Tiglin Constructions Pty Ltd v Warhurst

1. The Respondent had commenced work as a full-time employee on one month's probation. His employment contract was entirely oral.
2. On 17 February 2024, less than one month into that oral employment contract, the Respondent's employment was summarily terminated, and he left the site. On that day, the Respondent had relieved himself in bushes at a golf course near the site. Mr Mooney, the Respondent's supervisor thought that these circumstances justified summary dismissal.
3. The key factual findings the Tribunal made set out at [103] of the Decision, were as follows. We set them out in full as the grounds of appeal engage substantially all of these findings of fact:

There was no reasonable basis for having any significant concerns about the Respondent's work performance.

Despite this objectively being the case to the knowledge of Mr Mooney, some of the Respondent's co-workers and Mr Mooney were hostile to the Respondent without a reasonable basis.

During his employment, the Respondent observed and overheard "a lot of disturbing racist remarks and jokes coming from both employees and Mr Mooney", most of which Mr Mooney was aware.

The Respondent tried initially to ignore it, but at some point, he expressed his dislike and displeasure with such remarks and jokes. Mr Mooney was aware of this.

At about this time, Mr Mooney and some of his co-workers expressed words of hostility to the Respondent which in effect "ostracised him for not being a participant or due to the relevant people having a hostile view" of the Respondent "for not participating in such racial remarks and jokes". Mr Mooney was aware of this.

As a result, the Respondent on more than one occasion ate his lunch on his own, including in the sun, while the balance of the work force had their lunch apart from the Respondent in the shade. This finding is corroborated by the contemporaneous text sent by the Respondent to Mr Mooney concerning being able to purchase his own lunch. Mr Mooney was aware of this.

At around this time one or more of his co-workers complained about him using the bathroom too frequently, when such complaints were objectively unreasonable and Mr Mooney was aware and shared this unreasonable opinion.

On one occasion Mr Mooney asked Mr Warhurst if he "was stupid" or had "intellectual disability" and under his breath said words to the effect of "stupid wog" and "bastard".

On another occasion when Mr Mooney was not facing the Respondent, he said, "under his breath", in respect of the Respondent, in substance that Mr Mooney should use some identified piece of heavy machinery to cause injury to the Respondent. The Respondent regarded this as a "death threat".

On the day of the Respondent's termination, Mr Mooney said to him words to the effect of "you don't belong here", "you are not cut out to work here", "you are not adequate in this job" and "you are terminated from this employment" and "you can stay but I won't pay you".

Further, that these remarks were the substance of the exchange between the two.

At the time the Respondent reasonably believed that he should not use the neighbouring site's toilet because he had not been inducted in that site.

Mr Mooney's statement to the effect that summary dismissal in his mind was justified substantially because "urinating in the bushes when golfers were out" was out of the question and taken very seriously, was not credible.

The termination and expressions of hostility towards the Respondent were not solely based upon Mr Mooney's opinion of his work performance or the incident on the golf course on the day of his termination. There were other reasons at work.

On the totality of the evidence, the Tribunal inferred and found that the Respondent's response to the events in question was to have "serious feelings of upset, hurt, anxiety and depression". The Tribunal made this finding as to the Respondent's subjective feelings rather than a medical diagnosis.

1. The relevant issues the Tribunal identified were:

(1) Was a "detriment" suffered within the meaning of the ADA?

(2) Did the conduct in question meet the "differential treatment" part of the test for direct discrimination under the ADA?

(3) Was at least one of the reasons for the relevant conduct the Respondent's race in accordance with the "causation" part of the test for discrimination?

(4) If the complaint is substantiated what remedy, if any, should the Tribunal order?

1. The Tribunal found that the relevant conduct of the Appellant, including the termination of the Respondent's employment, amounted to a "detriment" within the meaning of s 8 of the ADA.
2. In the Tribunal's view, the relevant conduct caused the Respondent to suffer significant "loss, damage or injury" meeting the detriment requirement (at [112] of the Decision).

1. Based on the totality of the evidence and its findings, the Tribunal said that a hypothetical person would not have suffered the relevant conduct that the Respondent suffered and that the differential requirement had been met. In making this finding, the Tribunal regarded as significant that Mr Mooney referred to the Respondent as a "wog" (see [116] of the Decision).

1. The Tribunal was satisfied that one of the true or genuine bases or the real reason for the relevant conduct was the Respondent's "physical features reflective of his Spanish origin which in turn was one of the reasons for him not being fully accepted by his co-workers and Mr Mooney and for his termination" (at [122] of the Decision).
2. It followed that the Tribunal considered the Appellant had directly discriminated against the Respondent on the ground of race.

1. The Tribunal has power to order the Appellant to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of its conduct. The Respondent did not seek any damages for economic loss and there was no evidence going to this issue. The Tribunal made an award of damages for $25,000 for significant and not trivial feelings of pain and suffering, upset, hurt, anxiety and depression.

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") provides that a party may appeal as of right on a question of law and by leave on any other grounds, unless the decision is an interlocutory decision, in which case leave is required.
2. The first question is whether the appeal raises any questions of law. To this extent, appeal may be made as of right. Otherwise, leave is required.
3. Questions of law that may ground a right of appeal include the following, although the categories are not closed (Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, at [30]):

(1) Whether there has been a failure to provide proper reasons.

(2) Whether there was a failure to afford procedural fairness.

(3) Whether the Tribunal failed to take into account relevant considerations.

(4) Whether the Tribunal took into account an irrelevant consideration.

(5) Whether there was no evidence to support a finding of fact.

(6) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. The Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 previously set out the following list of matters that may give rise to questions of law, including some of those set out in Unique Commercial, without being exhaustive.

(1) Whether there has been a failure to provide proper reasons.

(2) Whether the Tribunal identified the wrong issue or asked the wrong question.

(3) Whether a wrong principle of law had been applied.

(4) Whether there was a failure to afford procedural fairness.

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.

(6) Whether the Tribunal took into account an irrelevant consideration.

(7) Whether there was no evidence to support a finding of fact.

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it_._

1. In Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32, Hayne, Heydon, Crennan and Kiefel JJ said at [91]:

"A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law."

1. If no question of law can ground the appeal, the question becomes one of whether leave to appeal should be allowed on some other ground.
2. The principles which govern the granting of leave to appeal by the Appeal Panel should generally be consistent with those which are applied by Courts when considering the question of whether to grant leave to appeal (Collins v Urban [2014] NSWCATAP 17, at [82]). Having considered the authorities, the Appeal Panel said, at [84]:

"The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]...."

1. As recently noted by the Appeal Panel in Houda v Seraphim [2025] NSWCATAP 135, at [32]-[34]:

"Leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal, resulting in substantial injustice. For leave to be granted, the decision under appeal must generally be attended with sufficient doubt to warrant its consideration on appeal (see e.g. Champion Homes Pty Ltd v Guirgus [2018] NSWCATAP 54 (Champion Homes) at [35]; FFO v Cumberland Council [2022] NSWCATAP 164 (FFO) at [9]; Bettington at [22]).

....

NCAT Appeal Panels have stated, in a number of decisions, that where an application for leave to appeal relates to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions: see e.g. Collins v Urban [2014] NSWCATAP 17 (Collins) at [84(3)] citing BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21]; Champion Homes at [35]".

1. An appellant must demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome (Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]). Nor does an appeal provide a losing party with the opportunity to run its case again (see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).
2. Where an appellant is legally represented, the appellant is expected to identify questions of law with some precision, where it is asserted that the Tribunal made an error on one or more questions of law: see STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] - [27]; Theophilas v Chief Commissioner of State Revenue [2018] NSWCATAP 111 at [24].
3. We proceed on the basis of these legal principles.

1. The Appellant's grounds of appeal are set out in their "Amended Notice of Appeal" signed on 28 May 2025 and filed on 3 June 2025. The grounds are numbered 1 to 5. We will refer to each ground in these reasons by the numbers used by the Appellant.
2. In their written submissions the Appellant said that Grounds 1,2 and 3 raise questions of law and sought leave to appeal on Grounds 4 and 5. We set out below each of the grounds of appeal of the Appellant. At the hearing the Appellant also sought leave to appeal Grounds 1, 2 and 3 in the event they were not questions of law.

1. The Appellant said that the Tribunal asked itself the wrong question at [76] of the Decision, namely whether it should accept the evidence of the Respondent over that of Mr Mooney, instead of "considering the totality of the available evidence", such that it could be satisfied that the Respondent had discharged the burden of proof regarding differential treatment for the purposes of s 7(1)(a) of the ADA. The Appellant says that this is a matter that raises a question of law.

1. The Appellant submitted that the Tribunal had asked itself the wrong question in finding at [101] of the Decision that prior to termination there was hostility expressed to the Respondent based upon matters that had not been adequately explored or revealed by the evidence. The Appellant said that the Tribunal reversed the onus of proof, thereby shifting it to the Appellant. The Appellant says that these are also matters raising a question of law.

1. The Appellant said that the Tribunal did not provide adequate reasons for its finding that the Respondent had "ethnic features", thereby raising a question of law.

1. The Appellant's submission was that the Tribunal's decision was not "fair and equitable" because the Tribunal failed to consider the effect of the fact that the Respondent was employed under a one-month trial. The Appellant said that the Tribunal thereby misdirected itself in law by finding that the Respondent could only be dismissed for serious misconduct during the probation period and applied an incorrect legal standard for the assessment of whether the termination was lawful and or discriminatory.

1. In the alternative to Ground 4, Ground 5 asserts that the Tribunal's finding that the Respondent was discriminated against on the ground of race was manifestly unreasonable and against the clear weight of the evidence. The Respondent relies on the following matters:

(1) That the former employees and contractors who gave evidence said that they had not heard of any of the comments described by the Respondent in his Complaint.

(2) That the allegations of racist comments, death threats and related matters described by the Respondent had been "denied" by the Applicant's witnesses.

(3) Their evidence was unchallenged.

(4) The Tribunal speculated that the witnesses may not have been present at the time of the comments, none of which was put to them in cross examination.

(5) While accepting that the Respondent had not complied with all safety warnings, that the Tribunal nonetheless found that there were no performance issues.

(6) That the Tribunal "unreasonably" rejected evidence that Mr Mooney was always polite to the Respondent and the Tribunal relied only on what Mr Barrie could hear and see of the interactions between the two, none of which was put to Mr Barrie in cross examination.

(7) That the Tribunal gave no weight to Mr Barrie's evidence that the Respondent would forget his training from day to day.

(8) That the Tribunal speculated that Mr Champer may have had an unreasonably hostile opinion of the Respondent based on circumstances and matters that were not explored in the statement and none of which had been the subject of cross examination of witnesses.

(9) That the Tribunal determined that public urination was not a performance issue.

(10) That the Tribunal rejected the unchallenged evidence that Mr Mooney had no knowledge of the Respondent's Spanish or other heritage.

(11) That the Tribunal rejected Mr Mooney's unchallenged evidence that in the event of a complaint to the head contractor by members of the public regarding the Respondent's public urination, that could lead to a termination of the Appellant's contract.

(12) That the Tribunal incorrectly determined that the Respondent will only be dismissed during his probationary period for serious misconduct thereby applying an unduly high threshold for lawful termination and failing to consider the broader discretion afforded to employers during probationary employment.

1. A preliminary matter arising on appeal is an application for leave by the Appellant to rely on new evidence. That new evidence is found in a statement of one of its employees, Mr Barrie signed on 30 June 2025. This was a statement from Mr Barrie in which he addresses the specific evidence given by the Respondent in the proceedings before the Tribunal at first instance. That evidence goes to whether or not certain things were said about or to the Respondent.
2. A party seeking to rely on fresh evidence in an appeal may only do so with the leave of the Appeal Panel (see QP v RP [2014] NSWCATAP 59 at [34]- [37]).
3. The principles relevant to a grant of leave to rely on fresh evidence in internal appeals were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [33]:

"There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]..."

1. Even if we were to grant leave for the Appellant to rely on Mr Barrie's further statement, we do not think that the evidence in that statement would assist the Appellant. In the statement, Mr Barrie says that he did not hear particular words being said. This does not mean they were not said, for example, if Mr Barrie was not in earshot at the time.
2. We do not in these circumstances think that the new evidence has any probative value that is material and would have produced a different result at first instance. We do not grant the leave sought.
3. We set out at [13] above the evidence as to what was said and the Tribunal's findings and the Appeal Panel's consideration of that evidence from [48] below.

1. The Appellant said that the Tribunal asked itself the wrong question at [76] of the Decision, namely whether it should accept the evidence of the Respondent over that of Mr Mooney, instead of "considering the totality of the available evidence". The Appellant says that this is a matter that raises a question of law.
2. The Complaint, that was before the Tribunal at first instance, identified that the Respondent claimed he had been called a "wog pest and half cast n*gger". In his oral evidence at first instance, the Respondent, did not mention these words but had reported different words as having been said. He referred to "comments made from other workers that I'm a lazy wog, bastard". The Appellant says that this showed a "significant divergence" between the Complaint and the Respondent's oral evidence, in that the oral evidence made no mention of the Respondent being called a "wog pest" or "half cast n*gger". The Appellant also submitted that the Respondent had not said that Mr Mooney had made the remarks to him. The Appellant said that it was "readily apparent that Mr Warhurst was embellishing the complaint".
3. The Appellant said that based on the available evidence, the Tribunal could not be satisfied that the requisite standard of proof was met, for such a serious and adverse finding that Mr Mooney had called the Respondent a "stupid wog" or alternatively that anyone employed by the Appellant called him a "stupid wog".
4. In summary, the evidence of the Respondent at first instance included evidence that he had been called a "wog pest" and a "half-cast N*gger" ("former words") (paragraph [13] of the Decision). It also included evidence that Mr Mooney had called him a "stupid wog" and "bastard" ("later words") (paragraph [24] of the Decision). The Tribunal in its summary of the findings of fact set out the later words as having been said on one occasion (paragraph [103](8)) of the Decision). That the Tribunal did not also set out in its summary of findings of the saying of the former words did not, in our opinion, prevent the Tribunal from making the findings of fact that the later words were said. They were not findings made without evidence.
5. The "significant divergence" between the Complaint and the Respondent's oral evidence claimed by the Appellant was that in his oral evidence, the Respondent made no mention or being called a "wog pest" or "half cast n*gger". We do not see any significance in the alleged divergence. There is nothing in the evidence to indicate that the Applicant in his oral evidence contradicted what the Complaint recorded. The finding of fact made by the Tribunal in its summary was that Mr Mooney had called the Respondent a "stupid wog" and a "bastard". That it also did not include in the summary a finding that the former words recorded in the Complaint were said, does not allow for a conclusion that the former words were not said nor cause us to doubt the evidence of the Respondent.
6. The Tribunal referred to and regarded as significant that Mr Mooney referred to the Applicant as a "wog" (paragraph [116] of the Decision) but this was not the only basis for the finding of differential treatment.
7. The Tribunal's findings of fact went beyond the finding that Mr Mooney had said words to the effect of "stupid wog" and "bastard". They included evidence of "racist remarks and jokes" and ostracism of the Respondent for not being a participant in these behaviours. They also included a finding that Mr Mooney and some of the Respondent's co-workers were hostile to the Appellant without a reasonable basis. The Tribunal went on to find that based on "the totality of the evidence" and its findings, a hypothetical person would not have suffered the relevant conduct that the Respondent suffered and that the differential requirement has been met. The Tribunal sets out a summary of what the "totality" of that evidence was (paragraph [103] of the Decision). That evidence included that of the Respondent, Mr Mooney and others working at the site.
8. The Tribunal, in evaluating the evidence given by the Respondent, said of the Respondent that he "presented as a careful and deliberate witness trying his best to give honest answers to questions. He was, however, clearly unfamiliar with the environment and the giving of evidence. The evidence he gave as to dates and times followed our instruction to him to try and be as specific as he could with dates and times. In our view, he was likely confused and attempted as best as he could in the witness box to provide precise dates and times of events. He made concessions when called for, such as the accuracy of dates. Otherwise, Mr Warhurst struck us as a reliable and credible witness as to the substance and sequence of events" (at [78] of the Decision).
9. Another employee at the time, Mr Collier said that he did not hear any worker at the project making racist jokes to the Respondent and did not hear any comments such as "wog pest" or "half-cast n*gga". He also said that he did not hear any death threat jokes being made to the Respondent or any other employee on the site (paragraph [47] of the Decision). Messrs Loutsopoulos, Barrie and Champer were other workers who gave similar evidence (at [52], [60] and [63] of the Decision).
10. In considering Mr Collier's evidence, the Tribunal observed that what he said about not hearing the alleged remarks did "not exclude the possibility of such remarks being made which were not within ear shot or when Mr Collier was not there" (paragraph [87] of the Decision). The Tribunal made similar findings regarding the evidence of Messrs Loutsopoulos, Barrie and Champer (at [89], [90] and [98] of the Decision). That evidence, in the Tribunal's view, did "not in most regards directly or necessarily conflict with Mr Warhurst's evidence" (at [85] of the Decision).
11. Of Mr Mooney's evidence, the Tribunal said that "his short answers to questions in chief and under questioning demonstrated a failure to be forthcoming about all of the issues of friction between himself and his employees or contractors, on the one hand, and Mr Warhurst, on the other hand. Overall, for these reasons, we have difficulty in accepting the reliability and credibility of Mr Mooney as a witness of fact" (at [80] of the Decision).
12. We find no deficiencies in the manner in which the Tribunal considered and evaluated the evidence of all relevant witnesses. The Tribunal found that the evidence of Messrs Loutsopoulos, Barrie and Champer did not contradict the Respondent's evidence. In weighing up the evidence provided by the Respondent and Mr Mooney, the Tribunal accepted the Respondent as "credible" and "reliable" and preferred his evidence to that of Mr Mooney, setting out its reasons. We find in these circumstances that there was no failure to consider the "totality" of the evidence.
13. We do not see anything in the above circumstances that gives rise to an error of law as alleged by the Appellant. This is not a case where findings of fact were made with no evidence. The Tribunal considered the evidence of each witness and based on that evidence, made its findings of fact. The Tribunal sets out its reasoning in doing so. That reasoning is clear and explains how the Tribunal made its findings of fact. We do not find any relevant deficiency in the way in which the Tribunal received or evaluated the evidence before it, in making findings of fact, the questions it asked or that the findings of fact made by the Tribunal could be considered to fail the requisite standard of proof.
14. It follows that Ground 1 does not give rise to any question of law that can ground an appeal.
15. We also find no basis to conclude that any finding of fact made by the Tribunal was unreasonably arrived at and clearly mistaken. Nor can we find that the Tribunal's approach to fact finding was unorthodox in any relevant way. Further we see no issue of principle, questions of public importance or matters of administration or policy which might have general application, nor an injustice which is reasonably clear, that could ground a claim for leave to appeal on Grounds 1.

1. Paragraph [101] of the Decision is as follows:

"In general, in light of our careful review of these statements combined with the fact that these four witnesses were well placed to judge Mr Warhurst's work performance, we think it is significant that they have been unable to give clear, specific evidence of any significant issue with Mr Warhurst's work performance. This re-enforces our finding, which we make, that prior to termination there was hostility expressed to Mr Warhurst based upon matters that have not been adequately explored or revealed by the evidence of the Tiglin's witnesses, including Mr Mooney".

1. We understand the Appellant's submission as to this ground to be that the Tribunal's finding that hostility was expressed to the Respondent was not based on sufficient evidence, and that as a result, the Appellant had the onus of proving that it did not engage in differential treatment. They say that this happened in circumstances where the Respondent failed to provide both points of claim and a witness statement. They say that this is why the relevant matters were not revealed or explored in the evidence of the Appellant's witnesses.
2. The Tribunal's findings of fact included the finding that Mr Mooney and some of the Respondent's co-workers were hostile to the Respondent without a reasonable basis. However, that finding was not made without evidence. The Tribunal accepted the correctness of the primary facts given by the Respondent. This included evidence of the slurs against him. Even if the Tribunal was of the view that there were "matters that have not been adequately explored or revealed by the evidence of the Tiglin's witnesses", there was sufficient evidence for the Tribunal to make the findings of hostility towards the Respondent. These were not findings made without sufficient evidence. We also do not see any reversal of the onus of proof in these circumstances.
3. The Appellant also says that the Respondent had failed to comply with the Tribunal's orders, including orders that he provide points of claim detailing his complaint and a witness statement. We understand this to be a submission that the Appellant was disadvantaged by not knowing the case it had to answer. While the Appellant did not expressly articulate what question of law these particular circumstances raised, we will take the Appellant to be additionally making a claim of procedural unfairness.
4. The facts of the matter the Respondent relied upon were set out in the Complaint and his evidence as a witness. That information was available to the Appellant and was before the Tribunal during the proceedings at first instance. The Appellant additionally was legally represented both at the hearing at first instance and on appeal. The Respondent was not legally represented.
5. The Appellant had the opportunity to make its submissions concerning the evidence and the provisions of the ADA in issue during the proceedings at first instance and did so. The Appellant also put before the Tribunal the evidence of multiple witnesses.
6. We do not, in these circumstances, think that the Appellant was denied the opportunity to consider the Respondent's case and answer it and see no basis for a claim for procedural unfairness arising out of the conduct of the matter.
7. We do not see any question of law in Ground 2 that can allow an appeal.
8. Further, we see no issue of principle, questions of public importance or matters of administration or policy which might have general application, nor an injustice which is reasonably clear, that could ground a claim for leave and we would not grant leave to appeal on this ground.

1. The Appellant said that the Tribunal did not provide adequate reasons for its finding that the Respondent had "ethnic features".
2. Whether or not providing reasons raised a question of law fell for consideration in Wollondilly Shire Council v Styles [2024] NSWCATAP 104. The Appeal Panel said that alleging inadequacy of reasons, of itself, was not enough without identifying the particular or specific question of law. It said, at [28] to [30]:

"Simply alleging that the Tribunal's reasons are inadequate may not be sufficient to identify the particular or specific question of law that arises where the alleged inadequacy does not "breach a statutory condition of validity of the decision itself, so as to render the decision invalid": Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [30].

Whilst it is true that simply alleging that reasons are inadequate "raises" a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz, above, at [72].

In the absence of leave to appeal, the particular questions of law identified by the appellant are the subject matter of the appeal: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, above, at [13] and the cases referred to there. Succinctly identifying the question the alleged inadequacy raises will also better turn the parties' attention to what question the Appeal Panel is actually answering, as an allegation that reasons are inadequate is all too often simply a challenge to the merits of the Tribunal's decision, for which leave to appeal is required".

1. The need for reasons on the part of the Tribunal specifically involves consideration of s 62 of the NCAT Act. Section 62(2) allows any party, within 28 days of being given notice of a decision of the Tribunal, to request the Tribunal to provide a written statement of reasons for its decision, if a written statement of reasons has not already been provided to the party. Section 62(3) provides that a written statement of reasons, for the purposes of s 62 must set out the following -

"(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made".

1. Even if a party has not requested a written statement of reasons, s 62(3) "supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s62(2)" (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, ("Orr") at [55]). The reasoning need not be unduly long or elaborate but needs to be sufficient to explain why a decision was made. In Orr, the Court of Appeal said, at [70] - [74]:

" .... it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court....

1. The Court of Appeal said in Della Bruna v Health Care Complaints Commission [2025] NSWCA 105, per Bell CJ and Kirk JA, at [63] that the decision maker needs to provide "adequate, intelligible or logical reasons".
2. The finding of fact that the Respondent had "ethnic features" went to establishing his race and that he had been discriminated on the grounds of race. The Tribunal, in making that finding, summarised the evidence and made the finding that the Respondent "is Spanish, his skin turns dark very easily and he has ethnic features" (at [13] of the Decision). The Respondent was physically present at the hearing and the Tribunal was entitled to make findings based on their own observations of the Respondent. Further, the Tribunal also observed (at [117]) "we note that a characteristic that 'appertains generally to' a person of Spanish origins includes Mr Warhurst's visible physical features upon which we principally base our conclusion."
3. We see no reason why the Tribunal in these circumstances could not have found that the Respondent had "ethnic features". The Tribunal referred specifically to the Respondent's physical appearance. We do not, in these circumstances, see any absence or inadequacy of reasons in the manner submitted by the Appellant.
4. We do not think that the reasons set out by the Tribunal for its finding that the Respondent had "ethnic features" gives rise to any error of law. Further, we see no issue of principle, questions of public importance or matters of administration or policy which might have general application, nor an injustice which is reasonably clear, that could ground a claim for leave and we would not grant leave to appeal on this ground.

1. In seeking leave to appeal on Ground 4, the Appellant's submission was that the Tribunal's decision was not "fair and equitable" because the Tribunal failed to consider the effect of the fact that the Respondent was employed under a one-month trial. The Appellant said that the Tribunal thereby misdirected itself in law by finding that the Respondent could only be dismissed for serious misconduct during the probation period and applied an incorrect legal standard for the assessment of whether the termination was lawful and or discriminatory.
2. We understand the Appellant's submission to be that something less than serious misconduct was sufficient to terminate an employee on probation and that in finding that serious misconduct was required, the Tribunal erred.
3. At first instance, the Tribunal found that Mr Mooney accepted that in the relevant circumstances, he was "aware that to summarily terminate Mr Warhurst required him to be satisfied that Mr Warhurst had engaged in serious misconduct" (at [75] of the Decision).
4. Mr Mooney in his oral evidence said that he understood applicable workplace laws. He said he understood the relevant law in detail. He also said that the Respondent's conduct in relieving himself on the golf course was "very serious". We do not in these circumstances think that the Tribunal misunderstood the evidence before it. Mr Mooney had thought that the conduct of the Respondent was "very serious". The Tribunal found that in Mr Mooney's mind, this conduct justified dismissal.
5. Further, the submissions of the Appellant at first instance did not address the question of whether serious misconduct was required to permit the dismissal of the Respondent while he was on probation or whether something of a lesser order would suffice. If at first instance, the Appellant accepted that summary termination occurred on the basis that the Appellant was satisfied that the Respondent had engaged in serious misconduct, Ground 4 appears to reopen a matter that was not contested at first instance and in that the Appellant now seeks to re-litigate and re-agitate the question of what was the correct test for dismissal.
6. Even if it were permissible for the Appellant to seek redetermination of an issue on the basis of matters it did not place before the Tribunal at first instance, there were no submissions or evidence before the Appeal Panel as to what rights at law, an employee on a probationary arrangement had and in particular, the circumstances in which such an arrangement could be terminated in the absence of serious misconduct. Additionally, even if the wrong test was applied, there were no submissions made at first instance or on appeal as to whether or not s 4A of the ADA would, whatever the correct test for termination, allow for a finding that unlawful discrimination had occurred.
7. If the basis of Ground 4 is that a question of law arises by reason of the Tribunal having applied the wrong test, in the circumstances set out above, the Appellant has not established the matters going to Ground 4.
8. This ground of appeal also involves the submission that as a result of the alleged misdirection concerning the probation, the Tribunal misconceived the nature and relevance of the evidence before it. The Appellant says that this led to erroneous findings that in the absence of serious misconduct, the termination must have been motivated by racial discrimination. In the Appellant's submission, this involved preferring the Respondent's version of events on an incorrect legal premise, rather than a proper evaluation of the evidence based on a correct legal premise. The Appellant alleges that the Tribunal misapplied the burden of proof preferring the Respondent's evidence on the incorrect legal premise.
9. The ground also states that the Tribunal gave little or no weight to the unchallenged evidence of four witnesses, all of whom stated that they did not observe any conduct that could amount to racial discrimination none of whom were employed by the Respondent at the time of their evidence.
10. The ground further states that these legal and factual errors led to a series of material findings that were not reasonably open on the evidence.
11. Ground 4 raises questions as to whether sufficient weight was given to the evidence of the Appellant's witnesses.
12. We have already considered at [46] - [56] above the question of whether the manner in which the Tribunal dealt with the evidence of each witness can be impugned. For the reasons set out at [57] above, we found that these are not matters that give rise to a right of appeal on a question of law.
13. We therefore do not consider Ground 4 establishes an error on a question of law as to whether or not sufficient weight was given to the evidence of the Respondent's witnesses.
14. Leave to appeal was sought on Ground 4. Where the Tribunal's decision involves a factual error that was unreasonably arrived at and clearly mistaken, or if the way in which the Tribunal undertook the task of fact finding was unorthodox, the Appeal Panel may grant leave to appeal.
15. We find no basis to conclude that any finding of fact made by the Tribunal in Ground 4 was unreasonably arrived at and clearly mistaken. Nor can we find that the Tribunal's approach to fact finding was unorthodox in any relevant way.
16. Also, we see no issue of principle, questions of public importance or matters of administration or policy which might have general application, nor an injustice which is reasonably clear, that could ground a claim for leave.
17. We do not find any basis for grant of leave to appeal on Ground 4.

Ground 5 - manifest unreasonableness and against the weight of evidence

1. In the alternative to Ground 4, Ground 5 asserts that the Tribunal's finding that the Respondent was discriminated against on the ground of race was manifestly unreasonable and against the clear weight of the evidence. The Respondent relies on the following matters.

(1) That the former employees and contractors who gave evidence said that they had not heard of any of the comments described by the Respondent in his Complaint.

(2) That the allegations of racist comments, death threats and related matters described by the Respondent had been "denied" by the Appellant's witnesses.

(3) Their evidence was unchallenged.

(4) The Tribunal speculated that the witnesses may not have been present at the time of the comments, none of which was put to them in cross examination.

(5) While accepting that the Respondent had not complied with all safety warnings, that the Tribunal nonetheless found that there were no performance issues.

(6) That the Tribunal "unreasonably" rejected evidence that Mr Mooney was always polite to the Respondent and the Tribunal relied only on what Mr Barrie could hear and see of the interactions between the two, none of which was put to Mr Barrie in cross examination.

(7) That the Tribunal gave no weight to Mr Barrie's evidence that the Respondent would forget his training from day to day.

(8) That the Tribunal speculated that Mr Champer may have had an unreasonably hostile opinion of the Respondent based on circumstances and matters that were not explored in the statement and none of which had been the subject of cross examination of witnesses.

(9) That the Tribunal determined that public urination was not a performance issue.

(10) That the Tribunal rejected the unchallenged evidence that Mr Mooney had no knowledge of the Respondent's Spanish or other heritage.

(11) That the Tribunal rejected Mr Mooney's unchallenged evidence that in the event of a complaint to the head contractor by members of the public regarding the Respondent's public urination, that could lead to a termination of the Appellant's contract.

(12) That the Tribunal incorrectly determined that the Respondent will only be dismissed during his probationary period for serious misconduct thereby applying an unduly high threshold for lawful termination and failing to consider the broader discretion afforded to employers during probationary employment.

1. The matters set out at [94] above, except at (12) involve only findings of fact by the Tribunal. They raise no question of law and therefore appeal as of right.
2. Ground 5 concerns various findings of fact made at first instance.
3. We have set out at [56] - [57] above the Tribunal's treatment of this evidence that the former employees and contractors who gave evidence said that they had not heard of any of the comments described by the Respondent in his complaint. The Tribunal said that not hearing the alleged remarks did "not exclude the possibility of such remarks being made which were not within ear shot or when Mr Collier was not there".
4. The evidence is not that other personnel "denied" that the statements alleged to have been made to the Respondent, were uttered. They said they had not heard them. The Tribunal additionally did not reject what the Appellant says was the "unchallenged" evidence of the other personnel. The Tribunal said that their evidence did not "in most regards directly or necessarily conflict with Mr Warhurst's evidence".
5. For the reasons set out at [48] - [56] above, we find nothing unreasonable or mistaken in the Tribunal's conclusions as to the matters set out at (1) - (4) and (6) at [94] above.
6. The Appellant challenges the Tribunal's findings of fact concerning the Respondent's performance. The Appellant says that the finding was that there were "no performance issues" and challenges that finding.
7. This submission misconceives what the Tribunal found as regards performance. This was a finding that "termination and expressions of hostility towards Mr Warhurst was not solely based upon Mr Mooney's opinion of Mr Warhurst's work performance or the incident on the golf course on the day of his termination. There were other reasons at work" (paragraph [103](14) of the Decision). In other words, the Tribunal accepted that certain questions surrounding performance arose and did not disregard the evidence concerning these matters, but found that the Respondent's termination involved other reasons. We find no unreasonableness or relevant mistake in the Tribunal's findings or the reasoning for those findings, as alleged by the Appellant at (5), (7) and (9) at [94] above.
8. The Appellant claims that the Tribunal speculated that Mr Champer may have had an unreasonably hostile opinion of the Respondent based on circumstances and matters that were not explored and none of which had been the subject of cross examination of witnesses. We have set out at [62] above our conclusions as to the Tribunal's findings concerning hostility towards the Respondent. We do not find any unreasonableness or mistake in the Tribunal's findings on the grounds asserted by the Appellant at (8) at [94] above.
9. We find no basis to impugn the Tribunal's treatment of Mr Mooney's evidence that he "was not aware of Mr Warhurst's Spanish heritage and 'didn't care' about that" as alleged at (10) above at [94]. The Tribunal found that "one of the true or genuine bases or the real reason for the Relevant Conduct was Mr Warhurst's physical features reflective of his Spanish origin which in turn was one of the reasons for him not being fully accepted by his co-workers and Mr Mooney and for his termination". That was not a finding that depended on whether Mr Mooney was specifically aware of the heritage of the Respondent as being Spanish, but on the Respondent's physical features. We do not find any unreasonableness or mistake in the Tribunal's finding.
10. The Appellant says that the Tribunal rejected Mr Mooney's unchallenged evidence that in the event of a complaint to the head contractor by members of the public regarding the Respondent's public urination, that could lead to a termination of the Appellant's contract.
11. No further submissions or evidence was placed before the Tribunal as to what the contract with the head contractor said nor from the head contractor themselves going to these matters. We are unable in these circumstances to assess how material the issue was. Absent any such submissions or evidence, we do not think that any unreasonableness or relevant mistake arises from the matters raised at (11) at [94] above of the kind required to allow for leave to appeal.
12. For the reasons set out above, we consider that no finding of fact made by the Tribunal identified at (1) - (11) at [94] above was unreasonably arrived at and clearly mistaken. Nor can we find that the Tribunal's approach to fact finding was unorthodox in any relevant way.
13. We also find no issues of principle, questions of public importance or matters of administration or policy which might have general application, nor an injustice which is reasonably clear, that could ground a claim for leave to appeal on Ground 5.
14. As regards the Tribunal's reasoning that the Respondent could only be dismissed during his probationary period for serious misconduct, we have already considered the Appellant's reliance upon this ground at [81] - [82] above. For the reasons set out there and in the absence of sufficient evidence and submissions on the terms of employment, we do not think that this is a ground that can allow for leave to appeal.

1. In the absence of any question of law arising or grounds to allow leave to appeal, leave to appeal is relevantly refused and the appeal should be dismissed.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The order for stay made on 16 May 2025 is lifted with effect from 7 days from the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.