2025 WAIRC 00014

[2024] WASCA 167

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION : FAGAN -v- MINISTER FOR CORRECTIVE SERVICES [2024] WASCA 167

CORAM : BUSS J
SEAWARD J
SMITH AUJ

HEARD : 21 OCTOBER 2024

DELIVERED : 21 OCTOBER 2024

PUBLISHED : 7 JANUARY 2025

FILE NO/S : IAC 1 of 2024

BETWEEN : PENELOPE ANNE FAGAN
Appellant

AND

MINISTER FOR CORRECTIVE SERVICES
Respondent



ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : S J KENNER, CHIEF COMMISSIONER
C TSANG, COMMISSIONER
T KUCERA, COMMISSIONER
Citation : 2023 WAIRC 00984
File Number : FBA 3 OF 2023



Catchwords:

Industrial law - Industrial Appeal Court - Appeal from Full Bench of Western Australian Industrial Relations Commission - Full Bench varied a decision of a Commissioner that a prison officer was unfairly dismissed - Whether the Full Bench erroneously construed s 26(1)(a) or s 26(1)(b) of the Industrial Relations Act 1979 (WA) - No error evident - Jurisdiction of the Industrial Appeal Court not enlivened to entertain the appeal

Industrial law - Section 26(1)(a) and s 26(1)(b) of the Industrial Relations Act do not confer jurisdiction on the Commission - Meaning of the words 'according to equity, good conscience, and the substantial merits of the case' in s 26(1)(a) of the Industrial Relations Act considered

Industrial law - Application of substantive rules of law and the doctrine of precedent to the determination of applications referred under s 29(1)(b) of the Industrial Relations Act alleging that a dismissal was harsh, oppressive and unfair considered

Legislation:

Industrial Relations Act 1979 (WA), s 26(1)(a), s 26(1)(b), s 90(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant
:
T J Hammond SC & D Stojanoski
Respondent
:
J M Misso & Z R Clifford

Solicitors:

Appellant
:
Slater & Gordon
Respondent
:
State Solicitor's Office (WA)

Case(s) referred to in decision(s):


Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
AWU v Poon Bros (WA) Pty Ltd (1983) 4 IR 394
BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191; (2002) 115 IR 430
Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Coles Myer Ltd v Coppin (1993) 11 WAR 20
Director General, Department of Education v United Voice WA [2015] WASCA 195
Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36
Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) [2006] SASC 23; (2006) 94 SASR 126
Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852
Helm v Hansley Holdings Pty Ltd (in liq) [1999] WASCA 71
House v King (1936 ) 55 CLR 499
Hyde v Serco Australia Pty Ltd [2018] FWCFB 3989
Jetstar Airways Pty Ltd v NeetesonLemkes [2013] FWCFB 9075
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186
Matthews v Cool or Cozy Pty Ltd [2004] WASCA 114
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v War Pensions Entitlements Tribunal; Ex parte Bott (1933) 50 CLR 228
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77
United Construction Pty Ltd v Birighitti [2003] WASCA 24
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446


Page 1
[2024] WASCA 167
BUSS J
BUSS J:

1 The appellant (Ms Fagan) purported to appeal to this court pursuant to s 90(1) of the Industrial Relations Act 1979 (WA) (the IR Act) against a decision of the Full Bench of the Western Australian Industrial Relations Commission (the Full Bench) which allowed the present respondent's (the Minister's) appeal against a decision of Cosentino SC.
2 On 21 October 2024, this court heard Ms Fagan's purported appeal. During the hearing the court granted Ms Fagan leave to amend ground of appeal 1. At the conclusion of the hearing, the court dismissed the appeal on the basis that the court did not have jurisdiction to entertain either of Ms Fagan's grounds of appeal. The court said that it would publish reasons for dismissing the appeal at a later date. These are my reasons for joining in the making of the order dismissing the appeal.
Background facts
3 Ms Fagan was engaged as a prison officer pursuant to s 13 of the Prisons Act 1981 (WA).
4 On 29 March 2018, Ms Fagan entered into a contract of employment as a drug detection officer with the Minister. Ms Fagan's employment involved detecting and preventing drugs and other contraband from entering the Bunbury Regional Prison. Her duties included conducting searches of prisoners, visitors, the prison premises and property.
5 On 12 November 2021, the Chief Health Officer of Western Australia made the WA Correctional Facility Entrant (Restrictions on Access) Directions (CHO Direction) under powers conferred by the Public Health Act 2016 (WA).
6 On 15 November 2021, the Director General of the Department of Justice issued a direction (Employer Direction) requiring all employees who, as part of their employment, had to access prisons, workcamps, the detention centre or the Corrective Services Academy to be vaccinated against COVID19 and to provide evidence of their vaccination.
7 Ms Fagan refused to comply with the CHO Direction and the Employer Direction that she be vaccinated against COVID19.
8 A decision was made to deal with Ms Fagan's breach of discipline, in refusing to comply with the CHO Direction and the Employer Direction, pursuant to pt 5, div 3 of the Public Sector Management Act 1994 (WA) (PSM Act).
9 On 26 May 2022, Ms Fagan was dismissed from her employment in the Public Sector because of her refusal to comply with the CHO Direction and the Employer Direction that she be vaccinated against COVID19.
10 The decision to dismiss Ms Fagan from her employment was made pursuant to pt 5, div 3 of the PSM Act; in particular, pursuant to s 82A(3)(b) read with s 80A.
11 On or about 1 June 2022, the Government of Western Australia announced publicly that some public health directions relating to vaccination against COVID19 would be revoked.
12 On or about 10 June 2022, the CHO Direction and the Employer Direction were revoked.
The proceedings before Cosentino SC
13 On 15 August 2022, Ms Fagan made an application under s 78(2) of the PSM Act.
14 Section 78(2) of the PSM Act provides, relevantly, that despite s 29 of the IR Act, an employee or former employee who is not a Government officer within the meaning of s 80C of the IR Act and who is aggrieved by a decision to take disciplinary action made under s 82A(3)(b) of the PSM Act may refer the decision to the Commission 'as if that decision … were an industrial matter mentioned in section 29(b) [sic: s 29(1)(b)] of [the IR Act], and that Act applies to and in relation to that decision accordingly'.
15 Ms Fagan alleged in her application under s 78(2) of the PSM Act that her dismissal was harsh, oppressive and unfair.
16 On 29 May 2023, there was a contested hearing before Cosentino SC of Ms Fagan's application. Ms Fagan and Penelope Beere gave evidence.
17 Ms Beere worked as a security intelligence officer at Bunbury Regional Prison. Like Ms Fagan, Ms Beere had refused to comply with a direction to be vaccinated against COVID19. On 22 February 2023, Ms Beere was reprimanded because of her refusal to comply with the direction.
18 The Senior Commissioner said in her reasons for decision that Ms Beere was a proper comparator for the purpose of determining if a disparity of treatment, as between Ms Fagan and Ms Beere, rendered Ms Fagan's dismissal unfair.
19 The Senior Commissioner found that there was a valid reason for Ms Fagan's dismissal, but concluded that, when compared with Ms Beere's treatment, her dismissal was unfair.
20 On 14 June 2023, the Senior Commissioner ordered the Minister to reinstate Ms Fagan to her former position as a drug detection officer at the Bunbury Regional Prison.
The proceedings before the Full Bench
21 The Minister appealed to the Full Bench against Cosentino SC's order that the Minister reinstate Ms Fagan.
22 The Minister relied upon a number of grounds including, in essence, that the Senior Commissioner erred in concluding that Ms Fagan was unfairly dismissed in that:
(a) the Senior Commissioner took into account an irrelevant consideration, namely facts and circumstances that had occurred after the date of Ms Fagan's dismissal, when no matter arising after that date could be relevant to whether the dismissal was unfair (ground 1); and
(b) the Senior Commissioner relied upon a finding that was legally unreasonable, namely that Ms Beere was a relevant comparator (ground 3).
23 In the Full Bench, Kucera C (Kenner CC and Tsang C agreeing) set out the test to be applied where it is alleged that an employee's dismissal was harsh, oppressive or unfair, as follows [60]  [64]:
At first instance, the Senior Commissioner correctly identified at [16] the test to be applied was to assess whether [Ms Fagan] was harshly, oppressively, or unfairly dismissed from her employment.
It is well established this test focuses on whether the right of the employer to dismiss an employee was exercised so harshly or oppressively, so as to constitute an abuse of that right: The Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385 at 386.
In Hoogland v NL Tucker & Associates Pty Ltd (1999) 79 WAIG 3084, Kenner C noted the approach to be taken by the Commission when applying this test, is not to assume the role of the manager but to consider the dismissal objectively and in accordance with the obligations imposed on the Commission pursuant to ss 26(1)(a) and 26(1)(c) of the IR Act.
Kenner C in Hoogland at 3085 also observed the practical realities of the workplace need to be considered and that a commonsense application of the statutory provisions under the IR Act should be adopted.
Inconsistency in the treatment of employees where one is dismissed for misconduct and the other is not, may render a dismissal harsh, oppressive, or unfair: see CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787 (FB) per Sharkey P and Coleman CC, also see Portilla [111].
24 Kucera C then explained that in deciding whether the dismissal of an employee was harsh, oppressive or unfair, the facts that are relevant in making that determination must have existed at the time of the dismissal [65]:
When determining whether a dismissal was harsh, oppressive, or unfair, it is well established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of the dismissal: Lane v Arrowcrest Group Pty Ltd (t/a Roh Alloy Wheels) (1990) 27 FCR 427 per Von Doussa J at 456; Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 (Brennan CJ, Dawson and Toohey JJ) at 430; and Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (McLauchlan) at 9 - 10.
25 After referring to a number of other cases, including Jetstar Airways Pty Ltd v NeetesonLemkes Jetstar Airways Pty Ltd v NeetesonLemkes [2013] FWCFB 9075.
and Hyde v Serco Australia Pty Ltd, Hyde v Serco Australia Pty Ltd [2018] FWCFB 3989.
Kucera C said [78]:
Noting the authorities referred to, the correct approach to be followed as a matter of principle, is that when assessing whether an employer has exercised its right to dismiss harshly, oppressively, or unfairly, the focus of the Commission’s inquiry must be directed to the facts or circumstances that were in existence at the time of the dismissal.
26 As to ground 1, Kucera C noted that the disciplinary outcome that was applied to Ms Beere occurred about nine months after Ms Fagan's dismissal [82].
27 The Commissioner said that, for the disciplinary outcome that was applied to Ms Beere to be relevant to the disciplinary outcome that was applied to Ms Fagan, it was necessary for the Minister to have known, when or immediately before Ms Fagan was dismissed, that the CHO Direction and the Employer Direction were about to be revoked. The Commissioner found that there was no evidence that the Minister had that knowledge [83].
28 The Commissioner also said:
(a) there was nothing that required the Minister to deal simultaneously with all of the disciplinary matters involving employees who had refused to be vaccinated [86]; and
(b) the Minister may have delivered more lenient outcomes in disciplinary cases involving employees who had refused to be vaccinated where those cases, like Ms Beere's, were concluded after the CHO Direction and the Employer Direction were revoked [89].
29 Kucera C concluded at [92] that Cosentino SC had erred by having regard to the outcome in Ms Beere's disciplinary matter and consequently that ground 1 had been made out.
30 As to ground 3, Kucera C reiterated that it is well established that [96]:
(a) a disparity in the treatment of employees by an employer may render a dismissal unfair; and
(b) where a disparity in treatment is alleged, it is necessary to compare like with like or 'apples with apples' to ensure a true comparison is made.
31 The Commissioner made the following observations about the difficulty in using Ms Beere as a comparator [105]  [111]:
(a) The roles in which Ms Fagan and Ms Beere were employed were materially different. Ms Fagan was the only drug detection officer at the Bunbury Regional Prison. Her role was critical to the safety and security of the prison. By contrast, Ms Beere was a security intelligence officer. She was not required to interact with prisoners. Ms Beere's role was mainly computerbased and could have been performed at a location remote from the Bunbury Regional Prison.
(b) Although Ms Beere was based at the Bunbury Regional Prison, she was employed by a different public sector employer from Ms Fagan. Ms Fagan was subject to a different statutory framework. The potential consequences for prison officers if they refused to follow reasonable and lawful directions may be different from the potential consequences for other public sector employees.
32 The Commissioner was of the opinion that the employees with whom Ms Fagan should have been compared were those who performed the same or similar work and who were subject to the same statutory framework [112]. When compared with those employees, Ms Fagan's treatment was the same and, consequently, was not unfair [113].
33 Kucera C was satisfied that ground 3 had been made out.
34 It was unnecessary for the Full Bench to deal with the other grounds of appeal against the decision of Consentino SC.
Section 90(1) of the IR Act
35 Section 90(1) of the IR Act provides, relevantly:
… an appeal lies to the Court in the manner prescribed from any decision of the Full Bench … —
(a) …; or
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act … in the course of making the decision appealed against; or
(c) …
but upon no other ground.
36 Ms Fagan relied solely upon s 90(1)(b) to enliven this court's jurisdiction to entertain her appeal.
37 The relevant decision of the Full Bench, for the purposes of s 90(1), was its decision that the termination of Ms Fagan's employment was not unfair.
Ms Fagan's grounds of appeal to this court
38 Ms Fagan relied upon two grounds in her appeal to this court.
39 Ground 1, as amended at the hearing of the appeal, alleged, in essence, that in determining whether Ms Fagan was unfairly dismissed, the Full Bench erred in law in finding that the disciplinary outcome that was applied to Ms Beere was irrelevant.
40 Ground 2 alleged, in essence, that in determining whether Ms Fagan was unfairly dismissed, the Full Bench erred in law 'and contrary to s 26(1)(a) of the IR Act' in that the Full Bench's finding that the disciplinary outcome that was applied to Ms Beere was irrelevant, was 'illogical, irrational or lacked a basis' because the Full Bench failed 'to have regard to (or deal … at all) [with] the inconsistencies in the treatment between Ms Beere and [Ms Fagan]'.
Ms Fagan's contentions in relation to the Full Bench's alleged errors in the construction or interpretation of s 26(1)(a) and s 26(1)(b) of the IR Act
41 At the hearing of the appeal, counsel for Ms Fagan explained that Ms Fagan's contention, in the context of ground 1, was that in the course of making its decision that Ms Fagan's dismissal was not unfair, the Full Bench misconstrued or misinterpreted s 26(1)(b) of the IR Act (appeal ts 80, 86).
42 At the hearing of the appeal, counsel for Ms Fagan explained that Ms Fagan's contention, in the context of ground 2, was that in the course of making its decision that Ms Fagan's dismissal was not unfair, the Full Bench misconstrued or misinterpreted s 26(1)(a) of the IR Act (appeal ts 88).
Section 26(1)(a) and s 26(1)(b) and other relevant provisions of the IR Act
43 Section 26(1) of the IR Act provides, relevantly:
In the exercise of its jurisdiction under this Act the Commission —
(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and
(b) must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; …
44 Section 7(1) of the IR Act provides, relevantly, that in the Act, unless the contrary intention appears:
(a) 'Commission' means 'the body continued and constituted under this Act under the name of The Western Australian Industrial Relations Commission'; and
(b) 'Full Bench' means 'the Commission constituted as provided by section 15(1)'.
45 Section 12(1) of the IR Act provides, relevantly, that the Commission is a court of record.
46 Section 15(1) of the IR Act provides that the Full Bench is to be constituted by three commissioners, at least one of whom must be the Chief Commissioner or the Senior Commissioner, sitting or acting together.
47 Section 23 of the IR Act is concerned with the jurisdiction of the Commission. Section 23(1) provides that, subject to the Act, the Commission has cognizance of and authority to enquire into and deal with any 'industrial matter'. The term 'industrial matter' is defined in s 7(1) to mean 'any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee in the industry' and, without limiting the generality of that meaning, includes 'any matter affecting or relating or pertaining to' numerous matters specified in the definition. Section 22A of the IR Act provides that in specified divisions of pt II of the Act (including in div 2, which comprises s 22A to s 36) the term 'industrial matter' does not include a matter in respect of which, subject to div 3, a 'constituent authority' (as defined in s 7(1)) has exclusive jurisdiction under the Act.
48 Section 23A(1) of the IR Act provides that the Commission may make an order under s 23A if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair. The orders that the Commission may make under s 23A include an order under s 23A(3) that the employer reinstate the employee to the employee's former position and an order under s 23A(5)(b) that the employer pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.
49 Section 27 of the IR Act specifies the powers of the Commission in relation to any matter before it. The powers are numerous and broad. They include taking evidence on oath or affirmation; ordering any party to the matter to pay to any other party such costs and expenses (including expenses of witnesses) as are specified in the order (but so that no costs are allowed for the services of any legal practitioner or agent); determining the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings; requiring evidence or argument to be presented in writing, and deciding the matters on which it will hear oral evidence or argument; referring any matter to an expert and accepting the expert's report as evidence; directing parties to be struck out or persons to be joined; and generally giving all such directions and doing all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.
50 Section 29 of the IR Act specifies who may refer industrial matters to the Commission. Section 29(1)(c) provides that an industrial matter may be referred to the Commission 'in the case of a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employer's employment  by the employee'. Section 29(1) confers standing on an employee and an employer, in certain circumstances, to refer an industrial matter to the Commission. Section 29 does not confer jurisdiction or additional powers on the Commission. See BGC (Australia) Pty Ltd v Phippard; BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191; (2002) 115 IR 430 [26] (Hasluck J; Anderson & Parker JJ agreeing).
Landsheer v Morris Corporation (WA) Pty Ltd. Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186 [22] (Buss J).

51 Section 34(1) of the IR Act provides, relevantly, that a 'decision' (as defined in s 7(1)) of the Commission must be made in the form of an award, order or declaration. Section 34(3) provides that proceedings before the Commission cannot be impeached or held bad for want of form nor can they be removable to any court by certiorari or otherwise on any ground relating to jurisdiction or on any other ground. Section 34(4) provides that, except as provided by the IR Act, no award, order, declaration, finding, or proceeding of the Commission is liable to be challenged, appealed against, reviewed, quashed, or called in question by or in any court on any ground relating to jurisdiction or on any other ground.
52 Section 49 of the IR Act makes provision for appeals from decisions of the Commission to the Full Bench.
53 By s 49(2), subject to s 49, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.
54 Section 49(4) provides, relevantly:
An appeal under this section —
(a) must be heard and determined on the evidence and matters raised in the proceedings before the Commission; …
55 Section 49(5) provides, relevantly, that in the exercise of its jurisdiction under s 49 the Full Bench may, by order:
(a) dismiss the appeal; or
(b) uphold the appeal and quash the decision or, subject to subsection (6), vary it in such manner as the Full Bench considers appropriate; or
(c) suspend the operation of the decision and remit the case to the Commission for further hearing and determination.
56 By s 49(6), where the Full Bench varies a decision under s 49(5)(b), the decision as so varied must be in terms which could have been awarded by the Commission that gave the decision.
57 Section 49(6a) provides that the Full Bench is not to remit a case to the Commission under s 49(5)(c) unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.
58 It is apparent from the text of s 49(4)(a), read with s 49(5), s 49(6) and s 49(6a), that an appeal to the Full Bench from any decision of the Commission is an appeal by way of rehearing and not an appeal by way of a hearing de novo. See Director General, Department of Education v United Voice WA. Director General, Department of Education v United Voice WA [2015] WASCA 195 [16] (Le Miere J; Buss & Murphy JJ agreeing).

59 The critical difference between an appeal by way of rehearing and an appeal by way of a hearing de novo is that, in the case of an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the primary court made a material error, whereas, in the case of an appeal by way of a hearing de novo, those powers are exercisable regardless of error by the primary court. See Allesch v Maunz; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14] (Gleeson CJ, Gaudron & Hayne JJ).

Ms Fagan's submissions in support of her contentions that the Full Bench misconstrued or misinterpreted s 26(1)(a) and s 26(1)(b) of the IR Act
60 Counsel for Ms Fagan submitted that s 26(1)(a) and s 26(1)(b) of the IR Act required the Full Bench, in performing its appellate function, to take into account the disciplinary outcome that was applied to Ms Beere in determining whether Cosentino SC had made a material error in deciding that Ms Fagan's dismissal was unfair.
61 It was submitted in relation to s 26(1)(a) that (appeal ts 89):
[T]he way [in] which the Full Bench has gone about its decisionmaking process [by] excluding the very detailed and uncontradicted evidence that [Cosentino SC] took into account in relation to using Ms [Beere] as a comparator is directly contrary to [the Full Bench's] obligations under s 26(1)(a).
62 It was submitted in relation to s 26(1)(b) that the Full Bench was obliged by s 26(1)(b) to take into account facts and circumstances that were in existence after the time when Ms Fagan was dismissed and that by not taking those facts or circumstances into account the Full Bench 'artificially constrained [itself] by the intellectual ringfencing that it put around itself' (appeal ts 86  87).
63 Counsel asserted that the Full Bench's misconstruction or misinterpretation of s 26(1)(a) and s 26(1)(b) is apparent from [78] of Kucera C's reasons. See [25] above.
Did the Full Bench make an error in the construction or interpretation of s 26(1)(a) or s 26(1)(b) of the IR Act in the course of making the decision that the termination of Ms Fagan's employment was not unfair?
64 The Commission, in exercising its jurisdiction under the IR Act (including in exercising its jurisdiction in respect of an application under s 78(2) of the PSM Act which alleges that the applicant's dismissal was harsh, oppressive or unfair and which is referred under s 29(1)(b) of the IR Act), must observe the requirements of s 26(1) of the IR Act, properly construed.
65 The Full Bench, in exercising its jurisdiction under the IR Act on an appeal from a decision of the Commission, must determine whether the Commission observed the requirements of s 26(1) of the IR Act, properly construed, if the question whether the Commission observed those requirements is raised by any of the grounds of appeal.
66 Further, the Full Bench, in exercising its jurisdiction under the IR Act on an appeal from a decision of the Commission, must observe the requirements of s 26(1) of the IR Act, properly construed, if the Full Bench quashes the Commission's decision and makes its own decision on the merits of the case. See s 49(5), s 49(6) and s 49(6a).
67 In the present case, the proper construction and application of s 26(1) of the IR Act was not in issue before the Full Bench. In particular, neither Ms Fagan nor the Minister raised the proper construction or application of s 26(1)(a) or s 26(1)(b). It is therefore unsurprising that the Full Bench did not deal with the proper construction and application of s 26(1) in its reasons for decision. The sole reference to s 26(1) was made by Kucera C at [62] as follows:
In Hoogland v NL Tucker & Associates Pty Ltd (1999) 79 WAIG 3084, Kenner C noted the approach to be taken by the Commission when applying this test, is not to assume the role of the manager but to consider the dismissal objectively and in accordance with the obligations imposed on the Commission pursuant to ss 26(1)(a) and 26(1)(c) of the IR Act.
68 In Qantas Airways Ltd v Gubbins, Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26.
the Court of Appeal of New South Wales considered s 108(1)(b) of the AntiDiscrimination Act 1977 (NSW), which provided that the Equal Opportunity Tribunal shall in any inquiry 'act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. Gleeson CJ and Handley JA said in relation to that formulation (29):
[t]he precise effect of this section [that is, s 108(1)(b) of the AntiDiscrimination Act 1977] is not immediately clear. Section 118(1) provides that a party aggrieved by a decision of the tribunal may appeal to the Supreme Court on a question of law and subs (3) provides that the Court shall hear and determine the question of law arising on the appeal and may make such order in relation to the appeal as to it seems fit. It is apparent therefore that s 108(1)(b) does not release the tribunal from the obligation to apply rules of law in arriving at its decisions. If that had been the effect of [the provision] there would have been no point in conferring a right of appeal to the Supreme Court on a question of law.
69 Gleeson CJ and Handley JA said that the words 'equity, good conscience and the substantial merits of the case' are not terms of art. They have no fixed legal meaning independent of the statutory context in which they appear. Their Honours elaborated (30):
In some circumstances the presence of this language may indicate that the decisionmaker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245.
In other contexts such words have been construed as requiring the tribunal to apply the ordinary law. Section 7 of the now repealed Small Debts Recovery Act 1912 provided that the Small Debts Court should hear and determine civil actions for the recovery of small debts 'in a summary way, and according to equity and good conscience'. In Ex parte Herman; Re Mathieson (No 1) (1959) 78 WN (NSW) 6 at 9; [1961] NSWR [1139] at 1142, Kinsella J said:
… I am not sure what the magistrate meant to imply in using the words 'according to equity and good conscience' in his brief judgment, but I am clearly of opinion that as used in s 7 of the Small Debts Recovery Act they do not give the court power to depart from established principles of law nor do they give it power to dispense justice otherwise than according to law.
70 In Qantas Airways, Gleeson CJ and Handley JA concluded that the duty to act according to equity and good conscience, in the context of s 108(1)(b) of the AntiDiscrimination Act, did not free the tribunal from its duty to apply the general law in deciding the issues raised in the case before it (31).
71 In Minister for Immigration and Multicultural Affairs v Eshetu, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611.
the High Court considered s 420 of the Migration Act 1958 (Cth). Section 420(1) required the Refugee Review Tribunal, in carrying out its functions, 'to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick'. Section 420(2) provided that, in reviewing a decision, the Tribunal was not bound by technicalities, legal forms or rules of evidence (par (a)) and must act according to substantial justice and the merits of the case (par (b)).
72 Gleeson CJ and McHugh J noted that the history of legislative provisions similar to s 420 was examined in Qantas Airways. Their Honours said in relation to provisions of the kind embodied in s 420 [49]:
They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.
73 Gaudron and Kirby JJ observed in relation to s 420(2) [75]:
It is important to note that s 420(2) of the Act is in two parts. Paragraph (a) provides that in reviewing a decision, the Tribunal 'is not bound by technicalities, legal forms or rules of evidence'. Paragraph (b), which provides that it 'must act according to substantial justice and the merits of the case', is its counterpart. Together, those paragraphs describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasijudicial tribunals.
74 In Sue v Hill, Sue v Hill [1999] HCA 30; (1999) 199 CLR 462.
the High Court considered s 364 of the Commonwealth Electoral Act 1918 (Cth), which provided that the Court of Disputed Returns 'shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not'.
75 Gleeson CJ, Gummow and Hayne JJ held that provisions of this type 'do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness' [42].
76 Gaudron J said [149]:
[A] court would be acting neither in accordance with the substantial merits of the case nor in good conscience if it were to determine the issues raised otherwise than by application of the relevant law to the facts. Nor would it be acting in good conscience if it were to find facts other than on evidence probative of them, evidence which may or may not accord with the rules of evidence.
77 In Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd), Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) [2006] SASC 23; (2006) 94 SASR 126.
the Full Court of the Supreme Court of South Australia considered s 154 of the Industrial and Employee Relations Act 1994 (SA), which provided:
(1) In exercising its jurisdiction, the Court or the Commission —
(a) is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and
(b) is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate.
(2) The Court and the Commission must observe the rules of natural justice.
78 The Court referred to in s 154 (being the Industrial Court) was a court of record. It comprised judges and magistrates. The Court was vested with jurisdiction to interpret an award or enterprise agreement; to hear and determine a question of law referred to it by a magistrate or by the Commission referred to in s 154; to hear and determine jurisdictional or other questions about the validity of determinations of the Commission as part of proceedings brought pursuant to another provision of the Act; to make declaratory judgments where jurisdiction to do so was conferred by other provisions of the Act; to hear various kinds of monetary claims by employees or employers; and to make orders directed to the enforcement of compliance with a provision of the Act, an award or an enterprise agreement [34].
79 White J (Perry J agreeing) held:
(a) The meaning of the expression 'equity and good conscience and the substantial merits of the case' in a statute varies according to the context in which it is used [32].
(b) The Court was established as a court of law and it was expected to apply common law principles and statutory provisions in the resolution of claims before it [35].
(c) Section 154(1) was a statutory direction as to the manner in which jurisdiction elsewhere vested in the Court or the Commission was to be exercised and was not itself a source of additional jurisdiction [36].
(d) Section 154(1) did not authorise the Court or the Commission to ignore the limits of its jurisdiction, or relevant common law or statutory principles relating to a claim before it, or to impose in an arbitrary way a liability merely because the Court or the Commission considered it fair and reasonable to do so [45]. Rather, each of the Court and the Commission was to apply the common law and statutory principles relevant to a claim before it, but in doing so was to act in accordance with what it considered to be the equity, good conscience and substantial merits of the case [45].
80 In Townsville City Council v Chief Executive, Department of Main Roads, Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77.
the Court of Appeal of Queensland considered s 7 of the Land Court Act 2000 (Qld) which provided:
In the exercise of its jurisdiction, the Land Court —
(a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
81 The Court of Appeal also considered s 12 of the Land Court Act. Section 12(1) provided that a party to a proceeding who was dissatisfied with the Land Court's decision 'may apply to the court for leave to have the matter reheard'.
82 Keane JA (McMurdo P and White J agreeing) reviewed the case law, including Qantas Airways and Eshetu. His Honour then said [43]  [45]:
The authorities suggest that a statutory obligation to have regard to the 'substantial merits of the case' means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.
In my opinion, where there is reason to suppose that the outcome of the rehearing may substantially affect the parties in terms of the ultimate result, then the possibility of injustice in the sense of a decision which does not reflect the 'substantial merits of the case' if leave is not granted, inevitably emerges as a consideration material to the exercise of the discretion conferred by s. 12 of the Act.
It may be that, in the circumstances of a particular case, considerations of justice require that the desirability of a 'perfect' outcome give way to the practical consideration that 'justice delayed is justice denied'; and, in some cases, the conduct of the applicant may have been so egregious as to lead to a refusal of a rehearing without considering the impact of the resolution of the issue sought to be reagitated. But to say this is merely to acknowledge that the discretion falls to be exercised as a matter of balancing competing considerations having regard to all relevant circumstances. Generally speaking, the likely impact of the alleged error on the outcome of the case will be a consideration relevant to that balancing exercise.
83 It is apparent from the case law that the words 'according to equity, good conscience, and the substantial merits of the case' in s 26(1)(a) of the IR Act have no fixed legal meaning independent of the statutory context.
84 The statutory context in which the words 'according to equity, good conscience, and the substantial merits of the case' in s 26(1)(a) must be construed includes, in particular:
(a) the status of the Commission (including the Full Bench) as a court of record;
(b) the jurisdiction of the Commission (including the appellate jurisdiction of the Full Bench);
(c) the content of the powers conferred on the Commission (including the Full Bench); and
(d) the persons who may refer industrial matters to the Commission.
85 The provisions of the IR Act which deal with those particular matters include s 12(1), s 23, s 23A, s 27, s 29 and s 49. See [45], [47]  [50] and [52]  [59] above.
86 In my opinion, the words 'according to equity, good conscience, and the substantial merits of the case' in s 26(1)(a):
(a) do not confer on the Commission (including the Full Bench) power to depart from its duty to apply the general law (including relevant common law principles and relevant statutory provisions other than s 26(1)(a)) in deciding issues raised in any case before the Commission (including the Full Bench); and
(b) do not authorise the Commission (including the Full Bench) to create a right or to impose a liability that does not exist at common law or under a statutory provision other than s 26(1)(a) merely because the Commission (including the Full Bench) considers it fair and reasonable to do so.
87 The words 'according to equity, good conscience, and the substantial merits of the case' in s 26(1)(a) direct the Commission (including the Full Bench) as to the manner in which jurisdiction vested elsewhere in the Commission (including the Full Bench) is to be exercised. Those words in s 26(1)(a) are not themselves a source of additional jurisdiction.
88 Although the phrase 'the substantial merits of the case' in s 26(1)(a) does not permit the Commission (including the Full Bench) to disregard relevant common law principles and relevant statutory provisions other than s 26(1)(a) in deciding issues raised in any case before the Commission (including the Full Bench), the 'substantial merits of the case' are a factor that the Commission (including the Full Bench) is entitled and bound to take into account in exercising a discretion that must be exercised in any case before it.
89 The provision in s 26(1)(a) that the Commission (including the Full Bench) 'must act … without regard to technicalities or legal forms', and the provision in s 26(1)(b) that the Commission (including the Full Bench) 'must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just', require the Commission (including the Full Bench) to adopt flexible procedures in exercising its jurisdiction and to dispense with technical rules of the kind that have traditionally been applied in superior courts. The Commission (including the Full Bench) may act upon information whether or not the information is embodied in evidence that is admissible under the law of evidence. The provisions in s 26(1)(a) and s 26(1)(b) to which I have referred are consistent with and oblige the Commission (including the Full Bench) to observe the rules of procedural fairness, but they do not permit it to disregard substantive rules of law.
90 In the present case, the Full Bench, in deciding the appeal from the decision of Cosentino SC, applied the wellestablished legal test for determining whether an employee's dismissal was harsh, oppressive or unfair. The Full Bench, in deciding whether the Senior Commissioner had erred in determining that Ms Fagan's dismissal was unfair, applied the wellestablished legal principle that the facts that are relevant in making that determination must have existed at the time of the dismissal. Further, the Full Bench, in deciding whether the Senior Commissioner had erred in determining that Ms Fagan's dismissal was unfair, applied the wellestablished legal principles in relation to an alleged disparity by an employer in the treatment of employees.
91 The Full Bench applied those wellestablished legal principles in concluding that:
(a) Cosentino SC had erred in having regard to facts and circumstances that had occurred after the date of Ms Fagan's dismissal; and
(b) the Senior Commissioner had erred in using Ms Beere as a comparator.
92 As I have mentioned, the proper construction and application of s 26(1) was not in issue before the Full Bench; neither Ms Fagan nor the Minister raised the proper construction or application of that provision; and consequently the Full Bench did not deal with the proper construction and application of s 26(1) in its reasons for decision.
93 In any event, I am satisfied, for the reasons I have given, that s 26(1)(a) and s 26(1)(b) do not bear the meaning ascribed to them by counsel for Ms Fagan in the grounds of appeal or in his submissions to this court.
94 The Full Bench did not, either expressly or by implication, make an error in the construction or interpretation of s 26(1)(a) or s 26(1)(b). Further, no such error was made by the Full Bench in the course of making its decision that Cosentino SC had erred, as alleged by the Minister, and that the appeal to the Full Bench should be allowed.
95 Neither ground 1, as amended at the hearing of the appeal, nor ground 2 raises a reasonably arguable contention that the Full Bench
[2024] WASCA 167
BUSS J
SEAWARD J
misconstrued or misinterpreted s 26(1) in the course of making the decision appealed against by Ms Fagan. The grounds of appeal, properly understood, are not within s 90(1)(b) of the IR Act. Ms Fagan's appeal is therefore incompetent.

SEAWARD J:
96 I have had the benefit of reading the reasons of Buss J and Smith AUJ in draft. I agree that this Court does not have jurisdiction to the entertain either of the appellant's grounds of appeal.
97 This Court has limited jurisdiction to hear appeals from the Western Australian Industrial Relations Commission. In the present case, the appellant invoked the jurisdiction conferred by s 90(1)(b) of the Industrial Relations Act 1979 (WA) (the IR Act) which provides that an appeal lies to the Court in the manner prescribed from any decision of the Full Bench:
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against;
98 The error of construction or interpretation relied upon by the appellant is an alleged error by the Full Bench in the construction or interpretation of s 26(1)(a) and s 26(1)(b) of the IR Act.
99 I respectfully agree with the conclusion of Buss J as to the meaning of the words 'according to equity, good conscience, and the substantial merits of the case' in the context of s 26(1)(a) of the IR Act.
100 Neither s 26(1)(a) nor s 26(1)(b) of the IR Act direct the Commission as to the manner in which the jurisdiction of the Commission is to be exercised. Significantly, neither s 26(1)(a) nor s 26(1)(b) are a source of additional jurisdiction or authorise the Commission to disregard otherwise applicable substantive rules of law.
101 In light of these matters, I respectfully agree with the disposition of the grounds of appeal as outlined by Smith AUJ.


[2024] WASCA 167
SMITH AUJ
SMITH AUJ:

Overview
102 The appellant seeks to appeal a decision of the Western Australian Industrial Relations Commission constituted under s 49 of the Industrial Relations Act 1979 (WA) (the Act). After hearing from the parties as to whether the jurisdiction of the court was enlivened, the court made an order dismissing the appeal. The court stated that reasons for this order would follow.
The jurisdiction of the Industrial Appeal Court to hear an appeal from a decision of the Full Bench
103 A right of appeal from a decision of the Full Bench to the Industrial Appeal Court is a remedy given by statute, and its jurisdiction is limited. See Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186 [45]  [55] (Kenneth Martin J), [32] (Le Miere J agreed).
There is no right of appeal to the court from any ground involving a question of fact, or on a question of law, unless the ground is a ground which meets the criteria prescribed in s 90(1) of the Act.
104 Section 90(1) provides an appeal lies to the court, in the prescribed manner, from any decision of the Full Bench:
(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c) on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
Appellant's grounds of appeal
105 The appellant seeks to appeal a decision of the Full Bench quashing a decision made at first instance by the Senior Commissioner reinstating the appellant to her former position as a drug detection officer at the Bunbury Regional Prison. The reasons for the decision were given by Kucera C, with whom Kenner CC and Tsang C agreed.
106 In Ground 1 of the Amended and Substituted Grounds of Appeal as further amended during oral submissions, the appellant contends the Full Bench erred (invoking the jurisdiction of this court, pursuant to s 90(1)(b) of the Act) in that the decision of the Full Bench was erroneous in law in finding that the subsequent disciplinary treatment of a coworker, Ms Beere, in relation to similar breaches of discipline was an irrelevant consideration, when determining whether the appellant was unfairly dismissed.
107 The appellant contends that by confining itself only to relevant considerations that were contemporaneous to the appellant's dismissal, in the absence of any specific provision preventing the Full Bench from informing itself of matters subsequent to a dismissal, was contrary to s 26(1)(a) and (b) of the Act.
108 Section 26(1)(a) and (b) of the Act provide:
(1) In the exercise of its jurisdiction under this Act the Commission—
(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and
(b) must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just;
109 The appellant contends in Ground 1 that the jurisdiction of the court is enlivened because the Full Bench in making a finding that: Full Bench reasons [78].

Noting the authorities referred to, the correct approach to be followed as a matter of principle, is that when assessing whether an employer has exercised its right to dismiss harshly, oppressively, or unfairly, the focus of the Commission's inquiry must be directed to the facts or circumstances that were in existence at the time of the dismissal.
(having found that the Senior Commissioner erred by having regard to the subsequent outcome of disciplinary proceedings against the coworker, Ms Beere, who was not a prison officer and was dismissed nine months after the appellant) was erroneous, in that the Full Bench misconstrued or misinterpreted its power under the second limb of s 26(1)(b) of the Act to 'inform itself on any matter in such a way as it thinks just'.
110 The appellant argues that this finding was inconsistent with the obligation cast upon the jurisdiction of the Full Bench by s 26(1)(b), in that the Full Bench found when assessing whether an employer has exercised its right to dismiss harshly, oppressively or unfairly regard must be directed to the facts or circumstances that were in existence at the time of the dismissal.
111 It is argued that it must be the case that the evidence about the factual circumstances that arose in respect of an appropriate comparator post the appellant's dismissal must be relevant, and what the Full Bench did was to unnecessarily constrain the facts and circumstances the Commission should have regard to when determining whether a dismissal of an employee was harsh, oppressive or unfair.
112 Senior counsel for the appellant made a submission that when the statutory commands in s 26(1)(b) and (a) of the Act are read together they are consistent with the wellestablished test applied by the Commission in unfair dismissal claims that 'there be a fair go all round'. Senior counsel also put a submission to the effect that the statutory commands and the powers conferred by s 26(1)(b) and (a) make it clear that the Commission is unlimited in the matters that it may inform itself of, save as to weight and relevance. The appellant says that if this proposition is accepted, it follows the Full Bench erroneously acted contrary to these provisions, by impermissibly placing a constraint upon the source of relevant evidence and information, in that the Full Bench restricted their findings as to whether the dismissal of the appellant was unfair by reference only to facts and circumstances in existence at the time of the dismissal.
113 Senior counsel then sought to develop this submission by arguing that the Full Bench fell into error by constraining itself in two respects. First, the Full Bench impermissibly constrained its decisionmaking process by not having regard to relevant facts or circumstances that arose post the dismissal of the appellant as required by s 26(1)(b). Second, it acted contrary to this provision by failing to properly take into account the disciplinary process that was applied to the coworker, Ms Beere, who the appellant contends was a relevant comparator.
114 In Ground 2 the appellant essentially raises the same argument. In this ground the appellant contends the findings of the Full Bench that Ms Beere was not in fact an appropriate comparator for the purposes of determining whether the appellant's dismissal from her employment was unfair, were inconsistent with, and contrary to, the obligation in s 26(1)(a). The finding in fact made by the Full Bench that Ms Beere was not an appropriate comparator is said to be erroneous in law in that the findings made by the Full Bench in support of this finding were illogical, irrational or lacked a basis in findings or inferences of fact. The findings upon which the Full Bench relied upon in making this finding are set out in [105]  [111] of the reasons of Kucera C.

115 In particular, the appellant claims that the process of reasoning engaged in by the Full Bench which resulted in a finding that the coworker Ms Beere was not a proper comparator was inconsistent with the obligation on the Full Bench in s 26(1)(a) to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The appellant also contends that this process was not consistent with the guiding principle that underpins s 26(1)(a) of the notion of a 'fair go all round'.
No error in the decision of the Full Bench in the construction or interpretation of the Act identified in the Appeal
116 Although the grounds of appeal allege errors of law, for jurisdiction to lie to this court under s 90(1)(b) of the Act there must be an error of law in the construction or interpretation of a statutory provision.
117 For the reasons that follow, although the issues raised by the appellant in support of her appeal go to the nature of the statutory obligations of the Full Bench when hearing an appeal under s 49 of the Act, the contended errors do not raise an error of law in the construction or interpretation of either s 26(1)(a) or (b) of the Act.
The nature of an appeal to a Full Bench from a decision of a Commissioner pursuant to s 49 of the Act.
118 By s 12 of the Act, the Commission is a 'Court of Record', and as such in determining whether an employee has been unfairly dismissed from his or her employment, and in dealing with and making any orders disposing such an application, the Commission acts judicially. Helm v Hansley Holdings Pty Ltd (in liq) [1999] WASCA 71 [9].

119 The appellant was a prison officer, and such was not a 'Government officer' within the meaning of s 80C of the Act. She was appointed to her position under the Prisons Act 1981 (WA), and was dismissed under the power conferred upon her employer under s 82A(3)(b) of the Public Sector Management Act 1994 (WA) (PSM Act). That section provides that if an employing authority finds that an employee has committed a breach of discipline, the employing authority can take disciplinary action, which, by the definition of 'disciplinary action' in s 80A(g) of the PSM Act, includes dismissal.
120 Under s 78(2) of the PSM Act, a person who is not a Government officer may refer the decision to take disciplinary action under s 82A(3)(b) to the Commission as if that decision were an 'industrial matter' mentioned in s 29(b) [sic s 29(1)(b)] of the Act, and the Act applies to and in relation to that decision accordingly. By s 29(1)(c) of the Act an 'industrial matter' may be referred to the Commission by the employee in the case of a claim by an employee that he has been harshly, oppressively or unfairly dismissed from his or her employment. It is noted that until the enactment s 13 of the Industrial Relations Legislation Amendment Act 2021 (WA) this right of referral of a claim of harsh, oppressive or unfair dismissal was provided for s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA).
This provision does not confer jurisdiction or additional powers on the Commission. BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191 [26] (Hasluck J, Anderson & Parker JJ agreeing); applied in Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186 [22] (Buss J).
It gives the employee standing to pursue a claim in certain prescribed circumstances. BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191 [26] (Hasluck J, Anderson & Parker JJ agreeing); applying Coles Myer Ltd v Coppin (1993) 11 WAR 20, 24 (Kennedy J).

121 It appears that when s 13 of the Industrial Relations Legislation Amendment Act 2021 (WA) amended s 29(1)(b) of the Act in 2021, no consequential amendments were made to the reference to s 29(b) in s 78(2) of the PSM Act. In light of this clear legislative oversight, the reference to s 29(b) in s 78(2) of the PSM Act should be taken as to read as a reference to s 29(1)(c) of the Act.
122 The power of the Commission to make orders if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair arises under s 23A of the Act. The remedies available under this provision include the special statutory remedies the Commission alone is empowered by the Act to grant, including orders for reinstatement, reemployment in another position or the payment of compensation for loss or injury caused by the dismissal which do not exist under the contract of employment or, otherwise, under the general law. Matthews v Cool or Cozy Pty Ltd [2004] WASCA 114 [60] (EM Heenan J).

123 The test to be applied by the Commission when determining whether a dismissal of an employee was harsh, oppressive or unfair is not as submitted by the appellant a conferral of jurisdiction to determine matters by any unconfined notion of 'equity' limited only by a consideration of the relevance or weight to be accorded to evidence and circumstances, and only by the notion of a 'fair go all round', but instead is to be determined by the wellestablished principles.
124 By the doctrine of precedent the applicable principles binding on the Full Bench in determining whether the Commission at first instance has erred in an appeal involving a claim of harsh, oppressive or unfair dismissal were comprehensively summarised by EM Heenan J in Garbett v Midland Brick Co Pty Ltd as follows: Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36 [71]  [73] (Parker J agreeing).

The references to 'harsh, oppressive or unfair' dismissal in s 23, s 23A and s 29 should be understood as the use of essentially nontechnical words designed to cover a range of situations where, while there is an overlap between them, the gist of each will go to differing matters. It has been said that no redefinition or paraphrase of the similar test 'harsh, unjust or unreasonable' as it appeared in the Manufacturing Grocers' Award 1985 is desirable - Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 28 per Sheppard and Heerey JJ, which was cited with approval by McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 476. A dismissal may be harsh, oppressive or unfair notwithstanding that it did not constitute a wrongful dismissal at law. In other words, a harsh, oppressive or unfair exercise of the legal right to dismiss an employee may give rise to an entitlement for relief under s 23A, although this will not necessarily be the case. A full examination of the features of the particular case must always be undertaken to assess the nature and effect of the dismissal in its particular context. For one of many examples where the exercise by the employer of the right of dismissal at law was upheld, but the termination of employment was nevertheless held to be harsh, oppressive or unfair - see FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore v Cecil Bros & Ors (1998) 78 WAIG 1099, IAC, especially per Kennedy J and per Anderson J.
Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances. Factors such as these going to the reasons for the particular dismissal are frequently referred to in the authorities in this area as matters of 'substantive' fairness, as opposed to issues of 'procedural' fairness which relate to the manner in which the employee was notified of the proposed termination, what opportunity, if any, he or she was given to respond and the time and method employed in effecting the termination. This distinction between substantive and procedural issues going to the question of whether or not a particular dismissal was harsh, oppressive or unfair can be useful in certain cases but it entails the danger of regarding the statutory test as having separate application and different meanings in different contexts. Such an approach must be rejected because, however the issue may arise, the decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss. For a criticism of how the distinction between procedure and substance in this area is elusive and how it may be unhelpful and contrary to the true meaning of the statutory phrase, see McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 465.
In this State a test which has been adopted by the Commission, and approved by this Court, is to consider whether the dismissal amounted to an abuse of an employer's right to dismiss thus rendering the dismissal harsh or oppressive - Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635; Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385, IAC and Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104, IAC. In cases where the alleged harsh, oppressive or unfair nature of the dismissal relates to the procedure followed by the employer in effecting the termination of employment it has been held in this State that a failure to adopt a fair procedure by the employee can lead to a finding that the dismissal was harsh, oppressive or unfair - Bogunovich v Bayside Western Australia Pty Ltd (supra), but a lack of procedural fairness may not automatically have this result - Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 IAC.
125 Relevantly, when the statutory right conferred upon a party or an intervenor to institute an appeal under s 49 of the Act against a decision of a Commissioner sitting at first instance having heard and determined an 'industrial matter' referred under the Act is construed, it is clear that this statutory right does not create a right to be heard de novo.
126 In hearing an appeal under s 49 from the Commission constituted by a Commissioner the Full Bench is bound by s 49(4) of the Act which requires that an appeal to be heard and determined on the evidence and matters raised in the proceedings before the Commission.
127 In exercising its jurisdiction under s 49 of the Act the Full Bench, may by order under s 49(5), dismiss the appeal; or uphold the appeal and quash the decision, or subject to s 49(6) vary the decision in such manner as the Full Bench considers appropriate; or suspend the operation of the decision and remit the case to the Commission for further hearing and determination. Pursuant to s 49(6) where the Full Bench varies a decision the decision as so varied is required to be in terms which could have been awarded by the Commission that gave the decision.
128 Because of the operative effect of legislative direction to the Full Bench in s 49(4) of the Act, there is authority for the point that s 26(1)(b) has no operation when the Full Bench is hearing an appeal from a decision of a single Commissioner.
129 In Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch, Kennedy J and Olney J found in an appeal against a discretionary decision of the Commission refusing to make an award that s 26(1)(b) can have no application in an appeal. Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852, 855 and 857.

130 In Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch, the Presiding Judge Brinsden J adopted the approach of the Australian Commission in AWU v Poon Bros (WA) Pty Ltd, AWU v Poon Bros (WA) Pty Ltd (1983) 4 IR 394.
and held that the appeal provisions of both the State and Federal statutes were very similar. In AWU v Poon Bros (WA) Pty Ltd, the Australian Commission found that consistent with a long line of cases, an appeal to the Full Bench of the Australian Commission was not a hearing de novo but a reconsideration of the Commission's decision at first instance, and in the case of an appeal against a discretionary decision, the Full Bench could not simply substitute their opinion for that of the Commission at first instance. Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852, 853.

131 In Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch, Brinsden J made no reference to s 26(1)(b) of the Act, and after observing that no reference is made to a rehearing in s 49 of the Act, went on to find consistent with the approach in AWU v Poon Bros (WA) Pty Ltd the proper approach of the Full Bench in an appeal instituted under s 49 was to follow the principles in House v King House v King (1936 ) 55 CLR 499, 504.
and not to substitute their views for those of the Commission at first instance, assuming they were different, but must be satisfied that the Commission was in error on a matter fundamental to the due resolution of the issue before the Commission. Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852, 853.

132 In Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch, Kennedy J agreed with findings made by Brinsden J, and added that the legislature had deliberately chosen the avenue of an appeal and had not elected to have the Full Bench deal with the matter as if it were hearing the initial application to the Commissioner. His Honour also found that by s 49(4) an appeal was to be heard and determined on the evidence and matters raised in the proceedings before the Commissioner and that being so, it was clear that s 26(1)(b) could have no application in an appeal. Thus, the majority views of Brinsden and Kennedy JJ was that for a Full Bench hearing an appeal a decision of a Commissioner under s 49 could only overturn the decision at first instance where an error of law or mistake of fact was present. Olney J disagreed with the majority as to whether it was open to the Full Bench to exercise its own discretion in accordance with its own view of the substantial merits, equity and justice of the particular case in a manner consistent with its obligations under the Act. However, his Honour similarly found that because of the command in s 49(4), other than s 26(1)(b), the other mandates in s 26(1) and (2) of the Act clearly bind the Full Bench in the exercise of its appellate jurisdiction.
133 In Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch, Hasluck J observed that s 49 does not contain any reference to the appeal being by way of rehearing and without referring to the decision in Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch went on to refer to the statutory direction in s 49(4), that an appeal shall be heard and determined on the evidence and matters raised in the proceedings before the Commission. Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386 [36] (Kennedy & Anderson JJ agreeing).
Consistent with the findings made in Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch, Hasluck J went on to find that this suggests that the Full Bench was required to review questions of law and to ascertain whether there was any error in the manner in which the Commissioner in the forum below exercised any discretionary power allowed to the Commissioner. Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2000] WASCA 386 [36]; referring to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585.

134 In Director General, Department of Education v United Voice WA, Le Miere J observed that an appeal under s 49 is an appeal by way of rehearing when distinguishing the very limited right of appeal from a decision of the Full Bench to the Industrial Appeal Court. Director General, Department of Education v United Voice WA [2015] WASCA 195 (Buss & Murphy JJ agreeing).

135 When regard is had to these authorities it is clear that when hearing and determining an appeal instituted under s 49 of the Act the Full Bench is required to conduct a real review of, and consider the evidence and matters raised before the Commission at first instance for itself to determine whether an error has occurred. If error is established, in general, the Full Bench is in as good a position as the Commissioner who heard the matter at first instance to decide on the proper inferences to be drawn from the evidence and matters raised in the proceedings at first instance that are undisputed or which, having been disputed are established either in the proceedings at first instance or by the application of established authority. In deciding the proper inferences to be drawn, the Full Bench is to give respect to and weight to the findings made by the Commissioner. However, if the Full Bench reaches a different conclusion, on the proper inferences and the weight to be given or not given to evidence and matters raised at first instance, on grounds that error is shown because the Commissioner was wrong as to the inference drawn, or the weight accorded to a particular fact or matters raised in the proceedings, the Full Bench is to give effect to its own conclusion.
Disposition of the grounds of appeal
136 Section 26(1)(a) and s 26(1)(b) do not confer jurisdiction but instead prescribe the process of reasoning and procedures that the Commission is required to apply when enquiring into, and dealing with, matters within jurisdiction, which are consistent with an element of formality that apply to many statutory tribunals. Put another way, these provisions (together with other relevant obligations and powers in s 26 and s 27 of the Act) regulate the manner by which a matter referred to the Commission is to be heard and determined.
137 Section 26(1)(a) requires the Commission including the Full Bench to act according to equity, good conscience and the substantial merits but does not confer a power on the Commission to act where no power exists.
138 Section 26(1)(b) is an empowering provision but it does not impose any obligation on the Commission to exercise jurisdiction in any particular way. The first limb of this provision is a mandatory direction to the Commission that it must not be bound by the rules of evidence, and the second limb confers a statutory discretionary power on the Commission at first instance to inform itself on any matter in such a way as it thinks just.
139 In Kostas v HIA Insurance Services Pty Ltd, Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390.
French CJ after observing that a tribunal with an enabling Act providing that it is not bound by the rules of evidence could determine its own procedure and could inform itself as it thinks fit, subject to the rules of procedural fairness, his Honour then went on to state: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [15]  [16]; see also Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492  493 (Brennan J).

[T]he authority of the Tribunal to 'inform itself on any matter in such manner as it thinks fit' indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law.
There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The Tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process.
140 As Evatt J said in R v War Pensions Entitlements Tribunal; Ex parte Bott, when speaking of a statutory provision which provided that the tribunal was not bound by the rules of evidence: R v War Pensions Entitlements Tribunal; Ex parte Bott (1933) 50 CLR 228, 256.

[T]his does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence as such do not bind, every attempt must be made to administer 'substantial justice'.
141 In Woolworths Ltd v Director of Liquor Licensing, Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446.
the Court of Appeal construed the powers of a licensing authority to determine applications made to it under its enabling Act. The matter concerned the proper construction of a number of provisions of the Liquor Control Act 1988 (WA) including s 16(7)(a) and (b) of that Act which in substance reflect the provisions of s 26(1)(b) and (a) of the Act respectively. In this regard, Buss JA relevantly stated: Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446 [58]  [60].

By s 16(7), the Commission is not bound by the rules of evidence or any practices or procedures applicable to courts of record unless the Commission adopts those rules, practices or procedures or the regulations make them apply; the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and the Commission is to act as speedily and with as little formality and technicality as is practicable.
The provision absolving the Commission from compliance with the rules of evidence enables it to make findings of fact on the basis of any probative material before it.
The words 'equity, good conscience and the substantial merits of the case' are not terms of art. They have no fixed legal meaning independent of the statutory context in which they are used. See Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, 30 (Gleeson CJ & Handley JA); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618 [13]  [14] (French CJ). So, the meaning of these words varies depending on the context in which they are used, including the nature of the decisionmaker and the nature of the decision to be made. See Griggs v Noris Group of Companies [2006] SASC 23; (2006) 94 SASR 126 [32] (White J, Perry J agreeing).
142 Consequently, when hearing an appeal instituted under s 49, the Full Bench is required by the statutory direction in s 26(1)(a) to act according to equity, good conscience and the substantial merits of the case to apply the rules of natural justice and procedural fairness when hearing the appeal on the evidence and matters raised in the proceedings before the Commission at first instance.
143 In addition, even if s 26(1)(b) applied to the Full Bench when hearing the appeal in this matter, this provision when read together with s 49(4) of the Act which when applied simply required the Full Bench in finding error in the decision of the Commission at first instance to apply a rational process of reasoning by applying established principles pursuant to the doctrine of precedent to the evidence and matters that were before the Commission at first instance which are relevant and logically probative to the question whether the appellant was unfairly dismissed by the respondent, whether or not that material would be in a form that is admissible in a court of law.
144 There is nothing in s 26(1)(a) or (b) of the Act that the appellant can point to that required the Full Bench not to confine its analysis of whether the Commission erred at first instance by only having regard to factual circumstances that were known to the parties at the time the decision was made by the employer to dismiss, or were circumstances that existed at that time and should have been taken into account by the employer when the decision to dismiss the appellant was made.
145 Essentially, the grounds sought to be raised in this appeal go to findings of fact made by the Full Bench, which facts are said to be either irrelevant or in Ground 2 were irrational.
146 Yet, it is insufficient for a prospective appellant when seeking to appeal to this court pursuant to s 90(1)(b) to point to some error of law according to common law principle. That which is said to be 'erroneous in law' must be linked to the interpretation of a statutory provision which purports to govern the situation. United Construction Pty Ltd v Birighitti [2003] WASCA 24 [100] (Hasluck J).

147 Put another way, the question of law must be about the effect or construction of the statutory provision, such as whether the words in a provision are to be given their ordinary meaning or some technical or other meaning, and not about whether the facts found fall within a statutory provision, or are inconsistent with a statutory provision conferring jurisdiction, in which case such an argument goes to jurisdictional error, in respect of which an appeal can only lie on grounds that the decision is not an 'industrial matter' within the meaning of s 90(1)(a) of the Act.
148 Ground 1 essentially in effect only raises a contention that the Full Bench erred in law in taking into account an irrelevant consideration when determining whether an employee was unfairly dismissed.
149 However, a ground of appeal that alleges an error in failing to take into account a relevant consideration or taking into account an irrelevant consideration or according insufficient weight to a relevant consideration in determining a matter referred pursuant to s 29(1)(c) whether an employee has been harshly, oppressively or unfairly dismissed, does not raise a ground either in form or substance that an error was made by the Full Bench in the construction or interpretation of s 26(1)(a) or (b) of the Act.
150 Taking into account an irrelevant consideration or failing to take into account a relevant consideration raises an error of law in determining the merits of a matter, but such an error does not raise an error of law within the meaning of s 90(1) of the Act. Buss J relevantly made the point very clear in Landsheer v Morris Corporation (WA) Pty Ltd, when his Honour observed: Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186 [22]  [25].

Section 29(1)(b) does not stipulate any jurisdictional facts and does not, either expressly or impliedly, prescribe any principles of law which must be applied by the Commission or the Full Bench in determining an industrial matter referred to the Commission under that provision. Further, s 29(1)(b) does not require the Commission (including the Full Bench) not to make an error of law or fact in determining the merits of an industrial matter referred to the Commission.
If the Commission (including the Full Bench) makes an error of law or fact in determining the merits of an industrial matter referred to the Commission under s 29(1), that error will not vitiate either the reference of the industrial matter under s 29(1) or the acceptance of the matter by the Commission (including the Full Bench).
A decision of the Full Bench on the merits of an industrial matter referred to the Commission under s 29(1) will only confer a right of appeal on a person who is dissatisfied with the decision if one or more of the grounds specified in s 90(1) applies to the decision
151 The error complained of in Ground 2 does not raise an issue whether the Full Bench erred in the construction or interpretation of s 26(1)(a) and because the asserted error is not said to arise due to any error in the construction of s 26(1)(a), or because of an erroneous construction by the Commission of its powers under the Act. The findings complained of go to the evidence and matters in the exercise of discretion to determine whether the factual circumstances of the dismissal of an employee was harsh, oppressive or unfair, in respect of which reasonable minds may differ.
152 For these reasons, the points raised by the appellant in Grounds 1 and 2 do not properly concern an error of law in the construction or interpretation of s 26(1)(a) or (b) of the Act.


I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.

WH
Research Associate to the Honourable President Buss

7 JANUARY 2025