Unfair dismissal appeals; good luck with that

The following extract from the reasons for decision by the Fair Work Commission in an appeal by an employee against a decision of the Commission dismissing an unfair dismissal application reveals the huge task an appellant faces in an appeal and the ambit of the discretion conferred upon the Commission by the legislation and case law.

…………………………“Consideration

Permission to appeal

[29] We are satisfied that the grant of permission to appeal would be in the public interest. Rabbi Ash’s case has a number of unusual features: his employment lasted for over 40 years, he performed a specialist teaching role of importance to the Chabad community in Melbourne, his dismissal disconnected him from this role in the community, and he was 66 years old as at the date of the hearing before the Deputy President. Those circumstances suggest that dismissal is likely to have had significantly detrimental effects for Rabbi Ash, not just in terms of his financial position and his employment prospects but also in respect of his standing and prestige in the Chabad community. For that reason, we consider that the public interest dictates that there should be a full appellate review of the decision to ensure that no injustice is done to Rabbi Ash. Permission to appeal is therefore granted.

Preliminary observations

[30] Before we proceed to consider each of the grounds of appeal, it is necessary to make two preliminary observations of a general nature about Rabbi Ash’s appeal. The first is that it appears to us that there is a fundamental contradiction at the heart of the appeal. Rabbi Ash does not challenge the Deputy President’s finding under s 387(a) that his conduct in connection with the Fourth and Fifth Incidents constituted a valid reason for his dismissal. A valid reason under s 397(a) is one that provides a sound, defensible and well-founded rationale for dismissal. In order for conduct which has found to have occurred to constitute a valid reason, it must involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify dismissal. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal. 18 In the decision, the Deputy President’s finding that the Fourth and Fifth Incidents constituted a valid reason for Rabbi Ash’s dismissal was founded on a characterisation of his conduct as involving a failure to supervise students as required in breach of his duty of care and a failure to follow reasonable and lawful directions, as well as a rejection of Rabbi Ash’s explanations for the incidents as reasonable or acceptable or providing him with an excuse for his conduct. The appeal must therefore proceed on the basis that these characterisations of Rabbi Ash’s conduct for the purpose of s 387(a) stand unchallenged and that it is not now in contest that the conduct so described was of sufficient gravity to provide a sound, defensible and well-founded reason for Rabbi Ash’s dismissal.

[31] It is difficult to reconcile this position with the submissions advanced on behalf of Rabbi Ash, in respect of the Deputy President’s findings under s 387(h) and her overall conclusion in the matter, that this conduct was the result of mere misunderstandings and oversights and that it was not reasonably open to find that the conduct merited anything more than a warning. It seems to us that in assessing the contentions of error with respect to the Deputy President’s consideration under s 387(h) and her overall exercise of the discretion, full force and effect must be given to the Deputy President’s unchallenged findings pursuant to s 387(a).

[32] The second observation is that the appeal does not challenge the Deputy President’s adverse credit finding concerning Rabbi Ash’s evidence. That credit finding, which involved a conclusion that Rabbi Ash was defensive, at times evasive and strident in his interpretation of events must be borne in mind when considering the submissions advanced by Rabbi Ash – particularly his contention that the Deputy President erred in finding that Rabbi Ash had not expressed contrition or accepted responsibility for his conduct and in not treating Rabbi Ash’s explanations for his conduct as demonstrating that the Fourth and Fifth Incidents were merely the result of miscommunication or an oversight.

………………………………………………….

 

[54] It is convenient that we deal with these two appeal grounds together. We do not accept that the Deputy President failed to give adequate reasons explaining how she had exercised her discretion. There is no dispute in the appeal that the Deputy President had an obligation to give reasons which articulated the essential grounds for reaching the decision and addressed the material issues of fact and law in a manner which disclosed the steps which led to the result. 25 Having found that there was a valid reason for the dismissal and that Rabbi Ash had been afforded procedural fairness, the remaining critical issues which the Deputy President had to determine were whether dismissal was a disproportionate response to Rabbi Ash’s conduct having regard to his personal circumstances, and thus whether the dismissal was harsh. This required the making of an evaluative judgment involving the weighing up of the competing considerations, properly identified.

[55] It appears to us that the Deputy President properly identified the personal circumstances weighing in Rabbi Ash’s favour in paragraph [164] of the decision, and we do not understand it to be submitted otherwise. However, the Deputy President considered these circumstances to be outweighed in significance by the matters described in some detail in paragraphs [165]-[169] of the decision. Her reasoning in this respect is best summarised in paragraph [172], where the Deputy President said that “The nature of the conduct, the established prior conduct and history of counselling, the absence of an appreciation of the gravity or insight and the serious obligation of the School to protect the safety of its students and discharge its duty of care to the students are paramount to my consideration that the dismissal was not disproportionate to the conduct”. The Deputy President said in the next sentence that Rabbi Ash’s personal circumstances weighing in favour of a finding of harshness were “significant”, thus demonstrating that the Deputy President took these into account and assigned them considerable weight, but ultimately the Deputy President considered that they did not bear “sufficient” weight as compared to the matters which she described as “paramount to my consideration”. In the way described, we consider that the Deputy President did explain adequately what “tipped the balance” and why she considered that dismissal was not a disproportionate response to Rabbi Ash’s conduct.

[56] Rabbi Ash’s case may fairly be said to be a “lineball” one. That the Deputy President determined the matter against him does not render her decision unreasonable or unjust in the sense discussed in House v The King. The submission made on behalf of Rabbi Ash which we have quoted in full in paragraph [25] above would be an attractive one, and one we might favour, if we were hearing Rabbi Ash’s unfair dismissal application ourselves. However, in the context of this appeal, it lacks merit because it merely expresses a preference for a different result rather than demonstrating appealable error in the Deputy President’s decision. The second and appeal grounds are rejected.

Conclusion

[57] Because we have rejected all the appeal grounds, the appeal must be dismissed. We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.”

 

Ash v Chabad Institutions of Victoria Limited (2020) FWCFB 4448 delivered 3 September 2020 per Hatcher VP, Sams DP and Dean DP