Cleal v State of Queensland (Queensland Health) [2023] ICQ 6

INDUSTRIAL COURT OF QUEENSLAND CITATION: Cleal v State of Queensland (Queensland Health) [2023] ICQ 006 PARTIES: Cleal, Perry (Appellant) v State of Queensland (Queensland Health) (Respondent) FILE NO: C/2022/6 PROCEEDING: Appeal against decision of Commission DELIVERED ON: 12 May 2023 HEARING DATE: 4 May 2022 MEMBER: O'Connor VP ORDER: Appeal dismissed. CATCHWORDS: INDUSTRIAL LAW - QUEENSLAND - DISMISSALS - UNFAIR DISMISSAL - WHAT CONSTITUTES UNFAIR DISMISSAL - where appellant was dismissed from his employment - where dismissal related to misconduct - where the appellant instituted proceedings in the Queensland Industrial Relations Commission (QIRC) for unfair dismissal - where the QIRC dismissed the application - where QIRC found termination not harsh, unjust or unreasonable - where appellant appealed the decision of the QIRC to the Industrial Court of Queensland - whether QIRC erred by considering irrelevant material including appellant's martial arts training - whether conduct disproportionate to provocation - whether QIRC erred in law by failing to find appellant's allegation he experienced bullying and harassment - whether QIRC's discretionary powers in terms of the evidence constitutes an error of law - whether grounds of appeal contain mixed errors of fact and law - whether in the public interest to grant leave to appeal - appeal dismissed. -- 1 of 19 -- 2 LEGISLATION: Industrial Relations Act 2016 (Qld), s 316, s 317, s 326, s 557, s 565 CASES: Criminal Code 1899 (Qld) Evidence Act 1977, s 92 Abbott v Blackwood [2014] ICQ 031 Comalco Aluminium Ltd (Bell Bay) v O'Connor (No 2) (1995) 61 IR 455 Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332 House v R (1936) 55 CLR 499 McDonald v Tinbilly Travellers Pty Ltd (2006) 183 QGIG 841 Milton v TransAdelaide [2003] SAIRC 15 Minister for Immigration v Li (2013) 87 ALJR 618 Moreton Bay Regional Council v Moorhead [2014] ICQ 013 Nesbit v Metro North Hospital and Health Service [2021] ICQ 005 Norbis v Norbis (1986) 161 CLR 513 O'Sullivan v Farrer (1989) 168 CLR 210 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Queensland Electricity Commission; Ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393 Sexton v Pacific National (ACT) Pty Ltd - PR931440 [2003] AIRC 506 The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 036 APPEARANCES: Mr J.E. Murdoch, KC and with him Mr T. O'Brien, Counsel instructed by Maurice Blackburn Lawyers for the Appellant. Mr A. Herbert, Counsel instructed by McCullough Robertson Solicitors for the Respondent. -- 2 of 19 -- 3 Reasons for Decision [1] Mr Perry Cleal ('the Appellant') was employed by the State of the Queensland ('Queensland Health') '(the Respondent') with Metro South Hospital and Health Service ('the Health Service') for approximately 25 years. On 21 November 2019 the Appellant was dismissed from his position at the Princess Alexandra Hospital ('the PAH'). The Australian Workers' Union of Employees, Queensland ('the AWU') pursued an application on behalf of the Appellant for reinstatement in the Queensland Industrial Relations Commission ('the Commission'). [2] At the time of termination, the Appellant was covered by an Award, Certified Agreement and various policies and procedures including a Code of Conduct. [3] On 21 August 2019 the Appellant was required to show cause, pursuant to the Public Service Act 2008 ('PS Act') why he should not be disciplined in relation to the following allegations said to be capable of substantiation: On 20 July 2019, you aggressively pushed Eric Chiu, Operation Officer into a trolley in the main kitchen in the PAH. [4] On 19 September 2019, the Appellant responded to the Respondent. [5] On 11 October 2019 correspondence was forwarded to the Appellant from Dr Michael Cleary, Executive Director, PAH in which he was informed that the allegation had been substantiated on the balance of probabilities. He responded to this letter on 22 October 2019 asserting that he did not agree with the determination; Mr Chiu had placed his hands on the Appellant's shoulder and throat; he felt the need to defend himself against Mr Chiu; and Mr Chiu's actions constituted harassment. [6] By letter dated 19 November 2019 from Mr Shaun Drummond, Chief Executive of the Health Service, the Appellant's employment was terminated. Commission proceedings [7] On 10 December 2019 the Appellant lodged an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), claiming unfair dismissal under s 326 of the IR Act. Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable. [8] On 11 February 2022 the application for reinstatement was dismissed by the Commission.1 The Appellant appeals against that decision. 1 The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 036. -- 3 of 19 -- 4 The Appeal [9] The Appellant seeks that the decision in TD/2019/106 be set aside; that he be reinstated by the Respondent and that he be paid compensation for lost wages from 21 November 2019 until date of reinstatement. [10] Section 557 of the IR Act sets out the basis upon which a person may seek to appeal from a decision of the Commission. So far as is relevant, that section provides: (1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of - (a) error of law; or (b) excess, or want, of jurisdiction. (2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court's leave, on a ground other than - (a) error of law; or (b) excess, or want, of jurisdiction. [11] It is not in contention that the Appellant, although not a party to the decision at first instance, is aggrieved by the Commission's decision and accordingly has standing to bring the appeal under s 557 of the IR Act. Grounds of Appeal [12] The Grounds of the appeal as submitted are as follows: 1) In determining the conduct of the Appellant (in pushing away with open hands a co-worker) was not proportionate to provocation by the co-worker (making physical contact by either 'nudging' his shoulder or 'shouldering' or 'hip and shouldering' and then touched Mr Cleal in the area of his upper chest or neck by way of touching his buttons or grabbing his shirt while making comments about Mr Cleal's buttons being undone), the Commission has erred in law by considering irrelevant material including the Appellant's martial arts training; 2) In determining the conduct of the Appellant (as described in Ground 1 above) was not proportionate to provocation (as described in Ground 1 above), the Commission has erred in law by failing to consider relevant material including the Appellant's history of being subjected to by the co-worker. 3) In determining that the termination of the Appellant's employment was not harsh, unfair or unreasonable, the Commission has erred in law by admitting into evidence and placing weight on the written statement of the co-worker in circumstances where the co-worker was: (a) unavailable for cross-examination; and (b) not accepted as a credible witness in the criminal prosecution brought against the Appellant. -- 4 of 19 -- 5 4) The Commission has failed to make a finding of fact on the Appellant's allegation that he experienced bullying and harassment, and in so failing, the Commission erred in law. 5) In as much as the decision of the Commission involved the exercise of discretionary powers, the decision was so grossly unreasonable and contrary to the weight of evidence that it constitutes an error of law within the purview of the House v King principles and as a consequence led to the Commission failing to properly exercise its jurisdiction. 6) Insofar as the grounds herein raise questions of mixed fact and law, the Appellant seeks leave to appeal insofar as questions of fact are concerned.2 Ground One [13] In determining the conduct of the Appellant was not proportionate to the provocation by Mr Chiu, the Commission has erred in law by considering irrelevant material including the Appellant's martial arts training. [14] What was contended by the Appellant was that the physical aspects of the provocative conduct occurred in two deliberate quick actions being the hip and shoulder nudging and the contact in the neck/shoulder area. The Appellant submits those actions were uninvited, unwelcome and assaults on his person. Similarly, the verbal taunt about the Appellant's dress standard was uninvited, out of place and calculated.3 [15] The argument advanced by the Appellant under this ground is an argument about whether or not the Commissioner made an error in her findings of fact. It is not a question of law. As submitted by the Respondent the question is really no more than to say, '[d]id they go well - did they go so far beyond the bounds of a normal reaction to that situation in a workplace ... that they should be disciplined for doing so?'4 [16] The Commission's finding of fact revealed the actions of Mr Chiu constituted provocation.5 The Appellant submits the Commissioner erred by determining the issue of proportionality of response to Mr Chiu's provocation continued by the Appellant after the provocation ceased.6 [17] The Appellant accepted in evidence that he pushed Mr Chiu after the taunting and provocation had finished. In his evidence he said: MR MOY: Now, at this point, Mr Cleal, do you see anyone provoking or taunting you?- --We're - we're in the middle of the altercation. Right?---the provocation and the taunting happened before that. So it's finished now?---Sorry? 2 Application to appeal filed 4 March 2022. 3 Appellant's outline of submissions filed 1 April 2022, [7]. 4 TR1-23, LL8-21. 5 The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 036, [87]-[89], [115], [118], [119], [124]. 6 Ibid, [122]. -- 5 of 19 -- 6 The provocation and taunting is finished now?---I - I don't know what you mean - - - Is it - - -?--- - - - by finished. Well, you just said the provocation and the taunting happened before that point?---Yes, when Eric came in. So the provocation and the taunting has finished. That's what I asked you. Is that the case? Has - - -?---Well, it – it - - - - - - the provocation and the - - -?--- - - - if - if - - - - - - taunting finished?--- - - - if you want to be technical about it, yes.7 [18] Later in his evidence, the Appellant told the Commission: No. No. Sorry. Sorry. I'm asking the questions. Now, at this point, this is just beyond where we stopped before. Your arms are extending there. Your elbows aren't as bent as they were in the previous shot, were they?---No. I - that's when I pushed Eric off me. That's when you were pushing me?---Yeah. And your heels are off the ground there?---Yeah. I went on my toes. Yep. Yeah. And the taunting and the provocation is finished?---At that point? At that point?---I – I - - - At that point, right there?---I think so. Yeah. Yes. So that's when you straighten your arms?---That's when I pushed Eric. That's when you pushed Eric. Yes?---Yep.8 [19] The Appellant states the Commission erred by no finding of fact to his claim that he reacted after feeling threatened by the physical contact from Mr Chiu. A finding of fact, it was said, was relevant to the issue of proportionality of the response by the Appellant. From his evidence the Appellant indicated he did feel threatened.9 [20] The Commissioner embarked on a review of the evidence concerning whether the Appellant felt threatened by the conduct of Mr Chiu. After setting out an exchange in cross-examination and the evidence of the decision maker, the Commissioner concluded: [124] I do not accept the Respondent's submission that Mr Cleal was not provoked. However, I also do not accept the AWU submission that Mr Cleal was seriously provoked or felt threatened to an extent that excused the force and aggression with which he responded to Mr Chiu. 7 TR1-46, L36 to TR1-47, L9 (29.06.21). 8 TR1-47, L41-TR1-48, L11 (29.06.21. 9 The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 036, [132]; TR1-60, LL21-40 (29.06.21). -- 6 of 19 -- 7 [21] The Commissioner did conclude that the Appellant felt threatened but not to the extent that would justify or excuse the response to Mr Chiu. [22] The evidence of the Appellant was that he did not feel threatened by Mr Chiu saying something to him about his buttons;10 only touching him11; he did not feel threatened in the workplace or outside;12 and he did not have a bad working relationship with Mr Chiu.13 [23] It was said that in finding the Appellant's response to the provocation was not proportionate, the Commission erred in law by not giving weight to the finding that the physical provocation commenced with a hip and/or shoulder nudge from the co-worker while the Appellant was focused on his kitchen work. [24] The Appellant states the Commission was in error in assessing the provocation without considering the initial interaction and the Appellant's conduct in trying to get back to his work. The Commission has ignored her own finding of fact that after touching the neck, the co-worker didn't drop his hands and their arms became entangled. This is a critical part of the decision which plainly miscarried because on her own findings she neglected to take into account those other parts of the evidence and this is an error of law.14 [25] It was further argued by the Appellant that the Commission only weighed the response by the Appellant against the verbal taunt and the button touching.15 To support that submission, the Appellant relied on the following passage of the Commissioner's reasons: [132] At its highest, the evidence demonstrates that Mr Chiu was saying something annoying to Mr Cleal about the buttons on his shirt and probably touched the buttons or Mr Cleal's person in the vicinity of the buttons. The response of Mr Cleal in the circumstances is in my view not proportionate to the provocation. [26] The above finding is consistent with the evidence of the Appellant where, in re-examination he told the Commission: Yeah. And Mr Moy talks about going through this frames - - -?---Yeah. - - - at various moments and saying, "Is this when they provoked you and this is when they provoked you." In consideration of your account, what were the two - what were the provoking moments for you?---For me? Yeah?---Basically more - more when Eric put his hands on my - on my body, okay? But he was - he was stirring me up by all his comments about buttons and stuff like that, you know? And I'm 10 TR1-58, L34 (29.06.21). 11 TR1-58, LL24-26 (29.06.21). 12 TR1-50, LL29-43 (29.06.21). 13 TR1-50, LL45-46 (29.06.21). 14 TR1-38, LL1-8. 15 The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 036, [137]. -- 7 of 19 -- 8 just - I'm just standing there. And when he first came up to me and did that and I just looked at him, and went, "Oh, God, Eric. Okay." So I just got - kind of went, "Oh yeah." And I just thought to myself I don't really need this today, you know what I mean?16 [27] Paragraph [132] should be understood in the light of the following paragraphs of the Commissioner's reasons: [87] I have reviewed Mr Cleal's and Mr Chiu's RiskMan reports, Mr Cleal's evidence and the evidence or statements of several witnesses who either saw the event (or were present in the kitchen when it happened but did not see it or had a limited view) and/or its aftermath or were present in the kitchen when the events occurred. On the basis of this material, it is clear to me that there was an interaction between Mr Cleal and Mr Chiu involving Mr Chiu approaching Mr Cleal and either 'nudging' his shoulder or 'shouldering' or 'hip and shouldering' Mr Cleal. [88] Following this, the evidence shows that on the balance of probabilities, it is likely that Mr Chiu touched Mr Cleal in the area of his upper chest or neck by way of touching his buttons or grabbing his shirt while making comments about Mr Cleal's buttons being undone. [89] Those interactions are not visible on the CCTV footage of the event that was shown to the Commission and witnessed multiple times. However, various witness statements, and in fact, evidence of Chiu and Cleal themselves are strongly suggestive that something of this nature occurred. [28] At paragraph [132] the Commissioner sets out what she believed occurred in what is perfectly sensible and logical observations on the evidence. The passages referred to highlight the reasoning process undertaken by the Commissioner to arrive at her conclusions. [29] In the reasons, the Commissioner found: [91] I accept that Mr Cleal was provoked to some extent. The evidence demonstrates that Mr Chiu had approached Mr Cleal and most likely touched him at the level of his chest or neck where his top buttons were. [30] Finally, all the Commission's key findings are ultimately summarised at the end of the decision in paragraph [187].17 [31] The Appellant's submission that the Commissioner erred in law in not giving weight to the finding that the physical provocation commenced with a 'hip and/or shoulder nudge' from Mr Chiu is a misreading of the finding of the Commission.18 [32] The Commissioner did not conclude that the 'hip and/or shoulder nudge' by Mr Chiu was part of the provocation. It is clear from paragraph [91] of the reasons that the Commissioner concluded that '…Chiu had approached Mr Cleal and most likely 16 TR1-71, LL27-38 (29.06.21). 17 TR1-31, L6-TR1-32, L3 (29.06.21). 18 TR1-36, L43-TR1-37, L2. -- 8 of 19 -- 9 touched him at the level of his chest or neck where his top buttons were'. This reflects the Appellant's own evidence as to what provoked him to respond as he did.19 [33] It was for the Commissioner to determine what evidence she thought was important to the factual questions raised. The Commissioner was not obliged to refer to every piece of evidence which the Appellant thought was important. In my view, none of the so-called failures throw any doubts upon the central findings made in relation to the determination as to whether or not the termination of the Appellant was unfair. [34] Further, the Commission referred to the Appellant's 'evidence at the hearing demonstrated a lack of self-reflection'.20 The Appellant submits the 'lack of self-reflection' finding erroneously placed weight on the fact that the Appellant had martial arts training. It did not. [35] In oral submissions, the Appellant accepted that the Commissioner's reasons did not place weight on the fact that the Appellant had trained in martial arts and this part of the appeal was abandoned.21 [36] This ground of appeal must fail. Ground Two [37] This ground was abandoned. Ground Three [38] In determining the termination of the Appellant's employment as not harsh, unjust or unreasonable, it is submitted that the Commission erred in law by admitting into evidence and relying on the written Queensland Police Service ('QPS') statement of Mr Chiu when he was not available for cross-examination and was not accepted as a credible witness in the criminal prosecution brought against the Appellant.22 [39] First, what is argued by the Appellant is that the Commissioner erred when she admitted the QPS Statement into evidence. [40] The Commission is not bound by the rules of evidence, but it cannot refuse to consider matters which are deemed to be evidence by statute. [41] Section 92 of the Evidence Act 1977 provides: 92 Admissibility of documentary evidence as to facts in issue (1) In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to 19 TR1-71, LL27-38 (29.06.21) ; Exhibit 4, Transcript of QPS Statement dated [124], [252], [272]-[274], and [321]-[337]. 20 Ibid, [180]. 21 TR1-19, LL23-26. 22 Appellant's outline of submissions filed 1 April 2022, [31]. -- 9 of 19 -- 10 establish that fact shall, subject to this part, be admissible as evidence of that fact if - (a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or … [42] The requirements of s 92(1)(a) of the Evidence Act 1977 were met in the hearing before the Commission. Therefore, the QPS Statement was admissible as evidence of the facts contained in it. Section 92(1)(a) does not afford that evidence anything other than admissibility. Whilst the evidence can be challenged on other grounds and its reliability, in appropriate circumstances, might be challenged, but the matters contained in the statement remain evidence of the truth of the matters recorded in it. [43] Secondly, notwithstanding the argument about admissibility, the Appellant appears to accept that there was evidence to support the Commissioner's findings but contends that the Commissioner erred in the weight she gave to the evidence supporting those findings. Of course, the misattribution of weight to certain evidence is an error of fact, not an error of law.23 [44] In the Commissioner's reasons she says: [78] It is unfortunate that Mr Chiu was unable to given evidence at the hearing due to illness. The Commission was provided with a medical certificate with regard to Mr Chiu's unavailability. In the absence of Mr Chiu's evidence or the capacity of the Applicant to cross-examine him, I have had to consider the only evidence available. This is the 'risk man' report and the statement provided to police. Both are contemporaneous accounts of Mr Chiu's version of events. I note the Applicant's submission regarding the weight that should be afforded this evidence given Mr Chiu was unavailable for cross-examination. I also note the Respondent's submission that Mr Chiu's statement was signed in the presence of a police officer and acknowledged that if anything in his statement was false, he may be liable for prosecution. [45] It is apparent from the above reasons that the Commissioner understood the nature of the Appellant's complaint concerning the admissibility of the QPS statement and was alive to the weight to be placed on the evidence having regard to the fact that Mr Chiu was not available for cross-examination. [46] The Respondent argues that Mr Chiu's QPS statement was relevant and probative and was given shortly after the altercation between Mr Chiu and the Appellant. [47] Arising from the workplace incident the subject of this appeal, the Appellant was charged with assault pursuant to the Criminal Code 1899 (Qld). The Appellant was acquitted and the learned Magistrate in R v Cleal produced and delivered on 30 November 2020 what was described as a decision. [48] Before the Commission, the Appellant sought to admit the decision in R v Cleal into evidence. It was argued by the Appellant at the interlocutory hearing that the reasons 23 Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332, [25], [35]. -- 10 of 19 -- 11 of the Magistrate questioned Mr Chiu's reliability and creditability.24 As such, the decision ought to be admitted into evidence in the unfair dismissal proceedings. [49] In an ex-tempore decision25 given on 5 February 2022, the Commissioner set out her reasons for excluding the 'Magistrates Court's notes of decision' in R v Cleal. The Commissioner determined, amongst other things, that the matter in the Magistrates' Court involved criminal proceedings; it involved the asking and answering of a different question to that which was before the Commission; it was the impression of the Magistrate and in the absence of the context and the questions being asked during the prosecution hearing, the Commissioner would find the reasons of little value. [50] The Appellant submits the observations of the Magistrate in respect of the credit of Mr Chiu was relevant and the Commission failed to have that benefit. In considering the unchallenged QPS statement, and in the absence of the decision in R v Cleal, the Commission has erred in law pursuant to House v R.26 [51] The decision of the Magistrate in R v Cleal was given against a background in which she described the prosecution as a 'shambles'. The reasons reflect the Magistrate's impression of Mr Chiu's oral evidence in court in circumstances where he had '…started his own investigation at work because he could not remember what happened'.27 There is no suggestion that the Magistrate's comments related in any respect to the reliability of the QPS statement.28 [52] The Commissioner was entitled to exclude that evidence. [53] The Appellant submits it appears the Commission preferred Mr Chiu's version that the contact in the neck area was only with the buttons. The Appellant's contrary version was that Mr Chiu's hands were on his throat.29 [54] The Commissioner found: [132] At its highest, the evidence demonstrates that Chiu was saying something annoying to Mr Cleal about buttons on his shirt and probably touched the buttons or Mr Cleal's person in the vicinity of the buttons. The response of Mr Cleal in the circumstances is in my view not proportionate to the provocation. [55] From the reasons of the Commissioner, I am not convinced that she placed any reliance on the QPS Statement. 24 Appellant's outline of submissions filed 1 April 2022, [34]; Transcript 28 January 2021; The Australian Workers' Union of Employees, Queensland v Metro South Hospital and Health Service [2021] QIRC 125. 25 The Australian Workers' Union of Employees, Queensland v Metro South Hospital and Health Service [2021] QIRC 125. 26 House v R [1936] 55 CLR 499. 27 Exhibit PC03 to the Affidavit of Perry David Cleal filed 6 April 2021. 28 Ibid. 29 Appellant's outline of submissions filed 1 April 2022, [33]. -- 11 of 19 -- 12 [56] The Commissioner explained her preference for certain evidence and reached a conclusion that was open on the evidence. It was one which was open to her irrespective of the QPS statement. No error is demonstrated by proposing alternative conclusions that could have been reached on the evidence had the Commissioner attributed weight in a different way. [57] No error of law has been established. Ground Four [58] It is submitted that the Commissioner failed to make a finding of fact that the Appellant experienced bullying and harassment. This failure was said to be an error of law. [59] The Appellant gave evidence that he had made complaints in respect of two of his co-workers. Those complaints were made to Mr Pritchard, the Respondent's Food Services Manager and it was accepted that the complaints had been addressed and resolved.30 Mr Pritchard recognised that there was a poor work culture in the kitchen which had given rise to complaints.31 [60] In respect of this evidence, the Commissioner observed: [148] I note that under cross-examination, Mr Pritchard discussed the culture within the workplace in the kitchen and other complaints that had arisen with regard to the way employees speak to each other, their willingness to undertake certain tasks and not wanting to work as a team. Whilst workplace culture is important to take into account when considering all of the facts surrounding the incident, I do not accept that the evidence regarding the culture of the workplace serves to excuse Mr Cleal's conduct. [61] It was never contended before the Commission that the Appellant's complaints in respect of past bullying and harassment were the key element of the provocation on 20 July 2019. Indeed, there was no evidence of any adverse interaction with Mr Chiu prior to the incident on 20 July 2019. [62] What was specifically contended by the Appellant in the Commission was that the Appellant was provoked by Mr Chiu and encouraged by Mr O'Sullivan.32 [63] The particulars of that assertion were expressed as follows: a. Mr Chiu approached Mr Cleal via a 'hip and shoulder' or nudging Mr Cleal; b. Mr Chiu grabbing Mr Cleal by the shoulder; and c. Mr Chiu grabbing Mr Cleal's shirt around the collar area and stating that Mr Cleal's 'button was undone'.33 30 Applicant's Closing Submission filed 28 August 2021, [46]. 31 TR3-12, LL26-46 (21.07.21). 32 Applicant's Closing Submission filed 28 August 2021, [30]. 33 Closing Submissions of The Australian Workers' Union of Employees, Queensland filed 21 August 2021. -- 12 of 19 -- 13 [64] The Appellant at first instance submitted as follows: 48. The Applicant submits that the complaints and the culture is relevant on the basis that it shows that there is substantial friction in the workplace and antagonisation against Mr Cleal, the Applicant submits that the incident on 20 July 2019, which occurred with Mr Chiu and Mr O'Sullivan is a continuation of the same, in particular, the said individuals knew Mr Cleal was an individual that just wanted to focus on his work and was not a person to engage in 'small talk', but nevertheless they continued to advance and provoke Mr Cleal, in order to see Mr Cleal's reaction. [65] In her reasons, the Commissioner dealt with that submission in the following way: [106] There was a suggestion by Mr Cleal and his representatives that Mr O'Sullivan had been involved in the incident. I note that Mr O'Sullivan was accompanying Mr Chiu as the two men entered the kitchen and that he was standing nearby as the events unfolded. I accept that it is probable that he was speaking to Mr Chiu. [107] Mr Cleal at one stage gave evidence that it was only after reviewing the CCTV footage and reflecting on it that he had realised Mr O'Sullivan had been a part of the provocation and that this was the reason he did not mention him in previous statements or his show cause response. However, it is evident that Mr Cleal had viewed the CCTV footage prior to submitting his show cause response. A handwritten statement and sketched map of the kitchen signed and dated by Mr Cleal on 17 September 2019 makes reference to him having viewed the CCTV footage on 13 September 2019. [66] The Commissioner concluded that there was an absence of any contemporaneous reference to Mr O'Sullivan as a participant in events of 20 July 2019 and whilst he may have been present and watching the events, the Commissioner found that Mr O'Sullivan was not involved in the incident to the extent the Appellant described in his statements and under cross-examination. [67] After canvassing the evidence, the Commissioner relevantly concluded: [114] Mr Cleal's statements regarding the event at the time and during the show cause process did not make reference to Mr O'Sullivan. The first reference to Mr O'Sullivan came in statements being prepared for this hearing. Further to this, I have reviewed the CCTC footage many times and am now very familiar with it. Whilst it is clear Mr O'Sullivan was present during the incident, I cannot conclude on the evidence before me that Mr O'Sullivan was involved in the incident to an extent that he could be described as a provocateur. [68] This ground of appeal has expanded from an assertion that the Commissioner failed to make a finding in respect of the allegation that the Appellant experienced bullying and harassment to one which encompassed a series of accumulated errors which it was said led the Commissioner to erroneously find that the termination was not harsh, unjust or unfair. There is nothing in this ground. None of the so-called errors have been substantiated or could be grounds of appeal, and, further, this ground in itself does not relate to an error of law or a mistake in the exercise of jurisdiction. Ground Five -- 13 of 19 -- 14 [69] It is submitted by the Appellant that to the extent that the decision of the Commission involved the exercise of discretionary powers, the decision was so grossly unreasonable and contrary to the weight of evidence that it constitutes an error of law within the purview of the House v R.34 [70] In House v R,35 Dixon, Evatt and McTiernan JJ explained: 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.36 [71] In Moreton Bay Regional Council v Moorhead,37 Martin J wrote: [28] …. The approach that a court should take in considering matters of this nature was discussed by a joint majority of the High Court in Minister for Immigration v Li.38 Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. But, this analysis cannot be used as a cloak to hide what is, in truth, a merits review. In that case, Hayne, Kiefel and Bell JJ noted that: [66] … there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. [67] In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. (citations omitted, emphasis added) 34 (1936) 55 CLR 499. 35 Ibid. 36 Ibid, 504-506. 37 [2014] ICQ 013. 38 Minister for Immigration v Li (2013) 87 ALJR 618, [65]-[76]. -- 14 of 19 -- 15 [72] Ultimately, the decision to find or not find the dismissal "harsh, unjust or unreasonable" under s 320(1) of the IR Act is not an exercise of discretion.39 However, it is a matter of judgment and assessment which will only be set aside if one of the House v R errors is found.40 [73] That judgment is both informed and constrained by s 320 which prescribes the circumstances which must be considered in such an assessment. [74] The Appellant claims that the decision of the Commissioner in exercising the powers structured by s 320 of the IR Act was abused. It has not been demonstrated that she failed to take into account any relevant consideration. No error of law has been established. The Appellant has not demonstrated that the Commission abused its statutory power. [75] The Appellant further submitted that the penalty imposed on him was inconsistent with the approach the Respondent took in relation to Mr Chiu. There was at first instance some limited questioning of Mr Drummond around whether Mr Chiu had been disciplined. However, there was no evidence elicited as to why Mr Chiu was treated differently to the Appellant. The mere fact that the Appellant's employment was terminated does not of itself render his treatment as unjust. [76] Whilst it is settled that the differential treatment can be a relevant matter when determining whether a termination has been harsh, unjust or unreasonable it must only be done in circumstances where there is sufficient evidence placed before the tribunal hearing the matter in order for it to make a proper assessment.41 In the proceedings before the Commission, there was insufficient evidence to form such a view. [77] The Commission was entitled to reach the decision that it did. The Appellant has failed to demonstrate an error of law of the type referred to in House v R.42 Ground Six [78] While the Appellant seeks to rely on grounds beyond errors of law or excess or want of jurisdiction, he may only do that by leave. The circumstances in which leave may be given are prescribed by s 565 of the IR Act which is in these terms: 565 When leave for appeal must be given If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench - (a) must give leave if it is satisfied it is in the public interest to do so; and (b) may not give leave other than under paragraph (a). 39 Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [95]. 40 Norbis v Norbis (1986) 161 CLR 513. 41Sexton v Pacific National (ACT) Pty Ltd - PR931440 [2003] AIRC 506. 42 (1936) 55 CLR 499. -- 15 of 19 -- 16 [79] As to the public interest and s 565A of the IR Act, the Appellant submits the public has an interest in seeing that justice is fairly dispensed. [80] In Comalco Aluminium Ltd (Bell Bay) v O'Connor (No 2),43 Wilcox CJ and Keely J observed: There is nothing in either of these cases,42 or in s 170UB or 170UC, to commend a narrow interpretation of the expression 'public interest' or to suggest that, as submitted by Comalco, consideration of the public interest may not include consideration of the interests of the parties to the relevant industrial dispute. On the contrary, the resolution of industrial disputes being a primary purpose of the Act, the disposal of a dispute in a manner that takes account of the interests of the disputants is plainly within the scope and purpose of the legislation. The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. But the statute does not direct the Commission as to the weight to be given to the various factors or as to the decision it should make.44 [81] In considering whether leave should be given to argue factual error, a relevant consideration is the public interest in the Appellant having his reinstatement application heard and decided on its merits. [82] In his submissions the Appellant identified public interest issues as arising on the basis that the appeal raises important questions which relate to provocation and proportionality of response in the workplace environment of a public hospital.45 [83] As to whether leave ought to be granted in the public interest, the Respondent submits there is nothing in this case which will apply to anyone other than the two parties and clearly the public interest has not been invoked in which case the appeal must be dismissed.46 [84] What occurred was a physical and verbal interaction between two workers in an industrial kitchen in a public hospital which could have had serious consequences. It was a discrete incident between two co-workers. The Respondent argues that the public interest has not arisen.47 [85] It is recognised that considerations of "public interest" do not exclude the interests of parties to the litigation. The purpose of the reference in a statute to "public interest" is to ensure that private interests are not the only matters taken into account.48 43 (1995) 61 IR 455. 44 (1995) 61 IR 455, 479-480. 45 Appellant's outline of submissions filed 1 April 2022, [45]. 46 TR1-36, LL22-25. 47 TR1-20, L39-TR1-21, L19. 48 Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 61 IR 455, [479]. -- 16 of 19 -- 17 [86] The public has an interest in the system of resolving industrial disputes being conducted properly.49 However, the approach adopted by the Commissioner to determine the matter was an orthodox one. [87] The present appeal raises no issues beyond those between the parties to the appeal. Accordingly, I refuse leave under s 557(2) of the IR Act. It must follow therefore that the Appellant's appeal is limited to grounds establishing error of law.50 Conclusion [88] This is an attempt to appeal findings of fact by clothing them in terms which suggest an error of law. Grounds of appeal must relate to errors of law, not to impressions perceived about the manner in which evidence is set out in the reasons given. [89] Grounds one, three, four and five in the notice of appeal, although describing themselves as demonstrating errors of law, are more criticisms of findings of fact. [90] In McDonald v Tinbilly Travellers Pty Ltd Hall P wrote: The appeal is about whether the Commission erred in law. Whilst there may be cases in which the chasm between the facts and the decision is so large that this Court will be entitled to infer that there has been an (unidentifiable) error of law, and whilst there will be cases in which this Court will interfere with a factual conclusion on the ground that the process was flawed, a clear distinction has always been maintained between an error of fact and an error of law. In particular, whilst s. 348 authorises an appellant to roam over the record of proceedings in the Commission to locate and/or demonstrate error of law, the appeal is not by way of a second chance trial, and is not an avenue for testing whether evidence supportive of a particular finding should have been accepted in whole or in part rather than other evidence which led to other conclusions. In ordinary circumstances, a factual conclusion by the Commission will be respected, save where there is not any evidence to support the conclusion.51 [91] The Appellant says that the reasons given by the Commissioner for the finding that the dismissal was not unfair was also attended with multiple errors of reasoning. Part of the inadequacy of the argument advanced is that it is based upon a selective or misreading of various paragraphs in the reasons of the Commissioner. [92] In Abbott v Blackwood 52 Martin J gave consideration to the duty of a decision-maker. After giving a summary of the analysis undertaken by McColl JA in Pollard v RRR Corporation Pty Ltd53 his Honour went on to conclude: [18] Of course, when considering whether or not a Tribunal has either overlooked some relevant evidence or misconstrued the issue to be determined, an appeal court must not be quick to 49 Queensland Electricity Commission; Ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393, 395 per Mason CJ, Wilson and Dawson JJ and see generally O’Sullivan v Farrer (1989) 168 CLR 210, 216. 50 It was not contended that the decision under appeal was without or beyond jurisdiction. 51 (2006) 183 QGIG 841. 52 Abbott v Blackwood [2014] ICQ 031. 53 [2009] NSWCA 110. -- 17 of 19 -- 18 apply a critical magnifying glass. I agree, with respect, with what Hall P said in Cameron v Q-Comp: "[3] It is, however, important for an appeal court to refrain from undue ebullience in seeking-out error in decisions written under the pressure of other work and after lengthy trials. I adhere to the view expressed by this Court in Cunningham and Others (Flower and Hart) v William Hamilton Hart, viz: '… However, I accept that the Court should not be overly enthusiastic to seek out error. Cases abound in which the need for caution and restraint have been emphasised. It is convenient to commence with the observations of Meagher JA in Beale v Government Insurance Office of NSW: 'It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered'.' Over twenty years later, the nuances of meaning carried by the colourful phrase, 'miscarriage of justice', render the passage less helpful than it once was. However, the more moderate formulation in Collector of Customs v Pozzolanic, viz.: 'This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: …The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth).', continues to be helpful. The observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors, are to the same effect. Footnotes omitted, the passage is: 'These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.'." (citations omitted, emphasis added) [93] The issue before the Commission was correctly identified as being whether or not the dismissal was unfair within the meaning of s 316 of the IR Act. That question, was in my view, correctly answered. -- 18 of 19 -- 19 [94] There is no discernible error in the Commissioner's reasons for finding that the decision was not harsh, unjust or unreasonable. The Commissioner took into account the relevant statutory considerations. She otherwise directed herself correctly on the law. There is no identified error of law, and she has taken into account all relevant considerations. [95] Instead of demonstrating that the Commission did not proceed according to law, the Appellant has sought in many of its grounds of appeal to re-agitate the merits of this particular case. [96] Each of the grounds of appeal fail. Orders [97] The Commission orders as follows: The appeal is dismissed. -- 19 of 19 --