WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES BHP BILLITON IRON ORE PTY LTD

APPELLANT

-and-

The Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Chief Commissioner A R Beech

 Senior Commissioner J F Gregor

HEARD WEDNESDAY, 15 FEBRUARY 2006

DELIVERED WEDNESDAY, 8 MARCH 2006

FILE NO. FBA 15 OF 2005

CITATION NO. 2006 WAIRC 03908

CatchWords Industrial Law (WA) - appeal against decision of single Commissioner - alleged unfair dismissal - dismissal for misconduct - failure to follow instruction - discretionary decision - drug and alcohol programme - Issue Resolution Process - jurisdiction of Commission - order for loss suffered because of dismissal - mitigation of loss - whether prior decision of Full Bench ought be followed - Iron Ore Production and Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002 - Industrial Relations Act 1979 (WA) (as amended), s23(3)(h), s23A, s23A(3), s23A(4), s23A(5), s23A(5)(a), s23A(5)(b), s23A(7), s26(2), s44, s44(6)(bb)(ii), s44(9), s49, s49(9).

Decision Appeal allowed in part, appeal otherwise dismissed.

Appearances

Appellant  Mr A D Lucev (of Counsel), by leave and with him Ms K O’Rourke

Respondent Mr D H Schapper (of Counsel), by leave

Reasons for Decision

THE ACTING PRESIDENT:

Introduction

1         This is an appeal instituted under s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).  The appeal is against orders made by the Commission on 3 October 2005.

2         These orders were made consequent upon an application being filed by the respondent in the Commission on 22 July 2005 seeking a conference pursuant to s44 of the Act.  The grounds on which the application was made were set out in a schedule to the application.  The schedule said the respondent was in dispute with the appellant over the termination of employment of their member, Mr John Johnston.  Mr Johnston had been employed by the appellant for almost 20 years, most recently as a motor vehicle driver, at the Mt Whaleback mine in Newman.  He is also a convener of the respondent union.  The schedule claimed the termination of Mr Johnston’s employment was harsh, oppressive or unfair and sought the assistance of the Commission in an endeavour to resolve the matter.

3         The matter was not able to be settled at a conciliation conference held in accordance with s44 of the Act.  Accordingly, on 5 August 2005, the Commission issued a Memorandum of Matters for Hearing and Determination pursuant to s44(9) of the Act.  The schedule to the Memorandum was as follows:-

“1. The Applicant says that:

(a) The Applicant’s member, Mr John Johnston, had his employment terminated with the Respondent on 21 July 2005;

(b) The Respondent paid Mr Johnston in lieu of notice in accordance with clause 9(3) of the Award;

(c) The termination letter given to Mr Johnston dated 21 July 2005 specifies the basis on which the Respondent purported to terminate Mr Johnston’s employment;

(d) The termination letter states that a disciplinary inquiry instituted by the Respondent found that Mr Johnston:

(i)  abused and intimidated the Assistant Mining Superintendent on 18 June 2005;

(ii) unreasonably and unjustifiably interfered with a drug and alcohol test and failed to comply with a lawful instruction to leave the testing location on 18 June 2005; and

(iii) lacked candour in responding to questions in the investigation.

2. The Applicant denies that Mr Johnston:

(a)  abused and intimidated the Assistant Mining Superintendent on 18 June 2005;

(b) unreasonably and unjustifiably interfered with a drug and alcohol test and failed to comply with a lawful instruction to leave the testing location on 18 June 2005; or

(c) lacked candour in responding to questions in the investigation.

3. In all the circumstances, particularly those referred to above, the Applicant says that the termination of Mr Johnston’s employment with the Respondent is unfair.

4. The Applicant seeks an order from the Commission reinstating Mr Johnston’s employment with the Respondent without loss of entitlement.

5. The Respondent opposes the Applicant’s claims and denies that the Applicant is entitled to the relief sought or any relief at all.”

4         The dispute was heard by the Commission at Newman on 5-7 September 2005 including a site inspection.

5         On 23 September 2005 the Commission published its reasons for decision and, as stated earlier, orders were made on 3 October 2005.  The orders made were that the Commission:-

“1. DECLARES that the applicant’s member, Mr John Johnston was unfairly dismissed by the respondent on 21 July 2005;

2. DECLARES that reinstatement of the applicant’s member, Mr John Johnston, is practicable;

3. ORDERS that within 7 days of the date of this order, the Respondent shall reinstate the Applicant’s member, Mr John Johnston, to his previous position;

4. ORDERS that Mr John Johnston’s service with the Respondent shall be deemed not to have been broken by reason of the termination of his employment;

5. ORDERS that Mr John Johnston be paid for the period between his dismissal on 21 July 2005 and the date of his reinstatement as if he had been at work during that period;

6. ORDERS that the respondent counsel Mr John Johnston, and place on his personal file a counselling note for his breach of the BHP Iron Ore – Drug and Alcohol Programme, by taking Mr Fairbrass off site on 18 June 2005.”

The Notice of Appeal

6         A notice of appeal was filed on 21 October 2005.  The schedule to the notice of appeal sets out what are described as seven “grounds” of appeal.  In truth, “grounds” 5-7 are not grounds of appeal as such but simply an indication of the orders which the appellant was seeking from the Full Bench, depending upon which grounds of appeal the Full Bench upheld.  Grounds 1-4 of the grounds of appeal are in the following terms:-

“1. The Commission erred in finding that Mr Johnston’s conduct, by removing Mr Fairbrass:

(a)  from the care of supervision;

(b)  from the drug and alcohol testing room; and/or

(c)  from the site,

in breach of the Appellant’s Drug and Alcohol Program (“Program”), and in breach of a lawful and reasonable direction from a management employee, did not fairly or reasonably warrant dismissal.

2 In the alternative to ground 1:

2.1  the Commission had no jurisdiction to stipulate that the penalty to be applied to Mr Johnston for breaching the Program be that of a counselling note to be placed on Mr Johnston’s personnel file;

2.2  further, in the alternative to ground 2.1, if the Commission has the jurisdiction to stipulate the penalty to be applied to Mr Johnston for breaching the Program, it erred in finding that the appropriate penalty for that breach was a counselling note to be placed on Mr Johnston’s file; and

2.3 in any event, the Commission erred in denying the Appellant procedural fairness by not permitting it the opportunity to deal with the issue of the appropriate penalty for Mr Johnston’s breach of the program.

3  The Commission erred:

3.1 in finding that Mr Johnston was entitled to represent Mr Fairbrass at the test pursuant to clause 23 - Issue Resolution Process of the Iron Ore Production and Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002;

3.2 in finding that Mr Johnston sought to represent Mr Fairbrass as a union member within the terms of the Issue Resolution Process;

3.3 in finding that the letter dated 8 June 2005 by Mallesons Stephen Jacques as solicitors for the Appellant that Mr Johnston sought to rely on was relevant to union representation in this matter;

3.4 in finding that material before the Commission in C32 of 2005 was relevant to this matter as this material only relates to the Program as amended; and/or

3.5 in failing to find that Mr Johnston’s actions in seeking to represent Mr Fairbrass at the test on 18 June 2005 interfered with the test Mr Fairbrass was required to take in relation to his return to work in accordance with the Program.

4 The Commission erred by failing to correctly interpret and apply section 23A(5)(b) of the Industrial Relations Act, 1979 (WA) in ordering that the Appellant pay Mr Johnston for the period between his dismissal on 21 July 2005 and the date of his reinstatement as if he had been working during that period when he made no endeavour to mitigate his loss as a result of the dismissal.”

The Facts

7         The events which led to the termination of Mr Johnston’s employment occurred in the early morning of 18 June 2005 at the appellant’s Mt Whaleback mine in Newman, and in the disciplinary inquiry which followed.  To some extent the events on 18 June 2005 were related to an incident on 13 June 2005, which will be referred to later.

8         At the hearing, evidence for the respondent was given by Mr Johnston, Mr Dave Fairbrass and Mr James McKean.  Evidence for the appellant was given by Mr Jack McDonald, Mr Joe Rovetto, Mr Justin Miles, Mr Mick Carroll, Mr Mike Lohse, and Mr Geoff Knuckey.  Documentary exhibits were tendered.  These included statements by Mr Brad Roe and Mr Chris Thompson who had observed some of the events on the morning of 18 June 2005.  These statements were before the appellant when it decided to terminate Mr Johnston’s employment, but neither party called Mr Roe or Mr Thompson to give evidence.

9         The evidence at the hearing is summarised in detail in the reasons of the Commissioner at paragraphs [5]-[70] and were referred to and analysed in other parts of the reasons.  The following briefer summary of the facts is in part reliant upon the summary of the evidence provided by the Commissioner in his reasons for decision.

10      Mr Fairbrass is a truck driver employed by the appellant at the Mt Whaleback mine in Newman.  On 13 June 2005 he reported an incident at an intersection which is known as SP17.  The incident was that another truck had entered the intersection and stopped halfway across the road.  Mr Fairbrass did not think that the truck was going to stop and consequently he took evasive action.  According to the road rules in place, the truck should have given way to the truck driven by Mr Fairbrass.  Mr Fairbrass reported the incident to a supervisor.  The supervisor informed Mr Fairbrass that he would have to undergo a drug and alcohol (D&A) test in accordance with the D&A programme of the appellant.  Mr Fairbrass, together with a union representative, Mr Des Brewer, objected to the taking of the test.  This was because Mr Fairbrass was of the view that as he was not responsible for the incident and had only sought to report it, he was not required to take a “for cause” test in accordance with the programme.  Initially, following this discussion, Mr Fairbrass was advised that he did not have to take the test as he had passed the time limit relevant to the test.  Subsequently, however, he was advised that he would have to take the test.  He refused to do so on the basis that he did not believe that he was required to take the test.  He was therefore deemed to have a “first positive” test under the programme.  The programme provides that if somebody refuses to take a test it is deemed to be a positive result.  Positive results are subject to disciplinary action as set out in the programme.

11      In accordance with the programme, Mr Fairbrass was required to take another D&A test before he next commenced work.  Mr Fairbrass was to next commence work on 18 June 2005.

12      On 17 June 2005 Mr Fairbrass was advised by Mr McDonald, an assistant superintendent of mining, that the test would be conducted before he commenced shift the next day.  The programme also required Mr Fairbrass not to drive to work.  Mr Fairbrass agreed with Mr Johnston that Mr Johnston would take Mr Fairbrass to work that day.  This occurred at about 5.45am.  Mr Fairbrass and Mr Johnston then separated.  A little while later Mr McDonald approached Mr Fairbrass and asked him to take the D&A test.  Mr McDonald and Mr Fairbrass then proceeded to go to the D&A test waiting room.  On the way to and at the waiting room, Mr Fairbrass telephoned Mr Johnston and spoke to him.  This led to Mr Johnston also attending at the D&A waiting room where he had a conversation with Mr McDonald.  Shortly afterwards, two contractors, Mr Rovetto and Mr Miles, entered the room to undergo tests.  This led to an assertion by Mr Johnston that Mr Fairbrass’ “confidentiality” had been breached and Mr Johnston and Mr Fairbrass then left the waiting room.  Inside and outside of the room there was then conversation between Mr McDonald, Mr Johnston and Mr Fairbrass.  The content of what was said and done by Mr Johnston in this period was a key issue in relation to his termination of employment and also the determination made by the Commission.  At the conclusion of the conversation, Mr Johnston drove Mr Fairbrass to his home.

13      The events of the morning were reported by Mr McDonald to Mr Carroll, the mining superintendent.  Mr Carroll then reported the matter to Mr Knuckey, the manager of maintenance at the Mt Whaleback mine.  Mr Knuckey, later that morning, spoke to Mr Johnston on the telephone and stood him down.  There then followed an investigation which was conducted by the human resources department of the respondent at Mt Whaleback.  The investigation was commenced by a Mr Jessop and then taken over by Mr Lohse, the acting manager of the human resources department.  The investigation involved the obtaining of some information and statements and the interviewing of Mr Johnston.

14      On 19 July 2005 Mr Lohse had a meeting involving Mr Knuckey, Mr Caroll, Mr Jessop and other senior personnel.  It was there that the decision to terminate Mr Johnston’s employment was made.

15      Mr Johnston was informed of this at a meeting on 21 July 2005 which was also attended by Mr McKean.  On that date a letter of dismissal was read to Mr Johnston and later provided to Mr McKean who in turn gave it to Mr Johnston.  The relevant contents of the letter are as follows:-

“I refer to the disciplinary inquiry conducted, on 27 June 2005 and 15 July 2005 in relation to the incident on 18 June 2005.

The disciplinary inquiry was conducted into allegations that you had verbally abused and intimidated the Assistant Mining Superintendent whilst he was in the process of conducting a drug and alcohol test in accordance with the Company’s Drug and Alcohol Program, your actions in interfering with the test and failing to comply with a lawful direction made at that time.

In the inquiry you denied abusing the Assistant Mining Superintendent and interfering with the testing.

The inquiry has found that, notwithstanding your denial, you did abuse and intimidate the Assistant Mining Superintendent.  That behaviour was totally unacceptable and unjustifiable.  All employees have the right to be protected from such behaviour in the workplace.

The investigation has also found that you unreasonably and unjustifiably interfered with a drug and alcohol test and failed to comply with the lawful instruction to leave the testing location.

In addition, the inquiry found that you lacked candour in responding to questions in the investigation.

In all the circumstances, including those referred to above, and having considered all the matters raised by you, the Company considers that you are unsuitable for further employment and your employment is terminated in accordance with clause 9(3) of the Award with payment in lieu of notice.

Please contact HR Services to finalise the procedural aspect of the termination of your employment.”

16      The letter was signed by Mr Knuckey.

17      The above is a brief overview of the events which led to the termination of employment of Mr Johnston.  There was considerable disagreement as to what happened during the interaction between Mr Johnston and Mr McDonald on the morning of 18 June 2005.  This is relevant to the findings made by the Commissioner at first instance and some of the grounds of appeal.  I will therefore outline in summary the evidence about what occurred that morning.

18      Mr Johnston said that he was advised by Mr Brewer of the incident involving Mr Fairbrass on 13 June 2005.  He was informed that Mr Brewer wanted to address the issue through the Issue Resolution Process, under the Iron Ore Production and Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002 (the award).  Mr Johnston then spoke to Mr Fairbrass’ supervisor who said that Mr Brewer had raised the Issue Resolution Process and the matter could not be proceeded with any further at this stage.  Mr Johnston said the matter would be proceeded with on the next block of shifts.

19      After driving Mr Fairbrass to work on 18 June 2005, Mr Johnston proceeded to his work area.  Mr Fairbrass telephoned him a little while later and said that Mr McDonald had approached him.  He was informed that Mr McDonald had said Mr Fairbrass was to do a D&A test.  Mr Fairbrass inquired of Mr Johnston whether they were going to have a meeting as the matter was in dispute.  Mr Johnston told Mr Fairbrass to tell Mr McDonald that the matter had been raised with Mr Fairbrass’ supervisor as a dispute and that they would like to have a meeting about it.  The conversation then ended.

20      Mr Fairbrass telephoned Mr Johnston again five minutes later and said that Mr McDonald said he was not going to have a meeting.  Mr Fairbrass told Mr Johnston that he was in the D&A test waiting room.  Mr Johnston said that he would be over there shortly.  Mr Johnston then asked his acting foreman for the day whether he minded if he went to a meeting as there was an issue at the D&A waiting room.  Mr Johnston received the permission of the acting foreman to attend at the waiting room and Mr Johnston then proceeded there.

21      Upon arrival at the waiting room, Mr Johnston opened the door and said “Morning”.  He saw that Mr McDonald and Mr Fairbrass were both in the room.  Mr McDonald asked Mr Johnston whether he was there for a test and if not he should “get out”.  Mr Johnston said no to the question whether he was going to have a test and said that he was there to represent Mr Fairbrass.  Mr Johnston said that there was issue being raised through the Issue Resolution Process.  Mr Johnston said that whilst he was continuing this sentence he was interrupted by Mr McDonald who said “if you’re not here for a test, get out”.  Mr Johnston said that he told Mr McDonald he was there to represent Mr Fairbrass, and he had a letter dated 8 June 2005 which had been sent to the Commission.  Mr Johnston said he was interrupted again and told again by Mr McDonald that if he was not there for a test to “get out”.

22      Mr McDonald said that he had been to “HR” and that was how it was going to be.  Mr Johnston replied that he did not doubt that he had been to “HR” but that Mr Johnston was there to represent Mr Fairbrass.  Mr Johnston indicated that the matter was over the head of Mr McDonald and he should involve Mr Steve Cooper in discussions.  (The evidence did not precisely reveal Mr Cooper’s position, but it appears he was a person involved in a senior way, on behalf of the appellant, in discussions relevant to changes to be made to the D&A programme, which had been the subject of negotiations and Commission conferences).

23      Mr Johnston said that after he referred to Mr Cooper, two contractors (who turned out to be Mr Rovetto and Mr Miles) entered the room.  Mr Johnston asked them whether they were there for a test.  They said that they were and Mr Johnston then said to Mr McDonald “Jack, there goes Dave’s confidentiality.  Come on Dave.  We’re out of here”.  Mr Johnston then walked to the door and Mr Fairbrass followed him.  Mr McDonald then went to the door and asked Mr Fairbrass whether he was going to do the test.  Mr Fairbrass did not immediately answer him.  He was asked about this again.  Mr Fairbrass said he was not refusing to do the test but his confidentiality had been breached.

24      Mr Johnston then said he told Mr McDonald to get hold of someone that could handle the matter and said he was ignored after making this request.  Mr Johnston said that Mr McDonald continued to raise his voice to Mr Fairbrass about whether this was a second refusal.  Mr McDonald walked about 20-30 metres away before turning around, walking back and saying that he was taking Mr Fairbrass home.  There was some discussion about whether Mr McDonald or Mr Johnston should take Mr Fairbrass home.  Mr McDonald said he would take Mr Fairbrass home as he was his foreman.  Mr Johnston’s evidence was that Mr Fairbrass asked him to take him home and that he did so.  Before attending to this, he spoke to his acting foreman and sought permission to take Mr Fairbrass home.  This permission was granted.

25      Mr Johnston also gave evidence about his standing down, the investigation which followed and his termination of employment.

26      One of the matters raised in the disciplinary inquiry was that Mr Johnston had taken Mr Fairbrass home.  During the course of the inquiry Mr Johnston acknowledged that this was in breach of the D&A programme which relevantly provided that it was the duty of the supervisor to take an employee offsite who had not done a test.  It was also part of the D&A programme that this duty should not be delegated.

27      Mr Fairbrass’ evidence was that after being taken to work by Mr Johnston on 18 June 2005 he went to his shift change and was then approached by Mr McDonald.  Mr McDonald asked him to attend with him in a meeting room which Mr Fairbrass agreed to.  He was there informed that he had to take a D&A test before the commencement of his shift.  Mr Fairbrass’ evidence was that he informed Mr McDonald that he would like Mr Johnston to be present as representation.  He said Mr McDonald replied that he had spoken to “IR” and that Mr Fairbrass was to do the test and could then have representation.  Mr Fairbrass told Mr McDonald that he thought he could have representation first and he was advised no.  Mr Fairbrass then collected his bag and telephoned Mr Johnston.  He said that he explained the situation to Mr Johnston and that Mr Johnston said that he was entitled to representation and that Mr Fairbrass should explain this to Mr McDonald again.  The telephone conversation then ended.  Mr Fairbrass said that he walked to the waiting room and whilst they were waiting for the nurse, Mr Fairbrass asked Mr McDonald again if he could have representation.  Mr Fairbrass then said Mr McDonald told him he could not; that he had to take the test first and could have representation afterwards.  Mr Fairbrass said he then telephoned Mr Johnston and explained this to him.  Mr Johnston then said that he would come over to the waiting room.

28      About 10-15 minutes later Mr Johnston entered the waiting room.  Mr Fairbrass said that Mr Johnston said “Morning all” to Mr Fairbrass and Mr McDonald.  Mr Fairbrass said Mr McDonald told Mr Johnston that if he was not there for a test he should leave now.   Mr Johnston said that he was there to represent Mr Fairbrass.  Mr Johnston was told that if he was not there for a test he should leave.  Mr Fairbrass said that Mr McDonald was quite forceful in saying that.  Mr Fairbrass’ evidence was that Mr Johnston was trying explain to Mr McDonald about a letter that he had dated 8 June 2005, and Mr McDonald was “basically telling him to leave” if he was not there for a test.  Mr Fairbrass said that Mr McDonald explained he had spoken to “IR”, and that Mr Fairbrass was to do the test.  Mr Fairbrass’ evidence was that Mr Johnston said that he had no doubt that Mr McDonald had spoken to “IR” but said this was over Mr McDonald’s head and that he should get Mr Cooper.  Mr Fairbrass said the door then opened and two contractors came in.  Mr Fairbrass said Mr Johnston turned to the contractors and asked them if they were there for a test.  They said they were, and Mr Johnston then turned to Mr McDonald and said:  “Well there goes your confidentiality, Jack.  Come on, Dave, we’re out of here”.  Mr Fairbrass’ evidence was that Mr Johnston then walked out of the door and he followed him.  Mr McDonald then started yelling at Mr Fairbrass, asking him whether he was going to take the test.  Initially, Mr Fairbrass did not say anything.  When he was outside, putting his beanie in his bag, Mr McDonald yelled at him “Are you refusing to take a test?”  Mr Fairbrass said that he was not refusing to take the test, but said “there goes your confidentiality with those two in there”.  Mr Fairbrass said that Mr Johnston was trying to talk to Mr McDonald about the letter that he had, and Mr McDonald was yelling at Mr Fairbrass to take the test.  Mr Fairbrass said that this continued for a short while.  Mr McDonald then walked off to the end of the building that they were standing next to and then turned around and came back and told Mr Fairbrass that he was taking him home.  Mr Fairbrass’ evidence was that Mr Johnston then said “Well, why are you taking him home?”, and Mr McDonald replied that it was because he was Mr Fairbrass’ foreman.  Mr Johnston then said that Mr McDonald would not take Mr Fairbrass home, and that if anyone was taking him home he (Mr Johnston) would.  Mr Fairbrass said in evidence that Mr McDonald then walked off again and that Mr Johnston then said to him that he was “sick of this shit”, and Mr Johnston and he then turned around and walked off.

29      Mr Fairbrass said in evidence that he wanted Mr Johnston to take him home and explained this to him.  This then occurred.  Mr Fairbrass said in evidence that he preferred Mr Johnston to take him home because if he had got in the car with Mr McDonald he “wouldn’t have been responsible”.  When asked what he meant by that he said “anything could have happened in that car”.

30      In his evidence, Mr McDonald said he met with Mr Fairbrass on the morning of 18 June 2005 and went to a meeting room with him.  He explained there that Mr Fairbrass needed to go to the “D&A room” because of his first refusal being a deemed positive D&A result.  He told Mr Fairbrass that he was required to take a D&A test before he went back to work.  Mr Fairbrass said if he had to go there he wanted Mr Johnston to be present.  Mr McDonald said that it was not possible for Mr Johnston to be present because of the D&A programme, with confidentiality, but he could have him for as long as he needed after the D&A test.  Mr McDonald said that he arrived at that view because he had previously met with human resources people and Mr Carroll about the matter.

31      Mr McDonald’s evidence was that after this initial discussion he and Mr Fairbrass walked to the waiting room.  On the way to the waiting room Mr Fairbrass made a telephone call.  Mr McDonald said he heard Mr Fairbrass say he was on his way to the waiting room and that he had been refused representation.  Mr McDonald and Mr Fairbrass then arrived at the waiting room.  Mr McDonald said he rang the bell for the nurse.  There was then some conversation involving the nurse, Mr McDonald and Mr Fairbrass which is not material.  Mr McDonald then said he thought Mr Fairbrass received a telephone call after a couple of minutes.  He said the telephone call was brief and that he heard Mr Fairbrass say that he was sitting in the waiting room.  After about 10 minutes, Mr McDonald said Mr Johnston walked in the door of the waiting room and said “What’s going on here Jack?”  Mr McDonald said that Mr Johnston walked between Mr McDonald and Mr Fairbrass when he said this.  Mr McDonald said he asked Mr Johnston whether he was there for a test.  He said that Mr Johnston replied by saying “Jack, don’t be a smart-arse.  I’m here to represent Dave”.  Mr McDonald said he told Mr Johnston he was not going to discuss this now, he had spoken to human resources and this was the process they were taking.  Mr McDonald’s evidence was that Mr Johnston then said something to the effect that “Dave’s case is in the Commission and he’s been in - - down there all week, and Dave won’t be taking the test”.  Mr McDonald said he turned to Mr Fairbrass and asked him whether he was refusing to do the test.  Mr Fairbrass said no.  Mr McDonald said Mr Johnston then interrupted and said “Jack, don’t be a fucking smart-arse.  He’s not doing the test”.  Mr McDonald then said that two contractors walked into the room and Mr Johnston spun around and asked them whether they were there to do a test.  Mr McDonald said that the contractors said they were, and Mr Johnston then turned to him and said “Jack you’ve just breached confidentiality”.  Mr McDonald said that Mr Johnston then turned to Mr Fairbrass and said “Dave, grab your gear.  We’re getting out of here”.  As Mr Fairbrass then did this, Mr McDonald asked Mr Fairbrass whether he was refusing to do the D&A test.  Mr McDonald said Mr Fairbrass did not respond, but picked up his bag and walked out the door.  Mr McDonald said that there was then quite a lot said by Mr Johnston and quite a bit of swearing.

32      Mr McDonald said that he did not “get” a lot of what was said, but Mr Johnston was making remarks, Mr McDonald thought, to Mr Fairbrass.  Mr McDonald said that he walked after Mr Fairbrass when the latter left the room and in the doorway said to Mr Fairbrass that he would strongly recommend he take the test.  He said Mr Fairbrass did not respond to that.  Mr McDonald said that Mr Johnston turned around and said, “Jack, piss off, he’s not taking the test”.  Mr McDonald said he indicated to Mr Fairbrass that this was going to count as a second refusal.  Mr McDonald’s evidence was that Mr Johnston then turned around to him and said “Fuck off, you little upstart, he’s not taking the test”.  This was said when Mr Johnston was outside the waiting room and probably a metre from Mr McDonald.  Mr McDonald’s evidence was that he told Mr Johnston that he was not going to take the conversation any further because it was getting into personal abuse.  Mr McDonald said that he had to get somebody down there because things were starting to get out of hand.  He then telephoned a shift supervisor.  Mr McDonald said that as he did this, Mr Johnston leaned into him and said “Jack…there’s two on one here, you got no fucking chance”.  Mr McDonald said he did not respond to that.  In Mr McDonald’s evidence, he said that he interpreted this remark to mean there would be two people denying his version of what had occurred so that he should not take the matter any further.

33      Mr McDonald said he then informed Mr Fairbrass that he would need to take him home and escort him off site.  He said that Mr Johnston turned to him and said “Jack, you’re not taking him anywhere.  I’ll take him”.  Mr McDonald said he told Mr Johnston that it was his duty of care to take Mr Fairbrass off site as he was his supervisor and responsible for him.  Mr Johnston turned around and said that he did not care and walked off with Mr Fairbrass.  Mr McDonald said that he then telephoned Mr Carroll to let him know what was going on.  Mr McDonald said he telephoned the Occupational Health and Safety department because he did not know where Mr Fairbrass and Mr Johnston were going.  Mr McDonald said he got a telephone call back 10 minutes later saying that they had gone through the front security gate.  This was about 6.21am.  Mr McDonald then spoke to Mr Carroll and went through with him what had happened.

34      Mr Rovetto said in evidence that on the morning of 18 June 2005 he, together with Mr Miles, were selected at random to have D&A tests.  They then attended at the D&A testing room.  He said he walked up to the door, opened the door, and there was a man with a moustache, (Mr Johnston), standing in the doorway.  Mr Johnston asked Mr Rovetto whether he was there to do a D&A test, and he said “Yes”.  Mr Johnston then turned and talked to another man, which must have been Mr Fairbrass, and said to him “C’mon let’s go”.  Mr Rovetto said there was another man sitting down opposite the doorway in the room which must have been Mr McDonald.  Mr Rovetto said that after Mr Johnston had said “C’mon let’s go” he turned around and headed to the door.  Mr McDonald then said “I take it you’re refusing the drug test” to Mr Fairbrass.  Mr Rovetto said Mr Fairbrass did not reply.  Mr Johnston, Mr Fairbrass and Mr McDonald all walked outside.

35      There was then conversation of which Mr Rovetto did not recall all of the details.  He did recall, however, Mr Johnston saying to Mr Fairbrass that he should take stress relief.  Mr Rovetto then heard Mr Johnston say that he was going to see someone about this.  He also heard Mr Johnston call Mr McDonald a “stupid something -- somewhere along those lines”.  Mr Rovetto said that Mr Johnston was a bit loud and tried to get his point across in an aggressive sort of way.  He said he also recalled a bit of foul language, but could not recall what words were used.  He said that his was said by Mr Johnston.  Mr Rovetto said that Mr McDonald remained pretty calm.  He said that Mr McDonald just wanted to know if Mr Fairbrass was going to do a D&A test or not.

36      Mr Miles gave evidence that he and Mr Rovetto attended at the waiting room to do their random D&A tests on the morning of 18 June 2005.  When they walked into the waiting room Mr Johnston turned to Mr Rovetto and him and asked whether they were there to do a test.  When they replied “Yes”, Mr Johnston said “Okay.  Let’s go”.  Mr McDonald asked Mr Fairbrass whether he was refusing to do the test.  Mr Fairbrass said that his privacy or confidentiality had been broken, and after that Mr Johnston “seemed to override the whole conversation”.  Mr Miles said Mr Johnston was aggressive and “trying to put on a few standover tactics”.  Mr Miles explained this by saying that he had worked as a bouncer and had “seen guys puff their chest up.  We know this as pigeon chest.  He stepped closer, he’d raise his voice more to try and drown out the other guy that was talking”.  Mr Miles said Mr McDonald remained calm.  Mr Miles said there was conversation about whether Mr Fairbrass was refusing to do the test, and that this was again overridden by Mr Johnston who tried answering the question for Mr Fairbrass.  Mr Miles said Mr Johnston and Mr Fairbrass left the room.  Mr McDonald walked to the door, held it close to him and said “I take it you’re refusing to do the test?”, and Mr Miles then heard somebody say “It’s two on one.  You have no chance”.  Mr McDonald then said “I take it you’re refusing to do the test?” and walked off to the left at a relatively fast pace.  He then said that he also overheard either Mr Johnston or Mr Fairbrass say that Mr McDonald was a “stupid cunt”.  Mr Miles otherwise said that he was not able to see what was then happening outside.

37      I earlier referred to the statements given by Mr Roe and Mr Thompson.  Relevantly, the statement of Mr Roe said that he was sitting with Mr Thompson outside the electrical workshop on the morning of 18 June 2005, during a shift change.  He noticed Mr Thompson look over to a conversation between three people outside the occupational health and D&A waiting room.  Mr Roe saw what appeared to be an argument between Mr Johnston and another person.  There was a third person there who was not saying anything.  The statement said Mr Johnston was saying something about a “breach of policy” and the other person did not have to take the test.  This was in what sounded like a raised voice.  The statement said the other person appeared to be talking past Mr Johnston to the third person asking whether he was refusing to take a test.  The person talking appeared frustrated by what was taking place.  He may have used a raised voice but was not yelling.  The statement said the gentleman standing next to Mr Johnston to whom the question had been directed, did not reply.  The statement said Mr Roe had heard Mr Johnston reply in a raised voice that he “doesn’t have to” and heard Mr Johnston say “Go and read the policy”.  The statement said the man who had been asking the questions moved away from Mr Johnston and the other guy, about two to three metres, appeared to make a call on his mobile and then walked back suddenly.  He then saw Mr Johnston and the other man walking in one direction and the other man walking in another direction.

38      The statement of Mr Thompson, relevantly, said that he saw a conversation taking place between three people on the morning of 18 June 2005, outside the occupational health and D&A waiting room.  The statement said that at the time Mr Thomson was sitting with Mr Roe outside the electrical workshop, during shift change.  The statement said Mr Thompson overheard one person saying something about the “policy being followed”.  The statement said Mr Thompson heard Mr Johnston reply something like “you don’t know the policy” or “you don’t know what (sic) policy is about”.  The statement of Mr Thompson said that he noticed the foreman step aside a few metres and then come back again.  The statement said Mr Thompson did not recall if the foreman was attempting to make a phone call.  Mr Thompson’s statement said he recalled Mr Johnston saying something to the foreman like “calm down”.  He recalled the foreman saying something about the “policy” and then saying something about this is going to be “a first or second strike or positive”.  The statement said Mr Thompson could not recall if the foreman said first or second.  The statement recorded that Mr Thompson noticed the foreman and Mr Johnston and another man walking away.  The statement also recorded that he saw the two contractors who had entered into the D&A waiting room after Mr Johnston that morning.  It also said that Mr Thompson heard raised voices during the discussion between Mr Johnston and the two other people but no yelling.  The statement said he also recalled not noticing the third person saying anything during the discussion he observed.

39      The relevant evidence of these witnesses and others was summarised in considerably more detail by the Commissioner at first instance in his reasons, including issues raised in cross-examination and re-examination.  Evidence relevant to the investigation which took place, and, in particular, procedural aspects of that were also referred to in the reasons for decision of the Commissioner.

The Commissioner’s Findings

40      In paragraphs [120]-[157] of the Commissioner’s reasons, he set out the “Issues and Conclusions”.  The following observations, findings and conclusions of the Commissioner are relevant.  (I will set out the paragraph of the observation, finding or conclusion in brackets after each point):-

(a) The most important issue is whether Mr Johnston acted as alleged in verbally abusing and intimidating Mr McDonald.  ([120])

(b) Mr Johnston took Mr Fairbrass home which he conceded was a breach of the D&A programme.  ([120])

(c) There was no issue about whether Mr Johnston had breached the rules of the appellant by being absent from his worksite without permission.  Mr Johnston sought and was granted permission by his supervisor to leave his workplace.  ([120])

(d) For reasons given by the Commissioner, Mr Miles’ evidence was unreliable and exaggerated and should be disregarded in its totality.  ([124])

(e) Mr Rovetto was more measured in his giving of evidence, but his evidence needed to be weighed carefully.  ([125])

(f) The prospect of Mr Rovetto or Mr Miles having seen or heard much of the exchange between Mr Johnston, Mr McDonald and Mr Fairbrass, once the waiting room door closed, was minimal; as was the prospect of them having seen much when the door was ajar.  ([127])

(g) For reasons given by the Commissioner, Mr Rovetto’s evidence was treated with considerable caution as to its accuracy.  ([128])

(h) Although not called as witnesses, the statements of Mr Roe and Mr Thompson were “uncontested” and they were accepted by the Commissioner.  ([131])

(i) After a considerable review of the evidence, the Commissioner did not accept that Mr Johnston said to Mr McDonald the “2 on 1” comment; which the Commissioner said he would find to be the most intimidatory comment.  The Commissioner was not convinced Mr Johnston told Mr McDonald to “piss off” once, let alone twice, or that he called him a “fucking little upstart”, or passed the comment to Mr Fairbrass that Mr McDonald was a “stupid cunt” or “stupid prick”.  ([141])

(j) There was nothing in the demeanour of Mr McDonald, Mr Johnston or Mr Fairbrass at the hearing that led him to doubt their evidence.  ([142])

(k) Mr McDonald took his duties very seriously and took considerable offence to his duties being interfered with by Mr Johnston.  This was clear from Mr Donald’s evidence as a whole.  ([143])

(l) The Commissioner doubted Mr McDonald was calm during the exchange and thought he took considerable offence at Mr Johnston’s intervention in his task of making sure Mr Fairbrass had every opportunity to do the test, and if he did not then advising him that it would be taken to be a second positive result.  ([143])

(m) The submission of the appellant that Mr Johnston and Mr Fairbrass lied by denying every adverse point made against them did not ring true and was not sustained on the evidence.  ([143])

(n) The Commissioner preferred the evidence of Mr Johnston and Mr Fairbrass to that of Mr McDonald, leading to the conclusion that Mr Johnston did not verbally abuse nor verbally or physically intimidate Mr McDonald on 18 June 2005.  ([144])

(o) For these reasons, Mr Johnston did not receive a fair go; the Commissioner cited Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.  ([145])

(p) With respect to procedural fairness, there were three aspects to the stand-down and investigation that the Commissioner had difficulty with.  The first was that Mr Johnston was entitled to know the substance of the allegation against him when stood down on 18 June 2005.  The full details could have been provided later, but, at that time, Mr Johnston was entitled to know that he faced the serious allegation of abuse and intimidation of a supervisor.  ([146])

(q) Secondly, a single combined statement of Mr Miles and Mr Rovetto, whom had been interviewed together by human resources officers, was not put to Mr Johnston until after the decision was made to dismiss him.  Accordingly, Mr Johnston did not have an opportunity prior to dismissal to put a view as to what he thought of the contractors’ statement.  ([147])

(r) Thirdly, Mr McDonald was not interviewed by human resources officers, although he had made statements which were given to them.  ([147])

(s) The Commissioner said, in effect, that if all the allegations against Mr Johnston were true, then the procedural elements would themselves have made the dismissal unfair; the Commissioner cited Shire of Esperance v Mouritz (1991) 71 WAIG 891.  ([148])

(t) The Commissioner said the following at paragraph [149].  Given its importance to one of the grounds of appeal it will be set out in full:-

“Mr McDonald in his evidence says that Mr Johnston referred to having been in the Commission all week in relation to the earlier incident of 13 June 2005 concerning Mr Fairbrass.  Mr Johnston rejects this and says that he tried to show Mr McDonald a letter dated 8 June 2005 from Mallesons solicitors.  This letter is not before me in these proceedings.  However, I am separately dealing with matter no. C32 of 2005 concerning the implementation of the new D&A policy.  That file contains a letter of 8 June 2005 which is a report back, as directed by the Commission, from Mallesons as to the progress with discussions between the company and unions over certain issues in the new policy.  One such issue, which was at that stage unresolved in discussions, was whether union or OH&S representatives could be present at ‘for cause’ testing.  The application in respect of Mr Fairbrass (matter no. C112 of 2005) was not lodged in the Commission until 29 June 2005 and came on for conference on 30 June 2005.  Hence the first time the Commission became aware of any incident with Mr Fairbrass was 11 days after the 18 June 2005 incident.  Mr McDonald mentioned in cross-examination that the matter which Mr Johnston was in the Commission for could not have been Mr Fairbrass’ incident; that is so.  Mr Johnston made it clear during the inquiry that he was referring to matter no. C32 of 2005, not Mr Fairbrass’ matter.  He said that he tried to show Mr McDonald a letter of 8 June 2005 from lawyers for the respondent.  This letter is directly relevant to union representation of ‘for cause’ testing.  He did not say he had been in the Commission on Mr Fairbrass’ matter.  Mr Johnston’s evidence is more logical and probable on this point.  Remembering of course that what happened on 18 June 2005 did not happen just in isolation.  There was the incident of 13 June 2005.  The prelude to 18 June 2005 also included Mr McDonald meeting with and taking some instruction from Human Resources as to how to conduct the second test.  If Mr Johnston was in fact just trying it on with Mr McDonald, he would have been easily found out.”

(u) With respect to the allegation that Mr Johnston lacked candour during the investigation, this could not be sustained because Mr Johnston did not abuse or intimidate Mr McDonald.  Therefore a denial by him of these matters could not constitute a lack of candour.  ([150])

(v) Mr Johnston clearly interfered with the duties of a supervisor under the D&A programme by removing Mr Fairbrass from site.  This point was conceded during the inquiry by Mr Johnston.  ([150])

(w) Mr Johnston overrode Mr McDonald’s wishes and duty in this regard, because Mr Fairbrass did not think he could have been held responsible for his actions if he had got into a vehicle with Mr McDonald.  The issue should have been resolved on site by referring the matter to higher supervision, which Mr Johnston attempted to do.  Despite this, Mr Fairbrass should not have been taken off site by Mr Johnston.  ([151])

(x) The other issue was whether Mr Johnston was entitled to represent Mr Fairbrass at the test.  The allegation of interference by Mr Johnston with a D&A test flows from this point.  ([152])

(y) In paragraph [152] the Commissioner set out the Issue Resolution Process, clause 23 of the award, which is as follows:-

“23. - ISSUE RESOLUTION PROCESS

(1)  An employee or employees who wish to raise a matter shall first discuss it with his/her/their direct supervisor as soon as is practicable.

(2) If those discussions do not result in a settlement the question, dispute or difficulty shall be referred to the next level of supervision. Discussions at this level will take place as soon as practicable.

(3) The terms of any agreed settlement shall be jointly recorded.

(4) Any settlement resolution reached which is contrary to the terms of this award shall have no effect unless and until that conflict is resolved to allow for it.

(5) Throughout all stages of the procedure all relevant facts shall be clearly identified and recorded.

(6) Each employee shall be entitled to union representation and assistance at each stage of this procedure. Any shop steward representing or assisting an employee shall be entitled to do so without loss of pay. Provided that if the union representative concerned is not a shop steward or official of the union of which the employee is or is eligible to be a member, then that union representative must be authorised in writing by that union to assist the employee.

(7) If a matter affects more than one employee, subject to the requirements of sub clause (6), the employees concerned have the right to have the matter dealt with, and be represented and assisted by shop stewards and the union in accordance with the procedure in this clause.

(8) Any question, dispute or difficulty not settled may be referred to the Commission provided that the persons involved in the question, dispute or difficulty have conferred amongst themselves and made reasonable attempts to resolve the question, dispute or difficulties before referring the matter to the Commission.”

(z) The incident on 18 June 2005 must be seen in the context of the incident of 13 June 2005.  The Commissioner accepted “that Mr Johnston sought to represent a member within the terms of the Issue Resolution Process.  The fact that the incident got out of hand is not, in my view, the fault of Mr Johnston and he cannot be blamed or accused of interfering with a D&A test or a supervisor’s responsibility”.  ([154])

(aa) Mr Johnston had a prominent role in Mr Fairbrass leaving the waiting room.  Mr McDonald’s actions when Mr Johnston entered the room to represent Mr Fairbrass were blunt or hostile.  The matter escalated from there.  Mr Johnston departed when he said Mr Fairbrass’ confidentiality of testing had been broken.  The Commissioner said “I am not clear as to how this is the case.  However, in the context of the denial by Mr McDonald of Mr Johnston’s right to represent Mr Fairbrass, and Mr McDonald’s refusal to obtain Mr Cooper’s assistance (or some [sic] else), I do not consider that Mr Johnston should be penalised for those actions”.  ([155])

(ab) There was an issue as to whether Mr Johnston should receive any penalty for breaching the policy and removing Mr Fairbrass from site.  Mr Johnston should not have taken Mr Fairbrass offsite.  Mr Johnston did ask Mr McDonald to get someone to sort out the problem.  Weighing all of the circumstances, Mr Johnston should be counselled for taking Mr Fairbrass offsite.  He knows he did the wrong thing.  A counselling note should be placed on his file.  ([156])

(ac) Having regard to the principles in the Undercliffe case, the Commissioner found that Mr Johnston’s dismissal was unfair.  ([157])

41      The Commissioner then went on to consider the issue of reinstatement and found that reinstatement was practicable and appropriate.  The Commissioner concluded that Mr Johnston should be reinstated within no longer than seven days of the date of the order without any loss of entitlement or service.

Principles in Deciding Appeal

42      The conclusion of the Commissioner that Mr Johnston was unfairly terminated from his employment and should be reinstated was a discretionary decision.  It was a decision which, in the circumstances of this case, involved the Commissioner considering and evaluating the evidence, including the conflicting evidence and making a determination about the seriousness of Mr Johnston’s conduct, and the consequences which ought to have followed from it.

43      There are limits upon which a discretionary decision may be set aside on appeal.  This is partly due to the nature of a discretionary decision, involving a decision-making process in which no one consideration and no combination of considerations is necessarily determinative of the result, so that the decision-maker is allowed some latitude as to the choice of decision to be made.  (See Coal and Allied Operations Pty Ltd v AIRC and Others (2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ at paragraph [19]).

44      The limits upon appellate intervention against a discretionary decision were considered by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 in the following passage which has been cited and quoted in numerous decisions of the Full Bench:-

“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.”

45      In this appeal it is also appropriate to bear in mind the observations made by the Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519-520, as follows:-

“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.  While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion.  When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.  Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

Ground 1

46      This ground directly challenges the Commissioner’s conclusion about whether the aspects of Mr Johnston’s conduct set out in the ground warranted dismissal.  Accordingly, the principles set out earlier about appellate intervention weigh heavily against the appellant.

47      The reasons of the Commissioner indicate that he gave consideration to Mr Johnston’s role and/or conduct in removing Mr Fairbrass from the care of supervision, from the D&A testing room and the site, in breach of the D&A programme, and contrary to the wishes of Mr McDonald.  This conduct, the circumstances surrounding the conduct, and the Commissioner’s evaluation of the seriousness of the conduct are set out in paragraphs [150]-[156] of the Commissioner’s reasons.  The Commissioner concluded that Mr Johnston should be counselled for taking Mr Fairbrass off site, but that his dismissal was, for all of the reasons he expressed, unfair.

48      Accordingly, I do not accept the appellant’s submission that the Commissioner failed to consider or properly consider the qualitative seriousness of Mr Johnston’s conduct.  The reasons of the Commissioner show, in my opinion, that the Commissioner carried out an evaluation of Mr Johnston’s conduct.  In my opinion, the assessment of the conduct made by the Commissioner was open to him on the evidence.

49      It was argued by the appellant that the statement made by the Commissioner which I have noted in paragraph [40](a) above, showed a misunderstanding by the Commissioner of the facts and issues of the case.  I do not accept this.  In my opinion, the Commissioner was entitled to express this view on the basis of the evidence and cases of the parties, as presented.  Additionally, the Commissioner was not under any procedural fairness duty to inform the parties of this part of his process of reasoning, prior to its revelation in the reasons for decision (cf VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at paragraph [43]).

50      Nor do I accept the appellant’s submission that the Commissioner’s reasons, expressly or implicitly, show that there was a misunderstanding of what an unfair dismissal is.  The Commissioner’s reference to the Undercliffe case, a leading authority in this State about the Commission’s unfair dismissal jurisdiction, supports this view.  The appellant referred to the decision of the Industrial Appeal Court in Amalgamated Metal Workers’ and Shipwrights Union of Western Australia v Robe River Iron Associates (1989) 69 WAIG 985 (IAC), and the reference by Kennedy J at 989 that the critical question is the industrial fairness of what the employer did in terminating employment.  In my view, the reasons of the Commissioner show that this was the very issue which the Commissioner considered.  In my opinion, the Commissioner did not err in his assessment of the industrial fairness of what occurred.

51      In its submissions, the appellant emphasised the importance of its D&A programme in the context of the inherently dangerous mining industry.  The importance of the programme is accepted.  However, the Commissioner at first instance referred to the submissions of the appellant’s counsel on this issue.  (See paragraph [85] of the Commissioner’s reasons).

52      The Commissioner also referred to the seriousness of insuring that a supervisor can properly perform his/her duties and responsibilities.  (See paragraph [143]).

53      Despite those important matters, it was necessary for the Commissioner to assess the conduct of Mr Johnston, in breach of the D&A programme.  This required an evaluation of the nature and extent of the breach of the programme and the circumstances surrounding the breach.  This was required to be done by the Commissioner to ascertain the industrial fairness of the termination of Mr Johnston’s employment.  In my opinion, this was done by the Commissioner in such a way which does not disclose appealable error.

54      It is true, as the appellant submitted, that Mr Johnston’s actions were deliberate, and, insofar as they involved the removal of Mr Fairbrass from the site, contrary to both the D&A programme and what was reasonable.  In my opinion, however, this did not lead to the conclusion that the Commissioner was bound to find that the termination of employment was not unfair.  In my opinion, Mr Johnston’s conduct was not such that the Commissioner was bound to find that he had evinced an intention to disregard the terms of the contract of employment sufficient to warrant dismissal.  (See Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287, cited by Kennedy J in Amalgamated Metal Workers’ and Shipwrights Union of Western Australia v Robe River Iron Associates at page 989).

55      In my opinion, ground 1 of the appeal should not be upheld.

Ground 3

56      I will deal with this ground next as it was argued by the appellant together with ground 1.

57      In this ground, the appellant asserts that the Commissioner erred in making or failing to make a number of findings which are set out in the ground.

58      Ground 3.1 asserts that the Commissioner erred in finding that Mr Johnston was entitled to represent Mr Fairbrass at the test pursuant to clause 23, the Issue Resolution Process, of the award.  The terms of clause 23 have been set out earlier.

59      I am not sure that the appellant is correct in asserting that the Commissioner made the finding complained of in this ground.  This is because at paragraph [154] the Commissioner accepted that Mr Johnston “sought to represent a member within the terms of the Issue Resolution Process”.  This sentence, in my view, directs attention to the intentions and beliefs of Mr Johnston about the representation of Mr Fairbrass within the Issue Resolution Process and thereby attending at the waiting room to represent Mr Fairbrass.  In my opinion, it was open for the Commissioner to find, on Mr Johnston’s evidence, that these were his intentions.  The Commissioner found at the same paragraph that the incident on 18 June 2005 needed to be seen in the context of the incident on 13 June 2005 involving Mr Fairbrass.  This conclusion was also clearly open to the Commissioner.  The Commissioner at the same paragraph made a finding that the fact that the incident got out of hand was not the fault of Mr Johnston and he could not be blamed for interfering with the D&A test or a supervisor’s responsibility.  These findings were open to the Commissioner, in my opinion, having seen and heard the witnesses give evidence and evaluated the content of their evidence.

60      I also do not think the respondent has established that Mr Johnston was not entitled to represent Mr Fairbrass that morning pursuant to the Issue Resolution Process, and, in particular, clause 23(6) of the award.  The appellant submits that the Issue Resolution Process had not been invoked at the relevant time.  However, the evidence was capable of establishing that the Issue Resolution Process had been invoked from the time of the incident on 13 June 2005 and that Mr Johnston’s involvement on 18 June 2005 was a continuation of that.

61      The appellant also submits there was no entitlement under the D&A programme for representation of “for cause” testing.  Reference is made to paragraph 6.3 of the document entitled BHP Iron Ore – Drug and Alcohol Programme, which was in evidence before the Commissioner.  This clause does not, however, clearly indicate that an employee in the circumstances of Mr Fairbrass was not entitled to union representation when there was an issue raised in relation to the non-testing on 13 June 2005.  In any event, in paragraph [154] of his reasons, as I have referred to, the Commissioner found that the fact that the incident got out of hand was not the fault of Mr Johnston.

62      In the next paragraph the Commissioner referred to Mr Johnston’s prominent role in Mr Fairbrass leaving the waiting room.  The Commissioner also referred to Mr McDonald’s blunt or hostile actions when Mr Johnston entered the waiting room and that the matter escalated from there.  The Commissioner said that, although it was not clear how Mr Fairbrass’ confidentiality of testing had been broken by the entrance of the contractors into the waiting room, in the context of the denial by Mr McDonald of Mr Johnston’s right to represent Mr Fairbrass, and Mr McDonald’s refusal to obtain Mr Cooper’s assistance, Mr Johnston should not be penalised for his actions in relation to Mr Fairbrass leaving the room.  In my opinion, these findings of fact and conclusions were open to the Commissioner on the evidence before him.  There is therefore no appealable error.

63      Ground 3.2 asserts the Commissioner erred in finding that Mr Johnston sought to represent Mr Fairbrass as a union member within the terms of the Issue Resolution Process.  In my opinion, this assertion does not raise any issues separate to ground 3.1 and discloses no appealable error.

64      Ground 3.3 asserts the Commissioner erred in finding that the letter dated 8 June 2005 by Mallesons Stephen Jacques, as solicitors for the appellant, that Mr Johnston sought to rely on, was relevant to union representation in this matter.  The reference by the Commissioner to the Mallesons’ letter was in paragraph [149] of his reasons.  This was immediately after the Commissioner’s conclusions about procedural fairness issues.  I have set out paragraph [149] in full above.

65      Following paragraph [149] the Commissioner dealt briefly with the issue of Mr Johnston’s alleged lack of candour during the investigation and then the issue of Mr Johnston’s interference with the duties of a supervisor.  The letter dated 8 June 2005 does not feature in any of the Commissioner’s reasoning about Mr Johnston’s interference with the test of Mr Fairbrass, failure to follow the instructions of a supervisor, and removal of Mr Fairbrass from site.  I do not think that the Commissioner relied on the contents of the letter dated 8 June 2005 in making the findings he did at paragraphs [150]-[156].

66      Additionally, I do not think the Commissioner made the finding attributed to him in this ground.  The Commissioner did not find that the Mallesons’ letter was “relevant to union representation in this matter”.  The finding of the Commissioner, included in paragraph [149], is simply that the letter was directly relevant to union representation of “for cause” testing.  This was not a finding that the letter was relevant to the representation by Mr Johnston in this matter.  The latter issue was considered separately by the Commissioner in paragraphs [150]-[154], as set out earlier.

67      I add the following about the Mallesons’ letter.  Although it had been referred to in the evidence before the Commissioner, the letter was not in evidence.  Neither were the contents of Commission file C32 of 2005.  Paragraph [149] of the Commissioner’s reasons indicate that the Commissioner examined file C32 of 2005 and looked at the contents of the Mallesons’ letter.  In my opinion, the Commissioner ought not to have taken this course, as the Mallesons’ letter was not in evidence.  If the Commissioner thought it relevant to have regard to the content of the Mallesons’ letter in file C32 of 2005, he ought to have informed the parties of his intention to take this course and allow the parties to make submissions on this issue.  This obligation arises out of s26(3) of the Act, and also the common law duties of procedural fairness.  Ordinarily, this would lead to an appeal being allowed, unless one can be satisfied that the relevant breach could not have affected the decision made (Stead v SGIC (1986) 161 CLR 141), or lead to no practical unfairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37]).  In relation to this ground of appeal, I am so satisfied.  This is because of the discrete reference to the contents of the Mallesons’ letter in paragraph [149], prior to the consideration by the Commissioner of the conduct of Mr Johnston in relation to the proposed testing of Mr Fairbrass, and his conduct thereafter, in paragraphs [150] and following of the reasons.  Not only did the Commissioner not refer to this letter in these paragraphs of the reasons, there is no suggestion that the earlier reference to it influenced the conclusions there reached.  Additionally, the reference by the Commissioner to the contents of the letter and that it was relevant to union representation of “for cause” testing in paragraph [149] of his reasons, is not disputed by the appellant.

68      In my opinion, ground 3.3 should not be upheld.

69      Ground 3.4 asserts that the Commissioner erred in finding that material before it in matter C32 of 2005 was relevant to the present matter, as the material in C32 of 2005 only relates to the D&A programme as sought to be amended by the appellant.  As set out above, the file in C32 of 2005 was referred to in paragraph [149] of the Commissioner’s reasons.  It was not referred to in paragraphs [150] and following, dealing with the issues which the appellant contests in the appeal.  The Commissioner specifically stated in paragraph [149] that C32 of 2005 concerned the implementation of the new D&A programme.  The Commissioner was therefore not under any misapprehension as to what matter C32 of 2005 was about.  In my opinion, the assertion contained in this ground that the Commissioner made a finding that material before the Commission in C32 of 2005 was relevant to the Commissioner’s findings about the actions of Mr Johnston in the waiting room and in removing Mr Fairbrass from the site, have not been established and this ground of appeal is not sustained.

70      Ground 3.5 asserts the Commissioner erred in failing to find that Mr Johnston’s actions in seeking to represent Mr Fairbrass at the test on 18 June 2005 interfered with the test Mr Fairbrass was required to take in relation to his return to work in accordance with the D&A programme.  In his reasons at paragraph [154] the Commissioner found that Mr Johnston could not be blamed for interfering with the D&A test or a supervisor’s responsibility.  In part this was because of the acceptance by the Commissioner of the evidence that Mr Johnston was seeking to represent a union member within the terms of the Issue Resolution Process.  I have referred to this issue earlier.  In my opinion, it was open to the Commissioner to make the finding which he did.  In the next paragraph, the Commissioner made the finding that Mr Johnston had a prominent role in Mr Fairbrass leaving the waiting room.  Again, however, the Commissioner concluded, in particular having regard to the actions of Mr McDonald when Mr Johnston entered the waiting room, that Mr Johnston should not be penalised for his actions in contributing to Mr Fairbrass leaving the waiting room.  Again, in my opinion, this conclusion was open to the Commissioner.  An appealable error has not been established.  The Commissioner, in my view, was entitled to make the findings he did and the evidence did not oblige him to make a finding in the terms asserted in this ground.  Alternatively and perhaps more importantly, even if such a finding were made, it would not lead inevitably to the conclusion that the dismissal was not unfair and that therefore the Commissioner’s discretion miscarried.

71      During the course of the hearing of the appeal the appellant submitted that Mr Johnston could not have genuinely believed Mr Fairbrass’ confidentiality was infringed by the presence of the two contractors in the waiting room.  This was not put to Mr Johnston at the hearing during his cross-examination.  Mr Johnston was cross-examined about the confidentiality issue at page 50 of the transcript.  During that questioning, Mr Johnston asserted that it was part of the confidentiality policy that there was to be one person in the waiting room at a time.  He said that he had raised this issue on a number of occasions.  He indicated that every time he had been for a test there had been only one person in the waiting room, except on one occasion, and that he had then raised it as an issue when it had occurred.

72      In my opinion, ground 3 of the appeal has not been established.

Ground 2

73      Ground 2.1 pleads that the Commissioner had no jurisdiction to stipulate that the penalty to be applied to Mr Johnston for breaching the D&A programme by taking Mr Fairbrass offsite was a counselling note.  The respondent concedes that the Commissioner did not have this jurisdiction and accepts that order 6 should be set aside.  Despite this concession, as this is an issue of jurisdiction, it is necessary for the Full Bench to consider and determine the matter for itself.

74      As set out earlier, the application to the Commissioner at first instance was an application for a conference pursuant to s44 of the Act.  The schedule to the application submitted that the termination of Mr Johnston’s employment was harsh, oppressive or unfair.  Section 23(3)(h) of the Act provides that:-

“The Commission in the exercise of the jurisdiction conferred on it by this Part shall not -

…

(h) on a claim of harsh, oppressive or unfair dismissal —

(i) in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and

(ii) in any other case, make any order except an order that is authorised by section 23A.”

75      In this matter, the application did claim harsh, oppressive or unfair dismissal under s44, and therefore s23(3)(h) limited the orders which could be made.  It limited the orders to those which could be made under s23A or s44 of the Act.  S23A does not provide jurisdiction to make any order of the type made by the Commissioner with respect to the counselling note.

76      With respect to the orders which could be made under s44 of the Act, s44(9) is relevant.  This provides:-

“Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.”

77      Accordingly, the Commissioner had jurisdiction to hear and determine the dispute which had not by then been settled by the parties.  As contained in the schedule to the Memorandum of the Commission dated 5 August 2005, that dispute was about the unfairness of Mr Johnston’s termination of employment, and whether he ought to be reinstated with consequential orders.  In my opinion, s44(9) of the Act and the Memorandum of Matters for Hearing and Determination did not provide the Commissioner with the jurisdiction to make order 6.

78      I note that s26(2) of the Act provides that in granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.  In my opinion, this general power is subject to the specific prescription of the jurisdiction and powers of the Commission when dealing with a claim for “unfair dismissal” as set out in s23(3)(h) of the Act.

79      It may be that an order of the type which was made could be within jurisdiction if the making of such an order was explicitly part of the dispute remaining for determination under s44(9) of the Act, following the conclusion of a conference.  Alternatively, if during the hearing of a dispute under s44(9), the issue of the making of such an order was raised by the parties or the Commission, the order could perhaps be made, by the Commission, in reliance upon s26(2).  Neither of the possibilities applied, however, in this case.

80      In my opinion, appeal ground 2.1 is established.  The consequence of this, however, is simply that order 6 of the orders made by the Commissioner at first instance is set aside.  It does not affect orders 1-5.

Ground 4

81      This ground calls into question order 5 of the orders made by the Commission.  That order was that Mr Johnston be paid for the period between his dismissal on 21 July 2005 and the date of his reinstatement as if he had been working during that period.  The appeal ground pleads that in making such an order the Commissioner failed to correctly interpret and apply s23A(5)(b) of the Act.  The appeal ground pleads the order should not have been made when Mr Johnston “made no endeavour to mitigate his loss as a result of the dismissal”.

82      An order under S23A(5) may only be made when the Commission is making an order under s23A(3) or s23A(4).  By these subsections, the Commission has power to order an employer to reinstate or re-employ an employee whose dismissal was harsh, oppressive or unfair.  S23A(5) provides that in addition to making such an order the Commission may 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.”

83      In making order 5, the Commission relied upon the jurisdiction and power granted by s23A(5)(b) of the Act.  In his reasons, the Commissioner did not analyse the requirements of s23A(5)(b), nor discuss the issue of mitigation of loss, the evidence before the Commissioner on the issue, and the other circumstances relevant to it.

84      In arguing this ground of appeal, the appellant acknowledges that it faces the difficulty of the previous decision of the Full Bench in Portilla v BHP Billiton Iron Ore Pty Ltd (2005) 147 IR 1.  In Portilla, in the joint reasons of Sharkey P and Kenner C at paragraph [206] it was said that there is in s23A(5)(b), “no requirement to mitigate loss where an order is made to the employer to pay to an employee “the remuneration lost or likely to have been lost by the employee because of the dismissal””.  Although Beech CC wrote separate reasons, there is nothing in those reasons to suggest any divergence from the views of Sharkey P and Kenner C on this issue.  To provide a little more context to the statement made by Sharkey P and Kenner C at paragraph [206] in Portilla, I will set out in full paragraphs [206] and [207] of their reasons as follows:-

“206 In our opinion, s23A(5)(a) and (b) orders are designed, unequivocally, to put an employee back in the position in which she or he would have been, had she or he not been unfairly dismissed, both by actual reinstatement or re-employment and/or by restoring the remuneration lost.  Such an order is very different from an order to pay compensation for loss caused by an unfair dismissal.  There is no requirement to mitigate loss where an order is made to the employer to pay to an employee “the remuneration lost or likely to have been lost by the employee because of the dismissal”.  Such an order is required by s23A(5)(b), in its actual words, to require the payment of the remuneration lost; that is, the actual remuneration lost or, alternatively, the remuneration which is likely to have been lost.  There is no requirement to mitigate or take any act of mitigation into account in the section, unlike s23A(7) which expressly requires mitigation to be taken into account in awarding an amount of compensation (see also the Workplace Relations Act 1996 (Cth), s170CH(1), (2) and (4)).

207 If we are wrong in that opinion, and the amount ordered to be paid under s23A(5)(b) of the Act constitutes compensation, then we would find fair compensation for loss during the time when Mr Portilla remained dismissed and was awaiting the outcome of proceedings was the whole amount of remuneration not paid to him (see the principles expressed in Growers Market Butchers v Backman (1999) 79 WAIG 1313 (FB)).”

85      If the above statements in Portilla are correct as a matter of law, there would have been no requirement for the Commissioner in this case to ascertain whether Mr Johnston had mitigated his loss.  The appellant submits that Portilla was wrongly decided.  The appellant submits that common law notions of mitigation of loss are imported into a consideration of whether a discretionary order of the type contained in s23A(5)(b) of the Act should be made, and, if so, the quantum of such an order.  The respondent submits, in effect, that Portilla was correctly decided.

86      Portilla is a relatively recent decision of the Full Bench of the Commission.  We were informed during the hearing of the appeal that although an appeal had been instituted against the decision of the Full Bench to the Industrial Appeal Court, the matter has now settled and the appeal is not proceeding.

87      In my view, although the Full Bench has the authority, as a matter of law and precedent, to review the correctness of its earlier decisions and make a decision contrary to an earlier decision, on matters of law, a Full Bench should be cautious in undertaking such an exercise.  This was the view taken, in joint reasons, by five Justices of the Court of Appeal of the Supreme Court of Western Australia, with respect to judgments of that court or a previous decision of the Full Court, in Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159 at [24]-[26].  In my view, the Full Bench ought to take a similar approach to its earlier decisions.  The reasons for this caution include matters of judicial comity and also to assist the predictability of outcome of proceedings before the Commission at both single Commissioner and Full Bench level.  (In the context of the Federal Court and the Federal Magistrate’s Court see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at [35]-[39]).

88      In exercising this type of caution, in my opinion, a review of the correctness of an earlier decision of the Full Bench, on a question of law, should ordinarily only take place where the question truly arises as a matter of law and fact in the case before the Full Bench.

89      In my opinion, this is not the appropriate occasion for the Full Bench to examine the correctness of the decision in Portilla.  This is because, in my view, even if the Commissioner was obliged to consider whether Mr Johnston had mitigated his loss as part of the determination of whether, and, if so, what order he should make under s23A(5)(b) of the Act,  it would have made no difference to the order made.  This was because, in all the circumstances, the respondent did not establish that there was such a failure to mitigate loss such as would impact upon the order which the Commissioner made.  (The appellant conceded that if mitigation of loss was a relevant consideration for the purposes of s23A(5)(b), the employer bore the onus of establishing that there had been a failure to reasonably mitigate loss; see Growers Market Butchers v Backman (1999) 79 WAIG 1313 at 1316).

90      The opinion expressed in the previous paragraph is based upon the circumstances within which the present litigation took place and the evidence which was given at the hearing.

91      Mr Johnston was terminated from his employment on 21 July 2005.  The notice of application to the Commission, calling into question the fairness of the termination and seeking the assistance of the Commission to resolve the matter, was filed on 22 July 2005.  The application was the subject of a conference before the Commission until the certification by the Commissioner on 5 August 2005 that the matter had not been settled by agreement between the parties.  Part of the schedule to the Memorandum of Matters for Hearing and Determination was that the respondent sought an order from the Commission reinstating Mr Johnston’s employment without loss of entitlements.  On the same date, that is 5 August 2005, the Commission issued a notice to the parties that the matter was set down for hearing at Newman between 5-7 September 2005.  These dates were only about 7 weeks after Mr Johnston’s dismissal.

92      As discussed with the parties during the hearing of the appeal, prior to the hearing of the application at first instance the respondent sought an interim order from the Commission that the appellant maintain Mr Johnston’s income pending the hearing of the substantive application, pursuant to s44(6)(bb)(ii) of the Act.  That application was heard by the Commission on 12 August 2005.  Prior to the hearing of the application, the appellant filed written submissions opposing the making of such an order.  In paragraphs [8] and [9] of the written submissions it was asserted that on termination of Mr Johnston’s employment he “received a payment of $18,580.51 net after tax.  This equates to over three months usual earnings for Mr Johnston”.  It was therefore submitted that there could be no suggestion that Mr Johnston will be unable to maintain a reasonable standard of living pending the hearing and determination of the matter.  The submission referred to the fact that the application had been set down for hearing on 5-7 September 2005.

93      During the hearing of the appeal we were informed that the statement contained in the written submissions made to the Commission about the payment made to Mr Johnston was incorrect.  We were informed that the true position was that the appellant had been prepared to pay this amount to Mr Johnston upon him signing termination papers, but that Mr Johnston had not agreed to do this and therefore the amount had not been paid to Mr Johnston.  Counsel for the respondent confirmed that this was the case, although it was submitted that if Mr Johnston was entitled to the amount referred to, in accordance with the provisions of the award, it was difficult to see how the payment could be withheld simply because Mr Johnston had failed to sign termination papers.  Be that as it may, the incorrect statement should not have been made to the Commission in the written submissions.  It has not been satisfactorily explained to the Full Bench why this occurred.

94      Furthermore, this information was referred to by the Commissioner in hearing the income maintenance application on 12 August 2005 and relied on by him.  If counsel then appearing were aware that the Commissioner was relying upon an incorrect statement of the facts, as asserted in the appellant’s written submissions, then counsel should have corrected the position.

95      Relevantly, in my view, to the question of mitigation are the observations made by the Commissioner in deciding the income maintenance application, at pages 3-4 of the transcript at first instance (T), as follows:-

“In respect of income maintenance, I've sought, as I indicated at conference, to list this matter as a matter of some priority and the matter is listed.  I note from the submissions that Mr Johnson's termination I think is on the 21st of July or thereabouts, and he is said to have been given notice and payments that would take him some - - in excess of 3 months, I'm not quite sure whether it's just over, but - - or more.  I would - - the hearing in which case will be during that period of payment, and I will certainly undertake to give a decision on this as a matter of urgency as well.  That should mean that I'm in a position whereby there is, in fact, no income loss before I've had to determine the key issue; and that is whether the termination is unfair or otherwise.  On that basis, then, I wouldn't seek to issue an order for income maintenance.”

96     The position therefore was that the appellant terminated Mr Johnston’s employment on 21 July 2005.  The next day his union by application sought the assistance of the Commission to resolve the dispute arising out of the termination of his employment.  A conference conducted by the Commission was unable to resolve the dispute, and on 5 August 2005 the Commission as a priority listed the matter for hearing on 5-7 September 2005 at Newman.  On 12 August 2005 the Commissioner said that he would give a decision on the substantive application, after it was heard, as a matter of urgency.

97      In those circumstances, and, in particular given Mr Johnston’s position, I do not think it was unreasonable for him to not actively seek alternative employment, pending the decision of the Commissioner.  By referring to Mr Johnston’s position, I am referring to his evidence that he was 46 years of age and lived with his partner in Newman.  He has three children aged 13, 11 and 7.  He had lived in Newman for 20 years, had been working for BHP since 26 June 1985, and had been involved with the respondent union for about 18½ years and for the overwhelming majority of that time, he has been a union representative as a shop steward, deputy convenor or convenor (T23).

98      The other evidence at the hearing relevant to mitigation was as follows.  Towards the end of his examination in chief, Mr Johnston was asked if he had been doing any work since his termination of employment.  Mr Johnston answered “Housework”.  Counsel then said “So you’ve been a house person, have you?”  Mr Johnston answered “I’ve been continuing my role as a union official.  And that’s basically it”.  Mr Johnston said that he had not sought paid work, but volunteered that he had been offered work in Perth, but not in Newman.  In cross-examination, Mr Johnston was asked about the work he had been offered in Perth.  Mr Johnston said that it was as a union official with the “AWU”.  Mr Johnston said that terms were not discussed and he did not have any indication of how much money was on offer.  Mr Johnston said that he had been approached by somebody from the AWU and asked whether he would be interested and that Mr Johnston had replied that he was not interested.

99      In my opinion, Mr Johnston, acting reasonably, was not required to take or pursue employment in Perth, given the length both of his residence in Newman and employment with the appellant, the fact that he was seeking a reinstatement order and the early determination of his application by the Commission.  In addition, having regard to the history of the proceedings and the undertaking by the Commission to provide an urgent decision, Mr Johnston was not acting unreasonably in failing to actively pursue alternative employment in and around Newman.

100   Accordingly, if mitigation of loss was an issue, in my opinion, the respondent did not establish that Mr Johnston had failed to act reasonably to mitigate his loss.  In saying this I also note that the respondent did not adduce or lead any evidence or make submissions upon what alternative employment could have been taken in or around Newman, when this could reasonably have been secured, and how much Mr Johnston could have earned if he had taken such employment.  Information on these issues would often be necessary before the Commissioner could further analyse the question of mitigation and quantify the extent to which any failure by Mr Johnston to mitigate his loss affected the extent of the loss caused by his dismissal from employment by the  appellant, for the purposes of s23A(5)(b) of the Act.

101   When the issue of the reasonableness of Mr Johnston’s conduct was discussed with counsel for the appellant during the course of the hearing of the appeal, counsel referred to the statement by Sharkey P in the Growers Market Butchers case at page 1316 that the duty to mitigate loss in claims of unfair dismissal in practical terms requires the employee to diligently seek suitable alternative employment.  At that point, Sharkey P made reference to Brace v Calder and Others [1895] 2 QB 253.  In my view, however, this observation made by Sharkey P in the Growers Market Butchers case does not mean that in every case it will be unreasonable for a dismissed employee to do other than immediately set about the task of obtaining alternative employment.  The observation made by Sharkey P is, in my opinion, simply a manifestation of what in many if not most cases would be the reasonable course required of a dismissed employee.  In my opinion, the reasonableness of the conduct, overall, remains the touchstone of whether mitigation of loss has occurred.  This view is reinforced by a later paragraph in the reasons of Sharkey P in Growers Market Butchers case at page 1316 where His Honour said:  “The obligation to mitigate loss is an obligation to act reasonably in the mitigation of loss but not an obligation which a reasonable and prudent person would not undertake”.  Some examples of this are then provided.

102   Additionally, I note that the Full Bench of the Australian Industrial Relations Commission in Biviano v Suji Kim Collection, 28 March 2002, PR915963 at [52] said that to avoid a reduction in damages a plaintiff must take reasonable steps to minimise the effect of a termination of contract.  This is in line with the view I have expressed above.

103   In any event, diligence is an evaluative concept which cannot be divorced from the facts and circumstances of the particular case.

104   I also add that Brace v Calder is not an authority which, in my view, lends happily to the statement about diligently seeking alternative employment, at least in unfair dismissal cases.  Brace v Calder was a common law breach of employment contract case.  The plaintiff was employed by a partnership, under a contract for a term of two years.  Before that period expired, the partnership dissolved by the retirement of two of the four partners, with the other two partners continuing to carry on business.  Those parties offered the plaintiff employment with their partnership for the remainder of the two year term, on the same remuneration and terms as previously existed.  The plaintiff did not accept this offer.  A majority of the Court of Appeal decided that, although there had been a breach of contact, only nominal damages would be awarded.  This was because, in declining the new offer of employment, “it was his own fault that he suffered any loss” (per Lopes LJ at page 261).  Rigby LJ at page 263 said the “defendants are entitled in mitigation of damages to put forward the offer of an engagement on the same terms made by the continuing partners”, and in effect agreed no loss had been suffered.  The reasons of the members of the Court of Appeal do not mention diligently “seeking” alternative employment as a matter relevant to mitigation.

105   For the above reasons, in my opinion, even if the Commission were required to assess the issue of mitigation of loss in deciding whether and what order to make under s23A(5)(b) of the Act, in this instance, the appellant did not establish any reasonable failure to mitigate loss by Mr Johnston such as would cause the Commission to vary order 5 at first instance.

106   In partial difference to the substantial written and oral submissions of the appellant on the issue of mitigation, I make the following additional observations.

107   Whether the issue of mitigation of loss has any role to play in the assessment of the making of an order under s23A(5)(b) of the Act must depend upon the statutory language used.  In particular, the precise terms of s23A(5)(b) and s23A as a whole.

108   Within this context, s23A(7) provides an argument against the submissions of the appellant.  S23A(7) provides, amongst other things, that in deciding an amount of compensation for the purposes of making a compensation order, where reinstatement or re-employment is impracticable, the Commission is to have regard to the efforts of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal.  The argument is that if mitigation of loss was a factor which the Commission was required to take into account for the purpose of making an order under s23A(5)(b), this would have been specifically set out, as was the case with respect to s23A(7).  Whilst noting this argument, in my opinion, it is not necessarily decisive of the issue.

109   This is because the language used in s23A(5)(b) of the Act may itself involve the requirement to assess mitigation of loss.  One issue which the Commission has to determine in making an order under s23A(5)(b) is whether there has been loss “by the employee because of the dismissal”.  In a case where there had been a failure to take reasonable steps to mitigate loss, it could be argued that all or part of the loss suffered by the employee, was not “because of the dismissal”, for the purposes of s23A(5)(b) of the Act.  In this context, notions developed in the common law or in considering other statutory provisions as to when remuneration can be said to be lost because of a dismissal, may be relevant.  I note relevantly, there is a body of authority to support the proposition that where a wronged party has failed to mitigate their loss, the total loss they have suffered has not been caused by the wrongdoer.  (See Biviano, Sotiros Shipping Inc and AECO Maritime SA v Sameiet Solholt (The Solholt) [1983] 1 Lloyd’s Law Reports 605 at 608, Mann Judd (A Firm) v Paper Sales Australia (WA) Pty Ltd and Others [1998] WASCA 268, Standard Chartered Bank v Pakistan National Shipping Corporation and Others [2001] 1 All ER Comm 822 at [38]-[41] and Westen v Union des Assurances de Paris, IRCA, 28 August 1996, 960419).

110   If this is correct, then issues of mitigation will be relevant to determining whether a loss suffered is “because of the dismissal”.  In an appropriate case, the Commissioner would need to evaluate whether a quantified loss was because of the dismissal or, at least to some quantifiable extent, the result of the employee failing to take reasonable steps to minimise his loss.  If so, there would be a reduction in the amount ordered to be paid to the employee.

111   In this appeal however, for the reasons earlier set out, in my opinion, ground 4 has not been established, and order 5 made by the Commission at first instance should remain.

Conclusion

112   For the reasons set out above, in my opinion, only ground 2 of the appeal has been established.  As stated earlier, this has the effect that order 6 made by the Commission at first instance should be set aside leaving intact the other orders made.  Accordingly, in my opinion the following orders should be made by the Full Bench:-

1. The appeal is allowed in part.

2. Order 6 made by the Commission on 3 October 2005 is set aside.

3. The appeal is otherwise dismissed.

CHIEF COMMISSIONER A R BEECH: 

113   I have had the advantage of reading in draft form the Reasons for Decision of his Honour.  I agree with his Honour’s Reasons and the orders proposed.  I wish to add the following comments in so doing.  The reasons why the appellant dismissed Mr Johnston are set out in his letter of termination (AB 165).  The reasons specified included the appellant’s finding that Mr Johnston abused and intimidated the Assistant Mining Superintendent.  The Commissioner at first instance found that that conduct was not made out on the evidence.  This was not challenged on appeal.  It therefore cannot stand as justification for his dismissal. 

114   The appellant also found that Mr Johnston had unreasonably and unjustifiably interfered with the drug and alcohol test and failed to comply with a lawful instruction to leave the testing location.  As to the first part of that sentence, the Commission at first instance find that was not made out on the evidence.  The appellant submits that the Commission at first instance was in error in so finding; however, for the reasons set out by his Honour, the appellant’s submission fails.  Accordingly that also lapses as justification for Mr Johnston’s dismissal.

115   The second part of that sentence was at least partly made out on the evidence before the Commission at first instance. 

116   The final stated reason why the appellant dismissed Mr Johnston is the appellant’s finding that Mr Johnston lacked candour in responding to questions in the investigation.  The Commission at first instance found that this was not made out on the evidence.  This was not challenged on appeal, and it too cannot stand as justification for the dismissal.

117   I note the letter of dismissal includes a "catch all" phrase stating: "In all the circumstances, including those referred to above …".  However, it is not appropriate in a letter of dismissal for either its recipient, or this Full Bench, to have to guess what is encompassed by those words.  They add little to the appellant’s position for the reasons set out by his Honour.

118   Therefore, of the perhaps four specified reasons for Mr Johnston’s dismissal, part only of one reason was made out on the evidence before the Commission at first instance.  That fact alone places the appellant in a very difficult position in seeking to persuade the Full Bench that the Commission was in error in finding that Mr Johnston’s dismissal for all the specified reasons was unfair.  Putting it at its best from the appellant’s perspective, if Mr Johnston’s failure to comply with a lawful instruction to leave the testing location encompassed leaving the site with Mr Fairbrass, the appellant goes too far in its submission that this conduct alone justified the dismissal of Mr Johnston.

119   It is notorious, as the appellant itself recognises, that not all misconduct justifies dismissal.   The appellant’s drug and alcohol programme is undoubtedly a serious policy (as the decision of the Commission in Court Session which approved the drug and alcohol policy makes clear: BHP Iron Ore Pty Ltd v. CMETSWU (1998) 78 WAIG 2593).  However, it is not the case that every breach of a serious policy is necessarily itself serious.  There is much in the submission of Mr Schapper that the breach in this case was a breach of form and not substance.  The policy provides on page 10 (AB137) under the heading "Handling Positive Results" that the employee is to be transported home by the employee’s supervision and that this role cannot be delegated.  This is said to be part of the appellant’s duty of care towards its employees.  In this case, Mr Fairbrass had not returned a positive result; rather, he had not taken the test; and although the supervisor did not take Mr Fairbrass home, there is no suggestion that some incident occurred when Mr Johnston took Mr Fairbrass home which was a consequence of the appellant being in breach of its duty of care.  The appellant suffered no detriment from Mr Johnston’s actions.  Neither did Mr Fairbrass, he having requested Mr Johnston to take him home.  Thus, while the drug and alcohol policy is a serious policy, the breach of it was not a serious breach.  Far from warranting dismissal, there is much to be said for the Commissioner’s own finding that counselling was appropriate. 

120   I agree entirely with the comments of his Honour in relation to ground 4.  Whether the reasoning of Sharkey P and Kenner C, my colleagues with me on the Full Bench in Portilla, is or is not correct is a matter which ought be considered by a Full Bench when the facts of the appeal reveal section 23A(5)(b) as a central matter and where a Full Bench receives full submissions on the meaning of section 23A(5)(b) of the Act, a circumstance which did not occur in Portilla.  That is not the case here.  On the facts of this appeal, even if the reasoning is not correct, for the reasons given by his Honour Mr Johnston did not fail to mitigate his loss and the point is more of a moot point.

SENIOR COMMISSIONER J F GREGOR:

121   I have read the Reasons for Decision of His Honour the Acting President.  I agree with the conclusions reached and the Orders proposed by him.