Colin Wright (Mr Wright) was a mine operator for AGL at a coal mine and power station in Latrobe Valley. Shortly after completing his night shift on 27 August 2015 while driving home he drove straight through a roundabout, ploughed through the yards of two homes, crashed through a verandah and finally was stopped by a fence. When police attended the scene he told them that “he’d had synthetic cannabis”. These words, and the rules of evidence (if any) which were to be applied to them, became critical in the recent decision of Wright v AGL Loy Yang Pty Ltd [2016] FWCFB 4818.


Mr Wright had been employed at the power station and mine by various operators for approximately 30 years. Mr Wright had been caught using synthetic drugs at the workplace on two occasions. On 29 January 2015 Mr Wright was issued with a final written warning. That warning, amongst other things, required Mr Wright to complete a rehabilitation program.

Upon his return to work, Mr Wright signed a ‘return to work program’ that acknowledged that if he failed to comply with the requirements of the program, his employment may be terminated. After the accident on 27 August 2015, AGL conducted an investigation and concluded that Mr Wright had consumed synthetic cannabis prior to, or during, his journey from work. On the basis of this finding, AGL terminated Mr Wright’s employment. Mr Wright filed an unfair dismissal application before the Fair Work Commission (Commission).

First instance decision

During the proceedings Mr Wright maintained that, despite his contrary words at the scene of the accident, he did not consume synthetic cannabis prior to, or during, his journey home from work on 27 August 2015. This became the key issue for the Commission to resolve. Mr Wright agreed that if the question was answered in the affirmative, his application would have to fail. AGL agreed that if the question was answered in the negative, there would be no impediment to his reinstatement.

Watson VP ultimately found that, on the facts, Mr Wright did consume synthetic cannabis. Key to this finding was that Mr Wright had stated “he’d had synthetic cannabis” after the accident. Mr Wright’s unfair dismal application was dismissed. Mr Wright appealed this decision to the Full Bench.

Appeal to the Full Bench

Mr Wright relied on nine grounds of appeal before the Full Bench. The grounds of appeal were concerned with findings of fact made at first instance, weight placed on evidence, and Watson VP’s findings of credibility (Mr Wright’s). The most notable ground of appeal was with respect to Mr Wright’s admission to the police after the accident that “he’d had synthetic cannabis”.

Mr Wright sought to argue that the common law principles regarding criminal admissions applied. Mr Wright submitted that if this was the case, then Watson VP would be required to disregard those words, or give them little weight. If the common law rules on criminal admissions were to be applied in this way, and the words were to be disregarded, it would make it significantly harder for AGL to maintain that Mr Wright had breached his return to work program and thereby justify the termination of his employment.

The Full Bench’s consideration

The Full Bench considered the case of R v Swaffield; Pavic v R (1998) 192 CLR 159, where the majority of the High Court set out the common law position on admissions in criminal proceedings. Toohey, Gaudron and Gummow JJ stated that issues with respect to admissibility of admissions will fall into one of the following categories:

  • Was the admission involuntary?
  • Was the admission unreliable?
  • Should the Court exercise its discretion to exclude the evidence on grounds of fairness?

It was the third category that was in issue in the present proceedings. In R v Pfitzner (1996) 85 A Crim R 120, the South Australian Court of Criminal Appeal held that where the mental state of an accused was such that they were “incapable of exercising … a sensible judgment about whether or not he should make a statement to the police”, then it would be unfair to allow such an admission to be admissible. This has become known as the Pfitzner Principle.

Mr Wright argued that the Pfitzner Principle required the Commission to either disregard the admission, or afford it no weight, as he was incapable of exercising a sensible judgment about whether or not he should make a statement to the police. Mr Wright was unable to direct the Commission to any civil application of the principle. However, he submitted that it should be applied regardless. This is because the principle is for evidentiary and forensic purposes, and it informs the fact finding exercise that Watson VP was engaged in.

The Full Bench disagreed. The Full Bench noted that while the Commission is obliged to perform its functions in a manner that is fair and just, “the Commission is not bound by the rules of evidence and procedure”. Despite this, the Full Bench noted that the Commission tends to follow the rules of evidence “as a general guide to good procedure”. Therefore, while the Commission may follow the rules of evidence, it is not required to do so.

As for the application of the Pfitzner Principle specifically, the Full Bench noted that it is “founded on the protection on the rights and privileges of an accused person in criminal proceedings”. That is to say, the principle is unique to criminal proceedings because of the severe consequences of a finding of guilt. Accordingly, the Full Bench held that the Watson VP was not in error for failing to apply the Pfitzner principle.

Implications of the decision

This case serves as a reminder that evidence is to be treated in different ways before the Fair Work Commission as opposed to criminal courts. Historically, policy reasons have dictated strict standards of evidence in criminal proceedings. The Full Bench clearly indicated that they are not required to import these strict standards from criminal law into unfair dismissal proceedings. Therefore, there is no bar to the Commission considering admissions that may otherwise be inadmissible in other types of proceedings.

However, just because the Commission is not required to follow the rules of evidence, this does not mean that it will not do so. The Full Bench made it clear that the rules of evidence are often followed by the Commission as a matter of “good procedure”. While strict rules of evidence intended to protect defendants in criminal proceedings may not be frequently, if ever, used by the Commission, other rules of evidence regularly are.


Luke Dominish