Unfair dismissal appeals and valid reason

 

The issue under the Fair Work Act whether the termination of the employment of an employee constitutes an unfair dismissal is regarded by the Fair Work Commission as largely “discretionary” by which is meant that the fact that one member of the Commission may have decided the issue on the evidence differently than another does not make either conclusion right or wrong. The consequence is that appeals do not succeed merely because a member of the appeal bench may  reach a different conclusion than another based on the evidence thus;

“The Deputy President then weighed Mr Rainbow’s long and largely unblemished employment history against his conduct on 28 July 2021 and concluded as follows;

“[159] A balanced, objective and realistic evaluation of all the evidence relating to the incident and the Applicant’s long, largely unblemished history, does not support the Respondent’s conclusion that the Applicant’s safety breach was of such gravity and significance so as to justify his dismissal. In making the decision to terminate the Applicant’s employment, particularly given his personal circumstances, the Respondent acted disproportionately to the gravity of the Applicant’s breach thus rendering the dismissal harsh, unjust and unreasonable.

[160] Therefore, for the reasons given above, I am satisfied that the Applicant has been unfairly dismissed. I turn now to remedy.” 11

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Consideration

Ground 1(a), (b) and 2(a)

[31] By grounds 1(a), (b) and 2(a) Queensland Rail contends that the Deputy President failed to apply the proper approach in considering whether Mr Rainbow’s conduct constitutes a valid reason for his dismissal. Queensland Rail also submit that the Deputy President failed to properly characterise the totality and gravity of the misconduct in determining whether there was a valid reason for Mr Rainbow’s dismissal. This it says led to a failure of the Deputy President to properly weigh and assess the valid reason for dismissal with other s.387 criteria and in particular harshness under s.387(h).

[32] The initial error according to Queensland Rail lies in the Deputy President’s consideration of each the three aspects of Mr Rainbow’s misconduct in isolation rather than considering the totality of the conduct. The three aspects of Mr Rainbow’s conduct were;

  • doing a “foreigner”
  • using inappropriate and unprofessional language; and
  • parking his private vehicle over a live rail line in the Portsmith Yard.

[33] As earlier set out, the Deputy President found that Mr Rainbow’s conduct of doing a “foreigner” and using inappropriate and unprofessional language did not found a valid reason for his dismissal whereas his parking his car on a live rail line did establish a valid reason for his dismissal.

[34] According to Queensland Rail, consideration of ‘whether there was a valid reason for the dismissal related to the person’s capacity or conduct’ does not call for an examination of whether each aspect of the conduct was a valid reason, but rather whether the employer had a valid reason for the employee’s dismissal based on the employee’s conduct considered in its totality. It further argues that only by considering the totality of the conduct can the harshness of the dismissal be assessed. By failing to consider the totality of Mr Rainbow’s conduct in the assessment of whether there was a valid reason, Queensland Rail submit that the Deputy President determined that the termination was disproportionate to one specific aspect of conduct (i.e. parking on a live rail line).

[35] Queensland Rail refers to the Full Bench authority of Malcolm Pearson v Linfox Australia Pty 22 (Pearson No. 2) which Queensland Rail says expressly approved that the reasons for dismissal should be considered in totality when determining whether there was a valid reason for dismissal. Pearson followed the first instance decision of Commissioner Gregory in Malcolm Pearson v Linfox Australia Pty23 (Pearson No. 1) in which he considered a range of misconduct of Mr Pearson who worked for Linfox at its Fonterra Distribution Centre. The misconduct considered included Mr Pearson’s absence from work notification, his mobile phone usage at work, social media policy breaches and Safe Working Procedures policy breaches.

[36] In Pearson No. 1 the Commissioner examined all of the relevant facts relating to the alleged misconduct and concluded as follows;

“[51] In all the circumstances I am satisfied Linfox had a valid reason to dismiss Mr Pearson based on an objective analysis of the relevant facts. The individual instances concerning his conduct may not in isolation have justified his dismissal. However, in a similar way to the conclusion reached by Sams DP in Dickinson v Calstores Pty Ltd his conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with the policies and procedures Linfox had in place in the Distribution Centre. I am satisfied in those circumstances his conduct constituted a valid reason for termination.” 24 (Our emphasis added)

[37] On appeal in Pearson No.2 the Full Bench summarised the Commissioner’s decision and specifically referred to the valid reason conclusion he reached at [51] in Pearson No.1. It is correct that the Full Bench did not overturn the Commissioner’s approach or conclusion reached on valid reason at first instance. They found no error in his approach. That however falls short of an express approval of the approach adopted. Nor does it stand for the proposition or a decision rule that all conduct must be aggregated in determining whether a valid reason for a dismissal exists. We note that in Pearson No.1 the Commissioner explicitly stated that each of the individual instances of misconduct in themselves may not have justified dismissal. An aggregation of the conduct in in determining the existence of a valid reason for dismissal in these circumstances was not only unsurprising but entirely appropriate.

[38] More relevant in the context of the present case is the Full Bench authority of Mt Arthur Coal Pty Ltd v Goodall 25 (Mt Arthur). The decision involved an appeal of a decision by Commissioner Saunders (as he then was) at first instance in which the Commissioner found a valid reason existed for Ms Goodall’s dismissal based on an evaluation of each of the discreet grounds of misconduct relied by Mt Arthur in dismissing him. In reviewing the Commissioner’s approach to the evaluative task involved in assessing whether there was a valid reason for dismissal and then considering whether the dismissal was harsh, the Full Bench relevantly stated as follows;

“[66] We do not agree with the requirement postulated in Mt Arthur Coal’s submissions that the “totality” of Mr Goodall’s conduct had to be considered prior to the Commissioner engaging upon whether there was a valid reason for dismissal and then whether the dismissal was harsh. Mt Arthur Coal had given discrete reasons for Mr Goodall’s dismissal based upon various aspects of his conduct. That being the case, it was appropriate for the Commission in relation to s.387(a) to consider each reason given and assess whether it was a valid reason for dismissal. The Commissioner found that each reason given was a valid one, so that there was no need for the Commissioner to then proceed to assess the validity of the reasons in their totality. In relation to s.387(h), the Commissioner had a broad discretion to take into account those matters which he considered relevant. In the exercise of that discretion, the Commissioner considered the gravity of each and every aspect of Mr Goodall’s misconduct, being the safety risks posed by his use of Channel 6, his swearing, the various “crude, lewd and sexist comments” he made , and the anti-Muslim comments. We consider that was a process of analysis that was reasonably available for the Commissioner to undertake having regard to the different character of each aspect of Mr Goodall’s conduct. There is no one process of analysis that s.387(h) either expressly or by implication requires the Commission to undertake, nor is there any basis for an appellate Full Bench to impose a “decision rule” requiring the discretionary decision-making process to be undertaken in a particular way.” (footnotes omitted)

[39] Queensland Rail seeks to distinguish Mt Arthur on the basis that the relevant factual background in that case was that Mt Arthur had given Mr Goodall discreet reasons for his dismissal whereas in the present case Queensland Rail’s approach was that of considering the totality of the misconduct. In making that submission Queensland Rail relies on the statutory declaration 26 of James Benstead, who is Queensland Rail’s Head of Regional and participated in the decision to dismiss Mr Rainbow. While Mr Benstead refers in the statutory declaration to the various circumstances he recalls that led to Mr Rainbow’s dismissal, including the ‘foreigner’, his reaction to Mr Coran and prior disciplinary action,27 more relevant is the letter actually sent to Mr Rainbow confirming his dismissal which set out the discrete allegations of misconduct found to have been substantiated.28 To that extent, the Full Bench sees no difference between the circumstances of the present case and Mt Arthur which Queensland Rail seeks to distinguish so far as both employers set out discreet reasons for dismissal.

[40] As made clear by the Full Bench in Mt Arthur, there is “no one process of analysis that s.387(h) either expressly or by implication requires the Commission to undertake”. We respectfully endorse that statement by the Full Bench in Mt Arthur along with the further statement they made that there is no “basis for an appellate Full Bench to impose a “decision rule” requiring the discretionary decision-making process to be undertaken in a particular way”. We agree and decline to do so now in the appeal before us.

[41] In assessing whether there was a valid reason for dismissal and then whether the dismissal was harsh, the Deputy President had broad discretion in undertaking that task. He approached that task by considering each of the discreet grounds relied on for the dismissal. That approach was open to him. For the reasons set out at [140]-[150] of the Decision, the Deputy President found that a valid reason existed for Mr Rainbow’s dismissal based on his parking his vehicle across a live rail line at the Portsmith yard. Having found a valid reason existed relating to rail line safety breach it was unnecessary for the Deputy President to then assess the conduct in its totality for the purpose of s.387(a), unlike the circumstances in Pearson No. 1 where the individual instances of misconduct may not have justified dismissal when considered in isolation.

[42] Turning now to whether the Deputy President erred in failing to consider the gravity of the conduct in totality when weighing all of the s.387 criteria including an assessment of harshness. In the present case Queensland Rail says that had the Deputy President properly weighed all of Mr Rainbow’s conduct in assessing whether the dismissal was harsh, he would have concluded that the gravity of the aggregated misconduct would have been greater such that factors going to the harshness of the dismissal considered at s.387(h) would been insufficient to displace the valid reason for dismissal. This ground of appeal is rejected for the following reasons.

[43] Firstly, the Commission is not compelled to follow a particular approach. As made clear in Mt Arthur, there is a broad discretion and no one analysis of s.387(h) that is required. Secondly, a fair reading of the Decision indicates to us that the Deputy President carefully considered all of the alleged misconduct and that all that was relevant in his assessment of harshness when weighing conduct against other factors was that of the valid reason for dismissal that he found. Finally, even if we are wrong on this point and the Deputy President erred in his approach to weighing the aggregate conduct against factors telling in favour of harshness, we are not of the view there is any utility in granting permission to appeal on this point. That is because in our view the established conduct pointed to by Queensland Rail, that of the “foreigner” and “rough language” used by Mr Rainbow falls at the low end of seriousness and would not have been significant enough, even when considered with the rail line safety breach, to displace those factors telling in favour of a finding of harshness.

[44] As no appealable error is disclosed we decline to grant permission to appeal in respect of grounds 1(a), (b) and 2(a).”

Queensland Rail T/A Queensland Rail v Rainbow (2022) FWCFB 147 delivered 2 August 2022 per Catanzariti VP, Masson DP and Yilmaz C