2016 WAIRC 00236
APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NO. CR 32 OF 2014 GIVEN ON 18 DECEMBER 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00236

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
ACTING SENIOR COMMISSIONER P E SCOTT

HEARD
:
MONDAY, 22 FEBRUARY 2016

DELIVERED : WEDNESDAY, 20 APRIL 2016

FILE NO. : FBA 18 OF 2015

BETWEEN
:
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Appellant

AND

THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER J L HARRISON
CITATION : [2015] WAIRC 01107; (2015) 96 WAIG 76
FILE NO : CR 32 OF 2014

CatchWords : Industrial Law (WA) - Termination of employment - Appeal against a decision that an employee be reinstated - Loss of trust and confidence raised by the employer as a ground for impracticability of reinstatement - Principles applicable to exercise of discretion to reinstate a claimant pursuant to s 23A of the Industrial Relations Act 1979 (WA) considered
Legislation : Industrial Relations Act 1979 (WA) s 23(1), s 23A, s 44, s 49
Industrial Relations Act 1988 (Cth)
Fair Work Act 2009 (Cth) s 390(3)
Result : Appeal upheld
REPRESENTATION:
Counsel:
APPELLANT : MR D ANDERSON (OF COUNSEL)
RESPONDENT : MR C FOGLIANI (OF COUNSEL) AND WITH HIM MR K SINGH
Solicitors:
APPELLANT : STATE SOLICITOR FOR WESTERN AUSTRALIA
RESPONDENT : W G MCNALLY JONES STAFF LAWYERS

Case(s) referred to in reasons:
Anders v The Hutchins School [2016] FWC 241
Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627
Australian Meat Holdings Pty ltd v McLauchlan (1998) 84 IR 1
Braemar Lodge v The Federated Miscellaneous Workers' Union of Australia, WA Branch (1991) 71 WAIG 908
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Browne v Dunn (1894) 6 R 67 (HL)
Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT 0542_08_0304
City of Geraldton v Cooling [2000] WASCA 346; (2000) 80 WAIG 5341
Cliffs Western Australian Mining Co Pty Ltd v Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Union of Workers, Western Australian Division (1978) 58 WAIG 486
Colson v Barwon Health [2013] FWC 8734
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 197 ALR 201
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Marshall v The Management Committee of the Geraldton Sexual Assault Referral Centre (1995) 75 WAIG 1501
Max Winkless Pty Ltd v Bell (1986) 66 WAIG 847
Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWC 4314
Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198
Nothman v London Borough of Barnet (No 2) [1980] IRLR 65
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11
Slonim v Fellows (1984) 154 CLR 505, 515
The Management Committee of the Geraldton Sexual Assault Referral Centre v Marshall (1994) 74 WAIG 2628
The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Case(s) also cited:
MWJ v R (2005) ALJR 329
The Australian Rail, Tram and Bus Industry Union of Employees v Public Transport Authority of Western Australia (2015) 95 WAIG 746
The Australian Rail, Tram and Bus Industry Union of Employees v Public Transport Authority of Western Australia (2015) 95 WAIG 372
The Australian Rail, Tram and Bus Industry Union of Employees v Public Transport Authority of Western Australia (2015) 95 WAIG 1
The Australian Rail, Tram and Bus Industry Union of Employees v Public Transport Authority of Western Australia (2014) 94 WAIG 1462
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 95 WAIG 1605
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 96 WAIG 71
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 95 WAIG 1619
Reasons for Decision
SMITH AP and SCOTT ASC:
Introduction
1 This is an appeal to the Full Bench pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision of the Commission delivered on 18 December 2015 reinstating an employee in CR 32 of 2014 ([2015] WAIRC 01107; (2015) 96 WAIG 76).
2 CR 32 of 2014 was an industrial matter referred for hearing and determination under s 44(9) of the Act by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the union). The parties were in dispute about the termination of employment of a Ms Janet Vimpany, a member of the union, who was employed by the Public Transport Authority of Western Australia (the PTA) as a passenger ticketing assistant. CR 32 of 2014 is the second matter referred to the Commission relating to disciplinary proceedings against Ms Vimpany and this is the third appeal arising from an incident that occurred on 27 April 2013 involving Ms Vimpany.
3 The first matter referred to the Commission was CR 3 of 2014. Both CR 3 of 2014 and CR 32 of 2014 arose from the incident that occurred on 27 April 2013 which involved an exchange between Ms Vimpany with Mr David Hammon, who is employed by the PTA as a station coordinator and who was, at the time of the exchange, Ms Vimpany's direct line manager. Following the incident, Mr Hammon made a complaint about Ms Vimpany's conduct during the second of two interactions. In a hearing before Kenner C in CR 3 of 2014, the following matters were agreed ([2014] WAIRC 00824, (2014) 94 WAIG 1462 [6], [7], [10], [16], [20] - [22]):
On the afternoon of 27 April 2013 between 1500 and 1600 hours, there were two interactions at Perth Railway Station between the Union's member, Ms Vimpany, a Passenger Ticketing Assistant and Mr Hammon, a Station Coordinator, in the presence of other employees of the Authority.
Following the second interaction, Mr Hammon emailed the Authority's Passenger Service Manager Perth, complaining about Ms Vimpany's conduct during their second interaction. Specifically, Mr Hammond alleged that Ms Vimpany abused his position with threatening behaviour by pointing her finger directly in his face and saying 'do not talk to me like that again and who do you think you are anyway?'
…
On 14 May 2013, Ms Vimpany submitted a Health and Safety Incident Report Form (the Form) in which she alleged that:
(a) Mr Hammon was aggressive, threatening and abusive towards her and bullied and harassed her on 27 April 2013;
(b) She felt anxiety, stress and tension headaches as a result of feeling vulnerable and powerless following her interactions with Mr Hammon on 27 April 2013; and
(c) Exposure to these mental stress factors, including receipt of the Memorandum, had resulted in psychological injuries.
…
On 11 June 2013, Ms Vimpany submitted a revised response to the Memorandum which alleged that:
(a) During their first interaction, Mr Hammon 'stood and glared at us and shouted instructions regarding our finishing time in an aggressive, threatening, intimidating and completely unnecessary manner' such that she had 'never in (her) life been spoken to by a male in such a threatening way'; and
(b) During their second interaction, Mr Hammon reacted once again in a threatening, loud and aggressive manner, becoming agitated and unreasonable and entered her personal space.
…
On 28 June 2013, the Union notified the Authority of a dispute under cl 8 of the Agreement contending that Transperth Train Operations management were not sufficiently capable, competent or independent to investigate the allegations between Ms Vimpany and Mr Hammon.
On 4 July 2013, the Union agreed to allow the Disciplinary Investigation to proceed.
During July 2013, interviews were conducted for the Disciplinary Investigation.
4 After the complaint by Mr Hammon was investigated by the PTA, Ms Vimpany was found to have committed a breach of discipline which was dealt with by the PTA by the imposition of a reprimand (the first disciplinary process).
5 As a result of accounts of the incident on 27 April 2013 given by Ms Vimpany during the course of the disciplinary proceedings, and elsewhere, the PTA subsequently commenced a disciplinary process alleging that Ms Vimpany had deliberately given the PTA false accounts of the incidents on 27 April 2013 (the second disciplinary process).
6 Prior to the resolution of the second disciplinary process, on behalf of Ms Vimpany, the union in C 3 of 2014 challenged the findings made in the first disciplinary process and penalty imposed in relation to the events of 27 April 2013 and sought an order restraining the PTA from continuing the second disciplinary process.
7 In the matters referred for hearing and determination in CR 3 of 2014, one of the issues referred was issue 3 which was as follows:
Whether, in relation to the events of 27 April 2013, Ms Vimpany, Mr Hammon or any other employee of the Authority conducted themselves dishonestly by:
(a) Initiating an allegation or claim that they knew to be false; or
(b) Giving an account of those events to investigators that they knew to be false.
8 After hearing evidence given by witnesses for the PTA and Ms Vimpany and her witnesses, Kenner C rejected the evidence given by Ms Vimpany about the two incidents and accepted the evidence given by Mr Hammon and other employees of the PTA who witnessed the interactions. Commissioner Kenner was satisfied that Ms Vimpany entered the office, after Mr Hammon had earlier told her that she and another employee could not leave their shift early, with the purpose of confronting Mr Hammon and shouted at Mr Hammon in an angry manner whilst pointing her finger at him. In particular, he made the following important findings about Ms Vimpany's evidence ([2014] WAIRC 00824; (2014) 94 WAIG 1462 [64] - [65]):
Given the findings I have made above, there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved. This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013.
Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. Their versions of the events, has been largely consistent, since their first reports in April and May 2013. It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events.
9 Commissioner Kenner then made an order dismissing the union's application.
10 The union sought to challenge Kenner C's decision in FBA 11 of 2014. Prior to the determination of FBA 11 of 2014, the PTA dismissed Ms Vimpany on 8 October 2014. The Full Bench after hearing the parties made an order that the appeal be dismissed ([2014] WAIRC 01368; (2014) 95 WAIG 13). One of the issues in FBA 11 of 2014 was whether Kenner C had made a finding to dispose of issue 3, in particular whether he had made a finding that Ms Vimpany had conducted herself dishonestly by initiating an allegation or claim that she knew to be false or had given an account of those events to investigators that she knew to be false.
11 In FBA 11 of 2014, the Full Bench found that Kenner C did not determine the matters in issue 3. The Full Bench made the following findings ([2014] WAIRC 01367; (2014) 95 WAIG 1):
(a) The learned Commissioner did not find that Ms Vimpany had been dishonest. His finding of fact about her conduct in respect of the matters raised in issue 3 was vague [46].
(b) The learned Commissioner did not answer the questions referred for hearing and determination in issue 3 [47].
(c) The two questions raised in issue 3 required findings of fact to be made whether Ms Vimpany, Mr Hammon or any other PTA employee conducted themselves 'dishonestly by', initiating a claim 'they knew to be false', or giving an account to investigators 'they knew to be false'. To make such findings, the learned Commissioner would have had to find that Ms Vimpany or any other employee of the PTA had formed an intention to give a false account and that in doing so their conduct was dishonest [48].
(d) Thus, the first matter raised in issue 3 was whether any employee of the PTA had intended to give a false account at any stage during the investigation, including initiating a claim. If the answer to the first matter was yes, the second matter was whether in circumstances the employee in question in doing so had conducted themselves dishonestly [49]?
(e) A finding that a person had formed a state of mind to give a false account, or, put another way, had subjectively determined to give a false account is a very serious matter which attracts a high standard of proof [50]: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
(f) The issue before the learned Commissioner was not whether Ms Vimpany was honest in her account when giving evidence before the Commission. The PTA did not put to Ms Vimpany in cross-examination that at any time she had formed a state of mind to give a false account. In these circumstances, it was not open to the learned Commissioner to determine the matters raised in issue 3. Nor did he do so [51].
(g) It was open for issue 3 to be determined in any proceedings that flow from the determination of the secondary disciplinary action [52].
12 The Full Bench then issued an order dismissing the appeal against CR 3 of 2014.
13 As set out above, prior to the Full Bench delivering its decision against the decision given by Kenner C in CR 3 of 2014, the PTA dismissed Ms Vimpany. The union then referred the dismissal of Ms Vimpany to the Commission through an application for a compulsory conference under s 44 of the Act, in CR 32 of 2014.
14 The grounds for termination of Ms Vimpany were that she had knowingly given false accounts and made a false allegation in relation to the events of 27 April 2013. The PTA's findings were made by Mr J Steedman who was at that time the acting general manager of Transperth Train Operations. In a letter written by Mr Steedman dated 7 October 2014, Mr Steedman found the allegations against Ms Vimpany proved insofar as they related to her account of the second interaction that she had with Mr Hammon. It is notable that Mr Steedman's letter was written prior to the Full Bench delivering its reasons for decision in FBA 11 of 2014. Mr Steedman found as follows:
[H]aving put to one side the outcome of the Commission hearing, I find that your account that David Hammon intimidated and bullied you during your second interaction with him by screaming (or shouting) at you, getting out of his chair and standing face to face with you in your personal space was false.
I acknowledge that your account was similar on each occasion you gave it. However, your account was contradicted by the accounts of the other people present, in particular Felix Geson and Fab Pontarolo. While not absolutely identical, the other accounts of those present were broadly consistent. Also, I find Jen Blake's evidence that you were not upset after leaving the office on the second occasion more likely to be consistent with the other witnesses account of events during your second interaction with Mr Hammon than your own account.
Having satisfied myself that your account was false, I now turn to consider whether it was knowingly false - whether at the time you gave your accounts prior to September 2013 you knew them to be false.
Based on my review of the documents listed above, I conclude that you were aware and deliberately gave a false account of the relevant events.
First, I can see no innocent explanation for the difference in your account compared to the others present. Initial accounts were recorded by all present very soon after the incident - each within about two weeks, so differences in recollection would not explain so great a difference in the accounts. Nor can exaggeration or differences in perspective or interpretation explain the extent of the difference between your accounts of what happened during the second interaction.
I have to conclude therefore that one or other of the accounts was being given dishonestly.
It is less likely that all of the other employees, some of whom are fellow wages employees and one of whom, by the time of the hearing, was no longer even employed by the PTA, colluded to give detailed false evidence contradicting your account. There was no evasiveness or vagueness in their accounts that might be expected if they had somehow been persuaded to not give a true account.
I am satisfied that it is much more likely that:
Ÿ after learning of the notification requesting a response about your alleged behaviour during the second interaction, you decided to respond by initiating a Grievance application and a OSH/Workers Compensation claim against your accuser, on the basis that attack was the best form of defence; and
Ÿ you initiated those claims knowing - at least in so far as it dealt with the events of the second interaction - the account of David Hammon's actions upon which your claims were based was false.
I therefore find the allegations against you proved in so far as they relate to your account of the second interaction with Mr Hammon.
15 CR 32 of 2014 was heard by Mayman C.
16 After dealing with the preliminary issue as to what matters could be referred for hearing and determination, Mayman C made a declaration and order on 13 March 2015 ([2015] WAIRC 00234; (2015) 95 WAIG 379) to the effect that the following matters were to be heard and determined which were matters relating to:
(a) whether there were reasonable grounds for the PTA to hold the belief that the union's member was guilty of the misconduct alleged, having regard for the principles in The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203;
(b) procedural fairness; and
(c) penalty.
17 After hearing all of the evidence given by the parties, including oral evidence from Ms Vimpany, Mayman C found that there were reasonable grounds in the materials considered by Mr Steedman on behalf of the PTA for the PTA to consider Ms Vimpany was guilty of the misconduct alleged. Commissioner Mayman made the following findings in respect of the credibility of the witnesses ([2015] WAIRC 00386; (2015) 95 WAIG 746):
(a) that each of those persons who gave character references on behalf of Ms Vimpany was accepted as evidence given in good faith and was largely unchallenged [111];
(b) Ms Vimpany was insistent and unwavering that her version of events on 27 April 2013 remains a reality. From 27 April 2013, through all of the documents in which she gave her version of events, those documents were consistent [113];
(c) having closely observed Ms Vimpany throughout the giving of her evidence whilst rejecting that aspect of her evidence that related to the events of 27 April 2013, with the passage of time, sadly, for Ms Vimpany she has convinced herself that her version of what occurred on 27 April 2013 has become the reality [114].
18 Commissioner Mayman found that Ms Vimpany was not harshly or unfairly dismissed. One of the findings of fact that she made was the continuing insistence by Ms Vimpany that, in spite of the findings made by Kenner C, she remains a victim and Mr Hammon the aggressor and that Ms Vimpany continued to hold the view that Mr Hammon was the individual displaying antagonistic behaviours on 27 April 2013.
19 The decision given by Mayman C was subject to an appeal to the Full Bench in FBA 6 of 2015. The Full Bench upheld the appeal on 13 October 2015, suspended the decision made by Mayman C and remitted the matter to the Commission for further hearing and determination as to whether Ms Vimpany should be reinstated as a passenger ticketing assistant, whether orders should be made to maintain continuity of employment and payment of any loss of remuneration, or alternatively whether Ms Vimpany should be paid compensation.
20 The reasons why the Full Bench upheld the appeal turned upon an analysis of the disciplinary allegations made against Ms Vimpany. The allegations made against Ms Vimpany were set out as follows in Smith AP's reasons for decision (with whom Beech CC and Harrison C agreed) ([2015] WAIRC 00936; (2015) 95 WAIG 1605 [59] - [61]):
The misconduct alleged against Ms Vimpany was serious. The PTA alleged that Ms Vimpany knowingly (AB 260):
• [G]ave a false account of Mr Hammon's actions in his dealings with you on the afternoon of 27 April 2013 by claiming that he 'screamed' at you in front of your colleagues, during both interactions, and during the second interaction that he got out of his chair and stood face to face with you in your personal space - claims of fact which you relied upon in support of the conclusion that his behaviour was intimidating and bullying towards you.
• [P]rovided a similar false account in support of a 'grievance' raised by Ms Martin on your behalf on 24 May 2013.
• [M]ade a false allegation on 14 May 2013 in an OSH incident report of bullying and harassment by a male supervisor on 27 April 2013.
These allegations could be characterised as among the most serious allegations of misconduct an employer can make against an employee. Although the allegations refer to two interactions, the allegations were only found to be proved insofar as they related to Ms Vimpany's accounts of the second interaction with Mr Hammon (AB 15).
The allegations do not simply allege the making false statements; the allegations go further than that. By alleging Ms Vimpany did so knowingly, to be satisfied that the allegations were proved, the decision-maker must be satisfied that in making the false statements Ms Vimpany deliberately intended to deceive the PTA. Put another way, the decision-maker must be satisfied that the statements made by Ms Vimpany were made with specific intent; that is, at the time the statements were made, they were made deliberately, by her, with the knowledge they were untrue. Thus, the decision-maker must be satisfied that the statements were made in the absence of an honest belief that they were true.
21 After considering the evidence and the relevant principles of law, Smith AP found that to be satisfied that there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the alleged misconduct (by having regard to the evidence and material before Mr Steedman), in the absence of any direct evidence that Ms Vimpany had deliberately concocted her version of events of the incident in question, the most probable inference open on that evidence and material must be that Ms Vimpany had intended to give a false account [77]. Acting President Smith then found that when regard was had to the terms of the specific allegation made against Ms Vimpany, the requisite standard of proof and the evidence given in the proceedings, that inference could not be drawn with sufficient certainty [78]-[81]. In particular, it could not be found by Mayman C with sufficient certainty that there were reasonable grounds for the PTA to hold the belief that Ms Vimpany was guilty of the misconduct alleged. This was because Mayman C had heard direct evidence on oath from Ms Vimpany and found that Ms Vimpany had with the passage of time convinced herself that her version of what occurred on 27 April 2013 had become the reality. In these circumstances, Smith AP found there were not reasonable grounds to find that Ms Vimpany had knowingly given false accounts and that a decision should have been made that the PTA did not have reasonable grounds to dismiss Ms Vimpany for the particularised alleged misconduct and in the circumstances the dismissal of Ms Vimpany was unfair. The matter was remitted for further hearing and determination at first instance as to whether Ms Vimpany should be reinstated as a passenger ticketing assistant or alternatively should be paid compensation.
Character evidence given in proceedings before Mayman C
22 In the proceedings before Mayman C in CR 32 of 2014, nine employees of the PTA gave character evidence in support of Ms Vimpany. None of these employees appeared to be supervisors of Ms Vimpany but most of them worked closely with Ms Vimpany during her employment on the Joondalup line. Their evidence was a follows:
(a) Ms Jennifer Blake, a customer service assistant, described Ms Vimpany as a good worker, great with people, and willing to help everybody (ts 32).
(b) Mr Malcolm Heatherly, a passenger ticketing assistant, gave evidence that there was nothing wrong with Ms Vimpany's work, that she was rated amongst the top workers, that she was a fair operator and had been recommended for special training to deal with people with special needs (ts 34 - 35).
(c) Mr Robert Hall, a passenger ticketing assistant, gave evidence that Ms Vimpany was a team player, honest, hardworking, very sociable, very good with customers and trustworthy (ts 36).
(d) Mr David Scott, a car park attendant at the Warwick train station, gave evidence that Ms Vimpany's professionalism, integrity and honesty was beyond reproach (ts 38).
(e) Mr Aleksander Sekulovski usually works at Perth station, but has worked with Ms Vimpany when on transfer to the Joondalup line. His evidence was that Ms Vimpany is a 'very good lady', honest and a very good operator (ts 39). Mr Sekulovski had not seen Ms Vimpany have any issues or problems with customers (ts 39).
(f) Mr John Noble gave evidence that he has always found Ms Vimpany to be trustworthy and honest (ts 41).
(g) Mr Mark Counsel, a passenger ticketing assistant, gave evidence that Ms Vimpany was honest and that her integrity was second to none (ts 42). Mr Counsel had only heard good reports from managers and the staff that she works with (ts 42).
(h) Ms Helen Martin, the union affirmative action representative and sub-branch vice president, gave evidence that Ms Vimpany was helpful and effective in the workplace and that she was ethical and honest (ts 46). Ms Martin was aware that Ms Vimpany had received commendations for her work in the workplace (ts 46). Ms Martin saw no issues with Ms Vimpany's integrity (ts 46).
(i) Mr Barry Watts works on the Armadale line, but has worked with Ms Vimpany during special events. He gave evidence that there was no issue with Ms Vimpany's honesty or integrity (ts 59). According to Mr Watts he had no reason not to trust Ms Vimpany (ts 59).
Hearing and determination as to whether Ms Vimpany should be reinstated
23 On 30 November 2015, Harrison C convened a hearing and heard evidence by the parties in respect of the matters remitted by the Full Bench in FBA 6 of 2015.
24 After hearing evidence, on 18 December 2015 Harrison C made the following order:
1. THAT the respondent reinstate Janet Vimpany to her former position by no later than 11 January 2016 as if her contract of employment had not been terminated on 8 October 2014.
2. THAT the respondent reinstate Janet Vimpany's accrued entitlements and that her service with the respondent be regarded as continuous for all purposes including long service leave.
3. ORDERS that by no later than 11 January 2016 the respondent pay Janet Vimpany an amount of money in respect of all of the remuneration lost by her by reason of the termination of her contract of employment as if she had worked continuously in the employment of the respondent between 8 October 2014 and the date she is reinstated, less any income earned by her in this period.
(a) Evidence
25 The union tendered into evidence a statement made by Ms Vimpany. In her statement Ms Vimpany stated that she first became employed by the PTA on 31 July 2006 and until the termination of her employment she was employed as a passenger ticketing assistant on the Joondalup line. She also said that before 27 April 2013 there had been no issues with her performance at the PTA, that she was a good and hard worker. She then referred to the incident that occurred on 27 April 2013 and said that Mr Hammon was a station coordinator at the Perth City Station and not her normal supervisor. She said that she would only work at Perth City Station when she was on overtime. She also pointed out that between 28 April 2013 and 8 October 2014 she continued to perform her role as a passenger ticketing assistant and that there were no issues with her performance or conduct during this time and in fact she received an email from a PTA manager, Mr Steve Mccullaugh, on 29 January 2014 complementing her good work. This was an email which was tendered into evidence in the proceedings before Mayman C as exhibit A7. That email states as follows:
Hi Ian / Jan
I have received some excellent feedback from the Supervisor in regards to your performance at the Perth Underground during the Sky Show.
It has been relayed to me that with the manner, professional performance and assistance that you two displayed and provided, ensured the smooth movement of passengers and provided great assistance to the coordinator.
Well done on a job well done.
26 Ms Vimpany was also awarded a certificate of appreciation by the PTA in 2009 in recognition for exceptional contribution to customer service (exhibit A6).
27 Ms Vimpany said in her witness statement that she loved her job as a passenger ticketing assistant and apart from the unfair dismissal process she always had a good relationship with the PTA. She also said she would not have any difficulty working with anyone at the PTA, including Mr Hammon.
28 The remainder of Ms Vimpany's statement of evidence deals with matters going to her efforts to mitigate her loss subsequent to the termination of her employment and are not material to the issues raised in this appeal.
29 Ms Vimpany gave oral evidence at the hearing before Harrison C. Ms Vimpany was cross-examined extensively about a letter that she signed which was addressed to the PTA and dated 27 September 2013. In the letter she referred to the allegations made against her of inappropriate conduct in the workplace on 27 April 2013, in particular the allegation that she had stormed into station coordinator Dave Hammon's office, and once in close proximity she shook her finger in an intimidating manner until requested to leave. In the letter she stated about that matter (AB 42):
I believe these allegations to be baseless and untrue. I believe that no disciplinary action should be taken as a result of the allegations. Outlined below are reasons supporting this view.
30 In the letter she then went on to set out what her account of the events that occurred on 27 April 2013 were. She then dealt with the investigation report and stated (AB 43):
I do not believe investigation report provides a true representation of the events which occurred on 27 April 2013. As will be demonstrated below the entire investigation process has been a conspiracy.
31 Then under the heading 'Conclusion' she stated (AB 43 - 44):
Throughout the process I have provided a genuine account of the events which transpired on 27 April 2013. I have not provided any inconsistent evidence. The fact is little weight should be placed on the investigation process as a whole, given management throughout the Authority were actively conspiring to gather evidence to discipline me. The fact of the matter remains simple, at no stage did I act inappropriately, in fact I attempted to self-resolve workplace aggression by raising concerns in an informal manner. For the foregoing reasons I do not believe any of the allegations are founded and as such no disciplinary action should be taken.
32 When asked about this letter in examination-in-chief, Ms Vimpany said that the letter was drafted by the union and she read it and signed it. When asked whether she held the view that there was a conspiracy against her to be dismissed, she said (AB 64, ts 164):
I've honestly never really thought of it as a conspiracy. I never thought I'd lose my job. I never, ever thought there was a conspiracy to get me dismissed, no.
33 When cross-examined, Ms Vimpany departed from and qualified this evidence. Firstly, she initially said in cross-examination that she did not honestly believe that she used the word 'conspiring'. Yet she agreed that the letter was prepared 'on her information'. When asked if it included her belief that management throughout the PTA were actively conspiring to gather evidence to discipline her, she said (AB 67, ts 167):
Due to the investigation process. You have to read the whole sentence as a whole. I wouldn't have just said, um, I believe the Authority were actually conspiring to gather evidence to discipline me. I said due to the investigation process because of what happened during the investigation process.
34 When asked again whether she was of the belief that the PTA were actively conspiring to gather evidence to discipline her, she said she told the union that and they prepared a letter in accordance with her instructions and she agreed that she had written the whole of that sentence. She then stated that when you read the whole sentence she was making an observation about the investigation process as a whole. When asked further about this she said that the investigation process was not fair. She also stated that she had given the same account on various occasions and that her version was the true version of the events.
35 When it was put to her in cross-examination that the version given by Mr Hammon must be untrue, she said, 'Yes'. When it was put to her that it was her view that Mr Hammon had perjured himself in relation to the matter, she initially did not answer the question. She then said (AB 69, ts 169):
[I]t's been two and a half years, okay. I can't go back, we can't change - we can't do this again, this is what has happened. But right now I just want my job back. I have to let these things go and go back to work.
36 When asked to answer the question again, she said she did not want to, but then she said that she was prepared to answer the question and said Mr Hammon had told untruths for whatever his reasons to protect himself and that that was for him to deal with and she just wanted her job back (AB 69, ts 169).
37 After Ms Vimpany gave evidence, Mr Ian Bernard Luff was called to give evidence on behalf of the PTA. Mr Luff is the manager customer service of the PTA. In this role he is responsible for leading and managing the delivery of quality customer services for patrons of Transperth Train Operations, including managing the development and implementation of customer service standards and guidelines.
38 Mr Luff in his witness statement stated that:
(a) the passenger service managers while on duty directly supervise passenger ticketing assistants and customer service assistants. The passenger service managers report to him and each of the passenger service managers are responsible for a suburban line or the central Perth stations. There is one passenger service manager who is responsible for the Joondalup line, and that is Mr Barry Roughly;
(b) there are five station coordinators that report to the passenger service manager in Perth, and work a 24/7 roster in order to supervise, guide and support customer service assistants and passenger ticketing assistants who work at the Perth stations and who work at stations under the control of a station coordinator during a special event and/or whilst providing frontline response to planned or unplanned service disruptions anywhere across the suburban rail network;
(c) the four suburban operations officers sometimes relieve and perform the duties of station coordinators and passenger service managers;
(d) Mr Hammon is a station coordinator at Perth station; and
(e) due to a recent recruitment round, the branch currently has nine surplus passenger ticketing assistants and that they do not have any vacancies on the Joondalup line.
39 In Mr Luff's witness statement he also dealt specifically with necessary supervisory arrangements that he says would have to be put in place if Ms Vimpany was to be reinstated. He stated that:
(a) it is not only just Mr Hammon who has been implicated by allegations made by Ms Vimpany, but also a number of other persons employed by the PTA including himself;
(b) he had given consideration as to how he can reasonably reassure those who might have to interact with Ms Vimpany in a supervisory capacity and that if Ms Vimpany returned to her role, it is his intention to instruct her supervisors that they ought not have supervisory interactions with Ms Vimpany without another supervisor present;
(c) in his view, such an arrangement, whilst highly impractical, cannot be reasonably avoided and such an arrangement will be particularly impracticable on a suburban line, where the only readily available supervisor is usually the passenger service manager responsible for that line; and
(d) such an arrangement would be more feasible in Perth, but it would not be tenable for Ms Vimpany to work there given the likely proximity of Mr Hammon and the other employees of the PTA who work at the Perth station who witnessed the altercation Ms Vimpany had with Mr Hammon.
40 In Mr Luff's witness statement he also dealt with the role of a passenger ticketing assistant. He stated (AB 119):
20. The PTA needs to be able to rely upon the accuracy of reports received from Passenger Ticketing Assistants in the course of their duties. In their role, a Passenger Ticketing Assistant, among other things:
a. Monitors customers entering/leaving stations via fare gates. This duty includes checking validity of tickets, issuing of infringements, providing basic revenue protection and addressing fare evasion,
b. Provides organisational feedback on the use of Transperth services and facilities, reporting anomalies in a timely manner. Provides appropriate assistance to Passengers in periods of service disruption and emergency situations in accordance with direction provided by the Chief Warden and/or appropriate Operational staff.
c. Liaises with Security and/or other staff to initiate appropriate action for obtaining support, back up or advice as and when demanded by circumstances consistent with PTA Policies and Procedures, e.g. Identify/Observe/Report for alerting appropriate officers authorised to deal with Security issues or other related incidences.
21. Passenger Ticketing Assistants on the suburban lines primarily work remotely at stations without onsite supervision.
22. In the event of contested accounts between patrons and Ms Vimpany concerning any incident arising in the course of her duties, I could have no confidence in and would not rely on Ms Vimpany's account in the absence of independent verification.
23. In the event of contest accounts between another employee and Ms Vimpany concerning any incident arising in the course of her duties, I could nave no confidence in and would not rely on Ms Vimpany's account in the absence of independent verification.
41 When Mr Luff was cross-examined he conceded that there had been no issues raised about Ms Vimpany's performance other than the incident that occurred on 27 April 2013. When asked why would the position be different if Ms Vimpany was reinstated into her previous role, he said that he was concerned with working relationships and that there could be an issue about inaccuracy of reports by Ms Vimpany. He said Ms Vimpany's duties require that other than checking of tickets and the issuing of infringements she had to write accounts of what had transpired and he had no confidence that any written report given by Ms Vimpany would be accurate enough to rely upon. Also he stated he is concerned that she had provided false and misleading information and that she had been uncooperative during the investigation process. He, however, conceded that he was removed from direct supervision of Ms Vimpany and that there had been no reports given to him about her performance and any aspect of her work other than the incident in question.
42 When Mr Luff was re-examined, he was asked whether there were circumstances in which Ms Vimpany may come into contact with managers other than Mr Roughly. In response, Mr Luff said that when Mr Roughly is on leave they have relief suburban operations officers who Ms Vimpany would have contact with. He also said that from time to time Ms Vimpany would be required to work with other managers during special events which arise on a weekly occurrence outside the normal train operations. He said, for example, when a special event occurs, such as a concert at Domain Stadium, the PTA 'put on' considerably more staff to deal with the events and supervisors and managers from across the network who all have to work together with the passenger ticketing assistants and customer service assistants to deliver services for the special event. Mr Luff also said that the incident in question occurred at Perth station when Ms Vimpany was at the station during the course of providing services for a special event.
(b) Commissioner Harrison's reasons for decision
43 In her reasons for decision Harrison C set out the evidence given by the parties. She then had regard to the submissions put by the union and the PTA. The union's submissions were as follows:
(a) The union relies on evidence given in previous proceedings about Ms Vimpany's character and unblemished work history. In particular, in proceedings before Mayman C nine of the PTA's employees gave unchallenged character evidence in support of Ms Vimpany. Each witness had worked with Ms Vimpany for some time and found her to be trustworthy, honest, hardworking and good with customers.
(b) Ms Vimpany received a certificate of appreciation from the PTA in recognition of her 'exceptional contribution to Customer Service'.
(c) On 29 January 2014, Ms Vimpany was recognised by the PTA's management for her excellent performance during the Sky Show.
(d) It is extremely unlikely that Ms Vimpany will find herself in trouble in the future given her previous good record, excellent performance and good workplace relationships.
(e) If Ms Vimpany's former position has been filled by another employee this is not a bar to reinstatement.
(f) Ms Vimpany's reinstatement is not impracticable. There is no evidence that it is likely that unacceptable problems or embarrassment would arise if Ms Vimpany was reinstated and there is no evidence that reinstating Ms Vimpany is likely to seriously affect productivity or harmony within the PTA's business. There is no evidence that any direct supervisors who would manage Ms Vimpany if she was reinstated did not trust her. Mr Luff's belief that Ms Vimpany was dishonest and not to be trusted is only based on Ms Vimpany giving a version of the events of the incident on 27 April 2013 which is different to that of other employees.
(g) It is unreasonable to conclude that Ms Vimpany cannot be trusted again. Two managers are not required to be present when dealing with Ms Vimpany. This condition of supervision was not required for 17 months after the incident and before her termination.
(h) If the Commission finds that it would be inappropriate to reinstate Ms Vimpany, the Commission should order that the PTA re-employ Ms Vimpany as a customer service assistant; a trainee railcar driver, a CMR operator, a station coordinator or any other suitable role that is currently available in the PTA's operations.
44 The PTA's submissions were as follows:
(a) The history of this matter demonstrates that the Commission should not order reinstatement or re-employment as these remedies are impracticable.
(b) Despite the fact that the PTA's findings, that Ms Vimpany was the aggressor and behaved inappropriately towards her supervisor, Mr Hammon, being upheld by the Commission, Ms Vimpany continues to believe that she was not the aggressor and that she did not behave inappropriately and that Mr Hammon was the aggressor and that he behaved inappropriately.
(c) The Commission should accept that it would be impracticable to reinstate Ms Vimpany as a passenger ticketing assistant where Ms Vimpany honestly believes that the PTA engaged in an unlawful conspiracy to do her harm and this conspiracy was successful in doing her harm. Ms Vimpany also believes that something which did not happen did happen and has given no explanation for this.
(d) The PTA has a full complement of passenger ticketing assistants and more than it presently needs.
(e) Ms Vimpany continues to believe her allegation that the PTA and its employees have conspired against her and they have given false evidence to the Commission. Her belief that the investigation process has been a conspiracy is a very serious allegation. It is an allegation that persons in authority at the PTA have conspired to harm Ms Vimpany and have done so knowing that the truth is as Ms Vimpany gives it.
(f) It is difficult to see how the relationship of mutual trust and respect that is at the core of an effective employment relationship could possibly exist where Ms Vimpany believes that the PTA has prosecuted a conspiracy against her. If Ms Vimpany is reinstated she will have to work under the supervision of Mr Hammon who is in her mind central to the conspiracy and alongside employees who she believes played important roles in this conspiracy. Ms Vimpany's beliefs go to the heart of the employment relationship. It is impracticable to place her back into the employment relationship even if the employee desires it and it is inappropriate to expect a healthy working relationship to be revived in these circumstances.
(g) It is insufficient for Ms Vimpany to say that she is now prepared to forgive and forget, or to say that she wants her job back despite having reservations about her employer and fellow employees and will not allow these to affect her work performance or to say that she has no problems working with anyone, including Mr Hammon. Even if Ms Vimpany could re-establish a proper working relationship with the PTA, the PTA cannot re-establish a proper employment relationship with a person who believes that it has conspired against her to do her harm when this is not the case.
(h) The PTA considers that if Ms Vimpany was reinstated it would need to instruct supervisors to have another person present when they are supervising Ms Vimpany which points to the impracticability of reinstating Ms Vimpany. Supervisors may not interact with Ms Vimpany without witnesses being present which is not a normal and appropriate working relationship.
(i) The Full Bench has held that Ms Vimpany had 'enforcement duties' in her role as a passenger ticketing assistant. Consequently, the PTA must have complete confidence in Ms Vimpany's loyalty and competence.
(j) The PTA is entitled to have no trust or faith in Ms Vimpany's ability to properly discharge enforcement duties she would hold as a passenger ticketing assistant or any duties where there is a large gulf between Ms Vimpany's account and the truth which remains unexplained. The PTA must have confidence in reports given by employees who have enforcement powers and the PTA may have to make serious decisions based on what it is told by Ms Vimpany. The PTA needs to have confidence that not only will Ms Vimpany tell the truth but that her recollection of events will be accurate.
45 Commissioner Harrison found that the evidence given by Ms Vimpany and Mr Luff was given to the best of their recollection and she accepted the evidence that they gave. Commissioner Harrison referred to the principles that reinstatement is the primary remedy under the Act and the onus is on the PTA to establish that reinstatement or re-employment is impracticable. She then set out her findings why she was of the opinion that it was not impracticable for Ms Vimpany to be reinstated to the position of passenger ticketing assistant working on the Joondalup line and why she formed the view that when Ms Vimpany returns to work trust can be restored between Ms Vimpany and the PTA. Commissioner Harrison's reasons for making this finding were as follows:
(a) Apart from issues related to the events of 27 April 2013 for which Ms Vimpany was issued with a reprimand for her conduct during this incident, Ms Vimpany has had a lengthy, impeccable and uneventful employment history with the PTA.
(b) Ms Vimpany was employed by the PTA between 31 July 2006 and 8 October 2014, which is a significant period, and there was undisputed evidence given in previous proceedings that during this time Ms Vimpany's performance was unblemished and exemplary, she was of good character, she was trustworthy and she interacted positively with her colleagues.
(c) As Ms Vimpany's trustworthiness both pre and post the incident between her and Mr Hammon on 27 April 2013 has not been called into question this indicates that potential enforcement proceedings will not be compromised if Ms Vimpany is involved in issues of this nature.
(d) Whilst the PTA argued that Ms Vimpany should not be reinstated as she believes some of the PTA's employees conspired against her after the incident on 27 April 2013 and she believes that employees who gave evidence about this incident contrary to her version of events were lying and perjured themselves, there was no dispute that Ms Vimpany worked with her supervisors and other employees without incident and in a professional manner in the 17 months after the incident in question which does not indicate any animosity or contempt on Ms Vimpany's part towards her colleagues and managers.
(e) The evidence given by Ms Vimpany that she wants to return to work, move forward and put the past behind her, including re-establishing the good relationships she had with her former colleagues and managers is accepted.
(f) The lack of complaints about Ms Vimpany returning to work in her former position indicates a willingness by Ms Vimpany's colleagues and supervisors to work positively with Ms Vimpany if she returns to work with the PTA.
(g) It is noted that no manager who will work with Ms Vimpany if she returns to her former role gave evidence that they could not work with Ms Vimpany or that they would require a witness to be present during their interactions with Ms Vimpany.
(h) No complaints had been made to Mr Luff by supervisors who would be working with Ms Vimpany about any difficulty which may arise should Ms Vimpany return to work as a passenger ticketing assistant.
Grounds of appeal against decision of Harrison C
46 The grounds of appeal are somewhat unnecessarily prolix. The grounds are as follows (AB 2 - 5):
Ground of Appeal 1
The Commissioner erred in fact and in law by finding, at [33] of her reasons for decision, that 'Ms Vimpany's trustworthiness post the incident between her and Mr Hammon on 27 April 2013 has not been called into question'.
Particulars
(a) The respondent called into question Ms Vimpany's trustworthiness after 27 April 2013, in the sense of whether accounts given by her could be trusted to be accurate, it being accepted that the Full Bench had held no question of dishonesty arose.
(b) This was a key basis for the respondent's opposition to reinstatement.
Ground of Appeal 2
The Commissioner erred in law by failing to take into account relevant considerations, namely that:
(a) Ms Vimpany's trustworthiness had been called into question after the incident on 27 April 2013;
(b) relevant findings about Ms Vimpany's trustworthiness after the incident on 27 April 2013 had been made by the Commission; and
(c) the respondent held relevant views on Ms Vimpany's trustworthiness after the incident on 27 April 2013.
Particulars
(a) The respondent's concerns about Ms Vimpany's trustworthiness after 27 April 2013, in the sense of whether accounts given by her could be trusted to be accurate, it being accepted that the Full Bench had held no question of dishonesty arose, were relevant but not taken into account.
(b) Commissioner Kenner's findings at [64] of his reasons for decision delivered in CR 3 of 2014 on 1 August 2014 were relevant but not taken into account.
Ground of Appeal 3
The Commissioner erred in law by failing to take into account a relevant consideration, namely Ms Vimpany's beliefs as at the date of the hearing on 30 November 2015 about the conduct of her managers and colleagues in relation to the investigation which led to her dismissal.
Particulars
(a) As at 30 November 2015 Ms Vimpany continued to believe that the respondent and its officers had engaged in a conspiracy against her.
(b) This was not taken into account.
Ground of Appeal 4
The Commissioner erred in law by failing to take into account a relevant consideration, namely Ms Vimpany's beliefs as at the date of the hearing on 30 November 2015 about the conduct of her managers and colleagues in proceedings before the Western Australian Industrial Relations Commission.
Particulars
(a) As at 30 November 2015 Ms Vimpany believed that officers of the respondent had perjured themselves before the Commission to do her harm.
(b) This was not taken into account.
Ground of Appeal 5
The Commissioner erred in law by failing to take into account a relevant consideration, namely the evidence of Mr Ian Luff given on 30 November 2015.
Particulars
(a) Mr Luff gave evidence that in his view supervisors interacting with Ms Vimpany would need to have a third party present.
(b) Mr Luff's evidence was based upon established facts that Ms Vimpany had given an inaccurate version of events on 27 April 2013 and had prosecuted her inaccurate version in various ways (with potential adverse consequences for her supervisor).
(c) Mr Luff's evidence was that it would have been premature to take such action prior to relevant findings being made in relation to Ms Vimpany.
(d) Mr Luff was the manager of the persons who would supervise Ms Vimpany if she was reinstated.
(e) Despite the sound basis for the evidence and its obvious relevance the evidence was not taken into account.
Ground of Appeal 6
The Commissioner erred in law by taking into account, at [34] of her reasons for decision, an irrelevant consideration, namely that 'Ms Vimpany worked with her supervisors and other employees without incident and in a professional manner in the 17 months after the incident on 27 April 2013.'
Particular
(a) Ms Vimpany's beliefs about what had occurred on 27 April 2013 and her beliefs about the investigation and proceedings that followed were significant rather than her interactions with other staff in the nominated time period.
Ground of Appeal 7
The Commissioner erred in law by failing to take into account a relevant consideration, namely what had happened in the course of the investigation into Ms Vimpany and in the period after termination.
Particular
(a) In referring to Ms Vimpany's work with supervisors and other employees in the 17 months after the incident on 27 April 2013, and not the unexplained inaccuracy in her account of the incident and her beliefs about the respondent and its conduct after 27 April 2013, the Commissioner failed to have regard to relevant considerations.
Ground of Appeal 8
The Commissioner erred in fact and in law by finding, at [34] of her reasons for decision, that 'the lack of complaints about Ms Vimpany returning to work in her former position indicates a willingness by Ms Vimpany's colleagues and supervisors to work positively with Ms Vimpany if she returns to work with the respondent.'
Particular
(a) The basis for drawing the inference was not sound and the inference was not available.
Ground of Appeal 9
The Commissioner erred in law by taking into account, at [34] of her reasons for decision, an irrelevant consideration, namely that 'no manager who will work with Ms Vimpany if she returns to her former role gave evidence that they could not work with Ms Vimpany or that they would require a witness to be present during their interactions with Ms Vimpany.'
Particular
(a) The absence of such evidence was irrelevant given the evidence of Mr Luff, the supervisor of the persons referred to, that he considered that such an approach was necessary but impracticable.
Ground of Appeal 10
The Commissioner erred in law in making a decision that was manifestly unreasonable.
Particular
(a) When proper regard is had to all relevant matters, including the findings of Commissioner Kenner, the duties of Ms Vimpany's position, the beliefs held by Ms Vimpany, the employer's concerns about the implications of those beliefs and the evidence of Mr Luff, reinstatement could not reasonably be ordered.
Ground of Appeal 11
In relation to order 3 the Commissioner erred in law in any event, by failing to make an order pursuant to section 23A(5) Industrial Relations Act 1979 in that an order for the payment of a specific sum was not made.
47 The PTA abandoned ground 11 of the appeal as the parties are not in disagreement about the amount of compensation payable.
48 The remaining grounds of appeal can be divided into four issues. These are as follows:
(a) Grounds 3, 4, 6 and 7 relate to an argument that the Commissioner erred in law by failing to take into account matters that are relevant to the conspiracy issue.
(b) In grounds 1 and 2 of the appeal, the PTA contends that the Commissioner erred in fact and in law in respect of issues going to the reliability of Ms Vimpany to report matters accurately which go particularly to her duties in respect of her enforcement role as a passenger ticketing assistant.
(c) Grounds 5, 8 and 9 allege the Commissioner erred in her assessment of the evidence about Ms Vimpany's reliability and the future management of Ms Vimpany by the PTA's managers in the event that Ms Vimpany was to be reinstated.
(d) In ground 10 of the appeal, the PTA argues that the Commissioner erred in law in making a decision that was manifestly unreasonable.
(a) PTA's submissions
(i) Grounds of appeal 3, 4, 6 and 7 - The conspiracy issue
49 The PTA says that despite some attempt being made in evidence-in-chief to have Ms Vimpany distance herself from the allegations that she made in her letter of 27 September 2013 that officers of the PTA had conspired against her, in cross-examination Ms Vimpany agreed that the matters set out in that letter remained her belief. The PTA also points to the evidence given by Ms Vimpany that she believed officers of the PTA had perjured themselves before the Commission in furtherance of the conspiracy. Despite this evidence, Harrison C rejected the argument that this evidence militated against reinstatement.
50 The PTA submits that the matter that should have been addressed was whether it was reasonable to order an employer to reinstate or re-employ an employee who genuinely believed (when it was patently not the case) that the employer's officers had engaged in a conspiracy against her that went so far as to involve perjury before the Commission. The PTA argues that Harrison C erred in finding that this evidence was met with evidence that there were no reports of Ms Vimpany displaying animosity or contempt to managers or colleagues after the incident in question and prior to her dismissal, nor by her express desire to move on.
51 Thus, the PTA says that Harrison C failed to consider the key relevant matter; whether it is practicable to re-establish a relationship which has as its foundation trust and confidence when one of the parties holds beliefs about the other that are as far removed from trust and confidence as can be imagined.
(ii) Grounds of appeal 1 and 2 - The reliability issue and enforcement powers
52 It was a key part of the PTA's case before Harrison C that for an effective employment relationship to exist the PTA had to have confidence in the accuracy of oral or written reports by Ms Vimpany. It was stressed to Harrison C that the concern in no way related to Ms Vimpany being dishonest as there was no finding of dishonesty in relation to her.
53 The argument is that given Ms Vimpany had believed and continued to believe a very inaccurate version of events in relation to a significant matter for her and others, and had given no explanation for this, the PTA could not have the necessary confidence that Ms Vimpany, if reinstated, would not again give inaccurate accounts to it about important matters. Thus, its trust and confidence argument was and is in this matter about reliability, not dishonesty or honesty.
54 Commissioner Harrison found that Ms Vimpany had an unblemished employment record, other than the reprimand for the incident in question, and was of good character. Commissioner Harrison also found that Ms Vimpany's trustworthiness both pre and post incident between her and Mr Hammon had not been called into question. The PTA argues that Harrison C must by these findings be equating trustworthiness with honesty rather than reliability. In making these findings the Commissioner wholly failed to address the issue of the employer's concerns about Ms Vimpany's reliability as a witness to events, whether her recount of events could be trusted in the future by the PTA. In this regard, they say Harrison C failed to take into account a relevant consideration.
55 The PTA argues that as Ms Vimpany had an enforcement role relating to members of the public that might require her to call for coercive assistance or issue infringements, or cause the PTA to bring charges before a court and require her to appear in court, she should not be reinstated. The PTA contends this argument was not dealt with by Harrison C and accordingly the Commissioner failed to take into account a relevant consideration.
(iii) Grounds of appeal 5, 8 and 9 - The reliability issue and future management of Ms Vimpany
56 These grounds of appeal go to the evidence given by Mr Luff. The PTA argues that Harrison C failed to have regard to the honestly held belief of Mr Luff that should Ms Vimpany return to work her supervisors should have a third-party present when they are supervising Ms Vimpany. This, Mr Luff says, is necessary because of the known fact that Ms Vimpany gave an inaccurate account of one interaction with a supervisor that could have had serious consequences for the supervisor. The PTA argues that Harrison C failed to deal with this evidence or the argument of the PTA relating to it.
57 The PTA says that the fact that there had been a lack of evidence about complaints about working with Ms Vimpany could not as a matter of logic indicate on the part of anyone a willingness to work positively with Ms Vimpany. In any event, Harrison C focussed exclusively on the absence of evidence about the attitudes or conduct of Ms Vimpany's supervisors rather than the view of the manager of her supervisors about what he felt bound to do in the best interests of the supervisors and the PTA.
(iv) Ground of appeal 10 - Manifestly unreasonable
58 In this ground of appeal, the PTA submits that it was manifestly unreasonable to order that Ms Vimpany resume her duties as a passenger ticketing assistant when:
(a) she had given badly inaccurate versions of a significant matter, being the way her supervisor had acted on 27 April 2013;
(b) those versions, if believed, could have had serious consequences for the supervisor;
(c) the inaccuracy has never been explained by Ms Vimpany;
(d) Ms Vimpany, as a Passenger Ticketing Assistant, had responsibilities which made it important for her to be accurate (and certainly not badly inaccurate) in giving versions of events;
(e) Ms Vimpany continues to believe, against all of the evidence and the findings of the Commission, that officers of the Appellant conspired against her and perjured themselves in furtherance of that conspiracy; and
(f) the key evidence of Mr Luff, being as to the proper management of Ms Vimpany if reinstated and the impracticability of that management, was reasonable.
59 The PTA says that although character witnesses can come and say how honest they think Ms Vimpany is and what a good worker she is, this evidence is not relevant in light of the established fact that Ms Vimpany has a serious problem with reliability, in particular her version of reality and the truth becomes mixed up in a way that is very significant and for that reason there has been a breakdown of trust. Furthermore, it says that the accounts made by Ms Vimpany of the incident in question, whilst there is very little difference between those versions, are all inaccurate and reveal a course of conduct and cannot be regarded as one isolated conduct.
(b) The union's submissions
60 The union says the first and second grounds of appeal must fail.
61 The rule in Browne v Dunn (1894) 6 R 67 (HL) prevents the PTA from raising an issue with Ms Vimpany's trustworthiness. In particular, counsel for the PTA did not question Ms Vimpany about her trustworthiness or about her ability to give accurate reports. The union says therefore Ms Vimpany was denied an opportunity to respond to those imputations and as a result, the rule in Browne v Dunn prevented Harrison C from finding that there was any issue with Ms Vimpany's trustworthiness pre and post the 27 April 2013 incident.
62 The union also says there was unchallenged, direct evidence about Ms Vimpany's trustworthiness as nine employees of the PTA gave character evidence in proceedings before Mayman C in support of Ms Vimpany.
63 The union argues that:
(a) whilst Mr Luff gave evidence which indicates that he does not trust Ms Vimpany, it is important to note that Mr Luff did not work with or supervise Ms Vimpany. Further, Mr Luff conceded that no other manager had raised a concern with him about working with Ms Vimpany; and
(b) as the PTA led no evidence from supervisors or employees who actually worked with Ms Vimpany this entitled the Commission to draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference that such witnesses would not have assisted the PTA's case.
64 The union says that it is clear from the reasons for decision of Harrison C that she understood that the PTA had made a submission about Ms Vimpany's trustworthiness. It is also clear from her reasons for decision that the Commissioner did not accept that there was a trustworthiness issue relating to Ms Vimpany. This is because she found that Ms Vimpany's trustworthiness had not been brought into question by the evidence. To that extent, Harrison C did consider the PTA's argument but chose to reject it.
65 In any event, even if the Commissioner did not consider the PTA's submission that Ms Vimpany's trustworthiness had been called into question, this is not a material error in the House v The King [1936] HCA 40; (1936) 55 CLR 499 sense. The PTA's allegation that Ms Vimpany is not trustworthy is very serious. It goes to Ms Vimpany's integrity and reputation. As such, an allegation that Ms Vimpany is not trustworthy attracts a high standard of proof.
66 The mere fact that Ms Vimpany had an incorrect recollection about one short interaction during her eight years of employment is an insufficient reason to find that Ms Vimpany is not trustworthy. Further, the mere fact that Kenner C did not accept the accuracy of Ms Vimpany's account of her interaction with Mr Hammon on 27 April 2013 does not automatically lead to the conclusion that Ms Vimpany is not a trustworthy person.
67 The union says that the matters raised in the third and fourth grounds are frivolous and must fail.
68 The union argues the fifth ground of appeal must also fail as Harrison C did not fail to consider Mr Luff's evidence about his intention to instruct all supervisory staff not to have supervisory interactions with Ms Vimpany unless they had a third-party present. The union says that the Commissioner properly rejected Mr Luff's evidence about this issue as his opinion was not derived from anything that he had directly experienced. In any event, it says even if Mr Luff's evidence in respect of this issue was not considered the evidence was not relevant to the question of remedy in the unfair dismissal proceedings.
69 The union says the sixth ground too must also fail as one of the tasks of Harrison C was to determine whether it was inappropriate to make a reinstatement order and the fact that Ms Vimpany worked with her supervisors and other employees without incident and in a professional manner in the 17 months after the incident in question was clearly relevant to that task.
70 The union says the seventh ground is confusing and it appears to be a repeat of the PTA's third and fourth grounds of appeal and should be dismissed.
71 The union says the eighth and ninth grounds of appeal must fail in light of:
(a) the character evidence given by the nine witnesses in support of Ms Vimpany;
(b) the certificate of appreciation issued by the PTA (exhibit A6);
(c) the email commendation made by a supervisor (exhibit A7);
(d) the evidence of Ms Vimpany that she was prepared to put the past behind her and get back to work; and
(e) the fact that no manager who would work with Ms Vimpany gave evidence that they could not work with her or that they would require a witness to be present during their interactions with Ms Vimpany.
72 When all of these matters are considered, the union contends it was open for Harrison C to conclude that the lack of complaints about Ms Vimpany returning to work in her former position indicates a willingness by Ms Vimpany's colleagues and supervisors to work positively with Ms Vimpany.
73 In any event, the union says because such a finding was open on the evidence, any error in relation to the drawing of an inference was not material.
74 In respect of the tenth ground of appeal, the union contends that there was nothing manifestly unreasonable about Harrison C's decision. The finding made by her was open. Consequently, it says this ground of appeal must fail and should be dismissed.
Legal principles
(a) Exercise of discretion
75 The Full Bench is only empowered to set aside a discretionary decision in limited circumstances. A discretionary decision cannot be set aside because members of the Full Bench would have exercised the discretion in a different way. In House v The King, Dixon, Evatt and McTiernan JJ observed (504 - 505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
76 Whilst the PTA carried the onus to establish the fact that reinstatement is impractical on the balance of probabilities, the Full Bench is entitled to draw different inferences from the facts found at first instance than the Commission drew at first instance: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
77 Although appeals to the Full Bench under s 49 of the Act are appeals in the strict sense, judgment on the principles of law and facts is required to be assessed by it.
78 Having made all due allowances to the decision-maker at first instance concerning the credibility of witnesses, an appellate body must not shrink from giving effect to its own conclusion: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 197 ALR 201 [29] (Gleeson CJ, Gummow and Kirby JJ).
(b) Statutory power to reinstate an employee - trust and confidence
79 The principles that apply to an exercise of the discretion expressly conferred by the Act to order the reinstatement or re-employment of an employee as a remedy following a finding of harsh, oppressive or unfair dismissal have not been considered by the Full Bench of this Commission for a significant period of time.
80 Trust and confidence is part of an employee's duty of fidelity to render faithful and loyal service to his or her employer. A critical feature of the relationship of employer and employee is that the employee agrees to act for, or on behalf of, or in the interests of, the employer: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96 (Mason J).
81 The power to reinstate or re-employ an employee following a finding of harsh, oppressive or unfair dismissal is at this present time expressly conferred by s 23A of the Act. Section 23A of the Act provides:
(1) The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.
(2) In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —
(a) at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and
(b) had been so employed for a period of less than 3 months.
(3) The Commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
(4) If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re-employ the employee in another position that the Commission considers —
(a) the employer has available; and
(b) is suitable.
(5) The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —
(a) an order it considers necessary to maintain the continuity of the employee's employment;
(b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.
(6) If, and only if, the Commission considers reinstatement or re-employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.
(7) In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —
(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal; and
(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and
(c) any other matter that the Commission considers relevant.
(8) The amount ordered to be paid under subsection (6) is not to exceed 6 months' remuneration of the employee.
(9) For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.
(10) For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.
(11) An order under this section may require that it be complied with within a specified time.
(12) The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.
82 Prior to 1993, there was no express power in the Act to reinstate or re-employ an employee. The power to do so was thought to arise from the power of the Commission in s 23(1) of the Act to enquire into and deal with an industrial matter: Cliffs Western Australian Mining Co Pty Ltd v Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Union of Workers, Western Australian Division (1978) 58 WAIG 486.
83 In Max Winkless Pty Ltd v Bell (1986) 66 WAIG 847, 848 - 849, the Full Bench observed:
The Industrial Relations Act 1979 in providing for reinstatement provides a remedy which is not available at common law and which would not otherwise be available. Indeed we are of the opinion that the prime objective of section 29(b)(i) of the Act is to ensure that the continuity of employment is not disturbed unfairly. Reinstatement should thus be seen as the primary remedy afforded by the subsection. Whereas here, the dismissal has been found to be unfair, in our view the Commission should look to reinstatement of the employment unless there is good reason to do otherwise. Traditionally, that has been the approach adopted in proceedings of this nature in this Commission and in others (see: Cliffs Western Australian Mining Company Pty Limited v. the Association of Engineers, Surveyors and Draftsmen of Australia Union of Workers, Western Australian Division (1978) 58 WAIG 1067, and see too: G.J. Coles & Co Ltd v. Pietruszka (1983) 4 IR 329]. The section should not be used principally as a means of recovering a financial reward in preference to recovering lost employment. There would otherwise be little point in the legislature giving to the Commission jurisdiction which to a large degree already exists in the common law courts. This is not to say that reinstatement should be automatic in cases of unfairness [c.f. In re Public Service Association of New South Wales and Public Service Board re Ristall (1979) AR (NSW) 357]. It has long been recognised that reinstatement should not be ordered where it is impractical, nor where management has a genuine distrust and lack of confidence in the employee, nor if reinstatement would adversely affect staff morale or general discipline [see for example: In re Wellcome Australia Limited re dismissal 1980 AR (NSW) 831; In re Maitland Abattoirs re dismissal 1980 AR (NSW) 185 and In re City of Lithgow RSL Club Limited re refusal to employ 1979 AR (NSW) 501]. In other words reinstatement should not be contemplated without full regard for the consequences and that we take to be the import of the views expressed in Slonim v. Fellows (1984) 8 IR 175 by Wilson J. at 181 that the power to order re-employment 'will always be a power to be exercised with caution having regard to the circumstances of the case'. However, it has frequently been said that reinstatement is not to be avoided simply because of the mere probability of discomfort or embarrassment in the work place [see: Varney v. Laura Ashley (Australia) Pty Ltd (1980) 47 SAIR 133 and see too: Cliffs Western Australian Mining Company Pty Limited v. the Association of Engineers, Surveyors and Draftsmen of Australia Union of Workers, Western Australian Division (1978) (supra).
84 The observations of the Full Bench in Max Winkless Pty Ltd must be considered in light of the circumstance that in 1986 the power to reinstate an employee was thought to arise out of an implied power of the Commission to deal with an industrial matter. Such a remedy was considered as forming part of a recognised armoury of available remedies in the modern pursuit of harmonious industrial relations to be exercised with caution having regard to the circumstances of the case: Slonim v Fellows (1984) 154 CLR 505, 515 (Wilson J).
85 The Industrial Appeal Court subsequently delivered its seminal decision in Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 (Pepler's Case) in which the court held that the Commission did not have jurisdiction to award compensation to an unfairly dismissed employee other than as part of an order requiring the employee's reinstatement. In Pepler's Case, Kennedy J found there could be no doubt that reinstatement is an industrial matter (13 - 15). Olney J accepted (without it being decided) that in a proper case the Commission does have power to order reinstatement or re-employment (19). Following this decision, reinstatement was more readily to be applied as a remedy as there were no major alternatives to reinstatement: Braemar Lodge v The Federated Miscellaneous Workers' Union of Australia, WA Branch (1991) 71 WAIG 908, 911.
86 The Act was subsequently amended by s 7 of the Industrial Relations Amendment Act 1993 (Act No 15 of 1993) which inserted s 23A of the Act and had the effect of empowering the Commission to order an employer to reinstate or re-employ a claimant and make an order for compensation if the employer fails to comply with an order for reinstatement or re-employment. At that time no conditions for the exercise of the power to reinstate or re-employ were prescribed other than an implied requirement to form a requisite opinion that the employee in question had been harshly, oppressively or unfairly dismissed. This provision became operative on 1 December 1993: Government Gazette 30 November 1993, p 6439.
87 Prior to the enactment of s 23A in 1993 having effect in all matters before the Commission, the Full Bench considered a finding made by a single Commissioner that a domestic violence counsellor was entitled to be reinstated 'unless there are overwhelming reasons for that not to happen': The Management Committee of the Geraldton Sexual Assault Referral Centre v Marshall (1994) 74 WAIG 2628. In that matter, the employee's employment was terminated prior to the enactment of s 23A of the Act, and was heard and determined shortly prior to the expiration of her fixed term contract of employment. The Commission at first instance found the dismissal was procedurally unfair. It also found that there was substantial conflict between the employee and her employer and ordered that the employee be reinstated with effect from 15 April 1994 for the balance of her term of contract which was to expire on 18 April 1994. An order was also made for payment of wages from the date of dismissal (6 September 1993) to the time of reinstatement. The Full Bench quashed the orders. Acting President Fielding, with whom George and Beech CC agreed, rejected the test applied by the Commission at first instance as being (2630):
[A] misinterpretation of the ratio of the earlier decisions of the Full Bench in Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v. George Moss Limited (1991) 71 WAIG 318 and in Gawooleng Dawang Inc v. Lupton and Others (1993) 73 WAIG 39, to which the learned Commissioner referred. Indeed, in the Gawooleng Case Sharkey P and Negus C observed at page 48 that the suggestion of Lee J in Kadina Community Hospital Inc v. Houlahan (1983) 4 IR 218 that only in the most exceptional cases will the Commission be justified in declining to grant relief once it appears that the dismissal was unfair put the test 'a little higher' than that outlined by the Full Bench in the cases to which the learned Commissioner referred. Even if the test be the 'exceptional case' test, that test is somewhat less strict than the 'overwhelming reasons' test advanced by the learned Commissioner which implies that reinstatement is all but automatic. None of the cases to which the learned Commissioner referred go this far. Indeed, such a conclusion does not sit easily with the observations of Wilson J (with whom the majority of the Court agreed) in Slonim v. Fellows (1984) 8 IR 175 at 181 that the reinstatement power is a power to be exercised with caution, having regard to the circumstances of the case. Rather, the decided cases suggest that an unfairly dismissed employee is entitled to be reinstated unless the Commission is satisfied that there is good reason to the contrary, so that it will be the exception rather than the rule that such a person will not be reinstated. What are good reasons for this purpose will vary from case to case, but it is clear that where in practical terms it is useless to reinstate, reinstatement should not be granted (see: Bowling v. General Motors-Holden's Pty Ltd (1980) 50 FLR 79, 94; A/asian Meat Industry Employees' Union v. Sunland Enterprises Pty Ltd (T/a Sunland Wholesale Meats) (1988) 25 IR 137; and see too: G.J. Coles and Co. Ltd v. Pietruska (1983) 4 IR 329). It necessarily follows that the onus will be on the employer to establish that those good reasons exist.
88 Acting President Fielding then found that reinstatement was in the circumstances all but academic and given that there was little or no goodwill between the parties, irrespective of whether the employee or employer was at fault, the conflict was unlikely to be resolved in the remaining four days of the employee's employment (2630).
89 An appeal to the Industrial Appeal Court from the decision of the Full Bench was unsuccessful: Marshall v The Management Committee of the Geraldton Sexual Assault Referral Centre (1995) 75 WAIG 1501. The Court found no error of law by the Full Bench could be demonstrated. After agreeing with the finding by Fielding AP that an order for reinstatement would be of no utility, the Court found (1503):
Furthermore, he added, the evidence which the Commissioner found to be the most credible led inescapably to the conclusion that there was little or no goodwill left between the parties. It is quite apparent therefore that there did not exist that level of trust between the parties which is essential for a continuing relationship of employer and employee. We can see no basis on which this Court should interfere with the conclusion of the Full Bench in which it ruled against reinstatement.
90 Section 23A was amended by s 42 of the Industrial Legislation Amendment Act 1995 (Act No 1 of 1995) to enable the Commission if it upheld a claim of harsh, oppressive or unfair dismissal to reinstate or re-employ the claimant, or if that was impracticable to order the employer to pay up to six months remuneration by way of compensation. Section 42 of Act No 1 of 1995 became operative on 9 May 1995: Government Gazette 24 November 1995, p 5389. This amendment expressly required the Commission to form an opinion that reinstatement was 'impracticable' as a pre-condition to an award of compensation.
91 In 1997, s 23A was re-amended by s 23 of the Labour Relations Amendment Act 1997 (Act No 3 of 1997) to provide that the Commission is not to make an order of compensation unless it is satisfied that reinstatement or re-employment of the claimant is impracticable or the employer has agreed to pay the compensation instead of reinstating or re-employing the claimant. This amendment provided a choice for employers to decide whether they wished to compensate employees instead of reinstatement or re-employment: see the discussion in City of Geraldton v Cooling [2000] WASCA 346; (2000) 80 WAIG 5341, 5343 (Kennedy J). This provision remained operative until the current s 23A was enacted in 2002 by s 138(1) of the Labour Relations Reform Act 2002 (Act No 20 of 2002).
92 Since the enactment of s 23A the principles for consideration when exercising the power to reinstate or re-employ a claimant have not been considered by the Full Bench or the Industrial Appeal Court.
93 However, inherent in the reasoning of the Full Bench in Max Winkless Pty Ltd and Marshall by both the Full Bench and the Industrial Appeal Court is the consideration that a relevant factor in determining whether reinstatement is impracticable may be (depending upon the facts of a particular matter) whether a proper working relationship can be established and a consideration of a level of trust between an employer and a claimant required for a continuing relationship of employer and employee. Further, where an issue of trust and confidence is a relevant issue, to determine reinstatement is impracticable it must be found that the employer has a genuine and credible distrust and lack of confidence in the employee.
94 The issue of practicability was addressed by the Full Court of the Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. The test for reinstatement at that time in the federal jurisdiction pursuant to the Industrial Relations Act 1988 (Cth) was practicability. The Industrial Relations Court referred to the issue of trust and confidence, in the context of practicability, being tested by reference to whether the loss of trust and confidence is soundly and rationally based and 'the rationality of any attitude taken by a party'.
95 Whilst the observations made in Max Winkless Pty Ltd and Marshall could be construed as raising a concept of impracticable, as a distinct issue from trust and confidence, such a contention does not follow. However, forming an opinion that reinstatement is impracticable can encompass factors other than the level of trust and confidence that an employer may have in an employee. For example, the claimant's position may have been legitimately abolished, or the claimant's personal circumstances may have changed post-termination of employment, such as he or she may have moved to live in another location.
96 This distinction has been recognised in England. In Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT 0542_08_0304 the issue was whether the Employment Tribunal had erred in making an order of reinstatement of the respondent who had given dishonest evidence as to his loss of earnings at the remedy hearing. In that matter the Employment Appeal Tribunal observed [20]:
Practicable means more than possible. For example, in Coleman v Magnet Joinery Ltd [1975] ICR 46, where re-engagement of the unfairly dismissed employees, although possible, would have led to industrial strife, the Court of Appeal held that re-engagement was not practicable. Further, loss of the necessary mutual trust and confidence between employer and employee may render re-employment impracticable.
97 The Employment Appeal Tribunal in Abimbola had regard to the decision of the Court of Appeal in Nothman v London Borough of Barnet (No 2) [1980] IRLR 65, the facts of which could perhaps be said in one sense to be one 'on all fours' with this matter. In Nothman (No 2), the employee had been employed as a teacher. The Employment Appeal Tribunal found she had been unfairly dismissed, but did not reinstate her as she believed there had been a longstanding conspiracy against her. On appeal to the Court of Appeal, Ormorod LJ, with whom Cumming-Bruce LJ and Sir David Cairns agreed, observed that if ever there was a case in which the relationship between the employee and employer should be severed it was this one (66) and no error was found.
98 Whilst no consideration by a Full Bench or the Industrial Appeal Court has been given to the discretion conferred expressly by s 23A of the Act to reinstate or compensate an unfairly dismissed claimant, the same is not true in respect of claims for reinstatement that arise under the Fair Work Act 2009 (Cth).
99 Pursuant to s 390(3) of the Fair Work Act the Fair Work Commission is prohibited from making an order of compensation to an unfairly dismissed employee if satisfied that reinstatement is appropriate in all the circumstances of the case. Whilst a pre-condition for an award of compensation could be said to cast a different test for an exercise of discretion by a member of the Fair Work Commission, the Fair Work Commission have continued to apply the test formulated by the Full Court of the Industrial Relations Court in Perkins when determining whether reinstatement of an employee is impracticable when trust and confidence is raised as a relevant circumstance. In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWC 4314 O'Callaghan SDP found [12] - [13]:
I have adopted the position that, as reinstatement is the primary remedy in the event of a finding of unfairness the School bears a substantial onus to demonstrate to me that reinstatement is not appropriate as distinct from undesirable or difficult. In this respect the observations of the Full Industrial Relations Court decision in Perkins v Grace Worldwide (Australia) Pty Ltd ((1997) 72 IR 186, 191) remain relevant:
'Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.'
In adopting an approach consistent with that position I have noted the legislation now refers to the concept of inappropriate rather than impractical. I do not consider that change detracts from the relevance of the approach in Perkins and have, in any event, noted that later decisions of the FWC have also adopted the approach set out in Perkins (See for example Ngyuen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 where this approach was not challenged on appeal and EDI Rail Pty Ltd v Rowley [2008] AIRCFB 64).
100 A Full Bench of the Fair Work Commission dismissed an appeal against the decision of O'Callaghan SDP in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198. In their decision, the Full Bench firstly had regard to the nature of the discretion to order the remedy of reinstatement. At [10] they observed:
Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is 'inappropriate'. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is 'to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement' (Section 381(1)(c) Fair Work Act 2009 (Cth)). We would observe that to describe reinstatement as the 'primary remedy', is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act (Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C; Newtronics Pty Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Rowley v EDI Rail Pty Ltd [2008] AIRCFB64; Colson v Barwon Health [2014] FWCFB 1949). The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been 'unfair' is whether reinstatement is appropriate in the particular case (Regional Express Holdings Limited trading as REX Airlines v Richards [2010] FWAFB 8753 at [23] - [24]; Colson v Barwon Health [2014] FWCFB 1949 at [30] - [31].
101 The members of the Full Bench in Nguyen at [15] adopted an observation, made by the Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty ltd v McLauchlan (1998) 84 IR 1, that a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability. Having made that observation, the Full Bench in Nguyen considered examples of circumstances where reinstatement may be inappropriate, such as, where an order may be futile or where an employee is incapacitated because of illness or injury. They then observed [20]:
The most common argument advanced in support of the proposition that reinstatement is inappropriate is the proposition, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.
102 After making this observation, they adopted the test in Perkins and said the observations made in Perkins remain relevant to the question whether reinstatement is appropriate in a particular case: [22]. They also importantly pointed out [23]:
In speaking of 'trust and confidence' in this context we are concerned with that which is essential to make an employment relationship workable. It is not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker ([2014] HCA 32 (10 September 2014)).
103 Very recently, Wells DP in Anders v The Hutchins School [2016] FWC 241 also had regard to observations of the Full Court in Perkins. She observed [116] - [118]:
The Hutchins School advanced the argument that reinstatement is inappropriate in this matter as there has been a loss of trust and confidence, and it is impossible for any re-establishment of the employment relationship with Mrs Anders. This argument is not uncommon in unfair dismissal matters. Loss of trust and confidence concerns what is essential to make an employment relationship work. In Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd ([2000] FCA 627) Gray J observed that the development of law relating to the employment relationship and trust and confidence started when that relationship customarily involved a close personal relationship between employer and employee, but that the importance of trust and confidence has diminished with the rise of corporate employers (Ibid at [42]). That is not to say that trust and confidence is not important, however an assessment must be made as to the likely effect of any loss of trust and confidence on workplace operations and all circumstances must be taken into account.
Relevant to this the Full Court of the Industrial Relations Court, under the Workplace Relations Act 1996, in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 said of a reinstatement remedy at 191:
'Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.'
The more recent Fair Work Australia Full Bench decision in Regional Express Holdings Limited v Richards [2010] FWAFB 8753 also observed at paragraph [26]:
'Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account.'
104 The Full Bench in Nguyen at [24] also considered the observation of Gray J in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd ([2000] FCA 627 [42]) that with the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished. The Full Bench in Nguyen at [25] adopted the remarks made by Gostencnik DP in Colson v Barwon Health ([2013] FWC 8734) about the point being made by Gray J. In Colson Gostencnik DP observed [21] - [22]:
I do not take his Honour's comments to mean that trust and confidence as an element of the employment relationship is no longer important. It is merely recognition that in many cases it will be important to have regard to the totality of the employment, and that in the case of a corporate employer, the loss of trust and confidence in the employee will be by a manager or managers of the corporate employer. But as his Honour observed, in such cases the 'critical question must be what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned' ([2000] FCA 627). It is important to understand that his Honour's observations were made in the context of an interlocutory application while His Honour was considering 'balance of convenience' arguments against reinstatement on an interlocutory basis. His Honour's observation about the effect of the shift from a personal to a corporate employment relationship were made as an introduction to his conclusion that the respondent did not provide any evidence on the 'critical question' as identified. So much is clear from the following passage:
… It might be more significant, for instance, to know the name of Mr Voss's immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters.
[43] Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person ([2000] FCA 627).
In my view, His Honour is merely saying that it is not enough to simply assert that trust and confidence in an employee has been lost. Where this is relied upon then there must be evidence from the relevant managers holding that view and an assessment must be made as to the effect of the loss of trust and confidence on the operations of the workplace. In short, all of the circumstances must be taken into account. This seems evident and is hardly controversial.
105 The Full Bench in Nguyen then distilled the following principles from the decided cases concerning the impact of trust and confidence on the question whether reinstatement is appropriate [27] - [28]:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement (Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7] - [8]).
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191).
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191).
• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191).
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate (Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191).
Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.
106 In our opinion, when regard is had to s 23A of the Act, the statutory scheme to provide remedies to a claimant who has been harshly, oppressively or unfairly dismissed and the decided cases the following principles should apply to an exercise of discretion when considering whether to order reinstatement of a claimant where a relevant circumstance is a claim by the employer that there has been a loss of trust and confidence in the claimant:
(a) Reinstatement is the primary remedy afforded by s 23A. If reinstatement of a claimant who has been harshly, oppressively or unfairly dismissed is impracticable, the Commission is to consider whether another position is available and suitable for the claimant to be re-employed. If reinstatement or re-employment is impracticable, the Commission may order the employer pay compensation.
(b) The onus is on the employer to establish credible reasons why reinstatement of the claimant is impracticable.
(c) Trust and confidence can be a relevant factor to consider when considering whether reinstatement is impracticable. Whether it is a relevant factor will depend upon the factual circumstances of a particular matter. Trust and confidence is not the sole criterion or even a necessary one in determining whether reinstatement is impracticable.
(d) For reinstatement to be impracticable on grounds of trust and confidence, some embarrassment or doubt by the employer, friction between the claimant, the employer and/or other employees is not sufficient to make the relationship unviable.
(e) The reluctance of an employer to shift from the view of the claimant's conduct, despite an assessment by the Commission that the conduct in question had not been made out, does not provide a sound basis to conclude that the necessary level of trust and confidence is irreparably damaged or destroyed.
(f) The employer's opinion about whether there is a necessary level of trust and confidence must be genuine, credible and rationally based. The necessity of an appropriate level of trust and confidence to restore an employment relationship will depend upon not only the attitude of the claimant towards the employer and/or any other relevant employees and the employer to the claimant, but also whether the attitudes expressed have a reliable foundation and the nature and function of the duties of the employee.
(g) The level of sufficient trust and confidence in an employment relationship will vary depending upon the circumstances of a particular matter.
(h) The assessment of whether there is a sufficient and cogent loss of trust and confidence is a matter for the Commission to determine. The degree of trust and confidence an employer could be said to reasonably expect of one category of employee may be higher or lower than another.
(i) The question to be determined by the Commission is whether there can be, in the circumstances, a sufficient level of trust and confidence restored to make the employment relationship between the employer and the claimant viable and productive.
(c) The relevant circumstances of this matter
107 The union's argument that Ms Vimpany's trustworthiness was not in issue in proceedings before Harrison C is not correct. The issue was squarely before the Commissioner. It was also a matter she considered in finding whether reinstatement of Ms Vimpany was impracticable.
108 Nor do we agree with the union's submission that Ms Vimpany's trustworthiness was not 'squarely' put to her in the proceedings before Harrison C or that the issue of Ms Vimpany's trustworthiness cannot be relied upon by the PTA.
109 The 'heart' of the PTA's case was that because of Ms Vimpany's belief about what occurred in the second altercation during the incident on 27 April 2013 and her opinion of the conduct of the PTA in its investigation process was not only unreliable but that she had formed the opinion that other employees including Mr Hammon had perjured themselves and had conspired against her, the PTA could not have the necessary level of trust and confidence in Ms Vimpany to enable the employment relationship to be restored. Thus, the issue was and is whether the PTA's opinion is objectively reliable. This is not a matter for cross-examination of the opinion of Ms Vimpany. It was a matter for the Commission to determine.
110 When considering whether reinstatement of a claimant is impracticable on grounds of trust and confidence as set out above, an assessment of the nature and level of trust and confidence in an employee by an employer should be considered.
111 The issues squarely before Harrison C were:
(a) Firstly, was the PTA's opinion about the appropriate level of trust and confidence required of a passenger ticketing assistant and its opinion that it did not have this level of trust and confidence in Ms Vimpany, genuine, credible and rationally based.
(b) Secondly, whether the necessary level of trust and confidence in Ms Vimpany could be restored so that, objectively, the Commission could form the opinion with confidence that Ms Vimpany if reinstated will properly carry out her duties and appropriately interact with her supervisors in the future.
112 Ms Vimpany sought reinstatement to her previous position of passenger ticketing assistant. Part of the duties of a passenger ticketing assistant is to issue infringement notices to members of the public, call for coercive assistance from security and may require the giving of evidence in court on behalf of and as an officer of the PTA. The nature of such a duty requires accurate oral and written reports of events and addressing fare evasion (AB 121). Such a duty also requires a high level of integrity. Yet it cannot be said that the level of trust and confidence that the PTA could reasonably require of a passenger ticketing assistant is the same as a security officer (transit officer) who have more significant enforcement powers and functions. However, it would be higher than a person the PTA could employ in a manual labour position such as a station cleaner who would have no enforcement duties.
113 In this matter, Harrison C found that it was not impracticable that Ms Vimpany be reinstated to her former position and found that when Ms Vimpany returns to work trust can be restored between Ms Vimpany and the PTA. Her reasons why she formed this opinion were, apart from the issues related to the incident on 27 April 2013:
(a) Prior to the incident, Ms Vimpany had a lengthy, impeccable and uneventful employment history.
(b) During Ms Vimpany's entire period of employment her performance was unblemished, exemplary, she was of good character, trustworthy and interacted positively with her colleagues.
(c) Ms Vimpany's trustworthiness has not been called into question pre and post the incident. This indicates that potential enforcement proceedings will not be compromised.
(d) A lack of complaints about Ms Vimpany wanting to return to her former position indicates a willingness by Ms Vimpany's supervisors and colleagues to work positively with Ms Vimpany.
114 It is clear from her reasons that Harrison C did not find the fact that Ms Vimpany believes that some of the PTA's employees conspired against her and gave perjured evidence to be material. It can be inferred from her reasons that Harrison C found that the fact that Ms Vimpany worked for 17 months after the incident on 27 April 2013 without incident and animosity militated against this point.
115 We agree that it was open to Harrison C to reject the evidence given by Mr Luff that if reinstated it would be necessary to ensure that when Ms Vimpany interacted with a supervisor it would be necessary to have two persons present on grounds that Ms Vimpany worked for 17 months after the incident on 27 April 2013 without such an arrangement as it appears that such an arrangement was not thought necessary after the incident in 2013. However, the fact that she worked during this period without incident and had received a commendation for her conduct could have been considered in light of the fact that during this period the investigation continued and litigation was ongoing between the union and the PTA in respect of Ms Vimpany.
116 When regard is had to all of the evidence before Harrison C it is clear that she erred in that she mistook some of the material facts which, in our respectful opinion, led her to fail to have regard to material matters.
117 Whilst, the finding that during Ms Vimpany's entire employment, except for the incident, her performance was unblemished, exemplary, she was of good character, trustworthy and interacted positively with her colleagues is a finding that was open and is a relevant circumstance that was to be given significant weight, there was before Harrison C relevant material circumstances, the effect of which were mistaken by her.
118 Commissioner Harrison erred in finding that Ms Vimpany's trustworthiness had not been called into question post the incident which indicates that potential enforcement proceedings will not be compromised. This finding of fact and inference drawn from this finding is inconsistent with the uncontested fact that, at all material times, Ms Vimpany has and continues to maintain that during the incident in question she was not the aggressor. She believes Mr Hammon entered her personal space, yelled and screamed at her. Further, that she still believes this to be the case despite not only the PTA's investigation processes finding otherwise, but also in the face of findings made by Kenner C who rejected her entire version of events. Commissioner Kenner also found that the evidence given by Ms Vimpany in proceedings before him was 'less than frank'. Ms Vimpany's unwavering beliefs about her version of events are a relevant material circumstance. Her beliefs are not only long and strongly held by her, it cannot be said that in the face of those findings made by Kenner C in CR 3 of 2014 that her beliefs have any rational basis.
119 The fact that Ms Vimpany's views have no reliable or credible basis is not a matter that was considered by Harrison C. Nor did Harrison C make any assessment of the level of trust and confidence that the PTA should be able to expect of a passenger ticketing officer.
120 Whilst no finding of dishonesty has been made against Ms Vimpany, the findings made by Kenner C properly raise a legitimate concern by the PTA of Ms Vimpany's reliability to recount and record events which is a requirement of the duties of a passenger ticketing assistant.
121 We do not agree that a positive inference that the lack of complaints about Ms Vimpany returning to work in her former position could be drawn to indicate a willingness by Ms Vimpany's colleagues and supervisors to work positively with her. Whilst some of her colleagues gave highly favourable character evidence and their high regard for Ms Vimpany is an important consideration for which considerable weight should be given, the finding ignores Ms Vimpany's long held and recently restated beliefs about Mr Hammon and the other employees of the PTA that she accuses of perjury and conspiracy. In the face of such serious allegations by Ms Vimpany it does not follow that an inference can be drawn that those persons could work positively with Ms Vimpany.
122 For these reasons, we are of the opinion that Harrison C erred in the exercise of her discretion. Not only did she mistake the facts before her, but she also failed to take into account material considerations. In these circumstances, it is open to the Full Bench to vary the decision of the Commission at first instance and exercise its own discretion in substitution of the discretion at first instance where it has before it sufficient uncontested material.
123 In our opinion, the Full Bench has before it such material. Ms Vimpany's stated beliefs are without contest. Whilst most employment relationships are capable of sustaining some doubts that go to trust and confidence, the circumstances raised by Ms Vimpany's stated beliefs of perjury and conspiracy goes to the heart of the employment relationship. These beliefs, together with the potential for her not to provide accurate reports of events that may occur in the heat of the moment, when a requirement to do so is material to the duties of a passenger ticketing assistant, raise circumstances beyond the usual strained relationships between an employee and employer following re-engagement after litigation between them.
124 Ms Vimpany's firm belief that not only Mr Hammon and other employees who witnessed the incident in question, but also persons who investigated her conduct and made disciplinary findings against her, engaged in a conspiracy to dismiss her indicates such longstanding substantial acrimony by Ms Vimpany to those persons could be said to constitute substantial damage to, or destruction of trust and confidence between Ms Vimpany and the PTA. Against that circumstance is the opinions of Ms Vimpany's colleagues who gave character evidence in her favour.
125 Whilst the opinions of Ms Vimpany's fellow employees gave highly favourable character evidence in her favour, the weight of their evidence is, in our opinion, outweighed by Ms Vimpany's stated beliefs. Nor does the fact that no other supervisors gave evidence that they could not work with Ms Vimpany have much weight. Against that circumstance is the evidence that if Ms Vimpany is reinstated to the Joondalup line Ms Vimpany could have contact with Mr Hammon and the other employees of the PTA that she has accused of perjury and conspiring against her, when working during special events. Although she contended that she wishes to re-establish good working relationships and put the past behind her, this evidence was contradicted by her in cross-examination when it emerged that her long held beliefs were still strongly held by her. Also of importance, is the circumstance that her allegation of conspiracy relates to all persons who participated in the disciplinary process against her. Even if these circumstances can be said to be outweighed by the fact that Ms Vimpany continued to work as a passenger ticketing assistant for 17 months after the incident competently and without any conflict, the question remains whether Ms Vimpany can be trusted to provide accurate recording of events in her enforcement duties is an issue that goes to the necessary trust and confidence the PTA can reasonable expect of its passenger ticketing assistants.
126 In light of Ms Vimpany's longstanding and recently restated inaccurate beliefs about what occurred during the incident in question, the opinion of the PTA that it does not have the necessary level of trust and confidence in Ms Vimpany to provide accurate and reliable reports of events, particularly in relation to enforcement matters, this opinion can be said to be genuine, credible and reliable so as to raise doubt as to the future viability of an employment relationship between Ms Vimpany and the PTA.
127 As set out in [112] of these reasons, the level of trust and confidence required by a passenger ticketing assistant requires a high level of integrity and accurate reporting of events addressing fare evasion. Consequently, we are satisfied that a relatively high level of trust and confidence is required of such an officer to make the employment relationship between the PTA and a passenger ticketing officer viable and productive.
128 In these circumstances, we are satisfied that the PTA has satisfied its onus to prove reinstatement of Ms Vimpany as a passenger ticketing assistant is impracticable.
129 We are also satisfied that re-employment of Ms Vimpany is impracticable to the other positions sought by the union in these proceedings because Ms Vimpany's beliefs are sufficiently serious to be destructive of the necessary trust and confidence the PTA is reasonably entitled to hold in its officers. In any event, the evidence before Harrison C could not sufficiently support a finding that the PTA has other positions that were available and suitable. Mr Luff's evidence, when questioned about whether Ms Vimpany could be re-employed as a customer service officer, was that they were at that time recruiting for one customer service assistant, but it was a promotional position (that attracted a higher level of pay than a customer ticketing assistant), for which Ms Vimpany would not be considered for such a position as she did not meet the essential criteria, as she had not undertaken a course in safe working accreditation: ts 183 - 184.
130 For these reasons:
(a) We are satisfied that except in respect of grounds 5, 6 and 9 of the grounds of appeal, the remaining grounds of appeal are made out.
(b) As to the matters raised in ground 5 of the grounds of appeal, we are not satisfied that this ground is made out insofar as this ground challenges the rejection of Mr Luff's opinion about the need to have a third-party present when Ms Vimpany interacted with supervisors. However, insofar as ground 5 relies upon Mr Luff's evidence about the reliability of Ms Vimpany to provide accurate accounts of events, we are satisfied that ground 5 is made out.
(c) We are not satisfied that grounds 6 and 9 are made out.
131 In light of these reasons for decision, we are of the opinion that an order should be made to uphold the appeal and that an order should be made to vary the decision by making an order that the PTA pay Ms Vimpany an amount of compensation for loss or injury caused by the dismissal. Prior to making an order, the parties should be heard as to the quantum of compensation that should be paid to Ms Vimpany.
BEECH CC
132 I have read in advance the reasons for decision of Her Honour the Acting President and adopt the background to this matter she has set out. I agree with those reasons except her finding that Harrison C failed to have regard to material matters. I shortly state my reasons why I would dismiss the appeal.
133 Harrison C's decision that Ms Vimpany should be reinstated was based on a number of considerations. She commenced at [33] by stating:
… Apart from issues related to the events of 27 April 2013 where Ms Vimpany was disciplined for her role in the incident on 27 April 2013 and was issued with a reprimand for her conduct during this incident which remains on her personnel file, Ms Vimpany has had a lengthy, impeccable and uneventful employment history with the respondent.
134 In reaching the conclusion that Ms Vimpany had an impeccable and uneventful employment history with the PTA, Harrison C was careful to recognise the issues related to the events of 27 April 2013.
135 Harrison C observed that there was undisputed evidence given in previous proceedings that during this time Ms Vimpany's performance was unblemished and exemplary, she was of good character, she was trustworthy and she interacted positively with her colleagues. She is again careful to point to Ms Vimpany's trustworthiness pre and post the incident on 27 April 2013 – not during that incident. In my view, the PTA has not demonstrated error on the Commissioner's part.
136 The fact that Ms Vimpany maintains her view that she was not the aggressor in the incident, despite the PTA's investigation and the finding of Kenner C, cannot be viewed in isolation from the circumstances. The PTA dismissed her because it believed that she had knowingly given false accounts, and had made a false allegation, regarding the events of 27 April 2013. It can be inferred that the PTA did not have sufficient trust and confidence in her because of its belief.
137 The PTA was, as it turned out, incorrect in its belief and, Ms Vimpany having been unfairly dismissed, the PTA's submission now is that reinstatement is impracticable because it does not have sufficient trust and confidence in her to perform her duties. It is concerned about the ability of Ms Vimpany to report accurately on enforcement matters.
138 The submission now made by the PTA about the reason why it does not have trust and confidence in Ms Vimpany to perform the duties of a passenger ticketing assistant must be assessed against the fact that during the 17 months after the incident on 27 April 2013 when she worked with her supervisors and other employees without incident and in a professional manner, Ms Vimpany had the opinion that other employees had perjured themselves and had conspired against her. The conclusion of Harrison C that this does not indicate any animosity or contempt on her part towards her colleagues and managers is not only open, but in my view inevitable.
139 During this period, on 29 January 2014 Ms Vimpany had received an email (exhibit A7) congratulating her on a job well done for her work at the Perth Underground during the Sky Show. It spoke about her manner, professional performance and assistance which ensured the smooth movement of passengers and provided great assistance to the coordinator.
140 It is in this context too that a positive inference is open from the lack of complaints about Ms Vimpany returning to work in her former position and her stated beliefs about Mr Hammon and the other employees, and that the 'investigation process has been a conspiracy'. I accept that the PTA views the concept of conspiracy broadly and urges that it be seen as a serious allegation, however it not open to the PTA to extrapolate its view beyond the evidence that Ms Vimpany's belief has had no practical consequence.
141 The expressed concerns of the PTA about Ms Vimpany's reliability to recount and record events must be balanced with the evidence overall. In particular, Harrison C accepted the evidence given by Ms Vimpany in the proceedings that she wants to return to work, move forward and put the past behind her, including re-establishing the good relationships she had with her former colleagues and managers. It was open to Harrison C to do so and no error is demonstrated in her accepting that evidence. It can be observed that a person rarely has 100% trust in another, particularly in an employment situation, and an employee stating that she wishes to move on, and put the past behind her, is hardly an unacceptable statement.
142 Loss of trust and confidence is the most common argument advanced in support of the proposition that reinstatement is inappropriate, as the Full Bench of the Fair Work Commission stated in Nguyen. It is important to recognise that the exercise of the power in s 23A of the Act to reinstate an unfairly dismissed employee is not focussed upon whether there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship. Rather it is upon the practicability of reinstatement.
143 What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party: Perkins v Grace Worldwide (Aust) Pty Ltd (191).
144 Each case must be decided on its own facts, including the nature of the employment concerned. The evidence that Ms Vimpany worked with her supervisors and other employees as a passenger ticketing assistant without incident and in a professional manner for 17 months after the incident on 27 April 2013, and while holding the opinion she has, is in my experience a unique situation.
145 It means that Harrison C was not restricted to dealing in an abstract sense with the PTA submission that it does not have sufficient trust and confidence in Ms Vimpany to perform the duties of a passenger ticketing assistant; Harrison C had proof that Ms Vimpany had worked as a passenger ticketing assistant without incident and in a professional manner for 17 months after the incident on 27 April 2013 which shows there was sufficient trust and confidence in the working relationship.
146 It is an error therefore, with respect, to elevate Ms Vimpany's opinion that other employees had perjured themselves and had conspired against her as a reason of itself to find that the PTA's stated concern at the ability of Ms Vimpany to report accurately on enforcement matters should be given weight when the evidence shows that between the date of the incident and her dismissal there had been sufficient trust to make the relationship viable and productive.
147 In the absence of any error on the part of Harrison C, and in particular that she did not fail to take into account a material consideration, the decision of Harrison C was open to her and no error is demonstrated warranting the intervention of the Full Bench. I would dismiss the appeal.