Appeal against a decision of the Commission in Matter No. CR 32 of 2014 given on 18 May 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2015 WAIRC 00936

DELIVERED : MONDAY, 12 OCTOBER 2015

FILE NO : FBA 6 OF 2015

Appellant

AND

Public Transport Authority of Western Australia

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2015] WAIRC 00389; (2015) 95 WAIG 762

File No : CR 32 of 2014

CatchWords : Industrial Law (WA) - Appeal against decision of the Commission - Industrial matter - Finding made by the Commission that there were reasonable grounds for the employer to find an employee guilty of knowingly giving false accounts of an incident - Allegations among most serious an employer could make against an employee - Error demonstrated - Evidence and material before the Commission not analysed by applying the requisite standard of proof - Must be more than inconsistent accounts to support a finding of reasonable grounds to form the belief employee had knowingly given a false account

Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(i), s 35(1), s 44(9), s 49

Result : Appeal allowed - Order made

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 for Western Australia

Case(s) referred to in reasons:

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

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

Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1985) 65 WAIG 2033

House v The King [1936] HCA 40; (1936) 55 CLR 499

Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677

Nominal Defendant v Owens (1978) 22 ALR 128

Pinker v Director General Department of Education [2014] WAIRC 01312; (2014) 94 WAIG 1928

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990

The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203

Case(s) also cited:

Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 01367; (2014) 95 WAIG 1

Reasons for Decision

SMITH AP:

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 32 of 2014.  CR 32 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) had referred the industrial matter to the Commission by an application for a compulsory conference under s 44 of the Act seeking to resolve an industrial dispute.  The parties were in dispute about the termination of employment of a Ms Janet Vimpany, a member of the union, who was employed by the Public Transport Authority of Western Australia (the PTA) as a passenger ticketing assistant.  This matter was the second matter referred to the Commission relating to disciplinary proceedings against Ms Vimpany.

2         The first matter was CR 3 of 2014.  Both CR 3 of 2014 and CR 32 of 2014 arose from an incident that occurred on 27 April 2013 involving an exchange between Ms Vimpany with Mr David Hammon, who is employed by the PTA as a station coordinator and who was, at the time of the exchange, Ms Vimpany's direct line manager.  Following the incident, Mr Hammon made a complaint about Ms Vimpany's conduct during the second of two interactions.  After the complaint by Mr Hammon was investigated, Ms Vimpany was found to have committed a breach of discipline which was dealt with by the PTA by the imposition of a reprimand (the first disciplinary process).

CR 3 of 2014 and findings made in FBA 11 of 2014

3         As a result of accounts of the incident on 27 April 2013 given by Ms Vimpany during the course of the disciplinary proceedings, and elsewhere, the PTA also commenced a disciplinary process alleging that Ms Vimpany had deliberately given the PTA false accounts of the incidents on 27 April 2013.

4         Prior to the resolution of the second disciplinary matter, on behalf of Ms Vimpany, the union in C 3 of 2014 challenged the findings made in the first disciplinary process and penalty imposed in relation to the events of 27 April 2013 and sought an order restraining the PTA from continuing the second disciplinary process.  The matter was not resolved and at a contested hearing in CR 3 of 2014 the following facts were agreed:

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.

5         The matters referred for hearing and determination in CR 3 of 2014 were 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.

6         After hearing the evidence given by Ms Vimpany and her witnesses and the evidence given by the PTA's witnesses, the learned Commissioner hearing the matter, Kenner C, rejected the evidence given by Ms Vimpany about the two incidents.  Commissioner Kenner in his reasons for decision ([2014] WAIRC 00824; (2014) 94 WAIG 1462) made the following findings of fact:

(a) 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 coordinator 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.

(b) 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.

(c) 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 coordinator.  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.

(d) 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.

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

(f) 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.

(g) 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.

(h) 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.

(i) 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.

(j) 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.

(k) Mr Hammon did not conduct himself in an intimidating, threatening and aggressive manner as alleged.  When Ms Vimpany returned to the office shortly before 4.00 pm on 27 April 2013, she shouted at Mr Hammon and engaged with him in an inappropriate manner, pointing her finger at him and at his face while leaning towards him.  Such conduct was not appropriate conduct towards a supervisor.

7         Importantly, for the resolution of the issues in this appeal, Kenner C in respect of the third issue that was referred for hearing and determination in CR 3 of 2014 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         The union sought to challenge the learned Commissioner's decision at first instance in FBA 11 of 2014.  The Full Bench after hearing the parties made an order that the appeal be dismissed ([2014] WAIRC 01367; (2014) 95 WAIG 1).

9         One of the issues in FBA 11 of 2014 was whether Kenner C had made a finding that Ms Vimpany had conducted herself dishonestly by initiating an allegation or claim that she knew to be false or had given an account of those events to investigators that she knew to be false.  This was the matter referred for hearing and determination as issue 3 in CR 3 of 2014.

10      Prior to the determination of FBA 11 of 2014, the PTA dismissed Ms Vimpany.

11      On 11 August 2014, shortly after Kenner C issued his decision in CR 3 of 2014, Mr Ian Luff, the manager of customer service at Transperth Train Operations, sent a letter to Ms Vimpany advising her that she would be stood down on full pay until the general manager had made a final determination on allegations that had been previously notified to her on 23 September 2013; that is that she had knowingly given false accounts and made a false allegation in relation to the events of 27 April 2013.  Mr Luff stated in the letter that he was of the view that Kenner C's findings provided sufficient grounds for a conclusion that the allegations were proven.  Mr Luff also stated in the letter that if the general manager is satisfied that the allegations are proven and decides to apply a disciplinary penalty, then it would be his recommendation that the general manager seriously consider applying the penalty of dismissal on the basis that:

 Your alleged conduct seriously breached the trust which the PTA is entitled to expect of any employee.

 That alleged breach was not a momentary aberration, but appears to have been sustained over a period of almost a year.

 In addition, the findings made against your credibility by the Commission mean that you have been demonstrated to no longer have the integrity required to fulfil the duties of your position as a Passenger Ticketing Assistant, which require you to be able to:

 issue infringements and, if necessary, give evidence in court in support of your actions; or

 work without supervision at locations spread across the network, and provide reliable feedback in relation to circumstances such as interaction with customers and other employees (e.g. in response to customer complaints or safety investigations).

12      On 7 October 2014, after receiving a written response from Ms Vimpany, Mr J Steedman, the acting general manager of Transperth Train Operations, sent a letter to Mr Vimpany advising her that he found the allegations to be proved insofar as they related to her account of the second interaction with Mr Hammon and advised her that her employment would be terminated effective from 5.00 pm on Wednesday, 8 October 2014.  In the letter, Mr Steedman set out the following matters:

(a) In Ms Vimpany's response of 29 August 2014, she explained that she prepared a statement on 13 May 2013, that she had taken care at that time to ensure that it was truthful and accurate, that she believed it to be true to the best of her recollection and that she had since maintained the same account, presumably consistent with that statement.

(b) An appeal had been filed challenging whether Kenner C was entitled to make the findings he made on the evidence before him.

(c) Whilst Ms Vimpany had been invited to advise whether she wished to meet with him about her response, she did not seek such an opportunity.

(d) Having no previous background in this matter, he had reviewed documents which had either been generated from the disciplinary process or are transcript or exhibits from CR 3 of 2014.  Those documents included statements made by Ms Vimpany, a transcript of evidence in CR 3 of 2014, statements, notes of interview and transcripts of evidence of Ms Blake, Ms Rebecca Johnston, Mr Geson, Mr Pontarolo, Mr Barinder Singh, Mr Avtar Singh and Mr Hammon.

13      Based solely on his review of these documents, Mr Steedman made the following findings (AB 14 - 15):

[H]aving put to one side the outcome of the Commission hearing, I find that your account that David Hammon intimidated and bullied you during your second interaction with him by screaming (or shouting) at you, getting out of his chair and standing face to face with you in your personal space was false.

I acknowledge that your account was similar on each occasion you gave it. However, your account was contradicted by the accounts of the other people present, in particular Felix Geson and Fab Pontarolo. While not absolutely identical, the other accounts of those present were broadly consistent. Also, I find Jen Blake's evidence that you were not upset after leaving the office on the second occasion more likely to be consistent with the other witnesses account of events during your second interaction with Mr Hammon than your own account.

Having satisfied myself that your account was false, I now turn to consider whether it was knowingly false - whether at the time you gave your accounts prior to September 2013 you knew them to be false.

Based on my review of the documents listed above, I conclude that you were aware and deliberately gave a false account of the relevant events.

First, I can see no innocent explanation for the difference in your account compared to the others present. Initial accounts were recorded by all present very soon after the incident - each within about two weeks, so differences in recollection would not explain so great a difference in the accounts. Nor can exaggeration or differences in perspective or interpretation explain the extent of the difference between your accounts of what happened during the second interaction.

I have to conclude therefore that one or other of the accounts was being given dishonestly.

It is less likely that all of the other employees, some of whom are fellow wages employees and one of whom, by the time of the hearing, was no longer even employed by the PTA, colluded to give detailed false evidence contradicting your account. There was no evasiveness or vagueness in their accounts that might be expected if they had somehow been persuaded to not give a true account.

I am satisfied that it is much more likely that:

 after learning of the notification requesting a response about your alleged behaviour during the second interaction, you decided to respond by initiating a Grievance application and a OSH/Workers Compensation claim against your accuser, on the basis that attack was the best form of defence; and

 you initiated those claims knowing - at least in so far as it dealt with the events of the second interaction - the account of David Hammon's actions upon which your claims were based was false.

I therefore find the allegations against you proved in so far as they relate to your account of the second interaction with Mr Hammon.

14      In the letter, Mr Steedman noted Ms Vimpany's response that she remained committed to working with the PTA.  He then found that it was a very serious matter for an employee to deliberately make false allegations against another employee and observed that integrity is one of the values of the PTA as an organisation.  He then said the PTA is entitled to expect to be able to trust its employees to deal with it honestly.  He then observed that in this case, if Ms Vimpany's account had been accepted it could have had significant negative consequences for another employee.  He then noted that if she had taken the opportunity to withdraw the claims, her conduct to wrongly initiate deliberately false claims in June 2013 could have been characterised as a momentary lapse in judgment.  However, she had persisted with the claim throughout and not taken the opportunity to diminish her conduct.  In these circumstances, he decided to impose the penalty of dismissal.

15      Mr Steedman then had regard to the findings made by Kenner C and after observing that the learned Commissioner had all the evidence before him and had the opportunity to see the witnesses give oral evidence rather than just read the transcript, this reinforced his finding that the allegations were proved.

16      After considering the reasons for decision of the learned Commissioner, the Full Bench found that Kenner C did not determine the matters in issue 3.

17      The Full Bench in its reasons for decision made the following findings:

(a) The learned Commissioner did not find that Ms Vimpany had been dishonest.  His finding of fact about her conduct in respect of the matters raised in issue 3 was vague [46].

(b) The learned Commissioner did not answer the questions referred for hearing and determination in issue 3 [47].  The two questions raised in issue 3 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'.  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 [48].

(c) 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 [49]?

(d) 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 [50] (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).

(e) The issue before the learned Commissioner was not whether Ms Vimpany was honest in her account when giving evidence before the Commission.  The PTA did not put to Ms Vimpany in cross-examination that at any time she 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 [51].

(f) It was open for issue 3 to be determined in any proceedings that flow from the determination of the secondary disciplinary action [52].

This appeal - matters referred in CR 32 of 2014

18      In an amended memorandum of matters referred for hearing and determination made by Mayman C on 10 February 2015, the union's issues for hearing and determination were as follows:

Oppressiveness of the dismissal

12. Was Ms Vimpany's account of the event 'knowingly false' or 'deliberately false'?

13. Did the respondent have an 'integrity test'? If the answer is yes, then:

a. did the respondent inform Ms Vimpany of the content of that integrity test before it dismissed her?

b. did Ms Vimpany fail the integrity test?

14. Was Ms Vimpany's dismissal oppressive?

15. Does Commissioner Kenner's decision restrict the Commission in this matter?

Unreasonableness/unfairness of the dismissal

16. Does the mere fact that Ms Vimpany's account of the event was different to that of the other people who were present mean that Ms Vimpany's account was dishonest?

17. Did Mr Steedman have sufficient evidence to reasonably conclude that Ms Vimpany had been dishonest?

18. Was Ms Vimpany's dismissal unreasonable or unfair?

Harshness of the dismissal

19. Was the respondent's decision to dismiss Ms Vimpany a disproportionate response to the alleged conduct?

20. Was Ms Vimpany's dismissal harsh?

19      The PTA's issues in the amended memorandum of matters referred for hearing and determination were as follows:

24. The issue of what relevantly occurred on 27 April 2013 has been finally determined by Commissioner Kenner in his decision in ARTBIU v PTA.

25. It would be contrary to the common law and the objects of the Industrial Relations Act 1979 (the Act) set out in s 6 of the Act, and in particular s 6(c), and the guiding principles of the Act set out in s 26, and in particular s 26(1)(a), for the Commission as presently constituted to revisit in any way the matter of what relevantly occurred on 27 April 2013 this having been finally determined by Commissioner Kenner.

26. The only issues for determination before the Commission, as presently constituted, are as follows:

a. whether Ms Vimpany gave deliberately false accounts in relation to what occurred on 27 April 2013 to the respondent and, if so;

b. whether the penalty of dismissal was within the reasonable range of disposition by the respondent and, if not;

c. what was the appropriate penalty?

20      The hearing of CR 32 of 2014 commenced on 9 February 2015.  On that day, Ms Vimpany and the union's witnesses gave their evidence.  The matter was then adjourned and continued on 13 April 2015.  Prior to the matter continuing on 13 April 2015, Mayman C issued a decision after hearing an application by the PTA that the Commission ought to refrain from hearing part of the matter.

21      In reasons for decision delivered on 11 March 2015, Mayman C upheld the PTA's objection and made the following declaration and order on 13 March 2015 ([2015] WAIRC 00234; (2015) 95 WAIG 379):

1. DECLARES that Application CR 32 of 2014 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority is part dismissed on public interest grounds pursuant to s 27(1)(a) of the Act with the exception of those matters relating to:

a. whether there were reasonable grounds for the respondent to hold the belief that the applicant's member was guilty of the misconduct alleged, having regard for the principles reflected in the Full Bench decision The Minister for Health v Drake-Brockman (2012) 92 WAIG 203;

b. procedural fairness; and

c. penalty.

2. ORDERS THAT the application, other than those aspects listed in the Declaration, be and is hereby dismissed.

3. ORDERS THAT the application be re-listed at the applicant's and respondent's convenience to hear submissions on the matters referred to in the Declaration.

22      It is important to note in these proceedings that there is no appeal against the decision given by Mayman C on 13 March 2015.

23      When the hearing of CR 32 of 2014 reconvened on 13 April 2015, Mr Steedman gave evidence on behalf of the PTA and the parties' representatives made closing submissions.

Reasons for decision of Commissioner Mayman given on 18 May 2015 in CR 32 of 2014

24      On 18 May 2015, Mayman C made an order which dismissed the balance of CR 32 of 2014.

25      In reasons given by Mayman C on 18 May 2015, the Commissioner gave her reasons for making the order.  In her reasons she set out the union's outline of submissions dated 27 January 2015.  Of importance to the resolution of this appeal those submissions set out not only the reasons why the union says the dismissal of Ms Vimpany was unfair, but the submissions also set out the basis on which the union contended the Commissioner should assess the evidence and make a determination as to whether the PTA had discharged its burden in an unfair dismissal where an employer relies upon the issue of misconduct. 

26      The submissions of the union which are relevant to the disposition of this appeal which are set out in the reasons for decision are as follows:

(i) The union claimed the case of unfair dismissal of Ms Vimpany was made out for two reasons [6] (AB 74):

(a) Mr Steedman was the decision maker who, on behalf of the respondent, ultimately made the decision to dismiss Ms Vimpany. Mr Steedman did not have reasonable grounds for believing on the information available at the time, that Ms Vimpany was guilty of the alleged misconduct; and

(b) the discretionary decision of Mr Steedman to dismiss Ms Vimpany was harsh, oppressive and unfair.

(ii) The PTA's allegation is that Ms Vimpany [7] (AB 74):

knowingly gave false accounts of a supervisor's actions on 27 April 2013, in the course of a disciplinary investigation and in support of claims in a grievance process and an OSH incident report that his behaviour was intimidating and bullying towards you.

(iii) The key findings of fact of Mr Steedman were found to be proved based on the review of documents.  The key findings of fact by Mr Steedman were as follows [8] (AB 74):

... you were aware and deliberately gave a false account of the relevant events (page 3);

... to deliberately make false allegations against another employee (page 3); and

... acted dishonestly in the way alleged (page 4).

(iv) The test for establishing misconduct in this matter is as follows [10] - [13], [16] (AB 74 - 75):

Where an employer is relying upon the issue of misconduct the applicant submits there is a burden upon the respondent to demonstrate there is sufficient evidence to find that the alleged incident did occur, Garbett v Midland Brick Co [2003] WASCA 36. The applicant submits whether or not the misconduct occurred is not a discretionary decision but a finding of fact giving rise to the right to dismiss Minister for Health v Drake-Brockman [2011] WAIRC 00150; (2011) 92 WAIG 203.

The respondent is required to establish not that the employee was guilty of the misconduct but that following a proper inquiry there were reasonable grounds for a belief on the part of the employer that on the information available at the time that the employee, in this case Ms Vimpany was guilty of the alleged misconduct. In making the decision the respondent is required to take into account any mitigating circumstances that might be associated with the alleged misconduct or the employee's work record to determine whether the misconduct justified the dismissal, Minister for Health v Drake-Brockman.

The applicant submitted that what constitutes 'sufficient evidence' to establish the facts said to demonstrate misconduct will vary from case to case depending on the gravity of the alleged misconduct having regard for the decision in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224.  The allegation made by the respondent against Ms Vimpany was that she 'knowingly' gave false accounts of an incident to the respondent. As was recently found by the Full Bench in ARTBIU v PTA (FB):

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.

If the respondent discharges its burden in unfair dismissal matters of this nature the onus then shifts to the employee to demonstrate that the dismissal was indeed harsh, oppressive or unfair.

…

The allegation that the respondent made against Ms Vimpany was a serious one. The applicant suggests it was subjective in nature and that given the gravity of the allegation it is asserted by the applicant that the respondent did not have reasonable grounds to sustain that Ms Vimpany was guilty of the misconduct as alleged.

27      The remainder of the submissions referred to by Mayman C in her reasons for decision addressed the well-established test that applies to an employer when exercising their discretion to dismiss an employee.  The union's submissions also dealt with the effect of cl 2.8.22 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2014 (the agreement) which requires that the type of penalty applied must be proportionate to the conduct which gave rise to the breach of discipline or must be reasonably suitable in consideration of all of the circumstances of the case.

28      The remainder of the union's submissions dealt with matters personal to Ms Vimpany, including a submission that she had worked for the PTA for more than eight years and apart from the incident that occurred on 27 April 2013, relating to Mr Hammon and the associated internal processes, her employment record was satisfactory.

29      Whilst the PTA in its outline of submissions put a position to the Commission that the application should be dismissed, the PTA put a submission to the Commissioner that the question to be answered by the Commission was whether the accounts given by Ms Vimpany relating to what actually happened on 27 April 2013 were knowingly false or more succinctly, whether it was reasonable for the PTA to conclude that they were knowingly false [28].  Commissioner Mayman in her reasons also recorded a submission made on behalf of the PTA that the Commission should apply a 'loss of confidence' test.  This submission was [34] - [35] (AB 79):

The respondent must have total confidence in the employee concerned. There is enough, in the view of the respondent, if the employer on reasonable grounds has 'lost confidence' in the employee. Relevant decisions in this regard relating to Police and PTA Transit Officers in the view of the respondent are Pantovic v PTA [2011] WAIRC 00876 and Kelly v PTA [2009] WAIRC 00238. The respondent is of the view that the test outlined in each of these decisions is a test that is significantly lower than the test in Briginshaw v Briginshaw.

In circumstances where an employee is required to exercise enforcement powers it would be contrary to accepted wisdom to apply a 'high standard of proof' of dishonesty on the part of the employee before the employer can be said to have reasonably lost confidence in the employee.

30      Commissioner Mayman then set out the evidence given by each of the witnesses for the union.  The first witness was a polygraph examiner, Mr Charles Rahim.  He carried out a polygraph test of Ms Vimpany in December 2014.  His evidence is not material to this appeal.  In any event, his evidence was given little weight by the Commissioner.

31      Nine employees of the PTA gave character evidence in support of Ms Vimpany.  Each of those witnesses gave evidence to the effect that they had worked with Ms Vimpany for some time and found her to be trustworthy, honest, hardworking and good with customers.

32      Commissioner Mayman then set out the evidence of Ms Vimpany.  Ms Vimpany gave evidence that she had carried out her job with honesty and integrity for eight years.  Commissioner Mayman observed that Ms Vimpany said she had never been counselled or disciplined for anything relating to the issuance of infringements in the past nor about giving evidence in court.  Also that she had been awarded a Certificate of Appreciation by her managers and had received a commendation for her work performance at the Perth underground during the Sky Show in 2014.

33      Commissioner Mayman also referred to evidence given by Ms Vimpany in cross-examination where she was taken to four documents in which she set out her account of what she said occurred in the incident in question on 27 April 2013 and it was put to Ms Vimpany that it was false to portray Mr Hammon as the aggressor.  Ms Vimpany denied that to be the case and testified that each of the documents set out a true reflection of what had occurred.  Further, she rejected the PTA's assertion that the information provided was false in that it portrayed Mr Hammon as the aggressor and herself as the victim of the aggression.  It was also put to her that she did not suggest that her versions may have been affected in terms of their dependability or reliability by stress, overwhelmed feelings, intimidation by the employer, or anything else.

34      Commissioner Mayman then set out the evidence given on behalf of the PTA by Mr Steedman.  Mr Steedman's evidence was that he had made his findings based on all of the documents set out in Ms Vimpany's letter of termination.  When asked why he thought Ms Vimpany was being deliberately dishonest, Mr Steedman gave the following response [83] (AB 87):

I read Ms Vimpany's account, I read Jen Blake's account, I read Felix and Fab and I noticed significant differences between all the versions. Hammon, Fab and Felix's were similar and were at odds with Jan Vimpany's.

35      When giving evidence, Mr Steedman indicated that no one had raised the issue of Ms Vimpany's ability to issue infringements or ability to give evidence in court, nor had he considered any of Ms Vimpany's performance reviews when making the decision to dismiss.  He was of the opinion that the performance reviews were not relevant to his decision.  Nor did Mr Steedman review Ms Vimpany's personnel file before making the decision to dismiss her, or consider any commendations or adverse findings that may have been contained in Ms Vimpany's personnel file.  However, he did say he was not aware of any disciplinary action that had been taken with respect to Ms Vimpany prior to making the decision to dismiss.

36      After setting out the submissions made on behalf of the union and the PTA, Commissioner Mayman made the following findings:

(a) In respect of credibility of witnesses, she found that each of those persons who gave character references on behalf of Ms Vimpany was accepted as evidence given in good faith and was largely unchallenged [111] (AB 92).

(b) Ms Vimpany was insistent and unwavering that her version of events on 27 April 2013 remains a reality.  From the actual day, that being 27 April 2013, through all of the documents in which she gave her version of events, those documents were consistent [113] (AB 92).

(c) She had closely observed Ms Vimpany throughout the giving of her evidence and rejected that aspect of her evidence that related to the events of 27 April 2013 and 'rather considers that with the passage of time that, sadly, for Ms Vimpany she has convinced herself that her version of what occurred on 27 April 2013 has become the reality' [114] (AB 92).

(d) After having regard to the relevant findings made by Kenner C and the relevant documents that were reviewed by Mr Steedman in the investigation process, she found that the principal tasks before the Commission for determination were [118] (AB 95):

- having undertaken a review of relevant materials associated with the investigation into Ms Vimpany were there reasonable grounds for Mr Steedman to consider Ms Vimpany was guilty of the misconduct as alleged. In other words, had Ms Vimpany continued to deliberately give false versions of the incident on 27 April 2013 to the respondent;

- in the process of investigating the misconduct as alleged by the respondent was the conduct by the respondent procedurally fair; and

- was the penalty of dismissal as determined by the respondent a proportionate or disproportionate response?

(e) The investigation of the alleged misconduct adopted a procedure that was fair and reasonable in the circumstances [122] (AB 97).

37      Under the heading 'Summary', Mayman C set out her reasons for making the finding that Ms Vimpany was not harshly or unfairly dismissed.  These reasons addressed not only the reason why she found that the PTA had reasonable grounds to find that Ms Vimpany had given false accounts and done so knowing them to be false, but also set out the reasons why she was of the view that termination of employment was not harsh, oppressive or unfair.  In making these findings, the Commissioner took into account [128] (AB 98):

- aspects of Ms Vimpany's JDF as a PTA. In particular, the responsibilities of the position which require her to:

Monitor and assist Customers entering/leaving stations via fare gates. This duty includes checking validity of tickets, issuing of infringements, providing basic revenue protection and addressing fare evasion.

(exhibit A1, tab 41)

- Much was made of the integrity test particularly by the applicant's counsel. It was submitted at the time of Ms Vimpany's dismissal no such test existed and therefore it is impossible for Ms Vimpany to fail to meet the needs of such a test. The Commission finds that Ms Vimpany in her position as a PTA is expected to undertake enforcement skills as part of the responsibilities of the position of a PTA.

- the continuing insistence by Ms Vimpany that she remains the victim and Mr Hammon the aggressor. Ms Vimpany continues to hold the view that Mr Hammon was the individual displaying antagonistic behaviours on 27 April 2013. This is in spite of the findings by Kenner C in ARTBUI [sic] v PTA and the view now held by the applicant regarding the Kenner C's findings:

The second thing was to make a determination about whether the accounts were false, which have been dealt with by Commissioner Kenner, it is not in dispute in these proceedings. We're not going there and we're not - we have no intention of going there; never did. I know my learned friend said it's no longer a string in our bow, but it never was a string in our bow because we - at no point have we argued that the Commission should be looking to overturn the findings made by Commissioner Kenner or anything along those lines.

(ts 145)

- Ms Vimpany in response to questioning from the respondent's counsel continues to insist she remains the victim and Mr Hammon the aggressor (ts 77,78);

- persons classified as a PTA have a higher than normal duty to be honest and trustworthy; and

- that the respondent on reasonable grounds 'lost confidence' in the employee.

38      Commissioner Mayman also had regard to each of the written accounts provided by Ms Vimpany and found that the views relating to the two incidents on 27 April 2013 established a course of conduct on the part of Ms Vimpany.  Commissioner Mayman then found [130] (AB 99):

The language used by Ms Vimpany is clear. Ms Vimpany states her memory of what occurred is clear and the Commission finds overall there was nothing to impair Ms Vimpany's judgement on the separate occasions she was required to recount events or indeed chose to submit her own views as to what occurred on 27 April 2013. The Commission is not of the view there was anything amiss that may have affected the reliability of the versions that were given on each occasion. The Commission is therefore of the view that the respondent was reasonably entitled to ground the view that Ms Vimpany had given false accounts and had done so knowing them to be false.

39      As to the review conducted by Mr Steedman, Mayman C found that having undertaken a review of the relevant materials associated with the investigation that there were reasonable grounds in those materials for the PTA to consider Ms Vimpany was guilty of the misconduct as alleged.  Commissioner Mayman did, however, find that whilst the investigation conducted by Mr Steedman was thorough, Mr Steedman had failed to take into account the circumstances relating to Ms Vimpany's work history, her years of service and the record contained within her personnel file.  She, however, found that that failure did not of itself result in Ms Vimpany being treated harshly, oppressively or unfairly by the PTA in its ultimate decision to terminate her employment.

40      Under the heading 'Penalty', the Commissioner set out cl 2.6.9 of the agreement which provides the employer reasonable opportunity to be heard and cl 2.6.10 which provides for a range of disciplinary options open to the PTA.  These are [124] (AB 97):

a) a reprimand;

b) a transfer within the Employer;

c) a reduction in grade; or

d) dismissal.

41      After setting out the submissions made by the parties in respect of penalty, the Commissioner found that she was of the view that given the period of time over which false allegations were made by Ms Vimpany the penalty of dismissal was proportionate to the allegations as committed.  She also observed that the failure to be honest in an investigation process is considered serious (Pinker v Director General Department of Education [2014] WAIRC 01312; (2014) 94 WAIG 1928).

Grounds of appeal

42      The grounds of appeal in this matter are:

2.1 The Commissioner erred in dismissing CR 32 of 2014 (See [2015] WAIRC 00389) on the basis that she found:

a. "The Commission is therefore of the view that the respondent was reasonably entitled to ground the view that Ms Vimpany had given false accounts and had done so knowing them to be false"; (Reasons for Decision at 130) and,

b. "The Commission considers that having undertaken a review of the relevant materials associated with the investigation into Ms Vimpany, there were reasonable grounds for the respondent to consider Ms Vimpany was guilty of the misconduct as alleged." (Reasons for Decision at 131)

in circumstances where:

c. it was not reasonably open on the evidence for the Commissioner to make those findings; or,

d. it was unreasonable or plainly unjust for the Commissioner to make those findings.

2.2 The Commissioner erred in dismissing CR 32 of 2014 by failing to provide adequate reasons for her finding that:

"The Commission considers that having undertaken a review of the relevant materials associated with the investigation into Ms Vimpany, there were reasonable grounds for the respondent to consider Ms Vimpany was guilty of the misconduct us alleged." (Reasons of Decision at 131)

2.3 The Commissioner's decision to dismiss CR 32 of 2014 was unreasonable or plainly unjust in circumstances where the Commission accepted:

a. Ms Vimpany honestly believed that her recollection of the events was truthful; (Reasons of Decision at 114)

b. that Mr Steedman failed to take into account "those circumstances relating to Ms Vimpany's work history, her years of service and the record contained within her personnel file"; (Reasons of Decision at 133) and,

c. the character evidence of Ms Jennifer Blake, Mr Malcolm Heatherly, Mr Robert Hall, Mr David Scott, Mr Aleksander Sekulovski; Mr John Nobel, Mr Mark Counsel, Ms Helen Martin and Mr Barry Watts. (Reasons of Decision at 111)

The PTA's submissions in this appeal

43      The PTA points out that the union accepted that the question for the Commission at first instance was whether there were reasonable grounds for the PTA to believe on the information available to it that the union's member had committed the misconduct alleged (AB 32).

44      The PTA argues it was clearly within the bounds of a reasonable exercise of the Commissioner's discretion, on the evidence and argument before her, to find that reasonable grounds existed.

45      Thus, it says the only question for Mayman C was whether the PTA acted reasonably in determining that the several accounts given by the union's member to the PTA (which were plainly inconsistent with the material facts found in respect of the incident on 27 April 2013 by Kenner C), were made dishonestly.

46      The PTA contends that Mayman C's reasons for concluding that the several accounts given by Ms Vimpany to the PTA had been made dishonestly were clear and set out:

a) Her own impressions of the appellant's member ([114] of reasons for decision);

b) That the version of the appellant's member contained in her several accounts and the version of witnesses as to what happened on 27 April 2013 were diametrically opposed (adoption of Commissioner Kenner's findings [116]);

c) The clarity of the language used by the appellant's member in her accounts to the respondent ([130]);

d) That the appellant's member insisted that her memory of events was clear and unimpaired at all times, that is the appellant's member did not put forward an alternative explanation for the inconsistencies consistent with honesty ([130]); and

e) Most relevantly, that the respondent, having conducted an appropriate investigation and adopted an appropriate process, was reasonably entitled to come to the conclusion that it did in relation to the honesty of the appellant's member ([131]).

47      It says that one of the possibilities of why Ms Vimpany gave false accounts to the PTA was that Ms Vimpany had been dishonest in her accounts about the incident.  Ms Vimpany maintained that her four accounts were true in the disciplinary process and Mr Steedman had before him accounts from four persons as to what happened on 27 April 2013, all of them consistent in their portrayal of Ms Vimpany as the aggressor and all of them diametrically opposed to the four accounts given by Ms Vimpany.  Ms Vimpany simply maintained that her accounts were true.  They, of course, were not true and Kenner C had so decided.  Thus, it says that one possible conclusion reasonably open to Mr Steedman to explain the gulf between the versions was that Ms Vimpany had not been honest in the four accounts that she gave.  He came to that conclusion after what Mayman C described as a thorough consideration of and careful weighing up of all the material before him.  He also decided that in the face of this dedicated course of dishonesty that dismissal was an appropriate disposition of that matter.

48      The PTA argues that the conclusion of Mr Steedman was clearly possible and reasonable and all that Mayman C did was find that the decision made by Mr Steedman on behalf of the PTA was possible and reasonable.  There are only two options or reasons for Ms Vimpany's conduct, one that Ms Vimpany was not being honest, or that Ms Vimpany was delusional.  Thus, there was dishonesty or there was delusion and Mr Steedman found dishonesty.

49      It is conceded by the PTA that others may have found differently, but it says that is not to the point.  Commissioner Mayman found that Mr Steedman had acted reasonably and others may have in turn decided differently to Mayman C, but again, that is not to the point; it was within the reasonable bounds of Mayman C's discretion to so decide on the material before her and she did carefully explain her reasons for doing so.

50      It is also conceded by the PTA that in the Commissioner's reasons under the heading 'Summary' to an extent she mixed together her findings in respect of misconduct and penalty.  The PTA says, however, this is not material and does not produce any error because the two questions do bear upon each other.

51      It says that the Commissioner's reasons in relation to penalty are succinctly and clearly set out at [127] and [128] of her reasons for decision (AB 98).  In particular, they say it is clear that in exercising her discretion Mayman C took account of the matters that the union argued that the PTA had not properly taken into account (ie  the seven or eight years of service and Ms Vimpany's 'positive employment record' and the character and positive performance evidence led by the union in relation to its member).  Commissioner Mayman noted the contents of Ms Vimpany's JDF and noted that there is an expectation of the person holding such a position to undertake enforcement duties.  She also noted Ms Vimpany's intransigency in the face of the truth and that the intransigency continued in the hearing before her.  In addition, Mayman C noted that persons classified as a passenger ticketing assistant have higher than normal duty to be honest and trustworthy and she found that on reasonable grounds the PTA had lost confidence in Ms Vimpany.

52      The PTA also argues that the reasons for decision of Mayman C are, with respect, more than adequate.  It says the reasons are very thorough, clear and well expressed.

53      The PTA says that for the Full Bench to have jurisdiction to interfere with the decision of Mayman C it would need to find two things.  It is required to find that it was unreasonable for Mr Steedman to find dishonesty on the part of Ms Vimpany and that Mayman C erred in her discretion in not interfering.  In particular, it says that the Full Bench would have to find error in the reasons given by Mayman C at [131] in which she finds that having undertaken a review of relevant materials associated with the investigation into Ms Vimpany, there were reasonable grounds for the PTA to consider Ms Vimpany was guilty of the misconduct as alleged.  It would have to find it was far more reasonable for Mr Steedman to find that Ms Vimpany was delusional rather than that she had deliberately lied.

54      The PTA also contends that for the Full Bench to have jurisdiction to interfere with the decision of Mayman C it would have to find error with the findings that Mr Steedman's review was thorough, detailed and just according to the circumstances.

55      Thus, the PTA says that the appeal should be dismissed.

Appeal against exercise of discretion

56      In determining the matter referred for hearing and determination, Mayman C was required to evaluate the decision of the PTA to dismiss Ms Vimpany and in doing so determine whether the PTA had reasonable grounds to find in effect Ms Vimpany had committed the alleged acts of misconduct.  Thus making a finding that the PTA had reasonable grounds involved an exercise of discretion.

57      The Full Bench is empowered to set aside a discretionary decision in limited circumstances.  A discretionary decision cannot be set aside because members of the Full Bench would have exercised the discretion in a different way.

58      In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ set out circumstances in which an appellate court should intervene to set aside a discretionary decision.  At 504 - 505 their Honours observed:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Conclusion

59      The misconduct alleged against Ms Vimpany was serious.  The PTA alleged that Ms Vimpany knowingly (AB 260):

• [G]ave a false account of Mr Hammon's actions in his dealings with you on the afternoon of 27 April 2013 by claiming that he 'screamed' at you in front of your colleagues, during both interactions, and during the second interaction that he got out of his chair and stood face to face with you in your personal space - claims of fact which you relied upon in support of the conclusion that his behaviour was intimidating and bullying towards you.

• [P]rovided a similar false account in support of a 'grievance' raised by Ms Martin on your behalf on 24 May 2013.

• [M]ade a false allegation on 14 May 2013 in an OSH incident report of bullying and harassment by a male supervisor on 27 April 2013.

60      These allegations could be characterised as among the most serious allegations of misconduct an employer can make against an employee.  Although the allegations refer to two interactions, the allegations were only found to be proved insofar as they related to Ms Vimpany's accounts of the second interaction with Mr Hammon (AB 15).

61      The allegations do not simply allege the making false statements; the allegations go further than that.  By alleging Ms Vimpany did so knowingly, to be satisfied that the allegations were proved, the decision-maker must be satisfied that in making the false statements Ms Vimpany deliberately intended to deceive the PTA.  Put another way, the decision-maker must be satisfied that the statements made by Ms Vimpany were made with specific intent; that is, at the time the statements were made, they were made deliberately, by her, with the knowledge they were untrue.  Thus, the decision-maker must be satisfied that the statements were made in the absence of an honest belief that they were true.

62      The proceedings before Mayman C did not proceed on the basis of whether on a review of the material before Mr Steedman the allegations were proven.  The parties in written submissions (filed prior to the hearing of evidence) put to Mayman C that what was to be arbitrated was whether the decision-maker, Mr Steedman, had reasonable grounds for believing Ms Vimpany was guilty of the alleged misconduct.  However, the Commissioner did hear direct evidence from Ms Vimpany about what she said occurred on 27 April 2013.  The basis for confining the Commissioner's task into enquiring whether Ms Vimpany had been harshly, oppressively or unfairly dismissed to whether the PTA had acted reasonably is reliance upon the reasons for decision of myself and Beech CC (with whom Harrison C agreed) in The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203.  In that matter the Full Bench was called upon to consider the onus of proof and the scope of the enquiry of the Commission of a matter referred under s 29(1)(b)(i) of the Act, which required a consideration of the assessment of evidence of misconduct where the onus lies upon the employer and the tests applied in Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677 and in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224.  It was found in Newmont that when an employee is summarily dismissed for misconduct there is an evidentiary onus cast upon the employer to prove the misconduct occurred (679).  In Bi-Lo, the test applied is that an employer will discharge the evidentiary onus in respect of the proof of misconduct, if after conducting a procedurally fair, full and extensive investigation, the employer honestly and genuinely believed, and had reasonable grounds for believing on the information available, that the employee was guilty of the misconduct alleged (229).  In Drake-Brockman, we observed that Bi-Lo deals with the test to be applied where the misconduct is theft, other acts of dishonesty or matters where the gravity is such that damage can be done to an employer's business [56].

63      Whether the Bi-Lo test should be applied to allegations of misconduct that allege specific intent to carry out an act of misconduct is not a matter open to be considered in this appeal because of the matters the parties put to the Commission, for hearing and determination in CR 32 of 2014.

64      In this matter the findings made by Mayman C going to whether the alleged misconduct had been established can be summarised as:

(a) The accounts given by Ms Vimpany in which she set out her version of the events of the two incidents on 27 April 2013 had clarity and established a course of conduct of giving false accounts.

(b) Contrary to the findings made by Kenner C in CR 3 of 2014 that Ms Vimpany had given false accounts of events, Ms Vimpany in the hearing in CR 32 of 2014 did not depart from her version of events and insisted she remained the victim and Mr Hammon the aggressor.

(c) There is no evidence that Ms Vimpany's judgment was impaired when she recounted the events in question, or that there was anything amiss that could have affected the reliability of the versions of events that were given on each occasion.

(d) Ms Vimpany's evidence about the events of 27 April 2013 is rejected.

(e) With the passage of time, Ms Vimpany has convinced herself that her version of what occurred on 27 April 2013 has become the reality.

65      Despite the findings made by Kenner C that Ms Vimpany's version of events is false and that this finding was accepted in the proceedings before Mayman C, Ms Vimpany has at all times maintained that she was the victim and Mr Hammon was the aggressor displaying antagonistic behaviour.  One of the documents relied upon by Mr Steedman in finding Ms Vimpany had knowingly given false accounts was a letter from Ms Vimpany dated 29 August 2014 which was provided by her to the PTA after Kenner C delivered his findings on 1 August 2014 (AB 263 - 264) in which she stated that she maintained her version of events.  Whilst this letter to the PTA was sent by Ms Vimpany prior to the hearing of the appeal against the decision of Kenner C in FBA 11 of 2014, the grounds of the appeal did not challenge the findings made by Kenner C that Ms Vimpany had on 27 April 2013 conducted herself in the manner complained of by Mr Hammon.  Despite this Ms Vimpany refused to accept that she was the aggressor in the second incident.

66      When regard is had to the factual circumstances of the second incident, it cannot be said that there was sufficient similarity in the accounts of Ms Vimpany, Mr Hammon and the other employees of the PTA who witnessed the exchange between Ms Vimpany and Mr Hammon.  Commissioner Kenner found there was a large gulf in the versions of events [64].  Commissioner Kenner accepted the evidence given by Mr Hammon and the other employees who witnessed the altercation and found that when Ms Vimpany returned to the office where Mr Hammon was seated she went up to the back and side of him, shouted at him, pointed her finger at him and his face whilst leaning over towards him [62].  Ms Vimpany, however, maintained that she approached Mr Hammon and asked why had he spoken to her and Ms Blake like that (referring to the first incident).  After replying she says that Mr Hammon stood and pushed his chair up, came into her face and shouted at her.

67      It is apparent from the observations of Kenner C in his reasons for decision in CR 3 of 2014 that the second incident was very short.

68      It is notable that Ms Vimpany gave her first account in an email sent on 13 May 2013 (exhibit A4, AB 523) after being notified of Mr Hammon's complaint on 10 May 2013 (agreed facts, AB 266).  Thus, for the allegation to be made out, it follows that Ms Vimpany must be found to have formed an intention to give a false account prior to or on 13 May 2013.  Also in light of Mayman C's findings about the consistency of the version of events given by Ms Vimpany, it follows that Ms Vimpany must be found to have either formed that intention to give a false account or convinced herself that her version was real prior to providing the first account on 13 May 2013.

69      The finding that Ms Vimpany has over time convinced herself that her version of events is real is not challenged in this appeal by the PTA.  Thus, when accepted, is the finding inconsistent with or provide grounds to disturb the finding made by Mayman C that there were reasonable grounds for the PTA to consider Ms Vimpany guilty of the misconduct as alleged?

70      When the finding by Mayman C that Ms Vimpany had convinced herself that her accounts of the events in question were truthful, is considered with the finding made by Mr Steedman that Ms Vimpany had knowingly given false accounts, these findings appear to be directly inconsistent.  This is because Mr Steedman was required to be satisfied that Ms Vimpany had deliberately made a decision to give a false account yet the finding by Mayman C could be said to put that in doubt.

71      The task of Mayman C was not, however, to determine whether Ms Vimpany had in fact deliberately made a decision to give a false account, but to determine whether there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the alleged misconduct.  This was the sole issue for her to determine pursuant to the terms of the declaration and order that she delivered on 11 March 2015 which otherwise dismissed the other matters the parties had referred for hearing and determination.  Thus the terms of the declaration delivered on 11 March 2015, required Mayman C to review the material and matters taken into account by Mr Steedman and assess whether there was sufficient evidence for the PTA to reasonably hold the belief that Ms Vimpany was guilty of the misconduct.

72      Given the serious nature of the allegation made against Ms Vimpany, and given that the allegations could be said to be in a category of grave moral delinquency, Mayman C was required to be satisfied that the evidence and material before Mr Steedman could reasonably satisfy a standard of persuasion that established the allegations on the balance of probabilities, clearly, unequivocally, strictly or with certainty (see Briginshaw v Briginshaw (362 - 363) (Dixon J).  There must be more than mere conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (Nominal Defendant v Owens (1978) 22 ALR 128, 132).

73      Although Mayman C set out the three principal tasks for determination in [118] as a consideration of whether there were reasonable grounds for Mr Steedman to consider Ms Vimpany was guilty of the misconduct alleged, which was separate from the issues of procedural fairness and the penalty of dismissal, when making her findings about these issues, Mayman C did not consider the first issue from the third.

74      Nor did she consider whether her finding, that Ms Vimpany had convinced herself that her version of events was real, stood with Mr Steedman finding that Ms Vimpany had given the accounts to the PTA knowing the accounts were false.

75      Mr Steedman based his decision solely on the review of documents, including the reasons for decision of Kenner C.  He found that Ms Vimpany had knowingly given false accounts of the second incident solely because her version of events was different to Mr Hammon and the two other PTA employees who witnessed the incident (ts 126, AB 221).

76      In circumstances where the allegation of misconduct required not only proof of specific intent but is also a very serious allegation, I do not accept the submission that the task before Mayman C required her to only be satisfied that the inference drawn by Mr Steedman was one of two explanations open for giving false accounts.

77      To be satisfied that there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the alleged misconduct (by having regard to the evidence and material before Mr Steedman), in the absence of any direct evidence that Ms Vimpany had deliberately concocted her version of events of the incident in question, the most probable inference open on that evidence and material needs to be that Ms Vimpany had intended to give a false account. 

78      Turning to the evidence given in the proceedings before Mayman C, the question to be answered is whether the most probable inference that could be drawn (if she stood in the shoes of Mr Steedman), was that Ms Vimpany had intended to give a false account; that is, she intended to conduct herself dishonestly.  When regard is had to the following matters the answer must be, 'No', as:

(a) by alleging that Ms Vimpany knowingly gave false accounts, the PTA had cast a high bar of conduct that a reasonable decision-maker had to be satisfied of;

(b) Mr Steedman merely relied upon the fact that Ms Vimpany's accounts were inconsistent with the accounts given by Mr Hammon and the other witnesses.  Yet there must be more than giving inconsistent accounts (or, put another way, accounts that were not substantially inconsistent between each account but inconsistent with accounts of other witnesses) to draw an inference that Ms Vimpany had knowingly given false accounts.  Commissioner Kenner's findings do not assist as his findings left open the question whether Ms Vimpany had in giving her accounts formed an intention to give a false account (FBA 11 of 2014, [48] - [52]); and

(c) Mr Steedman had not himself interviewed Ms Vimpany (for which he cannot be criticised as Ms Vimpany declined an opportunity to speak to him).  The consequence of this was that Mr Steedman had no direct evidence of Ms Vimpany's intentions at any material time.

79      In these circumstances, it could not be found by Mayman C with sufficient certainty that there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the misconduct alleged.  This is particularly so when Mayman C herself had heard direct evidence on oath from Ms Vimpany and found that Ms Vimpany had with the passage of time convinced herself that her version of what occurred on 27 April 2013 has become the reality.

80      For these reasons, Mayman C erred in law by acting upon a wrong principle, in that she did not properly analyse the evidence and material before her by applying the requisite standard of proof as required by the test in Briginshaw v Briginshaw.

81      The PTA's submission that the reasons for decision given by Mayman C are clearly adequate is correct.  Ground 2.2 of the grounds of appeal has not been made out.  Commissioner Mayman set out her reasons at length and adequately discloses her reasons for dismissing CR 32 of 2014.  The findings made and the reasons deal with and set out clearly the relevant law, substantial issues and findings of fact upon which the decision turned as required by the mandatory duty cast upon a member of the Commission pursuant to s 35(1) of the Act (see the observations in Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1985) 65 WAIG 2033, 2034 (Brinsden J) and Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990, 996 - 999 (Nicholson J)).

82      I do not find it necessary to determine whether ground 2.3 of the grounds of appeal is made out.  I do, however, make the observation that if the finding of misconduct in the specific terms alleged by the PTA were to be sustained, the serious nature of the proven misconduct is so incompatible with the enforcement duties required of a passenger ticketing assistant that any history of unblemished service and otherwise good character would not render the decision to dismiss Ms Vimpany unreasonable or unjust.

83      Consequently, I am of the opinion that ground 2.1(a), (b) and (c) of the grounds of appeal has been made out and that a decision should have been made by Mayman C in CR 32 of 2014 that the PTA did not have reasonable grounds to dismiss Ms Vimpany for the particularised alleged misconduct and in the circumstances the dismissal of Ms Vimpany for that alleged misconduct was unfair.

84      For these reasons, I am of the opinion that the operation of the decision should be suspended and the case remitted to the Commission for further hearing and determination as to whether Ms Vimpany should be reinstated as a passenger ticketing assistant, whether orders should be made to maintain continuity of employment and payment of any loss remuneration or alternatively whether Ms Vimpany should be paid compensation.

BEECH CC

85      I agree with Smith AP.

HARRISON C

86      I have had the benefit of reading the draft reasons for decision of her Honour, the Acting President.  I agree with those reasons and have nothing to add.