2007 WAIRC 00218

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 00218

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER P E SCOTT

HEARD : TUESDAY, 23 JANUARY 2007

DELIVERED : MONDAY, 12 MARCH 2007

FILE NO. : FBA 33 OF 2006 AND FBA 34 OF 2006

BETWEEN
:
IAN ANDERSON
Appellant

AND

ROGERS SELLER & MYHILL PTY LTD
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER S J KENNER
CITATION : 2006 WAIRC 05535/(2006) 86 WAIG 3047
FILE NO : B 309 OF 2006 AND U 309 OF 2006

CatchWords:
Industrial Law (WA) – Appeal against decision of the Commission – Alleged harsh, oppressive or unfair dismissal – Appellant summarily dismissed – Whether appellant breached policy of respondent by sending email – Assessing seriousness of the breach – Whether email contained ‘racial slur’ or ‘ethnic slur’ – Whether email ‘solicited support for a political cause’ – Consideration of events leading up to the sending of the email – Whether termination on notice ‘appropriate remedy’ – Issue of compensation.

Industrial Law (WA) – Relevant policy of the respondent – Consideration of reasons for policy – Vicarious liability – Workplace discrimination issues – International conventions relating to racial discrimination – Construction of the respondent’s policy – Examination of the words used in the policy and relevant definitions.

Industrial Law (WA) – Grounds of Appeal – Application to amend grounds during course of the hearing – Imprecise drafting of particulars to ground of appeal – Factors to consider when deciding to grant leave to amend grounds of appeal – Discretionary power of Full Bench to grant leave – Consideration of particular facts and circumstances of each case – Drafting grounds of appeal in accordance with Industrial Relations Commission Regulations 2005 – Importance of proper grounds of appeal.

Industrial Law (WA) – Appeal against a discretionary decision – Exercise of a discretion based upon an evaluative judgment – Relevant authorities considered – Issues relating to questions of law and fact in appeals – What conclusions at first instance are reviewable by the Full Bench.

Industrial Law (WA) - Majority decision that Commissioner erred in finding email policy breached – Context within which words are to be judged in policy – Issues of ethnic diversity in society – Alternatively dismissal on notice was unfair – Consideration of relevant circumstances effecting fairness of dismissal - Whether breach by appellant was minor or trivial in the circumstance.
Legislation:
Industrial Relations Act 1979 (WA) (as amended), s23A, s23A(6), s35, s27(1)(a)(iv), s29(1)(b)(i), (ii), s49(5), (6), (6a)

Industrial Relations Commission Regulations 2005, r102(2), (3)

Equal Opportunity Act 1984 (WA), s36, s37, s161

Racial Discrimination Act 1979 (Cth), s7, s9, s15, s18, s18A
Result:
FBA 33 of 2006: Appeal dismissed
FBA 34 of 2006: Appeal upheld
REPRESENTATION:
Counsel:
APPELLANT : MR G STUBBS (OF COUNSEL), BY LEAVE
RESPONDENT : MR M D CUERDEN (OF COUNSEL), BY LEAVE
Solicitors:
APPELLANT : DWYER DURACK
RESPONDENT : DOUGLAS WORKPLACE AND LITIGATION LAWYERS


Case(s) referred to in reasons:

ASIC v Doyle [2001] WASC 187
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
BHP Iron Ore Pty Ltd v CMETSU (2001) 81 WAIG 3031
Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8
Casinos Austria International (Christmas Island) Pty Ltd & Others v Christmas Island Resort Pty
Ltd & Anor [1998] WASC 387
Curtis v Ausdrill Ltd (2006) 86 WAIG 3133
Edwards v The Queen (1992) 173 CLR 653
Fisher & Paykel Australia Pty Ltd v Skinner (2006) 87 WAIG 1
Fox v Percy (2003) 214 CLR 118
Garbutt v Stothers (1996) IRCA 960416
Grierson v International Exporters Pty Ltd (2006) 86 WAIG 2935
Gromark Packaging v FMWU, WA Branch (1992) 73 WAIG 220
Gronow v Gronow (1979) 144 CLR 513
House v The King [1936] 55 CLR 499
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Matthews v Cool or Cosy Pty Ltd and Another (2004) 84 WAIG 2152; (2004) 136 IR 156
Mifsud v Campbell (1991) 21 NSWLR 725
Miles and Others t/a Undercliffe Nursing Home v FMWU, WA Branch (1985) 65 WAIG 385
Norbis v Norbis (1986) 161 CLR 513
Sealanes (1985) Pty Ltd v SDAEA (WA) and Others (2005) 86 WAIG 5
Shire of Esperance v Mouritz (1991) 71 WAIG 891
Simons v Ismail Holdings Pty Ltd t/a Envelope Specialists (1998) 78 WAIG 2332
Skinner v Broadbent [2006] WASCA 2
Vella v Department of Employment, Vocational Education, Training and Industrial Relations
(Qld) [19994] HREOCA 22
Vetter v Lake MacQuarie City Council (2001) 202 CLR 439
WA v Ward (2002) 213 CLR 1
Warren v Coombes and Another (1979) 142 CLR 531
Waters v Public Transport Corporation (1991) 173 CLR 349
Wilmott v Bank of Western Australia (2001) 81 WAIG 1684

Case(s) also cited:

Coal and Allied Operations Pty Ltd v AIRC and Others (2000) 203 CLR 194
La Rose v Kiam Corporation Ltd [2001] WAIRC 04391

Reasons for Decision

RITTER AP AND SCOTT C

1 Introduction
1 These appeals are about the termination of employment of the appellant by the respondent. The respondent is a privately owned company which has been in business for more than 100 years. It is a retailer, distributor and wholesaler of ceramic tiles, “tap ware”, and bathroom accessories and products, with showrooms and warehouse facilities in at least a number of states in Australia and overseas.
2 The appellant was first employed by the respondent on 10 March 2005 as a retail sales representative. He commenced his employment in Melbourne and then transferred to Perth. The appellant’s employment was terminated by the respondent on 10 March 2006. The termination of his employment was effected summarily, in that he did not receive any notice or payment in lieu of notice.
3 The reason for the termination of the appellant’s employment was because on 3 March 2006 he sent an email to all of the other employees of the respondent and five friends who did not work for the respondent. The contents of the email were found by the respondent to breach its Computer, Internet and Email Security Policy (the CIES Policy) and Equal Opportunity and Harassment Policy.

2 The Course of the Proceedings
4 After his dismissal, the appellant filed two applications with the Commission. The first, which was given application No B 309 of 2006, was an application pursuant to s29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (the Act) for an order in respect of a denied contractual benefit. The application sought an order for payment of the sum of $3010.76 for “4 weeks pay in lieu of notice of termination”. This application was filed on 7 April 2006.
5 The second application was filed on the same date and given application No U 309 of 2006. This application was made pursuant to s29(1)(b)(i) of the Act and sought an order for reinstatement, re-employment or compensation in respect of a “harsh, oppressive or unfair dismissal”. (Although these words are used in the application, and the Act, for ease of reference we will refer simply to an “unfair” dismissal or termination). The reasons for the assertion that the dismissal was unfair were set out in the application and will be referred to later. The application sought reinstatement or re-employment by the respondent or compensation if these remedies were impracticable.
6 Both applications were heard together by the Commission on 24 August 2006. At the conclusion of the hearing, the Commissioner reserved his decision. On 4 October 2006 the Commissioner published his reasons for decision.
7 On the same date the Commissioner published “Declarations and Orders” (the order). The terms of the order is set out later in these reasons. The order determined both applications B 309 of 2006 and U 309 of 2006. For present purposes it is sufficient to note that the unfair dismissal application was allowed, but compensation limited to the four weeks remuneration the appellant would have received if dismissed with notice. The denied contractual benefits claim was consequently dismissed.
8 On 24 October 2006 the appellant filed two notices of appeal to the Full Bench against the decision of the Commission as contained in the order. They were filed pursuant to s49 of the Act. The appeal against the order insofar as it determined application B 309 of 2006 was given number FBA 33 of 2006. The appeal against the order insofar as it determined application U 309 of 2006 was given number FBA 34 of 2006.
9 The grounds of appeal of both notices of appeal were identical. Also both appeals challenged only one of the orders made by the Commission on 4 October 2006. This was the order providing for the amount of the appellant’s compensation. It is therefore difficult to see why two appeals were filed. This is especially so as one of the consequences of the filing of two appeals was that two appeal books have been prepared which contained almost identical materials.
10 Both appeals were heard together by the Full Bench. At the commencement of the hearing, counsel for the appellant confirmed that appeal FBA 33 of 2006 was unnecessary and could be dismissed without having any impact upon the proper determination of FBA 34 of 2006. For this reason it is appropriate to make an order for the dismissal of FBA 33 of 2006. We will set this out at the conclusion of these reasons. For ease of reference, we will from now on refer to FBA 34 of 2006 as “the appeal”.
11 The grounds of appeal require the Full Bench to consider and analyse the circumstances leading to the sending of the email by the appellant, the contents of the email, the policies of the respondent which we have referred to, and whether there was a breach of policy, in the context of the reasons for decision of the Commission at first instance.
12 We will later say something more about the grounds of appeal and applications made at the hearing to amend them. For present purposes it is sufficient to have listed the relevant issues. We will now set out in some detail the background which will facilitate their proper consideration and analysis.

3 The Unfair Dismissal Application
13 The grounds for the unfair dismissal application were set out in paragraph [20] of the application. This stated:-
“I was dismissed because of an email I sent to other employees. The employer alleged this breached their policies in two respects. First as non-work use of email. The policy says limited non work use of email is permitted. Second they claim it contained a racial slur. I reject this claim. I was not given a proper opportunity to respond to those allegations. I was summarily dismissed with no notice and no payment in lieu. In any event, termination was a disproportionate response to the allegations and the employer failed to avail itself of alternatives.”

14 A notice of answer was filed by the respondent. This set out the reason for dismissal, the process of decision-making, and attached relevant documents, including the policies mentioned earlier.
15 At the hearing of the two applications, the appellant was represented by counsel. The appellant was the only witness who gave evidence in support of his case. The respondent was not represented, but appeared through its managing director, Mr James Edmonds. Mr Edmonds was the only witness who gave evidence for the respondent.
16 Near the beginning of the hearing, the appellant’s counsel said the appellant no longer sought reinstatement or re-employment as remedies in the unfair dismissal application. Compensation was the only remedy sought.
17 The respondent proceeded to give its evidence first on the basis that they had an onus to prove that the appellant’s actions were such that they warranted summary dismissal. (See submissions made by counsel for the appellant at the hearing, at T8).
18 Despite this, to analyse the issues raised on the appeal, it makes more sense to provide a summary of the evidence of the appellant, relevant to the appeal, before doing the same for the respondent’s evidence. It is convenient first, however, to consider the contract of employment and relevant policies.
19 The contract of employment, the CIES Policy and the Equal Opportunity and Harassment Policy were all documents received as exhibits by the Commission at first instance.

4 The Employment Contract
20 As stated the employment of the appellant with the respondent commenced on 10 March 2005. The terms of the contract of employment were in writing in the form of a document headed “Contract of Employment” (the contract). This was undated but said to be operative from March 2005. The contract said the appellant was appointed to the position of retail sales representative. The contract set out the appellant’s duties in the form of a job description contained in schedule A to the contract. Clause 4 of the contract was headed “Terms of Employment”. This clause set out, in the main, the hours which were to be worked by the appellant. Clause 7 of the contract referred to the appellant’s remuneration and said that his annual salary was to be $38,000. Clause 19 was headed termination of employment. Clause 19(a) provided that:-
“Employment shall be terminated by the giving, by either party, of the following period of notice, or by the payment or forfeiture of an equivalent amount of pay in lieu of notice from any monies owing.”

21 Following this subclause was a table. The effect of the table was that where there was a period of continuous service of less than one year, the period of notice was one week. Where the period of continuous employment was more than one year, the period of notice was four weeks. Clause 19(b) provided for an increased period of notice where the employee was more than 45 years of age. This did not apply to the appellant. Clause 19(c) provided that clauses 19(a) and (b) did not apply during probationary employment, which was earlier referred to in clause 6. Clause 19(d) was in the following terms:-
“In addition, the Employer has the right to terminate the Employee’s employment without notice for serious misconduct, for serious breach of the Employer’s policies or procedures or serious or persistent breach of the Employee’s terms and conditions of employment, and in such case the Employee’s pay and other entitlements will be paid up to the time of termination only.”

22 Clause 20 of the contract was headed “Warnings, Disputes or Grievances”. It set out a process for taking disciplinary action. Clause 20(a) was as follows:-
“i) Where disciplinary action is necessary, the management representative shall notify the Employee of the reason. Any counselling will be recorded on the Employee’s personal file. The Employee will have the right to respond.
ii) If the problem continues the matter will be discussed with the Employee and warning/warnings in writing will be given to him/her and recorded on his/her personal file.
iii) The employee will have the right to respond. A witness may be present if requested.
iv) In the event of the matter recurring, the employment may then be terminated. No dismissals are to take place without the authority of senior management.
v) Instant dismissal of an Employee may still occur for the circumstances outlined in Clause 19(c).”

23 Clause 21 was headed “Company Policies”. It provided:-
“All company policies, written or verbal, as varied from time to time are deemed to form part of this Contract.”

5 The Respondent’s Policies
24 It was not in dispute before the Commission at first instance that a “staff manual” dated July 2004 applied to the employment of the appellant by the respondent. The staff manual included eight written policies of the respondent which included the CIES Policy and the Equal Opportunity and Harassment Policy, referred to earlier.
25 The staff manual was effectively in two parts. The first part contained a welcome, some observations about the respondent, its management structure and a guide to the terms of employment. The second part of the staff manual contained the eight policies. The third policy was the CIES Policy. The policy commenced by saying the respondent “makes available to its staff computer equipment, software, Email and internet access. The provision of these facilities is to allow staff to be as productive as possible in the delivery of products and services to our customers”. The policy then contains some elaboration of this. The policy then says that:-
“As a condition of continued employment, each User is personally responsible to ensure that this policy is followed. Violation of this Policy will subject the User to discipline, up to and including termination of employment.”

26 The policy then dealt with in turn “Computers & Software”, “The Internet and Users”, and “Electronic Mail or Email”.
27 The “Internet and Users” part of the policy said the respondent “has provided access to the Internet for authorised Users to support the business purposes of the firm. We have made the decision that the system should only be used for work and not for personal use during normal working hours”. This part of the policy then went on to set out policies and observations about “Copyright” and “Prevention of Problems”. It then set out that the internet facilities at the respondent “must not be used for any of the following uses or activities”. Eight uses or activities were then set out, none of which is relevant to the present appeal. The policy also said that users “should safeguard against using the Internet to transmit personal comments or statements through Email or to post information to newsgroups that may be mistaken as the position of the firm”.
28 As stated, the next part of the policy was headed “Electronic Mail or Email”. As the meaning of this part of the policy is very relevant to the determination of the appeal, it is appropriate to set it out in full:-
“ELECTRONIC MAIL OR EMAIL
The primary purpose of electronic mail is to facilitate internal and external business-related communication. Accordingly, Email should be used primarily for matters of concern to [the respondent’s] business. The use of email for personal, private or non-business should be only on a limited basis only.
Email and other information systems of the company are not to be used in a way that may be disruptive, offensive to others, or harmful to morale.
You must not display or transmit sexually explicit images, messages or cartoons or Email communications that may contain ethnic slurs or anything that may be construed as harassment or discredit others based on their race, national origin, sex, sexual orientation, age, disability, religious or political beliefs.
The Email system cannot be used to solicit or convert others for commercial ventures, religious or political causes, outside organisations or other non-job related matters.”

29 For ease of reference we will refer to this part of the CIES Policy as the “email policy” and later refer to its four paragraphs by the numbers 1, 2, 3 and 4.
30 The email policy then contained a warning to users about being careful when addressing and sending messages. The email policy then specified that external emails must contain a signature with a disclaimer. The terms of the disclaimer, as then applicable, were set out.
31 There was then another reference to emails. The policy said that emails “are often seen as an “informal” way of communicating and can allow people to discuss things that would never be said in the lunchroom. Emails have resulted in devastating documentary evidence in harassment and discrimination claims. [The respondent’s] computers are backed up daily onto magnetic tape and are stored indefinitely and remain the property of the firm. This means that Emails will be available years later for the purposes of litigation should this ever arise.” This was followed by a warning not to put anything in an email that would not be put in a letter. It was then said that it should be remembered that any email sent from the respondent identifies “the firm” and therefore the respondent would be connected with any inappropriate comments made via email. This section of the policy concluded with the advice, to “think before you send”. The remainder of the policy is not relevant to the appeal.
32 As set out earlier the termination of the appellant’s employment was partly because the respondent found the sending of the email breached the Equal Opportunity and Harassment Policy. The Commission made a finding at first instance that there was no breach of this policy. That finding has not been the subject of any cross-appeal, notice of contention or other challenge. Accordingly, it is unnecessary to consider the Equal Opportunity and Harassment Policy for the purposes of deciding the appeal.

6 The Appellant’s Evidence
(a) Background
33 The appellant said he was originally employed by the respondent in Melbourne. He transferred to Western Australia on about 10 April 2005.
34 The appellant confirmed the terms and conditions of his employment as contained in the contract and that the staff manual applied to his employment.

(b) Previous Breach of Internet Policy – January 2006
35 The appellant was asked by his counsel whether he was involved in any “disciplinary sort of meetings” (T51). The appellant said he had an informal meeting with his manager, Ms Maree Corner, in January 2006. The appellant said Ms Corner spoke to him about his use of the internet and they had an informal disciplinary meeting. At the meeting he was told that he had used the internet too much. Ms Corner said she had noticed that he had used it “a couple of times” during work. The appellant said he had used the internet before Christmas to purchase a flight for his partner to come across from Melbourne to be with him for the Christmas period. The appellant said that was “pretty much it” (T51). The appellant said he was provided with a written performance improvement discussion document. The appellant said that as a result of the meeting Ms Corner “brought up the idea again of returning back into the showroom as a retail consultant because I had previously changed my role within the company to the administration officer for the office and also business development support” (T51/52). The appellant said he agreed to this because it was a chance to go back to what he knew best and to deal with people. The appellant said Ms Corner told him if his use of the internet did not decrease or stop altogether it would lead to a formal disciplinary meeting. The appellant then said “like a first warning” (T52).
36 After the appellant returned to the position he described, he said that Ms Corner came up to him in the showroom, a couple of weeks before his dismissal, and commented on how happy she was that he had returned to the showroom and that his interaction with customers was “fantastic” and it had been a great move for both of them (T52).

(c) The Incident – 2 March 2006
37 The appellant’s evidence about an incident which happened and which was the reason why he sent the email is important. For this reason we will quote in full the transcript of the appellant’s evidence in chief about this. This is as follows:-
“MS KENNY: Okay. What happened on Thursday the 2nd of March 2006?---I left work around 6 o'clock and rang up a friend, Vanessa Collins, who lives in Fremantle, and she said to come over because she was cooking up a couple of dishes and was having some friends come over so I joined the party. So I went down to East Fremantle and joined the dinner party, got there about 7 o'clock. Most of the other guests were there. We enjoyed a meal, we were having coffee out on the balcony of her house when Marley?, the dog, her pet dog which is a toy poodle who was sitting beside me jumped up and went barking through the house but it wasn't her usual "There's someone at the door bark", it was a concerned bark. I looked up from where I was sitting and I had like a restricted view of the hallway which leads to the front door and I could see an arm doing a snatch and grab off the thing - - off the hallway table. At that point I knew something was wrong because it was a dark-skinned arm and there wasn't any guests in the house at the time that had that skin colour. And also the action was basically one particular? snatch and grab, they bolted to the front door and I could hear the door bang in the front and at that point I jumped out of my seat and took off in pursuit, yelling at the top of my lungs because I think that there was something wrong, that there was someone in the house by the arm that I'd seen and the reaction from the dog.
Okay. So you've jumped up out of your seat and you're running after someone, presumably?---Well, it was an intruder. Basically it was someone that was not invited into the house, who had walked in off the street. If it had been someone who was supposed to be in the house they would have still been sitting in the hallway by the time I'd got there but they'd run out onto the street and by the time I got to the front lawn they had disappeared out of sight. I heard someone crashing through bushes down on the corner so I ran in that direction. When I got there I could not see anyone so I just thought the guy had run off and had gotten away. At that stage a neighbour across the street was sitting on her balcony and she had watched the commotion going on from her balcony and yelled out that he was hiding in the bushes, she'd seen the guy jump into the bushes. So I ran round to the far side of the bushes which was on the corner to try and head the guy off and at that stage the rest of the dinner party arrived. We basically stood around this big clump of bushes, it was quite a large clump of bushes, and one of the guys who were at the dinner party also grabbed his car and had brought that down. So we tried to shine the lights in the bushes, trying to locate this person but he was hiding really well, and Vanessa was trying to coax him to come out because, well, at that stage we hadn't called the police but she saying, "The police have been called, come out." At that stage I returned to the house to get my mobile because it has a torch function on it, and when I came out of the house there was a guy who was 6 ft and dark in colour backing across the lawn yelling at everyone who was sort of following him up the lawn. And at that stage I just thought, "That's the guy that had been in the house" so I went running at him because I was going to try and grab hold of him, and then one of the girls screamed out, "Watch out, he's got a knife" and at that stage he hadn't seen me and he spun round and then started waving a knife at me. So I just stopped at that point, that was as far as I was going to go. He was trying to use - - he had a set of keys and he was trying to use the remote on the key to deactivate the car, the corresponding car to obviously get away and Kevin, who's Vanessa's partner, who's a very mild-mannered doctor, was getting really upset this guy was trying to steal one of the cars, it was actually his partner's son, James' car. At that stage the guy located the car, got in and was attempting to start it when Brian brought his car back up and tried to block it in because he was parked behind - - in between two cars, and tried to block him in from the outside. But the way this guy was behaving I just thought "He's going, like it or not" and because my car was the one at the front I didn't want it damaged so I sort of yelled at Brian to get out of the road because he was going. So Brian backed out of the road, the guy got the car started and took off down the street at a rate of knots. At that stage Brian followed the guy and James ran in, who's Vanessa's son, to get the phone, and rang the police. At that stage I said to Vanessa, "Go and grab your mobile because Brian might have his as well" so we could let the police know where this guy was heading. When Vanessa came out of the house Brian had actually tried - - Brian was on the phone so they were - - we basically liaised with the police to get this guy caught which he was.” (T53/54)

(d) Post Incident Occurrences – 2/3 March 2006
38 The appellant spoke to the police after they arrived at his friend’s house at about 11.30pm. The appellant said this was a detailed process which finished at about 2.00am or sometime thereafter. The appellant said although he was offered a bed at the house where the party had been, he wanted to go home and have a hot shower and get into bed in his own house. The appellant said he felt “violated” and that “this person had walked in off the street and broken into my friend's house, had pulled a knife on us and had stolen a car” (T55).
39 The appellant then said that he also called his partner in Melbourne after he got home and it was “good to talk to someone” and that it “got me to sleep in the end” (T55).

(e) Going to Work – 3 March 2006
40 The appellant went to work the next morning which was Friday, 3 March 2006. The appellant left his house a little late for work because it took him a while to get ready. The appellant said he “really didn’t want to go to work”, but Ms Corner was away in Melbourne and another co-worker was away on annual leave “so without me being there it would leave the showroom short-staffed. So I thought it best to actually go to work and I'm sort of the philosophy that to distract yourself from your problems keep busy so that's why I ended up going to work” (T55).
41 The appellant described what happened when he first went to work. He said as it was a Friday before a long weekend there were not many people in the showroom. He said he spoke to the other staff about what had happened the night before. He said that “it felt good to talk about it because I didn't realise sort of the impact it was - - it was having on me. I just felt angry one minute and then I felt really upset the next so I was kind of on a real roller coaster” (T55/56).

(f) Writing and Sending the Email – 3 March 2006
42 The appellant headed off to do his usual routine at work. The appellant said he was sitting at his desk and checked his emails because it was a popular way for people at the respondent to communicate. That was when he had the idea to try and make something positive out of the whole experience and send off an email to the employees of the respondent. The appellant said the typing of the email probably took about 10 to 15 minutes as he had a typing speed of 90 words per minute with 95% accuracy. He said that the reason for sending the email was “to try and raise people's awareness about what had happened. If we had taken the simple precaution of locking the front door the whole incident wouldn't have happened. But also just that I didn't want to not do anything about it because it was a horrible thing to go through, I wouldn't wish it on anyone, and I thought out of respect of everyone, especially the people within the company” he would send the email (T56).
43 The appellant said he sent the email to all staff because he thought it was relevant for everybody to try and raise their awareness. He said he also copied and pasted the email to five friends who were not staff members.

(g) The Email – 3 March 2006
44 A printed copy of the email had been tendered as exhibit R3 during the respondent’s case. The email said it was from the appellant. The email tendered was a copy of that received by Mr Angus Parker, the general manager of the respondent. It had a date on it of Friday, 3 March 2006 at 2.31pm. The email said, consistent with the appellant’s evidence, that it was sent to “All Staff”. The subject was “Dinner with a Twist”. We will now set out the contents of the email in its entirety. This is necessary to properly consider and analyse the issues in the appeal:-
“Hi Everyone,

This is an email that I would like everyone to read and seriously think about it. It is not an urban legend and it is not one of those things that happened to a friend of a friend. This happened to me last night and is head lining this morning’s news in Perth (Friday 03/03/06).

Last night I was at a dinner party in the very nice neighbourhood of East Fremantle. We were out on the balcony finishing off the night with coffee when my friends dog, that was with us, started to go berserk heading for the front door. I looked and saw and (sic) arm doing a snatch and grab from the hallway table at the front of the house. Unfortunately it was a coloured arm that did not belong in the house.

The next thing, I was out of me (sic) seat running and yelling at the intruder who had walked through the unlocked front door. He ran out of the house with my self hot on the trail, leaving the rest of the dinner party wondering what the hell was going on. By the time I got outside he was already out of sight. Hearing the sound of someone going through bushes at the corner, I headed down the street in hot pursuit. Unfortunately, I lost track of him, but thankfully a neighbour who had been observing the commotion from across the street saw him hide in some bushes. By that time, the rest of the dinner party joined me and we surrounded the bushes telling him to come out, when one of the other guest (sic) arrived with his car and was shining the light into the bushes.

This is where things took a turns (sic) and he came out of the bushes brandishing a large knife that surprised us all. We all of course moved back and he made back down the street towards the cars that were parked at the front of my friend’s house. He was using the remote on the keys he had swiped to locate the car by deactivating the alarm. He then jumped in the vehicle and proceeded to try and start it. The other dinner guest who was in his car drove up the street and blocked the car in. I yelled at him to get out of the road as this guy is getting out of here one way or another. He reversed in time as the guy took of (sic) at a rate of knots. At this stage, the dinner guest in his car decided to follow the stolen car and another called the police. With some clever liaising with the police and the guest tailing the car, the police apprehended the guy and his (sic) is in custody facing court today charged with armed robbery and aggravated burglary.

The point of sending you all this email is not to scare you and turn your house into fort knox and live in fear. Things are getting worse out there and its time we stopped turning a blind eye and start making a stand against it. The world is crumbling under violence and terrorism and we should not take our way of life for granted. I want this email to raise your awareness and think a little.

a. Do take to (sic) precautions to secure your home when you are away and also when you are at home.
b. Introduce yourself to your neighbours and swap phone numbers and keep an eye out for one another.

These are two simple things that could of stopped the (sic) this event from happening. The worst thing you can do is do nothing and simply turn a blind eye. Do your part to keep the Australian spirit and way of life alive and most of all, but most of all, be sensible about the actions you take. Doing nothing should never be an option.

With thanks”

45 It will be necessary to later consider the meaning and effect of the email in detail. For ease of reference we will number the paragraphs of the email from 1 to 7, with number 6 being constituted by the two dot points, as a separate paragraph.
46 The email then set out the appellant’s name. Under that was the respondent’s Perth address, website, telephone and facsimile numbers and a statement about confidentiality and viruses. From its appearance, and consistent with the respondent’s policy, the statement seems to have been something appended to all emails sent from the respondent.

(h) Evidence About the Email
47 The appellant was asked by his counsel about some of the things included in the email. The appellant said the dinner he was having was in East Fremantle, “a nice part of town where you didn’t have to worry about this sort of thing happening” (T57).
48 With respect to the use of the expression “coloured arm”, the appellant said this tied in with why the dog was barking. The appellant said he wanted to state “what alerted me to something being wrong”. The appellant said this was the dog barking and also that he saw an arm “that was darker in colour and it was just - - it acted suspicious. It was snatching something off the table and then whoever it was attached to went bolting out the front door” (T57).
49 The appellant was also asked about the last paragraph in the email and the reference to the “Australian spirit”. The appellant said that “we have it really easy in this country. We have a great way of life, that sort of thing. We can live without the fear of war and all that sort of stuff and just with everything that’s been going on in the world like S11 and all that sort of thing it’s just - - it’s like if you want - - if we want to keep living the way we’re living we need to be conscious of what’s going on around us. We can’t keep turning a blind eye and in saying to keep the Australian spirit alive it’s just like, well, we have a reputation of being doers not watchers or see-ers or do nothings, so the idea was me being Australian is to do the best I can at all times and don’t just stand back and watch something happen just because it’s not happening to me. And it’s just like we shouldn’t have to worry about locking our front doors and turning houses into Fort Knox and that sort of thing, but unfortunately it’s the way of the times but it’s still no excuse to accept it” (T57/58).
50 The appellant said that the version of the email he sent to his friends contained a sound byte of a news report about the incident.
51 The appellant was asked by his counsel how he was feeling at work. The appellant said he was upset, angry and on edge. He said that he did not eat much that morning, could not touch a coffee and that he was “sort of really jittery and wired. That’s the only way I can put it” (T58).
52 The appellant said the version of the email tendered as an exhibit had 2.31pm written on it because it was received at that time in Melbourne on Mr Parker’s email account. He said it was actually morning in Perth when the email was sent.

(i) Returning to Work and Suspension – 7 March 2006
53 The appellant gave some evidence about the work he did during the rest of Friday, 3 March 2006. The appellant said it was a long weekend and he returned to work on Tuesday, 7 March 2006.
54 The appellant spoke about a telephone conversation with Mr Parker that morning. Mr Parker called and said he had concerns about the email. Mr Parker said the email breached the two company policies, was a concern to management and the appellant was being suspended immediately until a meeting could be held on Friday, 10 March 2006. It was to be held on Friday when Ms Corner was back in Perth. The appellant was instructed to leave straight away and hand in his security keys. The appellant left work after briefly attending to some things and retrieving his staff manual to look at the policies of the respondent.
55 The appellant said he was horrified that what he had done had been deemed a racial statement and he was mortified at the idea that he may have offended someone (T61/62). The appellant said he had sent the email out with good intentions and trying to raise people’s awareness about security in the home and it had resulted in blowing up in his face (T62).
56 The appellant recalled he said to Mr Parker in the telephone call that he was horrified that the email had been deemed a racial statement and he was really apologetic if it had actually offended anybody.
57 A letter was sent by Mr Parker which confirmed the disciplinary process which would be followed, although the appellant said he did not receive it until after his dismissal (T62).

(j) The Apology – 9 March 2006
58 Before the meeting on 10 March 2006 the appellant sent a facsimile to management on 9 March 2006. A letter of the same date was sent with it. The appellant did this to try and give them “an understanding of where I was coming from from the unsettling events of the night beforehand to being really tired and hard to focus at work and trying to explain how I’d - - why I had worded the email I had, that - - that I wasn’t trying to make a statement or a political comment or anything like that, I was just trying to give people an idea of what had happened to me, how it had happened and why it’s important to sort of raise people’s awareness about it …” (T63).
59 The letter was addressed to the respondent’s “management and staff”. It was signed by the appellant and concluded with the line “With my sincerest apologies”. The balance of the letter was as follows:-
“The events that have passed in the last week have left me in a state of shock and devastation. It has been like a living nightmare to find myself in this current situation. I am writing this letter to give you a brief account of the events that have taken place, in the hope that you can gain an understanding of my motivation which has resulted in this predicament.

On Thursday the 2nd of March 2006, a circle of friends and I experienced an armed robbery and aggravated burglary in my friends home. It is an event that occurred in what seemed seconds but reliving it has occupied many hours. It is an experience that I would not wish on anyone and it has left me very concerned for my personal safety and those that surround me. By the time I had finished talking to the police and filing a statement, it was well after 2am. At home I fell into bed exhausted although some hours did pass before I fell into a restless sleep.

I awoke to my alarm clock radio with our story headlining the morning news. All the memories came flooding back and I busied myself preparing for work. I did not feel fit for work but I knew that it was one staff members day off and another was away on annual leave. I did not want to leave the showroom short staffed. I am also a strong believer in keeping oneself busy in trying times.

The events of that night could have ended a lot worse than what they had. I found myself defenceless in a situation I had never been in before. I sent the email impulsively after the distressing events of the previous night. I was trying to turn my negative experience into a positive by trying to help others avoid such unexpected and potentially dangerous situations.

I chose the company email because it touches a lot of staff members that I know directly and I thought it would encourage others to stop and think because it happened to a fellow member of Rogerseller. I wanted to raise awareness of personal safety at home.

In sending the email, I did not intentionally mean to break company policy and I certainly did not mean to cause offence from a poorly worded sentence. On reflection, I realise that to use the company email was not an appropriate course of action.

I want to apologise honestly and heartily and say that I am truly sorry for my action and any harm it may have caused.

I value and respect Rogerseller as a company and I hope to continue to serve the company in a diligent and proper manner.”

(k) The Disciplinary Meeting – 10 March 2006
60 The appellant was shown some notes of the meeting which were taken by another employee of the respondent. The appellant accepted that they were a simplified version of what had been said at the meeting. About the policies which the respondent had said were breached by the email, the appellant said in his evidence he “could sort of see it from where they were coming from, that the email was open to interpretation but at that stage I couldn't say anything in (sic) contrary to what they were accusing me of” (T66).

(l) The Notes of the Meeting – 10 March 2006
61 The notes of the meeting were contained in a document headed “Confidential” and on the next line “Report – Performance Improvement Discussion”. It appears to be a proforma document. The document says the meeting took place on 9 March 2006 but this was a mistake (T65). The document commences with a box containing the employee’s name, position, manager and the date and time of discussion. The document said the people present were the appellant, Ms Corner and Ms Caitlin Scully, an employee in “Human Resources” in Melbourne, via telephone. The document contained an introduction to the discussion and a summary of the process. In a section of the document headed “List Reason(s) for Performance Discussion” there was, in summary, a reference to the conversation with Mr Parker about the email and the observation that it had been in breach of the “Computer, internet/intranet and email security policy” and the “Equal opportunity and harassment policy”. It is recorded the appellant confirmed that “the policy” was on the respondent’s intranet. The appellant confirmed that he knew the policies were in the staff manual which he had taken home.
62 The document recorded there were “two key issues that breach these policies”. The first was the reference to the “coloured arm”. It was said that this could be interpreted to be a form of harassment which includes any reference to racist or other offensive jokes or comments. The document recorded that it was said the appellant needed “to remember that comments which may not offend one person, may be unwelcome or offensive to someone else”. The document said Mr Edmonds, Mr Parker and others expressed immediate concern about the content of the email as it was against the values of the respondent and the way they prided themselves on treating other people. The information in the email to all staff could lead to complaints of harassment against the appellant and “the business” as the appellant was a representative of the respondent.
63 Secondly, emails were not to be transmitted which may contain ethnic slurs or anything that may be construed as harassment or discredit others based on their race, etc. The use of the email was clearly in breach of the “computer and email policy” as it was sent to every staff member who would then have to spend time reading it. The appellant spent time at work writing it and “think of the collective time wasted”. It was said that this was clearly unacceptable.
64 There was also reference to the previous breach of the “Computer Internet/Intranet and email security policy” on 12 January 2006. It was noted in the document that “we went through the policy in a group environment”. The document recorded Ms Corner as saying she was disappointed this had happened after that process as it had been made “clear at that time that any further breaches from you would be unacceptable”.
65 The document recorded the appellant as agreeing with the question “Do you see why your email was seen to be in breach of these policies?”. The document recorded the respondent (through Ms Corner) wanted to ask the appellant for his feedback and any information that would help with their decision. The appellant was asked whether he had anything else to say other than the letter that had been sent dated 9 March 2006. The appellant is recorded as saying “No, just wasn’t thinking about it. Sorry if I caused stress/caused people to be upset”. The appellant was recorded as saying that he did it “out of respect for people”. The document records Ms Corner as saying that it was unacceptable and disrespectful in fact to send the email out “under the Rogerseller banner”. The document records the appellant as being “very upset”. Ms Corner was recorded as saying that they were “here to help/here to listen”. The appellant is recorded as reiterating that he did not “intentionally cause trouble/it was never my intention. I didn’t want to upset people. I did something I shouldn’t have done. Didn’t think of it as breaching policies”. The appellant reiterated that he sent the email out of respect for people and wanted to raise awareness. Ms Corner insisted that the sending of the email “actually does disrespect people”. The document records the appellant said he “was and still am terrified. Just wanted to create awareness. I can see how much trouble it has caused. Understand where you guys are coming from & I’m truly sorry. Truly sorry”.

(m) The Dismissal – 10 March 2006
66 The meeting concluded with the appellant being told the respondent was considering what to do and they would take about half an hour to do so. The appellant went away for half an hour. The appellant returned and was informed that his employment had been terminated, effective immediately.
67 The appellant gave evidence that he cleared out his locker and said goodbye to people. The appellant said he then went home and “spent most of the afternoon in tears because basically my whole world had been dropped on its head and I don’t know, I was off the planet for a couple of days, just because things had gone so wrong” (T67).

(n) Post Termination
68 The appellant gave evidence about taking up an offer of post employment counselling made by the respondent, the obtaining of Centrelink benefits, and attempts to find alternative employment.
69 The appellant’s final payslip for the period ending 15 March 2006 was tendered. The appellant confirmed that he was not paid in lieu of notice. The appellant remained unemployed until 24 July 2006. He then commenced employment and was paid a higher salary in his new job. This was why he was no longer seeking a reinstatement order.

(o) Cross-Examination
70 Mr Edmonds put to the appellant a note of the disciplinary meeting in January 2006. This recorded that prior to Christmas and every day after the Christmas break the appellant had been bringing in cases of CDs to upload, spending time on this when he was maintaining that he was too busy to perform some of his work duties. The document also recorded that the appellant admitted he had been uploading music CDs onto his computer for personal use whilst working.
71 The appellant was also asked about the use of the word “unfortunately” in connection with the expression “coloured arm” in the email. The appellant explained that there was an arm which did not belong in the house. It was the second indicator to him that something was wrong after the dog. The appellant was asked why the skin colour was relevant. The appellant said because “it wasn’t of a person who was attending the party” (T79).

(p) The Commissioner’s Questions
72 At the conclusion of the appellant’s cross-examination the Commissioner asked the appellant some questions. In particular, the Commissioner asked the appellant about that part of the email which referred to “making a stand against it”. The Commissioner said that “it might be inferred by some it was an incitement for people to do something, or could be construed in that manner”. The appellant said it was more of a “do something clause and then I go on to say "But be - - be smart in your actions" because I’m not about to encourage vigilantes to go running out to the street and whatever else, but it’s just whatever you do think about it, and if I had had a chance to think about that in hindsight now I’d never ever have sent the email in the first place” (T83).

7 The Evidence of Mr Edmonds
73 It is not necessary to refer to the evidence of Mr Edmonds which did not cover different ground to or disputed the evidence of the appellant. A summary of his other evidence follows.

(a) The Email
74 Mr Edmonds said the email was a lengthy document. Mr Edmonds said the appellant was well aware or should have been well aware of the potential “this action” could bring in terms of his potential possible termination (T15/16). Reference was made to clause 19(d) of the employment contract. Reference was also made to what was called the “Computer Internet and Intranet Policy”. We infer this was the same policy as the CIES Policy. Mr Edmonds said the email “contained personal views that were clearly in breach of our security policy but more importantly to me, were in breach of our equal opportunity policy. The email was discriminatory, offensive and it was unwelcome to the staff that received it. It was inconsistent with our values as a company and the fact that it was openly distributed and sent as well to external members of the company showed that it was in clear breach”.

(b) Mr Edmonds’ Opinion About the Email
75 In answer to a question from the Commissioner, Mr Edmonds said he was “horrified” to see the email arrive on his desk. He said he immediately took umbrage to the reference to “coloured arm” and “the clear political overtones in the closing paragraphs” (T17).
76 Mr Edmonds said he strongly believed this was a serious breach and put him and his duty of care as a director, owner and manager of the business at risk. Mr Edmonds said he employed more than 80 people of varied ethnic and cultural backgrounds. Mr Edmonds said his duty of care was to provide his employees with a safe workplace, free from this type of “unsolicited discrimination” (T17). Mr Edmonds said the values he held were clearly represented in all of the contracts of employment and all of the policies in place to provide a safe workplace. Mr Edmonds also referred to the email being sent to people outside the respondent and it presented “a risk to the goodwill and name of the” respondent (T17).
77 Mr Edmonds also said that he was concerned by the length of the email and the time taken to prepare the email, to download a sound byte and attach a sound byte. Mr Edmonds said there was a planned and calculated process taking place contrary to the appellant’s commitment to his role and job and performance. Mr Edmonds said it was certainly not a spur of the moment act. It was clearly one that was planned and executed when other activities should have been undertaken (T17). Mr Edmonds also referred to the fact that it was sent to every member of the company and the disruption and time taken in reading such lengthy “prose” was also considered (T17).

(c) Reasons for Dismissal
78 Mr Edmonds said given “the seriousness of the breach, and the fact that this matter had been the subject of a lot of talk and - - and attention from the company at large, it was considered that summary dismissal was the only outcome that could be taken” (T21/22).

(d) Cross-Examination
79 There was examination of Mr Edmonds about the terms of the email policy and how he construed the email and the policy. It is not necessary to set this evidence out for the proper determination of the appeal.

8 The Reasons for Decision
(a) The Application
80 The reasons for decision of the Commissioner commenced with a reference to the two applications.

(b) The Facts
81 The Commissioner summarised the facts. Neither party took issue with the summary in the appeal. The summary set out the respondent’s business, the fact of the written contract, the staff manual and the policies contained in the manual. The summary also set out what had happened to the appellant at the dinner on 2 March 2006. The Commissioner referred to the fact that the appellant had little sleep before attending for work on 3 March 2006. The Commissioner referred to the appellant’s evidence about how he felt on that morning. The Commissioner quoted the email in full.
82 The Commissioner also recorded that the appellant said the email was sent to some friends outside of the respondent with a sound recording.
83 The Commissioner then referred to the process which followed the appellant sending the email including the conversation with Mr Parker and the letter from Mr Parker about the disciplinary process. There was also a reference to Mr Edmonds’ evidence and his opinion of the email.
84 The Commissioner referred to the meeting which took place on 10 March 2006 and set out what was recorded in the document prepared during the meeting. The Commissioner referred to the appellant’s intentions in sending the email and explanation of why he had referred to the “coloured arm” and “making a stand”. The Commissioner referred to the appellant being remorseful for his conduct and having apologised to the respondent for it.
85 The Commissioner also referred to the letter dated 9 March 2006. The Commissioner then referred to the appellant’s dismissal on 10 March 2006.
86 The Commissioner concluded this section of his reasons by saying that subsequent to his dismissal, the appellant sought alternative employment and commenced in a new position on or about 24 July 2006 with an annual salary in excess of that earned by him in his employment with the respondent. The Commissioner made a finding that this had occurred.

(c) Principles Stated
87 The next section of the Commissioner’s reasons was headed “Consideration”. In paragraphs [16] and [17] of his reasons the Commissioner said:-
“16 Whether or not the applicant’s dismissal was harsh, oppressive or unfair turns on whether the employer has exercised its contractual right to terminate the contract of employment contrary to the principles set out in Miles & Ors t/as The Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385. Additionally, given that the dismissal was effected summarily for misconduct, there is an obligation on the employer to establish on the balance of probabilities that the misconduct complained of actually occurred: Newmont Australia Ltd v The AWU (1988) 68 WAIG 677. Additionally, in a case such as this, the lawfulness of the dismissal is a relevant consideration however not all unlawful dismissals will be unfair and vice versa: R v The Industrial Court of South Australia; ex parte General Motors Holden (1975) 10 SASR 582.

17 The issues in this case are as follows:

(a) did the conduct of the applicant, properly characterised, constitute a breach of the respondent's policies?;

(b) if it did, was the breach sufficient to warrant summary dismissal?; and

(c) if it was not sufficient to warrant summary dismissal, did the applicant's conduct warrant dismissal on notice?”

88 In the appeal, neither party took issue with the observations about the law by the Commissioner in paragraph [16].

(d) Breach of the Harassment Policy
89 The Commissioner quoted the relevant parts of the CIES Policy and the Equal Opportunity and Harassment Policy. The Commissioner set out his reasons for finding the appellant’s conduct did not constitute “harassment” for the purpose of the respondent’s Equal Opportunity and Harassment Policy. As stated that finding has not been challenged. During the course of the Commissioner’s discussion about this issue, he said there was “nothing to suggest that the email sent by the [appellant] was received by any person within the staff of the respondent who regarded the communication as unwelcome, intimidating or offensive or otherwise complained about it. I do not include the management’s response to the email in this regard, as clearly their concern was compliance with the policy, not a complaint of harassment in any particular sense” ([24]).

(e) Breach of the CIES Policy
90 The Commissioner at paragraph [25] said the policy was designed to prevent the use of the respondent’s internet and email system in an inappropriate manner. The Commissioner said there was no requirement, for a breach of this policy to occur, that a recipient of a communication be aggrieved in any particular manner. This was in contradistinction to the “Harassment Policy”. The Commissioner said it was the use by an employee, or more appropriately, misuse, of the computing system that might give rise to a breach of the policy. The Commissioner said it was clear that sending an email as the appellant did, “if it contains material falling within the terms of the policy, may constitute a breach of the policy”.
91 At paragraph [26] the Commissioner made some observations about the policy:-
“Firstly, the policy makes it plain in accordance with its terms, that the primary use of the respondent’s computing equipment, software and email etc, is for business purposes only. There is provision in the policy for use of email for personal purposes on a limited basis. It is also very clear that the purpose of the email policy is to ensure that such communications are free from the kinds of subject matter there set out. The respondent submitted that the applicant must have spent some time composing and typing this email, and correspondingly, would naturally involve some time during working time, in every recipient of it reading it.”

92 The Commissioner said he did not accept the appellant’s “evidence that the email was simply a spur of the moment communication” ([27]). The Commissioner said that from its terms it was clearly a well thought out and constructed communication with a “serious message contained within it”. The Commissioner said the manner of composition, detail involved in the narration, and the final paragraphs extolling the virtues of the Australian way of life and requesting readers to “make a stand against it” are strongly suggestive of a communication into which had been put considerable thought ([27]). The Commissioner referred to the time of the sending of the email and that “it would appear it was not sent shortly after” the appellant arrived for work ([27]). The Commissioner said the email “invites the reader to consider and take seriously the message intended by the communication” ([27]). It was “certainly not a light hearted brief communication with all staff” ([27]).
93 The Commissioner said he accepted the appellant’s evidence that he did not intend any offence by the content of the email ([28]). The Commissioner also said he accepted the appellant’s evidence that he was “remorseful and apologetic for the difficulties caused by his conduct” ([28]). The Commissioner then said that “in terms of policies of this kind, and equal opportunity law generally, intention is not an element to be established”. The Commissioner cited in support of this proposition Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 and Waters v Public Transport Corporation (1991) 173 CLR 349, which are both about whether policies of employers breached equal opportunity legislation. The Commissioner then said:-
“A principal purpose of policies of this kind, put in place by employers in the workplace, is to ensure that employees do not, even inadvertently, inappropriately use an employer’s resources which may have the effect of causing harm or offence to others. This in turn, places an employer in a position where it may be held vicariously liable for the conduct of its employees in some circumstances. It must always be borne in mind in cases of this kind, as indeed the respondent’s policy records, that things said or done by one person, without any intention to offend or harm, may be interpreted by another person in an entirely different way, depending perhaps for example, on their cultural background. That is why sensitivity to these matters is required at all times in the workplace.” ([28]).

94 The content of paragraphs [29]-[31] is important to the determination of grounds 1 and 2 of the appeal. They are as follows:-
“29 Returning to the email itself as exhibit R3, I consider that reference to “coloured arm” could be interpreted by a recipient of the email as a racial slur. The reference was very specific. This is despite the [appellant’s] evidence that he did not intend in any way to convey such an impression. Secondly, the penultimate and final paragraphs in my opinion, in accordance with the plain language of the email, read in the context of the email as a whole, clearly seek to solicit support by other staff of the respondent for people to in effect, “stand up and defend themselves”. In my opinion, read in context, these two paragraphs do contain overtones of soliciting support for a political cause, not in a party political sense, but may be construed more generally in terms of citizen’s rights and the requirement for vigilance to defend those rights, in particular in one’s home.
30 These matters are clearly inappropriate content for a communication in the workplace. They carry with them the clear potential for a recipient to misinterpret its content. I also take into account the un-contradicted evidence of Mr Edmonds that the respondent’s employees come from a diverse range of cultural backgrounds.
31 I therefore regard the email sent by the [appellant] on 3 March 2006 as being in breach of the respondent’s Computer, Internet and Email Security Policy as set out above.”

(f) Summary Dismissal
95 The Commissioner then commenced a section of his reasons headed “Did The Breach Warrant Summary Dismissal?” After setting out the relevant law and quoting clause 19(d) of the contract, the Commissioner said in paragraph [34] that he accepted the appellant was aware of the respondent’s policies at the time when he sent the email. The Commissioner explained why he made that finding. The Commissioner said he also took into account “as a relevant consideration, that the events of the evening of 2 March 2006 must have been a traumatic experience for the [appellant] and no doubt others involved at the time. Whilst to some extent this might be seen as a mitigating circumstance, the fact remains that the [appellant] did prepare and send the email which he did, in the knowledge that it must have been inconsistent with the respondent’s relevant policies. It was a deliberate and not an inadvertent act” ([34]). The Commissioner said although there was no harassment, there was potential for offence to be taken to the communication and important that policies of the kind adopted by the respondent, be enforced to reinforce their importance in the workplace.
96 The Commissioner said, however, that in all of the circumstances he did not consider the appellant’s actions warranted summary dismissal without notice for serious misconduct ([35]). The Commissioner said that “having considered all of the background to this matter, the ultimate sanction of summary dismissal was, in the present circumstances, too severe a penalty” ([35]). The Commissioner said the appellant had lost the benefit of salary in lieu of notice which he would have otherwise been paid. The Commissioner said “for these reasons, the dismissal of the [appellant] was unlawful and also unfair to that extent” ([35]).

(g) Did the Breach Warrant Dismissal on Notice?
97 This heading immediately followed paragraph [35]. The next paragraph of the Commissioner’s reasons was:-
“36. Whilst the Commission has concluded that the [appellant’s] dismissal was wrongful at law, and to that extent was unfair, in my opinion, having regard to the fact that the [appellant] was aware of the relevant policies; that he consciously prepared and sent the email which he did that clearly contained inappropriate material; and that the [appellant] had been previously counselled as to a breach of the respondent’s computing policies regarding internet usage; and that the respondent must enforce such policies as a component of their integrity, I consider that termination of the [appellant’s] employment on notice would have been the appropriate outcome in this case.”

98 The Commissioner said he did not accept the appellant’s submission that there had been a denial of procedural fairness ([37]). The appeal does not question this finding.

(h) Compensation
99 The final two substantive paragraphs of the Commissioner’s reasons were as follows:-
“38. Accordingly, having concluded that the [appellant] ought properly have been lawfully and fairly dismissed on notice or by payment in lieu of notice, the Commission will declare the [appellant] to have been harshly, oppressively and unfairly dismissed by reason of his summary dismissal, and will order compensation by way of payment in lieu of notice that the [appellant] would otherwise have received if the employment was terminated lawfully. Given that it was not in dispute that the [appellant] would have been entitled to the sum of $3,010.76 by way of four weeks’ salary in lieu of notice, I find that to be the [appellant’s] loss for the purposes of s 23A(6) of the Act. Whilst the [appellant] also claimed that he had suffered injury as a consequence of the dismissal, I am not persuaded that the circumstances of the [appellant’s] dismissal warrant any award of compensation on this ground: Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144 at 151-152 (FCFC), and the approval by the Full Court of the dicta of Lee J in Aitken v CMETSWU (1995) 63 IR 1 at 9; Bogunovich v Bayside Western Australia Pty Ltd 79 WAIG 8; Nicholas Richard Lynam v Lataga Pty Ltd (2001) 81 WAIG 986.
39 Finally, as the award of compensation to the [appellant] effectively satisfies his claim under s 29(1)(b)(ii) of the Act for denied contractual benefits, this application will be dismissed.”

9 The Terms of the Order
100 As stated earlier the reasons were published on 4 October 2006 together with the order.
101 The orders and declarations were that the Commission:-
“1 DECLARES that the applicant was harshly, oppressively and unfairly dismissed by reason of his summary dismissal from his employment as a retail sales consultant on or about 10 March 2006.
2 DECLARES that reinstatement or re-employment is impractical.
3 ORDERS the respondent to pay to the applicant the sum of $3,010.76 as compensation for loss less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid within 21 days of the date of this order.
4 ORDERS that application B 309 of 2006 be and is hereby dismissed.”

10 The Grounds of Appeal
102 The notice of appeal contained four grounds. These grounds were amended, by leave of the Full Bench, during the course of the hearing of the appeal. The grounds of appeal as amended are as follows:-
“1. The Commission erred in fact or law in concluding at paragraph 29 of the Decision that: “coloured arm” could be interpreted by a recipient of the email sent by the Appellant on 3 March 2006 (“the email”) as a racial slur.
Particulars
(i) The Respondent’s Computer, Internet and Email Security Policy (“Policy”) does not contain a reference to “racial slur” but does contain a reference to “ethnic slur”.
(ii) The words “coloured arm” in the context of the email cannot be interpreted as an ethnic slur.
2. The Commission erred in fact or law in concluding that the penultimate and final paragraphs of the email, in accordance with the plain language of the email, read in the context of the email as a whole, clearly seek to solicit support by other staff of the respondent for people to in effect “stand up and defend themselves” and read in context these two paragraphs contain overtones of soliciting support for a political cause and may be construed in terms of citizen’s rights and the requirement for vigilance to defend those rights, in particular in one’s home.
Particulars
(i) The Respondent’s Policy states that “the email system cannot be used to solicit or convert others for commercial ventures, religious or political causes, outside organisation or other non-job related matters”.
(ii) The penultimate and last paragraph of the Appellants email cannot on any interpretation be soliciting or converting others for a political cause.
3. The Commission erred in law in concluding that the Appellant breached the Policy.
4. In the alternative to paragraph 3 above, that the Commission erred in law in concluding that because the Appellant had breached the respondent’s Policy that an appropriate remedy was to terminate the Appellant’s employment on notice
Particulars
(a) In deciding that the Appellant breached the Policy, the Commission failed to consider when stating that it would have been appropriate for the Respondent to dismiss the Appellant on notice whether that was harsh, oppressive or unfair.”
(b) The breach of the email policy was minor or trivial.
(c) The appellant did not previously breach the email component of the respondent’s computer, internet and email security policy.
(d) The appellant did not intend to breach the email policy.”

11 The Amendment Applications
103 The first amendment sought was to include the words “or law” after the word “fact” in the first line of ground 1. The application to amend in these terms was made fairly early on in the submissions of counsel for the appellant, and was not opposed by counsel for the respondent. As counsel for the appellant explained, if this amendment was made then there would be no need for the Full Bench to consider ground 3 which did not then add anything to grounds 1 or 2. Leave was granted to amend ground 1.
104 The other amendment sought was to add particulars (b), (c) and (d) to ground 4. As filed, the notice of appeal simply contained as “particulars” what is now particular (a). This amendment was sought at the commencement of the respondent’s submissions to the Full Bench. The reason for the amendment was because the appellant’s counsel apprehended, after discussion with the Full Bench during his submissions, that the particulars as they were drafted did not encapsulate all of the arguments which supported ground 4. The precise terms of the amendment sought had not been articulated by the time the respondent’s counsel commenced his submissions. At that point, the respondent’s counsel quite properly submitted that the appellant’s counsel should set out precisely what amendment was being sought. The Full Bench then adjourned briefly to allow the appellant’s counsel to draft the amendment sought. Upon resumption a handwritten document was provided to the Full Bench and the respondent’s counsel. After further discussion with both counsel the amendment sought was allowed. We informed counsel, on behalf of the Full Bench, that the amendment was allowed for at least the reason that the respondent did not oppose the amendment sought.
105 Counsel for the respondent had explained, in the best traditions of the bar if we may say so, that he did not oppose the amendment because he was in a position to provide countering submissions on behalf of the respondent, to the added particulars. The respondent’s counsel, upon invitation by the Full Bench, specifically said that he did not wish to have the opportunity to make additional written submissions about the added particulars. Counsel explained that one reason for this was that his instructing solicitor was located in Melbourne and had flown to Perth for the hearing of the appeal.

12 Leave to Amend Grounds of Appeal
106 The reasons why we joined in the decision to grant leave to amend ground 4 were not limited to the lack of opposition to the amendment by the respondent. In our opinion when considering an application to amend a ground of appeal, at the hearing of the appeal, there are a number of factors to consider. These include:-
(a) The time when notice was first given to the Full Bench and the respondent of the intention to apply for the amendment.
(b) The explanation, if any, for seeking the amendment including why it is sought at the hearing of the appeal.
(c) Whether the proposed amendment constitutes a reasonably arguable ground of appeal.
(d) The consequences to the appellant of the non-granting of leave to amend.
(e) The extent of any prejudice to the respondent.
(f) Any measures which may be taken to eliminate or reduce the prejudice to the respondent.
(g) Issues of delay and costs.

107 In the present case it seemed that the reason for seeking the amendment application was that the particulars to ground 4 had not been drafted with sufficient precision. If leave to amend the particulars to the ground was not granted then this had the potential to harm the prospects of the appellant succeeding in the appeal. As the appellant is represented by solicitors who drafted the grounds of appeal, the reason for seeking the amendment at a late stage cannot be attributed to the appellant himself. There is often a harshness to a party if the actions of their solicitor or agent are visited against them. On the other hand, ordinarily, a party is bound by the way they conduct their case including the conduct of their case by their counsel, solicitors or agent. Our opinion was that the ground, if the amendments sought were granted, was clearly arguable.
108 As stated, the exercise of the discretion to grant leave to amend a ground of appeal is affected by how late the amendment is sought. In this case the amendment was not sought until the conclusion of the appellant’s oral submissions. That is very late indeed. The timing of the amendment application brings into sharp focus the question of the fairness to the respondent by the amendment sought. Although the timing of seeking the amendment to the ground was late, it should be said that the amendments sought did not to any significant degree, if at all, cross the bounds of what was contained in the appellant’s outline of written submissions. This document was filed in the Commission 24 hours prior to the hearing of the appeal, although it seems that it was not served on the respondent’s solicitors or counsel until the early afternoon of the day before the hearing. (There was a Note attached to the Notice of Hearing requiring an outline of submissions to be filed and served 24 hours before the hearing of the appeal). This gave the respondent’s counsel some, albeit not as much as he was entitled to, notice of the arguments to be presented on behalf of the appellant. To some extent, this decreased the disadvantage that the respondent faced in meeting the arguments raised in the outline of submissions and in the amended ground of appeal, if leave was granted.
109 As stated above the respondent through its counsel did not oppose the amendment sought. This was a very important factor. It was not, however, the only relevant factor. If the respondent had opposed the amendment sought, we may well have still formed the view that it was appropriate to grant leave. This is, however, a hypothetical question which it is not necessary to consider further. In some cases the potential prejudice to a respondent could be overcome by an adjournment of the hearing of the appeal or allowing time within which to answer amended grounds by way of written submissions. In considering these remedial actions, questions of time delays and potential cost to the respondent will be relevant factors.
110 Overall, however, perhaps no more can be said than that the power of the Full Bench to grant leave to amend grounds of appeal is a discretionary power which will be exercised having regard to the particular facts and circumstances of each case. The factors outlined above are likely to be relevant to the exercise of the discretion but this is not intended to set out an exhaustive checklist.
111 On the particular facts and circumstances of this case and particularly given the respondent’s non-opposition to the amendments sought, in our opinion it was appropriate to exercise the discretion to grant leave to amend ground 4.

13 The Drafting of Grounds of Appeal
112 None of what we have said, however, should be taken to underestimate the importance of careful drafting of grounds of appeal. The Industrial Relations Commission Regulations 2005 emphasises this. Regulation 102(2) provides that the notice of appeal must clearly and concisely set out the grounds of appeal and what alternative decision the appellant seeks. Regulation 102(3) provides that without affecting the operation of subregulation (2), it is not sufficient to allege that a decision or part of it is against the evidence or the weight of evidence or that it is wrong in law. The notice must specify the particulars relied on to demonstrate that it is against the evidence and the weight of evidence and the specific reasons why it is alleged to be wrong in law.
113 The reason for the content of the regulations is reasonably clear. The grounds of appeal map the boundaries and chart the course of the hearing and determination of the appeal. The grounds and particulars provide proper notice to the respondent and the Full Bench of the issues relevant to a determination in the appeal. They should ordinarily be succinctly expressed. Part of the reason for the delineation of grounds of appeal is to provide procedural fairness to a respondent so that they know the case they need to meet in an appeal. Ordinarily, the Full Bench would have no authority to allow an appeal other than on the basis of the grounds of appeal as drafted, or argued and understood by the parties. Moreover in all cases the Full Bench must act in a way which is procedurally fair.
114 In our experience, far too frequently, when appellants are represented by counsel, solicitors or agents, the grounds of appeal are not drafted with sufficient care.

14 Appeal Against a Discretionary Decision
115 Both the appellant and the respondent recognised that a determination by the Commission that a dismissal is unfair under s23A of the Act is discretionary. It is a discretionary decision because it involves an evaluative judgment being made by the Commissioner, constituting the Commission. (See for example Gromark Packaging v FMWU, WA Branch (1992) 73 WAIG 220, per Franklyn J, Nicholson and Owen JJ agreeing at 223).
116 In Sealanes (1985) Pty Ltd v SDAEA (WA) and Others (2005) 86 WAIG 5, the Full Bench said the following about a discretionary decision:-
“81 It is well established that the exercise of a discretion by the Commission at first instance cannot be disturbed on appeal simply because members of the Full Bench would have exercised the discretion in a different way to that of the Commission at first instance.

82 In Coal and Allied Operations Pty Ltd v AIRC and Others (2000) 203 CLR 194, Gleeson, Gaudron and Hayne JJ spoke of the exercise of a discretionary decision in the following way at [19]:-
“In general terms, it refers to a decision making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result” (Jago v District Court (NSW) (1989) 168 CLR 23 at 76, per Gaudron J). Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made.”

83 At [21], Their Honours stated that:-

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision making process.”

84 In the same paragraph, Their Honours quoted the well known passage from House v The King [1936] 55 CLR 499 at 505, in which in a joint judgment of Dixon, Evatt and McTiernan JJ, there were set out the types of errors which would permit an appeal court to allow an appeal against an order made in the exercise of a discretionary judgment (see also Kirby J in Coal and Allied at [72]).”

117 The reference to the “well known passage from House v The King” in paragraph [84] of Sealanes was quoted in the written submissions of both the appellant and the respondent in this appeal. It is helpful in this appeal to set out the passage from the reasons of the joint judgment of Dixon, Evatt and McTiernan JJ at pages 504-505 as follows:-
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

118 In Norbis v Norbis (1986) 161 CLR 513 at 518-519, Mason and Deane JJ referred to the principles set out in House v The King and, with respect to an appeal against a discretionary order said:-
“According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”

119 This would in our opinion include the error of an “unreasonable or plainly unjust” result as referred to in House v The King, quoted above.
120 Both the appellant and the respondent agreed House v The King applied in the present appeal.
121 In an unfair dismissal application it is the final determination of the Commission about whether the dismissal is fair or not which involves the exercise of a discretion based upon an evaluative judgment. (See for example Gromark at page 223). In all cases, however, there will or may be a number of steps along the way to the making of the evaluative judgment. Without attempting to be exhaustive, these steps could include factual findings; the construction of an employment contract; the construction of an award or other industrial instrument; the meaning of policies of an employer; whether the policies form part of the contract of employment; and whether there has been a lawful termination of employment. The latter is, as explained by the Commissioner in paragraph [16] of his reasons, quoted above, relevant to but not determinative of whether a dismissal is unfair. If a Commissioner makes an error of fact or law in their consideration of, or conclusions on any of these steps, the final exercise of the discretionary evaluative judgment will be within the locus of the principles described in House v The King. An appeal may therefore be allowed and in appropriate circumstances the discretion exercised afresh by the Full Bench. (See s49(5), (6), and (6a) of the Act).

15 Questions of Law and Fact and the Appeal
122 Grounds 1 and 2 assert error in law and fact. The distinction between an error of law and fact is elusive. (See Vetter v Lake MacQuarie City Council (2001) 202 CLR 439). It is not necessary, however, to decide whether each ground alleges error of law or fact as an appeal may lie to the Full Bench on either basis.
123 Nevertheless, there are a number of authorities which confirm, however, that the construction of a contract, a “contractual document”, or other documents are questions of law. This includes the construction of the CIES Policy, including the email policy. (See Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709; N Guthridge Ltd v The Wilfley Ore Concentrator Syndicate Ltd (1906) 3 CLR 583, Robe River Iron Associates v AMWSU (1987) 67 WAIG 1097 per Kennedy J at 1101 and Permanent Building Society (in liq) v Wheeler (1992) 10 WAR 109 at 118, affirmed on appeal at (1992) 10 WAR 145 at 156.)
124 As stated, grounds 1 and 2 also argue that the Commissioner erred in fact in reaching certain conclusions. If the conclusions about whether the contents of the email breached the email policy, are findings of fact, they are not in any way dependent on the credibility of witnesses. An attack upon these conclusions therefore does not face the practical difficulties that an appeal against a factual finding based in part upon credibility does. (See Skinner v Broadbent [2006] WASCA 2 at [32]-[37] and Grierson v International Exporters Pty Ltd (2006) 86 WAIG 2935 at [50]ff).
125 The conclusions, drawn from facts not in dispute and the construction of the email policy, are open to full appellate review. The Full Bench may consider and review the facts for itself to ascertain whether an error has been made, in its opinion, in the drawing of the conclusion. (See by analogy Warren v Coombes and Another (1979) 142 CLR 531 at 551 and Fox v Percy (2003) 214 CLR 118 at [25]). The Full Bench is in as good a position as the Commissioner at first instance to decide whether the email breached the email policy. This is consistent with the role of the Full Bench in determining an appeal which is a “rehearing”. (See Fox v Percy at [20]-[22]; but note the contents of s49(4) of the Act, which arguably may mean that appeals to the Full Bench are “stricto sensu”, as described in Fox v Percy at [20]).

16 The Purpose of the Appeal
126 In the present appeal some care needs to be exercised in looking at precisely what is appealed against. As made clear by counsel for the appellant in opening his submissions, the appeal sought to disturb only the compensation order made by the Commission. The appellant did not of course seek to disturb the declaration of the Commission that the appellant was unfairly dismissed. Although the issue will be referred to in greater detail in considering ground 4, the Commissioner seems to have limited the appellant’s compensation because of his opinion that whilst it was unfair for the respondent to have summarily dismissed the appellant, dismissal upon four weeks notice for the publication of the email, which the Commissioner found was in breach of the email policy, would not have been unfair. As discussed earlier, the finding that dismissal would not have been unfair involves a discretionary decision and an evaluative judgment and therefore attracts the principles set out in House v The King. These principles therefore have relevance in determining this appeal despite the fact that it is not, ultimately, an appeal against a declaration that an employee was or was not unfairly dismissed.

17 Ground 1
127 This ground attacks the finding made by the Commissioner in paragraph [29] of his reasons that “reference to “coloured arm” could be interpreted by a recipient of the email as a racial slur”. This was one of the reasons why at paragraph [31], the Commissioner found the sending of the email by the appellant was in breach of the CIES Policy.

(a) Ground 1 - Particular (i)
128 The first particular to the ground is that the policy does not contain a reference to a “racial slur” but does contain a reference to “ethnic slur”. The reasoning behind the particular seems to be that the Commissioner made some error in deciding that an email containing a racial slur breached the policy.
129 The policy will be examined in detail in analysing the second particular to ground 1. For present purposes it is relevant to note that the policy does refer to an “ethnic slur”. It also refers to “Email communications that … discredit others based on their race …”. A racial slur would discredit others based on their race and therefore infringe the email policy.
130 The respondent also submitted that an ethnic slur would include a racial slur.
131 The appellant did not forcefully press this particular at the hearing of the appeal. Indeed, the appellant’s written submissions referred to the Australian Concise Oxford Dictionary, 2nd edition, as containing the definition of “ethnic” as “having a common national or cultural tradition” and “relating to race or culture”. In the Macquarie Dictionary, online edition, the expression “ethnic group” is defined to mean “a group of people, racially or historically related, having a common and distinctive culture”. It therefore appears that a racial slur could be a subset of an ethnic slur, and therefore for that reason as well, breach the email policy.
132 In our opinion particular (i) has not been established.

(b) Ground 1 - Particular (ii)
133 The appellant pressed much more forcefully particular (ii) to ground 1. The particular is that the words “coloured arm” in the context of the email cannot be interpreted as an “ethnic slur”. The wording of the particular relates to the previous particular about the policy not containing a reference to a racial slur but to an ethnic slur. The finding made by the Commissioner, however, was that the email contained a racial slur and thereby breached the CIES Policy. By not upholding particular (i), we have determined that the Commissioner was not in error in finding that if the email contained a racial slur then it would have breached the CIES email policies. The respondent did not argue that the appellant was, because of the particulars as drafted, prevented from arguing that the Commissioner’s conclusion that the email contained a “racial slur” was in error.
134 To determine this particular requires consideration of the content and meaning of the policy and the email.
135 It is appropriate to first consider the reasons for the policy and then its meaning.

(c) The Reasons for the Policy
136 In considering particular (ii) to ground 1 it is important to have regard to some of the reasons for the respondent, as an employer, having the email policy, with particular reference to the prohibition on sending emails containing an ethnic slur or discrediting others based on race. The reasons were succinctly summarised by the Commissioner in his reasons at [28]. Fleshed out in more detail, they include:-
(a) To promote and provide a fair and reasonable working environment for all employees, so as to minimise the prospect of an employee being discriminated against on the grounds of race, etc, or the development of a workplace culture in which racism, etc, was accepted.
(b) To enhance the productivity of employees. There are a couple of aspects to this. One is the assumption that employees will be more productive if they do not spend time on the internet and/or writing emails which are not related to work. Secondly, however, there does seem to be an acceptance in the policy that the sending of some personal emails can actually make an employee more productive. An example discussed with counsel during the hearing was that a person who wants to invite a large number of family members to their place over the weekend can do so by way of a single email, sent to many, rather than perhaps numerous telephone calls; the former obviously taking less time.
(c) (i) To minimise the prospect that the respondent, as an employer could become vicariously liable, under equal opportunities legislation, for discrimination engaged in by one or more employees against another or others. Having policies in the workplace which are implemented and enforced and which do not tolerate, for example, racism are very important in limiting the potential for vicarious liability.
(ii) For example, s37 of the Equal Opportunity Act 1984 (WA) makes it unlawful for an employer to discriminate (as defined in s36 of that Act) against an employee in certain circumstances, on the grounds of race. Section 161 is about vicarious liability and provides:-
“161. Vicarious liability
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent — 
(a) an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b) an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.”

(iii) The drafting, implementation and enforcement of anti-racist policies are important for an employer to establish “reasonable steps”.
(iv) Additionally, the Racial Discrimination Act 1975 (Cth) creates liabilities for employers, in certain circumstances, for racial discrimination involving work (see ss9, 15, 18, 18A). Section 18A makes an employer vicariously liable for the actions of an employee or agent if they engage in unlawful conduct, under the Act, in connection with their duties unless the employer “took all reasonable steps to prevent the employee or agent from doing the act”.
(v) In Vella v Department of Employment, Vocational Education, Training and Industrial Relations (Qld) [1994] HREOCA 22 Inquiry Commissioner Wolfe considered a complaint made under the Racial Discrimination Act involving of ss9, 15, 18 and 18A of that Act. The complainant was employed by the respondent for about three and one-third years and complained he had been discriminated against on the basis of his race or ethnic origin by his treatment at the Ithaca College of TAFE in January and February of 1991, which led to the termination of his employment. One matter which was in issue was the basis upon which a practical skills evaluation was conducted by a Mr Anderson who was also employed by the respondent. In the course of the reasons for decision, which upheld the complaint, Inquiry Commissioner Wolfe said:-
“But an employer may be directly responsible under the Act for tolerating a racially hostile working environment which is the product of individual acts of racially discriminatory nature, whether or not they are committed by persons under the direct control of the employer. This flows from the duty of an employer to take steps to ensure that its workplace is free of all forms of racial discrimination of which the employer is aware or should be aware, and an omission to act appropriately can constitute discriminatory conduct: Hill v. Water Resources Commission (1985) EOC 92-127; M -v- R & Anor [1988] EOC 92-229; Laher v. Barry James Mobile Cranes Pty Ltd [1994] EOC 92-596.”

Inquiry Commissioner Wolfe, after further consideration of the facts, said the respondent “did not take all reasonable steps to prevent Mr Anderson’s conduct against [Mr Vella] which was actuated by race or ethnic origin, from continuing”.
(vi) Also applicable by analogy is the discussion about liability for sexual harassment in The Laws of Australia, Labour Law, Chapter 26.2, at paragraph [106]. Citing the essay by Ms Sue Walpole entitled “Sex Discrimination and Related Workplace Issues” in Naughton R (ed), Workplace Discrimination and the Law (Melbourne: Centre for Employment and Labour Relations Law, 1995) at page 9, it is said about equal opportunities legislation in Australia (footnotes omitted):-
“Generally, the legislation renders employers or principals liable for the harassing conduct of employees or agents unless the employer or principal can show that reasonable steps were taken to prevent the conduct. This necessitates that employers be pro-active, rather than reactive. This might involve issuing a written policy, establishing internal grievance procedures to which all employees have ready access, conducting staff training on equal opportunity issues and monitoring workplace environments.”

(d) (i) It is appropriate that employers in Australia have and enforce policies which promote the standards set in the International Convention on the Elimination of all Forms of Racial Discrimination (signed in New York on 7 March 1966, and in force generally on 4 January 1969 and in force for Australia on 30 October 1975).
(ii) By s7 of the Racial Discrimination Act 1975, approval was given to the ratification by Australia of the convention. The convention is contained in a schedule to the Racial Discrimination Act. The signing of the convention by Australia was the primary reason why the Racial Discrimination Act was held by the High Court to be constitutionally valid. (See Koowarta v Bjelke-Petersen (1982) 153 CLR 168).
(iii) In the preamble to the convention reference is made to the Universal Declaration of Human Rights that proclaims, amongst other things, that all human beings are entitled to all rights and freedoms without distinction in particular as to race, colour or national origin. Article 2.1 of the convention provides that the signatories “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races …”. Article 6 of the convention requires the signatories to provide effective protection and remedies within their jurisdiction through competent national tribunals and other state institutions, against any acts of racial discrimination which violate the human rights and fundamental freedoms contrary to the convention, as well as the right to seek from such tribunals, just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
(iv) The Racial Discrimination Act is an attempt to provide for the protection to individuals envisaged by Article 6 of the convention. The legislation, in providing for primary and vicarious liability for employers for racist acts against employees, in some circumstances, seeks to affect employer conduct and thereby reduce racism being engaged in or tolerated by employers. Prudent employers should therefore embrace the type of policy at issue in this appeal.
(v) It is also entirely appropriate for employers in a nation state which has signed the convention to have and implement anti-racist policies. In Australia this is particularly so because of the importance of employers, with their power and influence, in affecting the actions and attitudes of the Australian public.

137 For all these reasons it was appropriate for the respondent to have and enforce a strong and broad computer and email policy which was aimed at, amongst other things, the elimination or diminution of the dissemination of racially offensive material. The policy, from its terms and the evidence of Mr Edmonds, reflects an understanding by the respondent of the destructive, demeaning, and insidious nature of racism.
138 In our opinion these more general observations form an important backdrop to a consideration of the meaning of the terms of the email policy and whether the appellant’s behaviour, in sending the email, was contrary to the email policy insofar as it was about racism.

(d) The Construction of the Policy
139 In our opinion the following points are relevant to understanding the meaning and effect of the CIES Policy and the email policy, which is part of it:-
(a) The CIES Policy states that a breach of the policy will subject the user to discipline up to and including termination of employment. Accordingly the policy envisages that not every breach of it will necessarily result in the termination of employment. The implication is that the required discipline will depend upon an assessment of all relevant circumstances in an individual case. This would include the nature and quality of the breach of the policy and the employment record of the employee in question.
(b) The email policy is to be construed having regard to the CIES Policy as a whole.
(c) Paragraph 3 of the email policy takes some unravelling to determine its content. In our opinion greater clarity is provided to its meaning if the paragraph is set out as follows:-
3. You must not display or transmit:-
(a) Sexually explicit images, messages or cartoons; or
(b) Email communications that may:-
(i) contain ethnic slurs; or
(ii) contain anything that may be construed as harassment; or
(iii) discredit others based on their race, national origin, sex, sexual orientation, age, disability, religious or political beliefs.
(d) In our opinion the use of the word “may” applies to each of 3(b)(i), (ii) and (iii).
(e) The appellant’s alleged ethnic/racial breach of the email policy was of clause 3(b)(i) and/or (iii) of the paragraph set out in the above form.
(f) Sharkey P in BHP Iron Ore Pty Ltd v CMETSWU (2001) 81 WAIG 3031 at [59] said:-
“However the policy document, whilst it should be interpreted liberally as an industrial document, should be interpreted like any other document or instrument in order to ascertain its meaning (for a similar approach to awards see Norwest Beef Industry Ltd and Derby Meat Processing Co Ltd v AMIEU 64 WAIG 2124 (IAC)). It is, however, quite clearly not a document drafted by skilled lawyers. It is a document drafted by lesser skilled draftspersons. It is drafted by or on behalf of an employer to be read, understood, used and applied on a daily basis in the workplace. It is trite to observe that one can only understand what the Policy says and directs by reading it.”

In this appeal therefore it is necessary to look at the words used in the policy. The meaning of the policy is ascertained by considering the words used in their ordinary sense, having regard to the context in which they appear, the CIES Policy as a whole, and with an eye to the policy being a document to be used and applied at the workplace. There was no evidence about how the policy was drafted, but such evidence is generally irrelevant to construing the meaning of a document. (See PBS v Wheeler at 119).
(g) The email policy provides that the “primary purpose” of email is to facilitate internal and external business related communication. It states that email should be used “primarily” for matters of concern to the respondent’s business. The use of the word “primarily” implies that some use of email for other than these purposes is acceptable. This implication is confirmed by the express words of the next sentence which provides for “other uses” of email which “should be only on a limited basis”.
(h) The email policy then specifies that email communications “are not” and “must not” be used in certain ways. The expressions “are not” and “must not” contain a prohibition in absolute terms in a way that the words “primary” and “primarily”, used earlier in the policy, do not.
(i) The use of the word “may” in paragraphs 2 and 3 of the email policy broadens the net of the prohibited conduct. It is not just emails which are in fact (for example) disruptive or offensive which are prohibited but those which “may” have these effects. It is noted that the word “may” is not present in paragraph 4 of the email policy, with respect to, amongst other things, “political causes”. This is relevant to appeal ground 2, as is set out later.
(j) There was discussion during the hearing of the appeal as to the standard which should be applied to the use of the word “may” in paragraphs 2 and 3 of the email policy. Both counsel agreed that the standard “to a reasonable person” should be applied; although in assessing the characteristics of the reasonable person, regard should be had to the reasonable differences in sensitivities between some individuals or cultural, racial or ethnic groups. The appellant’s argument with respect to ground 1(ii), was in effect that no reasonable person could form the view that the reference to the “coloured arm” in the email breached the email policy.

140 The policy, for understandable reasons including those set out earlier, potentially covers a broad range or spectrum of conduct. This spectrum would include both deliberately drafted and extreme racist material exhorting others to engage in racial vilification and a comment in an email which was not particularly offensive. An example might be a statement that “I think Australia will beat Holland in the cricket world cup because the Dutch are not very good at cricket”. Most would regard this comment as fairly innocuous yet it does offend the policy because it discredits others based on their national origin.
141 Given the policy covers a broad spectrum of conduct, it is necessary for the respondent, as an employer, to consider the seriousness of a breach of the policy and the reasons and circumstances for and surrounding the breach of the policy, in determining the fair and appropriate disciplinary action for any breach. The same applies to the Commission in determining whether any dismissal for breach of the policy was unfair.
142 These lengthy observations about the purpose, reasons for and construction of the policy now facilitate a better consideration of particular (ii) to ground 1. To reiterate, this particular asserted that the “words “coloured arm” in the context of the email cannot be interpreted as an ethnic slur”. As alluded to earlier it was accepted in effect by the respondent’s counsel at the hearing that the reference to “ethnic slur” included the finding by the Commissioner that it was a “racial slur”.

(e) Ground 1 (ii) - The Submissions of the Parties
143 The appellant submitted in summary that the phrase “coloured arm” cannot be interpreted as an ethnic or racial slur, as it is purely descriptive and in its context simply describes an observation of something seen by the appellant on the evening of 2 March 2006, and a reason he took certain action. It was submitted the phrase “coloured arm” was not a descriptor of a race or ethnic grouping but could equally denote a “suntanned” or “albino” arm. It was submitted that to say all people of a particular ethnic background are thieves, could be an ethnic slur or “all people with black skin are thieves” could be a racial slur. By contrast it was submitted that to say “a coloured arm, that was not meant to be there reached out and stole my bag” is no more than a description of an event in which a coloured arm was a part. It was submitted that no reasonable person could conclude the phrase in its context contained a racial or ethnic slur.
144 The respondent submitted the email had “layers of meaning” (T41) and it was open to the Commissioner, and he was correct to find, that the words “coloured arm” could be interpreted by a recipient of the email as a racial slur. It was submitted the words “coloured arm” refers to black skin colour. It was submitted this was a characteristic associated with race. We accept this submission and not the appellant’s counsel’s attempt to say it could have meant “suntanned” or “albino”.
145 The respondent submitted that when skin colour is used as a designator, the context must be considered to determine if the reference is derogatory in nature. It was submitted that some of the other expressions and words used in the email in addition to the phrase “coloured arm” subtly established the potentially racist nature of the words used. Reference was made in particular to “the very nice neighbourhood of East Fremantle” and that the arm “did not belong in the house”. It was submitted that there was in effect an implication that a “coloured person” “did not belong” in the “nice neighbourhood of East Fremantle” as a coloured person had committed the offence described.
146 The respondent’s counsel also submitted that the concept of belonging and “dark skinned people in Australia and many places – has significance. It’s a question of where do dark skinned people belong; where do Aboriginal people belong” (T42).
147 In his reply, counsel for the appellant submitted that to construe the email in this way involved a form of mental gymnastics which did not constitute a reasonable construction of it. It was submitted at this point and on other occasions by the appellant’s counsel that to so construe the email involved unreasonableness and “extreme political correctness”.
148 We are not convinced that the use of a label like “political correctness” is helpful to determine the present appeal. The expression is defined in the Macquarie Dictionary, online edition, to mean “conformity to current beliefs about correctness in language and behaviour, especially with regard to sexism, racism and ageism etc”. In our opinion it is an expression which has shades of meaning when used, with the context of its use shaping the meaning. In its more extreme forms, “political correctness” can be used as a label to denigrate those who, for example, support an elimination of racist language. We do not find the label helpful in deciding whether the reasonable reader might think the email discredited others by race.

(f) Analysis of Ground 1 - Particular (ii)
149 We have tried to focus our attention upon how a hypothetical reasonable person would act upon receipt of the email. Firstly we think it must be taken that a reasonable reader would look at the words used in context. To say this, however, is not to ignore that some words or expressions have the character that their mere use might breach the email policy.
150 In this email, that directs attention to the use of the word “coloured” when referring to a person’s arm. The respondent’s counsel submitted and we accept that “coloured” is synonymous with “black skinned” (T41). In our opinion, in contemporary Australia, and having regard to the sensitivities of the individual and racial, ethnic or cultural sensitivities, simply using the word “coloured” is not something which might contain an ethnic slur or discredit others based on race. It is, as submitted by the appellant, simply a descriptive word. In this regard we note that the word “coloured” as it appears in the Macquarie Dictionary, online edition, relevantly means “wholly or partly of non-white descent, as a person native to Africa, India, the Pacific Islands, etc”. There is no part of the definition which indicates the word itself is derogatory. The same might be said of calling someone “black”, “Asian” or “Aboriginal”. These words, on their own, do not contain any ethnic or racial slur.
151 This is because, to use a description which designates, directly or indirectly, a race or ethnic group does not necessarily involve any slur upon, or discrediting of, that race or ethnic group.
152 Furthermore, in the email, the description of the arm as being “coloured”, as opposed to the person, supports the view that the word in context is simply being used in a descriptive non-discriminatory way. It is the “coloured arm” which the email said did not belong in the house, not significantly a “coloured person”.
153 We also are of the view that a reasonable reader would not allow non-offensive descriptive words to leap from the email and form a “headline” in their mind of a racist connotation.
154 It is relevant to look at the other words used in the email to describe the person who perpetrated the offence, to understand the context of the use of the word “coloured”.
155 The email makes no other reference to the colour of the person. The words used to describe the offender in the email after the reference to their “coloured arm” are “the intruder”, “he”, “him”, “this guy”, and “the guy”. This highlights the lack of emphasis upon the colour of the person, other than to describe an arm which “did not belong in the house”.
156 We accept the respondent’s submission that references to the nice neighbourhood of East Fremantle and the arm not belonging in the house must also be taken into account. But, by the same token, it is inappropriate to simply highlight these aspects of the email and divorce them from other words used, or the purpose of the email as a whole, drawn from the words used in it.
157 As to the issue raised by the respondent’s counsel, referred to earlier of, “where do Aboriginal people belong”, we have had careful regard to the submission. We understand that “belonging” is an important issue to Aboriginal people in Australia who have a “spiritual” connection to their traditional lands (WA v Ward (2002) 213 CLR 1 at [580]). Also the acts of dispossession of Aboriginal people from their traditional lands have been judicially described as “the darkest aspect of the history of this nation” (Mabo v Queensland (No 2) (1992) 175 CLR 1, per Deane and Gaudron JJ at 109). We are therefore alive to the type of issue raised by the respondent’s counsel and the need for sensitivity when issues of belonging and indigenous Australians are involved. But the question is not whether these sensitivities exist, but whether there was a breach of the email policy. This would occur where the email had the potential, to a reasonable indigenous reader, to be discrediting of their race.
158 With this in mind it is clear to us that the purpose of the email is to, as it states, raise awareness. It describes the setting and some of the circumstances of what happened. The fact that this occurred in what is described as the very nice neighbourhood of East Fremantle provides part of the setting for assessing the gravity of what the author of the email had undergone. The reference in the email to the “coloured arm” is part of the process of reasoning which the author engaged in, in deciding an offence was being committed. That process seems to be hearing the dog going “berserk” heading for the front door, seeing “and (sic) arm doing a snatch and grab from the hallway table at the front of the house”, and then because the arm was “coloured” it “did not belong in the house”. In our opinion it cannot be reasonably inferred that the word “coloured” was used in other than a descriptive and non-derogatory way. In our opinion, in the context, and with respect to others who take a different view, it is not reasonably open to infer that the author was saying that a person with a “coloured arm” would not generally, as opposed to on this specific occasion, belong in a house in the very nice neighbourhood of East Fremantle. It was just that this particular “coloured arm” did not on that evening belong in the house in the very nice neighbourhood; and that the very nice neighbourhood provided the setting for the shock of the offence perpetrated on the author of the email and his friends.
159 We have also had regard to the balance of the email including the references to “violence”, “terrorism”, not turning a “blind eye” and the “Australian spirit”. In our opinion none of these references, individually or together, convert the reference to the “coloured arm” into something which might reasonably be construed to be an ethnic slur or discredit someone based on their race.
160 As stated, the context of the email, relevant to an understanding of the potential effect of the use of the expression “coloured arm”, includes what the author says in the email, as being “the point of it”. This is to “raise awareness” and to “think a little”. The two dot points of precautions which the author of the email suggests in paragraph 6, are what might be regarded as sensible precautions which the police could provide to the public.
161 For all of these reasons in our opinion, and with respect, a reasonable reader of the email could not construe the expression “coloured arm”, in the context of the email as a whole, as containing an ethnic slur or discrediting others based on their race or national origin.
162 In our opinion therefore the Commissioner, with great respect, erred in concluding that the reference to “coloured arm” breached the respondent’s CIES Policy. In paragraph [29] of the Commissioner’s reasons, he said that the reference to “coloured arm” could be interpreted by a recipient of the email as a racial slur. The way in which the Commissioner has phrased this question, indicates to us, with respect, that he has not erred in the question posed. It was in our opinion the answer to the question which was, with respect, in error.
163 As to this, what the Commissioner primarily said in his reasons to justify this conclusion was that the “reference was very specific”. This does not, with respect, take into account all of the matters which in our opinion were relevant, as set out above. The Commissioner also said in paragraph [30] that there was “clear potential for a recipient to misinterpret its content”. The Commissioner also had regard to the respondent’s employees coming from a diverse range of cultural backgrounds. The issue of potential misinterpretation and a range of cultural backgrounds were, in our respectful submission, relevant matters for the Commissioner to take into account in considering paragraphs 2 and 3 of the email policy.
164 In our opinion, however, a reasonable reader of the email, given the content and context of the email as a whole, could not misinterpret it so as to consider that it contained “a racial slur” as found by the Commissioner.
165 The opinion of Mr Edmonds, on the meaning and effect of the email, was not relevant to a determination of what a reasonable reader might think. This is not of course to say Mr Edmonds was an unreasonable reader. It is simply that what is required is an objective determination by the Commission. In the same way it would have been irrelevant to take into account the appellant’s opinion, or those of the other 80 employees of the respondent, or people on the street, on this issue. Also, Mr Edmonds was, because of his position, particularly sensitive to the possibility of a breach of the email policy.
166 We accept, as the Commissioner seems to have approached the matter, that it is also necessary to look at the impression created by the email as a whole, rather than simply engage in the type of textual and contextual analysis set out above. Engaging in this exercise does not, however, change our opinion that the Commissioner erred in finding the reference to the “coloured arm” could be interpreted as a “racial slur”.
167 For these reasons, in our opinion ground 1(ii) has been established.
168 The consequences of this for the orders made by the Commissioner will be considered after an analysis of the other grounds of appeal.

18 Ground 2
(a) The Ground
169 This ground has been set out in full earlier. It appeals against the finding by the Commissioner that paragraph 4 of the email policy was also breached because of the way in which the email concluded. To repeat, the Commissioner’s finding in paragraph [29] was that “the penultimate and final paragraphs in my opinion, in accordance with the plain language of the email, read in the context of the email as a whole, clearly seek to solicit support by other staff of the respondent for people to in effect, “stand up and defend themselves”. In my opinion, read in context, these two paragraphs do contain overtones of soliciting support for a political cause, not in a party political sense, but may be construed more generally in terms of citizen’s rights and the requirement for vigilance to defend those rights, in particular in one’s home”.
170 This directs attention to the words used in and meaning of paragraph 4 of the email policy.

(b) Construction of Paragraph 4 of the Email Policy
171 We make the following observations about paragraph 4 of the email policy:-
(a) Paragraph 4 contains an independent category of prohibited content for emails in addition to paragraphs 1, 2 or 3. The conduct is prohibited because of the use of the word “cannot”.
(b) By way of distinction to paragraphs 2 and 3 the word “may” is not used in this paragraph. The paragraph does not therefore direct attention to what communications “may contain” or how they “may be construed”. In Casinos Austria International (Christmas Island) Pty Ltd & Ors v Christmas Island Resort Pty Ltd & Anor [1998] WASC 387, Owen J said:-
“The text books on the elements of drafting (for example, Robinson, Drafting, 1980 at p71) express the draftperson’s golden rule in the phrase “never change your language unless you wish to change your meaning, and always change your language if you wish to change your meaning.””

This observation assists the construction that paragraph 4 is narrower in scope than paragraphs 2 and 3.
(c) The paragraph says the “Email system cannot be used to solicit or convert others …”. The words “be used to solicit or convert” in our opinion refer to the purpose of the use of the email system. The words “be used to” in the context convey a purpose, similarly to expressions like “to cause”. (See Edwards v The Queen (1992) 173 CLR 653 at 657 per Mason CJ, Brennan, Gaudron and McHugh JJ; ASIC v Doyle [2001] WASC 187 per Roberts-Smith J at [194], [205]). This construction is supported by the meaning of the words “solicit or convert”.
(d) The word “solicit” is relevantly defined in the Macquarie Dictionary, online edition, to mean “to seek to influence or incite to action, especially unlawful or wrong action”, or to “make petition or request, as for something desired”.
(e) The word “convert” is defined in the Macquarie Dictionary, online edition, to relevantly mean “to cause to adopt a different religion, party, opinion, etc, especially one regarded as better”, or “to change into something of different form or properties”, or “to change in character; cause to turn from an evil life to a righteous one”.
(f) The prohibition therefore directs attention to the purpose in the use of the email system not its actual or potential causative effect. (See by analogy Edwards at page 657).
(g) The categories of the things which paragraph 4 prohibits employees from using the email system to “solicit or convert others” for are:-
(i) Commercial ventures.
(ii) Religious or political causes.
(iii) Outside organisations; or
(iv) Other non-job related matters.

(h) It is evident again that this covers a broad spectrum of conduct. As discussed with counsel during the hearing, it could possibly include somebody advising the other members of the workforce by email that they had a car for sale; or a statement in an email to work colleagues that the Carlton Football Club was the best in Australia, and suggesting people should become members of it. At the other extremes it could include something as dangerous or offensive as a suggested plan for the assassination of a political figure.
(i) Relevant to the appeal is whether the email system was used by the sending of the email to solicit or covert others for “political causes”. This requires the giving of meaning to the expression “political cause”, or a “political cause” and whether what the email expressed constituted an attempt at solicitation for or conversion to it.
(j) A “cause” is relevantly defined in the Macquarie Dictionary, online edition, to be “that side of a question which a person or party supports; the aim, purpose, etc of a group”.
(k) The word “political” is descriptive of the type of “cause” for which the person must seek to solicit or convert another, to breach the policy. Relevantly, “political” means according to the Macquarie Dictionary, online edition, “of or relating to the governing of a nation, state, municipality”, “exercising or seeking power in the governmental or public affairs of a nation: a political party”, “relating to or connected with a political party or its principles, aims, activities etc: a political campaign”, “affecting or involving the state of government”, “engaged in or connected with civil administration”, “having a definite policy or system of government”, and “of or relating to citizens: political rights”.
(l) Soliciting for or seeking conversion to a political cause means in our opinion, in the context, to seek support for an identifiable political entity, viewpoint or right. It is broader than, although includes, seeking support for a political party or candidate. It includes seeking support for a political system; for example someone saying Australians should support democracy in another country. It includes seeking support for political rights, for example, “all people of age 16 should be entitled to vote”. The dictionary definition of “political” also includes “of or relating to citizens: political rights”. This definition focuses on rights, not just the fact of being a citizen. Accordingly, an email would not infringe the email policy simply because it refers to a citizen or citizens, collectively or individually. For example an email soliciting support for a work “sundowner” would be about the employee’s workmates, who are citizens, but not a “political cause”. It is only if the email solicits support for something about a citizen in a political context, such as their political opinions, rights or system, that paragraph 4 of the email policy is infringed.

(c) Ground 2 - The Submissions of the Parties
172 The appellant submitted no reasonable person could construe the final two paragraphs of the email to be seeking to solicit support for a political cause. It was also pointed out that the finding of the Commissioner was not that there had been soliciting for a political cause but that the paragraphs “do contain overtones of soliciting support”. Although the appellant did not make this point, the finding by the Commissioner reflected the evidence of Mr Edmonds (at T17) where he said that he thought there were “clear political overtones in the closing paragraphs”. This evidence had been referred to earlier by the Commissioner in his reasons at paragraph [9]. We do not think, however, that the Commissioner’s finding at paragraph [29] reflects the error that he accepted Mr Edmonds’ evidence that the email policy had been breached rather than determining this issue for himself from the words used in the email policy and email.
173 The appellant referred to the Australian Concise Oxford Dictionary, 2nd edition, definition of “overtone” as meaning amongst other things “a subtle or elusive quality or implication”.
174 The appellant then referred to the Macquarie Dictionary, 2nd edition, definitions of “political” and “cause” which are similar to those we have cited earlier.
175 The appellant submitted that there is no group or side of a question for which support was being advocated in the email. The appellant referred to the suggestions contained in the dot points in the email. In his written submissions the appellant said that “a man has been involved in a violent robbery which he felt warranted relating to workmates with some advice as to how those workmates might avoid the situation themselves. It is a message that one might expect to get from the police about home security and neighbourhood watch, a message that is about as apolitical as one could get”.
176 The appellant then referred again to the Commissioner’s finding going no further than that there were “overtones” of soliciting support for a political cause and that no reasonable person could construe the advice given as a political cause, nor the suggestions to do something as soliciting or converting.
177 The respondent’s written submissions referred to the following expressions in the email as being relevant to this ground:-
(a) “… it’s time we stopped turning a blind eye and start making a stand”.
(b) “The world is crumbling under violence and terrorism”.
(c) “We should not take our way of life for granted”.
(d) “Do your part to keep the Australian spirit and way of life alive”.

178 At the hearing the respondent also pointed to the reference to “terrorism” in the email.
179 The respondent submitted it was open to the Commissioner to find that the comments contained “overtones of soliciting support for a political cause”. The respondent pointed out that although this was not a party political cause it was a more “general political agenda in terms of citizen’s rights”.
180 The respondent submitted that an unstated premise to the appellant’s contention was that the reference to “political causes” in the policy should be construed in a narrow party political sense. We do not accept this criticism of the appellant’s position. It is clear to us that the appellant was not endeavouring to construe “political causes” so narrowly but nevertheless submitted that there was no soliciting for a political cause in this instance.
181 When questioned about this ground, the respondent’s counsel had in our view some difficulty in clearly articulating what political cause the email was said to be soliciting support for. At one point counsel referred to “citizen’s rights” and “citizen vigilance” (T47). It was also conceded by counsel that if the email attempted to persuade a person to a “point of view” it was “very unclear what it was” (T49). He submitted, however, that it was “to take a stand” “and maintain the Australian way of life and the Australian spirit” (T49). The respondent’s counsel then added “whatever that is supposed to mean” (T49).

(d) Analysis of Ground 2
182 In our opinion in determining this ground it is necessary to focus with some precision on what the Commissioner said in paragraphs [29]-[31] of his reasons. He firstly said the email sought to “solicit support by other staff of the respondent for people to in effect “stand up and defend themselves””. The Commissioner then said the paragraphs “contain overtones of soliciting support for a political cause … in terms of citizen’s rights and the requirement for vigilance to defend those rights, in particular in one’s home”.
183 In paragraph [30] the Commissioner referred to these matters involving inappropriate content for a workplace communication and clear potential for misinterpretation of content. In paragraph [31] the finding of breach of the email policy was made. We make the following observations about these paragraphs of the reasons, in the context of paragraph 4 of the email policy:-
(a) It is not clear in paragraph [29] whether the Commissioner is making findings about two political causes or one. The Commissioner refers to seeking support from people to “stand up and defend themselves”, and also “citizen’s rights and the requirement for vigilance to defend those rights”. On balance we think there was only one political cause being referred to, which was differently expressed. This is in part because the Commissioner was referring to the same two paragraphs of the email and said he considered them in accordance with the email’s “plain language” and context as a whole.
(b) If this is so the finding is, as the appellant submitted, one of containing “overtones of soliciting support for a political cause”. The word “overtones” adds a gloss to the policy. The dictionary definition cited by the appellant has been set out above. The relevant Macquarie Dictionary, online edition, definition is “additional meaning or implication”. We accept that an email could by subtle implication breach the policy by being a use of the email system to solicit or convert others for political causes, although this may effect the seriousness of the breach of the policy.
(c) The reference in paragraph [30] to “[t]hese matters” must be taken to refer to both the “racial slur” and the “overtones of soliciting support for a political cause” findings. Paragraph [30] refers to the “potential for a recipient to misinterpret its content”. Paragraph [31] says that “therefore” the email sent was in breach of the CIES Policy. As set out earlier the prospect of reasonable misinterpretation was relevant to paragraphs 2 and 3 of the email policy because of the use of the word “may”. But this was not relevant to a breach of paragraph 4, which was as stated earlier drafted in more definite terms and focuses on the purpose of the use of the email system. Understood in this way, a person who sent an email not for the purpose of soliciting or converting others for a political cause would not breach the policy if a recipient misinterpreted the email and thought it did. Accordingly, the misinterpretation point of the Commissioner, insofar as it referred to paragraph 4 of the email, was, with respect, in error.

184 The ground directs its attention more generally though to whether the last two paragraphs of the email, in context, could be properly construed as soliciting or converting others for a political cause.
185 The email may be divided into these parts. The first paragraph is introductory. The second, third and fourth paragraphs of the email describe the event which happened to the appellant. These paragraphs include the reference to the “coloured arm”. The fifth paragraph of the email (excluding the dot points) attempts to set out the purpose in sending the email. To some extent this paragraph refers back to the first in which it is said it was an email that the author would like everyone to “seriously think about”. The sixth paragraph (constituted by the two dot points) contains practical suggestions of the actions which the appellant says people should take. The seventh and final paragraph refers to these practical suggestions and provides reasons why the appellant considers that people should not be “doing nothing”.
186 In our opinion the content of the two dot points comprising paragraph 6 is the key to discerning the purpose of the sending of the email.
187 As the appellant has submitted the two suggestions constituted by the dot points are apolitical, practical and sensible suggestions which could be made by a community police officer. The nature of these suggestions is important in considering the purpose, meaning and effect of the somewhat vaguer expressions and references used in paragraphs 5 and 7 of the email.
188 The email does refer to things getting worse “out there”, and urges the reader to stop turning a “blind eye” and “start making a stand against it”. There is then a reference to the “world crumbling under violence and terrorism” and people not taking a way of life for granted.
189 In isolation the reference to “terrorism” has the potential to be part of an email soliciting support for a political cause. The use of the word cannot, however, be considered in isolation.
190 The reference to not turning a “blind eye” is first contained in paragraph 5. It is referred to again in paragraph 7 following the two dot points. The meaning of not turning a “blind eye” and the purpose of using the expression take shape from the content of the dot points and also the juxtaposition of “blind eye” to the dot points.
191 Not turning a “blind eye”, in the context of the email as a whole, in our opinion must mean to take the actions set out in the dot points. The reference to the keeping of the “Australian spirit” and “way of life” alive also gain meaning by the content of the two dot points. Also the second part of the sentence in which the “Australian spirit” is referred to states “and most of all, but most of all, be sensible about the actions you take”. There is then a reference to doing nothing not being an option.
192 The reference to “doing nothing” takes its flavour from the earlier references to not turning a “blind eye”, which in turn must be understood in the context of the two actions which the email advocates in the dot points.
193 Understood in this sense, in our opinion the references to “terrorism” and keeping “the Australian spirit and way of life alive” do not constitute a use of the email system to “solicit or convert others for … political causes”. The use of the email system by sending the email was to highlight what happened to the appellant and advocate what a person might do to avoid this happening to them.
194 In arriving at this view we have looked very carefully at what it is the email says and the context in which the email contains the words and phrases it does.
195 We have also had regard to the difficulty which the respondent’s counsel had in articulating the “political cause” which the email could be said to solicit support for. We do not, with respect, agree with the Commissioner’s view that it was “citizen’s rights and the requirement for vigilance to defend those rights”. Sending an email with the purpose of advocating the taking of simple steps to avoid a break in cannot in our respectful opinion be properly characterised as the political cause identified by the Commissioner.
196 In arriving at this conclusion we have also considered a point not directly raised by the respondent. This is the “notorious fact” of the rise in Australian political discussions of an/the Australian “spirit”, “values” and “way of life”. They may be said to be part of the growth of a version of nationalism which seeks to exclude from the Australian idiom those who do not possess these amorphous qualities. The political discussions in which the references are made are often about immigration and especially refugee policies, and legislation which governments have said are needed to combat the threat of terrorism.
197 If the purpose of sending the email was to attract support for this arm of nationalism or a nationalistic spirit, it would be in breach of paragraph 4 of the email policy. The respondent did not, however, place reliance on this. In any event, read as a whole, the use of the email system constituted by the sending of the email does not solicit or convert others to this political cause. It is, we repeat, to relate what happened to the appellant and advocate simple practical preventative measures.
198 As stated, in our respectful opinion, the Commissioner erred in finding that paragraph 4 of the email policy was breached.
199 This ground has therefore been established. As with ground 1(ii), the ramifications of reaching this conclusion are later considered.

19 Ground 3
200 We have already made reference to this ground in the context of the appellant’s counsel’s statement that if the amendment to ground 1 was allowed, ground 3 did not need to proceed. The ground does not therefore need to be separately discussed. As pointed out in the respondent’s written submissions, the ground as drafted contained no particulars, and for that reason was liable to be struck out as being contrary to the Industrial Relations Commission Regulations 2005 referred to earlier; and see also s27(1)(a)(iv) of the Act.

20 Ground 4
(a) An Alternative Ground
201 This ground commences with the statement that it is an alternative ground to ground 3. As ground 3 was not proceeded with, ground 4 should be construed as being in the alternative to grounds 1 and 2. No point was taken by the respondent about the opening words of ground 4, in light of the fact that ground 3 was not being proceeded with, and in our opinion nothing more needs to be said about this.
202 The ground itself directs attention to whether the termination of the appellant’s employment on notice was “an appropriate remedy”. The particulars to the ground contain the reasons why the appellant submits this is so. The use of the word “remedy” is perhaps not apt in the context, but nothing turns on this.

(b) The Broader Compensation Issue
203 Some of the appellant’s written submissions on this ground, however, refer to a broader issue. This is whether, having found the summary termination of employment of the appellant was unfair, the Commissioner failed to act in accordance with s23A of the Act, to determine what was the loss caused by the dismissal and determine the appellant’s compensation on that basis. (See s23A(6) of the Act).
204 In this context the written submissions referred to the principles applied by Sharkey P in assessing compensation in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 at pages 8/9 and Simons v Ismail Holdings Pty Ltd t/a Envelope Specialists (1998) 78 WAIG 2332 at 2333/2334. The submissions did not, however, refer to the amendments to the Act made since those two decisions, nor, perhaps understandably, Curtis v Ausdrill Ltd (2006) 86 WAIG 3133, a recent decision of the Full Bench about s23A of the Act.
205 At the commencement of the hearing of the appeal, the respondent’s counsel drew our attention to the submissions going beyond the ground of appeal. He said the respondent did not have the opportunity to properly prepare for these submissions. The respondent’s counsel said he was not served with the submissions until the afternoon before the hearing of the appeal.
206 The submissions we have referred go beyond the scope of ground 4 of the appeal. Although there was an amendment to the ground, it was not an amendment which brought these submissions within the ground. We do not therefore think these submissions should be addressed. Accordingly, it is not necessary, in this appeal to consider the opinions expressed by the Full Bench in Bogunovich and Ismail about the method of assessment of compensation, given the amendments to s23A of the Act.

(c) The Basis of the Award of Compensation
207 The Commissioner found the summary dismissal of the appellant to be unfair, in all of the circumstances described in paragraphs [34] and [35] of the reasons.
208 In the next paragraph, the Commissioner, for reasons we will refer to later, said he considered “that termination of the [appellant’s] employment on notice would have been the appropriate outcome in this case”. Although not expressed quite in this way, the Commissioner seems to have found that a dismissal on notice would have been appropriate and therefore not unfair. In assessing the compensation to be paid to the appellant the Commissioner seems to have followed a similar approach to that which he more fully described in his reasons as a member of the Full Bench in Bogunovich at page 13. The Commissioner there said that all the circumstances of the case needed to be considered in assessing compensation. The Commissioner then gave an example of a finding by the Commission that a dismissal was unfair because of the manner or process leading to the dismissal rather than the substantive reasons for the dismissal itself. The decision of Shire of Esperance v Mouritz (1991) 71 WAIG 891 was referred to.
209 The Commissioner then said in Bogunovich at page 13:-
“In such a case, it may be open to find as a fact on the evidence, that the unfairly dismissed employee could have been fairly dismissed by the employer shortly after the actual dismissal in any event.
In a case such as this, it would be open for the Commission to find that the unfairly dismissed employee’s loss is limited to that period between the date of the employee’s actual dismissal, and when he or she could have been fairly dismissed in any event. In the same context, the circumstances of the case may be such that it is open for the Commission to find, that based upon the evidence before it, it was more likely than not that but for the unfair dismissal, the employee may have left the employment of the respondent voluntarily at some future time. Alternatively, it may well be that in accordance with an unfairly dismissed employee’s duty to mitigate his or her loss, that the employee obtains other employment immediately or a short time after the dismissal. In such a case, there may be no loss or indeed only minimal loss caused by the unfair dismissal, and the Commission could find accordingly.”

210 We accept, with respect, that these observations of the Commissioner remain relevant in an assessment of compensation under the now s23A of the Act. (See the Full Bench decision in Fisher & Paykel Australia Pty Ltd v Skinner (2006) 87 WAIG 1 at paragraphs [3], [77]-[78]).
211 Due to his finding that dismissal upon notice would be appropriate, the Commissioner decided the loss “caused by the [unfair] dismissal”, in terms of s23A(6) of the Act, was limited to the appellant’s loss of remuneration from his former employment with the respondent for four weeks. The correctness of inserting “[unfair]” in the previous sentence seemed to be what was in part questioned in the appellant’s broader submissions on ground 4, which we have decided are beyond the scope of the ground.

(d) Matthews v Cool or Cosy Pty Ltd (2004) 136 IR 156
212 There is another aspect of the way in which the Commissioner determined the applications which we draw attention to. This issue was not raised by the parties, but was raised at the hearing of the appeal by Beech CC. In the penultimate paragraph of the Commissioner’s reasons he states that as the award of compensation effectively satisfies the claim under s29(1)(b)(ii) of the Act for denied contractual benefits, that application is dismissed. The application made under s29(1)(b)(ii), referred, as the employment condition claimed to be “due”, to payment in lieu of notice of termination. This was valued in the application at $3010.76 for four weeks pay in lieu of notice of termination.
213 The decision of the IAC in Matthews v Cool or Cosy Pty Ltd (2004) 136 IR 156, confirms that, an express contractual entitlement to notice, or the implied term in an employment contract for termination upon reasonable notice, are contractual benefits for the purposes of s29(1)(b)(ii) of the Act. (See for example Steytler J at paragraphs [18], [22], [24], [26]; Pullin J at paragraphs [49], [50], [54] and Heenan J at paragraphs [60], [74], [75]-[77]). The IAC also said the Commission could order the payment of damages for breach of these terms. There is also a suggestion, however, at least in the reasons of Heenan J at paragraphs [77] and [78], that in a case such as the present, it is appropriate to first determine the denial of contractual benefits claim and then, having determined that claim, assess whether there has been an unfair dismissal and if so what the loss caused by that dismissal was, having regard to the already assessed damages to be awarded for the denial of contractual benefits claim. If this was endorsed by Cool or Cosy, the Commissioner in these applications inverted the process and determined the unfair dismissal claim first. As, however, neither party made any point about this, it is unnecessary to consider the issue any further.

(e) The Terms of Ground 4 and Reasons of the Commissioner
214 This ground argued that, in all of the circumstances, the Commissioner was in error in finding, in effect, that a dismissal upon four weeks notice would not have been unfair. At the heart of this submission is the contention that dismissal upon notice was a disproportionate sanction for the appellant, even if there had been a breach of the email policy.
215 To reiterate, as the appellant had contended in grounds 1 and 2 that there was no breach of the email policy as found by the Commissioner, ground 4 is properly to be regarded as an alternative to grounds 1 and 2. As we have found in favour of the appellant on grounds 1 and 2, it is strictly not necessary to decide ground 4. In our opinion, however, it is appropriate in this case to do so. We do so therefore on the assumption that there was a breach of paragraphs 3 and 4 of the email policy by the use of the expression “coloured arm” and by the solicitation for a “political cause”, in the way described by the Commissioner.
216 It is necessary to examine what the Commissioner took into account in assessing whether dismissal on four weeks notice would have been appropriate. This process is assisted because the Commissioner, quite appropriately, set out the reasons which he said supported this conclusion. They are contained in paragraph [36] of the Commissioner’s reasons. This has been quoted in full earlier. The paragraph sets out a number of factors which the Commissioner said he had “regard to”. After describing these factors the Commissioner says that termination of employment on notice “would have been the appropriate outcome”. In list form the factors were:-
(a) The appellant was aware of the relevant policies.
(b) The appellant consciously prepared and sent the email.
(c) The email clearly contained inappropriate material.
(d) The appellant had been previously counselled as to a breach of the respondent’s computing policies regarding internet usage.
(e) The respondent must enforce such policies as a component of their integrity.

217 Each of factors (a), (b), (d) and (e) were relevant. The appellant challenges, however, in ground 4, particular (b) the Commissioner’s assessment of the seriousness of the breach, which is to some extent referred to in factor (c) above. Ground 4 as a whole challenges the conclusion that dismissal on notice was appropriate if all relevant factors were taken into account.

(f) Ground 4, Particular (a)
218 Particular (a) to ground 4 contends the Commissioner failed to consider whether dismissal on notice was harsh, oppressive or unfair. Whilst the Commissioner did not expressly refer to the words “harsh, oppressive or unfair”, in paragraph [36], the reference to an “appropriate outcome” in our opinion sufficiently satisfies the requirement to consider whether the dismissal was harsh, oppressive or unfair in the context of the reasons as a whole, including paragraphs [16] and [17] which we have quoted earlier.
219 The respondent also emphasised the experience of the Commissioner in contending that this particular was not established. In our opinion this submission does not carry a lot of weight. This is not to dispute that the Commissioner is very experienced. However, the experience of any Commissioner or judicial officer cannot be used to cloak their decision making with some kind of immunity. In a non-jury trial at least, it is the reasons expressed by a Commissioner or judicial officer which demonstrate whether they have erred, not their experience.

(g) Ground 4, Particular (b)
220 The particular asserts the breach of the email policy was minor or trivial. This directs attention to the seriousness of the breach. It was accepted by counsel for the respondent, when raised with him, that particular (b), as argued by the appellant, took into account all of the circumstances, including those personal to the appellant (T59). These will be referred to later.
221 In our opinion it was necessary for the Commissioner to assess the seriousness of the breach of the email policy, as part of an analysis of the nature and quality of the misconduct of the appellant. This in turn was relevant to a determination of whether the dismissal for misconduct was fair. This is consistent with the approach of Smith C in Wilmott v Bank of Western Australia (2001) 81 WAIG 1684, which also involved breach of an email policy. Not dissimilarly in Garbutt v Stothers (1996) IRCA 960416, in the context of the then provisions of the then Industrial Relations Act 1988 (Cth), Ritter AP said:-
“Where there is a termination based on misconduct, for there to be a valid reason for termination, the misconduct must have a quality sufficiently serious to warrant the termination of employment. For example, it would be difficult to say that a secretary at a large office who stole one paperclip could be categorised by her employer as dishonest and a thief, and therefore there was a valid reason for termination of employment. In my opinion, there must be a qualitative aspect of the misconduct sufficient to warrant the sanction of termination.”

222 Similar considerations arise in determining whether a dismissal has been unfair under the Act. Relevant to the issue are also the personal circumstances of the employee and the reasons why and circumstances in which the misconduct occurred. For example, if the hypothetical secretary Ritter AP referred to in Garbutt had 30 years of exemplary service prior to the “theft” of the paperclip, it would greatly support any contention that she was unfairly dismissed.
223 To fail to take into account the seriousness of the breach of policy would be to fail to have regard to a relevant consideration and therefore commit an error of the type explained in House v The King. Additionally, if the Commissioner reached a wrong conclusion in deciding how serious the misconduct was, or failed to take into account some relevant evidence in deciding this issue, error would also be present and the appeal could be allowed.
224 In paragraph [36] of his reasons, the Commissioner considered the seriousness of the breach to some extent. This is in factor (c) which we have set out earlier. There is reference to the email clearly containing “inappropriate material”. The Commissioner did not, however, as in our respectful opinion he ought to have done, assess more fully where the appellant’s conduct fitted within the spectrum covered by the email policy, so as to decide dismissal upon notice would have been fair.
225 In this regard it is important to recall that the CIES Policy itself provides that violation of the policy will subject the user to discipline, up to and including termination of employment. The contract has the same effect in relation to breach of policies. (See clause 19(d) quoted above).
226 In assessing the seriousness of the breach of the policy, as opposed to whether the policy was breached, it is relevant to have regard to the fact that the appellant did not intend the email to contain any racial slur. The Commissioner made this finding at paragraph [28] and it was not challenged in any cross-appeal, notice of contention or otherwise. The Commissioner then went on to say, in the same paragraph, that he also accepted the appellant was remorseful and apologetic for any difficulties caused by his conduct. The Commissioner then said, in effect, that intention was not an element to be established, when considering whether the policy had been breached. It is though, as stated, relevant to an assessment of the seriousness of the breach of the policy.
227 For example, there is a difference between an employee who, in a deliberate, defiant breach of the email policy sends an email which sets out to and does contain a serious racial slur. As against this is the present case where the racial slur, if there was any, was more indirect and an unintended error of judgment. Coupled with the understanding and remorse exhibited by the appellant, there is clearly a much greater prospect that the email policy would not be contravened in the same way again. This is also relevant in determining whether any dismissal on notice would have been fair.
228 The lack of evidence of anyone reporting being offended by the email is also relevant to assessing the seriousness of the breach of the policy. The evidence of Mr Edmonds’ reaction to the email was discussed by the Commissioner in paragraph [24] of his reasons, as referred to earlier, and there is no appeal or notice of contention against this finding.
229 Whilst, quite properly, the respondent should be very concerned about the development or acceptance of a racist culture at the workplace, this does not mean, as the policy reflects, that in every case of breach of the policy it is necessary that dismissal should occur. The nature and circumstances of each case should be taken into account. Further, the respondent could clearly convey to all employees, with respect to an email like the one sent in this case, the unacceptability of it containing something which could be construed as a racist slur and record the discipline meted out to the employee, short of dismissal. This could include an official warning that any like conduct or further breach of the policy would, if serious, lead to dismissal. This would reflect the respondent’s disapproval of the sending of the email. The email in question, if it breached the policy, could have been used in this way to further educate the workforce.
230 As stated and to reiterate, we are satisfied that in paragraph [36] of the Commissioner’s reasons, he did, at least to some extent, take into account and assess the seriousness of the breach of the policy. We also consider that the Full Bench can decide on appeal whether the assessment made by a Commissioner of the seriousness of a breach of a policy was in error.
231 In the present case, in our opinion if the sending of the email did breach paragraphs 3 and 4 of the email policy then it was not a particularly serious breach. As stated this is partly because if there was a racial slur within the email and if it did solicit support for a political cause, these aspects of the email were not intended, were somewhat indirect and errors of judgment.
232 The racial slur, if any, was not particularly serious. The political cause, if any, for which support was solicited was not something extraneous to ordinary discussion of civic affairs in Australia. Nothing radical or dangerous was suggested.
233 Additionally, in assessing the conduct of the appellant as an employee who had breached the email policy, it was relevant for the Commission to consider all of the circumstances within which the breaches took place. Importantly in this case that included:-
(a) The terrifying incident which the appellant had undergone the night before the sending of the email.
(b) What the appellant said about how he felt when at work that day.
(c) The fatigue from lack of sleep because of the incident. The appellant could not be “blamed” for not having sufficient sleep before work, when the reasons for this were the incident that occurred, co-operating with the police afterwards, returning home and then telephoning his partner before going to bed.
(d) The appellant’s motive in sending the email to raise awareness and prevent others suffering a similar incident.
(e) The remorse which the appellant had for the sending of the email if it breached the respondent’s policy.
(f) This remorse was acted upon by the sending of the apology on 9 March 2006 directed to the management and all employees of the respondent.
(g) The appellant thought himself not to be in a fit state to attend work on the day when he sent the email, but did so in part because his manager and another employee in his section were going to be absent from work. He thought it appropriate in those circumstances to attend for work. This exhibited a degree of commitment to his employer and his employment which was relevant in assessing whether the appellant’s dismissal was unfair.

234 Particular (b) to this ground takes into account the seven factors that we have listed above and argues that the breach of the email policy was minor or trivial. None of these seven factors were listed as being taken into account by the Commissioner in paragraph [36] of his reasons. This is relevant in deciding whether the Commissioner erred in his characterisation of the seriousness of the breach. In paragraph [34] but not paragraph [36] the Commissioner specifically had regard to the trauma of the incident. The failure to mention this in paragraph [36] suggests it might not have been taken into account in reaching the conclusion there expressed. As the other six factors listed were not mentioned by the Commissioner in paragraph [36], it can even more confidently be said that they were not taken into account.
235 The respondent’s counsel submitted it was an unfair construction of the reasons to infer that the Commissioner had forgotten what he had found, about trauma, two paragraphs earlier (T38).
236 In our opinion, however, the question is not whether the Commissioner had “forgotten” the finding that the appellant had suffered trauma, but whether it was taken into account in reaching the conclusion he did in paragraph [36].
237 In our opinion the seven factors (in all) that we have listed were highly pertinent to an assessment of the seriousness of the policy breach and, in turn, whether a dismissal on notice would have been fair.
238 The non-mentioning of trauma and the other six factors suggests either that the Commissioner did not take them into account or that the Commissioner did not give them much weight in determining either the seriousness of the breach or whether the dismissal on notice was appropriate.
239 An appeal against a discretionary decision may succeed where there has been a failure to give “proper weight” to “particular matters”. (See Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519). In our opinion the conclusion reached by the Commissioner, that dismissal on notice would have been fair, demonstrates either that he failed to properly determine the issue of the seriousness of the breach, having regard to all relevant factors; or that he failed to take into account all material pieces of evidence on the seriousness issue; or that he arrived, in error, at a conclusion that the breach was not “minor”, in the sense in which the particular was understood and argued about by the parties.
240 On either of these three scenarios, particular (b), and therefore ground 4, has been established.

(h) Ground 4 – Particular (c)
241 Particular (c) of ground 4 refers to the assertion that the appellant had not previously breached the email component of the CIES Policy. It is correct that the Commissioner did not refer to this aspect of the matter in paragraph [36] of his reasons. However, the Commissioner did refer to the appellant previously being counselled as to a breach of the respondent’s computing policies regarding internet usage. Whilst we accept that it was material to consider what aspect of the policy had been breached in the past, and whether the appellant had been counselled for this, we are not sure that we would have upheld this ground on the basis of particular (c) alone.
242 Determining this ground is made harder by the unresolved conflict of evidence at first instance about the nature of the breach of the CIES Policy in January 2006, the disciplinary action taken and what the appellant was told about any future breach of the CIES Policy. As we have set out earlier, some of the appellant’s evidence on this issue was not contradicted, whereas other parts of it were, but only by a document being put to the appellant by Mr Edmonds, when the author of that document was not being called to give evidence. The Commissioner did not resolve this dispute in the evidence, but it was not argued that this of itself constituted error. (See Mifsud v Campbell (1991) 21 NSWLR 725 at 728).
243 Given our conclusion on ground 4 (b), we think it prudent not to consider this particular any further.

(i) Ground 4 – Particular (d)
244 Particular (d) of ground 4 refers to the fact that the appellant did not intend to breach the email policy. We have already referred to this particular in the context in which it is also relevant to an assessment of the nature and extent of the breach of the email policy, relevant to determining particular (b). We need not repeat the observations which we have there made, and it is not necessary to separately consider this particular.

(j) Ground 4 - Conclusion
245 As stated therefore we would uphold ground 4. That is, even if grounds 1 and 2 had not succeeded, we would have allowed the appeal on ground 4 alone.
246 The respondent submitted that relevant to the question of whether dismissal on four weeks’ notice was unfair, was the waste of the appellant’s and other employees time in sending and reading the email. This was not expressly taken into account by the Commissioner in deciding the fairness of dismissal on four weeks’ notice in paragraph [36]. It is, however, a fact which the Full Bench can have regard to if it decides the Commissioner’s discretion miscarried.
247 In our opinion this factor did not, when considered with the factors listed by the Commissioner at paragraph [36] and all the other evidence we have referred to, make a dismissal on notice fair. In making this assessment we have taken into account the post employment counselling received by the appellant, at the instigation of the respondent.
248 The amount of time spent by the appellant in writing and sending the email must be considered in light of how he felt that day, including his trauma and fatigue. Further, the time spent by employees in reading the email may not necessarily have been a “waste” of their time, if it alerted them to the possible consequences of not taking the actions contained in the dot points in the email. The submission suffers from the assumption that employees who do other than work continually when not on breaks are less productive economic units. This assumption is questionable at best. The submission also makes an assumption about how many employees read the email and how long they took to do so. There was no evidence about these matters, which effects the cogency of the submission.
249 In our opinion applying in this appeal the “Undercliffe principles” a dismissal on four weeks notice would not have been fair.

21 Disposition of the Appeal
250 We have decided that grounds 1 and 2 of the appeal should be upheld. We have also found, in the alternative, that ground 4 of the appeal should be upheld.
251 Upholding grounds 1 and 2 of the appeal, means that we have decided the Commissioner erred in finding there was a breach of the email policy. This finding was a lynchpin to the Commissioner’s finding that a dismissal upon four weeks notice was not unfair. Once this lynchpin is removed, the finding of no unfairness if the dismissal was with notice falls away. Accordingly the appellant’s compensation should not have been assessed having regard to this limitation.
252 The parties agreed that there was no issue before the Commission at first instance that the appellant had failed to properly mitigate his loss. It was also agreed that the appropriate loss, if the Full Bench were to allow the appeal, was the amount submitted at first instance. This was the gross amount of the appellant’s loss of remuneration from his former employment from the date of dismissal until he was employed again in a position in which he received a higher salary. This figure was provided by the appellant’s then counsel to the Commission at first instance (T91/2). It is also accepted by the parties that the amount ordered to be paid by the Commissioner at first instance ($3,010.76) has been paid and so that the appropriate “balance” to be ordered to be paid was $11,612.93.
253 The same outcome would be reached in our opinion if we had not allowed grounds 1 and 2, but instead had allowed ground 4. This is because in upholding ground 4, our conclusion is that the Commissioner erred in finding that termination on notice “would have been the appropriate outcome in this case”. In our opinion a dismissal on notice for breach of the email policy in all the circumstances of the case, would not have been fair, by the Undercliffe standards. In assessing compensation therefore, the Commissioner made an error. The Full Bench may then substitute what it considers to be the appropriate compensation order (s49(5), (6) and (6a) of the Act).
254 The result therefore, if we had only found ground 4 to be upheld, is that the appropriate amount of compensation is the amount agreed between the parties at the hearing of the appeal.

22 Orders
255 In FBA 33 of 2006, an order should be made dismissing the appeal. Although it is not necessary to publish a minute of proposed order when the order is one of dismissal (see s35 of the Act) in this case in our opinion it is prudent to do so.
256 In our opinion the orders which should be made by the Full Bench in FBA 34 of 2006 are:-
1. The appellant have leave to amend the grounds of appeal to the form of the grounds set out in the reasons of the Acting President and Scott C.
2. The appeal is upheld.
3. Order 3 of the declarations and orders made by the Commission on 4 October 2006 is set aside.
4. The respondent within 21 days of the date of publication of this order, pay to the appellant the sum of $11,612.93, less any amount payable and actually paid to the Commissioner of Taxation, pursuant to the Income Tax Assessment Act 1936 (Cth).

257 As this is the opinion of a majority of the Full Bench a minute of proposed orders will issue in these terms.

BEECH CC

258 The facts of the matter are set out sufficiently in the joint reasons of His Honour the Acting President and Scott C. The first ground of appeal alleges that the Commission at the first instance erred in fact in concluding at paragraph [29] that “coloured arm” could be interpreted by a recipient of the email as a racial slur. The appellant submits that the words “coloured arm” are purely descriptive and in context simply describe an observation of something seen by him and a reason that he acted as he did. Further, the Commission at first instance concluded that reference to “coloured arm” could be interpreted by a recipient of the email as a “racial slur” however the respondent’s policy refers to “ethnic slur”, not to “racial slur”.
259 The words “coloured arm” need to be assessed in the context of the respondent’s policy. The staff manual includes eight written policies including the computer, internet and email security policy; the use of electronic mail or email is a part of this policy. The injunction within the policy that “[y]ou must not display or transmit sexually explicit images, messages or cartoons or email communications that may contain ethnic slurs or anything that may be construed as a harassment or discredit others based on their race, national origin, sex, sexual orientation, age, disability, religious or political beliefs” is part of a policy which notes:-
a. that email and internet access is made available to staff and provision of these facilities “is to allow staff to be as productive as possible in the delivery of products and services to our customers”.
b. that violation of the policy will subject the employee to discipline up to and including termination of employment.
c. that access to the internet is to support the business purposes of the firm and that the system should only be used for work and not for personal use during normal working hours.
d. that users should safeguard against using the internet to transmit personal comments or statements through email or to post information to newsgroups that may be mistaken as the position of the firm.
e. that the primary purpose of electronic mail is to facilitate internal and external business-related communication.
f. that the use of email for personal, private or non-business should be on a limited basis only.
g. that email is not to be used in a way that may be disruptive, offensive to others or harmful to morale.
h. That the email system cannot be used to solicit or convert others for other non-job related matters.

260 The emphasis within the policy to the primary use of both the internet and email (the policy itself linking the two as part of a whole) to business-related communication and, only for work and not for personal use during normal working hours, sets out one part of the context in which the words “ethnic slurs” are to be judged. The reference within the policy to emails “hav[ing] resulted in devastating documentary evidence in harassment and discrimination claims” provides another part of that context. Together they identify the importance to the respondent of the proper and appropriate use of the internet and email facilities provided to its employees.
261 Turning to the email sent, the Commission at first instance at paragraph [29], considered that reference to “coloured arm” could be interpreted by a recipient of the email as a racial slur. The policy speaks of email communications that “may”, not could, contain ethnic slurs, although I see no useful distinction between the words “could” or “may”; both may be used to express possibility. And, although the appellant draws attention to the fact that the respondent’s policy does not refer to a racial slur, I see no useful distinction to be made in this appeal between a “racial slur” and an “ethnic slur”. I respectfully agree with the conclusion of the Acting President and Scott C that a racial slur could be a subset of an ethnic slur and therefore a breach of the policy.
262 I am unable to conclude that the Commission at first instance erred in the conclusion which he reached. Colour is a characteristic of an object. It can carry with it an indication of inherent quality, good or bad. It can identify that the coloured object is different because of its colour only and that it does not belong in a particular setting. Indeed this very quality is why the appellant himself referred to the arm’s colour: in his evidence before the Commission at first instance, the appellant said that he was making the point that as it was a coloured arm (the appellant referred to the arm as “dark-skinned” in his evidence at T53) he knew something was wrong because there were no guests in the house at the time that had that skin colour. It was different and it did not belong there.
263 Describing a person by their arm as “coloured” describes that person’s race or ethnicity, in this case a different race or ethnic origin from others. Issues of ethnic diversity are the stuff of popular comment and often social discontent in society. The effect of such a descriptor will depend upon the context in which it occurs. The context in which the appellant used the words “coloured arm” was in the context of stealing:-
“I looked and saw an arm doing a snatch and grab from the hallway table at the front of the house. Unfortunately it was a coloured arm that did not belong in the house.”

264 The appellant links the crime with the colour of the person. He did not need to do so; to have merely written in the email “unfortunately it was an arm that did not belong in the house” would have achieved the result which the appellant, apparently, wished to achieve. Nevertheless, even if the appellant did not intend it to have that connotation, his reference to “coloured arm” in the context of committing a crime may, at the least, discredit another based upon race or national origin and therefore also may cast a slur. That is what the policy is designed to prevent occurring in the respondent’s workplace and properly so.
265 I am therefore of the opinion that the appellant’s use of the words “coloured arm” in the email that he sent may be construed to be an ethnic slur as the Commission at first instance concluded: reference to “coloured arm” could be interpreted by a recipient of the email as an ethnic slur (at [29]). Once that possibility is acknowledged, the substance to this ground of the appeal falls away.
266 I add that in my respectful opinion, when considering the respondent’s internet and email policy, and the words “coloured arm” in relation to it, one should guard against not seeing the wood for the trees. A great deal of time appears to have been spent in examining in fine detail each relevant individual word of the policy or of the email and the meanings of those words individually or in combination. I have found this an unhelpful approach. The caution in the policy is that an employee must not transmit email communications that “may contain” ethnic slurs or anything that may be construed as discrediting others based upon their race or national origin. I find it difficult to see how the respondent’s policy could have been more appropriately worded: its use of the word “may” is in my view designed to prevent the respondent company from being embroiled in the very debate that has now occupied a proportion of the time before the Commission at first instance, and now the time of three members of this Commission on appeal.
267 The second ground of appeal goes to the conclusion of the Commission at first instance that the penultimate and final paragraphs clearly seek to solicit support by other staff of the respondent for people to in effect “stand up and defend themselves” which contain overtones of soliciting support for a political cause in terms of citizens’ rights and the requirement for vigilance to defend those rights in particular in one’s home (at paragraph [29]).
268 The appellant submits that no reasonable person could reach such a conclusion; even the Commission at first instance found only “overtones” of soliciting support for a political cause.
269 I refer to my earlier comments about the context in which the injunction in the policy is to be read. The respondent’s internet and email facilities are to be used primarily for work-related purposes. There is limited personal use. The policies are directed to that end and attempt in a comprehensive way to prevent their use in a way contrary to that intent. The appellant, by his own admission, wished to send an email to all employees of the respondent “to raise awareness”. It spoke of his view of the way of life in Australia compared with other things going on in the world, that “we can’t keep turning a blind eye” and shouldn’t just stand back and watch something happening but rather do something about it. The appellant believed people should “make a stand against the bad things that are happening out there” (T82).
270 With respect to those who hold a view to the contrary, I find it difficult to describe the sentiment expressed as anything other than “political” in the sense that the word relates to the state of the country or its civil administration and the citizens within it. The conclusion of the Commission at first instance, which found “overtones” of soliciting support for a political cause was one open to him on the evidence and no error in that has been established.
271 Ground 3 does not require separate consideration from what I have just said. In my view it cannot validly be said that the Commission erred in law in concluding that the appellant’s email breached the policy.
272 Ground 4, as it was amended during the course of the proceedings, is that the Commission failed to consider whether to have dismissed the appellant on notice would have been harsh, oppressive or unfair, that the breach of the email policy was minor or trivial, that the appellant had not previously breached the email part of the policy and that the appellant had not intended to breach the email policy.
273 The task of the Commission at first instance was to decide whether the dismissal of the appellant was harsh, oppressive or unfair. The Commission concluded (at [35]) that the ultimate sanction of summary dismissal was too severe a penalty, that the appellant lost the benefit of salary in lieu of notice which he would otherwise have been paid and that the dismissal of the appellant was unlawful and also unfair to that extent.
274 Once the Commission concludes that the dismissal was unfair, which the Commission does at paragraph [35], s23A of the Act obliges the Commission to consider the remedies there set out. However, the Commission then asked itself a further question, that being whether the breach warranted dismissal on notice. He concluded that dismissal on notice would have been the appropriate outcome and thus assessed the appellant’s loss as an amount equal to the salary in lieu of notice payable under the appellant’s contract of service.
275 A better approach upon a finding that the appellant’s dismissal was unlawful although not unfair, is to order an amount of money as a denied contractual benefit equal to the notice which should have been given, and on the basis that the ordering of that benefit satisfies any loss arising from the dismissal under s23A(6), dismissing the claim of unfair dismissal. This approach is consistent with the approach in Matthews v Cool or Cosy Pty Ltd and Another (2004) 84 WAIG 2152 per Steytler J at [29], Pullin J at [78]. Ultimately, however, I do not consider much turns upon the point and it was not raised by either party.
276 The conclusion of the Commission at first instance that termination of the appellant’s employment on notice would have been the appropriate outcome in this case necessarily implies that had he been dismissed on notice it would not have been harsh, oppressive or unfair. I consider that conclusion was open to the Commission on the evidence. The appellant had, as I have found, breached the appellant’s internet and email policy. I do not consider the breach to have been minor or trivial in its context. That context was not the appellant sending a personal email to family or a friend; it was an email sent to every employee of the company in the company’s entire operations and to five friends outside the company. That was by any measure high handed.
277 The appellant was not employed in a senior or management position which might well have reason to send emails to all of the respondent’s employees. He was employed as a retail sales consultant. From that position, there is nothing in the evidence to suggest he had any reason to send an email to all of the respondent’s employees, from the Managing Director onwards. Further, the content of the email, apart from the breaches I have found, was not in support of the business purposes of the firm, was for personal use and not for work during normal working hours which, as the policy makes clear, is contrary to the basis upon which it is made available to him. It directly contradicted the policy statement that users should safeguard against using the internet to transmit personal comments or statements through email. The use of email for personal, private or non-business matters is permitted but it should be on a limited basis only. I have some difficulty in the appellant’s email sent to all of the respondent’s employees being seen as personal, private or non-business use on a limited basis.
278 Furthermore, the appellant had been warned about excessive internet use in January 2006; the warning was only two months before he sent the email on 3 March 2006. He had also been uploading music CDs into his computer for personal use while working although the respondent’s policy states:-
“No software is to be loaded into the computer without approval of the company secretary, and no external CDs or discs or memory sticks to be used on your PCs.”

279 The appellant shows little, if any, regard for the respondent’s policy notwithstanding the warning given to him. Indeed, the appellant’s decision on 3 March 2006 to send the email seemed to have involved no consideration by him of the policy or even an awareness that by doing so he would be breaching it, again. The warning given to the appellant only some two months ago for his earlier breach appears to have gone quite unheeded.
280 The submission on the appellant’s behalf that he did not intend to breach the email policy counts little in a context where it does not appear he paid any regard to it whatsoever. It is the case that the appellant is remorseful, and apologised for his action. That is to his credit. I also note that following the warning, the appellant had agreed to return to his previous position of retail consultant in the showroom and that his interaction with customers was “fantastic” which also is to his credit.
281 The Commission at [36] took into account the appellant’s awareness of the relevant policies, that he consciously prepared and sent the email which contained inappropriate material, that he had been previously counselled about a breach of the policy and that the respondent must enforce such policies as a component of their integrity.
282 The Commission did not refer here to his earlier findings that the appellant was remorseful and apologetic and that the events must have been traumatic for the appellant. However, in the context of the appellant’s disregard of the respondent’s policies and the previous warning, I are not persuaded that a consideration of those factors could lead to a different outcome. The sending of the email was the third time he had acted contrary to the policy: he had used the internet too much and had been warned; he had uploaded CDs into the respondent’s computer; on this third occasion he wrote and sent the email. In doing so he compounded his act by connecting his MP3 player to the respondent’s computer and uploading a sound file from it. It is quite telling that when he was asked in cross-examination whether this was a repeat of the things about which he had been counselled, he replied that “they are two different circumstances”. (T77). I have quoted the policy at paragraph [259] above and it shows his reply to be wrong.
283 It was argued that although the respondent’s policy regarding email and internet use is a serious rule, the sending of the email was a trivial breach of it. This submission fails to recognise, in my respectful view, the effect of it having been sent to all employees in the respondent’s operations and externally to five of the appellant’s friends. I am unable to describe the appellant’s actions as trivial, and do not consider it can be seen as trivial in the context of the respondent’s policy, the appellant’s awareness of it, his previous warning in relation to it, and his failure to even consider the respondent’s policy when he decided to send the email.
284 I am of the view that the discretion of the Commission at first instance was quite properly exercised. I think the orders which he issued were open to him to make and I would accordingly dismiss the appeal.

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