Raveena Singh Rai v State Transit Authority of New South Wales

Principles in relation to a grant of leave

1. The principles in relation to the grant of leave were recently set out in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17. In that decision the Commission held (at [12]): [12] The jurisprudence of the Commission concerning leave to appeal is well settled. It is nowhere more clearly set out than in the decision of the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 in which it was held, at [5]: The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
2. We see no basis to depart in any way from the principles there set out. It is also relevant in the present case that an appeal which lacks wider application than the interests of the parties will not normally be granted leave: Stegbar v Transport Workers' Union (2008) 173 IR 350 at 359.
3. We add that it is important that those representing parties before the Commission carefully consider the applicable law and jurisprudence before initiating proceedings such as appeals before the Commission.

Grounds advanced in support of a grant of leave

1. In summary, the following grounds for a grant of leave to appeal were advanced by the appellant:

• The decision to dismiss the application at first instance was wrong in that the Commissioner failed to take into account that the charges against the appellant were defective, with the result that she was denied procedural fairness;
• The investigation carried out was biased, unfair and unjust, particularly insofar as the respondent wrote directly to the appellant's doctor seeking a statement of the appellant's fitness to attend a meeting;
• The Commissioner failed to identify that fact as relevant in the circumstances of the case; and
• There was a failure to consider the seriousness of the breaches committed by the appellant against the appellant's 25 years of service with the respondent.

Consideration

1. It will immediately be seen that the grounds advanced in respect of leave to appeal do not agitate any broad error of law or principle but rather focus relatively narrowly on the particular factual circumstances of the case. The Full Bench is essentially being invited to re-examine the Commissioner's findings of fact and re-determine those findings.
2. Nevertheless, when the grounds advanced in support of leave to appeal are examined, the following further observations may be made.
3. The Commissioner gave a decision which extensively canvassed the evidence, extending over some 142 paragraphs.
4. The Commissioner's summary of her reasoning, appearing at [136] to [140] of the decision is instructive and warrants being set out here.
5. Having referred to the decision of the High Court in Byrne v Australian Airlines Limited [1995] HCA 24; 185 CLR 410 as to the terms 'harsh, unreasonable or unjust', the Commissioner went on: 136. The Applicant received a final warning in 2011. The repeated infringements in question occurred not long after (in March 2012). The Applicant continued to deny the allegations despite the evidence. She had not, at any time, shown any contrition for her actions. She has insisted all along that the procedure she adopted was common practice and was more feasible. When her length of service is balanced against the seriousness of her conduct and her lack of contrition, then the Applicant's termination cannot be considered to be harsh. 137. The Applicant had not complied with the Respondent's policies/ procedures. She arrived late to work but did not report it to her Duty Manager. She did not alter her Journal to reflect the fact that she was late and, as a consequence, not only disguised her late arrival at work but also received payment for time not worked. She amended her own Journal when she wanted to claim overtime. The Applicant's termination cannot be considered to be unreasonable. 138. It is noted that the Applicant was advised, in writing, of the details of the allegations against her. She was provided with the time and opportunity, extended on a number of occasions, to provide a written explanation in relation to the allegations. She was provided with an opportunity, between May 2012 - January 2013, to attend a disciplinary interview to further expand on her explanations. She did not take up that opportunity and the investigation report was finalised without her oral input. 139. The Applicant did not inform Ms Byrnes directly of the fact that she would not be attending the interview. Ms Byrnes was advised, the day before the interview, via the Staff Supervisor who, in turn, was advised by the Union Delegate, that she would not be attending. The Respondent was not made aware of the nature of any medical issues until it directly contacted her treating doctor who confirmed her medical condition on 25 May 2012. 140. She was provided with an opportunity to have a support person during the disciplinary process. She was given access to the Employee Assistance Program and professional independent counselling during the disciplinary process. She was provided with an opportunity to make submissions regarding the form of punishment to be applied. She has not shown any contrition nor has she put forward any mitigating circumstances apart from her lengthy employment history. In this case, the Applicant's lengthy employment period dictates that the incidents above should never have occurred given her experience, training and familiarity with the Respondent's Code of Conduct and policies/ procedures. The Applicant's termination cannot be considered to be unjust.
6. It is, in our view, clear from what is set out above that the Commissioner considered the matters which she was bound to consider in coming to a decision. The findings of fact made by the Commissioner were open to her on the evidence. So far as any allegation of procedural unfairness is made, the Commissioner has expressly turned her mind to that question (see [138] of the decision set out above). If the Commissioner did not come to a view that counsel for the appellant urged, that does not necessarily bespeak error and in any event does not give rise to any question of principle or take the matter beyond the interests of the parties.
7. Nevertheless, we turn further to address in detail the particular matters agitated on appeal.
8. So far as it is submitted that the Commissioner failed to take into account that the charges against the appellant were defective, with the result, it was said, that she was denied procedural fairness (by her employer), that contention misconceives, in our view, both the nature of the disciplinary process and the nature of the decision making exercise that is undertaken in relation to applications under Pt 6 of the Act.
9. The 'charges' initiated by the provision to the appellant of the Form E1 in March 2012 were not, contrary to the appellant's submission, 'charges' of the kind advanced in a criminal prosecution or any other proceeding requiring strict pleading. No authority was advanced for the appellant's submission that the 'charges' should be so regarded. Rather, charges or allegations of misconduct serve, particularly in a public sector context, an important role of informing an employee, with reasonable precision, of the allegations to which he/she must respond. In the context of unfair dismissal proceedings such a statement of allegation and the response thereto will constitute a critical, but not determinative, aspect of the adjudicative process, particularly having regard to s 88(b) of the Act.
10. Properly viewed, the Form E1 is intended to provide an employee subject to a disciplinary sanction with the essential factual elements on which the assertion of misconduct is based. That was done here, as the Commissioner observed (at [138] of the decision). Further, there was no dispute that the substance of the allegations was correct.
11. It must be remembered that the Commissioner at first instance was not ultimately acting as a reviewer of administrative action taken by the respondent. Rather, the Commissioner was exercising powers and functions granted to the Commission under Pt 6 of the Act, and, specifically, was exercising powers which required the Commissioner to have regard to the matters set out in s 88 of the Act. Procedural fairness issues constituted but one part of a mix of relevant considerations.
12. In that context it was relevant, amongst other considerations, for the Commissioner to consider whether the appellant was afforded procedural fairness in relation to the matters put against her as disciplinary matters, and the Commissioner did so. No error is disclosed.
13. Further, as counsel for the appellant very properly conceded in argument, the appellant in receiving the Form E1 would have known the particulars of the facts alleged and what she had to respond to. In every practical sense, she suffered no procedural disadvantage at all, even if the particulars of misconduct did not refer to particular aspects of the policies and procedures of the respondent which were said to be breached by the appellant (this is not to say that in some cases a failure to identify the instrument or policy which has been breached may do an unfairness to an employee against whom allegations were laid).
14. So far as the grounds for a grant of leave to appeal assert that the Commissioner at first instance erred in not identifying the fact that the respondent wrote directly to the appellant's doctor seeking a statement of the appellant's fitness to attend a meeting, we observe that, in fact, the Commissioner addressed the facts of that matter directly (at [6] to [10] of the decision) and then weighed those facts as an aspect of her discretionary consideration (at [113]).
15. Accordingly, first, it cannot be said that the Commissioner failed to identify the fact of the respondent's conduct as relevant to the case.
16. It is true that the Commissioner described the appellant's contention that the respondent contacted the appellant's treating doctor directly as of "no relevance", but given the Commissioner's consideration of that issue otherwise in her decision, we consider, on balance, that the Commissioner was expressing the view that the contention could not, given the manner in which the contention was developed by the appellant below, have materially impacted upon her decision under Pt 6 of the Act. We do not consider the Commissioner simply ignored the issue. As the Commissioner added, the consequence of that contact was beneficial, not detrimental, to the appellant.
17. It was advanced by the appellant as a matter of real substance, indeed as a central plank of this appeal, that the Commissioner did not address the question of whether the respondent, having written directly to the appellant's doctor, prejudged the matter and conducted its disciplinary process in a biased manner.
18. That matter may have been of some real significance although only as part of the Commission's overall deliberation as to whether the dismissal of the appellant was harsh, unjust or unreasonable. That balancing exercise would have required a weighing of that matter against the severity of the misconduct; an evaluation unlikely to displace the Commissioner's determination to dismiss the matter given her assessment of the severity of the misconduct (a conclusion not sought to be disturbed on appeal).
19. In any event, the point cannot now be properly advanced on appeal, as it simply was not put at first instance. The appellant's submissions at first instance addressed the respondent's contact with the doctor as a breach of privacy issue not as a proof of bias on the respondent's part. The Commissioner was invited to regard the respondent's conduct equivocally as being either 'innocently or otherwise motivated', without being asked to form a view on that dichotomy. If the point had been raised at first instance as the appellant now seeks to do on appeal, it would have inevitably drawn the respondent in to a reply which may have resulted in further evidence being led in the proceedings.
20. That the Commissioner, in finding that the process was procedurally fair, did not find that the respondent's conduct was a basis for a finding of unfairness seems to us entirely unremarkable. But in any event, it is apparent that the Commissioner addressed the issue. There was no error of law or misapplication of principle.
21. Further, even if there were an error in addressing a question of procedural fairness, it is a rare case in which procedural questions will determine the outcome of an application pursuant so s 84 of the Act: Antonakopoulos v Sate Bank of NSW (1999) 91 IR 385 at 389. This case is no exception. It is apparent that this appeal is mounted centrally on such procedural questions. That the appeal, if leave were granted, would be highly unlikely of any success is a matter to be weighed in the question of the grant of leave.
22. The third matter agitated by the appellant was that there was a failure to consider the seriousness of the breaches as against the appellant's 25 years of service. We do not accept this submission. It seems to us that, on any fair reading of the decision, the Commissioner expressly and properly balanced the misconduct of the appellant against her long record of service.

Summary and disposition of the matter

1. The matters advanced as a basis for a grant of leave do not, in our view, warrant the grant of leave having regard to the principles stated in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council above at [5].
2. In our view, Tabbaa C determined the matter before her within the boundaries of the Commission's jurisdiction and within the boundaries of the proper exercise of its functions with respect to an application under s 84. The decision the Commissioner made was open to her on the materials before her. Specifically, the Commissioner addressed the criteria set out in s 88 of the Act, as she was required to do.
3. The appeal raises no substantial issues of principle or law. Nor does it raise issues having any wider application than to the parties themselves. It primarily seeks no more than that the Full Bench determine the outcome to a different effect. The matter does not properly attract the grant of leave on public interest grounds.
4. We further observe that an appeal bench is ultimately concerned with correction of error, and as we see no demonstrable error in the determination of the matter by the Commissioner, leave, even if granted, would be essentially otiose.
5. We are not disposed to grant leave to appeal.

Order

1. The Full Bench makes the following order: 1. Leave to appeal is refused.

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