Industrial Relations Commission New South Wales Medium Neutral Citation: Liverpool City Council v Wojciechowski & anor [2016] NSWIRComm 13 Hearing dates: 26 August 2016 Date of orders: 26 August 2016 Decision date: 24 November 2016 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Tabbaa C; Newall C Decision: 1. Leave to appeal is granted in relation to Ground 2 of the appeal. Leave to appeal is refused in relation to Grounds 1 and 3 of the appeal. 2. The appeal is dismissed. 3. The stay on terms granted in relation to the Commissioner's orders is dissolved. Catchwords: LEAVE TO APPEAL – tests on leave – leave not to be granted to re-argue facts – leave granted on one ground of appeal only – weight to be given to first instance decision making – necessary for first instance decision maker to rule on fundamental issue – failure to address in terms a fundamental question – leave granted to allow Full Bench address that matter APPEAL – Commissioner's findings of fact stand – based on Commissioner's findings of fact the orders made were ultimately correct – appeal dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) s 84, s 89, s 189 Cases Cited: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Brailsford, Arce and Wojciechowski v Liverpool City Council [201] NSWIRComm 1022 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 DP World Sydney Ltd v Lambley (2012) 222 IR 277 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 House v R (1936) 55 CLR 499 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Mifsud v Campbell (1991) 21 NSWLR 725 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Category: Principal judgment Parties: Liverpool City Council (Appellant) Harry Wojciechowski (Respondent 2016/189673) David Brailsford (Respondent 2016/189684) Representation: Counsel: D Mahendra (Appellant) A Duc (Respondent 2016/189673 and 2016/189684) Solicitors: Liverpool City Council (Appellant) United Services Union (Respondent 2016/189673 and 2016/189684) File Number(s): 2016/189673 and 2016/189684 DECISION 1. This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Murphy C in Brailsford, Arce and Wojciechowski v Liverpool City Council [2016] NSWIRComm 1022. That was a decision in the context of applications brought by the two respondents in these appeal proceedings pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ('the Act'). Proceedings in relation to Mr Arce were discontinued. 2. The decision was handed down on 9 June 2016. The appeal proceedings were filed within the time prescribed by s 189 of the Act. 3. Murphy C found the dismissals in each case unfair and, in each instance, reinstated the contract of employment pursuant to powers exercisable by the Commission under s 89 of the Act. Principles on Leave to Appeal 1. It is important to bear in mind that an appeal does not lie against decisions in proceedings initiated under s 84 as of right. Leave has to be sought and granted before any appeal is heard. Accordingly, we turn first to the question of leave to appeal. 2. The jurisprudence of the Commission concerning leave to appeal is well settled. It is nowhere more clearly set out than in the decision of the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 in which it was held, at [5]: The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 1. Relevantly to this appeal, it must be emphasised that leave will generally not be granted simply to permit facts to be re-argued. It is relevant to emphasise what was said by the Commission in Court Session in King v State Bank of New South Wales (No 2) (2002) 126 IR 407, at [54]-[55]: [54] Having regard to the submission of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles, an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. [55] This passage has recently been referred to with approval by Full Benches of the Commission in Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150, Nguyen v Swan Services Pty Limited [2002] NSWIRComm 322 and Ward v Mobile Innovations Limited [2002] NSWIRComm 287, in appeal proceedings from decisions under s 84 of the statute. As was observed in the last of those cases, "primacy must be given to first instance judgments in this respect". We consider that these observations are equally applicable to significant aspects of the current proceedings. 1. In our view, precisely the same considerations apply here. Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State." The Decision at First Instance 1. In the decision at first instance, Murphy C found the terminations of the two employment contracts unfair and reinstated the contracts, although without any compensation in relation to the period between each contract's termination and its reinstatement. 2. In the course of so doing, the Commissioner made a number of detailed findings of fact, assessed that the employees had committed offences which, having had regard to earlier warnings issued to them, the Commissioner assessed as being of 'moderate seriousness'. Having made those findings, the Commissioner then found that, assessing the dismissals under the tripartite test established by the statute, the dismissals were harsh, were unreasonable and were also unjust. He then exercised a statutory discretion by ordering reinstatement of the contracts without any payment for the period between dismissal and reinstatement. Leave to Appeal 1. The present appeals are mounted on essentially three grounds set out in the amended applications for leave to appeal and appeal filed in the proceedings. 2. Of these, Ground 1 goes essentially to a challenge to the Commissioner's exercise of discretion in finding the dismissals 'harsh'. Summarised, this ground does no more than argue that the Commissioner was not entitled to find the dismissals harsh on the appellant's assessment of the evidence and the appellant's assessment of the weight that ought to be given to the evidence. Properly seen, this is no more than a challenge to the Commissioner's exercise of the statutory discretion conferred on him under the Act. The authorities to which we refer above militate entirely against a grant of leave in relation to a ground of appeal of that nature, particularly where the factual foundations of the Commissioner's decision in this respect appear to be reasonably open. As we held in the course of proceedings, having heard argument on leave, we do not grant leave in respect of Ground 1 of the appeals. 3. We touch on one matter which was agitated in submissions going to Ground 1 of the appeals. It was put by the appellant that it was a proper approach to an appeal under the Act that, even if no error of reasoning or law can be detected in the first instance decision, nevertheless, if the end result of the decision is that 'it is clear that something did go wrong', the decision should be overturned on appeal. This proposition was said to emerge from a decision of Fair Work Australia in DP World Sydney Ltd v Lambley (2012) 222 IR 277. 4. Whether the proposition advanced by the appellant does properly emerge from DP World is by no means clear. What the Full Bench of Fair Work Australia actually held was that the first instance decision involved error of the kind contemplated in House v R (1936) 55 CLR 499, not a matter agitated here on appeal, and went on, referring to principles established by the decision of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, to say: "It is our view that it is in the public interest that decisions in unfair dismissal matters are consistent with established principles and involve the sound exercise of discretions vested in the tribunal." [at 33]. 5. Be that as it may, it can be said without hesitation that it is not the jurisprudence of this Commission that an appeal can be upheld merely on the basis of opposition to the outcome in an impugned decision or, more, on the sole basis that the decision 'was plainly unjust and unreasonable when one has regard to the facts of the case' as was submitted here, without an appellant being able to identify any appellable error. The demonstration of error or, at least, sufficient grounds to underpin an application is an essential feature of the exercise of any discretion to grant leave to appeal. 6. We held in the course of proceedings that we would not grant leave in respect of Ground 3. Our reasons for that are as follows. 7. A number of the elements of Ground 3, as it was originally articulated, were deleted from the amended application. 8. Those grounds that remain can properly be characterised in this manner: Ground 3(b) contests the view that the Commissioner formed of the effect of and weight to be given to some of the evidence. Ground 3(d) asserts that the Commissioner acted in a manner procedurally unfair to the appellant, on bases which do not to us appear to have substance, even if procedural matters were to be regarded as a proper foundation for the grant of leave to appeal. Grounds 3(e), (f), (g) and (h) constitute attacks on the findings of fact made by the Commissioner, and Ground 3(i) squarely asserts that the Commissioner must have erred in the exercise of his discretion because the findings that the dismissals were harsh, unreasonable and unjust were, in the appellant's submission, findings that were 'plainly unjust or unreasonable'. 9. We have emphasised above what was said in King v State Bank of New South Wales (No 2), drawing on the authorities cited in that case, that is, relevantly, that an appeal which seeks by and large to re-argue matters of fact or challenge the exercise of a discretion faces a significant hurdle. The matters contained within Ground 3 are properly characterised as being of that nature. Moreover, we consider that the challenged findings by the Commissioner were reasonably open to him. Accordingly, we declined to grant leave in respect of Ground 3. 10. Ground 2 of the appeal, on its face but particularly as developed in submissions, is of another character. 11. The central element of Ground 2, as it was developed in submissions, was that the impugned decision does not deal with evidence and submissions in the proceedings before the Commissioner to the effect that the 'dishonesty', as the appellant put it, shown by the respondents in the interview process conducted by the appellant was an obstacle to reinstatement. That was a matter about which express evidence was given, particularly from Mr Belsito for the appellant. The Commissioner was bound, it was put, to deal with that question in the context of considering the practicability of reinstatement pursuant to the statutory structure. In other words, the ground of appeal concerned the exercise of the Commissioner's discretion to reinstate but is promulgated on the basis that the Commissioner failed to have regard to a material consideration in the exercise of that discretion. 12. So far as that matter was agitated in seeking leave to appeal, we agree, as we held in the course of proceedings, that it warranted the grant of leave, and we granted leave to appeal in relation to Ground 2 only. That was available at least for the proper administration of justice given that the appellant established, prima facie, a basis for a miscarriage in the exercise of the Commissioner's discretion. 13. That leave was granted because we were satisfied that it was not possible to say, on the face of the impugned decision, that the Commissioner squarely addressed the issue of whether 'dishonesty', the term used by Mr Belsito in his evidence, was in any of the two applications a barrier to the reinstatement that the Commissioner ultimately ordered. Certainly, the Commissioner dealt with the tests going to the practicability of reinstatement at large, referring, for example, to the oft-cited decision in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. Furthermore, it may be inferred that the Commissioner rejected the appellant's submissions in that regard because he did reinstate the contracts of employment. 14. However, the Commissioner was, in our view, bound to deal, in terms, with the issue of alleged 'dishonesty' in the particular context of his consideration of the remedy of reinstatement. The issue of 'dishonesty' had been squarely raised in the proceedings as a matter to be considered specifically in relation to remedy, should that question arise, and there was evidence before the Commission from relevant officers of the appellant that reinstatement was, in their view, impracticable because of the respondents' lack of candour (the true character of the complaint vis á vis 'dishonesty'). 15. The Commissioner referred to the evidence at [258], but did not, on any reading of the decision from that point on, deal with it in terms, that is, as to whether he should exercise his discretion in favour of the respondents to order reinstatement or re-employment in the light of this issue, even if he did make assessments as to the 'honesty' or 'candour' of the respondents, per se. In our view, it was necessary for him to do so. It was argued that the Commissioner's view of that evidence and submission could be inferred from the fact of the orders he made, but in our view an inference alone is not enough to allow it to be said with sufficient confidence that the evidence and submission in question were satisfactorily addressed. 16. We agree that it is not the obligation of a first instance decision maker exhaustively to address every piece of evidence and every argument that is agitated in proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. Moreover, where it can fairly be taken from the terms of a decision that the decision maker has necessarily considered and addressed a fundamental matter, even if the reasons disclose that only shortly, the decision ought not be deconstructed simply to be restated in more comprehensive terms by an appeal bench. 17. However, the obligation to give reasons carries with it an obligation to give reasons for fundamental elements of the decision: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 per Meagher JA. In our view, in the context of the Commissioner's consideration of remedy, the matters agitated by the appellant to which we refer above were fundamental to that consideration, and the Commissioner was obliged to give reasons demonstrating that he had in some way had regard to those matters. Consideration of Merits of the Appeal 1. Having granted leave to appeal in relation to Ground 2, it falls to the Full Bench to determine the substantive appeals in relation to that ground. In real terms, that requires us to consider whether the Commissioner's failure to address in his decision the matter of the respondents' 'dishonesty', to use the appellant's term, without necessarily endorsing it, has led to an error. We answer that question in the affirmative for reasons we have given in relation to leave. However, that does not necessarily result in the appeal being upheld, given, as we will describe below, we consider the complaint of 'dishonesty' or 'lack of candour' was not properly available on the evidence and other findings made by the Commissioner (which were reasonably open) supported such a conclusion. 2. We have come to the view that the Commissioner's conclusions as to remedy, even if affected by error in the reasoning process, were, nonetheless, correct. That is essentially because the appellant is simply wrong to take the view that the respondents were 'dishonest' or 'lacked candour' as contended in this appeal. We do not say that Mr Belsito's evidence was other than genuine, but it, and the submissions that flowed from it, proceded on a false premise. 3. At the outset, it must be pointed out that the Commissioner did not, as the grounds for appeal appear to assume, find that Mr Brailsford had been 'dishonest' or 'lacked candour' during the interview process. So much was, very properly, conceded by counsel for the appellant in the course of the hearing (transcript: 26 August 2016 p 4). That is sufficient to dispose of this ground of appeal with respect to that respondent. 4. The Commissioner did express the view that Mr Wojciechowski was 'less than forthcoming' in an interview with the appellant prior to his termination (the real genesis of this ground of appeal), but that finding must be seen in its proper context. 5. What the Commissioner actually held was this (at [237]): My overall assessment of Mr Wojciechowski, having observed his demeanour in the witness box, was that he was guarded and not particularly forthcoming in the answers that he gave. This is not surprising given that a number of the fundamental planks of the case that were being put against him would later be disproved by the Council's own witnesses, as has been discussed above. Nevertheless, I am of the opinion that Mr Wojciechowski attempted to give honest answers to the questions as they were put to him. I reject the submission of the Council that the evidence given in these proceedings by Mr Wojciechowski was so lacking in credit as to provide a basis for the Commission to refuse the granting of discretionary relief if the dismissal is found to be unfair. (Emphasis added) 1. Far from finding that Mr Wojciechowski was 'less than honest', as the appeal ground urged on us, the Commissioner made a finding that Mr Wojciechowski 'attempted to give honest answers to the questions as they were put to him'. 2. It is no part of the ground of appeal in relation to which we have granted leave that the Commissioner's findings of fact concerning the conduct of the two respondents during the interview process were wrong. Such a finding is not, in our view, available in any event. We did not have the benefit of the Commissioner's observations of the witnesses, but examination of the Commissioner's analysis of that evidence, and the conclusions he formed about it, were, in our view, thorough and entirely open to him on our examination of the transcript of evidence of the proceedings below. This is particularly so as the gravamen of the appellant's case is that the respondents lacked candour. 3. Having made those findings, it is unsurprising that the Commissioner did not regard 'dishonesty' on the part of the respondents in the interview process to be a barrier to reinstatement. He found no such 'dishonesty'. The first and principal element of Ground 2, in relation to which leave was granted, cannot succeed. 4. The second element of Ground 2, which ran to the effect that the Commissioner had no basis for finding that the employees would be diligent in the future, was put as a secondary proposition and, in our view, is not a sustainable ground for appeal. The evidence plainly allowed a conclusion that the respondents would be diligent in the future. As we made clear in the course of proceedings, the grant of leave in relation to Ground 2 of the appeal was essentially in relation to its first limb. Conclusion and Disposition of the Appeal 1. In those circumstances, we consider leave to appeal should be granted only with respect to Ground 2. However, and notwithstanding error demonstrated in relation to Ground 2 of the appeal, we can see no proper basis on the evidence to interfere with the relief granted by Murphy C. We consider his particular findings as to Mr Wojciechowski were open on the evidence. Further, there is no proper basis, on the evidence, for the appellant's contention that the discretionary remedy of reinstatement should not have been granted by the Commissioner. ORDERS 1. The orders we make are as follows: 2. Leave to appeal is granted in relation to Ground 2 of the appeal. Leave to appeal is refused in relation to Grounds 1 and 3 of the appeal. 3. The appeal is dismissed. 4. The stay on terms granted in relation to the Commissioner's orders is dissolved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2016