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[2018] FWCFB 7566
Fair Work Commission (Full Bench)
2018-12-13
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2018] FWC 3761 of Commissioner Harper-Greenwell at Melbourne on 26 June 2018 in matter number U2016/2962 - permission to appeal granted - appeal dismissed.
[1] Mr Homer Abarra seeks permission to appeal from a decision of Commissioner Harper-Greenwell in which the Commissioner dismissed Mr Abarra's unfair dismissal application against Toyota Motor Corporation Australia Ltd (Toyota).[1]
[2] Mr Abarra was employed by Toyota in the position of Sealer Group Leader in the Paint Shop at the time of his dismissal. Mr Abarra worked afternoon shift and reported to Mr Adrian Tainsh, General Foreperson. Mr Abarra had been employed by Toyota for a period of about 23 years at the time of his dismissal.
[3] Toyota dismissed Mr Abarra on 3 June 2016 following an investigation by Ms Francis O'Brien QC in relation to a range of matters concerning activities in the Paint Shop. The termination letter provided by Toyota to Mr Abarra stated that he had unacceptably failed to perform his supervisory duties as a Group Leader in a fair and consistent manner across the Sealer Group in the Paint Shop, improperly exercised the power and authority held by him in his position by favouring certain team members over others because of his personal relationships with those team members, had fostered an exclusionary culture within the Paint Shop, and had engaged in conduct which breached Toyota's Workplace Relationships Policy and Procedure and the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2015.[2]
[4] The Commissioner considered 12 allegations against Mr Abarra and found that the following five allegations were substantiated on the evidence and the balance were not:
(a) Allegation 2 - Mr Abarra failed to appropriately monitor and enforce the requirement that team members are not to use mobile phones while working on the production line;
(b) Allegation 3 - Mr Abarra permitted a group of Temporary Fixed Term (TFT) employees to wear their Personal Protective Equipment (PPE) other than in accordance with Toyota's safety requirements;
(c) Allegation 6 - Mr Abarra's conduct towards female employees on the production line has been characterised by excessive sexual remarks, personal remarks, and remarks otherwise inconsistent with his position as a supervisor;
(d) Allegation 8 - Mr Abarra shared his desk/chair with female employees, which involved him and other female employees sitting on his chair together in a straddling-type position, in front of other team members; and
(e) Allegation 13 - on 27 January 2016, following Mr Abarra's suspension from his employment, he admitted to Mr Geoff Kershaw, Toyota Plant Manager Paint and Resin, that he massaged female employees on the production line.
[5] On the basis of these findings the Commissioner concluded that there was a valid reason for Mr Abarra's dismissal related to his conduct (s 387(a) of the Act).[3]
[6] The Commissioner found that Mr Abarra was notified of the reasons for his dismissal and he was given an opportunity to respond to those reasons prior to his dismissal (ss 387(b) and (c) of the Act).[4]
[7] The Commissioner noted Mr Abarra had a union representative present at his investigation interview and at each of the meetings with Toyota (s 387(d) of the Act)[5]. The Commissioner found that the conduct on Mr Abarra's part which constituted the valid reason for his dismissal was in the nature of misconduct rather than unsatisfactory performance, with the result that s 387(e) of the Act was not relevant to the question of whether his dismissal was harsh, unjust or unreasonable.[6]
[8] In light of the size of Toyota's enterprise and the human resource management specialists and expertise available within Toyota's enterprise, the Commissioner effectively considered the factors in ss 387(f) and (g) to be neutral considerations.[7]
[9] The Commissioner considered a range of other relevant matters (s 387(h) of the Act), including Mr Abarra's long and previously unblemished career with Toyota, before concluding that:[8]
"... I am not persuaded that the mitigating circumstances outweigh the seriousness of the conduct I have found to be substantiated. Mr Abarra was responsible for a group of vulnerable young female employees whose future employment was reliant on his approval. He was responsible for developing and encouraging an environment in which inappropriate behaviour was expected and encouraged and even at the hearing demonstrated a complete lack of remorse or recognition of the seriousness of his conduct. I do not consider that his dismissal was harsh in those circumstances."
[10] Mr Abarra relies on 23 grounds of appeal,[9] which address the following six issues:
(a) Whether the Commissioner erred by failing to afford Mr Abarra procedural fairness by virtue of the period of delay between hearing the evidence and handing down the Decision wherein the Commissioner made findings as to the credibility of witnesses (ground 1);
(b) Whether the Commissioner made erroneous findings in relation to the credibility of witnesses (grounds 2, 3 and 13);
(c) Whether the Commissioner made erroneous findings of fact in relation to allegations 2, 3, 6, 8 and 13 (grounds 6-12 and 14-18);
(d) Whether the Commissioner erred by failing to apply the standard of proof in Briginshaw to particular allegations (ground 24);
(e) Whether the Commissioner erred by misconstruing the meaning of "unsatisfactory performance" in s 387(e) of the Act and thereby failed to take into account the fact that Mr Abarra had not been warned about unsatisfactory performance when considering whether the dismissal was unfair (grounds 20-22); and
(f) Whether the Commissioner erred by providing no reasons or inadequate reasons on certain matters (grounds 4, 5 and 25).
[11] Mr Abarra submits that the Decision was handed down over 16 months after all the evidence had been heard, and over 19 months since Mr Abarra had given his evidence. It is submitted that the Commissioner fell into error by failing to afford Mr Abarra procedural fairness by virtue of the considerable period of delay between the hearing and handing down the Decision.
[12] Mr Abarra contends that he was denied procedural fairness for the following four reasons:
(a) First, the Decision turned on findings of credibility;
(b) Secondly, the delay was of such a significant period that the Commission should infer there is a real and substantial risk that the Commissioner's capacity to properly assess the credibility of the witnesses was impaired;
(c) Thirdly, there are no countervailing considerations advanced in the Commissioner's reasons which derogate from drawing the inference for which he contends. In particular, it is contended that the Commissioner's reasons for the Decision fail to precisely identify each of the witnesses who the Commissioner concluded were credible and who were not credible, identify the instances where the Commissioner preferred the evidence of Toyota's witnesses over Mr Abarra's witnesses, demonstrate that countervailing evidence relied on by Mr Abarra was not forgotten or overlooked, and adequately articulate which evidence the Commissioner described as "appropriate concessions" and "self serving"; and
(d) Fourthly, the other alleged errors relied on by Mr Abarra in his appeal served to further undermine the veracity of the Commissioner's credit findings and strengthen the submission that there is a real risk that the Commissioner's capacity to properly assess the credibility of the witnesses was impaired.
Grounds 2, 3 and 13: erroneous credibility findings
[13] Mr Abarra's contention that the Commissioner made erroneous findings in relation to the credibility of witnesses rests on two bases. The primary submission is that the credit findings made by the Commissioner are unsafe because there is a real and substantial risk that the Commissioner's capacity to properly assess the credibility of the witnesses was impaired for the reasons articulated in support of ground one. Alternatively, it is submitted that the Commissioner's findings as to credit should be rejected because the Commissioner failed to have regard to the countervailing evidence which was relied on by Mr Abarra at first instance which, so it is contended, supported a conclusion that Mr Rehman, Ms Rajaram, Ms Haciomer, Ms Souliyavong and Ms Vasilije were not credible witnesses. By way of example, Mr Abarra submits that the Commissioner failed to have regard to fundamental problems in the evidence given by Ms Vasilije and Mr Rehman which called into question the truthfulness of their evidence.
[14] Ms Vasilije gave evidence in relation to the serious allegation against Mr Abarra and Mr Tainsh in relation to standardised work checks. Ms Vasilije gave evidence that on a weekly basis Mr Abarra and Mr Tainsh would perform standardised work checks on the station that Ms Ngo was working on and that when she questioned Mr Abarra he had responded "when Chantelle is on station two she shakes her arse when she applies the sealer, and me and Adrian like to watch". Mr Abarra submitted below that Ms Vasilije's evidence was untruthful as it had been contradicted by every other witness who gave evidence about this matter including Toyota's own witnesses. It is contended that the Decision does not make any mention of this key problem with Ms Vasilije's evidence.
[15] Mr Rehman gave evidence in chief that in or around 2013, Mr Abarra had said to him, in reference to Ms Madanu, "What do you think their size is?" and that Mr Rehman understood that Mr Abarra was referring to Ms Madanu's breasts. Under cross examination it is contended that Mr Rehman changed his evidence. First, he said that Mr Abarra had in fact used the word breast when making the comment. Secondly, he told the Commission that during the investigation he had told Ms O'Brien QC that he had heard Mr Abarra ask Ms Madanu what her breast size was. It is contended that the Decision does not make any mention of this key problem in Mr Rehman's evidence.
[16] In relation to allegation 2, Mr Abarra submits that the Commissioner made significant errors of fact by making the interrelated findings that:
(a) Mr Abarra failed to appropriately monitor and enforce the requirement that team members not use mobile phones when working on the production line; and
(b) Mr Abarra failed to take disciplinary action in relation to the use of mobile phones by employees when working on the production line.
[17] It is contended that these findings of fact are demonstrably wrong due to uncontested testimony. Mr Abarra submits that it was not open to the Commissioner to describe his actions in relation to mobile phone use as "tokenistic" in circumstances where there was uncontested evidence from Mr Abarra that he had counselled employees and given them verbal warnings about mobile phone use and there was uncontested evidence before the Commission that mobile phone use was a problem across the entire Paint Shop and the problem was not limited to Mr Abarra's area of responsibility.
[18] In relation to allegation 3, Mr Abarra submits that the Commissioner made a significant error of fact by finding that he permitted a group of employees engaged on fixed term contracts to wear their PPE other than in accordance with Toyota's safety requirements. Mr Abarra contends that this finding is inconsistent with the Commissioner's finding at [172] that "... it is unclear as to whether there is a policy regarding what garments should be worn under overalls..." Further, Mr Abarra submits that it is unclear on what basis the Commissioner considered wearing PPE in a fashion "... that was inappropriate in the workplace causing offence to others" constituted a safety concern.
[19] In relation to allegation 6, Mr Abarra submits that the Commissioner made a significant error of fact by finding that Mr Abarra's conduct towards female employees was characterised by excessive sexual remarks, personal remarks and remarks otherwise inconsistent with his position as a supervisor. It is contended that this conclusion is dependent on other significant errors of fact, namely the Commissioner's conclusions that Mr Abarra had said "when can I kiss them" and "when can I kiss your lips" to Ms Vasilije, and Mr Abarra had said "what you think their size is" to Mr Rehman in relation to Ms Madanu's breasts. Mr Abarra contends that these findings were demonstrably wrong because Ms Vasilije and Mr Rehman were not credible witnesses.
[20] In relation to allegation 8, Mr Abarra submits that the Commissioner made a significant error of fact by concluding that he inappropriately shared his chair with certain female employees whilst he was also occupying the chair. In support of this contention, Mr Abarra says that the extent of the conduct which was borne out by the evidence in relation to this matter was that "... there were occasions when Mr Abarra allowed young female TFTs to sit beside him on the arms of the chair whilst he was seated in the chair." Mr Abarra contends that when this is acknowledged and the other alleged conduct (for example, employees sitting on Mr Abarra's lap, which was expressly rejected by the Commissioner) is discounted, the Commission should reject the characterisation of the conduct as inappropriate. Mr Abarra further submits that the proven conduct in relation to this allegation is not capable of constituting a valid reason for termination.
[21] In relation to allegation 13, Mr Abarra submits that the Commissioner made a significant error of fact by finding that he made a comment to Mr Kershaw to the effect that "I massage girls on the line, but they like it, they ask me to do it". It is submitted that this finding is dependent on a purported admission that on any view of the evidence was not made. In particular, Mr Abarra submits the Commissioner erroneously concluded that he "admitted to engaging in such conduct, albeit deflecting the responsibility for the incident on to Ms Icbudak". Mr Abarra says that he did not make any admission that he said to Mr Kershaw words to the effect "I massage girls on the line, but they like it, they ask me to do it". The evidence given by Mr Abarra was that Ms Icbudak had, in a joking manner, insisted on receiving a massage due to a sore back before returning to work and that he obliged for two or three seconds in an attempt to have her return to work without further objection or controversy. The Commissioner's conclusion as to the purported admission appears, so it is contended by Mr Abarra, to have been derived from Toyota's submission to this effect below. Mr Abarra contends that these submissions were rebutted by him in his reply submissions and the Commissioner appears to have failed to take into account his reply submissions, which he says provided a complete answer to Toyota's submissions.
[22] Mr Abarra also relies on the Commissioner's finding at [193] that allegation 14 (which arose from the same conversation) was not substantiated because Mr Kershaw had conceded during cross examination that the alleged comment had not been made by Mr Abarra. In light of this concession, Mr Abarra contends that the Commissioner should have not accepted Mr Kershaw's evidence and become satisfied that allegation 13 had been established by Toyota. It is contended that the Commissioner should have treated Mr Kershaw's evidence on the balance of the conversation very cautiously and with an appropriate level of scepticism. Mr Abarra submits that the finding made is glaringly improbable in the circumstances.
Ground 24: alleged failure to apply the Briginshaw standard to particular allegations
[23] Mr Abarra submits that the Commissioner failed to apply the Briginshaw standard of proof in relation to allegations 6 and 8 and thus fell into error.
[24] At paragraph [45] of the Decision the Commissioner stated that she accepted Mr Abarra's submission that the Briginshaw standard of proof applied to the matter and "... accordingly the more serious allegations may require stronger evidence". The Commissioner did not expressly state that she applied the Briginshaw standard of proof to allegations 6 and 8. Mr Abarra submits that it should be inferred that the Commissioner did not do so because, given the state of the evidence in relation to allegations 6 and 8, there would have been an insufficient evidentiary basis to have been satisfied that the allegations had been proven by Toyota.
Grounds 20-22: meaning of "unsatisfactory performance" in s 387(e) of the Act
[25] The Commissioner concluded that allegations 2 and 3 were allegations of misconduct rather than unsatisfactory performance. In doing so, Mr Abarra contends that the Commissioner erred, because allegations 2 and 3 relate to whether Mr Abarra failed to observe Toyota's policies, procedures or rules and his lack of diligence in performing some of his duties. Allegations of this nature, so it is contended by Mr Abarra, are properly characterised as unsatisfactory performance rather than misconduct, relying on Annetta v Ansett Australia[10] and Rebecca Johnston v Woodpile Investments Pty Ltd T/A Hog's Breath Café - Mindarie.[11]
[26] Mr Abarra submits that the Commissioner fell into error by providing no reasons or inadequate reasons in relation to:
(a) the Commissioner's conclusions that Mr Abarra was not a credible witness, Mr Abarra's witnesses were not credible witnesses and Toyota's witnesses were credible witnesses;
(b) the instances where the Commissioner preferred the evidence of Toyota's witnesses over Mr Abarra's witnesses; and
(c) the standard of proof which the Commissioner applied to allegations 2, 3, 6, 8 and 13.
[27] Mr Abarra submits that the Commissioner failed to articulate the essential grounds for reaching the conclusions referred to in the previous paragraph and failed to properly address the material questions of fact and law which were before her.
[28] In relation to the adequacy of reasons concerning findings of credit, Mr Abarra submits that, as noted by Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs[12] at [88], in the circumstances of the lengthy delay in delivering the Decision, the reasons on credit needed to be more detailed than would ordinarily be required.
[29] Toyota contends there is no doubt that an appellate court or tribunal, in reviewing a decision of a primary decision-maker, may conclude that delay has contributed to an error, or rendered a decision unsafe. But, crucially, the ground of appellate intervention in such a case is the error or the infirmity of the decision, and "not the delay itself".[13]
[30] In light of the fact that Mr Abarra has raised the ground of delay, Toyota contends it is incumbent on the Full Bench to explicitly consider and determine whether there is an error which has crystallised by reason of a substantial risk created by delay. Toyota submits that this is not a case where there is a "real and substantial risk"[14] that the Commissioner's capacity to assess Mr Abarra's evidence was impaired in the requisite sense.
[31] Toyota contends that it is evident from the length and detail of the written reasons in the Decision that the evidence before the Commissioner was competently evaluated. The Commissioner found that only five of the 12 allegations made against Mr Abarra (and relied on by Toyota as supplying a valid reason for his termination) were made out on the evidence. Toyota contends that Mr Abarra's submissions do not address the reason why the Commissioner's approach to the evidence was fatally affected by delay in relation to the matters found against Mr Abarra, but was unaffected by delay with respect to those to which she found in his favour.
[32] Toyota submits that the Decision discloses a careful and detailed analysis of evidence. For example:
(a) the Decision is 217 paragraphs long and contains 237 footnote references;
(b) the Decision sets out explanations for the findings made, and conclusions reached, by reference to exhibits tended by both parties, numerous witness statements and particular annexes thereto, the site visit conducted during the hearing and the submissions of both parties. In addition, the footnotes contain over 50 references to the transcript;
(c) the Commissioner provides an explanation of why she reached the view she did in relation to matters such as credit and demeanour; and
(d) the Commissioner did not embark on a process of wholesale adoption or acceptance of Toyota's evidence or witnesses, but rather made nuanced distinctions concerning the evidence of particular witnesses.
[33] Toyota submits that these features of the Decision do not disclose any difficulty or deficit on the Commissioner's part in identifying, marshalling or recalling the evidence. In other words, Toyota contends there is nothing which demonstrates that the Commissioner's "capacity for competent evaluation was diminished".[15]
Grounds 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18
[34] Toyota relies on the authorities which set a high bar for an appellant seeking to overturn credit findings.[16] Toyota contends that Mr Abarra's submissions make a series of assertions to the effect that his evidence ought to have been accepted, but do not identify the incontrovertible facts or uncontested testimony that demonstrates that the Commissioner's conclusions are erroneous. Toyota says that Mr Abarra's real complaint appears to be that the Commissioner did not mention every fact or argument relied on by the losing party nor find in his favour.
[35] Toyota submits that Mr Abarra has taken an erroneous approach by selecting a particular fact or matter in respect of which a certain witness's testimony was not accepted and suggest that as a result, the entire testimony of the witness ought not be believed. Toyota points to the Commissioner's explanation of her approach to Mr Abarra's witnesses at paragraph [157] of the Decision:
"Even though I consider many of the answers provided by Mr Abarra's witnesses to be unsatisfactory and unreliable this does not mean that I have necessarily rejected all of the evidence in respect of each of the allegations. Overall, where there is a contest between the evidence of Mr Abarra's and TMCA's witnesses, I have preferred the evidence of TMCA's witnesses except where stated otherwise."
[36] It is submitted that the Commissioner adopted the same approach to the witnesses called by Toyota - adopting a sophisticated and nuanced approach as to whether to accept all the evidence given by any particular witness.
[37] Toyota contends that a fact finder is not obliged to accept all evidence on all matters given by a witness who is otherwise found generally to be a witness of credit.
[38] In relation to allegation 2 concerning the appropriate use of mobile phones, the Commissioner found this allegation was substantiated because Mr Abarra's actions were not sufficient to discharge his duties in enforcing Toyota's mobile phone policy. Mr Abarra contends that there was incontrovertible evidence that he had counselled employees and given them verbal warnings. However, that submission fails to recognise, so Toyota contends, that the Commissioner did accept and take into account Mr Abarra's evidence on this topic yet made a value judgement that nevertheless such action by Mr Abarra was, in the circumstances, no more than tokenistic. Toyota submits that the finding is not infected by any significant error of fact.
[39] In relation to allegation 3 concerning the wearing of PPE, Toyota submits that Mr Abarra has cherry picked two matters on the basis of which he asserts that the Commissioner made a significant error of fact in finding this allegation substantiated. Toyota submits it is evident from the Commissioner's reasons, in particular at [82]-[92] of the Decision, that she considered the competing evidence in some detail. Toyota further submits that it was reasonably open on the evidence before the Commissioner to find that Mr Abarra engaged in conduct permitting employees to wear their PPE in a manner that was offensive to others in the workplace, and he did not exercise management authority in a way that prevented that from happening.
[40] In relation to allegation 6 concerning excessive sexual remarks, personal remarks and remarks otherwise inconsistent with Mr Abarra's position as a supervisor, Toyota contends that Mr Abarra's submissions focus on a small component of the evidence and erroneously contend that if one error of fact is found in the evidence of a witness, then the entire testimony of that witness ought not be believed. It is submitted that the relevant findings of the Commissioner are supported by a substantial body of evidence, including Mr Abarra's own evidence of his conduct in the workplace,[17] with the result that there is no appealable error detectable.
[41] In relation to allegation 8 concerning Mr Abarra sharing his desk/chair in an inappropriate manner with young female employees, Toyota points to the fact that Mr Abarra does not cavil with the Commissioner's finding that these events in fact happened. There is, for example, no attack on the Commissioner's conclusion that aspects of Mr Abarra's evidence about the events in question were "implausible",[18] a conclusion clearly fortified by the Commissioner's own observations during the site visit.[19]
[42] Toyota submits that Mr Abarra's complaint is confined to an assertion that the Commissioner made a significant error of fact in finding that the conduct was inappropriate. In other words, Mr Abarra contends the Full Bench should find the Commissioner's characterisation of the conduct as inappropriate constitutes an appealable error. Toyota contends that no appealable error in the House v R (s 400(2)) sense is identified. It is submitted that the Full Bench ought not substitute its preference for a different characterisation of Mr Abarra's conduct and, in any event, on any reasonable view, such conduct in the workplace was inappropriate.
[43] In relation to allegation 13 concerning the comment about massaging female employees, Mr Abarra takes issue with the finding of the Commissioner that he made a comment to Mr Kershaw to the effect that "I massage girls on the line, but they like it, they ask me to do it". But Mr Abarra's own evidence was, "how could they complain, even they asked me for massages" and that he half-heartedly gave a back massage to a female employee under his supervision "of no longer than 2 or 3 seconds". Mr Abarra points to the fact that Mr Kershaw made a concession during cross examination as a reason for which his entire evidence ought to have been treated "very cautiously". Toyota submits that there is no basis for adopting this approach with respect to a witness who makes a reasonable concession. Toyota further contends that, in any event, even if one were to put aside Mr Kershaw's evidence, and proceed on the basis of Mr Abarra's own evidence alone on this topic, there is no appealable error based on a significant error of fact.
[44] Toyota submits that even if the Commissioner erred with respect to the matter of characterising two of the five "valid reasons" as misconduct rather than unsatisfactory performance, then in any event, the remaining three matters of misconduct would survive as valid reasons for Mr Abarra's dismissal.
[45] Ground 24 invites the Full Bench to find that the Commissioner did not apply the Briginshaw standard of proof to her consideration of allegations 6 and 8, despite the Commissioner expressly dealing with the standard of proof at [45] of the Decision. Toyota submits there is no basis on which the Full Bench would seek to go behind the express statements in the Decision as to the standard of proof in an attempt to detect appealable error. Toyota further contends that this ground of appeal is, in substance, a complaint about the value judgments made by the Commissioner of the evidence before her.
[46] As to the allegations that the reasons for Decision are inadequate, Toyota submits that the Commissioner was not required to mention every fact or argument relied on by the losing party and the Decision is to be read fairly, as a whole, and not with an eye attuned to detect error. It is submitted that, read as a whole, and having regard to the other submissions made by Toyota, no error of law is detectable.
[47] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[20] There is no right to appeal and an appeal may only be made with the permission of the Commission.
[48] This appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[49] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as "a stringent one".[21] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[22] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[23]
[50] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[24] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[25]
[51] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[26]
[52] During oral submissions, Ms Doyle, Senior Counsel for Toyota, conceded that permission to appeal should be granted. In particular, Ms Doyle submitted that in circumstances where the decision of the Full Court of the Federal Court in Fox v Australian Industrial Relations Commission[27] requires this Full Bench to rule on jurisdictional questions including whether the Commissioner made an error of law by denying procedural fairness by virtue of the delay in handing down the Decision,[28] ground 1 of Mr Abarra's appeal grounds is of sufficient public interest to satisfy the test for permission to appeal in ss 400 and 604 of the Act. In light of this concession and the reasons for which it was made, we are satisfied that it is in the public interest to grant permission to appeal in this case.
[53] In NAIS, the High Court considered whether a decision of the Refugee Review Tribunal ought to be set aside following substantial delay. As to the principles to be applied, Gleeson CJ at [9]-[10] relevantly stated:
"[9]... An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief. Appropriately, effort was directed to a search for independent verification of the claims they were making, and objective justification of the fears they were expressing. Yet ultimately the procedure directed attention to the Tribunal's assessment of them as witnesses in their own cause. A procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired.
[10] ... The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that the was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of the claims by the Tribunal."
[54] At [85]-[88] Kirby J made the following observations:
"[85] The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involves no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly this is explained by reference to the need to ensure that "the trier of fact can recall the testimony and the demeanour of the witnesses as well as the dynamics of the trial".
[86] In a particular case, more may be at stake then distinguishing between the credibility of parties and other witnesses. Thus, in litigation involving detailed and complex evidence, protracted delay in the provision of a reasoned decision may undermine acceptance by the parties and the community that the decision-maker has given careful consideration to all of the evidence, viewed in its context, and remembered its detail when finally putting the decision on paper. Even appellate judges, like myself, who are cautious about the significance of demeanour in the assessment of truth-telling, willingly accord to primary decision-makers significant advantages derived from their function in considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced. Such advantages, together with those which demeanour is conventionally held to accord to primary decision-makers, are lost, or significantly reduced, by protracted delay in providing a reasoned decision.
[88] ... Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments. Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility. It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed."
[55] In Fox, the Full Court of the Federal Court applied NAIS and considered the impact of delay of the credit findings that had been made by a Commissioner in unfair dismissal proceeding in the Australian Industrial Relations Commission. In that case, there had been a delay of almost 12 months between hearing the evidence and delivering the decision. Justices Marshall and Tracey said at [37]-40]:
"One of the grounds advanced by Mr Fox was that, because the case turned on findings of credibility, the Commissioner had made an error of law by denying procedural fairness by virtue of his delay in handing down the decision. The Full Bench correctly observed (at [20]) that "the grounds pertaining to delay and procedural fairness raise[d] jurisdictional issues" in respect of which the Full Bench was concerned to determine whether the Commissioner had made the right decision. Despite having so directed itself the Full Bench decided that it was "not required to further examine the consequences of the delay decision upon the evidence of Mr Fox". This was because, even if the Commissioner had not made prejudicial findings about Mr Fox's credibility, it "would have still have been likely" that Commissioner would have made the same finding that a valid reason for termination existed. In so doing the Full Bench failed to take into account or put to one side one of Mr Fox's principal grounds of appeal. For the reasons which we have given we consider that the Full Bench erred in not considering and ruling on the arguments advanced in support of the ground. This error had a material bearing on the Full Bench's decision to refuse leave to appeal.
In our opinion, the failure by the Full Bench to deal with an allegation of jurisdictional error on the part of the Commissioner itself constituted a jurisdictional error. The Commission failed to perform its statutory duty. This was not a case in which the error could have made no possible difference to the outcome of the application."
[56] The Full Court in Fox held that it constituted a jurisdictional error for the Full Bench to have refused to determine the allegation of denial of procedural fairness by reason of delay on the part of the Commissioner at first instance. It was for this reason that an order for certiorari issued, and the Full Bench was directed to hear and determine the applicant's application according to law. The Full Court did not itself determine the question whether the Commissioner's conduct of the particular hearing, including the delay, had made a difference to the outcome of the application.
[57] In NAIS, numerous references were made to a decision of the Full Court of the Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd[29] in which there had been a delay of about 21 months between the hearing and the primary judge giving his reasons for decision. The Full Court explained the applicable principles concerning delay at [66]-[83]:
"66 At the best of times, the mere fact that a trial judge necessarily reaches a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by an appellate court of the functions imposed upon it by statute. In particular cases, incontrovertible facts or uncontested testimony may demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings (Fox v Percy [2003] HCA 22; (2003) 197 ALR 201 at [28]).
67 Appellate judges have long given, as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible for an appellate court. On the other hand, for almost as long, appellate judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Fox v Percy at [30]). In any event, it is appropriate to have some doubt about the ability of judges, or anyone else, to tell truth from falsehood accurately on the basis of the appearance of witnesses. Such considerations should encourage trial judges and appellate judges to limit their reliance on the appearance of witnesses and to reach conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events (Fox v Percy at [31]).
68 Where there are relevant contemporaneous materials, such as file notes and correspondence, and there is significant delay between the hearing of evidence and the giving of reasons for conclusions, being reasons that do not advert to the contemporaneous materials and do not give specific reasoning for accepting or rejecting the evidence of particular witnesses, the conclusions reached should be given careful scrutiny and consideration by an appellate court where the findings are challenged on appeal.
69 Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] UKPC 17; [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.
70 That advantage includes seeing the oral and documentary evidence unfold in a coherent manner, which cannot be replicated on appeal (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306, 160 ALR 588 per Kirby J at [90]; Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd [2002] FCAFC 224, 55 IPR 449 at [87]). That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge failed to use or misused such an advantage. The mere fact of a long delay itself weakens a trial judge's advantage. Thus, delay must be taken into account when reviewing findings made by a trial judge after a significant delay from the time when the relevant evidence was given.
71 In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
72 In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath [2001] NSWCA 416 at [34] and [53]).
73 Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge's advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Sperling and Hidden JJ, 23 December 1998)).
74 The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure - whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, in the course of a valuable review of the significance of delay in the delivery of judgments:
'...a long delay can give rise to disquiet ... because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.' ([31]).
75 As mentioned above, almost seventeen months expired between the time when his Honour reserved judgment (16 October 2001) and 11 March 2003, the date upon which he delivered his first set of reasons and more than 21 months between the completion of evidence and the first set of reasons. The latter period was regarded as the most cogent by Hill J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 at [17]. This delay was grossly inordinate. In Hadid v Redpath [2001] NSWCA 416 it was submitted that, at some point, the passing of time from the moment when judgment is reserved causes a delay to arise that alters the normal approach of an appellate court.
76 Counsel for the appellant described this type of delay as 'operative delay'. Although the Court of Appeal in Hadid did not have to decide whether the point on which the appeal succeeded in that matter was the result of delay, Heydon JA, at [33]-[38] set out the appellant's submissions in some detail, without any apparent disapproval. We think that the expression 'operative delay' is a useful one as a description of the type of delay which has the consequences (both for a primary judge and an appellate court), discussed in the relevant authorities referred to below.
77 The leading case in this area appears to be the decision of the English Court of Appeal in Goose v Wilson Sandford & Co (unreported, England and Wales Court of Appeal (Civil Division), Gibson, Brooke, Mummery LJ, 13 February 1998). The approach taken by the Court of Appeal in that matter has been adopted by the New South Wales Court of Criminal Appeal in R v Maxwell, was cited with apparent approval in Hadid v Redpath (at [29]) and more recently by Finkelstein J in NAIS v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 1 at [53].
78 In Goose the delay was approximately 21 months. Their Lordships said this (at [113]):
'Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J. denied himself the opportunity of making this further check in any meaningful way.'
79 In R v Maxwell, the New South Wales Court of Criminal Appeal, having adopted the approach of the English Court of Appeal in Goose made the following observations (at [25]):
'Considerations such as these have informed this Court in its review of the reasons for judgment given by his Honour, specifically the statements made by his Honour in his judgment of a general assertive character, which in the normal course would be accepted as encompassing a detailed consideration of the evidence before him, have been treated by us with reserve. Indeed, a delay of the order of ten months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision.'
80 The delay in the present case went beyond the minimum period of 'operative delay'. In those circumstances, in his reasons for judgment his Honour was required to carry out a detailed consideration i.e. a more comprehensive statement of the relevant evidence (to use the words of the Court of Criminal Appeal in Maxwell) than would normally be required. The purpose of doing so would have been to demonstrate to all concerned that the delay had not affected his decision. This is not a case in which, sitting as an appellate court, it can be assumed that the mere failure to refer to evidence did not mean that it had been overlooked.
81 In the absence of some special circumstances, where his Honour rejected the evidence of the witness on grounds of lack of credit, one would expect him to explain how, despite the delay, he was well able to recollect the oral testimony. Also, as a general rule, if part of that rejection depended upon contemporary documents, or the lack of such contemporary documents, his Honour should in his reasons have gone to those documents and (in the latter case) stated with requisite satisfaction that there were no such contemporaneous documents. As the Court of Criminal Appeal said in Maxwell, at [46]:
'The Appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning.'
82 Nothing turns on the fact that Maxwell was a criminal case. None of the authorities suggests that a different appellate approach applies in a civil case to that which should be adopted in a criminal appeal. In relation to the primary judge's rejection of the appellant's expert evidence about value, in so rejecting that evidence his Honour was obliged to provide what Bingham LJ described in Eckersley v Binnie (1988) 18 ConLR 1 at 77-78 as 'a coherent reasoned rebuttal' of a 'coherent reasoned opinion' unless that opinion could be discounted for other reasons. That observation was referred to by Henry LJ in Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381-2 where his Lordship said:
'...where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence...'
83 Nothing we have said should be taken to encourage over lengthy judgments in the usual case, the undesirability of which has been commented upon recently in Customs and Excise Commissioners v A [2002] EWCA Civ 1039; [2003] 2 All ER 736 at 753-754 and Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58 at [287]-[290] (see also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 443; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728; and Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [62])."
[58] In accordance with the decision of the Full Court in Fox, we will consider and rule on the arguments advanced in support of the grounds of appeal concerning delay in handing down the Decision.
[59] The hearing before the Commissioner took 11 days in the period from 21 November 2016 to 22 February 2017. Mr Abarra gave his evidence in late November 2016. The final witness gave evidence on 22 February 2017. Final written submissions were filed on 18 April 2017. The Decision was handed down on 26 June 2018. Accordingly, there was a period of about 14 months between the filing of final written submissions and the Decision being handed down and a period of about 19 months between when Mr Abarra gave his evidence and the Decision being handed down.
[60] The consequences, if any, of the delay must be "examined with an eye to the fair administration of justice".[30] In particular, because of the delay in handing down the Decision, it is incumbent on this Full Bench to look with particular care at the findings of fact which are now challenged.[31]
[61] In assessing the impact of delay, it is relevant that the Commissioner had the benefit of transcript and extensive written submissions from counsel for each party.[32] Having regard to the numerous references in the 237 endnotes in the Decision to the transcript, various exhibits tendered by the parties including particular annexures to witness statements, and the written submissions filed by the parties, it is plain that the Commissioner reviewed those materials in some detail in preparing the 217 paragraph Decision.
[62] It is also clear from the reasons for Decision that the Commissioner attended a site visit during the hearing.[33] The Commissioner was plainly able to recall details from that site visit and observations made by the Commissioner during the site visit formed part of her reasoning for finding that particular allegations were substantiated.[34]
[63] In dealing with the allegations relied on by Toyota to establish a valid reason for dismissal, the Commissioner went to considerable length in summarising the evidence given by the various witnesses in relation to each of the 12 allegations.[35] The Commissioner then made general comments about the credibility of many of the witnesses who gave evidence in the proceedings.[36] It is important, however, not to read and consider those general comments concerning credibility in isolation; they must be read with the balance of the reasons for Decision, including the earlier paragraphs summarising the evidence given and, crucially, the detailed reasons given by the Commissioner in paragraphs [159] to [193] to explain her findings in relation to each of the 12 allegations, including in relation to matters such as credit and demeanour.[37]
[64] The Commissioner did not take the path of easy resolution[38] or make the decision that was easiest to make and express.[39] Nor did the Commissioner embark on a process of wholesale adoption or acceptance of Toyota's evidence or witnesses, but instead made nuanced distinctions in relation to various parts of the evidence given by particular witnesses.[40]
[65] Read as a whole, the reasons for Decision establish that the Commissioner considered in detail the evidence and submissions in relation to each of the 12 allegations and found that five of the allegations were substantiated on the evidence, while the balance were not. In paragraphs [159] to [193], read together with paragraphs [63] to [157], the Commissioner explained coherently and with appropriate detail why she made the findings that allegations 2, 3, 6, 8 and 13 were substantiated.
[66] The Commissioner's reasons for Decision contain a clear account of her process of reasoning and all necessary findings of fact to support those reasons, including why the evidence of a particular witness was rejected or not accepted. The particular reasoning adopted by the Commissioner in relation to specific allegations is analysed in further detail in paragraphs [74] to [90] below in connection with our consideration of the alleged errors of fact contended for by Mr Abarra.
[67] For the reasons given, we consider that, notwithstanding the delay, the Commissioner has demonstrated by her reasons that full consideration was given to all the evidence and the issues in dispute between the parties. We are satisfied that the delay has not contributed to error, or made the Decision unsafe.[41] We are not persuaded of there being a real and substantial risk that the Commissioner's capacity to make an assessment of the reliability and sincerity of the individuals who gave evidence was impaired by reason of the delay.[42] We therefore conclude that the Commissioner's Decision was not flawed for want of procedural fairness. Ground 1 of Mr Abarra's Notice of Appeal is rejected.
[68] In these grounds of appeal, Mr Abarra contends that the Commissioner made erroneous findings as to credit. Erroneous credibility findings must necessarily involve significant errors of fact. For an error of fact to be characterised as "significant" it must "vitiate the ultimate exercise of discretion".[43] In a misconduct case, "a 'significant' fact is one which is foundational to the member's conclusion about whether the alleged misconduct took place".[44]
[69] Recently, in Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited,[45] a Full Bench of the Commission outlined the general approach to challenging findings of fact on appeal:
"[45] In the joint reasons in Fox v Percy, in a passage which has been applied since, Gleeson CJ, Gummow and Kirby JJ said:
'[An appellate court] must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court reading the transcript, cannot always fully share.' (citations omitted)
[46] More recently, in Short v Ambulance Victoria, the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances whose those findings rested on assessments of credibility:
'It was central to Mr Short's case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".
In Fox v Percy at [26]-[31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.' (citations omitted).
[47] These principles have been consistently applied by Full Benches of the Commission for many years. In the context of appeals, Full Benches have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." (references omitted)
[70] Mr Abarra contends that the Commissioner's findings as to credit were erroneous on the basis that the Commissioner failed to have regard to countervailing evidence which supported a conclusion that Mr Rehman, Ms Rajaram, Ms Haciomer, Ms Souliyavong and Ms Vasilije were not credible witnesses. Mr Abarra gives two examples in his submissions of what he alleges are fundamental problems in the evidence given by particular witnesses, which called into question the truthfulness of their evidence. In Ms Vasilije's case, it is submitted that she gave evidence in relation to one particular allegation which was inconsistent with evidence given by other witnesses, yet the Decision makes no reference to this "key problem" with her evidence.[46] In Mr Rehman's case, it is submitted that he changed his evidence in relation to a particular allegation, yet the Decision does not make any reference to this "key problem" in his evidence.[47]
[71] One of the flaws in this argument is that a decision-maker at first instance is not obliged to accept all the evidence given by a witness who is otherwise found generally to be a witness of credit. For example, a particular witness may be believed in relation to all aspects of their evidence, save as to one incident in respect of which their recollection of events is inconsistent with that of other witnesses or contemporaneous documents. That the evidence given by the witness in relation to the one incident is not accepted does not necessitate a finding that the witness ought not be believed as to the balance of their evidence. A fact finder is entitled to take a nuanced and sophisticated approach to the task of accepting or rejecting evidence given by a particular witness about a range of matters. We consider the Commissioner took such an approach in relation to the evidence given by a range of witnesses about 12 separate allegations against Mr Abarra.
[72] Further, although Mr Abarra contends that the evidence given by various witnesses ought not to have been accepted, he does not in connection with these grounds of appeal identify any incontrovertible facts or uncontested testimony which he says demonstrates that the Commissioner's conclusions are erroneous. For example, the alleged problem with Ms Vasilije's evidence does not relate to any of the matters alleged to constitute a valid reason for Mr Abarra's dismissal. We consider Mr Abarra's real complaint to be that the Commissioner did not mention every fact or argument relied on by Mr Abarra, such as the alleged "key problems" with particular evidence given by Ms Vasilije and Mr Rehman. A first instance decision-maker is not required to mention every fact or argument relied on by the losing party.[48]
[73] We are not satisfied that the Commissioner erred as alleged in relation to her findings as to credit of the relevant witnesses. We reject grounds 2, 3 and 13 of the Notice of Appeal.
[74] Allegation 2 concerns the inappropriate use of mobile phones in the workplace. The Commissioner found that this allegation was substantiated because Mr Abarra's actions were not sufficient to discharge his duties in enforcing Toyota's mobile phone policy.
[75] The Commissioner did not find that Mr Abarra had failed to take any steps to enforce the mobile phone policy; the finding was that his actions were not "sufficient" and he failed to "appropriately" monitor and enforce the policy.[49] Such conclusions are classic value judgments which first instance decision-makers are often called on to make in unfair dismissal proceedings.
[76] Mr Abarra points to uncontested testimony to the effect that he had counselled employees and given them verbal warnings about mobile phone use. In light of that evidence, Mr Abarra contends that the Commissioner erred in making the interrelated findings that Mr Abarra failed to take disciplinary action in relation to the use of mobile phones and Mr Abarra failed to appropriately monitor and enforce the requirement that team members not use mobile phones when working on the production line.
[77] The Commissioner made reference in paragraph [168] of the Decision to steps taken by Mr Abarra to enforce the mobile phone policy. Those steps included addressing mobile phone usage at team meetings and telling employees to put their phones away if they were observed using them on the line. Mr Abarra's conduct in that regard can fairly be characterised as counselling employees and giving them verbal warnings about mobile phone use. In the following part of paragraph [168] of the Decision, the Commissioner described Mr Abarra's actions as "no more than tokenistic" and a failure "to institute any disciplinary action to address what was clearly a rampant problem within the Sealer Group". That mobile phone use was also an issue in other parts of the workplace is of little moment. The Commissioner plainly had the verbal discussions between Mr Abarra and his team members about mobile phone usage in the forefront of her mind when she formed the view that she did about the adequacy of Mr Abarra's actions or lack thereof. Viewed in context, it is clear that the Commissioner's reference to the lack of "disciplinary action" in response to the "rampant problem" was intended to convey the absence of any formal disciplinary action such as a written warning or some other sanction, rather than a verbal discussion or verbal warning.
[78] We are not persuaded that the Commissioner made any significant error of fact in relation to allegation 2. Grounds 6, 7 and 8 of the Notice of Appeal are rejected.
[79] Allegation 3 concerns the wearing of PPE. Employees working in the Paint Shop are required to wear PPE, including gloves, boots and overalls which zip up to the neck.
[80] The Commissioner found that certain employees would wear their PPE in a fashion that was inappropriate in the workplace causing offence to others, and that Mr Abarra, who had some responsibility as Group Leader to ensure PPE was worn appropriately, permitted this.[50] The wearing of the PPE was inappropriate because female employees were wearing their PPE with their underwear clearly visible.[51] By way of example, various witnesses gave evidence that particular female employees had worn the zippers on their overalls down low enough that their cleavage was visible and it was clear they were only wearing underwear underneath their overalls.[52] The Commissioner was therefore satisfied that the allegation that Mr Abarra permitted a group of TFTs to wear their PPE other than in accordance with Toyota's safety requirements was substantiated.[53]
[81] Mr Abarra contends that the Commissioner made a significant error of fact by making these findings. In particular, it is submitted that the findings are demonstrably wrong because they are inconsistent with the Commissioner's finding (at [172]) that "... it is unclear as to whether there is a policy regarding what garments should be worn under overalls..." and it is unclear on what basis the Commissioner considered wearing PPE in this way constituted a safety concern.
[82] As to the safety concern, there can be no doubt that the obligation to wear PPE is a safety requirement, in that the PPE is designed to protect the employee's body from sealer.[54] Wearing overalls with the zipper down plainly gives rise to a safety risk. As to the absence of a policy regarding what garments should be worn under overalls, that is an irrelevant consideration and did not trouble the Commissioner. The requirement to wear PPE, including with the zippers done up, is the means by which an employee's body is protected from sealer. If an employee complies with this requirement, there is no need to inquire into, or dictate, what is worn underneath their overalls.
[83] The findings made by the Commissioner in relation to this allegation were clearly open on the evidence. No error of fact - let alone a significant one - was made by the Commissioner in relation to allegation 3. Grounds 9 and 10 of the Notice of Appeal are rejected.
[84] The Commissioner found that Mr Abarra's conduct towards female employees was characterised by sexual remarks, personal remarks and remarks otherwise inconsistent with his position as a supervisor.[55] Mr Abarra contends that the Commissioner made a significant error of fact by making this finding.
[85] Mr Abarra contends that the Commissioner's finding in relation to allegation 6 is dependent on her erroneous conclusions that Mr Abarra said to Ms Vasilije "when can I kiss them" and "when can I kiss your lips" and Mr Abarra said to Mr Rehman, in relation to Ms Madanu's breasts, "what do you think their size is". The difficulty with this argument is that the Commissioner's finding in relation to allegation 6 is based on a substantial body of evidence, including Mr Abarra's own evidence of his conduct in the workplace,[56] not just the two instances relied on by Mr Abarra. Accordingly, we do not accept that the alleged error, if it be an error, is foundational to the Commissioner's conclusion about whether the alleged misconduct the subject of allegation 6 took place. It follows that there is no significant error of fact in relation to allegation 6. Grounds 11-16 of the Notice of Appeal are rejected.
[86] Allegation 8 involved Mr Abarra sharing his desk/chair in an inappropriate manner with young female employees.
[87] Mr Abarra does not challenge the Commissioner's factual findings that there were occasions on which young female TFTs (a) sat on his chair with him and (b) sat on the arms of the chair while he was seated in the chair.[57] Mr Abarra challenges the Commissioner's characterisation of the conduct as inappropriate. The Commissioner formed this value judgment after considering all relevant evidence, including her inspection of Mr Abarra's work chair at the site visit. There is no appealable error in relation to these findings. Further, there is no doubt that Mr Abarra's conduct in sharing his chair with young female TFTS, who were subordinate to him and whose future employment with Toyota was reliant on his approval, was, on any reasonable view, inappropriate. Ground 17 of the Notice of Appeal is rejected.
[88] Allegation 13 is that, on 27 January 2016, following Mr Abarra's suspension, he admitted to Mr Kershaw that he massaged female employees on the line.
[89] Mr Abarra contends that the Commissioner made a significant error of fact by finding that he made the alleged admission to Mr Kershaw. In particular, Mr Abarra submits that he did not make any admission that he said to Mr Kershaw words to the effect "I massage girls on the line, but they like it, they ask me to do it". The flaw in this argument is that the Commissioner did not find that Mr Abarra admitted to making the comment to Mr Kershaw. The Commissioner found that this allegation was substantiated because, first, Mr Abarra admitted to "engaging in such conduct",[58] namely being asked by female employees for massages and massaging a female employee, albeit half-heartedly and for no longer than two or three seconds[59] and, secondly, the Commissioner preferred the evidence given by Mr Kershaw to that given by Mr Abarra in relation to their conversation on 27 January 2016.[60]
[90] Mr Abarra contends that Mr Kershaw's evidence in relation to allegation 13 should have been rejected because he made a concession in relation to allegation 14. There is no requirement for a first instance decision-maker to reject all the evidence given by a witness simply because they make a concession in relation to a particular part of a conversation. The Commissioner was aware of the concession made by Mr Kershaw; indeed that was the reason allegation 14 was found not to be substantiated by the Commissioner.[61] The Commissioner was able to, and did, have regard to the whole of Mr Kershaw's evidence, including the reasonable concessions he made, and then form a view as to the reliability and credibility of his evidence.[62] We do not detect any appealable error in relation to the Commissioner's credibility findings concerning Mr Kershaw. In addition, having regard to the admissions made by Mr Abarra in relation to allegation 13, we do not consider that the Commissioner's findings in relation to Mr Kershaw's credit were foundational to her conclusion about whether the alleged misconduct took place. Accordingly, there was no significant error of fact. We reject ground 18 of the Notice of Appeal.
Grounds 20, 21 & 22: s 387(e) of the Act
[91] Mr Abarra contends that the Commissioner erred by rejecting his submission that allegations 2 and 3 were allegations of unsatisfactory performance; the Commissioner concluded they were allegations of misconduct, with the result that s 387(e) was not a relevant factor in the assessment of whether his dismissal was harsh, unjust and/or unreasonable.[63]
[92] A Full Bench of the Australian Industrial Relations Commission considered the proper construction of s 170CG(3)(d) of the Workplace Relations Act, which is in the materially same terms as s 387(e) of the Act, in Annetta v Ansett Australia:[64]
"It is clear that s 170CG(3)(d) will not always be relevant but that in cases where it is it must be treated as a matter of significance in the decision-making process. Is s 170CG(3)(d) relevant in this case? We think not. In approaching the construction of the term "unsatisfactory performance" it may be significant that in describing a valid reason s 170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s 170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by par (d) itself is whether the appellant's employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category..."
[93] We agree with those observations. They are equally applicable to s 387(e) of the Act.
[94] In our view, the Commissioner correctly concluded that allegations 2 and 3 were properly characterised as misconduct rather than unsatisfactory performance. Allegation 3 concerned the fact that Mr Abarra permitted a group of TFTs to wear their PPE other than in accordance with Toyota's safety requirements. Allegation 2 pertained to Mr Abarra's failure to appropriately monitor and enforce the requirement that team members must not use mobile phones while working on the production line.
[95] Although it is arguable that allegations 2 and 3 concerned the level at which Mr Abarra rendered performance insofar as he failed to adequately enforce Toyota's policy on mobile phone use at work and its requirement for employees to wear appropriate PPE, there was more to these allegations than the simple question of Mr Abarra's diligence in the enforcement of a policy or requirement. In particular, Mr Abarra's actions, or lack of them, in relation to enforcement of the PPE requirements and the policy concerning mobile phone use comprised part of Mr Abarra's inappropriate conduct in connection with the young vulnerable female TFTs under his supervision. Mr Abarra's actions in condoning these breaches of policy, particularly but not solely insofar as he failed to take adequate steps to stop young female employees from wearing the zippers on their overalls down low enough that their cleavage was visible and it was clear they were only wearing underwear underneath their overalls, contributed to the "weird and dirty atmosphere" Mr Abarra created at work.[65] The Commissioner's findings in relation to allegations 2 and 3 contributed to her overall conclusion that Mr Abarra "was responsible for developing and encouraging an environment in which inappropriate behaviour was expected and encouraged".[66] Viewed in this context, we are satisfied that Mr Abarra's dismissal (including on the basis of his actions the subject of allegations 2 and 3) did not relate to unsatisfactory performance by him, but instead related to his misconduct. It follows that the Commissioner did not err in relation to s 387(e) of the Act. We reject appeal grounds 20, 21 and 22.
Ground 24: alleged failure to apply Briginshaw standard
[96] Mr Abarra contends that the Commissioner failed to apply the Briginshaw standard of proof to allegations 6 and 8 and thus fell into error.
[97] In paragraph [45] of the Decision the Commissioner concluded that the Briginshaw standard applied "... and accordingly the more serious allegations may require stronger evidence and the Commission will need to take into account the need to be properly satisfied of the proofs that the conduct occurred". In reaching this conclusion, the Commissioner concurred with Mr Abarra's contention that "he has been accused of serious misconduct as he was dismissed in accordance with serious allegations concerning his conduct towards a group of young female TFTs".[67]
[98] Allegations 6 and 8 relate to the sexualised environment at the workplace involving Mr Abarra and a group of young female TFTs. There is nothing in the reasons for Decision to suggest that the Briginshaw standard was not applied by the Commissioner in relation to allegations 6 and 8. In those circumstances, there is no basis for us to seek to go behind the express statements in the Decision as to the applicable standard of proof. We are satisfied there is no appealable error in relation to this ground of appeal. Ground 24 of the Notice of Appeal is rejected.
[99] Mr Abarra contends that the Commissioner fell into error by providing no reasons or inadequate reasons as to:
(a) the Commissioner's conclusion that Mr Abarra was not a credible witness;
(b) the instances where the Commissioner preferred the evidence of Toyota's witnesses over Mr Abarra's witnesses; and
(c) the standard of proof which the Commissioner applied to allegations 2, 3, 6, 8 and 13.
[100] We reject these grounds of appeal. The Commissioner was not required to mention every fact or argument relied on by the losing party, nor was she required to expose every step of her chain of reasoning.[68] The Decision must be read fairly and as a whole and not with an eye attuned to detect error.[69]
[101] Reading the reasons for Decision as a whole, we are satisfied that the Commissioner articulated the essential grounds for reaching her findings on the issues in dispute and addressed the material questions of fact and law in a manner which disclosed the logical steps which led to those findings.[70] As to the particular allegations made by Mr Abarra in relation to inadequate reasons, the Commissioner gave reasons in paragraphs [152] to [157] of the Decision for her general credibility findings in relation to Mr Abarra, his other witnesses and the witnesses called by Toyota to give evidence, but also gave other reasons for not accepting particular parts of Mr Abarra's evidence, or preferring the evidence of Toyota's witnesses over Mr Abarra's witnesses, in relation to specific allegations. Those reasons are contained in paragraphs [159] to [193] of the Decision, read together with the Commissioner's earlier references to the evidence pertaining to each allegation in paragraphs [63] to [151] of the Decision. In addition, the Commissioner spent five paragraphs ([41] to [45]) of her Decision addressing the standard of proof to be applied in her consideration of the evidence in relation to each of the 12 allegations relied on by Toyota to establish a valid reason for dismissal. It is evident from the reasons given by the Commissioner to support her findings in relation to each of the 12 allegations that the correct standard of proof was applied by the Commissioner to allegations 2, 3, 6, 8 and 13. We therefore reject grounds 4, 5 and 25 of the Notice of Appeal.
[102] For the reasons given, we grant permission to appeal and dismiss the appeal.
R Doyle SC and P Wheelahan, Counsel for the Respondent
[1] [2018] FWC 3761 (Decision)
[9] Grounds 19 and 23 in Mr Abarra's Notice of Appeal were not pressed (Mr Abarra's submissions on appeal dated 7 September 2018 at footnote 12)
[11] [2012] FWA 2 at [45]
[12] [2005] HCA 77; (2005) 228 CLR 470 (NAIS)
[16] see, for example, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
[17] Decision at [107]-[11], [115]-[120], [123]-[129], [175]-[178], [180]-[181]
[20] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[22] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] -[46]
[23] [2010] FWAFB 5343, 197 IR 266 at [27]
[24] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]
[25] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[26] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[27] [2007] FCAFC 150; (2007) 166 IR 85 (Fox)
[28] See paragraphs [56]-[57] below
[29] [2004] FCAFC 189; (2004) 140 FCR 17 (Expectation)
[30] Tattsbet Limited v Morrow [2015] FCAFC 62 at [2]
[32] Expectation at [78]; Tattsbet Limited v Morrow at [131]
[33] Decision at [70], [141] & [185]
[37] See, for example, Decision at [152], [155], [156], [157], [190] & [191]
[40] See, for example, Decision at [160]-[161], [163], [164], [166], [183], [189] & [193]
[43] Gelagotis & Hatwell v Esso Australia Pty Ltd [2018] FWCFB 6092 at [43]
[46] Mr Abarra's written submissions on appeal dated 7 September 2018 at [30]
[48] Tenterfield Care Centre Ltd v Wait [2018] FWCFB 3844 at [27]
[52] Decision at [87]-[88] & [92]
[56] See, for example, Decision at [107]-[110], [115]-[120], [123]-[129], [175]-[178] & [180]-[181]
[64] (2000) 98 IR 233 at 237
[68] Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844 at [27]
[70] Barach v University of New South Wales [2010] FWAFB 3307 at [16]
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# Homer Abarra
Toyota Motor Corporation Australia Ltd \[2018\] FWCFB 7566
(2000) 98 IR 233
(2005) 228 CLR 470
(2000) 203 CLR 194
(2011) 192 FCR 78
(2004) 140 FCR 17
(2003) 197 ALR 201
(1999) 73 ALJR 306
(1997) 48 NSWLR 430
(1991) 21 NSWLR 725
(2003) 77 ALJR 1598
(2003) 214 CLR 118
(1989) 168 CLR 210
(2011) 85 ALJR 398
(2001) 116 FCR 481
(2007) 166 IR 85