WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 00229 CORAM : COMMISSIONER S M MAYMAN HEARD : MONDAY, 9 FEBRUARY 2015 DELIVERED : WEDNESDAY, 11 MARCH 2015 FILE NO. : CR 32 OF 2014 BETWEEN : THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH Applicant AND THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA Respondent 372 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 95 W.A.I.G. CatchWords : Industrial Law – Unfair dismissal application – Procedural application by respondent to part dismiss on public interest grounds – Relevant principles applied – Application part dismissed – Remaining matters: whether respondent had reasonable grounds to determine applicant was guilty of the misconduct alleged, procedural fairness and penalty. Legislation : Industrial Relations Act 1979 (WA) s 6, s 6(c), s 7(1), s 26, s 26(1), 26(1)(a), s 27, s 27(1)(a), s 27(1)(a)(ii), s 44 Result : Application part dismissed Representation: Applicant : Mr C Fogliani (of counsel) Respondent : Mr D Matthews (of counsel) Case(s) referred to in reasons: Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland Electricity Commission; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00824; (2014) 94 WAIG 1462 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 01367 The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 Preliminary Reasons for Decision 1 The substantive application in this matter is one by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (the applicant) on behalf of Ms Janet Vimpany that she was unfairly dismissed as a Passenger Ticketing Assistant (PTA) on 8 October 2014 following an exchange between herself and Mr Hammon which occurred on 27 April 2013. 2 The dispute was referred and was listed for hearing on 9 February 2015. On the day of the hearing the parties sought to amend the memorandum of matters as referred in light of the findings of the Full Bench decision in Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority (2014 WAIRC 01367) (FB ARBTIU 2014). 3 The amended memorandum as referred: Background 1. Ms Janet Vimpany, a member of the applicant, was employed by the respondent as a Passenger Ticketing Assistant. 2. On 27 April 2013 Ms Vimpany was involved in an exchange with Mr David Hammon, who was employed by the respondent as a Station Co-ordinator and who was, at the time of the exchange, Ms Vimpany's direct line manager. 3. The incident on 27 April 2013 led to Ms Vimpany being found to have committed breaches of discipline which were dealt with by the respondent by the imposition of a reprimand. 4. As a result of accounts of the incident on 27 April 2013 given by Ms Vimpany in the course of the disciplinary proceedings referred to above, and elsewhere, the respondent commenced a disciplinary process in relation to allegations that Ms Vimpany had deliberately given the respondent false accounts. 5. The applicant, by application filed on behalf of Ms Vimpany in this Commission on 11 February 2014 (Application No C 3 of 2014), challenged the findings and penalty imposed in relation to the events of 27 April 2013 and sought an order restraining the respondent from continuing the disciplinary process in relation to the allegations that Ms Vimpany had deliberately given the respondent false accounts. 6. The matter went to a contested hearing before Commissioner Kenner. 7. Commissioner Kenner made an order and gave reasons for decision in Application C 3 of 2014 on 1 August 2014 (ARTBIU v PTA 2014 WAIRC 00824). 8. Commissioner Kenner dismissed the application with the result that the disciplinary findings and penalty stood and the respondent was allowed to continue the disciplinary process in relation to the alleged false accounts. 9. In the course of his reasons for decision Commissioner Kenner made findings of fact. 95 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 373 10. Commissioner Kenner also wrote the following in relation to Ms Vimpany's conduct after 27 April 2013 (the findings have been explained in the Full Bench Decision on appeal, 2014 WAIRC 01367): a. Ms Vimpany had been less than frank in her characterisation of the events which occurred on 27 April 2013, when they were first reported to the respondent, and in the subsequent investigation, earlier in 2013; and b. it was open to conclude that Ms Vimpany had demonstrated a lack of candour in relation to the events of 27 April 2013. 11. The disciplinary process in relation to the alleged dishonesty continued and by letter dated 7 October 2014 the respondent informed Ms Vimpany that it found the allegations in relation to the dishonesty proven and that her employment would be terminated effective 8 October 2014. Applicant’s issues for hearing and determination Oppressiveness of the dismissal 12. Was Ms Vimpany’s account of the event ‘knowingly false’ or ‘deliberately false’? 13. Did the respondent have an ‘integrity test’? If the answer is yes, then: a. did the respondent inform Ms Vimpany of the content of that integrity test before it dismissed her? b. did Ms Vimpany fail the integrity test? 14. Was Ms Vimpany’s dismissal oppressive? 15. Does Commissioner Kenner’s decision restrict the Commission in this matter? Unreasonableness/unfairness of the dismissal 16. Does the mere fact that Ms Vimpany’s account of the event was different to that of the other people who were present mean that Ms Vimpany’s account was dishonest? 17. Did Mr Steedman have sufficient evidence to reasonably conclude that Ms Vimpany had been dishonest? 18. Was Ms Vimpany’s dismissal unreasonable or unfair? Harshness of the dismissal 19. Was the respondent’s decision to dismiss Ms Vimpany a disproportionate response to the alleged conduct? 20. Was Ms Vimpany’s dismissal harsh? Orders sought by the applicant Primary Orders 21. The applicant is seeking the following: a. an order requiring the respondent to reinstate Ms Vimpany into her former position; b. an order requiring the respondent to recognise Ms Vimpany’s continuity of service; and, c. an order requiring the respondent to pay Ms Vimpany the remuneration lost, or likely to be lost, by Ms Vimpany because of the dismissal. Alternate Orders 22. In the event that the Commission considers that reinstatement would be impracticable, then the applicant seeks the following: a. an order that the respondent re-employ Ms Vimpany in to an another available and suitable position; b. an order requiring the respondent to recognise Ms Vimpany’s continuity of service; and, c. an order requiring the respondent to pay Ms Vimpany the remuneration lost, or likely to be lost, by Ms Vimpany because of the dismissal. 23. In the event that the Commission considers that reinstatement and re-employment would be impracticable, the applicant seeks an order that the respondent pay to Ms Vimpany an amount of compensation for loss or injury caused by the dismissal. Respondent's issues 24. The issue of what relevantly occurred on 27 April 2013 has been finally determined by Commissioner Kenner in his decision in ARTBIU v PTA. 25. It would be contrary to the common law and the objects of the Industrial Relations Act 1979 (the Act) set out in s 6 of the Act, and in particular s 6(c), and the guiding principles of the Act set out in s 26, and in particular s 26(1)(a), for the Commission as presently constituted to revisit in any way the matter of what relevantly occurred on 27 April 2013 this having been finally determined by Commissioner Kenner. 26. The only issues for determination before the Commission, as presently constituted, are as follows: a. whether Ms Vimpany gave deliberately false accounts in relation to what occurred on 27 April 2013 to the respondent and, if so; 374 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 95 W.A.I.G. b. whether the penalty of dismissal was within the reasonable range of disposition by the respondent and, if not; c. what was the appropriate penalty? Respondent's issues on misconduct 27. The accounts given by Ms Vimpany set out in [3] of the Schedule to the respondent's Notice of Answer were indisputably inaccurate in material ways. 28. No explanation has ever been given as to how Ms Vimpany's accounts could be both inaccurate and genuine or honest. 29. The respondent was entitled to conclude that, on the balance of probabilities, the inaccuracies were the result of Ms Vimpany giving deliberately false accounts. 30. The findings of Commissioner Kenner that: a) Ms Vimpany had been less than frank in her characterisation of the events which occurred on 27 April 2013, when they were first reported to the respondent, and in the subsequent investigation, earlier in 2013; and b) it was open to conclude that Ms Vimpany had demonstrated a lack of candour in relation to the events of 27 April 2013 stand (as explained by the Full Bench in its Decision on appeal, 2014 WAIRC 01367) and, while not determinative of the matter before the Commission as presently constituted, must be accorded significant respect consistent with the common law and the objects and guiding principles of the Act. Respondent's issues on penalty 31. Ms Vimpany attempted to deliberately mislead her employer both in writing and orally and in formal processes. 32. The conduct was repeated on several occasions and constitutes a course of conduct. 33. The falsehoods were in relation to material matters, not incidental or minor matters. 34. The nature of the falsehoods was such that, if believed, they may have had serious consequences for another employee. 35. Ms Vimpany abandoned her obligations to her employer and standards of fairness and decency in relation to another human being in pursuit of self-interest and self-preservation. 36. The respondent makes reference to all of the matters set out in [18] of the Schedule to the Notice of Answer. 37. Dismissal was not only within the range of reasonable disposition, and therefore should not be interfered with, but was the only reasonable disposition of the matter. Orders sought by the respondent 38. The respondent seeks an order that the application be dismissed. The course of the proceedings 4 The hearing was listed for two days commencing on Monday 9 February 2015. The first day of proceedings involved hearing evidence from the applicant’s witnesses: • Mr Charles Rahim, a polygraph examiner from New South Wales (by telephone); • Ms Jennifer Blake, a passenger ticketing assistant (PTA); • Mr Malcolm Lionel Willi Heatherly, a PTA; • Mr Robert Hall, a PTA; • Mr David Scott, a carpark attendant (CPA); • Mr Aleksander Sekulovski, a PTA; • Mr John Raymond Noble, a customer service assistant (CSA); • Mr Mark Peter Counsel, a CSA; • Ms Helen Martin, a PTA; • Mr Barry Keith Watts, a CSA; and • Ms Janet Vimpany, a PTA. 5 These are unusual proceedings in that findings of fact in relation to what occurred on 27 April 2013 had been determined by Kenner C in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch -v- Public Transport Authority of Western Australia (2014) WAIRC 00824 (the ARTBIU). This decision had been the subject of appeal and in FB ARBTIU 2014 relevantly at [46] it was said: It is not clear what the learned Commissioner meant by this finding other than it is clear that he did not find Ms Vimpany's and Ms Blake's version of events to be credible. 6 The Public Transport Authority of Western Australia (the respondent) submitted that it had gone to some efforts in these proceedings to invite Ms Vimpany and other witnesses to give evidence on issues that would ultimately make the conclusions reached by the respondent to be considered unreasonable. For example perhaps there was something on the face of the documents or something occurring in Ms Vimpany’s life at the time. If so, it was important for the witness to inform the 95 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 375 Commission as to what had made the circumstances unreasonable. The respondent suggested neither the evidence nor the documents indicated the same: Was there something affecting your memory, was there something affecting your judgement, your insights, perceptions, something – “No”. Categorical rejection of any such proposition and a maintenance that she’s telling the truth and that the other witnesses have got it wrong, Mr Steedman got it wrong, Commissioner Kenner has got it wrong. She’s gone all in in relation to this matter. When it first came up she got reprimanded for what happened on 27 April 2013. And that could have very well been the end of it. She’s gone all in on the matter and at least you can say this about her; that when she goes all in, she goes all in. She gave the same version to Commissioner Kenner and even in the face of Commissioner Kenner’s unchallenged findings she still maintains that her version is the truthful account. (ts 88) Procedural application by respondent 7 The respondent submitted that pursuant to s 27(1)(a) of the Act the Commission ought refrain from hearing part of the matter, in particular the Commission ought hear no further the question of whether Ms Vimpany gave false accounts of what occurred on 27 April 2013. Kenner C has determined the facts relating to the incident on that day. Also Ms Vimpany must accept that her version of events and that of others as found by Kenner C are irreconcilable. 8 The respondent accepts that the applicant on behalf of Ms Vimpany has raised the issue of procedural fairness and the Commission therefore should receive submissions with respect to that issue and certainly the Commission has yet to receive submissions on the question of penalty. Certainly in relation to the s 27(1)(a) application the respondent does not seek to reject the application in relation to penalty or procedural fairness. 9 The respondent considers it would be desirable that all other matters in relation to the application other than procedural fairness and the question of penalty cease pursuant to s 27(1)(a) in so far as they are testing whether Ms Vimpany gave false accounts and whether she did so knowingly and importantly whether the employer was entitled to be reasonably satisfied that those two things were the case. 10 Counsel for the applicant in response to the s 27(1)(a) application made by the respondent objected to the application by the respondent and raised the decision in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224. The applicant raised the test of dishonesty as a circumstance where an employee is stealing from their employer which is not about an employer attempting to protect their business. The current circumstances from all accounts on the evidence already led were as described by the applicant a ‘small spat in the workplace and the PTA are saying that an employee was dishonest in responding to their version of the events of what happened’ (ts 90). In referring to dishonesty this was not a circumstance where Ms Vimpany had been accused of stealing anything in circumstances where property had been damaged or allegations had been made of fraud, for example, therefore the applicant drew a different type of example although agreeing that it was a type of dishonesty. 11 The applicant referred the Commission to Briginshaw v Briginshaw (1938) 60 CLR 336) test as one described as a test of fairness and common sense. The applicant submitted: Now, my learned friend’s invited the Commission not to consider two things. He’s invited the Commission not to consider whether the statements were false. We agree – we actually – we don’t want the Commission to go there because it potentially puts you in conflict with Commissioner Kenner’s decision. But in terms of whether Mr Steedman had sufficient evidence to have reasonable belief that the misconduct occurred – we think that’s a live contest and we believe because of what’s contained in the reasons - - - … FOGLIANI, MR: The second part of what my learned friend invited the Commission not to consider, that is whether there’s sufficient evidence to deal with – whether there was sufficient evidence before Steedman for him to come to a reasonable conclusion that misconduct had occurred, we say that’s a live issue and there is a contest there. Now, nothing in Commissioner Kenner’s decision making or his reasons for decision would stop this Commission from dealing whether - with dealing with the issue of whether Mr Steedman had sufficient evidence to reasonably conclude that the misconduct actually occurred. That’s a live issue and it’s something that this Commission has jurisdiction to deal with and it’s something we say the Commission should deal with. (ts 90, 91) 12 The applicant submitted contrary views to the respondent’s submissions in particular whether there was sufficient evidence for Mr Steedman to enable him to come to reasonable conclusion that misconduct had occurred. The applicant submitted that the FB ARBTIU 2014 matter at [48] set out the issue: the two questions required findings of fact to be made whether Ms Vimpany, Mr Hammon or any other PTA employee conducted themselves ‘dishonestly by’, initiating a claim ‘they knew to be false’, or giving an account to investigators ‘they knew to be false’. By forming issue 3 in this way, to make a finding of fact that answered the question put as yes, the Commission would have to be satisfied that in respect of an employee in question, that prior to the employee making the claim or giving an account, or at the time the claim was made, or the account given to the investigators, that the employee intended to give an account that was not truthful. To make such findings the learned Commissioner would have had to find that Ms Vimpany or any other employee of the PTA had formed an intention to give a false account and that in doing so their conduct was dishonest. 376 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 95 W.A.I.G. Conclusion 13 This is a procedural application by the respondent seeking a dismissal in whole or in part of proceedings pursuant to s 27(1)(a) of the Act. In this case the respondent submits that the relevant section to be applied to an exercise of the Commission’s discretion is that conferred by s 27(1)(a)(ii) of the Act, to refrain from further hearing in the public interest the matter with the exception of these matters in relation to procedural fairness and penalty. 14 Counsel for the applicant suggests the ARBTIU findings as they related to Ms Vimpany’s credibility ([64] and [65]) have the potential to place the Commission in conflict with Kenner C’s decision. 15 The applicant agreed that the issues of procedural fairness and penalty remained matters yet to be dealt with in the proceedings and submitted further the issue of whether the respondent had sufficient evidence to reasonably conclude that the misconduct actually occurred was an issue yet to be raised. Statutory Framework 16 Section 27(1)(a) of the Act provides: Except as otherwise provided in the Act, the Commission may, in relation to any matter before it- (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from hearing or determining the matter or part if it is satisfied – (i) that the matter or part thereof is trivial; or (ii) that further proceedings are not necessary or desirable in the public interest; or (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued as the case maybe; Principles in applications of public interest 17 The principles to be applied to an exercise of discretion as conferred by this particular section of the Act were identified by Kenner C in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch -v- Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431. Kenner C in referring to s 27(1)(a) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter observed as follows: The notion of the “public interest” is somewhat amorphous. Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest. Similar provisions exist in other industrial jurisdictions. In Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that “Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree” (per Mason CJ and Wilson and Dawson JJ). Kenner C in the same decision went on to say: The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one. A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power. However, given that a party is entitled to invoke the Commission’s jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden: QEC per Deane J at 163. Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4. 18 Substantively, this is a case where the applicant in the present proceedings seeks the reinstatement of Ms Vimpany into her former position as a PTA recognising continuity of service and payment for any remuneration lost or likely to be lost as a result of the dismissal. Alternatively, if the Commission considers that reinstatement would be impracticable then in the alternative the applicant seeks an order that the respondent re-employ Ms Vimpany into another available and suitable position with the respondent. The applicant requests the Commission issue an order requiring the respondent recognise Ms Vimpany’s service and issue an order requiring entitlements be paid for any remuneration lost as a result of the dismissal. In the event that the Commission considers that reinstatement and re-employment would be impracticable the applicant seeks an order the respondent pay to Ms Vimpany an amount of compensation for loss or injury caused by the dismissal. 19 In the amended memorandum of matters as referred the respondent summarised Kenner C’s findings in ARTBIU with respect to Ms Vimpany: a. Ms Vimpany had been less than frank in her characterisation of the events which occurred on 27 April 2013, when they were first reported to the respondent, and in the subsequent investigation, earlier in 2013; and 95 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 377 b. it was open to conclude that Ms Vimpany had demonstrated a lack of candour in relation to the events of 27 April 2013. 20 The respondent submitted it remains to be determined and would be contrary to the common law and the objects of the Act set out in s 6 of the Act, and in particular s 6(c), and the guiding principles of the Act set out in s 26, in particular s 26(1)(a), for the Commission as presently constituted to revisit in any way the matter of what relevantly occurred on 27 April 2013 this having been finally determined by Kenner C. 21 The only issues the respondent seeks for determination before the Commission as presently constituted are as follows: a. whether Ms Vimpany gave deliberately false accounts as to what occurred on 27 April 2013 and, if so; b. whether the penalty of dismissal was within the reasonable range of disposition by the respondent and, if not; c. what was the appropriate penalty? (extract from amended memorandum, 10 February 2015) 22 The applicant by separate application on behalf of Ms Vimpany on 11 February 2014 before Kenner C, in relation to the events of 27 April 2013, sought to restrain the respondent from carrying out a disciplinary process against Ms Vimpany suggesting that she had deliberately given the respondent false accounts of 27 April 2013. Kenner C dismissed the application and gave reasons for his decision ARTBIU. The respondent continued the disciplinary process against Ms Vimpany which led ultimately to her termination by correspondence on 8 October 2014. 23 In cross-examination in these proceedings Ms Vimpany was taken to four documents. The first of those documents was the HSC Incident Report Form (exhibit A1 at tab 8). Counsel for the respondent put the following question to Ms Vimpany: I put it to you that what you represent as the facts in the first document I took you to, the HSC Incident Report Form are not true, accurate or honest and in fact that is a false account of what happened on 27 April 2013? - - - No. It is a true, accurate - - - … You deny that? - - - - - that’s – it’s – it’s all true what I said. (ts 78) 24 The respondent went on to question the second version of events found in exhibit A1 at tab 6 of the blue book. Counsel put to Ms Vimpany: And what I put to you just so that it’s plain, is that in the material particulars that is to the extent it portrays Mr Hammon as the aggressor and yourself as the victim of his aggression, it was false. That’s what I’m putting to you as accurate and what is your response?-- - - What – what I wrote was true. Okay. And you reject my assertion that it was false? - - - I reject that. Yes. (ts 78) 25 Referring to exhibit A1 at tab 11 which was Ms Vimpany’s substantive response from the original notification from Mr Heaysman: Again, you accept that this document portrays Mr Hammon as the aggressor and yourself as the victim of his aggression? - - - Mr Heaysman, did you say? No. Mr Hammon. It was a – it was in response to the notice from Mr Heaysman, but what I put to you and I am repeating myself, but that it portrays Mr Hammon as the aggressor and yourself as the victim of his aggression? - - - Yes. All right. And I put it to you that in that material particular it is a false account? - - - It’s not a false account. It’s a true account. (ts 78) 26 Finally counsel referred Ms Vimpany to exhibit A1 at tab 13 which carried with it a serious of tracked changes that had been added by Ms Vimpany: You agree with me that it portrays Mr Hammon as the aggressor on 27 April 2013 and yourself as the victim of that aggression? - - - With my changes. Yes, that’s true. … And you don’t offer up to the Commission any suggestion, do you that your versions given may have been affected in terms of their dependability or reliability by stress, overwhelmed feelings, intimidation by the employer, or anything else? - - - No. That’s a true account. They’re all true accounts of what happened on that day. (ts 78, 79) 27 In response to the submissions in cross-examination of Ms Vimpany, counsel asked of the witness whether she intended to give false statements. In her response Ms Vimpany declared that at no stage did she ever give any false statements. The question was asked again by counsel for the applicant, and in response: 378 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 95 W.A.I.G. I never gave intention to give false statements. Never? - - - Never. (ts 79) 28 In response the respondent submitted that the test in matters of dishonesty, the issue that Ms Vimpany was ultimately dismissed for on 8 October 2014 was accurately set out by the applicant in their outline of submissions in [7] namely: The employer does not need to establish that the employee was actually guilty of the misconduct. Instead, the employer's must show that following a proper inquiry there were reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. Described another way, the employer is obliged to show that there was “sufficient evidence” to establish the facts said to constitute the misconduct. 29 The applicant cites The Minister for Health v Drake-Brockman (2012) 92 WAIG 203, (2012) WAIRC 00150 (Drake Brockman) and the respondent in essence cites the Bi-Lo test as essentially applying to cases of dishonesty. Was it reasonable on the information before the employer having conducted a proper inquiry to come to the conclusion that the employer did. 30 The second point made by the respondent was that the system has already determined by way of the matter heard by Kenner C the facts of what occurred on 27 April 2013: There is and can be no criticism or comment other than by way of agreement with Commission Kenner’s characterisation of the versions given by Ms Vimpany and the versions given by others as being diametrically opposed. That is a correct, with respect, characterisation from Commissioner Kenner. Nothing’s been said against it, nothing could reasonably be said against that characterisation. Similarly, nothing could sensibly be said about Commissioner Kenner’s finding that there was a gulf between the two versions of events that cannot be explained away, as often happens, by matters of emphasis, nuance, perception, stand point – those kind of things. (ts 86) 31 Whilst the Commission recognises its discretion in matters pursuant to the Act s 27(1)(a) is broad. Having regard to the exercise of my discretion I am required in all matters before me to have regard to my statutory obligations under s 26(1) of the Act as per Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4 (Robe River) and in so doing recognise that this application as referred to the Commission as an industrial matter as defined under s 7(1) of the Act. This matter can be properly characterised as ‘affecting or relating or pertaining to’ the termination of Ms Vimpany. The Commission is being asked to consider that further proceedings, with the exception of submissions on procedural fairness and submissions on penalty ought cease. 32 It is important to note that neither the ARTIBU decision nor the FB ARBTIU 2014 decision comment on the issue of Ms Vimpany’s honesty. In fact Kenner C in the ARTIBU decision specifically chose not to do so. 33 Findings of fact in the ARTIBU decision cannot be revisited. The problem for the applicant who is prosecuting the case is that becomes a little difficult when Ms Vimpany seems to persist with her evidence in the face of clear findings on credibility from Kenner C on that issue. I will for the record repeat them in full because clearly Kenner C’s decision at first instance cannot now be overturned. This was recognised by counsel for the applicant. For the record the Commission reflects on those issues. At [64] and [65] of ARTIBU: Given the findings I have made above, there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved. This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013. Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. Their versions of the events, has been largely consistent, since their first reports in April and May 2013. It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events. 34 Having regard for the procedural implication submitted by the respondent pursuant to s 27(1)(a) of the Act and the associated submissions together with the response the Commission has considered those submissions together with the principles to be applied to an exercise of discretion as conferred by this particular section of the Act. Further the Commission in making its decision has had regard to its statutory obligations pursuant to s 26(1)(a) of the Act in accordance with the principles as reflected in Robe River. 35 The Commission is of the view that the following are issues yet to be visited in proceedings currently before the Commission: • were there reasonable grounds for the respondent to hold the belief that Ms Vimpany was guilty of the misconduct alleged, having regard for the principles reflected in Drake-Brockman; 95 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 379 • procedural fairness; and • penalty. 36 All other matters in these proceedings are dismissed pursuant to s 27(1)(a)(ii) of the Act. These are the Commission’s preliminary reasons for decision. A declaration will issue reflecting my decision. The proceedings have supported in part the dismissal of proceedings pursuant to s 27(1)(a)(ii) of the Act. 37 The Commission, in hearing the matters referred to in [35] of these reasons, cautions the parties on the need to quarantine the findings already made on credibility (particularly as those findings relate to Ms Vimpany) by Kenner C in the ARTIBU and indeed the Full Bench in FB ARTBIU 2014. 38 The Commission will be in contact with the parties to relist the proceedings. 2015 WAIRC 00234 DISPUTE RE ALLEGED DISCIPLINARY ACTION