Appeal against a decision of the Commission in Matter No. CR 3 of 2014 given on 1 August 2014

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 01367

DELIVERED : FRIDAY, 19 DECEMBER 2014

FILE NO. : FBA 11 OF 2014

Appellant

AND

Public Transport Authority of Western Australia

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2014] WAIRC 00825; (2014) 94 WAIG 1468

File No. : CR 3 of 2014

CatchWords : Industrial Law (WA) - Appeal against decision of the Commission - A finding of fact in reasons for decision distinguished from a finding  that does not finally decide, determine or dispose of the matter in question within the meaning of the definition of finding in s 7(1) and s 49(2a) of the Industrial Relations Act 1979 - Whether findings of fact were made by the Commission at first instance that employees had conducted themselves dishonestly in an investigation - Turns on own facts and the questions put in issue 3 referred for hearing and determination - Questions put in issue 3 not answered at first instance - Appeal dismissed.

Legislation : Industrial Relations Act 1979 (WA) s 7, s 7(1), s 26(1)(c), s 34(1), s 35, s 36, s 44, s 44(9), s 49, s 49(2), s 49(2a)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr C A Fogliani

Respondent : Mr D J Matthews and with him Ms J E Rhodes

Solicitors:

Appellant : W G McNally Jones Staff

Respondent : State Solicitor's Office

Case(s) referred to in reasons:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000

MWJ v R [2005] HCA 74; (2005) 222 ALR 436

Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371

Registrar v Metals and Engineering Workers' Union of Western Australia (1994) 74 WAIG 1487

Case(s) also cited:

Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241, (2002) 82 WAIG 2845

Devries v Australian National Railways Commission (1993) 177 CLR 472

Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040

Federated Ship Painters and Dockers Union v Adelaide Steamship Co (1960) 94 CAR 579

Fox v Percy (2003) 214 CLR 118

Friessbourg v Valli [2007] WAIRC 01286; (2007) 88 WAIG 10

Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) [2004] WAIRC 10828; (2004) 84 WAIG 694

House v The King (1936) 55 CLR 499

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588

The Civil Service Association of Western Australia Inc v Director General, Department of Housing [2013] WAIRC 01048; (2013) 94 WAIG 560

Reasons for Decision

THE FULL BENCH:

Introduction

1          This is an appeal to the Full Bench pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the Act) against the decision of the Commission in CR 3 of 2014.

2          CR 3 of 2014 was an industrial matter referred for hearing and determination under s 44(9) of the Act after The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the union) made an application for a conference pursuant to s 44 of the Act seeking to resolve an industrial dispute.  The parties were in dispute about a disciplinary process that the Public Transport Authority of Western Australia (the PTA) had initiated which led to a finding of a breach of discipline against one of the members of the union, Ms Janet Vimpany.

3          On 1 August 2014, the Commission issued a decision in the form of an order that the application be and is hereby dismissed:  [2014] WAIRC 00825; (2014) 94 WAIG 1468.  On the same day the Commission issued reasons for decision in CR 3 of 2014:  [2014] WAIRC 00824; (2014) 94 WAIG 1462.

4          The matters referred for hearing and determination, including agreed facts, were set out in a memorandum made by the Commission on 26 March 2014.  Of importance in this appeal, the orders sought by each party were also set out in the memorandum.  The memorandum of matters referred for hearing and determination stated as follows:

1. The Union and the Authority are in dispute over:

(a) Allegations concerning the conduct of the Union's member, Ms Janet Vimpany, and the Authority's Station Coordinator, Mr David Hammon, on the afternoon of 27 April 2013; and

(b) The Authority's implementation of its disciplinary procedures against the Union's member, Ms Janet Vimpany.

Agreed facts

2. The parties agree on the matters detailed in the following paragraphs.

3. On the afternoon of 27 April 2013 between 1500 and 1600 hours, there were two interactions at Perth Railway Station between the Union's member, Ms Janet Vimpany, a Passenger Ticketing Assistant and Mr David Hammon, a Station Coordinator, in the presence of other employees of the Authority.

4. Following the second interaction, Mr Hammon emailed the Authority's Passenger Service Manager Perth, complaining about Ms Vimpany's conduct during their second interaction. Specifically, Mr Hammond [sic] alleged that Ms Vimpany abused his position with threatening behaviour by pointing her finger directly in his face and saying 'do not talk to me like that again and who do you think you are anyway?'

5. A memorandum dated 8 May 2013 sent on behalf of the Authority and received by Ms Vimpany on 10 May 2013 (the Memorandum);

(a) notified Ms Vimpany of allegations that she:

(i) 'Stormed' into the Station Coordinators' office area;

(ii) Shook her finger in Mr Hammon's face from within approximately two feet; and

(iii) Shouted at him in an intimidating and threatening manner; and

(b) required Ms Vimpany to respond with a written statement explaining her actions.

6. Ms Vimpany booked off work on receipt of the Memorandum on 10 May 2013.

7. On 14 May 2013, Ms Vimpany submitted a Health and Safety Incident Report Form (the Form) in which she alleged that:

(a) Mr Hammon was aggressive, threatening and abusive towards her and bullied and harassed her on 27 April 2013;

(b) she felt anxiety, stress and tension headaches as a result of feeling vulnerable and powerless following her interactions with Mr Hammon on 27 April 2013; and

(c) exposure to these mental stress factors, including receipt of the Memorandum, had resulted in psychological injuries.

8. On 17 May 2012, Ms Vimpany responded to the Memorandum stating that the allegations were false and not a true and correct account of what occurred.

9. Ms Vimpany lodged a workers' compensation claim with the Authority in relation to her absence commencing 10 May 2013.

10. On 24 May 2013, a representative of the Union raised a grievance with the Authority's Manager Human Resource Services relating to the conduct of Mr Hammon on 27 April 2013, alleging that Mr Hammon had humiliated, degraded and threatened Ms Vimpany and the Union's other member, Ms Jennifer Blake in delivering an instruction to them aggressively, by yelling and screaming at them in the presence of other staff.

11. On 29 May 2013, the Authority's Acting Manager Human Resource Services recommended that the grievance first be raised with Mr Hammon's Manager.

12. On 7 June 2013, following a meeting with a representative of the Union and Ms Vimpany, the Authority's Acting Manager Human Resource Services discontinued the grievance on the basis that the disciplinary investigation would take into consideration Ms Vimpany's account of the events on 27 April 2013, and on the basis that Ms Vimpany's workers' compensation claim was still pending.

13. On 11 June 2013, Ms Vimpany submitted a revised response to the Memorandum which alleged that:

(a) During their first interaction, Mr Hammon 'stood and glared at us and shouted instructions regarding our finishing time in an aggressive, threatening, intimidating and completely unnecessary manner' such that she had 'never in (her) life been spoken to by a male in such a threatening way'; and

(b) During their second interaction, Mr Hammon reacted once again in a threatening, loud and aggressive manner, becoming agitated and unreasonable and entered her personal space.

14. The allegations against Ms Vimpany were referred to the Authority's Acting Supervisor Customer Service for investigation under cl 2.6 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011 (the Disciplinary Investigation). The Investigator stated in the introduction to his report that 'As both parties lodged allegations of inappropriate conduct, a formal investigation was deemed necessary, as a finding against either party would be considered a breach of the Authority's Code of Conduct and as such, may result in disciplinary action'.

15. An external investigator was also engaged by the Authority's insurer, Riskcover, to investigate Ms Vimpany's workers' compensation claim.

16. On 15 June 2013, Ms Vimpany returned to operational duties.

17. On 28 June 2013, the Union notified the Authority of a dispute under cl 8 of the Agreement contending that TTO management were not sufficiently capable, competent or independent to investigate the allegations between Ms Vimpany and Mr Hammon.

18. On 4 July 2013, the Union agreed to allow the Disciplinary Investigation to proceed.

19. During July 2013, interviews were conducted for the Disciplinary Investigation.

20. During the Disciplinary Investigation, Ms Vimpany stated to the Investigator that during their first interaction:

(a) Mr Hammon seemed angry, and was very loud, abusive and threatening;

(b) Specifically, Mr Hammon said loudly 'where do you think you are going, you are not off till 1600' and when she replied that the boss had said they could go home earlier, he screamed 'I'm the boss now, and you are rostered till 4 and you will stay till 4 so get back out there and don't come back until 4 o'clock'.

21. During the Disciplinary Investigation, Mr Hammon stated to the Investigator that during their second interaction:

(a) He was sitting at his desk within his cubicle and stayed seated throughout;

(b) Ms Vimpany confronted him in a threatening manner; and

(c) Specifically, Ms Vimpany entered his area, leant over and pointed her finger at his face (within approximately 30 cm) and said 'don't ever shout like that to me again. Who do you think you are?'

22. During the Disciplinary Investigation, Ms Vimpany stated to the Investigator that during their second interaction:

(a) She felt verbally abused and threatened by Mr Hammon; and

(b) Specifically, Mr Hammon got up from his chair and stood face to face with her in her personal space and shouted 'I did not scream at you Jan' and then said in a very loud voice 'I suggest you leave Jan, leave now' with his arm outstretched and finger pointed to the door.

23. On 10 September 2013, Ms Vimpany's workers' compensation claim was declined by the Authority's insurer, Riskcover, though Ms Vimpany's wages during her absence have been paid due to the failure to meet the statutory 17 day time limit for notifying the decision as to the response.

24. On 11 September 2013, the Authority provided Ms Vimpany with the report from the Disciplinary Investigation and provided her with an opportunity to respond.

25. On 27 September 2013, Ms Vimpany responded again denying the allegations and alleging that the Disciplinary Investigation process had been a conspiracy.

26. On 17 October 2013, the Authority's General Manager of Transperth Train Operations found the allegations set out in the Memorandum were proved and reprimanded Ms Vimpany accordingly.

27. On 23 September 2013, the Authority's Manager Customer Service, notified Ms Vimpany of, and required a response to allegations that Ms Vimpany knowingly gave a false account of Mr Hammon's actions on the afternoon of 27 April 2013 in support of the conclusion that his behaviour was intimidating and bullying towards her.

28. The Authority's Manager Customer Service has not yet taken further action to pursue these allegations as a disciplinary matter for the purposes of cl 2.6.6 of the Agreement.

Matters referred for hearing and determination

The questions, disputes and disagreements between the parties which are being referred by the Commission under section 44(9) for hearing and determination are as follows:

1. Whether during the first or second interaction between Mr Hammon and Ms Vimpany on 27 April 2013, Mr Hammon:

(a) Conducted himself in an intimidating manner by shouting instructions to Ms Vimpany about her finishing time in an aggressive, loud, abusive, threatening or intimidating manner;

(b) Behaved in an agitated or unreasonable manner, entering her personal space and speaking in a threatening, loud or aggressive manner during the second interaction and yelled or screamed at Ms Vimpany in the company of other staff;

(c) Was aggressive, threatening or abusive towards Ms Vimpany and Ms Blake; or

(d) Bullied, harassed, humiliated, or degraded Ms Vimpany.

2. Whether, during the second interaction between Mr Hammon and Ms Vimpany on 27 April 2013, Ms Vimpany:

(a) Shouted at Mr Hammon;

(b) Leaned over Mr Hammon or shook her finger in his face; and/or

(c) Engaged in threatening or intimidating behaviour towards Mr Hammon in breach of the Authority's code of conduct.

3. Whether, in relation to the events of 27 April 2013, Ms Vimpany, Mr Hammon or any other employee of the Authority conducted themselves dishonestly by:

(a) Initiating an allegation or claim that they knew to be false; or

(b) Giving an account of those events to investigators that they knew to be false.

4. Whether the Authority abused its disciplinary procedures in relation to the events of 27 April 2013, in that the circumstances of the case did not warrant disciplinary action.

Relief sought

1. The Union seeks the following relief:

(a) A declaration that the Authority initiated its disciplinary procedures against Ms Vimpany where the circumstances were inappropriate;

(b) A declaration that the Authority's decision to find Ms Vimpany in breach of discipline was in all of the circumstances harsh and unfair;

(c) An order removing the Final Determination Letter from Ms Vimpany's record;

(d) A declaration that, if the Authority implements further disciplinary action against Ms Vimpany in relation to the Secondary Allegations Letter, it would be in all of the circumstances harsh and unfair; and

(e) An order restraining the Authority from implementing any further disciplinary action against Ms Vimpany.

2. The Authority seeks relief in the form of declarations in relation to each of the matters referred.

Reasons for decision at first instance

5          After setting out in the reasons for decision the agreed facts and matters for determination, the learned Commissioner set out the evidence and findings in respect of issues 1 and 2 which required the learned Commissioner to make findings about what had occurred in the first and second interaction between Mr David Hammon, a station co-ordinator with the PTA, and Ms Vimpany on 27 April 2013.  The learned Commissioner then made the following findings:

(a) The resolution of the factual contest as to the incident on 27 April 2013 turns on an assessment by the Commission of the credibility of the witnesses who gave evidence in this matter.

(b) On 27 April 2013, at the Perth train station office both Ms Vimpany and Ms Jennifer Blake entered the office at about 3.15 - 3.20 pm and prepared to leave for the day.  Unaware of the prior arrangement with the station co-ordinator on the morning shift, Mr Avatar Singh, Mr Hammon questioned Ms Vimpany and Ms Blake and told them to continue working to their appointed finish time of 4.00 pm.

(c) Mr Hammon has a strong tone of voice, being Scottish and this, to some extent, was reflected in his evidence in the witness box (his evidence was supported by Mr Fabio Pontarolo).  Mr Felix Geson was an impressive witness who no longer works for the PTA and therefore has no interest in the outcome of the proceedings.  His recollection was that Mr Hammon spoke to Ms Vimpany and Ms Blake normally, when requesting that they resume their station duties as rostered.  This was also generally confirmed by Mr Pontarolo and Mr Singh.

(d) Both Ms Vimpany and Ms Blake were not ambivalent about having to work to the end of their shift.  They had been led to believe that they could finish work early by the previous station co-ordinator.  It is only natural, that they would be somewhat disappointed that they could no longer leave early as planned.  On leaving the office, both Ms Vimpany and Ms Blake may have 'muttered' something and they had facial expressions reflecting that they were less than pleased with the decision made by Mr Hammon.  This was the evidence of both Mr Hammon and Mr Geson, which evidence is accepted.

(e) Consistent with this state of affairs, both Ms Vimpany and Ms Blake then had time, on their own testimony, to reflect on Mr Hammon's direction to continue to work to 4.00 pm, when they were on the platform outside the office.  Both Ms Vimpany and Ms Blake were quite upset with Mr Hammon.

(f) Ms Vimpany entered the office at around 3.50 pm with the purpose of confronting Mr Hammon as to the earlier exchange.

(g) When she entered the office, Ms Vimpany made a 'beeline' for Mr Hammon, largely as described by the PTA's witnesses.  Ms Vimpany did go up behind and to the side of Mr Hammon, and spoke to him in a strong and angry manner whilst pointing her finger at him.  She spoke the words alleged and Mr Hammon was taken by surprise by Ms Vimpany's approach and responded to the effect that Ms Vimpany should leave the office.

(h) Mr Geson's testimony is accepted that Ms Vimpany did, on leaving the office, refer to Mr Hammon as an 'ass' or a word to that effect.

(i) Ms Blake's testimony that when Ms Vimpany emerged from the office to go home, she was not upset or overly concerned is not consistent with Ms Vimpany's allegation that she had just been verbally abused and bullied by Mr Hammon, moments earlier.  It is, however, quite consistent with Ms Vimpany, having confronted Mr Hammon and having gotten her frustration and upset 'off her chest', by speaking to Mr Hammon as she intended to do.

(j) Importantly, however, to the assessment of credit, is that shortly after the incident on 27 April 2013, all three customer service assistant witnesses (in the office with Mr Hammon) recorded the events they witnessed in writing.

(k) In contrast, it is to be noted that Ms Vimpany was not going to do anything about the alleged bullying and intimidatory behaviour of Mr Hammon.  It was only when she received the 'please explain' memorandum from the PTA of 8 May 2013, that matters seemed to take a different complexion for Ms Vimpany.  It was not for a further one week after that, that Ms Vimpany put in writing her allegations against Mr Hammon.  It is also to be noted, that there were some inconsistencies in the subsequent statements made by Ms Vimpany to the PTA, as to the events of 27 April 2013.

6          After making these findings, the learned Commissioner found that he was not satisfied that Mr Hammon conducted himself in an intimidating, threatening and aggressive manner as alleged.  He also found that when Ms Vimpany returned to the office shortly prior to 4.00 pm on 27 April 2013, she shouted at Mr Hammon and did engage with him in an inappropriate manner, pointing her finger at him and at his face whilst leaning over towards him.  He also found that such conduct was not appropriate conduct towards a supervisor.

7          In respect of issue 3, the learned Commissioner posed the question in a heading in his reasons for decision 'did any employee of the Authority act dishonestly in relation to the events of 27 April 2013?'  The Commissioner then made the following findings [64] - [65]:

Given the findings I have made above, there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved. This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013.

Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. Their versions of the events, has been largely consistent, since their first reports in April and May 2013. It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events.

8          In respect of issue 4 whether the circumstances of the case warranted disciplinary action, the learned Commissioner found that the reprimand imposed on Ms Vimpany by letter dated 17 October 2013 was plainly appropriate and there was no warrant to disturb it.  He also found Ms Vimpany and Ms Blake were given full opportunity of being heard and that the investigation the PTA conducted was reasonable and fair and the conclusion reached was one fairly open.

Grounds of appeal

9          Paragraph 1 of the grounds of appeal contains definitions.  The grounds of appeal are set out in paragraphs 2, 3 and 4 of the schedule to the notice of appeal.  The grounds are as follows:

2. The Learned Commissioner made an error of law by exercising his discretion in a manner which was either unreasonable or plainly unjust. Namely, by finding:

(a) at paragraph [64] of the Reasons for Decision that:

'Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013'; and,

(b) at paragraph [65] of the Reasons for Decision that:

'It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events';

where there was no logical nexus between those findings and the facts that the Learned Commissioner relied upon to purportedly get to those findings.

3. It is in the public interest for the Appellant to be granted leave to appeal the findings made by the Learned Commissioner in paragraphs [64] and [65] of the Reasons for Decision. This is because, as a result of those findings, the Respondent has threatened Ms Vimpany with dismissal.

4. Rather than making an order to dismiss the matter, the Learned Commissioner ought to have made a declaration that, on the evidence, it was not possible to determine whether Ms Vimpany, or Ms Blake, had acted dishonestly in relation to their characterisation of the events that occurred on 27 April 2013.

10       The orders sought by the union are that:

(a) the appeal be upheld; and

(b) the decision of the learned Commissioner be varied by making a declaration that, on the evidence, it was not possible to determine whether Ms Vimpany or Ms Blake had acted dishonestly in relation to their characterisation of the events that occurred on 27 April 2013.

The characterisation of the nature of the appeal

11       Pursuant to s 49(2) of the Act an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.  Under s 49(2a) of the Act an appeal does not lie under s 49 from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

12       Section 7(1) of the Act defines 'finding' to mean, unless the contrary intention appears, to be 'a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate'.  Unless the contrary intention appears, 'decision' is defined in s 7(1) to include 'award, order, declaration or finding'.  Pursuant to s 49(2) of the Act, an appeal lies to the Full Bench from any 'decision' of the Commission.

13       Prior to the hearing of the appeal on 17 October 2014 counsel for the parties were informed the Full Bench wished to hear a submission from each of the parties whether the 'reasons' referred to in paragraph 2(a) and 2(b) of the grounds of appeal are 'findings' within the meaning of s 49(2a) and s 7 of the Act, or whether these observations are simply reasons given by the learned Commissioner as part of the grounds upon which he determined the application be dismissed.  The Full Bench also drew to the attention of the parties the following authorities:  Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371; Registrar v Metals and Engineering Workers' Union of Western Australia (1994) 74 WAIG 1487; McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000.

14       In light of the matter raised by the Full Bench, counsel on behalf of the union made a submission that there were three decisions appealed against which are:

(a) the finding made by the learned Commissioner at [64] in the reasons for decision that Ms Vimpany and Ms Blake had been 'less than frank in their characterisation of the events which occurred on 27 April 2013';

(b) the finding made by the learned Commissioner at [65] in the reasons for decision that 'Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events'; and

(c) the decision of the learned Commissioner to dismiss matter CR 3 of 2014.

15       The union points out that there were four matters that were referred for hearing and determination before the learned Commissioner and the appeal is only concerned with the third of those four matters.  The third matter referred for hearing and determination is whether, in relation to the events of 27 April 2013, Ms Vimpany, Mr Hammon or any other employee of the PTA conducted themselves dishonestly by:

(a) initiating an allegation or claim that they knew to be false; or

(b) giving an account of those events to investigators that they knew to be false.

16       The union contends that it is open in this appeal to appeal against the findings found at [64] and [65] of the reasons for decision on the following grounds:

(a) The learned Commissioner exercised his discretion under s 44(9) of the Act to hear and determine all four of the matters in dispute and his determination of the third matter can be found at [64] and [65] of the reasons for decision.

(b) The learned Commissioner determined the third matter by concluding that Ms Vimpany and Ms Blake had acted dishonestly; both by initiating the allegation or claim, and by knowingly giving a false account to the PTA's investigators.  The union's case is that the Commissioner's determination of the third matter was unreasonable or plainly unjust.

(c) The findings made at [64] and [65] are 'findings' as defined in s 7(1) and s 49(2a) of the Act as they did not finally dispose of the matter to which the proceedings relate.  It was the order that issued dismissing the application that disposed of the matter.

(d) The order that issued did not determine any of the questions even though it disposed of the matter.

(e) There should have been a declaration that there was no dishonesty by Ms Vimpany or Ms Blake.  Thus, the findings at [64] and [65] of the reasons for decision are a determination or ruling made in the course of proceedings within the definition of 'finding' in s 7(1) of the Act.  In particular, it is clear from the definition of a 'finding' that the words 'determination or ruling' distinguish between things that are not necessarily interim orders, awards or declarations but include something different.

17       The PTA put forward an argument that the appeal is incompetent and should be dismissed as the appeal simply seeks to challenge findings of fact which on their own cannot be appealed under s 49 of the Act.  It also argues that the point that the union seeks to make does not raise an appeal against the order to dismiss the application.  Yet, it says inherent in the dismissal of the application was dismissal of the union's challenge to the outcome of the first disciplinary proceeding and the dismissal of the application for a permanent stay of the second disciplinary hearing.  However, the PTA contends the union is not seeking to challenge either of those matters.  There is simply an attempt to have set aside bare factual findings.  In particular, it says a challenge to a finding of fact can only be properly made as an incident of a challenge to a decision, determination or ruling.  That is, such a challenge is only properly made in circumstances where it is said that a body erred in making a decision, determination or ruling because it made an error of fact and that, if the error had not been made, there would have been a different decision, determination or ruling.  The PTA also says Parliament could not have intended in including in the definition of a 'decision', a 'finding' to allow appeals against a finding of fact made in the course of reasons for decision by itself, without it being argued that the error of fact led to an error of law.

Is the appeal an appeal against 'findings' or solely against the order to dismiss the application?

18       After hearing the parties in respect of this issue, the Full Bench adjourned briefly.  When it returned the parties were informed that each of the members of the Full Bench were of the opinion that, having regard to the matters set out in the notice of appeal, it has before it an appeal against a decision to dismiss the application.  The Full Bench also informed the parties that it was of the opinion that it did not have before it an appeal against a 'finding' of the Commission.

19       It is stated on the Form 9 – Notice of appeal to Full Bench that the union 'has this day instituted an appeal against the decision of the Commission in matter numbered CR 3 of 2014 on the ground/s set forth in the attached schedule'.

20       When the grounds of the appeal and relief sought are examined it is apparent that the union are seeking to vary the order made by the learned Commissioner in CR 3 of 2014 by in effect setting aside the decision to dismiss the application and substituting a declaration.

21       The order to dismiss is not a 'finding' within the meaning of the definition of finding in s 7(1) and s 49(2a) of the Act, as an order to dismiss an industrial matter referred for hearing and determination under s 44(9) of the Act is a decision that finally disposes of the matter to which the proceedings relate.  It follows, therefore, for an appeal to lie against a 'finding', the finding must constitute a 'decision' within the meaning of s 49(2) of the Act.

22       The findings of fact set out at [64] and [65] of the reasons for decision at first instance are findings of fact made in support of and in part ground the order to dismiss the application.  A 'finding' as defined in s 7(1) of the Act is not a finding of fact in the nature of the findings of fact set out at [64] and [65] of the reasons for decision.

23       It is well established that a 'decision' within the meaning of s 49(2) of the Act is a decision that has been perfected in the manner prescribed in s 34(1), s 35 and s 36 of the Act.  These provisions provide:

34. Decisions of Commission, form of and review of

(1) The decision of the Commission shall be in the form of an award, order, or declaration and shall in every case be signed and delivered by the commissioner constituting the Commission that heard the matter to which the decision relates or, in the case of a decision of the Commission in Court Session, shall be signed and delivered by the Senior Commissioner among the commissioners constituting the Commission in Court Session.

35. Decision to be first drawn up as minutes

(1) Subject to this section, the decision of the Commission, except a direction, order or declaration under section 32 or an order for dismissal shall, before it is delivered, be drawn up in the form of minutes which shall be handed down to the parties concerned and, unless in any particular case the Commission otherwise determines, its reasons for decision shall be published at the same time.

(2) At the discretion of the commissioner giving the decision the minutes and reasons for decision may be handed down by the Registrar.

(3) The parties concerned shall, at a time fixed by the Commission, be entitled to speak to matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before they are delivered as the decision of the Commission.

(4) The Commission, with the consent of the parties, may waive the requirements of this section in any case in which it is of the opinion that the procedures therein prescribed are inappropriate or unnecessary.

36. Decision to be sealed and deposited

Every decision of the Commission shall —

(a) be sealed with the seal of the Commission; and

(b) be deposited in the office of the Registrar; and

(c) be open to inspection without charge during office hours by any person interested.

24       Thus, a 'decision' of the Commission is a document that is signed, sealed and deposited in the office of the Registrar and open for inspection:  McCorry v Como Investments Pty Ltd (1003) (Kennedy J); Registrar v Metals and Engineering Workers' Union of Western Australia (1488 - 1489) (Kennedy J).  A decision to dismiss a matter is not required to be drawn up as minutes.  There is no decision unless the decision is sealed:  McCorry v Como Investments Pty Ltd (1001 - 1002) (Brinsden J).

25       Pursuant to s 35 of the Act, it is a statutory requirement that, unless the Commission otherwise determines, reasons for decision be published at the same time as minutes of a decision or a decision to dismiss is delivered.  Whilst reasons for decision can be published in the same document as the decision, that is not what occurred in this matter.  In this matter, the reasons for decision were published consecutively with the delivery of the decision to dismiss.  The sealed copy of the decision to dismiss bears the date of 1 August 2014 and the medium neutral number of [2014] WAIRC 00825 (AB 68).  The reasons for decision are in a separate document.  They also are dated 1 August 2014 and bear a medium neutral number of [2014] WAIRC 00824.

26       It is clear that the Full Bench has before it an appeal against the decision to dismiss CR 3 of 2014.  Although the union also wishes to directly challenge the findings of fact at [64] and [65] of the reasons for decision as 'findings', it is not open to do so as the findings of fact in these paragraphs are not 'decisions' that are 'findings' within the meaning of s 7(1) and s 49(2a) of the Act.  However, it does not follow that the findings of fact at [64] and [65] are not reviewable in this appeal.  The findings of fact made in these paragraphs form part of the reasons for decision to dismiss CR 3 of 2014 and are reviewable in a consideration of the issue raised in paragraph 4 of the grounds of appeal that rather than making an order to dismiss, the learned Commissioner ought to have made a declaration that, on the evidence, it was not possible to determine whether Ms Vimpany or Ms Blake had acted dishonestly in relation to their characterisation of the events that occurred on 27 April 2013.

27       As the Full Bench has before it an appeal against a final decision of the Commission, the issue whether it should grant leave to appeal on grounds that the matter is of such importance that, in the public interest, an appeal should lie arises, does not arise as the appeal is before the Full Bench as of right.

Merits of the appeal - submissions

28       The substance of the union's argument is that the learned Commissioner erred in determining the third issue referred for hearing and determination by concluding that Ms Vimpany and Ms Blake had acted dishonestly; both by initiating the allegation or claim and by knowingly giving the false account to the PTA's investigators.  It says that the learned Commissioner's determination of this issue was unreasonable or plainly unjust.  It challenges the finding made on the following grounds:

(a) That the degree of satisfaction required to prove that Ms Vimpany and Ms Blake had been dishonest should have been quite high if the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 had been properly applied.

(b) The appeal is not about the learned Commissioner preferring the evidence of the PTA's witnesses over the evidence of the union's witnesses.  The union accepts for the purposes of this appeal that the learned Commissioner preferred the evidence of the PTA's witnesses and does not dispute that.  Instead, this appeal is about the findings of fact made by the learned Commissioner that Ms Vimpany and Ms Blake were dishonest; findings which the union says were both 'inconsistent with facts incontrovertibly established by the evidence' and 'glaringly improbable'.

(c) The findings of fact which determined the third issue was unreasonable.  In particular, the union says:

(i) there is no logical nexus between the learned Commissioner's conclusion that Ms Vimpany and Ms Blake had been dishonest, and the facts that the learned Commissioner relied upon to make that conclusion. The mere fact that the evidence of Ms Vimpany and Ms Blake was different, or even 'quite at odds', to that of the PTA's witnesses is insufficient in itself to ground a conclusion of dishonesty;

(ii) Ms Vimpany, in cross-examination, gave uncontradicted and unchallenged evidence that she was telling the truth about what happened on the day of the incident.  At no point during the hearing did counsel for the PTA, or the learned Commissioner, ask Ms Vimpany or Ms Blake whether they were being dishonest.  Nor did counsel for the PTA make a submission that Ms Vimpany or Ms Blake had been dishonest.  Instead, counsel for the PTA said it was merely a matter for the learned Commissioner.  In any event, Ms Vimpany and Ms Blake were not afforded an opportunity to respond to the allegation of dishonesty;

(iii) there was no evidence before the Commission that would have enabled the learned Commissioner to determine whether the evidence of Ms Vimpany and Ms Blake was reconstructed or dishonest.

(d) The learned Commissioner had a statutory duty to consider the interests of Ms Vimpany and Ms Blake.  He was aware of the real possibility that Ms Vimpany would be disciplined if he found that she had been dishonest.  Inherent in s 26(1)(c) of the Act, the learned Commissioner was to have regard for the interests of the person who was immediately concerned.  Thus, the learned Commissioner was under a statutory duty to consider what affect his ruling or determination of issue 3 might have on Ms Vimpany and Ms Blake.  As such, in applying the principles from Briginshaw v Briginshaw, the learned Commissioner ought to have found that there was insufficient evidence to determine whether Ms Vimpany and Ms Blake had been dishonest in their account of the events of 27 April 2013.  By concluding otherwise, the learned Commissioner exercised his discretion under s 44(9) of the Act in a manner that was unreasonable or plainly unjust.

29       The union says that it is clear from the findings of fact made at [64] and [65] of the reasons for decision that whilst the learned Commissioner did not use the word 'dishonest' it is clear from the context of the question referred for hearing and determination in issue 3 and the way that was answered by the learned Commissioner, that the learned Commissioner was politely saying 'well, yes, there was dishonesty'.  Counsel for the union referred to the definition of 'candour' in the Macquarie Concise Dictionary (6th ed).  The Macquarie Concise Dictionary (6th ed) defines 'candour' to mean 'frankness, as of speech; sincerity; honesty'.  Thus, the union says the word 'candour' relates to honesty; that is if someone has a lack of candour it is to say that they have shown a lack of honesty.  The union also referred to the definition of 'frank' in the Macquarie Concise Dictionary (6th ed) which defines 'frank' as 'open or unreserved in speech; candid or outspoken; sincere, undisguised; avowed; downright'.  They say it follows that as the definition of frank refers back to the word candid, the word candour also means honesty and relates to honesty.

30       Consequently, the union argues that part of the question put in issue 3 was had anyone been dishonest?  They point out that is a very serious question and is a very serious allegation to say someone is being dishonest because it goes to their integrity and it is something that is on the record.  Determination of this serious issue is important because the learned Commissioner was aware that there were pending secondary disciplinary proceedings if he was to find that Ms Vimpany had been dishonest.  Prior to the hearing of this matter at first instance, the PTA had written to Ms Vimpany notifying her of secondary disciplinary action in relation to making alleged false allegations by:

(a) giving a false account of Mr Hammon's actions on 27 April 2013;

(b) knowingly providing a similar false account in support of a 'grievance' raised on 24 May 2013; and

(c) knowingly making a false allegation on 14 May 2013 in an OSH incident report of bullying and harassment by a male supervisor on 27 April 2013.

(AB 411 - 412) (see also paragraph 27 of the agreed statement of facts).

31       Thus, the union says the effect of the nature of an allegation of dishonesty was very serious and the consequences for Ms Vimpany of the findings made by the learned Commissioner are very serious.

32       The union argues that the learned Commissioner ought to have considered that he needed more evidence before him to determine the issue of dishonesty, other than the difference in evidence between the PTA's witnesses and the union's witnesses.

33       The union also contends that by making the findings of dishonesty that the rule in Browne v Dunn (1893) 6 R 67 was not complied with.  By not affording Ms Vimpany and Ms Blake the opportunity to respond to the allegation, that created a sense of unfairness.  In support of its submission, counsel for the union referred to the decision of the High Court in MWJ v R [2005] HCA 74; (2005) 222 ALR 436 in which Gummow, Kirby and Callinan JJ observed at [38] - [39]

The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.

One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination.

34       The union points out it was clear from the transcript of the evidence of the proceedings at first instance that Ms Vimpany and Ms Blake never had the imputation of honesty put to them in cross-examination that they were being less than honest or that they were being dishonest or less than frank or less than candid, however you wish to describe it.

35       Importantly, in closing submissions counsel for the PTA at first instance conceded that differences in witness statements do not necessarily lead to a finding of dishonesty.  An exchange between counsel for the PTA and the learned Commissioner stated (AB 236 - 238):

RHODES, MS: Yes. Okay, I say nothing further about that, Commissioner. Ms Vimpany's conduct after the events of the 27th we say have some difficulties for the applicant's case. She agreed with me during cross-examination that if she hadn't received that please explain letter, she would not have made any formal complaints or raised any grievances in relation to these events. We say that her lodging of the workers' compensation claim and - and the grievance were in reaction to that letter and not in relation to the events of that day.

Ms Vimpany produced a statement in her evidence that she said she wrote on 13 May last year; that statement itself is undated. We say it should be given little weight. It was not provided in her first response to the please explain letter on 17 May. She chose instead to respond with one sentence, denying the allegations. We note that the statement was submitted in support of a grievance on 24 May.

My instructions are that the respondent didn't consider that that statement could be used in the disciplinary investigations of their own volition because their grievance process was confidential. In any event, we say it was open to Ms Vimpany and the Union as her advisors to submit that statement in the disciplinary investigation. She - it wasn't even provided in her second further response on 11 June, which she was invited by Ms Callaghan to - to do. It wasn't provided in the disciplinary investigation at all.

KENNER C: Nonetheless, the content of the statement is, (1) detailed, and (2) it does refer quite specifically to the alleged statements made by Mr Hammon.

RHODES, MS: Yes.

KENNER C: Whilst they, of course, aren't included in the subsequent two responses, I was a little intrigued as to where the statement ended up - - -

RHODES, MS: Yes.

KENNER C: - - - and why it didn't resurface at some stage within the respondent.

RHODES, MS: Yes.

KENNER C: Because this was prepared, albeit was two weeks or so, maybe two and a half weeks after the event - - -

RHODES, MS: Yes.

KENNER C: - - - but nonetheless, it's quite a detailed narration of the - of the events - - -

RHODES, MS: Yes.

KENNER C: - - - which Ms Vimpany said she - she prepared.

RHODES, MS: Yes.

KENNER C: And it just seemed to have not then surfaced, which I'm a little curious about.

RHODES, MS: Yes. Again, we - we can refer to the grievance policy which is in the agreed - sorry, in the applicant's bundle which does talk about the confidentiality of those proceedings, and again, my - my instructions are that those two processes were considered separate and that once the grievance process was shut down and it was agreed by - by Ms Vimpany and her advisors that they'd go back to the investigation process - sorry, the disciplinary process, it was considered by the respondent that those were two very separate things. I can't comment where that statement went.

KENNER C: I - I certainly understand what you say about being two separate processes - - -

RHODES, MS: Yes.

KENNER C: - - - but putting the process aside, the substance of the response was there - --

RHODES, MS: Yes.

KENNER C: - - - fairly early on and so I think any later criticisms of the lack of substantive detail must be seen in that light, I think.

RHODES, MS: I would agree, Commissioner. I would agree that the contention that the detail was only added very late in the piece is not as strong, taking into account that statement which, you know, the respondent wasn't made aware of until the start of these proceedings.

KENNER C: Thank you.

RHODES, MS: So taking into account that, the disciplinary proceedings weren't aware of or didn't take into account that statement. The respondent was left with - with a very vague response from Ms Vimpany from her first one-line response and - and it was considered that investigation was necessary and it was open to the respondent to conduct that investigation internally. It's - it's a common practice for organisations to conduct those investigations internally and I don't understand from my applicant - from my friend that that is - has been called into question.

That process has been explained by Ms Owen. She goes - has explained to the Commission the note taking process and the effort that was made to use the words of the interviewee in their final statement and the opportunity for all interviewees to review their statements before they were made as part of the report.

Now, the findings of the investigation I think are clearly based on the weight of evidence in favour of Mr Hammon's account over Ms Vimpany's. Those findings were the basis of a determination but the determination was made in accordance with the disciplinary process by a higher body. The - the determination was not made by Mr McCulloch or Ms Owen. They just produce - produced the report with the evidence that they gathered.

KENNER C: Yes.

RHODES, MS: The Commission's determinations as to matters 1 and 2 in the matters for determination which are about essentially the facts of the - the conduct of Mr Hammon and Ms Vimpany will then form the determination in matter 3, which is the dishonesty matter. We acknowledge that differences in a witness's statements do not necessarily lead to a finding of dishonesty. We've heard different recollections. You know, often these differences can be explained by perception, recollection, however, the Commissioner has been invited to consider credibility of witnesses and, you know, that - that is obviously a matter for the - for the Commissioner.

KENNER C: Yes.

RHODES, MS: And in relation to that, we again rely on - on the weight of evidence against Ms Vimpany's account.

36       The statement made by Ms Vimpany that counsel for the PTA was referring to in this exchange was tendered into evidence before the learned Commissioner (exhibit A9, AB 86 - 87).  It was Ms Vimpany's account of the events which she said that she wrote close to the time of the events.  The union argues in light of the evidence referred to in this exchange, the PTA's counsel at first instance acknowledged that it was not a strong argument that Ms Vimpany had given a false account of the events when they first arose.

37       In these circumstances, given the learned Commissioner had a statutory duty to consider the interests of Ms Vimpany and Ms Blake, the union contends the learned Commissioner ought to have made a declaration that it was not possible on the evidence that he could determine the question of whether Ms Vimpany or Ms Blake had been dishonest.  Consequently, the union seeks that the order be varied and a declaration in these terms be made.

38       The PTA contends that the appeal has become academic for two reasons.  Firstly, the findings which are sought to be impugned relate to the part of the application that sought the secondary disciplinary proceedings be stayed.  However, at the time of the hearing of the appeal the secondary disciplinary proceedings have been concluded.  Yet, it is conceded on behalf of the PTA that whilst the secondary disciplinary proceedings may have been finalised by the PTA, action had been taken to challenge the decision made by the PTA.  The second reason why the PTA says that the appeal is academic is that, even if the Full Bench now finds that the learned Commissioner should have found on the evidence it was not possible to determine whether Ms Vimpany or Ms Blake had acted dishonestly in relation to their characterisation of the events that occurred on 27 April 2013, the learned Commissioner could only make that observation in respect of the evidence before him.  However, he was not being asked to determine whether the allegations in the secondary disciplinary proceedings were made out.

39       The PTA points out what was referred to the learned Commissioner and what he made substantive findings about is not whether anyone lied to him, or whether anyone was dishonest in giving their evidence before the Commission.  It was whether in the disciplinary process there had been dishonesty.

40       In particular, the PTA argues:

(a) The learned Commissioner correctly found the competing versions before him were 'diametrically opposed' ([44] of the reasons for decision at first instance).  The learned Commissioner considered that he was not able to 'nuance' the differences ([64] of the reasons for decision at first instance).

(b) The learned Commissioner, for reasons given and accepted by the union, preferred the evidence of the PTA's witnesses over that of the union's witnesses.  No evidence was led by the union to suggest that its member's memory of events had at any stage been or become impaired.  The union's member insisted at the hearing that her memory of relevant events was as 'clear as ever' (AB 125).

(c) The learned Commissioner found that the union's member 'had been less than frank' in the accounts she had given the PTA and had 'demonstrated a lack of candour in relation to these events'.  These findings were clearly open to the learned Commissioner on the evidence before him.  They are hardly 'glaringly improbable' conclusions.

(d) No sensible argument was put by the union at the hearing at first instance as to how the learned Commissioner could reject its member's evidence and yet conclude other than that she had not been frank and candid.  There was no evidence that prior accounts given by the union's member were not her own or that at some stage she had suffered from impaired memory leading to her giving an inaccurate account.

(e) The learned Commissioner did not expressly find dishonesty and did not find or imply that the union's member had committed perjury.  The learned Commissioner left open the possibility that by the time the union's member gave evidence she had, with the passage of time, convinced herself that her inaccurate version was a truthful one.

(f) The learned Commissioner's findings also did not rule out the union's member giving an explanation, in the second disciplinary proceedings, for her lack of candour and frankness.

(g) There is nothing in the submission made by the union that it is significant that it was not specifically put to the union's member during cross-examination at the hearing that she was being dishonest.  Ms Vimpany's evidence was properly tested and the competing evidence put to her in cross-examination.  It would be no part of proper advocacy to go on to ask the witness a question to the effect, 'I put it to you that you are lying?'  The suggestion that a witness cannot be found to have lacked candour and frankness because they were not specifically and in so many words accused of dishonesty in cross-examination is, with respect, misconceived.

41       The PTA also points out that the witness's credit was a matter specifically referred for hearing and determination by the parties.  In these circumstances, the union cannot complain on behalf of its member that the matter was not alive in the proceedings.  It says that counsel for the PTA put the PTA's case to Ms Vimpany and it is unfair to suggest that there is some failure of advocacy in relation to this matter.

42       In relation to the submissions made in respect of the interchange between counsel for the PTA and the learned Commissioner at first instance, the PTA says that it did not make anything of the fact that Ms Vimpany did not provide the version of events until later.  They did not impugn the timing of Ms Vimpany's statement as a recent invention.  However, the learned Commissioner found that when Ms Vimpany did start to tell things to the PTA she was less than frank or candid.

Consideration – findings made in respect of issue 3

43       At [64] of the reasons for decision the learned Commissioner made two findings of fact.  These were:

(a) there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon and the others involved;

(b) whilst it was possible that Ms Vimpany has reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and he did conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the PTA, and in the subsequent investigation, earlier in 2013.

44       At [65] the learned Commissioner explained the reason why he made the findings at [64].  This was because four employees of the PTA gave largely consistent versions as to the incident on 27 April 2013.  He then said it was open to conclude that Ms Vimpany, in particular, demonstrated a lack of candour in relation to these events.

45       The word 'frank' was used by the learned Commissioner in his reasons as an adjective.  The word 'frank' in the adjective sense is defined in the Macquarie Dictionary online as 'open or unreserved in speech; candid or outspoken; sincere'.  Candour is a noun.  The Macquarie Dictionary online defines 'candour' as 'frankness, as of speech; sincerity; honesty'.  Thus, to be 'frank' is, as the union submits, to be candid.

46       The learned Commissioner did not, however, find that Ms Vimpany or Ms Blake had been dishonest.  His finding of fact about their conduct in respect of the matters raised in issue 3 was vague.  He simply said their characterisation of events was 'less than frank'.  Even if you substitute the word 'honest' for 'frank', so that the finding is read as 'less than honest', that does not mean that he found the accounts given by Ms Vimpany and Ms Blake to be dishonest.  It is not clear what the learned Commissioner meant by this finding other than it is clear that he did not find Ms Vimpany's and Ms Blake's version of events to be credible.  The learned Commissioner did not explain what he meant by 'less than frank'.  Was he saying their characterisation of events during the investigation was well short of being frank, or slightly less than frank?  This is not clear.  It is not a matter that is capable of assessment in this appeal by the Full Bench nor by the parties.

47       The learned Commissioner did not answer the questions referred for hearing and determination in issue 3.  Issue 3 raised two very specific questions.  These were in relation to the events of 27 April 2013, whether any employee had conducted themselves dishonestly by:

(a) initiating an allegation or claim that they knew to be false; or

(b) giving an account of those events to investigators that they knew to be false.

48       The two questions required findings of fact to be made whether Ms Vimpany, Mr Hammon or any other PTA employee conducted themselves 'dishonestly by', initiating a claim 'they knew to be false', or giving an account to investigators 'they knew to be false'.  By forming issue 3 in this way, to make a finding of fact that answered the questions put as yes, the Commission would have to be satisfied that in respect of an employee in question that prior to the employee making the claim, or giving an account, or at the time the claim was made, or the account given to investigators, that the employee intended to give an account that was not truthful.  To make such findings, the learned Commissioner would have had to find that Ms Vimpany or any other employee of the PTA had formed an intention to give a false account and that in doing so their conduct was dishonest.

49       Thus, the first matter raised in issue 3 was whether any employee of the PTA had intended to give a false account at any stage during the investigation, including initiating a claim.  If the answer to the first matter was yes, the second matter was whether in circumstances the employee in question in doing so had conducted themselves dishonestly?

50       A finding that a person had formed a state of mind to give a false account, or, put another way, had subjectively determined to give a false account is a very serious matter which attracts a high standard of proof:  Briginshaw v Briginshaw.

51       The issue before the learned Commissioner was not whether Ms Vimpany or Ms Blake were honest in their account when giving evidence before the Commission.  As the union points out, the PTA did not put to either witness in cross-examination that at any time they had formed a state of mind to give a false account.  In these circumstances, it was not open to the learned Commissioner to determine the matters raised in issue 3.  Nor did he do so.  In any event, it is clear that counsel for the PTA at first instance made no submission that Ms Vimpany or Ms Blake had formed an intention to give a false account about any matter.  For these reasons, there was insufficient evidence to determine whether Ms Vimpany or Ms Blake conducted themselves dishonestly in initiating an allegation or claim that they knew to be false, or giving an account of those events to investigators that they knew to be false.

52       Whilst the learned Commissioner could have made specific findings of fact upon which an assessment of the degree and extent to which it could be said that Ms Vimpany and Ms Blake had been less than frank could be made, we are not satisfied that such findings of fact would not have led to the learned Commissioner making an order that CR 3 of 2014 be dismissed.  In particular, we are not satisfied that the learned Commissioner should have made a declaration in the form sought by the union in this appeal.  Firstly, this relief was not sought at first instance.  Secondly, and of more importance, the making of such a declaration is not necessary as the learned Commissioner did not determine matters referred for hearing and determination in issue 3.  Those matters have been left open.  Consequently, it is open for issue 3 to be determined in any proceedings that flow from the determination of the secondary disciplinary action.

53       For these reasons, we are of the opinion that the Full Bench should issue an order to dismiss the appeal.