WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT Delivered: 2 December 1992. Reasons published: 5 February 1993. CORAM: ROWLAND J (PRESIDENT). FRANKLYN & NICHOLSON JJ Appeal No 11 of 1992. On Appeal from the decision of the Full Bench of the Western Australian Industrial Commission in Matter No 26 of 1992 made on the 2nd day of September 1992. BETWEEN: BHP IRON ORE LIMITED. Appellant and TRANSPORT WORKERS' UNION OF AUSTRALIA. INDUSTRIAL UNION OF WORKERS, WA BRANCH. Respondent. Catchwords Industrial Law—Industrial Relations: Unfair dismissal—^reinstatement—appeal from Full Bench—overturning decision of single Commissioner— whether question of law—no error of law or discretion on part of Full Bench disclosed—Industrial Relations Act ss 44, 49—appeal dismissed. Mr H J Dixon and Mr R A Lilbume (instructed by Parker & Parker) appeared for the appellant. Mr M H Zilko (instructed by Durack & Zilko) appeared for the respondent. Cases referred to in judgment: Australian Workers' Union v. Poon Brothers WA Pty Ltd (1983) 4 IR 394 AWU v. Robe River Iron Associates (1986) 66 WAIG 1570 Gregory v. Philip Morris Ltd (1988) 80 ALR 455 Gromark Packaging v. The Federated Miscellaneous Work- ers' Union, unreported; IAC of WA; Library No 920560; 6 November 1992 Hamersley Iron Pty Ltd v. ADSTA (1984) 64 WAIG 852 10365—1 House v. The King (1936) 55 CLR 499 Metropolitan Meat Industry Board v. Australian Meat Industry Employees Union (NSW Branch) (1973) AR 231 North West County Council v. Dunn (1971) 126 CLR 247 Robe River Iron Associates v. Australian Workers' Union (1987) 67 WAIG 320 Undercliffe Nursing Home v. Federated Miscellaneous Workers' Union of Australia (1985) 65 WAIG 585 Cases also cited: Australian Workers' Union, WA Branch Industrial Union of Workers v. Commissioner of Railways (1984) 64 WAIG 600 Australian Workers' Union, WA Branch Industrial Union of Workers v. Robe River Iron Associates (1987) 67 WAIG 1329 Kwinana Construction Group Pty Ltd v. Electrical Trades Union of Workers (1954) 34 WAIG 51 Laws v. London Chronicle (Indicator Newspapers) Ltd [1959] 2 AH ER 285 North v. Television Corporation Ltd (1976) 11 ALR 599 Shire of Esperance v. Mouritz (1991) 71 WAIG 3134 Slonim v. Fellows (1984) 154 CLR 505 Warren v. Coombes (1979) 53 AUR 293 ROWLANDJ I have read the reasons in draft of Franklyn J, which led him to join in dismissing this appeal. Those reasons clearly and adequately express the reasons which led me to the same conclusion. It is unnecessary for me to say other than that I agree with those reasons. FRANKLYNJ The appellant ("the Company") appealed against the decision of the Full Bench of the Western Australian Industrial Commission given 2 September 1992 whereby it upheld an appeal by the respondent ("the Union") against the decision of a Commissioner at first instance that the Company's dismissal of an employee, one Russell, was unfair and ordered that he be reinstated. The appeal was heard on 2 December 1992 and dismissed with reasons to be subsequently delivered. It is helpful to firstly consider the decision at first instance. It was given by way of a determination under s 44 530 kVji 73 W.A.I.G. of the' Industrial Relations Act 1979 ("the Act") in respect of a claim by the Union that "Mr Mike Russell was unfairly dismissed from his employment with the respondent and seeks his reinstatement without loss of wages and entitle- ments". The dismissal was effected by service on the employee of a letter in the following terms:— "Mr M Russell 24 Warman Avenue NEWMAN WA 6753 Dear Mr Russell Following a full investigation of the circumstances surrounding the incident another Ore Truck Driver, Mr A McCormick, in the vicinity of the shift change area on the 24 day of October 1991 in which you behaved in a hostile, intimidating and unacceptable manner, BHP Iron Ore Ltd would be entitled to summarily terminate your contract of employment for misconduct. However, we have decided to terminate your contract of employment effective from 25 October 1991 by payment of a week's pay in lieu of notice in accordance with Clause 5—Contract of Employment, Iron Ore Production and Processing (Mt. Newman Mining Co. Pty. Limted) (sic) Award No A29 of 1984. In view of the foregoing, your attendance at work is henceforth not required." In his reasons for decision the Commissioner pointed out that the Union had claimed that in reality the dismissal was a summary dismissal, as evidenced by the reference in the dismissal letter to a right to summarily dismiss, and that consequently there was an evidentiary onus on the company to prove the dismissal to have been justified and that he had held the onus to lie on the Company to establish that Russell "might have (behaved) in 'a hostile, intimidating and unacceptable manner' ".He pointed out that the Company had done so and the onus had shifted to the Union "to demonstrate that the dismissal was in all the circumstances unfair as per the test in the Undercliffe case (65 WAIG 325)". He thereby identified the two issues to be deter- mined. (1) Whether the misconduct in question was established, and (2), if so, was it, in all the circumstances shown to be unfair. He made no express finding that the dismissal was in fact a summary dismissal. The Company's counsel complains that, the dismissal having been on notice, there was no evidentiary onus on the Company to establish the grounds of the dismissal but does not rely on that as an error at first instance in the appeal to us, the Commissioner having found the Company to have discharged its onus. The Commissioner summarised the events which gave rise to the dismissal and referred to the evidence of specific witnesses including that of the employee Russell. He pointed out that the employment was terminated because Russell had "behaved in a hostile, intimidating and unacceptable behaviour (sic)". The behaviour in question was directed towards another employee, McCormick. The Commissioner then set out his findings in the following passages. "The rules of natural justice, so far as unfair dismissals are concerned, were described by the Industrial Appeal Court in Mouritz vs Shire of Esperance (71 WAIG 891). In essence, Mr Steane had found Mr Russell guilty without hearing Mr Russell's side of the events. Mr Steane did not decide upon the penalty until after hearing Mr Russell which placed him (Russell) more in a position akin to mitigating than putting his version at first hearing. The evidence of Russell, McCormick and Mataka is, in essence, that a violent verbal exchange took place but that no physical action was contemplated by one against the other because, amongst other matters, both knew the penalty for fighting on the job was instant dismissal. However, from all the evidence given, the Commission finds on balance as follows: (a) Mr McCormick had gratuitously insulted Mr Russell at the start of shift. (b) As a result of (a) above, Mr Russell went 'looking' for Mr McCormick during the shift but was unable to find him. (c) Mr Russell was short on sleep and towards the end of his shift had a verbal fracas with several angry intending bus passengers which made him upset. (d) Mr Russell waited, against the advice of Ms Mataka, for Mr McCormick at end of shift to 'sort it out'. (e) Mr McCormick approached Mr Russell in an aggressive manner standing very close to Russell and demanded to know what was the problem. (f) The heated argument began and worsened and Mr Russell on his own evidence reached 'melt-down' meaning he was very angry. (g) At this point, other than for the intervention of Ms Mataka restraining Russell and telling McCormick to 'piss off and Mr McCormick stepping back to avoid Mr Russell's grab for him and then leaving the scene hurriedly, violence would have occurred between them with Mr Russell as the initiator thereof. Whilst the two protagonists testified that actual violence between them would not have occurred, the Commission from observation of them during their evidence does not accept this contention. In the Commission's opinion, there was a violent verbal confrontation and on Mr McCormick's evidence he (McCormick) was very angry ad if 'touched' by Russell he would have 'touched' back and, further, Ms Mataka's intervention to prevent violence on Mr Russell's part lends further support to the finding in (g) above. The respondent had reached (as earlier stated herein) the same conclusion and therefore dismissed Russell. The employer is bound by a duty of care to it's (sic) employees and to provide a safe working environment for them. Further, I accept the evidence of Mr Steane that Russell, for reasons known only to him, described his (Russell's) past pugilistic episodes and this was a factor in Steane's decision to dismiss. It is a further factor in the Commission's conclusion that violence was imminent on Russell's part. Finally, the evidence that Russell and McCormick had later settled their differences, which was known to Steane, does not lead to the conclusion that the incident should thereafter be lightly regarded. The contrary, for the reasons above, is the Commission's finding on all the evidence. The respondent's conclusion that Mr Russell be- haved in a hostile, intimidating and unacceptable manner has not been shown, on balance, to be either erroneous or unfair in all the circumstances and the claim that the dismissal was unfair is not made out." The wording of that final paragraph and the Commis- sioner's findings suggest that the question of unfairness was not in the end considered and determined by him or that, if considered, he failed to consider and to take into account all the matters relevant to the question of unfairness. His conclusion strongly indicates that he held the dismissal to be unfair because he found the Company's conclusion as to Russell's misbehaviour and its nature to be not erroneous or unfair, and not because of a determination of whether it was unfair having regard to all of the relevant circumstances. As was said by the learned authors of "The Law of Employment" Macken, McCorry and Sappideen (3rd ed) at 275:— "In determining whether the dismissal is unfair the tribunal must have regard to all the relevant circum- stances relating to the particular employee. These include not only matters specifically related to the employee's work record but also whether the applicant 73 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 531 will be able to find alternative employment and the financial and social consequences of dismissal. The question whether a dismissal is harsh, unjust or unreasonable is determined having regard to the circumstances at the time of dismissal." In Metropolitan Meat Industry Board v. Australian Meat Industry Employees Union (NSW Branch) (1973) AR 231 Watson J commented: "In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his rights to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, Commissioners and com- mittees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence". The learned authors of the Law of Employment (supra) point out that reinstatement has been ordered in cases where there has been selective dismissal as in the case where some only of the employees on strike or guilty of misconduct have been dismissed, or the employer has condoned such behaviour without sanction on other occasions, or dismissal is disproportionate to the misconduct involved. It is well settled law that the power to order reinstatement may be exercised where the dismissal is harsh, unjust or unreasona- ble and that the power applies in respect of lawful dismissal on notice as well as to summary dismissal for misconduct. The principles to be applied are summarised in the judgments of this Court differently constituted in the Undercliffe Nursing Home v. Federated Miscellaneous Workers' Union (1985) 65 WAIG 385 see at 386 (Brinsden J), at 387 (Kennedy J) and at 389 (Olney J). It is not a question of the respective party's legal rights but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right. (North West County Council v. Dunn (1971) 126 CLR 247 Walsh J at 263. The right of the Commission to intervene is found in s 23 and the definition of "Industrial Matter" under s 7. Before leaving the decision at first instance I refer to the following evidence of the witness Steane (who after consultation with others made the decision on behalf of the Company to dismiss Russell) as to the decision to dismiss and the policy on which it was based:— "...It is understood at Mt Newman that if you fight on the job you are terminated. Also I have to take into account, or we have to take into account, if we are certain or feel assured that this type of event will not occur again. Given the circumstances around the event I felt certain that Mr Russell meant to harm the other person. Following his story about his life as a fighter, if you want; following Mr Bruce's recount of another incident where he had another employee by the throat following a shift change meeting and I had heard about this incident in the MUA rooms, I could not feel certain that if I gave him a 3-day reprimand he would not behave in the same manner at a later date—3-day suspension not reprimand, sorry. And that was why the decision was made to terminate Mr Russell?—That's correct. I could not feel certain that this event would not occur again, or a similar one would not occur again." The reference in that passage to "his life as a fighter" refers to Steane's earlier evidence that when he spoke to Russell, Russell related five or six incidents during his past life in which he had been in fights. The evidence was that all related to events which ■ had occurred off the work site on other occasions and in respect of which it is impossible to say, as the matter were recounted by Steane, that Russell was necessarily the party at fault. The dates and occasions of the events were unspecified and at least one related to an incident in the United Kingdom. Reference in Steane's evidence to "Mr Bruce's recount of" referred, on Bruce's evidence, to an event in about 1986 or 1987 so far as he could recall. It was Bruce's evidence that he did not mention this episode to Steane until some time after Russell's dismissal. Steane's evidence was that Bruce told him thereof prior to the dismissal. The Commissioner at first instance made no finding on that issue and made no reference to that episode as being a factor in the decision to dismiss. The evidence was however permitted to be led, on Steane's evidence it was a factor which influenced the decision to dismiss and the Commissioner found that decision to be not unfair. Russell denied Bruce's description of the incident. It is clear from the Commissioner's conclusion that, despite being aware that the dismissal was not effected on notice and so pursuant to the contract of employment, he was nevertheless satisfied that the reason for the dismissal was because Russell had behaved on the occasion in question in a "hostile, intimidating and unacceptable manner" and because of what Steane had been told of that and other incidents. The matter came before the Full Bench on grounds of appeal which alleged a finding of "summary dismissal". As I have pointed out, the Commissioner in fact made no such finding. That his finding might be seen to be one akin to "summary dismissal" in the particular circumstance of the case is understandable, having regard to the initial submis- sion to the Commissioner that it was in reality a summary dismissal and his finding as to onus based thereon. The case was also fought on the basis that the dismissal resulted from the behaviour of Russell and indeed the Commissioner found the respondent's conclusion that Russell behaved in a hostile, intimidating and unacceptable manner not to have been shown to be erroneous or unfair and that in consequence (so his reasons suggest) the claim that the dismissal was unfair to be not made out. In all those circumstances it is understandable that the Union should assume that he in fact found "summary dismissal" despite the giving of notice. That matter however in my opinion was of no real significance to the issue before the Full Bench which was whether in the end the dismissal was unfair. Because of the way in which the grounds of appeal to us are expressed it is necessary to set out the grounds of appeal to the Full Bench. They were as follows:— "1. The Senior Commissioner erred in fact or in law or in fact and law in finding that the Respondent was entitled to summarily dismiss Mr Russell ('the employee') when there was no or insufficient evidence that:— (a) The employee had struck or intended to strike Mr McCormick ('the other employee'). (b) The employee had intimidated or intended to intimidate the other employee. (c) The employee engaged in any other conduct that rendered the employee liable to sum- mary dismissal by the Respondent. 2. The Senior Commissioner erred in law or in fact or in fact and in law in finding that the employee should not be reinstated when there was sufficient evidence that the Respondent's dismissal of the employee was unfair in that: (a) There was no, or insufficient evidence that the employee struck or intended to strike the other employee. (b) There was no, or insufficient evidence that the employee intended to intimidate or in any other way conduct himself in a manner towards the other employee or to other employees of the Respondent that would render the employee liable to be terminated by the Respondent. (c) There was no, or in sufficient (sic) evidence that the employee was pre-disposed to vio- lence or likely to commit acts of violence on the premises of the Respondent. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 73 W.A.I.G. (d) There was evidence that was accepted or ought to have been accepted by the Senior Commissioner that: (i) The employee was employed by the Respondent for a period of 11 years; and (ii) The employee was efficient and compe- tent in the discharge of his employment duties with the Respondent; and (iii) The employee conducted himself in a manner consistent with the reasonable standards of behaviour in the workplace that may be required of the employee by the Respondent." The Full Bench found grounds 1 (c), 2(b), (c) and (d) made out and grounds 1(a) and (b) and 2(a) not made out. The grounds of appeal to this Court are as follows:— GROUNDS OF APPEAL 1. The Full Bench erred in law in upholding the appeal and finding that the dismissal of the employee, Russell, was unfair when: (a) it found that grounds 1(a) and (b) and 2(a) of the grounds of appeal before it were not made out; (b) it accepted the finding of the Commission at first instance ('the Commission') that; (i) the conclusion by the appellant that Russell behaved in a hostile intimidat- ing and unacceptable manner had not been shown on balance to be erroneous or unfair; (ii) Russell would have assaulted and done physical harm to another employee, McCormick if he, Russell, had not been prevented from doing so by another employee; (iii) it was clear that everyone involved in the incident knew that fighting or intimidating behaviour was not permit- ted by the appellant at its mines and would lead to dismissal; (c) it found that the conduct of Russell was not appropriate in the work place; (d) Russell was, in fact, dismissed with payment in lieu of notice in accordance with the provisions of the Iron Ore Production and Processing (Mt Newman Mining Co Pty Ltd) Award No. A29 of 1984 ('the Award') and not summarily because of his hostile intimi- dating and unacceptable conduct on the mine site. 2. The Full Bench erred in upholding ground 1(c) of the appeal when: (a) Russell had not been summarily dismissed but was, in fact, dismissed on payment in lieu of notice in accordance with the provisions of the Award because of his hostile intimidat- ing and unacceptable conduct on the mine site; (b) the Full Bench in effect accepted the findings of the Commission that: (i) the conclusion by the appellant that Russell behaved in a hostile intimidat- ing and unacceptable manner had not been shown on balance to be erroneous or unfair; (ii) Russell would have assaulted and done physical harm to another employee, McCormick if he, Russell, had not been prevented from doing so by another employee; (iii) it was clear that everyone involved in the incident knew that fighting or intimidating behaviour was not permit- ted by the appellant at its mines and would lead to dismissal; (c) the Full Bench itself found that the conduct of Russell was not appropriate in the work place. 3. The Full Bench in upholding grounds 2(b), (c) and (d) of the grounds of appeal erred in law by: (a) failing to give effect to the matters referred in paragraphs 1(b), (c) and (d) above; (b) failing to distinguish between the issue of unfairness and the question of whether an order of reinstatement was in all the circum- stances appropriate; (c) failing to exercise any discretion on the question of whether, notwithstanding any finding of unfairness, an order for reinstate- ment was in all the circumstances appropri- ate; (d) alternatively, ordering reinstatement of Rus- sell without either remitting the matter to the Commission for further determination, or itself weighing all the evidence, relevant matters, findings of fact and assessments of credibility made at first instance to determine whether reinstatement ought to be ordered against the wishes of the appellant. 4. The Full Bench erred in law by failing to determine the appeal on the evidence and materi- als raised in the proceedings before the Commis- sion and in accordance with section 49(4) of the Industrial Relations Act in that: (a) it held that the Commission took no or no sufficient account of McCormick's part in the matter when the Commission had in fact done so; (b) it held that the appellant had not taken any account of Russell's previous good work record when in fact, the evidence was that it had done so; (c) it held that the Commission erred in failing to take account of the fairness of suspending Russell for 3 days or by his consent for a longer period when: (i) there was evidence and the Full Bench recorded that the appellant, through Steane, had considered all the options open to the appellant prior to deciding to dismiss Russell on account of his conduct; (ii) the mere failure by the Commission to expressly refer to this evidence did not amount to error requiring the interven- tion of the Full Bench; (d) it held that the Commission took no account of Russell's denial of the 'throat-clutching episode' but failed to have regard for the following: (i) there was conflict on the evidence before the Commission as to the true nature of this episode; (ii) the Commission evaluated the relevant evidence and, in doing so, took into account the demeanour and credibility of the witnesses; (iii) the Commission rejected Russell's ver- sion and found that but for the interven- tion of another employee and McCormick stepping back to avoid Russell's grab for him (and then McCormick leaving the scene hur- riedly) violence would have occurred between them with Russell as the initiator thereof; 73 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 533 (iv) there was no basis for concluding that the Commission erred in making that assessment; (e) it found that the Commission had erred in failing to take account of the fact that no disciplinary action was taken against McCormick but itself failed to; (i) consider the evidence that no action was taken because McCormick did not phys- ically take part in the confrontation between him and Russell and left the scene; (ii) have regard for the matters referred to in sub-paragraph (d)(iii) above; (f) it failed without justification to recognize or give effect to the relevance of the findings by the Commission based on the evidence that; (i) Russell had described to the appellant his 'pas! pugilistic episodes'; (ii) that conduct was a factor the appellant had taken into account in its decision to dismiss Russell. 5. The Full Bench erred in law by in effect substituting its own views on the question of the unfairness of the dismissal without identifying errors on the part of the Commission which justified the substitution by the Full Bench of its views on the evidence. 6. The Full Bench in finding that the Commission had erred because there was no sufficient evidence that Russell had not conducted himself to accept- able standards at work prior to the events in question had regard for irrelevant considerations and thereby erred in law since: (a) the Commission had found and the Full Bench by rejecting grounds 1 (a) and (b) and 2(a) of the grounds of appeal accepted that he conduct on the part of Russell giving rise to his dismissal justified summary dismissal; (b) in a case involving conduct of that kind and an employer's duty to its employees to provide a work place without endangering them, the absence of previous unlawful conduct by Russell was irrelevant. 7. The Full Bench in setting out the 'errors' which it considered the Commission had fallen into (its reasons at page 18-19) itself erred in law in that: (a) it failed to have regard for the matters raised in paragraphs 1, 4, 5 and 6 above; and (b) failed to assess all relevant evidence from the point of view of the appellant as well. The real issue before the Full Bench was whether the dismissal was unfair and consequently whether reinstate- ment should be ordered, it being said that the Commissioner had either not considered and determined whether or not the dismissal was in all the circumstances unfair or, if he had, had not turned his mind to all of the relevant circumstances. So far as his reasons reveal the only matters taken into account relevant to the fairness of the dismissal, other than the circumstances of the misconduct as he itemised them, were the employer's duty of care to its employees to provide a safe working environment, that Steane's decision to dismiss was influenced by Russell's description to him of his "past pugilistic episodes", the Commission's conclu- sion that at the time of the incident "violence was imminent on Russell's part" and that Russell and McCormick had agreed to settle their differences. But it is not clear that in fact those matters were taken into account on the issue of fairness of dismissal. In their context they seem to be directed to the Commissioner's finding that die Company's finding of misbehaviour was neither erroneous or unfair. That that is so gains support from the Commissioner's failure to mention other matters clearly relevant to the unfairness of decision. They are identified in the reasons of the Full Bench. A determination as to the fairness of a dismissal is a discretionary determination. See Undercliffe (supra); Robe River Iron Associates v. Australian Workers' Union (1987) 67 WAIG 320; Gromark Packaging v. The Federated Miscellaneous Workers' Union; unreported; IAC of WA; Library No 920560; 6 November 1992. It is settled that the correct approach of the Full Bench to appeals pursuant to s 49 is that adopted by the Full Bench of the Australian Conciliation and Arbitration Commission in Australian Workers' Union v. Poon Brothers WA Pty Ltd; (1983) 4 IR 394 which followed the principles enunciated in House v. The King (1936) 55 CLR 499 at 504, frequently re-affirmed by the High Court of Australia. The application of those principles to the Full Bench was confirmed in Hamersley Iron Pty Ltd v. ADSTA 64 WAIG 852 and in AWU v. Robe River Iron Associates 66 WAIG 1570. They apply of course also to this Court in considering the exercise of a discretion by the Full Bench. They were stated in House as follows (at 504-505);— "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 re- viewed 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." The Full Bench had before it all the material before the Commissioner and his reasons for decision. Thus it was able to consider whether or not he had erred in any respect in the application of those principles. In particular it was able to determine whether he had failed to take into account material considerations. It found he had so failed and in my opinion rightly so. Consequently it was entitled and indeed obliged to review his determination and exercise its own discretion in substitution for his. This it did. It found that he was entitled to find as he did in relation to Russell's behaviour. It was then for it to determine whether the exercise of his discretion to determine whether the dismissal was unfair had been correctly exercised. In my view the Commissioner's reasons clearly paid no attention to matters which go to the unfairness of the dismissal, ie whether it was harsh, unjust or unreasonable having regard to all of the circumstances relevant at the time of the dismissal. The Full Bench was clearly of a like opinion. In the exercise of its discretion, in substitution for that of the Commissioner, it was entitled to take into account not only the matters raised in the grounds of appeal as seen by the appellant as relevant thereto but such other matters which considered appropriate to the issue. Its reasons reveal that it identified, and in my opinion correctly so, matters relevant to the issue of fairness which it should take into account as being: (1) Everyone knew that fighting was not permitted at Mt Newman ("the Policy"). (2) The behaviour in question was a result of the anger of both men. (3) On what occurred on McCormick's part was calculated to act as provocation to any reasonable person. (4) That on McCormick's evidence he was not physically in danger. (5) That there was no assault but a situation between two angry men, one of whom had provoked the other, neither of whom would back down and who 534 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 73 W.A.I.G. placed themselves in a situation where a physical confrontation was likely to occur. (6) That there was no evidence that McCormick intended to retreat until Ms Mataka intervened. (7) That the Commissioner took no notice of Rus- sell's denial of the throat-clutching episode (the 1986-1987 incident referred to by Mr Bruce) nor of the fact that if a number of other episodes occurred they did so away from work. The latter of course refers to the description of Russell's past pugilistic episodes. (8) That neither the Company nor the Commissioner took account of Russell's good work record over 11 years in the course of which nothing adverse was recorded against him. (9) That Russell's record in that regard was corrobo- rated by police constable Lowe whose opinion was that he was not a violent or aggressive person. (10) That no sufficient account was taken of McCormick's part in the incident in which he participated and to which he was a major contributor. (11) That the two men subsequently resolved their differences, this being a matter relevant to the likelihood of future harmony. Having made those findings the Full Bench listed as follows the reasons why it considered the Commissioner had erred in dismissing the application. "(1) it attached no or too little weight to the fact that the confrontation was provoked by Mr McCormick, and that at no time when he could have avoided it or retreated did he do so until it had 'blown up'. (2) Mr McCormick was as much a participant as Mr Russell, except for the question of the lunge or grab which he provoked. (3) There was no assault and Mr Russell left the scene himself. (4) No complaint had been made in the past about Mr Russell's behaviour at work over 11 years. (5) Mr Russell worked for 11 years for BHP and was regarded by Mr Cox at least, amongst others, as a good worker. (6) It thus failed to take into account all of the relevant circumstances relating to the employee and the employer as it was required to do. (7) It took account of denied incidents of violence at work not recorded and incidents outside work which were belied by Constable Lowe's view and by a violence-free record at work. (8) It failed to take account or sufficient account of the unfairness of selectively dismissing Mr Rus- sell and taking no disciplinary action at all against Mr McCormick. (9) It failed to take full account of the fairness of suspending Mr Russell for three days or by his consent for a longer period (see Gregory v. Philip Morris Ltd (op cit)). The latter might well have been an appropriate step to take. In other words, all alternatives were not canvassed. (10) There was no sufficient evidence that Mr Russell had not conducted himself to acceptable standards at work prior to these events." All those matters are findings of fact and in my opinion were clearly open to the Full Bench on the evidence and appropriate to the exercise of the discretion. I return now to the grounds of appeal to this Court. In my opinion none of these grounds address the matter fundamen- tal to this case, ie that the Commissioner failed to properly address and so to properly exercise his discretion to determine whether the penalty of dismissal, whether or not on notice, was unfair, thus requiring the Full Bench to address that question. I add that I find it difficult to identify any question of law arising out of the grounds of appeal, such a question being essential to a right of appeal to this Court. The grounds are confusing but essentially go no further than to contest findings of fact made by the Full Bench in the exercise of its discretion. The references to summary dismissal, as opposed to dismissal on notice, do not address the issue. The allegation that the Full Bench failed to determine the matter in accordance with s 49 of the Act purportedly raises a question of law but is unsupported in fact. The grounds do not allege the Full Bench to have erred in law in determining that the Commissioner erred in the exercise of his discretion. Nevertheless I shall deal with the grounds of appeal and appellant's counsel's submissions in respect thereof on the assumption that such a ground is implied. Ground 1 In support of this ground the Company contended that by finding grounds 1(a) and (b) of the appeal to it not made out, the Full Bench effectively upheld the decision at first instance that there was conduct on Russell's part sufficient to justify a summary dismissal. It argues that if that be so then it is self evident that dismissal is the appropriate penalty. In my opinion that submission relies on an erroneous view of the ground and the way it was dealt with by the Full Bench. What was found not made out was that there was insufficient evidence to establish (a) that Russell had struck or intended to strike McCormick and (b) that he had intimidated or intended to intimidate McCormick. It was not found that the respondent was entitled to summarily dismiss Mr Russell. Such a finding in any event could only be made after a consideration of all relevant circumstances to determine whether such a dismissal was unfair. The allegation in the ground that the Commissioner erred in finding that the respondent was entitled to summarily dismiss Russell was in any event still supported by ground (c) which was found to have been made out. It is clear however from the reasons of the Full Bench that it appreciated that there had not been a summary dismissal and, in my opinion, when disposing of the grounds of appeal it disregarded the reference to the dismissal being "sum- mary". The result can be seen as a finding that on the facts of the incident as found by the Commissioner dismissal was not justified in the absence of other conduct of such a nature as to render Russell liable to summary dismissal and consequently a finding that the incident on its own did not warrant dismissal. The finding was relevant and appropriate as relating to the appellant's conduct at work generally which itself was relevant to whether the dismissal in all of the circumstances was harsh, unjust or unreasonable. It must also be appreciated that in any event Russell's misconduct was not found by the Commissioner to involve a striking or even a present intention on his part to strike and so, as a statement of fact, subparas (a) and (b) had no foundation and should properly have been disregarded. Relevantly, the Commissioner's findings which were accurately identified and set out by the Full Bench in its reasons were as follows. " Reasons for Decision at First Instance. The reasons for decision herein require some attention. The Commission at first instance made a number of findings:— (1) That Mr McCormick had gratuitously insulted Mr Russell at the start of shift. (2) That Mr Russell as a result went looking for Mr McCormick and could not find him. (3) That Mr Russell was short on sleep and towards the end of his shift had a verbal fracas with several intending bus passengers which upset him. (4) That Mr Russell waited, against the advice of Ms Mataka, for Mr McCormick at end of shift to 'sort it out'. (5) That Mr McCormick approached Mr Russell in an aggressive manner standing very close to him and demanding to know what was the problem. (6) That there was a heated argument which began and worsened and Mr Russell on his own evidence was very angry. (7) That Ms Mataka restrained Mr Russell and told Mr McCormick to 'piss off. 73 W.A.I.G. 35 (8) That Mr McCormick stepped back to avoid Mr Russell's grab for him and then left the scene hurriedly, otherwise violence would have oc- curred between them. (9) That, notwithstanding their evidence to the con- trary, actual violence would have occurred be- tween them. (10) That there was a violent verbal confrontation between them, and, on Mr McCormick's evidence he was very angry and if 'touched' by Mr Russell would have 'touched' him back; Ms Mataka's intervention to prevent violence supported that. (11) That BHP, having reached the same conclusion, dismissed Mr Russell. (12) That BHP is bound by duty of care to its employees to provide a safe working environment. (13) That Mr Russell told Mr Steane of past pugilistic episodes and this was a factor in Mr Steane's decision to dismiss. (14) That violence on the part of Mr Russell was imminent. (15) That Mr Russell and Mr McCormick having settled their differences should not effect the result. (16) That BHP's conclusion that Mr Russell behaved in a hostile, intimidating and unacceptable manner had not been shown on balance to be erroneous or unfair." Other than the "grab" referred to in para (8) thereof, the references to violence relate to the situation which might, but did not develop, the trigger for which might well have been found in the words or conduct of Mr McCormick. For this reason alone it was not surprising that grounds (l)(a) and (b) of the appeal to the Full Bench were not made out. Ground 2 of the grounds of appeal to the Full Bench raised issues relevant to the unfairness of the dismissal arising out of the nature of the misbehaviour. Ground 2(a) thereof referred to in ground 1 (a) of the appeal to us again is no more than a finding that the facts there alleged, even if the evidence supported them, was not in itself a reason which would establish the unfairness of the dismissal. The rejection of that paragraph was not a finding that the dismissal was fair and does not lead to that inference. The findings referred to in paras (b) and (c) do not require a conclusion that dismissal was fair. The question of dismissal on notice referred to in para (d) is irrelevant to the issues. Ground 2 It is not necessary that I comment further on the allegations relating to summary dismissal or dismissal on notice. The allegation in ground 1 (c) of the appeal to the Full Bench was a matter relevant to fairness. The Full Bench found the evidence as to that other conduct was insufficient to justify summary dismissal. That the Full Bench accepted the findings set out in sub-para (b) and made the finding in sub-para (c) does not demonstrate that the finding of unfairness was in error. They are matters which in the exercise of its discretion the Full Bench was to take into account. Ground 3 This ground also requires reference to grounds of appeal to the Full Bench. Whether or not the Full Bench upheld paras 2(b), (c) and (d) of those grounds was a matter of decision for it in the exercise of its discretion as to what matters were relevant to fairness. It was appellant's counsel's specific submission that in upholding ground 2(b) of the appeal to it the Full Bench came into conflict with its finding that ground 1(b) of those grounds of appeal was not made out. The argument assumes the two grounds of appeal to state the same proposition. However ground 2(b) goes to the question whether such evidence as to intimida- tion or intended intimidation as was shown was sufficient to justify dismissal, the Full Bench finding that in all the circumstances the evidence was insufficient to that end, an inference open to it on the evidence. I have already discussed the meaning and effect of its finding as to ground 1(b) of those grounds of appeal. Paragraphs (b), (c) and (d) misconceive both the issue and the role that in the end the Full Bench had to play. It had to exercise its discretion as to whether in all of the circumstances of the case the dismissal was unfair. It recognised the established misbehaviour. It was not neces- sary that it remit the matter back to the Commissioner and indeed undesirable that it do so. None of the matters referred to in subpara (d) would require that it be remitted and it cannot be said that the Full Bench itself failed to take into account the matters there identified. To accept, as the ground suggests, that reinstatement cannot be ordered against the wishes of the appellant suggests that it is not within the discretion of the Commission to order reinstatement without the consent of the employer, which of course is contrary to established law. If in the exercise of its discretion, taking into account all relevant matters,—which quite clearly the Commissioner had failed to do, the Full Bench was of the opinion that the dismissal was unfair in the sense that it was harsh, unjust or unreasonable having regard to all the circumstances, then reinstatement was a necessary result. Ground 4 This ground is without merit. It cannot be said that the Full Bench failed to determine the appeal on the materials in evidence before the Commission as required by s 49(4). The conclusions referred to in paras (a), (b) and (c) were all findings properly open to it on the evidence and the Commissioner's reasons. Its inquiry was as to whether he had properly or at all exercised his discretion and, if it concluded he had not, to exercise its discretion in substitution or in lieu. It was not limited to the findings made by the Commissioner as the ground appears to suggest. As to para (c) the words actually used in the finding were that the Commissioner "failed to take full account...". It was saying no more than that in determining the penalty of dismissal to be a fair penalty in all of the circumstances, the Commissioner did not give sufficient account to the alternative of suspension. This is made clear by its addendum "in other words all alternatives were not canvassed". That is an inference open from the evidence. I would add that there was some criticism of the Full Bench for its suggestion of a suspension of longer than three days with the worker's consent. In fairness of the Bench it made clear by its reference thereto that that suggestion was made on the authority of Gregory v. Philip Morris Ltd (1988) 80 ALR 455, a decision of the Full Bench of the Federal Court of Australia in which it was found on its facts that reasonableness required that before taking the step of dismissal the employer should have explored with the applicant the available alternatives and at least invited him to indicate his attitude to an offer of suspension without pay. That the witness Steane gave evidence and was found by the Full Bench to have considered all options did not mean that it was bound by the Company's decision if it in the end considered that the Company and the Commissioner had not sufficiently considered the same, which quite clearly is the overall effect of its decision. The reference in para (d) of ground (4) to the denial of the "throat-clutching episode" is to the allegation made by Mr Bruce of an incident which occurred in 1986-1987 approximately and is not a reference to the incident between Russell and McCormick as the ground assumes. Subpara- graph (iii) of this paragraph misstates the Commissioner's finding. He did not find Russell to be the "initiator" of any violence which might have occurred. Sub-paragraphs (e) and (f) fail to recognise that the Full Bench was engaged in the exercise of a discretion. The lack of disciplinary action against McCormick was a matter open to and appropriate for it to take into account. It cannot be fairly said that it failed to consider or have regard to the other matters there mentioned and to take them into account. It was for it to determine what weight such matters respectively should be given once it had concluded that the Commissioner had not or not properly exercised the discretion. 536 73 W.A.I.G. Ground 5 This ground fails. The Full Bench was exercising the discretion which the Commissioner had failed to exercise at all or properly. It was not a matter of it having to identify specific errors. Ground 6 This ground also fails. It misconceives the distinction between proof of misconduct and the discretionary issue as to whether dismissal for that conduct was unfair in all the circumstances. Russell's conduct prior to the events was a relevant consideration. The Full Bench did not overlook the matter of the employer's duty to its employees, specifically mentioning the same as one of the findings made at first instance. Ground 7 Ground 7 is essentially disposed of by the earlier findings herein. For the above reasons I joined in the dismissal of this appeal. NICHOLSON J I agree with the reasons published by Franklyn J. For those reasons I joined in dismissing the appeal.