2016 WAIRC 00104
APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NO. CR 13 OF 2015 GIVEN ON 18 AUGUST 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00104

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER

HEARD
:
WEDNESDAY, 18 NOVEMBER 2015

DELIVERED : THURSDAY, 25 FEBRUARY 2016

FILE NO. : FBA 11 OF 2015

BETWEEN
:
THE GOVERNING COUNCIL OF KIMBERLEY TRAINING INSTITUTE
Appellant

AND

THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED)
Respondent

ON APPEAL FROM:


JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : ACTING SENIOR COMMISSIONER P E SCOTT
CITATION : [2015] WAIRC 00811; (2015) 95 WAIG 1483
FILE NO. : CR 13 OF 2015

CatchWords : Industrial Law (WA) - Appeal against decision of single Commissioner - Claim of harsh, oppressive or unfair dismissal referred for hearing - Misconduct admitted - Whether Commissioner erred in finding that dismissal was disproportionate to the misconduct - No appellable error demonstrated - Turns on own facts
Legislation : Industrial Relations Act 1979 (WA) s49
Result : Appeal dismissed
REPRESENTATION:
APPELLANT : MR D J ANDERSON (OF COUNSEL)
RESPONDENT : MR M AMATI
Solicitors:
APPELLANT : STATE SOLICITOR FOR WESTERN AUSTRALIA

Case(s) referred to in reasons:
Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Civil Service Association of WA Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845
Concut Pty Ltd v Worrell (2000) 75 ALJR 312
Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost [2012] FCAFC 46
Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893; (2003) 129 IR 270
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266
Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
North v Television Corp Ltd (1976) 11 ALR 599
Randall v Aristocrat Leisure Ltd [2004] NSWSC 411
Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
The United Furniture Trades Industrial Union of Workers, Western Australia v Pay-Co Products (1990) 70 WAIG 2497
Warren v Coombes (1979) 142 CLR 531
Case(s) also cited:
AWU on behalf of Mason v Incitec Ltd [2004] NSWIRComm 1030
Bagatur v Valspar (Australia) Corp Pty Ltd (Australian Industrial Relations Commission, 6 January 2006, Lawson C BC 200670392)
Brotherton v Australian Postal Corporation [PR953975] (Commissioner Raffaelli)
Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386; (2000) 81 WAIG 4
Ellis v Manbulloo Ltd [2011] FWA 600
Galante v Majestic Plumbing Pty Ltd [PR932230] (Deputy President McCarthy)
Geyer v Downs (1977) 138 CLR 91
Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220
Hands v Securency Pty Ltd (Australian Industrial Relations Commission, PR974625, U2006/3851, 15 November 2006, Tolley C)
Junacko v Hewlett Packaging Australia Pty Ltd (Australian Industrial Relations Commission, PR974221, 3 October 2006, Larkin C).
Kleidon v Toyota Motor Corporation Australia Ltd [2009] AIRCFB 624
Massoud v SITEL Corp Australia Pty Ltd [2001] NSWIRComm 218
Moran v Department of Education and Training (Australian Industrial Relations Commission, PR946470, U2003/6083, 28 May 2004, Lewin C)
New South Wales Department of Education and Training v New South Wales Teachers Federation (obh Missfield) (2006) 155 IR 257
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Porter v Eltin Underground Operations Pty Ltd [2000] WAIRC 224.
Selak v Woolworths Ltd [2008] AIRCFB 81
Townsend v Westralian Seafood Distributors [2011] FWA 1889
Ueckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123
Vairy v Wyong Shire Council (2005) 223 CLR 422
West v Diamond Poultry No 2 Pty Ltd T/as DA Hall & Co [2011] FWA 1425

Reasons for Decision
SMITH AP:
The appeal
1 This is an appeal instituted by an employer under s 49 of the Industrial Relations Act 1979 (WA) (the Act). The appeal is against a decision made by the Commission at first instance on 18 August 2015 in CR 13 of 2015. The appeal challenges:
(a) a declaration that the appellant harshly, oppressively and unfairly dismissed James (Alex) Petticrew; and
(b) orders which have the effect of reinstating the employment relationship of Mr Petticrew without any loss of continuity.
Factual background
2 Mr Petticrew (a member of The State School Teachers' Union of W.A. (Incorporated) (the union)), was first employed by The Governing Council of Kimberley Training Institute (the Institute) on 10 May 2006 as a casual lecturer in maritime security. He was then employed by the Institute for a fixed-term from 18 May 2007 until he was made a permanent employee on 21 January 2008. Mr Petticrew was first suspended on full pay on 26 February 2014. This suspension occurred following an incident at the workplace on 24 February 2014 which led to the Institute alleging Mr Petticrew had engaged in misconduct.
3 The factual circumstances which led to the allegations made against Mr Petticrew were as follows:
(a) Mr Petticrew has a daughter who in 2014 was approximately 16 years of age. She was friendly with two students, HC and JB, who were also about 16 years of age. Mr Petticrew's family and JB's mother had known each other since their children were small and had been friendly for many years. JB often came to Mr Petticrew's house. However, shortly before the incident occurred at Mr Petticrew's place of employment, Mr Petticrew's house had been burgled a number of occasions. On one occasion he found JB in the house at night unexpectedly. He allowed JB to stay the night on the couch. When Mr Petticrew got up the next morning JB had left the house and money was missing from Mr Petticrew's wallet. Mr Petticrew strongly believed that JB was responsible for the burglaries and for money having gone missing from his home.
(b) At that time JB was a high school student and was also enrolled at the Institute for a VETiS program, but he was not at the same campus as Mr Petticrew, nor was he one of Mr Petticrew's students.
(c) Mr Petticrew also knew HC through his daughter and HC knew that Mr Petticrew was a lecturer at the Institute.
(d) On 24 February 2014, Mr Petticrew was working at the Institute Broome campus when he called in to the automotive workshop on campus to see if he could obtain some advice from another lecturer about repairs to his own trailer. At that time there was a class of VETiS students working in the workshop. When Mr Petticrew was speaking to the lecturer, HC approached Mr Petticrew and greeted him. Mr Petticrew asked HC if he had seen JB. After HC responded, Mr Petticrew told HC to give JB a message, that if he saw JB near his house, he would 'break his fucking legs'. Mr Petticrew's comment was overheard by the lecturer and at least one other student.
4 These facts were, by the time the matter was heard by the Commission in CR 13 of 2015, substantially agreed. The parties agreed to the following facts (AB 74):
1. On 24 February 2014, Mr Petticrew was in a Vocational Education and Training in Schools class (VETiS) talking to Darrel Lee, the lecturer for the VETiS class.
2. Mr Petticrew was approached by Master HC, a student of the VETiS class; whom he knew as he is a friend of his daughter.
3. Mr Petticrew asked Master HC if he had seen JB.
4. Master HC told Mr Petticrew that he had not seen JB.
5. Mr Petticrew told Master HC to give Master JB a message that if he saw Master JB near his home he would break his fucking legs.
6. Mr Petticrew's comment was overheard by at least one other student.
Events that occurred immediately following the incident on 24 February 2014
5 In an email sent by Ms Karen Dickinson on 26 February 2014, the managing director of the Institute, to Mr Petticrew, Mr Petticrew was advised that effective immediately, he was not required to attend work at the Institute until the matter had been investigated and not to come onto the campus until further notice and that his pay would not be affected.
6 On the following day, Mr Petticrew sent an email in which he admitted the conduct which is set out in the agreed facts. He admitted that he was probably wrong passing a comment in front of students, but stated it was in the heat of the moment. In the email he also explained that he had been battling some personal issues regarding his daughter, combined with a very tense time during the audit process, he had a number of recent medical procedures and on top of being robbed five times, he had 'just lost it'. He also acknowledged that his conduct was inappropriate, said that the words were spoken in haste and that he deeply regretted his actions. He also explained that:
(a) he had been friends of JB's mother for almost 14 years and that in recent times there had been a marked change in JB's behaviour and they had found out that he was heavily into drugs;
(b) JB had been banned from his house, but had turned up a few months ago saying that his mother had kicked him out of their house and he was hungry and had nowhere to go. They fed him, gave him a bed for the night and advised his mother he was safe; and
(c) it was after that point in time that the robberies occurred and he knew it was JB because he was the only one who could get past their dog.
7 Mr Petticrew also stated in the email that he had gone to see JB's mother and that he was met at the door where she immediately began defending JB. He realised this was a no win situation and he left.
8 On the same day, Mr Petticrew wrote JB's mother a short note of apology. In the text of that note he stated as follows (AB 104):
I am writing to apologise for my comments at work the other day. Although I am frustrated with being robbed, and, I am not saying whether JB is the culprit or not, you know I would never do anything to hurt him. We have been friends for too long to let this come between us. My comments were only meant to deter him if it was him. I have since installed CCTV cameras and perhaps this will identify who the real thief really is. God, he is like a son to us and we are very sorry to see him off the rails. We can only hope that he grows out of it quickly before he hurts himself or gets into trouble.
Once again, my deepest apologies,
9 In the meantime, JB's mother had applied for a restraining order on behalf of JB. The matter was heard ex parte before a Magistrate on 28 February 2014. The Magistrate heard evidence from JB's mother as to what JB had told her. The Magistrate indicated that he accepted the evidence for the purposes of the hearing although much of it was hearsay. She said that Mr Petticrew had come to her house in the early morning and was banging on the front window, screaming that 'if I see your son, I'm going to kill him; I'm prepared to go to jail and do time for this'. On the basis of this information, the Magistrate issued a restraining order. His Honour noted that the threat to kill and to be prepared to go to jail for it was of concern and that the threat to kill and the threat of assault was 'an act of abuse'. The Magistrate advised JB's mother that:
(a) if Mr Petticrew did not object to the order, it would continue to operate for two years; and
(b) if Mr Petticrew objected to it, it would come back to court.
10 Mr Petticrew did object to the restraining order and the matter came back to court on 17 June 2014. On that occasion JB's mother did not attend and the order was cancelled that day.
Disciplinary process - Mr Petticrew's employment terminated three times and reinstated twice
11 On 28 February 2014, Mr Petticrew was provided with particulars of the allegations made against him. In a letter dated 28 February 2014 to him from Ms Dickinson she stated (AB 113 - 115):
I have recently been made aware of a matter relating to you which, if substantiated, may be a breach of discipline.
The details of the allegations are:
Ÿ You have allegedly behaved in a manner that is threatening, disrespectful, irresponsible, and unprofessional and has resulted in bringing the reputation of Kimberley Training Institute (KTI) into disrepute. It is further alleged that you have not treated your colleagues and students of KTI with proper regard for their interests, rights, safety and welfare. It is specifically alleged that:
- On Monday 24th February 2014 you entered a KTI automotive VETiS class and said to one of the students (HC), in front of the rest of the class 'where the fuck is JB I want to snap his legs off'. (JB was not in the class).
- You have told some of the VETiS students that you are angry with JB because he stole your wallet and that you will 'fucking kill him' (referring to JB).
JB and the students in the VETiS class are students of Broome Senior High School.
If substantiated, these acts may constitute a breach of discipline in one or more of the following ways:
Ÿ You contravened Kimberley Training Institute's Code of Conduct which states that Kimberley Training Institute employees are to:
ᴑ Behave in an ethical and professional manner at all times and not act in any way that brings Kimberley Training Institute into disrepute.
ᴑ Treat members of the public and colleagues with respect, courtesy, honesty and fairness, having proper regard for their interests, rights, safety and welfare
ᴑ Communicate with all internal and external parties in a way this is open, transparent, accessible, responsible, respectful and professional.
Ÿ You contravened the Public Sector Code of Ethics, specifically the requirements that public sector employees:
ᴑ Treat people with respect, courtesy and sensitivity and recognise their interests, rights, safety and welfare.
Ÿ You contravened an applicable section of the PSM Act, namely section 9 which states that public sector employees are to:
ᴑ Act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and
ᴑ Are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees
I must stress that while I have decided to deal with the matter as disciplinary, I have made no final decision regarding the allegations. In dealing with this matter I will observe the principles of procedural fairness.
Accordingly I will provide you with the opportunity to respond to the above allegation. On receiving the information I may decide:
Ÿ to take no further action;
Ÿ that I have adequate information to make a finding as to whether a breach of discipline has occurred; or
Ÿ that I need to make further enquiries to determine if a breach of discipline has occurred.
Consistent with procedural fairness there are some things that you should know:
Ÿ If I do find that a breach of discipline has occurred, the action that I may take ranges from counselling to dismissal.
Ÿ You may request a support person or representative to be present at any meetings or interviews that are held in relation to the disciplinary process.
I encourage you to provide a written response within 7 days of the date of this letter. Please mark the envelope containing your response 'Private and Confidential' to ensure the envelope is not opened as part of the usual mail sorting and distribution process. Alternatively you may choose to send your written response electronically to my email address.
My contact details are:
Karen Dickinson, Managing Director
PO Box 1380
Broome WA 6725
Email: Karen.Dickinson@kti.wa.edu.au
If you choose not to provide a written response to the allegations I will act as if you deny them.
As previously advised, until this matter has been finalised you are directed not to attend the workplace unless you are invited to attend an appointment to address the allegations made or invited by myself, Markus Beuke or Jeff Cooper to do so.
I would like to make you aware that all matters relating to the allegations are confidential and I ask that you do not discuss it with others in the workplace.
I understand that receiving this notification may be distressing. I encourage you to access the services provided by Kimberley Training Institute's Employee Assistance Provider if you feel you need short to medium term counselling. Kimberley Training Institute's provider is OPTUM (formerly PPC Worldwide) and operates 24 hours per day, seven days per week. OPTUM's contact number is 1300 361 008.
Should you require further information in relation to the process being followed please contact Peta Townrow by telephone on 91938911 or email at Peta.Townrow@kti.wa.edu.au.
I have attached a copy of Kimberley Training Institute's Staff Disciplinary Policy and Process for your information.
12 Mr Petticrew responded to the allegations in a letter dated 12 March 2014 (AB 118 - 119).
13 By letter dated 24 March 2014 by Ms Dickinson, Mr Petticrew was informed that the following allegations were substantiated (AB 125 - 127):
Allegation
You have allegedly behaved in a manner that is threatening, disrespectful, irresponsible, and unprofessional and has resulted in bringing the reputation of Kimberley Training Institute (KTI) into disrepute. It is further alleged that you have not treated your colleagues and students of KTI with proper regard for their interests, rights, safety and welfare. It is specifically alleged that:
- On Monday 24th February 2014 you entered a KTI automotive VETiS class and said to one of the students (HC), in front of the rest of the class 'where the fuck is JB I want to snap his legs off'. (JB was not in the class).
Analysis of evidence
You state in your response to the allegations that you said 'words to the effect of asking HC to report to him (ie JB) a message from me that if I catch him around my house again I will break his fucking legs'.
Although there are some minor discrepancies in the exact terminology used, it is clear that you:
Ÿ entered the Automotive workshop on Monday the 24th of February 2014 whilst the lecturer was undertaking a class with the VETiS students for which you had no operational requirement to enter and had done so without instruction of direction.
Ÿ spoke directly to VETiS student HC.
Ÿ spoke in a voice loud enough to be overheard by other students.
Ÿ spoke in a tone that was hostile.
Ÿ used excessive and unacceptable language in the presence of students.
Ÿ threatened excessive violence against KTI VETiS student, JB.
Finding: Substantiated.
________________________________________________________________________________
Allegation
You have told some of the VETiS students that you are angry with JB because he stole your wallet and that you will 'fucking kill him' (referring to JB).
Analysis of evidence
In your response to the allegations, you allege that JB didn't steal your wallet but the contents of your wallet and allege further thefts.
Response
I do not recall having any further conversation with the other VETiS students and certainly never said that, purportedly, '… he stole my wallet …', as he did not steal my wallet. In fact he stole the contents of my daughter's purse and the contents of my wallet as well as my wife's new I-phone and my new touch phone, not to mention 2 bottles of alcohol, a carton of beer, a packet of flares from my boat and a set of bolt cutters. Furthermore, I do not recall ever saying that I would fucking kill him. Surely, I am certain that I do not need reminding you that such acts are of a criminal nature.
In speaking with your Portfolio Manager, Jeff Cooper, on the afternoon of the 26th of February 2014 you stated that the Police had investigated the theft of property from your house but had not pressed charges against JB. Despite this you firmly believe that the theft of property was undertaken by JB.
There is no evidence to suggest that you threatened to 'fucking kill him' in reference to JB, however, there is evidence to suggest that you made an allegation that JB stole a number of personal items from your home.
An analysis of this information suggests that you:
Ÿ alleged that JB stole property from your house.
Ÿ were angry at JB.
Finding: Partially substantiated, however the allegation that you threatened to 'fucking kill him' is not substantiated.
________________________________________________________________________________
In summation, I find that you have:
Ÿ acted in a manner that is threatening
Ÿ acted in a manner that is disrespectful
Ÿ acted irresponsibly
Ÿ acted in a manner that was unprofessional
Ÿ failed to conduct yourself with integrity in the performance of your official duties as a KTI lecturer
Ÿ failed to conduct yourself with proper courtesy, consideration and sensitivity in dealing with members of the public and employees.
Ÿ failed to work in a safe and responsible manner so as not to adversely affect the safety and health and rights of others.
Ÿ acted in such a way that has resulted in bringing the reputation of Kimberley Training Institute into disrepute.
14 In the letter Mr Petticrew was also informed by Ms Dickinson that she was of the opinion that his behaviour in the classroom of VETiS students constituted serious misconduct and that she intended to terminate his employment, but said that before she made a final decision she would afford him the opportunity of providing any further information (AB 128).
15 By letter dated 7 April 2014, Mr Petticrew provided a further written response (AB 141 - 144). In that letter, among other matters, he alleged that no investigation had been conducted in accordance with, and was in breach of the Institute's Staff Disciplinary Policy and Process (January 2012) (the Policy). Paragraph 1.1 of section B of the Policy requires the managing director to appoint an independent and unbiased person to investigate an alleged breach of discipline.
16 On 9 April 2014, the Institute terminated Mr Petticrew's employment.
17 On 14 April 2014, pursuant to s 44 of the Act, the union filed C 11 of 2014 seeking an urgent conference and an order to quash the decision to dismiss Mr Petticrew on grounds the disciplinary process was alleged to be unfair, oppressive and unduly prejudiced (AB 319).
18 Following the union's s 44 application to the Commission, the Institute reconsidered its position, rescinded the findings and reinstated Mr Petticrew. Ms Dickinson then appointed Ms Julie Kean, the Institute's director of organisational performance and planning, to conduct the disciplinary process.
19 Mr Petticrew was placed on suspension with pay again pending further investigation. He was also paid for the intervening period from the date of dismissal on 9 April 2014 until he was reinstated on suspension with pay on 12 May 2014.
20 The Institute then recast the allegations. These were as follows (AB 153):
Allegation
You have allegedly behaved in a manner that is threatening, disrespectful, irresponsible, and unprofessional and has resulted in bringing the reputation of Kimberley Training Institute into disrepute.
Particulars
Ÿ On Monday, 24 February 2014, you entered a Kimberley Training Institute automotive VETiS class.
Ÿ JB, a student of Broome Senior High School, was not in the class.
Ÿ You said to HC, a student in the class, 'where the fuck is JB I want to snap his legs off'.
Ÿ You said the above words in front of the rest of the class.
Ÿ You told some VETiS students that you are angry with JB because he stole your wallet.
Ÿ Referring to JB, you told some VETiS students that you will 'fucking kill him'.
If substantiated, the allegation above constitutes a breach of discipline in that the allegation is contrary to the Kimberley Training Institute's Code of Conduct ('Code of Conduct') which states that Kimberley Training Institute employees are to:
a) behave in an ethical and professional manner at all times and not act in any way that brings Kimberley Training Institute into disrepute; and
b) treat members of the public and colleagues with respect, courtesy, honesty and fairness, having proper regard for their interests, rights, safety and values.
Additionally, if substantiated, the allegation above also constitutes a breach of discipline in that the allegation is contrary to the Public Sector Code of Ethics, specifically the requirements that public sector employees 'treat people with respect, courtesy and sensitivity and recognise their interests, rights, safety and welfare'.
21 In a letter dated 15 May 2014, Mr Petticrew was asked for any further response that he may wish to provide to Ms Kean regarding the incident that occurred on 24 February 2014 and that Ms Kean would determine whether a formal investigation was warranted by an independent and unbiased investigator (AB 153). An investigator was not appointed at that time as the union sought a further conference in C 11 of 2014.
22 On 30 May 2014, a conference in the Commission was convened at which time the union sought that the disciplinary process permanently cease and not be reinstituted and requested that this issue be referred for hearing and determination. The parties at that time agreed that the disciplinary process would be put on hold whilst the matter referred by the union was heard and determined. The agreement was reflected in an order made by the Commission, by consent, that the Institute be prohibited from proceeding with the disciplinary proceedings, the subject of the application (AB 317).
23 On 24 June 2014, a memorandum of matters for hearing and determination was issued by the Commission. The memorandum raised the question whether the Institute ought to be prevented on a permanent basis from proceeding with any disciplinary process against Mr Petticrew regarding the incident in question. The matter was listed for hearing and determination on 16 July 2014. On the date of the hearing, the union applied to amend the memorandum and the hearing was necessarily adjourned.
24 On 25 July 2014, the Commission delivered reasons for decision allowing the union to amend the memorandum. However, the union was not granted leave to amend the memorandum in respect of all of the matters that it sought to have reviewed. The Commission ruled, after having regard for the reasons for decision of the Industrial Appeal Court in Civil Service Association of WA Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845, that the Commission ought not to undertake its own investigation of the facts, but ought to confine its enquiry as to whether there are grounds to prevent the employer from carrying out its statutory duty to conduct an investigation: [2014] WAIRC 00760 [27]. Consequently, the Commission determined that the matter referred for hearing and determination ought to be limited to deciding whether or not to order the disciplinary process to cease on grounds relating to that process and to the effects on Mr Petticrew [28].
25 Following the delivery of the reasons for decision on 25 July 2014, the Commission convened a further conference on 29 July 2014, at which the union foreshadowed that it would not be continuing with CR 11 of 2014 and agreed to file a notice of discontinuance. The union, however, did not file a notice of discontinuance until 16 September 2014.
26 On 11 August 2014, Ms Kean, on behalf of the Institute, sent Mr Petticrew a letter advising him that the union had formally withdrawn its application to the Commission in relation to the objection to the Institute continuing with the existing disciplinary process (AB 157 - 158). Further, that the disciplinary process relating to the suspected breach of discipline would now continue. In that letter, Mr Petticrew was also advised that he was provided with a further additional seven days to provide any further written response that he chose to make.
27 On 15 August 2014, Mr Petticrew responded to Ms Kean's letter and provided a further response (AB 159 - 160).
28 On 26 August 2014, Mr Petticrew was informed in a further letter from Ms Kean that an independent investigator had been appointed to conduct the investigation and that the investigator was Mr Vivek Bhatnagar. The letter also informed Mr Petticrew that Mr Bhatnagar would contact Mr Petticrew to make any necessary arrangements (AB 161 - 162).
29 On 1 September 2014, Mr Petticrew sent an email to Mr Bhatnagar attaching a letter in which he stated that he had declined an invitation to attend an interview on the basis that he did not believe he had anything else to add that had not already been addressed in his previous responses and submissions to the Institute (AB 163 - 164). He, however, indicated in the letter that he was prepared to fully co-operate to answer any questions on any specific points or matters asked and that any questions be put in writing.
30 On 25 September 2014, Ms Kean wrote to Mr Petticrew and informed him that the investigation had been completed by Mr Bhatnagar and attached a copy of the investigation report, together with all attachments and audio recordings of the interviews conducted (AB 165 - 188). In that letter Mr Petticrew was provided with an additional seven days to provide any written response he chose to make.
31 On 10 October 2014, Ms Kean wrote again to Mr Petticrew and informed him that the investigation had been completed and that she had given thorough consideration to all the information provided to her, including the investigation report and Mr Petticrew's responses throughout the matter (AB 189 - 190). She also informed Mr Petticrew that she found the disciplinary allegation to be substantiated. In particular, she found that on 24 February 2014 he had behaved in a manner that was threatening, disrespectful, irresponsible and unprofessional and this had resulted in bringing the reputation of the Institute into disrepute. In the same letter, Ms Kean informed Mr Petticrew that he had breached discipline in that he had behaved in a manner which is contrary to the:
Ÿ Kimberley Training Institute's Code of Conduct which states that Kimberley Training Institute employees are to:
ᴑ Behave in an ethical and professional manner at all times and not act in any way that brings Kimberley Training Institute into disrepute; and
ᴑ Treat members of the public and colleagues with respect, courtesy, honesty and fairness, having proper regard for their interests, rights, safety and values; and
Ÿ Public Sector Code of Ethics, specifically the requirements that public sector employees 'treat people with respect, courtesy and sensitivity and recognise their interests, rights, safety and welfare'.
32 Ms Kean also stated in the letter that the penalty she proposed for this breach of discipline was the termination of his employment with the Institute. Mr Petticrew was then provided with another seven days to provide any written response that he chose to make.
33 On 21 October 2014, Mr Petticrew provided a written response in which he challenged a number of findings made in the investigation report and made a submission as to why he should not be dismissed (AB 191 - 195).
34 On 6 November 2014, Ms Kean wrote to Mr Petticrew and informed him that she had considered his submissions but she was not persuaded from her view that he had committed a breach of discipline and she was of the view that his employment should be terminated (AB 196 - 197). As a result of that letter, Mr Petticrew's employment was terminated for the second time.
35 On 17 November 2014, the union filed and served a second application, CR 34 of 2014, pursuant to s 44 of the Act (AB 198 - 205). The application sought relief in the form of interim and final orders, among other matters, to set aside the findings and penalties arising out of the disciplinary process and to prevent the Institute from continuing any disciplinary process against Mr Petticrew regarding the incident that occurred on 24 February 2014. The union also sought an interim order that Mr Petticrew be reinstated on full salary until the hearing and determination of the matter and he be allowed to remain in his government regional officer housing until the matter had been heard and determined by the Commission. After service of the application, the parties reached agreement in respect of the accommodation issue, but not about the matter of reinstatement on full pay. Following a conference on 19 November 2014, the learned Acting Senior Commissioner made an order that the application for an interim order that Mr Petticrew be reinstated on full salary be dismissed (AB 291 - 293): [2014] WAIRC 01273; (2014) 94 WAIG 1959.
36 One of the reasons why the union challenged the termination of Mr Petticrew on 6 November 2014 was that it is alleged the decision-maker, Ms Kean, an employee of the Institute, had not properly been delegated the power to dismiss Mr Petticrew. The parties agreed that the issue of delegation ought to be dealt with as a preliminary issue on the papers.
37 On 2 February 2015, the Commission issued reasons for decision in which it was found that the delegation was invalid: [2015] WAIRC 00054; (2015) 95 WAIG 298. After those reasons for decision were delivered, the Institute reinstated Mr Petticrew again on 6 February 2015. At that time he was paid for the period of time between the date of the dismissal on 6 November 2014 and the date of reinstatement.
38 On 11 February 2015, the union filed a notice of discontinuance of the second application and on 24 February 2015 the Commission issued an order dismissing the union's application: [2015] WAIRC 00202; (2015) 95 WAIG 380.
39 In a letter from Ms Dickinson to Mr Petticrew dated 6 February 2015, Mr Petticrew was not only advised of his reinstatement, but he was also advised that the disciplinary process relating to the suspected breach of discipline would continue and had not been discontinued as a result of the recent Commission decision (AB 207 - 208). In the letter, Ms Dickinson advised Mr Petticrew that she would ask the Governing Council of the Institute to:
(a) consider all of the evidence already gathered in the matter, including the investigation undertaken by Mr Bhatnagar in August 2014 and make a preliminary finding; and
(b) propose a penalty if this was a necessary consequence of any finding the Governing Council makes.
40 Mr Petticrew was advised once again that while the disciplinary process was ongoing he was instructed to remain at home on full pay and not to attend to any campus of the Institute, unless formally instructed or invited.
41 On 26 March 2015, Mr Petticrew was sent a letter by hand from Mr Peter Rowles, the chairperson of the Governing Council of the Institute, in which Mr Rowles stated as follows (AB 211 - 212):
I am the Chairperson of the Governing Council of Kimberly Training Institute.
On 5 February 2015, the Governing Council was approached by Ms Karen Dickinson, Managing Director of Kimberly Training Institute, to become the decision maker in a current disciplinary matter concerning you. I am informed that you were advised of this by way of a letter dated 6 February 2015.
It was resolved at the last Governing Council meeting that I would undertake a review of the disciplinary matter concerning you and return a preliminary finding based upon all of the material available to me and, if necessary, propose a penalty.
The material that the Governing Council considered includes:
Ÿ the original allegations put to you by Ms Dickinson on 28 February 2014;
Ÿ your response to the allegations dated 12 March 2014;
Ÿ the amended allegation put to you by Ms Kean dated 15 May 2014;
Ÿ the investigation report prepared by Mr Vivek Bhatnagar;
Ÿ a letter from you to Ms Kean dated 15 August 2014; and
Ÿ a letter from you to Ms Kean dated 21 October 2014.
After reviewing all of the material provided to me, the view of the Governing Council is that there is sufficient evidence to substantiate the allegation put to you in Ms Kean's letter dated 15 May 2014. However, having regard to the particulars of the allegation, the Governing Council does not find there is sufficient evidence that you told some VETiS students that you would 'fucking kill' JB. As regards to the remaining particulars of the allegation, the Governing Council does find that the available evidence substantiates those particulars. That is, the Governing Council finds that on Monday, 24 February 2014, you entered a Kimberley Training Institute automotive VETiS class, loudly telling a student of that class and overheard by other students present, that you would fucking break the legs of JB, another student of the Kimberley Training Institute, if you caught JB near your home. The Governing Council notes that you have since admitted threatening JB because you thought the student had previously robbed your house.
The above conduct reveals that you did behave in a manner that was threatening, disrespectful, irresponsible and unprofessional and has resulted in bringing the reputation of Kimberley Training Institute into disrepute. As a result, the Governing Council finds that you did commit a breach of discipline as alleged and that your behavior is contrary to:
Ÿ the Kimberley Training Institute's Code of Conduct which states that Kimberley Training Institute employees are to:
ᴑ behave in an ethical and professional manner at all times and not act in any way that brings Kimberley Training Institute into disrepute; and
ᴑ treat members of the public and colleagues with respect, courtesy, honesty and fairness, having proper regard for their Interests, rights, safety and values; and
Ÿ the Public Sector Code of Ethics, specifically the requirements that public sector employees 'treat people with respect, courtesy and sensitivity and recognise their interests, rights, safety and welfare'.
The penalty that the Governing Council has proposed for this breach of discipline is termination of your employment with the Kimberley Training Institute.
In arriving at the penalty proposed, the Governing Council has had regard to a previous disciplinary matter involving you in which a finding was made in January 2013, namely that you were found to have committed a breach of discipline. Although the allegation in the previous matter is unrelated to this matter, it was noted from that process that you have previously been warned that you must have a clear understanding of the Public Sector Code of Ethics and the Code of Conduct and you were warned of the consequences of not doing so.
Please be informed that you have 14 days within which to provide to the Governing Council any written response that you may choose to make to the above findings and proposed penalty. In addition, please inform the Governing Council if you are of the view that it has failed to consider any relevant documents in arriving at its findings.
After consideration of any response made by you, the Governing Council will make its final decision in relation to both the findings and the penalty for this breach of discipline and notify you in writing.
You may choose to send your written response electronically to me care of the Department of Training and Workforce Development. If so, please contact Ms Val Tomlin, A/Associate Director Labour Relations, Department of Training and Workforce Development on 6551 5077 or val.tomlin@dtwd.wa.gov.au. Ms Tomlin will relay your response to me. If you require copies of any of the documents referred to in this letter, Ms Tomlin will provide copies to you subject to you making request.
42 On 17 April 2015, the union made a written submission to the Governing Council setting out the reasons why Mr Petticrew should not be dismissed (AB 213 - 218).
43 On 28 May 2015, the Governing Council of the Institute dismissed Mr Petticrew as a consequence of the incident that occurred on 24 February 2014. In a letter to Mr Petticrew, Mr Rowles, on behalf of the Governing Council, stated as follows (AB 225):
Further to my letter dated 26 March 2015, the Governing Council has received a letter from your representative, Mr Michel Amati, dated 17 April 2015, providing observations on certain aspects of the disciplinary matter. I confirm that the Governing Council has considered this letter, along with the material listed in my letter dated to you 26 March 2015.
The Governing Council has determined that you have committed the breach of discipline as alleged. The Governing Council considers your behaviour to be an unacceptable breach of the Kimberley Training Institute's Code of Conduct and the Public Sector Code of Ethics. I confirm that it is the decision of the Governing Council that your employment be terminated as a consequence of the breach of discipline that occurred. The termination of your employment is effective from the date of this letter.
You are currently residing in Institute provided accommodation through Government Regional Officers' Housing (GROH). As a result of the outcome of the disciplinary matter, you are no longer an employee of the Institute and GROH housing is no longer available to you. You are hereby given 60 days' notice to vacate the property at 21 Wakayama Crescent, Broome. This notice is within the terms of your rental agreement for the property.
The Governing Council acknowledges that the disciplinary matter has taken a significant amount of time to conclude. This is regrettable but does not alter the Governing Council's final decision.
I would like to make you aware that all matters relating to this matter are confidential and I ask that you do not discuss it with any staff, students or other persons related to the Institute.
If you have any queries in relation to the discipline matter, please contact Ms Val Tomlin, A/Associate Director Labour Relations, Department of Training and Workforce Development on 6551 5077 or val.tomlin@dtwd.wa.gov.au. Ms Tomlin will relay any queries to me.
44 On 3 June 2015, the union filed and served a further application pursuant to s 44 of the Act which when referred became CR 13 of 2015.
Reasons for decision in CR 13 of 2015
45 The Commission's reasons for decision in this matter were given on 13 August 2015 [2015] WAIRC 00798; (2015) 95 WAIG 1477. The learned Acting Senior Commissioner considered the agreed facts, the circumstances of the events that were found to have occurred on 24 February 2014 and the documents that record that Mr Petticrew had admitted the conduct on 27 February 2014 in an email to Ms Dickinson and the note of apology that Mr Petticrew wrote to JB's mother. She then had regard to the circumstances of the making of the violence restraining order and some of the circumstances of the disciplinary processes which she had presided over in each of the proceedings before the Commission involving Mr Petticrew.
46 The learned Acting Senior Commissioner then had regard to previous allegations of misconduct made against Mr Petticrew in 2012. She found that a number of allegations were not substantiated, but that one allegation was substantiated and another was partly substantiated. The substantiated allegation was that on 30 October 2012 it was found that Mr Petticrew had behaved in a manner that was unprofessional and disrespectful. In particular, it had been alleged that whilst taking a security class he had taken a phone call and told the person on the phone that [X] 'is fucked' and that he had a copy of [X's] certificates and '[X] wasn't qualified to teach, doesn't even have a marine ticket to teach'.
47 In respect of the allegation that was partially substantiated, that allegation was that Mr Petticrew had spoken to students in his security class in a manner that was unprofessional and disrespectful, in particular the allegations that were found to be substantiated were that:
a. That you told one of the student's 'I'll knock your fucking head off if you keep calling me Sir'.
b. You said to the whole class 'haven't you fuckers finished yet'
48 The learned Acting Senior Commissioner then found that although this allegation was substantiated in that the language used in class had been substantiated the context of the allegation was not entirely reflective of the actual situation.
49 The learned Acting Senior Commissioner then had regard to the letter dated 15 January 2013 which informed Mr Petticrew of the outcome of the investigation of the prior allegations which had been placed on Mr Petticrew's personal file. The letter noted that there had been a meeting on 13 December 2012, that Mr Petticrew was aware of the Institute's code of conduct in relation to various matters and went on to state (AB 88):
During the meeting you were advised and you acknowledged that all staff need to be treated with respect, professionalism, courtesy, honesty and fairness in accordance with KTI's code of conduct. As such it was acknowledged and recommended that all conversations regarding staff performance and/or conduct and grievances relating to staff need to be held in private areas with appropriate representatives of KTI so that conversations can be held in confidence.
In relation to the allegation that you spoke to students in an unprofessional and disrespectful manner it was acknowledged that the allegation was not put in context and that the specific allegation relating to the smell of aboriginal people was reported emotively. Although you have previously used harsh language to develop a report [sic] with students to engage with them it is strongly recommended that you tone your language down to a level that respectfully reflects the KTI SPIRIT demonstrating professionalism and integrity.
50 The learned Acting Senior Commissioner then had regard to the penalties available to the Institute on a finding of a breach of discipline. These were a reprimand; a transfer to another position at the Institute; a fine not exceeding five days' pay; a reduction in remuneration within the employee's existing classification; a reduction in level of classification; dismissal or any two of the above.
51 After having regard to a decision of the Industrial Appeal Court in Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385, 386 (Undercliffe) in which it was found that the test in the case of a claim of harsh, oppressive or unfair dismissal is whether the employer has exercised its legal right to dismiss so harshly or oppressively against the employee as to amount to an abuse of that right, the learned Acting Senior Commissioner:
(a) gave the restraining order no weight. Her reasons for doing so were:
(i) the hearing for the interim order being, as is usual with such applications, conducted in the absence of the respondent to the application;
(ii) JB's mother was not cross-examined and she gave evidence of conduct which was not directly relevant to the employment about what Mr Petticrew did beyond what happened at the Institute and it is this which seemed to have swayed the Magistrate to grant the order; and
(iii) Mr Petticrew objected to the order becoming final and JB's mother did not attend at the hearing for it to be challenged. It is of no assistance to speculate as to why she did not attend.
(b) observed the union described Mr Petticrew's conduct as a misdemeanour, that is as 'misbehaviour; a misdeed' and found that labelling the behaviour in that way is not helpful. It is appropriate to look at the behaviour itself and its context;
(c) found the circumstances surrounding the conduct are that:
(i) Mr Petticrew was at that time a man in his late 50s. He had been a TAFE lecturer for more than six years;
(ii) as soon as the issue was raised with Mr Petticrew, by his email of 27 February 2014, he acknowledged he was 'probably wrong passing comment in front of students'; that it was inappropriate; he explained his conduct, the circumstances directly related to it and his personal circumstances;
(iii) Mr Petticrew also expressed deep regret and explained the other pressures he was under at the time; and
(iv) within three days of the conduct, Mr Petticrew wrote a letter to JB's mother also containing an apology.
(d) concluded from those circumstances that:
(i) Mr Petticrew has admitted that as a lecturer at the Institute, he went into a workshop where there was a lecturer and students. During his visit there, in the presence and within the hearing of the lecturer and at least one other student, he asked a 16year-old male student to pass on to another 16year-old male student a message containing a threat of physical violence and in doing so he used language not appropriate for a lecturer of the Institute; and
(ii) the most significant aspect of the conduct was that it contained a threat of violence against a student of the Institute and that Mr Petticrew told another 16year-old student to convey the threat.
(e) she accepted without reservation what Mr Petticrew says, that students at the Institute and young people of his acquaintance use such language amongst themselves and occasionally in their conversation with him. However she found, as a lecturer, the use of such language to those students was not appropriate;
(f) accepted that Mr Petticrew was frustrated at what occurred, he had no real intention of carrying out the threat, he was angry and lost control due to his frustration and anger;
(g) found the conduct of Mr Petticrew had a direct connection with his employment in that it was undertaken on the premises of his employer, during the day when he works as a lecturer. At least one of the students knew Mr Petticrew as a lecturer at the Institute and both the person he asked to convey the message and the intended recipient were students of his employer;
(h) found the fact that Mr Petticrew was not HC's or JB's lecturer and knows them from personal rather than work related circumstances was not to the point of the conduct having occurred in relation to or having a direct connection with Mr Petticrew's employment; and
(i) found the incident was not a private conversation and observed that:
(i) it was overheard by at least one other student;
(ii) had it been a private conversation Mr Petticrew might reasonably have drawn HC to one side, out of earshot of the others; and
(iii) even if the conversation had been conducted in private, it was not appropriate for Mr Petticrew to make the threat of violence and tell another student to convey the threat.
52 After having regard to those circumstances, the learned Acting Senior Commissioner found that Mr Petticrew's behaviour was threatening, in that he expressed an intention of physical violence. She also found it was disrespectful to all those who heard it and towards JB (whether JB deserved it or not), it was irresponsible and unprofessional.
53 The learned Acting Senior Commissioner then had regard to the Institute's code of conduct. She observed that the code of conduct sets out in the usual, generic terms, the standard of behaviour expected of public sector personnel. She then said it does no more than attempt to set out what ought to be obvious, that is, that in the workplace people are to treat each other with courtesy, respect and professionalism.
54 The learned Acting Senior Commissioner had regard to a standard of behaviour in workplaces in The United Furniture Trades Industrial Union of Workers, Western Australia v Pay-Co Products (1990) 70 WAIG 2497, 2498 in which Fielding C observed:
However, in dealing with workplace differences, it is well to remember that you are dealing with men and not angels. Employees are apt to act in strange ways, especially when all does not go to plan in the workplace, and if that reaction is confined to an occasional harsh word to a fellow employee then, I suspect, in most cases there ought to be no reason for despair or drastic action. Things are apt to be said in such circumstances which are little more than hollow bravado or empty rhetoric and which, with the benefit of hindsight, are not likely to be repeated.
55 She then had regard to the conduct of Mr Petticrew in the context of his workplace. She said that it is true that in some workplaces, the type of conduct Mr Petticrew exhibited may be the norm and unexceptional. In other contexts, such as in a primary school, it might have been far more serious. She then said that the conduct occurred at a TAFE college in the presence of 16year-old youths. She found that whilst the students may be young, they are not children, nor would they be unfamiliar with the language or type of threat made by Mr Petticrew. She found they may have been shocked by it coming from a lecturer, but she found it hard to believe that the threat would have been taken literally.
56 After considering these circumstances, the learned Acting Senior Commissioner found that she was not satisfied that the conduct struck at the heart of the contract of employment such as to warrant dismissal, even though it was inappropriate, threatening, unprofessional and disrespectful. She found the conduct at its highest was misconduct but found that not every act of misconduct warrants dismissal.
57 Turning then to an appropriate penalty for the misconduct of Mr Petticrew, the learned Acting Senior Commissioner found that consideration was to be given to all of the circumstances including the background provided by Mr Petticrew; the age of the students; the explanation provided and contrition shown by Mr Petticrew very soon after the incident; Mr Petticrew's length of service; his age; the likely effects on him such as to his prospects of finding such work again; the need to move his home and family to other accommodation within the town or even move out of town. She also had regard to the previous incidents referred to in the letter placed on Mr Petticrew's file. She observed that the penalty in that case was a letter recommending that he 'tone down his language to a level that reflects the KTI SPIRIT demonstrating professionalism and integrity'. She observed that this may be seen as a reprimand or a warning but was not couched in terms as strong as either of those words might suggest.
58 The learned Acting Senior Commissioner then found that there was no evidence of real or lasting reputational damage to the Institute. She said the evidence was that students and possibly other young people became aware of some aspects of Mr Petticrew's conduct but that appeared to relate more to the behaviour of JB and his friends. She also had regard to the fact that the matter had become the subject of proceedings in the Magistrate's Court, by the application for and issuing of an interim restraining order and it was noted on the public record. In these circumstances, she found there was no evidence of any real or lasting reputational damage to the Institute.
59 Finally, she found, in all of these circumstances, that dismissal, being the strongest penalty available to the Institute, was disproportionate to the misconduct and was harsh and unfair.
60 She also found, in the alternative, that even if this was not so, that the Institute failed to manage its own processes to the effect that Mr Petticrew was dismissed three times and reinstated twice over a period of 15 months and suspended with pay for the whole time, had his housing arrangements threatened and was under the stress of an ongoing bureaucratic process for so long and these circumstances were oppressive.
61 The learned Acting Senior Commissioner then found that a formal reprimand would be an appropriate penalty and observed that it must be clear to Mr Petticrew that any further such conduct should be viewed very seriously and Mr Petticrew should be under no illusions about possible consequences.
62 The learned Acting Senior Commissioner also found that there was no evidence that reinstatement was impracticable and consequently she made an order for reinstatement of Mr Petticrew to his former position and made an order that he be paid for remuneration lost and for him to be issued with a formal reprimand.
Grounds of appeal
63 The amended grounds of appeal pressed by the Institute are as follows:
Ground of Appeal 1
1. The Commissioner erred in law and in fact in coming to the conclusion that the applicant's member's conduct did not strike at the heart of the contract such as to warrant dismissal and therefore dismissal was harsh or unfair [47], [54].
Particulars
The Commissioner erred in coming to this conclusion:
(a) having found that the Applicant's member's misconduct had a direct connection with his employment [40];
(b) having found that the Applicant's member lost control as a result of his frustration and anger [42]; and
(c) having found that the Applicant's member's behaviour was disrespectful, irresponsible and unprofessional [43].
Ground of Appeal 3
3. The Commissioner erred in law and in fact by coming to the conclusion that dismissal was disproportionate to the Applicant's member's misconduct and therefore was harsh or oppressive [55].
Particulars
(a) the Commissioner failed to properly take into account the interests of the employer as required by s.26(1) of the Industrial Relations Act 1979 (WA) when she failed to consider the reasons why the Applicant's member was reinstated on two occasions, namely;
(i) the Respondent corrected previous procedural errors in its disciplinary process;
(ii) clause 24 of the Western Australian Lecturers' General Agreement 2011 required the Respondent to afford the Applicant's member procedural fairness; and
(b) the Commissioner failed to take into account the Applicant's member's conduct during the disciplinary process which prolonged that process, namely;
(i) the Applicant's member's failure to expediently agree to rescind the interim order issued on 30 May 2014, [2014] WAIRC 00444 preventing the Respondent from continuing with its disciplinary process; and
(ii) the Applican'st member's failure to expediently lodge a Notice of Discontinuance for CR 11 of 2014 in accordance with the agreement of the Conference of 29 July 2014 in relation to his challenge to the Respondent's decision to recommence disciplinary proceedings to rectify errors and flaws in the previous disciplinary process;
(c) the Commissioner failed to properly take into account that the applicant's member was suspended with pay for the entire period;
(d) the Commissioner failed to properly characterise the seriousness of the Applicant's member's misconduct, as particularised in Ground of Appeal 1.
The submissions made on behalf of the Institute
(a) Ground 1 of the appeal
64 The question before the Commission at first instance was, when Mr Petticrew threatened to physically harm a student, did this conduct strike at the heart of the employment contract such as to warrant dismissal? The Institute submits that it does.
65 The Institute points out that a teacher's primary duty is the physical care and safety of students. This, it says, is embodied in the teacher's tortious duty of care and is implied in a teacher's contract of employment. Lecturers and teachers have a duty of care in tort for safety of students, particularly students who are not adults and an implied (if not express) contractual obligation to carry out all duties with reasonable care. This includes a reasonable protection from risks of harm and a failure to adhere to that duty may warrant termination of employment.
66 Thus, it says that Mr Petticrew's conduct directly militated against the fundamental contractual and other legally imposed duties of a lecturer and his conduct should have been found to strike at the heart of the contract of employment, so as to warrant dismissal.
67 The Institute also contends that:
(a) the learned Acting Senior Commissioner erred in failing to consider Mr Petticrew's conduct in circumstances when he had been warned in the past that that sort of language used by him in the incident in question would not be tolerated;
(b) Mr Petticrew knew exactly what conduct was expected of him;
(c) the learned Acting Senior Commissioner failed to have regard to the duty of care between the lecturer and the students, particularly a 16year-old student and the duty that exists between an education institution and its students; and
(d) a threat of violence in the circumstances of this matter is not conduct for which you should be given a second chance.
68 Thus, a submission is made that a series of duties and principles were not considered by the learned Acting Senior Commissioner or were not given sufficient weight, which led to error.
69 In written submissions filed on behalf of the Institute in this appeal, reference is made to a number of decisions of courts and tribunals that have dealt with findings of misconduct by employees. It contends that these authorities establish a range of the types of matters that warrant dismissal for conduct that strikes at the heart of the contract of employment.
70 The Institute submits that if one considers the nature of Mr Petticrew's employment and the fact that his conduct contained a threat of violence against a student of the Institute, a finding that his conduct did not strike at the heart of the employment contract such as to warrant dismissal is unreasonable or plainly unjust. In these circumstances, it says this is an appealable error.
71 In particular, it is argued that the learned Acting Senior Commissioner did not properly assess the standard by which Mr Petticrew's conduct should be judged in the workplace. It is argued that she compared the conduct of Mr Petticrew to someone who works in a furniture factory, which was the conduct considered by Fielding C in The United Furniture Trades Industrial Union of Workers, Western Australia v Pay-Co Products. Also, she made some comparison between working in a furniture factory, a classroom in a primary school and in technical colleges, but it was not entirely clear from her reasoning what the comparison sought to achieve.
72 The Institute submits that if upon the facts a finding is found to be unreasonable or plainly unjust, the Full Bench may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the Commission at first instance and a substantial wrong has in fact occurred.
73 The Institute takes issue with the finding made by the learned Acting Senior Commissioner that those who heard the threat may have been shocked, but it would be hard to believe they would take it literally. In making this finding, it points out that no weight had been given on the matters before the Magistrate in the hearing for the restraining order. Whilst it concedes that little weight could be given to the order, it says that it cannot be said that no weight should have been given. In any event, it says this finding was made without consideration of any of the evidence gathered in the investigation process undertaken by the Institute and no facts are referred to by the learned Acting Senior Commissioner in support of the finding that she found it hard to believe the students who heard the threat would have taken the threat literally.
74 In addition, the Institute points out that the learned Acting Senior Commissioner found that the conduct of Mr Petticrew was threatening, but it argues that she made an inconsistent finding that these words were not to be taken literally. Consequently, it says that it is difficult to see how these findings can stand together. Also it says she did not give any reasons as to why she found the behaviour to be threatening.
75 The Institute also points out it has a legal right to dismiss Mr Petticrew and that the penalty imposed by it was not so disproportionate so as to amount to an abuse of that right.
(b) Ground 3 of the appeal
76 In ground 3, the Institute challenges the finding that the decision to dismiss Mr Petticrew was oppressive on grounds that the Institute failed to manage its own processes.
77 The Institute argues that the learned Acting Senior Commissioner fell into error by failing to provide any explanation as to how she made the determination that Mr Petticrew was reinstated twice over a period of 15 months because of a failure of the Institute to manage its own processes.
78 Further, it says that she failed to take into account at least one material consideration in reaching that conclusion. Whilst the Institute concedes that it did fail in some respects to manage its own processes, it says its failure can only be said to have contributed to the disciplinary process taking 15 months to finalise, not that it caused the disciplinary process to take 15 months to conclude. In reliance of this argument, the Institute put a submission about the following matters:
(a) On the first occasion on which Mr Petticrew was dismissed and that decision was challenged by the union making an application in the Commission, the Institute voluntarily rescinded its finding of misconduct and the decision to dismiss. It then caused an independent investigation to be conducted on Mr Petticrew's request, even though the Institute's legal advice was that they did not believe it was necessary for an independent investigation to occur.
(b) After the decision to rescind the dismissal was made, the union brought the matter back before the Commission challenging the decision of the Institute to continue the disciplinary process. The parties agreed to a consent order that the Institute would not continue with the disciplinary process until such time as the Commission had determined whether or not the Institute had a legal right to do so. At the date of hearing of the application by the union, the union applied to amend the memorandum of matters. That necessitated an adjournment of the hearing which subsequently resulted in reasons for decision being issued on 29 July 2014. There was then agreement by the union to abandon its application by filing a notice of discontinuance. However, the union did not file a notice of discontinuance until 16 September 2014. Consequently, the Institute argues that the effect of the union's application prevented the Institute from proceeding with the disciplinary process during the period from 30 May 2014 until 16 September 2014.
79 At the hearing of the appeal it was put to counsel on behalf of the Institute that the investigation was reinstituted on 11 August 2014 and the Institute did not await the formal filing of a notice of discontinuance of the application before reinstituting the investigation. A submission was then put that in a practical sense it was not prevented from pursuing the disciplinary application, but in a technical sense they were prevented because there was a consent order on-foot. However, it was conceded by counsel that the Institute could have made an application to the Commission to vary the consent order prior to the notice of discontinuance being filed. It was also conceded that no submission was made to the learned Acting Senior Commissioner that the investigation process was in part slowed by the actions of the union. Counsel did, however, say that the Institute did not think it was necessary to make such a submission because the learned Acting Senior Commissioner had presided over all of the matters which had come before the Commission in respect of the termination of employment of Mr Petticrew.
80 In any event, the Institute made a submission that it was slowed by virtue of the union's conduct in the proceedings. Further, they say that no findings of mismanagement could be said to have arisen out of the first application, that is the first dismissal, because that application was withdrawn and there were no findings about the effect of the termination of Mr Petticrew on the first occasion. Thus, the Institute does not accept that the first rescission of the decision to dismiss was caused by its mismanagement.
81 The Institute also challenges the finding made by the learned Acting Senior Commissioner that Mr Petticrew suffered the stress of the ongoing bureaucratic process and a threat to his housing arrangements. The Institute says that whilst these were factors that were relevant in the sense that those factors were prolonged by its conduct, but it says that less weight should be placed on those factors than what was assigned by learned Acting Senior Commissioner. It points out that on each occasion when Mr Petticrew was reinstated his salary was back-paid. Also, they say it was not the case that Mr Petticrew had been evicted from his government housing as the Institute consented to him continuing to reside in government housing until the applications were resolved, so his housing arrangements were not under threat. Having made that submission, it concedes that there was a threat to the housing arrangements by the fact of dismissal as on each occasion Mr Petticrew was given notice that his employment was terminated he was given 60 days' notice to vacate the premises. However, the Institute argues that that 60day period would not have been enforced until the applications before the Commission were resolved.
82 In respect of the second dismissal which was found to be invalid on grounds that the Institute had not properly delegated its power to the decision-maker to dismiss Mr Petticrew, the Institute argues that it is rare for procedural errors, such a failure to delegate authority correctly, to lead the Commission to a conclusion that a penalty was unfair, harsh or oppressive and that the appropriate remedy would be to refer a matter back or remit the matter back to the employer to decide the issue again.
83 In any event, it says that the Commission could not have arrived at a finding that the second disciplinary process was mismanaged to a point that it was oppressive because the outcome would have been the same in any event as Mr Petticrew would have been dismissed.
84 Further, it says that for a conclusion to be drawn that the legal right to dismiss has been improper, there must be a mismanagement of the process by way of procedural or substantive error that is severe.
85 Finally, they say when all of the evidence of the disciplinary processes are examined, the circumstances do not warrant a finding that the penalty was oppressive.
86 It also concedes that to be successful in this appeal, it necessarily needs to convince the Full Bench that both of the grounds of appeal are made out.
Conclusion
(a) Discretionary decision - relevant principles of appellate review
87 It is not in dispute that the conduct of Mr Petticrew on 24 February 2014 constituted misconduct.
88 The finding made by the learned Acting Senior Commissioner that the misconduct and/or the circumstances of the disciplinary process did not justify dismissal was a discretionary decision. A discretionary decision is an exercise of evaluative judgment.
89 The Full Bench is empowered to set aside a discretionary decision in limited circumstances. Such a decision cannot be set aside because members of the Full Bench would have exercised the discretion in a different way. A Full Bench is required to accord an evaluative decision made by a Commissioner that a dismissal was or was not fair with sufficient deference: Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266 [139] (Ritter AP).
90 The Full Bench cannot interfere with the discretion at first instance unless an appellant establishes that the exercise of discretion miscarried in the following way described in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505:
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.
91 When an argument is founded upon a contention that insufficient weight was given to particular matters, disagreement only on matters of weight may not justify reversal of a discretionary decision. In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519 - 520 Stephen J explained:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties,which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
(b) Ground 1 of the appeal
92 The letter terminating Mr Petticrew's employment makes it clear that he was dismissed without notice (AB 225). Thus, this was a dismissal which was summary.
93 An onus lies upon an employee at all times to establish that a dismissal is unfair within the principles laid down in Undercliffe.
94 In Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893; (2003) 129 IR 270 [72] E M Heenan J (with whom Parker J agreed) said:
Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances.
95 In this matter, misconduct is alleged, but no dispute arises as to whether Mr Petticrew had committed the alleged misconduct.
96 Whether particular misconduct can be said to justify dismissal turns upon the facts of each matter. No range of conduct justifying dismissal can be said to be established in any review of appellate decisions that have considered the circumstances of particular misconduct.
97 In Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, 81 - 82 Dixon and McTiernan JJ observed that misconduct justifying dismissal must be:
Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell ((1888) 39 Ch. D. 339, at pp. 357-8 and 362-4); English and Australian Copper Co. v. Johnson ((1911) 13 C.L.R. 490); Shepherd v. Felt and Textiles of Australia Ltd. ((1931) 45 C.L.R. 359)). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.
98 In Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 [240] - [250] Gillard J summarised the law as follows:
There is no rule of law that defines the degree of misconduct which would justify dismissal without notice.
In Clouston and Co Ltd v Corry [1906] AC 122, the Privy Council (at 129) stated:
'In the present case the tribunal to try all issues of fact was a jury. Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.'
The question whether the breach of contract justifies dismissal without notice, is a question of fact.
The onus of proof rests upon the defendant to establish that it had the right to terminate the employment without proper notice: see Blyth Chemicals Ltd (at 83).
It is well established that an employee may be dismissed if he wilfully disobeys any lawful order of his employer. See, by way of example, Bouzourou v The Ottoman Bank [1930] AC 271. Equally, a definite refusal by the employee to perform his duties gives the employer the right to terminate the employment without notice: see Adami v Maison de Luxe Ltd, especially at 153; also Pepper v Webb (1969) 1 WLR 514.
Counsel for the plaintiff submitted that it was only in exceptional circumstances that an employer could summarily dismiss an employee. Counsel relied upon what was said by Kirby J in Concut Pty Ltd v Worrell (at 322). His Honour, in summarising what he described as the applicable legal propositions, said: 'It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily.'
His Honour cited what was said by Starke and Evatt JJ in the Blyth Chemicals case (at 72-73) in support. What their Honours said does not support what Kirby J said. What constitutes a basis for terminating the contract of employment by the employer will depend upon the particular circumstances of each case, and whether misconduct is sufficiently grave to justify termination without notice is a question of fact. In my respectful opinion, the resolution of the issue does not depend upon proof of exceptional circumstances. None of the very many reported cases in this field, over the last 150 years, have raised the barrier to summary dismissal as high as 'exceptional circumstances'.
It cannot be denied that summary dismissal will have a detrimental effect upon the employee's reputation, and in some circumstances, may indeed be a very traumatic event. It may lead to psychological injury. Depending on the allegation, the employee may suffer a stigma which adversely affects his chances of obtaining other employment.
In Williams v Printers Trade Services (1984) 7 IR 82, Toohey J (at 85) made reference to the effect of a dismissal, when he said 'The question is whether the employer was justified in taking the drastic step of summary dismissal, a step that not only has financial implications for the employee but carries with it a certain obloquy.' (Emphasis added.)
In Johnson v Unisys Ltd (2001) 2 WLR 1076 at 1101, Lord Millett referred to the effect of a summary dismissal, when he said:
'But the common law does not stand still. It is in a state of continuous judicial development in order to reflect the changing perceptions of the community. Contracts of employment are no longer regarded as purely commercial contracts entered into between free and equal agents. It is generally recognised today that "work is one of the defining features of people's lives"; that "loss of one's job is always a traumatic event"; and that it can be "especially devastating" when dismissal is accompanied by bad faith.'
The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.
99 Thus, the authorities do not predict or set out a code of circumstances of conduct which will inevitably be such as to show the employee in question to have disregarded the essential conditions of his or her contract of service that is destructive of confidence the employer had in the employee, but is not merely a ground of unease.
100 It is always a matter of assessing the degree of the misconduct having regard to the nature of the employment and the nature, extent, significance and context of the default: Randall v Aristocrat Leisure Ltd [2004] NSWSC 411 [449].
101 When these authorities are applied to the reasoning of the learned Acting Senior Commissioner, can it be said that an error as described in House v The King has been established?
102 Whilst it is the case that lecturers have a duty of care for the safety of students, there was no evidence that Mr Petticrew had an intention to carry out the threat of violence against the student, JB. To the contrary, the learned Acting Senior Commissioner found that Mr Petticrew did not intend to carry out the threat. She also found it hard to believe that the students who heard the threat would have taken it literally. The Institute challenges this finding by arguing that no facts were found by the learned Acting Senior Commissioner in support of this finding.
103 The only specific finding the learned Acting Senior Commissioner made about this issue was that the students of the Institute would not be unfamiliar with the language or type of threat made by Mr Petticrew. However, there was documentary evidence before the Commission at first instance which can be characterised as facts to support the finding. This evidence is as follows:
(a) Declaration of Events - AO (student) dated 5 March 2014
In answer to the question 'How did this make you feel?' AO said 'Not what you would expect to see from a staff member' (AB 116).
(b) Interview with AO by Mr Bhatnagar - 1 September 2014
And was his language abusive?
It was but not towards us it was the fact that he was angry; wasn't directed to any of us it was just anger;
Was he referring to someone else?
Yes, he was referring to the JB kid.
Was your lecturer there at the time?
I think he was but he was helping someone else at the time. He wasn't exactly with us;
What did you feel about his approach the way he said it?
A little bit uncomfortable but JB had it coming I mean he is an idiot, he deserved it; I don't know yeah a little bit uncomfortable; (AB 180)
(c) Interview with MS (student) by Mr Bhatnagar - 1 September 2014
Do you remember the exact words he said?
Pretty much what I have already said; f word was used a lot; threatening things .. I am going to kill him; throw him in a hole; last straw;
Did this come as a surprise to you?
Yes since I didn't knew this thing had happened; knew that the student is a bit of a dickhead and doing some stupid things but didn't know this happened to him.
You had been coming to KTI for a period of time then … how long had you been coming?
I came before for a term and got was something else;
So the behaviour … is it usual behaviour you find at KTI?
No no
So what was your reaction to that behaviour … What did you think?
It should have been dealt with personally like he should have seen someone at the school or police and taking this stuff into his own hands and saying all this stuff; and saying what he did in front of that group specially because by saying it to teenagers it just spreads like wildfire;
Anything else you want to say that relates to the matter? Nothing.
Do you know the gentleman personally or otherwise? No I don't
Do you know any of the other students related to the matter? Yes … know all of them personally; (AB 183)
(d) Declaration of events HC - dated 5 March 2014
In answer to the question 'How did this make you feel?' it is recorded 'Doesn't care. Personally doesn't like JB re another issue' (AB 117): see also Statutory Declaration HC made on 12 March 2014 (AB 120 - 121).
(e) There was uncontradicted evidence given by Mr Petticrew that 'swearing', in particular the word 'fucking', is commonly used in everyday speech by students at the Institute (AB 34, ts 34, 37).
104 There is nothing in any of this material which indicates HC or the other students felt threatened by the threat of violence Mr Petticrew made about JB. To the contrary, when regard is had to these statements, it was open to the learned Acting Senior Commissioner to form the opinion that she found it hard to believe that they would have taken the threat literally.
105 Other than a general submission about the existence of a duty of care a teacher owes to his or her students and a duty of care a teacher owes to their employer, the Institute made no submission at first instance about this duty and on appeal made no submission as to how this duty is said to have been specifically breached by Mr Petticrew and the potential or actual consequences of any breach.
106 Whilst the Institute's submission is correct that the learned Acting Senior Commissioner had regard to the observations of Fielding C in The United Furniture Trades Industrial Union of Workers, Western Australia v Pay-Co Products in respect of the judgment of conduct where harsh words are spoken in a workplace amongst co-workers, the observations of Fielding C cannot be said to have no relevance to the circumstances of the incident in question. However, the application of the observations can be said to be limited to the circumstances that the learned Acting Senior Commissioner accepted the uncontradicted evidence of Mr Petticrew that Mr Petticrew was frustrated by the burglaries of his home, and that he lost control due to his anger and frustration, but had no real intention of carrying out the threat. Although Mr Petticrew made a threat of violence to a student to be passed on to another student and not to a co-worker, the observations of Fielding C that there is no need for harsh action for words said that are little more than hollow bravado or empty rhetoric, could be capable of application to these facts in the circumstances of the nature of the employment relationship found by the learned Acting Senior Commissioner.
107 The learned Acting Senior Commissioner then went on to distinguish Mr Petticrew's workplace and had regard to the nature of his employment. She found Mr Petticrew was not employed in a primary school but a TAFE college and was in the presence of 16year-old youths who would not be unfamiliar with the language or type of threat made by Mr Petticrew.
108 I am also not persuaded that the learned Acting Senior Commissioner erred in not giving any weight to the restraining order. The learned Acting Senior Commissioner gave clear and cogent reasons why she gave no weight to that evidence. In any event, it is conceded on behalf of the Institute that little weight should be given to this evidence.
109 I also do not agree that the finding that the conduct of Mr Petticrew was threatening is inconsistent with the finding that the learned Acting Senior Commissioner found it hard to believe the threat would be taken literally by the students. The language used by Mr Petticrew constituted a threat that Mr Petticrew intended to be a warning to JB to stay away from Mr Petticrew's home. This is different to a threat intended to be carried out, that is a threat that Mr Petticrew intended to assault JB in a manner that JB's legs would be broken.
110 The learned Acting Senior Commissioner found a number of factors militated against the penalty of dismissal. These were:
(a) the circumstances of why Mr Petticrew made the threat;
(b) the age of the students;
(c) the explanation and contrition shown by Mr Petticrew very soon after the incident;
(d) Mr Petticrew's length of service, age and likely effects on prospects of finding such work again;
(e) the need to move out from his accommodation; and
(f) no evidence of any lasting reputational damage to the Institute.
111 The learned Acting Senior Commissioner also had regard to the previous incidents of alleged misconduct which resulted in a letter dated 15 January 2013 being put on Mr Petticrew's file. In the letter, Mr Markus Beuke, the director training, stated (AB 88):
Although you have previously used harsh language to develop a report [sic] with students to engage with them it is strongly recommended that you tone your language down to a level that respectfully reflects the KTI SPIRIT demonstrating professionalism and integrity.
112 As the learned Acting Senior Commissioner observed these words were not couched in terms as strong as a reprimand or a warning for this conduct. Consequently, it is difficult to challenge the weight given by the learned Acting Senior Commissioner to the prior conduct of Mr Petticrew when considering if the conduct on 24 February 2014 warranted dismissal.
113 For these reasons, I am not satisfied that the Institute has demonstrated any appellable error. It follows therefore that ground 1 of the grounds of appeal has not been made out.
(c) Ground 3 of the appeal
114 The Institute contends that the learned Acting Senior Commissioner gave inadequate reasons for finding that the Institute failed to manage its own processes was oppressive. With respect, I do not agree. The learned Acting Senior Commissioner, in effect, found that Mr Petticrew was dismissed three times and reinstated twice over a period of 15 months because the Institute had failed to manage its own processes. Although findings were brief, the facts on which she found oppression were not complicated, nor did they require much explanation. Those facts are that Mr Petticrew:
(a) was dismissed three times and reinstated twice over a period of 15 months;
(b) was suspended on pay the whole time;
(c) had his housing arrangements threatened; and
(d) was under stress of an ongoing bureaucratic process for so long.
115 The Institute firstly says that it voluntarily rescinded the first dismissal and agreed to an independent investigation because that was what Mr Petticrew wanted. I gather from this argument that this action should have been construed by the union as an act that was of some benefit to Mr Petticrew. I do not agree, section B of the Institute's Staff Disciplinary Policy and Process required the managing director, Ms Dickinson, to appoint an independent investigator to investigate and report to her whether the allegation of misconduct relating to the events of 24 February 2014 were substantiated. Ms Dickinson did not comply with the requirements of the Policy despite advising Mr Petticrew by email on 27 February 2014 that an investigation would occur (AB 100 - 101).
116 The failure to comply with the Policy could have resulted in a decision by the Commission that the termination of the employment of Mr Petticrew was procedurally unfair, if unfairness in the disciplinary process was demonstrated: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [34] (Gleeson CJ).
117 Consequently, at its highest, the actions of the Institute could be construed as a concession that avoided the hearing before the Commission in respect of this issue. Thus, I am not persuaded that the finding that Mr Petticrew was dismissed on three occasions and suspended twice because of the Institute's process was in error.
118 The second point the Institute raises is that it says that action by the union to challenge the decision of the Institute to continue the disciplinary process after rescinding the first dismissal prevented the Institute from proceeding with the disciplinary process from 30 May 2014 until 16 September 2014. This submission has its difficulties. Whilst it is the case that the Institute ceased the disciplinary process by a consent order on 30 May 2014, the Institute reinstituted the disciplinary process on 11 August 2014. Thus, even if the Institute's submission about this point is accepted, it still remains the case that Mr Petticrew was under stress of an ongoing bureaucratic process for 12 months as the process was delayed by the union's application for a period of about 10 weeks.
119 I also do not agree that suspending Mr Petticrew on full pay is a factor that weight should have been afforded in favour of the Institute. Firstly, Mr Petticrew did not receive continuous payments in the 15 month period. He received no pay between 11 April 2014 and 11 May 2014 until he was reinstated on 12 May 2014. When he was dismissed on the second occasion on 6 November 2014, he received no pay in the interim until he was reinstated on 10 February 2015. In the meantime, the union unsuccessfully sought an interim order from the Commission to reinstate Mr Petticrew's pay (AB 291). Secondly, during the entire period of suspension Mr Petticrew was prohibited from entering the premises of the Institute and could not, by the fact of being suspended with pay, carry out alternative work.
120 Finally, whilst I agree it appears to be clear that Mr Petticrew was able to remain in government housing as the Institute had given an undertaking not to require him to move from that accommodation whilst the Commission proceedings were on foot, in each of the last two notices of termination of employment, 60 days' notice was given to him to vacate the property occupied by him (AB 196 and 224).
121 In these circumstances, I am not satisfied that the Institute has demonstrated that the learned Acting Senior Commissioner erred in finding that the Institute's disciplinary processes were oppressive.
122 For these reasons, I am not satisfied that ground 3 of the appeal has been made out.
123 I am of the opinion that an order should be made to dismiss the appeal.
BEECH CC:
124 I have had the advantage of reading in draft form the reasons for decision of her Honour the Acting President. I agree with those reasons, and the order to issue, and have nothing to add.
KENNER C:
125 The matter the subject of this appeal has a long and somewhat tortuous history. The background circumstances, the findings of the Commission at first instance, and the submissions on the appeal are set out by Smith AP. I need not repeat them.
126 Of the three grounds of appeal lodged, ground 2 was abandoned by the appellant. Ground 1 asserted that the learned Commissioner erred in concluding that the conduct of the respondent's member, Mr Petticrew, did not strike at the heart of the employment relationship, and thus did not warrant his summary dismissal. Ground 3 asserted that the Commission erred in concluding that the dismissal of Mr Petticrew was oppressive, having found, in essence, that due to the appellant's management processes, Mr Petticrew was dismissed three times, reinstated twice, and faced the loss of his employer-provided housing. The appellant accepts, in my view correctly, that both grounds of appeal must be made out, for the appeal to succeed.
Ground 1
127 For the following reasons and not without some oscillation, I consider that ground 1 of the appeal grounds is not made out.
128 It is trite to observe that in appeals of the present kind from the exercise of a broad discretion, it is only if an appealable error is established that the Full Bench should intervene: House v R (1936) 55 CLR 499; Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost [2012] FCAFC 46. There is a presumption that a discretion was correctly exercised, unless shown to be in error. Simply because an appeal court may have exercised the discretion differently, based upon a difference in weight to be accorded to considerations relevant to the exercise of the discretion at first instance, is not enough.
129 The right of an employer at common law to exercise the power of summary dismissal is one to be confined to exceptional circumstances, where the conduct of the employee is sufficiently serious: Concut Pty Ltd v Worrell (2000) 75 ALJR 312 per Kirby J at 51; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66. In cases such as the present, where particular conduct has been found to occur, context is important. All of the circumstances of the case need to be considered, not just some of them. Whilst a single act of misconduct may justify an employer exercising the right to summarily dismiss, it would usually only do so in cases where the conduct strikes at the heart of the employment relationship, constituting its repudiation: North v Television Corp Ltd (1976) 11 ALR 599.
130 Mr Petticrew was summarily dismissed for misconduct as a consequence of the events of 24 February 2014. There was little, if any, dispute as to the primary facts in this matter. The appellant did not call evidence at the hearing at first instance. In this case, it was an agreed fact that Mr Petticrew made highly inappropriate and apparently threatening remarks in relation to a student, JB, on 24 February 2014, while in a classroom/workshop and he did so in the earshot of another staff member and at least three students, it seems.
131 Shortly after the incident, in response to the appellant's enquiries, Mr Petticrew outlined the background and history leading up to the incident on 24 February 2014 and his family's relationship with the boy in question. Mr Petticrew acknowledged that his conduct was inappropriate and expressed his deep regret at the incident. On the same day Mr Petticrew also apologised in writing to JB's mother. I pause to note that while the Violence Restraining Order application brought by JB's mother was heard on 28 February 2014 in the Broome Magistrate's Court, the day after the date of the written apology from Mr Petticrew, no reference was made to his apology in the transcript of the VRO proceedings that were in evidence before the Commission. As no evidence was called by the appellant at first instance and no reference was made to it by Mr Petticrew in his evidence, there was no explanation for this before the Commission.
132 In any event, as to the VRO proceedings, the application was heard ex parte. Subsequent to the order being made by the Magistrate, Mr Petticrew objected to its continuance and the matter came back before the court on a return date of 17 June 2014. On that date JB's mother did not appear and the order was revoked. Given the ex parte nature of the interim VRO proceedings, and the subsequent failure by JB's mother to further appear on the order, which no doubt would have enabled her evidence to have been tested, I am not persuaded that the learned Acting Senior Commissioner was in error in placing no weight on those proceedings for the purposes of the unfair dismissal claim.
133 There is no doubt that the words spoken by Mr Petticrew on the day of the incident were apparently threatening in nature and highly inappropriate for someone in Mr Petticrew's position as a TAFE lecturer. However, it was open to the learned Acting Senior Commissioner to accept that the comments made by Mr Petticrew, in all of the circumstances, were made in the heat of the moment, after repeated break-ins and the theft of property from Mr Petticrew's home. His suspicion that JB was responsible for at least some of this offending, fuelled his concerns. Whilst it may be open to reach a contrary view, I do not consider that taken in context, on the basis of all of the evidence before the Commission, that it could be reasonably concluded that Mr Petticrew then had a present intention to carry out the threat.
134 To some extent, this conclusion is also supported by other evidence before the Commission. At AB 87-89, is a letter to Mr Petticrew from the appellant dated 15 January 2013. It was placed on Mr Petticrew's personal file following an earlier misconduct investigation, for the purposes it seems, of personal development. One allegation made against Mr Petticrew was that in a classroom on a date not particularised, he told a student “I'll knock your fucking head off if you keep calling me Sir”. The complaint was found to be substantiated, but in context, did not warrant any further penalty. As to this incident, the learned Acting Senior Commissioner referred to it at par 50 of her reasons as a matter to be noted, but that it was not couched in terms of a formal warning or reprimand.
135 Whilst this is so, I think it also demonstrates a propensity for Mr Petticrew to use highly inappropriate language in a classroom setting, without any apparent sinister intent. No one would seriously suggest that Mr Petticrew would have had any actual intention to “knock the head off” a student for continuing to call him “Sir”. Whilst the Commission at first instance did not make any further findings about this earlier letter from the appellant I consider that it is capable of supporting an inference that similarly, on 24 February 2014, taken in context, along with all of the other evidence, Mr Petticrew's behaviour was also not accompanied by any serious intention to put the threat into effect. It is open for an appeal court to draw its own inferences from facts as found or not in dispute: Warren v Coombes (1979) 142 CLR 531.
136 The Commission referred to and applied the well-known observations of Fielding C in UFTU v Pay-Co Products (1990) 70 WAIG 2497 in relation to the standards of conduct of employees in the workplace, as that of “men and not angels”. In my view, the learned Acting Senior Commissioner was in error in doing so. That case is distinguishable as it has application to the conduct of co-workers in a workplace in situations where words may be said without any intention to carry into effect the actions or behaviours foreshadowed. In this case, the relationship between Mr Petticrew and JB and indeed others present on the day in question, was of a very different kind. The relationship of lecturer or teacher to student means, in my opinion that no support could be obtained from the Pay-Co case in the present circumstances.
137 Whilst it might be considered, on one view, that this led the Commission into an error of principle of the House v R kind, in the context of all of the evidence before the Commission, and in the circumstances of the case, I am not persuaded that reference to the Pay-Co case, and the exercise of the discretion generally, miscarried, resulting in an error of the required kind.
Ground 3
138 The challenge on this ground was that the Commission failed to properly consider reasons for Mr Petticrew being dismissed three times and reinstated two times, based on the mismanagement of the appellant's internal processes. The learned Acting Senior Commissioner's conclusions on this issue at par 55 of her reasons were brief. However, it was self-evident in my view, that on the material before the Commission at first instance, a process that took some 15 months, leading to the termination of Mr Petticrew's employment on three occasions, and his reinstatement twice, whilst at the same time facing the prospect of the loss of his employer-sponsored housing, was plainly very stressful and oppressive. This is so notwithstanding some contribution by the respondent to the delay in the process undertaken by the appellant. A finding that Mr Petticrew's dismissal was oppressive on this basis was open in my opinion. Accordingly, this ground is not made out.
139 I would therefore dismiss the appeal.