INDUSTRIAL LAW - termination of employment of a worker who struck his... [1998] FCA 865 | Case summary

REASONS FOR JUDGMENT THE COURT The respondent, Mr Cornwall, worked for the appellant, Qantas Airways Limited, at the airport at Coolangatta on the check-in counter. He was guilty of an infraction of rules by taking a private telephone call and leaving a bag unattended in a public area, for which he was taken to task by a supervisor. Unfortunately, the supervisor, who was new to his own role, filling it only temporarily, appears to have pursued a relatively trivial matter somewhat relentlessly and inappropriately. He spoke to Mr Cornwall on two further occasions, unnecessarily and officiously, two days later. Shortly after those occasions, a further meeting between the men in the baggage area, again initiated by the supervisor, led to an angry altercation, and finally to a blow, when the respondent hit the supervisor under the chin with the heel of his hand. Qantas having terminated the respondent's employment in reliance on his striking of his supervisor, the respondent brought proceedings under the then Industrial Relations Act 1988 ("the Act"), in which the issue was whether Qantas had a "valid reason" for that action within the meaning of s 170DE(1) of the Act. Drummond J, reviewing a decision of a judicial registrar, held that Qantas did not have a valid reason, and that the respondent should be reinstated. The matter now comes before this Full Court on appeal. Before turning to the statute and the authorities, we should flesh out a little the bare bones of the incident that has given rise to the litigation. A fair appraisal of Mr Cornwall's conduct should not omit reference to the fact that he had worked at Qantas for a number of years without there being any suggestion of any previous altercation with any supervisor. At the time of the assault, he was, as the judge found, in a state of emotional distress, having been served, less than two days before, with an application by his wife to the Family Court for leave to take the children of their marriage out of Australia. Any estimate of the extent to which the unjustifiably officious behaviour of the supervisor, on the one hand, and the mental turmoil and tension of the respondent, on the other, may have contributed to the blow that was struck must be somewhat speculative. It is the kind of question as to which the trial judge, having seen and heard both the actors, and had an opportunity to assess them as men, must have enjoyed a very great advantage over an appellate court, necessarily confined to the written record. In this case, the trial judge concluded that the supervisor's "unjustifiably officious conduct played a large part", and that the respondent's fragile emotional state "also materially contributed to his loss of control". It was having regard to these matters, and also to "the relatively minor nature of the assault", that his Honour held Qantas had not shown valid reason for the respondent's dismissal. Section 170DE(1) provides: "An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." An object of Parliament in enacting this provision was to give effect (see s 170CA(1)) to Australia's obligations under the international Termination of Employment Convention 1982, which is Schedule 10 to the Act. Indeed, Parliament relied, in relation to this provision and related provisions, on the external affairs power as its source of relevant constitutional authority: see The State of Victoria v The Commonwealth of Australia (1996) 187 CLR 416 at 511-512. As was pointed out in the joint majority judgment of the High Court in Victoria v The Commonwealth at 515, certain particular articles of the Convention "bear an evident relationship" to s 170DE(1). Article 4 provides: "The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service." Article 5 then specifies that union membership or certain union related activities, involvement in a complaint alleging a violation of law by an employer, matters such as race, colour, sex, religion etc, and absence from work during maternity leave, "shall not constitute valid reasons for termination". Article 6 makes similar provision in respect of temporary absence from work because of illness or injury, and Articles 8 and 9 provide for an appeal by a worker "who considers that his employment has been unjustifiably terminated", who may bring the matter before a body empowered "to render a decision on whether the termination was justified". Section 170DE(1) was supplemented, prior to the decision of the High Court, by s 170DE(2), which was in the following form: "A reason is not valid if, having regard to [all the circumstances of the case, including] the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid." The portion of this subsection, as we have reproduced it, which is within square brackets was added by an amendment in 1995 (see Victoria v The Commonwealth at 514). The whole of subsection (2) was struck down by order 1 paragraph 12 of the orders of the High Court in Victoria v The Commonwealth (at 577). In explaining their reasons for this decision, the majority of the High Court stated (at 517): "Section 170DE(2) goes beyond the terms of the Convention because Art 4 of the Convention only requires the employer to comply with the equivalent of s 170DE(1). The question, therefore, is whether the selection of the criteria of harsh, unjust or unreasonable termination is an expression of the manner of the implementation of the Convention which, as we have indicated, is a matter for the Parliament or whether s 170DE(2) is not reasonably capable of being considered appropriate and adapted to implementing the Convention obligations." In discussing this question, the judgment refers (at 517) to the Convention as "leav[ing] the general word 'valid' as the cornerstone of Art 4". Their Honours continued "that the inclusion of the 'harsh, unjust or unreasonable' test is an additional ground of unlawful termination that goes beyond the requirement for the reason for termination to be valid", and they went on (at 517-518) to make it clear that they did not consider "Parliament recognised the terms ['harsh, unjust or unreasonable' and 'valid'] as being synonyms, or even the harsh, unjust or unreasonable test as being a subset of grounds that were not 'valid'". They added (at 518): "This [the broader character of the 'harsh, unjust or unreasonable' criterion compared with the validity test] is reinforced by the nature of s 170DE(2) which, in contrast to s 170DE(1) and Art 4 of the Convention, goes not to the reason for termination but to the overall effects of the termination. It recognises that, whilst a reason for termination might be a valid one, the overall effect of the termination in the circumstances might be harsh, unjust or unreasonable. This supports the conclusion that the inclusion of the 'harsh, unjust or unreasonable' criterion does not implement the terms of the Convention but goes beyond its requirements and adds an alternative ground for making terminations unlawful." It should be observed that the reasoning of the majority of the High Court towards its conclusion of the invalidity of s 170DE(2) has a bearing on the construction of s 170DE(1). For the view that Parliament did not recognize its "harsh, unjust or unreasonable" test as being a subset of grounds that fell within the validity test in sub-s (1) necessarily leads to a construction of the expression "valid reason" as expressing a test which excludes the impugning of a reason on the ground that it leads to a harsh, unjust or unreasonable decision. Furthermore, if, in the hands of the Legislature, a "harsh, unjust or unreasonable" test could not be considered "appropriate and adapted to implementing the Convention obligations" under Article 4, no more, in the hands of the court, could such a test be appropriate and adapted to implementing the same obligations, as statutory obligations, under s 170DE(1). To hold otherwise would be to subvert the principle upon which the High Court founded its conclusion. The meaning to be attributed to s 170DE(1) came up for consideration by a Full Court of this Court in Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127. The case was concerned with a dismissal based on the operational requirements of the employer. In that context, Northrop J said (at 137): "To be a valid reason, the reason must be lawful in the sense of not being prohibited, and genuinely must be based on those operational requirements. The word 'valid' is used as an adjective qualifying the word 'reason' and is used in the sense of sound, defensible or well-founded with respect to the foundation, namely, the operational requirements of the employer." Section 170DE(1) being derived from Article 4 of the Convention, the provision in Articles 8 and 9 for justification of the termination, which, in the context of the Convention, would have to be by reference to Article 4, confirms the interpretation adopted by Northrop J of "valid reason" as one that is sound, defensible or well-founded with respect to the foundation, whether operational requirements, capacity or conduct, established in the particular instance. His Honour went on to make it clear (at 144) that the "court should not, under the guise of 'valid reason', have … regard to matters affecting the employee which previously would have come within the harsh, unjust or unreasonable provisions of the invalid s 170DE(2)". In their joint judgment, Lindgren and Lehane JJ expressed substantial agreement with the reasons of Northrop J. They commented (at 151) on the decision of the High Court in Victoria v The Commonwealth as follows: "Of particular importance for present purposes is the statement that that which is 'harsh, unjust or unreasonable' is not a subset of the characteristics of a reason which render it not 'valid'. Thus, if a termination for a reason based on one of the two matters referred to in s 170DE(1) operates, in relation to the employee concerned, in a way that is 'harsh, unjust or unreasonable' it does not follow that the reason is not 'valid'. A fortiori, a reason for termination, connected with or based on one of the two permitted matters, may be valid even if the termination, though perhaps falling short of being harsh, unjust or unreasonable, may be regarded as unfair. In other words, fairness, reasonableness or justice, as regards the employee, is not the realm of discourse with which 'valid' is concerned. No doubt a recognition of that, or at least a fear that it might be so, explains the wish of the parliament to enact s 170DE(2)." Their Honours continued (at 151-152): "In our view, 'valid' in the Convention context is at least primarily to be regarded as providing a compendious way of excluding those reasons which, under Arts 5 and 6, are not valid. In the statutory context with which we are concerned, the primary work of 'valid' is to exclude the reasons listed in s 170DF(1). If there are other reasons for which an employer may not lawfully dismiss an employee, then equally, no doubt, such a reason will not be a 'valid' reason. Additionally, perhaps, the word 'valid' may serve to emphasise that the reason must be genuinely connected with the employee's capacity or conduct or genuinely based on operational requirements. In our view, both the context and the decision of the High Court in Victoria v Commonwealth require the conclusion that it has no wider operation." Immediately after this passage, their Honours continued by expressing agreement with Northrop J that certain first instance decisions, "to the extent that [they] hold that the word 'valid' should be given a wider meaning, … should be overruled". The wider meaning suggested in each of the cases referred to was one that embraced considerations going to the question whether the decision was fair, reasonable or just from the point of view of the employee. The propositions we have extracted from Cosco Holdings were not mere dicta; they express the considerations on the basis of which the appeal in that case was unanimously allowed. Nor do they represent a narrow or artificial construction of s 170DE(1). They reflect the reasoning of the High Court in Victoria v The Commonwealth and the actual language of the provision and of the convention it implements, language which turns on the existence or otherwise of a "valid reason" connected with or based on the matters specified. It was suggested in argument in the present appeal that the view taken in Cosco Holdings gave no weight to the meaning of the word "valid". We think the passages we have quoted are sufficient to demonstrate that this is not so. The judgments in Cosco Holdings, following the majority of the High Court in Victoria v The Commonwealth, simply draw attention to what it is that must be valid. Indeed, Northrop J says (at 145), following the High Court, that the word is "the cornerstone of the Act". But the section requires the employer's reason to be valid, and thereby focuses upon the employer and the basis of his decision, rather than upon its consequences for the employee. What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer. In a case, such as the present, where conduct is relied on, that will entail a consideration of the nature of the conduct in the full context in which it actually occurred. But it will not, according to the decision in Cosco Holdings (and see also Evans v Alto Parts Pty Limited (1998) 77 IR 401 at 404), entail reference to factors personal to the employee, bearing on the nature or extent of the hardship caused by the dismissal. In this, too, Cosco Holdings was following the High Court, the majority of which, in a passage we have quoted, condemned the "harsh, unjust or unreasonable" criterion just because it "goes not to the reason for termination but to the overall effects of the termination", and thereby "does not implement the terms of the Convention". Cosco Holdings was cited to a Full Court of the Industrial Relations Court of Australia in Murdoch University v Mainsbridge (Ryan, Marshall and North JJ, unreported, 12 June 1998). The respondent to that appeal, a professor at the university, had been the subject of serious complaints as to his conduct. A formal committee of inquiry had been established, which had found Professor Mainsbridge guilty of serious misconduct and recommended that he be dismissed. The University Senate accepted the recommendation, upon the basis of which the professor's employment was terminated. He then brought proceedings in reliance on s 170DE(1). At the close of Professor Mainsbridge's case, the university moved for dismissal on the ground "that a valid reason for termination connected with the employee's conduct necessarily exists where the employer establishes that the employer had an honest belief, on reasonable grounds, after sufficient enquiry, that the employee had been guilty of serious misconduct", whether or not the court should find the misconduct actually to have occurred. Plainly, the Industrial Relations Court could have held against the university's motion perfectly consistently with the decision in Cosco Holdings. Adapting the words of Northrop J which have been quoted earlier in these reasons, the court could have said that the university's reason would only be "valid" if it was "sound, defensible or well-founded with respect to the foundation, namely, the employee's conduct". The reason could not have been valid in that sense if the conduct had not occurred. What Cosco Holdings excluded was not an examination of the conduct, but an investigation of the consequences for the employee of a dismissal validly grounded in the conduct. Indeed, the university's motion might have been dismissed by an application of the reasoning of Lord Atkin in his dissenting judgment, now accepted as orthodox, in Liversidge v Sir John Anderson [1942] AC 206, where his Lordship said (at 227-228): "'Reasonable cause' for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right. … [T]he plain and natural meaning of the words 'has reasonable cause' imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed … ." Following the famous reference to Humpty Dumpty, Lord Atkin added (at 245): "After all this long discussion the question is whether the words 'If a man has' can mean 'If a man thinks he has.' I am of opinion that they cannot, and that the case should be decided accordingly." Similarly, when s 170DE(1) says "[a]n employer must not … unless there is a valid reason", it does not and cannot mean "an employer must not … unless he thinks there is a valid reason". This, of course, is not at all to say that there may not be cases where the mere possibility that a state of affairs exists may constitute a valid reason for action, as is demonstrated by the examples given by von Doussa J in Sangwin v Imogen Pty Ltd (Industrial Relations Court of Australia, 8 March 1996, unreported). But the court in Murdoch University v Mainsbridge, after a brief reference to the decision of the High Court in Victoria v The Commonwealth, proceeded to discuss and reject the conclusions in Cosco Holdings. It did so in broad terms, without examining the actual language of s 170DE(1), and without going so far as to state it was convinced that the Full Federal Court's interpretation was plainly wrong. In our opinion, it is very important that the words of the joint judgment of the High Court in Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492 should be heeded: "It is somewhat surprising that the Full Court of the Supreme Court of Western Australia … declined to follow what was said by the Full Court of the Federal Court in Windsor [Windsor v National Mutual Life Association of Australasia Ltd (1992) 34 FCR 580]. Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law [the Corporations Law] is a sufficiently important consideration to require that an intermediate appellate court … should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong." This statement of the duty of intermediate appellate courts towards the decisions of other intermediate appellate courts is a logical conclusion from the similar duty of such a court with respect to its own earlier decisions. In Nguyen v Nguyen (1990) 169 CLR 245 at 269 Dawson, Toohey and McHugh JJ said: "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585, at pp. 620 et seq., per Aickin J." Their Honours referred to the decision of the Full Federal Court in Chamberlain v The Queen (1983) 72 FLR 1, at 8-9; 46 ALR 493, at 498. See also Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 592; Byrne v Australian Airlines Limited (1994) 47 FCR 300 at 304, 315, 333; and Trade Practices Commission v Abbco Iceworks Pty Limited (1994) 52 FCR 96 at 111. Cf Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113 at 119. Although the Industrial Relations Court did not cite these authorities, or bring the case within the principle stated in them, we have considered for ourselves whether Cosco Holdings could have been said to be plainly wrong on any basis put forward in Murdoch University v Mainsbridge. In the first place, we observe that the joint judgment in the later decision does not deal with the bearing which, as we have explained, the reasoning of the High Court in Victoria v The Commonwealth has on the meaning of s 170DE(1). It states: "Little can be derived from the judgment [of the majority of the High Court] concerning the scope of s 170DE(1)." It suggests the joint majority judgment of the High Court "seemed to acknowledge some overlap between ss 170DE(1) and (2) because it was held, at 171, that s 170DE(2) was 'at least, in part, invalid' (emphasis added)." This is to treat the words "at least, in part," as equivalent to "only in part". We have been unable to find anything in the majority judgment of the High Court which could properly be said to "acknowledge" the validity of some part of s 170DE(2). Of course, in a given case, a fact relied on in respect of s 170DE(2) might also have been relied on in respect of s 170DE(1). But the statement in the majority judgment of the High Court (at 518) to which the court in Murdoch University v Mainsbridge made reference actually reads: "For these reasons, ss 170DE(2) and 170EDA(1) are, at least in part, invalid." This statement immediately follows the conclusion, in respect of s 170DE(2), that its "criterion does not implement the terms of the Convention but goes beyond its requirements and adds an alternative ground for making terminations unlawful". By contrast with this general rejection of s 170DE(2), the judgment had rejected (at 517) only paragraph (b) of s 170EDA(1), finding paragraph (a) "clearly supported" by the Convention. Therefore, it is impossible to draw, from the statement referred to in the joint majority judgment of the High Court, any endorsement of any part of s 170DE(2). One other aspect of the treatment of Victoria v The Commonwealth in Murdoch University v Mainsbridge should be mentioned. The Industrial Relations Court judgment states: "The High Court did not decide that s 170DE(1) excluded consideration of the effects of the termination on an employee." But the joint majority judgment of the High Court did state (at 518) that s 170DE(2) (which it held to be beyond power), "in contrast to s 170DE(1) and Art 4 of the Convention, goes not to the reason for termination but to the overall effects of the termination." To say that a provision going to the overall effects of the termination is to be contrasted with s 170DE(1), which goes to the reason for the termination, is certainly to suggest strongly that s 170DE(1) is not a provision about the overall effects of the termination. The conclusion reached by the court in Murdoch University v Mainsbridge is expressed at the end of the judgment in the following terms: "What is a valid reason in the more complex situations of real life is to be determined by asking whether the termination was justified by reference to a fair balance between the interests of the employee [scilicet employer] and the employee." This is not what s 170DE(1) states, and if it were, it seems to us that the reasoning of the majority of the High Court in Victoria v The Commonwealth would require that it, like the similar provision in s 170DE(2), be held beyond the power of the Commonwealth Parliament. The Full Court in Cosco Holdings engaged in an exercise of interpretation of the language of s 170DE(1), in the light of the decision of the High Court in Victoria v The Commonwealth. That is the exercise which a court must undertake when the meaning and application of such a provision comes before it. If their Honours differed, a majority judgment was produced, although, for ourselves, we do not detect any significant difference upon the central issue of the meaning of the subsection. Their Honours did not exhaust that meaning, which remains open to some elaboration, since the case before them did not involve every aspect of the provision. Some refinement of its effect in relation to conduct has been left to us to consider. But we do not think there is any basis on which Cosco Holdings could be regarded as clearly wrong. On the contrary, we think it was right, and the criticisms to which it has been subjected were not justified. Not surprisingly, we were not referred to the very recent decision in Allied Express Transport Pty Limited v Anderson (Full Court of the Federal Court, Lee, Tamberlin and Marshall JJ, 8 July 1998, unreported), which doubtless was too recent to have come to the notice of counsel. That was a case where the trial judge had examined the nature of the conduct alleged and had held it did not establish a valid reason for the termination. On appeal, the full court held that the "entire relevant factual matrix must be considered in determining whether an employee's termination is for a valid reason", adding: "It has been held that the expression 'valid reason' is used in the sense of a reason which is sound, defensible, or well-founded: see Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrop J." Murdoch University v Mainsbridge was also referred to, but the proposition stated by the court is, of course, entirely consistent with the statement of Northrop J which we have quoted from Cosco Holdings. We accept that in this case, as in Allied Express Transport Pty Ltd v Anderson, it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the "relevant factual matrix", to decide whether the termination was supported, in the words of the statute, by "a valid reason … connected with the employee's … conduct". As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is "sound, defensible, or well-founded". But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee's employment, there was a valid reason connected with the employee's conduct. We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved. Such circumstances are clearly to be distinguished from the consequences of a termination of employment, if that ensues, which are excluded by Victoria v The Commonwealth and Cosco Holdings. In our opinion, the trial judge was entitled to take into account the matters summarized at the commencement of these reasons, and to conclude from them that the conduct found against the respondent did not establish a valid reason for his dismissal. Accordingly, the appeal should be dismissed. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Court

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