Marroun v State Transit Authority

1. [1]

   Mr Jamal Marroun (‘the appellant’) had been employed by State Transit Authority (or its predecessors) (‘the respondent’) for 38 years at the time of his dismissal in May 2015. He was employed as a Duty Officer, Clerk Class 5/6.

2. [2]

   It was alleged (in the “Form E1” issued by the respondent (‘the E1’)) that the appellant was guilty of misconduct in that:

3. [3]

   The allegation was supported by three particulars.

4. [4]

   The allegation was found proven and the appellant was dismissed from his employment. He appealed pursuant to Pt 7 of Ch 2 of the Industrial Relations Act 1996 (NSW) (‘the Act’). His appeal was heard by Commissioner Newall, a Commissioner of the Industrial Relations Commission of NSW, who, for reasons I will shortly summarise, dismissed the appeal on 4 February 2016: Marroun v State Transit Authority [2016] NSWIRComm 1003 (‘the impugned decision’).

5. [5]

   An appeal from that decision was brought by the appellant against the impugned decision pursuant to s 197B of the Act. The section provides:

6. [6]

   It is apparent from the emphasised words that the appeal is limited. The degree of that limitation has been recently the subject of consideration in two judgments of the Industrial Court of NSW, namely, Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 (‘Schoeman’) and Elleray v Rail Corporation of New South Wales (2014) 86 NSWLR 326; [2014] NSWIRComm 45 (‘Elleray’) (and the authorities cited therein). The appellant, who was represented by Mr E W Young of counsel, accepted, and indeed expressly declined to challenge, the correctness of those authorities. I shall return to them in due course.

7. [7]

   The impugned decision was dated 4 February 2016. An application for leave to appeal and appeal under s 197B of the Act (’the notice of appeal’) was filed in the Industrial Court of NSW on 24 February 2016 and became matter number 2016/00059249. That matter was heard upon the basis of a record of the proceedings before Newall C (in the Appeal Books) and the provision of written and supplementary written submissions and oral submissions (given on 20 July 2016). Judgment was reserved. Collectively the application in, hearing by and reserved judgment of the Industrial Court shall be referred to and treated in this judgment as the ‘appeal proceedings’. (Ultimately, I note it was accepted by the parties that leave to appeal was not required. However, had leave been required I would have granted it for the reasons which appear below and, in particular, to further discuss or emphasise the limits of appeals brought under Pt 7 of Ch 2 of the Act: see Schoeman at [131] – [135].)

8. [8]

   Those observations will require development in order to grapple with some legislative changes affecting the appeal proceedings and to foreshadow some issues arising on the appeal proper.

9. [9]

   The grounds set out in the notice of appeal were expressed as follows:

10. [10]

    The questions raised by the appeal were said to be each of the grounds simply expressed as a question.

11. [11]

    The appeal proceedings were first listed for directions on 7 March 2016. Having regard to the limitation expressed in s 197B of the Act, the words emphasised in the grounds of appeal referred to above were raised with counsel for the appellant the adequacy of the notice of appeal. The respondent joined in that expression of concern. Counsel indicated the issue would be reconsidered. The matter, for that reason amongst others, was stood over for further directions on 4 April 2016. On that occasion, no application having been made to amend the notice of appeal in the interim, a question was again raised as to whether the notice of appeal was directed to the requirements of s 197B. The appellant’s response was that the matter had been considered and the notice of appeal in its original form was pressed. In those circumstances, the matter was listed for hearing and the usual directions made in accordance with Practice Note No 1.

12. [12]

    Pursuant to those directions the parties filed outlines of submissions. The respondent, by then represented by Ms K Edwards of counsel, referred in its outline to s 197B and the limits on the appeal and to the authorities, in particular Rail Corporation of New South Wales v Brown (2012) 219 IR 37; [2012] NSWIRComm 14, emphasising the obligation on the appellant “to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court”. No outline in reply, as permitted by the directions, was filed by appellant.

13. [13]

    At the commencement of the hearing of the appeal proceedings before myself, then sitting as the Industrial Court of NSW, reference was made to the written outlines filed and my previously articulated concerns about the adequacy of the notice of appeal. The following appears in the record of proceedings:

14. [14]

    A discussion then followed with counsel about the way in which the appellant would satisfy the requirements of the Act. Mr Young considered that could best be done by dealing with each of the grounds in support of the notice of appeal. As the submissions were developed it became clear, at least as to grounds 4 to 10 and, in substance, ground 1, that the appellant’s challenge had a common basis. The following exchange took place between the Court and counsel for the appellant:

15. [15]

    At the conclusion of the oral hearing, pursuant to leave granted, the parties provided supplementary written submissions as to the impact, if any, of the decision of the High Court in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 (‘Kostas’) and the judgment in Schoeman and authorities on which that judgment was based. Those submissions were received from the appellant on 12 August and the respondent on 2 and 16 August 2016 and, as previously mentioned, judgment in the appeal proceeding was thereupon reserved by the Industrial Court.

16. [16]

    Between judgment being reserved in this matter and 16 December 2016, the date appointed for the delivery of this judgment, the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (‘the Amendment Act’) was passed.

17. [17]

    The Amendment Act introduced into the Act new provisions: Ch 6A, entitled “Industrial Proceedings before Supreme Court”, and Pt 18 of Sch 4, entitled “Provisions relating to Industrial Relations Amendment (Industrial Court) Act 2016”. Those provisions operated on and from 8 December 2016, being the day appointed by proclamation for their commencement (see cl 2(1) of the Amendment Act).

18. [18]

    By cl 61(1) of Pt 18, the Industrial Court of NSW (the court in which the appeal proceedings were heard) was abolished on the “abolition day”. The “abolition day” is defined in cl 60 as meaning the day on which Pt 3 of Ch 4 of the Act was repealed by the Amendment Act, that also being 8 December 2016. A person holding office as a judicial member (see as defined in cl 60 of Pt 18 and s 149 of the Act, now repealed) immediately before that date ceased to hold that office and was appointed as a Judge of the Supreme Court of NSW on the abolition day (cl 62(1) of Pt 18). I, being such a judicial member immediately before the abolition day (and, incidentally, the judicial member hearing the appeal proceedings) was appointed, by commission (see cll 62(5) and (6)), and, by virtue of cl 62(1), a Judge of the Supreme Court of NSW on 8 December 2016.

19. [19]

    Ch 6A of the Act conferred jurisdiction on the Supreme Court of NSW over proceedings under s 197B of the Act (see s 355B(d)).

20. [20]

    The appeal proceedings were continued in this Court pursuant to Pt 18 of Sch 4 of the Act for the reasons given below.

21. [21]

    That consequence was achieved by the provisions of cl 66(2), when read in the light of the definitions of “part heard proceedings” and “pending proceedings” in cll 65(1) and (2). It is convenient to set out those provisions commencing with cl 65(1):

22. [22]

    There can be little doubt the appeal proceedings constituted “proceedings in the Industrial Court” for the purposes of cl 66(2) as the appeal proceedings, as earlier defined, incorporated both the cause of action as well as the steps in the action: see Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 at [69]-[73]. Those proceedings are “pending proceedings”, as that expression is defined in cl 65(1), because the proceedings commenced before the abolition day and, in consequence of the hearing having concluded without determination by judgment with reasons and orders (judgment being reserved: see r 36.3 of the Uniform Civil Procedure Rules 2005), they were not “finally determined” in the Court in which the proceedings were commenced, namely, the Industrial Court. That conclusion is supported by the ordinary meaning of the word “determined”, being to decide, but is a fortiori having regard to the provisions of cl 65(2) of Pt 18 which extended the meaning of the expression “finally determined” beyond first instance judgments to include appeals from decisions as of right (the word “finally” in the expression would seem to bring into consideration interlocutory judgments which are not presently relevant).

23. [23]

    Having regard to the definition of the expression “part heard proceedings” in cl 65(1), the appeal proceedings are “part heard” for the purposes of cl 66(2) of Div 4 of Pt 18 for essentially the same reasons. The hearing of this matter commenced. The appeal proceedings were not “determined” as no judgment was delivered or entered before the abolition day.

24. [24]

    It follows that the appeal proceedings were “part heard proceedings” for the purposes of cl 66(2). The sub-clause thereafter provides that a judicial member constituting the Industrial Court for the hearing of those proceedings “is to continue” from 8 December to hear and determine the matter sitting as the Supreme Court. The reference to a hearing, in the present context, is otiose as the matter is reserved but the expression “to determine the matter” in cl 66(2)(a) involves, as discussed above, the delivery or entering of a judgment in the part heard proceedings as continued in this Court by cl 66(2) (by the former judicial member of the Industrial Court, after appointment to the Supreme Court, sitting in the Supreme Court to deliver judgment).

25. [25]

    In conformity with Pt 18 of Sch 4 of the Act, then, it falls to this Court to determine the appeal brought by the appellant under s 197B of the Act against the impugned decision. This judgment and the orders therein constitute that determination.

26. [26]

    To the extent it is necessary to so find, I have, pursuant to cl 66(2)(b), had regard to the record of proceedings before the Industrial Court (which incorporates, in the Appeal Books, the records before the Commission below) in reaching this judgment.

27. [27]

    Having regard to the way in which the appellant framed his appeal, it will be necessary to descend to the detail of the evidence and submissions before the Commissioner below, notwithstanding the legislative limitation on the appeal. I emphasise that references to the evidence are not to evaluate the evidence, as such, but rather to examine more closely the factual premises upon which the appellant constructed his contentions under s 197B. In that context I would observe that an appellate court needs to guard against being seduced to convert a limited appeal jurisdiction into an unlimited jurisdiction effectively rehearing the evidence and deciding for itself what the outcome should be.

28. [28]

    Following a failed conciliation, Commissioner Tabbaa made directions to prepare the matter for hearing. The parties were required to file outlines of submissions and statements of evidence upon which they intended to rely.

29. [29]

    The order of presentation of cases is dealt with in s 100G of the Act. It provides:

30. [30]

    Sub-section 3 makes clear that, although there is a change to the order of presentation of cases when compared, for example, to unfair dismissal proceedings, the legal burden of making out a ground remains with the party contending for that ground, even though the evidentiary burden, in that respect, may shift during the course of the proceedings.

31. [31]

    Consistent with the terms of the legislation, the respondent’s outline was required to be filed first.

32. [32]

    In its outline filed on 7 September 2015, relevantly to this appeal, the respondent contended, in summary:

    1. (1)

       “[T]hat the explanation the Appellant provided is inconsistent with other evidence, including that of his wife and lacks credibility. These inconsistencies were highlighted in Mr Welzel’s investigation report (PW1) and in Ms Melissa Eames’s statement”;

    2. (2)

       “[T]he reviewing officer who imposed the punishment of dismissal had delegated authority to impose such punishment”;

    3. (3)

       The mitigating circumstances advanced on behalf of the appellant “are dubious”;

    4. (4)

       During the disciplinary process the appellant:

33. [33]

    In his outline filed 29 September 2015, the appellant contended there were four evidentiary issues. They were that, in summary:

    1. (1)

       The onus was upon the respondent to prove serious misconduct;

    2. (2)

       The onus was on the balance of probabilities and must satisfy the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (‘Briginshaw’) standard;

    3. (3)

       The respondent’s case rose no higher than showing the appellant made a simple mistake; and

    4. (4)

       The conclusion (in (3) above) was compelled by the objective facts.

34. [34]

    Importantly, the outline did not raise any issue as to who made the decision to dismiss or whether that person held the delegation so to decide.

35. [35]

    In its outline in reply the respondent contended that, in summary:

    1. (1)

       It was inappropriate to characterise the allegation it had made other than as set out in the E1;

    2. (2)

       There was an issue as to whether there was a “direction” from Era Alimonti, one of the “Lost Property Officers” at the depot, to the appellant;

    3. (3)

       The assertion of an “honest mistake” made by the appellant must be rejected;

    4. (4)

       Even if it be accepted that the removal of the items from the revenue room to his car was an honest mistake, “[w]hat followed was a series of dubious explanations and can not be accepted as a ‘simple mistake’”;

    5. (5)

       The appellant’s evidence relating to matters under review had been inconsistent and particular reference was made to:

    6. (6)

       Reinstatement or reemployment was not practicable due to the loss of trust and confidence particularly because of inappropriate Facebook posts made by the appellant post-employment.

36. [36]

    Ms A Phan, a Senior Workplace Relations Consultant in the employ of State Transit Authority, who appeared for the respondent below, said in her opening submissions:

37. [37]

    The respondent filed and relied upon statements of four witnesses: Karolina Corsham, Lorna Hutchings, Paul Welzel and Melissa Eames. The latter two witnesses had each made statements filed in reply in addition to their primary statements. Each of those witnesses was required for cross-examination. The respondent drew attention to its reliance on two statements attached to Mr Welzel’s investigation report by persons not available at the time of hearing. That evidence was admitted, subject to considerations of weight.

38. [38]

    Evidence was led as to the procedure and practice in relation to the receipt and disposal of lost property. Ms Corsham was, at the time of giving her evidence, the Administration Officer at Kingsgrove depot. Her evidence may be summarised, relevantly, as follows:

    1. (1)

       She had a range of responsibilities in her role as depot Administration Officer which included being, along with the Administration Officer (Revenue) (Ms Alimonti), one of the ‘Lost Property Officers’ at the depot;

    2. (2)

       Ms Corsham and Ms Alimonti had primary responsibility for the handling of lost property between the hours of 8am and 4pm Monday to Friday;

    3. (3)

       Within those hours the two officers would record the details of lost property items (such as information as to where and when the property was found and any identifying features such as names or contact details) in the ‘lost property register’ based on the ‘lost property slip’ which was intended to be completed by the employee finding or handing in the item;

    4. (4)

       A tag would then be prepared noting the item number in the lost property register, and the tag and the lost property slip would be attached to the item;

    5. (5)

       The tagged items were then placed in blue plastic bins which contained items found during the week and which were often stored in a small room next to the safe within the ‘revenue room’;

    6. (6)

       Outside the hours of 8am and 4pm Monday to Friday, Duty Officers assisted with the receipt, registering, tagging and storing of lost property items in the revenue room;

    7. (7)

       Each week, usually on a Friday, Ms Corsham would go through the blue bins and clear items for sale by auction (high value items), donation to charity (low value items) or simple disposal (e.g. perishable items);

    8. (8)

       If the items were to be donated to charity she would remove the tags and lost property slips and any items of personal identification, such as student cards, would be removed and shredded. The items were then placed in garbage bags and placed in, or next to (if the item was bulky), the clear plastic bin by the revenue room door;

    9. (9)

       On Friday 10 April 2015, Ms Corsham went to the revenue room and removed the blue plastic bins from the small room to the desk within the revenue room with the intention of sorting the items to be disposed of. However, she was distracted by other duties and decided to return to the task on the following Monday morning. (Ms Corsham acknowledged that strict compliance with the written procedure required high value items such as mobile phones and wallets to be placed in a safe and that she had not done so on that occasion. She was not disciplined for her failure.);

    10. (10)

        On the following Monday, when Ms Corsham went to the revenue room to complete the task, she discovered the blue plastic bins empty;

    11. (11)

        She initiated inquiries to discover what had transpired which led to the appellant’s acknowledgement that he had removed the items.

39. [39]

    Ms Hutchings, like the appellant, was a Duty Officer at Kingsgrove depot. She gave evidence of her involvement in relation to lost property which may be summarised, relevantly, as follows:

    1. (1)

       It was part of her role as a Duty Officer to assist in the disposal of lost property by taking items assessed as of low value to charity bins;

    2. (2)

       She regularly worked the morning shift on a Saturday;

    3. (3)

       The practice at the depot was for Ms Corsham or Ms Alimonti to tag items of lost property with information as to where and when the property was found and any identifying features such as names or contact details;

    4. (4)

       If the items were not claimed within the prescribed time Ms Corsham or Ms Alimonti would clear them for disposal;

    5. (5)

       If the items were of low value the responsible officers would clear the items by removing the tags, placing them in plastic bags and placing those bags in a clear plastic bin in the locked revenue room;

    6. (6)

       The revenue room, which was under CCTV surveillance, was locked and accessible only by authorised officers with appropriately coded swipe cards;

    7. (7)

       When preparing to leave for home, Ms Hutchings would go to the revenue room at the depot where she would check the items left for disposal to ensure they were no longer tagged;

    8. (8)

       She would also sometimes look at items through “idle curiosity” and had from time to time asked senior managers for permission to keep items such as books for the depot library rather than take them to the charity bin;

    9. (9)

       It was not open to her to otherwise take items cleared for disposal for her own use;

    10. (10)

        The choice of which charity bin to use was a matter for her;

    11. (11)

        She regularly placed the items in her own car to take them to the charity bin on her way home;

    12. (12)

        On the day in question she, for the first time, saw blue plastic bins on the table in the revenue room as well as the clear plastic bin on the floor;

    13. (13)

        She inspected the items in the blue bins, found them tagged and, concluding they were not cleared for disposal, left them there;

    14. (14)

        She also inspected the contents of the clear plastic bin, found no tags and removed the items to the charity bin.

40. [40]

    Ms Alimonti was one of the persons referred to above who was not called to give evidence. A statement she had made in the course of the respondent’s investigation was part of the report attached to the statement of Mr Welzel. Included in that statement was confirmation that Ms Alimonti spoke to the appellant on Friday 10 April 2015. The terms of the conversation recorded in that statement differed, to a degree, from the version advanced by the appellant but it was common ground that Ms Alimonti at least mentioned to him there were items in the revenue room ready to be taken to charity. I note that the respondent sought to rely on Ms Alimonti’s version of the conversation and the Commissioner, rightly, observed that the weight he could give to evidence from a witness not called may not be as much as that led from witnesses called and cross-examined.

41. [41]

    An investigation was conducted by Mr Welzel at the request of a Mr Reardon, General Manager, Fleet Operations and Infrastructure. Mr Welzel was based at Leichhardt and had no line reporting relationship with the officers at Kingsgrove. Having undertaken a preliminary investigation he determined there were grounds for a formal disciplinary investigation. Mr Welzel issued to the appellant a “Form E1 that set out the allegation against him” (as set out above at [2]) and particulars of that allegation. The E1 also sought a written explanation from the appellant.

42. [42]

    In his written response the appellant summarised his position as simply seeking to help by complying with an instruction given to him by management and doing what was common practice, done by him and other Duty Officers, for the previous four years. The appellant’s response may be summarised, relevantly, as follows;

    1. (1)

       On 10 April 2015, Ms Alimonti asked the appellant to dispose of items in the revenue room;

    2. (2)

       He replied that he was too busy that day but would do it the following day;

    3. (3)

       Ms Alimonti accepted his response;

    4. (4)

       The following day the appellant went to the revenue room and saw two containers on the desk which he assumed contained the items for disposal;

    5. (5)

       There were no other items visible;

    6. (6)

       He “did not look, check or search through any of the lost property as [he] was not interested at all in any kind of these items”;

    7. (7)

       As the charity bins at Kingsgrove station had been permanently removed he could not ask other staff to dump the items in those bins as he had often done in the past;

    8. (8)

       As he was aware of certain charity bins located near his home he decided to drop the items there on his way home;

    9. (9)

       He had directed others to drop items at the bins in Kingsgrove and personally taken items there himself in the past;

    10. (10)

        He was aware of other Duty Officers, including Ms Hutchings, doing likewise;

    11. (11)

        Everyone at Kingsgrove depot was aware of this method of disposal;

    12. (12)

        The task was “especially done on the weekend”;

    13. (13)

        The procedure had been used since he transferred to Kingsgrove depot four years earlier;

    14. (14)

        The depot Manager was aware he dealt with lost property and “was alright with it”;

    15. (15)

        He was upset and disappointed at receiving “an E1” for something he was instructed to do by Ms Alimonti;

    16. (16)

        Specific to the particulars of the allegation -

    17. (17)

        To the best of his knowledge he had never seen the Lost Property Procedure and never received specific training in it.

43. [43]

    After considering the appellant’s response, Mr Welzel decided it was appropriate to conduct an interview with him to clarify certain matters. In the course of that interview the appellant did the following:

    1. (1)

       Described the practice of receiving, tagging and registering lost property at Kingsgrove depot;

    2. (2)

       Accurately described the purpose of the tags;

    3. (3)

       Denied any knowledge of removal of tags indicating that that was the Revenue Officer’s responsibility;

    4. (4)

       Said that he was not thinking about tags when he removed the items;

    5. (5)

       Indicated that he had never considered whether he would remove items from the revenue room if they were still tagged;

    6. (6)

       Reiterated his reasons as to why he removed the items from the revenue room;

    7. (7)

       Reiterated on several occasions that he did not “look, check or search through any” of the lost property;

    8. (8)

       Described removing the bins one at a time and dumping the contents in his car where they remained until he finished his shift;

    9. (9)

       Indicated that he forgot about the items of lost property in his boot until he was having dinner and mentioned them to his wife;

    10. (10)

        Stated that she offered to take the items the following day to the charity bins;

    11. (11)

        Said he thought no more about the items until receiving a call from the depot on Monday morning immediately after which he and his wife sought to recover the items;

    12. (12)

        Indicated he did not remove any tags;

    13. (13)

        Said he saw one mobile phone on the floor in his lounge room;

    14. (14)

        Stated that when he was carrying the second bin to his car he noticed a box of chocolates;

    15. (15)

        Said that after being shown some still photographs from the CCTV footage he:

    16. (16)

        Agreed that the video from the CCTV showed him looking through the blue bins containing the lost property;

    17. (17)

        Explained that, when previously asked, he had no recollection of looking through the bins but his recollection had been refreshed;

    18. (18)

        Explained that he was looking through the bins to do a “routine check” and that:

44. [44]

    Mr Welzel also interviewed Mrs Marroun who had volunteered for the same. Although there were some disparities, her account generally accorded with that of her husband’s. Mrs Marroun explained she removed the items from her husband’s car boot while he was sleeping on the Sunday morning and that she also removed the tags. She placed the items in plastic bags. In doing so, Mrs Marroun noticed the chocolates and mobile phones and thought they should not go to the charity bins. Out of curiosity she placed the “newer” mobile phone on the charger, but intended to ask her husband if the phones should be recycled. After the appellant left for work she took the plastic bags containing the items to local charity bins.

45. [45]

    Mr Welzel found that the appellant:

    1. (1)

       Had removed lost property items from the revenue room at Kingsgrove depot;

    2. (2)

       Did not have authority to remove the items;

    3. (3)

       Failed to check that they were items set aside for disposal; and

    4. (4)

       Did not return some of the items when requested to do so.

46. [46]

    Mr Welzel was cross-examined as to whether he gave consideration to a number of factors in coming to his conclusions. More relevantly to this appeal, in cross-examination he was asked to confirm that, in his report, he did not find that the appellant was dishonest in his dealings with the lost property. Counsel for the appellant sought to stress this proposition in his cross-examination. However, in the course of that cross-examination, in particular as to one aspect of the interview with the appellant, Mr Welzel gave the following evidence:

47. [47]

    Ms Eames, who was employed as Senior Staff Supervisor at Leichhardt depot, gave evidence that she was the reviewing officer tasked with considering Mr Welzel’s investigation report. Amongst other things, Ms Eames noted that the appellant denied having seen the Lost Property Procedure but considered that as a Duty Manager he knew or ought to have known those procedures. Further, she noted an email was sent by Anthony Robb to all staff in March 2015 reminding them of the Lost Property Procedure, asking that all staff “re-familiarise” themselves with that policy and attaching a copy of the same.

48. [48]

    Ms Eames satisfied herself that the investigation had been procedurally fair and also considered the findings contained in the report to be appropriate. On 12 May 2015, Ms Eames met with the appellant and his union representative to advise the outcome of the investigation. Ms Eames made a file note of the meeting in which she recorded that she advised the appellant that the breach had been found proven, that it amounted, in her view, to serious misconduct, and that dismissal may be an appropriate punishment. The appellant was asked if he wished to present anything to be considered in relation to punishment. His union representative advanced several factors in mitigation which were also set out in the file note.

49. [49]

    Ms Eames also gave evidence that she had delegated authority to implement punishments under the Transport Administration (Staff) Regulation 2012 (NSW). In her subsequent report she recorded her conclusion that the appropriate punishment was dismissal. A “Notice of Punishment” was subsequently issued under the hand of the Kingsgrove depot Manager, Mr Robb. The form described Mr Robb as the “Delegated officer responsible for the disciplinary decision”. In cross-examination, Ms Eames was unable to recall, and ultimately doubted, whether she drafted the notice of punishment. Mr Robb was not called.

50. [50]

    Ms Eames also gave evidence in relation to matters advanced by the appellant in mitigation. Her evidence in that respect may be summarised as follows:

    1. (1)

       The appellant’s claims as to loss of superannuation benefits appeared to be overstated as he was eligible to take or defer his benefits from age 58 (which he had reached);

    2. (2)

       The appellant’s claim as to loss of gold pass travel benefits should be understood in the context that he was offered the opportunity to resign which would have allowed retention of those benefits; and

    3. (3)

       The appellant’s claim to be supporting nine family members was different from that which was advanced on his behalf in the meeting she held with him prior to determining dismissal in which it was said he sent money to his sister-in-law who had a child and his mother was ill.

51. [51]

    Evidence from Ms Eames indicated she had conducted a search of the appellant’s Facebook account and noted comments naming a Mr Reading and Mr Welzel and being highly critical of the respondent, stating that: “[the respondent is] bastart and they really criminal with stars”. The posts also contained a representation as to a comment attributed to the “reviewing manager” to the effect that she did not think dismissal was appropriate and she would recommend a “little penalty”. Ms Eames denied making any such representation. While it was not suggested in cross-examination that she was incorrect about that, it was suggested to her, and she emphatically denied, that she said words to the effect: “I think I’ve got a good option for you. I’ll try but I have to talk to someone more senior”.

52. [52]

    The Lost Property Procedure was included in the evidence. It was a document of 10 pages which was said to detail: “[T]asks involved in the recording, handling and disposal of property that is left on a bus, ferry or State Transit location by an unknown person.”

53. [53]

    Section 2.3 of the Lost Property Procedure was titled “Handing in Lost Property”. In summary it provided:

    1. (1)

       An employee who found lost property was to hand it to the Lost Property Officer as soon as practicable;

    2. (2)

       The employee was to complete a lost property slip (which must specify prescribed information) and provide that to the Lost Property Officer;

    3. (3)

       The Lost Property Officer was to ensure that all lost property was received, inspected and stored in a secure area adequately covered by CCTV (section 2.5 made specific provision for placing valuable items in a safe).

54. [54]

    Section 2.4 was headed “Registers”. The first paragraph specified: “The authorised Lost Property Officer must tag each item in number sequence and enter the details into the Found Register” (emphasis in original).

55. [55]

    Section 2.13 was headed “Unclaimed Lost Property Items for Release”. It made provision for disposal at the conclusion of the minimum holding period imposed by the Impounding Act 1993 (NSW). It provided the guidelines in relation to auctioning high value items, donating low value items and discarding items of no monetary value and which were not acceptable to charity organisations. It also made provision for the protection of personal information by “wiping” information on high value IT items such as laptops and smartphones before sending them to auction, and the destruction of low value IT items such as USB sticks. The section made no mention of removal of “tags”, however, provides as follows:

56. [56]

    The appellant’s evidence in chief was contained in a written statement which he confirmed to be true when he entered the witness box. The statement largely reiterated what he had said in his response to the E1 and in his interview with Mr Welzel. Notably, however, the appellant went further in his statement in that he said that he had satisfied himself, by his brief check of the contents of the blue bins, that the items therein were intended for disposal. He had based that conclusion on his knowledge of the Lost Property Procedure. He knew that food (which would have included the box of chocolates) was to be disposed of on the day it was handed in and items such as wallets, containing identification and credit cards, and mobile phones were to be secured in a safe.

57. [57]

    The appellant was cross-examined about the inconsistency between his statements to Mr Welzel and Ms Eames about, respectively, his never having seen or being trained in the Lost Property Procedure compared with his supposed reliance on his knowledge of it on the day of the incident to establish, in his mind, that the items must be set aside for disposal. Some extracts of the cross-examination on that topic are as follows:

58. [58]

    The questions from Ms Phan, and at times the Commissioner, as to the inconsistency between the appellant’s statements occupy several pages of transcript. The appellant displayed a lack of familiarity with his statement as filed in the proceedings. He acknowledged that his “solicitor” was involved in the drafting of his statement. The fact remained he had affirmed it as true and correct at the beginning of his evidence. What emerged was evidence which the Commissioner was obliged to weigh in assessing both the appellant’s state of knowledge as at April 2015 and his credibility. In doing so the Commissioner was confronted by competing versions of his evidence as to the same subjects.

59. [59]

    The cross-examination was also directed to:

    1. (1)

       The accuracy of the appellant’s claims as to the financial impact of losing his employment;

    2. (2)

       The propriety of taking the lost property home;

    3. (3)

       The propriety of allowing the property to leave his care and control;

    4. (4)

       The propriety of leaving the task to his wife without any information or instruction;

    5. (5)

       The propriety of failing to check that the property had been appropriately dealt with;

    6. (6)

       The propriety of allowing personal information to be revealed by leaving tagged items at the charity bins;

    7. (7)

       The possibility of checking that these items were the ones to which Ms Alimonti referred given the unusual circumstances applying;

    8. (8)

       His knowledge of the respondent’s code of conduct, to which the following extract from his cross-examination applies;

60. [60]

    Parenthetically I observe this last answer is particularly revealing in light of the appellant’s submission concerning the Commissioner’s assessment of him as a witness. Mr Young criticised the absence of examples in the Commissioner’s decision and invited a review of the transcript which, he submitted, “demonstrated someone who is doing his best to give evidence without being argumentative, dismissive of questions, or repeatedly volunteer[ing] self-serving evidence”.

61. [61]

    In re-examination, the appellant said he presumed Ms Alimonti had already done the right thing and cleared the items for disposal and that when he saw the bins all the items in them had no value. The suggested inference being that he had no need to check. It did not explain why he nevertheless made a “routine check” as he said he did.

62. [62]

    Mrs Marroun also gave evidence. It largely corroborated that of her husband. However, there was one point of significant difference in that the appellant said the items in his boot were all loose whereas Mrs Marroun said, when she opened the boot to remove them, that about half were in plastic or canvas bags with the remainder having spilled out and being loose in the boot. This disparity was not explained.

63. [63]

    At the conclusion of the evidence Ms Phan made her closing submission. She indicated that the respondent relied on the written submissions filed prior to the hearing but wished to add some points in light of the hearing over the prior day and a half. The second point she dealt with was expressed as follows:

64. [64]

    Next, Ms Phan dealt with the proposition that the appellant had made a “simple mistake”. The first point she made about that was that there was not one but a series of mistakes – she identified six. Then she added:

65. [65]

    Ms Phan then directed her submissions to the evidence before the Commission as follows:

66. [66]

    It is perhaps appropriate to remember, at this juncture, that, although the language used in this submission, like that of the Commissioner’s decision, reflected that commonly used in unfair dismissal proceedings, these proceedings were of a different nature. They were an appeal to be determined in accordance with the relevant legislative provisions which were in different terms to s 84 of the Act. Section 100C(2) confers upon the Commission a very wide power which, if exercised in favour of allowing an appeal, may include orders of the kind described in s 100D(1). No issue was raised on the appeal to suggest the impugned decision miscarried on that basis but the distinct nature of such appeals should not be forgotten (see the discussion of this topic in Schoeman at [161]-[164]).

67. [67]

    Ms Phan also made submissions about the same factors, as well as post-dismissal employment and an overseas holiday, being relevant to any exercise of discretion to award compensation.

68. [68]

    Mr Young then made submissions on behalf of the appellant. He did so by providing written submissions and supplementing them with oral submissions.

69. [69]

    Ms Phan made oral submissions in reply for the respondent.

70. [70]

    After recounting the procedural history of the respondent’s investigation of the matter, the Commissioner turned to an argument raised by the appellant for the first time in final submissions, namely, that, absent express evidence demonstrating the decision maker held the appropriate delegated authority to dismiss, the appeal must succeed. That argument now underpins ground 1 in the notice of appeal.

71. [71]

    Commissioner Newall dealt with the contention in two ways. The first related to the procedural fairness of raising, after the evidence had closed, a contention that there was an issue as to the fact of delegation. The Commissioner concluded that was a course not open to the appellant. (I note that no direct challenge to this approach by the Commissioner was set out in the notice of appeal. At best, ground 1 carries an inference that the Commissioner was obliged to determine the evidentiary issue.)

72. [72]

    The second way the Commissioner dealt with this contention was by reference to the evidence. He noted the evidence included a document signed by Mr Robb purporting to suggest he held delegated authority. No evidence was led to contradict that proposition. His conclusion as to the absence of contradictory evidence was not challenged on appeal.

73. [73]

    Next, the Commissioner dealt with the Commission’s powers in relation to a disciplinary appeal. I will digress to examine some more of the statutory scheme in this context. As I have noted, the appeal was brought pursuant to Pt 7 of Ch 2 of the Act. The appeal itself is authorised by s 98 which relevantly provides as follows:

74. [74]

    An “appealable decision” is defined by the intersection of ss 91 and 97 to include a decision to dismiss an employee. The Commission’s powers in the disposition of such an appeal are specified in ss 100C and 100D. They provide as follows:

75. [75]

    Returning to the decision below, the Commissioner then referred to these provisions although he did not consider it necessary to set them out in his decision. He also referred to authorities, including Schoeman, which considered the scope of the jurisdiction. The Commissioner concluded that the appeal:

    1. (1)

       Was an appeal de novo;

    2. (2)

       Was not simply a review of the decision of the initial decision maker;

    3. (3)

       Did not constrain the Commission merely to accept or reject the decision under challenge;

    4. (4)

       Was not confined to a consideration of whether the alleged misconduct occurred but extended to all matters related to a review of the decision to dismiss;

    5. (5)

       Involved the exercise of a discretion by the Commissioner having regard to all material relevant to that discretion including supervening facts; and

    6. (6)

       Was protective rather than punitive in nature.

76. [76]

    With the possible exception of the last point, which was the subject of ground 2 of the appeal, no challenge was made to those conclusions of the Commissioner.

77. [77]

    The Commissioner summarised the evidence as to the facts. He concluded that the appellant’s actions in removing the lost property items from the revenue room did not amount to a breach by him of the Lost Property Procedure. The Commissioner found (at [55] and [58]):

78. [78]

    The Commissioner found (at [59] – [62] and [65]) the appellant’s behaviour may have warranted disciplinary action but the punishment meted out was disproportionate to the offence, particularly so when the evidence showed no other officer was disciplined.

79. [79]

    The Commissioner was also critical of the reviewing officer for failing to consider whether the conduct as found amounted to misconduct as alleged. He observed at [66]:

80. [80]

    The Commissioner’s conclusion is correct at least in relation to that part of the report which was in evidence. It appears only the last page was attached to Ms Eames’ statement. Although in paragraph 7.4 of her report she noted “the seriousness of the matter”, that part of her report did not expressly find “misconduct”. I have earlier noted that also attached to Ms Eames’ statement were her notes of the meeting with the appellant to discuss the outcome of the investigation in which she recorded her conclusion that the breach amounted to “serious misconduct”.

81. [81]

    Nevertheless, there is no doubt the Commissioner concluded that the respondent’s decision-making process was flawed.

82. [82]

    It is important to note that it was in the context of these observations and findings that the Commissioner observed, at [67]:

83. [83]

    In my view, that was merely an observation by the Commissioner musing or speculating as to why the respondent’s view as to appropriate punishment differed so markedly from his own assessment.

84. [84]

    The Commissioner then turned to other considerations relevant to the exercise of his powers and discretion. There was no suggestion that he was wrong so to do. Rather the challenge was to the findings he made in the course of that assessment. He considered two matters of fundamental importance:

    1. (1)

       The appellant’s conduct in dealing with his employer about the matters raised with him; and

    2. (2)

       His post-employment conduct.

Conduct in dealing with his employer

1. [85]

   As to this matter, the Commissioner:

   1. (1)

      Observed, at [75], that the appellant had “an absolute obligation to be candid” and noted the obligation of candour had implications for the future employment relationship as well as past conduct;

   2. (2)

      Found, at [76], that the appellant was not candid;

   3. (3)

      Found, at [77] - [78], that some parts of his account were fabricated to prevent a finding, both by his employer and by the Commission, that he (at [78]):

   4. (4)

      Concluded, at [82], the evidence given to the Commission and the account given to the respondent by the appellant were not credible;

   5. (5)

      Observed, at [83], that the statements of evidence given by the appellant and Mrs Marroun were:

   6. (6)

      Considered, at [84], the appellant’s evidentiary statement unreliable (in doing so referring to the inconsistency as to the appellant’s knowledge of the Lost Property Procedure);

   7. (7)

      Found, at [89], that the appellant in his oral evidence was a far from impressive witness in that:

   8. (8)

      Observed, at [92], that:

   9. (9)

      Observed, at [93], that some parts of the evidence of the appellant and Mrs Marroun were inherently improbable including that:

2. [86]

   The Commissioner concluded from the evidence that:

   1. (1)

      It was undeniable that the appellant knew before receiving the call from the respondent that Mrs Marroun had dealt with the property for her own purposes (at [97]);

   2. (2)

      The appellant knew of and condoned Mrs Marroun’s conduct and told untruths about it to his employer (at [98]);

   3. (3)

      The fundamental problem was that the appellant sought to deceive his employer and that was a fundamental breach of his employment contract (at [100]);

   4. (4)

      That fundamental breach was destructive of the trust and confidence between the employer and the employee and stood against restoration of the employment relationship (at [100]-[101]);

   5. (5)

      That conclusion was reinforced by the protective nature of the jurisdiction (at [102]);

   6. (6)

      The same conduct before the Commission was a disentitling factor to the exercise of discretion in the appellant’s favour (at [103]); and

   7. (7)

      The appellant’s lack of candour with his employer and with the Commission precluded the appeal being determined in his favour.

Post-employment conduct

1. [87]

   As to the second fundamental matter identified by the Commissioner, it was found that:

   1. (1)

      The Facebook posts, made by the appellant some two months after his dismissal and which remained visible for at least another several months, were not posts made in the heat of distress and taken down again; and

   2. (2)

      The posts, in the terms made, were beyond acceptable limits, notwithstanding that the employment relationship is capable of surviving some stresses; particularly so considering the protective nature of the jurisdiction.

2. [88]

   The Commissioner held that, even if he were wrong in his other findings, this factor precluded reinstatement or re-employment.

The Commissioner’s Ultimate Conclusion

1. [89]

   The Commissioner found that the appellant’s appeal could not succeed notwithstanding:

   1. (1)

      His finding that the actual conduct as alleged by the respondent did not warrant dismissal;

   2. (2)

      The appellant’s length of service; and

   3. (3)

      The appellant’s personal and family circumstances.

2. [90]

   I have earlier referred to the judgments of the Industrial Court in Elleray and Schoeman. In the latter, after traversing the authorities, that Court summarised their effect as follows (at [60]):

3. [91]

   As to the need for the appellant to identify with some precision the “decision” the subject of challenge, Mr Young, in his supplementary submissions, relied upon a number of authorities including the decision of the High Court in Kostas, the decision of the NSW Court of Appeal in Grygiel v Baine [2005] NSWCA 218 (‘Grygiel’) and the decision of the Full Federal Court in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (‘Haritos’) in support of the proposition that a common sense and practical approach should be taken to the construction of the grounds of appeal and, thereby, the identification of the challenged decisions on questions of law. He submitted: “nothing in Schoeman requires an overly technical or pedantic approach and that the various errors identified in this Appeal do that. As such, Schoeman can be read consistently with Kostas.”

4. [92]

   Kostas concerned an appeal pursuant to s 67 of the (now repealed) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). That section was, at the relevant time, in the following terms:

5. [93]

   The appellant in Kostas had appealed from a decision of the Consumer, Trader and Tenancy Tribunal contending it had wrongfully repudiated a building contract. The appellant alleged that the Tribunal had fallen into error in a number of ways. French CJ observed that the summons by which the appeal was initiated to the Supreme Court did not in terms identify a decision of the Tribunal with respect to a matter of law. However, the grounds of appeal set out in a schedule to the summons raised a number of complaints. The primary judge held that the decision of the Tribunal suffered from a number of errors of law. The Chief Justice did not find it necessary to decide whether each of the matters identified constituted decisions with respect to a matter of law individually or as elements in the one overarching decision as to the lawfulness of the termination of the contract.

6. [94]

   The lawfulness of the termination of the contract was held, by French CJ, to be a question with respect to a matter of law. His Honour also held that a decision of the Tribunal for which there was no evidence could be characterised as a decision with respect to a question of law.

7. [95]

   Before turning to the reasons of the plurality it is important to note that, in construing s 67, French CJ held (at [24]):

8. [96]

   The reasons of the plurality (Hayne, Heydon, Crennan and Kieffel JJ) also included an observation relevant to the grounds advanced by the appellant in the present case. They said (at [78]):

9. [97]

   As to the submissions about the proper construction of s 67, the plurality said at [88]:

10. [98]

    Their Honours did hold (at [90]) that:

11. [99]

    In rejecting this further submission their Honours said (at [91]):

12. [100]

    The reference in the above extract by the plurality in Kostas to the judgment of Dixon CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (No. 2) (1956) 95 CLR 106 at 113 should not be understood as the plurality in Kostas determining that an issue as to the assessment of evidence, that is, the proper weighing or evaluating of evidence, constitutes a decision on a question of law. The plurality made clear in the paragraph immediately following the extract from Gurnett that they were concerned with the “no evidence ground” of the appeal.

13. [101]

    Mr Young submitted there were significant similarities between s 67 of the Consumer, Trader and Tenancy Tribunal Act and s 197B of the Act but did not develop that argument. Two things may be said about the submitted similarity between the two provisions. The first is that, as the respondent submitted, they are textually different in terms. Apart from the different usage of the word “question” and the use of the word “matter”, the former refers to decisions on “questions with respect to a matter of law” while the latter refers to decisions “on a question of law”. The italicised words suggest a quite different scope for the two sections. In that regard, the comments of French CJ cited above at [95] are apposite.

14. [102]

    The second is that the sections operate in different legislative contexts and provide for appeals to different courts. An important consideration in Kostas was that the appeal was to the Supreme Court and the jurisdiction and powers of that Court were considered in determining what could be done on such an appeal. By contrast, this appeal is to a Court of limited statutory jurisdiction. I am not persuaded that the provisions have the same effect but it is unnecessary to finally decide that question because of the way Mr Young continued his submission.

15. [103]

    The substance of Mr Young’s submission was directed to the finding in Kostas quoted in [83] above. In the context of s 197B, the implicit decision of the Commission is in response to a question as to whether there is evidence to support a particular finding of fact. That implicit question is a question of law on the authority of Kostas. If the Commission makes a finding it implies a positive answer to that question. That implied decision is open to challenge under s 197B, but if there is evidence on which such a finding can be made the assessment of that evidence by the Commission is not subject to appeal. The distinction is fundamental but it appeared to elude the appellant. (See my discussion on this point in Schoeman at [50] - [60].)

16. [104]

    Mr Young then reiterated his submissions as to the various grounds of appeal in that context. He also relied on the fact that the grounds of appeal in Kostas failed to identify, in terms, the questions of law decided by the Consumer, Trader and Tribunal yet the appeal was able to succeed because the High Court was able to identify in the grounds a decision with respect to a matter of law.

17. [105]

    In Grygiel, the particular passage relied upon was from the reasons of Basten JA at [29]. His Honour there stated:

18. [106]

    Mr Young placed particular reliance on the words emphasised in italics in the above extract. However, the passage makes clear that his Honour was focussed on the absence of a need for the Tribunal itself to have separately identified and addressed the question of law - not the obligation of the appellant in the present case to do so (see the extract from Schoeman at [78] above). Indeed, the sentence emphasised by underlining in the passage above, which immediately precedes the words upon which counsel relied, makes the distinction clear. It is clear his Honour concluded that, whilst the Tribunal may not explicitly identify such a question, an appellant seeking to challenge the decision on that question was obliged to identify it. The passage does not support the appellant’s argument in this case. (The argument is also contrary to the judgment of Basten JA in Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674; [2008] NSWCA 277 at [3]. See also Douglas v NSW Land and Housing Corporation & Anor [2008] NSWCA 315 at [17] to [18].)

19. [107]

    Mr Young submitted that the reasons of Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [70] and [71] affirmed the proposition on which he relied in Grygiel. In those paragraphs, his Honour stated:

20. [108]

    Mr Young placed particular reliance upon the words emphasised in that extract but, again, the passage relied upon does not support the proposition advanced. The reasons are focusing on, first, whether it was necessary for the Tribunal to have identified and answered a question of law explicitly and, secondly, whether a decision with respect to relevant or irrelevant considerations involved a decision on a question of law. The conclusion as to the first point is that it is not necessary. That does not mean that an appellant does not have such an obligation. I shall return to the relevance of the second point in due course.

21. [109]

    The next authority relied on was Haritos. That case was concerned with an appeal made under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the relevant part of which provides:

22. [110]

    Mr Young submitted that this appeal provision was in “substance the same as s197B”. I observe that no argument was directed to the degree of similarity between the provisions but I do not necessarily accept that the two provisions are the same. I note the important textual difference that s 44 permits an appeal from any decision of the Tribunal on a question of law. While the appeals are limited to questions of law they are not confined to appeals from decisions of the Tribunal on a question of law. Secondly, the two pieces of legislation have substantially different histories and operate in different contexts. There may be other aspects of statutory construction which weigh for or against the proposition stated so baldly.

23. [111]

    Again, it is unnecessary for me to further the consideration of that question because I accept, with respect, the proposition expressed in Haritos, upon which I understand Mr Young to rely, that the notice of appeal, although it invokes the jurisdiction of the Court, is not the source or limit of the Court’s jurisdiction in relation to the appeal. The jurisdiction of this Court (after the Amendment Act) is limited to appeals from decisions of the Commission on questions of law arising in proceedings heard pursuant to Pt 7 of Ch 2 of the Act.

24. [112]

    That is not to deny the importance of, and the obligation on the appellant to identify with some precision, the decision on a question of law which is the subject of challenge. As the Full Court went on to say in Haritos (at [90]–[97]):

25. [113]

    Acceptance of these propositions finds reflection in my discussions with counsel in the lead up to, and on the hearing of, the appeal. I sought, by my encouragement of a reconsideration of the notice of appeal and questions of counsel, to elucidate what the appellant sought to challenge and on what basis. That approach is consistent with the conclusion of the Full Court expressed in [94] of the extract above.

26. [114]

    I would emphasise, in particular, the observations of the Full Court at [91], [93] and [96] of Haritos about the need for the notice of appeal to state “with some precision” the decisions under challenge. The Court should not be obliged to embark upon an inquiry as to the nature of the appellant’s case. The need to maintain both the fact and appearance of impartiality by the Court limits, if not militates against, such an approach. The degree to which the Court will or may do so will vary according to circumstances. In that regard, I draw attention to judgment of the Full Court at [99] - [109] with which I am in general agreement. I draw particular attention to paragraph [109] in which the Court cited the judgment of Spigelman CJ in R v JS (2007) 230 FLR 276; [2007] NSWCCA 272 and that part of his Honour’s judgment dealing with the purposes of a notice of appeal. His Honour noted, at [57], that a notice of appeal serves three functions:

27. [115]

    The importance of the third purpose ought not be overlooked.

28. [116]

    In Schoeman, the Industrial Court left open the question as to whether a “no evidence” point raised a question of law for the purposes of s 197B. That matter has now been resolved by the judgment in Kostas. How the point crystallised, if at all, in this appeal is a slightly different question.

29. [117]

    With the possible exception of the first ground, none of the grounds in the notice of appeal identify an erroneous decision on a question of law by the Commission at first instance. That indicates the appellant failed to engage the critical question in appeals under s 197B. Most of the grounds (4 to 10) allege, in substance, a want of procedural fairness. As I have indicated, the existing authorities, which were not challenged, establish that a failure to accord procedural fairness does not constitute a decision on a question of law by the relevant tribunal. The appellant did not develop any contention in the grounds of appeal, or otherwise, as to how such a challenge may be raised within the context of an appeal pursuant to s 197B.

30. [118]

    Grounds 3, 13 and 14 concern challenges to the exercise of the Commissioner’s discretion by giving too much weight to one matter (ground 13) or insufficient weight to some other factors (grounds 3 and 14) said to indicate a different discretionary outcome. There is no identification of the decision(s) on a question of law in connection with these grounds. Nor do grounds 11 or 12 identify or even suggest the decisions on questions of law they seek to challenge.

31. [119]

    None of the grounds in the notice of appeal allege there was an error in making a finding for which there was “no evidence”. The identification of that alleged basis of challenge did not arise until the hearing of the appeal. It was supported by an alternative allegation of “insufficient evidence”. Again, it was not articulated in the grounds and there was no attempt to address the question in submissions of how an allegation of “insufficient evidence”, as distinct from “no evidence”, fell within the confines of an appeal pursuant to s 197B.

32. [120]

    The development of the “no evidence” and “insufficient evidence” contentions appear to have arisen from a conflation of those concepts (if they be different) with that of the duty to act judicially. The appellant relied upon the decisions in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 (‘Bond’) and Suvaal v Cessnock City Council (2003) 200 ALR 1; [2003] HCA 41 (‘Suvaal’). A brief review of those authorities will illustrate how the appellant came to conflate these concepts.

33. [121]

    The appellant appeared to understand that these authorities established that a failure to act judicially constitutes an error of law. While that may be accepted, it is not an error open to correction under s 197B. When confronted by that difficulty the appellant looked to the examples of incidents of that duty and attempted to apply them by contorting the alleged failures into descriptions expressed in different contexts. Hence, the adoption of the “no evidence” ground as an alternative way to challenge the finding. The next step in the process is to suggest the further alternative that, even if there be material upon which a finding might be made, that material is not sufficiently probative.

34. [122]

    A particular passage from the judgment of Deane J in Bond, to which reference was made in the appellant’s written submissions, provides a good starting point. His Honour said at 367:

35. [123]

    Bond concerned an appeal from the Federal Court of Australia exercising powers of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was, therefore, dealing with a quite different form of appeal to the instant matter. The last emphasised sentence in the passage quoted above must be understood in that context. Equally, the emphasised sentences are to be understood as illustrations or incidents of the duty to act judicially. So the reference to “preconceived prejudice or suspicion” relates to the duty to act impartially. It does not concern the reasonableness of conclusions of fact or inferences drawn from facts. Further and consistent with that, the context makes clear that the reference to “probative material” supporting findings of fact is not to be understood as a different concept from “no evidence”.

36. [124]

    Suvaal concerned an appeal from a decision in a common law action in which a cyclist suffered severe injuries following a fall from his bicycle. The plaintiff sued the nominal defendant alleging he was brushed by an unidentified car while cycling on a road built and maintained by the respondent council. He sued the council for failing properly to maintain the road and allowing potholes to form. The plaintiff’s case was that the car caused him to leave the bitumen surface and strike the potholes which ultimately caused his fall.

37. [125]

    The plaintiff was the only witness to the accident. The trial judge rejected the plaintiff’s evidence as to the car brushing him. That finding had the effect of exculpating the nominal defendant. There remained the action against the council. The trial judge found for the plaintiff on the basis that a momentary lapse in concentration caused him to leave the road and strike the potholes. The trial judge assessed contributory negligence by the plaintiff at 20 per cent because of this lapse in concentration. The plaintiff had never advanced that case against the council. In fact, in his evidence, the plaintiff specifically rejected the suggestion (no doubt raised by the nominal defendant as a plausible alternative to being brushed by the car) that he had a lapse of concentration. It was no part of the council’s case that the plaintiff had a lapse of concentration and it had no opportunity to deal with such a case.

38. [126]

    The appellant, in his written submissions, referred to passages from the decisions of the judges constituting the majority. From the judgment of Gleeson CJ and Heydon J, he cited paragraph [36] in which their Honours said:

39. [127]

    The first sentence in the paragraph indicates that a trier of fact is not obliged to accept the evidence of the only eye witness(es) to an event or events and it is open to that trier of fact to make findings “not exactly” in accord with either party’s case. The second sentence deals with the obligation to act judicially. The authority does not avail the appellant. First, the reliance on a want of procedural fairness fails to address the jurisdictional limits of the instant appeal. Second, for reasons which will be apparent, I do not accept that the Commissioner invented the arguments as to the reliability of the evidence of the appellant and Mrs Marroun. That was part of the respondent’s case from the outset and never abandoned.

40. [128]

    It suffices to note that the passages referred to from the third member of the majority in Suvaal, Callinan J (specifically [144]-[145] and [147]-[149]), although providing a more detailed exposition, are relied upon to similar effect. It is necessary to observe once again that the nature of appeals differ and the scope for an appellate court to deal with alleged errors of law will vary according to the jurisdiction being exercised. The jurisdiction granted by s 197B does not permit review on the basis of want of procedural fairness.

41. [129]

    Having regard to the three purposes of a notice of appeal identified by Spigelman CJ in R v JS set out at [114] above, these failures are sufficient in themselves to justify dismissal of the appeal. This was not a case of “inelegant drafting” as referred to in Haritos. Save perhaps for ground one, the notice of appeal did not invest the Court with jurisdiction by means of the identification of decisions of the Commission below on questions of law. Nor did the notice of appeal identify the confines of the issues to be determined or put the respondent on notice of the case it was required to meet. The questions posed to the appellant had the effect of provoking identification of (or at least acquiescence to) a “no evidence” contention. That was not enough to identify a decision on a question of law by the Commissioner that was wrongly decided. By way of example, ground four challenged a “finding” of dishonesty in the appellant’s account given to his employer. But what is the question of law decided by the Commissioner and what impact does it have on the outcome of the case? The instant case may be contrasted with Kostas.

42. [130]

    It will be recalled that in Kostas the question of law concerned who had terminated the contract. That question turned on a key finding of fact as to service of requests for extension of time. That provoked the critical question of law as to whether there was evidence to support a finding of service. As there was no such evidence, it implied an erroneous decision on a question of law. No such analysis emerged in this case either in the notice of appeal or in submissions.

43. [131]

    Such deficiencies would be sufficient to justify striking out of the notice of appeal, particularly given the opportunity and encouragement to consider amendment. However, as there was no application by the respondent to strike out I will not take that course and will, therefore, deal with each of the grounds in turn.

44. [132]

    Mr Young developed his submissions as to the various grounds of appeal by grouping some and dealing with others individually. I will deal with them in that way.

Ground 1- Delegation

1. [133]

   Mr Young submitted there was no evidence to support a finding that Mr Robb held the relevant delegation. On one view, even if that contention be correct it is irrelevant. As I have noted, the Commissioner did not allow the point to be raised having regard to the time at which it was first identified during oral submissions (see [22] and [58] above). No challenge is made to that procedural direction by the Commissioner which was, in any event, open to him in the circumstances: see ss 57 and 156 of the Civil Procedure Act 2005 (NSW) and s 163(1) of the Act. The ground fails on that basis. However, in deference to the more extensive submissions advanced by the appellant on this ground, I will deal with the balance of the appellant’s contentions.

2. [134]

   Mr Young submitted that the Commissioner was nonetheless obliged to determine whether Mr Robb held the necessary delegated authority to decide to dismiss the appellant, whether or not the point was raised by him, and that there was no evidence to support such a finding. There are four flaws in that submission which are as follows:

   1. (1)

      A premise upon which the submission is based is that the Commissioner was obliged to determine whether Mr Robb had the necessary delegated authority, even if that issue had not been raised by the appellant. However, the premise is misconceived for the following reasons:

   2. (2)

      Strictly speaking, Commissioner Newall did not make a finding that Mr Robb had delegated authority. His observations at [13] of the impugned decision are obiter because, by the proceeding paragraphs [7] - [12], he excluded the point from the proceedings. In paragraph [13] he said that the person who affected the appellant’s dismissal by creating a written instrument to that effect “prima facie” had the delegation to dismiss. That was not a finding that Mr Robb had the delegation but that that was prima facie the case having regard to the instrument of dismissal. As the Commissioner put it, the proposition was never contested;

   3. (3)

      The contention advanced by the appellant that there was no evidence to support a finding that Mr Robb held the necessary delegated authority to dismiss him suffers from two limitations discussed at (4) to (10) below;

   4. (4)

      The Notice of Punishment contained a representation that Mr Robb was the “delegate officer responsible for the decision”. The appellant did not prove (or seek to prove) that he did exercise such authority. There was countervailing evidence from Ms Eames that she was the decision maker and held the relevant delegation. The Commissioner may have weighed, if he was required to rule on the question, what appeared on the face of the instrument with the evidence of Ms Eames. He may then have reconciled those matters on the basis that there was a difference between making a decision and conveying notice of that decision. At the end of the day, and in circumstances where he had excluded the point, it was sufficient for him to conclude, as he did, that prima facie Mr Robb held the delegation to dismiss. In the absence of the appellant discharging his obligation under s 100G(3) to demonstrate the delegation and the exercise of it was not properly executed by Mr Robb (if a ground regarding the validity of the delegation was raised), the Commissioner was entitled to come to that view. This is not a case where there was no evidence of the existence of a delegation to Mr Robb;

   5. (5)

      In any event, and putting aside the operation of s 100G(3), the absence of an instrument of delegation to Mr Robb does not necessarily deprive the Commissioner of a proper foundation for his finding that Mr Robb prima facie held the requisite delegation. The rules of evidence did not apply in the proceedings. Newall C raised with the parties a question as to the operation of the presumption of regularity (as did I on the appeal). The presumption of regularity (or the maxim “omnia praesumuntur rite esse acta”) was applicable in this case (in fact, this may be what the Commission intended by the expression prima facie). Where a public official or authority purports to exercise a power or do an act in the course of his or its duties, “a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled: Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164. The maxim may be applied in a statutory context and will extend to acts done by a public official – that is, that official has been validity appointed.

   6. (6)

      Transport for NSW (‘TfNSW’) is a New South Wales Government agency constituted as a corporation under the Transport Administration Act 1988 (NSW) (‘TA Act’) (see s 3C). Section 3E of that Act specifies the functions of TfNSW and s 3G provides that TfNSW may, for the purpose of exercising those functions, give directions to, inter alia, the respondent.

   7. (7)

      Section 3C(3) provides that the affairs of TfNSW are to be managed and controlled by the Transport Secretary. Section 3I of the TA Act provides that TfNSW may delegate to an authorised person any functions other than the power of delegation. That delegate may sub-delegate. It is implicit in this provision that the Transport Secretary may delegate.

   8. (8)

      The Transport Service is established under Pt 7A of the TA Act. Transport services are defined in s 3 of the TA Act as including, inter alia, railway services. By s 68C(1) of the TA Act, the Government of NSW may employ persons in the Transport Service to enable the respondent to exercise its functions. Section 68C(2) provides that the Transport Secretary exercises, on behalf of the Government of NSW, the employer functions of the Government in relation to staff employed by the Transport Service. The Transport Secretary may also fix salaries and conditions of employment. Section 68HA(6) provides that the Transport Secretary may delegate any of the Transport Secretary’s functions under Pt 7A of the TA Act to “a person employed in the Transport Service or to a person employed in the Department of Transport”.

   9. (9)

      Clause 30(3)(a) of the Transport Administration (Staff) Regulation 2012 (NSW) (‘TA Regulation’) provides that the Transport Secretary may determine any disciplinary proceedings that have been instituted against a member of the Transport Service by taking disciplinary action with respect to the member.

   10. (10)

       It follows from the aforementioned provisions of the TA Act and cl 30 of the TA Regulation that the Transport Secretary may delegate his disciplinary powers to a person employed by the respondent, as a member of the Transport Service (that is, as an employee of the Transport Service). It is against that power that the presumption of regularity operates such that acts performed by a person who acts in the discharge of the functions provided under the TA Act and the TA Regulation are presumed to be discharged by a person validly appointed to that office who has all conditions necessary to exercise the power, in this case, the power to dismiss.

   11. (11)

       Even if the Commissioner was wrong in his (prima facie) observation that Mr Robb was the decision maker under delegation that is not the end of the matter. That is because, in the alternative, there was evidence of delegation. There was evidence that Ms Eames held the relevant delegation to dismiss, or indeed that she was responsible for the decision to dismiss, in the sense she at least recommended dismissal. There was, therefore, evidence to support a finding of a valid dismissal by the respondent, even if the written instrument signed by Mr Robb was ineffective or invalid (although Ms Eames’ evidence did not establish the instrument exercised by Mr Robb was invalid). If there was a mistaken reliance on a particular source of power or authority to dismiss by Mr Robb, that does not invalidate the dismissal if there was proper authority in another source, namely, Ms Eames.

   12. (12)

       In Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 at [34] the Court stated:

   13. (13)

       Further, there was no suggestion that there was, by Ms Eames, any failure to fulfil “an antecedent obligation”. On her evidence, she made (and believed she made) a decision she was authorised to make and notice of that decision was delivered by Mr Robb. To the extent the representation contained in the Notice of Punishment was contradictory, it would at most raise a factual matter to be weighed by the Commission; one affected by the operation of s 100G.

Ground 2 - Protection of Public

1. [135]

   Mr Young submitted that the Commissioner fell into error by characterising the jurisdiction at [102] of the impugned decision as “protective of the public service”. On the contrary, he submitted on the authority of Lambert that it is “protective of the relevant vulnerable members of the public for which the relevant public service was working”. The submission made no reference to the Commissioner’s characterisation of the jurisdiction at [21] of the impugned decision in which he said:

2. [136]

   In that passage, the Commissioner indicated the approach he would follow in disposition of the appeal. In the following paragraph he referred to authorities including Lambert and Schoeman indicating he was bound by and would follow Schoeman. As I have indicated there was no challenge to the correctness of Schoeman.

3. [137]

   There was no submission as to the impact of the characterisation (or mischaracterisation) on the decision of the Commissioner. It is difficult to discern what the impact might be other than reinforcing his conclusion otherwise formed. The passage referred to by Mr Young is preceded at [101] by the Commissioner’s emphatic finding that the appellant’s conduct, described in [100] of his decision, precluded restoration of the employment relationship. Thus, it was no more than a reinforcing consideration. It does not require a great deal of imagination to see the link between the need to protect the public from the risk of exposure to an organisation employing, in a position of trust, a person in whom the employer has lost trust and confidence for good reason having regard to the Facebook posts.

4. [138]

   In my view, the Commissioner’s approach was as set out in [21] of the impugned decision. There is no erroneous decision on a question of law disclosed.

5. [139]

   I note that, in the course of submissions about ground 13, Mr Young accepted that it was open to the Commissioner to take into account the Facebook posts as a matter relevant to the exercise of discretion. His decision to exercise his discretion in the way he did was, on that basis standing alone, enough to sustain a decision to refuse the application at first instance.

Ground 3 - Error in failing to reinstate

1. [140]

   In essence, the appellant contended that, in light of the positive findings by the Commissioner, he was obliged to reinstate. The submissions really came down to an argument about the weight of the findings in favour of the appellant versus those against him. That does not raise a decision on a question of law or, for that matter, an error of law. It was suggested that there was Wednesbury unreasonableness and that was then converted to an argument based on House v R (1936) 55 CLR 499; [1936] HCA 40.

2. [141]

   The reasons for the Commissioner’s exercise of discretion were clearly expressed. The ground simply invites a rehearing of that exercise of discretion. That is not available under s 197B. The ground must fail.

Grounds 4,5, 6 and 7-10 – Procedural Fairness (and the submission re ‘No Evidence’)

1. [142]

   Although Mr Young originally did not include ground 5 in his grouping of these grounds it became apparent in the discussion extracted above that it fell into the group. The consistent theme of these grounds is an alleged denial of natural justice or procedural fairness. In Elleray, after considering relevant authorities, the Industrial Court concluded (at [67]):

2. [143]

   As there was no challenge to the correctness of Elleray it follows that these grounds must fail.

3. [144]

   The authority is directly relevant in the present context. In Elleray (at [2]), an appeal lay against “any decision of a Board in the proceedings on a question of law”. This was essentially the same class of appeal as the present matter (see Elleray at [46] to [51]). Further, the authorities relied upon by the Industrial Court in Elleray which formed the foundation of its conclusions as to the limitations of appeals, vis-á-vis procedural fairness grounds, were delivered in the context of predecessor provisions to s 197B

4. [145]

   There is another reason for the failure of these grounds and that is that they are not made out on the material. The extracts from the respondent’s submissions above indicate that, from the outset of the proceedings, the respondent put in issue the truthfulness and credibility of the appellant’s and Mrs Marroun’s accounts. It cannot be said that the issues were never raised or that the appellant was not on notice. Indeed, Mr Young cross-examined Mr Welzel as to whether he had concerns about the “veracity” of the appellant in respect of his explanations. I have extracted parts of that cross-examination above.

5. [146]

   The appellant’s submissions also suggested, in respect of grounds 6 to 8 and 10 of the appeal, that the Commissioner did not disclose why he found the appellant had partially fabricated his evidence or was untruthful in certain respects. The argument advanced is, however, simply expressed, a disagreement with the Commissioner’s findings. Mr Young submitted that the reasons advanced by the Commissioner were insufficient on their merits to justify the conclusions reached. Contradiction of the Commissioner’s findings may involve the identification of an erroneous decision on a question of fact but it does not identify an erroneous decision by the Commissioner on a question of law.

6. [147]

   In so far as it is suggested that there was no evidence to support the conclusions, it is answered by the Commissioner’s analysis of the evidence, particularly that of the appellant and Mrs Marroun, and the assessment of it which he was obliged to undertake in light of the respondent’s submissions, particularly those highlighted in the extracts at [64] and [65] above. The Commissioner’s reasons for forming those adverse conclusions are set out in some detail at [84] – [89] above. In this appeal, no question as to whether the conclusions were correct arises. The question is whether there was evidence before the Commissioner which allowed him to form those conclusions. The answer is yes. The fact that most of the evidence came from the appellant and Mrs Marroun does not avert that result.

7. [148]

   I also note that the finding to which ground 10 refers was not a finding the Commissioner relied upon to determine the appeal. He said so expressly at [100] of his decision. Accordingly, even if that finding did involve a decision on a question of law, the decision and the finding did not materially affect the Commissioner’s decision and would not justify an order upholding the appeal and setting it aside.

Ground 11 – Briginshaw

1. [149]

   There has been debate in recent times as to whether Briginshaw has a continuing role as a ‘rule’ of evidence: See Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [174] discussed in Tanwar Enterprises Pty Ltd v Inspector Raymond Welsh (No 3) (2015) 90 NSWLR 199; [2015] NSWIC 8 at [93] – [105]. In courts and tribunals in which the rules of evidence apply, s 140 of the Evidence Act 1995 (NSW) governs the standard of proof in a civil proceeding. In that sense, at least, Briginshaw continues to provide guidance as to considerations which may be relevant in determining proof on the balance of probabilities.

2. [150]

   The appellant did not propound just how the absence of a specific reference by the Commissioner to Briginshaw constituted a decision on a question of law. Nor did the appellant develop a submission as to what bearing such an omission may have had on the determination of fact or facts in issue in the proceedings below.

3. [151]

   I have noted above the terms of s 163 of the Act. The Commissioner was not bound by the rules of evidence in the disposition of the case before him. A failure then to apply a “rule” of evidence cannot constitute an error of law in such a case. Even in circumstances where the rules of evidence do apply, the implicit question which leads to the decision on the question of law would be: what standard of proof applies? The correct answer would be the balance of probabilities. The Commissioner expressly referred to that standard at [93] of the impugned decision. He cannot, therefore, be said to have made an erroneous decision on a question of law.

4. [152]

   This is not to suggest that the Commissioner was under no obligation to have regard to the appropriate standard of persuasion in resolving, on the balance of probabilities, the individual “allegations of material fact before him”: Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [126] (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 at 449-450). However, the Commissioner’s detailed exposition of his reasoning in relation to the issues before him indicates he approached them conscious of the serious implications involved and recognised that it was necessary for there to exist an appropriate level of persuasion in reaching findings of fact in relation to matters which proved controversial in the appeal. There is no erroneous decision on a question of law disclosed.

Ground 12 - Misapplication of Gilmore

1. [153]

   In the course of considering how his discretion should be exercised, the Commissioner balanced his findings as to the appellant’s conduct (not amounting to misconduct) and the fabrication of part of his evidence. In doing so he adverted to a decision of Schmidt J in Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16. In that case, her Honour was exercising the then Industrial Court’s jurisdiction under s 106 of the Act in relation to an unfair contract. Schmidt J found the contract unfair but declined, in the exercise of her discretion, to make money orders in favour of the applicant because of Ms Gilmore’s admittedly untruthful evidence as to certain matters. The case is but an example of a well-established principle of balancing considerations relating to equitable relief. The passage in the Commissioner’s decision does not elevate the authority any higher than that. There is no erroneous decision on a question of law disclosed.

Grounds 13 and 14 – Failure to properly exercise discretion

1. [154]

   The appellant submitted that insufficient weight was attributed to some factors and one factor was not considered at all. The submission was based on a failure of the Commissioner to expose detailed consideration of these factors in his reasons. The reasons given indicate the Commissioner took a range of factors into account. It is clear from the reasons the Commissioner regarded some factors as having a greater role to play in the exercise of his discretion and he dealt with those in greater detail. There is nothing unusual or remarkable about that approach.

2. [155]

   Equally the failure to mention expressly one proposition, the unlikelihood of the situation giving rise to the dismissal ever occurring again, does not give rise to a conclusion that the Commissioner failed to take it into account. A failure to have regard to relevant considerations would constitute a decision on a question of law.

3. [156]

   I observe the Commissioner made no express factual finding as to the matter, but factors relevant to such a consideration - the appellant’s lengthy service, the infrequency of his having to deal with lost property disposal and the unusual circumstances applying at the time - were all referred to by the Commissioner in the course of his reasons and were relevant to his finding on the issue of misconduct. He balanced his finding as to misconduct, implicitly including these considerations, against other matters relevant to the exercise of discretion. In my view, the Commissioner may have been more forthright in his discussion of this issue but I do not think his failure to expressly deal with the question may result in a conclusion that the consideration was ignored.

4. [157]

   For the reasons given above, I conclude that no error has been demonstrated in any decision on a question of law by the Commissioner in the proceedings below. The appeal is dismissed.

5. [158]

   The respondent sought its costs of the appeal. The appellant made no submissions as to costs. I am inclined to award costs to the respondent on the basis of its success in the appeal and the general rule that costs follow the event. I will, however, allow a period of 14 days for any party wishing to make further submissions on costs to do so. Absent any such submission, the respondent shall be entitled to its costs as agreed, or in default of agreement, as assessed and this Court will accordingly make orders.

6. [159]

   The Court orders:

   1. (1)

      The appeal is dismissed

   2. (2)

      The appellant shall pay the respondent’s costs of and incidental to the proceedings, as agreed or assessed;

   3. (3)

      Leave is reserved to either party to apply for a different or special order for costs, notwithstanding the terms of Order 2 above. Such an application must be made on or before 27 January 2017 and accompanied by submissions in support of the application. The application and submission in support shall be no longer than 10 pages and be accompanied, over and above the 10 pages, by any document, not otherwise in evidence, on which the party relies. Any party affected by any such application shall have 14 days from the filing and service of such application (and accompanying submission in support) in which to respond by a submission of not more than 10 pages, which, again, over and above the 10 pages, may attach any further documents not otherwise in evidence upon which it relies.