkel (1959) 101 CLR 298].

19 The Commissioner then stated that the history of Mr Boglari's employment, in particular his relationship with Mr Richards and Mr Kidd, was relevant because it suggested that there had been a certain amount of provocation of Mr Boglari in the past. The Commissioner stated that the proposition that Mr Richards and Mr Kidd unnecessarily provoked Mr Boglari in the events preceding his dismissal appeared to be consistent with their earlier behaviour. The appellant referred to this finding as the "similar fact finding".

20 Finally, the Commissioner concluded that the disciplinary process undertaken by the appellant was not fair in the circumstances of the case. Although there was a detailed and formal disciplinary process, the Commissioner stated that Mr Croft was doing "no more than going through the motions with Mr Boglari to give support to the decision already taken to dismiss him." The Commissioner noted that Mr Croft was not aware of the contents of the complaints register and concluded that the investigation was incomplete and the internal appeal process tainted.

21 Following this discussion, the Commissioner stated his conclusion that the dismissal was unfair in the following terms: Mr Boglari's response, in the heat of the moment, may have been extravagant and misdirected in all the circumstances but I have come to the conclusion that his summary dismissal because of it was for present purposes unfair - harsh, unreasonable or unjust, to use the terminology of S.84(1) both procedurally (because of the flaws in Mr Croft's investigation of the matter) and substantively (because, in all the circumstances, I do not believe that dismissal, summary or otherwise, was warranted). Mr Kaine explained the position when he stated that he believed the ultimate sanction of termination was too severe a penalty [ Pacific Power v. Crump (1993) 48 IR 296 at p.302]. I agree . (emphasis added)

22 The Commissioner noted that Mr Boglari sought reinstatement to his position. The Commissioner stated that he found this "attitude" "extraordinary", in that Mr Boglari sought to return to work in an environment where he had constant arguments with his two supervisors to the point where he called the police on two occasions. The Commissioner determined that Mr Boglari's resumption of work with the appellant was not a viable option, but ordered that the appellant pay Mr Boglari the sum of $15,500 under s89(6) of the Act.

23 The major questions raised by the appellant on appeal concerned an alleged denial of procedural fairness that resulted from certain findings made by the Commissioner. Mr Phelps, who appeared on behalf of the appellant, placed particular emphasis on the so-called "fabrication findings". The appellant objected to the findings made by the Commissioner that the complaints register had been completed by Mr Richards after the driver complaint response sheet, possibly by way of replacement of a page in the loose-leaf register, and that this had been done to provide retrospective support to the appellant's position. The appellant submitted that the allegation that the complaints register had been fabricated was not raised by the respondent or by the Commissioner at the hearing, nor was the matter put to witnesses, particular Mr Richards, whose evidence was contradicted by the finding. The appellant submitted that it had been denied the opportunity to adduce evidence at the hearing which would have dispelled any allegation of fabrication.

24 The appellant objected to a number of subsequent findings that, it was submitted, followed from the "fabrication findings". The appellant submitted that there was no basis for the Jones v Dunkel inference made by the Commissioner that the evidence of the motorist who submitted the original complaint would not have assisted the appellant's case had he or she been called. The appellant submitted that it had also been denied procedural fairness in relation to this finding. It was contended that no allegation was raised at the hearing in relation to the integrity of the complaints register or the veracity of the complaint itself. As a result, it was submitted that the appellant was denied the opportunity to adduce evidence which would have established that the complaint was genuine.

25 The appellant also submitted that the Commissioner erred in concluding that the allegation that Mr Richards and Mr Kidd acted in a provocative manner was consistent with their behaviour on other occasions (the "similar fact" findings). It was submitted that the past conduct of Mr Richards and Mr Kidd did not lead to the conclusion that they were likely to act in a provocative manner. The appellant contended that there was no relevant commonality between the events of 27 January 2000 and earlier disputes between Mr Boglari and Mr Richards and Mr Kidd.

26 The appellant submitted that the "fabrication findings", the Jones v Dunkel inference and the "similar fact" findings affected the Commissioner's deliberation in relation to other findings of fact. It was contended that these findings, which were either not available or made in denial of procedural fairness, materially prejudiced the position of the appellant and that the whole of the Commissioner's decision was tainted by these findings. In addition, the appellant contended that the Commissioner's decision was founded on the proposition that it was necessary to understand the actions of Mr Boglari in light of previous events. Without the erroneous findings made by the Commissioner, it was contended that there was no relevant prior history in which the actions of Mr Boglari should be understood and, as a result, there was no objective basis for Mr Boglari's conduct.

27 Mr A Hatcher of counsel, who appeared on behalf of the respondent, submitted that there was no denial of procedural fairness in the Commissioner's decision. Although Mr Boglari raised in his evidence the allegation that he was being set up, the respondent conceded that the allegation that the complaints register was fabricated had not been raised at the hearing at first instance or put to any witness. However, the respondent contended that the observations made by the Commissioner in relation to the entry in the complaints register were no more than speculation. The respondent emphasised that the Commissioner's statements were qualified by the words "strong suspicion" and "possibly". It was submitted that the Commissioner made no direct finding that the complaints register had been fabricated.

28 The respondent submitted that, notwithstanding the reference to that case, no inference of the type referred to in Jones v Dunkel was made by the Commissioner. The Commissioner's comments were limited to an observation that the evidence of the complainant would have assisted in confirming or denying the nature of the complaint. Similarly, the respondent submitted that no similar fact findings were made. It was contended that the observations of the Commissioner in this regard were limited to a finding that conduct towards Mr Boglari which had proved provocative in the past supported the notion that the conduct of Mr Richards and Mr Kidd on 27 January 2000 was also provocative. The respondent contended that the evidence of the earlier incidents involving Mr Boglari was relevant because they helped to explain his reaction on that day.

29 In the alternative, the respondent submitted that, even if a denial of procedural fairness had occurred, the findings made in relation to the alleged fabrication of the complaints register were independent of the findings of the Commissioner in relation to the substantive unfairness of the dismissal. It was contended that the Commissioner determined that the dismissal was unfair having regard to the conduct of Mr Boglari on 27 January 2000. The respondent submitted that this finding was open to the Commissioner on the evidence and, without more, warranted the intervention of the Commission to grant a remedy to Mr Boglari. Even if the Full Bench were to find that the Commissioner made findings in denial of procedural fairness, it was submitted that the decision should be permitted to stand.

Leave to Appeal and the Approach on Appeal 30 This is an appeal brought pursuant to s187 of the Act. The appeal may only be brought with leave of the Full Bench, however, the Full Bench is to grant leave to appeal if the matter is of such importance that, in the public interest, leave should be granted.

31 We have decided to grant leave to appeal in this matter having regard to the submissions advanced by the appellant concerning the potential denial of procedural fairness at first instance. We also note that the respondent conceded that some matters referred to in the decision of the Commissioner were not raised at the hearing. Although the question of leave does not require that a matter be finally determined, we observe that the submissions of the appellant raise the possibility of a miscarriage of justice. In our view, these submissions provide a proper basis for leave to appeal be granted in the circumstances of this case.

32 The appeal is governed by s191 of the Act. The approach to be adopted on appeal has been authoritatively determined in the course of a number of previous decisions of Full Benches of the Commission. We refer particularly to the recent decision of the Full Bench in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 327-328. We adopt the principles as stated in that decision.

33 The Commission, when not sitting in Court Session, is not bound to act in a formal manner, is not bound by the rules of evidence and may inform itself in any way that it considers to be just: s163(1)(a) and (b) of the Act. However, the Commission is required to act according to equity, good conscience and the substantial merits of the case: s163(1)(c) of the Act. This requirement clearly encompasses an obligation to observe procedural fairness in relation to proceedings before the Commission: see General Pants (Trading) Co Pty Ltd v Shonny (unreported, Fisher P, Schmidt J and Murphy CC, Matter No IRC 3123 of 1993, 8 September 1994, at p12).

34 Numerous decisions have affirmed the principle that arbitral tribunals, although not bound by the rules of evidence or obliged to adopt the strict procedures characteristic of the courtroom, are nonetheless required to adhere to the dictates of procedural fairness. In Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court observed that broad powers were conferred on the Federal Commission to make an award and was not restricted to the specific relief claimed by the parties. However, the Court stated (at 23-24): But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.

35 The precise requirements of procedural fairness will depend on the entire circumstances of the case and the statutory context in which the decision-maker is operating. It is clear, however, that a party to proceedings is entitled to know that case which they are required to answer. In Kioa v West (1985) 159 CLR 550 at 582, for example, Mason J said: It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

36 Fairness requires that each party be given the opportunity to meet the case which is put against him or her. In adversarial proceedings, this ordinarily means that the decision maker is precluded from addressing issues not raised by the charges or pleadings and the submissions of the parties at hearing: see Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. A decision maker may also be required to identify critical issues which it is proposed to decide against a party, at least where those conclusions are not obvious or anticipated.

37 The approach to procedural fairness in the context of adversarial proceedings may be illustrated by reference to the decision of Beazley J in Marelic v Comcare (1993) 47 FCR 437. In that case, it was alleged that the applicant had been denied procedural fairness in proceedings before the Administrative Appeals Tribunal on the ground that the tribunal had determined the case on the basis of matters that were not raised with the applicant at the hearing. Relevantly, the tribunal had determined that the applicant had feigned or exaggerated her symptoms. Her Honour stated (at 442): The rule in Browne v Dunn is a procedural rule grounded in fairness, and its application must depend upon the circumstances of each case. In Trade Practices Commission v Mobil Oil Australia Limited (1984) 3 FCR 168 Toohey J held (at 181) that in circumstances where the respondent's legal advisers were fully alerted before and during the hearing to the allegations made against the company and the evidence upon which the Commission relied, it was unnecessary to consider the operation of the rule in Browne v Dunn . A similar approach was adopted by Spender J in Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 where his Honour held (at 236) that in the circumstances of that case, the failure to put the contents of a video to the medical witnesses produced no unfairness to the applicant. It is not necessary to determine whether the rule, as such, applies to proceedings before the Tribunal. Indeed I consider that to be the wrong question to determine. The Tribunal is bound to observe the rules of procedural fairness and in that regard, the rule in Browne v Dunn , with the qualifications to which I have referred, is a convenient statement of the content of that aspect of procedural fairness which requires that a party be given adequate opportunity to meet the case which is put against her or him.

38 Her Honour found that the applicant had been denied procedural fairness in relation to the question of whether she had been feigning or exaggerating her symptoms. This allegation, which the tribunal found to be substantiated, had not been put to the applicant in cross-examination and counsel for the respondent had expressly disavowed that any such allegation was being made.

39 In this case, we consider that there was a denial of procedural fairness in relation to the Commissioner's finding that there must be a strong suspicion that the entry in the complaint's register was made later than the driver's complaint form and that the entry had possibly been made later by Mr Richards or Mr Kidd to provide justification for their position in the dispute with Mr Boglari. The respondent contended that the discrepancy between the complaints register and the driver complaint response sheet was a live issue at the hearing and Mr Boglari's evidence included the suggestion that he was being set up. We do not consider that these matters sufficiently raised the question of whether the entry in the complaints register had been fabricated. As was conceded by counsel for the respondent, the allegation that the entry in the complaints register had been made at some time subsequent to the complaint was not raised by the respondent at first instance, nor was it the subject of debate before the Commissioner. Although the Commissioner couched his comments in terms of "suspicion" and "possibility", in our view, to reach those conclusions without the matters being raised with the appellant resulted in error.

40 We also consider that there was a breach of the requirements of procedural fairness in relation to the Commissioner's comment that an inference could be drawn that the evidence of the complainant would not have been helpful to the appellant's case because it did not call him to give evidence. It may have been the case that the complainant could have given evidence as to the substance of the complaint which could have resolved any question as to whether the entry in the complaints register had been made at a time later than the complaint or differed in terms from the substance of the complaint made by the complainant. However, for the reasons we have given, the question of whether the complaints register had been fabricated was not in issue between the parties. The veracity of the complaint itself was not questioned in the proceedings before the Commissioner and the appellant was not fairly afforded the opportunity of calling evidence to address that question. As a result, it was not open to the Commissioner to draw the inference that the evidence of the complainant would not have been helpful to the appellant's case.

41 However, where there has been a breach of the requirements of procedural fairness, it may be necessary to examine closely the consequences of the failure or breach. A party is undoubtedly entitled to a fair hearing. However, that entitlement does not lead to the conclusion that every infringement will necessarily require that the decision be quashed or a new hearing ordered. In Stead v State Government Insurance Commission (1986) 161 CLR 141, for example, the High Court observed that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. The court continued (at 145): For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submission on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

42 The example given by the High Court in Stead of a circumstance where a new trial would not be ordered because of futility may be thought to be a rather particular or rare situation. It does not, however, follow that a breach of procedural fairness, regardless of its actual circumstances or actual effect on the result of the initial proceedings, will in other circumstances invariably result in the original decision being set aside and a new hearing. 43 For example, the Court of Appeal in Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 337 - 338 rejected an argument that a breach of the duty to accord natural justice (now more usually referred to as procedural fairness) rendered an exercise of power ultra vires and held that the consequences of a breach depends on its nature and substance, rather than its form. Glass JA (with whom Samuels and Priestley JJA agreed) said: It seems to me that the proposition is inconsistent with the statement of Lord Wilberforce in Malloch [ v Aberdeen Corporation [1971] 1 WLR 1578; [1971] 2 All ER 1278] previously referred to viz (at 1595; 1294): "… A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by failure." If the breach of duty is of no consequence when no prejudice ensures, the performance of the duty cannot be an a priori condition upon which the validity of the exercise of power depends. It is a source of potential invalidity only depending upon the circumstances of the breach. The submission also runs counter to the doctrine that the act is valid until successfully challenged and the subrules that a denial of natural justice will not affect validity where there has been waiver: R v Williams; Ex parte Phillips [1914] 1 KB 608, or no prejudice, Malloch . Notwithstanding the denial, the exercise of power is not ultra vires as in the case of jurisdictional error or exercise of power for a purpose extraneous to the scope of the grant: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170.

44 Similarly, in Marelic v Comcare, Beazley J observed (at 442) in relation to an infraction of the rule in Browne v Dunn: The mere fact that the rule in Browne v Dunn has been violated does not mean, necessarily, that there should be a new trial. Whether or not there should be a new trial depends upon the nature of the infraction, the remedy being within the discretion of the trial judge: see Seymour's case, per Glass JA, with whom Reynolds JA agreed; and Payless Superbarn (NSW) Pty. Limited v O'Gara per Clarke JA (at 556).

45 Care must also be exercised in considering cases where superior courts have, with the support of academic writers, declined to refuse prerogative or similar relief for "trivial" breaches. For example, where a breach of the hearing rule was such that it was said "its observance would have made no difference to the final result": Aronson and Dyer Judicial Review of Administrative Action Law Book Company Limited, 1996 at pp 486ff. The primary basis, as Aronson and Dyer observe, for the courts approaching the matter in this way is that, in judicial review proceedings, courts are not concerned, as we are in these proceedings, with the merits or correctness of the decision under review. See, for example, Village Roadshow Corporation Ltd v Sheehan (1987) 75 ALR 539 at 553 where Einfeld J, in declining to refuse relief said: The respondent's argument that all the court's intervention can achieve is the reconsideration of the decision by the whole Review Board, seems to miss the point that that is what judicial review is about.

46 In these proceedings it is therefore necessary to assess whether the findings made in denial of procedural fairness played a significant part in the decision under review. In Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354, for example, the Court of Appeal considered an appeal from a decision of the Government and Related Employees' Tribunal ordering that the dismissal of an employee be set aside. The tribunal determined that the dismissal was too harsh in the circumstances of the case. In the course of its decision, however, the tribunal had made comments critical of the management of the employer in that it had been deficient in failing to detect the non-observance of the budgetary constraints which were claimed by the employer to justify the dismissal. The employer claimed that it had been denied the opportunity to make submissions in relation to these matters. The majority (Priestley and Meagher JJA) dismissed the appeal on the grounds that the comments did not play a material role in the tribunal's decision. Priestley JA stated (at 365): I do not think the idea embodied in the remarks played any material part in the Tribunal's decision. They were in my opinion in the nature of reflections on what the position in the case would have been if one aspect of the Totalisator Agency Board's organisation were managed in a particular way. To make such incidental reflections in the process of deciding the case on the basis of what actually happened could not, in the circumstances of the case, amount to such a denial of procedural fairness on any aspect of the case which had any bearing on the Tribunal's decision. It is perhaps possible to imagine a case where some extraneous remark by a tribunal, although not relevant to any issue before the tribunal, so clearly showed prejudice or misunderstanding likely to affect the tribunal's decision, that it could be attacked on the ground (among others) that if the party affected had not had a chance to deal with the subject matter of the remark, the decision must be set aside on the ground of denial of procedural fairness. I do not think the facts in the present appeal are of that kind.

47 A careful analysis of the decision of Connor C and particularly the way in which he reasoned his consideration of the basis for finding that the statutory criteria for relief were met, demonstrates the errors which the appellant properly complains of, were not crucial but rather peripheral to the decision made. There are two key passages in the decision to which reference must be made. The first is that emphasised in paragraph [15] above, and the second in paragraph [21]. Those passages represent the foundations of the decision made and neither of them depended for its validity on the errors identified. 48 The first passage, and the subsequent conclusion as to the propositions posed in it, were based on Connor C's assessment of Mr Boglari's "extraordinary conduct" on the relevant day which the Commissioner pointedly criticised as "unwise and excessive" but also held occurred "in the heat of the moment and … did not effect (sic) his contract of employment in any fundamental way". Although he found that the conduct of Messrs Richards and Kidd may have caused or contributed to Mr Boglari's conduct he made clear that he did not find that was done intentionally. He described it occurring "whether by design or not". 49 Although the decision then refers to certain "other issues" which make the dismissal unfair so as to attract a remedy under the statute, reference to the second emphasised passage shows that the statute was held to be relevantly attracted because of procedural unfairness caused by the flaws in Mr Croft's investigation of the matter. Neither of the Commissioner's errors was material to that finding. Although he referred to Mr Croft's lack of awareness of all of the details of the driver complaint and of the discrepancies between the complaint form and the entry in the register, there is no reliance on the supposed fabrication or on failure to call the complainant driver. 50 Similarly, neither of Connor C's errors is material to the finding of substantive unfairness. That finding turned essentially on the Commissioner's assessment of the employee's conduct at the time, both in terms of its actual seriousness or gravity and the penalty imposed for it, and on whether the penalty, when assessed against the conduct and in the context of the employee's employment record, was severe or harsh.

51 In this case, we do not consider that the errors made by the Commissioner were of such a nature as should result in intervention by the Full Bench on appeal. The observations made by the Commissioner in relation to the possible fabrication of the complaints register and failure of the appellant to call the complainant to give evidence were not, in our view, critical to the decision. As earlier mentioned, having recounted the evidence of events leading to Mr Boglari's dismissal, the Commissioner proceeded to find that, although Mr Boglari's conduct had been unwise and excessive, it had not been such as to justify his summary dismissal. In arriving at this conclusion, the Commissioner observed that Mr Boglari's behaviour was in the heat of the moment and constituted a single act of bad temper. The Commissioner observed that a single act of temper does not usually give rise to summary dismissal and that Mr Richards and Mr Kidd were aware that Mr Boglari had a volatile personality. The Commissioner prefaced his subsequent comments by stating that there were other issues that made the dismissal unfair. The conclusion that these matters were incidental to the Commissioner's conclusion is clear on the face of the decision and, in any event, is confirmed by the conclusion that the dismissal was too severe a penalty.

52 We do not consider that the Commissioner's decision was irrevocably affected by his observations in relation to the possible fabrication of the entry in the complaints register. The conclusion that Mr Boglari's conduct did not warrant summary dismissal flowed directly from the Commissioner's consideration of the evidence relating to the events of 27 January 2000. That determination was made in consideration of Mr Boglari's actions on that day. The appellant contended that the "fabrication findings" prejudiced its position because the Commissioner referred to the need to examine Mr Boglari's actions in light of background events. We do not consider that the background events to which the Commissioner was referring included the issue whether the entry in the complaint's register had been fabricated. Rather, in coming to his decision, the Commissioner considered the entire history of Mr Boglari's employment, including the conflict between Mr Boglari and the appellant. There was nothing inappropriate or unusual in the Commissioner approaching the evidence in this manner.

53 In our view, the conclusion that the dismissal was harsh, unreasonable or unjust was open to the Commissioner on the evidence properly available to him. Indeed, as is clear from our earlier consideration, the Commissioner's reasoning does not in fact depend on the impugned findings. The appellant sought to justify Mr Boglari's summary dismissal solely by reference to his conduct on 27 January 2000. The evidence relating to the conduct of Mr Boglari on that day was relevantly unchallenged. Although Mr Boglari should have responded co-operatively to the complaint in accordance with the procedure established by the appellant, the question must be whether his failure to do so, and his reaction when confronted, justified summary dismissal. This question is to be addressed by considering whether Mr Boglari's actions were incompatible with the fulfilment of his duties to the appellant or demonstrated a disregard for essential conditions of his contract of employment: see Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82; Laws v London Chronicle Ltd [1959] 2 All ER 285 at 287 and North v Television Corporation (1976) 11 ALR 599 at 609.

54 Although Mr Boglari may have overreacted when confronted concerning the complaint, we note that there was no allegation that he used any abusive language or made any threat to Mr Richards or Mr Kidd. The Commissioner properly observed that a single act of temper would not usually justify summary dismissal. We would add that, in the circumstances of a particular case, a single act may justify dismissal, but only if that act challenges essential conditions of the employment relationship and is incompatible with the continued employment of the employee. We do not consider that Mr Boglari's conduct was of that nature. In these circumstances, we consider that it was open to the Commissioner to find that Mr Boglari's dismissal was unjust in the sense that his actions did not warrant summary dismissal and harsh in the sense that dismissal was too severe a penalty for his conduct.

55 The appellant submitted that the Commissioner's findings were not justified because he relied upon the background events, particular the history of conflict between Mr Boglari and the appellant, to explain Mr Boglari's reaction to the complaint. We do not consider that there was any error, in this regard, in the manner in which the Commissioner approached the evidence. When considering an application under s84 of the Act, the Commission is entitled, and indeed required, to determine whether the dismissal of an applicant was harsh, unreasonable or unjust in light of all the circumstances of the case. Although the determination to be made must be whether the dismissal was objectively harsh, unreasonable or unjust, background events may be relevant to the extent to which they cast light on the actions of all persons involved: see, for example, the approach adopted in Burge v NSW BHP Steel Pty Ltd at 342-343. The history of conflict between Mr Boglari and the appellant was, in our view, significant when examining his conduct and whether the conduct justified dismissal.

56 In this regard, the Commissioner observed that the behaviour of Mr Richards and Mr Kidd on 27 January 2000 was consistent with their behaviour towards Mr Boglari on other occasions. In our view, this observation was not dependant upon the finding that the complaints register had been fabricated. Rather, in the context of the history of conflict between Mr Boglari and Mr Richards and Mr Kidd, the historical events were relevant to assessing the probable conduct of Mr Richards and Mr Kidd when confronting Mr Boglari in relation to the complaint. We consider that the Commissioner overstated the weight to which this evidence could properly be put. The evidence of the conduct of Mr Richards and Mr Kidd in the past would have limited probative value in relation to their actual conduct on that day. However, we do not consider that this matter undermines the Commissioner's decision. The observation was employed only as confirmation of the Commissioner's other findings. It was otherwise appropriate for the Commissioner to have regard to past events when considering the seriousness of Mr Boglari's conduct on 27 January 2000.

57 We note that the Commissioner also determined that the process adopted by the appellant in deciding whether to dismiss Mr Boglari was unfair. The appellant contended that this finding was tainted by the earlier findings as to the fabrication of the complaints register. It was further submitted that the Commissioner erroneously relied upon a statement taken by police that recorded that Mr Croft had indicated he wanted to terminate Mr Boglari's employment. We do not consider that these matters formed the basis of the Commissioner's reasoning in this regard. The Commissioner noted Mr Croft did not appear to be aware of the substance of the complaint made or of the discrepancies between the complaints register and driver complaint response sheet. From this observation, the Commissioner concluded that the investigation had been incomplete and the internal appeal process was tainted as a result. We consider that this finding was open to the Commissioner on the evidence.

58 Finally, the appellant submitted that the award of compensation made by the Commissioner was excessive. The appellant contended that the award of compensation was influenced by the degree of unfairness found by the Commissioner which was, in turn, influenced by the "fabrication findings", Jones v Dunkel inference and "similar fact" findings. We consider that there is no basis in the decision of the Commissioner to conclude that these matters influenced the Commissioner when assessing the appropriate compensation to be awarded under s89(5) of the Act. The Commissioner specifically referred to the fact that Mr Boglari had been unable to find alternative employment. This is a matter to which the Commissioner was required to have regard by virtue of s89(6) of the Act. We do not consider that the Commissioner's discretion miscarried in assessing the appropriate quantum of compensation.

59 It follows from the foregoing consideration that the appeal must be dismissed. In summary, although the Commissioner failed to ensure that certain matters were raised with the appellant, these matters were not crucial to the Commissioner's decision. In any event, the Commissioner determined that Mr Boglari's dismissal was harsh, unreasonable or unjust having regard to the fact that his conduct on 27 January 2000 did not warrant summary dismissal. We consider that the decision was properly open to the Commissioner on the evidence.

60 We accordingly make the following orders: 1. Leave to appeal is granted.

3. The parties shall, within seven days, submit short minutes of order as to the lifting of the stay of the orders of Connor C. In the event that parties are unable to agree to the form of such orders, leave is granted to approach the Associate to the Vice-President for the listing of the matter.

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