[2008] AIRCFB 701 [2008] AIRCFB 701 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION DECISION Workplace Relations Act 1996 s.120—Appeal to Full Bench K Kaur v DHL Exel Supply Chain (Aust) Pty Ltd (C2008/2580) SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HAMBERGER COMMISSIONER BLAIR MELBOURNE, 12 SEPTEMBER 2008 Appeal against decision [ [2008] AIRC 457 ] and order [ PR981963 ] of Senior Deputy President Drake at Sydney on 5 June 2008 in matter number U2007/4316 - leave to appeal granted - decision not to reinstate quashed - alternate order made. [1] This is an appeal, for which leave is required, by Mrs K Kaur against the decision [ [2008] AIRC 786 ] and order [ PR981963 ] of Senior Deputy President Drake dated 5 June 2008, in which her Honour, having found the termination of Mrs Kaur’s employment by DHL Exel Supply Chain (Aust) Pty Ltd (DHL) was harsh, unjust or unreasonable, found that reinstatement was inappropriate. The original application was made pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act). [2] Mrs Kaur lodged a notice of appeal under s.120 of the Act. The appeal was heard on 19 August 2008. Mr M Aird, from the Transport Workers’ Union of Australia (TWU), represented Mrs Kaur. Mr I Taylor, of counsel, appeared for DHL. [3] No issue was taken on appeal with the decision of Senior Deputy President Drake that the termination was harsh, unjust or unreasonable. Nor was any issue taken with findings of fact made by her Honour, other than the finding that reinstatement was inappropriate. Accordingly, the scope of the appeal narrows, focussing on the alleged error on the part of her Honour, in finding that reinstatement was inappropriate. BACKGROUND [4] On 15 March 2007, over six years into her employment with DHL, Mrs Kaur, whilst off work on worker’s compensation, was contacted by her sister in India, who advised that their mother, also residing in India, was unwell. Mrs Kaur, after discussion with her husband, decided to visit her mother in India. Although on worker’s compensation, Mrs Kaur emailed her supervisor on 18 March 2007 advising that she wanted to use her annual leave in April 2007 and requested a leave form. She was advised that she would need to make application on a relevant company form and would need to specify dates for the leave. [5] On 22 March 2007, Mrs Kaur’s husband arranged flights for 4 April 2007, returning on 4 May 2007. On 23 March 2007, Mrs Kaur emailed these dates to DHL. On 27 March 2007, the request for this leave was verbally refused, with the refusal confirmed in writing on 29 March 2007. Mrs Kaur sought a review of the decision, explaining the circumstances of her mother and was granted leave of one week — from 4–11 April 2007 inclusive. [6] No attempt was made to change the flights to secure an earlier return flight prior to the departure of the Kaur family to India on 4 April 2007, although Mrs Kaur advised DHL by email that she was trying her “best to get seats confirmed to come back as early as possible”. Mrs Kaur and her husband chose to try and arrange an earlier flight while in India. [7] The Kaurs arrived in India on 5 April 2007. On the same day, Mrs Kaur’s husband attended two travel agencies and made arrangements to be contacted if flights became available on 10, 11 or 12 April 2007. [8] Upon arrival in India the family was unwell. Mrs Kaur was particularly unwell and on 10 April 2007 was diagnosed with acute lumbago and prescribed bed rest from 10 April to 30 April 2007. On the same day, one travel agency contacted Mrs Kaur’s husband and advised that flights had become available on 11 April 2007. He advised that due to his wife’s medical condition he would not seek to change the flights. [9] Mrs Kaur’s health deteriorated further and on 19 April 2007 she was hospitalised suffering from vomiting and pyrexia, being discharged on 28 April 2007. [10] Mrs Kaur and her husband had contacted, or attempted to contact, DHL on numerous occasions advising of her medical state and providing medical certificates. [11] On 18 April 2007, by letter, DHL wrote to Mrs Kaur advising her that since she had not made verbal contact with them, she was regarded as having abandoned her employment and seeking contact by 10 April 2007. A further letter was sent on 20 April 2007 terminating the employment of Mrs Kaur allegedly for abandoning her employment. THE DECISION OF SENIOR DEPUTY PRESIDENT DRAKE [12] In her decision, her Honour, having found the termination was harsh, unjust and unreasonable, turned her attention to remedy, as follows: 1 “[94] Having determined that the termination of Mrs Kaur’s employment was harsh, unjust or unreasonable I must now consider what might be an appropriate remedy. I must not make an order unless I am satisfied that the remedy is appropriate having regard to all the circumstances of the case and those matters set out within ss654(2) of the Act. The subsection is set out below: ‘(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and (b) the length of the employee’s service with the employer; and (c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and (d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e) any other matter that the Commission considers relevant; that the remedy ordered is appropriate.’ [95] I have considered the submissions of the parties in regard to remedy. I do not consider reinstatement is an appropriate remedy in this application. [96] I have considered whether or not any order issued by me is likely to affect the viability of DHL. I do not believe any order I issue will do so. [97] I have considered the length of Mrs Kaur’s employment. Mrs Kaur had been a long term employee of DHL with no relevant disciplinary history. [98] I considered the remuneration Mrs Kaur was likely to have lost as a result of the termination of her employment. [99] I considered Mrs Kaur’s attempts to mitigate her loss. I formed an adverse view about Mrs Kaur’s attempts. Mrs Kaur has made almost no attempt to mitigate her loss. She has been at home feeling stressed and distressed. She has approached a minimum number of employment agencies who did not find her work. Her subsequent attempts to find work are at the same level as her attempts to change her flights before leaving Australia. She has been thinking about it. What Mrs Kaur has mostly done is sit about feeling aggrieved. [100] I considered Mrs Kaur’s conduct in leaving Australia without her leave approved. I have concluded that Mrs Kaur contributed to the situation she finds herself in and to the attitude of her employer by her failure to make any attempt to adjust her plans. [101] Mrs Kaur has used the services of two Unions following the termination of her employment. Mrs Kaur could have called upon a Union to notify a dispute when her leave was refused. She could have challenged DHL’s refusal of leave through the grievance procedure. She could have done a number of things including comply with the direction and change her flight. Instead, she went on leave secure in her belief that her position had merit. [102]In relation to ss654(2)(e) there were a number of additional matters that I considered relevant. [103] I reconsidered all of those matters to which I had already had regard when considering whether the termination of Mrs Kaur’s employment was harsh, unjust or unreasonable if those matters were relevant to my consideration of remedy. One of those matters was my finding that DHL had no pressing operational reason to reject Mrs Kaur’s application for leave. Its grounds were spurious. Its response to Mrs Kaur’s mother’s illness was unsympathetic. The conduct of Mr Wayne Burton, Mrs Kaur’s supervisor, was particularly ill mannered and inappropriate on a number of occasions. I have already found that there was no reason to reject Mrs Kaur’s application for sick leave and that the employer was aware of the basis of her absence but proceeded to terminate her employment in any event. I considered this matter in contemplation of remedy. [104] On balance, having considered all of these matters, I have decided that compensation is the appropriate remedy in this application.” SUBMISSIONS [13] The TWU, representing Mrs Kaur, submitted that Senior Deputy President Drake erred, in failing to issue a reinstatement order and a corresponding order for lost remuneration and continuity of service, in that she failed to provide clear and cogent reasons to substantiate her failure to reinstate Mrs Kaur. It submitted that, although Senior Deputy President Drake made some adverse findings against Mrs Kaur, they did not substantiate her decision not to reinstate. It submitted that there was no evidence that reinstatement was not the appropriate order and that there was overwhelming evidence to support reinstatement. [14] Mr Taylor, counsel for DHL, submitted that no satisfactory basis was advanced to warrant leave to appeal in relation to what was a discretionary decision by Senior Deputy President Drake not to order the reinstatement of Mrs Kaur. He submitted that no particular error in the decision of Senior Deputy President Drake had been identified by the appellant and that a proper reading of her decision disclosed that she had considered all relevant statutory and evidentiary matters. He submitted that there was no error in the decision of Senior Deputy President Drake and, in that circumstance, there was no basis for the Full Bench to interfere with her decision on appeal. [15] Mr Taylor submitted that the adverse findings made by her Honour against Mrs Kaur were relevant and provided a proper basis for finding that reinstatement was not appropriate. He submitted that the failure of Mrs Kaur to rearrange her flights before leaving and her misleading representations about this to DHL raised issues of trust and confidence which supported the decision by Senior Deputy President Drake. APPROACH TO THE APPEAL [16] Section 120 of the Act provides that an appeal lies against a decision of the Commission with leave of the Full Bench where either it is in the public interest for leave to be granted or where the decision is affected by error. An appeal against a decision on an application for relief under s.643(1)(a) is properly characterised as a discretionary one and the existence of appealable error must therefore be determined according to the principles articulated in House v The King . 2 [17] In House v The King , the High Court stated: “But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 3 [18] It is not enough for the Full Bench to be of the view that it would have preferred a different outcome 4 or would have decided the matter differently. The appellant must establish that the decision is affected by appealable error such as acting on a wrong principle, mistaking a finding of fact, not taking into account a material consideration or that the decision was unreasonable or plainly unjust. 5 In matters involving the exercise of discretion, an appeal only lies to the extent that the decision of the member at first instance was in error. 6 [19] We accept as appropriate the approach of the Full Bench in Australia Meat Holdings Pty Ltd and McLauchlan : “In our view the approach adopted by the Commissioner was reasonably open to him. The fact that we may not have reached the same conclusion on this question is not to the point. In order to warrant a decision granting leave to appeal more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter was being considered at first instance. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave to appeal merely to substitute its decision for the decision under appeal.” 7 OUR DECISION [20] We have carefully considered the matters referred to by Senior Deputy President Drake in her decision, particularly the reasoning at paragraphs 96-104 of her decision, immediately following her decision that reinstatement was not an appropriate remedy. [21] Her Honour referred to three particular matters in that section of the decision, which might be considered adverse to Mrs Kaur: (a) A finding, in paragraph 99, that Mrs Kaur had made almost no attempt to mitigate her loss; (b) A finding, in paragraph 100, that Mrs Kaur contributed to the situation she found herself in, and to the attitude of her employer, by her failure to make any attempt to adjust her plans by leaving Australia without approval for the period of leave required to accommodate the flights booked. This conduct was elaborated upon by her Honour, with relevant findings of fact, at paragraph 79 of her decision; and (c) A finding, in paragraph 101, that Mrs Kaur went off on leave secure in her belief that her request for the full period of leave had merit, rather than challenging the refusal or complying with DHL’s direction by changing her flights. [22] The failure to mitigate does not appear relevant to the appropriateness of reinstatement, except to the extent that it counters, to some extent, the reliance by Mrs Kaur on her financial circumstances as a ground in support of an order for reinstatement, a matter not expressly dealt with in her Honour’s reasons in relation to remedy. Failure by Mrs Kaur to mitigate her losses does not, in itself, provide a proper basis for finding that reinstatement was inappropriate. [23] The failure of Mrs Kaur to challenge the decision of DHL to refuse her leave request does not appear to impact upon the appropriateness of reinstatement. Such a challenge, if successful, may have avoided the termination of her employment but does not materially impact upon the appropriateness of reinstatement. [24] The final matter against Mrs Kaur identified in the decision of Senior Deputy President Drake is her finding in paragraph 100, partially refrained in paragraph 101 and elaborated upon in paragraph 79, that Mrs Kaur contributed to the situation she found herself in, and to the attitude of her employer, by her failure to make any attempt to adjust her plans by leaving Australia without prior approval for the period of leave required to accommodate the flights booked. [25] This finding should be considered in the context of the findings by her Honour that: Upon arrival in India, steps were taken to secure an earlier flight, steps which resulted in the offer of a return flight to Australia on 10 April 2007 which would have had Mrs Kaur arrive in Australia in time to attend DHL as directed [paragraph 79]; Evidence of Mrs Kaur’s medical condition, whilst in India, can be accepted on the evidence [paragraphs 80-82]; Mrs Kaur’s failure to return to work on 12 April 2007 was the result of an appropriately certified medical illness and was not a deliberate failure to follow DHL’s direction to return on that date [paragraph 84]; and Mrs Kaur intended to come back on a flight before 12 April 2007 if she could obtain one and would have done so on the flight that became available on 10 April 2007 if her illness had not prevented her from doing so [paragraph 92]. [26] In light of these findings, we see no basis why Mrs Kaur’s failure to rearrange her return flight before she left Australia in order to secure an earlier return flight would support a finding that reinstatement was not appropriate. [27] From the reasoning of Senior Deputy President Drake, it appears that her decision that reinstatement of Mrs Kaur was inappropriate and was substantially founded on her findings that Mrs Kaur had “dithered” in rearranging flights before leaving Australia and made no attempts to alter her flight arrangements in order to accommodate the period of leave authorised by DHL before departing for India, thereby contributing to the circumstances resulting in the termination of her employment. It is not apparent, however, how these considerations supported a decision that reinstatement was inappropriate. On the findings of fact made by her Honour, which were not challenged on appeal and are relied upon by us, notwithstanding the inaction of Mrs Kaur when in Australia, she did make arrangements, through her husband, to secure a return flight to Australia which would have allowed her to comply with the leave arrangements authorised by DHL. But for her illness, which was found by Senior Deputy President Drake to be properly evidenced, Mrs Kaur would have complied with the requirements of DHL. [28] There is no basis upon which it could be found that DHL could have an objectively founded concern about the ability to resume the employment relationship between itself and Mrs Kaur. The concern of DHL about the sustainability of the employment relationship, and necessary levels of trust and confidence, was premised on a presumption, on its part, that Mrs Kaur never intended to comply with the leave arrangements it authorised 8 and was ignoring its direction to return to work on 12 April 2007. 9 This premise was found by Senior Deputy President Drake to be baseless in fact. In that circumstance DHL could have no objectively based concern about reinstatement. Indeed, in his evidence Mr A Brooks, DHL’s Project Site Operations Manager, conceded that had he been aware that Mrs Kaur had made arrangements to return to Australia in time to resume work on 12 April 2007, the decision, in which he was involved, 10 to terminate Mrs Kaur’s employment may not have been taken. 11 Further, Mr Brooks, who was Mrs Kaur’s immediate supervisor, accepted her to be an honest, loyal and conscientious employee. 12 [29] In our view, the considerations set out at paragraphs 79, 100 and 101 provide no logical basis upon which Senior Deputy President Drake could have concluded that reinstatement was inappropriate in those circumstances. Since those considerations were central to her decision not to reinstate Mrs Kaur, we find that her Honour’s decision not to reinstate Mrs Kaur was unreasonable and plainly unjust. [30] Accordingly, we grant leave to appeal and quash the decision by Senior Deputy President Drake not to reinstate Mrs Kaur. [31] We have decided, for ourselves, to make an order [ PR983135 ] that Mrs Kaur be reappointed to the position in which she was employed immediately before her termination or to another position on terms and conditions no less favourable than those on which she was employed immediately before her termination. [32] We will order that DHL maintain the continuity of Mrs Kaur’s employment. [33] We will also order that DHL pay Mrs Kaur an amount in respect of the remuneration lost by her, consequent upon the termination. In this respect, we think the amount of compensation ordered by Senior Deputy President Drake in her order [ PR981963 ] is appropriate in respect of any lost remuneration up until the time of the order on 5 June 2008. We have no evidence in respect of the period beyond 5 June 2008 of any loss of income beyond that time, or attempts by Mrs Kaur to mitigate her losses. [34] Accordingly, we will refer the matter to Senior Deputy President Hamberger to determine any additional payment which should be ordered in respect of remuneration lost for the period between the order of Senior Deputy President Drake and the reinstatement of Mrs Kaur. [35] We will issue an order in respect of reinstatement, continuity and a payment in respect of lost income up until 5 June 2008. Senior Deputy President Hamberger will program the matter to hear evidence and submissions in respect of remuneration lost for the period between the order of Senior Deputy President Drake and reinstatement, which will proceed unless he is advised by the parties of an agreed arrangement between the parties which removes the necessity for such a hearing, determination and, if appropriate, a further order. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances : M Aird with O Fagir on behalf of the appellant. I Taylor of counsel with A Vernier on behalf of the respondent. Hearing details: 2008. Sydney: August 19. 1 [2008] AIRC 457 , at paragraphs 94-104. 2 (1936) 55 CLR 499. 3 ibid., at pp 504-505. 4 ibid., at pp 504-505 (per Dixon, Evatt and McTiernan JJ). 5 ibid. 6 Woodman v The Hoyts Corporation Pty Ltd (2001) 107 IR 172. 7 (1998) 84 IR 1, at p. 19. 8 Evidence of Mr A Brooks: Appeal Book 1, at pp 320-321. 9 Statement of Mr A Brooks Appeal Book 2, at p. 746. 10 Evidence of Mr A Brooks: Appeal Book 1, at p. 320. 11 ibid., at p. 320. 12 ibid., at p. 321. Printed by authority of the Commonwealth Government Printer <Price code C, PR983093>