2012 WAIRC 00150
APPEAL AGAINST THE DECISION OF THE COMMISSION GIVEN ON 17 OCTOBER 2011 IN MATTER U 82 OF 2010

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2012 WAIRC 00150

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER J L HARRISON

HEARD
:
WEDNESDAY, 14 DECEMBER 2011

DELIVERED : THURSDAY, 15 MARCH 2012

FILE NO. : FBA 7 OF 2011

BETWEEN
:
THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER SECTION 7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) AS THE HOSPITALS FORMERLY COMPRISED IN THE METROPOLITAN HEALTH SERVICES BOARD
Appellant

AND

DENISE DRAKE-BROCKMAN
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER S M MAYMAN
CITATION : 2011 WAIRC 00963
FILE NO : U 82 OF 2010

Catchwords : Industrial Law (WA) - appeal against a decision of a single Commissioner - summary dismissal for misconduct - evidentiary onus on employer considered - the role of the Commission in assessing the actions and beliefs of the employer at the time of a dismissal considered - Commissioner erred in not finding misconduct had occurred but in the circumstances the Full Bench not satisfied that penalty of dismissal was warranted - the requirements of procedural fairness in conducting an investigation considered - Commissioner erred in finding a breach of procedural fairness.
Legislation : Industrial Relations Act 1979 (WA) s 26(1)(c), s 29(1)(b)(i), s 49;
Industrial Relations Act 1988 (Cth) repealed s 170DE(1).
Result : Appeal dismissed
REPRESENTATION:
Counsel:
APPELLANT : MR D J MATTHEWS (OF COUNSEL)
RESPONDENT : MR R J BOWKER (OF COUNSEL)
Solicitors:
APPELLANT : STATE SOLICITOR'S OFFICE
RESPONDENT : FIOCCO'S LAWYERS

Case(s) referred to in reasons:
Amalgamated Metal Workers & Shipwrights Union v Robe River Iron Associates (1989) 69 WAIG 985
Amin v Burswood Resort Casino (1998) 78 WAIG 2441
BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191; (2002) 82 WAIG 2013
BiLo Pty Ltd v Hooper (1992) 53 IR 224
Clouston & Co Ltd v Corry [1906] AC 122
Coal and Allied Operations Pty Ltd v Full Bench of the Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693; (2000) 103 IR 160
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Franklins Ltd v Webb (1996) 72 IR 257
Garbett v Midland Brick [2003] WASCA 36; (2003) 83 WAIG 893
Gordon v Commissioner of Police [2011] WASCA 168
Grierson v International Exporters Pty Ltd [2006] WAIRC 05465; (2006) 86 WAIG 2935
Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98
Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852
Heard v Monash Medical Centre (1996) 39 AILR ¶3203
House v The King (1936) 55 CLR 499
May t/a Little Muppets Child Care Centre v Hedley [2004] WAIRC 10651; (2004) 84 WAIG 224
McCarthy v Sir Charles Gairdner Hospital [2004] WAIRC 11634; (2004) 84 WAIG 1304
Miles v Federated Miscellaneous Workers Union of Australia (1985) 65 WAIG 385
Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677
Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70
Randall v Aristocrat Leisure Ltd [2004] NSWSC 411
Robe River Iron Associates v Australian Workers' Union, WA Branch (1987) 67 WAIG 320
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329
Sangwin v Imogen Pty Ltd [1996] IRCA 100
Schaale v Hoescht Australia Ltd (1993) 47 IR 249
Shire of Esperance v Mouritz (1991) 71 WAIG 891
Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1
Skinner v Broadbent [2006] WASCA 2
The Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch v The Building Management Authority (1993) 73 WAIG 1876
Western Mining Corporation Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1997) 77 WAIG 1079
Winkless v Bell (1986) 66 WAIG 847
Case(s) also cited:
The Construction, Forestry, Mining and Energy Union of Workers v Fieldway Enterprises Pty Ltd (2002) 82 WAIG 873
Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 1 WLR 698
Stead v State Government Insurance Commission (1986) 161 CLR 141
Whelan v City of Joondalup (2004) 84 WAIG 2975
Williams v Printers Trade Services (1984) 7 IR 82

Reasons for Decision
SMITH AP AND BEECH CC:
The appeal
1 This is an appeal instituted by an employer under s 49 of the Industrial Relations Act 1979 (WA) (the Act). The appeal is against the whole of a decision made by the Commission at first instance on 17 October 2011 in matter No U 82 of 2010. The appeal challenges a declaration and an order which has the effect of reinstating the employment relationship of the respondent and the appellant.
2 At the time of the dismissal, the respondent was employed by the appellant as a level 1 mental health nurse at Graylands Hospital. On 28 April 2010, the respondent was dismissed by the appellant with five weeks' payment in lieu of notice. The respondent participated in a salary sacrifice arrangement whereby persons could have a portion of their salary put to one side to enable expenses to be deducted from pre-tax income. The respondent was able to spend salary on restaurant and hotel meals and have the money reimbursed as pre-tax income. The respondent submitted seven receipts for expenses in 2008 to be claimed as pre-tax income which were not expenses incurred by her. At about the same time the seven receipts in question were submitted by seven other employees. The appellant held an investigation into the respondent's claim for expenses (the adequacy of which was challenged by the respondent), and concluded that the respondent had committed acts of serious misconduct by making improper use of the meals entertainment reimbursement process.
3 At all material times, it was not in dispute that the respondent had submitted a claim to the Government Health Services salary sacrifice contractor SmartSalary on 13 July 2008 that contained a claim and receipts from seven restaurants for expenses which had never been incurred by the respondent. The respondent claimed at all material times, she did not knowingly claim that the seven receipts in question were her receipts or that the expenses set out in those receipts had been incurred by her. She claimed they were included in her claim by mistake.
4 After hearing evidence and submissions made by the parties, the Commission at first instance found that the inclusion of the seven receipts as part of a meal reimbursement claim submitted on 13 July 2008 by the respondent was a mistake and did not constitute an act of misconduct. After making this finding the Commissioner made an order declaring that the respondent had been harshly, oppressively and unfairly dismissed on 28 April 2010. The Commissioner also made an order that the respondent be reinstated in her employment to her former position as if her contract of employment had not been terminated on 28 April 2010. Consequent orders were also made reinstating the respondent's accrued entitlements and payment of remuneration lost by the reason of her termination.
Factual background
5 The respondent was employed by the appellant for about 23 years. She was first employed as a ward clerk at Sir Charles Gairdner Hospital and later at Royal Perth Hospital. In 2005, she qualified as a mental health nurse and from that time she was employed as a level 1 mental health nurse at Graylands Hospital until her employment was terminated.
6 In 1998, a salary sacrifice arrangement became available for all employees of the appellant which allowed meal entertainment expenses to be claimed pre-tax. This was an Australian Taxation Office approved salary packaging benefit available to persons who were employed in public hospitals. This scheme enabled employees to pay for their meal expenses with pre-tax dollars. The salary sacrifice scheme which included meal entertainment expenses became available to employees in 2004. Up to 8,000 employees of the appellant signed up to this scheme and claimed meal and entertainment expenses as pre-tax income. To participate in such an arrangement employees of the appellant had to enter into an arrangement with either SmartSalary or Paradigm. However, it was clear from the scheme that employees were required to incur the expenditure. When claim forms were submitted for entertainment expenses, employees were able to photocopy or scan receipts at their place of work and forward such documents electronically to either SmartSalary or Paradigm.
7 In October 2008, two employees who worked at the health corporate network sent by facsimile to SmartSalary claims which had receipts attached. When the two claims were received an employee of SmartSalary observed that both claims contained the same receipts. The SmartSalary employee alerted the appellant of this occurrence and the two employees concerned were interviewed. The employees both claimed that it was common practice for people to share receipts and to submit each other's receipts. The appellant then initiated an audit of meal entertainment expenses of all employees who had claimed more than $10,000 in a particular year. As a result of this investigation a number of irregular claims were revealed and a total of 253 employees of the appellant, including the respondent, faced allegations of improper use of the meals reimbursement system. Of critical importance in this matter, when the respondent's claims were examined the investigators only identified one claim made by the respondent on 13 July 2008 that contained seven receipts which were used by seven other people. The common receipts in the respondent's claim form were receipts for meals at the following premises:
(a) Coco's for an amount of $405.30;
(b) Villa Italia for an amount of $709.60;
(c) Harvest for an amount of $1,297.30;
(d) 7 Spices for an amount of $245.10;
(e) Seven Seas Bar & Restaurant for an amount of $126.80;
(f) Atrium Buffet for an amount of $320.70; and
(g) Last Drop Brewery Restaurant for an amount of $156.20.
8 As the investigation revealed that seven other employees had made claims using these seven receipts, a letter was sent to the respondent from the appellant in January 2010 notifying her of suspected acts of misconduct. The letter stated as follows:
I suspect that you may have committed acts of misconduct in connection with your salary packaging arrangement with your employer, the Minister for Health in his incorporated capacity under s7 of the Hospitals and Health Services Act 1927 (WA) as the board of the Hospitals formerly comprised in the Metropolitan Health Service Board.
In particular it is alleged you have committed acts of misconduct in that:
1. On or about the dates set out in Column 1 of Table 1 (attached), you made improper use of the meal entertainment reimbursement process in that you made a claim where more than one person made a claim using the same receipt or a copy thereof.
It is alleged that each claim made by you listed in Column 1 of Table 1 is a separate act of misconduct.
A copy of each receipt listed in Table 1.
I am hereby providing you with an opportunity to submit an explanation in relation to the suspected acts of misconduct.
Your response to me must be in writing in an envelope marked PRIVATE AND CONFIDENTIAL and must be received at my office at:
Office of the Director General
Department of Health
189 Royal Street
EAST PERTH WA 6004
within 5 working days on receiving this letter.
Having considered any explanation and evidence you may provide, I may then do one of the following:
1. inform you that no further action will be taken;
2. inform you that I propose to take disciplinary action against you and provide you with an opportunity to comment about the proposed action which may include the termination of your employment;
3. inform you that I intend to have the matters further investigated.
9 Attached to the letter was table 1 which set out the dates of claims made by other employees and the particulars of those persons and their claims.
10 On 13 January 2010, the respondent provided to the appellant's representatives the following explanation in a letter:
I strongly deny knowingly or deliberately committing any act of misconduct in connection with my salary packaging arrangement.
I have no knowledge as to how the receipts listed in Table 1 came to be included with the receipts that I submitted on the 13th July 2008 as part of my claim for meals reimbursement.
I have never shared receipts with any of the persons listed on Table 1 or any other person at any time. I do not associate with any of the persons on Table 1. I have never worked with any of the persons on Table 1. This can be verified by the nurse managers at Graylands Hospital.
I obtained a meal entertainment card at the beginning of September 2009. Prior to this I kept receipts for meals I had paid for and were [sic] entitled to claim for under the salary packaging arrangement.
I have on many occasions accumulated a number of receipts over some time before having the time to submit a claim. I have not always dealt with paperwork in a timely manner and at times was so far behind that I made an error of judgement and tried to complete my paperwork whilst on afternoon shift at work. I now realize that this was not the right thing to do and sincerely regret doing so.
My meal receipts were taken to work to be photocopied, sorted and listed and eventually faxed to Smart salary [sic]. This process would sometimes be started without much progress being made due to the demands of the shift. Sometimes it would take several shifts as I may only have a small window of opportunity to begin the processing task. I remember having large amounts of receipts at times as I would eat out several times every week and would just put them in a plastic bag to sort through when I had time.
The amounts on the receipts and the number of receipts varied over time and I did not always pay much attention to the details as I was filling out the paperwork. I remember being focussed on the patients in the ward and it was a very busy ward on most afternoon shifts.
I was not the only staff member to complete salary packaging paperwork on an afternoon shift as a lot of staff does not have access to a photocopier or fax machine outside of work. There were times that more than one person would be sorting through their receipts on afternoon shifts.
I remember having to constantly leave the desk that I had my paperwork spread out on in order to attend to patient's requests, phone call, visitors etc. The ward that I was working on was very busy on afternoon shifts and I was in and out of the office for extended times. I did not have time to pack up my paperwork when a patient came to the office door for immediate attention and would just leave receipts lying around unattended on the desk whilst on the ward. At times on return to the office another staff member would have moved the receipts in order to make a clear work space and I sometimes remember having to try sort out moved paperwork including numbers of individual original receipts. Some of these original receipts had been photocopied in preparation to fax to Smart salary [sic].
I do not recall ever seeing the receipts listed on Table 1 and would certainly never knowingly claim that they were my receipts. The period of time that has lapsed since 13th July 2008 makes it extremely difficult to remember exact details of what might have occurred on the ward whilst I was processing paperwork related to salary packaging.
My paperwork relating to patient care has always been acceptable but I admit that my personal paperwork related to other aspects of my life has been less than satisfactory. It is possible that the receipts listed in Table 1 belonged to another person who was sorting their receipts in the office at the same time that I was processing my receipts. As previously stated there were times that I had returned to the office after seeing to a patient to find that another employee had in my absence cleared the desk of my receipts in order to create a work space. On another afternoon shift when returning to the task I have not clearly checked the paperwork that I had packed away from previous shifts and have unknowingly included the receipts that were not mine when finishing the claim process.
I have now been through all my paperwork and have original receipts for 478 claims, totalling $22,476.81 submitted over the period 4th October 2006 to the 8th May 2009. These are all my receipts for meals that I have paid for and can be produced immediately.
I would like to reimburse any amount that is necessary as a result of this incident and furthermore any financial penalty that you may wish to impose would be paid immediately.
I have had a meal entertainment card since September 2009 and no longer send in receipts in order to claim meal allowance. I am extremely distressed over this incident as I have never and would never knowingly commit any offence. My level of distress is such that I have had to seek medical attention. My job is very important to me and I believe I am a good nurse. The patient's needs were my main priority and this continues to be the case. It was very wrong for me to try and process entertainment claims at work and this is something I very much regret ever doing.
My doctor feels that I am physically and emotionally unwell as a result of the process which began at 1500 hours on the 11th January 2010 and has given me a medical certificate until the 27th January 2010. You can understand the impact on an innocent person who is accused of such misconduct. I have been too unwell to seek out legal advice prior to submitting this letter.
I would welcome any further discussion on this matter should you require to do so but request that this not take place until I am physically and emotionally able to deal with the stress after seeing my doctor on the 27th January 2010.
11 On 18 January 2010, Mr Shayne Sherman, the acting director of corporate governance, sent a memorandum to the appellant containing a brief summary of the respondent's response to the allegations and made a recommendation that the respondent be advised that corporate governance would further investigate: exhibit R9, AB 297.
12 On 19 January 2010, the respondent was sent a letter signed by the appellant in which the respondent was informed: exhibit R10, AB 299:
(a) that having considered the evidence before him including her response, he intended to have the matter further investigated;
(b) the investigation will lead to a finding in relation to the suspected misconduct and may result in him taking disciplinary action, which may include the termination of her employment;
(c) that an investigator would be appointed by the corporate governance directorate to conduct the investigation and she would be contacted after 27 January 2010;
(d) some steps that may be taken in conducting the investigation include interviewing her and any other relevant persons;
(e) examination of records and other documentary material may also occur;
(f) to facilitate the investigation she may be required to attend an interview with the investigator who would contact her in due course to arrange a suitable time and date; and
(g) she was able to attend this meeting with a representative capable of providing her with advice if she wished.
13 After this letter was sent, the appellant's investigator received responses from the other employees who had submitted claims for the same seven expenses. When those responses were received it was evident that the respondent was not mentioned by any of the other employees in their responses. The appellant's investigator formed a view that those responses did not assist in a determination whether or not the respondent's response was true or not. A decision was then made there was no need to interview the respondent because she had already provided her response, had been given an opportunity to provide additional information and there was nothing further to question the respondent about.
14 On 4 March 2010, the director of corporate governance, Mr Shane Wilson, sent a memorandum to the appellant containing a recommendation that the respondent's employment be terminated: exhibit R12, AB 328. In the memorandum, Mr Wilson briefly summarised the respondent's response to the allegation of misconduct and pointed out that between August 2007 and February 2009 the respondent had made similar claims for reimbursement of meals entertainment expenses to her salary packaging provider, SmartSalary, and that 382 receipts had been submitted, totalling just over $20,490. He also pointed out that the respondent in her response had stated that she had retained 478 original receipts which she had submitted between 4 October 2006 and 8 May 2009. However, in a subsequent telephone conversation with the acting principal investigator, Ms Michelle Wakka, on 25 February 2009, the respondent had informed Ms Wakka that she did not have the original receipts for those listed in table 1. Mr Wilson also pointed out in his memorandum that the respondent said in her response that she did not pay any attention to the details of the receipts as she was filling out the claims and did not recall ever seeing the receipts listed in table 1. Mr Wilson then set out an analysis of the 382 receipts that had been submitted by the respondent between August 2007 and February 2009. He stated that 372 receipts were valued at less than $240 and the average value of all receipts was $53.64. However, the receipts which were shared with other employees were valued at $125.80, $156.20, $245.10, $320.70, $405.30, $709.60 and $1,297.30 and that all of these receipts were submitted within the same claim. Mr Wilson then stated:
Ms Drake-Brockman's explanation that she unknowingly included receipts that were not hers is not persuasive given the difference in the average value of receipts she submitted and the values of the receipts that were shared. Further to this, Ms Drake-Brockman advised that she could provide original receipts for most of her claims but not for those which appear in Table 1.
Recommendation
Based on the evidence and Ms Drake-Brockman's explanation, sufficient doubt is raised as to the veracity of the statements made in her response and I recommend that you take steps to terminate her employment.
15 The appellant accepted Mr Wilson's recommendation and caused a letter dated 11 March 2010 to be sent to the respondent notifying her that the finding had been made that she had committed acts of serious misconduct and asking her whether she wished to make a written representation as to whether her employment should be terminated. The letter stated: exhibit R13, AB 331:
I refer to Dr Flett's letter dated 6 January 2010, regarding suspected misconduct and your written response dated 13 January 2010.
Having considered the evidence before me including your response, I find you have committed acts of serious misconduct in that you made improper use of the meals entertainment reimbursement process.
Each claim made by you listed in column 1 of Table 1 (attached) is a separate act of serious misconduct.
I have provisionally determined that as a result of you committing these acts of serious misconduct, the appropriate action is to terminate your employment. Although in cases of serious misconduct it is open to me to terminate your employment without notice, I may also decide to terminate your employment with notice.
Prior to taking this action, I am providing you with an opportunity to make a written representation to me on the proposed termination of your employment, and if I decide to terminate your employment, whether it should be with notice.
16 On 17 March 2010, the respondent wrote to the appellant and advised that she had referred his letter to her union, Australian Nursing Federation (ANF), and she was seeking detailed advice from them and asked that no further action be taken until the ANF had had an opportunity to respond on her behalf. She also said in her letter that:
(a) she was of the view that she had been denied procedural fairness as she was not given an opportunity to respond to the information provided to him by the appellant which she understood included a recommendation as to her alleged misconduct;
(b) she was surprised to receive this letter because she had been advised in his letter dated 19 January 2010 that an investigator was to be appointed by the corporate governance directorate to conduct an investigation and that she would be contacted after 27 January 2010;
(c) as the investigation had not occurred she had been denied procedural fairness: exhibit R14, AB 335.
17 On 18 March 2010, Mr Noel Stone, a senior human resource consultant with the corporate governance directorate, sent a letter to the respondent. In the letter, Mr Stone stated that her request for an extension of time had been refused and that if she was to make a response it was due on Monday, 22 March 2010; exhibit R15, AB 336.
18 On 22 March 2010, solicitors from DLA Phillips Fox, acting for the respondent, wrote to the appellant stating that the respondent did not commit any of the alleged acts of misconduct and had not at any time made improper use of the meals/entertainment reimbursement process. The letter also reiterated the reasons why the respondent was of the opinion she had not been afforded procedural fairness and this was another reason why it would be unwarranted to terminate her employment. The solicitors also stated that the respondent's record as a nurse was impeccable and that she would welcome a full investigation of her alleged misconduct. In conclusion they stated that it was clear that the respondent had been denied procedural fairness and that, if her employment were terminated, it would be unfair not only on procedural grounds but substantively: exhibit R16, AB 337.
19 Despite notice to the respondent that she was denied an extension of time to make a response, a memorandum by Shane Wilson received by the appellant on 28 April 2010, records that on 16 April 2010 Mr Wilson did provide the respondent with an extension of time to provide additional information and that the respondent's counsel provided a response on 20 April 2010: exhibit R17, AB 368. In particular, Mr Wilson's memorandum recorded as follows:
On 16 April 2010 I wrote to Ms Drake-Brockman and informed her that the further investigation into her matter consisted of a detailed examination of the responses from all employees named in Table 1 in conjunction with the evidence obtained during the initial investigation (attached).
Further to this, I advised Ms Drake-Brockman that where an interview or additional information may have been required prior to obtaining the responses from the employees, once the responses were received and examined, further interrogation was not required. I informed Ms Drake-Brockman that if she would like to offer additional information she should do so in writing by COB 20 April 2010.
On 20 April 2010 Ms Drake-Brockman's legal counsel responded stating that her position has always been that she had nothing to do with the people named in Table 1 (attached). If she is not mentioned by the people named in Table 1 then that should be the end of the matter and she should be reinstated and compensated. If these people have mentioned her, she should be provided with the statements made and have an opportunity to respond to whatever has been said about her.
Ms Drake-Brockman's legal counsel advised that she will be more than happy to provide her response to these statements and this constitutes additional information which should be taken into account.
As stated in my previous briefing note, Ms Drake-Brockman's further investigation involved an examination of the responses from the 7 other employees implicated in the same allegations. The examination of the responses did not reveal any issues that required clarification or confirmation and therefore further enquiries with Ms Drake-Brockman were not required.
20 In the memorandum, Mr Wilson also made for the second time, a recommendation to the appellant, that the respondent be dismissed. In particular, he stated:
Based on the evidence and Ms Drake-Brockman's explanation, sufficient doubt is raised as to the veracity of the statements made in her responses and I recommend that you terminate her employment. Should you agree with the recommendation, please find attached draft correspondence to Ms Drake-Brockman for your consideration.
21 The appellant accepted the recommendation and the respondent was dismissed on 28 April 2010: exhibit R18, AB 371.
22 The respondent referred her claim of unfair dismissal to the Commission on 25 May 2010.
23 Following conciliation proceedings in the Commission, the appellant agreed to grant the respondent an interview in relation to the allegations of misconduct. The interview took place on Wednesday, 24 November 2010. The respondent attended the interview with her representative from the ANF, Mr Michael Clancy. The interview was conducted on behalf of the WA Department of Health Corporate Governance Directorate by Ms Desiree Bell and Ms Michelle Wakka. The interview not only canvassed the issues in dispute in this matter, but some unrelated matters. During the interview the respondent was asked to explain why she says she unknowingly included seven receipts belonging to other employees when their values were so much higher than the receipts that she regularly submitted. In response she said: AB 377:
Well, as I explained before it's not a normal work environment where you can concentrate. I wasn't paying attention to the amounts on the receipts because it's a fish bowl office, it was an acute mental health ward, I could have - - you know, could have taken me a few attempts, I don't actually remember. But that happened quite a bit and I don't actually remember even noticing the amounts because I wasn't concentrating on what I was doing, I was concentrating on the patients out the window. It's not a normal environment. You can't explain what an acute mental health unit's like.
24 Other than to raise the conditions of the work environment at Graylands Hospital, the respondent did not raise any other material information at the interview.
25 When the respondent gave evidence before the Commission she said that she did not recall submitting the salary packaging claim to SmartSalary on the day in question. Nor did she recall compiling the claim in dispute. Her evidence was about her usual practice of what occurred when she submitted a claim.
26 The respondent worked in the Ellis Ward of Graylands Hospital for two years. The ward is a locked ward and the patients involuntary. It is an acute early episode ward whose patients display challenging behaviour. The patients are highly disturbed. Their behaviours include jumping on tables, fighting and throwing chairs. Some of the patients are forensic patients who have a history of assaulting staff. The ward office is secure with doors with glass so the patients can be observed at all times. There are monitors located on the office desk so that patients can be observed in a visitor's room or in the doctors' meeting office. The patients cannot enter the office and they bang on the window of the office constantly to attract attention.
27 The respondent gave evidence that she filled out her claim form at work because she never got around to doing her paperwork at home and she needed to use a facsimile and a photocopier. She said preparation of a claim would occur over several shifts as work would become busy and she would have to abandon the process. She also said that she was distracted a lot of the time whilst at work and it was very hard to concentrate on duties in the office because you had to have 'one eye' on the patients. Consequently, it would take a number of occasions to complete a claim.
28 When asked how she would photocopy the receipts when submitting a claim, she said she would either put the receipts face down on the photocopier and that sometimes she arranged the receipts on a piece of paper and photocopied them so they could be faxed. She also said it was her usual practice to retain the original receipt when she made a claim. When asked how the seven receipts came to be on different pages that were copies mixed with receipts that were genuinely hers, the following exchange occurred between her and counsel for the appellant:
Then Harvest down the bottom, not yours?---Yes.
How did they end up on the same page?---Well, because they were obviously photocopied at the same time.
So you must have been using the original Harvest receipt then?---Well, either that or a cut-out photocopy or something.
A cut-out photocopy?---Yes.
But you used original receipts to put your claims in?---Well, if a photocopy is cut out, it's pretty hard to tell sometimes whether they're originals or cut-outs.
Okay. Is that your serious evidence?---What do you mean, is that my - - -
Do you serious ... are you seriously telling the Commission that you couldn't tell the difference between a cut-out piece of paper and a receipt from a restaurant?---No, because if it's - - -
Is that what you ... is that your evidence?---Yes.
And then do you stand by that evidence?---Yes.
Okay. So you're saying that you may have found a cut-out of the Harvest one and then put that on the photocopier with an original from Siena's?---Yes.
Not noticing the difference in texture between the two things?---No, because a lot of receipts are exactly the same paper as the photocopy paper. There's nothing strange in that.
Well, if I put it to you that I have never had that experience, of getting a receipt that is on standard - - -Well, I've got like 400 or something receipts, and if you go through them, sometimes it's very hard to tell which is the photocopy paper and which is the ... which is the normal receipt.
All right?---The paper rolls that they put in receipts are exactly the same paper as this.
29 When asked about the receipts for the restaurant known as Harvest for 21 June 2008 for $1,297.30 and the meal at Viva Italia on 20 June 2008 for $709.60, it was pointed out to the respondent that in a two-day period over $2,000 would have been spent on meals. Given that the respondent's claim was submitted on 13 July 2008, she was then asked whether she would expect to remember on 13 July 2008 that she had spent $2,000 on meals three weeks ago. In response, the respondent simply said she would remember if she was paying attention and concentrating on those amounts. The respondent, however, also agreed when cross-examined that she had paid some attention to completing the claim form as there had been a mistake in the total amount. This mistake caused her to recalculate and make an alteration to the total amount claimed. She also conceded in preparing the claim she followed the following procedure:
(a) She would have put all of the receipts on a piece of paper or put them down flat on the photocopier;
(b) She then would have recorded the information in the receipt to a claim form in a list; and
(c) Then she added the list of receipts up and amended the document and made a recalculation.
30 She also agreed that she would have had to look at each receipt when she had written the amounts down. She conceded that she had looked at the numbers at least twice and then three times, as she had made a recalculation. Except for Siena's, the respondent had never attended the restaurants in question.
31 Prior to the respondent receiving the letter detailing the acts of alleged misconduct, she was asked to attend the nurse manager's office at the beginning of a shift and she was told that something very serious had arisen but she could not be told what the issue was. She was told to go back to work and work her shift. The respondent was very stressed. She did not know what she was to be accused of. She suffered from vomiting and diarrhoea. The following day she received the letter detailing the accusation of misconduct relating to the meal and travel claims. The letter was delivered by courier to her home. When she received the letter she was shocked. She then spent all night going through all of her receipts and found that she did not have any of the receipts in table 1. She said she did not recall seeing them so she had to try and work out what could have happened for them to be there. She expected the matter to be investigated after her response was sent in. She expected questions to be asked of her co-workers as to whether she did her paperwork at work, whether she was busy, whether she spread her paperwork out on the desk and whether other people come along and clear up her paperwork. She says she was a valued employee who had made a mistake and she expected her employer to investigate that mistake and verify what she was saying.
32 During the course of giving evidence, the respondent was asked how the termination had affected her. In response she said it had ruined her reputation and ruined her life. She has two dependent children who live at home whom she supports. After her employment was terminated she earned some money in the private sector as a casual nurse, but she did not earn anywhere near the amount of money she earned whilst employed by the appellant. She said she suffered not just a financial loss, she also lost a job that she loved. She also said she wanted to be reinstated to the Ellis Ward and she was a good mental health nurse in an industry where there is a shortage of mental health nurses.
The reasons of the Commissioner
33 Prior to assessing the evidence before her, the Commissioner made an assessment of the credibility and reliability of the evidence given by the witnesses. In particular the Commissioner found [67], AB 72:
(a) the respondent gave her evidence honestly and to the best of her recollection. She did on occasion refuse to answer questions;
(b) that she had regard for the respondent's conduct in the witness box; and
(c) she did not rely upon the respondent's evidence that the photocopier paper and restaurant till receipts were similar, as that aspect of the respondent's evidence was not credible.
34 The Commissioner went on to find that the dismissal of the respondent by the appellant was summary in nature and that whilst the onus is on the applicant to demonstrate the dismissal was unfair on the balance of probabilities there is an evidential onus upon the employer to prove that summary dismissal is justified. In support of this finding, the Commissioner cited a decision of the Full Bench of the Commission in Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677, 679. The Commissioner also had regard to the observations of Lord James of Hereford in Clouston & Co Ltd v Corry [1906] AC 122 where he observed (129): 'There is no fixed rule of law defining the degree of misconduct which will justify dismissal.'
35 The Commissioner then went on to make findings that:
(a) The respondent expressed remorse in her correspondence to the appellant as she had informed the appellant that she had not dealt with paperwork in a timely manner and had made an error of judgment and tried to complete her paperwork whilst on an afternoon shift at work: [73], AB 73;
(b) As soon as the respondent was made aware of the issues associated with the meal reimbursement claim in question she contacted the Australian Taxation Office and paid back $1,376.92 that was owed: [74], AB 73-74.
36 The Commissioner importantly found that the submission of the receipts in question did not strike at the root of the respondent's contract of employment. Consequently, the Commissioner found that the appellant was not entitled to summarily terminate the employment of the respondent. In making this finding the Commissioner found that the claim was neither a positive nor intentional wrongdoing but was a mistake. This conclusion was reached having regard to a range of factors including: [75], AB 74:
(a) the commencement of the claim form during an overtime shift;
(b) the stressful circumstances on Ellis Ward;
(c) the fact that claim forms were left on the ward overnight;
(d) the admission by the respondent that she was not as careful with her paperwork as she could otherwise have been;
(e) the acceptability by the appellant in allowing meal reimbursement claims to be filled in during working hours;
(f) the appellant allowing employees to use Graylands Hospital's photocopiers and facsimile machines to copy and submit meal reimbursement claim forms to salary sacrifice contractors;
(g) the respondent's length of service with the appellant;
(h) the respondent's expressed remorse (exhibit R8); and
(i) the respondent's repayment of outstanding taxation based on the meal reimbursement claim (13 July 2008) to the Australian Taxation Office.
37 The Commissioner observed that if she was wrong with respect to the factors referred to, that she had had regard to the average claim made by the respondent for reimbursement of meals as pre-tax income between August 2007 and February 2009. She then found the average of the seven claims identified in table 1 of exhibit R6 made on 13 July 2008 to be incongruous to the meal reimbursement claims made as pre-tax income. She also found it was relevant that many of the claims were made in two years subsequent to the claim of 13 July 2008 and of the 382 receipts in total that were submitted by the respondent during this period, each of 372 receipts was valued at less than $240 and the average value of all receipts was $53.64. She then found that the finding made by the appellant's representative, Mr Shayne Sherman, in the internal memorandum dated 24 March 2000 could not be accepted: [77], AB 75. In that memorandum Mr Sherman expressed the opinion that when regard was had to the value of the receipts that were submitted by other employees, sufficient doubt was raised as to the veracity of the respondent's statement and as such it was viewed that an interview would not glean any further relevant information: exhibit R16, AB 339.
38 The Commissioner also found that: [78], AB 75:
(a) The respondent had no knowledge of the claim submitted on the day in question other than the information provided by the appellant that she had worked a double shift on the Ellis Ward: exhibit R23, AB 426.
(b) On the basis of the procedures adopted by employees of the appellant pursuant to the Salary Packaging Services for Employees – Terms and Conditions that the claim submitted by the respondent on 13 July 2008 was a single claim.
39 The Commissioner then went on to find that there had been a breach of procedural fairness on the basis that the appellant had not carried out a sufficient enquiry or investigation into the matter. In making this finding the Commissioner had regard to the principles in Sangwin v Imogen Pty Ltd [1996] IRCA 100 where it was found by the court for a belief to constitute a valid reason for dismissal, an employer must establish that the allegation was investigated as fully as the circumstances permitted: [79], AB 75. In particular, the Commissioner found that there were commitments made to the respondent relating to a further investigation in exhibit R6, AB 259, and exhibit R10, AB 299, and that all that occurred was that the appellant examined the claims made by the respondent between August 2007 and February 2009. Whilst the Commissioner accepted that the language used in the correspondence, in particular exhibit R10, was not mandatory, it nevertheless reflected that a wide-ranging investigation was to occur: [81], AB 77. The Commissioner found that the respondent was provided with the allegation by the appellant and given an opportunity to respond but she was repeatedly denied an opportunity for an interview which was something the appellant had undertaken would occur. The Commissioner then had regard to the requirements of procedural fairness in conducting an investigation as set out in BiLo Pty Ltd v Hooper (1992) 53 IR 224, 229 where it was held by the Industrial Commission of South Australia that there should be a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.
40 The Commissioner found that the investigation was not as thorough as was realistic in the circumstances particularly given the commitments made to the respondent in the letter from the appellant in exhibit R6, AB 259, relating to the options that could have been taken by the appellant. In particular, the Commissioner found that at no stage prior to termination of the respondent was she provided with a further investigation and at no stage were interviews conducted with any other person. Although the Commissioner found that further investigation was undertaken post dismissal following a request by the ANF on behalf of the respondent that that investigation and interview that was conducted with the respondent on 25 November 2010 was inconsequential in terms of procedural fairness: [86], AB 79.
41 The Commissioner then went on to say at [88], AB 79:
Whether the respondent took into account extenuating circumstances is a relevant matter particularly given the long service the applicant had had with the respondent. The Commission finds the respondent in this respect provided an additional week's notice to the applicant on termination (five weeks) based on her length of service. The Commission finds that at no other stage did the respondent take into consideration the applicant's record of some 23 years without any disciplinary action. The Commission finds that respondent had insufficient regard for extenuating circumstances when reaching a decision about the applicant.
42 Finally, the Commissioner set out what she regarded as the obligations of the Commission when making an assessment as to whether the dismissal was unfair. At [92], AB 80, the Commissioner held:
The test for determining whether a dismissal is unfair or not in this Commission is well settled. Whether the employer acted harshly, unfairly or oppressively so as to amount to an abuse of the right of an employer to dismiss an employee is to be found in the decision of the Industrial Appeal Court in Miles v Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous WA Branch (1985) 65 WAIG 385. The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair. The principal issue for the applicant in her submissions was that at no stage was she accorded procedural fairness.
43 The Commissioner then found that the respondent was unfairly dismissed.
The grounds of appeal
44 The grounds of appeal are lengthy and to an extent overlap. They, however, collectively raise four matters:
(a) In ground 1 of the appeal, the appellant argues the Commissioner erred in not confining her enquiry to the reasonableness of the appellant's actions in dismissing the respondent and substituted her own opinion for that of the appellant as to whether misconduct occurred.
(b) Ground 2 raises the question whether the Commissioner erred in law and in fact, in finding that the respondent mistakenly claimed the expenses in question and that the respondent had not committed misconduct.
(c) Ground 7 raises the issue whether dismissal was a penalty within the reasonable bounds of the appellant's discretion. As ground 7 overlaps with ground 2, we propose to deal with ground 7 with ground 2.
(d) Grounds 3 and 4 raise issues going to the Commissioner's finding that the dismissal of the respondent was procedurally unfair. In ground 3, the appellant argues the Commissioner erred in fact and in law in finding that the investigation was flawed. Relying on the particulars to ground 3, in ground 4, the appellant argues the Commissioner erred in law and in fact in finding that the appellant did not accord the respondent procedural fairness. Grounds 5 and 6 raise the issue that the Commissioner made no findings as to how the inadequacies identified in the investigation led to any unfairness or prejudice to the respondent.
Ground 1 – scope of the enquiry before the Commissioner – the appellant's onus of proof
45 The appellant placed considerable emphasis on ground 1 of the appeal during submissions. In essence, the ground alleges that the appellant dismissed the respondent because he honestly and reasonably believed, and had reasonable grounds for believing on the information available at the time of dismissal, that the respondent was guilty of deliberately including false information in her claim form, that is, including expenses in the claim form which she had not incurred. The appellant submits that the Commissioner at first instance placed herself in the position of the employer and substituted her own opinion by finding that 'the claim was neither a positive nor intentional wrongdoing' and that 'what occurred on the day in question was a mistake': [75], AB 74.
46 In order to give proper consideration to the ground of appeal, it is helpful to review the law applicable in a case where the claim is that the employee has been unfairly dismissed. The matter was referred to the Commission under s 29(1)(b)(i) of the Act which allows a person to refer to the Commission a claim that he has been harshly, oppressively or unfairly dismissed from his employment. The essential task before the Commissioner therefore was not to confine her inquiry to the reasonableness of the appellant's actions in dismissing the respondent as the appellant submits in ground 1. Rather, it was to decide whether the decision to dismiss the respondent was harsh, oppressive or unfair: Miles v Federated Miscellaneous Workers Union of Australia (1985) 65 WAIG 385 (Undercliffe), 387 (Brinsden J); Amalgamated Metal Workers & Shipwrights Union v Robe River Iron Associates (1989) 69 WAIG 985, 987; see too Gordon v Commissioner of Police [2011] WASCA 168 [28] in relation to the essential question in relation to the removal of members of the police force.
47 This task was recognised by the Commissioner in the first instance at [92], AB 80, when she noted that 'the Commission is obliged to assess whether in all of the circumstances the dismissal was unfair'. The Commissioner also recognised that the onus was on the respondent to establish that the dismissal was, in all of the circumstances, unfair. The ultimate conclusion of the Commissioner is found in the next paragraph, [93], AB 80:
Having regard to the matters raised by the parties the Commission concludes that the applicant was unfairly dismissed by the respondent.
48 The Commissioner did not there identify the matters raised by the parties to which she was referring.
49 Criteria that governs the evidentiary onus on an employer was considered by the Industrial Commission of South Australia in BiLo wherein the Commission observed (229) – (230):
An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.
If a fact or facts come to light subsequent to the dismissal which cast a different light on the Commission of the alleged misconduct, such fact or facts will not necessarily or automatically render the dismissal harsh, unjust or unreasonable. In our view in such circumstances what will need to be considered is whether the employer, if it had acted reasonably and with all due diligence, could have ascertained those facts before the dismissal occurred.
The Commission is required to objectively assess the subjective actions and beliefs of the employer as at the time of dismissal and not at some subsequent time: see Gregory v Philip Morris (1998) 24 IR 397 at 413; 80 ALR 455 at 471; see also Stearnes v Myer SA Stores Print No 9A/1973 at 5. Whether the employer will satisfy that objective test will depend upon the facts of each case. The gravity of the alleged offence will dictate the nature and extent of the inquiry which the employer must conduct. An employer must ensure that an employee is given as detailed particulars of the allegations against him/her as is possible, an opportunity to be heard in respect of such allegations, and a chance to bring forward any witnesses he/she may wish to answer those allegations.
50 The appellant says these observations outline the task to be undertaken by the Commission when considering the evidence in an unfair dismissal matter. This passage has been adopted and applied by the Full Bench of this Commission in Western Mining Corporation Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1997) 77 WAIG 1079, 1084 and in many other decisions of the Commission.
51 The appellant argues that rather than analysing whether it was reasonable for the appellant to find that the respondent had committed an act or acts of misconduct, the Commissioner started from 'scratch' and placed herself in the position of the employer and gave her opinion as to whether the respondent was guilty of deliberately including false information in her claim form or did so by way of mistake. Consequently, it is said ultimately she substituted her opinion that the addition of the seven receipts had occurred by mistake rather than deliberately.
52 The appellant says that insofar as the Commissioner did not analyse the case in relation to what the appellant honestly and reasonably believed, and whether there were reasonable grounds for that belief, and instead substituted her own opinion that there had been a mistake, the Commissioner 'acted upon a wrong principle' and therefore erred in the exercise of her discretion: House v The King (1936) 55 CLR 499, 505.
53 Counsel for the respondent points out that the decision of the Full Bench in Newmont sets out a stricter onus on an employer than the onus applied in BiLo. It is a decision which stands without being overturned and it too is often cited in decisions made by this Commission. The test set out in Newmont is different in one respect to the test in BiLo. In reasons given by the Full Bench, O'Dea P in Newmont stated (679):
At this point it is convenient to recall that in cases of this kind the question to be investigated by the Commissioner is not a question as to the respective legal rights of the employer and employee but whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right. (Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service & Miscellaneous WA Branch 65 WAIG 385 (The Undercliffe Nursing Home Case)). The termination was exercised in the present case by notice of summary dismissal in such a case there is an obligation upon the employer to show on balance that the misconduct had in fact occurred. That obligation may conveniently be regarded as an evidentiary onus, as distinct from the obligation which remains with the party who alleges that there has been oppression injustice or unfair dealing on the part of the employer towards the employee.
54 However, O'Dea P in Newmont also dealt with the question of reasonableness of the employer's action in that decision. His Honour observed (679):
The applicable principles are obvious and beyond question but it remains to determine whether in the present circumstances there was a proper evaluation of the fairness of the employer's action in terminating employment and that judged according to an objective standard of whether the employer has acted reasonably.
55 Whilst in BiLo and Newmont the tests posed require an assessment of the circumstances of the conduct which is said to be the basis of a dismissal to be undertaken objectively as to whether an employer has acted reasonably in making a decision to dismiss, in Newmont the evidentiary onus is said to be on the employer to show on balance that misconduct had in fact occurred. If BiLo is applied it is not necessary for the employer to prove the misconduct only to prove that the employer honestly and genuinely believed, and had reasonable grounds for believing on the information available at the time the decision was made, that the employee was guilty of the misconduct alleged.
56 Importantly, BiLo deals with the test to be applied where the misconduct alleged is theft, other acts of dishonesty or matters where the gravity of an offence is such that damage can be done to an employer's business. In such a case the Commission should only intervene where it is necessary to protect an employee against a harsh, oppressive or unfair exercise of an employer's right of dismissal. In BiLo the Industrial Commission of South Australia made this distinction clear when they said (229):
In a case as the present one where the employee is dismissed for misconduct in respect of dishonest dealing with the employer's property we do not believe it is a correct test to state as did the learned trial judge that the employer must prove, on the balance of probabilities, on the evidence submitted to the Commission, that the employee actually stole the goods, before it will escape a finding that a dismissal based upon such an alleged theft is to be treated as harsh, unjust or unreasonable.
57 The Industrial Commission of South Australia in BiLo also had regard at (230) to the following observations by the Industrial Commission of New South Wales sitting in Court Session in Shop, Distributive & Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1, 2:
Store managements have a responsibility to protect their enterprise from dishonesty in the handling of funds, particularly in circumstances where the enterprise is vulnerable and dishonesty difficult to detect and eliminate. It can be difficult to preserve a balance. We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement.
58 Even when the test in BiLo is applied, it may still be appropriate in some matters for the Commission to draw a conclusion as to whether or not misconduct had occurred. This is a different issue from whether an employer has met an evidentiary onus.
59 In this context, it is also helpful to consider the facts in Sangwin which also dealt with a dismissal on the grounds of dishonesty. Pursuant to s 170DE(1) of the Industrial Relations Act 1988 (Cth) (repealed) employers were prohibited from dismissing an employee unless the employer thought there was a valid reason. In Sangwin, an employee who was employed as an upholsterer had been dismissed for allegedly attempting to steal a tool and a box of fasteners from the employer. Justice von Doussa, after reviewing the evidence, found that the employee was not a party to the alleged attempt to steal. Thus it was found the employee had not committed an act of misconduct. That was not, however, the only important issue for consideration by von Doussa J. When considering whether the employee had been unlawfully terminated his Honour also considered whether the employer had a valid reason for dismissal on grounds that the employer had an honest belief on reasonable grounds after sufficient inquiry, that the employee had been guilty of serious misconduct. When considering this test, von Doussa J relevantly set out circumstances where it is not necessary for a tribunal hearing an unfair dismissal application to make a finding of proof of misconduct. In particular, his Honour observed:
In virtually every situation of termination of employment, hardship to a greater or lesser degree is likely to come to the employee. Often the economic and personal hardship to the employee and to his family will be considerable. But in considering the application of Division 3 of Part VIA of the Act, it must be recognised that its provisions are intended to operate in the practical arena of commercial activity, and that in the endeavour to achieve industrial fairness it is necessary to balance the interests and well being of an individual employee against the interests of the employer, and also to have regard to matters of wider public interest which may be involved. The construction of the Act is not to be considered only from the viewpoint of the employee.
Examples of factual situations that might arise help to elucidate the meaning of 'valid reason' in s 170DE(1). Take a situation where a person is employed as a skilled operator of equipment where human life depends on its proper operation or performance, and the employer receives a report that the operator is suspected of suffering a medical condition that is likely to impair his ability to perform his duties. The employer would be duty bound to ensure human safety. If after sufficient inquiry the suspected diagnosis could not be excluded would not the employer then have a sound and well founded, i.e. 'valid', reason connected with the employee's capacity, or alternatively connected with the operational requirements of the undertaking, establishment or service for terminating the operator's employment (assuming, of course, that there is not some other position reasonably available to which the employer can transfer the employee)? It would be odd if, after dismissal, it was later held that no valid reason existed at the time of dismissal because later events, e.g. the passing of time or a new diagnostic procedure, proved that the operator had not been suffering the suspected medical condition.
An employer of a health worker or child care provider against whom was made an allegation of serious physical abuse that threatened the health and safety of those in that person's care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator's employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?
These are extreme examples based on human safety issues. Other examples based on the serious risk of property damage or monetary loss which might arise if employees against whom serious allegations of a breach of safe operating practices or dishonesty had been made were allowed to continue performing their normal employment duties would pose similar rhetorical questions. Although the examples may not be representative of the risk of harm that could arise in many workplace situations, they lead me to the view that s 170DE(1) should not be construed so as to exclude from the notion of a 'valid reason' an honest belief held on reasonable grounds by the employer, after inquiry of the type envisaged in BiLo Pty Ltd v Hooper, that a state of fact exists which justifies termination of the employment. In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct a valid ground within the meaning of s 170DE(1) exists for terminating the employment of the employee.
Even where such a belief constitutes a 'valid reason', there may nevertheless still be cases where a dismissal based on that belief may be harsh, unjust or unreasonable within the meaning of s 170DE(2). Many considerations of the kind likely in other cases to lead to a finding that a dismissal was harsh, unjust or unreasonable would probably have been excluded in the course of reaching the conclusion that a 'valid reason' existed, but there would be other matters as well to be considered. These would include whether dismissal was disproportionate to the gravity of the believed misconduct on which the employer acted and to the risk of harm to the employer and others had the employee not been dismissed; the gravity of the personal and economic consequences of dismissal on the employee; and any mitigating circumstances such as the length, loyalty and quality of the employee's work record.
60 Considerations going to the interests of both employer and employee are part of the requirement at law, that in assessing whether a dismissal is unfair, the Commission is to have regard to the principle of a fair go all round, that is fairness to the interests of the employer and employee. Pursuant to s 26(1)(c) of the Act, the Commission is also required to have regard to the interests of persons immediately concerned whether directly affected or not and, where appropriate, the interests of the community as a whole.
61 In Newmont the circumstances were different to the factual issues raised in BiLo and Sangwin. No issue of personal safety, protection of an enterprise from dishonesty or any issue going to the public interest was raised. What was alleged in Newmont was that the employee had been dismissed as he had used abusive language on two occasions. There were also allegations of poor work performance and an allegation of an inability to follow reasonable directions. In such a matter the Commission would inevitably be bound to make an assessment as to whether the conduct which was alleged to have occurred was misconduct, as unless such conduct is proven, it would most likely follow that termination by an employer could not be said to be justified.
62 In this matter, as the factual circumstances relied upon by the employer raise an issue going to dishonesty, the Commissioner properly referred to BiLo as the setting out the evidentiary onus.
63 In any event, leaving aside the application of BiLo, it is well established that where misconduct is alleged or relied upon there is a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate mitigating circumstances: Garbett v Midland Brick [2003] WASCA 36 [72]; (2003) 83 WAIG 893, 901.
64 In Garbett Hasluck J observed that Franklyn J in Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98 had drawn upon the reasoning in Robe River Iron Associates v Australian Workers' Union, WA Branch (1987) 67 WAIG 320 when assessing whether a dismissal was unfair. Hasluck J relevantly observed that Franklyn J [31]:
[H]eld that a decision on the question of whether a dismissal was unfair is a discretionary decision because a value judgment is required to be made as to whether the conduct which gave rise to the dismissal, viewed in all of its circumstances, justified the dismissal. However, a finding of misconduct or of redundancy, which gives rise to a legal right to dismiss an employee, is not the subject of a discretionary judgment. A finding as to misconduct or redundancy is a conclusion of fact. The exercise of discretion arises only at the next step, that is to say, in determining whether the consequence of the misconduct or redundancy is fairly that of dismissal.
65 What emerges from these cases is that findings of fact must be made by the Commission as to what was the conduct which gave rise to the dismissal, what are the circumstances of that conduct and in making an assessment, regard should be had to the evidentiary onus on the employer.
66 The evidentiary onus has been described as an evidentiary burden: Winkless v Bell (1986) 66 WAIG 847, 848; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70, 84; Franklins Ltd v Webb (1996) 72 IR 257, 260. The employer does not have to establish that the employee was actually guilty of the misconduct alleged, rather it must show that following a proper inquiry there were 'reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal': BiLo and see too Western Mining Corporation Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1084); The Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch v The Building Management Authority (1993) 73 WAIG 1876, 1877 per Fielding C. In Shire of Esperance v Mouritz (1991) 71 WAIG 891 Kennedy J stated (895):
[I]t appears that the Full Bench misunderstood the nature of an evidential burden when it referred to the evidential burden being upon the employer to establish that summary dismissal for misconduct was justified. An evidential burden does not require the person upon whom it lies to establish anything. It imposes only an obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue.
67 If the employer establishes its position in this regard the onus then moves to the employee to show that dismissal for that reason was harsh, oppressive or unfair. The Commission should concentrate on the overall effect of the dismissal in its context rather than treating the issue as concluded by the establishment of any breach by the employer of the terms of the contract of employment however inconsequential: Garbett [66].
68 In this matter, the Commissioner recognised the submission of the appellant as to the onus upon it: [57], AB 69. The Commissioner also recognised the onus: [70], AB 73. However, the Commissioner did not further refer to that onus and she made no finding whether or not the appellant had discharged it. That was important in this case and there was an obligation on the Commissioner to make that finding. Her failure to do so was an error.
69 However, we are not convinced that the Commissioner erred by not confining her inquiry to the reasonableness of the appellant's actions, at the time of the dismissal, as an assessment of the reasonableness of the appellant's actions was only part of the task of assessing the circumstances of the conduct of the respondent and the actions of the appellant. This was not the only task she was required to carry out. Firstly, she was required to assess, among other matters, on the evidence before her, which included the sworn and tested evidence of the respondent, whether the appellant had reasonable grounds for believing on the information before it that the respondent deliberately included false information on her claim form. Then she was required to assess whether the dismissal was harsh, oppressive or unfair.
70 We are not convinced that the Commissioner's finding that what occurred on the day in question was a case of the Commissioner placing herself in the position of the appellant at the time of the dismissal and substituting her own opinion for that of the appellant as to whether misconduct had occurred. In reaching a conclusion on whether the decision to dismiss the respondent was harsh, oppressive or unfair the Commissioner was entitled to have regard to the evidence before her which entitled her to assess whether misconduct had occurred.
71 For this ground to succeed, it would have to be shown from the reasons of decision of the Commissioner that her finding that the dismissal was unfair turned solely on the finding that what had occurred was a mistake, rather than deliberate conduct, which meant that the appellant had not discharged its evidentiary onus. This is not the case here. In making a finding that the dismissal was unfair, the Commissioner also had regard to other matters such as the respondent's lengthy unblemished record of employment. Accordingly, the ground is not made out.
Ground 2 – did the Commissioner err in not finding misconduct and ground 7 – the penalty of dismissal
72 Ground 2 raises the issue whether the Commissioner erred in law and in fact in finding that the respondent had not committed misconduct as the respondent had mistakenly claimed the expenses in question rather than intentionally. The basis of this finding relies upon the acceptance by the Commissioner of the credibility of the evidence given by the respondent that the inclusion of the seven receipts was not intentional.
73 Where the Full Bench conducts an appeal, it is to do so by reviewing the evidence and matters raised before the Commission at first instance for itself to ascertain whether an error has occurred. Appeals before a Full Bench are not conducted as a rehearing but are an appeal in the strict sense: Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852. Pursuant to s 49(4)(a) of the Act an appeal is required to be heard and determined on the evidence and matters raised in the proceedings before the Commission. However, s 49(4)(a) does not prohibit a Full Bench from admitting fresh evidence under special or exceptional circumstances: Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040. An appeal by way of rehearing is an appeal where an appellate body can receive evidence and its powers are not restricted to making a decision that should have been made at first instance. However, an appellate body in an appeal by way of rehearing can only intervene if there was error on behalf of the primary decision maker: Coal and Allied Operations Pty Ltd v Full Bench of the Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [12] – [13]. Therefore the task of considering whether an appealable error has been demonstrated in assessing the credit of a witness or witnesses, where no further evidence is sought to be adduced, whether the appeal is by way of rehearing or in the strict sense, is arguably the same. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ considered at some length the duty of an appellate body when assessing the credit of witnesses in an appeal by way of rehearing. What their Honours had to say is of particular relevance to ground 2 of this appeal. At [25] – [29] their Honours said:
25 Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287). In Warren v Coombes (1979)] 142 CLR 531 at 551, the majority of this Court reiterated the rule that:
'[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'
As this Court there said, that approach was 'not only sound in law, but beneficial in ... operation' (Warren v Coombes (1979) 142 CLR 531 at 551. See also Taylor v Johnson (1983) 151 CLR 422 at 426; Jovanovic v Rossi (1985) 58 ALR 519 at 522; cf Moran v McMahon (1985) 3 NSWLR 700 at 715-716, per Priestley JA).
26 After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde (1983) 63 ALJR 349 at 351-352; 85 ALR 23 at 27-28, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
27 The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
28 Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons (See discussion in SRA (1999) 73 ALJR 306 at 321 [61]-[64], 325-331 [81]-[93], 337-338 [132]-[137]; 160 ALR 588 at 606-607, 613-622, 629-630). However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings (eg, Voulis v Kozary (1975) 180 CLR 177; SRA (1999) 73 ALJR 306; 160 ALR 588; cf Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 349-351).
29 That this is so is demonstrated in several recent decisions of this Court (eg, Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at 603 [15]-[16]. See also SRA (1999) 73 ALJR 306; 160 ALR 588). In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' (Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57) or 'contrary to compelling inferences' in the case (Chambers v Jobling (1986) 7 NSWLR 1 at 10). In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
74 The bar for setting aside findings of fact made at first instance is high and not easily met. As Brennan, Gaudron and McHugh JJ observed in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479:
[A] finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact (see Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' (S S Hontestroom v S S Sagaporack [1927] AC 37 at p 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (Brunskill (1985) 59 ALJR at p 844; 62 ALR at p 57).
75 The reasoning in Fox v Percy and Devries has consistently been applied by the Full Bench of this Commission: see May t/a Little Muppets Child Care Centre v Hedley [2004] WAIRC 10651; (2004) 84 WAIG 224, McCarthy v Sir Charles Gairdner Hospital [2004] WAIRC 11634; (2004) 84 WAIG 1304 and Grierson v International Exporters Pty Ltd [2006] WAIRC 05465; (2006) 86 WAIG 2935.
76 Also of importance in making an assessment of the credibility of a witness in all matters that come before the Commission is, that objectively established facts should be relied upon to establish facts and less emphasis should be placed on the assessment of the credibility of a witness or witnesses: Fox v Percy (Gleeson CJ, Gummow and Kirby JJ). In particular their Honours said [31]:
[I]n recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances (See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 73 ALJR 306 at 329 [88]; 160 ALR 588 at 617-618). Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
77 When making findings of fact a decision-maker must consider all of the evidence and not overlook important or critical evidence: Skinner v Broadbent [2006] WASCA 2 [37] (Steytler P).
78 Ground 2 of the appellant's grounds of appeal is effectively cast in the alternative to ground 1. The appellant argues if it was permissible for the Commissioner to decide for herself whether the false claim had been made by mistake or intentionally, or her findings might be construed as being to the effect that the appellant's belief that a false claim had been made intentionally was not reasonable, the Commissioner took into account extraneous or irrelevant matters, did not take into account material considerations and came to an unreasonable or plainly unjust finding and therefore erred in the exercise in her discretion which is an error of law: House v The King (505).
79 The appellant says that the finding by the Commissioner that the respondent was a credible witness seems inherent in the conclusion that the false claim was made by mistake despite the fact that the Commissioner did not cite as a reason in her reasons for decision that she believed the respondent's denial that she had made the false claim deliberately. In relation to the range of factors the Commissioner expressly relied upon at [75] – [78] of her reasons for decision, the appellant properly puts forward the following arguments:
(a) There was no basis for a finding that the claim form was commenced during an overtime shift. The respondent's evidence was that she could not remember when she commenced filling out the claim form but the filling out of a claim form typically took place over several shifts and that she might have commenced filling out the form on 10 July 2008 and not on the overtime shift on 13 July 2008: AB 146, 191 – 192.
(b) Whilst the Commissioner made a finding that the circumstances on the Ellis Ward in which the respondent usually worked was stressful, her evidence that whilst she could remember 13 July 2008, there was nothing unusual about sending off that particular facsimile on that particular day. Nor was there anything about that particular day that made it stand out: AB 151. Even accepting that working on the Ellis Ward could be stressful, the Commissioner did not attempt to explain why on this day the circumstances were such as to cause the respondent to make a mistake that she had never made before whilst completing and sending a claim form while at work. Further, the Commissioner failed to take into account the respondent's own evidence that she could not remember the day in question.
(c) The finding that the claim forms were left on the ward overnight was an irrelevant consideration, as there was no suggestion that somebody else filled out the relevant claim form. The respondent admitted she had completed the claim form in her own writing.
(d) As to the admission by the respondent that she was not as careful with her paperwork as she might otherwise have been, such a finding in isolation in support of a mistake having been made is irrelevant. The factor's relevance may have emerged if the Commissioner had attempted to explain how this led to the mistake having been made. This would require an analysis of the likelihood of seven receipts coming into possession of the respondent at the exact times she was completing her form on 10 July 2008 and 13 July 2008, and then those seven receipts, and only those seven receipts, going out of her possession soon after, with the respondent retaining all of her original receipts. This analysis was not undertaken.
(e) A finding that it was unacceptable to allow meal reimbursement claims to be filled in during working hours is an irrelevant consideration in relation to a finding whether the false claims were submitted deliberately or by mistake. Similarly a finding that Graylands Hospital allowed employees to use the hospital's photocopier and facsimile machines to copy and submit meal reimbursement claim forms to salary sacrifice contractors is also an irrelevant consideration.
(f) The respondent's length of service with the appellant was only a relevant consideration in relation to penalty if misconduct was found.
(g) The fact that the respondent expressed remorse for having made a mistake was not a material consideration in determining which version of events should be accepted.
(h) The fact that the respondent had repaid outstanding taxation on the meal reimbursement claim to the Australian Taxation Office was an irrelevant consideration. The outstanding tax would have had to be paid whether the false claim was made intentionally or by mistake.
(i) Reliance on the size of the claims as evidence of mistake rather than intentional conduct was unreasonable. The size of the claims meant that they were more likely to have stood out to the respondent when completing the claim form and therefore less likely to have been included by way of mistake.
80 Also it is apparent that material evidence was overlooked by the Commissioner or was not regarded as sufficiently relevant. There was, as the appellant points out, significant and critical evidence which supported a finding that the seven receipts had been submitted deliberately rather than by mistake. In particular, the Commissioner failed to take into account the following significant and critical evidence which if properly taken into account by the Commissioner would undermine a finding of mistake:
(a) Work and attention had gone into the documentation. The receipts were organised for photocopying and were analysed. Information was transferred from the receipts to the claim form. This attention to detail required to complete these tasks does not support a finding of mistake and does not support a finding that stressful working conditions distracted the respondent from being conscious that she was including expenses in her claim that she had not incurred. The respondent had completed the form by hand and at some time she paid attention to the claim form: AB 188. She agreed that she had made amendments to the document after initially totalling the figures and had regard to the figures, including the false figures, three times: AB 190. She also had regard to the figures a fourth time, that being when she first handwrote them on the claim form.
(b) The recency of the dates of the claimed meals for which the respondent incurred the expenses was particularly material. The form was submitted on 13 July 2008. The false claims related to meals on 3 May 2008, 27 May 2008, 2 June 2008, 5 June 2008, 10 June 2008, 20 June 2008 and 21 June 2008. The two largest receipts being $709.60 and $1,297.30 related to receipts on consecutive days just three weeks before the claim was made. The recency of these dates and the likelihood of the respondent not noticing that those expenses had not been incurred by her should have been dealt with by the Commissioner in assessing whether a mistake had been made. This is particularly so given that the respondent had only visited one of the seven restaurants in question.
(c) Inherent in the Commissioner's findings that the inclusion of the seven receipts was by mistake was an acceptance of the respondent's contention that the seven receipts in question had become mixed up with her own receipts. Acceptance of this proposition would also require acceptance of the evidence that only those seven receipts had later been separated out from the pool of receipts as the respondent retained all of her receipts but not those seven. Such a finding could not be made as the respondent's genuine receipts were copied on pages with the receipts that were not hers. To separate the receipts would take some attention to detail. When regard is had to the claim form that was submitted by the respondent it can be seen that the receipts from which the respondent did incur the expense and those for which she did not, are mixed together in the way that they were photocopied and presented.
(d) One important aspect of the respondent's evidence to which the Commissioner did not have regard, is that when one looks at the photocopied receipts which are attached to the claim form, each of the seven copied receipts appear on pages with her own receipts which were genuine claims made by her. Those seven receipts are not together on their own pages. Also of crucial importance is that the Commissioner did not deal with how likely it was that the receipts in question had in fact become mixed up with the respondent's own receipts. In particular, the Commissioner failed to consider, if she accepted the chaotic administration and the chaotic conditions that exist in a locked mental health ward, how likely it was that the seven receipts in question, and only those seven receipts, would have been extracted from the respondent's receipts which she retained once they had become mixed in with the respondent's receipts as they each appeared on the same pages as the genuinely claimed receipts.
81 The apparent implausibility of the seven receipts being included with the respondent's own receipts by mistake in this context formed a critical part of the appellant's decision that the respondent's claim including those receipts had been submitted deliberately rather than by mistake. This conclusion was fundamental to the appellant's decision to dismiss the respondent for serious misconduct. The respondent's evidence that the seven receipts were included by mistake should have been considered in the light of her evidence that she had no independent recollection of compiling the claim in question. Significantly, the import of this evidence was also not analysed by the Commissioner.
82 In addition, as set out above, in making her decision that the respondent had not committed an act of misconduct the Commissioner took into account irrelevant and extraneous matters such as the respondent's remorse, repayment of tax and the respondent's length of service.
83 The Commissioner's errors meant that she failed to take into account critical and important evidence and relevant considerations and took into account irrelevant considerations as that is referred to in House v The King. Accordingly, in our view ground 2 of the appeal is made out.
84 However, it does not necessarily follow that the Commissioner's ultimate conclusion at [93], AB 80, that the dismissal was unfair and was not open to her. Even if the Commissioner had concluded that the respondent had submitted the claim form intentionally and thus had engaged in misconduct, it was still open on the evidence before her to reach the conclusion that dismissal for that conduct was harsh, oppressive or unfair.
85 Once findings are made by the Commission as to the circumstances of the conduct which is said to warrant the dismissal, the next step is to make an assessment of whether a dismissal is harsh, oppressive or unfair. EM Heenan J in Garbett relevantly observed [72] – [73]:
Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances. Factors such as these going to the reasons for the particular dismissal are frequently referred to in the authorities in this area as matters of 'substantive' fairness, as opposed to issues of 'procedural' fairness which relate to the manner in which the employee was notified of the proposed termination, what opportunity, if any, he or she was given to respond and the time and method employed in effecting the termination. This distinction between substantive and procedural issues going to the question of whether or not a particular dismissal was harsh, oppressive or unfair can be useful in certain cases but it entails the danger of regarding the statutory test as having separate application and different meanings in different contexts. Such an approach must be rejected because, however the issue may arise, the decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss. For a criticism of how the distinction between procedure and substance in this area is elusive and how it may be unhelpful and contrary to the true meaning of the statutory phrase, see McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 465.
In this State a test which has been adopted by the Commission, and approved by this Court, is to consider whether the dismissal amounted to an abuse of an employer's right to dismiss thus rendering the dismissal harsh or oppressive - Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635; Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385, IAC and Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104, IAC. In cases where the alleged harsh, oppressive or unfair nature of the dismissal relates to the procedure followed by the employer in effecting the termination of employment it has been held in this State that a failure to adopt a fair procedure by the employee can lead to a finding that the dismissal was harsh, oppressive or unfair - Bogunovich v Bayside Western Australia Pty Ltd (supra), but a lack of procedural fairness may not automatically have this result - Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 IAC.
86 In the course of deciding whether the dismissal was harsh, oppressive or unfair the Commissioner was obliged to consider whether the behaviour of the respondent gave rise to a right of dismissal. When considering the actions of the respondent the Commissioner was required to consider whether, in substance, the respondent had repudiated her obligations under her specific contract of employment. When the matter was heard it was conceded that the dismissal was summary: AB 213. This concession was, in our opinion, correctly made. The respondent was given notice that her employment was terminated on 28 April 2010 in a letter bearing the same date. Whilst the respondent was paid five weeks' pay in lieu of notice, the act of termination of the contract remained summary. A summary termination is a termination that takes effect without proper notice. When there is no condition in a contract of employment for payment in lieu of notice, unless the parties have agreed to the contract being terminated for payment in lieu of notice, an employer will be in breach of the contract if the employer does not give the employee the required notice of termination: Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 [16].
87 In Randall v Aristocrat Leisure Ltd [2004] NSWSC 411, Einstein J set out the following useful summary of relevant principles of contract construction that should be applied when considering behaviour that is said to justify summary dismissal [448] – [449]:
· Since the progressive repeal of the cognate Masters and Servants Acts in the late nineteenth century, the common law has posited the employment relationship as, at least in form, merely a species of commercial exchange governed by general principles of contract law. Consistency with this conception demands that the question of whether conduct justifying summary dismissal has occurred be determined by reference to the ordinary principles regarding the repudiation of contracts. In an early exposition of such an approach, Blackburn J in Bettini v Gye (1876) 1 QBD 183 at 188 posited as concerning whether the breach in question was of a term:
going to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different from what the defendant has stipulated for.
· As explained by M.R Freeland in his 1976 work The Contract of Employment (Clarendon Press, Oxford), to approach summary dismissal from a general contractual rather than sui generis employment perspective is significant, given that the former eschews a myopic focus on the precise nature of the conduct in question in favour of consideration being given to the totality of the relationship between the parties. Of the above Bettini test, the author states at 215–216 that it:
enabled the courts to consider the importance of the breach of contract in the context of the relationship as a whole. It was thus less harsh towards the employee than the rules concerned with 'misconduct, disobedience or neglect'; and it was much closer to the general contract principles concerning recission [in terms of a prospective termination] for breach of contract or in response to repudiation- so much closer indeed that Lord James in Clouston & Co Ltd v Corry was able [at 129] to combine the test of 'incompatibility' with that of breach of condition and to state that 'misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.
Commensurate with this reasoning, Freeland concludes (at 219) that it would be 'retrograde' to confine the analysis to those accepted grounds of summary dismissal detailed above without further asking whether, in substance, the employee has repudiated his or her obligations under his or her specific contract of employment.
· The above test propounded in Bettini and favoured by Freeland is presently the correct approach, in that to stand as a justifiable ground of summary dismissal the conduct of the employee must 'constitute a repudiation of the contract or one of its essential conditions': Bruce v AWB Ltd (2000) 100 IR 129 (FCA) at 140, per Sundberg J. Similarly for Harman LJ in Pepper v Webb [1969] 1 WLR 514 at 517: 'Now what will justify an instant dismissal?- something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract.'
· In Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, the appellant was summarily dismissed after she left the office of the managing director against the latter's express instructions. In a passage critical for the purposes of present discussion, Lord Evershed MR said (at 287):
Since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. [Emphasis added]
Accordingly, it was held that the single instance of disobedience alleged fell well short of conduct repudiatory of such essential conditions of service.
· Hence at common law a right of summary dismissal will only accrue to an employer in situations wherein the conduct of the employee has been so inconsistent with his or her specific conditions of service that it has become impossible for the relationship to continue upon its former bases. Such impossibility would arise if the employee's conduct has destroyed all the necessary confidence subsisting between the parties to an employment relationship, where the essential conditions of service have been disregarded or where an intention no longer to be bound has been objectively evinced.
449 To my mind both in terms of determining at common law whether or not the conduct of an employee is to be regarded as repudiatory or not such as to justify summary dismissal, as well as in terms of endeavouring to assess whether or not misbehaviour or breach of duty as used in cl 5.1 (a) which here requires construction and application, the following considerations remain of particular significance:
· Emphasis on the whole of the relationship: As noted above, the most important consequence of the modern shift towards the application of general principles of contract law to the summary dismissal context is that the conduct of the employee must be viewed in the context of the employment relationship as a whole. Rather than merely quantify the 'seriousness' or otherwise of the misconduct, the question must be considered in light of the employee's length of service, their demonstrated ability and their standards of prior conduct. Thus in Sheldrick v WT Partnership (Aust) Pty Ltd & Ors (1998) 89 IR 206 (FCA), an engineer employed by the respondent broke into a colleagues office by removing a pane of glass and inspected confidential memoranda in the course of an ongoing dispute as to management structures. While Einfeld J was of no compunction (at 235) in deeming such behaviour 'thoughtless, immature and unwise', it was 'certainly not grounds for the summary dismissal of a dedicated, loyal and longstanding employee who had proved his commitment to his employer by relocating to Asia from Australia with his entire family and agreeing to remain there for a significant period.'
· Approach when misconduct isolated: There are authorities suggesting that the 'contract of employment cannot be brought to an end by a single act of misconduct unless such single act of misconduct is of such aggravated character that it strikes the employment contract down immediately, completely and permanently': Elcom v Electrical Trades Union of Australia, New South Wales Branch (1983) 5 IR 267 (NSW Industrial Commission) at 270, per Macken J. My own view is that no such rule of thumb exists. I note however that in Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shroff [1937] 3 All ER 67, and in consideration of the fact that 'the immediate dismissal of an employee was seen as a strong measure', Lord Maugham stated (at 73–4) that:
it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence.
· Motives of the employee relevant: Commensurate with the position that it will ordinarily be necessary to demonstrate that the employee has intended to repudiate his or her obligations under the contract of employment, the motives laying behind the conduct in question will be of relevance. Thus in Blyth Chemicals, it was stated by Dixon and McTiernan JJ (at 82) that 'the effect to be given to all the acts combined, which have been established against the respondent, must in the end be governed by an estimate of his honesty and motives.' (See also Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 at 358, per Cotton LJ. Specifically, it will ordinarily be fatal for an employee to have acted contrary to the interests of the employer for his or her own personal pecuniary gain, given that such actions are inherently repugnant to the former remaining in a relationship of personal service with the latter.
88 There is no universal or exhaustive list of circumstances of which may constitute harsh, oppressive or unfair dismissal. However, where dishonesty is alleged, such conduct usually falls with the class of conduct which is destructive of mutual trust between an employer and employee that will inevitably result in dismissal. In Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693; (2000) 103 IR 160 Kirby J said [51]4:
It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily (Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 72-73). Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability (Printing Industry Employees Union of Australia v Jackson & O'Sullivan Pty Ltd (1957) 1 FLR 175), it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment (Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 82). Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer (see Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 at 364). Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer (such as a single act in no way affecting an employer's business, eg an isolated instance of intoxication in festive circumstances as distinct from conduct interfering in the ability to render due service: Clouston & Co Ltd v Corry [1906] AC 122 at 129 (PC). See also Griffin v London Bank of Australia Ltd (1919) 19 SR (NSW) 154 at 160-161; Gordon & Gotch (Australasia) Ltd v Cox (1923) 31 CLR 370). But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal (In re Rubel Bronze and Metal Co Ltd and Vos [1918] 1 KB 315 at 320-321; Adami v Maison De Luxe Ltd (1924) 35 CLR 143 at 151, 155; Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 370, 372-373; Orr v The University of Tasmania (1957) 100 CLR 526 at 531).
89 As Hasluck J in BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191; (2002) 82 WAIG 2013 observed [22]:
The reasoning of Kirby J in Concut Pty Ltd v Worrell (supra) makes it clear that acts of dishonesty which are destructive of mutual trust ordinarily fall within the class of conduct which, without more, authorises summary dismissal. He allowed that an exception to this general position may exist for trivial breaches.
90 In Phippard a senior manager was dismissed for several acts of dishonesty involving the making of expense claims which were found by the Commission to be minor in that the sums involved were not large. The Commission at first instance found that the employee's carelessness and minor dishonesty was not enough to warrant summary dismissal. Hasluck J (with whom Anderson PJ and Parker J agreed) allowed the employer's appeal and found that as the employee occupied a senior managerial position, and could reasonably be expected to set an impeccable example in regard to such claims, that the rule in the reasoning of Kirby J should be applied rather than the exception.
91 Some of the matters the Commissioner took into account when deciding whether the respondent's actions constituted misconduct were irrelevant to that issue but were relevant to the question whether the respondent had been harshly, oppressively or unfairly dismissed. In doing so, the Commissioner jumbled together the separate steps of firstly determining whether misconduct had occurred and the consideration of whether in all the circumstances dismissal for this misconduct was harsh, oppressive or unfair. However, this is not a case where the decision of the Commissioner that the dismissal of the respondent was unfair turned only upon a consideration whether or not she had submitted the claim form deliberately or as a mistake.
92 The Commissioner had evidence before her from which it was open to her to conclude, as she did:
(a) The respondent had 23 years' service with the appellant;
(b) The respondent had no history or record of any previous disciplinary incidents or misconduct;
(c) The respondent had expressed remorse;
(d) The respondent had repaid the outstanding taxation to the Australian Taxation Office; and
(e) What occurred was a single act of misconduct.
93 It was entirely proper for the Commissioner to take into account the length and quality of the respondent's service. On the evidence before the Commissioner, it would have been open to conclude that what occurred was a single isolated act of misconduct, which could be capable of being characterised as trivial and in one sense irrelevant to her duties as a mental health nurse. Although the submitting of the claim form arose due to her employment and the availability of salary sacrifice arrangements, and although claims were able to be prepared using the appellant's photocopiers and fax machines and even completed whilst the employee was at work, the misconduct was not directly related to the performance of the respondent's work as a mental health nurse.
94 The reason why the conduct could be characterised as trivial was because:
(a) It involved one single incident;
(b) The appellant itself suffered no loss or detriment;
(c) The evidence showed that the respondent's conduct, whilst incorrect, occurred in the context of many employees employed in the Health Department ignoring the rule so much that employees were 'rorting' in all sorts of ways leading to some 253 investigations; and
(d) The respondent was not a senior health professional or otherwise in a position whereby she could have been expected to set an example for others.
95 It is also relevant that submitting one claim form in relation to salary sacrificing hardly indicates an attitude of repudiation of the fundamental terms of her contract of employment as a mental health nurse.
96 Even if the Commissioner had found that the respondent's submitting of the claim form containing those seven receipts was a deliberate act knowingly done, it would have been nevertheless open to her to find that the respondent's dismissal was harsh, oppressive or unfair, as the circumstances of this case warrant the exception to the rule that acts of dishonesty warrant dismissal.
97 For these reasons, we are of the opinion that ground 2 should be upheld and ground 7 has not been made out.
Grounds 3, 4, 5 and 6 – procedural fairness
98 The Commissioner found in her reasons for decision that the respondent was denied procedural fairness. In her reasons for decision, the Commissioner had regard to a number of documents and procedural steps that were taken by the appellant, in particular the letter in January 2010 to the respondent which set out the particulars of the allegations of misconduct: exhibit R6, AB 259. In that letter, the appellant stated that after having considered any explanation and evidence that the respondent may provide, he then may do one of the following:
1. inform you that no further action will be taken;
2. inform you that I propose to take disciplinary action against you and provide you with an opportunity to comment about the proposed action which may include the termination of your employment;
3. inform you that I intend to have the matters further investigated.
99 After the respondent had provided her response in writing, the appellant sent a letter dated 19 January 2010 to the respondent in which the respondent was informed: exhibit R10, AB 299:
Having considered the evidence before me including your response, I intend to have the matters further investigated.
The investigation will lead to a finding in relation to the suspected misconduct and may result in me taking disciplinary action, which may include the termination of your employment.
An investigator is to be appointed by the Corporate Governance Directorate to conduct the investigation and you will be contacted after 27 January 2010.
Some steps that may be taken in conducting the investigation include interviewing you and any other relevant persons. Examination of records and other documentary material may also occur. To facilitate the investigation you may be required to attend an interview with the investigator who will contact you in due to [sic] course to arrange a suitable time and date. You are able to attend this meeting with a representative capable of providing you with advice, if you wish.
100 In fact no interviews were held with the respondent or any other witnesses. All that occurred was that the appellant's representatives examined the respondent's response and through the investigations of other employees ascertained that the seven other employees who had presented the seven receipts in contention in reimbursement claims, had failed to raise any information about the respondent. In light of these enquiries, the appellant decided it was not necessary to interview the respondent.
101 The Commissioner in her reasons for decision found that although the correspondence in exhibit R10 was not of a mandatory nature, the correspondence nevertheless reflected a wide ranging investigation was to occur. The Commissioner also found that the respondent was repeatedly denied the opportunity for an interview which was something the appellant had undertaken would occur. The Commissioner then made an assessment as to whether these 'shortcomings' amounted to a breach of procedural fairness. After having regard to the observations of the Industrial Commission of South Australia in BiLo, the Commissioner then determined that the questions for the Commission to consider relating to the investigation conducted by the appellant into the alleged misconduct were as follows [82], AB 77:
whether the investigation as wide-ranging as was realistic in the situation;
whether the applicant was given sufficient opportunity to reply to all the contentions;
did the respondent (appellant) take into account any extenuating conditions;
were all of the actions by the respondent (appellant) undertaken prior to dismissing the applicant; and
did the respondent (appellant) hold a reasonable belief that the applicant (respondent) was guilty of the allegations.
102 The Commissioner found that the investigation was not as thorough as was realistic in the circumstances, given the commitments given to the respondent relating to the options that may be taken by the appellant. In particular, the Commissioner found that prior to the termination, the respondent was not provided with a further investigation and at no stage were interviews conducted with any other person. The Commissioner also found that the interview that took place post the respondent's dismissal on 17 September 2010 was inconsequential in terms of procedural fairness.
103 In written submissions filed on behalf of the respondent, it is contended that the appellant's representatives should have conducted a further investigation and it was reasonable to expect that the investigation would include the following to ascertain whether the respondent's account was plausible:
(a) visiting the respondent's workplace to see the ward on a typical afternoon shift and the facilities used by the respondent to process her claims;
(b) interviewing the respondent's colleagues and putting to them whether the circumstances described by the respondent were accurate;
(c) interviewing the seven other employees who had used the receipts in question and putting to them whether the circumstances described by the respondent were accurate;
(d) having completed steps (a) to (c) above, interviewing the respondent to test her credibility including putting to her the evidence garnered from taking steps (a) to (c).
104 The respondent's written submissions also put an argument that the written responses received from the other employees who had used the same receipts ought to have prompted the appellant to ask each of the employees who submitted the same seven receipts the following types of questions:
(a) do you know the respondent?
(b) did the respondent ask you to share receipts?
(c) did you offer to share receipts with the respondent?
(d) do you know of anyone else sharing receipts with the respondent?
(e) in your experience, did the common practice of receipt-sharing you have described in your correspondence mean that a receipt or receipts belonging to one person might have inadvertently become mixed up with receipts belonging to another person?
(f) in your experience, did the common practice of receipt-sharing you have described in your correspondence include preparing claims at work during a busy shift?
105 The respondent also argues in her written submissions that if an interview had been conducted with her before her dismissal it would have afforded her the following opportunities which written submissions alone did not provide to:
(a) put her version of events orally which, for many people who are not trained or experienced in expressing themselves in writing, can prove to be more complete or persuasive or both;
(b) enable the interviewer to weigh in the balance the interviewee's demeanour, tone and consistency;
(c) concentrate on, and draw specific attention to, specific issues both interviewer and interviewee regarded as being of particular importance;
(d) enable the respondent to explain in greater detail why, and in what respects, the manner in which she processed and submitted her expenses claims during working hours were of such importance to the appellant's determination of whether the respondent's version of events was plausible.
106 The respondent also contends that when one has regard to the interview that took place on 25 November 2010 it is clear the main purpose of the interview from the appellant's perspective was to put fresh allegations and was not to deal with the allegations for which she was dismissed.
107 The principles enunciated in BiLo and in Sangwin establish that a 'full and extensive investigation' by an employer is to be conducted. Such an investigation is one that entails an investigation of relevant matters surrounding the alleged misconduct that is reasonable in the circumstances. An employer is not required to investigate alleged misconduct 'at large'. What should drive an investigation that meets this duty is the gathering of any information that is available that is centrally relevant to whether the employee in question has engaged in conduct that can be characterised as misconduct.
108 When conducting an investigation, employers are not required to have the skills of police investigators or lawyers, but instead should only be expected to operate in a practical way in a commercial and industrial environment: Schaale v Hoescht Australia Ltd (1993) 47 IR 249, 252; Heard v Monash Medical Centre (1996) 39 AILR ¶3203 and Amin v Burswood Resort Casino (1998) 78 WAIG 2441, 2442.
109 Whilst an employer must ensure that an employee is given detailed particulars of the allegations, an opportunity to be heard in respect of the allegations and an opportunity to bring forward any witnesses he or she may wish to answer, an employer is not bound to investigate every avenue that may be suggested to him or her. An employer is only required to act fairly and reasonably in the circumstances and gather relevant information that is critical to the issue whether the alleged conduct occurred.
110 Except if a departure results in actual unfairness, a decision-maker is not bound by any principle of procedural fairness to adhere to a statement of intention as to the procedure to be followed in an investigation. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, a departmental officer who was considering whether to recommend that Lam's visa be cancelled wrote a letter to Lam requesting contact details for the carer of Lam's children and said he wished to contact the carer to assess the impact that cancellation would have on the children. Lam provided the details but no contact by the department was made with the carer. The High Court held:
(a) When a public authority represents that a particular procedure will be followed that may, but will not necessarily, affect the content of the requirements of procedural fairness;
(b) To establish a breach of procedural fairness it must be demonstrated that the procedure adopted was unfair, not that an expectation engendered by a representation has been disappointed.
111 In particular, Chief Justice Gleeson relevantly observed in Lam [34]:
[It] is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation (see Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 672, per Gaudron J). But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
112 His Honour then said [37]:
A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at 638-639 was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 655, per Deane J; at 665, per Toohey J; at 684; per McHugh J. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
113 The requirement to provide procedural fairness when an employer has instituted disciplinary action is part of the obligation to give an employee a fair go. The questions that should have been addressed by the Commissioner to ascertain whether the process adopted by the appellant was fair are:
(a) Whether the respondent was given an adequate opportunity to answer adverse information that was credible, relevant and significant to the issues whether:
(i) the respondent had committed an act or acts of misconduct; and
(ii) the respondent should be dismissed.
(b) Was the respondent deprived of an opportunity to make representations or to provide material to the appellant that was centrally relevant to the issues raised in (i) and (ii) above.
114 The Commissioner made no findings as to why or how the 'inadequacies' she identified led to any unfairness or prejudice to the respondent. The respondent, however, in her written submissions identified a number of matters what she says led to unfairness to her. Firstly, she contends that if she had been afforded an interview her account could have been perceived by the interviewer as more persuasive and would have enabled her to explain her case in more detail. As the appellant points out, there is no established principle of procedural fairness that requires an employer when investigating any disciplinary matter to interview people or provide an employee with an opportunity of an interview. Nor was an undertaking given that an interview would occur. Whether such a step or steps are required in a particular case depends upon the circumstances. In this matter there was no evidence before the Commissioner that her written explanation did not set out her explanation fully. Nor was there any evidence before the Commissioner that the respondent was unable to properly assess the allegations in writing. This was not an investigation into a disputed event. It was admitted that the claim form submitted by the respondent contained false claims for expenses.
115 When giving evidence before the Commissioner, although the respondent gave evidence about chaotic conditions when working on the Ellis Ward, the respondent did not provide anything of substance that added to her written response. Given that it is clearly apparent to any person who examines the content of the respondent's entertainment expenses claim submitted by her on 13 July 2008 that the respondent would have had to direct her deliberate and conscious attention to each of the receipts attached to the claim, in the absence of any information provided by the respondent that any of her colleagues had any specific knowledge of the making of the claim by the respondent, it would be difficult to find that the respondent's colleagues could provide any centrally relevant information. The same consideration applies to the issue whether the investigators should have visited the respondent's workplace to see the ward on a typical afternoon shift. As the appellant points out in his written submissions, it was never in contest that the Ellis Ward where the respondent worked could be busy, that people filled out meal entertainment expenses claims at work and may have had receipts lying around for that purpose. The central task for the investigator was to obtain credible relevant and significant evidence that addressed whether the respondent had committed an act or acts or misconduct. The appellant's representatives carried out that task and the respondent was given an adequate opportunity to answer all adverse information that was relevant to the allegations of misconduct.
116 Nor can the appellant be criticised for not interviewing the seven other employees who had used the material receipts about the respondent's expense claim. Each of those employees provided a written explanation. As no person implicated the respondent or made any comment about her there was no need to pursue them further.
117 For these reasons, we would uphold grounds 3, 4, 5 and 6 of the appeal.
Conclusion – disposition of the appeal
118 Although we have found that grounds 2, 3, 4, 5 and 6 of the appeal have been made out, we are of the opinion that the appeal should be dismissed as we are of the opinion that if a finding had been made that the conduct in question which constituted misconduct was deliberate and not a mistake, it was nevertheless open for the other reasons the Commissioner gave to find that the dismissal was unfair.
HARRISON C:
119 I have had the benefit of reading a draft of the reasons for decision of the Acting President and the Chief Commissioner. I agree and have nothing to add.