Federal Court of Australia

Bobrenitsky v Sydney Trains [2023] FCAFC 96

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment for the applicant.

2.    A writ of certiorari issue, removing into this court and quashing the decision of the second respondent (and the orders pronounced in consequence of it) made on 16 March 2022 in matter C2021/4195.

3.    A writ of mandamus issue, compelling the second respondent to determine according to law the appeal that was the subject of that decision.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Early in the morning of Sunday, 16 August 2020, whilst driving in a car along the Great Western Highway in Warrimoo, New South Wales, the applicant, Mr Bobrenitsky, was arrested on suspicion of impaired driving. He was taken to Springwood Police Station, where he was subjected to a breath analysis test, the results of which revealed that he had a blood alcohol content of more than four times the limit prescribed in the state of New South Wales. His driver’s licence was immediately suspended and he was charged by New South Wales police with what is known as a “high-range PCA [prescribed concentration of alcohol]” offence. At the time, he was employed by the respondent (“Sydney Trains”) as a train driver.

2    The following morning (Monday, 17 August 2020), Mr Bobrenitsky attended for work and drove a train. Three days later, he submitted to Sydney Trains a written notification advising that he had been charged with a high-range PCA offence.

3    Following an investigation, Mr Bobrenitsky’s employment was terminated with effect from 18 February 2021. He later lodged an application with the Fair Work Commission (the “FWC”), by which he alleged that he had been unfairly dismissed, and that he ought to be reinstated. That application initially succeeded (Bobrenitsky v Sydney Trains [2021] FWC 3792 (Cross DP)—hereafter, the “Initial FWC Decision”) but was overturned on appeal (Sydney Trains v Bobrenitsky (2022) 314 IR 22 (Catanzariti VP, Asbury DP, Simpson and P Ryan CC)—hereafter, the “FWC Appeal Decision”).

4    By an originating application dated 28 April 2022, Mr Bobrenitsky moves the court for prerogative relief by which he hopes, amongst other things, to have the FWC Appeal Decision set aside and the appeal that was its subject remitted back to the FWC for determination according to law.

5    For the reasons that follow, that relief should (and will) be granted.

Background

6    The relevant factual background—including what is summarised above—emerges from the material that was placed before the court without objection. That material included the body of evidence and submissions that were put before the FWC, both at first instance and on appeal. None of what follows is controversial.

7    On Saturday, 15 August 2020, Mr Bobrenitsky met up with his cousin, with whom he then engaged in an evening of heavy drinking. The two were mourning the passing of Mr Bobrenitsky’s aunt.

8    The events of Sunday, 16 and Monday, 17 August 2020 have already been summarised. Although apparently obliged (or, at the least, expected) to do so immediately, it was not until Wednesday, 19 August 2020 that Mr Bobrenitsky advised Sydney Trains that he had been charged with a high-range PCA offence.

9    It was not the first time that Sydney Trains had had occasion to consider Mr Bobrenitsky’s consumption of alcohol. In early 2009, he was required to attend counselling after he was breath tested before the commencement of a shift and found to have alcohol in his system. A similar circumstance transpired in August 2011.

10    On Monday, 24 August 2020, Sydney Trains resolved to refer Mr Bobrenitsky’s notification to the Workplace Conduct and Investigations Unit at Transport for New South Wales (“TfNSW”—the agency responsible for public transport in that state). He was suspended from duty from that date.

11    On 15 September 2020, Mr Bobrenitsky received correspondence from TfNSW, which particularised an allegation of breach of the “Transport for NSW Code of Conduct” (hereafter, the “Code of Conduct”). That breach was said to have been constituted by his having been “…charged by the New South Wales Police Force (NSWPF) with a high range Prescribed Content of Alcohol (PCA) criminal offence”. Mr Bobrenitsky was invited to respond to that allegation. He was informed that an investigation would be conducted and, once completed, consideration would be given to an array of potential sanctions, one of which being the termination of his employment with Sydney Trains.

12    By correspondence dated 9 October 2020, Mr Bobrenitsky responded to the allegation that had been put to him. He acknowledged that the “facts of the allegation [were] true and correct”. He expressed remorse for his actions and requested that he be shown some leniency in the form of a sanction other than dismissal.

13    On 24 November 2020, Sydney Trains wrote to Mr Bobrenitsky and advised him that it was satisfied that he had engaged in conduct amounting to “…serious misconduct within the meaning of the Sydney Trains Enterprise Agreement 2018”. Specifically, that conduct was said to inure in his “…having been charged and subsequently convicted of a high-range PCA criminal offence”. Mr Bobrenitsky was advised that Sydney Trains’ “preliminary view” as to an appropriate sanction to be imposed in light of that finding was “Dismissal”. Mr Bobrenitsky was invited to submit any further contention as he wished as to why that sanction ought not to eventuate.

14    That invitation was accepted. Mr Bobrenitsky wrote to Sydney Trains on 18 December 2020 and, again, pleaded for “anything other than dismissal”.

15    That plea did not succeed. On 13 January 2021, Sydney Trains wrote to Mr Bobrenitsky and confirmed that it considered that his dismissal was “the appropriate disciplinary outcome…” Mr Bobrenitsky was informed that he could, if he wished, avail himself of a review procedure (the particulars of which need not here be rehearsed).

16    Mr Bobrenitsky took up that process. By notice dated 28 January 2021, he requested a review of the decision to terminate his employment on the basis that it was “…both exceedingly harsh and unnecessarily punitive”. On 18 February 2021, that review completed and Mr Bobrenitsky was advised that the original decision was affirmed. His employment with Sydney Trains terminated with effect from that date.

17    On 3 March 2021, the New South Wales branch of the Australian Rail, Tram and Bus Industry Union filed on Mr Bobrenitsky’s behalf an application with the FWC under s 394 of the Fair Work Act 2009 (Cth) (the “FW Act”). By that application (the “Unfair Dismissal Application”), it was alleged that Mr Bobrenitsky’s dismissal was harsh, unjust or unreasonable, in consequence of which he ought to be reinstated and paid his full entitlements “backdated to the date of dismissal”.

18    On 15 March 2021, Sydney Trains filed with the FWC a response to the Unfair Dismissal Application. By that response (the “Unfair Dismissal Response”), Sydney Trains denied that Mr Bobrenitsky’s dismissal was harsh, unjust or unreasonable. It contended that Mr Bobrenitsky’s “…criminal behaviour gave rise to a genuine and serious concern…that [he] was unable to safely perform his work” and that “the [criminal c]harge and subsequent conviction undermined the confidence of Sydney Trains in [his] decision making”.

19    The Unfair Dismissal Application proceeded to hearing before the FWC. Ahead of that hearing, the parties filed competing submissions as to why Mr Bobrenitsky’s dismissal was or was not “harsh, unjust or unreasonable”. For its part, Sydney Trains contended that the dismissal was premised upon a “valid reason”, namely that Mr Bobrenitsky’s “…criminal behaviour gave rise to a genuine and serious concern by Sydney Trains that he was unable to exercise appropriate judgment and decision-making” and that his “…decision to operate a vehicle the morning after an evening of heavy drinking demonstrated a distinct lack of judgment, at odds with the standard of behaviour expected of [him]”. It submitted that there “…would be significant damage to Sydney Trains’ reputation in the event that a driver was found to be driving a train or operating a vehicle while under the influence of alcohol, including in circumstances where the public expect[s] the highest safety standards of Sydney Trains”.

20    Mr Bobrenitsky submitted that his conduct was not sufficiently related to his work as a train driver to sound as a “valid reason” justifying his dismissal. Further and in any event, he contended that his dismissal was harsh, and that a sanction short of dismissal would have been more appropriate.

21    As has been stated, Mr Bobrenitsky’s contentions were accepted at first instance. The FWC (Cross DP) did not accept that Sydney Trains had a “valid reason” to effect the dismissal and held, in any event, that the dismissal was relevantly harsh. By orders dated 1 July 2021, Sydney Trains was required to reinstate Mr Bobrenitsky to his role as a train driver.

22    By a notice dated 21 July 2021, Sydney Trains sought to appeal the Initial FWC Decision to a full bench of the FWC. Amongst other things, that notice (the “Unfair Dismissal Appeal”) charged Cross DP with having erred by failing to find that the dismissal was premised upon a valid reason, being that on the morning of Monday, 17 August 2020, Mr Bobrenitsky had “…failed to take steps to ensure that he could operate [a] train safely...”

23    That appeal succeeded. It will be necessary to traverse in some detail the reasoning that underpins the FWC Appeal Decision but it is convenient first to identify the nature of the present application and the statutory framework upon which it turns.

The FW Act

24    Part 3-2 of the FW Act is headed, “unfair dismissal”. Its objects include the establishment of procedures for dealing with (and remedies for addressing) unfair terminations of employment. That object is achieved by operation of Divs 4 and 5 of Pt 3-2.

25    Section 394(1) of the FW Act provides (and, at the material time, provided) as follows:

394 Application for unfair dismissal remedy

(1)     A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

…

26    Division 4 of Pt 3-2 of the FW Act commences with s 390, which relevantly provides (and provided) as follows:

390 When the FWC may order remedy for unfair dismissal

(1)     Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a)     the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b)     the person has been unfairly dismissed (see Division 3).

(2)     The FWC may make the order only if the person has made an application under section 394.

…

27    Section 382 of the FW Act identifies (and identified) the circumstances in which a person is protected from unfair dismissal. It is not controversial that Mr Bobrenitsky was such a person. At issue presently before the FWC was whether he had been unfairly dismissed for the purposes of s 390(1)(b) of the FW Act.

28    Section 385 of the FW Act provides (and provided) that a person has been “unfairly dismissed” if the FWC is satisfied that (amongst other things not presently relevant):

(1)    the person was dismissed; and

(2)    the dismissal was harsh, unjust or unreasonable.

29    Section 387 of the FW Act nominates some criteria that must inform the reaching of that latter state of satisfaction. That section provides (and provided) as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)     whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)     whether the person was notified of that reason; and

(c)     whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)     any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)     if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)     the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)     the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)     any other matters that the FWC considers relevant.

…

30    Section 604 of the FW Act establishes the FWC’s appellate function. It relevantly provides (and provided) as follows:

604 Appeal of decisions

(1)     A person who is aggrieved by a decision:

(a)     made by the FWC (other than a decision of a Full Bench or an Expert Panel)...…

may appeal the decision, with the permission of the FWC.

(2)     Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note:    Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3)     A person may appeal the decision by applying to the FWC.

31    That appellate function is, in any given case (and subject to minor exceptions not presently relevant), to be exercised by a full bench of the FWC: FW Act, s 613(1). Section 400 of the FW Act serves to constrain rights of appeal from decisions made under Pt 3-2 of the FW Act. It provides (and provided):

400 Appeal rights

(1)     Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2)     Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

32    When entertaining an appeal, the FWC has a discretion to admit further evidence and take into account any other information: FW Act, s 607(2). It is otherwise empowered (relevantly) to confirm, quash or vary a decision under appeal, and to make a further decision in relation to the matter appealed: FW Act, s 607(3).

33    A decision of the FWC, whether at first instance or on appeal, is vulnerable to prerogative relief insofar as it is a product of jurisdictional error. This court enjoys a broad jurisdiction to entertain applications for such relief: FW Act, s 562; Judiciary Act 1903 (Cth), s 39B(1).

The present application

34    The originating application was listed for hearing before a full court. Mr Gibian, of senior counsel, appeared with Mr Boncardo for Mr Bobrenitsky; and Mr Seck appeared with Ms Bembrick for Sydney Trains. In addition to the helpful submissions made orally at the hearing, the court was assisted by written outlines filed prior to it.

35    Mr Bobrenitsky moves the court for writs of certiorari and mandamus to have the FWC Appeal Decision set aside in its entirety and to have the Unfair Dismissal Appeal remitted to a differently-constituted full bench of the FWC for rehearing according to law. His application is supported by an affidavit affirmed on 28 April 2022 by Mr Peter Matthews, a solicitor employed by the Australian Rail, Tram and Bus Industry Union.

36    In his affidavit (which was read without objection at the hearing of the application), Mr Matthews identified the grounds upon which Mr Bobrenitsky claims relief. Those grounds were the subject of some refinement prior to the hearing of the application. Mr Bobrenitsky presses for relief on the following bases, namely that “…the Full Bench of the Fair Work Commission committed jurisdictional error” as follows, namely by:

(1A)    misapprehending its function on appeal by determining that Deputy President Cross had committed appealable error by not finding that there was a valid reason for dismissal based on the applicant’s conduct on 17 August 2020 for the purposes of s 387(a) of the Fair Work Act 2009 (Cth) in circumstances where that question or issue was not squarely raised as a valid reason for dismissal before the Deputy President;

(1)    denying the applicant procedural fairness in holding that there was a valid reason for dismissal based on his conduct on 17 August 2020 for the purposes of s 387(a) of the FW Act by reason of him not taking any steps to determine whether there was residual alcohol in his system and simply relying on his own judgment in circumstances, which conduct it said was inconsistent with the inherent requirements of his job as a train driver, in circumstances where the first respondent had not advanced such a case at first instance.

…

(4)    denying the applicant procedural fairness after, having granted permission to appeal and found appealable error, failing to respond to clearly articulated arguments relevant to s 387(h) of the FW Act in relation to:

(i)    the proportionality of the sanction of dismissal;

(ii)    the circumstances which led to the applicant engaging in the drinking bout prior to being charged;

(iii)    the applicant’s rehabilitative efforts;

(iv)    the lack of clarity in respect to the first respondent’s policies;

(v)    the applicant was remorseful for his conduct; and

(vi)    the adverse impact of the dismissal on the applicant and his family.

(5)    failing to discharge its function in conducting a rehearing under s 607(3)(b) of the FW Act after by considering and weighing matters relevant under s 387(h) of the FW Act which were relevant to harshness in determining whether the applicant’s dismissal was harsh, unjust or unreasonable; [and]

(6)    failing to take into account the mandatory considerations under ss 387(b)-(c) of the FW Act in conducting a rehearing under s 607(3)(b) of the FW Act in circumstances where the Full Bench had found that a valid reason for dismissal which was not notified to the applicant before his dismissal and/or acting unreasonably in finding, in the absence of any probative evidence or other logical ground, that the applicant had been accorded ‘procedural fairness’ in circumstances where he had not been notified of the valid reason for dismissal found by the Full Bench or afforded an opportunity to respond to that reason.

We shall maintain in the analysis below the numbering that corresponds to each of those grounds.

The FWC Appeal Decision

37    It is convenient at this juncture to return to the reasoning that underpins the FWC Appeal Decision.

38    After reciting the issues to be determined on the appeal and the competing submissions as to the conclusions that should be reached on each, the full bench turned its attention to the question of permission to appeal. It accepted that permission should be granted and it was.

39    The full bench then identified a “central issue” that arose for consideration on the appeal: namely, whether Cross DP had erred by “…finding that the out of hours conduct of [Mr Bobrenitsky’s] was not a valid reason for dismissal”: FWC Appeal Decision, 56 [111]. The following observations were made on that score:

For reasons articulated below, we consider that the Deputy President’s conclusion that there was no valid reason for [Mr Bobrenitsky’s] dismissal was erroneous because it was based on a misapplication of the principles relating to valid reason and out of hours conduct. This constitutes an error of principle of the kind identified in House v The King. We also consider that the Deputy President’s finding in relation to valid reason was contrary to the overwhelming weight of the evidence and that the test in s 400(2) is satisfied. Further, we are of the view that these errors have infected the Deputy President’s conclusions in relation to remedy, which for reasons we also articulate below, were based on other significant errors of fact.

40    After a lengthy and comprehensive analysis of relevant authority, the full bench concluded (FWC Appeal Decision, 68 [151]):

…it is apparent that the Deputy President erred in finding that [Sydney Trains] did not have a valid reason to dismiss [Mr Bobrenitsky]. The error was two-fold. First, the Deputy President did not properly apply the test when considering whether there was a relevant connection between [Mr Bobrenitsky’s] criminal conduct out of work and his employment... This was an error of principle, of the kind identified in House v The King. Secondly, the Deputy President did not consider the entire factual matrix disclosed by the evidence, for the purposes of determining whether there was a valid reason for [Mr Bobrenitsky’s] dismissal. In this regard, the Deputy President’s analysis of the evidence involved significant errors of fact which satisfy the test in s 400(2) of the Act.

41    The full bench then proceeded to identify the considerations that ought to have inclined the deputy president to find that there was a valid reason for Mr Bobrenitsky’s dismissal. Reference was made to concessions that Mr Bobrenitsky offered during cross-examination, including that, when he drove his vehicle on 16 August 2020, he had “…exhibited a significant lack of judgment, was not thinking clearly and knew that his conduct was reckless”; that “…[t]rain [d]rivers are required to self-report if they feel they cannot drive safely”; and that “…[Sydney Trains] needed to have trust and confidence that [Mr Bobrenitsky] would comply with this requirement.”

42    The full bench then noted that, “[n]otwithstanding [Mr Bobrenitsky’s] concessions, it was not in dispute that [he] attended work to commence his rostered shift, at 5:15 am on 17 August 2020 – less than 24 hours after he had been charged with a high range drink driving offence”. It continued (FWC Appeal Decision, 68-69 [153]-[155]):

[Mr Bobrenitsky] did not take any steps to determine whether there was residual alcohol in his system and simply relied on his own judgement. [Mr Bobrenitsky] did this in circumstances where he knew that on two previous occasions his judgement in relation to having alcohol in his system had failed and the fact that he had attended for work with alcohol in his system, was only discovered because he had been randomly tested.

Under cross-examination, [Mr Bobrenitsky] conceded that he did not recall what time he had stopped drinking or whether he had slept, before reporting to work on 17 August and driving a train. [Mr Bobrenitsky] also conceded that he did not know how many drinks he had consumed before being pulled over by the [p]olice on the morning of 16 August, and that it must have been a large number for [him] to be four times over the legal limit.

In relation to the two previous incidents where [he] had alcohol in his system at work, [Mr Bobrenitsky] accepted in cross examination that both events had occurred early in the morning, he erroneously believed that he could drive a train and was not above the proscribed limit for alcohol despite drinking the previous day, and that his conduct in this regard raised a safety concern for him and [Sydney Trains]. In short, the evidence establishes that despite being twice sanctioned for his significant lack of judgement in reporting for work after he had been drinking the day before, [Mr Bobrenitsky] engaged in the same conduct on 17 August 2020.

43    Those observations led attention to turn to the absence of evidence before the deputy president as to whether or not Mr Bobrenitsky was affected by alcohol when he reported to work on Monday, 17 August 2020. The full bench observed (FWC Appeal Decision, 69-70 [157]-[159]) that:

…this was not the point in the circumstances of this case as disclosed by the evidence. Rather, [Mr Bobrenitsky] did not know whether he still had alcohol in his system and chose to attend work regardless and not to self-report immediately, despite knowing that he had been charged with a high range drink-driving offence less than 24 hours previously...

…[Mr Bobrenitsky] should have held real concerns about his fitness to work on 17 August and understood that it was the same conduct for which he had previously been sanctioned and was inconsistent with the inherent requirements of his job as a Train Driver, that he be fit to safely drive a train…

…[Mr Bobrenitsky] was employed in a special position with duties and obligations to the effect that he was able [to] exercise good judgment, including by ensuring that he did not have alcohol in his system and that he was able to assess his own ability to drive a train safely.

44    Ultimately, having satisfied itself that the deputy president’s decision was attended by error, the full bench resolved to uphold the appeal and quash the Initial FWC Decision. It expressed its view that “…there was no basis for granting [Mr Bobrenitsky] a remedy for unfair dismissal”, before proceeding to make the following observations (FWC Appeal Decision, 74 [180]):

Given our conclusions in relation to the grounds of appeal it is not necessary to remit the application for rehearing. We also do not consider that it is appropriate to receive further evidence in relation to harshness on the basis that even if the Deputy President’s conclusions in this regard were correct, this would not result in a finding that the dismissal was unfair as harshness would not outweigh other relevant considerations in relation to the validity of the reason for dismissal and the fact that [Mr Bobrenitsky] was afforded procedural fairness. We are also of the view that [Mr Bobrenitsky] should not be permitted to lead further evidence in relation to harshness in the appeal in circumstances where no evidence in relation to this matter was led in the proceedings at first instance and where [he] conducted [his] case in the appeal on the basis that there was no error in the decision at first instance.

45    The Initial FWC Decision was, thus, set aside and, upon redetermination, Mr Bobrenitsky’s Unfair Dismissal Application was dismissed.

46    With that summary complete, attention can now turn to the individual grounds upon which Mr Bobrenitsky’s present application is pursued. Before embarking down that path, though, a preliminary observation bears making. We accept that the full bench erred in the manner alleged by the final ground that Mr Bobrenitsky advances; and that this court should afford Mr Bobrenitsky the relief that he seeks on the strength of his success on it. So accepting, it is not strictly necessary that we should address Mr Bobrenitsky’s remaining grounds: Boensch v Pascoe (2019) 268 CLR 593, 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ). In deference to the efforts to which the parties went in addressing them, however, we shall do so, in the order in which they were advanced.

Ground 1A: misapprehension of appeal function

47    By ground 1A, Mr Bobrenitsky charges the full bench with having erred by finding that the deputy president was wrong to conclude that Sydney Trains lacked a valid reason for the dismissal. He contends that the valid reason that the full bench identified—constituted, at least in part, by his conduct on the morning of Monday, 17 August 2020 (see above, [42]-[43])—was not the valid reason upon which Sydney Trains had sought, at first instance, to defend the dismissal. To find error in the non-acceptance of a point that the deputy president was not asked to accept is, it is said, to misunderstand the nature of the appellate jurisdiction with which the full bench was endowed.

48    To make good on the proposition inherent in ground 1A, Mr Bobrenitsky must demonstrate that the full bench’s exercise of appellate power in this matter was the product of an error of law by reason of which it was moved:

…to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or…to make an erroneous finding or to reach a mistaken conclusion…

See: Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

49    In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, Jordan CJ summarised the position as follows (at 420, references omitted):

…[T]he mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction... But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test”…; or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes”…; or “to misunderstand the nature of the opinion which it is to form”…, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law…

50    More recently, in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537 (Allsop CJ, Siopis and Buchanan JJ; hereafter “Toms”), this court described (at 551 [59]) as follows the task with which the court is now confronted:

…The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all.

(See also and to similar effect: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385, 403 [90] (Flick, White and Perry JJ))

51    An appeal to a full bench of the FWC under s 604 of the FW Act is an appeal by way of rehearing: ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association (2017) 262 CLR 593, 621 [100] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, with whom Gageler J agreed; hereafter “ALDI”). A full bench may only interfere with a decision if it is satisfied that there was error on the part of the primary decision maker: Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ; with whom Kirby J agreed at 187 [44]); DOQ17 v Australian Financial Security Authority [2020] FCAFC 219, [1] (Reeves, Anastassiou and Abraham JJ); Amcor Ltd v Barnes [2021] VSCA 6, [198] (Ferguson CJ, Beach and Whelan JJA).

52    Here, there can be little doubt about the basis upon which Sydney Trains sought, initially, to defend Mr Bobrenitsky’s dismissal. It maintained that its decision to terminate his employment proceeded upon a valid reason, which was said to arise as a product of his conduct on 16 August 2020 (specifically, his having driven a motor vehicle whilst affected by alcohol and his having been charged with a high-range PCA offence). Although committed outside of work hours, that conduct was said to be sufficiently connected to Mr Bobrenitsky’s employment as to warrant his dismissal.

53    Equally, there can be little doubt that, on appeal, Sydney Trains sought to defend Mr Bobrenitsky’s dismissal on more expansive bases. It put squarely in issue Mr Bobrenitsky’s conduct of Monday, 17 August 2020; more particularly, his failure “…to take steps to ensure that he could operate [a] train safely that morning”. That contention found favour with the full bench, which accepted that Mr Bobrenitsky had chosen on 17 August 2020 “…not to self-report immediately, despite knowing that he had been charged…”. The full bench accepted that Mr Bobrenitsky ought to have “…held real concerns about his fitness to work on 17 August” and that his failure to form and act upon them was not consistent with his “duties and obligations to the effect that he was able [to] exercise good judgment”.

54    Mr Bobrenitsky’s complaint is that the full bench:

…erroneously permitted [Sydney Trains] to construct a new and different case as a springboard for finding an error that enlivened its powers on appeal. In doing so it committed an error of law which affected its conclusion that…the appeal should be upheld. That error was jurisdictional as it involved a misconception of its task on appellate function.

55    It bears repeating that Sydney Trains’ appeal to the full bench proceeded as an appeal by way of rehearing. The function of the full bench on appeal was not simply to determine whether the decision under appeal was or was not right on the evidence and law as it stood when it was made. On the contrary, in an appeal by way of rehearing, the appellate function involves “…making such order as ought to be made according to the state of things at the time [that the appeal is determined]”: Mickelberg v The Queen (1989) 167 CLR 259, 278 (Deane J).

56    Moreover, in determining whether a dismissal was harsh, unjust or unreasonable (and, therefore, unfair), the FWC is not—neither at first instance nor on appeal—constrained by the matters that are advanced on that score by an employer: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427, 456 (von Doussa J); referred to with approval in Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467 (McHugh and Gummow JJ). Rather, the task of the FWC is to determine “…whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable”: Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28 (Sheppard and Heerey JJ). The FWC’s state of satisfaction as to the existence of a valid reason for dismissal is not confined by the reason or reasons that are or were advanced or relied upon by an employer.

57    That the full bench here permitted Sydney Trains to “construct [or, perhaps, advance] a new and different case” on appeal, then, is of no moment. Doing so did not involve any error of law, much less an error of jurisdiction.

58    Had the full bench in the present matter proceeded to set aside the Initial FWC Decision without first perceiving error on the part of Cross DP, it would have exceeded the jurisdiction conferred upon it by s 607(3): Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 208 [29] (Gleeson CJ, Gaudron, and Hayne JJ; hereafter (“Coal and Allied”). But, as the extracts replicated above (in particular, at [40]) make clear, it did not so proceed. On the contrary, the full bench proceeded upon the basis that the deputy president ought to have accepted that Mr Bobrenitsky’s dismissal was founded upon a valid reason. Whether the full bench was right or wrong to attribute error to the deputy president in that way is not for this court to say. If that process of attribution itself involved error, it was an error that the full bench had jurisdiction to make: Coal and Allied, 209 [32] (Gleeson CJ, Gaudron, and Hayne JJ); Toms, 558 [96] (Buchanan J; with whom Allsop CJ and Siopis J agreed).

59    The facts that confronted the High Court in Coal and Allied neatly illustrate the point. There, a full bench of what was then the Australian Industrial Relations Commission had overturned on appeal a discretionary, first-instance decision made under the former Workplace Relations Act 1996 (Cth). The decision of the full bench was set aside upon judicial review: the full court of this court held that the full bench had exceeded its jurisdiction by determining that the first-instance decision was attended by appealable error when, in truth, it was not. The High Court upheld an appeal from that judgment. It expressed some doubt about this court’s conclusion that the full bench had wrongly attributed error to the first-instance decision maker; but concluded, in any event, that even had there been such an error, it was not an error of jurisdiction.

60    Here, the same course must follow. There can be no doubt that the full bench turned its attention to the issues that presented on the appeal before it. In particular, it quite plainly considered whether the deputy president had erred by concluding that Mr Bobrenitsky’s dismissal was harsh, unjust or unreasonable (including because it was not founded upon a “valid reason”). On the strength of the submissions and all of the material before it, it considered that he had. Doing so involved no misapprehension of its appellate function, nor any other error going to its exercise of jurisdiction.

61    It follows that ground 1A is not made good.

Ground 1: denial of procedural fairness

62    Mr Bobrenitsky next complains that, by accepting that his dismissal was founded upon a valid reason (arising, at least in part, from his conduct on 17 August 2020), the full bench denied him an opportunity to refute as much and, thereby, committed jurisdictional error.

63    In Jones v National Coal Board [1957] 2 QB 55, the English Court of Appeal (Denning, Romer and Parker LJJ) noted (at 67):

There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

That passage was cited with approval in Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).

64    It is elemental to the notion of a fair hearing that “…a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 [40] (Gaudron and Gummow JJ); DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64, 77 [70] (Rangiah J, with whom Reeves and Bromwich JJ agreed).

65    It is not controversial that, in exercising its appellate powers under s 607(3), the full bench was obliged to afford those courtesies to Mr Bobrenitsky. As much arises by implication as a condition to which the valid exercise of that statutory power was subject: Kioa v West (1985) 159 CLR 550, 584-585 (Mason J); Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ). Mr Bobrenitsky was entitled to know the case that was advanced against him on appeal and to have such opportunity as he reasonably needed to answer it.

66    As with ground 1A, Mr Bobrenitsky’s complaint is founded upon the degree of refinement that appears to have attended the case that Sydney Trains advanced on appeal to the full bench. As has been rehearsed, its case before the deputy president was that Mr Bobrenitsky’s conduct of 16 August 2020 gave rise to a valid reason for his dismissal. On appeal, the valid reason was said to extend also to his conduct of 17 August 2020 (see above, [42]-[43]). The full bench accepted on appeal that Sydney Trains had a valid reason for dismissing him, and that it arose at least in part from his conduct on Monday, 17 August 2020.

67    Accepting that Sydney Trains’ case on appeal took on something of a different complexion, that is not a consideration that suffices to establish any relevant want of procedural fairness. In truth, Mr Bobrenitsky’s complaint is that the full bench ought not to have permitted Sydney Trains to advance on appeal a submission that extended beyond what was advanced at first instance. That submission might or might not have much to commend it; but it does not establish the proposition that is now put.

68    On appeal before the full bench, Mr Bobrenitsky’s conduct of 17 August 2020 was squarely said to establish that Sydney Trains had a valid reason for effecting his dismissal. Mr Bobrenitsky sought to resist that submission on the basis that, having not been pursued at first instance, the full bench ought not to entertain it on appeal. He was entitled to resist (or attempt to resist) the appeal on that basis. Alternatively—or perhaps in addition—he could have sought to resist it in other ways, including by seeking to rely upon additional evidence or submissions.

69    Mr Bobrenitsky takes issue with that last proposition. Before this court, he submitted that it was not open to him to attempt to lead fresh evidence before the full bench in answer to the broader species of valid reason that Sydney Trains advanced on appeal. The power to receive such evidence, he says, arose only once the full bench detected error in the Initial FWC Decision.

70    With respect, that is not so. The FWC’s power to admit additional evidence is available as much to establish or negate error as to address it: ALDI, 621 [100] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). The necessity for error conditions only the full bench’s power to “intervene” upon (which is to say, to quash or vary) a first-instance decision: Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178, 189 [40] (Dowsett, Flick and Griffiths JJ; hereafter “Linfox”). Were it otherwise, the power to receive fresh evidence would be exercisable only in relation to the redetermination of matters successfully appealed; and the process of appeal for which the FW Act provides would be one of an appeal in the strict sense, rather than an appeal by way of rehearing. To the extent that support is to be found for Mr Bobrenitsky’s contention in the reasoning of Logan J in Knowles v BlueScope Steel Ltd (2021) 284 FCR 118, 120 [4], we would respectfully decline to follow it.

71    It cannot be said that the full bench proceeded to decide the issue of valid reason in a way of which Mr Bobrenitsky was denied proper notice. On the contrary, the case that Sydney Trains advanced on appeal was apparent; and, having been made apparent, it was open to Mr Bobrenitsky to make such efforts as he wished to address it. If the full bench had declined to permit him to make efforts in that regard, then his submission would be well-founded. That, though, is not what occurred.

72    There was no denial of procedural fairness as alleged. Ground 1 of the application is not made good.

Grounds 4 and 5: constructive failure to exercise jurisdiction

73    As they were in submissions, it is convenient to address grounds 4 and 5 of Mr Bobrenitsky’s application together. Each pertains to submissions that Mr Bobrenitsky made to the deputy president in support of his contention that his dismissal had been “harsh”. By grounds 4 and 5 of his application to this court, Mr Bobrenitsky contends that, en route to dismissing his Unfair Dismissal Application, the full bench wrongly failed to take account of those submissions; and, thereby, denied him procedural fairness (ground 4) or constructively failed to discharge its function in a way that the FW Act authorised (ground 5).

74    Before the full bench, Mr Bobrenitsky made submissions about what ought to occur in the event that the deputy president’s decision was set aside. He contended that his Unfair Dismissal Application should be remitted for rehearing. The following exchange took place during the hearing of the Unfair Dismissal Appeal:

[MR BONCARDO:] Now, in the unfortunate event that the Full Bench is against me on the question of permission and the issue of whether or not the decision is infected by error, in my submission, what ought to occur, in the event that the decision is quashed, is that the matter – it will need to be reheard. I say this for a number of reasons.

Firstly, my client ran a harshness case below, which his Honour did not deal with to any great extent. There’s no analysis in the decision about whether or not the sanction of termination was proportionate to the conduct. There’s no analysis in the decision, at least in the context of assessing whether or not the dismissal was unfair, of the impact of my client’s rehabilitating efforts on whether or not the sanction of dismissal was an appropriate one. In those circumstances the matter ought be reheard, in the event that the Full Bench concludes that there was a valid reason for dismissal and the matter should proceed, by way of a rehearing.

VICE PRESIDENT CATANZARITI: Mr Boncardo, are you saying that if we form that view the whole matter would have to be reheard or is it just the remedy that you form that view?

MR BONCARDO: The number of matters put by my instructor below, under 387(h) which aren’t dealt with at paragraph 75 through to 77 of the decision and if I can, Vice President, give you the relevant references to my instructor’s written submission. They commence at page 146 of the appeal book and the submissions on 387(h) commence at appeal book 160 and, relevantly, the Full Bench will see that there’s a submission made about my client’s remorse, his level of insight and, at paragraph 92, my client’s rehabilitative efforts. At paragraphs 94 through to 95 are matters that do feature, or paragraph 95, I should say, does feature in the judgment. But the matters set out in paragraphs 90 through to 93 just have not been analysed by the Deputy President, because of his conclusion on valid reason.

VICE PRESIDENT CATANZARITI: Yes, thank you.

MR BONCARDO: Would your Honour’s pardon me, while I see whether or not there is anything my instructor wishes me to raise.

DEPUTY PRESIDENT ASBURY: Sorry, Mr Boncardo, I didn’t understand that answer to the Vice President’s question. Are you saying that the matter would have to be reheard, in respect of remedy or also in respect of merits as well, because of the valid reason issue?

MR BONCARDO: I’m sorry. It would have to be reheard, in respect to merits, because the issue of proportionality, the issue of my client’s remorse, the question [of] his rehabilitation are all matter that go directly to the harshness of the dismissal, from my client’s perspective, and they just weren’t analysed by the Deputy President in his assessment under 387(h) matters. I hope that’s clear now, Deputy President.

75    The full bench’s process of reasoning has already been identified. Having determined that the deputy president had erred by concluding that Mr Bobrenitsky was not dismissed for a “valid reason”, the full bench proceeded to conclude that “…there was no basis for granting [Mr Bobrenitsky] a remedy for unfair dismissal”: FWC Appeal Decision, 74 [178]. It then set about re-determining Mr Bobrenitsky’s Unfair Dismissal Application.

76    Its reasoning on that score was limited (see above, [44]). It addressed (and rejected) the suggestion advanced on Mr Bobrenitsky’s behalf that the Unfair Dismissal Application should be remitted for rehearing and recorded its satisfaction that “harshness would not outweigh other relevant considerations in relation to the validity of the reason for dismissal and the fact that [Mr Bobrenitsky] was afforded procedural fairness.”

77    Mr Bobrenitsky maintains that the matters going to the harshness of his dismissal that were raised with the full bench in the exchange recorded above (at [74])—and with the deputy president at first instance—were matters of which the full bench was obliged to take account when determining whether his dismissal was harsh, unjust or unreasonable. Having been raised, Mr Bobrenitsky contends that the full bench’s failure to address them in its reasons for decision bespeaks jurisdictional error in either or both of the ways to which grounds 4 and 5 of his application refer.

78    We do not accept that either of the criticisms inherent in grounds 4 and 5 can fairly be levelled at the full bench. That is so for two reasons.

79    First, the submissions that were advanced during the exchange replicated above were advanced in support of the contention that, were the Unfair Dismissal Appeal to be upheld, the full bench ought to remit the Unfair Dismissal Application for rehearing. The submissions were concerned to identify matters with which the deputy president was said not to have dealt. The full bench was not asked to find, in light of them, that Mr Bobrenitsky’s dismissal was harsh; nor was it invited to take account of them for the purposes of assessing whether he was unfairly dismissed.

80    Second (and in the event that the above analysis is unduly narrow), it cannot safely be inferred that the full bench failed, in point of fact, to take account of what Mr Bobrenitsky advanced. The full bench’s failure expressly to address in its reasons for decision the matters to which Mr Bobrenitsky now points could—and in many cases would—support the drawing of an inference that those claims went relevantly unconsidered. But, here, there is reason to think otherwise. The full bench was moved to address the question to which the relevant submissions pertained (namely, whether the dismissal was harsh) in precisely the context within which Mr Bobrenitsky had raised them: that is, as relevant to whether or not the Unfair Dismissal Application should be the subject of further consideration. It is apparent that the full bench took the view that it was unnecessary that anything further be said on the question of harshness because it would not lead to a different result.

81    It is, it must be conceded, possible that the full bench arrived at that view without first considering what Mr Bobrenitsky now says went unconsidered. But the alternative—namely, that it arrived at that view conscious of what was put—is at least equally probable. Indeed, there is good reason to think that that is what here occurred. The full bench’s written reasons for decision are replete with statements pertaining to the submissions that Mr Bobrenitsky made before the deputy president as to why his dismissal had been harsh. Of relevance presently, those statements recorded Mr Bobrenitsky’s expression of remorse, the significance of his personal circumstances, the content and significance of the Code of Conduct, the proportionality of dismissal to the conduct for which it was effected, and Mr Bobrenitsky’s efforts to address “…his history of heavy drinking and alcohol dependence”.

82    The full bench was not obliged to refer in its reasons to every submission and every piece of evidence that Mr Bobrenistky advanced: Linfox, 191 [47] (Dowsett, Flick and Griffiths JJ). Its obligation was to consider what was put—to identify, understand and evaluate Mr Bobrenitsky’s contentions, and to bring them to bear upon its consideration of the question that it was to decide (namely, whether his dismissal was harsh, unjust or unreasonable): Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304, 307 [9], 312 [24] and 316 [36] (Kiefel CJ, Keane, Gordon and Steward JJ). The onus of establishing here that that did not occur is Mr Bobrenitsky’s to discharge: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ; hereafter “Carrascalao”); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 448 [53] (Kenny, Griffiths and Mortimer JJ). The court should not too readily draw the inference, particularly when the reasons of the full bench are as comprehensive as they are and the issues that are said to have been overlooked were at the very least mentioned: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ; hereafter “Applicant WAEE”).

83    Accepting that there is room for doubt, we are not persuaded that the court should here infer the want of consideration upon which grounds 4 and 5 of Mr Bobrenitsky’s application is founded. Those grounds are not made good.

Ground 6: failure to take account of mandatory consideration

84    By his final ground of review, ground 6, Mr Bobrenitsky charges the FWC full bench with having erred either by failing to take account of matters of which it was required to take account, or by acting in a manner amounting to legal unreasonableness.

85    It is to be recalled that, in considering whether a particular dismissal was harsh, unjust or unreasonable for the purposes of s 385(b) of the FW Act, the FWC is obliged to have regard to:

(1)    whether the person whose employment was terminated was notified of the reason for which he or she was dismissed—FW Act, s 387(b); and

(2)    whether the person was given an opportunity to respond to that reason—FW Act, s 387(c).

86    At first instance, Sydney Trains maintained that Mr Bobrenitsky’s conduct of 16 August 2020—that is to say, his decision to drive his car whilst affected by alcohol and his having been charged with a high-range PCA offence—sufficed to establish a valid reason for his dismissal. It was not controversial—and the summary of relevant background facts that appears above bears out—that he was notified of that reason for his dismissal and was given ample opportunity to respond to it. The deputy president accepted as much at first instance and the full bench noted that those findings were “…not disputed in the appeal”: FWC Appeal Decision, 31 [25].

87    As has already been rehearsed, Sydney Trains submitted on appeal to the full bench that the valid reason for effecting Mr Bobrenitsky’s dismissal lay in part in his conduct of 17 August 2020. As has already been recorded, that submission was accepted and the full bench held that the deputy president had erred in concluding that the dismissal was, for want of a valid reason, harsh, unjust or unreasonable; in part because Mr Bobrenitsky’s conduct of 17 August 2020 gave rise to such a reason.

88    Having so accepted, the full bench resolved to set aside the deputy president’s decision and to re-determine Mr Bobrenitsky’s Unfair Dismissal Application afresh. That part of the full bench’s reasons for decision is brief (see above, [44]). There is no explicit reference to the matters to which s 387(b) and (c) of the FW Act required that the FWC give consideration when determining whether Mr Bobrenitsky’s dismissal was harsh, unjust or unreasonable. Instead, there is no more than an abstract reference to his having been “afforded procedural fairness”. It is apparent that the full bench either did not consider what s 387(b) and (c) of the FW Act required it to consider; or did so in a way that was legally unreasonable. Either suffices to qualify the full bench’s redetermination of the Unfair Dismissal Application as a product of jurisdictional error.

89    In forming the state of satisfaction that it formed under s 385(b) of the FW Act (namely, that Mr Bobrenitsky’s dismissal was not harsh, unjust or unreasonable), the full bench was obliged to take account of the matters enumerated in s 387. Whether it did so is a question of fact, which this court must determine as a matter of inference, principally (if not entirely) from the reasons that were published in support of the FWC Appeal Decision. An inference that a decision maker has failed to take account of a mandatory consideration may arise from the absence of any reference to it in written reasons for a decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [69] (McHugh, Gummow and Hayne JJ; with whom Gleeson CJ agreed). As has been noted previously, it is one that ought not too readily be drawn and the onus is borne by the party who invites the court to draw it: Applicant WAEE, 604 [47] (French, Sackville and Hely JJ); Carrascalao, 364 [48] (Griffiths, White and Bromwich JJ).

90    Insofar as concerns the full bench’s decision to re-determine Mr Bobrenitsky’s Unfair Dismissal Application, those reasons say nothing about the requirements of s 387(b) and (c) of the FW Act. They record only that Mr Bobrenitsky was “…afforded procedural fairness”. That observation appears to do no more than summarily reflect the full bench’s earlier observation that procedural fairness was held at first instance to have been afforded and was “…not disputed in the appeal”. As much is clear from the observations made later in the full bench’s concluding paragraph, where it was noted that Mr Bobrenitsky “…conducted [his] case in the appeal on the basis that there was no error in the decision at first instance.”

91    Read realistically, the full bench’s reference to Mr Bobrenitsky’s having been “afforded procedural fairness” must be understood only in that limited way. In other words, it cannot realistically be understood to reflect some consideration as to whether he was informed of, and given an opportunity to respond to, the valid reason for which it was accepted that his dismissal was warranted (constituted in part, as it was held to be, by his conduct of 17 August 2020). That being so, the absence of any reference in the reasoning of the full bench to Mr Bobrenitsky’s having been informed of, and given an opportunity to respond to, that more expansive valid reason is instructive. It is apparent that the full bench gave no consideration to those matters.

92    But even if that conclusion be wrong, there is an additional problem. Ordinarily, the exercise of statutory power is conditioned by a requirement that it be reasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). That requirement may be contravened in circumstances where a decision is made on the basis of findings for which there is no evidence: Australian Postal Corporation v D’Rozario (2014) 222 FCR 303, 309 [16] (Besanko J); 324 [66] (Jessup J); 334 [118] (Bromberg J).

93    If the full bench’s observation that Mr Bobrenitsky “was afforded procedural fairness” should be understood as a conclusion that he had been notified of, and been afforded an opportunity to respond to, the valid reason for which it was accepted that his dismissal was warranted, then it is, to say the least, difficult to see what evidential basis underpinned it. There was no evidence before the FWC to show that Mr Bobrenitsky was told that he faced dismissal for any reason other than that his conduct on 16 August 2020 warranted it. His conduct of 17 August 2020 was not mentioned in the “Notification of Misconduct…” allegation that he received from TfNSW on 15 September 2020 (above, [11]), nor in the letter that he received from Sydney Trains on 24 November 2020 (above, [13]) in which that allegation was found to have been substantiated. For reasons that can simply be understood, Mr Bobrenitsky made no attempt to contextualise what he did (or didn’t do) on 17 August 2020 in his letter of 9 October 2020 (above, [12]), nor later when told that the allegation advanced against him was made out (above, [14]).

94    Likewise, no analysis of Mr Bobrenitsky’s conduct of 17 August 2020 featured in Sydney Trains’ letter of 13 January 2021 (above, [15]), Mr Bobrenitsky’s request of 28 January 2021 for a review of its conclusion, or TfNSW’s notice of 18 February 2021 advising of the outcome of that review (above, [16]).

95    So read, it is impossible to see—and much less was Sydney Trains able to explain—what evidential foundation the full bench had for concluding that procedural fairness had been afforded in connection with what it accepted to be the valid reason for Mr Bobrenitsky’s dismissal (assuming that that was its conclusion). We do not accept—and, in any event, did not understand Sydney Trains to submit—that such a foundation lay in the fact that procedural fairness was held at first instance to have been afforded and was “…not disputed in the appeal”. As has been noted, that finding was necessarily specific to the reason for dismissal that Sydney Trains advanced before the deputy president: in other words, it went no further than establishing, as was plain in any event, that Sydney Trains had notified Mr Bobrenitsky of, and invited him to respond to, the reason for which it told the deputy president that he had been dismissed (being his conduct of Sunday, 16 August 2020).

96    It was, perhaps, an unfortunate by-product of the way that the Unfair Dismissal Appeal was conducted that the parties addressed only the errors that were said to have attended the Initial FWC Decision (as opposed to what course the FWC should take in the event that the appeal was upheld). The parties advanced competing submissions as to whether or not Sydney Trains had a valid reason for Mr Bobrenitsky’s dismissal; but the question as to whether, if it did, Mr Bobrenitsky received notice of and had an opportunity to respond to it prior to his dismissal appears to have gone largely (if not entirely) unaddressed.

97    That though, does not excuse the full bench’s failure to address what it was obliged to address (nor its progression to re-determine the Unfair Dismissal Application on the basis of findings for which there was no evidence, if that is what it did). In order to be properly satisfied that Mr Bobrenitsky’s dismissal was not harsh, unjust or unreasonable—and, therefore, that he had not been unfairly dismissed—the full bench was obliged to consider the subject matters referred to in s 387(b) and (c); and its consideration of them had to be grounded in evidence.

98    It is apparent that that did not transpire and, that being so, the full bench’s exercise of its discretion to re-determine Mr Bobrenitsky’s Unfair Dismissal Application afresh miscarried. The FW Act did not authorise the full bench to re-determine that application in the way that it did.

99    That conclusion leads inexorably to considerations of materiality. The full bench’s wrongful assumption of jurisdiction will only be amenable to prerogative relief insofar as it might be thought that, absent that error, a different result might have ensued: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ). We are satisfied that it might have. Materiality is not a high hurdle to clear: Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 748 [33] (Kiefel CJ, Keane and Gleeson JJ; with whom Gageler J agreed at 750 [47]). Notwithstanding the existence here of the valid reason upon which the full bench accepted that Mr Bobrenitsky’s dismissal was warranted, it is at least conceivable that the FWC might have considered that the dismissal was harsh, unjust or unreasonable for want of procedural fairness.

100    It follows that we would accept that the FWC Appeal Decision was the product of jurisdictional error as alleged by ground 6.

Where to from here?

101    Although it was not said so in terms, it is apparent that the full bench concluded, for the purposes of s 390(1) of the FW Act (and contrary to the finding at first instance), that Mr Bobrenitsky had not been unfairly dismissed. That finding was arrived at because the full bench was not satisfied that the dismissal was harsh, unjust or unreasonable. That state of satisfaction was formed otherwise than in a way that the FW Act authorised, in that the full bench did not consider the matters referred to in s 387(b) and (c) of the FW Act (or, if it did, considered them in a manner that was legally unreasonable).

102    With those conclusions stated, it is necessary to consider what, if any, parts of the FWC Appeal Decision, or the orders that were made in consequence of it, might be spared from prerogative relief. It is to be borne in mind that we would uphold Mr Bobrenitsky’s application upon only a limited basis. For the reasons outlined, we do not accept that the full bench fell into jurisdictional error insofar as it saw fit to cavil with the deputy president’s conclusion that Sydney Trains lacked a valid reason for dismissing Mr Bobrenitsky. Likewise, we do not accept that Mr Bobrenitsky was denied procedural fairness in any of the ways that he alleged before this court.

103    Nonetheless, we do not consider that any of the orders made in consequence of the FWC Appeal Decision is able to be salvaged. All of them derived from the full bench’s state of non-satisfaction that Mr Bobrenitsky’s dismissal was harsh, unjust or unreasonable (and the resultant, albeit unstated conclusion that he had not been unfairly dismissed). It necessarily follows that all were products of jurisdictional error and must be set aside accordingly. The Unfair Dismissal Appeal—and, if necessary (which is to say, if the appeal is upheld), the Unfair Dismissal Application—must be determined afresh.

104    There was some dispute about to whom that obligation might be remitted. In addition to granting prerogative relief, Mr Bobrenitsky submitted that the court ought, by order, to require that the FWC be constituted for the purposes of the remitter otherwise than as it was. Sydney Trains submitted that no such order should be made and that the question of the composition of the full bench should be left to the FWC to determine according to its usual processes.

105    There can be no doubt that the court enjoys a discretion to require that what is remitted must be determined by a differently-constituted full bench of the FWC: Comcare v Broadhurst (2011) 192 FCR 497, 515-516 [90] (Tracey and Flick JJ; hereafter “Broadhurst”). Generally, it will exercise that discretion where there is a reasonable apprehension of bias on the part of the initial decision maker(s) or where it would otherwise be undesirable for the same decision makers to determine what is remitted: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 555-556 [123] (Kirby J).

106    Mr Bobrenitsky submits that it would be undesirable for the court not to prevent the re-hearing of the Unfair Dismissal Appeal by the same full bench that initially upheld it. There is no suggestion—much less any basis for suggesting—that the full bench might be (or be perceived to be) animated by any bias against him; rather, it is said that it would be undesirable to permit it to hear the matter afresh. That is so, Mr Bobrenitsky submits, because of the full bench’s refusal to entertain his request for permission to lead additional evidence going to the “harshness” of his dismissal.

107    That refusal was a subject addressed by the final substantive paragraph of the FWC Appeal Decision (above, [44]). It is to be recalled that the full bench declined Mr Bobrenitsky’s request on two bases: first, on the footing that “…harshness would not outweigh other relevant considerations in relation to the validity of the reason for dismissal and the fact that [Mr Bobrenitsky] was afforded procedural fairness”; and, second, because “…no evidence in relation to [harshness] was led in the proceedings at first instance and [Mr Bobrenitsky] conducted [his] case in the appeal on the basis that there was no error in the decision at first instance”.

108    It is the first of those observations that gives Mr Bobrenitsky pause for concern that a rehearing of the Unfair Dismissal Appeal before the same full bench might be undesirable. Respectfully, we do not share that concern. The full bench’s observation was premised upon its failure to consider (or, possibly, its legally unreasonable conclusion) that Mr Bobrenitsky was informed of, and given an opportunity to respond to, the valid reason that was said to have warranted his dismissal. The incorrectness of that approach now stands exposed. Although it might ultimately (and could permissibly) do so, there is no reason to presume that the full bench would necessarily adhere to the same observation in light of that exposure.

109    Mr Bobrenitsky could have, for example, no concern that the rehearing of the Unfair Dismissal Appeal by the same full bench would be “something of a charade” in which “it is already known with a reasonable degree of certainty what the Full Bench’s decision is likely to be”: Glen Cameron Nominees Pty Ltd v Transport Workers’ Union of Australia (No 2) (2017) 159 ALD 76, 85 [41] (Perram J). This is not, for example, a case in which a rehearing of the Unfair Dismissal Appeal would necessarily require the revisiting of factual findings in which the full bench might be thought to have been in some way invested: Broadhurst, 515-516 [90]. There is simply no reason to doubt that the full bench, taking account of all that the FW Act requires that account be taken, would approach the question of whether Mr Bobrenitsky’s dismissal was harsh, unjust or unreasonable with anything other than a mind open to persuasion in the usual way.

110    Accordingly, we are not persuaded that the interests of justice require any order concerning the constitution of the full bench to which the Unfair Dismissal Appeal must be remitted for further hearing. The constitution of the bench should be a matter for the FWC to determine as it sees fit.

Disposition

111    Judgment should be entered for Mr Bobrenitsky. The FWC Appeal Decision and the orders made in consequence of it should be set aside and Sydney Trains’ appeal of the Initial FWC Decision should be remitted to the FWC for rehearing according to law. There should be orders to those effects.

112    Section 570 of the FW Act operates to preclude the court from making an award of costs in favour of Mr Bobrenitsky; and, in any event, he does not seek one. There should be no order as to costs.

Associate:

Dated:    23 June 2023