Western Australian Industrial Gazette · 2012-08-14 · Australia and Japan. Dixon CJ was of the...

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 250581 W.A.I.G.

Western Australian

Industrial GazettePUBLISHED BY AUTHORITY

Sub-Part 5 WEDNESDAY, 26 SEPTEMBER, 2001 Vol. 81—Part 2

2505

THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:—81 W.A.I.G.

CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION

INDUSTRIAL APPEAL COURT—Appeals against decision of

Full Bench—2001 WASCA 233

JURISDICTION: WESTERN AUSTRALIANINDUSTRIAL APPEAL COURT

CITATION: PARKER v. TRANFIELD[2001] WASCA 233

CORAM: KENNEDY J (Presiding Judge)McKECHNIE JHASLUCK J

HEARD: 1 JUNE 2001

DELIVERED: 7 AUGUST 2001

FILE NO/S: IAC 2 of 2001

BETWEEN: RAY DOUGLAS PARKERAppellant

AND

MARK ANTHONY TRANFIELDRespondent

Catchwords—Industrial relations—Extra-territorial effect of State leg-islation—Jurisdiction of Industrial RelationsCommission—Meaning of “industry”—Dismissal of em-ployee working overseas—Close connection of contractof service with Western Australia—Commission held tohave jurisdiction

Legislation—Industrial Relations Act 1979 (WA), s 3, s 7, s 23(1),s 29(1), s 90(3)

Result—Appeal dismissed

Category: A

Representation—Counsel—

Appellant: Mr L A TsaknisRespondent: Mr D H Schapper

Solicitors—Appellant: Mallesons Stephen JaquesRespondent: Derek Schapper

Case(s) referred to in judgment(s)—Jumbunna Coal Mine NL v Victorian Coal Miners’ As-sociation (1908) 6 CLR 309Metropolitan Shop Assistants & Warehouse Employees’Industrial Union of Workers v Foy & Gibson Pty Ltd &Ors (1921) 23 WALR (I) 13R v Foster; Ex parte Eastern and Australian SteamshipCo Ltd (1959) 103 CLR 256Union Steamship Co of Australia Pty Ltd v King (1988)166 CLR 1

Case(s) also cited—Colin Harris v Brandrill Ltd (2000) 80 WAIG 2456Fitzgerald v Oil Drilling & Exploration (International)Pty Ltd (2000) 80 WAIG 4981Lorimer v Smail (1911) 12 CLR 504Mersey Docks & Harbour Board v Henderson Bros(1888) 13 AC 595Ross v The Queen (1979) 25 ALR 137

1 KENNEDY J (Presiding Judge): I have had the benefitof reading in draft the reasons to be published byMcKechnie J and Hasluck J, with which I am generallyin agreement. It is abundantly clear that the proper law ofthe contract of service was the law of Western Australia,and that there was a very real and substantial connectionwith Western Australia, which was more than sufficientto confer jurisdiction on the Commission. I would dismissthe appeal, subject, however, to an adjustment in thedamages in accordance with the agreement which hasbeen reached between the parties.

McKECHNIE J:Introduction2 This appeal raises for consideration whether the employer

of a person who is engaged to work overseas isnevertheless amenable to the jurisdiction of the WesternAustralian Industrial Relations Commission when anaction is taken for unfair dismissal.

3 The appellant Mr Parker carries on the business of thesurvey and commissioning of marine vessels under thebusiness name “Marine Offshore Survey &Commissioning”.

4 On 18 September 1998 he employed the respondent MrTranfield as an oil rig surveyor. Mr Tranfield wasdismissed from his employment on 14 December 1999.

5 On 7 January 2000 he filed an application under theIndustrial Relations Act 1979 s 29 claiming that he hadbeen unfairly dismissed by Mr Parker.

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G.2506

6 Mr Parker did not appear at the hearing, although he didwrite to the Commission challenging its jurisdiction andotherwise disputing the merits of the claim.

7 At first instance the Senior Commissioner held that theCommission did not have jurisdiction.

8 Nevertheless he went on to determine compensation inthe sum of $US23,790 with a further sum of $7000 asand by way of benefit denied to Mr Tranfield under hiscontract of employment. This was a convenient course,should he have erred in his decision on jurisdiction.

9 Mr Tranfield appealed to the Full Bench who unanimouslyupheld the appeal.

10 From that decision Mr Parker appealed to this Court onthe following particularised grounds—

“1. The ground on which this appeal is made is thatthe Full Bench erred in law in holding that theRespondent (Applicant) was employed in an in-dustry as defined in section 7 of the IndustrialRelations Act 1979 ‘the Act’ and that the Com-mission thereby had jurisdiction to hear anddetermine the Respondent’s (Applicant’s) claimpursuant to section 29 of the Act.

PARTICULARSThe Full Bench erred in law in holding that theAppellant (Respondent) carried on a business,trade, manufacture, undertaking or calling withinWestern Australia given that—

(a) There was no or insufficient evidence thatthe Appellant (Respondent) carried on anybusiness, trade, manufacture, undertakingor calling within Western Australia.

(b) The Respondent (Applicant) was dismissedfrom an industry in France.

(c) The Respondent (Applicant) was not em-ployed to perform any work in WesternAustralia, nor did he do so.

(d) Contrary to the finding of the Full Benchthere was no evidence that the respondent(Applicant) could, or would have been re-quired to work in Western Australia.

(e) All the work performed by the Respond-ent (Applicant) was in fact performedoutside Western Australia, firstly in Singa-pore and then in France.

(f) There was no evidence that the Appellant’s(Respondent’s) office in Western Australiawas its ‘head office’, and the centre of theindustry, there being no evidence where theoffer of employment and terms and condi-tions of employment emanated from, theonly evidence being that the letter termi-nating the Respondent’s (Applicant’s)employment emanated from Canada, norwas there any evidence as to the extent of,and the nature of the activities conductedby the appellant (Respondent) from its of-fices in Western Australia in comparisonwith its offices in the United States ofAmerica, Singapore, the United Kingdomand South Africa.

(g) There was no evidence from where thepayment by the Appellant (Respondent) tothe Respondent (Applicant) emanated.”

11 Although the Commission is said in the grounds to haveerred in law, in my opinion the resolution of this casedepends on the facts. This is consistent with the particularsset out above which look more like allegations of factualerror than legal mistake.

Legal principles12 It is not disputed that the Western Australian Parliament

may make laws for the peace, order and good governmentof Western Australia and that pursuant to this power itslaws may have extra-territorial effect.

13 In R v Foster; Ex parte Eastern and AustralianSteamship Co Ltd (1959) 103 CLR 256 the High Court

held that the Commonwealth Conciliation and ArbitrationCommission had jurisdiction to make a binding award inrespect of a log of claims served on a shipping companywhose ships, registered in London, traded between SouthAustralia and Japan. Dixon CJ was of the view that therewas sufficient connection with Australia because thedisputants were, for the most part, connected by residence,or the likes, with Australia and the demands were madewith respect to employment for which masters, officers,and engineers were engaged in Australia.

14 Taylor J at 289 took the view that it was necessary forthere to be a substantial connection with Australia.

15 Windeyer J, although in dissent on the overall decision,on this point expressed the position as follows at 311—

“Prima facie Commonwealth statutes ought not tobe so construed as authorising any subordinatelaw-making body to deal with matters which haveno real and substantial connexion with Australia orto make any rules except such as can be directly orindirectly enforced by the authority of Australiancourts.”

16 Later decisions of the High Court appear to have movedfrom the requirement of a “real and substantial connexion”to a less substantial connection.

17 In Pearce v Florenca (1975-76) 135 CLR 507 the HighCourt considered the validity of the Western AustralianFisheries Act.

18 After discussing the rule requiring a relevant connectionbetween the personal circumstances on which thelegislation operates and the State, Gibbs J said—

“For that reason it is obviously in the public interestthat the test should be liberally applied, and that leg-islation should be held valid if there is any realconnexion—even a remote or general connexion—between the subject matter of the legislation and theState. And it has been established by a series of well-known decisions, which are collected in Cobb & CoLtd v Kropp [1967] 1 AC 141, at pp 154-156, thatwithin their limits the legislatures of the States havepowers ‘as plenary and as ample’ as those of theImperial Legislature itself. It would seem anoma-lous and unfitting that the enactments of such alegislature should be held invalid on narrow or tech-nical grounds.”

This test was followed by the High Court in the UnionSteamship Co of Australia Pty Ltd v King (1988) 166CLR 1 by the Court at 14.

19 The cases are not precisely analogous in that the appellantdoes not dispute that the Industrial Relations Act 1979might have extra-territorial effect in a proper case. Insteadit is contended that the particular facts have no sufficientconnection with the State. However, I consider theprinciples expressed in Pearce v Florenca and confirmedin Union Steamship v King are generally applicable toresolve factual questions about the extra-territorial effectof the Industrial Relations Act in particular circumstances.

20 As a result it may be that the nexus between the factualcircumstances and Western Australia may not be sosubstantial as the Commission considered necessary toground jurisdiction. A real, even though a remote, orgeneral connection with Western Australia is sufficient.

The factual circumstances21 The Commission set out the factual circumstances

between par 36 and par 40—“36 The facts are quite clear. Mr Tranfield entered

into a written contract of employment in WesternAustralia. Clause (1) of the written contract de-scribes the ‘Point of Origin’ in Western Australia(see exhibit 5 (page 43-48 of the appeal book(hereinafter referred to as ‘AB’))). At the time,Mr Tranfield resided in Western Australia andcontinued to do so until the time of his dismissal,at least, and so did the respondent.

37 At all material times, the respondent’s head of-fice of his business was situated in Bunbury inthis State, although it had a branch office in


Houston, Texas in the United States of America.The address is described as the principal place ofbusiness in the extract from the Business NamesRegister (see exhibit 1, pages 30-33(AB)). Thenature of the respondent’s business was a world-wide one involving providing services to the oildrilling industry (see the assertion in the adver-tisement for the position (exhibit 2, page 34(AB))which is conducted in many part of the world, afact of some notoriety. The contract of employ-ment was entered into in this State and within thejurisdiction of this Commission.

38 Mr Tranfield carried out his actual employment(ie performed his employment duties) in Singa-pore and France. He did not, at any time, carryout such duties in Western Australia, although hecontinued to reside here. He was paid here by therespondent and he was paid to travel overseas towork. Further, he was, and one assumes, placedin paid accommodation overseas and paid an ac-commodation allowance. At least, he was entitledto those benefits under the contract of employ-ment. He was paid his wages in this State withinthe jurisdiction by the respondent from its headoffice, one infers. He also travelled backwardsand forwards from Western Australia to Singa-pore and France respectively.

39 Notably, the written contract of employmentcalled a ‘Letter of Understanding’ (see exhibit 5,pages 43-48(AB)) contains no specific referenceto work occurring in or off Western Australia, butthere is no exclusion of such employment andMr Schapper’s submission that the employercould have deployed Mr Tranfield in WesternAustralia (including off the Western Australiacoast) we accept.

40 The dismissal was effected by a letter (exhibit 6,page 49(AB)) dated 14 December 1999. MrTranfield received that letter at his home in thisState. (The Senior Commissioner found that thenotification of dismissal occurred in this State.)After the dismissal, he was paid about$US15,000.00, being wages owing. He said, how-ever, that he was still owed $US7,168.00 forwages.”

The grounds of appeal22 The term “industry” is defined in the Industrial Relations

Act 1979 to include any business of employers.23 In the appellant’s general contention, as expressed in the

grounds of appeal, there was no significant evidence thatthe appellant carried on business within Western Australia.

24 Counsel for the appellant argued that the business was inreality a business for the hire of labour to others. Therespondent was not engaged in that business as he actedfor others as a marine surveyor, having been engagedthrough the medium only of the appellant’s business.

25 However, the facts do not support this contention.26 The business name extract for Marine Offshore Survey

and Commissioning described the nature of the businessas “Survey & Commissioning of Marine Vessels” carriedon principally in Bunbury. The advertisement which MrTranfield answered commenced—

“OIL RIG SURVEYORS

require

RIG CHIEF ENGINEER

RIG MECHANIC

RIG SUB C ENGINEER

RIG ELECTRICIAN”

27 In the course of the advertisement it was stated—“We req the above positions for current & futureprojects at locations world wide in ship yards for oildrilling vessels being upgraded or new buildprojects.”

28 The letter of engagement dated 22 August 1998commences—

“This is to confirm your employment with our com-pany…”

29 Guidelines were enclosed. The guidelines entitled “PRECOMMISSIONING & COMMISSIONING GUIDELINES” commence—

“Pre commissioning and final acceptance commis-sioning is our business and therefor we must carryout our inspections at the highest possible profes-sional standard, we must be alert to any possibledefects, our inspections must be EXACT ANDCOMPLETE.”

30 Further on—“Our clients wants (sic) our opinion, we don’t relyon other opinions, we are there to inspect the equip-ment condition and we have the engineering expertiseto do this.”

31 Also attached was a “TIME SHEETS GUIDE” whichgave details of time sheets and invoices, accommodationand expenses. Under expenses it is stated—

“Careful consideration should be given to items pur-chased that they can be usefully used and thatdiscretion is used at the cost of the item, and whatwe can do with it at the end of the project, in otherwise (sic) don’t pay high prices for things that wecan’t take with us, and are going to be disposed of,thrown out.…OVERALLSThe company will provide overalls with the com-pany logo and surveyors name on the front pocket,and also provide a casual dress shirt with companylogo on front pocket.”

32 A letter of understanding, also described as a contract ofemployment, set out further details of the employmentarrangements.

33 The documentation does not support particular (a) orparticular (b) of the grounds of appeal. Whether or notthe respondent was dismissed in France or in WesternAustralia matters little because the industry in which hewas employed was the employer’s business of survey andcommissioning of ships.

34 As to grounds (c), (d) and (e), there was a real connectionwith Western Australia. The employer’s business was inWestern Australia. The contract of employment was madein Western Australia. Payment of the employee’s salarywas made in Western Australia. Repatriation oncompletion of a project was made to Western Australia.The fact that the employee was required to work entirelyoverseas for a Western Australian business does notprevent the conclusion that there was a real connectionwith Western Australia.

35 Particular (f) of the particulars is misconceived. MrTranfield’s undisputed evidence to the SeniorCommissioner was that he was employed in WesternAustralia. His evidence was that he saw the advertisement,faxed the address on the advertisement, received atelephone call from Mr Parker’s daughter asking him tore-fax the information because she looked after the officehere. He then received a telephone call from Mr Parker amonth or so after and was offered a job over the telephone.He wanted to go over a few items so he travelled down toBunbury and was further interviewed at the LockwoodCrescent address, following which Mr Parker wrote theletter of 22 August 1998 to which I have referred.

36 In short, the factual circumstances alleged by the appellantare not sustainable. The evidence is to the contrary. TheFull Bench correctly found on the facts that there was asufficient connection with Western Australia to found thejurisdiction of the Commission.

Damages37 The parties have agreed that in the event the appeal on

ground 1 is dismissed, the amount awarded by way ofdamages should nevertheless be reduced to $US20,185.


In light of the agreement, I would reduce the amount ofdamages accordingly and allow the appeal to the extentnecessary to reflect the agreement between the parties.

38 HASLUCK J: The appellant, Ray Douglas Parker,appeals against a decision of the Full Bench of the WesternAustralian Industrial Relations Commission. He seeks anorder quashing the decision of the Full Bench on theground that the Full Bench erred in law in holding thatthe respondent, Mark Anthony Tranfield, was employedin an industry as defined in s 7 of the Industrial RelationsAct 1979 and that the Industrial Relations Commissionthereby had jurisdiction to hear and determine therespondent’s claim for relief in respect of an alleged unfairdismissal.

39 The appellant is a firm registered under the BusinessNames Act 1962 (WA). The firm trades as Marine OffshoreSurvey and Commissioning, the nature of its businessbeing the survey and commissioning of marine vessels.The firm provides surveying and commissioning servicesto the offshore oil industry throughout the world.

40 It is apparent from the relevant business names extractthat the principal place of business of the appellant firmis 49 Lockwood Crescent, Bunbury in the State of WesternAustralia. It seems that the firm also has an office in theUnited States of America.

41 The respondent came to be employed by the appellantafter answering an advertisement published in The WestAustralian calling for oil rig surveyors, including a rigmechanic. The respondent was interviewed in Bunburyby the registered proprietor of the appellant firm and wassubsequently offered employment, which he accepted.

42 The respondent was employed under the terms of a writtencontract entered into in this State. The employmentcommenced on 18 September 1998. It was a term of thecontract that the respondent’s “point of origin” was to bePerth, Western Australia “from and to which travelprovisions to the assignments will be provided by thecompany”. It was also a term of the contract that theemployer was to reimburse the respondent for any costsassociated with obtaining visas as required for any project.Further, the employer firm was to provide livingaccommodation, together with an accommodationallowance. The contract was terminable by either partygiving a minimum of 14 days’ notice.

43 The respondent was sent to work as an oil rigger inSingapore, where he remained until the end of August1999, when he was sent to work in France. On or about14 December 1999, whilst in France, he was told by theproprietor of the appellant firm that he was being sent onleave, but a short time later he was told by the proprietor’sson that he was to be dismissed. He subsequently receivedfrom the proprietor of the appellant firm a letter dated 14December 1999, advising that his employment wasterminated, allegedly for copying material owned by theappellant, in breach of his contract of employment. Theletter effecting the dismissal was received by therespondent while he was at home in this State.

44 I note in passing that the respondent did not carry outany duties in Western Australia, although he continuedto reside in this State. He was paid in this State by theappellant firm and was paid to travel overseas to work. Itis apparent from this summary that the employment ranfrom 18 September 1998 until on or about 14 December1999.

45 The respondent alleged that his dismissal was harsh,oppressive or unfair and sought relief in the form ofcompensation for loss of potential earnings and benefitsdue under the contract of employment.

46 Section 29(1) of the Industrial Relations Act providesthat an industrial matter may be referred to theCommission by an employee in the case of a claim by anemployee that he has been harshly, oppressively orunfairly dismissed from his employment, or that he hasnot been allowed a benefit to which he is entitled underhis contract of service. By s 7 of the Act, an “industrialmatter” means any matter affecting or relating to the work,privileges, rights or duties of employers or employees in

any industry or of any employer or employee therein and,without limiting the generality of that meaning, includesissues relating to the various matters specified in therelevant provision. Reference is made in that regard tomatters such as wages, hours of employment and manyof the other usual incidents of a contract of employment.

47 Section 23(1) of the Industrial Relations Act providesthat the Commission has cognisance of and authority toenquire into and deal with any industrial matter. By s23A, on a claim of harsh, oppressive or unfair dismissal,the Commission may provide various forms of relief,including an order for the payment to the claimant of anyamount to which the claimant is entitled.

48 It follows from these provisions that the claim beingadvanced by the respondent was brought before theCommission as an industrial matter. It seems that theappellant did not file a notice of answer to the claim, butwrote to the Commission challenging the jurisdiction toentertain the application and otherwise disputing themerits of the claim. The appellant did not appear at thehearing.

49 It was against this background that the matter came beforeSenior Commissioner G L Fielding. He dismissed theapplication on 29 August 2000 on the grounds that hedid not have jurisdiction to deal with the matter.Commissioner Fielding went on to find that, but for theabsence of jurisdiction, the respondent would have beenentitled to a declaration that he was unfairly dismissed.The respondent was also found to be entitled tocompensation in the sum of US$30,970 consisting ofUS$23,970 in respect of lost earnings and the further sumof US$7000 as and by way of benefits denied him underhis contract of employment.

50 Commissioner Fielding accepted that the proper law ofthe contract of employment was the law of WesternAustralia. He concluded, however, having regard to anumber of previously decided cases, that the jurisdictionof the Commission was attracted not by the proper lawof the contract or by the residency of the parties, but bythe location of the industry in which the aggrievedemployee worked. The industry in the present case didnot have a sufficient connection with Western Australiabecause the work under the contract was performed ineither Singapore or France.

51 The Full Bench took a different view of the matter. TheFull Bench held that the claim was within jurisdiction. Itwas a matter concerning the rights and obligations ofemployers and employees in an “industry” as defined bys 7 of the Act because a business can be said to be carriedon in the place where it is managed.

52 The appellant submits that the Commission did not havejurisdiction to deal with the matter brought before it andthereby seeks to affirm the reasoning to that effect ofCommissioner Fielding. On this view of the matter, theIndustrial Relations Act should be read as being restrictedin its operation within territorial limits, and thus, in thepresent case, to work performed in the State of WesternAustralia, or to activities having a sufficient connectionto the State.

53 “Industry” is defined in s 7 of the Act to include anybusiness, trade, manufacture, undertaking, or calling ofemployers or any calling, service, employment,handicraft, or occupation or vocation of employees. Theterm “calling” means any trade, craft, occupation, orclassification of an employee. The other terms mentionedin the definition of “industry” are undefined.

54 On the appellant’s case, the respondent was dismissedfrom an industry being carried on outside WesternAustralia, because the work of the respondent as an oilrig mechanical surveyor was being performed in France.The jurisdiction of the Commission is confined to dealingwith any “industrial matter”. The meaning attributed tothat term by the Industrial Relations Act, properlyconstrued, is any matter affecting the work of employersor employees in any industry to which the Act applies,that is to say, an industry with a real and sufficientconnection to the State of Western Australia. TheCommission did not have jurisdiction in the present case


because a dispute concerning work being performed inFrance could not be said to arise in an industry having asufficient connection to this State.

55 The appellant supported this submission by drawingattention to s 3 of the Industrial Relations Act. The effectof that provision is to extend the application of the Act tocertain offshore areas specified in s 3(3) of the Act,namely, the Australian Fishing Zone and the ContinentalShelf.

56 A requirement in s 3(1)(b)(ii) for the application of theAct to the specially designated offshore areas is that theemployer concerned be connected with the State. By s3(2), an employer is said to be connected with the Statefor the purpose of the offshore provision if that employeris domiciled in the State, is resident in the State, isregistered or incorporated under a law of the State in thecase of a company, has an office or a place of business inthe State in connection with the industry concerned, or isthe holder of a licence, lease, tenement, permit, or otherauthority granted under a law of the State by virtue ofwhich the industry is carried on.

57 These provisions, counsel for the appellant contended,strongly suggest that the Industrial Relations Act isrestricted in its operation within territorial limits, savefor the offshore areas designated by the Act itself. Counselrelied also upon the reasoning of Burnside J inMetropolitan Shop Assistants & Warehouse Employees’Industrial Union of Workers v Foy & Gibson Pty Ltd &Ors (1921) 23 WALR (I) 13 at 21 in which the learnedJudge concluded that “industry” meant “that branch ofart where labour is employed for the production of wealthor value, and in which capital is employed”.

58 In the present case, counsel argued, as the work the subjectof the contract of employment was performed in France,being a place situated outside Western Australia and notlying within the specially designated offshore areas, thework could not be regarded as forming part of an industryto which the Act applied.

59 It is apparent from this overview of the controversy thatthe crucial question is whether the term “industry” shouldbe confined to any industry situated or being carried onwithin Western Australia, including the speciallydesignated offshore areas, or whether it has a broadermeaning.

60 It is important that rules of statutory interpretation bearingupon an issue of this kind should not be confused withthe question whether or not a State is able to legislateextra-territorially.

61 In Union Steamship Co of Australia Pty Ltd v King(1988) 166 CLR 1, the High Court recognised that, withinthe limits of the grant, a power to make laws for the peace,order and good government of a territory is as ample andplenary as the power possessed by the Imperial Parliamentitself; that is, the words “for the peace, order and goodgovernment” are not words of limitation. They did notconfer on the courts of a colony, just as they do not conferon the courts of a State, jurisdiction to strike downlegislation on the ground that, in the opinion of a court,the legislation does not promote or secure the peace, orderand good government of the colony.

62 When it came to legislation having an extra-territorialoperation, it was thought initially that colonial legislatureswere incompetent to enact such legislation. However, asthe High Court noted in the Union Steamship case at 12,it was eventually accepted beyond any question thatcolonial legislatures had powers to make laws whichoperate extra-territorially, and this view applied with equalforce to the parliaments of the Australian States, includingthe State of Western Australia.

63 The High Court went on to say, however, that the 19thcentury decisions did not deny that the words “peace,order and good government” might be a source ofterritorial limitation. As each State parliament in theAustralian federation has power to enact laws for its State,it is appropriate to maintain the need for some territoriallimitation in conformity with the terms of the grant,notwithstanding the recent constitutional rearrangements

for Australia effected by the Australia Act 1986 (Cth)whereby State parliaments have power to enact lawshaving an extra-territorial operation.

64 The High Court said further at 14—“The new dispensation is, of course, subject to theprovisions of the Constitution (see s 5(a) of eachAct) and cannot affect territorial limitations of Statelegislative powers inter se which are expressed orimplied in the Constitution. That being so, the newdispensation may do no more than recognize whathas already been achieved in the course of judicialdecisions. Be that as it may, it is sufficient for presentpurposes to express our agreement with the com-ments of Gibbs J in Pearce where his Honour statedthat the requirement for a relevant connexion betweenthe circumstances on which the legislation operatesand the State should be liberally applied and thateven a remote and general connexion between thesubject matter of the legislation and the State willsuffice.”

65 This approach is reflected in the reasoning of variousmembers of the High Court in an earlier case, namely, Rv Foster; Ex parte Eastern and Australian SteamshipCo Ltd (1959) 103 CLR 256. Dixon CJ said this at 275—

“It does not follow from the adoption of the Statuteof Westminster that Commonwealth legislationshould be construed as if there were no territorialconsiderations affecting its interpretation. Indeed itmay be fairly said that when the consequence of in-validity is removed from extra-territorial legislationit becomes more important to give effect to the pre-sumption governing the interpretation of Englishlegislation. That is a presumption which assumes thatthe legislature is expressing itself only with respectto things which internationally considered are sub-ject to its own sovereign powers.”

66 In the same case, Windeyer J said this at 311—“It is, however, one thing to say that the Common-wealth Parliament has a constitutional power to makea law having a wide extra-territorial operation. It isquite another thing to say that it has confided theexercise of such a power to a subordinate law-makingauthority. The Parliament might, as a matter of law,exercise its powers in defiance of international com-ity and heedless of whether or not its laws could beenforced. It does not follow that it has authorised itsindustrial tribunals to do so. Prima facie Common-wealth statutes ought not to be so construed asauthorizing any subordinate law-making body to dealwith matters which have no real and substantialconnexion with Australia or to make any rules ex-cept such as can be directly or indirectly enforcedby the authority of Australian courts.”

67 One of the clearest statements that legislation is presumednot to have extra-territorial effect appears in JumbunnaCoal Mine NL v Victorian Coal Miners’ Association(1908) 6 CLR 309 at 363. O’Connor J said—

“In the interpretation of general words in a Statutethere is always a presumption that the legislature doesnot intend to exceed its jurisdiction. Most Statutes, iftheir general words were to be taken literally in theirwidest sense, would apply to the whole world, butthey are always read as being prima facie restricted intheir operation within territorial limits. Under the samegeneral presumption every Statute is to be so inter-preted and applied as far as its language admits as notto be inconsistent with the comity of nations or withthe established rules of international law.”

68 Nonetheless, it is now apparent from the reasoning of theHigh Court in the Union Steamship case, that it is withinthe competence of the State legislature to make any fact,circumstance, occurrence or thing in or connected withthe territory the occasion of the imposition upon anyperson of rights and obligations. It is also within thecompetence of the legislature to base the imposition ofliability on no more than the relation of the person to theterritory. The relation may consist in presence within the


territory, residence, domicile, carrying on business there,or even remoter connections. If a connection exists, it isfor the legislature to decide how far it should go in theexercise of its powers.

69 The appellant submits, as I have already noted, that s 3 ofthe Industrial Relations Act concerning the applicationof the Act to offshore areas should be regarded as anindication by the legislature that the Act is not to have anextra-territorial operation save for its application to thespecially designated offshore areas. Section 3 of the Actand, in particular, s 3(2)(d) would be otiose, the appellantcontends, if the Act was intended to apply to any employeeanywhere in the world simply because of some slightconnection to the State of Western Australia, such as theemployer having a place of business within the State.

70 It is important to note, however, that the application ofthe Act to the specially designated offshore areas underand by virtue of s 3 is expressly made subject to subs (6)which reads as follows—

“Effect shall be given to subsections (1), (2) and (3)only where this Act or any provision of this Actwould not otherwise apply as a law of the State, orbe applied as a law of the Commonwealth, to or inrelation to any person, circumstance, thing, or place.”

71 In my view, the effect of s 3(6) is to affirm the generalprecept reflected in the previously decided cases that theState legislature has power to enact legislation having anextra-territorial operation. The precept is qualified by therule of interpretation that legislation is presumed not tohave extra-territorial effect. There must be a real andsubstantial connection between the circumstances onwhich the legislation operates and the State of WesternAustralia. It follows from the Union Steamship case,however, that this requirement will be liberally appliedwith the result that in certain circumstances activitiestaking place outside the State may be subject to theprovisions of the Industrial Relations Act.

72 On this view of the legislation, s 3 has been introducedas a precautionary measure in order to remove anyambiguity that might arise concerning the application ofthe statute in the offshore areas. In the words of s 3(6),effect shall be given to the special rules concerningoffshore areas only where the Act “would not otherwiseapply as a law of the State”. A provision formulated inthis way clearly contemplates that activities taking placeoutside the State, in the offshore areas or in other areasoutside the State, may be affected by the IndustrialRelations Act. In a case of doubt, however, as to whetheran industry being conducted wholly or partly in theoffshore areas can be regarded as having a sufficientconnection with the State, the relevant criteria forresolving that issue are set out explicitly.

73 Put shortly, there would be no need for subpar (6) of s 3if the operation of the Act was limited to activities takingplace within the State, but with special provision beingmade for the operation of the Act to be extended to theoffshore areas. The presence of subpar (6) suggests thatthe Act generally has the potential to apply to activitiesoutside the State (provided there is a real and substantialconnection with the State) with the result that subpars(1) to (4) will only be brought into play in exceptionalcircumstances where the Act would not “otherwise” apply.Proper weight must be given to the word “otherwise”.

74 In the present case, the subject matter of the respondentemployee’s application for relief had to satisfy therequirement prescribed by s 23(1) of the Act; that is tosay, that it be an “industrial matter”. The jurisdiction ofthe Commission is confined to matters of that kind. Anindustrial matter could only arise in respect of an“industry” as that term is defined in the Act. One mustkeep in mind that the term in question includes referencenot only to the calling or employment of employees, butembraces any business or calling of employers. Putshortly, the nature of the business in the present case isnot to be determined exclusively by reference to thephysical activities of the employee. One must take accountof the administrative and financial functions beingperformed by the employer.

75 It is apparent from the reasoning of the Full Bench thatthe approach reflected in Foster’s case and the JumbunnaCoal Mine case was applied to the circumstances of thepresent case. The Full Bench examined the facts of thematter with a view to ascertaining whether there was areal and substantial connection between the appellant’sbusiness and the respondent’s employment in that businessand the State of Western Australia. In my view, thisapproach is consistent with the reasoning of the HighCourt in the previously decided cases and it cannot besaid that the Full Bench fell into error.

76 When one turns to the details of the matter, I considerthat the Full Bench was correct in holding that the locationof the physical activities undertaken by the employeeshould not be regarded as the decisive factor. The industryor calling of the employer was essentially the provisionof services to other industries operating in the generalfield of offshore marine projects. There were variousfeatures of the relationship between the parties whichpoint to a real and substantial connection with this State.There was evidence before the Commission that theemployer’s principal place of business was at Bunburyand that managerial functions relating to the supply oflabour services were performed at that place of business,including negotiation of the relevant contract ofemployment and the payment of remuneration pursuantto the contract.

77 The terms of the contract of employment are consistentwith this view of the matter in that in cl 2 the point oforigin is described as Perth, Western Australia “from andto which travel provisions to the assignments will beprovided by the company”. The Commission did notconclude that the appellant was in an industry within themeaning of s 7 simply because it had its principal placeof business within Western Australia. That fact was simplyone of various circumstances that were taken into accountby the Full Bench in determining whether there was areal and substantial connection with Western Australia.

78 The Full Bench clearly took account of CommissionerFielding’s findings that the contract was entered into inthe jurisdiction, the wages and other benefits, save andexcept accommodation, were paid and payable within thejurisdiction, the notice of termination was received withinthe jurisdiction and the extent of the conduct of the headoffice of the business was significant. Against thatbackground, although the actual work was performedoutside the jurisdiction, a finding could be made that thework the subject of the contract of employment wasperformed by an employee in an industry having a realand substantial connection with the jurisdiction.

79 It follows that, in my view, the Full Bench did not fallinto error in holding that the respondent was employedin an industry as defined in s 7 of the Industrial RelationsAct. The Full Bench correctly held that the Commissionhad jurisdiction to hear and determine the respondent’sclaim for relief arising out of the alleged unfair dismissal.Accordingly, I conclude that the appeal should bedismissed.

80 The appellant submitted also, in the alternative, that theFull Bench erred in law in awarding damages based onthe respondent’s calculation when those calculations hadno rational basis and could not be explained by therespondent himself.

81 Submissions bearing upon this issue were canvassed atthe hearing before the Industrial Appeal Court by counselfor the respective parties.

82 The matter was left on the basis that counsel for the partieswould endeavour to agree the amount in question. Theparties then agreed that in the event the appeal on ground1 is dismissed, the amount awarded by way of damagesshould, nevertheless, be reduced to $US20,185. It followsthat the amount of damages must be reduced accordingly.I would allow the appeal to the extent necessary to reflectthe agreement between the parties.


2001 WAIRC 03496WESTERN AUSTRALIAN INDUSTRIAL APPEAL

COURTPARTIES RAY DOUGLAS PARKER,

APPELLANTv.MARK ANTHONY TRANFIELD,RESPONDENT

CORAM JUSTICE KENNEDY (PRESIDINGJUDGE)JUSTICE McKECHNIEJUSTICE HASLUCK

DELIVERED TUESDAY, 7 AUGUST 2001FILE NO/S IAC 2 OF 2001CITATION NO. 2001 WAIRC 03496___________________________________________________________________________

Result Appeal DismissedRepresentationAppellant Mr LA Tsaknis (of Counsel)Respondent Mr DH Schapper (of Counsel)___________________________________________________________________________

Order.HAVING heard Mr LA Tsaknis (of Counsel) for the Appel-lant and Mr DH Schapper (of Counsel) for the Respondent,THE COURT HEREBY ORDERS THAT—

1. By consent, the amount of compensation payable tothe Respondent be reduced to US$20,185.00;

2. Otherwise the appeal is dismissed.(Sgd.) J. SPURLING,

[L.S.] Clerk of the Court.

FULL BENCH—Appeals against decision of

Commission—2001 WAIRC 03497

WESTERN AUSTRALIANINDUSTRIAL RELATIONS COMMISSION.

PARTIES AUSSIE ONLINE LIMITED (ACN 004160 927), APPELLANTv.JOHN LANE, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P JSHARKEYCHIEF COMMISSIONER W SCOLEMANCOMMISSIONER P E SCOTT

DELIVERED FRIDAY, 10 AUGUST 2001FILE NO/S FBA 36 OF 2001CITATION NO. 2001 WAIRC 03497_______________________________________________________________________________

Decision Appeal upheld and decision at firstinstance quashed.

AppearancesAppellant Mr S K Shepherd (of Counsel), by leaveRespondent Mr M L Bennett (of Counsel), by leave,

and with him,Ms L Boardley (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 These are the unanimous reasons for decision of the Full

Bench.

2 This is an appeal against a decision of the Commission,constituted by a single Commissioner, given on 17 May2001, and orders made on 8 June 2001 in matters No1039 of 2000 and No 440 of 2001. The appeal purportsto be brought pursuant to s.49 of the Industrial RelationsAct 1979 (as amended) (hereinafter referred to as “theAct”).

3 The order was perfected by its depositing in the office ofthe Registrar on 11 June 2001 and which, in its full terms,read as follows—

“WHEREAS this is an application made pursuantto section 27(1)(v) of the Industrial Relations Act1979 (the Act) seeking to set aside the order discon-tinuing matter number 1039 of 2000; andWHEREAS this matter came on for conference pur-suant to section 32 of the Act on 9 and 23 April 2001;andWHEREAS the matter was unable to be resolvedand was referred for hearing and determination; andWHEREAS the Commission finds that the order of16 February 2001 in matter number 1039 of 2000was made in error;NOW THEREFORE, the Commission, pursuant topowers under section 27(1)(m) of the Act and hav-ing regard to equity, good conscience and thesubstantial merits of the matter hereby orders—

THAT the order of 16 February 2001 in mat-ter number 1039 of 2000 be revoked.”

GROUNDS OF APPEAL4 It is against the decision in matter No 440 of 2001 that

the appellant now appeals on the following grounds—“1 The Commission erred in law in that the order of

the Commission to revoke the order of the Com-mission made on 16 February 2001 in matternumber 1039 of 2000 (“the Revocation Order”)was beyond the jurisdiction of this Commissionas granted by the Industrial Relations Act 1979(“the Act”).

Particulars(a) The jurisdiction of the Commission is

granted by the express terms of the Act.(b) Section 26(1)(a) of the Act is not a provi-

sion which vests the Commission withjurisdiction—it is not a source of jurisdic-tion. That provision controls the mannerin which the Commission is to exercise itsjurisdiction, once granted.

(b) The Commission has no jurisdiction togrant orders in a separate application (No.440 of 2001) where those orders purportto have an effect on an earlier application(No. 1039 of 2000), without an expressgrant of jurisdiction.

(c) The Revocation Order ought to have beensought through the appellate procedure inthe Act.

2 The Commission erred in law and in fact in find-ing that it had power to make the RevocationOrder.

Particulars(a) There is no power in the Act which sup-

ports the making of the Revocation Order.(b) The power in section 27(1)(m) of the Act

did not support the making of the Revoca-tion Order.

(c) Upon the making of the order on 16 Feb-ruary 2001 the Commission was functusofficio with respect to the respondent’sclaim for unfair dismissal.

(d) The slip rule has no application to the ex-ercise by the Commission of its powersunder the Act and, in any event, that rulehad no application to the circumstances ofthe present case.


3 The Commission erred in law and in fact in exer-cising its discretion to make the Revocation Order.

Particulars(a) No evidence was led by the respondent as

to the circumstances whereby the respond-ent’s solicitors failed to respond to theCommission’s letter of 30 January 2001.There was thus no probative evidence tosupport the exercise of the Commission’sdiscretion.

(b) The Commission failed to give any or anysufficient weight to the fact that the dis-continuance of matter number 1039 of2001 (sic) was caused by the respondent’ssolicitors.

(c) The Commission failed to give any or anysufficient weight to the fact that the dis-continuance of matter number 1039 of2001 (sic) was not caused or contributedto in any way by the appellant or its solici-tors.”

AMENDED NOTICE OF OBJECTION5 There purports to be filed an Amended Notice of

Objection on behalf of the respondent, having been filedon 17 July 2001. The objection, formal parts omitted,reads as follows—

“Name of Objector: John Franklyn LaneThe abovenamed objector hereby objects to thewhole of the abovementioned application.The grounds of objection are—

1. the notice of appeal has not been validly in-stituted;

2. the appeal is based on the decision of Com-missioner Wood which constitutes a finding,as defined in Section 7 of the Industrial Rela-tions Act 1979 (“the Act”); and

3. section 49(2A) (sic) of the Act provides thatan appeal does not lie under Section 49 froma finding unless, in the opinion of the FullBench, the matter is of such importance that,in the public interest, an appeal should lie;

4. there is no public interest raised by the appeal;5. the Commission had jurisdiction pursuant to

section 23 of the Act to enquire into and dealwith any industrial matter. Application no. 440of 2001 was an industrial matter brought be-fore the Commission, in that, it was a matteraffecting or relating to the work, privileges andrights or duties of the Applicant. Section27(l)(m) of the Act in particular by enablingthe correction of an “error” provided sufficientpower for the Commissioner’s decision to re-voke the discontinuance.

6. there was no appealable error made by Com-missioner Wood in the exercise of hisdiscretion to revoke his order discontinuingapplication no. 1039 of 2000.

The objector is or is likely to be affected by the ap-plication in the following manner, namely—

1. The objector has suffered financial hardshipbecause of the dismissal. The objector shouldnot be deprived of his right to seek relief andcompensation in relation to that dismissal.

2. The objector will incur further costs in pre-paring for the appeal and being represented atthe appeal.

3. The objector will be deprived of the fruits ofhis litigation in that there may be a furtherdelay in the hearing and final determinationof the objector’s industrial matter before theCommission.

4. The objector’s application for an order pursu-ant to Section 29 of the Industrial RelationsAct 1979 was lodged on 7 July 2000 and isstill to be heard. To further delay the hearing

would accentuate the hardship experienced bythe objector and in all the circumstances wouldbe unjust.

Additional Matters1. In the event that the Appellant is successful in

its appeal on the grounds that the Commis-sioner did not have the requisite jurisdictionto revoke the order and as a consequence ap-plication no. 440 of 2001 is dismissed, theobjector seeks an order for an extension oftime to lodge an appeal against the decisionof Commissioner Wood made on 15 February2001 in application no. 1039 of 2000 and forthat appeal to be heard at the same time asthis Appeal. A draft Notice of Appeal is at-tached.

2. Further and in the alternative, if the Appellantis successful to the extent that the discontinu-ance of application no. 1039 of 2000 is notset aside, the objector seeks an order for anextension of time to lodge a fresh applicationfor harsh, oppressive and unfair dismissal.”

6 The Notice of Objection is not a competent step in theproceedings, either pursuant to the Act or to the IndustrialRelations Commission Regulations 1985 (as amended), inan appeal to the Full Bench pursuant to s.49 of the Act.However, the Full Bench was entitled to and treated thenotice as reflecting submissions which might be put to it.

Draft Notice of Appeal—Matter No 1039 of 20007 We would also add that attached to the “Amended Notice

of Objection” was a draft Notice of Appeal to the FullBench against the decision of the Commission in matterNo 1039 of 2000. However, Mr Bennett, of Counsel forthe respondent, when asked by the Full Bench, expresslydeclined to apply for an extension of time within whichto institute (or to otherwise pursue) such an appeal.

BACKGROUND8 The respondent employee, Mr John Franklyn Lane, was

the applicant in proceedings at first instance brought byapplication No 1039 of 2000, which was filed in thisCommission on 7 July 2000.

9 The appellant is and was, at all material times, a companyincorporated under the laws of this State and was engagedin business of the provision of various internet relatedservices. At all material times, from 16 June 1999, MrLane owned 20% of the business known as“aussie.com.au”. Mr Lane alleged that he was anemployee of the appellant, having commencedemployment as Business Development Manager on orabout 20 August 1999, and that he was, on 27 June 2000,summarily dismissed. He alleged that this dismissal washarsh, oppressive and unfair and sought an order forreinstatement without loss of entitlements, makingapplication pursuant to s.29 of the Act. The applicationwas opposed by the respondent.

10 There was a conciliation conference held pursuant to s.32of the Act on 28 November 2000, followed by a letter tothe respondent, care of his solicitors, signed by theAssociate to the Commissioner and dated 30 January 2001which, formal parts omitted, reads as follows—

“A conciliation conference pursuant to section 32 ofthe Industrial Relations Act 1979 was held beforeCommissioner Wood on 28 November 2000. At theconclusion of which the matter was settled and theCommission advised that the matter would be ad-journed for seven days.On 6 December 2000 correspondence was receivedfrom the applicant’s solicitor indicating that thematter was settled and a notice of discontinuancewould be filed within 10 days.Please advise the Commission, in writing, of progresswith the matter or alternatively file a notice of dis-continuance by close of business Wednesday 14February 2001. If the Commission has not had a re-ply by this date the matter will be discontinued onthe Commission’s own motion.”


11 There was no response to that letter.12 We should add that, after the conference, the solicitors

for both parties were discussing the contents of a deed ofsettlement and there were submissions before us as towhether a settlement had been reached or not, by referenceto correspondence between solicitors and copies of a draftdeed of settlement contained in a Supplementary AppealBook.

13 The matter came before the Commission which, by ordermade on 15 February 2001 and perfected on 16 February2001. The terms of the order made in application No 1039of 2000, in full, are as follows—

“WHEREAS this is an application pursuant to sec-tion 29(1)(b)(i) of the Industrial Relations Act 1979;andWHEREAS on 28 November 2000 a conference washeld pursuant to section 32 of the Act, at which timeterms of settlement were agreed; andWHEREAS the Commission wrote to the applicanton 30 January 2001 advising that the applicationwould be discontinued on the Commission’s ownmotion unless advised otherwise by the applicantby 14 February 2001; andWHEREAS there has been no response on behalf ofthe applicant;NOW THEREFORE the Commission, pursuant tothe powers conferred on it under the Industrial Re-lations Act 1979, hereby orders—

THAT the application be and is hereby dis-continued.”

(See pages 22-23 of the appeal book (hereinafter referredto as “AB”).)

14 An application, No 440 of 2001, purporting to be madepursuant to s.27(1)(v) of the Act, was lodged in theCommission on 12 March 2001 and, after a hearing on17 May 2001, an order revoking the order reproducedabove and made in application No 1039 of 2000 wasmade.

15 In his reasons for decision (see pages 10-14(AB)),delivered extemporaneously on 17 May 2001, theCommissioner noted that there was an agreement betweenthe parties which was “an agreement which was all butsettled in the conference of the 28th of November 2000,bar for some wording in a deed of settlement (which wasto be confidential between the parties)”. Apart from that,a settlement was achieved.

16 The Commissioner, however, expressly found thatsettlement had not in fact been reached and that thecorrespondence was explicit about it. He did not deal withthe correspondence, except to reproduce the terms of aletter of 15 December 2000 from the solicitors for theappellant to the solicitors for the respondent, which readsas follows—

“1. We have received no correspondence from yousince our letter of 6 December.

2. Given the delays which have occurred in con-nection with this matter (none of which have beenattributable to our client), we are instructed toinform you that, should you not accept our cli-ent’s proposal for settlement by 5.00pm today,all offers from our client will lapse immediatelythereafter.

3. If no or no adequate response is received by thattime, we propose writing to the Commissionerrequesting a directions hearing in the new yearand a date for trial.”

(See page 39 of the Supplementary Appeal Book.)

17 The Commissioner then found that no settlement wasachieved.

18 The Commissioner then held that, to not allow Mr Laneto pursue his case would be in breach of his duties unders.26 of the Act, given that the terms of his original orderwere also clear.

19 The Commissioner quoted a recital to the order asfollows—

“WHEREAS on 28 November 2000 a conferencewas held pursuant to section 32 of the Act, at whichtime terms of settlement were agreed....”

20 The Commissioner then observed that this was an error,i.e. to find that terms of settlement were agreed, and thatthe letter of the Commission of 30 January 2001, whichwe have reproduced above at paragraph 9, is also an error.

21 The correspondence from the solicitors for Mr Lane dated6 December 2000 is quoted in part at page 11(AB) andreads as follows—

“ We write to confirm that the matter has now beensettled between the parties with the only outstand-ing matter being the execution of the Deed ofSettlement—now substantially settled between theparties—the payment of the settlement sum, and thefiling of the Notice of Discontinuance (which mustawait the execution of the Deed and payment of thesettlement sum).We shall write to you immediately if there are anydifficulties experienced in the settlement of the aboveApplication, which we anticipate should be com-pleted, and a Notice of Discontinuance filed withinthe next 10 days.”

(See page 35 of the Supplementary Appeal Book.)22 The Commissioner, having held that an error had been

made and that s.27(1)(m) of the Act, which provides apower to—

“correct, amend or waive any error, defect or irregu-larity whether in substance or in form.”

applied.23 The Commissioner also held that, to not exercise his

discretion to amend the error that was made would beruling out Mr Lane’s application to have his unfairdismissal conciliated or, alternatively, determined, andthat that would be a wrong exercise of his “obligations”under the Act. The Commissioner then determined torevoke the order which was made on 15 February 2001and deposited on 16 February 2001. This, therefore,effectively reinstated Mr Lane’s application and returnedit to a point of conciliation.

24 The Commissioner observed that he was not making anorder pursuant to s.27(1)(v) of the Act. He observed that,in respect of application No 440 of 2001, he would beasking the Registrar to “cease that file” and it would thenbecome part of application No 1039 of 2000. He observedthat the matters were, effectively, the same matter andthat the approach made to the Commission by applicationNo 440 of 2001 could have effectively been made bycorrespondence to the Commission because Mr Lane wasseeking that matter No 1039 of 2000 be reinstated orrevived.

25 The Commissioner then held that application No 440 of2001 would not be a separate application and that thisorder was being made pursuant to s.27(1)(m) of the Actor pursuant to the general power under s.26(1)(a) of theAct to act without regard to technicalities or legal form.

26 Thus, the orders of 16 February 2001 would be revokedand Mr Lane’s s.29 application would be returned toconciliation.

27 The appellant contended at first instance that theCommission did not have the power to entertainapplication No 440 of 2001 because, by virtue of the orderof 16 February 2001, the Commission was functus officioin respect of Mr Lane’s s.29 application. TheCommissioner did not consider this to be the case. Thematter was clearly intended to be finalised by theCommission on the premise that the settlement had beenachieved.

28 In addition, the Commissioner held that he was not functusofficio and that the slip rule should apply. He referred tothe judgment in Cook v Australian Postal Corporation[1997] 597 (FCA) in which it was said—

“the functus officio concept is referable only wherethe duty concerned has been finally performed by a


relevant order or award or decision and not wheresome mere interim or preliminary conclusion hasbeen reached; an interlocutory order may be setaside.”

29 (The term “functus officio” has been dealt with by theFull Bench of this Commission and by the IndustrialAppeal Court.)

ISSUES AND CONCLUSIONS30 This appeal is a narrow one. Part of the appeal relates to

its competence. That stems from the nature of the ordermade. At first instance, there was an application made torevoke the order made in application No 1039 of 2000,an order which was made and perfected.

31 That order, which was made and perfected, was clearly adecision, within the meaning of s.7 of the Act, where adecision is defined as follows—

““decision” includes award, order, declaration orfinding”

32 We should also add that a “finding” is defined in s.7 ofthe Act as follows—

““finding” means a decision, determination or rul-ing made in the course of proceedings that does notfinally decide, determine or dispose of the matter towhich the proceedings relate”

33 Further, because the order was perfected, it was an orderin its final form in that the depositing of the order in theoffice of the Registrar effected a compliance with s.36 ofthe Act.

34 The perfected order, by definition, constitutes also a“decision”, as defined, for the purposes of s.49 of theAct.

35 Thus, it was a decision which therefore gave a party tothe proceedings the right to institute an appeal against it.There was no doubt that the order correctly recorded themeaning of the court at the time.

36 The question then is whether the applicant at firstinstance, the respondent on this appeal, could validlyapply for the revocation of the order and whether theCommission at first instance had jurisdiction andpower to make the order.

37 It was submitted by the appellant that the Commission,having made the order of 16 February 2001 in applicationNo 1039 of 2000 which constitutes, as we have observed,a decision, was functus officio. It was plainly functusofficio; it had disposed of the matter before it by meansof an order which it said was made by consent and, infact, made the order.

38 The Commission had no more functions, once the orderwas perfected, which it could perform in relation to thematter. The Commission was therefore functus officio.

39 Further, it was submitted by the appellant, there was no“industrial matter” before the Commission.

40 There was no “industrial matter” because the Commissionhad heard and determined the matter and exhausted itsjurisdiction and powers. The Commission had made afinal and dispositive order in relation to the industrialmatter before it. The Commission was functus officiobecause it had discharged all of its functions and coulddo nothing more after the order was perfected, as it was(see AEEFEU and Another v Executive Director, BuildingManagement Authority 75 WAIG 2483 (FB) and the casescited therein; see also RRIA v AMWSU 70 WAIG 2083(IAC); ALHMWU v Metro Meat International Limited78 WAIG 813 (FB)).

41 Next, since the matter came before the Commission unders.32 of the Act, there were no more powers for it toexercise because the Commission had purported to makean order, based on an alleged agreement following aconciliation pursuant to s.32 of the Act, which order wasperfected. Once perfected, the order could only be dealtwith by this Commission and constituted by the FullBench pursuant to s.49 of the Act.

42 It was submitted by the respondent that the Commission,having made an error which it identified, was entitled tocorrect the original order pursuant to the “slip rule”.

43 First, there is no slip rule which exists unless it exists inRules of Courts (see Shaddock & Associates Pty Ltd andAnother v The Council of the City of Parramatta 151 CLR590, where the “slip rule” was contained in the Rules ofthe Court). There is no common law slip rule which wouldapply to this Commission. Such a power is contained ins.27(1)(m) of the Act. The Commissioner purported touse s.27(1)(m) as the basis of his power to make therevocation order. That section, however, commences withthe words “Except as otherwise provided in this Act”.S.49 and s.36 provide otherwise.

44 In addition, the Commissioner was not correcting an errorin substance or in form (or any slip) but, effectively andactually revoking an order which had been made,constituted by a single Commissioner and, in addition,which had been perfected.

45 Further, if “court” is taken to include this Commission,which is a court of record (see s.12 of the Act), and “acourt” includes the Full Bench sitting on appeal (seeLebeidi t/as Sugar Gum Restaurant v Napoli 81 WAIG1357 (IAC), s.34 forbids the Commission, too, dealingwith the order in the manner which it did. (There is nodefinition of the term “court” in the Act, save and exceptas follows (see s.7)—

““Court” means the Western Australian IndustrialAppeal Court continued and constituted under thisAct”

46 In any event, the error submitted to have been made wasnot an error in form or an error which would attract theslip rule, insofar as that rule is contained in s.27(1)(m) ofthe Act. Further, since this was not an error made in theexercise of the jurisdiction, it is clear there was not anerror made or that it was one of substance, within themeaning of s.27(1)(m) of the Act. We were not cited anyauthority for the meaning of the phrase “error in substanceor in form”, and no authority was cited which wouldestablish that, if there was an error, it was one of“substance”. It was certainly not one of “form”.

47 S.27(1)(m) of the Act, for those reasons, does not anddid not provide any power to the Commission at firstinstance to make the order which it did.

48 S.27(1)(v) of the Act gives no power, either, to make suchan order. S.27(1)(v) must be read in the context of all ofthe preceding powers prescribed in s.27(1). S.27(1)(v)confers a general power which is a catch-all for matterswhich have been expressly included. It is not to be readin isolation, but in the context of the specific powers whichprecede it (see RRIA v FEDFU 67 WAIG 315 (IAC)). Itprovides no power to correct orders which have beenperfected.

49 It is also necessary to observe that no head of power orjurisdiction is conferred on the Commission by s.26(1)(a)of the Act. That section does not confer a generaljurisdiction to do whatever is thought to be in accordancewith equity, good conscience and the substantial meritsof the case. There must first be a foundation in the Actitself for the exercise of the jurisdiction before s.26operates (see RRIA v ADSTE 68 WAIG 11 (IAC)(“Pepler’s Case”) per Olney J at page 20).

50 The order appealed against was also arguably a finding,as defined, because, by the order, the Commissioner didnot finally dispose of the proceedings, but it is usually inthe public interest that an order such as this, made inexcess of jurisdiction and power, be corrected. The appealshould be allowed to be made pursuant to the powerconferred on the Full Bench by s.49 of the Act, byreference to s.49(2a).

51 The order made at first instance was made withoutjurisdiction or power. It was incompetent and should bequashed.

52 We therefore upheld the appeal, for those reasons, andquashed the decision at first instance.


2001 WAIRC 03362WESTERN AUSTRALIAN

INDUSTRIAL RELATIONS COMMISSION.PARTIES AUSSIE ONLINE LIMITED (ACN 004

160 927), APPELLANTv.JOHN LANE, RESPONDENT


DELIVERED THURSDAY, 26 JULY 2001FILE NO/S FBA 36 OF 2001CITATION NO. 2001 WAIRC 03362_______________________________________________________________________________

Decision Appeal upheld and decision at firstinstance quashed.

AppearancesAppellant Mr S K Shepherd (of Counsel), by leaveRespondent Mr M L Bennett (of Counsel), by leave,

and with himMs L Boardley (of Counsel), by leave

_______________________________________________________________________________

Order.This matter having come on for hearing before the Full Benchon the 25th day of July 2001, and having heard Mr S K Shep-herd (of Counsel), by leave, on behalf of the appellant and MrM L Bennett (of Counsel), by leave, and with him Ms LBoardley (of Counsel), by leave, on behalf of the respondent,and the Full Bench having reserved its decision on the matterand having determined that reasons for decision therefor shallbe delivered at a future date, it is this day, the 26th day of July2001, ordered and declared as follows—

(1) THAT appeal No FBA 36 of 2001 be and is herebyupheld.

(2) THAT the decision of the Commissioner made onthe 8th day of June 2001 in matter No 440 of 2001be and is hereby quashed.

By the Full Bench(Sgd.) P.J. SHARKEY,

[L.S.] President.


INDUSTRIAL RELATIONS COMMISSION.PARTIES EMMANUEL KAPSANIS,

APPELLANTv.GOLDSPACE PTY LTD T/ASPARABURDOO INN, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P JSHARKEYCHIEF COMMISSIONER W SCOLEMANCOMMISSIONER S J KENNER

DELIVERED MONDAY, 27 AUGUST 2001FILE NO/S FBA 17 OF 2001CITATION NO. 2001 WAIRC 03625_______________________________________________________________________________

Decision Appeal dismissed.AppearancesAppellant No appearance by or on behalf of the

appellant.Respondent Ms M G Saraceni (of Counsel), by leave_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 These are the unanimous reasons for decision of the Full

Bench.2 This is an appeal whereby the abovenamed appellant, Mr

Emmanuel Kapsanis, by TRM Legal Services, Solicitors,on 10 April 2001, lodged an appeal against a decision ofthe Commission made on 20 March 2001 in matter No1465 of 1999. The Notice of Appeal, for reasons whichwe will express later in these reasons, did not complywith Regulation 29 of the Industrial RelationsCommission Regulations 1985 (as amended) (hereinafterreferred to as “the Regulations”).

3 By letter dated 10 April 2001, the abovenamed solicitorsadvised the Commission, inter alia, that Mr Kapsanis’residential address was Unit 19, 43 Kinsella Street,Joondanna WA 6060, and that his home telephone numberwas 9440-1004.

4 On 17 April 2001, there was filed in the Commission anotice that TRM Legal Services had ceased to act for MrKapsanis in the appeal and that he would act thereafter inperson.

5 By letter dated 8 May 2001, Deputy Registrar Buttel wroteto Mr Kapsanis at the above address, asking that MrKapsanis contact him if it was Mr Kapsanis’ intention toproceed with the appeal, because there were requirementsto be attended to. A further letter, in similar vein, wasforwarded on 15 June 2001 to the same address. Neitherletter was returned to the Commission, as not having beendelivered to Mr Kapsanis. Neither letter was answered.

6 On 20 July 2001, although there was no evidence ofservice of the Notice of Appeal, and no appeal bookshave been filed, Messrs Jackson McDonald, Solicitors,acting for the respondent company, sought orders pursuantto s.49(5)(a) and s.27(1)(a)(iv) of the Industrial RelationsAct 1979 (as amended) (hereinafter referred to as “theAct”) that the appeal be dismissed for “want ofprosecution” in accordance with the principles set out inAWU v Barminco Pty Ltd—Plutonic Project (2000) 80WAIG 3162 (FB).

7 The grounds in support of the application for orders todismiss the appeal are as follows—

“(a) the inadequacy of the notice of appeal in that itfails to comply with regulations 29(1) and (2) ofthe Industrial Relations Commission Regulations1985;

(b) the length of the delay in that the notice of ap-peal was filed on 10 April 2001 and, as at thedate of filing this application, no other steps havebeen undertaken such as to evince an intentionon the part of the appellant to have the matterproceed;

(c) the lack of or insufficiency of the explanation forthe delay;

(d) that there is no or no substantial evidence of hard-ship to the appellant if this appeal is dismissed,particularly given that the appellant does not seekreinstatement;

(e) that the respondent would be prejudiced if theappeal is allowed to proceed notwithstanding thedelay, given that the respondent is a companywhich is not trading and has not been trading sinceabout November 1999 and its directors are (dueto their statutory duties) prevented from dissolv-ing the company, or similar, given the currentappeal which the appellant is not prosecuting;

(f) that the respondent has a reasonable expectationthat it be left to enjoy the fruits of the judgment,but it cannot do so in the current circumstances;

(g) that the appellant has not responded to variouscommunications (both written and verbal) fromthe Registry of this Commission.”

8 A Declaration of Service was filed on 23 July 2001 inwhich one Brenda Kay Hoddinott, on behalf of theapplicant, declared that, on 20 July 2001, she served thisNotice of Application upon Mr Kapsanis “by pre-paid


post at Unit 19, 43 Kinsella Street, Joondanna WA 0606(sic)”. We are satisfied that it was so served.

9 On 1 August 2001, in response to a letter of 27 July 2001,Mr Kapsanis telephoned the Associate to the Presidentand advised his availability to attend a hearing of thisapplication. He advised that, inter alia, he was availableon 20 August 2001, and the Associate advised him thathe would be forwarded a Notice of Hearing.

10 A Notice of Hearing was forwarded to the same addresson 2 August 2001. Again, the notice was not returned asbeing incapable of delivery to the addressee, Mr Kapsanis.

11 On 14 August 2001, Mr Kapsanis telephoned theAssociate to the President saying that he had receivedthe Notice of Hearing. He was informed by the Associate,inter alia, that it would be necessary for him to attend thehearing of this application in the Commission on 20August 2001.

12 The Full Bench, being satisfied that the Notice of Hearinghad been duly served within the meaning of s.27(1)(d) ofthe Act, proceeded, there being no appearance by theappellant (respondent), to hear the respondent’sapplication (see the discussion of the Full Bench’s powersby the Industrial Appeal Court in Lebeidi t/as Sugar GumRestaurant v Napoli (2001) 81 WAIG 1357 (IAC)).

13 It was asserted from the bar table by Counsel for therespondent, Ms Saraceni, as we understood it, that theappellant had been engaged by the respondent onprobation and that he was dismissed after 24 hours, andfairly dismissed, having himself repudiated the contract.If that were so, it was open to find that there was nodismissal, let alone that it may have been unfair. Thatassertion was not denied and we accept that this was thecase for the respondent on appeal. There is no merit in it.

14 It was submitted that there was no merit in the appealwhich had been brought to the attention of the Full Bench.There was none, in fact, brought to the attention of theFull Bench.

15 Further, other than his solicitors having filed a Notice ofAppeal on 10 April 2001 and, presumably, having servedit because the respondent made this application, no otherstep has been taken in the proceedings. No Declarationof Service of the Notice of Appeal has been filed. Noappeal books have been filed or served. No applicationsto extend time within which to file or serve appeal bookshave been made.

16 The Notice of Appeal itself is defective in that it does notspecify any particulars of the allegations that the decisionwas against the weight of the evidence or of part of theevidence, nor does it specify any particulars of theallegation that the decision was wrong in law (seeRegulations 29(1) and 29(2) of the Regulations).

17 The notice should not have been accepted in that form bythe Registrar or his officers. The appeal should, in theabsence of any application to amend or any voluntaryprovision of particulars, be dismissed for that reason alonein the circumstances of this case.

18 The Notice of Appeal was filed over four months agoand no intention has been evinced and/or no step taken toproceed with the matter. There was no explanation madeor sought to be made to the Full Bench for this delay.

19 There is no evidence of hardship on the count of a lostchance of reinstatement if this appeal is dismissed becauseno reinstatement was sought at first instance. The loss ofthe opportunity to make a claim for compensation, if theappeal is now dismissed, is counterbalanced, in thecircumstances of this application, by the fact that, as weaccept, the assertion not having been contradicted, thatthe liquidation of the company has been delayed pendingthe prosecution of the application at first instance andthis appeal.

20 Further, the respondent should now be permitted, afterover four months with no further step taken to proceedwith the appeal, to enjoy the fruits of its “judgment”.That is much more the case when there is no submissionas to the merit of the appeal to the Full Bench on behalfof the appellant. Moreover, the Full Bench, in our opinion,is entitled to conclude on the submissions made that the

merit of the appeal lies with the respondent.21 Further, the history of taking no steps to proceed with

the appeal beyond the filing of the notice (and presumablyservice) is completed by the failure of the appellant toappear to oppose this application; nor has he respondedto requests from a Deputy Registrar to take further stepsin the matter (see the principles laid down in AWU vBarminco Pty Ltd—Plutonic Project (FB)(op cit)).

22 S.26(1)(c) of the Act requires the Commission to considerthe interests of those directly or indirectly affected; inthe case of an unrepresented person and in an applicationsuch as this, that consideration must be more careful thanusual but, in this case, the appellant has done nothing forfour months, asserted no merit or gave no explanation,remained content with a defective notice, and failed torespond to the Commission’s officers or appear upon thisapplication.

23 Having regard to the time elapsed and s.26(1)(a) of theAct, the interests of the respondent outweigh those of theappellant, the enjoinder to the maximum of expeditioncontained in s.6(c) of the Act being relevant. For all ofthose reasons, we would find that the equity, goodconscience and the substantial merits of the case lie withthe respondent’s application.

24 Pursuant to s.49(5)(a) of the Act (and, if necessary,s.27(1)(a)) and, for those reasons, we agreed that theapplication herein should be acceded to and the appealdismissed.


INDUSTRIAL RELATIONS COMMISSION.PARTIES EMMANUEL KAPSANIS,

APPELLANTv.GOLDSPACE PTY LTD T/ASPARABURDOO INN, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEY

CHIEF COMMISSIONER W SCOLEMANCOMMISSIONER S J KENNER


Decision Appeal dismissed.AppearancesAppellant No appearance by or on behalf of the

appellant.Respondent Ms M G Saraceni (of Counsel), by leave______________________________________________________________________________

Order.The preliminary application made on behalf of the respond-ent having come on for hearing before the Full Bench on the20th day of August 2001, and there being no appearance byor on behalf of the appellant and having heard Ms M G Saraceni(of Counsel), by leave, on behalf of the respondent, and theFull Bench being satisfied that the said appellant was dulyserved with a notice of these proceedings pursuant to s.27(1)(d)of the Industrial Relations Act 1979 (as amended) (hereinaf-ter referred to as “the Act”) and, further, the Full Bench havingdetermined the preliminary application and having decidedthat reasons for decision should issue at a future date, it is thisday, the 20th day of August 2001, ordered that the applicationmade on behalf of the respondent for orders pursuant tos.49(5)(a) and 27(1)(a)(iv) of the Act be and is hereby grantedand appeal No. FBA 17 of 2001 be and is hereby dismissed.


[L.S.] President.



INDUSTRIAL RELATIONS COMMISSION.PARTIES KINGSCAPE HOLDINGS PTY LTD,

APPELLANTv.GARY KENNETH SMITH, DONSAMUEL EVILL, RESPONDENTS

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P JSHARKEYCHIEF COMMISSIONER W SCOLEMANCOMMISSIONER J F GREGOR


Decision Appeal dismissed.AppearancesAppellant Mr O C Moon, as agentRespondents Ms E M Peak, as agent_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 This is an appeal against the whole of the decision of the

Commission, constituted by a single Commissioner, givenon 20 April 2001 in matters No 1377 and 1378 of 2000.The appeal is brought pursuant to s.49 of the IndustrialRelations Act 1979 (as amended) (hereinafter referred toas “the Act”).

2 The decision made in those matters was, formal partsomitted, in the following terms—

1. DECLARES that Mr Gary Smith and Mr DonEvill were harshly, oppressively and unfairly dis-missed from their employment as a machineoperator and a site supervisor respectively by therespondent on or about 11 August 2000.

2. DECLARES that reinstatement of Mr Smith andMr Evill is impracticable;

3. ORDERS the respondent to pay to Mr Smithcompensation in the sum of $8,129.16 payablein instalments as follows: (a) by the end of April2001 the sum of $3,500.00; (b) by the end ofMay 2001 the sum of $3,500.00; and (c) by theend of June 2001 the sum of $1,129.16 less anyamount payable to the Commissioner of Taxa-tion pursuant to the Income Tax Assessment Act1936 and actually paid.

4. ORDERS the respondent to pay to Mr Evill com-pensation in the sum of $18,783.73 payable ininstalments as follows: (a) by the end of April2001 the sum of $3,500.00; (b) by the end ofMay 2001 the sum of $3,500.00; by the end ofJune 2001 the sum of $5,870.84 and by the endof July 2001 the sum of $5,912.89 less anyamount payable to the Commissioner of Taxa-tion pursuant to the Income Tax Assessment Act1936 and actually paid.”

GROUNDS OF APPEAL3 It is against that decision that the appellant now appeals

on the following grounds—“1. The learned Commissioner erred in law in grant-

ing the Applicants’ (Respondent’s) Applicationpursuant to section 29 of the Industrial RelationsAct, 1979 (WA) (“the Act”).

2. The learned Commissioner erred in law in fail-ing to exercise jurisdiction pursuant to section113 of the Act and Regulation 94 of the Indus-trial Relations Commission Regulations, 1985(WA) (“the Regulations”), in that, the learnedCommissioner denied the Appellant justice by

ordering the Appellant’s ‘instructing officer’ fromthe Court prior to and for the duration of the hear-ing of the Respondents’ cases, and therebydenying the the(sic) Appellant natural justice andprejudicing its capacity to effectively defend it-self.

3. The learned Commissioner erred in law in fail-ing to exercise jurisdiction pursuant to section113 of the Act and Regulations 86 and 94, in that,the learned Commissioner denied the Appellantjustice by ruling that, the Respondents’ witnessstatements be accepted and entered into evidencebefore the Commission, and thereby disregard-ing the practice and procedure of the Commissionand prejudicing the Appellant’s capacity to ef-fectively defend itself.

4. The learned Commissioner erred in law in fail-ing to exercise jurisdiction pursuant to section113 of the Act and Regulations 86 and 94, in that,the learned Commissioner denied the Appellantjustice by ruling that, the Appellant’s ‘instruct-ing officer’ may not read the Respondents’ witnessstatements prior to the hearing of the Respond-ents’ cases, and thereby disregarding the practiceand procedure of the Commission and prejudic-ing the Appellant’s capacity to effectively defenditself.

5. The learned Commissioner erred in law in fail-ing to exercise jurisdiction pursuant to section113 of the Act and Regulations 94, in that, thelearned Commissioner denied the Appellant jus-tice by ordering that, the Appellant’s ‘instructingofficer’ upon adjournment of proceedings whilstunder cross-examimnation(sic) may not commu-nicate with his Agent, and thereby prejudicingthe Appellant’s capacity to effectively defend it-self.

6. The learned Commissioner erred in law and factin failing to give sufficient weight to the evidenceand submissions of the Appellant with respect tothe nature of the industry, the significant down-turn in the Appellant’s work and the consequentialredundancies.

7. The learned Commissioner erred in law and factin failing to give sufficient weight to the princi-ple that the failure of the Appellant to beprocedurally fair in the termination of the Re-spondents’ employment is but one one(sic) matterto be weighed in the balance.

8. The learned Commissioner erred in law in award-ing excessive compensation to the Respondents.

Accordingly, the Appellant seeks an Order of the FullBench that the Decision of the Commission in matters1377 and 1378 of 2000 be quashed.”

BACKGROUND4 The application, No 1377 of 2000, at first instance, which

was opposed by the appellant, was listed for hearingbefore the Commission, sitting at Bunbury, on 20 March2001 at 10.30 am. Because of an error in his instructions,the advocate for the respondents, Mr Moon did not appearuntil 2.15 pm that day, the time to which the matter hadbeen stood down. When the Commission convened at2.15 pm, there was an application that the two applications(1377 of 2000 and 1378 of 2000) be heard together, whichwas not objected to. The Commissioner so ruled.

5 Mr Stubbs, Counsel for Mr Gary Kenneth Smith and MrDon Samuel Evill, the applicants at first instance andrespondents to this appeal, also proposed, because of thetime lost, to proceed by way of Mr Smith and Mr Evillgiving their evidence in chief by written statements. Therewas no objection to that course. However, at that time,the Commissioner did not rule on that proposal orapplication.

6 Mr Stubbs then sought an order for witnesses out of court.He specifically referred to Mr Trevor John Barrett whomhe identified as an active participant in the matter. MrStubbs submitted that, because matters of credibility


would arise, Mr Barrett should not be present duringcross-examination and should not have access to thewitness statements. Mr Moon, on behalf of the respondentat first instance, submitted that Mr Barrett was hisinstructing officer on behalf of the company. Mr Barrettwas its Operations Manager and not a Director orSecretary. It was submitted by Mr Stubbs that there wereDirectors present in Bunbury to give instructions. Indeed,Mr Moon said in submissions that a Director was presentin Bunbury. Mr Barrett’s subsequent evidence was thatMr Peter Tolmachoff, a Director, was involved in decisionsconcerning the applicants.

7 The Commissioner concluded that, because there wouldbe evidence of various conversations and the prospect ofconflict in evidence, it would defeat the purpose of theorder if Mr Barrett were to remain in court. As it turnedout, the credibility of the witnesses was a very live issue.There is no suggestion on the record, nor was it otherwisesuggested to the Full Bench, that any Director or otherofficer attended on behalf of the respondent to instruct.

8 The Commissioner therefore ordered that witnesses beexcluded from the court, including Mr Barrett, and thathe not have a copy of or access to the witness statementsof Mr Smith and Mr Evill.

9 Mr Smith and Mr Evill were called. Their statements wereproduced and admitted in evidence and they were cross-examined by Mr Moon. Mr Barrett was then called andhe gave evidence in chief and was cross-examined. Theonly evidence given for the applicants were given by them.The only evidence for the appellant, the respondent atfirst instance, was given by Mr Barrett.

10 When the Commission was to adjourn that day, Mr Barrettwas still in the witness box and was being cross-examined.He was directed not to communicate with anyone,including Mr Moon, overnight. However, in the case ofany communication proposed to take place with MrMoon, this was to be notified first to Mr Stubbs. Therewas not an absolute prohibition of communicationbetween the advocate and Mr Barrett.

11 I now turn to the substantial matters.12 Mr Smith and Mr Evill made applications to the

Commission pursuant to s.29(1)(b)(i) of the Act allegingthat they were unfairly dismissed by a company called “J& P Metals Pty Ltd” on 11 August 2000. Mr Evill, inapplication No 1378 of 2000, claimed also to theCommission that he was denied a contractual benefit, thatbenefit being in the form of reasonable notice which, hesays, ought to have been implied in his contract ofemployment.

13 Both Mr Smith and Mr Evill were employed by theappellant in or about July 2000 pursuant to the termsof various building trade construction awards. Theywere employed in the demolition of works at theBunbury Power Station, at Bunbury in the State ofWestern Australia. Mr Evill was employed as a SiteSupervisor, and the Commissioner at first instanceobserved that he was not, strictly speaking, coveredby the terms of an award. Mr Smith was employed asa machine operator.

14 Mr Smith and Mr Evill said that they were employed ona permanent full-time basis. This was disputed by theappellant which alleged that both of them were employedon a casual basis, or as it was alternatively put, on an “asneeded basis”.

15 They alleged that they were dismissed from the appellantwithout warning of any kind on or about 11 August 2000,and they alleged also that no reasons were advanced bythe appellant for their dismissal.

16 Mr Smith and Mr Evill also alleged that they weredismissed by the appellant because of their membershipof the Construction, Forestry, Mining and Energy Union,Western Australian Branch (hereinafter referred to as “theCFMEU”), which is an organisation of employees, as thatis defined in s.7 of the Act. In connection with that, therewas evidence before the Commission of an incidentinvolving an organiser of that organisation which occurredon or about 8 or 9 August 2000.

17 The argument for the appellant’s position was, in effect,that Mr Smith and Mr Evill had both been made redundantbecause of the lack of work at the inner harbour lay downarea.

18 On or about 9 August 2000, Mr Smith and Mr Evill weretransferred to the lay-down area in the inner harbour. Sometwo days’ later, on 11 August 2000, both were told thatthey were no longer required by the appellant and bothhad their employment terminated without notice on thatday. Mr Smith and Mr Evill’s employment, on the day inquestion, was actually terminated by a person by the nameof Mr Phil McElhiney, who was not called to giveevidence in the proceedings at first instance by theappellant.

19 The Commissioner preferred the version of the events asoutlined in Mr Smith and Mr Evill’s evidence, in the caseof any conflict with the appellant’s evidence. He foundthat the evidence adduced through Mr Evill wasparticularly persuasive and found him to be an impressivewitness. Further, the Commissioner found that Mr Smithand Mr Evill’s evidence was generally consistent, but henoted that that evidence was, at least in part, confirmedby evidence as contained in a statutory declarationtendered as exhibit A3 and declared by Mr RaymondCunningham (see page 108 of the appeal book (hereinafterreferred to as “AB”)). Mr Cunningham, however, was notavailable for cross-examination and reduced weight wasattached to his evidence.

20 In the end, preferring the evidence of Mr Smith and MrEvill, the following findings were made by theCommissioner—

(a) That Mr Smith and Mr Evill were employed bythe appellant on the works at the Bunbury PowerStation demolition project.

(b) They were both told by the appellant, throughMr Barrett who was then apparently represent-ing the employer, that the estimated duration ofthe works was of some six months, or at least ofan ongoing nature.

(c) The Commissioner rejected the submission thatMr Smith and Mr Evill were to be employed on acasual or intermittent basis or for work on pon-toons.

(d) That both Mr Smith and Mr Evill looked at theworks concerned, did a site inspection, undertookpreparatory work and commenced on the job onor about 31 July 2000, working without appar-ent incident until about 8 August 2000.

(e) The Commissioner was satisfied and found thatthere was no issue with the work performance ofMr Smith or Mr Evill and, indeed, it was com-mon ground that they were very good and capableemployees.

(f) On 8 August 2000, an incident occurred when anorganiser from the CFMEU attended the sitewhich led to expressions of concern by the ap-pellant which would appear to be on the urgingsof the principal at the site, Trio Demolitions, butthe Commissioner noted that no evidence was ledfrom senior executives of either the appellant whowere involved or indeed any persons on behalfof Trio Demolitions.

(g) The Commissioner found that the next day, MrSmith and Mr Evill were transferred to the laydown area in the inner harbour, without any realexplanation, and on 11 August 2000, both weredismissed without notice.

(h) The works commenced on the Bunbury PowerStation site demolition project were still ongo-ing.

(i) Mr Evill, after dismissal, took immediate stepsto obtain other work and had mitigated his loss.He has earned some $20,300.00 until the end ofJanuary 2001.

(j) In the case of Mr Smith, the Commissioner foundthat he commenced employment for a short pe-riod at a cattle station between August and


September 2000 and, with a new employer sincelate November 2000, he has earned some$18,900.00 or thereabouts until about the mid-dle of February 2001.

(k) The Commissioner did not accept on the evidencethat Mr Smith’s refusal of further employmentby the appellant after his dismissal meant in anyway that he had not taken reasonable steps tomitigate his loss. It was open to find that Mr Smithdid not accept that position by reasonable treat-ment meted out to him by the appellant.

(l) The Commissioner found that, applying the prin-ciples laid down in Gibson v Bosmac Pty Ltd 60WAIG 1 and Shire of Esperance v Mouritz 71WAIG 891, Mr Smith and Mr Evill were dis-missed harshly, oppressively and unfairly by theappellant.

(m) That reinstatement or re-employment was imprac-ticable for the purposes of s.23A of the Act.

(n) That Mr Smith and Mr Evill were entitled to anaward of compensation and that Mr Evill was alsoentitled to a period of notice.

ISSUES AND CONCLUSIONS21 The grounds of appeal in this case were directed, in part,

to a number of procedural matters. They were directed toalleged miscarriages of the exercise of discretion; first,in finding that Mr Smith and Mr Evill had been unfairlydismissed and, second, in relation to the amount ofcompensation for loss which the Commissioner assessedand ordered to be paid.

22 The finding of unfair dismissal and as to the compensationto be paid are both discretionary decisions, as that termis defined in Norbis v Norbis (1986) 161 CLR 513 andCoal and Allied Operations Pty Ltd v AIRC (2000) 74ALJR 1348 (HC). In matters of the exercise of discretion,of course, the appellant must establish that the exerciseof the discretion miscarried, as such miscarriages arecharacterised in House v The King [1936] 55 CLR 499and Gromark Packaging v FMWU 73 WAIG 220 (IAC).

Procedural Matters—Natural Justice23 There is a set of principles which has developed over the

years in relation to the exclusion of witnesses from a courtor tribunal hearing. These have developed in both civiland criminal proceedings. Such orders are common inthis jurisdiction and elsewhere.

24 In practice, a person who is to testify often remains outsidethe court until called upon the give evidence so as not tobe able to tailor the evidence to what has gone before.The following principles might, I think, be of assistance—

(a) There is no rule of law in this jurisdiction requir-ing the exclusion of witnesses if theCommissioner has not exercised its discretion tomake an order.

(b) On the application of either party, witnesses areordered to remain outside and beyond the hear-ing of the court until required to give evidence(see Southey v Nash (1837) 7 C & P 632, 173 ER277; R v Bassett [1952] VLR 535 (FC); Hollandv Evans [1959] VR 54; R v Tait [1963] VR 520(FC)).

(c) The Commissioner (a judge) may also order awitness who is being examined to leave the courtwhile legal argument takes place about that wit-ness’ evidence.

(d) Whilst there is doubt about whether the partiesmay be ordered from the court if they behaveproperly, in practice in other jurisdictions theyusually remain or, if the party is not an individualbut a corporation or organisation, a person is en-titled to remain to instruct counsel or conduct hisor her own case (see Charnock v Dewings (1853)3 C & K 378, 175 ER 597; Selfe v Isaacson (1859)1 F & F 194, 175 ER 688; and Taylor “Law ofEvidence”, 12th Edition (1931) para 1400 n (h)).

(e) A solicitor for a party may usually remain, his/her assistance being, in most cases, absolutely

necessary to the conduct of the case (but see Tranv Magistrates’ Court of Victoria [1998] 4 VR 294at 298 (CA) where a different approach wastaken).

(f) Expert witnesses are generally permitted to re-main in court (see R v Tait (op cit) and Tomlinsonv Tomlinson [1980] 1 WLR 322 at 327, 1 All ER593 at 595 per Arnold P).

(g) A witness familiar with complicated exhibits maywell be allowed to remain (see R v Tait (op cit) andR v Bicanin (1976) 15 SASR 20 at 26 (FC) and seegenerally “Cross on Evidence” para 17055).

(h) In The London Chartered Bank v Lavers (1855)SCC (NSW) 884 (selected by Gordon Legge J),the Full Court held that a party to a cause whocontemplates giving evidence for himself has aright to remain in court for the conduct of hiscase and is not liable to exclusion as are otherwitnesses. That is a view generally taken in thisCommission.

(i) If a party, or someone competent to instruct, isexcluded, except for bad behaviour, it would gen-erally be found on authorities such as The LondonChartered Bank v Lavers (op cit) that, since thatperson is not present to hear the case against himor her, that exclusion of that person will effect adenial of natural justice, because the party is notpresent to hear the case against him. Further, insuch a case, it is not certain that the rule in Steadv State Government Insurance Commission[1986] 161 CLR 141 (HC) would apply.

(j) Subject to what I have said, the reasons for deci-sion of the Full Bench of the Australian IndustrialRelations Commission in Finnegan v G M Mel-bourne Holdings Pty Ltd (unreported) 582/98 MPrint Q1220 (25 May 1998) is of assistance.

25 In this case, however, there was no exclusion of theappellant, the respondent at first instance, from theproceedings. One of its officers was in Bunbury and couldhave been present. All that occurred was that a witnessfor the appellant was excluded who, as was clear and asit turned out to be, was to give important evidence basedon credibility.

26 It is trite law that the rules of natural justice apply in thisCommission

27 The appellant was not deprived of the opportunity to bepresent to hear the evidence against it, through an officeror to instruct its agent through any other officers or otheremployees; particularly since Mr Barrett admitted inevidence that he was part of a team giving instructions tothe appellant’s representatives. The exclusion of anindividual would not be so readily justified. There wasno denial of natural justice.

28 Further, whether a witness or witnesses should beexcluded is not, as was submitted on behalf of theappellant, a matter of usage or practice, although similarorders are often made. The making of such an order callsfor the exercise of a discretion in accordance withs.27(1)(v) of the Act. In the exercise of the power in court,there was nothing done contrary to or required to be donepursuant to the Industrial Relations CommissionRegulations 1985 (as amended).

29 In this case, for those reasons, there was no denial ofnatural justice or of procedural fairness. In any event, noobjection was pursued by Mr Moon at first instance andthe right to object can now properly be deemed to havebeen waived (see Vakauta v Kelly 87 ALR 633 (HC)).

30 Further and alternatively, in accordance with the principlein Stead v State Government Insurance Commission (HC)(op cit), the appellant did not assert, nor was it sought toestablish, that compliance with the requirements of naturaljustice could have made any difference to the outcomeor, in particular, that the denial of natural justice deprivedit of the possibility of a successful outcome. Further, itis, within the ratio of that case, open to the Full Bench,therefore, to find that a properly conducted trial couldnot possibly have produced a different result.


31 I say that subject to my observations as to the applicabilityof Stead v State Government Insurance Commission (HC)(supra).

The Order forbidding the revelation of the writtenstatements of Smith and Evill to Barrett32 A similar ground of appeal related to this order. Had the

evidence in chief of Mr Smith and Mr Evill been givenorally, Mr Barrett would not have heard such evidencebecause he was excluded from the court. The writtenstatements which took the place of oral evidence in chiefonly came into being to save time because the matter hadbeen delayed. It is noteworthy that there was no order,nor did the appellant volunteer to give a copy of MrBarrett’s statement or proof to Mr Smith and Mr Evill’scounsel or solicitors.

33 Again, there is no usage. The order was an order properlymade within the discretion and power of the Commissionpursuant to s.27(1)(v) of the Act and properlycomplemented the order for witnesses to remain outsidethe court. It was again open to an officer to be present tohear the evidence and instruct the advocate for theappellant. Further, no objection was taken to this course.Again, too, within the principle in Stead v StateGovernment Insurance Commission (HC)(op cit), therewas no submission that, if the order had not been made,a different outcome could have been achieved.

The Direction not to discuss matters with Mr Barrettovernight whilst he was being cross-examined34 There is a rule of professional conduct for barristers that

they not communicate with a witness called by themwhilst that witness is undergoing cross-examination,without advising their opponent or the court, or that sucha rule was not applicable (as it was not). Even if therewas not, the order was properly made. That direction ofthe Commission properly reflected that sort of approachand properly complemented the order for witnesses outof court. Further, such an order should be made, subjectto necessary exceptions. In this case, too, there was noprohibition upon Mr Moon communicating with MrBarrett, in any event, provided prior notice was given toMr Stubbs. Nothing was said at first instance or beforethe Full Bench that any communication was made or wasneeded to be made.

35 There was no suggestion that such communication wasattempted, even though it was open to do so within theterms of the direction. Further, within the principle inStead v State Government Insurance Commission(HC)(op cit), the possibility of a successful outcome, ifthe order had not been made, was not canvassed beforethe Full Bench. For those reasons, there is no merit inthat ground.

Did the Commissioner err in finding the dismissal unfair?36 The grounds of appeal contained allegations that the

Commissioner erred in law and in fact in failing to givesufficient weight to the evidence and submissions of theappellant with respect to the nature of the industry, thesignificant downturn in the appellant’s work and theconsequential redundancies, and, further, to paraphrase,attached too much weight in deciding whether thedismissal of Mr Smith and Mr Evill was unfair to theconsideration of procedural unfairness. It should beobserved that Gronow v Gronow 29 ALR 129 (HC) isauthority for the proposition that an appellate court shouldbe slow to overturn a primary judge’s discretionarydecision on grounds which only involve conflictingassessments of matters of weight.

37 In this case, the Commissioner considered the submissionof the agent for the appellant which was, in effect, thatboth Mr Smith and Mr Evill were made redundant througha lack of work at the inner harbour in Bunbury. However,the Commissioner, having heard and seen the witnesses,preferred the evidence of Mr Smith and Mr Evill to thatof Mr Barrett. He said that he preferred their evidencewithout hesitation.

38 Further, the Commissioner noted that there was littlecross-examination of Mr Smith and Mr Evill, that theirevidence was part confirmed in the evidence by statutory

declaration of Mr Cunningham and that he found Mr Evillwas a particularly impressive witness. He therefore foundthat they were employed for the duration of the BunburyPower Station project, that the estimated duration of thework was six months, that they were not employed on acasual or intermittent basis, or to work on pontoons, and,further, that they were good and capable employees.

39 The Commissioner then found that Mr Smith and Mr Evillwere, on 9 August 2000, after an incident involving aCFMEU organiser on or about 8 August 2000, transferredto the lay down area in the inner harbour without any realexplanation and that the works on the Bunbury PowerStation were still ongoing.

40 Based on those findings, the Commissioner, correctlyobserving that much of the evidence was not controvertedin any substantial form, did not accept that, on theevidence, there was any good reason for the dismissal ofMr Smith and Mr Evill. He also found that it was open toconclude that the dismissal of Mr Smith and Mr Evillwas by reason of a prohibited reason under the Act.

41 In the alternative, the Commissioner found that, if therewas a redundancy, then there was no compliance withthe obligations cast upon the appellant by the MinimumConditions of Employment Act 1993 (hereinafter referredto as “the MCE Act”), and in particular, Part 5. Thoseprovisions require an employer to properly and adequatelyconsult in relation to significant change, significant effectand redundancy.

42 In this case, the Commissioner clearly accepted theevidence of Mr Smith and Mr Evill. It was not alleged inthe grounds of appeal that he erred in so finding. Theground was confined to an attack on the weight attachedby the Commissioner to the evidence given. It was not aquestion of weight, but one of credibility. TheCommissioner found that he preferred the evidence ofMr Smith and Mr Evill over the evidence of Mr Barrett.It followed that he accepted their evidence and not MrBarrett’s and made findings accordingly.

43 The appellant did not, in any event, establish that theCommissioner at first instance, in making findings basedon his opinion of the credibility of the witnesses, hadmisused his advantage in seeing and hearing them. Forthose reasons, that ground is not made out.

44 The appellant’s agent, however, argued this ground as ifit alleged that the findings made as to fact were made inerror. If that were a valid approach, which it was not, Imake the following findings and observations.

45 The Commissioner, in any event, had the advantage ofseeing and hearing the witnesses at first instance. TheFull Bench should not interfere with those findings, unlessthe Commission has misdirected itself as to the evidenceor has misused the advantage which it enjoyed in seeingand hearing the witnesses at first instance.

“A finding of fact by a trial judge, based on the cred-ibility of a witness, is not to be set aside because anappellate court thinks that the probabilities of thecase are against—even strongly against—that find-ing. If the finding depends to any substantial degreeon the credibility of the witness, the finding muststand unless it can be shown that the judge has failedto use or has palpably misused his advantage, or hasacted on evidence which was inconsistent with factsincontrovertibly established by the evidence or whichwas glaringly improbable.”

(See Devries and Another v Australian National RailwaysCommission and Another [1992-1993] 177 CLR 472) (seealso State Rail Authority of New South Wales v EarthlineConstructions Pty Ltd (in liq) (1999) 73 ALJR 306 andGilmore and Another v Cecil Bros and Others 78 WAIG1099 (IAC)).)

46 I would first observe that nothing in the submissions wasdirected to establishing that there was an error of thattype made. In this case, it is manifestly clear, as I haveobserved above, that the findings of the Commissioner atfirst instance depended to a very substantial degree onthe credibility of the witnesses. He made it quite clearthat he regarded Mr Evill and Mr Smith, and particularly


Mr Evill, as credible witnesses compared to Mr Barrett,and nothing was submitted to the Full Bench whichattacked that finding. Indeed, a fair reading of Mr Barrett’sevidence reflects areas of contradiction and not infrequentfailures to recall important matters, which might properlylead to doubts about his credibility.

47 Further, the respondents, the applicants at first instance,were not shaken in cross-examination and there was, inany event, little cross-examination on the terms of theiremployment and the circumstances surrounding theirdismissal. Having accepted the evidence, theCommissioner made a number of findings of fact. Thesewere—

(a) That Mr Evill and Mr Smith were employed towork as supervisor and operator respectively onthe Bunbury Power Station demolition project.

(b) That the appellant estimated that this project (and,therefore, their employment) would last more thansix months.

(c) That Mr Evill and Mr Smith were not casualemployees.

(d) That Mr Evill and Mr Smith were not engaged towork to unload pontoons brought from Beenupat the lay down area at the Bunbury Inner Har-bour.

(e) That they worked without incident from 31 July2000 to 8 August 2000 on the Bunbury PowerStation project. It was open to find that they wereso employed because of their experience and abili-ties.

(f) That there was no issue as to their work perform-ance.

(g) That, on 8 August 2001, there was an incidentinvolving an organiser from the CFMEU whichled to expressions of concern by the appellant.Indeed, it was open to find that Mr Barrett madeit clear that the head contractor did not want aunion site, that the fact that Mr Smith and MrEvill were union members was putting the con-tract with Trio Demolitions in jeopardy and thatMr Evill should tear up his union card.

(h) That, on the next day, Mr Smith and Mr Evillwere moved from the Bunbury Power Station tothe lay down area at the Inner Harbour withoutany real explanation.

(i) That, two days later, Mr Smith and Mr Evill weredismissed without notice.

(j) That the Bunbury Power Station demolition isstill ongoing. Indeed, the evidence was that itwould be a lengthy project.

(k) That Mr Smith and Mr Evill had mitigated theirloss.

48 Once the Commissioner made a finding that he did acceptMr Smith and Mr Evill’s evidence, it was quite clear thathe did not accept the appellant’s version of events and ofthe dismissal and the reason therefor. That meant that hedid not accept that the dismissal of these employees arosefrom the nature of the industry, a downturn in work and anumber of redundancies. There was no evidence of thiswhich he accepted. Indeed, having accepted Mr Smith’sand Mr Evill’s evidence, it was open to him to find as Ihave outlined above.

49 The Commissioner found that Mr Smith and Mr Evillwere specifically employed for a period of over six monthsfor the Bunbury demolition project, which was ongoing.It was open to him to so find. Once he accepted theirevidence, it was also open to find that their dismissal wasdirectly occasioned because Mr Barrett made it clear thatthere was a substantial problem caused by theirmembership of the CFMEU (see pages 73-77, 92-94(AB)).

50 This was followed the next day by their removal fromthe power station site to the lay down area and thendismissal two days later. Because Mr Barrett’s evidencewas disbelieved, as it was open to do, there was no credibleevidence of any contract to transport pontoons and no

documentary evidence of the termination of such acontract (see pages 58 to 62 of the transcript at firstinstance (hereinafter referred to as “TFI”)). There wasthe credible evidence of Mr Evill and Mr Smith, but therewas no mention to them of pontoons.

51 Having disbelieved Mr Barrett, as it was open to him todo, the Commissioner disbelieved any aspect of hisevidence, insofar as it conflicted with that of Mr Smithand Mr Evill. It followed that the Commissioner did notbelieve and did not accept that other employees were notemployed at the same time. There was no other evidenceof any of those matters than Mr Barrett.

52 It was open to find that the real reason for the transferand dismissal and the only evidence of any difficulty inthe employment relationship was that Mr Smith and MrEvill were members of a union, that an organiser of thatunion had visited the site and that this caused concernsfor the appellant, such that it dismissed them so that itscontract or relationship with the head contractor, whichdid not want a union site, would not be jeopardised.

Did the Commissioner adequately apply the principle thatthe failure of the appellant to be procedurally fair was butone matter to be weighed in the balance?53 The well known principle in Shire of Esperance v Mouritz

(IAC)(op cit) applies. That case was followed by theCommissioner (see page 28(AB)) where he observed thata lack of procedural fairness in matters such as these canbe an important circumstance. That observation followswhat Kennedy J said at page 895 (Nicholson J expressingsimilar views at page 899). Kennedy J said—

“In my opinion, any breach of the rules of naturaljustice was a relevant circumstance in the determi-nation of the critical question as to whether thedismissal was harsh or unjust. Whether an employer,in bringing about a dismissal, adopted procedureswhich were fair to the employee is an element indetermining whether the dismissal was harsh or un-just—see the Law of Employment, Macken McCarryand Sappideen, 3rd Edn 277-8, and the authoritiesthere cited. In some cases, this can be a most impor-tant circumstance. But in such a case as the present,no question of the invalidity of a decision, as such,falls for determination. The case does not turn sim-ply on the respective legal rights of the parties.”

54 In this case, the Commissioner found that the dismissalwas both substantially and procedurally unfair. He didnot misapply the decision in Shire of Esperance v Mouritz(IAC)(op cit). It was open to the Commissioner to find ashe did. There was no error in his so doing.

Was there any error in the assessment of compensation?55 Neither applicant at first instance sought reinstatement

or re-employment. The Commissioner found that MrSmith and Mr Evill were entitled to awards ofcompensation for the loss of income sustained by theirdismissal. The Commissioner therefore found that theyhad each suffered loss and that their losses were causedby their harsh, oppressive and unfair dismissals.

56 The question of any loss of reputation was not a matterof appeal. There was a claim by Mr Evill for a sum inlieu of reasonable notice which, on the principles laiddown in Tarozzi v WA Italian Club (Inc) 71 WAIG 2499(FB), the Commissioner assessed at two weeks. TheCommissioner assessed the loss occasioned by the lossof earnings as $8,129.16 for Mr Smith and $18,783.73for Mr Evill and ordered them to be paid those amounts,less income tax payable and paid.

57 There was no error in the amount of compensation whichproperly reflected an established loss.

58 Further, the dismissal which occurred was a summarydismissal. It occurred without notice and, on all of theevidence, without reason or credible reason being given.The onus was on the employer to establish that it wasjustified. No evidence was led to that effect and nothingwas submitted which would establish that there was anymisconduct, to say nothing of misconduct which was awilful and deliberate flouting of an essential condition orconditions of employment (see Shire of Esperance v


Mouritz (IAC)(op cit) and FMWU v Cat Welfare SocietyInc 71 WAIG 2014 at 2020-2021 (FB) and the cases citedtherein; see also North v Television Corporation Ltd(1976) 11 ALR 599 cited in many cases by the Full Benchof this Commission).

59 In any event, once the evidence of Mr Smith and Mr Evillwas accepted, it is quite clear that, as a summary dismissal,and indeed as a dismissal, the dismissal was entirelyunjustified. Further, no matter what evidence wasbelieved, there was no evidence that part 5 of the MCEAct, as it applies to employees about to be maderedundant, and which was applicable, was complied with.Indeed, all of the evidence was that it was not. That breachof the statute constituted sufficient evidence to find thatthe dismissal was unfair, if it amounted to retrenchmentor redundancy and which it clearly did not.

60 In addition, it was open to find, as the Commissioner atfirst instance did, that there was a further breach of theAct; and that the respondents were clearly dismissedbecause they were members and wished to remainmembers of an organisation of employees, “a union”.

61 It was open to find on the face of it that the respondentswere harshly, oppressively and unfairly dismissed in thiscase because they were dismissed contrary to s.96D ofthe Act, which is unlawful. The Commissioner found thatthis was harsh, oppressive and unfair. It was not submittedthat it was not. It was open to find that it was and theCommissioner was correct to so find.

62 It follows, therefore, that questions of error as to findingsof fact were not raised by the ground. Even if they were,the Commissioner found correctly in finding as he did,for the reasons which I have just advanced.

Was the Assessment of Compensation Excessive?63 By this ground, it was alleged that the Commissioner erred

in awarding excessive compensation.64 The Commissioner correctly referred to the principle laid

down in Bogunovich v Bayside Western Australia Pty Ltd79 WAIG 8 (FB) and the cases cited therein (and seeTranchita v Wavemaster International Pty Ltd 79 WAIG1886 (FB) and the cases cited therein).

65 The Commissioner made a finding that there was a lossof income, on the evidence and on the balance ofprobabilities. There was uncontroverted and undilutedevidence of loss. The Commissioner, in order to make afinding as to loss, correctly found that the probableduration of the employment was six months at least. Theevidence, which he accepted, was clearly to that effect(see pages 70, 88 (AB) and page 23 (TFI)).

66 The Commissioner properly made a finding as to the loss,based on the estimated length of employment, six monthsor more (based on the evidence which he accepted), theamount which each employee would have earned in thattime had the contract not been unfairly, harshly oroppressively terminated, less amounts earned in otheremployment after they were dismissed.

67 In my opinion, it was open to find that the loss was forsix months at least, capped statutorily to six months, therebeing no credible evidence upon which it might properlybe found that the contracts of employment might havebeen or would have been terminated earlier than sixmonths.

68 It may even have been open to compensate separately forloss of opportunity.

69 It was submitted that there was no mitigation of loss. Theduty in mitigation of a claimant employee was laid downin Growers Market Butchers v Backman 79 WAIG 1313at 1316 (FB). It does not require Mr Smith and Mr Evillto take unreasonable steps to procure alternativeemployment. They were certainly, in light of whatoccurred to them, not bound to accept the employmentoffered to them by Mr Barrett and were entitled to viewsuch offers with suspicion, given their employer’streatment of them, and to reject them.

70 There was a clear mitigation of loss.71 It was open to the Commissioner to find that they had

mitigated their losses since there was sufficient evidence

that they had diligently sought suitable employment andhad indeed obtained what employment was available.

72 There was no error in the finding of loss or the finding asto compensation.

FINALLY73 For those reasons, finding no error as alleged in the

grounds of appeal, and no error in the exercise of theCommissioner’s discretion, applying the principles inHouse v The King(HC)(op cit) and Gromark Packaging vFMWU (IAC)(op cit), I would dismiss the appeal.

CHIEF COMMISSIONER W S COLEMAN—74 I have read the reasons for decision of His Honour the

President. I agree with those reasons and have nothing toadd.

COMMISSIONER J F GREGOR—75 I have had the opportunity to read the Reasons in draft of

His Honour the President, I respectfully agree with thoseReasons and add the following comments.

76 As I understand the grounds of appeal the Appellantcomplains that the Commission at first instance erred inlaw in that it ordered, when asked to make such orders, aperson who the Appellant says should have remainedwithin the proceedings to remove themselves from theproceedings, the result of which, according to theAppellant, denied it natural justice and prejudiced itscapacity to effectively defend itself. The first five groundsof appeal one way or the other deal with this contention.

77 The following three grounds complain that theCommission erred in law and fact in failing to givesufficient weight to evidence and submissions made bythe Appellant concerning a downturn in industry and analleged failure to give sufficient weight what is describedas ‘the principle’ that “the failure of the Appellant to beprocedurally fair in the determination of the Respondent’semployment is but one (sic) matter to be weigheddetermined in the balance”. The final ground is connectedto the proceeding 3 in that as a result thereof there was anexcessive order of compensation to the Respondents.

78 Try as I might I cannot find anything in s.113 of the Actwhich gives rise to any of the complaints raised by theAppellant in the grounds of appeal. Section 113 is aprovision, similar to those in many Acts of Parliamentwhich allows the supervising body, to make regulationsfor the purpose of administering the Act. In the case ofthe Commission, S.113 empowers members of theCommission, or the majority of them [to] makeregulations in relation to the purposes described whichinclude, inter alia: prescribing forms of certificates, dutiesof officers, regulating practice and procedure, prescribingfees, and remuneration of members of constituentauthorities. It allows the Governor to make regulationsrelating to the practice and procedure before an IndustrialMagistrate’s Court and provides penalties for breach ofsuch regulations. In short the section is a machinerysection which gives power to the Commission to regulateits own proceedings.

79 In my respectful view the reference to s.113 in theGrounds of Appeal displays a fundamentalmisunderstanding of the purpose and effect of thesection.

80 The same can be said about the reliance in four of theGrounds on Regulations 86 and 94. Regulation 86 of theIndustrial Relations Commission Regulations 1985enables any declaration or affidavit to be filed with theRegistrar before being used in proceedings and requiresa service not less than 24 hours before the date of hearing.Regulation 94 gives the Commission power to vary anyprocedure [for] the purpose of providing a speedy andinexpensive determination of the proceeding.

81 On the submissions before the Full Bench it is difficultto understand however it can be alleged that theCommission in the first instance did not comply withthese Regulations. The burden of this appeal, in my view,wrongly postulates that this Commission is governed byinflexible rules and procedures as if for instance it wasbound by rules akin to the Supreme Court Rules.


82 I agree with His Honour the President that there is norule of law requiring the exclusion of witnesses if theCommission has not exercised its discretion to make anorder.

83 This appeal misunderstands the fundamental constructof this Commission which by s.26 is to act in accordancewith equity, good conscience and substantial merits ofthe matter without regard to legal forms and technicalities.In practice the reason for this is clear. This Commissionsits not only in Courts in the city but deals with industrialdisputes in all sorts of different physical locations andenvironments. It is required to resolve industrial disputeswith expedition and to do so, if I can say, with good senseand practicality.

84 The Commission at first instance in this matter, sitting inthe South West of the State, was faced with a situationwhere it was unable to commence the hearing at theappointed time because an advocate was not present. TheCommission later used the time then available to it inwhat it decided was the most appropriate way andaccepted witness statements. In the circumstances thelearned Commissioner made a judgement that in the bestinterests of resolving the matter with fairness and equitythe exclusion of all witnesses including the person whoseabsence, about which the Appellant now complains, wasnecessary to allow an expeditious examination of theissues and a decision thereon.

85 This Commission is not required to follow rigidprocedures, which for good and valid reasons arecharacteristic of the Courts. What it is required to do is toensure that in the exercise of its discretion it acts fairly.As the President has said it is to apply the principles ofnatural justice. Of relevance here is the law applying toexclusion of witnesses. I respectfully adopt his commentsconcerning these matters.

86 There is no error in the Commissioner at first instanceissuing the orders he issued nor was there any prejudiceas a result.

87 Ground 7 of the appeal in my respectful viewfundamentally misunderstands the principle articulatedby Kennedy J. in Shire of Esperance v Moritz IAC op.cit.His Honour the President has drawn attention to therelevant citation I agree with him that there was nomisapplication of the principle established therein norwas there error in the Commission finding as he did.

88 There was no error as alleged in the Grounds of the appeal.There was no error in exercise of discretion and I toowould dismiss the appeal.

THE PRESIDENT—89 For those reasons, the appeal is dismissed.

Order accordingly


INDUSTRIAL RELATIONS COMMISSION.PARTIES KINGSCAPE HOLDINGS PTY LTD,

APPELLANTv.GARY KENNETH SMITH, DONSAMUEL EVILL, RESPONDENTS



Decision Appeal dismissed.AppearancesAppellant Mr O C Moon, as agentRespondents Ms E M Peak, as agent_______________________________________________________________________________

Order.This matter having come on for hearing before the Full Benchon the 20th day of July 2001, and having heard Mr O C Moon,as agent, on behalf of appellant and Ms E M Peak, as agent,on behalf of the respondents, and the Full Bench having re-served its decision on the matter, and reasons for decisionbeing delivered on the 17th day of August 2001 wherein itwas found that the appeal should be dismissed, it is this day,the 17th day of August 2001, ordered that appeal No. FBA 20of 2001 be and is hereby dismissed.

By the Full Bench(Sgd.) P. J. SHARKEY,

[L.S.] Commissioner.


INDUSTRIAL RELATIONS COMMISSION.PARTIES WEST AUSTRALIAN BRANCH,

AUSTRALASIAN MEAT INDUSTRYEMPLOYEES’ UNION, INDUSTRIALUNION OF WORKERS, PERTH,APPELLANTv.GERALDTON MEAT EXPORTS PTYLTD, RESPONDENT


DELIVERED TUESDAY, 21 AUGUST 2001FILE NO/S FBA 26 OF 2001CITATION NO. 2001 WAIRC 03573_______________________________________________________________________________

Decision Appeal upheld, the decision at firstinstance suspended and the matterremitted back to the Commission.

AppearancesAppellant Mr R Castiglione (of Counsel), by leaveRespondent Ms M G Saraceni (of Counsel), by leave,

and with her, Mr M Darcy_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 This is an appeal by the abovenamed organisation of

employees against the whole of the decision of theCommission, constituted by a single Commissioner, givenon 4 May 2001 in matter No CR4 of 2001. By thatdecision, the Commission dismissed an applicationpursuant to s.44 of the Industrial Relations Act 1979 (asamended) (hereinafter referred to as “the Act”).

GROUNDS OF APPEAL2 The appellant now appeals against that decision on the

following grounds—“1. The Commissioner erred in law in finding that

the reasons for the Appellant’s dismissal weresuch as to justify summary dismissal.

2. The Commissioner erred in law and/or fact infinding that the dismissal was industrially fair inthat she did not have any regard or any sufficientregard to the following matters—

(a) The Respondent’s failure to consider anyother option to dismissal;

(b) The age of the Appellant;(c) The Appellant’s past employment record;(d) The evidence as to the harsh impact on the

Appellant of dismissal given his back-ground, training, lack of education, and hispoor work prospects.


3. The Commissioner’s discretion miscarried in thatshe did not have any regard or any sufficient re-gard to the following evidence and matters—

(a) The Appellant did not initiate the alterca-tion;

(b) Cream initiated the altercation by assault-ing the Appellant by squirting him in theface with a high pressure hose on two oc-casions.

(c) It was unreasonable and unfair to expectthe Appellant to act with composure afterbeing squirted unexpectedly in the facewith a high pressure hose on two occasions;

(d) The fact that the Appellant had been as-saulted by Cream immediately prior to thealtercation was an extenuating or mitigat-ing circumstance that should have beentaken into account by an (sic) reasonableand fair minded employer in decidingwhether or not to terminate the Appellant’semployment.

(e) The Appellant’s only reaction to being as-saulted by Cream was to attempt to takethe high pressure hose from him.

4. The Commissioner erred in law in—(a) failing to make any findings as to whether

there was a denial of procedural fairnesswhen she was required to do so;

(b) failing to give any reasons in relation tothe issue of procedural fairness;

5. The Commissioner’s discretion miscarried in thatshe failed to have regard or any sufficient regardto the fact that the Respondent had failed to con-duct any adequate investigation into thecircumstances of the altercation and failed to af-ford the Appellant procedural fairness incircumstances where it could be reasonably an-ticipated that a proper investigation couldreasonably have led to disciplinary action shortof dismissal.

6. The Commissioner erred in law and/or in fact infailing to take into account evidence as to the rela-tive culpability of Cream and the Appellant.

7. The Commissioner’s discretion miscarried in thatin determining the industrial fairness of dismissalshe placed undue weight on the fact that the Ap-pellant attempted to remove the spray hose fromCream instead of informing his supervisor.

8. The Commissioner’s discretion miscarried in fail-ing to have regard or any sufficient regard to thefact the Cream lied about his history of workplaceviolence or the fact that Cream had a prior his-tory of violent misconduct in the workplace.”

3 There was, in the course of the hearing of the appeal, anapplication made on behalf of the appellant to amend therelief sought in the grounds of appeal to include analternative relief by way of variation of the order madeso that the Full Bench find an unfair dismissal and ordercompensation to be paid to the appellant.

BACKGROUND4 At first instance, evidence was given for the appellant

organisation by Mr Maxwell James Lynch, MrGeoffrey Mark Fripp, Mr Douglas John Blume, MrDonald John McDonald, all employees of therespondent at the time.

5 For the respondent, evidence was given by Mr PaulEdward Boardman, a knife hand employed by therespondent, Mr Donald Clements, the General Managerof the respondent, Mr Kane Cream, a former general handemployee, and Mr Nicholas Timothy Mitchell, the QualityAssurance Manager of the respondent at the time of thedismissal.

6 The evidence generally is clear enough, notwithstandingthe gaps in transcript. A copy of some notes of theCommissioner assists in this regard.

7 On 1 February 2001, pursuant to s.44(9) of the Act, theCommission referred the following industrial matter forhearing—

“1. The Applicant claims that its member Mr MaxLynch, was harshly, oppressively and unfairlydismissed by the Respondent.

2. The Applicant seeks an order that Mr Lynch bereinstated and any other orders or conditions thatthe Commission sees fit to impose.

3. The Respondent denies the claim and opposesthe orders as sought.”

8 Mr Lynch was an employee of the respondent firm, whichconducts the business of an abattoir at Geraldton. He wasdismissed, together with another employee, Mr Cream,following an altercation on the slaughtering floor of therespondent.

9 Mr Lynch was employed by the respondent as aslaughterman, having worked in the meat industry forapproximately twenty years. He was, at the time of hisdismissal, about 36 years old. He knew no otheroccupation than meat industry occupations. Mr Lynchhad started in the meat industry when he was fifteen yearsold. He left school after completing Year 10 and had doneno other courses, such as TAFE courses, since. He was avery experienced and competent slaughterman and ableto perform all slaughtering tasks in respect of varioustypes of animals; and that he was experienced andcompetent was accepted by the Commissioner. Hecommenced employment with the respondent in 1996.Before he was dismissed on 2 January 2001, he regularlyworked in the position of “rover”, assisting otherslaughtermen working on the slaughterhouse floor. Hewas also the union delegate and had been for about threeyears.

10 Mr Cream had been an employee of the respondent, as ageneral hand, for about six months and was a youngperson.

11 On 22 December 2000, the respondent’s employees wereengaged in slaughtering goats. At about 7.20 am, MrLynch was working on the chain next to Mr Cream. MrCream, on that morning, was washing hair and othermaterial off carcasses. The incident started when MrBlume (who was working on the “dehairer”, a largemachine approximately two metres from Mr Cream’swork station) looked over, saw Mr Lynch and said “Goodmorning, Max”. Mr Blume said this to Mr Lynch threetimes, but Mr Lynch did not hear him, so Mr Blume saidto Mr Cream words to the effect “Well, he is an ignorantprick, isn’t he?”.

12 Mr Cream, who was operating a high pressure spray gun,responded by laughing, then turned to Mr Lynch andsquirted him with a jet of water. Mr Lynch gave evidencethat he was sprayed in the head on his left side with thehigh pressure hose. He said that, initially, he did not knowwho had sprayed him. He said that the water went straightinto his ear and soaked the left side of his body, clothingand all. He said he looked up and saw Mr Cream holdingthe high pressure hose and he said to Mr Cream “Whatthe fuck do you think you are doing, you fucking idiot?”He said that Mr Cream smiled at him. Mr Lynch thenwalked up to Mr Cream and said “Don’t fucking ever dothat again.” He said that Mr Cream responded by sprayinghim in the face point blank. He said that he tried to wipethe water from his eyes because it affected his vision andlifted his right hand in an attempt to grab the high pressurehose because it was directed at him. Mr Cream, who wastaller than Mr Lynch, was standing on a raised stand aboutone foot high, on a higher level than Mr Lynch, and wasdirecting the hose at him. As Mr Lynch attempted to grabthe hose, Mr Cream came off the stand, grabbed him andpushed him against the washbasin which was next to thesteriliser which was full of very hot water.

13 In cross-examination, Mr Lynch expressly denied that hesaid that, if Mr Cream did that again, he, Mr Lynch, wouldhit Mr Cream. He also denied that he struck Mr Creamacross the face with his open hand, as Mr Cream and MrBoardman alleged. He denied pulling Mr Cream’s hairalso.


14 Both of them were then locked together, so Mr Lynchput his left arm around the back of Mr Cream’s neck torestrain him, and held his other hand on his, Mr Lynch’s,knife pouch. He said that Mr Cream tried to throw himon the ground and the both fell over and slipped into theblood drain. Mr Lynch said that he yelled for someone totake the knives out of his pouch because they were verysharp and dangerous and he did not want anyone to gethurt. He also had a concern, he said, that the knives mightbe used against him. By then, most of the employees onthe floor had stopped working and gathered around MrLynch and Mr Cream.

15 Mr Lynch said that neither punched each other. He alsosaid that the incident took a minute. He admitted that hedid not have “control of the incident”.

16 Mr McDonald saw Mr Cream and Mr Lynch on the floorside by side and he heard Mr Lynch call out two or threetimes “Someone grab my knives”. Mr McDonald tookthe knives out of Mr Lynch’s pouch as a safety precautionand took them to the washing and shaving area. Mr Lynchappeared to be restraining the other person.

17 After they were broken up, Mr McDonald said to MrLynch “What the fuck is going on?”, and Mr Lynch said“The c... squirted me in the face.” Mr McDonald saidthat he was a metre and a half away from the strugglingworkers and he saw neither of them throw a punch; nordid he see any injuries and, in particular, no blood comingfrom Mr Cream’s nose. He was adamant that the viewfrom No 3 Station was not obstructed by goats or thechains.

18 Mr Lynch and Mr Cream were then separated by otheremployees and the Slaughter Floor Supervisor, Mr PascoeConstantino, and Mr Mitchell, ensured that they wereboth escorted from the slaughtering floor.

19 Mr Lynch testified that he had walked with Mr Mitchelland Mr Cream walked out with Mr Constantino.

20 As they were walking outside, he heard Mr Cream yellsomething to him which he could not hear. Mr Lynchsaid that he then said to Mr Constantino “I told you hewas fucking crazy.” He said that Mr Cream went berserkand Mr Constantino had to restrain Mr Cream. MrConstantino then told Mr Lynch “Shut up Max. You aremaking things worse.” Mr Lynch said that he then said toMr Mitchell “I’ll get the prick after work”, because hedid not want Mr Cream to think that he was weak, but hehad no intention of carrying out the threat.Notwithstanding the threat, there is, in fact, no evidencethat he did anything more about the matter at all. Theevidence is that it ended there. Mr Lynch testified that hedid not have any intention of carrying out the threatbecause he thought that Mr Cream was crazy. He alsosaid that he did not see Mr Cream bleeding from the nose.Mr Lynch denied saying “If you think that was a hit, waituntil I get you in the car park.”

21 Mr Lynch then walked across to the smoking area, had acigarette to calm his nerves and, after about ten minutes,the Production Manager, Mr Paul Jones, approached himwith Mr Clements and asked what had happened. MrLynch said that he replied “The prick squirted me withthe hose.” Mr Clements and Mr Jones left for about tenminutes and came out and told him that he would besuspended until 2 January 2001, and that Mr Cream wassuspended.

22 At about 6.30 am on 2 January 2001, Mr Lynch arrivedat work and waited for Mr Clements to arrive at the office.Mr Clements walked into the office and said “Goodmorning, Max”, and asked him to come in. Mr Lynchfollowed him in and Mr Clements said to him “It doesn’tlook good, you are out of here.” Mr Clements did not saythat he carried out a full investigation and that Mr Lynchwas involved in a fight. Mr Lynch said that he informedMr Clements that he would take the matter to the union.He then shook Mr Clements’ hand, said “Happy NewYear” and left the premises.

23 Mr Lynch said that no-one asked for his version of events,oral or written. All that he was asked was what Mr Jonesasked him, and he replied that “the prick squirted” himin the face, which exchange took about 15 seconds. No-one asked that he provide witnesses of the incident.

24 There was dispute between the parties as to whether MrLynch was an assailant or a victim.

25 Mr Blume, a knife hand, said that, after Mr Cream directeda jet of water at Mr Lynch, Mr Lynch walked up to MrCream and said “What the fuck did you do that for, youfucking idiot?” He said that Mr Cream was working onthe first wash, washing goat carcasses, about two metresfrom Mr Blume’s work station. He saw the incident and,even when cross-examined as to this view beingobstructed, maintained that he had a clear view. He saidthat Mr Cream just smiled with a big, cheesy grin and MrLynch, who was taken aback, walked over and said to MrCream “Don’t ever do that again.” Mr Cream then pointedthe spray gun straight at Mr Lynch’s head and squirted itstraight in his face. Mr Lynch put his hand up to try andstop the stream of water, Mr Cream then lost his balance,stepped off his stand, rushed at Mr Lynch and pushedhim against the washbasin and they both fell into the blooddrain. When he was stepping off the stand, Mr Creamwas still squirting Mr Lynch. While he was on the ground,Mr Lynch said “Grab my knives.” At the end, Mr Creamwas on top. No punches were thrown, nor could theyhave been without Mr Blume seeing. A few peopleintervened to pull them apart. When Mr Cream squirted,Mr Blume was standing on the flanking block and couldsee Mr Cream’s face. He noticed no bloodied nose. Therewas just a wrestle, he said in cross-examination. Nopunches were thrown.

26 Mr Fripp gave evidence that, on that day, he also wasworking on the “dehairer”. He looked up and saw a circleof people on the other side of the room. He went over tosee what was going on and saw Mr Lynch and Mr Creamon the ground. Mr Cream was locked onto Mr Lynch sohe reached down and pulled Mr Cream off Mr Lynch. Hesaid that, before he pulled him off, Mr Cream was tryingto bite Mr Lynch’s neck. He pulled them apart and MrCream wanted to have another go at Mr Lynch and hetold Mr Cream that “enough was enough”. He said thathe did not observe any injuries on either Mr Cream orMr Lynch and, in particular, there was no blood comingfrom Mr Cream’s nose. Mr Fripp was not shaken in cross-examination.

27 Mr Boardman, a knife hand, gave evidence that, whenthe incident occurred, he was working alongside MrLynch, that Mr Lynch was to Mr Boardman’s left andthat Mr Cream was on the left side of Mr Lynch. He wasshaving goats and he looked up and saw Mr Lynch walkup to Mr Cream and hit Mr Cream on the nose with anopen hand. Mr Cream then jumped off the wash standand proceeded to wrestle around with Mr Lynch until thefight was broken up. He did not hear Mr Lynch sayanything to Mr Cream because of the noise on theslaughter room floor.

28 Mr Mitchell asked Mr Boardman after the fight what hadhappened. He told him and signed a statement which hegave to Mr Mitchell. He said Mr Lynch, after these events,approached him about changing his statement. What,however, on his evidence, Mr Lynch asked him was whathe had said in his statement. Mr Lynch then told himwhat he, Mr Lynch, believed had happened, and said thathe would see him next day. Mr Lynch asked Mr Boardmanto be a witness and Mr Boardman said “No.” MrBoardman said that he told Mr Lynch that he actuallysaw him strike Mr Cream, and Mr Lynch said that he hadnot. In cross-examination, Mr Boardman admitted thathe had not seen Mr Lynch being squirted (see page 186of the appeal book (hereinafter referred to as “AB”)).

29 Mr Cream gave evidence that he was employed by therespondent from about July to August 2000 through to22 December 2000. He gave evidence that, when MrBlume yelled out to Mr Lynch to try and get his attention,it seemed to him that Mr Lynch did not hear Mr Blume,so he sprayed water in his general direction, not at MrLynch, but at the side so that it would not get him. Hesaid that the spray action came out slightly stronger thanhe intended and that the spray hit Mr Lynch’s shirt justunder his right shoulder. It was a fine spray, but it couldhave been a jet, because of a faulty tap. He said that MrLynch walked up to him, looked up at him and said “Do


that again and I’ll knock your fucking block off.” MrCream said he responded by sticking his fingers in theair and saying “na, na, na, na, na”, which is reasonablydescribable as derisive or jeering behaviour. Certainly,there was no explanation, apology or undertaking not todo it again.

30 There was, on all of the evidence, no apology by MrCream and no indication that he would not squirt MrLynch again. He did not, for example, say that he had notintended to hit Mr Lynch with the jet. Mr Cream said inevidence that he only squirted Mr Lynch on one occasion.In cross-examination, he made an equivocal admissionor denial (see page 168(AB)) that he had squirted MrLynch a second time.

31 Mr Cream said that Mr Lynch then struck him on thenose with an open hand after he had wet Mr Lynch, i.e.after he had offered “na, na, na, na, na”. When asked todescribe how he was hit on the nose, he said that MrLynch’s hand came up through Mr Cream’s hand andconnected with his nose. He said that he had a blood noseafter the altercation, but it did not hurt, and that was theonly time during the incident that he recalled being struckon the nose. He said that he was hit on the nose while hewas still on the stand, one foot above the level where MrLynch was; he is taller than Mr Lynch. After Mr Lynchstruck him, Mr Cream said, Mr Lynch grabbed his shirtand they walked backwards towards the wash drain andended up on the ground. Whilst on the ground, he saidthat Mr Lynch had hold of his hair. Eventually, they werebroken up. Mr Cream denied that he tried to bite Mr Lynchon the neck. He testified that, after the fight was brokenup, Mr Lynch had another go at him and struck him onthe chin.

32 Mr Cream said that he walked outside with MrConstantino, and Mr Lynch walked with Mr Mitchell.He said that Mr Constantino asked him what happenedand, whilst he was explaining, saying “and then hepunched me”, Mr Lynch yelled out something which hecould not recall. He said he reacted and yelled at Mr Lynch“You are lucky I didn’t let you have it.” In cross-examination, Mr Cream said that Mr Lynch said “Waituntil we get out into the car park.” He was then escortedto the office by Mr Constantino, where he spoke to MrClements. He said that Mr Clements attended to his bloodnose and he told Mr Clements that he had squirted MrLynch with water and that Mr Lynch was being an“aggressive bastard” to him (Mr Cream). He also saidthat Mr Clements told him to go home as it was the lastday of work before Christmas, and to come back afterthe break on Tuesday.

33 On Tuesday, 2 January 2001, Mr Cream rang therespondent’s office and informed the respondent that hewas not returning to work because he had obtained anotherjob.

34 Mr Cream first denied in evidence that he had had anyother altercation with any other employees of therespondent, saying that he had no problems with anyone,but then said, in cross-examination, that he had beeninvolved in two altercations. He admitted that, during histerm of employment and prior to this incident, he hadgrabbed a labourer called Peter by the throat and alsoadmitted that he had wrestled with Cliff, a floor cleaner.

35 Mr Cream also admitted that, before being employed bythe respondent, he had been dismissed from a position atthe Geraldton Fishermen’s Co-op because of a fight andthat he was subsequently convicted upon a charge ofassault occasioning grievous bodily harm. He admittedthat he had lost his temper and kicked a friend in thehead whilst his friend was kneeling on the ground, tryingto put something on the towbar of a car. He said, inevidence, that, before he went to court for the offence, hehad been admitted to Graylands Hospital and diagnosedwith a chemical imbalance in his brain from drug use. Hesaid that it was a temporary acute condition and that hewas kept in hospital for about three or four weeks.

36 Mr Mitchell gave evidence that, when the fight was brokenup, he walked outside with Mr Lynch and Mr Creamwalked out with Mr Constantino. He said that Mr Cream

had a graze on his chin and blood coming from his nostrils.Whilst they were walking outside, he said that MrConstantino asked Mr Cream what had occurred and MrCream said “I was trying to get Max’s attention and Idirected a bit of water in his direction, tried to get hisattention. I squirted him down the left side, he came upand abused me and then he hit me on the end of the nose.”

37 Mr Mitchell said that Mr Lynch said to Mr Cream “Youthink that was a hit, wait until we’re finished in the officeand I’m going to knock your block off.” He said that MrCream then attempted to try to get at Mr Lynch, but MrConstantino intervened and steered Mr Cream away. MrMitchell first became aware of the blood coming fromMr Cream’s nose on the way to Mr Clements’ office. MrMitchell then went into the office and spoke to MrClements, informing him that there had been a fight onthe slaughter floor between Mr Lynch and Mr Cream andhe asked Mr Clements to speak to Mr Lynch and MrCream. Mr Mitchell then left the office and went back tothe slaughter floor. Mr Mitchell testified that, when hereturned to the floor, he spoke to Mr Constantino andasked if anyone had seen what happened. He said thatMr Constantino said that he had spoken to Mr DennisNicholls, who said that he did not see how the altercationstarted, but that Mr Boardman saw the whole thing, soMr Mitchell should speak to him.

38 Mr Mitchell spoke to Mr Boardman and later took astatement from him. Mr Mitchell said that he then spoke toothers who were working in the shaving and washing area,but they all informed him that they did not see anything.

39 Mr Blume, Mr McDonald and Mr Fripp, however, whowere working in the dehairing area, were not spoken toby Mr Mitchell or Mr Constantino. Further, apart fromwhat was said while Mr Lynch and Mr Cream werewalking to the office and the brief conversation whichMr Clements had with Mr Lynch and Mr Cream, noexplanation was sought from Mr Cream or Mr Lynch.

40 Mr Clements said that, when he first spoke to MrCream, he was bleeding from the nose and had a bitof skin off his chin. He said that he went to the firstaid room and attended to his nose. Mr Clements saidthat he asked Mr Cream to tell him what happenedand that Mr Cream told him that there had been afight between him and Mr Lynch in which Mr Lynchhad him by the hair and punched him. Mr Clementssaid that he stopped the conversation at that pointbecause he wanted to speak to Mr Lynch and, also,he wanted to sit down and assess the whole situation.He said that he informed Mr Cream that he wassuspended for the day with pay, and that he shouldreport to the office on 2 January 2001 after theChristmas break.

41 Mr Clements also said that he then went and spoke to MrLynch. He interviewed him for two or three minutes, hesaid. He asked Mr Lynch what had happened. Mr Lynchsaid that they had “had a blue”. He then said to Mr Lynch“I believe you hit him”, and Mr Lynch replied “Well,Don, I lost it.” He said he explained to Mr Lynch that hewas a senior member of the slaughtering team and thathe should have gone about it in a different way. He saidMr Lynch should have gone to the supervisor and hadhim talk to Mr Cream. Mr Lynch said again “Well,Donald, I lost it.” (In cross-examination, he made it clearthat Mr Lynch did not say that he struck Mr Cream (seepage 130(AB)).) Mr Clements said that he then informedMr Lynch that he would be suspended for the day withpay and that he should return to the office after theholidays on 2 January 2001.

42 Mr Clements gave evidence that he left the investigationof the incident to Mr Mitchell and to Mr Constantino. Heobtained no statement because he sent Mr Lynch and MrCream home He said that Mr Mitchell and Mr Constantinoobtained some statements and, as a result of reading thosestatements, he concluded that there was a fight on thefloor, that both Mr Lynch and Mr Cream were as guiltyas one another and that they should both be instantlydismissed. He said that he did not believe that Mr Lynchwas an innocent victim.


43 Mr Clements testified that, in his view, he had to takesuch a strong stand as there may be other fights in thefuture which could result in serious injury, and that hisactions were justified. He said that there was no questionthat fighting on the slaughtering floor was dangerous.Subsequently, in discussions with Mr Graham Haynes ofthe appellant organisation, he did not agree that the penaltyfor Mr Lynch should be a lengthy suspension. He agreedthat he had not given Mr Lynch a second opportunity toexplain his comments; nor had he shown the statementsto Mr Lynch for comment.

Disposition44 There was evidence of Mr Lynch’s disposition. He said

that he had not been involved in fights and that he wasnot a volatile person. There was no evidence that he wasa difficult person at work, that he was volatile, or that hewas involved in fights. Indeed, the evidence was that hewas not. He admitted to being removed from licensedpremises by two bouncers who hurt him, although he didnot strike them, and that was outside work.

45 Mr Cream said in evidence, before he was cross-examined, that he had no problems at work. After a denialand some prompting in cross-examination, Mr Creamadmitted to having two altercations within therespondent’s premises, one of wrestling and one wherehe struck a fellow employee. He had been dismissed fromother employment for fighting, was convicted of causinggrievous bodily harm to a friend whom he kicked in thehead; and was treated in Graylands Hospital for a chemicalimbalance in the brain, caused by drug use.

46 Mr McDonald said that he had known Mr Lynch for tenyears, that he was not aggressive, and he had never heardMr Lynch abuse other workers in the workplace. He saidthat he gets along with Mr Lynch quite well. Mr Boardmandid not contradict this, nor did Mr Blume or Mr Clements.Mr Fripp, too, said that Mr Lynch was not a person whowas aggressive or abusive.

47 Before the incident occurring, there had been a fight atthe meatworks in August 2000. As a result of that, ameeting was held in the Management Training Room on11 August 2000, which was attended by a number of staff,including Mr Lynch. It was agreed by all persons presentat that meeting, including Mr Lynch (who attended asthe slaughter floor union representative) that all personsengaged in fighting would be dismissed instantly and, asa result, the company issued the following directive inwriting—

“DIRECTIVE—Any future fighting engaged on theplant, irrespective of whether one person assaults an-other or fighting involves two people fighting eachother: Will result in the instant dismissal of offend-ing parties.SCOPE—This Directive applies to all staff and em-ployees employed by Geraldton Meat Exports.BACKGROUND—A fight occurred on the slaugh-ter floor at the cessation of work on the 10th ofAugust 2000. A slaughterman assaulted a fellowslaughterman by grabbing him around the throat bythe shirt collars and pushing him backwards. Thevictim did not fight back and kept his hands stretchedout in a defensive position.SLAUGHTERMAN—Neil Kruger (Assailant)

Kenny Mitchell (Victim)CONSEQUENCES—A meeting was held prior tothe commencement of work on the 11th August 2000,in the management training room. Those in attend-ance included—

Don Clements—General ManagerPaul Jones—Production ManagerNick Mitchell—QA ManagerShayne Moody—Slaughter floor Supervisor(Temporary)Wayne McMullen—Boning Room UnionRepresentativeMax Lynch—Slaughter Floor Union Repre-sentative

Neil Kruger—AssailantKenny Mitchell—Victim

RESULT—After much discussion it was decided thatas there was only one assailant and the victim didnot retaliate, the assailant would be allowed to re-main an employee if—

A/The victim received an apology and agreedto continue working with the assailant.B/The assailant agreed to a declaration stat-ing that any further misdemeanours wouldresult in termination of their employment.

CONCLUSION—To prevent a repeat of the investi-gation and counselling (sic) session held on themorning of 11th August 2000, it was decided by allthose present that a company directive be issued stat-ing that fighting of any kind would result in instantdismissal of offending parties. Both union representa-tives were present and agreed to the decision andwere responsible for relaying this decision to em-ployees.”

(See page 237 (AB).)48 Mr Lynch admitted that he was aware of the company

directive of 11 August 2000, that the consequences offighting on the job were dismissal.

Investigation49 As to the question of investigation, the following was the

evidence.50 Mr Lynch said that, on 22 December 2000, he had very

little discussion with Mr Clements who told him that hewas suspended without pay. He denied that Mr Clementsasked him what had happened.

51 Mr Mitchell said that he did most of the investigating,that he did not interview Mr Cream and Mr Lynch becauseMr Jones and Mr Clements did. He did not attempt totake a statement from Mr McDonald. He did not speak toMr McDonald, Mr Fripp or Mr Blume. They, Mr Mitchellsaid, were not in the vicinity when he came to the scene,except Mr Blume, who was breaking up the fight. He didmost of the investigation after speaking to MrConstantino. He, or no other investigator, placed thewritten statements made before Mr Cream or Mr Lynchbecause he did not think that there would be any need.

52 Mr Clements admitted that he had not given Mr Lynchtime to explain what happened. Mr Lynch had noopportunity to make explanation of matters of mitigationor to bring forward witnesses on his behalf, either.

FINDINGS53 The applicant organisation alleged that the respondent

failed to properly investigate the alleged misconductand, by failing to do so, denied Mr Lynch proceduralfairness.

54 That, despite the requirement to afford procedural fairness,not every denial of procedural fairness will entitle anemployee to a remedy; no injustice will result if, afterreview of all of the circumstances of the termination, itcan be said that the employee could be justifiablydismissed.

55 The Commissioner then concluded that Mr Lynch wasnot harshly, oppressively or unfairly dismissed for thefollowing reasons—

(a) It is dangerous to engage in a physical alterca-tion when wearing a pouch containing extremelysharp knives used in the business of slaughter-ing. Further both Mr Lynch and Mr Cream wereworking near a steriliser full of hot water whichcould have burnt either of them if they werepushed into it.

(b) Mr Lynch was a senior employee of the Respond-ent who at the time of termination was a Uniondelegate. Not only was he the Union delegate buthe also regularly worked as a rover. As a senioremployee he had an obligation to other employ-ees in the workplace to observe safe practices andto take steps to ensure the safety of his work-mates was not endangered by his own actions.


(c) Even if I accept the evidence given by Mr Lynch(corroborated by Mr Blume), it is clear from theirevidence that Mr Lynch approached Mr Creamand attempted to grab the spray hose from MrCream.

(d) After having regard to the evidence of Mr Lynch,Mr Blume and the evidence given by Mr Cream,I am satisfied Mr Cream sustained a blood nosewhen Mr Lynch attempted to take the spray hosefrom him. In my view whether Mr Cream or MrLynch was the aggressor at that point in time isirrelevant.

(e) In light of Mr Lynch’s evidence that he regardedMr Cream as “crazy”, in my view he should nothave attempted to take the hose from Mr Cream,he should have simply walked away and reportedthe matter to the Slaughter Floor Supervisor, MrConstantino.”

56 The Commissioner dismissed the application.

ISSUES, FACTS AND CONCLUSIONS57 This was a discretionary decision, as that is defined in

Norbis v Norbis (1986) 161 CLR 513 (see also Coal andAllied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348(HC)). It is for the appellant to establish that theCommission’s exercise of discretion miscarried, applyingthe principles laid down in Gromark Packaging v FMWU73 WAIG 220 (IAC) and House v The King [1936] 55CLR 499.

58 If that is not established, the Full Bench cannot interferewith the exercise of the discretion at first instance, and inparticular, cannot substitute the exercise of its discretionfor that of the Commission at first instance.

59 Further, I refer to the well known passages from Devriesand Another v Australian National Railways Commissionand Another [1992-1993] 177 CLR 472 and from StateRail Authority of New South Wales v EarthlineConstructions Pty Ltd (in liq) (1999) 73 ALJR 306, oftencited by the Full Bench.

60 The Full Bench of this Commission has dealt withdismissals for fighting in a number of cases. These includeAFMEPKIU v Dampier Salt Operations Ltd 79 WAIG2305 (FB), and AFMEPKIU v John Holland Construction& Engineering Pty Ltd 79 WAIG 1302 (FB).

61 In relation to a great deal of the evidence, there was somewhich was not in dispute and some very importantconflicts between the evidence of various witnesses.

62 First, there is the fact that there was an unequivocalmanagement directive, which was well known to MrLynch because he was at the meeting at which it wasagreed, that fighting on the slaughtering floor would leadautomatically to dismissal.

63 Second, there is the uncontroverted evidence from MrClements that fighting on the slaughtering floor isdangerous. It is also a working area with moving “chains”,hot sterilising vats, people moving, working and carryingsharp knives. It is not a place for fighting. In this case,the evidence was that, to fight in this place was dangerousand it plainly was.

64 Next, incontrovertibly, there is a duty under a contract ofemployment for the respondent, as an employer, to providea safe place of work. For that reason, too, fighting, whichis dangerous, is to be forbidden and more often than not is.There is also a duty upon employees to do their work in afashion which is safe in the workplace (see Porter v EltinUnderground Operations Pty Ltd and Another 80 WAIG5349 (FB) at 5356-5357 per Sharkey P).

65 Further, there are a number of other uncontroverted facts,or facts arising from admissions in evidence. Mr Lynchwas a senior and competent slaughterman and uniondelegate, holding that responsible office for his peers withno record of aggression or troublesomeness in theworkplace. Mr Cream was a young inexperienced generalhand with a history of fighting or engaging in physicalaltercations in the workplace, including this workplace; andwith a criminal conviction for violence, which incidentoccasioned his receiving treatment in Graylands Hospital.

66 As to the incident at the heart of this appeal, there aresignificant differences in the evidence of witnesses. It wasquite clear that the incident began because Mr Lynch didnot hear Mr Blume when Mr Blume spoke to him. It isquite clear, too, that Mr Cream used a high pressure hose,with which he was cleaning hair and other material offgoat carcasses. He did so by spraying Mr Lynch withwater in his ear and down his shirt and without warning.Mr Cream said, in evidence, that he did not intend to hitMr Lynch but to spray to the side of him to attract hisattention. It is quite clear that, when the spray hit him,this annoyed Mr Lynch who told Mr Cream, in nouncertain terms, not to do it again. This was anunderstandable reaction.

67 On Mr Cream’s own evidence, he jeered at Mr Lynchwhen he was told not to do it again. He did not apologise,say it was an accident or say that it would not occur again.On Mr Lynch’s evidence, Mr Cream squirted him thenfull in the face. On Mr Blume’s evidence, Mr Cream gavea cheesy smile and squirted Mr Lynch in the face a secondtime. Mr Cream denied that he squirted Mr Lynch asecond time, but, in cross-examination, gave anambiguous answer in which he referred to a secondsquirting and which did not constitute a real denial. MrBoardman did not see the squirting episode.

68 There was then a further difference in evidence. MrBoardman and Mr Cream said that Mr Lynch struck MrCream in the nose with an open hand. Mr Blume and MrLynch said that no punches were thrown and denied alsothat Mr Cream was struck by Mr Lynch. They did not seehis nose bleeding. Mr Lynch and Mr Blume made it clearthat Mr Lynch tried to grab the hose from Mr Cream.

69 Whatever occurred, Mr Cream came down off the standand wrestled with Mr Lynch. Mr Blume alleged that MrCream tried to bit Mr Lynch on the neck. Mr Creamdenied this. Mr Cream alleged that Mr Lynch struck himon the chin. The contrary evidence was that no puncheswere thrown by either man.

70 There was evidence from Mr Clements and Mr Mitchellthat, after the two men were separated and later, MrCream’s nose was bleeding. After the fight broke up, bothshouted at each other. There was, too, Mr Lynch’s threatto Mr Cream, which was not carried out; so that no weightto the detriment of Mr Lynch should be attached to it.

71 It is clear that, even on Mr Cream’s evidence, squirting aperson with a high pressure hose while he was workingconstituted provocation and it was open to so find. Thatact was aggravated by jeering, derision and a failure toapologise, explain or give assurance that it would notoccur again. All this occurred whilst Mr Cream was stillholding the hose in his hands, even if he did not thensquirt Mr Lynch full in the face, which is putting it atbest for Mr Cream. The Commissioner, as she was entitledto do, found that Mr Lynch tried to take the hose away,which was his and Mr Blume’s version of what he wastrying to do. It is, of course, the case that, on either versionof what occurred, there was further provocation by MrCream by his jeering conduct; or that, not only did hesmirk, as it was described, but then squirted Mr Lynchfull in the face. That would, if it were found to haveoccurred, constitute much more severe provocation.

72 Next, it was quite clear, on the admissions of Mr Mitchell,Mr Clements and the evidence of Mr Lynch, that a fullexplanation of events was not obtained from Mr Lynch,that he was not shown or, alternatively, was not told ofthe allegations against him, that he was not asked toprovide a statement himself, or to make witnessesavailable, because, in Mr Mitchell’s case expressly andin Mr Clements’ case inferentially, there was no need.

73 Of course, had Mr McDonald and Mr Blume beenapproached, they would have given information whichwas not available to Mr Clements and Mr Mitchell aboutMr Cream’s behaviour and which other witnesses did notor were not able to inform them about. Mr Lynch hadmore to tell, also. With that evidence available, Mr Lynchmay not have been dismissed.

74 There is no doubt that, before any final decision to dismissis taken, the employer should make a reasonable


investigation of the relevant circumstances. In particular,the employee should be given an opportunity to offer anexplanation for any alleged misconduct (see Shire ofEsperance v Mouritz 71 WAIG 891 (IAC) per Kennedy Jat page 895 where he said)—

“In my opinion, any breach of the rules of naturaljustice was a relevant circumstance in the determi-nation of the critical question as to whether thedismissal was harsh or unjust. Whether an employer,in bringing about a dismissal, adopted procedureswhich were fair to the employee is an element indetermining whether the dismissal was harsh or un-just—see The Law of Employment, Macken,McCarry & Sappideen, 3rd ed, 277-278, and theauthorities there cited. In some cases, this can be amost important circumstance. (my emphasis) But ina case such as the present, no question of the inva-lidity of a decision, as such, falls for determination.The case does not turn simply upon the respectivelegal rights of the parties.”

See also Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224 atpage 229, cited with approval in Western MiningCorporation Limited v AWU 77 WAIG 1079 (FB) at page1084 per Sharkey P and Coleman CC—

“Where the dismissal is based upon the alleged mis-conduct of the employee, the employer will satisfythe evidentiary onus which is cast upon it if it dem-onstrates that insofar as was within its power, beforedismissing the employee, it conducted as full andextensive investigation into all of the relevant mat-ters surrounding the alleged misconduct as wasreasonable in the circumstances; it gave the employeeevery reasonable opportunity and sufficient time toanswer all allegations and respond thereto; and thathaving done those things the employer honestly andgenuinely believed and had reasonable grounds forbelieving on the information available at that timethat the employee was guilty of the misconduct al-leged; and that, taking into account any mitigatingcircumstances either associated with the misconductor the employee’s work record, such misconductjustified dismissal. A failure to satisfactorily estab-lish any of those matters will probably render thedismissal harsh, unjust or unreasonable.”

75 In this case, what it was clearly open to find was thatprocedural fairness was not fully afforded in the contextof those dicta. There were serious inadequacies in theinvestigation, for the reasons which I have alreadyexpressed. Because there was only a brief and cursoryexplanation given and sought immediately after the event,Mr Lynch was unable to give a full explanation throughwitnesses and/or from his own lips. Further, he was notable to refer in detail to why he, a senior and competentemployee trusted by his peers with union office and withevery good record, should have “lost it”, as he put it.

76 It is fair to say that Mr Clements did consider an alternativeto dismissal, namely suspension, at the behest of MrHaynes, but rejected that alternative due to what heregarded as the seriousness of the misconduct, which hehad not himself fully investigated.

77 There were a number of authorities cited to us as to howindustrial tribunals should approach the question offighting at work. There can be no immutable principles.Fighting is nonetheless something to be regarded seriouslyby this Commission because it will usually be prima faciedangerous. What view should be taken of misconduct, inthe context of whether a dismissal is unfair within theprinciples approved in Western Mining CorporationLimited v AWU (FB)(op cit), constituted by fighting,depends on all of the circumstances of the case. Eachmatter must be determined on its own merits. One cannot,in advance, predict all of the relevant circumstances. Theauthorities cited to us were persuasive only and cannotprescribe what view should be taken.

78 Fighting on the job, depending on the circumstances, maybe sufficient misconduct of itself for the Commission tosay that the dismissal was not unfair, and the Commissionmay also find it unnecessary even to apportion blame.

The Commission will, however, move to protect anemployee who is essentially passive, or put upon and/orrequired to defend him/herself, or provoked to lose his/her self control in circumstances where it could be saidthat a reasonable person would do so. However, retaliationout of proportion to the provocation will not generally beof assistance to an employee. The sheer triviality of anincident may also be relevant. On the contrary, a seriousmisconduct, whether provoked or not, particularly whereboth parties are at fault, will often be sufficient toconstitute a fair dismissal.

79 It should be observed that the Commission did notexpressly, but clearly found that the implicitly summarydismissal of Mr Lynch was justified and was not unfair.A summary dismissal is justified if the conductcomplained of is “such as to show the servant to havedisregarded the essential conditions of his contract ofservice” (see North v Television Corporation Ltd 11 ALR599 at 609).

80 It was for the appellant to establish that the dismissal ofthe worker was unfair (i.e. harsh, oppressive or unfair),but there was an onus upon the respondent to establishthat the summary dismissal was justified. The principleswhich apply to what is an unfair dismissal were laid downin the well known case of Miles and Others t/a UndercliffeNursing Home v FMWU 65 WAIG 385 (IAC) (see alsoRRIA v CMEWU 69 WAIG 1027 (FB)). Even if thesummary dismissal was justified, it might still be foundto be harsh, oppressive or unfair.

81 In this case, the Commissioner found that to engage in aphysical altercation on the floor of the abattoir wasdangerous, which it clearly was. Further, it was open tothe Commissioner to find that the participants did so inbreach of a clear directive which gave notice of the penaltyof automatic dismissal for fighting.

82 The Commissioner found also and it was open to find,that Mr Lynch was a senior and experienced employee ofthe respondent and a union delegate. He was under anobligation to use safe practices; so, too, however was MrCream. It was also open to find that Mr Cream acted in aprovocative and irresponsible manner in the workplace.

83 It was open to the Commissioner to find, and theCommissioner found, that Mr Lynch approached MrCream to grab the hose from him and no more (and that,in the beginning, he did no more). He did so, it was opento find, because he was sprayed or was being sprayedand had received no indication that this would stop andwas jeered at.

84 If, however, the Commissioner had gone further, shemight have found that Mr Lynch was even more gravelyprovoked by being sprayed a second time directly in theface, after telling Mr Cream to stop. In any event, whetherthe Commissioner accepted that the second sprayhappened, there was sufficient provocation for Mr Lynchto grab the hose, given that it was in Mr Cream’s handsand he might be said to have defied Mr Lynch. It was notunreasonable for Mr Lynch, even if Mr Cream did notuse the hose again, to assume that he would, or to justifyhim taking action to prevent its use.

85 The Commissioner also found, and there was evidenceto support it, that Mr Cream sustained a blood nose when,not because, Mr Lynch took the spray from him. She didnot make a finding that this was because Mr Lynch did ordid not strike him, observing that whether either was theaggressor or not was irrelevant. However, this was afinding made after considering the evidence of Mr Blume,Mr Lynch and Mr Cream. What finally and significantlythe Commissioner found was that, given his view thatMr Cream was “crazy”, Mr Lynch should not haveattempted to take the hose away and (as Mr Clementssuggested in evidence) reported the matter to thesupervisor, Mr Constantino. In my opinion, it was opento find that attempting to take the hose away in thecircumstances was not unreasonable when aremonstration against the spraying was ignored and whenMr Lynch was treated with contempt, whether Mr Creamwas crazy or not. Equally, it might have and should havebeen found that Mr Cream, having upset Mr Lynch,


should have let the hose go and otherwise apologised ormollified him.

86 In my opinion, it was not open to the Commissioner tofind that Mr Lynch’s conduct constituted a breach ofconduct such as to justify a summary dismissal, becauseit was open to find as follows.

87 Mr Lynch was doing his work and minding his business.Mr Cream sought to attract his attention in a manner suchas to at least annoy Mr Lynch because he deliberately ornegligently hit him in the ear with a jet of water from ahigh pressure hose. When Mr Cream was told, somewhatfirmly and understandably, not to do it again, he stoodthere still holding the hose and jeering. Alternatively, hesquirted Mr Lynch a second time, this time full in theface, which was even more serious provocation.

88 The Commissioner did not find which version was correctbut, in any event, the squirting and subsequent conductwas sufficient to make Mr Lynch seize the hose, whichwas understandable, for my own part, given that MrLynch’s evidence was corroborated by Mr Blume. In anyevent, the Commissioner found that the only reaction tothe provocation was Mr Lynch’s attempt to take the hosefrom Mr Cream. That was the only conduct which shecriticised Mr Lynch for, impliedly because that led to theensuing struggle. That was the evidence of reaction whichthe Commissioner accepted. It was plainly open to her todo so.

89 The incident did not, relevantly, develop into a fullblooded fight, but became a wrestling match.

90 It was significant, too, that the reaction was out ofcharacter for Mr Lynch, and was a mild reaction. Theprovocation, in my opinion, was sufficient to cause asenior, competent, experienced worker to seize the hose.The ongoing struggle occurred because Mr Cream steppeddown and wrestled Mr Lynch instead of letting the hosego.

91 Further, this was not a decision by Mr Lynch to fight buta decision, under provocation, to stop further sprayingfor the second or third time. It was a reasonable reactionand not a disproportionate retaliation, if retaliation it were.For my part, I am of opinion that it was more a form ofself defence. It was relevant to consider, too, that thiswas an event which occurred when a person with a historyof fighting in the workplace and elsewhere, provoked andoffended a responsible employee, with no history ofdifficulty with other employees, going about his business.Mr Cream’s behaviour, whether there was one or twosquirtings, was calculated to and did provoke Mr Lynchto the action which he took and which a reasonable personwould have taken.

92 It was, I think, quite unreasonable, when it was open tofind that he may have been sprayed a second time or thathe had been sprayed a second time, to expect Mr Lynchto go to a supervisor and not to grab the hose. The problemarose because Mr Cream then stepped off the block,having not dropped the hose and grappled with Mr Lynch.As the Commissioner found it, Mr Cream was not struckon the nose, but had his nose hurt because Mr Lynchgrabbed the hose and there was a struggle, as I understandthe finding; which was clearly open to be made.

93 That he did not report the matter to the supervisor who,on the evidence, was not in the vicinity, was not asufficient reason given the provocation, to find that MrLynch’s act was so serious as to warrant dismissal.

94 A consideration of those factors should properly haveled the Commissioner to find that the summary dismissalwas unjustified.

95 I would add that it was open to find, were it necessary,that Mr Cream was not a credible witness. First, hisambiguous admission or denial (it is difficult tocharacterise it properly) in cross-examination that hesquirted Mr Lynch a second time, was significant. Second,Mr Cream clearly said that he had no problems withanyone at work, which was, on his own evidence, quiteuntrue. Then, he was forced to admit that he had beeninvolved in two physical confrontations with two otheremployees and had been dismissed from previous

employment for fighting. In addition, he was guilty of anact of criminal violence in respect of which he hadreceived medical treatment. In my opinion, it was opento find that Mr Cream, because of that conspicuous andimportant lapse (and possibly his ambiguous admission),was not a credible witness.

96 Nor was Mr Lynch’s credibility reducible because of hisdiscussions of what occurred with Mr Boardman. Quiteclearly, on the evidence of both, was that Mr Lynch gavehis version of events to Mr Boardman and asked him tothink about it. He also asked him to be a witness. Therewas nothing wrong in either.

97 Therefore, it was then open to the Full Bench to findthat, in the alternative, the Commissioner could and shouldhave preferred Mr Lynch’s and Mr Blume’s evidence;and to further find that Mr Lynch, corroborated by MrBlume, should be believed and Mr Cream should not,and that the provocation consisted of two squirts with ahigh pressure hose, one full in the face after Mr Lynchhad remonstrated about the first such incident. That doesnot affect the finding that Mr Lynch was unfairlydismissed for acting as he did after one squirt only, but itwould make his position even stronger.

98 It was open, for those reasons, too, to find that thedismissal was unfair.

99 In addition, the employer failed to afford proceduralfairness and, if it had done so, may have decided ondisciplinary action other than termination.

100 Further, notwithstanding the seriousness of fighting asmisconduct, the facts that Mr Lynch was a good employeewith twenty years of service in the meat industry,competent and experienced, that termination was a veryserious step, and that he had little education and no othertraining, were very relevant and should have beenconsidered and given substantial weight.

101 Even given that, he had only seized the hose at first. Itwas open to find that, if procedural fairness were afforded,it should have altered the outcome and, for that reasonalone, the dismissal was unfair, even without the clearsubstantial unfairness.

102 In my opinion, whilst the Commission is not a surrogatemanager, it is fair to observe that a period of suspensionfor Mr Lynch might have been a condign penalty to reflectthe nature of his conduct.

FINALLY103 I have considered all of the evidence and all of the

submissions. For all of the reasons which I have expressed,the appellant established on the evidence that the dismissalshould have been found to be harsh, oppressive and unfair,within the principles in Miles and Others t/a UndercliffeNursing Home v FMWU (IAC) (op cit).

104 I would find that the exercise of discretion at first instancemiscarried, for those reasons. I would also make thosefindings which I have said the Commissioner should havemade or that it was open to her to make. I would, forthose reasons, substitute the discretion of the Full Benchfor that of the Commission at first instance and make afinding and declaration that the dismissal was harsh,oppressive and unfair. I would not think that the FullBench should determine the remedy applicable.

105 I would, for those reasons, uphold the appeal, suspendthe decision made at first instance and remit the matter tothe Commission at first instance to determine the questionof remedy according to law.

CHIEF COMMISSIONER W S COLEMAN—106 I have had the advantage of reading the draft of the reasons

for the decision of the Honourable President. Thecircumstances which gave rise the dismissal which is thesubject of this appeal are set out in detail therein. I adoptthem for the purpose of this decision. I agree that theappeal should be upheld.

107 In the first instance the learned Commissionercorrectly identified the legal issues going to the onusin cases of alleging unfair dismissal and requirementsan employer must meet where summary dismissal hasbeen effected.


108 In this case evidentiary onus is not displaced by theemployers general directive that “…fighting engagedon the plant, irrespective of whether one personassaults another or fighting involves two peoplefighting each other: will result in the instant dismissalof offending parties.” It appears that initially thelearned Commissioner did not accept that the directivedisposes of the matter. Indeed it would be wrong todo so. The Commissioner properly identified thatwhile it is clear that a physical altercation had takenplace there was an issue as to whether the appellantmember’s Mr Lynch was an assailant or a victim. Thedetermination of that matter was of fundamentalimportance to the disposition of the claim.

109 After reciting evidence from both sides present in thehearing the learned Commissioner went on toconclude that the dismissal was not harsh, oppressiveor unfair. This was based on findings going to thenature of the workplace and that it is dangerous toengage in physical altercations when wearingslaughtering knives. The fact of Mr Lynch’sexperience as a union delegate, as a rover in theabattoir and a senior employee with obligations toobserve safe practices and to take steps to ensure thathis workmates were not endangered by his actionswere sighted. From the evidence of the twoprotagonists and of the witness called to support MrLynch, the learned Commissioner concluded that MrCream had sustained a blood nose when Mr Lynchattempted to take the spray hose from him. It wasdeemed irrelevant whether Mr Lynch or Mr Creamwas the aggressor at that point. However it was foundthat Mr Lynch should not have attempted to take thehose from Mr Cream as Mr Lynch regarded Mr Creamas “crazy”. According to the learned Commissioner,in the circumstances Mr Lynch should have simplywalked away and reported the matter. With respect Ido not think that these findings properly address theissue which the learned Commissioner correctlyidentified, that is whether or not Mr Lynch was anassailant or a victim. It appears that merely on thebasis that there was physical contact Mr Lynch wasable to be summarily dismissed in accordance withthe employer’s directive. There was no scope for theunfairness of the dismissal to be tested and indeed nofindings were made on the evidence presented otherthan that which led to the learned Commissionerconcluding that Mr Cream had sustained a blood nosewhen Mr Lynch attempted to take the spray hose fromhim. Indeed it was considered irrelevant to determinewho was the aggressor.

110 The circumstances of the case required findings from theevidence as to whether Mr Lynch had been subjected toone or two physical assaults by Mr Cream with the highpressure water hose, whether his response in the firstinstance was reasonable, had he sought to protect himselffrom further injury or aggression by attempting to takethe hose or had he responded disproportionately in thecircumstances. None of these issues were addressed inthe first instance.

111 These were matters raised in evidence and were materialconsiderations which should have been addressed. In viewof this and in accordance with the principle in House vThe King [1936] 55 CLR 499 at 505, the Full Benchhaving reviewed the evidence should exercise its owndiscretion in substitution of the Commission in the firstinstance.

112 For the reasons set out by His Honour the President Iconsider that the grounds of appeal have been made outand that the dismissal was harsh, oppressive or unfair.The decision at first instance should be suspended andthe matter remitted to the Commissioner to determinethe relief to be granted.

COMMISSIONER P E SCOTT—

113 The reasons for decision of His Honour, the President,set out the background of this matter and the grounds ofappeal, so there is no need for me to repeat them.

114 The Commission at first instance heard conflictingevidence as to the events which took place between MrLynch and Mr Cream, and of what took place followingtheir altercation. It is significant that the Commission atfirst instance made very few findings. She made a findingthat Mr Cream sustained a blood nose when Mr Lynchattempted to take the spray hose from him. TheCommission made no findings as to credibility of thewitnesses, as to the conduct between Mr Lynch and MrCream, whether Mr Cream sprayed Mr Lynch once ortwice, whether Mr Lynch was provoked and whether ornot his reaction was reasonable in the circumstances. Thelearned Commissioner merely concluded that Mr Lynchought not to have reacted in the way he did. Given thelearned Commissioner’s comments at the conclusion ofthe hearing regarding procedural fairness, the lack ofspecific findings as to the procedural aspect of this matteris surprising. However, I note that the appellant did notpursue ground 4 of the appeal on the basis that he saidthat a finding relating to procedural fairness was implicitin the Commissioner’s conclusions.

115 The lack of findings in those areas must be significant ina matter such as this. As His Honour, the President, notedin his reasons, had the learned Commissioner dealt withthose matters and made findings, a different conclusionwas open to her. In those circumstances, the lack offindings meant that proper conclusions could notreasonably be reached.

116 On this basis, I would uphold grounds two, five and six.The correctness or otherwise of the Commissioner’sconclusions and the success or otherwise of the othergrounds of appeal are difficult to determine in light ofthe lack of findings. I would uphold the appeal on thisbasis.

117 As to the relief sought, I note the principles in Devriesand Another v Australian National Railways Commissionand Another (1992—1993) 177 CLR 472 at 479 (HC),where the majority held as follows—

“The finding of fact by a trial judge, based on thecredibility of a witness, is not to be set aside be-cause an appellate court thinks that the probabilitiesof the case are against—even strongly against—thatfinding of fact. If the trial judge’s finding dependsto any substantial degree on the credibility of thewitness, the finding must stand unless it can be shownthat the trial judge “has failed to use or has palpablymisused his advantage” or has acted on evidencewhich was “inconsistent with facts incontrovertiblyestablished by the evidence” or which was “glaringlyimprobable”.”

118 In these circumstances, the Full Bench is not in the sameposition as the Commission at first instance to makefindings and come to conclusions where there was conflictin the evidence to the extent that there was in the matterbefore the Commission in the first instance. I would remitthe matter to the Commission to determine the matteraccording to the evidence, for the necessary findings tobe made and for the matter to be dealt with according tolaw.

THE PRESIDENT—

119 For those reasons, the appeal is upheld, the decision atfirst instance suspended and the matter remitted to theCommission at first instance.

Order accordingly



INDUSTRIAL RELATIONS COMMISSION.PARTIES WEST AUSTRALIAN BRANCH,

AUSTRALASIAN MEAT INDUSTRYEMPLOYEES’ UNION, INDUSTRIALUNION OF WORKERS, PERTH,APPELLANTv.GERALDTON MEAT EXPORTS PTYLTD, RESPONDENT



Decision Appeal upheld, decision at first instancesuspended and matter remitted to theCommission.

AppearancesAppellant Mr R Castiglione (of Counsel), by leaveRespondent Ms M G Saraceni (of Counsel), by leave,

and with her,Mr M Darcy

_______________________________________________________________________________

Order.This matter having come on for hearing before the Full

Bench on the 1st day of August 2001, and having heard Mr RCastiglione (of Counsel), by leave, on behalf of the appellantand Ms M G Saraceni (of Counsel), by leave, and with her MrM Darcy on behalf of the respondent, and the Full Bench hav-ing reserved its decision on the matter, and reasons for decisionbeing delivered on the 21st day of August 2001, it is this day,the 21st day of August 2001, ordered and declared as fol-lows—

(1) THAT appeal no. FBA 26 of 2001 be and is herebyupheld.

(2) THAT the decision of the Commission in matter NoCR 4 of 2001 given on the 4th day of May 2001 beand is hereby varied by deleting the order made dis-missing the application and substituting therefor adeclaration in the following terms—

“THAT Mr Maxwell James Lynch washarshly, oppressively or unfairly dismissed bythe respondent, Geraldton Meat Exports PtyLtd”.

(3) THAT the decision made at first instance be and ishereby otherwise suspended and application No CR4 of 2001 is hereby remitted to the Commission atfirst instance, to determine the question of remedyin accordance with the reasons for decision and ac-cording to law.


[L.S.] President.


INDUSTRIAL RELATIONS COMMISSION.PARTIES MARIO PIETRACATELLA,

APPELLANTv.W.A. ITALIAN CLUB (INC),RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P JSHARKEYCOMMISSIONER J F GREGORCOMMISSIONER S WOOD


Decision Appeal dismissed.AppearancesAppellant Mr G A Lacarenza (of Counsel), by leaveRespondent Mr C S Fayle, as agent_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 This is an appeal by the abovenamed appellant against

the whole of the decision of the Commission, constitutedby a single Commissioner, given on 28 March 2001. Thedecision by the Commission was that the application bythe appellant, made pursuant to s.29 of the IndustrialRelations Act 1979 (as amended) (hereinafter referred toas “the Act”), be dismissed.

GROUNDS OF APPEAL2 It is against that decision that the appellant appeals on

the following grounds—“1. The learned Commissioner erred in law and or in

fact in deciding that the Applicants (sic) applica-tion be dismissed pursuant to S27(a)(ii) of theAct on the basis that further proceedings werenot necessary or desirable in the ‘Public Interest’as—

(a) The Applicants claim was properly broughtbefore S29 of the Act being a claim for‘Unfair Dismissal’. Whether notice of ter-mination was provided or whethertermination was summarily as pleaded isnot a determinative issue as the only crite-ria to be satisfied under the Act is that of“unfair” dismissal.

(b) At all times the Appellant/ Applicant notedin his Form 1 Particulars of Claim andFurther and Better Particulars that this dateof dismissal was the 22nd June 2000.

(c) The function of ‘Particulars’ was to elabo-rate and plead the material facts in supportof the Appellant/ Applicants (sic) claim forUnfair Dismissal, which the Particularsfiled and dated the 22nd March 2001achieved.

(d) The Particulars did not raise ‘new issues’but pleaded material and relevant facts thatwould enable the Respondent a fair oppor-tunity to meet and answer the Appellant/Applicants (sic) case.

(e) There was ‘no prejudice’ or ‘sufficientprejudice’ to the Respondent on receipt ofthe Particulars the 22nd March 2001 as theTrial was listed for the 2nd and 3rd of April2001. In the alternative, any perceived oractual prejudice would be cured by a re-scheduling of Trial dates and any issues asto costs or penalties reserved for the Com-missioners (sic) discretion at the eventualhearing.


(f) The allegations of prejudice raised by theRespondent were not significant or deter-minative of the issues before the learnedCommissioner as—(i) At all times the Respondent had the op-

portunity of obtaining instructionsfrom its Committee members in theintervening period between the 22nd

March 2001 and the 2nd April 2001.(ii) The allegations raised by the Respond-

ent that the Respondents (sic)Committee is ‘dysfunctional’ was nota relevant or appropriate considerationas the issues of dysfunctionality of theCommittee is not related to the Appli-cants (sic) claim.

(iii) The Respondents allegation that noticeof dismissal was given the 22nd June2000 for the FIRST-TIME in the Par-ticulars is not sustainable as theAppellant/ Applicant at all materialtimes stated in his Form 1 that the dateof termination was the 22nd June 2000.

(g) At all material times the delay in the filingof ‘the particulars’ was not due to any faulton the part of the Appellant/Applicant andthe prejudice suffered by the Appellant/Applicant outweighs any prejudice suf-fered by the Respondents.

(h) The failure of the Appellant/Applicant toattend to the request for Particulars is (sic)a timely way was not fatal to the Respond-ents claim as—(i) The Trial dates had already been listed

(ii) There was no sufficient reasons for therespondents to seek to vacate the trialdates.

(iii) No application to vacate the trial datesof the 2nd and 3rd of April 2001 wasmade by the Respondent.

(iv) No evidence was provided to thelearned Commissioner of what costs orwhat reasonable costs by way of ques-tion had been expended thus for andwould further be expended if an ad-journment of the trial dates wasnecessitated.

(i) The learned Commissioner did not weighup sufficiently that the Form 1 particularswere prepared in a sketchy and brief man-ner by the Appellant/ Applicant in personand that the subsequent Particulars did notraise a ‘different claim’ but a properlypleaded claim informing the Respondentof the material facts to be met.

(j) Her Honor (sic) misdirected herself as tothe meaning of Subsection (ii) of Section27(i) a—“that further proceedings are notnecessary or desirable in the public inter-est” when applying the particularcircumstances and facts pertaining to theAppellant/Applicants (sic) case before theCommissioner.”

BACKGROUND3 The appellant, as the applicant at first instance, made an

application to the Commission and sought relief pursuantto s.29 of the Act, which was filed in this Commission on23 June 2000, alleging that he had been harshly,oppressively or unfairly dismissed by the respondentemployer club, and/or that he had been denied outstandingbenefits which were non-award entitlements to which hewas entitled pursuant to his contract of employment.

4 An application by the respondent to strike out theapplication was heard by the Commission on 23 March2001. The Commissioner then decided that she woulddismiss the application pursuant to s.27(1)(a)(ii) of the

Act since she was satisfied that further proceedings werenot necessary or desirable in the public interest.

5 The history of the matter was as follows. The appellantstated in his application that he was employed as a chefand started work as an employee of the respondent on 8May 2000 and that his employment was terminated on22 June 2000.

6 Under the heading in his application “Why do you claimyou are unfairly dismissed?” (paragraph 20), the appellantreplied “Last Friday I was called in the office and told Iwas dismissed.” He also claimed that he was not seekingreinstatement but compensation of four to six weeks’ pay,being an amount between $3,325.00 and $4,988.50 (seepage 10 of the appeal book (hereinafter referred to as“AB”)).

7 On 13 July 2000, the respondent filed a Notice of Answerand Counter Proposal, the particulars of which stated thatthe appellant was informed on 13 June 2000 by theManager of the club that his employment would beterminated and he was given one week’s notice oftermination. It was also stated that he worked until 22June 2000.

8 A meeting of the parties was convened by DeputyRegistrar Bastion of this Commission on 22 August 2000.At that meeting, an offer was made to resolve the matteron behalf of the respondent, but the matter was notresolved.

9 The Commissioner then held a conciliation conferenceon 17 October 2000, pursuant to s.32 of the Act, at theconclusion of which the matter was again not resolved,and the appellant advised the Commission that he wishedto list the matter for hearing. He also said that he intendedto brief Mr G Lacarenza of Counsel to appear on hisbehalf.

10 After that, solicitors having been instructed by theappellant, the Commissioner, after consulting with theappellant’s solicitor and the agent for the respondent abouthearing dates, on 20 November 2000, listed the matterfor hearing and determination on 5 and 6 February 2001.

11 There was an application made by the respondent’s agenton 24 November 2000 for Further and Better Particularsof Claim. The Commissioner advised the respondent’sagent that, before the application for particulars could beconsidered by the Commission, the respondent shouldwrite to the appellant’s solicitor and request further andbetter particulars. On 4 December 2000, such a requestwas conveyed in writing to Mr Lacarenza.

12 On 4 January 2001, the respondent’s agent wrote to theCommission advising that he had not received a responseto his letter of 4 December 2000. The letter also requestedthat the Commission deal with the respondent’sapplication for particulars, claiming consideration shouldbe given to vacating the hearing dates on the basis that,in the absence of particulars, the respondent might becaused unnecessary prejudice. The letter also advised thatthe respondent’s agent had been informed that MrLacarenza’s office was closed until 15 January 2001.

13 The Commission listed the application for a furtherconference on 17 January 2001. The conference wasattended by Mr Skivinis from the office of G ALacarenza and Associates, Solicitors, together withthe appellant. Mr C S Fayle, the agent for therespondent, together with the respondent’s SecretaryManager, Mr Perroni, appeared on behalf of therespondent. In fact, this was not a true directionsconference, but a type of directions hearing.

14 At the conciliation conference, the parties agreed that thedates of hearing, namely 5 and 6 February 2001, shouldbe vacated and that—

“(a) The Applicant provide further and better particu-lars of why it is alleged he was harshly andoppressively dismissed and in relation to his claimfor four to six weeks’ compensation;

(b) The Applicant’s further and better particulars beprovided to the Respondent and filed within 21days;


(c) The Respondent to file and serve an amendedAnswer within 14 days of the receipt of the Ap-plicant’s further and better particulars;

(d) Mr Fayle and Mr Lacerenza to provide to Com-missioner Smith’s chambers unavailable dates forMarch and April by close of business 25 January2001.”

15 The Commissioner then, having ascertained the dateswhen Mr Lacarenza and Mr Fayle were available, re-listedthe matter for hearing and determination on 2 and 3 April2001.

16 The Commission’s file revealed, as the Commissionerfound, the following—

(a) That further and better particulars of the applica-tion were not filed by 7 February 2001.

(b) On 16 February 2001, Ms Kotsopoulos, a Cham-bers Liaison Officer, left a message with a personcalled Natalie at Mr Lacarenza’s office inquiringwhether the further and better particulars had beensent to the respondent’s agent.

(c) On 7 March 2001, Mrs Edwards, the Associateto the Commissioner, telephoned Mr Lacarenza’soffice enquiring whether the further and betterparticulars had been provided and filed.

17 On 20 March 2001, the Commission received anapplication by letter from the respondent’s agentrequesting that the appellant’s application be dismissedpursuant to s.27(1)(a) of the Act. That letter relevantlystated as follows—

“…As of this date the Respondent has not received anycorrespondence from the Application re his Claim,and believes that the order of the 17th January hasbeen ignored. The order was made in the first placebecause the Respondent was unable to understandwhat the claim was, and therefore unable to prop-erly prepare its case. The situation is not onlyunchanged in this regard, it has now assumed a po-sition whereby the Respondent faces significantprejudice if this matter is to go ahead on the datesset. Even if the Applicant complies with the Ordertoday, the Respondent now has less than the allo-cated 14 days in which to prepare for a two-dayhearing.The Respondent therefore asks that the Commissionexercises its powers under Section 27(1)(a) of theIndustrial Relations Act 1979 and dismisses theApplication. The inability of the Applicant and hisRepresentative to supply any Further and Better Par-ticulars of Claim clearly shows the triviality of hisclaim. Further, and in the alternative, it is submittedthat it is not in the public interest to subject the Re-spondent, a non-profit organisation, to theinconvenience and expense of defending itself in atwo-day hearing into mystery allegations. If therewas any substance to anything we should have knownby now.”

18 The Commission listed the application to strike out forhearing on 23 March 2001.

19 On 22 March 2001, further and better particulars ofclaim were faxed to the respondent’s agent by theappellant’s solicitor and were filed in the Commissionon that day.

20 Paragraphs 4 to 9 of the further and better particulars ofclaim states as follows—

“4. The Applicants employment ceased on the 22nd

day of June 2000 where the manager a Mr PPerroni for the Respondent informed the Appli-cant that the Central Committee had discussedhis employment the evening of the 21st day ofJune 2000 and dismissed him from his employ-ment.

5. No reasons were provided to the Applicant as towhy he was dismissed and no opportunity wasafforded to the Applicant to speak to the Com-mittee in respect of his apparent dismissal.

6. Subsequently the Applicant was informed by in-dividual members of the Committee that the issueof his dismissal was not discussed and did notform the agenda of its meeting the 21st day ofJune 2000.

7. The Applicant was unlawfully and unilaterallydismissed by the Secretary of the Club by falselyrepresenting to the applicant that the terminationof employment came from the committee whenin fact that was not true.

8. Accordingly the Applicant left the employ of theRespondent under a false assumption that he hadbeen dismissed when in fact it was the actions ofthe Secretary who acted without authority at alltimes.

9. In the premises the Applicant had suffered lossof face, and reputation in the eyes of the ClubMembership.”

(See pages 57-58 (AB).)21 Certain submissions were made to the Commission at

first instance by the respondent in support of theapplication to strike out the appellant’s claim and for anorder that the claim be dismissed and these were asfollows—

“(a) The further and better particulars raise a differ-ent case to that raised in the Applicant’sapplication filed on 23 June 2000. In particularthe Applicant claims that he was informed thathe was to be dismissed on 16 June 2000 and thenworked for a week, whereas the further and bet-ter particulars of claim state that the Applicantwas informed his employment was terminated on22 June 2000. Accordingly the Applicant’s claimhas changed from termination of employment bythe giving of notice to a claim that he was sum-marily dismissed.

(b) The particulars raise new issues in that it isclaimed that the Respondent’s Secretary/Managerdid not have the authority of the individual mem-bers of the Respondent’s Committee ofManagement to terminate the employment of theApplicant. Further it is claimed that the issue ofthe Applicant’s dismissal was not discussed at theCommittee meeting on 21 June 2000.

(c) In light of the allegations set out in the furtherand better particulars the Respondent would beprejudiced if the trial proceeds on 2 and 3 April2001. Firstly because the Respondent needs tospeak to its members of its Committee (who weremembers in June 2000) about an alleged meetingon 21 June 2000. Mr Fayle on behalf of the Re-spondent informed the Commission that theRespondent’s Committee is dysfunctional andthat it may be difficult to speak to those mem-bers. Secondly in light of the fact that theRespondent has been given notice for the firsttime that the Applicant was not informed hisemployment was terminated until 22 June 2000,the Respondent needs to locate an ex-employeeof the Respondent who was employed to replacethe Applicant and who commenced work in theApplicant’s last week of employment.”

(See page 24 (AB).)22 Mr F F G Voon of Counsel, who appeared on behalf of

the appellant at that hearing, advised that the reason whythe particulars of claim were not attended to until 22March 2001 was because of inadvertence by his firm.There was then discussion with Mr Voon in which it wasobserved that the particulars of claim appeared to beinconsistent with the application in that the nature of theclaim had changed from termination of the contract ofemployment by the giving of notice, to an allegation ofsummary dismissal.

23 Mr Voon sought a short adjournment and took furtherinstructions from the appellant, after which he informedthe Commission that the appellant recalled that there wassome discussion about a week before he was terminated,


but that he was not given notice that his employment wasterminated until 22 June 2000.

24 It was submitted on behalf of the appellant that theCommission should not exercise its discretion to dismissthe application since the reason why the further and betterparticulars were not provided to the respondent wasbecause of an oversight by the appellant’s solicitors andnot the fault of the appellant himself. Further, it wassubmitted that he would suffer an injustice if his claimwas struck out, that the claim was not trivial, and that hewas ready to proceed to hearing on 2 April 2001.

25 The Commissioner then went on to conclude that furtherproceedings were not necessary or desirable in the publicinterest and that she would order, pursuant to s.27(1)(a)(ii)of the Act, that the appellant’s claim be dismissed for thefollowing reasons—

“(a) I accept that the Applicant has not personally beenresponsible for the failure to attend to the requestfor further and better particulars in a timely way.Further I have had regard to the consequences tothe Applicant of dismissing his claim and to quan-tum of his claim. However, in my view, theconsiderations set out below are matters in thepublic interest that outweigh the prejudice to theApplicant.

(b) All Applicants have a duty to prosecute theirclaims without any delay.

(c) In Kangatheran v Boans Limited (1987) 67 WAIG1112 at 1113 the Full Bench approved of remarksmade by a Commissioner at first instance “thatthe proceedings were expensive proceedings andthat in the public interest there was a necessityfor the Applicant to assiduously apply himself tothe pursuit of his claim …”.

(d) In this matter the failure to attend to the requestfor particulars in a timely way—

(i) Resulted in vacation of the dates set forhearing in February 2001; and

(ii) Would have necessitated the dates set forhearing in April 2001 be vacated.

(e) The consequence of the failure to provide furtherand better particulars is that costs are incurred tothe Respondent, in that this Commission has nopower to make any award for professional coststhat the Respondent has incurred in getting upfor an application for an adjournment of the hear-ing on 17 January 2001 and for the applicationto dismiss (Brailey v Mendex Pty Ltd t/a Mairand Co Maylands (1992) 73 WAIG 26).

(f) I am satisfied that the further and better particu-lars raise a different claim. Accordingly, I havehad regard to the fact that it is not desirable in thepublic interest for a Respondent to be confrontedwith a different claim at a late stage of the pro-ceedings which would necessitate a furtheradjournment of these proceedings.

(g) Further I have had regard to the fact that there isa cost to the public in vacating trial dates at a latestage of proceedings.”

ISSUES AND CONCLUSIONS26 The decision at first instance was a discretionary decision,

as that term is defined in Norbis v Norbis (1986) 161CLR 513 (see also Coal and Allied Operations Pty Ltd vAIRC (2000) 74 ALJR 1348 (HC)). It is trite, therefore,to observe that, for the appellant to succeed, it wasnecessary for the appellant to establish that the exerciseof discretion by the Commission at first instance hadmiscarried, according to the principles laid down in Housev The King [1936] 55 CLR 499 (see also GromarkPackaging v FMWU 73 WAIG 220 (IAC)).

27 If the appellant does not establish that the exercise of thediscretion at first instance miscarried according to thoseprinciples, then the Full Bench can have no warrant tointerfere with that exercise of discretion.

28 In this matter, what occurred was a matter of record and,in any event, not in issue before the Full Bench. I have

detailed it above, as was the fact and as the Commissionercorrectly found.

29 This matter was commenced by an application filed aboutnine months before the hearing of the order to strike outthe application. An answer and counter proposal had beenfiled. There were then two s.32 conciliation conferenceswhere no agreement was reached. The matter was thenlisted for hearing on 20 November 2000, to be heard twoand half months later on 5 and 6 February 2001.

30 In the meantime, after a request for further and betterparticulars was inexplicably made to the Commission, arequest for further and better particulars to the appellant’ssolicitors was made on 4 December 2000. In fairness tothe solicitors for the appellant, I should observe that theydid not become involved in the matter until November2000.

31 The request for particulars was made after the matter waslisted for hearing in February 2001 and almost five monthsafter the answer and counter proposal was filed. Therewas no provision of further and better particulars inanswer to that request.

32 That necessitated what amounted to a directions hearingin the Commission on 17 January 2001, at whichagreement was reached between the parties, primarily tovacate the dates set for the hearing, that having occurredover a month after the request for further and betterparticulars was made. There were also agreed the othersteps to be taken, which I have mentioned above and,particularly, the appellant’s agreement by his solicitorsto provide further and better particulars twenty-one dayslater; that is, on or before 7 February 2001.

33 The matter was then listed for hearing in the Commissionon 2 and 3 April 2001 which was six weeks after theevent. No further and better particulars were providedwithin time and had not been provided more than twomonths after the agreement to provide them of 17 January2001.

34 The application to strike out was requested by letter bythe respondent on 20 March 2001, over two months after17 January 2001, and listed for hearing on 23 March 2001.In the meantime, on 22 March 2001, over two monthsafter the event and ten days before the hearing was due tocommence, the further and better particulars were filedin the Commission. I should add that this was close tofour months after the request for further and betterparticulars was made on 4 December 2000.

35 The further and better particulars alleged, for the firsttime, it was said, a summary dismissal and not atermination. More materially, the appellant alleged anunauthorised and unlawful dismissal effected by theSecretary of the respondent without the knowledge orconsent of the respondent’s Committee of Management.Moreover, the particulars did not, as was agreed, provideparticulars of the appellant’s claim for four to six weeks’compensation. In particular, whether there was alleged aloss of four or six weeks’ wages was not made clear. Theonly particular of claim for compensation was for injury.

36 It was submitted to the Commission at first instance byMr Fayle, for the respondent, inter alia, that the claim forsummary dismissal was a new one and that the nature ofthe particulars was such as to require the obtaining ofinstructions from an ex-employee and from members ofthe Committee of Management. From that submission, itfollowed that, within the ten days available, there wasnot sufficient time to prepare and a further adjournment,a second adjournment of the hearing date, would berequired.

37 It was part of the submissions for the respondent, too,that, if there was an adjournment, there was not availablea sufficient remedy in costs which there is not (sees.27(1)(c) of the Act which does not permit an order ofcosts for the services of a legal practitioner or agent).

38 What is certain was that there was an unexplained delayin the providing of further and better particulars from 4December 2000 to 22 March 2001. What is the fact isthat further and better particulars had been agreed to beproduced long before the second set of dates fixed for


the hearing. What is the fact, too, is that the solicitors forthe appellant did not attend to the provision of furtherand better particulars before a set of hearing dates andthen not until ten days before a second set of hearingdates in April 2001. There was an admitted fault on thepart of the appellant’s solicitors.

39 What was also open to be found is that the further andbetter particulars, when they were provided, did raisedifferent grounds requiring the obtaining of instructionsand the interviewing of certain witnesses, within ten days,a time span which was not enough. That the time spanwas not enough was not disputed.

40 What was disputed was that the respondent’s answer,which was detailed, was a reflection that the respondent’sagent was sufficiently instructed to deal with the matter,including the allegation of summary dismissal withoutcause. There is some substance in that argument becausethe answer and counter proposal details allegations ofmisconduct. By the application filed, it was alleged(paragraph 20) that the appellant was called in and toldthat he was dismissed without reason being given (“lastFriday”) and “by the Committee member” (sic).

41 That, in my opinion, might well have been sufficient toindicate an allegation of unjustified summary dismissal.However, the particular which alleges that the dismissalwas unauthorised by the Committee is entirely new, theparticulars of the alleged dismissal as to time, date andother circumstances are new, and the need to obtaininstructions and/or statements from the Committeemembers and an ex-employee would require time.

42 In all of the circumstances, including the uncontrovertedassertion that the Committee of Management wasdysfunctional, it was open to correctly find that ten daysmight not be a sufficient time to interview all witnessesand obtain instructions. Further, there was noparticularisation, as agreed, of the loss. In addition, thequestion of the ability to file and serve the further amendedanswer and counter proposal within the agreed time wasnow also in doubt.

43 The fact that these matters were to be attended to byagreement and not by order did not relieve the appellantof the obligation undertaken by him through his solicitors,or his solicitors, because what was given was anundertaking, or tantamount to an undertaking, by hissolicitors to do certain things including to provideparticulars within a certain time. There is no valid reasonsubmitted why the appellant should be relieved of thatundertaking and the consequences of non-compliancewith it by his solicitors. (The appellant is, in any event,bound by their acts (see s.31(3) of the Act.)

44 For the reasons which I have outlined, particularly thevery late filing of particulars after a first date of hearinghad to be vacated, is a clear occasion of prejudice.

45 It was submitted that the Commissioner did not, on 23March 2001, discharge her duties pursuant to s.32 of theAct to conciliate the matter. I must say that, as I understandit, she had already determined in November 2000,following two s.32 conferences where no agreement wasreached, to arbitrate the matter which she had listed forhearing for that purpose. Further, the matter was listed asecond time for hearing by agreement of the appellant’ssolicitors. This followed on the vacation of the first datesfor hearing because of the fault of the appellant, throughhis solicitors. There is no merit in that submission.

46 It is trite that the error, as the Commissioner found, wasnot that of the appellant, but of his solicitors, but therewas an unexplained delay in the provision of particularsof about four months which would reasonably lead to asecond hearing, which was listed without properrecompense in costs, being adjourned.

47 As was observed in similar terms in Kangatheran v BoansLimited (FB)(op cit), it is not in the public interest (sees.26(1)(c) of the Act) that matter should not beexpeditiously dealt with in this jurisdiction. There is nodoubt that the appellant did not assiduously pursue hisclaim. In this case, there was a failure to provideparticulars until nearly four months after the request andten days before the second listed hearing, and only after

an application to dismiss the application had been filedand served.

48 Further, for the reasons which I have expressed, theinterests of the respondent required a resolution of thematter. When the order was made, the point had beenreached where the delay and the loss of two separatehearing listings, because of unexplained and insupportabledelays caused by the appellant, meant that the prejudiceoccasioned to the respondent was outweighed by the delayand irrecoverable expense caused by the omissions ofthe appellant by his solicitors. That it was not his personaldoing is outweighed, in this case, by that factor, by theextent of the delay, and by the public interest in savingunnecessary expense and requiring a “litigant” in thisjurisdiction to be reasonably assiduous and prompt.

49 Further, there was no submission that the merits of thecase were such as to merit a hearing, although, to be fair,it was not suggested either on behalf of the respondentthat there was no merit. Nonetheless, I would have thoughtthat that was a matter which should have been submittedin opposition to the application to dismiss.

50 For those reasons, it was open to the Commissioner atfirst instance to find as she did and she was correct to doso. In particular, she was correct to find as she did and asI have reproduced those findings (supra) in paragraph 25of these reasons.

51 There was no error established in the exercise of theCommissioner’s discretion at first instance. She correctlydismissed the application. For those reasons, I dismissedthe appeal.

COSTS52 The agent for the respondent in this matter made an

application for an order that the appellant pay the costsof the appeal which were, in fact and correctly,disbursements.

53 The Full Bench decided, following the reasons fordecision in Re an application by CMETSWU 78 WAIG1585 (FB), that this appeal was not such an extreme caseas to warrant an order for costs. There was sufficient meritin the appeal to require it to be made, heard anddetermined, and not to be regarded as an extreme case.

54 The application for an order for costs was thereforedismissed.

COMMISSIONER J F GREGOR—55 I have had the opportunity of reading the Reasons of His

Honour the President. I agree with His Honour in allrespects and for the same reasons as he I would dismissthe appeal. I agree to that the application for costs madeby the Respondent should also be dismissed.

COMMISSIONER S WOOD—56 I have read the reasons for decision of His Honour the

President. I agree with those reasons and have nothing toadd.


INDUSTRIAL RELATIONS COMMISSION.PARTIES MARIO PIETRACATELLA,

APPELLANTv.W.A. ITALIAN CLUB (INC),RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P JSHARKEYCOMMISSIONER J F GREGORCOMMISSIONER S WOOD

DELIVERED FRIDAY, 27 JULY 2001FILE NO/S FBA 18 OF 2001CITATION NO. 2001 WAIRC 03366_______________________________________________________________________________


Decision Appeal dismissed.AppearancesAppellant Mr G A Lacarenza (of Counsel), by leaveRespondent Mr C S Fayle, as agent_______________________________________________________________________________

Order.This matter having come on for hearing before the Full Benchon the 27th day of July 2001, and having heard Mr G ALacerenza (of Counsel), by leave, on behalf of appellant andMr C S Fayle, as agent, on behalf of the respondent, and theFull Bench having reserved its decision on the matter, andhaving determined that reasons for decision therefor shall bedelivered at a future date, it is this day, the 27th day of July2001, ordered as follows—

(1) THAT appeal No. FBA 18 of 2001 be and is herebydismissed.

(2) THAT the oral application made on behalf of therespondent for costs pursuant to s.27(1)(c) of theIndustrial Relations Act 1979 (as amended) be andis hereby dismissed.


[L.S.] President.


INDUSTRIAL RELATIONS COMMISSION.PARTIES Q-VIS LTD, APPELLANT

v.SIMON DOIG GORDON,RESPONDENT


DELIVERED WEDNESDAY, 5 SEPTEMBER 2001FILE NO/S FBA 37 OF 2001CITATION NO. 2001 WAIRC 03671_______________________________________________________________________________

Decision Appeal dismissed.AppearancesAppellant Mr P E Clifford (of Counsel), by leave,

and with him, Mr T M Retallack (ofCounsel), by leave

Respondent Mr R L Le Miere (of Counsel), by leave,and with him, Mr D G Berg

_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 These are the joint reasons for decision of the President

and Chief Commissioner Coleman.2 This is an appeal brought pursuant to s.49 of the Industrial

Relations Act 1979 (as amended) (hereinafter referred toas “the Act”) against the decision of the Commission,constituted by a single Commissioner, made on 13 June2001, by an order which was perfected by depositing inthe office of the Registrar on 14 June 2001.

3 That order, formal parts omitted, reads as follows—“A. DECLARES THAT—

(1) The dismissal of Simon Doig Gordon byQ-Vis Ltd was unfair; and

(2) Reinstatement is impracticable.B. ORDERS THAT—

(1) Q-Vis Ltd pay Simon Doig Gordon the sumof £46,500.00 within 7 days of the date of

this Order by way of compensation for theloss caused by the dismissal; and

(2) Liberty is reserved to either party for 7 daysfrom the date of this Order to apply to varythis Order in the event that an issue arisesregarding its implementation.”

GROUNDS OF APPEAL4 It is against that decision that the appellant now appeals

on the following grounds—“1. The learned Commissioner erred in finding that

the respondent (applicant) had not chosen to in-stitute separate civil proceedings to recoverdamages for breach of contract, in that there wasno evidence to support such a finding and it isand was common cause between the parties be-low that the respondent (applicant) hadcommenced and is maintaining civil proceedingsin the Supreme Court of Western Australia inwhich the cause of action pleaded is breach ofcontract.

2. As a consequence of the error of fact referred toin ground 1 above the learned Commissionererred in assessing loss suffered by the respond-ent (applicant) by reference to his contractualentitlements in that compensation paid on thatbasis is a matter for resolution in the SupremeCourt of Western Australia.

3. The learned Commissioner erred in finding atparagraph 9 of the supplementary reasons thatthe fact of civil action having been taken in theSupreme Court of Western Australia had no im-pact upon the amount of compensation to beordered by the learned Commissioner in that para-graphs 65 and 67 of the original reasons fordecision are based squarely upon compensationbeing assessed in relation to the contractual dam-ages.

4. Further, the learned Commissioner erred in con-cluding that the respondent (applicant) wasentitled to the equivalent of 6 months salary ascompensation in that at paragraphs 62, 63, 64 and67 of the original reasons the learned Commis-sioner found correctly that even had he not beendismissed unfairly on 19 May 2000 then the re-spondent’s (applicant’s) employment would nothave continued for more than a short period afterthat date, if at all. The Commissioner ought tohave assessed the respondent’s (applicant’s) lossand damage, if any, by reference to wages forthat “lost” period of service.

The appellant seeks the following orders—5. That the appeal be allowed.6. That the decision of the Commission made on 13

June 2001 be quashed and that compensation beassessed to the respondent (applicant), but lim-ited to a sum equivalent the wages entitlementfor the “lost” period of service.”

5 The appeal is against that part of the decision which relatesto the findings as to loss and compensation.

BACKGROUND6 The appellant employer company is involved in the

development of solid state laser equipment to be used ineye surgery for the purposes of correcting vision. Theappellant employed Mr Simon Doig Gordon, theabovenamed respondent, as its Sales and MarketingDirector, such employment commencing in August 1999and continuing until his dismissal on 19 May 2000.

7 That employment was subject to a written contract which,relevantly, contained Clauses 11.2 and 11.3, which readas follows—

“11.2 Immediate terminationTMT may terminate the Agreement immediately ifthe Executive—

(a) commits any act which may detrimentallyaffect TMT, including but not limited to


an act of dishonesty, fraud, wilful disobe-dience, misconduct or breach of duty;

(b) wilfully, persistently or materially breachesthis agreement and does not remedy thebreach (if capable of remedy) within 28days after receipt of notice in writing fromTMT specifying the breach and the rem-edy required (if capable of remedy);

(c) commits any act of bankruptcy or com-pounds with creditors;

(d) is of unsound mind or becomes liable tobe dealt with under any law relating tomental health; or

11.3 Termination with NoticeTMT may terminate this Agreement on not less than30 days notice in writing. TMT may not terminatethe employment of the Executive with TMT pursu-ant to this clause 11.3 until TMT has—

(a) held prior discussions with the Executive;and

(b) given the Executive a reasonable opportu-nity to respond to any allegations by TMTthat he or she is unable to perform the in-herent requirements of his or heremployment or has failed to meet the per-formance requirements set in accordancewith this Agreement.

In the event of termination under this clause 11.3TMT will pay the Executive 50,000 pounds Ster-ling.”

(See page 45 of the appeal book (hereinafter referred toas “AB”).)

8 Mr Gordon made application to the Commission, byapplication filed on 12 June 2000.

9 That part of the decision which is appealed against is theorder that the appellant pay £46,500.00 by way ofcompensation for the loss caused by the dismissal. Thereasons for finding the loss and assessing compensationin the amount ordered appear at pages 30-32(AB).

10 The Commissioner at first instance held that it wasnecessary for Mr Gordon to establish his loss andobserved that he had lost the income which he wouldotherwise have received had he not been dismissed,making a finding accordingly.

11 Further, although Mr Gordon’s contract of employmentwas for one year and he had a little less than four monthsof that contract remaining, it was by no means clear thathis employment would have continued for that remainingperiod. Thus, his loss of income was found to be for aslong as his employment would otherwise have continued.

12 The Commissioner referred to the evidence overall, whichhe said suggested that Mr Gordon was unlikely to haveremained in employment for a great deal of time after hisdismissal, if at all. The Commissioner had alreadycommented on Mr Gordon’s own view that the relationsbetween him and the appellant from at least 10 April 2000were strained. Mr Gordon said that his conductdemonstrated an attempt to make the relationship workbut he made it clear, said the Commissioner, that he didnot believe that the appellant was taking the issues whichMr Gordon raised seriously enough. The Commissionerviewed the letter of 11 May 2000 from the appellant toMr Gordon, setting out the eight questions in preparationto the meeting on 17 May 2000, to be a demonstration ofthe company trying to extract as much information fromMr Gordon prior to “getting rid of him”.

13 The Commissioner also found that it was more likely thannot that, even if the dismissal of 19 May 2000 had notoccurred, the appellant would have terminated Mr Gordonshortly thereafter. Mr John Roper had certainly concludedthat Mr Gordon and the appellant could not proceedforward together and both succeed (see page 605 of thetranscript at first instance).

14 According to the Commissioner, this conclusion meantthat the appellant would be obliged to dismiss Mr Gordonin accordance with the terms of his contract of

employment. Thus, unless Mr Gordon committed an actwhich might have detrimentally affected the appellant orwilfully, persistently or materially breached the agreementand did not remedy the breach after receipt of notice inwriting to do so, or committed any act of bankruptcy orbecame of unsound mind, then the appellant was obligedto terminate Mr Gordon with notice of thirty days’duration and payment of £50,000.00.

15 The Commissioner found, on the balance of probabilities,that it was unlikely that Mr Gordon would have conductedhimself in the manner which brought Sub Clause 11.2 ofthe contract of employment into play. There was someevidence that Mr Gordon had earlier considered resigning,the Commissioner found, but that issue was not pursuedin the evidence. There was, therefore, no evidence thatMr Gordon would have resigned of his own volitionwithin the near future.

16 The Commissioner found that Mr Gordon was notprepared to resign on 19 May 2000 at Mr Roper’ssuggestion that he do so. On the evidence before theCommission, therefore, the Commissioner found it morelikely that the appellant would have been obliged to giveMr Gordon the notice, together with the payment required,pursuant to the contract of employment.

17 The Commissioner therefore concluded that, even if MrGordon’s employment had not continued for muchbeyond the period after 19 May 2000 when he waswrongfully and unfairly dismissed, he would have beendismissed in accordance with the contract of employmentand his loss was therefore to be assessed as the opportunityto work for a further thirty days and the payments to bemade to him under the contract of employment, namely£50,000.00.

18 Mr Gordon also had an entitlement to options whichwould be included in an assessment of his loss. The pointmade by Mr Le Miere, counsel for Mr Gordon, was that,as Mr Gordon’s salary was £93,000.00 per annum, thepayment of £50,000.00 alone exceeded the six months’limitation on the Commission’s power to awardcompensation and there was little practical point inincluding consideration of this because of the limitationimposed by the legislation.

19 The Commissioner therefore ordered compensation inorder to compensate Mr Gordon for the amount whichhe had lost.

20 The Commissioner then went on to find that the ordershould be in the currency of Pounds Sterling and providedsupplementary reasons for decision for so finding.

21 The Commissioner found that the evidence had notestablished that Mr Gordon “failed to perform his duties”or “failed to perform the obligations of an executive” inthe manner reasonably expected by the appellant; and,more significantly, that Mr Gordon had not committedany act of serious misconduct, as defined in Clause 11.2of the contract of employment.

22 The Commissioner then went on to find the appellant asbeing in breach of the contract of employment and thatthere was no conduct justifying summary dismissal atcommon law. The Commissioner then observed (see page28(AB)) that this was a claim that the dismissal was harsh,oppressive and unfair and that “he has not, as he mighthave done, elected to claim wrongful dismissal in a civilcourt and seek damages for breach of his contract ofemployment”. That observation was incorrect, becauseMr Gordon had done precisely that by writ issued out ofthe Supreme Court of Western Australia in action No CIV2349 of 2000 on 6 October 2000.

23 The Commissioner, having properly considered whetherthe dismissal was unfair, so found, for the reasonsexpressed in pages 28 to 29 (AB). At the heart of thefinding was the finding that it was unfair to summarilydismiss Mr Gordon when his contract of employmentprovided, particularly for the situation where the appellantbelieved that Mr Gordon was unable to perform theinherent requirements of the job or failed to meetperformance requirements.

24 Those findings were not challenged on appeal and were,in any event, clearly correct.


Loss and Compensation25 The Commissioner then went on to find as follows—

(a) That Mr Gordon lost income which he would oth-erwise have received had he not been dismissed.

(b) That, even if the dismissal had not occurred, MrGordon would have been dismissed in accord-ance with the terms of his contract of employment,i.e. Clause 11.3.

(c) This meant that his loss was the opportunity towork for a further thirty days and the loss of theamount of £50,000.00, payable to him by virtueof Clause 11.2. The payment of £50,000.00 alonewas sufficient to award the six months’ cap (sees.23A(4) of the Act).

26 Therefore, the compensation to be ordered in order tocomply with the Act and recompense him for his loss, inaccordance with Bogunovich v Bayside Western AustraliaPty Ltd 79 WAIG 8 (FB) and Capewell v CadburySchweppes Australia Ltd 78 WAIG 299 (FB), was theamount of the salary which Mr Gordon earned for onefurther month, plus the sum of £50,000.00.

27 There is one other observation we should make. Therewas a speaking to the minutes on 7 June 2001, at which,having given notice, Mr Clifford, counsel for theappellant, submitted that the fact of the action in theSupreme Court for wrongful dismissal should be notedand taken into account to reduce the amount ofcompensation to an amount equal to thirty days’ salary.

28 The Commissioner rejected that submission and thesubmission concerning double dipping (see page 32(AB))and reflecting that finding in his supplementary reasonsfor decision (see page 35(AB) at paragraph 9) asfollows—

“Finally, I repeat the comments I made during theSpeaking to the Minutes that whether or not MrGordon has taken civil action for wrongful dismissalin the Supreme Court of Western Australia is not amatter that has an impact upon the amount of com-pensation to be ordered by this Commission.”

CONCLUSIONS29 This was a discretionary decision, as that is defined in

Norbis v Norbis (1986) 161 CLR 513 and Coal and AlliedOperations Pty Ltd v AIRC (2000) 74 ALJR 1348 (HC).The Full Bench cannot interfere with that decision unlessthe appellant establishes that the exercise of discretionmiscarried in terms of the ratio in House v The King [1936]55 CLR 499 (see also Gromark Packaging v FMWU 73WAIG 220 (IAC)).

30 The Commissioner erred in his reasons for decision infinding that there were no civil proceedings to recoverdamages for breach of contract. However, this error wascorrected and the Commissioner made clear in discussionswith counsel and in his supplementary reasons fordecision that the fact of those proceedings and any allegeddouble-dipping was an irrelevant consideration. Ground1, for those reasons, has no merit.

31 The Commissioner made findings as to loss which werenot challenged on this appeal. What the Commissionerfound was that the dismissal had occurred contrary to thecontract of employment, without justification, as asummary dismissal and, most relevantly, unfairly.

32 The Commissioner then made a finding as to what theloss caused by the unfair dismissal was, and assessedcompensation as laid down in Bogunovich v BaysideWestern Australia Pty Ltd (FB)(op cit), Gilmore andAnother v Cecil Bros and Others 78 WAIG 1099 (IAC),Manning v Huntingdale Veterinary Clinic 78 WAIG 1107at 1108 (FB) and Capewell v Cadbury SchweppesAustralia Ltd (FB)(op cit), and the cases referred totherein.

33 The fundamental principle is that—“The aim and, indeed, the requirement of award ofcompensation, by its very nature, is to put an un-fairly dismissed person who has not been reinstatedin the same situation as he/she would have been, ifhe/she had not been unfairly dismissed.

If the Commission does not do that, then the Com-mission will be in error and will act contrary toequity, good conscience and the substantial meritsof the case.”

(See Bogunovich v Bayside Western Australia Pty Ltd(FB)(op cit) at page 8.)

34 In this case, Mr Gordon was dismissed in non-compliancewith or breach of the contract. The dismissal was unfair.He therefore lost an amount of salary for the period fromthe date of his unlawful dismissal, namely 19 May 2000,to the date when it was probable that he would have beenfairly dismissed. He lost an amount equivalent to thirtydays’ salary because he was not given the thirty days’notice which the contract required. He lost the sum of£50,000.00 because he was dismissed contrary to Clause11.3, and because the appellant did not comply with thecontract and, inter alia, pay Mr Gordon that amount, as itwas required to do. One element of unfairness was thebreach or failure to comply with Clause 11.3 of thecontract of employment.

35 Those were the losses which, it was open to find, hadbeen caused by Mr Gordon’s unfair dismissal.

36 In addition, he lost, it was open to find, the value of optionsto which he was entitled. The value of that loss was notquantified because the amount lost of £50,000.00 requiredan award of an amount of compensation in excess of thestatutory limit awardable (see s.23A(4) of the Act).

37 The real thrust of the grounds of appeal was that theCommissioner had not taken into account a relevantconsideration because Mr Gordon was suing the appellantin the Supreme Court in respect of the same dismissal,and seeking a remedy in damages for breach of contract;thus, as we understand the submissions, the chance ofsuccess in that litigation was a factor to take into accountto reduce the amount awarded for compensation in thisjurisdiction. That writ was issued about four months afterthe application pursuant to s.29 of the Act was filed inthis Commission.

38 Put shortly, as we understood the submission, that theaction was being taken in the Supreme Court in relationto the same dismissal as was the subject of Mr Gordon’sapplication in the Commission was a relevantconsideration, because otherwise there would be doubledipping; that is, Mr Gordon would receive two remediesfor one wrong.

39 There is no evidence that the Supreme Court action hasbeen advanced in any way, except for an amendment tothe endorsement to the writ in April 2001. The action hascertainly not been tried. There is no judgment. It wassimply irrelevant to consider it, nor could the Commissionconsider, nor should it have considered. The mereexistence of a writ in the Supreme Court seeking a remedyin respect of the same dismissal is an irrelevantconsideration. The simple fact of the matter is that thisCommission had jurisdiction to hear and determine,pursuant to s.23A and s.29(1)(b)(i) of the Act, anapplication alleging that an employee was harshly,oppressively and unfairly dismissed.

40 As we understood an element of the submissions by MrClifford, the Commissioner should have declined to hearthe application at first instance as a matter of equitybecause there were concurrent proceedings in theSupreme Court. It is trite to observe that s.26(1)(a) of theAct does not confer jurisdiction on the Commission, butmerely prescribes the manner of exercise of its jurisdiction(see RRIA v ADSTE 68 WAIG 11 (IAC). Further,s.26(1)(a) of the Act cannot be used to read down theconduct of this Commission, either as a matter of lawand, in this case, fact.

41 If the matter is at all advanced in the Supreme Court,then the appellant has its remedies there.

42 The Commission, as it was required to do, heard anddetermined the matter, found that there was a harsh,oppressive and unfair dismissal, and that reinstatementwas impracticable. Then the Commissioner found thatthere was a loss and assessed and ordered payment ofcompensation, in the exercise of its power and proper


exercise of its discretion, pursuant to s.23A of the Act(and the principles governing findings of loss and theaward of compensation laid down in the cases which wehave cited above and others) and, in particular, properly,having regard to the equity, good conscience and thesubstantial merits of the case (see Bogunovich v BaysideWestern Australia Pty Ltd (FB)(op cit)).

43 The principles applicable, which we apply, are asfollows—

44 Where the governing statute does not identify relevantconsiderations, it is largely for the decision maker, in thiscase the Commission at first instance, in the light of thematters put forward by the parties, to determine whatmatters he or she considers relevant and the comparativeimportance to be accorded those matters (see SeanInvestments Pty Ltd v MacKellar (1981) 38 ALR 363 perDeane J; followed in Carmody v MacKellar and Others(1992) 148 ALR 210 (FCFC)).

45 Further, the ground of failure to take into account arelevant consideration will only be made good if it isshown that the decision maker has failed to take intoaccount a consideration which he or she was bound totake into account (see Carmody v MacKellar and Others(FCFC)(op cit)).

46 The existence of the writ was entirely irrelevant to thequestion of loss or compensation. It could have no moresignificance than that there was an action in existence,which was not even progressing to any significant extent,let alone coming to trial.

47 The Commissioner acted within power and properlyexercised his discretion.

48 The correct approach, if the appellant did not wish thematter to proceed at first instance, was for it to apply tothe Commission for an order that the application beadjourned until the completion of proceedings in theSupreme Court; or in the alternative, not to bring thataction to finality until this matter was heard anddetermined; that was evidence of a clear election to involveitself in the proceedings at first instance to theirconclusion, which it did.

49 As to Ground 4, in the light of what we have found, it isunnecessary to make any finding, because we have alreadyfound it is inapplicable and it is not made out.

50 We have considered all of the relevant material and all ofthe submissions. For those reasons, no ground of appealis made out.

51 The exercise of discretion at first instance was not in erroror established to be in error (see House v The King(HC)(op cit)).

52 For those reasons, we would dismiss the appeal.COMMISSIONER J F GREGOR—53 In His Reasons His Honour has set out the grounds of

appeal and the background to this matter. I am in generalagreement with the findings he makes and the conclusionsreached and I add the following comments.

54 The grounds of appeal do not disclose any complaint bythe Appellant against the primary finding that there wasin this case an unfair dismissal of the Respondent. Thecomplaint is that the Commission erred because it failedto take into account that there were separate civilproceedings in the Supreme Court of Western Australiaand in fact made a finding that there were no suchproceedings.

55 It is clear from the Speaking to the Minutes and theSupplementary Reasons that even if that complaint iscorrect, then before the Commission reached its finalconclusion it was well aware that there were proceedingsin the Supreme Court and it dealt with the matternotwithstanding those proceedings.

56 In my opinion the Commission had no other course ofaction but to deal with the matter before it. The applicationhad been filed by a person with locus standi unders.29(1)(b)(i) of the Act and the Commission hadjurisdiction to deal with the complaint that the Appellant,as an employee, had been harshly, oppressively and

unfairly dismissed. The Commission heard anddetermined the matter and found that there was a harsh,oppressive and an unfair dismissal and that reinstatementin the circumstances was impractical. The Commissionthen properly applied the principles governing findingsof loss and award of compensation as they are set out inBoganivich v Bayside West Australia Pty Ltd (ibid) andthe cases therein referred.

57 Once the Commission had made findings of unfairnessand that reinstatement was unavailing it was obliged tomake an award of compensation as provided in s.23A.When it does the obligations upon the Commission unders.26 to act in accordance with equity, good conscienceand substantial merits of the case cannot be applied so asto diminish the obligation to apply the terms of the statuteset out in s.23A of the Act, to do so would be to abrogatethose terms which would be, in itself, an error in law.

58 The Commission applied the authorities correctly, it madeno error in law. There is no justification for the Full Benchto interfere with the Decision because the Appellant hasnot established that the exercise of discretion vested inthe Commission, as it is described in House v The King(1936) 55 CLR 499, has miscarried.

59 I too would dismiss the appeal.60 THE PRESIDENT: For those reasons, the appeal is

dismissed.Order accordingly


INDUSTRIAL RELATIONS COMMISSION.PARTIES Q-VIS LTD, APPELLANT

v.SIMON DOIG GORDON,RESPONDENT


DELIVERED WEDNESDAY, 5 SEPTEMBER 2001FILE NO/S FBA 37 OF 2001CITATION NO. 2001 WAIRC 03672_______________________________________________________________________________

Decision Appeal dismissed.RepresentationAppellant Mr P E Clifford (of Counsel), by leave,

and with him, Mr T M Retallack (ofCounsel), by leave

Respondent Mr R L Le Miere (of Queens Counsel),by leave, and with him, Mr D G Berg

_______________________________________________________________________________

Order.This matter having come on for hearing before the Full Benchon the 16th day of August 2001, and having heard Mr P EClifford (of Counsel), by leave, and with him Mr T M Retallack(of Counsel), by leave, on behalf of appellant and Mr R L LeMiere (of Queens Counsel), by leave, and with him Mr D GBerg, on behalf of the respondent, and the Full Bench havingreserved its decision on the matter, and reasons for decisionbeing delivered on the 5th day of September 2001 wherein itwas found that the appeal should be dismissed, it is this day,the 5th day of September 2001, ordered that appeal No. FBA37 of 2001 be and is hereby dismissed.


President.



INDUSTRIAL RELATIONS COMMISSION.PARTIES ELIZABETH JOYCE ROAST,

APPELLANTv.FORX PTY LTD (ACN 008 972 076),RESPONDENT



Decision Appeal upheld, the decision at firstinstance suspended and matter remittedto the Commission.

AppearancesAppellant Mr S Heathcote, as agentRespondent Mr N D Ellery (of Counsel), by leave_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—1 This is an appeal brought pursuant to s.49 of the Industrial

Relations Act 1979 (as amended) (hereinafter referred toas “the Act”) by the abovenamed appellant, Ms ElizabethJoyce Roast, against a decision of the Commission,constituted by a single Commissioner, whereby hedismissed an application made by Ms Roast against theabovenamed respondent pursuant to s.29(1)(b) of the Actby an order made on 29 November 2000.

GROUNDS OF APPEAL2 The grounds of appeal are as follows—

“Commission has mistaken the facts1 The Commission erred in fact in finding that the

Appellant “had not raised any major problemswith the proposed agreement.”.

2 The Commission erred in fact in finding thatAppellant was not prepared to accept the alterna-tive position that was offered to her.

3 The Commission erred in fact in finding thatAppellant was told that she was “not being of-fered a replacement to her contract but a newengagement altogether.”

Commission allowed extraneous or irrelevantmatters to guide it4 The Commission erred in law in taking into ac-

count the fact that the Appellant did not contactthe Respondent after her dismissal in an attemptto reverse that decision.

5 The Commission erred in law in taking into ac-count the fact that the Respondent’s ManagingDirector attempted to contact the Appellant afterher dismissal.

Commission has reached a result that is, on thefacts, unreasonable or plainly unjust6 The Commission erred in law and miscarried its

discretion in finding that it was reasonable forthe Respondent’s agent to terminate the Appel-lant’s employment and withdraw its offer ofalternative employment after the Respondent’sManaging Director, Mr Toohey had told the Ap-pellant that if she couldn’t conclude an agreementwith the Respondent’s agent, she could contacthim so that they could resolve any outstandingissues.

7 The Commission erred in failing to find the dis-missal was harsh oppressive and unfair incircumstances where the Respondent’s agent dis-missed the Appellant—

(a) where he was not authorised to do so;(b) without notice;(c) in the absence of a reason to do so at that

time;8 The Commission erred in failing to find the dis-

missal was harsh oppressive and unfair incircumstances where the Respondent’s agentwithdrew an offer of alternative employment incircumstances where negotiations were unproduc-tive through no fault of the Appellant.

9 The Commission erred in finding that the Re-spondent “did as much as necessary to ensurethat she [the Appellant] received a fair go.”

10 The Commission erred in finding that the Re-spondent considered the circumstances from theAppellant’s point of view.

Commission did not take into account some ma-terial consideration

11 The Commission erred in giving insufficientweight to the fact that the Appellant was givenno warning that her employment would be ter-minated and that the offer of alternativeemployment would be withdrawn if she did notaccept it at the meeting on 5 October 1999.

Commission acted upon a wrong principle12 The Commission erred in finding that the tran-

script, and therefore evidence based upon it, wasself serving, and as a consequence, the Commis-sion attached insufficient weight to Alison Smith’sevidence in relation to the meeting at which theAppellant was dismissed.

13 The Commission erred in finding that—(i). the employment relationship between the

Applicant and Respondent was to be cat-egorized as an abnormal employmentrelationship;

(ii). as a consequence of the categorization re-ferred to in paragraph 13(i) herein, theApplicant was under a duty to take stepsto re-establish the employment relation-ship.

14 The Commission erred in finding that—(i). the Applicant’s evidence lacked credibil-

ity solely on the basis that the Applicant’sevidence was confirmed by the Applicant’ssister;

(ii). the Respondent’s evidence should be pre-ferred over the Applicant’s in view of thematters set out in paragraph 14(i) herein.

15 The Commission erred in law in finding that Ap-pellant’s employment expired by effluxion of time.

16 The Commission erred in fact and law in findingthat Respondent and the Appellant were unableto reach a meeting of the minds on a contract ofemployment.”

APPLICATION TO AMEND GROUNDS3 There was an application on behalf of the appellant to

amend the grounds of appeal in the relief sought but thatwas refused because the question of a remedy inreinstatement or compensation is best dealt with by theCommission at first instance, particularly in a case suchas this, since there was an objection to the amendment,the effect of which would have been to seek to have theFull Bench decide the remedy. That is not to say, in anappropriate case, that the Full Bench will not decide thequestion of remedy (see Bogunovich v Bayside WesternAustralia Pty Ltd 79 WAIG 8 (FB)). In any event, theamendment was sought on the day of the hearing of theappeal without prior notice to the respondent and, forthat reason, too, the application to amend the groundswas dismissed.


BACKGROUND4 The Commissioner heard the evidence on behalf of the

appellant from Ms Roast, from her sister, Ms Alison MaySmith, Mr Graham Henry Guest, a clinical psychologist,and received a report from Dr C Nick de Felice, apsychiatrist (exhibit H2). The Commissioner heardevidence from Mr Reginald Peter Toohey, a Director ofthe respondent, Mr Malcolm Michael Tew, Mrs PaulineTew and Ms Lynette Joan Boston on behalf of therespondent. There was also, of course, documentaryevidence.

5 Ms Roast applied on 2 November 1999 to thisCommission for orders pursuant to s.29(1)(b) of the Acton the grounds that she had been harshly, oppressively orunfairly dismissed from her employment by theabovenamed respondent and had been denied contractualbenefits to which she was entitled. It was alleged that thedismissal was effected on 5 October 1999.

6 The respondent employer was, at all material times, aproperty owner leasing a property at Mandurah in theState of Western Australia to a resort operating companycalled “Mandurah Quay Resort” (presumably “Pty Ltd”)(hereinafter referred to as “the resort”). The resort, whichhad been in the course of development since 1998, wasmanaged by Ms Roast, after her appointment as ResortManager by the respondent in October 1998.

7 The business of the respondent was to market the resortto the general public and to real estate agents. Thisinvolved keeping regular contact with potential andexisting customers and agents. There was a sales officeat the resort which Ms Roast was required to ensure wasopen between the hours of 8.00 am to 5.00 pm onweekdays and also during weekends. Indeed, she livedon the premises and was on call all of the time, doing alot more than was required of her and working very longhours.

8 At the time, there was short stay holiday accommodationavailable in the resort in the form of about 30 units. Itwas the duty of Ms Roast, too, to take bookings, collectdeposits and payments for that accommodation and toattend to the needs of customers who were in residence.

9 There was also a homeowners association and a stratacompany with interests in the resort, and the business ofthose bodies was attended to by Ms Roast. It was part ofher duties, also, to supervise gardening, maintenance,security and housekeeping staff; indeed, all of the staffemployed at the resort.

10 Ms Roast had previously been employed at the IndianOcean Hotel in Scarborough in this State by her sister,Ms Smith, and her sister’s husband as theirAccommodation and Administration Manager.

11 Ms Roast commenced work at the resort as an employeeof the respondent in June 1998, being employed as a part-time receptionist. She was appointed Manager at the endof September 1998.

12 Some terms of her employment as Manager wereevidenced by a letter from the respondent to her dated 1October 1998 (exhibit H3 (page 337 of the appeal book(hereinafter referred to as “AB”))) which, formal partsand the prescription of her duties omitted, read asfollows—

“......Beth Roast will receive a Total Remuneration Pack-age of $45,000.00 per annum, which includes4 weeks annual leave and statutory superannuation,plus out of pocket expenses with the prior consentof the Directors of Forx Pty Ltd + free accommoda-tion at MQ Resort.All settled sales made by Beth Roast of property onMandurah Quay will attract a commission rate of1% up to $1m and .5% thereafter payable to BethRoast within 7 days of settlement.This agreement may be terminated by either partygiving 4 weeks’ notice in writing.”

13 The agreement was signed by Ms Roast and by MrToohey, as a Director of the respondent.

14 Ms Roast’s remuneration consisted of an annual salary,gross, of $45,000.00 which included four weeks’ annualleave and statutory superannuation. Importantly, Ms Roastwas provided with free accommodation at the resort andshe was able also to earn commission on sales. Her outof pocket expenses were also met with the prior consentof the Directors of the respondent. Those Directors wouldseem to have been, at the material times, Mr Toohey andMr Tony Spanjer. It was clear from the evidence that, asManager, she reported to and took instructions directlyfrom Mr Toohey.

15 The respondent, wishing to expand the resort, had plansto establish there a restaurant, a function centre and areception centre.

16 These buildings had been designed and commitments hadbeen made to start construction. Ms Roast assisted withthe preparation of some preliminary budgets for theseextensions.

17 There were also meetings taking place to consider costallocations for the function centre and the resort. Ms Roastwas involved in these activities and there were detaileddiscussions about the resort function centre, letterheadsand audio and visual requirements for functions. Therewas also consideration of a whole number of matters,including cool room shelving, kitchen design, etc. inwhich she was involved. Ms Roast prepared a budgetherself at Mr Toohey’s request.

18 Ms Roast was informed in early July 1999, for the firsttime, about the intended use of consultants. JewelHospitality, a firm of consultants, was called upon toassist, in the first place, with the budgeting. (The actualconsultants involved in this case were Mr Malcolm Tewand Mrs Pauline Tew.) Ms Roast was asked by Mr Tooheyto make recommendations about quotes and suppliers,which she did. The consultants then were asked to reviewbudgets, staff requirements and the new buildings.

19 All employees, including Ms Roast, were clearly told byMr Toohey in early July 1999 that they would not, in thenear future, be employed by the respondent and that theywould be offered employment with an operating company,Mandurah Quay Resort (Pty Ltd), which would be thenew employer of all staff at the resort. They would, hesaid, all be offered new positions in the new operation. Inother words, they were told that, at a date in the nearfuture, the respondent would terminate the contracts ofemployment and the company, Mandurah Quay Resort,a different entity, would offer contracts of employmentto all of the respondent’s employees.

20 There was discussion between Ms Roast, Ms Boston,another employee of the respondent, and Mr Toohey aboutthe salary proposed to be paid to a chef. (Ms Roast hadengaged Ms Boston to be the Food and BeverageManager.) This led Mr Toohey to decide to extend thebrief of the consultants to include staff hire. Theconsultants who carried out these tasks, Mr Tew and MrsTew, were instructed by Mr Toohey on behalf of therespondent to interview the existing staff to determinewhere they fitted into the existing business, and to findthem a spot in the new business. This included signingthe staff into positions, fixing salaries and preparing andhaving executed workplace agreements for those staff.

21 Mr Toohey and Ms Roast both said that he told her thatthe consultants were to assist her so there is no doubt thatthat is what she was told. She did not understand thatthey would manage the facility.

22 Ms Roast first met Mr Tew in early August 1999 at theresort, where she described his approach as “pleasant”.It was at that interview that Mr Tew asked her if she wouldsign a fixed term contract and she indicated that she didnot want to because of personal misfortunes, which sheoutlined to him that she had undergone in the past and,further, she was happy with her open ended contract withfour weeks’ notice. At that meeting, there was alsodiscussion of her role and her duties.

23 In early August 1999, Mr Tew reported to Mr Tooheythat Ms Roast had told him that she was concerned abouther limited experience in food and beverages. Mr Tew


thought that, however, with the assistance of Ms Boston,who was experienced in these areas, that they could “workthe problem through”. Mr Tew also made it clear to MrToohey that he had concerns about Ms Roast’s long termcommitment to the project and this concern was expressedto him in writing.

24 Ms Roast saw a note on the file (exhibit M1 (page345(AB))) to that effect in Mr Toohey’s office and becamedistressed. Mr Toohey, who was present when thisoccurred, discussed the matter with her. She told him thatshe was confused about what sort of commitment theconsultant was wanting and this had led her to say thatshe was unable to give a very long term commitment. MrToohey, however, said that she was interested in the resortand its changes and seemed anxious to assist in gettingthe expansion operating. He said clearly in evidence thathe was satisfied that Ms Roast had the necessarycommitment to the project. He did not, in fact, have doubtsabout that belief until late September 1999. Indeed,according to Mr Tew’s evidence, too, he had no seriousdifficulties with Ms Roast’s commitment to the resort untillate September 1999, saying clearly in evidence that hewould have raised the matter before the meeting of 5October 1999 with Ms Roast if he had had such doubts.

25 Within a month and probably on the evidence of all thewitnesses, on or about 17 September 1999, Ms Roast metboth Mr Tew and, for the first time, Mrs Tew, at the resort.They told her that she should think of them as “Reg andTony”, i.e. Mr Toohey and Mr Spanjer. As I understoodher evidence, they were telling her that they had theauthority of the respondent’s Directors over her. Ms Roastsaid that, at this meeting, they removed all herresponsibilities as Manager and she was required to reportto them. It was denied by Mr Tew that they had removedher responsibilities, but he did not deny that she was madesubject to the supervision of Mr and Mrs Tew. Ms Roastdescribed Mr and Mrs Tew’s demeanour, at that meeting,as aggressive. Mr Toohey denied, in evidence, that anyother employee had complained that they were aggressive.However, Ms Boston, in her evidence, described Mrs Tewas “a little steamroller”, which it would seem to connotesome aggression. Ms Boston also said that she hadachieved a working relationship, in due course, with MrsTew.

26 Although Mr Toohey had told Ms Roast that theconsultants were to assist her, it was not denied in evidencethat, in effect, that they became her supervisors was infact the case. It is reasonable to assume that they did andthat Ms Roast saw them as such. She was angry and upsetat their attitude at this meeting. However, after a while,she concluded that she would try and get over this andmake a fresh start with them and apologise and thediscussion continued.

27 However, Ms Roast remained upset and even prepared adraft memorandum to Mr Toohey querying the line ofauthority which she had, as Manager, to follow. However,in the end, she did not send the memorandum.

28 The consultants made regular visits to the resort and,according to Ms Roast, on a number of occasions, theydid not call to see her while they were on site. They were,she said, aggressive and left her with the impression thatthey were running the resort in the absence of Mr Toohey.They denied that they were aggressive.

29 The consultants gave her a written job description whichdescribed her future role as being responsible formanagement of all staff and operating facilities at theresort. At the same time, she was given a draft workplaceagreement (exhibit H5 (pages 338-339(AB))) to sign. Thisnew position, which was to be the senior position at theresort, was to be entitled “Resident Duty Manager”. It isprobable that these were given to Ms Roast and to MsBoston on or about 22 September 1999. Mr Tew, inevidence, admitted that it may have been about that dateand not 17 September 1999 that these documents weregiven to Ms Roast. Mrs Tew said that it was on 17September 1999. It was probably just before the RoyalShow weekend, which was 24 September 1999. At first,Ms Roast was given only three days to consider the

documents but the, at her own request, that was extendedby Mr Tew to seven days.

30 Mr Tew told the employees that all of the staff wouldhave to go on three months’ probation and all would haveto sign a workplace agreement. Ms Roast’s evidence wasthat she was horrified that, after working full time in theManager’s position, she was given a three months’contract. She was not happy with the proposed agreementor the duty statement.

31 The resort, of course, was to operate 24 hours a day and,because it was clear that the Resident Duty Manager couldnot be present all the time, there was to be created aposition of “Duty Manager” as well. Ms Roast wasconcerned that there was a reference to “Duty Manager”in the proposed agreement, because a Duty Managerreports to a Manager. Her title was not to be Managerany more. The job consisted of her old duties with asubstantial number of new duties.

32 The responsibilities of the new position were many andincluded bookings, guest arrivals and departures, frontof house procedures, administration, managing the foodand kitchen departments, beverage, accommodation,maintenance, sales and marketing. There was also staffadministration, payroll supervision and cost expenditures.There were also policy requirements such as workplanning and procedure reviews, implementation of aresort mission statement and a general requirement toconduct the resort in a business-like manner (exhibit H7(see page 341(AB))).

33 Ms Roast was also not aware of the powers which therespondent was prepared to vest in the Duty Manager,which were set out in the job description. Her overallthought, as she put it, was that her work had tripledovernight and her status was reduced. She rang Mr Tooheyto tell him that she was not happy with the contract andhe told her that it was a starting point and that she shouldnegotiate. She was off work for a few days, having hurther neck, working at the Royal Show on the weekend of25 and 26 September 1999.

34 Mr Toohey, according to his evidence, saw the positionas effecting an upgrade of what Ms Roast had previouslydone. He was happy that Ms Roast take over the workand the consultants were instructed to sign her and othermembers of the staff to a new agreement and to negotiatethe terms of those agreements with them.

35 It was common ground that the relationship between MsRoast and her employer, in particular Mr Toohey, was avery good one. Mr Toohey relied upon her. She lived onthe property. She had free access to Mr Toohey at all timesand used that access on a day to day basis. Mr Tooheywished her to remain in the respondent’s employmentand instructed Mr Tew that he was happy with herperformance. In evidence, Mr Toohey said that she was acapable and competent person and that she had shown ahigh level of commitment from the outset, which was avery significant affirmation of her capacity to commit. IfMs Roast needed some training to meet the requirementsof the new job, Mr Toohey was happy to enable that tooccur. He remained convinced of her commitment untillate September 1999.

36 At no time was it suggested that she was not doing agood job in evidence or to her. In fact, as I have alreadyobserved, quite the contrary was the evidence of thewitnesses. Indeed, Mr Toohey’s unequivocal evidence wasthat he wanted to keep her. Further, on 8 September 1999,the respondent sent her a letter of recommendation(exhibit H4).

37 In mid to late September 1999, Mr Toohey becameconcerned about Ms Roast’s attitude as it was reported tohim by Mr Tew, and he had a sense that something wasnot quite right. (I would observe that, since the draftdocuments were, on all of the evidence, most probablygiven to Ms Roast for the first time on or about 22September 1999 and she had seven days within which toconsider them and respond, such concerns mightreasonably be regarded and be found to have beenpremature.) Mr Toohey regarded the matter of the signingof the contract as a simple matter, which it patently was


not. Mr Toohey said, in fact, that the new agreementcontained nothing “out of the norm” from her previousagreement. That, on a fair reading of both documents,was simply not so.

38 Mr Toohey said, too, that she was absent in Queensland,but, in fact, there was no evidence that she was absent. Infact, the evidence was that she was certainly present fromat least 17 September 1999 on.

39 Mr Toohey said in evidence that Ms Roast knew that, ifshe could not get her contractual matters resolved withthe consultants, that she had the same open line ofcommunication with him which he enjoyed through allof her period of service. In the end, that was not the case,because she was dismissed at a meeting to negotiate theagreement.

40 According to Mr Toohey, Ms Roast did not suggest thatshe did not want the new position, and that she wouldtake it only with certain adjustments to the package. MrToohey did tell her quite clearly on one occasion that sheshould deal with Mr Tew in relation to the proposedagreement and, if she could not reach agreement withhim, she could bring the matter back to him, Mr Toohey.Ms Roast, for her part, was under the clear impressionfrom Mr Toohey that she should not trouble him and sheshould deal with the consultants.

41 The only contact made by her in relation to the proposedworkplace agreement with Mr Toohey at that time, i.e. inlate September 1999, he said, related to the provision offree accommodation, reference to which had been omittedfrom the draft workplace agreement given to her by Mrand Mrs Tew, and he ordered that that be fixed. That wasa notable omission from the proposed agreement and wasan error on the part of Mr Tew which, it is fair to say,should not have occurred. Nothing else was raised withhim, he said. This contact was made with Mr Toohey, hesaid, whilst he was in Melbourne at the Grand Final onor about 24 September 1999.

42 Whilst she was off work with her sore neck, Ms Roastraised questions about the contents of the proposedworkplace agreement with the respondent through itsconsultants. She did this by forwarding a facsimilecommunication to them dated 29 September 1999 which,formal parts omitted, reads as follows—

“I would like clarification on (sic) the followingpoints—

* Does my accommodation (Villa 85’s) rent,power, water, and telephone costs stay as anaddition to the remuneration of $45,000 peryear, as was previously the case?

* Please deferentiate (sic) between Manager &Duty manager. What is the proposed staffingfor the Manager’s position? I assume that myposition has been down graded?

* RESPONSIBILITIES: The first four points in-dicate that they are a “hands on” position.

• What staffing levels are to be in placeto support the remaining duties?

• Should the ‘responsibilities’ not beachievable, then what happens at thatpoint?

I have a few more questions about this agreement,most of which will depend on your explanation ofthe above. I would appreciate it if you could fax mean answer today so I can make an informed decisionas soon as possible.”

(Exhibit H8 (see page 242(AB))).

43 It is of significance that Ms Roast, in that communication,foreshadowed that she might have further questionsconcerning the proposed agreement. These queriesreflected concerns which she had, inter alia, about budgetresponsibilities and her new proposed position. It issignificant, too, that Ms Roast said that she wished tomake an informed decision “as soon as possible” (myemphasis).

44 By a facsimile communication dated 29 September 1999,Mr Tew replied to Ms Roast as follows—

“Accommodation• The accommodation provided is subject to a

possible sale, however, Mandurah Quay Re-sort will provide to the Resident Duty Managersuitable accommodation and of an equivalentstandard to that which is currently provided.

• Power, Water and telephone costs stay as anaddition to the package.

Manager/Resident Duty Manager• The position of Resident Duty Manager is a

newly created position brought about by theintroduction of new facilities, Restaurant andFunction Centre. The title “Manager” will nolonger exist.

• All facilities must now relate to one anotherin order to create an integrated Resort, theperson who would normally oversea(sic) andmanage a Resort of this size and style wouldbe known as the Resident Duty Manager.

Responsibilities• The position Resident Duty Manager is re-

sponsible to the Resort owners or theirnominated representatives for all the activi-ties of the Resort including all“Responsibilities” as stated in schedule 1.

• A staffing program for the Resort will be im-plemented before opening.

• As discussed a budget for the overall prop-erty has been prepared and will form the basisof the current financial years estimated trad-ing figures and the profit and loss. Thisdocument is a working tool for all Manage-ment. All payroll costs, and cost of sales havebeen based on industry norms.

• The budgeted costs would be expected to beachieved, and would be the basis of any Man-agers contract of employment across theHospitality Industry.

• The terms “Hands on” means physically work-ing in the various departments of the Resort,this would be a fair reflection of what is in-tended under the title “Resident DutyManager”.”

(Exhibit H9 (see page 243(AB))).

45 In evidence, Mr Tew said also that the agreement wasonly a draft agreement, but his instructions to bring thematter to a conclusion, coupled with Mr Toohey’s viewthat the agreement was not out of norm with the originalagreement, meant that, in fact, it was regarded assomething more, and as he recounted them, hisinstructions to Mr Tew in relation to the meeting of 5October 1999 did not bear that opinion out.

46 Mr Toohey instructed Mr Tew to contact Ms Roast inearly October 1999. He clearly wanted to have heragreement finalised because the Manager would have tocome aboard in time for the commencement of the newoperations at the resort on 18 November 1999. Ms Roasthad been out of the State, in Queensland, for a while.She had not received the workplace agreement until about22 September 1999 and remained in the State after that,it is clear.

47 Mr Toohey gave clear instructions that, if the workplaceagreement was not accepted by Ms Roast, that the offerto employ her should be withdrawn. Mr Toohey also saidthat he gave no instructions to terminate Ms Roast’semployment. Mr Toohey said that he had no intention ofgetting rid of her.

48 Mr Toohey said that it was not Mr Tew’s brief to dismissMs Roast, but to find out what was going on and that shehad the opportunity to iron out the problems and commit.

49 It was quite clear from Ms Roast’s evidence that she hadconcerns about the agreement. For example, theagreement required her to undergo a probationary period


of three months, it was alleged. She was insulted by this.She had not served a period of probation in her currentemployment and she had worked as Manager to a standardobviously approved by Mr Toohey for over twelvemonths, because he wished to retain her in heremployment. She was, on all of the evidence, a proven,competent employee whose services were to be retained.Ms Roast made clear to Mr Tew, as he admitted, herobjections to being placed on a period of probation, butthere is no evidence that Mr Tew responded to this.

50 Further, the proposed agreement was quite inferior in anumber of respects to the earlier agreement. The provisionof free accommodation was omitted and later re-includedafter protest. It was terminable on fourteen days’ notice,not four weeks. It was expressly only for a fixed term ofless than three months (whereas the existing agreementwas for an indefinite period) and the agreement wasreviewable six weeks before its termination. In otherwords, there was little or no commitment by the employerto the employee in the proposed agreement. It was saidthat it was a probationary agreement. It is not at all clearthat it was. In any event, Ms Roast was a proven employeewho had not been required to serve a probationary periodin her current employment.

51 Objectively viewed, apart from her duties and the needfor definition of them, there were a number of aspects ofthe agreement which would cause concern to an employeein her position. Contrary to Mr Toohey’s opinion, thiswas a draft agreement which contained a great deal “outof norm” from Ms Roast’s existing agreement and,objectively viewed, she had substantial reasons to queryits terms. It was open to so find and it should have beenso found. (It is noteworthy that Ms Boston negotiatedamendment to her agreement with Mr Tew.)

52 On 4 October 1999, Mr Tew rang Ms Roast and askedher if she was going to sign the proposed agreement. Shesaid “No”, because the old contract was looking goodand this was not a workable contract. That statementwould clearly indicate that she had queries about thecontract. They agreed to meet on 5 October 1999. MsRoast said that she understood that she was going thereto negotiate the agreement.

53 Before Mr Tew went to the meeting on 5 October 1999with Ms Roast, Mr Toohey became alarmed, he said, thatshe had not accepted her contract and she had not madecontact on any major issues. In fact, she had made contactwith Mr Toohey about the major issue of accommodationon or about 24 September 1999 whilst he was at the GrandFinal in Victoria. On 29 September 1999, Ms Roast hadraised major issues by fax with Mr Tew and indicatedthat she may wish to raise other questions, but that shewished to make an informed decision. She was also doingthis at the time whilst she was absent from work due toher neck injury, so that she was not delaying. Mr Tooheytold Mr Tew that they had this complex opening forChristmas and they really had to get someone on board.Mr Toohey said—

“If we can’t get a commitment for the position we’regoing to have to find somebody else.”

(See page 174(AB).)54 The meeting occurred on 5 October 1999 at Observation

City in Scarborough and was attended by Ms Roast, hersister, Ms Alison Smith, and Mr Tew. On her evidence,Ms Roast had made up her mind that she would commit.

55 At the end of the meeting, Ms Roast concluded that shehad been dismissed. Mr Tew said that he went to themeeting with explicit instructions from Mr Toohey thatMs Roast should sign her contract or the Resident DutyManager’s job would have to be filled by someone else.Mr Tew had no instructions to terminate her employmentat the meeting, Mr Toohey said. Ms Roast was notprepared to give the commitment to his satisfaction, soMr Tew told her that the offer was withdrawn and thather old job would be brought to an end by giving hernotice. He subsequently confirmed this in writing (exhibitH10 (see page 344(AB))). Mr Tew said that the primaryissue which he wished to deal with at the meeting wasone of commitment. Ms Roast’s evidence was that her

commitment to the respondent was not an issue, but theterms of engagement were, in the context of her previouspersonal circumstances.

56 It is significant that, even though Mr Tew was seeking,on his evidence, some commitment, the draft agreementpresented to Ms Roast contained none on behalf of herprospective employer beyond three months.

57 Mr Tew’s evidence was that he made it clear to Ms Roastthat her managerial role, as it was before, had finishedand that, to move forward, she would have to accept thenew position which included food and beverageresponsibilities. She was not prepared to do this, he said,she said that she had difficulties with the terms of thenew contract and thought that her current contract lookedbetter. She confirmed to Mr Tew that that was her positionand he told her that the new position was no longeravailable.

58 Mr Tew told Ms Roast, he said, that he had been concernedabout the delay in her commitment to this matter and thathe thought that she was not an enthusiastic and committedmanager. Thus, he exercised what he said was theauthority vested in him by Mr Toohey, advising her thatthe position was no longer on offer. He also gave fourweeks’ notice to her of the termination of her contract ofemployment in the terms of the provision for terminationof the contract contained in it.

59 In evidence, Mr Tew and Mr Toohey admitted that therewas no warning to Ms Roast that she would be dismissedif she did not sign the agreement; nor did she ever saythat she would not accept the new position. That was herevidence also. It was open to so find.

60 There was a conflict between the evidence of Mr Tewand that of Ms Roast as to what occurred. Mr Tew saidthat Ms Roast had wished to adhere to the old contractand would not address the new contract. He thereforeconcluded that nothing further could be achieved andwithdrew the offer of the new position. He also terminatedher employment, although he also said that, once the offerof the position of Resident Manager was withdrawn, herposition under the existing contract ceased to exist andshe became redundant. Ms Roast said that she did not geta chance to discuss the agreement with Mr Tew. Whilstshe wanted to discuss the agreement, the first thing whichhe talked about was his idea that she lacked commitmentto the resort and to the business. He agreed that this wasthe first thing which he said. He also, on his own evidence,did not permit discussion of the agreement because heconcluded, wrongly, it was open to find, that Ms Roastdid not wish to discuss the terms of the new agreement.

61 Mr Tew also said that Ms Roast’s commitment was aproblem. There was no problem expressed to her, as amatter of fact, about her commitment until she queriedthe terms of the new proposed contract. This caused adelay of, at most, eleven and, at least, nine days (ninedays on Mr Toohey’s evidence) from the time theagreement and duty statement were given to her, untilthe meeting of 5 October 1999 and was certainly notinordinate, particularly because, in the meantime, she wasincapacitated by an injury and, even then, agreed to themeeting to resolve the matter, before she returned to work.It was open to find that there was no inordinate delay onher part.

62 Further, Mr Toohey himself had said that Ms Roast shoulduse the agreement as a negotiating point when shecomplained about it to him. He therefore knew about herdissatisfaction and encouraged her in the course on whichshe was embarking to negotiate it, pursuant to hissuggestion. Indeed, Mr Tew admitted in evidence that itdid not matter if the agreement were concluded on 7, 8,or 10 October 1999. There was, therefore, no fair or validreason to terminate her employment on 5 October 1999before any negotiations occurred. However, significantly,Ms Roast’s evidence was that she was willing to enterinto the proposed agreement but that Mr Tew refused todiscuss the matter with her and, having offered theposition, he withdrew the offer, told her she was redundantand then gave her four weeks’ notice of termination ofemployment.


63 Ms Roast said that she tried to assure Mr Tew of hercommitment, but that he would not let her talk; that herposition as Manager was now finished. He then offeredher the position of Duty Manager which she did not refuseto take. He then, soon after, said that he was no longeroffering the position and dismissed her, saying that hewas offering her the normal termination of four weeksand that she could get out of her unit at the resort in sevendays. He told her that her old job was redundant. Shealso said that he was very aggressive. She did not, at anytime, refuse to take the job. She felt stunned and betrayed,she said. There is no evidence that she refused to take thenew job or that she was warned of the consequences ofnot accepting the new agreement in unaltered form.

64 Ms Smith, Ms Roast’s sister, was there to give Ms Roastback up. Ms Smith said that Mr Tew offered the DutyManager position, then withdrew the offer. She confirmedthat Ms Roast was there to negotiate. She said there wasno chance for Ms Roast to discuss the position and thatMr Tew gave her no opportunity to do so. The meetingtook fifteen minutes and Mr Tew told Ms Roast that shewould be terminated and was redundant. Ms Smith saidthat she did not trust Mr Tew, whom she knew, and thoughtthat he was trying to get rid of Ms Roast. Ms Smith’sevidence, in most matters of substance, was not properlydifferentiable from the evidence of Ms Roast and Mr Tew,and should have been accepted to that extent.

65 Mr Tew, however, said that Ms Roast referred to her oldcontract and was totally uninterested in the new contract.There was a necessity to move on and he thereforewithdrew the offer of a new contract to her. He said thatMs Roast received the documents on 17 September 1999when Mr and Mrs Tew and Ms Roast discussed her newrole, but then, in conversation, he did agree that it waspossible that the workplace agreement was not madeavailable until 22 September 1999.

66 Commitment was not a major issue for Mr Tew at thattime and he did not bring it up. There was no particularurgency with the deadline, but it was important that MsRoast come on board as soon as possible, he said. Hesaid that a normal contract was for two years. He said hemet her to continue negotiations. He agreed that it wasquite possible that he kicked the discussion off on 5October 1999 by telling Ms Roast that he had concernsabout her commitment. Ms Roast did not agree that shelacked commitment. Mr Tew denied that there was anyintention to dismiss her to make way for one Una Butler,who subsequently took the job, and who had beenemployed in the past by Mr and Mrs Tew.

67 What was said at the meeting of 5 October 1999 wasrecorded, unbeknown to Mr Tew, by Ms Smith by meansof a tape recorder in her handbag. The recording wastranscribed and the transcription referred to by Mr Tew,Ms Smith and Ms Roast, who in evidence admitted that,substantially, it was a record of what occurred, althoughsome parts were omitted, according to Mr Tew. It wasnot suggested by Mr Tew that the omissions wereimportant, nor were they identified in any detail.

68 However, the Commissioner rejected the transcript asevidence on the basis that it was self serving. Mr Tewtold Mr Toohey that Ms Smith’s presence had put himright offside.

69 Exhibit H10, a letter dated 5 October 1999 (see page344(AB)), which confirmed the termination of Ms Roast’semployment with the respondent, orally effected at themeeting by Mr Tew, was signed by Mr Tew, on theletterhead of Mandurah Quay Resort, and was forwardedto Ms Roast. The letter also confirmed the requirementthat she vacate the premises in seven days, as Mr Tewhad told her to do at the meeting on 5 October 1999. MrTew reported the outcome of the meeting to Mr Tooheywho attempted to contact Ms Roast by telephone on threeoccasions but was unsuccessful in doing so. Mr Tooheymade it quite clear in evidence that Mr Tew had withdrawnthe offer of the position of Resident Duty Manager andthat “she would have become redundant”. That is, herexisting position as Manager no longer existed. That is,of course, what Mr Tew told her, as well as terminating

her employment by giving four weeks’ notice inaccordance with her contract of employment (see page188(AB)). Mr Tew reported to Mr Toohey after themeeting that he had “withdrawn the position from Beth”.

70 However, significantly, there was no evidence that, orallyor in writing, Mr Toohey intended to or did revoke herdismissal. Indeed, in evidence, he made it quite clear thathis instructions (which were the instructions carried outby Mr Tew) would render her redundant if she did notaccept the draft agreement to enter new employment atthat meeting and that act constituted a dismissal, in anyevent. The only contact in writing with Ms Roast by oron behalf of Mr Toohey after the unauthorised terminationof her employment was the letter confirming her dismissal.

71 This was notwithstanding a fax forwarded by Ms Roastto Mr Toohey in which she advised him that she had beendismissed and which one would have thought presenteda clear opportunity to him to reply, saying that thedismissal of her was unauthorised and was revoked. Infact, it was an opportunity of which he did not availhimself. It was open to so find.

72 That is a summary of the material evidence. There is littledifference in essentials between the witnesses. I haveattempted to identify differences where they are relevant.I have also pointed to some inferences which mightproperly have been drawn and which might properly bedrawn by the Full Bench, and some findings which itwas open to make.

73 It is noteworthy that there are contradictions betweenactions and attitudes of the respondent, if one accepts theevidence of all of the main witnesses and there is no reasonwhy that should not be so when the Commissioner’sfindings in that regard were, except for Ms Smith’sevidence, not challenged.

74 First, Mr Toohey told Ms Roast that the consultants werethere to help her. Ms Roast said that they became herbosses. They did not deny that they supervised her. Theydenied that they told Ms Roast that they were to beregarded as “Tony and Reg”, however, but that does notdetract from their failure to admit that she was supervisedand required to be supervised.

75 Mr Toohey and Ms Roast both agreed, with somedifference in emphasis, as to the degree that Ms Roastshould deal directly with the consultants. However, it isclear that there was a direction to her to deal with theconsultants to some extent. Mr Toohey said that Ms Roastcould come to him if she had problems. She said that hehad told her that there was no point in having consultantsif she did not go to them.

76 Mr Toohey said that the proposed agreement was not “outof the norm” with her existing agreement when it plainlyand clearly was. The agreement contained no commitmentto a lengthy fixed term which is what Mr Tew had askedMs Roast about. There was no inexcusable or inordinatedelay in her dealing with the agreement and no urgencyin the requirement to dismiss her. On the one hand, MsRoast had been told by Mr Toohey to negotiate if she wasnot happy with the agreement and she had informed himabout her difficulties with the agreement, but, on the otherhand, when she did, however, do this, she was dismissed.

77 On the one hand, Mr Toohey said that he wished to retainMs Roast, that he had confidence in her commitment untillate September 1999 and that Mr Tew had no power todismiss her. On the other hand, he had specifically instructedMr Tew to dismiss her as redundant if she did not acceptthe new position, which at no time she refused to do.

78 On the one hand also, Mr Toohey said that he endeavouredto contact Ms Roast after her dismissal. On the other hand,he did nothing to revoke it, and did nothing to disavowthe letter of 5 October 1999 confirming the dismissal and,further, did nothing to revoke the requirement that shevacate her accommodation at the resort within seven days.

FINDINGS AT FIRST INSTANCE79 The Commissioner accepted Mrs Tew and Ms Boston as

witnesses of truth. The Commissioner observed—“On balance the evidence of the respondents has agreater attraction to the Commission insofar as the


likelihood of it being true than does the evidence ofthe applicant. I say that on the basis that even thoughthe applicant’s evidence is not impeachable her cor-roboration comes from her sister Alison Smith and Ihave the reservations expressed earlier about thequality of her evidence.”

(See page 19(AB).)80 The Commissioner considered the evidence and found

as follows—1. It was open to find that, when Ms Roast was

pressed as to how long she would stay with therespondent, she answered against the backgroundof her previous experiences where she had suf-fered personal tragedies.

2. That is, that, if she suffered another personal trag-edy, it could be that she could not stay.

3. She did not communicate this to Mr Tew.4. It was not surprising that Mr Tew took the reti-

cence of Ms Roast to commit to the project in theterms that he wanted it to be to be a drawback toher appointment, not knowing about the impor-tant matters in her personal life which may havebeen affecting her perception of what the com-mitment meant.

5. Mr Tew reached a stage where he was concernedthat he might not be able to deliver a workingoperation when the new functions were sched-uled to be running if he did not have the keyposition, which was being offered to Ms Roast,settled with her working in the new duties.

6. The old duties performed by Ms Roast were nolonger to be performed, and the new duties werequite different and very much more substantialthan her existing duties.

7. The respondent is entitled to operate its businessin an effective and efficient way and is thereforeable to take such action as it thinks necessary toachieve that end, subject to it acting fairly.

8. Mr Tew was sent by Mr Toohey to the meetingon 5 October 1999 with Ms Roast to resolve theissue of Ms Roast’s position. He was instructed,if he could not get her to accept the new agree-ment, to tell her that there was no positionavailable since the position previously occupiedby her had ceased to exist.

9. Mr Tew attended that meeting on the understand-ing that there was a special relationship betweenMr Toohey and many of his staff, including MsRoast, and that Mr Toohey’s express instructionwas that, if Ms Roast did not like any of the newconditions which were being offered to her, theycould be subject to negotiation.

10. Mr Tew attended the meeting on the basis thathe would tell her that her old position was gonebut that this was not necessarily the end ofthe matter, since she was free to go to MrToohey. The Commissioner found that this wasthe state of mind in which Mr Tew attendedthe meeting.

11. It is wrong to regard that meeting as the singleevent which led to a termination. It was a con-tinuation of a sequence of events. If the length ofthe conversation and its contents are viewed inthat context, then the complaint that the respond-ent made a decision to dismiss without any properconsideration is put in its proper context and thereis no substance in the complaint.

12. At the meeting, Ms Roast said that she wanted tocontinue with her old contract.

13. The capacity of Ms Roast and Mr Tew to resolvethe matter was interdicted by the presence andconduct of Ms Smith. At the meeting, Ms Smithwas combative and aggressive and went so far asto pretend that she was taking written notes whenshe knew that she was recording Mr Tew’s con-versation without his knowledge.

14. The covert recording of conversations is not nor-mal business practice at all.

15. Ms Smith made this record, that is an unrevealedtape recording, in order to use it against Mr Tewlater if that became necessary. She did do so inthis Commission.

16. After the meeting, Ms Roast made no attempt tocontact Mr Toohey, which one would have ex-pected, given the relationship between them.

17. Ms Roast forewent an opportunity to resolve thematter. Mr Toohey met his obligations as an em-ployer by trying to ascertain from her what herproblems were.

18. The conduct of the respondent in this case wasreasonable. The respondent was entitled to makea judgment in the best interests in its businessand it can do so as long as it takes into considera-tion the matter from Ms Roast’s point of viewand this was done.

19. The resolution of an unfair dismissal claim is notdetermined solely by legal entitlements and noinjustice will result if the employee could havebeen justifiably dismissed.

20. The circumstances of this case lead to a findingthat there has been no injustice. What has hap-pened is that the job which Ms Roast did for therespondent when it operated as a short stay ac-commodation provider expired by effluxion oftime. This was brought about by the expansionof the business into a far more comprehensivehospitality operation. The respondent and MsRoast were unable to reach a meeting of mindson a contract of employment for Ms Roast tocontinue to work for the respondent and the em-ployment relationship, which had been successfulfor a considerable period, came to an end.

21. The respondent cannot be held responsible forthat and, as a result, there has been no unfairnessin the sense described in the authorities.

22. The Commissioner dismissed the application.

ISSUES AND CONCLUSIONS81 The decision to dismiss the application by which it was

alleged that Ms Roast was unfairly dismissed, and thatshe was denied contractual benefits to which she wasentitled was a discretionary decision, as that term isdefined in Norbis v Norbis (1986) 161 CLR 513 and inCoal and Allied Operations Pty Ltd v AIRC (2000) 74ALJR 1348 (HC). Unless the appellant establishes thatthe exercise of discretion at first instance miscarried andestablishes it in accordance with the principles laid downin House v The King [1936] 55 CLR 499 (see alsoGromark Packaging v FMWU 73 WAIG 220 (IAC)), thenthe Full Bench may not interfere and, in particular, cannotsubstitute the exercise of its own discretion for that of theCommission at first instance.

82 Further, where the Commission at first instance based itsfindings on the view which it took of the credibility ofwitnesses, then the Full Bench, in the absence of an errorof fact, is not entitled to interfere with such findings offact unless the Commission palpably misused theadvantage which it enjoyed in seeing the witnesses (seeDevries and Another v Australian National RailwaysCommission and Another [1992-1993] 177 CLR 472 andState Rail Authority of New South Wales v EarthlineConstructions Pty Ltd (in liq) (1999) 73 ALJR 306).

83 However, the Full Bench is entitled to act in accordancewith the principles laid down in Warren v Coombes andAnother [1978-1979] 142 CLR 531 as follows—

“In general on an appeal by way of rehearing from ajudge sitting without a jury, an appellate court is inas good a position as the trial judge to decided onthe proper inference to be drawn from facts whichare undisputed or which, having been disputed, areestablished by the findings of the trial judge. In de-ciding what is the proper inference to be drawn, theappellate court will give respect and weight to theconclusion of the trial judge, but will not shrink fromgiving effect to it.”


84 I should say that Mr Ellery of Counsel, on behalf of therespondent, plainly submitted that the appeal founderedon the principles laid down in House v The King (HC)(opcit).

85 The Commission cannot find that a dismissal has beenunfair unless it can find so within the well knownprinciples laid down in Miles and Others t/a UndercliffeNursing Home v FMWU 65 WAIG 385 (IAC) (see alsothe discussion by the Full Bench in RRIA v CMEWU 69WAIG 1027 (FB)).

86 The Commissioner accepted the evidence of Mr Toohey,Mrs Tew, Mr Tew and Ms Boston. He also found that,though Ms Roast’s evidence was not impeachable, hercorroboration came from Ms Smith and the Commissionerhad reservations about the latter’s evidence. With respect,I have difficulty in understanding that finding. If theCommissioner found that Ms Roast’s evidence wasunimpeachable, then that means that her evidence wascredible whether corroborated or not. That also wouldmean that the evidence of Ms Smith, as corroborated by“the unimpeachable evidence” of Ms Roast, was credible.

87 Be that as it may, the evidence of all of the parties properlyled to a number of findings which could and should havebeen made.

88 I will now endeavour to summarise them.89 Ms Roast was a conscientious and competent employee

in her capacity of Manager of the resort and Mr Tooheywished to retain her as an employee of the new employercompany under a new contract of service, described inevidence as a workplace agreement and also as a nonworkplace agreement contract of employment.

90 If one accepts the evidence of Ms Roast, as theCommissioner did, the consultants came across to her asaggressive. Further, whilst they may not have told her tothink of them as Reg and Tony, Mr Toohey intended, to agreat extent, that they were to stand in his place and madethat clear to her. It is clear that she was upset by theirapproach.

91 As to the question of commitment, although it was raisedin early August 1999, it is clear that Ms Roast’scommitment was not in doubt, as far as Mr Toohey wasconcerned, at least until the end of September 1999. Thatwas reasonable in view of her commitment to the companyprior to that which Mr Toohey had fairly recognised bypaying for a trip for Ms Roast and her sister to Bali. Thedoubt about her commitment came only, it was open tofind, when she did not sign the draft workplace agreementimmediately or almost immediately and, in fact, queriedit and negotiated it, as Mr Toohey suggested that she do.

92 Mr Toohey saw the difficulty with the agreement as asimple matter. In fact, it was not and it was open to sofind. In fact, there was an omission of a substantial benefitfrom it: the provision of free accommodation. It was, as Ihave said, difficult to understand how such an error shouldhave been made. It is fair to observe that Mr Toohey waswrong in concluding that the decision of whether MsRoast should sign the proposed agreement was a simplematter.

93 Further, the agreement, if entered into, required acommitted and competent employee whom Mr Tooheywished to retain to enter into a period of probation. MsRoast was understandably insulted and her query aboutthis does not appear to have been answered. In addition,instead of there being an indefinite contract, subject totermination on four weeks’ notice on either side, therewas a fixed term of three months at most, terminable byfourteen days’ notice on either side. In addition, therewas a detailed schedule of duties which was not containedin Ms Roast’s existing contract and which,understandably, she wished to have explained.

94 There was no commitment in the draft agreement by theemployer to Ms Roast and in fact the agreement did notreflect the commitment which Mr Tew said was requiredof Ms Roast. He said that the usual agreement was fortwo years. This agreement was, on that statement, patentlynot usual. This was an agreement which, it was open tofind, was not simple and which required careful

consideration. It was, in fact, plainly disadvantageous toMs Roast, compared to her earlier agreement. Further, amajor benefit of her existing agreement, freeaccommodation, had been inexplicably omitted.

95 Further, it is difficult to understand how Mr Tew couldreasonably have doubted her commitment to the resortwhen she was merely considering an agreement which,on an objective consideration, had from her point of viewthe difficulties in it which I have mentioned. It was notunreasonable that Ms Roast should seek to negotiate itfurther, which was what, on her evidence and not denied,Mr Toohey had told her to do.

96 There was, over a period of nine to eleven days, dependingon whose evidence might be accepted as to when the draftagreement was reviewed by Ms Roast. That included herillness and was not such an inordinate delay as warrantedMr Toohey becoming nervous about her commitment.As Mr Tew admitted in evidence, whilst there was someurgency, it was not necessary to resolve matters on 5October 1999. Further, whilst still not due to return towork, Ms Roast made herself available to negotiate thecontract on 5 October 1999.

97 Since the agreement reduced the period of employmentto a little less than three months with no commitment bythe employer and, since, on the evidence, to some extent,Ms Roast had been made a subordinate of the consultants,there was some understandable uneasiness in her. Further,it was clear that Mr Toohey required the agreement signedand was impatient about her not signing it, purportedlyeven though Mr Tew admitted that it did not have to besigned precisely on the day of the meeting.

98 Then, only a few days after receiving the agreement, MsRoast raised other queries which were answered and, assoon as she was fit, agreed to a meeting. She had expresslysaid in her fax that she had a few more questions aboutthe agreement and it should have been anticipated thatthey might be raised at the meeting, which both partiesagreed to and which took place on 5 October 1999. Therewas no reasonable basis to query her commitment whenall she wished to do was query a disadvantageousagreement and negotiate it. She even had advised thatshe wished to make an informed decision. She had beenadvised to negotiate the agreement by Mr Toohey.

99 It is clear, it was open to find and the Commissioner shouldhave found, that before that meeting and at that meetingno warning was given that Ms Roast would be maderedundant. There was no mention of it. It is quite clear,on her “unimpeachable evidence”, that she was willingto make “an informed decision as soon as possible”, thatshe attended the meeting with Mr Tew in order to do soand, indeed, that she did, after receiving informationparticularly as to her duties.

100 Ms Roast had made clear to Mr Tew her concern aboutthe proposed requirement that she serve a period ofprobation and there is nothing in his evidence to indicatethat he had endeavoured to allay that concern. One wouldhave expected such a course to be taken in relation to anemployee who was valuable enough to be the subject ofan instruction that she be retained.

101 No warning was given to Ms Roast that, if she did notsign the draft agreement, she would be dismissed eitherby retrenchment as redundant or otherwise, and no realeffort was taken to negotiate the agreement. It matterednot that she referred to her old contract. It is not at allclear from her comment that the old contract seemed moreattractive to the extent that she was ceasing negotiations.Objectively viewed, the old contract was far moreadvantageous and attractive for the reasons which I haveadvanced above. On her own evidence, it was clear thatshe was not ceasing negotiations. Further, she did notsay so. Mr Tew assumed prematurely that she was. Indeed,she clearly intended to commit herself, but was given nochance.

102 What was clear and what the Commissioner should havefound on both Mr Tew’s and Mr Toohey’s evidence wasthat Mr Tew had gone into that meeting instructed that, ifMs Roast did not sign the proposed agreement, the offerwas to be withdrawn, that the position as Manager was


redundant. There was no evidence that any negotiationwould be allowed at that meeting and, as a matter of clearfact, it was not.

103 The evidence was, too, that Ms Roast did not refuse tosign the agreement nor was she given an opportunity to.She was not even questioned as to her views of thecontents of the agreement when she had warned that shemay have more questions on 29 September 1999. TheCommissioner should have so found.

104 There was, on the evidence, no imperative that the matterbe resolved that day or that she be dismissed withoutfurther discussion. The Commissioner should have sofound.

105 Indeed, Mr Toohey said that he wished to offer Ms Roastemployment as a receptionist if she did not becomeResident Duty Manager and those discussions could haveoccurred without her being dismissed.

106 Further, whether Ms Smith was aggressive or not, thatwas no reason to dismiss Ms Roast without warning andin a manner which bore some of the clear features of asummary dismissal. The Commissioner should have sofound.

107 Further, both Mr Toohey and Mr Tew, on their evidence,understood full well that what they were doing was toabolish her position at the same time as they withdrewthe offer of employment to Ms Roast for the position ofResident Duty Manager. It was described as making herredundant, so the proposal was to terminate heremployment on that basis, i.e. to retrench her. That wouldand did constitute a dismissal in any event.

108 It was the clear instruction of Mr Toohey, which Mr Tewunderstood, that if Ms Roast did not accept the agreementoffered to her, then the offer of the new position was tobe withdrawn and her job as Manager became redundant.The Commissioner should have so found.

109 Mr Tew went further and terminated her contract ofemployment, giving the prescribed notice of four weeks,it was said, without authority. However, he did haveauthority, for the reasons which I have just explained.Whether he realised it or not that this constituted adismissal, Mr Toohey gave clear instructions to Mr Tewto dismiss Ms Roast as redundant, which he did withoutwarning. The Commissioner should have so found. MsRoast would also seem to have been dismissed without asufficient redundancy payment which, in itself, wouldrender the dismissal unfair. However, since this was not aground of appeal, I make no judgment on that issue atthis time.

110 After Mr Tew had reported that he had withdrawn theoffer, Mr Toohey then endeavoured to contact Ms Roast.

111 However, even though his agent had effected a dismissalwhich Mr Toohey said was unauthorised, Mr Toohey didnothing to reverse that act and, indeed, did nothing toprevent the confirmation of that dismissal by the letter of5 October 1999, thereby permitting and, indeed,approving the dismissal together with her eviction fromher accommodation at the resort. It was not Ms Roast’sduty to attempt to reverse a dismissal which Mr Tew hadclear authority to effect, albeit that he was said to haveeffected the dismissal itself in an unauthorised manner. Itwas within the power of Mr Toohey to remedy thesituation and he did not do so. He allowed, on his ownevidence, a competent employee who, on all of theevidence, was committed in her past performance and,until she wished to negotiate her contract, was regardedas a committed employee, to be dismissed withoutauthority whilst she was seeking to negotiate an agreementas he had advised her to do. The Commissioner shouldhave so found.

112 Further, it was open to find and it should have been foundthat there was no point in her attempting to contact MrToohey because he had, in fact, instructed Mr Tew thatshe be dismissed. In any event, Mr Toohey confirmed theallegedly unauthorised dismissal which had been effected.

113 It was quite wrong for the Commissioner to find that MsRoast had an obligation to contact Mr Toohey to reversethe situation. She did not. She had sought to negotiate,

she was unequivocally dismissed, and she advised MrToohey that she had been. He did nothing and a letter,confirming the dismissal and her eviction, issued bearingthe date of her oral dismissal. The Commissioner erredin considering that irrelevant factor, except as a factorwhich relevantly established unfairness.

114 Without detracting from the generality of the abovefindings which should have been made, the Commissionererred in failing to find—

(a) That Ms Roast was willing to enter into a newcontract of employment, but that she was pre-vented from attempting to negotiate in relationto a palpably disadvantageous proposed agree-ment.

(b) That she was a competent and committed em-ployee who had done nothing but give goodservice; and to whom, as a matter of decency andlaw, the respondent should have been good andconsiderate but, in the circumstances surround-ing her dismissal, was not.

(c) That the respondent did not advise her that heremployment was in jeopardy when it was in jeop-ardy.

(d) That the respondent’s agent terminated her em-ployment without authority.

(e) That the respondent had no good reason to ter-minate her employment when it did and did sowithout forewarning or notice.

(f) That the respondent terminated her employmentbefore she entered into an agreement or had anopportunity to say that she would.

(g) That the respondent ignored a commitment fromher that it was not prepared to give itself and un-fairly used that as a reason to cease negotiationsand terminate her employment.

(h) That the respondent failed to revoke the termina-tion when it had occurred without authority andwhen it had ample opportunity to do so.

(i) That the respondent terminated the employmentof Ms Roast when she was attempting to negoti-ate with the representative of her employer acontract which was not simple and not clear andpalpably disadvantageous in some respects, acontract with a new employer, on her acceptedevidence, in good faith.

(j) That the respondent embarked on a course ofconduct containing significant contradictionswhich, whether it was intended to or not, misledMs Roast and did so with unfair results.

(k) That the respondent effected on Ms Roast a per-emptory dismissal and removal from heraccommodation, having some of the features ofa summary dismissal, which was unjustified.

(l) That the dismissal process was unfair.(m) That the dismissal was unjustified at the time.(n) That, in terms of the principles in Miles and Oth-

ers t/a Undercliffe Nursing Home v FMWU(IAC)(op cit), there was no fair go all round, andthe respondent exercised its right to terminate thecontract harshly, oppressively and unfairly.

115 As a result, the Commissioner’s exercise of discretionmiscarried. He should have found that, for all of thosereasons as I have expressed them above, the dismissalwas harsh, oppressive and unfair. More particularly, inaccordance with the grounds of appeal, the Commissionererred as follows—

(i) It was open to find and he should have found thatMs Roast was not prepared to accept the alterna-tive position offered to her, but she wished tonegotiate the contract.

(ii) The Commissioner erred in law in taking intoaccount that Ms Roast did not contact the re-spondent after her dismissal in an attempt toreverse the decision to dismiss her for the rea-sons which I have already expressed.


(iii) The Commissioner erred in law in taking intoaccount the fact that the respondent’s ManagingDirector, Mr Toohey, did attempt to contact MsRoast after her dismissal when there is no evi-dence that he attempted to reverse the decision.Indeed, the evidence is that he did not reverse thedecision to dismiss her, but permitted or enabledits confirmation by the letter forwarded on 5 Oc-tober 1999 by Mr Tew.

(iv) The Commissioner also erred in law and in theexercise of his discretion in finding that it wasreasonable for the respondent’s agent to termi-nate Ms Roast’s employment and withdraw thealternative employment after the respondent’sManaging Director, Mr Toohey, had told MsRoast that, if she did not conclude an agreementwith Mr Tew, she could contact him to resolveany outstanding issues. His instruction to dismissMs Roast as redundant was, of course, a nega-tion of that invitation to Ms Roast, in any event.

(v) The Commissioner erred in failing to find thatthe dismissal was harsh, oppressive and unfair incircumstances where the respondent’s agent dis-missed Ms Roast—

(a) When he was not authorised to do so, onone version;

(b) Without notice;(c) In the absence of any reason to do so at the

time;(d) When the respondent could have and

should have revoked the unauthorised dis-missal;

(e) When Ms Roast was not warned that it wasintended to terminate her contract of em-ployment if she did not accept the offer ofa new position on the terms of the proposedagreement;

(f) When the respondent’s agent withdrew anoffer of alternative employment when heshould have attempted to complete nego-tiations;

(vi) The Commissioner erred in finding that the re-spondent did as much as necessary to ensure thatMs Roast received a fair go when the respondentpatently, for the reasons I have expressed above,did not.

(vii) The Commissioner erred in finding that the re-spondent considered the circumstances from MsRoast’s point of view when, for the reasons I haveexpressed above, the respondent patently did not.

(viii) The Commissioner erred in giving insufficientweight to the fact that Ms Roast’s employmentwould be terminated and that the offer of alterna-tive employment would be withdrawn if she didnot accept, at the meeting of 5 October 1999,terms which she found disagreeable.

(ix) At to the failure to admit the transcribed recordof the meeting of 5 October 1999, it was incor-rectly excluded. However, it was not tendered tothe Full Bench and the Full Bench is, therefore,unable to consider it. In any event, there was lit-tle dispute as to the substance of what was saidand Ms Smith’s evidence was corroborated byMs Roast, who was regarded as a witness whoseevidence could not be impeached as to the truthand, further, in substance, it was corroborated bythe evidence of Mr Tew. To that extent, the evi-dence could and should have been accepted andthere is little dispute about what did occur at thatmeeting.

(x) The Commissioner erred in reaching a decisionwhich was plainly unjust, for those reasons.

116 I would find that the exercise of the discretion by theCommissioner at first instance miscarried in accordancewith the principles laid down in House v The King(HC)(op cit). The Full Bench would, therefore, in my

opinion, be entitled to interfere and substitute the exerciseof its own discretion for that of the Commissioner at firstinstance, based on the findings which the Commissionerat first instance should have made. The Full Bench shouldthen find, and I would find, that the dismissal of Ms Roastby the respondent on 5 October 1999 was harsh,oppressive and unfair and so declare.

117 It follows, too, that, within the principles laid down inRyan v Hazelby and Lester trading as Carnarvon WasteDisposals 73 WAIG 1752 (IAC) and Rosemist HoldingsPty Ltd v Khoury 79 WAIG 645 (FB) and other cases, noinjustice would be occasioned to the respondent bygranting an extension of time within which to appeal.The appeal was instituted only one day late and therewas no major culpability on the part of Ms Roast or heragent. The delay was adequately explained and Ms Roasthad a very strong case. To deprive her of the right to appealfor one day’s delay in those circumstances would bemanifestly unjust. To reach a decision to extend timewithin which to appeal occasions no major injustice, incomparison, to the respondent, by requiring it thereforeto defend the appeal, in those circumstances. For thosereasons, I would grant the application to extend timewithin which to institute the appeal, and make any othernecessary orders to effect that extension.

118 For those reasons, I would uphold the appeal. I wouldsuspend the decision made at first instance and remit thematter to the Commission at first instance to make findingsas to what remedy Ms Roast is entitled to according tolaw and in accordance with the reasons for decision ofthe Full Bench.

CHIEF COMMISSIONER W S COLEMAN—119 I have had the advantage of reading the draft of the reasons

for the decision of the Honourable President. I agree thatthere is no injustice to the respondent in granting anextension of time within which to appeal and that thesubstantive appeal should be upheld with the order in thefirst instance being suspended and the matter beingremitted to determine the question of relief.

120 While it is insufficient for this appellant body to considerthat if it had been in the position of the Commissioner inthe first instance that it would have determined the matterdifferently, an error which goes to the basis upon whichthe discretion was exercised imposes the duty on the FullBench to review evidence and substitute its own discretionif there are grounds for so doing. (House v The King[1936] 55 CLR 499).

121 In my view the error which is manifest arises from thefailure in the first instance for sufficient findings to bemade from the evidence of witnesses particularly withrespect to the event which took place on 5th October 1999when the appellant’s services were terminated.

122 The Commissioner considered that all of the respondent’switnesses were truthful. As to the appellant, he consideredthat there was no reason to discount any of the evidenceas not being true. However he concluded that the evidenceof the respondent’s witnesses had a greater attractioninsofar as the likelihood of it being true than did that ofthe evidence of the appellant. This position was reachedeven though the appellant’s evidence was consideredunimpeachable. However, because corroboration camefrom the appellant’s sister, it was caste in a different light.The appellant’s sister had attended the interview on the5th October. She had covertly recorded the discussion.Her evidence was considered self serving and herbehaviour in surreptitiously recording the discussionperverse. The Commissioner believed that she had asignificant role in the case and the capacity of the appellantand the respondent’s representatives to resolve thequestion of the terms and conditions of a contract ofemployment at that time were hindered or prohibited byher presence.

123 However it was found in the first instance that it wouldbe wrong to regard the meeting as a single event whichled to the appellant’s termination. In this respect it had tobe seen as part of a sequence of events that includeddiscussions and communications between the appellant,the respondent’s principal and consultants. The appellant’s


sister was not involved in any of these dealings. In thisrespect the appellant’s evidence must be taken asunimpeachable.

124 Notwithstanding this findings were not made with respectto the appellant’s understanding as to the basis upon whichthe meeting on 5th October was to be conducted, that iswhether it was reasonable for her to have participated onthe understanding that she was there to negotiate the termsof a contract and should or should not have appreciatedthat her ongoing employment was at stake. On the basisof the appellant’s unimpeachable evidence corroboratedby facsimile copies of documents exchanged between theparties preparatory to the meeting on 5th October it wasopen to the Commission to find that as far as the applicantwas concerned the purpose of the meeting was clear. It isfor the parties to negotiate the terms of a new contract;one that reflected their respective commitments to eachother.

125 Furthermore despite her sister’s involvement in thediscussions on 5th October on the evidence it was open tothe Commissioner to find and should have been foundthat the appellant was not given the opportunity to explainher position. The evidence before the Commission whichwas the subject of a finding was the respondent’s principalhad given an express instruction that if the appellant didnot like any of the new conditions which were beingoffered to her they could be the subject of negotiation. Inthis context the ambiguous directions from the principalas to the course the consultant was to take should havebeen addressed in the first instance. In the absence ofexpress authority to terminate the appellant’s employmenton 5th October together with the commitment given toher for a negotiated outcome for the conditions ofemployment it was necessary to consider whether theappellant’s actions prior to that meeting prejudiced herclaims to ongoing employment. In the regard I acceptthat the Commissioner in the first instance erred in findingthat the appellant had not raised any major problems withthe proposed agreement promoted by the respondent andthat she was not prepared to accept the alternative positionof Resident Duty Manager in the new resort. The evidenceshows that the appellant pursued issues concerning thenew contract in an appropriate and timely manner andalthough there were questions initially, her commitmentto the venture was clear from her participation in planningand the position she stated in evidence. Findings to theseeffects were open to the Commission and ought to havebeen made.

126 The Commission erred in taking into account the factthat the appellant did not contact the respondent’sprincipal after her dismissal. There was no duty on her topursue the matter with him once her services had beendisposed of in such an abrupt manner. In no way doesthis failure mitigate the harshness of the termination. Thetenor of the relationship between the appellant and theprincipal did not impose any special duty on her in thisregard.

127 On the evidence before the Commission it was open to itto find and should have been found that the appellant’semployment was harshly, oppressively or unfairlyterminated. Grounds of appeal 1, 2, 4, 6, 7, 8 and 14(1)have been made out. I would uphold the appeal.

COMMISSIONER P E SCOTT—128 I have had the benefit of reading the reasons for decision

of the Chief Commissioner with which I agree. I agreetoo, that the appeal should be upheld, the order at firstinstance suspended and this matter remitted in respect ofthe remedy to be applied.

THE PRESIDENT—129 For those reasons, the appeal is upheld, the order at first

instance suspended and the matter remitted to theCommission.

Order accordingly


INDUSTRIAL RELATIONS COMMISSION.PARTIES ELIZABETH JOYCE ROAST,

APPELLANTv.FORX PTY LTD (ACN 008 972 076),RESPONDENT


DELIVERED TUESDAY, 14 AUGUST 2001FILE NO/S FBA 54 OF 2000CITATION NO. 2001 WAIRC 03562_______________________________________________________________________________Decision Appeal upheld, order at first instance

suspended and matter remitted to theCommission.

AppearancesAppellant Mr S Heathcote, as agentRespondent Mr N D Ellery (of Counsel), by leave_______________________________________________________________________________

Order.This matter having come on for hearing before the Full Benchon the 12th day of July 2001, and having heard Mr S Heathcote,as agent, on behalf of the appellant and Mr N D Ellery (ofCounsel), by leave, on behalf of the respondent, and the FullBench having reserved its decision on the matter, and reasonsfor decision being delivered on the 14th day of August 2001,it is this day, the 14th day of August 2001, ordered and de-clared as follows—

(1) THAT the application by the appellant to amend thegrounds of appeal be and is hereby dismissed.

(2) THAT the applications filed herein to extend time tofile the appeal in FBA 54 of 2000 out of time be andare hereby granted.

(3) THAT appeal no. FBA 54 of 2000 be and is herebyupheld.

(4) THAT the decision of the Commission in matter No1678 of 1999 given on the 29th day of November2000 be and is hereby varied by deleting the ordermade dismissing the application and substitutingtherefor a declaration in the following terms—

“THAT the applicant, Ms Elizabeth JoyceRoast was harshly, oppressively or unfairlydismissed by the respondent, Forx Pty Ltd(ACN 008 972 076)”.

(5) THAT the decision made at first instance be and ishereby suspended and application No 1678 of 1999is hereby remitted to the Commission at first instance,constituted by a single Commissioner, to make find-ings as to what remedy Ms Roast is entitled accordingto law and in accordance with the reasons for deci-sion of the Full Bench.

By the Full Bench(Sgd.) P. J. SHARKEY,

[L.S.] President.


FULL BENCH—Appeals against decision of

Industrial Magistrate—2001 WAIRC 03698


PARTIES TRANSPORT WORKERS’ UNION OFAUSTRALIA, INDUSTRIAL UNIONOF WORKERS, WESTERNAUSTRALIAN BRANCH,APPELLANT

v.

PINNACLE SERVICES PTY LTD,RESPONDENT

CORAM FULL BENCH

HIS HONOUR THE PRESIDENT P JSHARKEY

CHIEF COMMISSIONER W SCOLEMAN

COMMISSIONER A R BEECH

DELIVERED WEDNESDAY, 5 SEPTEMBER 2001

FILE NO/S FBA 40 OF 2001

CITATION NO. 2001 WAIRC 03698_______________________________________________________________________________

Decision Withdrawn by consent.

_______________________________________________________________________________

Order.

The Notice of Appeal herein, having been filed in the Reg-istry of the Commission on the 9th day of July 2001, andhaving been served upon the respondent on the 10th day ofJuly 2001 and a Declaration of Service having been filed inthe Registry of the Commission on the 11th day of July 2001,and the abovenamed appellant, on the 21st day of July 2001,having advised the Commission in writing that the appellantwished to withdraw the appeal, and the abovenamed respond-ent, on the 30th day of July 2001, having advised theCommission, in writing, that the respondent consented to theappeal being withdrawn by the appellant, and the Full Benchhaving decided that the consent to the withdrawal of the ap-peal constituted special circumstances so as to exempt theparties and each of them from further compliance with Regu-lation 29 of the Industrial Relations Commission Regulations1985 and having so exempted them, it is this day, the 5th dayof September 2001, ordered, by consent, as follows—

(1) THAT there be leave granted and leave is herebygranted for appeal No FBA 40 of 2001 to be with-drawn.

(2) THAT the Full Bench refrain from hearing the saidappeal further.

By the Full Bench,

(Sgd.) P.J. SHARKEY,[L.S.] President.

COMMISSION IN COURTSESSION—

Matters dealt with—2001 WAIRC 03699

PAYMENTS TO EMPLOYEES


PARTIES CIVIL SERVICE ASSOCIATION OFWESTERN AUSTRALIAINCORPORATED, APPLICANT

v.

CHIEF EXECUTIVE OFFICERWESTERN AUSTRALIAN (“WA”)TOURISM COMMISSION,RESPONDENT

CORAM COMMISSION IN COURT SESSION

COMMISSIONER P E SCOTT

COMMISSIONER S J KENNER

COMMISSIONER J H SMITH

DELIVERED FRIDAY, 7 SEPTEMBER 2001

FILE NO PSACR 5 OF 2001

CITATION NO. 2001 WAIRC 03699__________________________________________________________________________

Result Direction issued__________________________________________________________________________

Direction.

WHEREAS this is a matter referred for hearing and determi-nation on the 31st day of July 2001; and

WHEREAS on the 5th day of September 2001 the Com-mission convened a conference for the purpose of resolvingprocedural matters between the parties;

NOW THEREFORE, the Commission in Court Session,pursuant to the powers conferred on it under the IndustrialRelations Act 1979, hereby directs—

1. THAT the preliminary matter of the Commission’sjurisdiction shall be dealt with by way of writtensubmissions.

2. THAT by no later than the 20th day of September2001 the Applicant shall file with the Commissionand serve on the Respondent its submissions in re-lation to the issue of jurisdiction.

3. THAT by no later than the 4th day of October 2001the Respondent shall file with the Commission andserve on the Applicant its submissions in response.

4. THAT the Commission in Court Session shall con-vene on the 18th day of October 2001 at 9.00am toprovide an opportunity for the parties to speak brieflyto their submissions.

(Sgd.) P. E. SCOTT,[L.S.] Commissioner,

On behalf of the Commission in Court Session.


PRESIDENT—Matters dealt with—


INDUSTRIAL RELATIONS COMMISSION.PARTIES COMMISSIONER OF POLICE,

APPLICANTv.CIVIL SERVICE ASSOCIATION OFWESTERN AUSTRALIAINCORPORATED, RESPONDENT

CORAM HIS HONOUR THE PRESIDENT P JSHARKEY

DELIVERED WEDNESDAY, 29 AUGUST 2001FILE NO/S PRES 12 OF 2001CITATION NO. 2001 WAIRC 03637_______________________________________________________________________________

Decision Application granted.AppearancesApplicant Mr R Bathurst (of Counsel), by leaveRespondent Ms M M In de Braekt, and with her,

Mr M Amati_______________________________________________________________________________

Reasons for Decision.THE PRESIDENT—

INTRODUCTION1 This is an application by the abovenamed applicant

pursuant to s.49(11) of the Industrial Relations Act 1979(as amended) (hereinafter referred to as “the Act”) for astay of operation of the decision of the Commission,constituted by the Public Service Arbitrator (hereinafterreferred to as “the Arbitrator”), made on 14 August 2001in application No P 6 of 2001 and deposited in the officeof the Registrar on the same date.

2 The order and declaration of the Commission was, formalparts omitted—

(a) That the Arbitrator has jurisdiction to deal withthe application.

(b) That the applicant’s application for interim or-ders be dismissed.

3 By this application, the applicant seeks a stay of that partof the decision of the Arbitrator, namely the declaration,that the Arbitrator has jurisdiction to hear and determineapplication No P 6 of 2001.

GROUNDS OF APPLICATION4 The grounds of the application were as follows—

“1. On 14 August 2001 Commissioner P. E. Scott,sitting as the Public Service Arbitrator in appli-cation P6 of 2001 (“Application”), decided,among other things, that the Western AustralianIndustrial Relations Commission had jurisdictionto inquire into and deal with the Application.

2. The Application essentially challenges the equityof a decision to remove an employee, Mr SteveBrown, from an acting position. Such decisionsare covered by the Public Sector Standard onTemporary Deployment (Acting).

3. On 17 August 2001 the applicant lodged an ap-peal to the Full Bench of the Commission againstthat part of Commissioner Scott’s decision thatthe Commission had jurisdiction to hear the Ap-plication (Appeal No 51 of 2001).

4. Commissioner P. E. Scott agreed to consider thequestion of the Commission’s jurisdiction to in-quire into and deal with the Application as apreliminary point, that is, before the substantivehearing.

5. The substantive hearing of P6 of 2001 is listed toproceed on 12 September 2001.

6. The Applicant seeks an order staying that part ofCommissioner Scott’s decision that the Commis-sion has jurisdiction to hear the Applicationpending the hearing and determination of theappeal to the Full Bench on the followinggrounds—

(a) Appeal No 51 of 2001 raises a serious is-sue to be tried of the jurisdiction of the WestAustralian Industrial Relations Commis-sion to inquire into and deal with matterscovered by the Public Sector Standards;and

(b) The balance of convenience favours thegranting of a stay.”

BACKGROUND5 The respondent to this application, The Civil Service

Association of Western Australia Incorporated (hereinafterreferred to as “the CSA”) made an application to theArbitrator pursuant to s.80E of the Act on behalf of MrSteven Brown whom, I assume, is a member of the CSA.The Arbitrator found, as a fact, that Mr Brown, whosesubstantive position in the employ of the applicant wasclassified as a Level 1, had acted since 1997 in a higherposition almost continuously, including three years from23 March 1998 to 30 March 2001 when he actedcontinuously in the position of Bike Education AreaManager, classified at Level 3.

6 There was a reorganisation in February 2001 whichresulted in the abolition of his position and the BikeEducation Area Manager being transferred elsewhere. MrBrown could no longer act in the higher position, and hisposition was abolished. Therefore, he reverted to hissubstantive Level 1.

7 There was a Public Sector Standard in Human ResourceManagement in place, of which Clause 8 related toTemporary Deployment or Acting (see GovernmentGazette, 2 June 1998, pages 3016-3019 (exhibit 1)).

8 The applicant’s case at first instance was that Mr Brown’sclaim of deprivation of the opportunity to act in a positionclassified substantially higher than his own, due to thealleged unfairness of his treatment by the applicant, wasoutside the jurisdiction of the Arbitrator to order“temporary deployment” (acting in a position) which is ahuman resource activity (sic) covered by Public SectorStandards in Human Resource Management, which is amatter within the purview of the Public Sector StandardsCommissioner.

9 The contention was that any matter, in respect of which aprocedure referred to in s.97(1)(a) of the Public SectorManagement Act 1994 (hereinafter referred to as “thePSM Act”) is or may be prescribed under that Act, isexcluded from the jurisdiction of the Arbitrator. S.97(1)(a)of the PSM Act reads as follows—

“(1) The functions of the Commissioner under thisPart are—

(a) to make recommendations to the Ministeron the making, amendment or repeal ofregulations prescribing procedures,whether by way of appeal, review, concili-ation, arbitration, mediation or otherwise,for employees and other persons to obtainrelief in respect of the breaching of publicsector standards;”

10 The Arbitrator went on to hold that there was jurisdictionin her to inquire into and deal with the matter, because amatter relating to the fairness and equity of the applicant’streatment of Mr Brown does not require the Commissionto deal with a matter, the subject of a procedure referredto in s.97(1)(a) of the PSM Act. (The Arbitrator was notreferred to, it would seem; nor did she refer to the decisionof the Full Bench in Managing Director of the SouthMetropolitan College of TAFE v CSA 80 WAIG 7 (FB).

11 The applicant appealed against that finding on thefollowing grounds—

“1. The Commissioner erred in law in finding thatthe Commission had jurisdiction to inquire into


and deal with this matter, the matter being one oftemporary deployment (acting), which was sub-ject to the Public Sector Standard on temporarydeployment (acting).

PARTICULARS1.1 Temporary deployment (acting) is a mat-

ter dealt with by a Public Sector Standard.Procedures for the breach of the PublicSector Standard relating to temporary de-ployment (acting) have been prescribed inaccordance with section 97(1)(a) of thePublic Sector Management Act 1994. Sec-tion 80E(7) of the Industrial Relations Act1979 provides that the Public Service Ar-bitrator does not have jurisdiction to inquireinto and deal with any matter in respect ofwhich a procedure referred to in section97(1)(a) of the Public Sector ManagementAct 1994 is, or may be, prescribed underthe Public Sector Management Act.

1.2 The effect of section 80E(7) of the Indus-trial Relations Act 1979 and section97(1)(a) of the Public Sector ManagementAct 1994 is that the Commission has nojurisdiction to deal with matters which aresubject to the Public Sector Standard ontemporary deployment (acting).”

PRINCIPLES12 The principles by which applications pursuant to s.49(11)

of the Act are determined are well settled in thisCommission. Amongst others, the reasons for decisionin AWU v BHP Iron Ore Ltd 81 WAIG 406 properlyexpresses them at pages 407-408—

“I reproduce hereunder the relevant extract from CSAv Director General, Department of Transport 80WAIG 2855 at 2856—

“These principles have been laid down in anumber of cases, including GawoolengDawang Inc v Lupton and Others 72 WAIG1310, Director General of the Ministry forCulture and the Arts v CSA and Others 79WAIG 670 and City of Geraldton v Cooling80 WAIG 1751.It is for the applicant to establish that the stayshould be granted. It is, of course, an under-lying principle that the successful party isentitled to the fruits of her/his/its order, awardor declaration.For the applicant to succeed, it must be estab-lished that there is a serious issue to be tried,that the balance of convenience favours theapplicant and that other factors consistent withthe application of s.26(1)(a), s.26(1)(b) and/or s.26(1)(c) of the Act, if they exist, requirethat the application be granted.If these ingredients exist, then exceptional cir-cumstances exist which warrant the grantingof the application as a matter of equity, goodconscience and the substantial merits of thecase. (I say that to further explain the princi-ples.)”

13 The need to prevent there being any more uncertaintythan is necessary, in industrial matters, is important, too(see Re Moore; Ex parte Pillar [1991] 65 ALJR 683 at685 (HC)).

SERIOUS ISSUE TO BE TRIED14 The crux of the appeal and, therefore, at the heart of the

question of whether there is a serious issue to be tried,lies in whether there is a strong appeal case to find thatthe Arbitrator had no jurisdiction to hear and determinethe application.

15 The Public Sector Standard on temporary deployment(acting) specifically requires decisions to be “equitableand [to] take into account the organisation’s requirementsand employee needs”. Accordingly, as Mr Bathurstsubmitted on behalf of the applicant, the fairness and

equity of the treatment of Mr Brown by the applicant inremoving him from his acting position is outside thejurisdiction of the Public Service Arbitrator because ofs.80E(7) of the Act. On the clear authority of ManagingDirector of the South Metropolitan College of TAFE vCSA (FB)(op cit), there is a very strong argument availableto the applicant to that effect.

16 For those reasons, the appellant has a strong case andthere is a serious issue to be tried.

BALANCE OF CONVENIENCE17 I did not admit the evidence of Mr David Robert Eacott

for the applicant. However, it is clearly not a matter ofconvenience where there is a strong case on a challengeto jurisdiction at first instance in the Full Bench for theappellant or the other party to be put to the time andexpense of a hearing until the appeal is resolved.

18 Such a consideration militates strongly against dismissingthis application and thereby enabling potentiallyincompetent proceedings to take place. Further, as theHigh Court said in Castlemaine Tooheys Ltd and Othersv State of South Australia 161 CLR 148 at 154-155, thebalance of convenience is affected by the degree oflikelihood of success on appeal. In this case, it clearly is,by the strong case of the appellant.

19 In this case, for those reasons, I am satisfied that thebalance of convenience lies with the applicant.

FINALLY20 I am satisfied that an appeal has been instituted, within

the meaning of s.49(11) of the Act, that the application istherefore competent and that the applicant, as a party atfirst instance, had sufficient interest to make thisapplication.

21 It has been established that there is a serious issue to betried, that the balance of convenience lies with theapplicant, for those reasons, and that there are exceptionalcircumstances justifying the making of the orders sought.

22 It follows that the interests of the CSA in staying theoperation of the declaration is outweighed by the interestsof the applicant. The equity, good conscience and thesubstantial merits of the case lie with a granting of theapplication for a stay, for all of those reasons.

23 For all of those reasons, I granted the application for astay and made orders accordingly.


INDUSTRIAL RELATIONS COMMISSION.PARTIES COMMISSIONER OF POLICE,

APPLICANTv.CIVIL SERVICE ASSOCIATION OFWESTERN AUSTRALIAINCORPORATED, RESPONDENT


DELIVERED FRIDAY, 24 AUGUST 2001FILE NO/S PRES 12 OF 2001CITATION NO. 2001 WAIRC 03639_______________________________________________________________________________

Decision Application grantedAppearancesApplicant Mr R Bathurst (of Counsel), by leaveRespondent Ms M M In de Braekt and with her Mr M

Amati_______________________________________________________________________________

Order.This matter having come on for hearing before me on the

24th day of August 2001, and having heard Mr R Bathurst (ofCounsel), by leave, on behalf of the applicant and Ms M M Inde Braekt and with her Mr M Amati, on behalf of the respond-ent, and I having reserved my decision on the matter, and


having determined that my reasons for decision will issue at afuture date, it is this day, the 24th day of August 2001, or-dered and declared, as follows—

(1) THAT the applicant has a sufficient interest as re-quired by s.49(11) of the Industrial Relations Act1979 (as amended) (hereinafter referred to as “theAct”) and was therefore entitled to apply for the or-ders which appear hereunder.

(2) THAT appeal No FBA 51 of 2001 has been insti-tuted within the meaning of s.49(11) of the Act.

(3) THAT the declaration and order made by the PublicService Arbitrator on the 14th day of August 2001in application No P6 of 2001 be and is hereby whollystayed pending the hearing and determination ofappeal No FBA 51 of 2001, or until further order.



INDUSTRIAL RELATIONS COMMISSION.PARTIES CLIFTON NOMINEES PTY LTD,

APPLICANTv.AUSTRALIAN LIQUOR,HOSPITALITY ANDMISCELLANEOUS WORKERSUNION, WESTERN AUSTRALIANBRANCH, RESPONDENT


DELIVERED FRIDAY, 8 JUNE 2001FILE NO/S PRES 9 OF 2001CITATION NO. 2001 WAIRC 02980_________________________________________________________________________

Decision Application adjourned.AppearancesApplicant Mr D Clarke, as agentRespondent Mr J Rosales-Castaneda (of Counsel), by

leave_________________________________________________________________________

Order.This matter having come on for hearing before me on the 8thday of June 2001, and having heard Mr D Clarke, as agent, onbehalf of the applicant and Mr J Rosales-Castaneda, (of Coun-sel), by leave, on behalf of the respondent, and Counsel forthe respondent having given an undertaking not to enforcethe order issued by the Commission on the 30th day of May2001 in application No CR 310 of 2000 for the period oftwenty-one days from the date of this order, and the partiesherein having consented to waive the requirements of s.35 ofthe Industrial Relations Act 1979 (as amended), it is this day,the 8th day of June 2001, ordered as follows—

(1) THAT the hearing and determination of applicationNo PRES 9 of 2001 be adjourned sine die.

(2) THAT there be liberty to either party to apply to relistthis application for hearing on giving the other partyand the Commission 24 hours notice in writing tohave the application relisted for hearing and deter-mination.






DELIVERED FRIDAY, 24 AUGUST 2001FILE NO/S PRES 9 OF 2001CITATION NO. 2001 WAIRC 03613_________________________________________________________________________

Decision Application granted by consentAppearancesApplicant Mr D Clarke, as agentRespondent Mr J Rosales-Castaneda (of Counsel), by

leave_________________________________________________________________________

Order.This matter having come on for further hearing before me onthe 24th day of August 2001, and having heard Mr D Clarke,as agent, on behalf of the applicant and Mr J Rosales-Castaneda(of Counsel), by leave, on behalf of the respondent, and theparties herein having consented to waive the requirements ofs.35 of the Industrial Relations Act 1979 (as amended) (here-inafter referred to as “the Act”), it is this day, the 24th day ofAugust 2001, ordered and declared, by consent, as follows—

(1) THAT the applicant has a sufficient interest as re-quired by s.49(11) of the Act and was thereforeentitled to apply for the orders which appear here-under.

(2) THAT appeal No FBA 29 of 2001 has been insti-tuted within the meaning of s.49(11) of the Act.

(3) THAT the order made by the Commission on the30th day of May 2001 in application No CR310 of2000 be and is hereby wholly stayed pending thehearing and determination of appeal No FBA 29 of2001, or until further order, subject to and condi-tional upon the applicant complying with the ordersand conditions hereinafter expressed.

(4) THAT the applicant herein shall, on or before the28th day of August 2001, pay the total of the amountof $8,200.00 ordered to be paid by the Commissionin its said order of the 30th day of May 2001 in ap-plication No CR310 of 2000 into a direct bankaccount with ING Bank at 111 St George’s Terrace,Perth.

(5) THAT all or any liability for taxes or charges of anykind which might become due and payable in re-spect of such account shall be discharged by theapplicant who shall indemnify the respondent againstany claim in respect of the same.

(6) THAT all administration expenses in respect of thesaid account shall be paid forthwith by the appli-cant.

(7) THAT in the event of any failure to comply with allor any of these conditions then there shall be libertyto apply on 48 hours notice to revoke this order orany part thereof, and/or for any other necessary or-ders or directions.

(8) THAT in the event of the appeal herein being dis-missed then the monies in such account, includingany interest earned by the same, shall be paid forth-with without any deduction to Ms Beryl Bowen, careof the respondent organisation.

(9) THAT in the event of the appeal herein being up-held then the monies in such account, including anyinterest earned by the same, shall be paid forthwithwithout any deduction to the applicant.


(10) THAT the applicant arranges forthwith that a weeklystatement of account in relation to the said be for-warded to the respondent organisation

(11) THAT the President may at any time upon applica-tion by any party hereto and without affecting thegenerality of his ability to give further directions—

(a) Fix further conditions.(b) Direct that the account be administered by a

person named by him.(c) Vary these orders.






DELIVERED WEDNESDAY, 29 AUGUST 2001FILE NO/S PRES 9 OF 2001CITATION NO. 2001 WAIRC 03651_______________________________________________________________________________

Decision Order of 24 August 2001 varied._______________________________________________________________________________

Order.This matter having come on for further hearing before me onthe 24th day of August 2001, and the Order having issued onthe 24th day of August 2001 by consent, and the parties hereinhaving consented, in writing, to a variation of the Order is-sued on the 24th day of August 2001, it is this day, the 29thday of August 2001, ordered that the Order issued in applica-tion No. PRES 9 of 2001 on the 24th August 2001 be variedby varying Order (4) thereof as follows—

By substituting for the words “into a direct bank accountwith ING Bank at 111 St George’s Terrace, Perth” in suchorder the words “into Cash Management AccountNo. 531939543 at the National Bank Branch at 39 TheCrescent, Midland in the State of Western Australia”.


AWARDS/AGREEMENTS—Variation of—

AGED AND DISABLED PERSONS HOSTELSAWARD, 1987.No. A6 of 1987.


INDUSTRIAL RELATIONS COMMISSION.PARTIES AUSTRALIAN LIQUOR,

HOSPITALITY ANDMISCELLANEOUS WORKERSUNION, WESTERN AUSTRALIANBRANCH, APPLICANTv.ANGLICAN HOMES FOR THE AGED(INCORPORATED) AND OTHERS,RESPONDENTS

CORAM COMMISSIONER P E SCOTTDELIVERED FRIDAY, 17 AUGUST 2001FILE NO APPLICATION 691 OF 2001CITATION NO. 2001 WAIRC 03563_________________________________________________________________________

Result Award varied_________________________________________________________________________

Order.HAVING heard Mr J Walker on behalf of the applicant andMs M Kuhne on behalf of the respondents and by consent,the Commission, pursuant to the powers conferred on it un-der the Industrial Relations Act, 1979, hereby orders—

THAT the Aged and Disabled Persons Hostels Award,1987 (No. A 6 of 1987) be varied in accordance with thefollowing Schedule and that such variation shall haveeffect from the beginning of the first pay period com-mencing on or after the 14th day of August 2001.

(Sgd.) P.E. SCOTT,[L.S.] Commissioner.

Schedule.1. Clause 15.—Annual Leave: Delete subclause (2) of this

clause and insert the following in lieu thereof—(2) Prior to commencing leave, each employee shall be

paid for that period of leave as follows—(a) At the wage the employee would have received

had he/she not proceeded on leave. In the caseof rostered employees that wage shall includethe shift work and weekend penalties thatemployee would have received had he/she notproceeded on leave.An employee on annual leave shall also bepaid any call allowance which the employeewould have received in accordance withClause 27.—Call Allowance had the employeenot been on leave during the relevant period.Where it is not possible to calculate the shiftand weekend penalties the employee wouldhave received, the employee shall be paid theaverage of such payments made each weekover the four weeks prior to taking the leave;or

(b) At the rate of wage shown in Clause 18.—Wages of this award for his/her class of workand in addition be paid a loading of 17.5 per-cent of that wage for two-thirds of any leavedue in each year and for the remaining one-third of the leave due in each year, be paidaccording to paragraph (a) of this subclause,whichever is greater.

(c) Provided that employees to whom subclause(5) of this clause applies may be paid a load-ing of 17.5 percent for five-sevenths of anyleave due in each year in lieu of the two-thirdsof any leave due in each year.

(d) Provided further that the 17.5 percent loadingprescribed by this subclause shall not applyto proportionate annual leave on termination.

2. Clause 27.—Call Allowance: Delete this clause and in-sert the following in lieu thereof—

(1) An employee who is required to be present at theworkplace for any period to be available for call shallbe—

(a) deemed to be on call; and(b) paid an on call allowance at the rate of $5.45

for each hour spent on call.(2) Time spent on call shall not be regarded as ordinary

hours or as time worked for any purpose whatso-ever.

(3) Payment of the on call allowance referred to insubclause (1) shall be payment for work undertaken


by the employee during any continuous period ofon call unless the work is in excess of either—

(a) one hour; or(b) two call outs.

(4) For the purpose of subclause (3) time spent by anemployee in attending to residents or securing thepremises of the employer shall be regarded as a callout.

(5) An employee shall not be required to undertake anyother duty of employment whilst on call.

(6) Subject to subclause (3) an employee called out towork shall be paid at overtime rates for the period ofthe call out with a minimum payment of 30 minutes.

(7) An on call period shall not exceed 12 hours unlessthe premises at which the employee is required toremain is the employee’s principal place of residence,in which case the employee may be on call for up to14 hours.

(8) An employee shall not be entitled to the on call al-lowance prescribed by this clause for any hour inrespect of which she or he is entitled to payment forordinary hours or overtime.

BUILDING MATERIALS MANUFACTURE (CSRLIMITED-WELSHPOOL WORKS) AWARD 1982.

No. A 10 of 1982.2001 WAIRC 03494


PARTIES AUSTRALIAN LIQUOR,HOSPITALITY ANDMISCELLANEOUS WORKERSUNION, WESTERN AUSTRALIANBRANCH, APPLICANTv.CSR LIMITED, RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED FRIDAY, 10 AUGUST 2001FILE NO. APPLICATION 668 OF 2000CITATION NO. 2001 WAIRC 03494____________________________________________________________________________Result Award varied____________________________________________________________________________

Order.HAVING heard Mr J. Ridley on behalf of the Applicant andMr W. Wild on behalf of the Respondent, and by consent, theCommission pursuant to the powers conferred on it under theIndustrial Relations Act, 1979, hereby orders—

THAT the Building Materials Manufacture (CSRLimited—Welshpool Works) Award, 1982 be varied inaccordance with the following Schedule and such varia-tion shall have effect on and from 10 August 2001.

(Sgd.) J.F. GREGOR,[L.S.] Commissioner.

Schedule.1. Clause 7.—Overtime: Delete subclause (9) from this

clause and insert the following in lieu thereof—(9) Meal Money—

Where an employee has to work before the usualstarting time or after the usual ceasing time for oneand one-half hours or more, in either case, he/sheshall be paid $6.68 for a meal. Any employee re-quired to work a further four hours’ overtime shallbe paid a further $6.68.

If an employee pursuant to notice has provided ameal or meals and is not required to work overtime,he/she shall be paid $6.68 for each meal provided.

2. Clause 9.—Wages: Delete this clause and insert the fol-lowing in lieu thereof—

9.—WAGES(1) (a) Employees (Total wage per Week)

Wage Group Total1 501.802 492.803 483.904 479.205 472.606 470.007 463.208 459.30

(b) Provided that an employee qualified SeniorHand Gyprock or Warehouse appointed asShift Boss shall be paid an all purpose allow-ance of $102.48 per week.

(c) Provided further that a Shift Boss may appointon a day to day basis and subject to work re-quirements, a Deputy Shift Boss who shall bepaid a flat allowance of $6.21 per shift.

(2) For the purposes of subclause (1) of this clause, eachgroup shall be comprised of the following classifi-cations—

Wage Bradford Gyprock FactoryGroup Insulation

Factory1 Senior Line Operator Senior Hand,

Warehouse; or Senior Hand, Gyprock

2 Senior Hand(Cornice Plant)

3 Pot Operator Plaster Mill Operator4 Forming Area

Operator5 Shift Tester

Relief Pot Operator(controls input materials)Senior ConveyorAttendant

6 Cornice PlantOperator JointC e m e n t s / S p e c i a lPlaster Mixer

7 Forklift Driver Grader(Forklift Duties)Unloader and Grader(Testing Duties)

8 Conveyor Attendant Product HandlerProduct Handler Process WorkerProcess Worker Bagger

(3) Junior Employees—Junior employees shall be paid the prescribed per-centage of the adult wage per week for the class ofwork on which they are engaged.

%Under 18 years of age 8018 years of age and over 100

(4) Casual Employment—A casual employee is one engaged and paid as such.A casual employee for working ordinary time shallbe paid per hour 1/38th of the weekly rate prescribedby this award for the work performed, plus 20 percent.

(5) First Aid Allowance—An employee qualified to act as a first aid attendantand appointed to act as a first aid attendant in asso-ciation with other work under this award shall bepaid an allowance of $12.21 per week.


(6) Extra Rates—(a) Employees who are required to clean the forming

machine drain and pit shall be paid a flat allowanceof $3.00 for each day when this work needs to beperformed.

(b) In addition to the rates set out in subclauses (1) and(2) of this clause any Products Handler who is ap-pointed a leading hand shall receive a weeklyallowance as follows—

not more than 10 employees $23.06more than 10 employees $34.45

(7) The rates of pay in this award include arbitratedsafety net adjustments available since December1993, under the Arbitrated Safety Net AdjustmentPrinciple.These arbitrated safety net adjustments may be off-set against any equivalent amount in the rate of payreceived by employees since 1 November 1991 abovethe rate prescribed in the Award, except where suchabsorption is contrary to the terms of an industrialagreement.Increases in rates of pay otherwise made under theState Wage Case Principles, excepting those result-ing from enterprise agreements, are not to be usedto offset arbitrated safety net adjustments.

(8) Deleted(9) Deleted

3. Clause 16.—General Conditions: Delete subclause (1)paragraph (g) of this clause and insert the following in lieuthereof—

(g) An employee who is required to launder his workclothing in accordance with this clause shall be paidan allowance of $3.25 per week.

WUNDOWIE FOUNDRY AWARD 1986.No. A 8 of 1986.

2001 WAIRC 03580


PARTIES COMMUNICATIONS, ELECTRICAL,ELECTRONIC, ENERGY,INFORMATION, POSTAL,PLUMBING, AND ALLIEDWORKERS UNION OF AUSTRALIA,ENGIN & ELECT DIV, WA BRANCH,APPLICANTv.WUNDOWIE FOUNDRY PTY LTD,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED MONDAY, 20 AUGUST 2001FILE NO. APPLICATION 1321 OF 1999CITATION NO. 2001 WAIRC 03580____________________________________________________________________________

Result Award varied____________________________________________________________________________

Order.HAVING heard the matter ex parte and by consent, theCommission pursuant to the powers conferred on it under theIndustrial Relations Act, 1979, hereby orders—

THAT the Wundowie Foundry Award 1986 be variedin accordance with the following Schedule and that suchvariation shall have effect from the beginning of the firstpay period commencing on or after 17 August 2001.


Schedule.1. Clause 2.—Arrangement: Delete this clause and insert

the following in lieu—1. Title2. Arrangement3. Scope4. Term5. Definitions6. Contract of Service7. Higher Duties8. Under-rate Employees9. Apprentices

10. Hours of Duty11. Overtime12. Shift Work13. Special Rates and Provisions14. Time and Wages Record15. Annual Leave16. Public Holidays17. Sick Leave18. Long Service Leave19. Shop Stewards20. Notice Boards21. Right of Entry22. Deleted23. Wages24. Deleted25. Additional Payments26. Payment of Wages27. Board of Reference28. Maternity Leave29. Training30. Dispute and Grievance Settlement ProcedureAppendix—Resolution of Disputes RequirementsAppendix One—Memorandum of UnderstandingAppendix Two—New Classification Structure andDefinitionsSchedule A—Named Parties to the AwardSchedule B—DeletedAppendix—S.49B—Inspection Of Records Require-ments

2. Clause 2A.—State Wage Principles—June 1991: Deletethis clause.

3. Clause 13.—Special Rates and Provisions—A. Delete subclause (1) of this clause and insert in lieu

the following—(1) Patternmakers shall be paid a weekly tool al-

lowance of $2.14 and apprenticepatternmakers in the third, fourth and fifthyear, $1.17. Provided that this allowance shallnot be paid when an employee is absent onannual leave, sick leave or long service leave.

B. Delete subclause (3) of this clause and insert in lieuthe following—

(3) In addition to subclauses (1), (2), (4) and (5)an allowance of 23 cents for each hour workedshall be paid to employees to compensate forthe disabilities associated with the industry.

C. Delete subclause (4) of this clause and insert in lieuthe following—

(4) Hot Work: An employee shall be paid an al-lowance of 33 cents per hour when he/sheworks in the shade in any place where the tem-perature is raised by artificial means tobetween 46.2 and 54.4 degrees celsius.

4. Clause 23.—Wages—A. Delete subclause (1) of this clause and insert in lieu

the following—(1) (a) An employee other than an apprentice shall

be paid the rate per week assigned to his/her class of work.


Classifi- Group Base Supple- Arbitrated Totalcation Rate mentary Safety Rate

Payment NetAdjust-ments

$ $ $ $

C9 B 380.10 58.00 90.00 528.10

C10 D 365.20 52.00 90.00 507.20C11 E 345.70 39.80 88.00 473.50

C12 H 327.20 36.60 88.00 451.80

C13 L 311.70 30.30 88.00 430.00

C14 N 291.60 33.80 88.00 413.40(b) The rates of pay in this award include ar-

bitrated safety net adjustments availablesince December 1993, under the ArbitratedSafety Net Adjustment Principle.These Arbitrated Safety Net Adjustmentsmay be offset against any equivalentamount in the rate of pay received by em-ployees since 1 November 1991 above therate prescribed in the Award, except wheresuch absorption is contrary to the terms ofan industrial agreement.Increases in rates of pay otherwise madeunder the State Wage Case Principles, ex-cepting those resulting from enterpriseagreements, are not to be used to offset Ar-bitrated Safety Net Adjustments.

(c) Any tradesman moulder employed in afoundry where no other jobbing moulderis employed shall be paid at the rate pre-scribed for leading hands in charge of notless than three and not more than ten otheremployees.

B. Delete subclause (2) of this clause and insert in lieuthe following—

(2) Leading Hand Allowances—An employee placed in charge of three or moreother employees, or otherwise classified bythe employer as a leading hand, shall be paidthe additional margin set out hereunder—

$(a) If placed in charge of not less

than three and not more thanten other employees 18.00

(b) If placed in charge of morethan ten and not more thantwenty other employees 27.60

(c) If placed in charge of morethan twenty other employees 35.70

C. Delete subclause (3) of this clause and insert in lieuthe following—

(3) Tool Allowance—(a) Where the employer does not provide

a tradesperson or an apprentice withthe tools ordinarily required by thattradesperson or apprentice in the per-formance of his/her work as atradesperson or as an apprentice theemployer shall pay a tool allowanceof—

(i) $10.00 per week to suchtradesperson, or

(ii) In the case of an apprentice apercentage of $10.00 being thepercentage which appearsagainst his/her year of appren-ticeship in subclause (4) of thisclause, for the purpose of suchtradesperson or apprentice sup-plying and maintaining toolsordinarily required in the per-formance of his/her work as atradesperson or apprentice.

(b) Any tool allowance paid pursuant toparagraph (a) of this subclause shall beincluded in, and form part of, the ordi-nary weekly wage prescribed in thisclause.

(c) An employer shall provide for the useof tradespersons or apprentices all nec-essary power tools, special purposetools and precision measuring instru-ments.

(d) A tradesperson or apprentice shall re-place or pay for any tools supplied byhis/her employer if lost through his/hernegligence.

(e) Any employee in receipt of a tool al-lowance in accordance with this clauseshall maintain an adequate tool kit lo-cated at the place of work to enablework to be carried out safely and effi-ciently. Such tool kit shall, at all times,contain the tools agreed by the Com-pany and the union as the minimumfor the respective occupation.

5. Clause 24.—Supplementary Payments: Delete this clauseand insert in lieu the following new title—

24.—DELETED

6. Clause 25.—Additional Payments: Delete paragraph (a)of subclause (1) of this clause and insert in lieu the follow-ing—

(1) (a) In addition to the rates payable under the provi-sions of Clause 23.—Wages of this award, anemployee, other than an apprentice, employed inthe classifications listed shall be paid the addi-tional payment prescribed—Classification Group Additional

PaymentsWeekly

$C9 B C 5.70

B 14.70A 23.50

C10 D C 5.50B 14.00A 22.40

C11 E C 5.10B 12.90A 20.70

C12 H C 4.80B 12.30A 19.60

C13 L C 4.60B 11.60A 18.50

C14 N A 4.30

7. Appendix 2.—New Classification Structure and Defini-tions: Delete this Appendix and insert in lieu the following—

Wage Classification Title Minimum TrainingGroup Requirement

C 5 Advanced Engineering Advanced CertificateTradesperson—Level II or Formal Equivalent

C 6 Advanced Engineering 2nd Year of AdvancedTradesperson—Level I Certificate

C 7 Engineering Tradesperson Post Trade CertificateSpecial Class or Formal Equivalent

Engineering/ProductionEmployee—Level VIII

C 8 Engineering Tradesperson Completion of 66% ofLevel III qualification for C 7

Engineering/ProductionEmployee—Level VII

C 9 Engineering Tradesperson Completion of 33% ofLevel II qualification for C 7Engineering/ProductionEmployee—Level VI


Wage Classification Title Minimum TrainingGroup Requirement

C10 Engineering Tradesperson Trade Certificate orLevel I Engineering/

ProductionEngineering/Production Certificate IIIEmployee—Level V

C11 Engineering/Production Engineering/Production

Employee Level IV Certificate II

C12 Engineering/Production Engineering/Employee Level III Production

Certificate IC13 Engineering/Production In-house Training

Employee Level II

C14 Engineering/Production Up to 38 hoursEmployee Level I induction training

The relativities prescribed in this Appendix for classifica-tions C14-C7 apply to the base rate and supplementarypayments only and are established by Minimum Rates Ad-justment. The total rate per week for each classificationincludes Safety Net Adjustments available since December1993, under the Arbitrated Safety net Adjustment Principle.

Group C14(Relativity to C10—78%)ENGINEERING/PRODUCTION EMPLOYEE—LEVEL IDefinition—

An employee who has had no experience or training inthe processes of engineered products.An employee at this level performs simple tasks and isresponsible for his/her own safe work practices and qualityof work, is subject to close supervision and works indi-vidually or as a team.

Standard Training Requirement—Up to 38 hours of enterprise induction training.

Assessment—Employer.

Group C13(Relativity to C10—82%)ENGINEERING/PRODUCTION EMPLOYEE—LEVEL IIDefinition—

An employee who has completed basic in house trainingin the preparation and handling of materials or the opera-tion of simple machinery.An employee at this level can demonstrate safe workingpractices and repeated simple tasks, work subject to rou-tine supervision either individually or as a team, exercisingdiscretion within the level of training.

Standard Training Requirement—Up to 152 hours of enterprise training.

Assessment—Employer.

Group C12(Relativity to C10—87.40%)ENGINEERING/PRODUCTION EMPLOYEE—LEVELIIIDefinition—

An employee who has completed an applicable Produc-tion/Engineering Certificate I so as to enable thatemployee to perform work within the scope of training.An employee at this level shall demonstrate competencybeyond Level II and to the level of training.

STANDARD PRODUCTION/ENGINEERING CERTIFI-CATE I—

* In house induction and awareness* Four (4) National Broadbase Modules* Four (4) elected modules

Assessment—Employer/Independent.

Evaluation—Employer shall evaluate the applicability of modules ac-quired.

Group C11(Relativity to C10—92.40%)ENGINEERING/PRODUCTION EMPLOYEE—LEVELIVDefinition—

An employee who has completed an applicable Produc-tion/Engineering Certificate II so as to enable thatemployee to perform work within the scope of training.An employee at this level shall demonstrate competencybeyond Level III and to the level of training.

STANDARD PRODUCTION/ENGINEERING CERTIFI-CATE II—

* In house induction and awareness* Seven (7) National Broadbase Modules* Nine (9) elected modules



Group C10(Relativity to C10—100%)ENGINEERING/PRODUCTION EMPLOYEE—LEVEL VDefinition—

An employee who has completed an applicable Produc-tion/Engineering Certificate III so as to enable thatemployee to perform work within the scope of training.An employee at this level shall demonstrate competencybeyond Level IV and to the level of training.

STANDARD PRODUCTION/ENGINEERING CERTIFI-CATE III—

* In house induction and awareness* Seven (7) National Broadbase Modules* Seventeen (17) elected modules



ENGINEERING TRADES PERSON—LEVEL IDefinition—

An employee who has completed a Trade Certificate andis able to demonstrate the skills required to produce afinished product given the plan, materials and equipment.

STANDARD TRADE CERTIFICATE LEVEL I—* In house induction and awareness* Seven (7) Broadbase Modules* Seventeen (17) specific skill modules


Group C 9(Relativity to C10—105%)ENGINEERING TRADESPERSON—LEVEL IIENGINEERING/PRODUCTION EMPLOYEE—LEVELVIDefinition—

An employee who, in addition to meeting the C10 Grouprequirements has completed 1/3 of an applicable PostTrade Certificate Course.An employee at this level shall demonstrate competencybeyond that of an Engineering Tradesperson Level I oran Engineering/Production Employee Level V and to thelevel of training.

Standards—* In house induction and awareness


* Seven (7) Broadbase Modules* Trade Certificate Level II —Seventeen (17) specific

skill modules plus three (3) elected modules.* Engineering/Production Employee Level VI—

Twenty (20) elected modules.Assessment—

Employer/Independent.Evaluation—

Employer shall evaluate the applicability of the electedmodules acquired.

Group C 8(Relativity to C10—110%)ENGINEERING TRADESPERSON—LEVEL IIIENGINEERING/PRODUCTION EMPLOYEE—LEVELVIIDefinition—

An employee who, in addition to meeting the C10 Grouprequirements has completed 2/3 of an applicable PostTrade Certificate Course.An employee at this level shall demonstrate competencybeyond that of an Engineering Tradesperson Level II oran Engineering/Production Employee Level VI and to thelevel of training.

Standards—* In house induction and awareness* Seven (7) Broadbase Modules* Trade Certificate Level III —Seventeen (17) specific

skill modules plus six (6) elected modules.* Engineering/Production Technician Level VII—

Twenty three (23) elected modules.Assessment—



Group C 7(Relativity to C10—115%)ENGINEERING TRADESPERSON—SPECIAL CLASSENGINEERING/PRODUCTION EMPLOYEE—LEVELVIIIDefinition—

An employee who, in addition to meeting the C10 Grouprequirements has successfully completed an applicablePost Trade Certificate Course.An employee at this level shall demonstrate competencybeyond that of an Engineering Tradesperson Level III oran Engineering/Production Employee Level VII and tothe level of training.

Standards—* In house induction and awareness* Seven (7) Broadbase Modules* Trade Certificate—Special Class—Seventeen (17)

specific skill modules plus nine (9) elected modules.* Engineering/Production Employee Level VIII—

Twenty six (26) elected modules.Assessment—



8. Schedule A—Applicant: Delete this Schedule and insertin lieu the following—

SCHEDULE A—NAMED PARTIES TO THE AWARDUnion PartyThe Communications, Electrical, Electronic, Energy, In-formation, Postal, Plumbing and Allied Workers Unionof Australia, Engineering and Electrical Division, WABranch, 401-4-3 Oxford Street, MT HAWTHORN WA6016

Employer PartyWundowie Foundry Pty Ltd, Hawke Avenue,WUNDOWIE WA 6560

9. Schedule B—Respondent: Delete this Schedule.

AWARDS/AGREEMENTS—Application for variation of—

No variation resulting—BUILDING TRADES (CONSTRUCTION)

AWARD 1987.No. R 14 of 1978.


INDUSTRIAL RELATIONS COMMISSION.PARTIES THE WESTERN AUSTRALIAN

BUILDERS’ LABOURERS, PAINTERS& PLASTERERS UNION OFWORKERS, CONSTRUCTION,MINING, ENERGY, TIMBERYARDS,SAWMILLS AND WOODWORKERSUNION OF AUSTRALIA—WESTERNAUSTRALIAN BRANCH,APPLICANTSv.ADSIGNS PTY LTD, APOLLOCONSTRUCTION, ASSOCIATEDSHOPFITTERS PTY LTD,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED MONDAY, 10 SEPTEMBER 2001FILE NO. APPLA 1453 OF 2000CITATION NO. 2001 WAIRC 03728____________________________________________________________________________

Result Discontinued____________________________________________________________________________

Order.WHEREAS on 13 November 2000 the Western AustralianBuilders’ Labourers, Painters & Plasterers Union of Workersand the Construction, Mining, Energy, Timberyards, Sawmillsand Woodworkers Union of Australia—Western AustralianBranch applied to the Commission for an order pursuant tothe Industrial Relations Act, 1979; and

WHEREAS on 13 November 2001 the Commission issuedan order dividing Application 1453 of 2000 into Application1453A of 2000 for the purpose of varying the award in rela-tion to Appendix D Northwest Shelf Project; and

WHEREAS on 5 September 2001 the Commission ex partedecided to discontinue the proceedings.

NOW THEREFORE pursuant to the powers vested in it bythe Industrial Relations Act, 1979, the Commission, herebyorders—

THAT the application be, and is hereby, discontin-ued.



AWARDS/AGREEMENTS—Interpretation of—

ANIMAL WELFARE INDUSTRY AWARD.No. 8 of 1968.


INDUSTRIAL RELATIONS COMMISSION.PARTIES THE AUSTRALIAN LIQUOR,

HOSPITALITY ANDMISCELLANEOUS WORKERSUNION, MISCELLANEOUSWORKERS DIVISION, WESTERNAUSTRALIAN BRANCH,APPLICANTv.COHUNA KOALA PARK,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED FRIDAY, 17 AUGUST 2001FILE NO APPLICATION 178 OF 1999CITATION NO. 2001 WAIRC 03570_______________________________________________________________________________

Result Application pursuant to s.46 discontinuedRepresentationApplicant Mr J. Rosales-CastanedaRespondent Mr M. Borlase (as agent)_______________________________________________________________________________

Order.WHEREAS an application was lodged in the Commissionpursuant to section 46 of the Industrial Relations Act 1979;

AND WHEREAS a conference between the parties wasconvened;

AND WHEREAS the Commission issued Reasons for De-cision in relation to a preliminary issue between the parties on25 November 1999;

AND WHEREAS the applicant subsequently filed a Noticeof Discontinuance in the Commission;

AND HAVING HEARD Mr J. Rosales-Casteneda on be-half of the applicant and Mr M. Borlase (as agent) on behalfof the respondent;

NOW THEREFORE, I the undersigned, pursuant to thepowers conferred on me under the Industrial Relations Act1979, hereby order—

THAT the application be discontinued.(Sgd) A.R. BEECH,


AGREEMENTS—Industrial—Retirements from—

IN THE WESTERN AUSTRALIANINDUSTRIALRELATIONS COMMISSION

No. 1468 of 2001IN THE MATTER of the Industrial Relations Act 1979

andIN THE MATTER of the filing in the Office of the Registrar

of a Notice of Retirement from Industrial Agreement inaccordance with section 41(7) of the said Act

Amec Services Pty Ltd will cease to be a party to the AmecServices Pty Ltd Alcoa Projects Enterprise Bargaining Agree-ment 2000 No AG 18 of 2001 on and from the 9th day ofSeptember 2001.

Dated at Perth this 9th day of August 2001.J. A. SPURLING,

Registrar.

IN THE WESTERN AUSTRALIANINDUSTRIAL RELATIONS COMMISSION.

Nos 1480, 1481, 1482 and 1483 of 2001IN THE MATTER of the Industrial Relations Act 1979

andIN THE MATTER of the filing in the Office of the Registrar

of Notices of Retirement from Industrial Agreements inaccordance with section 41(7) of the said Act

BHP Iron Ore Pty Ltd will retire from and cease to be a partyto the—

• BHP Iron Ore Pty Ltd Driver Only Operation Agree-ment 1999 No AG 67 of 1999

• BHP Iron Ore Enterprise Bargaining Agreement1997 No AG 333 of 1997

• BHP Iron Ore Enterprise Bargaining Agreement NoC 314 of 1993

• BHP Iron Ore (Goldsworthy) Pty Ltd EnterpriseBargaining Agreement No C 228 of 1994

• BHP Iron Ore Pty Ltd, BHP Iron Ore (Goldsworthy)Pty Ltd, Enterprise Bargaining Agreement II No C339 of 1995

at the expiration of 30 days from the date of the notices, or onthe date on which an award comes into effect pursuant to thedecision of the Commission in Court Session in ApplicationNo A2 of 2001, whichever is the later.

Dated at Perth this 14th day of August 2001.J. A. SPURLING,

Registrar.

BUNNINGS FOREST PRODUCTS PTY LTD(ENTERPRISE BARGAINING) AGREEMENT 1996.

No. 311 of 1996.IN THE WESTERN AUSTRALIAN

INDUSTRIAL RELATIONS COMMISSION.No. 1094 of 2001

IN THE MATTER of the Industrial Relations Act 1979and

IN THE MATTER of the filing in the Office of theRegistrar of a Notice of Retirement from Industrial

Agreement in accordance with section 41(7) ofthe said Act

SOTICO Pty Ltd (formerly Bunnings Forest Products Pty Ltd),100 Pilbara Street, Welshpool WA 6106 will cease to be aparty to the Bunnings Forest Products Pty Ltd (EnterpriseBargaining) Agreement 1996 No 311 of 1996.

(Sgd.) J.A. SPURLING,Registrar.

WESFARMERS COAL LIMITED (COLLIERIESSTAFF ASSOCIATION) AGREEMENT 1999-2001.

No. 6 of 1999.


No. 1593 of 2001

IN THE MATTER of the Industrial Relations Act 1979

and

IN THE MATTER of the filing in the Office of theRegistrar of a Notice of Retirement fromIndustrial Agreement in accordance with

section 41(7) of the said ActWesfarmers Premier Coal Limited, Premier Road, Collie WA6225 will cease to be a party to the Wesfarmers Coal Limited


(Collieries Staff Association) Agreement 1999-2001 No. 6 of1999, on and from the 4th day of October 2001.

DATED at Perth this 26th day of September 2001.(Sgd.) J.A. SPURLING,

Registrar.

NOTICES—Award/Agreement matters—


Application No. 1568 of 2001

APPLICATION FOR VARIATION OF AWARDENTITLED “DAMPIER SALT AWARD 1990”

NOTICE is given that an application has been made to theCommission by Dampier Salt Ltd under the IndustrialRelations Act 1979 for a variation of the above Award.

The purpose of the application is stated to be—1. To vary the area and scope of the award to extend

coverage to those employees working at the DampierSalt, Port Hedland Operation whom fall into the clas-sifications outlined in Clause 33 of the award.

2. To vary the following clauses/schedules of theaward—

(i) Clause 20—Union Training,(ii) Clause 26—Public Holidays,

(iii) Clause 28—Annual Leave Travel Assistance,(iv) Schedule II—Long Service Leave.

As far as relevant, those parts of the proposed variation thatrelate to area of operation or scope are published hereunder—

4.—AREA AND SCOPE(1) This Award shall apply to employees employed in

or in connection with the production (by solar proc-ess) brine handling, harvesting, processing, haulingand shipping (including work carried out on the em-ployer owned wharf facilities) of salt and incidentalwork thereto, and in any classification mentioned inthis Award in the area occupied and operated uponby Dampier Salt Limited, and;

A copy of the proposed variation may be inspected at myoffice at the AXA Centre, 111 St George’s Terrace, Perth.

(Sgd.) J.A. SPURLING,Registrar.

PUBLIC SERVICEARBITRATOR—

Matters Dealt With—Editor’s Note: Reasons for Decision published in Vol. 81,

Part 2, sub-part 4 at page 24392001 WAIRC 03521

FAIRNESS AND EQUITY OF TREATMENT OF MRSTEVE BROWN


PARTIES THE CIVIL SERVICE ASSOCIATIONOF WESTERN AUSTRALIAINCORPORATED, APPLICANTv.COMMISSIONER OF POLICE,RESPONDENT

CORAM COMMISSIONER P E SCOTTPUBLIC SERVICE ARBITRATOR

DELIVERED TUESDAY, 14 AUGUST 2001FILE NO/S P 6 OF 2001CITATION NO. 2001 WAIRC 03521_______________________________________________________________________________

Result Jurisdiction found and application forinterim orders dismissed

_______________________________________________________________________________

Declaration and Order.HAVING heard the applicant and the respondent, the Com-mission, pursuant to the powers conferred on it under theIndustrial Relations Act 1979, hereby—

DECLARES—THAT the Public Service Arbitrator has jurisdictionto deal with application.

ORDERS—THAT the applicant’s application for interim ordersbe and is here by dismissed.

(Sgd.) P.E. SCOTT,[L.S.] Commissioner,

Public Service Arbitrator.


INDUSTRIAL RELATIONS COMMISSION.PARTIES CIVIL SERVICE ASSOCIATION OF

WESTERN AUSTRALIAINCORPORATED, APPLICANTv.DIRECTOR GENERAL,DEPARTMENT OF JUSTICE,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED THURSDAY, 6 SEPTEMBER 2001FILE NO P 2 OF 2001CITATION NO. 2001 WAIRC 03685_______________________________________________________________________________

Result Application for Discovery granted in part.RepresentationApplicant Ms M. in de Braekt & Mr G. WauhopRespondent Ms J. Sheridan_______________________________________________________________________________

Reasons for Decision.1 The applicant has asked for an Order for Discovery in

this matter. The respondent has agreed to provide somedocuments but not others. The Commission has requiredthe parties to narrow the issues such that by the time thismatter was heard in Chambers by the Commission therespondent had already provided to the applicant copiesof many of the documents which would otherwise havebeen discovered. The remaining matters which fall fordecision were set out in the letter from the Commissionto the parties of 19 July 2001.

2 In relation to the applicant’s request for an Order to issueregarding the provision of documents “relating to theappointment of Ms Bowles including but not limited tothe selection report” the Commission believes that suchan Order should be made as it relates to the criteria forthe position. The Commission understands that the groundset out in Schedule A to the substantive application refersto Ms Bowles’ knowledge of and cultural links to thelocal aboriginal community in Broome as a centralrequirement in her recruitment and that her recruitmentwas specifically local in nature given her ties to the region,as being an issue likely to be necessary for fairly disposingof this case.


3 The applicant sought an Order for the provision ofinformation “on precisely how many forced transfers ofpublic servants had occurred within the Ministry withinthe last 3 years, a very brief description of the reasons foreach forced transfer, details of the relevant work locationsand position titled of officers concerned”. TheCommission decided that it would not make an Order asrequested. The Commission considers the informationsought to be too broad and not necessary for fairlydisposing of the case. The Commission also notes that inpart the request is as much for particulars as it is for thediscovery of documents. The applicant subsequentlyamended that claim, however, I do not consider theamendment to make the Order sought necessary for fairlydisposing of the case. In this regard, the Commission hastaken the opportunity to re-examine the grounds andparticulars in support of the substantive Notice ofApplication in the Commission. While I appreciate thatthe applicant maintains as a ground in support of thesubstantive application that it regards the respondent’sdecision to transfer Ms Bowles as arbitrary, I do not seethat as being a central part of the assessment by theCommission which will be necessary in order to fairlydispose of the case.

4 The applicant seeks an Order for the provision of “anydocuments containing details about the creation, fillingor role in general of prison support officers in the WAprison system”. The breadth of the request is apparentfrom the subsequent correspondence from the applicantwhich states that the Order sought would includedocuments prepared by the Ministry in relation/responseto queries investigations and or reports of theOmbudsman, Public Sector Standards Commissioner,United Nations’ Committees, Coronial Inquests(submissions to and findings of), Report of the RoyalCommission into Aboriginal Deaths in Custody andParliamentary questions which mention the role,responsibilities, creation and/or implementation of prisonsupport officers in the WA prison system. TheCommission refuses to make an Order of that breadth forthe reason that it is not considered necessary for fairlydisposing of the case before it. While there may be a caseable to be made for the provision of such documents asrelate particularly to the position of prison support officerat Broome and Hakea only, an Order of that breadth doesnot appear to be warranted.

5 Finally, the applicant presses for an Order for the provisionof “any reports, notes and any other documentationproduced or considered in relation to Ms Bowles’transfer”. I appreciate the preparedness of the respondentto provide these documents and that most, if not all, havenow been copied and produced to the applicant, with acopy to the Commission. In my view all that remains isfor the Commission to require the respondent to verifyby affidavit that all of the reports, notes and any otherdocumentation produced or considered in relation to MsBowles’ transfer have now been provided.

6 The matter is determined accordingly and a Minute ofProposed Order now issues.


INDUSTRIAL RELATIONS COMMISSION.PARTIES CIVIL SERVICE ASSOCIATION OF

WESTERN AUSTRALIAINCORPORATED, APPLICANTv.DIRECTOR GENERAL,DEPARTMENT OF JUSTICE,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED FRIDAY, 7 SEPTEMBER 2001FILE NO P 2 OF 2001CITATION NO. 2001 WAIRC 03711

_______________________________________________________________________________

Result Application for Discovery granted in part.RepresentationApplicant Ms M. in de Braekt & Mr G. WauhopRespondent Ms J. Sheridan_______________________________________________________________________________

Order.WHEREAS an application was lodged in the Commissionpursuant to s.27(1)(o) of the Industrial Relations Act, 1979;

AND WHEREAS the parties were heard in chambers on 4September 2001;

AND HAVING HEARD Ms M. in de Braekt on behalf ofthe applicant and Ms J. Sheridan on behalf of the respondent;


THAT within seven (7) days the respondent provide tothe applicant—

(1) copies of any documents in its possession, cus-tody or power c oncerning the appointment ofMs Bowles including those parts of the selectionreport which address the criteria of the position.

(2) Copies of any reports, notes and any other docu-mentation produced or considered in relation tothe transfer of Ms Bowles and confirm by affida-vit that all such documents have been provided.

(Sgd.) A.R. BEECH,[L.S.] Commissioner.

2001 WAIRC 03510DISPUTE RE: GROUPWORKERS’ COMMUTED SHIFT

ALLOWANCE


PARTIES THE CIVIL SERVICE ASSOCIATIONOF WESTERN AUSTRALIA(INCORPORATED), APPLICANTv.DIRECTOR GENERAL, MINISTRYOF JUSTICE, RESPONDENT


DELIVERED MONDAY, 13 AUGUST 2001FILE NO/S P 9 OF 2001CITATION NO. 2001 WAIRC 03510_______________________________________________________________________________

Result Recommendation issued_______________________________________________________________________________

Recommendation.WHEREAS this is an application pursuant to Section 80E ofthe Industrial Relations Act 1979; and

WHEREAS on the 10th day of August 2001 the Commis-sion convened a conference in relation to the matter; and

WHEREAS at the conclusion of the conference theCommission issued a recommendation;

NOW THEREFORE, the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act 1979,hereby recommends—

1. THAT subject to Recommendations 2, 3 and 4 themeeting of the Applicant’s members employed atBanksia Hill and Rangeview on the 15th day ofAugust 2001 take place off site at Hakea Prison StaffClub between 1.30pm and 2.30pm.

2. THAT the meeting at Hakea Prison Staff Club takeplace on the basis that future paid meetings of theApplicant’s members are held at the work place andnot off site.


3. THAT the Applicant’s members whose normal placeof work is Banksia Hill are required to return to thework place by no later than 2.45pm on the 15th dayof August 2001 and that those members whose nor-mal place of work is Rangeview are required to returnto the work place by no later than 3.00pm on the15th day of August 2001.

4. THAT the Applicant provide to the Respondent’ssuperintendents the telephone numbers of contactpersons who will be in attendance at the meeting.

(Sgd.) P.E. SCOTT,[L.S.] Commissioner,



INDUSTRIAL RELATIONS COMMISSION.PARTIES THE CIVIL SERVICE ASSOCIATION

OF WESTERN AUSTRALIA(INCORPORATED), APPLICANTv.DIRECTOR GENERAL, MINISTRYOF JUSTICE, RESPONDENT


DELIVERED FRIDAY, 7 SEPTEMBER 2001FILE NO P 9 OF 2001CITATION NO. 2001 WAIRC 03710__________________________________________________________________________

Result Recommendation issued__________________________________________________________________________

Recommendation.WHEREAS this is an application pursuant to Section 80 E ofthe Industrial Relations Act 1979; and

WHEREAS on the 7th day of September 2001 the Commis-sion convened a conference for the purpose of the partiesreporting back on the matter; and

WHEREAS at the conclusion of that conference the Com-mission issued a recommendation;

NOW THEREFORE, the Commission, pursuant to the pow-ers conferred on it under the Industrial Relations Act 1979,hereby recommends—

1. THAT the parties’ representatives, who have theknowledge and ability to examine the calculationsof the commuted shift allowance, meet with a viewto exploring and resolving the differences betweenthe parties regarding the calculation by no later than5.00 pm on the 12th day of September 2001.

2. That a report back conference be convened on the13th day of September 2001 at 4.15 pm.

(Sgd.) P.E. SCOTT,[L.S.] Commissioner/



INDUSTRIAL RELATIONS COMMISSION.PARTIES WESTERN AUSTRALIAN POLICE

UNION OF WORKERS, APPLICANTv.COMMISSIONER OF POLICE,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED MONDAY, 20 AUGUST 2001FILE NO PSAC 13 OF 2001CITATION NO. 2001 WAIRC 03576

_______________________________________________________________________________

Result Recommendation IssuedRepresentationApplicant Mr P. Kelly, Mr M. DeanRespondent Mr D. Eacott, Commander G. Power, Ms

C. Allman, Ms C. Brown_______________________________________________________________________________

Recommendation.1 A conference was held urgently before Commissioner

A.R. Beech in Perth today at the request of the W.A. PoliceUnion. At the conclusion of the conference CommissionerBeech issued the following Recommendation—

The Commission recognizes that there is a strengthof feeling amongst members of the Union at theKalgoorlie/Boulder Police Station regarding staff-ing levels. The Commission also recognizes that theCommissioner of Police believes that the issue hasbeen or will be addressed.Having heard both the Union and the representa-tives of the Commissioner of Police this morning,the Commission recommends that there be a meet-ing in Kalgoorlie between the Union and theCommissioner of Police (represented at Commanderlevel) to provide a framework for the Union and itsmembers to put the issues of concern to the Com-missioner of Police. It will also provide a frameworkfor the Commissioner of Police to respond to thoseissues either at the meeting or at any further meetingto be arranged between them after consideration ofthe issues raised.

2 Both the Union and the representatives of theCommissioner of Police advised Commissioner Beechthat they accepted his Recommendation. CommissionerBeech adjourned the Union’s application for 14 days onthe understanding that the parties will arrange to meet inKalgoorlie within that time on a date to be arrangedbetween them.


INDUSTRIAL MAGISTRATE—Complaints before—

IN THE INDUSTRIAL MAGISTRATE’SCOURT OF WESTERN AUSTRALIA

HELD AT PERTH

Complaint Nos 12, 15-17 of 2001

Date Heard: 11 & 12 July 2001

Delivered: 25 July 2001

BEFORE: WG. Tarr I.M.

Between—

Nina Mary Stokoeand

Frank Elwyn HughesComplainants

and

Donald Maxwell Wimbridgeand

Mandurah Taxis Pty Ltd Defendants

Appearances—Mr S Bibby appeared as agent for the Complainants.Mr E Rea appeared as agent for the Defendants.

Reasons for Decision.The complainants in these proceedings each brought an ac-tion by way of complaint against Max Wimbridge alleging


that he had committed offences contrary to sections 68(1) and(2) and 70(1)(d) of the Workplace Agreements Act 1993.

The complaints were amended late in the proceedings toreflect the identity of the correct defendants. In relation to thetwo complaints under section 68 the name of the defendantwas changed to Donald Maxwell Wimbridge and the defend-ant in relation to the charges pursuant to section 70 waschanged to Mandurah Taxis Pty Ltd.

It was agreed at the outset of the hearing that all four com-plaints should be heard together. There was no dispute thatMandurah Taxis Pty Ltd was a company operating a taxi busi-ness in Mandurah and that Donald Maxwell Wimbridge wasthe proprietor of that company and managed the taxi busi-ness. Both complainants were employed by the company asbase radio operators.

The complainant Frank Elwyn Hughes’ complaint againstMandurah Taxis Pty Ltd reads as follows:—

“The defendant has committed an offence contrary to sec-tion 70(1)(d) of the Workplace Agreements Act 1993 inthat the complainant suffered injury in his employmentdue to the complainant’s refusal to enter into an agree-ment under the Workplace Agreements Act 1993. Thecomplainant requests payment of penalty and costs.”

Nina Mary Stokoe’s complaint under section 70 reads:—“Mandurah Taxis Pty Ltd has committed an offence con-trary to section 70(1)(d) & (e) of the WorkplaceAgreements Act 1993 in that the employer has injuredthe complainant in her employment and the reason for sodoing is that the complainant refused to enter into anagreement under the Workplace Agreements Act 1993.The claimant requests payment of a penalty and costsand reinstatement.”

The claim for reinstatement was abandoned during the pro-ceedings.

Section 70 of the Workplace Agreements Act 1993 (the Act)provides as follows—

70. Dismissal etc. because of refusal to enter into agree-ment(1) An employer must not —

(a) dismiss an employee from his or her employ-ment; or

(b) alter the employee’s position in his or heremployment to his or her disadvantage; or

(c) refuse to promote the employee in his or heremployment; or

(d) otherwise injure the employee in his or heremployment,

when the reason for doing so is that the employee re-fused to enter into —

(e) an agreement under this Act; or(f) an agreement under this Act that contains or

does not contain particular provisions.Mr Hughes’ complaint against the defendant Donald

Maxwell Wimbridge reads—“The defendant has committed an offence contrary to sec-tion 68(1) & (2) of the Workplace Agreements Act 1993in that by threats or intimidation attempted to persuadethe complainant to enter into a workplace agreement andthreatened injury or harm to the complainant because thecomplainant is not party to an agreement under theWorkplace Agreements Act 1993. The complainant re-quests payment of penalty and costs.”

Mrs Stokoe’s complaint reads—“The defendant has committed an offence contrary to sec-tion 68(1) of the Workplace Agreements Act 1993 in thatby threats or intimidation attempted to persuade the com-plainant to enter into a workplace agreement. Thecomplainant requests payment of penalty and costs.”

Section 68 of the Act provides as follows—68. Threats and intimidation

(1) A person must not by threats or intimidation per-suade or attempt to persuade another person to enterinto, or not enter into—

(a) an agreement under this Act; or

(b) an agreement under this Act that contains ordoes not contain particular provisions.

(2) A person must not intimidate an employee of an em-ployer, or threaten injury or harm to the person orproperty of an employee of an employer, becausethe employee is or is not a party to—

(a) an agreement under this Act with his or heremployer; or

(b) an agreement under this Act with his or heremployer that contains or does not containparticular provisions.

(3) A person must not by threats or intimidation per-suade or attempt to persuade an employer to applyto any employee of the employer any provision of aworkplace agreement that is not binding on the em-ployer.

Mr Hughes gave evidence that he was employed as a baseradio operator with Mandurah Taxis Pty Ltd having com-menced on about 1 October 1999. For the next 13 months (59weeks) he worked an average of 14.8 hours per week basedon the History of Hours (Exhibit D). His evidence is that theagreement when he commenced employment was that hewould work 14.5 hours per week and he claims he told MrWimbridge of a back condition which restricted the durationof any one shift as he could not work an 8 hour shift withouta break. Mr Hughes claims that on 16 November 2000, MrWimbridge gave him a copy of a workplace agreement (WPA),which he was asked to take home and read and return it thenext day when he was asked to sign the WPA. It was MrHughes assessment that he would be worse off under the WPAcompared to the award. He had discussions with a union rep-resentative and his colleagues. While still on two weeks leavehe telephoned Mr Wimbridge to arrange a meeting with all on6 December 2000. The phone call deteriorated and he claimsMr Wimbridge was shouting at him. Mr Hughes eventuallyhung up. From then on, it would seem from the evidence thatthere was a breakdown in the relationship between them bothand as Mr Beedham, the workplace relations consultant em-ployed by Mr Wimbridge said when he gave evidence, thatthe relationship between Mr Wimbridge and both the com-plainants had broken down. There was no goodwill and distrustbetween the parties. Prior to the attempt to introduce the WPAMr Hughes said relationships were “fine” and without prob-lems.

Mrs Stokoe gave evidence that she commenced her employ-ment with Mandurah Taxis Pty Ltd also on 1 October 1999 asa base radio operator. It was her evidence that she had beenasked to consider signing the WPA but after discussing thematter with her husband she decided not to sign at that time.She would sit on the fence and see what happened with theother employees. She liked her job and did not want to beinvolved. She had discussions with Mr Hughes and was calledinto Mr Wimbridge’s office on 4 December 2000 and told ofMr Hughes’ telephone call.

It is Mrs Stokoe’s evidence generally that after the attemptedintroduction of the WPA her employment environmentchanged and this led to her becoming stressed. She soughtmedical treatment for her stress related condition and neededthe services of a clinical psychologist.

Mr Wimbridge gave evidence that there was a down turn inthe taxi business and for that reason and others he wanted tointroduce workplace agreements. He sought advice from MrBeedham of Workplace Relations & Management Consult-ants and arranged for the production of workplace agreements.He then offered the workplace agreements to his employeesrequesting them to take them home and read them. They werethen to bring them back signed or if there were any problemshe would discuss them. It is clear from the evidence that theemployees were not happy with the agreement and as I under-stand the evidence none would initially sign, although latersome did enter into a WPA.

Both complainants refused to sign and I believe there is nodoubt that Mr Wimbridge was not pleased. It was at this timethat it became apparent to the employees that they were notbeing paid award rates and this added another dimension tothe dispute. Mr Wimbridge, it would appear, was well awareof his obligations under the Clerks (Taxi Services) Award as


earlier in 2000 he was involved in an action by an employeefor breach of the award. He continued to pay his employeesless than the award rate, which included the non-payment ofpenalty rates. It is not in dispute that monies are still due tothe complainants because of this underpayment.

Mr Wimbridge denies that he threatened or intimidated thecomplainants because of their refusal to sign the workplaceagreements. If fact he claims to have told them they did nothave to sign. There is no doubt that at the same time he triedto introduce workplace agreements the prior cordial relation-ship between him and the complainants soured. If fact MrWimbridge’s response was to “back off” after earlier heatedexchanges, particularly between himself and Mr Hughes. Per-sonal contact almost ceased and formal letters were used tocommunicate with the complainants, as evidenced by the manyexhibits. Mr Wimbridge explained this was a result of advicehe had received from Mr Beedham who he left to do the nego-tiations.

The Workplace Agreements Act 1993 is an Act “to providefor the making of agreements between employers and em-ployees as to their respective rights and obligations …” and itis the right of every employer to initiate the introduction ofworkplace agreements into his business. However, it is theintention of the legislation that any WPA must be entered intovoluntarily by each and every employee after whatever nego-tiation and bargaining takes place and as the Act requires“without any persuasion or attempted persuasion by threatsor intimidation overtly or otherwise”.

Threats and/or intimidation may take many forms and theallegation in this case is that Mr Wimbridge behaved in a threat-ening way by his earlier aggression to both the complainantsand by the comments he made.

It is my view that there can be no doubt on the evidencebefore me that Mr Wimbridge’s intention was to have all em-ployees on workplace agreements and there is an irresistibleinference that his motivation was to avoid his obligations un-der the Clerks (Taxi Services) Award, in particular, the paymentof penalty rates on weekends. It follows I believe that anyinappropriate behaviour following the refusal of employeesto sign the workplace agreements was as a result of that re-fusal.

Mr Hughes’ evidence is that he felt his relationship with MrWimbridge changed immediately when he refused to sign.Mrs Stokoe’s health deteriorated and required visits to herdoctor and a clinical psychologist. She said she felt harassedand stressed in a working environment in which she was happyuntil the attempt to introduce workplace agreements.

Both complained of having their weekly hours reduced and,while there is evidence that the business was experiencing adownturn, it is the evidence of Mr Hughes that earlier on hishours were reduced at a time when the hours of other employ-ees, including Mrs Stokoe, were increased. Mr Wimbridgeexplained that he started doing some weekend shifts becausethe business could not afford to pay penalty rates. He did notexplain to either complainant the reasons why their shifts werebeing reduced. Nor was there any discussion between the par-ties as to the reasons.

Both Mr Hughes and Mrs Stokoe eventually resigned be-cause they claim the workplace for them became untenable.

One of the main complaints of both complainants is thattheir relationship with Mr Wimbridge soured when they wouldnot sign the WPA. Mr Hughes wanted to arrange a meetingwith him and other staff on 6 December 2000 to discuss theWPA and, no doubt, other matters but Mr Wimbridge was notinterested it appears. He arranged for Mr Beedham to meetwith the staff instead. From then on most communication wasby memos resulting in written responses or directions pinnedto a notice/message board.

Mr Wimbridge’s failure to communicate with the complain-ants in the manner he had before the attempt to introduceworkplace agreements could only be interpreted by them andothers as a sign of his dissatisfaction with them for not sign-ing. As he himself said in evidence that all the employees saidthey were not happy with the WPA and were not going tosign. He said in evidence that his approach was that the em-ployees should take the WPA home, read it and he told themthey did not have to sign it and if they did not sign nothingwould happen. In view of what followed I find it difficult to

accept that was his genuine approach. He admits not beingpleased with the way the staff responded and admitted a cor-dial relationship with them prior to November 2000.

There is no doubt that the relationship deteriorated as a result ofMr Wimbridge’s reaction not to communicate in any meaningfulway with the staff involved. This approach was contrary to theadvice that Mr Beedham said he would have given that employersshould discuss any problems with their staff.

Having considered all the evidence I find that I generallyaccept Mrs Stokoe’s evidence as being the most credible as tothe behaviour of Mr Wimbridge and the effect that behaviourhad on her and Mr Hughes. I accept her evidence generally.

Mr Wimbridge’s attempted to explain his actions firstly inrelation to the changed method of communications and thereduction in working hours for both complainants on the down-turn in business. Neither changes were explained to thecomplainants and while there is evidence of a downturn inbusiness there is evidence of a reduction in staff and increasedhours for some staff.

In proceedings of this type there is a shift in the onus ofproof as provided for in section 70(5) of the Act which readsas follows—

(5) Where in any proceedings for an offence againstsubsection (1) it is proved that an employer took anycourse of action mentioned in that subsection againstor in relation to an employee after the employee re-fused to enter into —

(a) an agreement under this Act; or(b) an agreement under this Act that contains or

does not contain particular provisions,it is for the employer to prove that he or she tookthat course of action for some reason other than be-cause the employee refused to enter into any suchagreement.

I am not satisfied on the balance of probabilities that thecourse of action Mr Wimbridge took was for any reason otherthan the complainant’s refusal to enter into the WPA. It wasclearly his intention to have all of his employees on workplaceagreements and his behaviour following the complainant’srefusal could be described as threatening and intimidating andresulted ultimately in the resignation of both.

I find the charges proved against both defendants.(The parties were heard in relation to penalty)Taking into account that I am going to make an order for

compensation and bearing in mind that there are four com-plaints, I am not going to fine the defendants any more thanthe minimum. That does not detract from my findings.

In relation to Donald Maxwell Wimbridge, on each of thecomplaints under section 68 of the Act there will be fines of$400 with costs of $44.20. In relation to Mandurah Taxis PtyLtd, there will be fines of $1000 on each charge under section70 with costs of $44.20 on each.

There was evidence before me which was not in disputethat there was a downturn in the business of Mandurah TaxisPty Ltd, and I cannot conclude on the basis of that that thecomplainants’ hours would have continued to be the same asthey were prior to November or December 2000 when theydid reduce. So, what I propose to do in relation to compensa-tion is that in relation to Mrs Stokoe, for the reasons that Ihave stated, I am going to reduce her claim for lost wages to$1200. The maximum compensation is $5000 but I am notconvinced that it is appropriate to award the maximum. I pro-pose to award her $2500 compensation and that, added to thelost wages totals $3700. There will be an order that MandurahTaxis pays her compensation of $3700.

In relation to Mr Hughes, and for the same reasons, I cannotconclude that he would have been paid and given the samenumber of hours for the period in dispute. Therefore in rela-tion to his claim I will award $750 by way of lost wages and$2000 by way of compensation. There will be an order thatMandurah Taxis Pty Ltd pays him compensation of $2750.

There will be orders accordingly.(Sgd.) W.G. TARR,

Industrial Magistrate.


IN THE INDUSTRIAL MAGISTRATE’SCOURT OF WESTERN AUSTRALIA

HELD AT PERTH

Complaints Nos 12, 15-17 of 2001

Between—

NINA MARY STOKOE AND FRANKELWYN HUGHES

Complainants

and

DONALD MAXWELL WIMBRIDGE ANDMANDURAH TAXIS PTY LTD

Defendants

Orders made by Industrial Magistrate W.G. Tarron the 25th day of July 2001

1. In respect of Complaints Nos 12 and 16 of 2001Mandurah Taxis Pty Ltd shall pay into Court theamount of $2000 representing a fine of $1000 inrelation to each Complaint.

2. In respect of Complaints Nos 15 and 17 of 2001Donald Maxwell Wimbridge shall pay into Courtthe amount of $800 representing a fine of $400 inrelation to each Complaint.

3. Mandurah Taxis Pty Ltd shall pay to Nina MaryStokoe the amount of $3788.40 comprising—

Compensation — $3700.00Costs — 88.40

$3788.404. Mandurah Taxis Pty Ltd shall pay to Frank Elwyn

Hughes the amount of $2838.40 comprising—Compensation — $2750.00Costs — 88.40

$2838.40

W. G. TARR,Date: 25 July 2001. Industrial Magistrate.

THE INDUSTRIAL MAGISTRATE’SCOURT OF WESTERN AUSTRALIA

HELD AT PERTH

Complaint No. 324 of 2000

Date Heard: 4 July 2001

Date Delivered: 16 August 2001

BEFORE: G. Cicchini I.M.

BETWEEN—

Justin Sabastian StrangeComplainant

and

Moonstar Nominees Pty LtdDefendant

Appearances—Mr G McCorry of Labourline—The Employment LawSpecialists appeared as agent for the Complainant.Mr PG Kennard (of Counsel) instructed by Constantinoand Co, Barristers and Solicitors appeared for the De-fendant.

Reasons for Decision.BackgroundThe Defendant is and was at all material times the operator

of a restaurant business known as Benny’s Bar and Café situ-ated at 10 South Terrace Fremantle.

On or about 7 April 2000 the Defendant and the Complain-ant entered into an oral contract of employment. The terms ofthe agreement provided, inter alia, that the Complainant would

be employed as a chef and would be paid a per annum salarypayable fortnightly. The agreement required the Complainantto work forty hours each week.

The ClaimThe Complainant alleges that his employment was subject

to the Restaurant, Tearoom and Catering Workers’ Award, 1979No R48 of 1978 (the award). The Defendant does not admitthat.

The Complainant contends that the Defendant has breachedthe award by—

• Failing to pay him overtime rates of pay for the hoursworked in excess of forty hours per week between 7April 2000 and 26 November 2000; and

• Terminating his employment on 26 November 2000without giving him notice or pay in lieu of notice;and

• Failing to pay him annual leave entitlements on ter-mination of employment. In that regard theComplainant alleges that the Defendant has alsocommitted a breach of section 18(1) of the Mini-mum Conditions of Employment Act 1993 (MCEAct); and

• Failing to pay him all wages due to him as soon aspracticable after the date of termination.

In consequence the Complainant seeks to recover the sumof $6016.71 comprised of—

• Unpaid annual leave totalling $1279.08.• Pay in lieu of notice totalling $127.91.• Unpaid wages totalling $673.20.• Unpaid overtime totalling $3936.52.

The Complainant also claims interest thereon pursuant tosection 32 of the Supreme Court Act 1935. Furthermore theComplainant seeks the imposition of a penalty with respect toeach breach of the award. Costs are also claimed.

The WitnessesThe Complainant relies on his own testimony and that of a

fellow former employee of the Defendant namely, Dale JamesWiley. The Defendant’s case is based on the evidence of itsgeneral manager namely Julien Paul Heppekausen, that of its“part owner” Benny Peter Roncio Junior and its secretary /payroll officer Lina Raffa.

The EvidenceJustin StrangeMr Strange testified that in about April 2000 he was em-

ployed by Dale Wiley to work for Benny’s Bar and Café as a“chef de partie”. A chef de partie is a section leader. He waslater promoted to the position of “sous chef”. A sous chef issecond in command.

Mr Strange worked for the Defendant between on or about7 April 2000 and 25 November 2000. In his statement of claimMr Strange alleges he was paid $35,000 per annum in accord-ance with the oral contract of employment entered into on orabout 7 April 2000. The Defendant admits the same in itsdefence. However Mr Benny Roncio Junior in his testimonysaid that the Complainant was initially paid only $32,000 perannum which only increased to $35,000 in the latter stages ofhis employment. Remarkably the Defendant’s pleadings areat odds with Mr Roncio’s evidence. Clearly the Complain-ant’s rate of pay is a significant factor to be considered andmay have an impact upon quantum, in the event that the Com-plainant succeeds, on the issues of liability in dispute.

Mr Strange testified that given that he was a salaried em-ployee no time records were kept as to his employment. Hesaid that only non-salaried staff clocked on and off. He there-fore relies on his work rosters to support his claim for overtime.He told the Court that he worked the hours as shown on therosters (exhibit 1), and that he did not finish any earlier than10.30 pm when working in the evenings. Accordingly he con-tends that he always worked more than 40 hours per week butwas never paid any extra for that. Furthermore he said that hedid not have any breaks for meals. Meals were usually takenin the kitchen or out the back whilst attending to prep-work orpaperwork.

On 21 November 2000 the Complainant gave notice of hisresignation to Benny Roncio Senior. Sunday 26 November


was to be his last day at work for the Defendant. The incidentthat gave rise to the dispute between the parties in fact tookplace on the afternoon of 25 November 2000 (the materialdate).

On the afternoon of the material date, Brett Ingram, a sec-ond year apprentice chef employed by the Defendant,telephoned the Complainant to advise that he was quite illand that he was intending to see the doctor. He effectivelysignalled his potential absence from work. It is clear that MrIngram’s potential absence was critical. Usually there wouldhave been three chefs working that evening. However one ofthe chefs who had been rostered to work had quit the daybefore leaving only the Complainant and Mr Ingram. At about5.30 pm on the material date Mr Ingram again telephoned theComplainant and told him that his doctor had advised him notto go to work. Mr Ingram told the Complainant that he had“gastro” problems. He also had a reaction related to a causticburn suffered at work. The Complainant alerted MrHeppekausen to the situation. In consequence MrHeppekausen rang other staff to see if any of them could gointo work at short notice, however none of them were avail-able.

Concerned at the prospect of working by himself the Com-plainant suggested to Mr Heppekausen that the kitchen beclosed for the night. Traditionally Saturday evenings were notbusy and accordingly any loss would be minimal. The Com-plainant said that by about that time, (6.00 to 6.30 pm) giventhat he was on his own he was already under pressure andrunning around like a “headless chicken”. Furthermore he wasconcerned that he could not attend to the prep-work neces-sary for the next day’s trade. Sunday trade was always thebusiest. Mr Heppekausen suggested the introduction of a re-duced menu as a solution, however that did not find favourwith the Complainant, as it would not have any significantimpact on him.

At about that time the Complainant telephoned Dale Wiley,his immediate superior in order to seek guidance. Mr Wiley’sadvice was to close the kitchen.

At about 7.00 pm Brett Ingram telephoned the Complain-ant saying that he had been contacted by Benny Roncio Juniorabout going into work. Feeling that his position was at risk ifhe did not attend, he reluctantly agreed to go to work. Con-cerned at the health implications of a sick Mr Ingram going towork, the Complainant advised Mr Ingram not to go to work.He then advised Mr Heppekausen of that fact. The Complain-ant took the view that the kitchen should be closed as he couldnot possibly get the meals out in time or deliver them in aprofessional manner.

Mr Benny Roncio Junior arrived soon thereafter and theComplainant spoke to him. He advised Mr Roncio that he hadtold Mr Ingram to stay at home. He also advised Mr Ronciothat in his view the kitchen should be closed. He indicatedthat a reduced menu would not assist. It was suggested to theComplainant that both Mr Heppekausen and Mr Roncio couldassist in the kitchen. However the Complainant rejected that.From his experience he perceived it to be too dangerous tohave inexperienced people assisting him in the kitchen. Therewas a real potential for serious injury.

Benny Roncio Junior reacted strongly to the Complainant’sstance that the kitchen should be closed. He told the Com-plainant that he was trying to ruin his business. and that if hewas not going to listen ( and keep the kitchen open ) then hisemployment was terminated then and there. The Complainantthen went to the kitchen and started to clean up. Mr Ronciotold him not to bother and to pick up his stuff and go home.He told the Complainant it was a shame that his employmenthad to end that way. The Complainant responded that he hadone more day left to go. Mr Roncio said,

“You haven’t followed my orders as your employer and sen-ior. If you don’t listen to what I say your employment, it’s youknow grounds for instant dismissal”.

The Complainant was sent home and did not receive hispay for the hours worked that week. He did not receive hisholiday pay or any other payments.

When cross-examined on the issue of his dismissal the Com-plainant conceded that Mr Roncio had given him a direct orderor direction to keep the kitchen open. The Complainant said

that his response was that the kitchen had already closed andthat it was not possible to keep it open.

Dale WileyDale Wiley, the Complainant’s immediate superior on the

material date, testified that the Defendant between April andNovember 2000 employed him. He said that Benny’s Bar andCafé initially employed eight chefs and four kitchen hands.Later the number of chefs reduced to about six.

Mr Wiley described the operation of the business as being acafé during the day. On Friday and Saturday nights it wouldturn into a bar where most tables were removed and a stagewas erected for bands to play. It operated as more of a bar inthose circumstances. He described it as a “nightclubby sort ofa bar—loud music—a lot of people—a lot of drinking”.

Mr Wiley told the Court that Benny’s Bar and Café openedat 7.00 am and closed at 10.30 pm Mondays through Thurs-days. On Fridays and Saturdays the kitchen was open from7.00 am to 10.30 pm leading up to August or September 2000.At about that time the kitchen started closing earlier becausethe restaurant and bar functions were difficult to handle si-multaneously. It was accordingly agreed that the kitchen wouldclose at about 8.30 pm when the band started.

Mr Wiley said that the peak demand for food would be be-tween 7.30 and 9.30 pm. A complement of a minimum of twochefs and one kitchen hand was required to facilitate the op-eration. The normal complement would be two qualified chefs,an apprentice and a kitchen hand. He said that the kitchencould not function with one chef only. That would be the caseeven if assisted by unqualified people. He said that unquali-fied people within the kitchen potentially created a hazard, asthey would not know how to move around the kitchen. Therewere certain dangerous points in the kitchen. It was only theyears of training that permitted chefs to move around thekitchen with hot foods without creating a hazard. Mr Wileysaid that neither Mr Roncio nor Mr Heppekausen were suffi-ciently qualified or experienced to work within the kitchen.

On 25 November 2000 at about 6.00 pm Mr Wiley was con-tacted by Mr Roncio Senior asking him to go into work. MrWiley was not in a position to do so, as he was caring for twoyoung children. About half an hour later he got a call from theComplainant who told him of his situation. His advice to theComplainant was that if he were in the Complainant’s posi-tion he would not do it (that is to keep the kitchen open).

Mr Wiley also testified that he had been informed by MrIngram that he had experienced vomiting and diarrhoea aswell as a chemical burn to his hand. He said that it was notappropriate for a person in such a condition to be workingwithin a kitchen. He testified that, “If you’re sick you stayhome”.

Mr Wiley also addressed the issue of the rosters. He told theCourt that he had the duty of preparing rosters for kitchenstaff. He had been advised that the Complainant was to workforty hours per week. However in reality both he and the Com-plainant had to work many more hours in order to keep thekitchen running. They were not paid any overtime. Only casu-als were paid extra for working extra hours. Mr Wiley saidthat he had received complaints about working too many hours.Those complaints had been passed on to Lina Raffa.

In reference to the rosters he prepared, he said that the letterC as shown on the rosters designated “close” which wouldhave been about 10.30 pm. Mr Wiley testified that he wasconfident that the Complainant worked the hours as shown onthe rosters and that he did so without any breaks.

Mr Wiley described as untrue the Defendant’s contentionsthat the Complainant did not work in excess of forty hours inany week. Further he said that it was untrue to suggest that theComplainant took time off to compensate him for extra hoursworked.

When cross-examined Mr Wiley conceded that given thathe was not there when the Complainant finished working onany given evening it was not possible for him to know exactlywhat times he would have worked. Further he conceded thatit was possible for staff to make changes to the roster. In suchinstances the roster would be changed to reflect the changedhours of work. He said that did not happen very often withsenior staff. Mr Wiley also said under cross-examination thatthe kitchen would generally stay open notwithstanding a lackof clientele.


Julien HeppekausenMr Heppekausen is and was on the material date the gen-

eral manager of Benny’s Bar and Café.He told the Court that he would start work at about 9.00 am

and was usually there for most of the day finishing up whenthe place closed at midnight. He said that on some occasionsthe “food operation of the venue” would cease prior to 10.30pm. That usually occurred on Mondays, Tuesdays and Wednes-days. It also definitely occured on Sundays.

Mr Heppekausen also addressed the issue of meal breaks.He said that the taking of meal breaks was left purely at thediscretion of employees. They would have a break when theygot a chance to have one. He observed that the Complainanttook meal breaks.

Turning to the incident on 25 November 2000, MrHeppekausen said that he was on duty that day. He said thathe noticed that once the other chefs had left following theearlier shift that the Complainant was not doing the thingsthat he would normally do. It appeared to him that “he waspreparing to pack the kitchen up from about 4.30,

5 o’ clock”. He was wrapping up prepared food and puttingit away in the cool-room fridge.

Mr Heppekausen said that during the course of the after-noon the Complainant reported to him that Mr Ingram wasnot going to attend for his shift. Attempts were made to find areplacement. Later Mr Benny Roncio Junior rang to say thatMr Ingram would be going into work after all. At that stagehe was discussing with the Complainant whether a reducedmenu would be more appropriate. He took the view that theComplainant could handle that with his assistance.

Benny Roncio Junior subsequently arrived at the restaurant.The Complainant and Mr Roncio then had a conversationduring which the Complainant was instructed to perform hisduties. The Complainant refused to do so and said that hewould have to leave. At that the Complainant packed his knivesand left.

When cross-examined on the issue of the roster MrHeppekausen said that employees were usually rostered be-yond their finishing time.

Further Mr Heppekausen was specifically cross-examinedas to the liquor licence then applying to Benny’s Bar andCafé. In that regard he testified that Benny’s Bar and Caféoperated under a special facility licence, granted under thetransitional provisions of the Liquor Licensing Act 1988. Itwas put to him that it operated under a restaurant licence how-ever Mr Heppekausen denied that that was the case. He saidthat it operated under a “category A” licence whereas a res-taurant licence is a “category B” licence. He said that foodwas sold by choice of the Defendant rather than by reason ofit being a precondition for the sale of alcohol. He testified thatthe licence was formerly a wine house licence when acquired.It was turned into a special facility licence under the transi-tional provisions of the Act and relocated to the premises atwhich Benny’s Bar and Café is situated. Mr Heppekausenwas asked to produce the licence. He said he did not have thelicence on him and was not aware that he was required toproduce it.

Mr Heppekausen was questioned about his experience and,inferentially, his ability to assist Mr Strange on the materialdate. In that regard he said he had cooked for three years atthe Left Bank Bar and Café during its Sunday session. Hesaid that he thought he was capable of operating like an ap-prentice chef under the guidance of a qualified chef.

Lina RaffaMs Raffa was asked to comment upon Mr Wiley’s evidence

that he passed complaints on to her concerning staff having towork more than their required hours. She said that such didnot occur. She said in that regard that she would “just redirecthim to Benny or Julien”.

She told the Court that the hours shown on the roster werenot an accurate reflection of the hours actually worked.

Ms Raffa was taken to exhibit 2, being the roster purportingto be for the period 20 November 2000 to 26 November 2000.She said that she wrote in the dates on that roster. She hadoriginally received two sheets without dates on them and shedated the same.

When cross-examined Ms Raffa conceded that she did notknow whether or not employees worked the hours shown onthe roster.

Benny Roncio JuniorMr Roncio testified that the rosters do not provide an accu-

rate reflection of the true amount of hours worked. He saidthat the Complainant would definitely finish early “if it was aMonday night and belting down with rain. He would startearlier the next day and do prep, and vice versa”. If he workedlonger on any given day he would take time off to compen-sate. Mr Wiley and the Complainant worked it out betweenthemselves. That was the reason why they were paid on a sal-ary basis and not a time clock basis. It was a flexiblearrangement.

Mr Roncio said that neither Mr Wiley nor the Complainantcomplained about their hours being too long.

Mr Roncio also testified that the Complainant was paid atthe rate of $32,000 per year and that was only increased to$35,000 per year about a week or two before he gave notice.

With respect to the incident on 25 November 2000 MrRoncio testified that after his failed attempt at obtaining reliefstaff he contacted Mr Ingram. He asked Mr Ingram to go intowork and assist. It was intended that he remain at work forabout two to two and a half hours in order to tide the kitchenover. He said that Mr Ingram agreed notwithstanding he wasfeeling “a little crook”. He went on to say that at about 5.00pm he received a call from Mr Heppekausen concerning theComplainant semi-clearing the kitchen. At that time he alsospoke to Mr Heppekausen about the option of providing areduced menu service.

Mr Roncio thereafter went to Benny’s Bar and Café. Uponarrival he spoke to the Complainant whilst in the car park. Hetold the complainant that Mr Ingram was going in to assistand that both he and Mr Heppekausen could assist the Com-plainant in the kitchen with respect to the delivery of a servicebased on a reduced menu. The Complainant responded bysaying that he did not like pressure being put on Mr Ingram togo into work. The two of them then walked into the premisesand discussed the reduced menu. Mr Roncio said that althoughhe could not recall the exact words used, the conversationwent along the lines that the Complainant said that he was notdoing service that evening to which he replied, “Well I’m giv-ing you a direct order to keep the kitchen open”. TheComplainant then replied, “Well I leave”. Mr Roncio re-sponded by saying, “Get your stuff and go”, which theComplainant did. The Complainant left after having packedup his scales and knives. Mr Roncio said that he did not sackor fire the Complainant. Mr Roncio took the view that theComplainant abandoned his employment.

In consequence of the Complainant’s actions Benny’s Barand Café was not able to serve meals and suffered a loss intrade that evening resulting in a loss of $346.42.

When cross-examined Mr Roncio conceded that the con-tractual arrangements were that the Complainant was to bepaid $35,000 for a 40-hour week. Furthermore Mr Roncioconceded that he was unable to say how many hours that theComplainant had actually worked in any given week.

With respect to his own ability to help out in the kitchen MrRoncio conceded that he was neither capable nor competentto cook.

Mr Roncio also conceded that he was prepared to order theComplainant to keep the kitchen open against the Complain-ant’s professional judgment.

FindingsIn determining the factual issues in dispute I must say that I

found the evidence of the Complainant and Mr Wiley in par-ticular to have been delivered in a forthright, honest and reliablemanner. I find that both Mr Heppekausen and Mr BennyRoncio Junior in particular gave their evidence in such a waythat lacked specificity. Each of them addressed issues in ageneral sense. Furthermore it is apparent that Mr BennyRoncio’s recollection of the conversation between himself andthe Complainant concerning termination on 25 November2000 is less than perfect. Indeed he conceded that to be thecase. Mr Heppekausen’s evidence concerning the same issueis also less than perfect. In my view that is reflected in hispreface of the conversation which he related to the Court in


which he stated that “the details of the conversation were alongthe lines that…”.

Where there is a conflict in the evidence of the Complain-ant to that of Mr Roncio and Mr Heppekausen on the issue oftermination of employment I prefer the evidence of the Com-plainant. I find that his employment was terminated for allegedmisconduct for not following an instruction. I reject the De-fendant’s contention that the Complainant abandoned hisemployment. The Defendant’s conduct subsequent to and inconsequence of the dismissal is indicative of that fact. Indeedit is clear that Mr Roncio in particular was prepared to doanything, including having a sick employee attend work onthe material evening so that the kitchen could remain open.Having regard to his demeanour displayed whilst giving evi-dence I readily accept the Complainant’s evidence that MrRoncio became irate upon the Complainant’s refusal to keepopen the kitchen. I accept that lead to the Complainant’s im-mediate termination.

On the issue of hours worked, I accept the Complainant’sevidence that he worked his hours as set out in the rosters. Iaccept that he usually finished at 10.30 pm. Indeed that is inkeeping with Mr Heppekausen’s evidence that he himselfwould normally finish at midnight. I accept that although theprovision of food to the public may have finished early attimes, other duties such as cleaning up and other preparatorywork kept the Complainant working until 10.30 pm and until9.00 or 9.30 pm on Sundays. Mr Wiley’s evidence as to theComplainant’s duties supports the Complainant’s contention.

I reject Mr Roncio’s evidence on the issue. He, in reality,does not know the number of hours worked by the Complain-ant, as he was often not there at finishing time. Ms Raffa alsohas no knowledge of hours actually worked. Mr Heppekausen’sevidence on the issue is rather general and anecdotal in na-ture. There is a lack of specificity in his testimony on thisissue.

I accept that the Complainant worked the hours that he al-leged he worked. It therefore follows that I find that he worked117 hours overtime for which he was not paid.

As stated earlier Mr Benny Roncio’s evidence in chief as tothe Complainant’s rate of pay is inconsistent with the admit-ted issue of rate of pay set out in the pleadings. Furthermorethe issue of the rate of pay was never put to the Complainantin accordance with the rule in Browne v Dunn. It thereforeappears that any calculation of overtime should be based on arate of pay of $35,000 per annum.

Further it is axiomatic that I find on the facts that the Com-plainant’s employment was terminated without notice or payin lieu thereof. Furthermore it is self evident that all wagesdue were not paid as soon as practicable after termination andthat no annual leave entitlements were paid upon termination.

I also comment upon exhibit 2. I am not at all satisfied thatthe exhibit that Ms Raffa has dated is the roster for the period20 November 2000 to Sunday 26 November 2000. I am satis-fied that Ms Raffa has been genuine in her attempt to date thedocument. However I suspect that she is in error. I infer thatthe roster relates to the week post the Complainant’s termina-tion. The fact that the Complainant’s name is not on the rosteris indicative of that. If it is the roster for the Complainant’sfinal week then one would have expected his name to be on itand it is not. Additionally there are apparent inconsistenciesbetween it and exhibit 3 so far as they relate to the days thatAmy worked. It is most probable that in receiving the twosheets of undated roster Ms Raffa has mistakenly allotted theincorrect dates to exhibit 2. It appears that the other rostersheet received in conjunction with the roster that is now ex-hibit 2 may very well have been the roster to which the relevantweek relates.

Finally, and crucially, I move to the issue of fact as to whetheror not Benny’s Bar and Café is and was a restaurant. In thatregard the Complainant’s agent submits that “the parties arenot at issue that the place is clearly a restaurant within thedefinition contained in clause 6 of the award”. That provides—

6.—DEFINITIONS(1) “Restaurant and/or Tearoom” means any meal

room, dining room, grill room, coffee shop, tea shop,oyster shop, fish cafe, cafeteria or hamburger shopand includes any place, building, or part thereof,

stand, stall, tent, vehicle or boat in or from whichfood is sold or served for consumption on thepremises and also includes any establishment or placewhere food is prepared and/or cooked to be sold orserved for consumption elsewhere.

He says that food was undoubtedly sold and served for con-sumption.

With all due respect to the Complainant’s agent it is clearthat the issue of award coverage is live. Indeed by its plead-ings the Defendant puts the Complainant to his proof.

As a matter of fact there is no denying that food is sold andserved at the premises. However it is also abundantly appar-ent that alcohol is also sold and served. In that regard Mr Wileygave evidence that on Fridays and Saturdays the venue wastreated as a bar after 8.30 pm. Indeed Mr Heppekausen’s evi-dence on the issue was quite specific. He said that Benny’sBar and Café operated under a special facility licence. Foodwas prepared and sold as a matter of choice and not by reasonof compulsion under the relevant liquor licence. He gave ahistory of the licence. His evidence in that regard was de-tailed. It is the case that he had detailed knowledge of therelevant licence. I accept his testimony in that regard. His evi-dence and that of Mr Wiley throws considerable doubt onwhether Benny’s Bar and Café operated as a restaurant. In-deed the evidence before the Court tends to indicate that it didnot operate as a restaurant at all. Given the evidence beforeme it is possible to find as a matter of fact that Benny’s Barand Café did not operate as a restaurant but rather as its namedictates as a bar and café. It operated under a special facilitylicence issued pursuant to the provisions of the Liquor Li-censing Act 1988. That finding is permissible on the balanceof probabilities particularly in the light of Mr Wiley’s and MrHeppekausen’s evidence.

The Law and ConclusionsThe Complainant has the onus of proving his claim on the

balance of probabilities.In order to be successful in his claim he must first establish

award coverage. The Complainant must prove the following—1. The existence of an award.2. That the award binds the employer. This may be

proved by establishing that the employer was oper-ating a business or undertaking in the relevantindustry at the time of the alleged breach.

3. That the person in relation to whom the complaint ismade was employed in a classification under theaward, and

4. That the person in relation to whom the complaint ismade is an employee within the definition in section7(1) of the Industrial Relations Act 1979.

The live issue to be determined and to which the Complain-ant has been put to the proof on is whether the award bindsthe Defendant.

In submissions the Complainant’s agent conceded, and cor-rectly so in my view, that if the Defendant has a special facilitylicence that that of itself would provide an irrefutable defenceto the proceedings given that the Hotel and Tavern WorkersAward 1978 No R31 of 1977 would apply. He submits thathaving been served with a notice to produce and having failedto produce the licence that I am to infer, based on the rule inJones v Dunkel (1959) 101 CLR 298 that the production ofthe licence would not have been of assistance to the Defend-ant. In that regard he suggests that the licence that theDefendant has is not a special facility licence. He argues thatgiven the presumption that the Defendant is not selling liquorwithout a licence and in view of what Benny’s Bar and Cafédoes then the only conclusion to be reached is that it operatesas a restaurant and sells liquor under a restaurant liquor li-cence.

I reject the Complainant’s submission. To accept the Com-plainant’s submissions would require me to ignore theuncontradicted evidence of Mr Wiley and Mr Heppekausenon the issue. It is for the Complainant to prove his case. Hecannot somehow shift that burden upon the Defendant. TheComplainant had the opportunity to obtain a certified copy ofthe restaurant’s liquor licence if it existed. He could have sub-poenaed relevant documents. He could have called witnessesfrom the appropriate authority to prove its existence. He did


not do that. He suggests that the Defendant’s failure to com-ply with a notice to produce works in favour of theComplainant. However a notice to produce informs the partyupon whom it is served that the party is required to producethe documents specified therein at the trial to which the no-tice relates. At common law the notice does not compelproduction of the documents in question, but the fact that ithas been served provides a foundation for the reception ofsecondary evidence. (See Morgan v Babcock and Wilcox Ltd(1929) 43 CLR 163). The rule in Jones v Dunkel (supra) pro-vides that the unexplained failure by a party to give evidence,to call witnesses, or to tender documents or other evidence orproduce particular material to an expert witness may, not must,in appropriate circumstances lead to an inference that the un-called evidence would not have assisted that party’s case.

In this matter firstly and foremostly there is no notice toproduce filed. There has been no evidence lead as to its exist-ence. I have not seen it. I do not know what its terms are.There has simply been a bare assertion made that one wasserved upon the Defendant. In any event even if one has beenserved it does not of itself necessarily force the production ofthe document sought. Furthermore the non-production of sucha document would not necessarily lead to an inference againstthe interest of the Defendant. If the Defendant did not pro-duce a restaurant liquor licence (which the Complainant saysexists) in accordance with the notice, the Complainant couldhave produced secondary evidence to establish the existenceof the same. He did not do that.

The Complainant has, in my view, sought to shift the bur-den that he has to the Defendant. Effectively the Complainantis seeking that the Defendant prove it does not have a restau-rant liquor licence in order to defeat the claim. That cannot bedone. It is axiomatic that the burden of proof is upon the Com-plainant in establishing that the award applies to the Defendant.In order to prove his claim the Complainant had to necessar-ily produce the applicable restaurant liquor licence or someproof as to its existence in order to exclude the operation ofthe Hotel and Tavern Workers Award. That he has failed to do.The Complainant has failed to prove that the award binds theemployer. Accordingly it follows that all claims made pursu-ant to the award fail.

I now turn to consider the Complainant’s claim pursuant tosection 18(1) of the MCE Act.

It is clear from the provisions of section 24(3) of the MCEAct that if an employee is dismissed for misconduct the em-ployee is not entitled to be paid for any untaken leave thatrelates to a year of service that was completed after the mis-conduct occurred.

Having found that the Complainant was dismissed for mis-conduct I now turn to consider whether his conduct in refusingto keep the kitchen open amounted to misconduct.

In my view the refusal on the part of the Complainant tokeep the kitchen open was a wilful or deliberate and inten-tional disobedience of a lawful order made by Mr Roncio.Indeed there was nothing unlawful about his order to keep thekitchen open. All the Complainant was required to do was towork to the best of his ability in all the circumstances. Hecould have relied on the assistance to be provided by MrHeppekausen and Mr Roncio. It seems on the evidence thatMr Heppekausen had some limited experience and could havebeen useful in the circumstances. The evidence does not sup-port a finding that the engagement within the kitchen of MrRoncio and Mr Heppekausen would have necessarily led to abreach of the Occupational Safety and Health Act 1984. Ifthe engagement of Mr Roncio and Mr Heppekausen withinthe kitchen necessarily meant slow or poor outcomes for theDefendant, that was a matter, which rested with the Defend-ant. However the Complainant unilaterally decided to closethe kitchen down causing the employer to suffer a loss of trade.Given the nature of the Defendant’s business it was incum-bent upon the Complainant to do the best that he could toensure that the kitchen remained open and that Defendant’scustomers were serviced. His failure to do so was of suchgravity as to indicate a repudiation of his contract of employ-ment. Such amounted to misconduct in all of the circumstancesand therefore the Complainant has by his own actions disen-titled himself to annual leave payments accrued during hisemployment.

Finally I deal with the counterclaim for damages. In thatregard I agree with the submissions made by the Complain-ant’s agent that I do not have jurisdiction to deal with such aclaim. There is simply no provision within the Industrial Re-lations Act 1979 that gives this Court the power to deal withsuch a claim. The provisions of section 81CA go to procedurerather than its substantive powers. This Court’s substantivepowers when dealing with non-federal matters are providedfor by sections 81A and 81AA of the Industrial Relations Act1979. There is no power that I can discern that gives me juris-diction to deal with and determine the Defendant’s claim forcommon law damages. It follows therefore that the Defend-ant’s counterclaim cannot succeed.

Accordingly the Complainant’s claims are dismissed andthe Defendant’s counterclaim is also dismissed.

G. CICCHINI,Industrial Magistrate.

UNFAIR DISMISSAL/CONTRACTUAL

ENTITLEMENTS—2001 WAIRC 03661


PARTIES GAVIN MICHAEL CANN,APPLICANTv.BLACKBURNE REAL ESTATE(LICENCEE: JOBURNE PTY LTD,BLACKBURNE PROPERTIESLIMITED, RESPONDENTS

CORAM COMMISSIONER J F GREGORDELIVERED FRIDAY, 31 AUGUST 2001FILE NOS APPLICATION 936 OF 2000,

APPLICATION 937 OF 2000CITATION NO. 2001 WAIRC 03661____________________________________________________________________________

Result Application dismissed. Liberty to Applygranted

RepresentationApplicant Mr G.M. Cann acted on his own behalfRespondent Mr I. Curlewis (of Counsel) acted on

behalf of the Respondents____________________________________________________________________________

Reasons for Decision.(Given ex tempore on 20 August 2001)

1 The Applications the subject of these proceedings wereoriginally filed on 10th July 2000. They relate to claimsby Gavin Michael Cann (the Applicant) that he wasunfairly dismissed from employment with eitherBlackburne Real Estate (licensee, Joburne Pty Ltd) orBlackburne Properties Limited (the Respondent), and thatat the time of those dismissals there were outstandingcontractual benefits.

2 Since that time the Commission has convened eightseparate proceedings to deal with the matter by way ofscheduled conferences or hearings. In March 2001 theCommission heard argument for orders for discovery andparticulars. It issued Reasons for Decision on 12th March2000 relating to those. It is fair to say that the Commissionusually deals with such matters informally and they onlyrarely become subject of Reasons for Decision. In thiscase, though, there were substantial Reasons for Decisionissued. The explanation for that is set out in that writingthat was issued on 12th March.


3 The Commission dealt with that application exhaustivelyat the time. It made decisions in the exercise of thediscretion vested in it by s.27 of the Industrial RelationsAct, 1979 (the Act), by which section the Commission isempowered to make such orders. Those Orders requiredthat the Respondent give discovery of all documents inits power or possession relating to the establishment andoperation of a number of projects, including financialrecords as relevant. The Orders then list the projects. Thatlist does not include the project which the Applicant seeksto include by paragraph 1 of the Schedule to thisApplication; that is, that project called “Burswood”.

4 The response of the Respondent to this part of theApplication is that the Commission is functus officio inrelation to information relating to Burswood, and I agree.There can be no further order made, that issue havingbeen disposed of on 12th March by the issue of theCommissioner’s decision on that day.

5 Part 2 of the Schedule deals with four separate matterswherein the Applicant seeks variously minutes ofmeetings, agenda, notes of meetings, accounts and taxrecords and documents relating to share tradings andvaluation of interests, upon the contention that all of thosedocuments are discoverable because they go to the heartor fairness or otherwise of the Applicant’s dismissal uponthe Respondents contention that its financial position wassuch as to warrant the Applicant’s redundancy.

6 In dealing with these applications, and there are fourcontained in the Schedule: the information in parts 2(a)and 2(b) have already been subject to discovery, obviouslynot to the standard desired by the Applicant. I think hiscomplaint is that a number of the minutes have beenprovided with parts of them deleted or obscured. I amasked to draw the conclusion that there has not been fulldisclosure, but Mr Curlewis (of Counsel) says, and Iaccept what he says, that the Applicant’s solicitors havehad access to the full record. The Applicant’s solicitorfor the time being is the Applicant as a matter of law andthat full disclosure, in my view, is sufficient to allow forproper preparation of this case.

7 It should also be recorded that Mr Curlewis submits, andI accept, that there has been substantial disclosure to theApplicant of a large volume of information relating tothese applications; something like 33 lever arch files havebeen made available. The Applicant does not pursue theinformation in paragraph (b), but if he did I would havethe same response to that as I now indicate; that nosufficient ground has been made out that the orders soughtin 2(a) or 2(b) ought issue.

8 Insofar as the accounts and records of the twoRespondents described in paragraph (c), the Applicantalready has 3 years of those. He has had full access. Hehas had sufficient discovery for the purpose of theseApplications and the order he seeks relating to them willbe refused.

9 Insofar as the information that is requested for discoveryin paragraph 2(d), what is relevant is that the Applicantseeks information concerning actions post-termination,and not just marginally post-termination but aconsiderable period post-termination. There would haveto be compelling reasons advanced as to why discoveryought be given in that circumstance. There has been none,and the information requested in 2(d) will be refused.

10 The information requested in paragraph 3 has beensupplied, and in that case there is no need for an order toissue in respect of 3.

11 I need to deal with the question of the application to setaside the hearing dates set for 27 and 29 August and 5October 2001. The construct of the Act through whichthis Commission is created is to provide for expeditioushearing of matters relating to employers and employees.It cannot be expeditious when an application relating toa dismissal that occurred in July 2000 is still subject topreliminary proceedings over a year later. For theCommission to convene hearings on four or five occasionswould be unusual in dealing with such a matter. In fact,

most of these matters are dealt with by way of aconciliation conference after which, if unsuccessful, thereis a hearing. That is, there are two proceedings. By thetime this matter is finished it will have had eight or ninedifferent proceedings convened by the Commission anddealt with by it, all at cost to the public purse, withouteven considering the cost to the Respondent or to theApplicant for that matter.

12 There are compelling reasons why the matter ought to beheard on the days listed. The Applicant says, “I havechanged solicitors and all the previous solicitors I hadare no longer working for me,” if I could put it like that.“I want to get new solicitors and I need that time to havethe matter prepared for trial.” I am not prepared to grantthe adjournment for those reasons. They are not sufficientreasons. The Applicant is unable to say who his solicitorsare at the moment. I do not intend to vacate those datesthat have been set. I will allow the Applicant liberty toapply concerning those dates if and when he appointsnew counsel.

13 Orders will issue in due course.

2001 WAIRC 03655


PARTIES GAVIN MICHAEL CANN,APPLICANTv.BLACKBURNE REAL ESTATE(LICENCEE: JOBURNE PTY LTD,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED FRIDAY, 31 AUGUST 2001FILE NO APPLICATION 936 OF 2000CITATION NO. 2001 WAIRC 03655____________________________________________________________________________


____________________________________________________________________________

Order.

HAVING heard Mr G.M. Cann on his own behalf and Mr I.Curlewis (of Counsel) on behalf of the Respondent, the Com-mission pursuant to the powers conferred on it under theIndustrial Relations Act, 1979 hereby orders—

1. THAT the application for further discovery is dis-missed.

2. THAT the application for adjournment of proceed-ings listed for 27 and 29 August 2001 and 5 October2001 be and is hereby dismissed.

3. THAT liberty to apply is reserved to the Applicantin respect of order 2 hereof.




INDUSTRIAL RELATIONS COMMISSION.PARTIES GAVIN MICHAEL CANN,

APPLICANTv.BLACKBURNE PROPERTIESLIMITED, RESPONDENT



____________________________________________________________________________

Order.HAVING heard Ms H. Ketley (of Counsel) on behalf of theApplicant and Mr I. Curlewis (of Counsel) on behalf of theRespondent, the Commission pursuant to the powers conferredon it under the Industrial Relations Act, 1979 hereby orders—

1. THAT the application for further discovery is dis-missed.

2. THAT the application for adjournment of proceed-ings listed for 27 and 29 August 2001 and 5 October2001 be and is hereby dismissed.

3. THAT liberty to apply is reserved to the Applicantin respect of order 2 hereof.



INDUSTRIAL RELATIONS COMMISSION.PARTIES JOSE LUIS CABRERA, APPLICANT

v.CLASSIC FASHION ACCESSORIES,RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED FRIDAY, 17 AUGUST 2001FILE NO APPLICATION 393 OF 2001CITATION NO. 2001 WAIRC 03568_______________________________________________________________________________

Result Applicant dismissed unfairly as noredundancy paid

RepresentationApplicant Mr J L Cabrera (with the assistance of an

interpreter Ms Galan)Respondent Mr N Benwell_______________________________________________________________________________

Reasons for Decision.1 This is an application made pursuant to section 29(1)(b)(i)

and (ii) of the Industrial Relations Act, 1979 (the Act).The applicant Mr Jose Luis Cabrera alleges that he wasunfairly terminated on 2 February 2001 and was owedcontractual benefits for payment of notice in lieu. Thedenied contractual benefits claim was withdrawn by theapplicant; it having been settled by the payment of someadditional notice in accordance with s.170CM of theFederal Workplace Relations Act 1996. The applicantadvised the Commission by letter of 28 June 2001 thatthis aspect of the claim had been settled. This wasconfirmed at hearing.

2 The matter came on for conference on 4 April and 9 May2001. The matter not having been settled was referred tohearing.

3 The hearing was conducted with the assistance of aninterpreter, Ms Galan, who was fluent in Spanish. Theapplicant provided written submissions [Exhibit JLC 1]which formed both his submissions and evidence. Theapplicant maintained throughout the hearing that whathe had to say was contained in these submissions.

4 The essence of his claim is in paragraph 32 of hissubmissions. It states—

“In summary, it is submitted that my termination washarsh or unfair for three fundamental reasons: first,because the Respondent failed to comply with animplied contract to notify the decision to make myposition redundant when the decision was made orwhen the respondent should have been aware due tothe evident signs of a serious downturn in the beltbusiness throughout the year; secondly, because theRespondent failed to implement any measure to avoidthe effect of the redundancy, such as offering part-time or casual employment or assisting me to lookfor alternative employment. Quite the opposite, theRespondent required me to work the three weeksnotice. The Respondent had no consideration to thefact that I don’t speak English proficiently and thatas I am a refugee from a non-English speaking back-ground who would find it harder to find alternativeemployment. Finally, payment for redundancy wasinadequate.”

5 The facts in this matter are not greatly in dispute. On 22December 2000, Mr Cabrera was given a letter by MrJeremy Benwell, a joint proprietor of the business withhis brother Mr Nicholas Benwell. The letter stated asfollows—

“Dear Jose,We have very few orders for belts next season andyou know already that there has been a serious down-turn in our belt business this year.Unfortunately we cannot employ you any longer ona permanent basis.We therefore must give you three weeks notice.You will be required to work the three weeks whenyou return from leave finishing here on Friday 2nd

February 2001.We will provide you with a work reference if needed.Yours sincerely,N R Benwell”

6 Mr Cabrera says there were seven employees workingfull time making belts or shoes. He says that anotheremployee “Buk” and he were the only ones that madebelts and shoes. He does not believe any one should havebeen made redundant and queries whether there was adownturn in the respondent’s business. Mr Cabrera saysthat two employees were made redundant at the sametime. They were “Tim” and he. Mr Cabrera does not saythat someone else should have been made redundantinstead of him, he simply says that no one should havebeen made redundant. Mr Cabrera says that a femaleemployee has been put on the workforce since he left.

7 Evidence was given by Mr Jeremy Benwell and MrNicholas Benwell for the respondent. Mr Jeremy Benwellsaid that he was the direct manager of the applicant. Hesays he spoke to Mr Cabrera the day he handed him theletter advising him of his redundancy and at the sametime advised him that after his notice period he couldwork in the same section on lesser hours, namely parttime. He says that Mr Cabrera indicated that he had spokento Centrelink and they had advised him not to accept parttime work. He says Mr Cabrera indicated that he had afriend in the panel beating business and would be workingthere. He says Mr Cabrera did not seem unhappy aboutthe redundancy.

8 The respondent’s submissions are at [Exhibits NRB1 andNRB2]. Mr Nicholas Benwell says there was a 44%reduction in their belt business from 1999 to 2000. MrBenwell says Mr Cabrera was made redundant as onlyBuk and he made belts. In Mr Benwell’s view Buk hadother skills, had been employed longer and was the


originator of the belts. He says Mr Cabrera finished offthe belts.

9 Mr Nicholas Benwell also said when they sent samplesto their agents in October 2000, the orders they thenreceived in late November/early December were a clearindication of the downturn in the belt business which hadbeen occurring over the previous years. Mr Benwell saysthey sought advice from the Department of Productivityand Labour Relations on the termination and acted onthis advice.

10 The essential points of difference in the evidence are asfollows. At hearing in answer to questions addressed tohim by the Commission, Mr Cabrera said there was nodownturn in the respondent’s business. The respondentsays there was a 44% downturn. The evidence of MrCabrera is inconsistent with his own statement [ExhibitJLC1] at both paragraph 24 and paragraph 32. I havealready quoted paragraph 32. The important part ofparagraph 24 says—

“Since the downturn in the belt business occurredover the period of one year, the Respondent hadplenty of time to warn me about the possibility ofmaking my position redundant”.

11 This highlights the second point of contention in theevidence, namely the timing of the decision. Mr NicholasBenwell says the decision was taken due to the lack oforders coming from agents once the samples were sentout in October 2000. He says he knew of the orders inlate November and early December. Of the back of thishe says the decision was made to make the two employeesredundant. The inconsistencies in the evidence of MrCabrera, and my assessment of the witnesses at hearing,leads me to prefer the evidence of Mr Nicholas Benwelland Mr Jeremy Benwell in contrast to Mr Cabrera. MrCabrera as a self represented person and also having touse the services of an interpreter had difficulty informulating any questions in cross-examination athearing. I am mindful of that in coming to my decision.However, even taking that into account, I am veryconfident that the evidence of Mr Jeremy Benwell andMr Nicholas Benwell is a full and frank account of whatoccurred.

12 That brings me to the next point of contention. Mr JeremyBenwell says that Mr Cabrera was offered part timeemployment. Mr Cabrera says that he was not. Again Iprefer the evidence of Mr Jeremy Benwell and find thatMr Cabrera was offered continuing part time employmentand refused it.

13 Having said this, I do not believe that the respondent hasbreached s.41 of the Minimum Conditions of EmploymentAct 1993. I find that the respondent advised the applicantas soon as was practicable about his redundancy and alsosought to apply the alternative that was available to him,namely part time employment.

14 The last issue in contention is whether the terminationwas unfair, warranting the Commission’s intervention,by virtue of the absence of a redundancy payment. Theapplicant worked out the three weeks notice period. Hehas since been paid an additional two weeks notice. Hewas not given any redundancy payment. The applicantrefers to the decision of Frederick John Rogers v LeightonContractors (1999) 79 WAIG 3551 where Mr Rogers wasawarded two weeks compensation for each year of service.He says that the Rogers decision has been followed intwo recent decisions, namely Domenico Mazzone vTransfield Fabrication Kwinana (2000) 80 WAIG 3080and Andrew Birnie v A.W.I. Administration Services PtyLtd (2001) 81 WAIG 1198. He quotes Beech C in theBirnie decision at page 1200 as follows—

“The respondent also considers the decision inRogers v Leighton Contractors to have been wronglydecided and urges the Commission not to follow it.However, I am not persuaded by the suggestion. TheCommission at first instance is obliged to apply thedecisions of the Full Bench which are applicable onthe facts. To do otherwise is to invite inconsistencyand uncertainty.”

It is uncontested that the applicant worked for therespondent as a factory hand from 10 August 1995 to 2February 2001 and on that basis he says given the Rogersdecision he should be paid 10 weeks redundancy payment.His rate of pay was $412.60 per week. It is alsouncontested that the award applying to Mr Cabrera’semployment was the Saddlers and Leather Workers’Award (no. 7 of 1962). This award has no provision forredundancy payments. The applicant does not rely on theaward. The applicant relies on the Rogers case. He doesnot say it was a contractual entitlement, instead he says itwas a factor in the unfair termination, namely the absenceof redundancy payment.

15 I should say there was also a contention regarding thenumber of employees employed by the respondent. Theapplicant says the respondent had 15 employees at thetime he commenced his employment. The respondent saysthat the maximum number of employees he had was 10employees about 4 years ago, and he has approximately5 currently. The relevance of this, according to therespondent, is whether provisions in the Federal or otherjurisdictions regarding redundancy and the exemption ofemployers with less than 15 staff should apply orotherwise be persuasive.

16 The respondent seeks to distinguish their circumstancefrom the Rogers case for the following reasons—

“The Commission decided that the method of dis-missal was unfair in the Rogers case [my emphasis]in that the employee was given no notice and wasrequired to cease work immediately and expresslystated that the award of compensation was not be-cause the payment made was an insufficientseverance pay.In Leighton the applicants employment was termi-nated immediately and he was requested to finishwork on the same day of termination. In this casethe employee was given 3 weeks notice but was alsomade aware of his termination 3 weeks prior to thatthus giving him effectively 6 weeks to look for al-ternative work. Subsequently he has been paid 2weeks further pay which effectively gives a noticeperiod of 8 weeks.In Leighton the applicant was 55 years old. The ap-plicant is 45 years old thereby providing him with amuch better chance of re employment.The Applicant in Leighton was employed for 10years. Mr Cabrera was employed for half of this time.In Leighton the applicant was a supervisor being paid$1200 per week which is well above the minimumadult wage so he had limited scope to search for al-ternative employment for an equivalent weekly wage.In this case the applicants chances of obtaining em-ployment at the equivalent amount of $420 per weekis much stronger.Finally we note that Leighton employed many morethan 15 people and had “regular participation inmatters of an industrial nature”. The respondent herehas 5 employees and has never been involved in any-thing of this nature over approximately 20 years.”

17 In line with the Rogers case the absence of a redundancypayment is a matter of unfairness in the circumstancesfaced by Mr Cabrera. I find that Mr Cabrera was unfairlydismissed due to the failure to pay him a redundancypayment. The applicant was otherwise fairly dealt withand hence having been made redundant there is no jobfor him. The loss he has suffered is the loss of a fairredundancy payment. Having regard to the fact that he is45 years of age; worked for the respondent for 5 yearsand performed adequately; lacks some proficiency inEnglish (albeit it is clear from the hearing that hisproficiency was adequate to comprehend the proceedings,even though he was aided by an interpreter); has sincehis termination, on his own submission, readily foundemployment at a higher hourly rate; the respondent is asmall employer; and in the absence of any industrystandard apparent in the relevant award I would awardthe applicant a sum equal to one week for every year of


service as a fair redundancy payment. That is a redundancypayment of $2,063.


PARTIES JOSE LUIS CABRERA, APPLICANTv.CLASSIC FASHION ACCESSORIES,RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED MONDAY, 27 AUGUST 2001FILE NO APPLICATION 393 OF 2001CITATION NO. 2001 WAIRC 03628_______________________________________________________________________________

Result Applicant dismissed unfairly as noredundancy paid

RepresentationApplicant Mr J L Cabrera (with the assistance of an

interpreter Ms Galan)Respondent Mr N Benwell_______________________________________________________________________________

Order.HAVING heard Mr J L Cabrera, with the assistance of MsGalan, on his own behalf and Mr N Benwell for the respond-ent, the Commission, pursuant to the powers conferred on itunder the Industrial Relations Act, 1979, hereby—

(1) DECLARES that the applicant, Jose Luis Cabrera,was unfairly dismissed by the respondent on the 2ndday of February 2001.

(2) ORDERS that the respondent shall pay the appli-cant the sum of $2,063.00 as a redundancy payment.

(Sgd.) S. WOOD,[L.S.] Commissioner.


INDUSTRIAL RELATIONS COMMISSION.PARTIES JULIO CEZAR DA SILVA,WEIMIN

QIN, COSMO SANTIC, MARTYN FRY& ANTHONY CHARLES WILKINS,APPLICANTSv.AMELIA & BOSTON WEST PTY LTDTRADING AS AXIS INFORMATIONSYSTEMS, RESPONDENT

CORAM CHIEF COMMISSIONER W SCOLEMAN

DELIVERED THURSDAY 2 AUGUST 2001FILE NO/S APPLICATIONS 267, 272, 278, 279 &

300 OF 2001CITATION NO. 2001 WAIRC 03416_______________________________________________________________________________

Result Application for outstanding contractualentitlements upheld

RepresentationApplicant Mr AC Wilkins on behalf of the applicantsRespondent No appearance_______________________________________________________________________________

Reasons for Decision.1 These five applications under section 29(1)(b)(ii) of the

Industrial Relations Act 1979 were heard together. Theyall involve claims from former employees of Amelia and

Boston West Pty Ltd trading as Axis Information Systemsfor outstanding contractual entitlements not being coveredby an award.

2 The claims under each of the applications are set outbelow—Application 267 of 2001 Julio Cezar DA SILVAOutstanding wages for January and February 2001$2 800.00Accrued annual leave payment $2 283.70Balance of payment in lieu of notice $ 791.67(See Exhibits 1 and 2) $5 875.37 gross

Application 272 of 2001 Wiemin QINOutstanding wages for January and February 2001$2 751.29Accrued annual leave payment $ 759.83(See Exhibits 3 and 4) $3 511.12 gross

Application 278 of 2001 Cosmo SANTICOutstanding wages for Januaryand February 2001 $ 2 997.70Accrued annual leave payment(including loading) $ 9 165.14(See Exhibits 5 and 6) $12 162.84 gross

Application 279 of 2001 Martyn FRYOutstanding wages for January andFebruary 2001 $2 666.66(including travel allowance)Accrued annual leave payment(includes loading) $3 529.91(See Exhibit 12) $6 196.57 gross

Application 300 of 2001 Anthony WILKINSAccrued annual leave payment $731.50 gross(See Exhibit 18)

3 The respondent did not attend the hearing. However, theseapplications had been the subject of investigation by anofficer of the Commission and Mr Magnin, a principal ofthe respondent had attended those discussions. Noticesforwarded to the respondent were not returned to theCommission. Before proceedings commenced on themorning of the 24th July an exhaustive search of theCommission and other courts in the building wasundertaken to locate Mr Magnin as he had been sightedby one of the applicants. Despite this Mr Magnin couldnot be located.

4 The applicants called evidence from Mr Cassir who hadbeen the proprietor of Axis Information Systems up untilDecember 1999 and had been the managing director untilOctober 2000. He had entered into contractualrelationships with those employees who had joined thecompany prior to January 2000 when ownership passedto the present entity and had represented the respondentin securing employment relationships with thoseapplicants who had commenced employment with therespondent company for the present proprietor.

5 Mr Cassir attested to the contractual arrangements enteredinto with the applicants including provision of four weeksannual leave and the leave loading claimed by several ofthe applicants. In the absence of an appearance by therespondent I reject the applications to include annual leaveloading where claims for that entitlement were not madein the first instance. Exhibits 10 and 14 to 16 support theevidence provided by Mr Cassir. I accept Mr Cassir’sevidence as being honest and trustworthy.

6 Each of the applicants attested to their claims in sworntestimony. I do not have any reason to disbelieve theirevidence.

7 The applicants were paid on a monthly basis. Outstandingwages for January and February 2001 and accruedentitlements are claimed within the respective contracts.The respondent failed to pay the full amount of wagesdue and closed the business without notice in February2001.


8 On the evidence presented by each of the applicants theyhave established their entitlements to outstanding benefitsunder their respective contracts of employment. Theorders which follow give effect to this determination.

2001 WAIRC 03450


PARTIES JULIO CEZAR DA SILVA,APPLICANTv.AMELIA & BOSTON WEST PTY LTDTRADING AS AXIS INFORMATIONSYSTEMS PTY LTD, RESPONDENT


DELIVERED WEDNESDAY, 8 AUGUST 2001FILE NO/S APPLICATION 267 OF 2001CITATION NO. 2001 WAIRC 03450_______________________________________________________________________________

Result Claim for outstanding contractualentitlements upheld

RepresentationApplicant Mr AC Wilkins on behalf of the applicantRespondent No appearance_______________________________________________________________________________

Order.HAVING heard Mr AC Wilkins on behalf of the applicant andthere being no appearance by the respondent, and having foundthat the applicant was denied a contractual benefit to whichhe was entitled,

NOW the Commission, pursuant to the powers conferredon it under the Industrial Relations Act, 1979, hereby orders—

1. THAT the Respondent pay to the Applicant the sumof $5 875.37, being the entitlement to outstandingwages, accrued annual leave and the balance of pay-ment in lieu of notice due to the Applicant.

2. THAT the Respondent pay to the Applicant theamount specified at (1) above within 21 days of thedate of this order.

(Sgd.) W.S. COLEMAN,[L.S.] Chief Commissioner.


INDUSTRIAL RELATIONS COMMISSION.PARTIES WEIMIN QIN, APPLICANT

v.AMELIA & BOSTON WEST PTY LTDTRADING AS AXIS INFORMATIONSYSTEMS, RESPONDENT


DELIVERED Wednesday, 8 AUGUST 2001FILE NO/S APPLICATION 272 OF 2001CITATION NO. 2001 WAIRC 03451_______________________________________________________________________________


RepresentationApplicant Mr AC Wilkins in behalf of the applicantRespondent No appearance_______________________________________________________________________________



1. THAT the Respondent pay to the Applicant the sumof $3 511.12, being the entitlement to outstandingwages and accrued annual leave due to the Appli-cant.




INDUSTRIAL RELATIONS COMMISSION.PARTIES COSMO SANTIC, APPLICANT








1. THAT the Respondent pay to the Applicant the sumof $12 162.84, being the entitlement to outstandingwages and accrued annual leave due to the Appli-cant.




INDUSTRIAL RELATIONS COMMISSION.PARTIES MARTYN FRY, APPLICANT



DELIVERED WEDNESDAY, 8 AUGUST 2001FILE NO/S APPLICATION 279 OF 2001CITATION NO. 2001 WAIRC 03453


_______________________________________________________________________________


RepresentationApplicant Mr AC Wilkins in behalf of the applicantRespondent No appearance

_______________________________________________________________________________



1. THAT the Respondent pay to the Applicant the sumof $6 196.57, being the entitlement to outstandingwages including travel allowance and accrued an-nual leave due to the Applicant.




INDUSTRIAL RELATIONS COMMISSION.PARTIES ANTHONY CHARLES WILKINS,

APPLICANTv.AMELIA & BOSTON WEST PTY LTDTRADING AS AXIS INFORMATIONSYSTEMS, RESPONDENT







1. THAT the Respondent pay to the Applicant the sumof $731.50, being the entitlement to accrued annualleave due to the Applicant.




INDUSTRIAL RELATIONS COMMISSION.PARTIES MICHELLE ANDREA COLE

DIGNAM, APPLICANTv.INATURE AUSTRALIA PTY LTD,RESPONDENT


Result Application alleging denied contractualentitlements granted.

RepresentationApplicant Mr D. Moss (as agent)Respondent No appearance_______________________________________________________________________________

Reasons for Decision.(Extemporaneous)

1 I am satisfied that Ms Dignam was employed by therespondent and I am also satisfied in relation to thefollowing matters concerning her claim.

2 I am satisfied that for the period between Monday, 26March 2001 to Wednesday, 11 April 2001, Ms Dignamperformed work for the respondent. That work wasperformed pursuant to a contract of employment the termsof which were the continuation of the previous fixed termcontract which had by then expired.

3 I am satisfied that the terms of Ms Dignam’s employmentcontinued because of the lack of any evidence of anyagreement between the parties to change any of theconditions. It would seem to me that the only practicalconsequence of Ms Dignam continuing to work after theexpiration of the term of the fixed term contract is thatshe continued without a further fixed term. That is, hercontact really became a continuous and ongoing contractof employment.

4 I therefore find that the wage that Ms Dignam was earningat the period that I have indicated was $500.00 per weekand I therefore find that for the period between 26 March2001 to 11 April 2001 that Ms Dignam performed workbut was not paid and is therefore owed the wages thatwere earned between that time at the rate of $500.00 perweek. To that extent therefore I would declare that MsDignam has been denied a benefit under her contract ofemployment being wages for work performed for thatperiod of time.

5 I now turn to what is the second part of Ms Dignam’swages claim. The evidence is that from 11 April 2001Ms Dignam attended a meeting of her work colleagueswhere the news gradually disseminated that therespondent was in trouble and that for the period between11 April 2001 until in fact the termination of heremployment received by facsimile on 19 April 2001, MsDignam was still employed. That is, no steps had beentaken by the respondent to terminate her employment.She had not in any sense sought to terminate heremployment. It is merely that, by virtue of circumstances,she was unable to attend the work premises, they havingbeen closed or locked up for whatever reason. She wasnot contacted by the respondent to perform work in anyother location and the fact remains therefore that between11 April 2001 to 19 April 2001 Ms Dignam did notperform any work.

6 On that basis, I am not of the view that Ms Dignam cansucceed with a claim that she is entitled to be paid wagesas a benefit under her contract of employment if in factwork was not performed.

7 However, it does seem to me to be quite arguable that byvirtue of Ms Dignam’s employment, Ms Dignam had asa benefit under her contract of employment theopportunity to work. There is limited authority to support


such a proposition certainly in relation to persons whomaintain a career by virtue of their reputation, forexample, such as entertainers and so on where it isimportant for them to perform their work in order toestablish a reputation and thus find further work and ithas been held that for such persons the opportunity towork is indeed a benefit under the contract ofemployment. That is not to say that the nature of MsDignam’s employment is of an entertainment nature orthat those circumstances apply. However, it does seem tome to be arguable that whilst a person is employed by anemployer where there is no right in law for an employerto stand down an employee either with or without pay,but in this case without pay, that it is quite a reasonableproposition that such a person is being denied a benefitunder their contract of employment the benefit being theopportunity to earn wages.

8 It does seem to me, that Ms Dignam is able to succeedwith a variation to her claim that Mr Moss has put to mein his submissions and that is that the benefit that hasbeen denied to Ms Dignam is the right to earn wages shehaving been ready, available and willing to do so between11 April 2001 and 19 April 2001 and I am satisfied thatshe should be awarded a monetary equivalent of the wagesshe would have earned between that period ascompensation for the loss of the opportunity to earn them.

9 The contract of employment provided for eight weeks’notice of termination. Ms Dignam was entitled to that asa benefit under her contract and yet she merely receivedthe letter of termination given by Mr Hirschberg and nopayment in lieu. Accordingly, it is a benefit under hercontract of employment which she has been denied. AnOrder will issue paying her that benefit.

10 The next item of the claim is a claim for pro-rata annualleave. I am satisfied from the schedule that has beenprovided, that being exhibit 11, that on the calculationson that schedule, the claim for annual leave is $1,285.00.The issue then arises as to whether or not the period forwhich Ms Dignam did not perform work is service forthe purposes of annual leave. I suspect it is not, and indeedthat seems to be acknowledged in the way the schedulehas broken up the days of her employment in any event.

11 It does seem to be, however, consistent with the reasoningin my earlier decision that Ms Dignam has an entitlementto be compensated for the lost opportunity to provideservice between 11 April 2001 and 19 April 2001 and itwould seem to me that if the purpose of the compensationof Ms Dignam for that matter is to be consistently appliedthen Ms Dignam should not also lose by the lostopportunity to work.

12 It would seem to be therefore that whether Ms Dignam’sservice for annual leave purposes is calculated only up toand including 10 April 2001 and then Ms Dignam pursuescompensation, if that is the correct word, for theopportunity to accrue service for annual leave purposesas an alternate claim on the one hand or whether shepursues the entire claim in relation to pro-rata annual leaveon the other does not seem to me to produce a significantlymaterially different result. It therefore seems to me thatin these circumstances the appropriate Order to issue isto declare that Ms Dignam has been denied a benefit underher contract of employment that being pro-rata annualleave on termination and that being a matter that isprovided for within the contract of employment.

13 Accordingly, the claim having been amended accordingto those calculations it appears to me that it is appropriateto make an Order that the respondent pay Ms Dignamthe amount of $1,285.00 by way of pro-rata annual leavedue upon termination of her employment.

14 The final claim is a matter of superannuation and as Ihave indicated during the course of those proceedingswhile a claim for a superannuation payment that arisesunder the Federal Statute is a claim over which thisCommission has no jurisdiction, here the contract ofemployment makes it clear that the superannuationentitlement is an express provision and therefore I findthat it is a benefit that is due under the contract ofemployment. It seems to me therefore that an appropriate

Order to issue is to require the respondent to pay thesuperannuation benefit due to Ms Dignam in accordancewith the contract of employment and that as I presentlyunderstand it is set out in exhibit 4 and that is that it is tobe a payment made by the respondent to Westpac BusinessSuperannuation on Ms Dignam’s account, she having themembership number which is set out in exhibit 4.


INDUSTRIAL RELATIONS COMMISSION.PARTIES MICHELLE ANDREA COLE

DIGNAM, APPLICANTv.INATURE AUSTRALIA PTY LTD,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED WEDNESDAY, 15 AUGUST 2001FILE NO APPLICATION 900 OF 2001CITATION NO. 2001 WAIRC 03543_______________________________________________________________________________

Result Application alleging denied contractualentitlements granted.

RepresentationApplicant Mr D. Moss (as agent)Respondent No appearance_______________________________________________________________________________

Order.HAVING HEARD Mr D. Moss (as agent) on behalf of theapplicant and there was no appearance on behalf of the re-spondent, the Commission, pursuant to the powers conferredon it under the Industrial Relations Act 1979, hereby—

(A) DECLARES—That Michelle Andrea Cole Dignam has not beenallowed by her employer benefits to which she isentitled under her contract of employment;

(B) ORDERS—(1) That iNature Australia Pty Ltd forthwith pay

Michelle Andrea Cole Dignam—(a) The sum of $1,300.00 by way of un-

paid salary due to her for the period 26March 2001 to 11 April 2001;

(b) The sum of $600.00 by way of pay-ment in lieu of the opportunity to earnwages for the period 12 April 2001 to19 April 2001;

(c) The sum of $1,285.00 by way of pro-rata annual leave entitlements due toher under her contract of employment;

(d) The sum of $4,000.00 by way of pay-ment in lieu of 8 weeks’ notice;

(2) That iNature Australia Pty Ltd forthwith paythe sum of $1,345.00 into Michelle AndreaCole Dignam’s account at Westpac BusinessSuperannuation.




INDUSTRIAL RELATIONS COMMISSION.PARTIES KEITH ROSS GENTRY, APPLICANT

v.COLES MYER LOGISTICS PTY LTD,RESPONDENT

CORAM COMMISSIONER P E SCOTTDELIVERED THURSDAY, 16 AUGUST 2001FILE NO APPLICATION 1300 OF 2000CITATION NO. 2001 WAIRC 03552___________________________________________________________________________

Result Claim of harsh, oppressive and unfairdismissal dismissed

RepresentationApplicant Mr P WinterRespondent Mr A Burnett (of Counsel)___________________________________________________________________________

Reasons for Decision.1 The applicant says that he was harshly, oppressively and

unfairly dismissed from his employment as a store personwith the respondent at its distribution centre, and he seeksreinstatement to a clerical position within the distributioncentre. He says that if the Commission finds thatreinstatement is impracticable then the applicant seeksthe remedy of payment of a contractual benefit of aredundancy payment. He says that he has been maderedundant.

2 The applicant says that following an injury, accepted asbeing a workers’ compensation injury, when he wasundertaking work in his position as a store person in thedistribution centre, he was provided with clerical workas part of his rehabilitation. He says that the respondentmade a decision to retrain him into clerical work in Juneor July 1999 when it was clear that he was unable toreturn to his pre-injury work because of the injury. Hisemployment terminated prior to his rehabilitation beingcomplete. He says that s.84AA of the Workers’Compensation and Rehabilitation Act 1981 (“W C and RAct”) requires that the employer provide him with aclerical position. He says that part of the respondent’sunfair treatment of him is that it failed to provide himwith one of the clerical positions which became vacantduring the time when the respondent must have beenaware that he was not likely to be rehabilitated into thestore person’s duties and that even if he was not fullycompetent to undertake the work, the respondent wasobliged to provide him with appropriate training to ensurethat he could undertake the work.

3 The respondent says that it has done all that couldreasonably be done in assisting the applicant. It says thatit held his position as a store person open for a period oftwo years during which time his prospects of returningto his pre-injury work were not finally determined. It saysthat it has provided him with clerical work not as apermanent position but as part of the rehabilitationprogramme and in an effort to keep him productive for aslong as it possibly could. It denies that it has any obligationto provide him with a clerical position and has not harshly,oppressively or unfairly dismissed him. Further, therespondent says that the applicant was not maderedundant. His store person position was kept availablefor him and its inability to provide him with a clericalposition does not mean that he is redundant.

4 The evidence before the Commission as to the history ofthe applicant’s injury, rehabilitation process andtermination is largely agreed. The facts are that on 7 May1998 the applicant experienced pain in his left shoulderwhile driving a forklift as part of his duties. Initially, hedid not report this as he hoped it would not be more thana short term problem. However, he visited his generalpractitioner, then Dr Goh, who on 3 June 1998, issuedhim with a First Medical Certificate pursuant to the W Cand R Act. On that same day, Ms Noeleen Standley, therespondent’s Human Resource Manager, prepared

instructions to the Manager and supervisors of the areain which the applicant worked and to the applicant, onguidelines for a return to work on alternative duties and alist of alternative duties. The duties included scanningand sorting of stock; gatehouse duties with no manualhandling; painting the gatehouse using his right arm andinvolving no stretching; photocopying for administration;and rack audits.

5 In July 1998, the applicant had a non-work related footinjury which added to the difficulties associated with hisshoulder. Some of the duties allocated to him as alternativeduties proved to be unsatisfactory because of his footproblem.

6 Following a report by Dr Alan Home, an occupationalphysician, alternative duties guidelines were considered,and communications between Ms Standley and otherswithin the respondent’s operations sought to find suitablealternative duties.

7 On 10 September 1998, MMI Insurance advised therespondent that liability for the applicant’s workers’compensation claim had been accepted.

8 In October 1998, the respondent was attempting toincrease the applicant’s duties to get him back to hisnormal duties and requested permission from Dr Ooi, theapplicant’s then general practitioner, for this to occur. Inparticular it sought clarification of his capacity forphysical warehouse duties, the hours he might be able toperform the work, and any lifting and movementrestrictions and the like. Gatehouse and customer serviceduties were being performed by the applicant in an effortto keep him productive, and those duties were undertakenon a temporary basis in the absence of their normaloccupants on leave.

9 At this time the applicant was performing some limitedstores duties combined with the other less physical duties.

10 In November 1998, a rehabilitation provider, Excel SafetyErgonomics Rehabilitation Pty Ltd, through Mr AdrianCarmody, had been appointed to work with the applicantand the respondent to achieve the best prospects for theapplicant’s full return to work. By this time it was alsocontemplated that surgery on the applicant’s shoulder maybe necessary.

11 In a memorandum dated 10 November 1998 to thewarehouse supervisors and to various managementpersonnel, Ms Standley advised of the need for them tobe proactive in looking for meaningful tasks for theapplicant.

12 On 11 December 1998, the applicant had surgery on hisshoulder and did not return to the workplace until March1999.

13 When he returned to work in early March 1999, theapplicant was to do four hours work per day. In April1999, Mr Carmody reported that “Dr Blum (theapplicant’s then general practitioner) is also of the opinionthat Mr Gentry is unlikely to return to the workplacesuccessfully in the longer term if he is required to returnto repetitive manual handling in accordance with his pre-injury duties.” On 30 April 1999, Mr Carmody reportedto Ms Standley that amongst other things, “Mr Gentryattended Mr Tony Jeffries (orthopaedic surgeon) forreview on 20 April 1999. Contact with Mr Gentryfollowing the review establishes that Mr Jeffries is passingthe medical and rehabilitation management back to thegeneral practitioner and he believes that Mr Gentry maynot reach his optimum capacity for a period of twelvemonths post surgery but this has not been ratified inwriting.”

14 On 19 May 1999, Mr Carmody wrote to Dr Blum notingthat amongst other things, “when this case was discussedwith you by telephone on 12 April 1999 it was youropinion that it would be appropriate to permanentlyredeploy Mr Gentry into clerical duties given his age,previous work history and recovery time and I agreed todiscuss this with the employer. He was also reviewed byMr Jeffries on April 1999, and it was his view that weshould allow 12 months recovery time from the date ofsurgery before Mr Gentry will reach his optimum


recovery.” He also reported that the applicant had a setback due to over excursion and that he returned to workfor four hours a day.

15 At this point it seems that Mr Carmody was of the viewthat “vocational rehabilitation could be very prolongedif we aimed to return Mr Gentry to warehouse floor duties.Furthermore, it would not be in the best interest of eitherparty if we should pursue this goal given the potentiallyhigh risk of aggravation to the left or right shoulderpathology. As his current duties will not transpire into apermanent position I advise that it would be a good timeto start looking for a permanent clerical position withinthe firm. This was discussed with Mr Gentry in theworkplace on 17 May 1999. While he has some initialfear of moving from this current workplace, he could seethat there could be some short term and long term benefits.Particularly, as he is not in a position to choose earlyretirement, and it is likely he will achieve a capacity tocarry out full time clerical work.”

16 On 18 May 1999, the respondent advised Mr Carmodythat a short term clerical work trial would be availablefrom Monday, 24 May 1999 for a period of three weeks,working in the Coles Distribution Centre. Mr Carmodynoted that, “this is seen as a good opportunity to allowthe applicant to accommodate redeployment in a gradualmanner.”

17 The applicant undertook this work trial and the reportsfrom his workplace supervisors noted his experience, hisdiligence and his good attitude. It was anticipated thatthe work trial and his approach to it would provide himwith a reference for any future position that he mightseek.

18 In July 1999, Excel, the rehabilitation provider, assistedthe applicant to prepare a resume. This was to be used byMs Standley in attempting to help the applicant to findanother job or a work trial at another site within the ColesMyer group of companies. Ms Standley was to attend ameeting of Human Resource Managers and OccupationalHealth and Safety Co-ordinators from other companieswithin the group and the work trials had already beenarranged for four weeks and four days for some clericalwork at the Coles Canning Vale Warehouse.

19 By August 1999 no other viable work opportunities hadarisen.

20 In September a number of things occurred. On 9September 1999, Mr Carmody noted in a report to MsLeanne Edwardes of MMI Insurance that “unfortunatelyin-house job canvassing has not been successful and thishas been followed up over the past two months.” It wasnoted that by this time the applicant’s progress had largelyplateaued. On 22 September 1999, after being reviewedby Mr Jeffries, the applicant met with Mr Carmody andDr Blum. Dr Blum expressed the view that in the longerterm, the manual handling stores duties previouslyundertaken by the applicant would all be inappropriatein the long term, and advised that the applicant’s optionsfor outside employment would be extremely limited givenhis age and multiple injury history.

21 On 24 September 1999, there was a meeting between therespondent and the applicant including the applicant’sunion delegate Mr Trevor Saunders. It was noted that therehabilitation funds were soon to be exhausted. At thismeeting, the applicant was advised that there was a clericalposition in Customer Service available for a period of 6months but this would not be an on going position as hewould be relieving other workers on leave.

22 In respect of the six months temporary work, Mr Carmodynoted in his report of 11 November 1999 to Ms Edwardesof MMI Insurance that at this meeting the applicant was“aware of his position with the current legislation in thathis previous work position can be filled after a period oftwelve months if the employee has not returned to pre-injury duties. Mr Gentry resolved to accept the offer fromthe employer and he will negotiate his position thereafterin the hope that a suitable position will come up withinthe Coles/Myer Group at that time.” In his evidence, theapplicant acknowledged that this was discussed with him.

23 On 13 October 1999, Dr Blum advised Ms Standley in adiscussion that “Keith will never get back to warehousework”.

24 For 6 months commencing in October 1999, the applicantperformed clerical work in the temporary position inCustomer Service in place of other employees on leave.This was to end in March 2000 when the position wouldbe reviewed. The applicant initially thought that thiswould mean that his employment would automaticallyterminate at the conclusion of the temporary work but hewas advised that the situation would be reviewed at thatpoint.

25 The evidence indicates that from December 1999, theapplicant experienced increased pain in his left shoulderand the prospect of further surgery was raised. Thissurgery took place on 27 March 2000. It was anticipatedthat after the further surgery, it would be a further 4months before the applicant would reach “maximalmedical recovery”. At that time it was reported that itwas not possible to determine the extent of the permanentdisability.

26 In February 2000, Dr Alan Home said that it was unlikelythat the applicant would return to his pre-accident duties.The applicant was unfit to return to work after the surgery.

27 By 16 June 2000, Mr Peter Campbell, the applicant’sorthopaedic surgeon, reported that “I am confident thatwith a due passage of time (the applicant) should be ableto resume all normal activities both work andrecreational”, and on 31 July 2000 that “I do not thinkKeith is going to have any long term disabilities as a resultof this surgery. Keith’s work capacity should not benegatively affected by the injury or this surgery.”

28 However, it is now clear from all other evidence that MrCampbell’s opinion was overly optimistic. The applicanthas not recovered and at the time of the hearing there wasno prospect of his returning to stores duties. He continuedto receive workers’ compensation payments and there wasno indication that these payments would cease in the nearfuture.

29 In July 2000, there was a discussion between Ms Standleyand Dr Blum about the applicant’s condition andprospects. During the whole period since he first wenton workers’ compensation, the applicant’s warehousestore person position had been kept open for him. Hewas clearly unable to return to that position. Dr Blumsaid to Ms Standley that the applicant was able to comeback to work on very limited hours and duties. MsStandley discussed the situation with management andlooked at all options across the distribution centre andfound no job, temporary or permanent, available for theapplicant within his capacity. The situation was discussedwith the insurer and with the respondent’s head officeand on 28 July 2000, the respondent met with theapplicant and his representative. The applicant wasadvised that there was no further work available for him,that his position had been kept open but that this was notable to continue indefinitely. In those circumstances, hisemployment was terminated. As noted, at the time ofhearing, almost 12 months later, the applicant was still inreceipt of workers’ compensation payments and there wasno impending cessation of those payments.

30 The Commission has heard evidence from the applicant;Dr Blum, the applicant’s general practitioner after theapplicant had seen Dr Goh and Dr Ooi; Mr AdrianCarmody, the applicant’s rehabilitation provider; MsBeverly Anderson, a former employee of MyerDistribution Centre and a work colleague of the applicantfor some period of time; Joseph Bullock, Secretary ofthe Shop, Distributive and Allied Employees Associationand a number of other unions; Noeleen Margaret Standley,the respondent’s Human Resources Manager; andChristopher John Sparks, the Distribution Centre Managerfor the respondent.

31 I have considered the evidence of all these witnesses,having observed them as they gave their evidence. I amsatisfied that from the perspective of each of them, theyhave given evidence to the best of their knowledge andhave been honest and forthright in that evidence. I have


no cause to disbelieve the truthfulness of any of thatevidence except, in respect of opinion evidence of MsBeverly Anderson where she purported to know therequirements of particular jobs available during the courseof the applicant’s injury and rehabilitation, and to knowthe applicant’s skills. In particular her evidence regardingher knowledge of a wages clerk position because she waslocated in the office next door to a wages clerk, wasquestionable. I have also taken into account the multitudeof medical certificates and reports, and other evidencebefore the Commission.

32 I have considerable sympathy for the applicant’s situation.He is a person in the last years of his working life and yetis unable to work in the capacity in which he was engagedby the respondent because of work related injuryassociated with a degenerative condition. He has beenable to perform some clerical work during the course ofhis rehabilitation process and has received commentswhich reflect well on his diligence and enthusiasm forthe work.

33 Having said that though, the question which needs to beanswered is whether the respondent has unfairly exercisedits lawful right to terminate his employment in such away as to warrant the intervention of the Commission inthat termination.

34 Hindsight is a wonderful thing by which all matters canbe resolved. In hindsight it is possible to assess that theapplicant would never have been able to return to his preinjury duties as a store person. However, none of theparties had the benefit of hindsight during the course oftwo years during which the applicant was undergoingsurgery on two occasions, physiotherapy, regulartreatment and medication, and was performing a rangeof alternative duties to test his capacity to undertake thoseduties and to provide him with meaningful work. He wasprovided with a work trial and then, with his clearknowledge and understanding, almost 18 months afterhis injury, he was provided with 6 months work to replaceanother clerical person who was absent on leave fromthe Customer Service area. It was known to him and heacknowledged in his evidence that this position was onlyever to be temporary and that the respondent wouldexamine his situation and the work availability at the endof that period.

35 An examination of the applicant’s condition accordingto medical and rehabilitation reports available to theemployer throughout a period of over two years showsthat there was no consistent line through those reports.Only Dr Blum’s view contains the same theme—that theapplicant should not and could not return to his pre injuryduties. Other reports before the respondent make thepicture far less clear. Both Dr Blum and Mr Carmodyhad particular views about the applicant’s future workcapacity. Mr Carmody’s view was based on Dr Blum’sadvice to him and Mr Carmody acknowledged that hedoes not investigate these matters himself, he must relyon the reports of others. Dr Blum’s first assessment,reported by Mr Carmody on 13 April 1999 was—

“Dr Blum is also of the opinion that Mr Gentry isunlikely to return to the work force successfully inthe longer term if he is required to return to repeti-tive manual handling in accordance with his preinjury duties.”

36 I note that this comment is far from categorical and refersto “returning to the work force in the longer term” ifcertain things are done. (my emphasis) On 30 April MrCarmody reported Mr Tony Jeffries’s view—

“He believes that Mr Gentry may not reach his opti-mum capacity for a period of twelve months postsurgery, but this has not been ratified in writing asyet.”

37 On 19 May, in a report to Dr Blum, Mr Carmody noted—

“He was also reviewed by Mr Jeffries on 19 Apriland it was his view that we should allow twelvemonths recovery time from the date of surgery be-fore Mr Gentry will reach his optimum recovery.”

38 Therefore, in May 1999, twelve months after the injury,the information available to the respondent from theapplicant’s orthopaedic surgeon was that the applicantwould not reach his maximum capacity or optimumrecovery following surgery, for a further 5 months.

39 Mr Carmody also noted in his report of 19 May 1999,the discussions he had with the employer regarding theapplicant’s vocational direction. He noted that “as hiscurrent duties will not transpire into a permanent positionI advise that it would be a good time to start looking fora permanent clerical position within the firm.” However,at this time the applicant’s maximum capacity was notknown. In any event, at this point the respondent hadidentified alternative duties for the applicant, wasproviding him with opportunities for working within hiscapacity, and was actively looking for opportunities forhim.

40 By September 1999, Mr Carmody was reporting that theapplicant’s “progress has largely plateaued”.

41 By February 2000, Mr Jefferies wrote that if certaintreatment did not settle the applicant’s shoulder thenfurther surgery might be necessary and this came to passon 27 March 2000 when Mr Peter Campbell undertookthat surgery. It was anticipated that it would be a furtherfour months before he could reach “maximal medicalrecovery”, as indicated earlier. As noted earlier too, on16 June 2000 and 31 July 2000 and Mr Peter Campbell,the orthopaedic surgeon, made reports about theapplicant’s long term resumption of “all normal activitiesboth work and recreational” and that his “work capacityshould not be negatively effected by the injury or thissurgery.” It is now clear that his view at that time wasincorrect.

42 It is fair to say then that while Dr Blum’s view, apparentlyformed around April 1999, may have been correct, withhindsight, the employer had conflicting informationwhich meant that the situation was far from clear orresolved. However, in July 2000 Dr Blum spoke to MsStandley about the applicant returning to work onrestricted alternative duties following his secondoperation. At this time, the company examined the workavailable and considered its options. There was no suitablework for the applicant. The respondent had kept theapplicant’s job as store person open for two years and itwas now clear, notwithstanding Mr Peter Campbell’sincorrectly optimistic reports, that the applicant wouldnot return to his pre injury duties and is still on workers’compensation.

43 In those circumstances, having provided the applicantwith alternate duties for the purposes of rehabilitation,seeking out and obtaining the work trial external of itsown operations, and then providing 6 months temporaryclerical work in the Customer Services area which expiredon the return of the incumbent from leave, the respondenthad no further work for the applicant. It was not obligedto find or create a position for him, and he could notreturn to his pre injury store person’s position which untilthen had been held open for him. Accordingly, I amsatisfied that there is no unfairness to the applicant inthat he was not able to perform his job and the respondenthad no other work for him. The temporary work providedto him was no longer available. The respondent has beenreasonable and has made real efforts on behalf of theapplicant. It has not treated him in a callous orinconsiderate manner.

44 As Mr Carmody said in his evidence, rehabilitation isnot always successful. I am satisfied that reasonable effortswere made by the respondent to rehabilitate the applicantinto a job. Although his particular attention may not havebeen drawn to available clerical positions as they becamevacant, notices were placed on notice boards in theapplicant’s workplace and he could have applied for themhad he so chosen. I note that in September 1999, theapplicant clearly knew and understood that there wasnothing guaranteed for him past the six months temporarycustomer service clerical work. He could have madeappropriate enquiries during that time. There is noobligation on an employer to advise an employee of


available jobs. In any event as noted above, and as notedon a number of occasions within the evidence, availablepositions were posted on the notice board and theapplicant would have had access to those except of coursewhen he absent from the workplace. Mr Carmody notedin his evidence that there is no standard practice amongstemployers about notifying employees on workers’compensation of positions that may be available. Further,I accept the evidence of Ms Standley as to the reasonwhy she did not, as a general practice, notify employeeson workers’ compensation of positions available.However, in the circumstances, Ms Standley on behalf ofthe respondent made considerable efforts to assist theapplicant in finding alternate work.

45 Ms Standley made efforts to have other human resourcesmanagers and others within the companies associated withthe respondent made aware of the applicant’s availability.

46 As to the suggestion that the respondent has breacheds.84AA of the W C and R Act, I note that these are notproceedings for the enforcement of that Act. However, asBeech C noted in Hoffman v Western AustralianAboriginal Media Association (1999) (76 WAIG 3718)the provisions of that Act can be a matter taken intoaccount by the Commission. Section 84AA of the W Cand R Act provides—“84AA.—Employer to keep position available duringworker’s incapacity(1) Where a worker who has been incapacitated by dis-

ability attains partial or total capacity for work inthe 12 months from the day the worker becomesentitled to receive weekly payments of compensa-tion from the employer, the employer shall provideto the worker—

(a) the position the worker held immediately be-fore that day if it is reasonably practicable toprovide that position to the worker; or

(b) if the position is not available, or if the workerdoes not have the capacity to work in thatposition, a position—

(i) for which the worker is qualified; and(ii) that the worker is capable of perform-

ing,most comparable in status and pay to theposition mentioned in paragraph (a).Penalty: $5 000.

(2) The requirement to provide a position mentioned insubsection (1)(a) or (b) does not apply if the em-ployer proves that the worker was dismissed on theground of serious or wilful misconduct.

(3) Where, immediately before the day mentioned insubsection (1), the worker was acting in, or perform-ing on a temporary basis the duties of, the positionmentioned in paragraph (a) of that subsection, thatsubsection applies only in respect of the position heldby the worker before taking the acting or temporaryposition.

(4) For the purpose of calculating the 12 months men-tioned in subsection (1), any period of total capacityfor work is not to be included.

[Section 84AA inserted by No. 48 of 1993 s.39.]”47 That section of the Act is to be read as a whole and in

context. As Beech C noted—“It requires the employer to hold the employee’s jobopen for 12 months while the employee is in receiptof worker’s compensation, and if the absence is lessthan 12 months then they are able to return to work.”

48 As Mr Burnett, for the respondent, noted, the provisionin the W C and R Act modifies the common law offrustration in that regard. The applicant’s period ofincapacity for his substantive position lasted at least twoyears and was still ongoing at the time of the hearing. Itis never been my understanding that the W C and R Actrequires an employer to provide to an incapacitatedemployee an alternative position where no position withinhis capacity exists. Nor is the employer required to create

a position beyond its operational requirements. It is notrequired to restructure other positions and to remove andreallocate duties for which the employee is fit andqualified. It is not required to train an employee in otherskills to enable the employee to obtain other work. It isoften the case, though, that as part of the rehabilitationprocess, an employer will make up a workload bygrouping together tasks and duties for the purpose ofproviding work for a period to allow rehabilitation to bepursued. This is what has occurred in the case of theapplicant’s clerical work in the time since his injury. Inaddition, the applicant relieved others on leave in areasof his capacity and ability.

49 In those circumstances, I am not satisfied that any conducton the part of the employer in respect of its obligationsunder the W C and R Act, where that is relevant, hascontributed to any unfairness to the applicant.

50 As to the claim by the applicant that he was maderedundant, it was very clear that he was not. Hissubstantive position was held open for two years. Hisclerical duties were only ever for rehabilitation purposesand were temporary. This was known to the applicant. Atthe time of the termination, the last work performed byhim in the Customer Services area was not redundant inthat it was no longer required to be done. On the contrary,the incumbent had returned from leave.

51 In all of these circumstances, I am not satisfied that theapplicant was harshly, oppressively or unfairly dismissedand he is not owed redundancy pay.

52 As to the question of notice, the applicant was unfit forwork at the time of termination of employment. He wasunable to perform work. He is not entitled to pay in lieuof notice in those circumstances. In any event, hecontinued to receive workers’ compensation payments andwas receiving them at the time of the hearing with noindication that they would be discontinued in the nearfuture. Had he been paid in lieu of notice for the periodduring which he was unfit, the applicant would havereceived a double amount of pay, being workers’compensation together with pay in lieu of notice for thesame period of time. This is not intended to be theapplication of workers’ compensation payments.

53 There is the matter of whether or not the applicant toldMs Standley that he did not want part-time work as partof his rehabilitation. There is conflict in the evidence inthat regard. If there had been some misunderstandingbetween Ms Standley and the applicant over that matter,in the circumstances it has not been demonstrated that itconstituted unfairness to the applicant. I make no findingsas to whether or not this was conveyed to Ms Standley,however in the scheme of things I am not satisfied that itconstitutes a matter upon which this matter would turn.

54 As to whether there was any procedural unfairness in themanner in which the termination took place, fromSeptember 1999 until March 2000, the applicant knewthat at the end of that temporary work the respondentwould have to review his situation and that there was noguarantee of further work for him. He was invited to bringhis union representative to the meeting at which hisemployment was terminated and there appears to havebeen considerable discussion. I am not satisfied that therehas been any procedural flaw in the process adopted inbringing about his termination of employment. However,if I am wrong in that matter then I am not satisfied that itwould effect the overall position in respect of histermination given the lengths to which the employer hasgone in attempting to accommodate the applicant’scircumstances.

55 In all of the circumstances the application ought to bedismissed.



INDUSTRIAL RELATIONS COMMISSION.PARTIES KEITH ROSS GENTRY, APPLICANT

v.COLES MYER LOGISTICS PTY LTD,RESPONDENT

CORAM COMMISSIONER P E SCOTTDELIVERED THURSDAY, 16 AUGUST 2001FILE NO APPLICATION 1300 OF 2000CITATION NO. 2001 WAIRC 03553___________________________________________________________________________

Result Claim of harsh, oppressive and unfairdismissal dismissed

___________________________________________________________________________

Order.HAVING heard Mr P Winter on behalf of the applicant andMr A Burnett (of Counsel) on behalf of the respondent, theCommission, pursuant to the powers conferred on it underthe Industrial Relations Act 1979, hereby orders—

THAT this application be, and is hereby dismissed.(Sgd.) P.E. SCOTT,



INDUSTRIAL RELATIONS COMMISSION.PARTIES JODI ANNE HARDING, APPLICANT

v.THE CAFFEY FAMILY TRUSTTRADING AS THE PHOENIXPHARMACY, RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED WEDNESDAY, 5 SEPTEMBER 2001FILE NO/S APPLICATION 363 OF 2001CITATION NO. 2001 WAIRC 03683_________________________________________________________________________

Result Application dismissed.RepresentationApplicant Ms J Harding in personRespondent Mr D Howlett of counsel_________________________________________________________________________

Reasons for Decision.1. This is a claim by the applicant pursuant to s 29(1)(b)(i)

of the Industrial Relations Act 1979 (“the Act”) that shewas unfairly dismissed by the respondent on or about 14February 2001.

2. A preliminary issue was raised by counsel for therespondent, that being whether the applicant wasdismissed to found jurisdiction in the Commission toentertain the applicant’s claim.

Facts3. The facts are relatively straightforward and as the

proceedings unfolded, were not largely in contest.4. The applicant had been employed as a pharmacy assistant

at the Phoenix Pharmacy for about two years, with aboutthe latter six months of her employment being with therespondent, which had acquired the business.

5. The events leading up to the applicant’s dismissal can bebriefly stated. On or about 13 February 2001, the applicantwas serving a customer involving the collection of threesets of photographs that had been developed. Theapplicant testified that on this day, she was involved insome staff training. The customer, a person she knew,came to collect the photographs. The customer was with

a friend. The applicant said she took a bundle of envelopesfor the customer and gave them to him. She said that shedid not realise there were three envelopes of photos ratherthan two. The customer was inspecting the photographsat the counter. The applicant said that she then rang up asale for two envelopes of photographs and not three thatwere actually involved. The applicant testified that whenthis was brought to her attention, she left the store, locatedthe customer, obtained the money from him and returnedto ring up the sale on the till.

6. Ms Jodie Maloney, a supervising pharmacy assistant,called by the respondent, said that she was present at thetime of this incident. She testified that she saw theapplicant serve the customer, a known friend of theapplicant. Ms Maloney said she noticed that the sale rungup on the cash register was for the sum of $17.90, thatbeing two envelopes of photographs at $8.95 each. MsMaloney could not see how many envelopes wereinvolved, as they had been placed into a plastic bag andthe applicant’s hands were covering the bag. Ms Maloneyhad some suspicions about this transaction. She offeredto take over the sale so the applicant could return to thein-store training then being conducted. The applicantrefused this request.

7. After advising the applicant that she should remove thebottoms of the envelopes to take advantage of apromotional offer by the developer, she noticed that therewere three sets of photographs in the bag. The applicantripped off the bottom slip from one of the envelopes andshortly after, Ms Maloney saw the applicant tear off theother two envelope bottoms and then give the envelopesto the customer, which Ms Maloney said she did quickly.

8. Being suspicious of this, Ms Maloney then checked thetabs placed in the developer’s promotional box, andretrieved three cut-off envelope tabs in sequentialnumerical order. This was reported to the pharmacymanager, Ms Eldon. Ms Maloney testified that she toldMs Eldon what had occurred and that the applicant hadsold her friend three sets of photographs but only appearedto have charged for two. Ms Eldon, also called to giveevidence, testified that she then approached the applicantand asked her about the transaction. She said that theapplicant initially told her that there were only two setsof photographs. Ms Eldon then produced the threeenvelope slips in response to which, the applicant saidthat one was already there previously. Ms Eldon repliedthat the three sets of photographs had all been receivedby the respondent pharmacy that day, to which theapplicant replied that the customer had paid for one roleof film the prior week, and was picking it up that dayalso.

9. It was Ms Eldon’s evidence that she told the applicantthat as the numbers on the slips were consecutive, theymust have been received that day, and this meant that thethree films were lodged for processing at the same time,because of the sequential numbering. Copies of the slipsand their corresponding processing numbers were inevidence.

10. Ms Eldon testified that the applicant then said, withoutlooking her in the eye, that she had made a mistake andthat she would pay for it herself. A short time later, MsEldon noticed the applicant leaving the pharmacy, sayingshe was going to the toilet and took the key. Some timelater, the applicant returned, said she had found thecustomer and produced the balance of the money. MsMaloney was standing in the dispensary at the time ofthe conversation between the applicant and Ms Eldon andsaid she heard and saw the events. She generallyconfirmed in her evidence, what Ms Eldon had said.

11. As a result of what they had seen, and by inference, theirrefusal to accept the applicant’s explanation, contact wasmade with the proprietor, Mr Caffey. This contact wasmade in the context on the evidence, of other concernsabout the applicant’s honesty and performance, the subjectof previous oral and written warnings to the applicant,also in evidence.


12. Ms Eldon said she was very angry with the applicant andexplained the situation to Mr Caffey. She testified thatshe was certain there had been no mistake and that theapplicant had intended her conduct. Ms Eldon also toldMr Caffey about the applicant’s previous warnings fornot following the customer discount policy and otherperformance issues, that had been raised with her. MrCaffey advised Ms Eldon that he would deal with thematter.

13. The next morning on 14 February 2001, Mr Caffeytelephoned the applicant on her mobile telephone. Theapplicant was driving to work and pulled over to speakwith Mr Caffey. Mr Caffey said he had been advised ofthe events on the day previous regarding the photographs,and he had given her every opportunity to change herways. He said he could no longer tolerate her dishonesty.He asked the applicant to explain what had happened.The applicant said that the photos had been paid for so itwas not theft. Mr Caffey did not agree. He indicated tothe applicant in this conversation that he would give hertwo choices. The first choice was that she could resignand if she chose to, he would pay her entitlementsamounting to about three weeks wages. The applicant’sevidence was that she understood that she would receivea cheque for three weeks wages.

14. The other option presented to the applicant was that hewould report her conduct to the police, she would becharged with theft, and would be dismissed. Theapplicant’s evidence was that she was not concerned aboutthe police being raised in the discussion as she said shehad not stolen anything. Mr Caffey testified that when heasked the applicant which option she wanted the applicantlaughed and said she would resign. The applicant did notattend the pharmacy that day. Mr Caffey said that theapplicant did not seem emotional or upset at the end oftheir telephone conversation. The applicant said that shewas and was crying as she drove back to her home.

15. The next day, on 15 February 2001, the applicant attendedthe respondent pharmacy to collect her cheque. She sawMs Eldon. Ms Eldon, who had been previously informedby Mr Caffey that the applicant had resigned, requestedthe applicant’s letter of resignation. The applicant toldher she did not know what to write. Ms Eldon testifiedthat she said to the applicant to write that she resignedfrom the pharmacy, unless she had anything else to say.She gave the applicant some paper and a pen followingwhich, the applicant wrote out her letter of resignationand was given a cheque. When opening the envelopecontaining the cheque, the applicant saw that the chequewas not for the amount agreed. Apparently, the applicanthad less annual leave entitlements than Mr Caffeyoriginally thought. A telephone conversation then tookplace between the applicant and Mr Caffey, where aftersome discussions, Mr Caffey agreed to adjust the chequeto include the additional three weeks pay. A fresh chequewas then drawn and given to the applicant.

16. Following the new cheque being given to the applicant,both Ms Eldon and Ms Maloney testified that the applicantcreated somewhat of a scene by saying in a loud voice asshe was leaving the pharmacy, that she was not a thief;Mr Caffey had not heard the last of this; and she wouldtake the matter further.

17. Ms Eldon telephoned Mr Caffey to report on what hadoccurred. In light of this, he immediately telephoned theapplicant to ask her what was going on as he thoughtthere was an agreement. The applicant continued to denyshe had stolen anything. Mr Caffey requested the applicantto fax him a letter acknowledging that she had receivedthe cheque and that this finalised all matters between them.He said that if she did not do this then he would cancelthe cheque. Mr Caffey testified that the applicant agreedto this. Shortly thereafter, Mr Caffey received a furthertelephone call from the applicant, advising that she wouldonly write such a letter if she could cash the cheque first.Mr Caffey responded by saying words to the effect thathe “was finished playing games and not to botherpresenting the cheque because he would be cancelling itthe next day”. This apparently occurred.

Findings and Conclusions18. Whether an employee has been dismissed for the purposes

of attracting the Commission’s jurisdiction in matters ofthis kind depends on the facts. There needs to be aconclusion on the facts that in the case of a resignation,the employee had no real choice but to resign: A-G vWestern Australian Prison Officers’ Union of Workers(1995) 75 WAIG 3166; Mohazab v Dick Smith Electronics(No 2) (1995) 62 IR 200. Some reference was made bycounsel for the respondent to a decision of Beech C inDyer v Solahart Industries Pty Ltd (1998) 78 WAIG 745,in which Beech C concluded, in relying on PrisonOfficers’, that cases of “resign or be dismissed” andbreaches by an employer of the implied duty of being agood and considerate employer, will be held to be“constructive dismissals”. With respect, I disagree. Inmy opinion, whether such will be the case depends onthe facts. It is to be noted that Rowland J, (with whomKennedy and Anderson JJ agreed) in Prison Officers’,observed at 3169 that whether or not a “constructivedismissal” falls within the category of an unfair dismissalfor the purposes of the Commission’s jurisdiction, willturn on the facts of the case. His Honour further observedat 3169—

“This case, it seems to me, falls into the category ofcase which is usually described as a “resign or befired” type of case. That type of case will usually, ifit involves improper conduct, at common law, causethe resignation to be voided so that there is in factno dismissal or termination of employment.”

19. There may be cases in which there is a request for aresignation accompanied initially by a threat of dismissal,but other events intervene, such as negotiation on termsfor a resignation. Depending on the circumstances,although such a case may be seen as a “resign or be fired”case at first blush, in reality, it may well be open toconclude that it was the intervening event of thenegotiations that then actuated the resignation, and notany threat of dismissal itself.

20. In my opinion, having regard to the totality of the evidencein this case, it could not reasonably be said that theapplicant’s decision to resign in the circumstances inwhich it occurred, was truly at her own initiative. Therewas no real alternative because the respondent made itplain that she was going to be dismissed summarily andthe police would be involved and I find accordingly. Therewere therefore two elements involved in this case, thethreat of the police being involved, and the threat ofsummary dismissal. There was no offer by the respondentfor the applicant to have time to consider her position orto get advice. There was no negotiation as to the position.The respondent did not want the applicant back on thepremises working. I find accordingly. In my opinion, thiscase invokes the principles discussed in the PrisonOfficers’ case.

21. Counsel for the respondent also submitted that theapplicant’s contract of employment came to an endwithout any action by the employer, because of theapplicant’s repudiation of the contract of employment. Iam not persuaded by this submission. The contemporarystate of the authorities in the Australian context, stronglypoints to the adoption of the “elective” approach torepudiation of contracts of employment, and not the“automatic” approach. That is, as with the repudiationof any contract, the innocent party has two options, theybeing to accept the repudiation and take steps to bringthe contract to an end, or, to affirm the contract. Thecontract does not automatically come to an end on therepudiation: See generally Macken, McCarry andSappideen’s The Law of Employment 4th Ed at pp215-219 and the authorities there cited.

22. In this case, the respondent, in light of what it consideredto be the applicant’s repudiation of the contract ofemployment by her misconduct, took steps to bring it toan end, thus accepting the repudiation.

23. I therefore conclude that the applicant was dismissed. Iam also of the view that in light of the applicant leavingthe employment of the respondent effectively


immediately, and not being paid any of her accruedentitlements, that the dismissal should be regarded assummary in nature. So characterised, the respondent bearsthe evidential burden of establishing the conduct on whichit relies, to justify the summary dismissal: NewmontAustralia Ltd v Australian Workers Union (1988) 68WAIG 677.

24. In the alternative, even if it could be said that the applicanttruly resigned, it was clear on the evidence that theresignation was procured, at least in part, based upon MrCaffey’s representation to the applicant that she wouldbe paid three weeks wages. That was certainly theapplicant’s understanding of the position. In cancellingthe cheque, the respondent repudiated that agreement. Ido not think it open for the respondent to now rely uponan agreement, in circumstances in which it itself hasrepudiated one of its terms. It would be, in my opinion,contrary to equity and good conscience for it to do so.

25. However, having concluded that the respondent dismissedthe applicant, I am far from persuaded that the dismissalwas, in all of the circumstances, harsh, oppressive andunfair. I accept the respondent’s evidence in relation tothe various performance and conduct issues dealt with inthe evidence of Ms Eldon. Indeed, these were largelyadmitted by the applicant, to her credit. These incidentsincluded an occasion of deliberately lying to therespondent about the use of the respondent’s staff discountpolicy. The applicant received two written warnings aboutperformance and conduct issues. Moreover, I ampersuaded on the balance of probabilities, that in relationto the photographs incident, the respondent had agenuinely held belief, based on reasonable grounds thatbeing the direct observation of the incident, that theconduct complained of actually occurred: Bi-Lo Pty Ltdv Hooper (1992) SAIR 342; Sangwin v Imogen Pty Ltd(1996) 40 AILR at 3-388.

26. Nor am I persuaded that the applicant has been deniedprocedural fairness in relation to her summary dismissal:Byrne v Australian Airlines Ltd (1995) 61 IR 32 at 43.

27. Accordingly, the application must be dismissed and I soorder.


INDUSTRIAL RELATIONS COMMISSION.PARTIES JODI ANNE HARDING, APPLICANT

v.THE CAFFEY FAMILY TRUSTTRADING AS THE PHOENIXPHARMACY, RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED WEDNESDAY, 5 SEPTEMBER 2001FILE NO/S APPLICATION 363 OF 2001CITATION NO. 2001 WAIRC 03682_______________________________________________________________________________

Result Application dismissed.RepresentationApplicant Ms J Harding in personRespondent Mr D Howlett of counsel_______________________________________________________________________________

Order.HAVING heard Ms J Harding on her own behalf and Mr DHowlett of counsel on behalf of the respondent, the Commis-sion, pursuant to the powers conferred on it under the IndustrialRelations Act, 1979, hereby orders—

THAT the application be and is hereby dismissed.(Sgd.) S.J. KENNER,



INDUSTRIAL RELATIONS COMMISSION.PARTIES CHRISTINE JAMIESON, APPLICANT

v.JADEBAY CORPORATION T/A EZI-GRO ORCHIDS, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED WEDNESDAY, 15 AUGUST 2001FILE NO APPLICATION 117 OF 2001CITATION NO. 2001 WAIRC 03538_______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mrs C JamiesonRespondent Mr P Brunner (of Counsel)_______________________________________________________________________________

Reasons for Decision.1 Mrs Christine Zephyr Jamieson applied to the

Commission on 17 January 2001 for an order pursuantto section 29(1)(b)(i) of the Industrial Relations Act, 1979(the Act) on the grounds that she was dismissed unfairlyfrom her employment with Jadebay Corporation t/a Ezi-Gro Orchids on 22 December 2000. The applicant saysshe commenced her employment with the company on23 May 2000 in the position of nursery hand. There wasno written contract of employment. The employmentarrangements were worked out between Mr Kevin Butler,the owner of the nursery, and Mrs Jamieson.

2 Mrs Jamieson says that she was paid $12.50 per hourand worked an average of 22.5 hours per week onMonday, Wednesday and Friday each week. She alsoworked an additional seven hours each week on Saturdaysand was paid, she says, $120 in cash for the Saturdaywork. Mrs Jamieson did not seek reinstatement to herjob and instead sought compensation in the amount of$6,339.

3 The terms of Mrs Jamieson’s claim were succinctly laidout in her original application. It states as follows—

“I was employed by Mr Butler on the verbal under-standing that I could have a full time job if there wasenough money. An advertisement was placed in thenewspaper and he employed a 39 year old womanwith no experience. I had no knowledge of the ad-vertisement and at the time I was employed as casual.Mr Butler employed me because I am the Presidentof the Cymbidium Club of WA. He wanted theCymbidium club to host a national show and to thebest of my knowledge, thought if he employed mewith the promise of full time employment I wouldhave the best interest of the orchid nursery at heart.The members of the club decided against the showand Mr Butler wrote two letters of complaint, oneattacking me personally. Not content with that at themeeting on the 7th of December he attacked me andtried to discredit me. I defended myself at the meet-ing and on the 9th of December I was told that myjob would finish around Christmas time. My em-ployment was terminated on the 22nd of December.It is very hard to find employment at this time of theyear. I was the only staff member willing to work onSaturdays and Mr Butler was very happy that I did.There was never any criticism of my work in thewhole time I was employed”.

4 Put simply Mrs Jamieson alleges that Mr Butler employedher because she says, as President of the Cymbidium club,he thought she was in a good position to secure a nationalshow which would have been, she says, of benefit to hisnursery financially. She alleges that when it became clearthat the national show would not occur, Mr Butler advisedher that her job would finish around Christmas time.

5 The respondent in reply denies the allegations made bythe applicant and says that the applicant was initiallyemployed as a casual and continued as a casual throughout


all her employment. The respondent says that the applicantwas originally employed for the flowering season beingapproximately May to October annually (depended onthe season) and then her employment was continued tocomplete a task cataloguing plants. The respondent saysher employment was due to terminate at completion ofthat task or at Christmas time.

6 Evidence was given on behalf of the applicant by herselfand by Mr Edward Brinkworth, a committee member ofthe Cymbidium club. Evidence on behalf of therespondent was given by Mr Butler, Ms B Butti, theManageress for Ezi-Gro Orchids and Ms Jeanette Deans,the retail manager for Ezi-Gro Orchids.

7 This matter came on for conference pursuant to s.32 ofthe Act on 28 March 2001 and 30 April 2001. The matterwas not settled at conference and was referred to hearing.One issue dealt with at conference was whether MrsJamieson’s employment was award covered. The applicantin addition to her application lodged documents in theCommission on 17 April 2001 to amend her applicationto state that she was a part time employee and henceclaimed also underpaid wages, holiday pay and paymentfor public holidays. The Commission advised the partiesin conference that Mrs Jamieson’s employment wascovered by the Horticultural (Nursery) Industry AwardNo. 30 of 1980. This award states at clause 3—

“This Award shall have effect throughout the Stateof Western Australia and shall apply to all Employ-ees employed by the respondents in theclassifications contained in Clause 5—Wages of thisaward.”

It was made clear to the parties both at conference and atcommencement of hearing that the matters to do withunpaid wages pursuant to the award were matters for theIndustrial Magistrate’s jurisdiction. I should note that athearing the respondent similarly maintained that thisaward applied to Mrs Jamieson’s employment.

8 A principal point of contention between the parties waswhether the applicant was employed as a casual for theterm of her employment or on a part time basis. Clause 8of the award deals with casual employees and states—

“(1) A Casual Employee shall mean an employee who isengaged and paid as such and except as otherwiseprovided in this award, a casual employee shall bepaid the ordinary hourly rate prescribed for the clas-sification of work performed with the addition of 20percent.

(2) The service of a casual employee may be terminatedby one hour’s notice, given by either side, on anyday.

(3) A casual employee shall not receive any of the enti-tlements prescribed in Clause 14.—AbsenceThrough Sickness, Clause 15.—Holidays and An-nual Leave, Clause 20.—Long Service Leave, Clause21.—Bereavement Leave and Clause 25.—Mater-nity Leave of this award.”

9 The award at clause 9 deals with part time employees. Itstates—

“(1) An employee may be employed from week to weekon a part time basis for less than 38 hours in eachweek but for not less than 3 hours on each day andshall be paid for each hour worked in proportion tothe rate of wage prescribed in Clause 5.—Wages ofthis award and subject to Clause 14.—AbsenceThrough Sickness, Clause 15.—Holidays and An-nual Leave and Clause 20.—Long Service Leave ofthis award, shall be entitled to be paid for non at-tendance on the grounds of personal ill health,holidays, annual leave and long service leave, in thesame proportion as the number of hours worked bearsto the hours prescribed in Clause 10.—Hours of thisaward.

(2) A part time employee may work additional hours ofhis/her weekly contract of service at ordinary rates,subject only to the normal provisions applying to afull time employee, where the employee has previ-ously indicated a willingness to work extra hours or

where the extra hours were arranged prior to thecompletion of the employee’s previous contractedworking day. Provided that a part time employee shallnot be required to work an extra day/part day overand above his/her weekly contract of service.”

10 Mrs Jamieson says in her application and in her evidencethat she was engaged on a casual basis. She was paid as acasual throughout her employment. Her contention is thatdue to the consistency of her days and hours worked shewas in fact not a casual but a part time employee. It is notclear from her application and her evidence, however,her contention would also seem to be that she waspromised continuing employment. She says she wasadvised that she would be employed full time should therebe enough money to do so.

11 The applicant clearly fell within the classifications ofhorticultural employee under the award.

12 An employee is not necessarily a casual employee simplybecause they are labelled as such (Philip Thomas Squirrellv Bibra Lakes Adventure World Pty t/a Adventure World(1984) 64 WAIG 1834). This is but one of the indicia fordetermining whether an employee is casual. Therespondent refers to the decision of Gregor C in PhilipJames Bitter v Y.Y.H. Holdings (1997) 78 WAIG 2984.The decision deals with the matters that need to beexamined in deciding casual employment as describedby the Full Bench in The Metals and Engineering WorkersUnion Western Australia v Centurion Industries Ltd(1996) 76 WAIG 1287 @ 1288 These include—“a. The classifying name given to a worker initially ac-

cepted by the parties.b. The provisions of the relevant award.c. The reasonable expectation that work would be avail-

able to him.d. The number of hours worked per week.e. Whether his employment was regular.f. Whether the employee worked in accordance with a

roster published in advance.g. Whether there was a reasonable and mutual expec-

tation of continuity of employment.h. Whether notice is required by an employee prior to

the employee being absent on leave.i. Whether the employer reasonably expected that work

would be available.j. Whether the employee had a consistent starting time

and set finishing time.”13 It is clear and uncontested that Mrs Jamieson commenced

work as a casual. There is dispute between the parties asto her actual working hours, however, it is clear that herdays and hours worked were left for her to settle. It is thecase put by the respondent, which I accept, that MrsJamieson’s employment was reasonably regular up untilthe conclusion of the flowering season in October 2000.Thereafter her employment was less regular during thetime which she was undertaking her cataloguing exercise.The clearest expression of this is seen in [Exhibit CJR3]which is an extract from the wages book between July2000 and December 2000. The payments are reasonablyregular in the amounts up until October 2000 and thenvary somewhat after that. It is the applicant’s own evidencethat she clocked off at different times during that period.The evidence of Mr Butler, Ms Butti and Ms Deans isthat her finishing time varied for at least that period andwas not the same as other employees. It is the evidenceof Mrs Jamieson and Mr Butler that there was no rosterto which Mrs Jamieson worked. It is also the evidence ofboth these witnesses that if she chose to take time off shewas not paid for that time and was not paid for publicholidays. Mrs Jamieson says that she had no expectationof being so paid. In relation to the issue of whether heremployment could have reasonably been expected tocontinue, this is largely premised on what Mrs Jamiesonsays was the prospect of full time employment. This isclearly a great point of contention with her and from whichshe draws a great sense of unfairness in relation to theemployer’s treatment of her. However, her own evidence


is that she was not given a firm offer of full timeemployment but rather that full time employment was apossibility. I find that at all times Mrs Jamieson’semployment was casual in nature.

14 Due to the nature of this matter the issues just addressedhave great bearing on whether Mrs Jamieson was or wasnot dismissed unfairly. Where there are conflicts in theevidence of Mr Butler and Mrs Jamieson I would preferthe evidence of Mr Butler. His evidence is clear, consistentand plausible. The evidence of Mrs Jamieson revolvesgreatly around matters to do with the Cymbidium cluband the conflicts that arose between Mr Butler and MrsJamieson concerning club business and the national show.I have no doubt that Mrs Jamieson was a good workerand that is uncontested. However, I also have no doubtthat whilst the conflicts over club business soured therelationship between Mrs Jamieson and Mr Butler, theydid not determine the employment relationship. Theseasonal nature of the work, the availability of work andthe profitability of the business were the important factorsin determining what work Mrs Jamieson received.Credible evidence has been given on behalf of therespondent to this effect. In short Mrs Jamieson wasemployed on a casual basis for the flowering season andthe cataloguing task. Her employment was thereforelimited and due to finish, albeit she hoped to obtain afull-time position and did not. In that sense heremployment came to a natural conclusion. For all of thereasons expressed I do not find any unfairness in thetermination of Mrs Jamieson’s employment and I woulddismiss the application.


INDUSTRIAL RELATIONS COMMISSION.PARTIES CHRISTINE JAMIESON, APPLICANT

v.JADEBAY CORPORATION T/A EZI-GRO ORCHIDS, RESPONDENT


Result Application dismissedRepresentationApplicant Mrs C JamiesonRespondent Mr P Brunner (of Counsel)_______________________________________________________________________________

Order.HAVING heard Mrs C Jamieson on her own behalf and Mr PBrunner of counsel on behalf of the respondent, the Commis-sion, pursuant to the powers conferred on it under the IndustrialRelations Act, 1979, hereby orders—

THAT the application be and is hereby dismissed.(Sgd.) S. WOOD,



INDUSTRIAL RELATIONS COMMISSION.PARTIES TAMARA ANN KOCKERNACK,

APPLICANTv.ABACUS CALCULATORS (WA) PTYLTD, RESPONDENT


Result Application dismissedRepresentationApplicant Ms TA KockernackRespondent Ms A Serafino_______________________________________________________________________________

Reasons for Decision.1 This is an application made pursuant to section

29(1)(b)(ii) of the Industrial Relations Act, 1979 (the Act).The applicant, Ms Tamara Kockernack worked for AbacusCalculators (WA) Pty Ltd (the respondent) from 29September 1999 until her resignation effective on 25January 2001. The applicant worked as a teleseller ofequipment to high schools and book shops. The applicantalleges that she is due three quarters of a bonus of $4333for the period November 2000 to January 2001. Therespondent says that as the applicant did not work thefull trimester, ie inclusive of February 2001, she is notentitled to the bonus payment. The amount sought is$3,249.75 gross.

2 The contract for the period in question is at [ExhibitTAK1] and the relevant sections are as follows—

“Bonus paid will be calculated on profit budget notsales budget.Budget will run over 3 Trimesters

EG 1. July 2000 to October 20002. Nov 2000 to February 20013. Mar 2001 to June 2001

At the end of the first trimester, if the profit budgetis made then you will receive $3333 bonusAt the end of the second trimester if the profit budgetis made you will receive an additional $4333 bonus.At the end of the third trimester if the profit budgetis made, you will receive an additional $3333 bo-nus.If the profit budget has not been made in the firsttrimester, you are still eligible to receive the bonusif it is made up in trimester two, in addition withtrimester two’s profit budget.Same applies with trimester three.At the end of the financial year (30th June 2001), anadditional bonus will be paid if you—Achieve 10% over profit budget for the total year—you will receive $2000 bonus.Achieve 15% over profit budget for the total year—you will receive $3000 bonus.”

3 It is common ground that the profit budget for the trimesterin question was $125,770. It is also common ground thatat the conclusion of her employment, Ms Kockernackwas $1,120 below the profit budget, to that point in time.Monthly projections of profit budgets were discussedbetween supervisor and subordinate to monitor salesprogress against targets.

4 The applicant says that sales that she had worked on,prior to resigning to take up full time study meant thatshe would have exceeded the profit budget for theNovember to February trimester by $8046. She says thaton this basis the bonus of $4333 would have been dueand she claims three quarters of that bonus having worked


there for three quarters of the trimester. It is not in disputethat the bonuses were paid at conclusion of the trimesterif the profit budgets as expressed in the contract weremet. Ms Kockernack’s contention instead is that whenshe commenced employment with the respondent, shewas advised that she would not receive a bonus in thefirst period of her work because that work had beenperformed by her predecessor and sales would go to herbonus. Her evidence is that this did not occur as herpredecessor was substantially under budget and thedifference could not be made up, hence the bonus wasnot payable. Her reasoning is that the work she completedin January meant that the profit budget for the trimesterwas ultimately met and so she should receive part paymentfor the time she worked. This is disputed by therespondent.

5 Ms Serafino, the National Sales Manager for therespondent and supervisor of the applicant says that sheadvised Ms Kockernack that her bonus would not be paidfor the trimester when Ms Kockernack put in her letter ofresignation [Exhibit AMS3]. Ms Kockernack in cross-examination denied this. However, in response toquestions by the Commission said that it was not clearcut that she was told that she would not be paid the bonusprior to her departure. Having viewed Ms Kockernackand Ms Serafino give evidence I find it is more probablethat Ms Kockernack was advised prior to resigning thatshe would not be paid the bonus for the November toFebruary trimester. In other words the applicant knewthat failure to complete the trimester would mean she wasnot paid the commission or part thereof.

6 This does not mean that the applicant was not entitled tothe bonus. However, the contract on its face is clear. Abonus, not part of a bonus, is paid at the end of thetrimester if the profit budget for that trimester is met. If itis not met but is met in the subsequent trimester alongwith the profit budget for that trimester then the twobonuses for those two trimesters are paid at that time.This is what the contract expresses and there was noevidence to the contrary.

7 In the decision of Reginald Simons v Business ComputersInternational Pty Ltd 65 WAIG 2039, the acting Presidentsays—

“The jurisdiction of the Commission which isfounded by proceedings brought under Section29(b)(ii) of the Act is judicial. It is not arbitral orlegislative. The Commission’s jurisdiction is thuslimited to the ascertainment of existing rights by adetermination of whether or not an employee hasbeen denied a benefit, not being a benefit under anaward or an order, to which the employee is entitledunder a contract of service.Invariably contracts of service which operate free ofthe prescriptive effects of an award or order will beconceived and born in negotiations which are notexhaustive of the remedies which are to apply to theresolution of every conceivable incident. Accordinglyalthough the Commission’s jurisdiction in proceed-ings such as these is judicial, there is always roomfor the Commission to grant relief which has at itsroots the ascertainment of rights and obligationswhich can fairly and properly be implied as terms ofthe contract of service. In proceedings under Sec-tion 29(b)(ii) of the Act it is not therefore necessaryfor an employee to rely upon an express term whetheroral or written where the law otherwise recognisesthat there is legitimate room for the implication ofthe term relied upon by an Applicant.”

8 Even if I were not to find that the contract is clear in itsexpressed terms, which I do not do so, I do not considerthat I can imply into the contract on the evidence beforeme that three quarters of the bonus payment should havebeen paid. There is no credible evidence that a partpayment has been otherwise made to another employee,or to the applicant at anytime. There is no credibleevidence that the applicant was advised at anytime thatshe would get part payment under the contract. Theevidence concerning who was responsible for the

February figures is not conclusive in the applicant’sfavour. The basis upon which Ms Kockernack asserts herclaim is that she did work towards the proper budget forthat trimester and she was told on commencing heremployment that she would not get the benefit of the workof others in her initial trimester. Exhibit AMS1 is herinitial contract of employment which was altered effective1 October 2000. The alteration however only relates tothe amount of the bonus not the terms of the bonus. I donot consider based on this inconclusive evidence that itis legitimate to imply into the contract some part paymentof the bonus.

9 For all of the above reasons I would dismiss theapplication.


INDUSTRIAL RELATIONS COMMISSION.PARTIES TAMARA ANN KOCKERNACK,

APPLICANTv.ABACUS CALCULATORS (WA) PTYLTD, RESPONDENT


Result Application dismissedRepresentationApplicant Ms TA KockernackRespondent Ms A Serafino_______________________________________________________________________________

Order.HAVING heard Ms TA Kockernack on her own behalf andMs A Serafino on behalf of the respondent, the Commission,pursuant to the powers conferred on it under the IndustrialRelations Act, 1979, hereby orders—




INDUSTRIAL RELATIONS COMMISSION.PARTIES FRANK ARTHUR LOCKLEY,

APPLICANTv.BEURTEAUX (AUSTRALIA) PTYLTD, RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED WEDNESDAY, 8 AUGUST 2001FILE NO. APPLICATION 1114 OF 2000CITATION NO. 2001 WAIRC 03446_______________________________________________________________________________

Result Application alleging unfair dismissaldismissed for want of jurisdiction.

RepresentationApplicant Mr J. Reyburn (of counsel)Respondent Mr D. Howlett (of counsel)_______________________________________________________________________________


Reasons for Decision.1 The respondent in this matter is a business involved

primarily in marine and motor trimming, withinvolvement in the assembly and installation of seats formarine passenger vessels. The applicant, Mr Lockley,claims that he was dismissed by it on 4 July 2000. Heclaims that his dismissal was unfair on the basis that—

“The applicant’s services were suddenly terminatedby oral notice given by Mr Beurteaux, one of theprincipals of the respondent. No reasons pertainingto the applicant’s performance were given. Only oneweek’s pay was offered at the time. There was noredundancy. The applicant was able and willing tocontinue working.”

2 The respondent denies that Mr Lockley was ever itsemployee. Rather, the respondent maintains that in 1993it engaged as a contractor the business known as FrankLockley Motor Trimmers, a business name held by MrLockley in partnership with his wife. That relationshipcontinued after 1996 with Skyzone Pty Ltd, being aproprietary limited company formed by Mr Lockley andof which he is a director, and which carried on the businessof Frank Lockley Motor Trimmers.

3 The Commission has endeavoured to assist the parties toresolve this matter by agreement to no avail. TheCommission required Mr Lockley to provide Further andBetter Particulars of his claim to be an employee and,after some delay due to Mr Lockley’s current employmentin Broome, the matter was listed before the Commissionto determine only the preliminary point as to whether MrLockley was an employee of the respondent for thepurposes of the claim he has made in the Commission.

4 Mr Lockley himself gave evidence. For the respondent,evidence was given by Kenneth William Beurteaux, thefounder of the respondent, Paul Andrew Hanlon, achartered accountant, Neil Gordon Howe, a financialadvisor to the respondent and other companies andindividuals, and from Rodney Beurteaux the ManagingDirector of the respondent.

5 I find the facts of this matter to be as follows. Mr Lockleyhad an earlier association with the respondent havingcompleted a five-year apprenticeship with it ending inapproximately 1973. After completing his apprenticeshiphe worked with the respondent as a marine and motortrimmer until his resignation in approximately 1975. Onhis evidence, he resigned because he wanted to be self-employed.

6 On 12 February 1992, Mr Lockley registered the businessname of Frank Lockley Motor Trimmers (FLMT) andcommenced operating that business. He carried on thatbusiness with Pamela Patricia Lockley. Mr Lockley admitsthat he was an employee of FLMT.

7 In 1993, Mr Ken Beurteaux approached Mr Lockley toreturn to the respondent. Mr Lockley’s evidence of thatdiscussion is that FLMT would carry out jobbing workdoing marine and motor trimming for clients ofBeurteaux. Mr Beurteaux’s evidence is that he offeredcontract work to Mr Lockley. Mr Beurteaux was unshakenon this point and his evidence is consistent with MrLockley’s own evidence that he wished to continue withFLMT. There was no written contract between MrLockley and Beurteaux. The arrangements entered intowere entirely oral. I find as a fact that when Mr Lockleyreturned to the respondent in 1993 he did so with theintention that he would operate via FLMT.

8 In the immediate period after his return Mr Lockley didnot work at Beurteaux full-time. On some occasions after1993, Beurteaux did not have enough work for MrLockley and he was not paid on those occasions. Heoperated his own business during the times that he wasnot working at the respondent. Shortly thereafter,Beurteaux had sufficient work to keep Mr Lockleyoccupied full-time.

9 Mr Lockley’s evidence is that FLMT declined as abusiness and that he closed his own workshop. However,I also find that FLMT has continued to exist. On 20February 1996 a company called Skyzone Pty Ltd was

registered with Mr Lockley as a director. On 12 March1996, Skyzone Pty Ltd became the owner of FLMT(exhibit D).

10 When Mr Lockley commenced working at Beurteaux,Mr Lockley initially submitted invoices for the workperformed. He was paid weekly. He was paid a set hourlyrate of $14 to $15 per hour from 1993 rising to $17 to$18 per hour in 2000. The respondent paid Mr Lockley’sremuneration by cheque made out to FLMT, and laterSkyzone Pty Ltd, deposited into the respective accountsin those names. PAYE tax was not deducted. No groupcertificates were issued on behalf of the respondent forMr Lockley. Further, Mr Lockley paid initially PPS taxvia FLMT and Skyzone Pty Ltd. Mr Lockley did notreceive, and did not request to be paid for, paid annualleave or sick leave. On two occasions he took leave forthe purposes of annual leave but was not paid for thatperiod of time, and did not request to be paid for thatperiod of time. The respondent covered Mr Lockley underits workers’ compensation insurance. As well, Mr Lockleymaintained his own income protection insurance. Therespondent paid superannuation on Mr Lockley’s behalfpursuant to the Superannuation Guarantee legislation.

11 Work was allocated to Mr Lockley by Mr RodneyBeurteaux. All work was done at Beurteaux’s premises.Mr Lockley states that he could, if he needed to, determinewhat projects were done first but he generally referredback to Mr Rodney Beurteaux to find out the priorities.He did not have to do that however (transcript p.83). MrRodney Beurteaux’s evidence is that he did not give MrLockley directions how to perform the work. Mr RodneyBeurteaux had the authority to check the quality of thework once completed and occasionally did so (exhibit Q,paragraph 40). I accept the evidence of Mr RodneyBeurteaux that he did not give directions on how toperform the work. Mr Lockley states that he was notsupervised and told how to do the work. In this regard, Iacknowledge that Mr Lockley, as a tradesperson, wouldnot require day-to-day direction in his work.

12 Mr Lockley worked when he wished to. Beurteaux didnot require him to work on particular days or at particulartimes or for particular durations. For example, Mr Lockleyworked on public holidays although he was not told hehad to do so (transcript p. 52). The workshop was notalways open on public holidays.

13 Mr Lockley did not quote for any individual job, orindividual jobs. Further, as Mr Reyburn pointed out, MrLockley was not offered work on the basis that it wouldonly last until the completion of a particular job. Therewas no expected completion date and Mr Lockley’sengagement (to use a neutral term) was ongoing. MrLockley did not advertise for other work outside of thework he performed for Beurteaux.

14 Mr Lockley supplied only his own labour. On no occasiondid he supply alternative labour during times he wasabsent from the respondent on leave. Further, Mr RodneyBeurteaux is quite clear in his evidence that he expectedMr Lockley to work for the respondent personally andwould not have accepted any alternate worker suppliedby Mr Lockley unless he knew that alternate worker. Asa matter of fact Mr Lockley, or more correctly SkyzonePty Ltd, did employ Mr Orme for a short period of time.However, from the evidence, Mr Orme was a Britishcitizen who was working at the respondent’s premises ona visa which permitted him to work for Beurteaux onlyfor 3 months. At the conclusion of that period, Beurteauxasked Mr Lockley to employ Mr Orme pursuant to anarrangement whereby Beurteaux would reimburse MrLockley for the wages paid by Skyzone Pty Ltd to MrOrme, and for the purpose of allowing Mr Orme tocontinue to work at the respondent notwithstanding thelimitation of his visa. I therefore do not regard Mr Ormeas an example of Mr Lockley not providing personalservice. Nevertheless, it is an example of Mr Lockleyhaving the capacity through his company to employpersons. That capacity is not characteristic of anemployee.


15 All of Mr Lockley’s work for the respondent wasperformed at the respondent’s premises. Mr Lockleyinitially worked on the tools. Mr Lockley supplied all ofthe tools that were the usual tradeperson’s tools necessaryto perform the job. Any larger equipment, for example anindustrial sewing machine, was supplied by therespondent.

16 Over a period of time he was given more responsibilityand took on the role of organizing other persons (labelledby the respondent as “other contractors that we had”(transcript p. 195)). He was given the title of ProductionManager. Mr Rodney Beurteaux gave Mr Lockley abusiness card describing him as its Production Manager.Mr Beurteaux requested Mr Lockley to interview otherpersons to perform work on Beurteaux’s behalf atBeurteaux’s premises. Further, with the authority of therespondent, and in its name, he terminated theemployment of persons working at the premises. MrLockley also had a key to the respondent’s premises.

17 Mr Lockley was given a utility motor vehicle belongingto the respondent for use at work and for travelling toand from the respondent’s premises. The respondentreimbursed Mr Lockley for the cost of the fuel for themotor vehicle.

18 The respondent sent Mr Lockley to Hong Kong to re-dosome work for a client’s ferry. The respondent paid all ofMr Lockley’s expenses in connection with that work.

19 When it decided to bring the relationship to an end, therespondent gave Mr Lockley one week’s pay in lieu ofnotice.

Conclusions20 Mr Lockley will be an employee for the purposes of his

application if he falls within the definition of “employee”in the Industrial Relations Act 1979. Relevantly, thatdefinition provides that an employee means—

“Any person employed by an employer to do workfor hire or reward …”

21 The proper application of that definition requires theapplication of the tests at common law of what is anemployee: Transport Workers Union of Australia v.Readymix Group and Others (1981) 61 WAIG 1705. It isfirst necessary to ascertain whether Mr Lockley was an“employee” within the ordinary notion of that term,namely, “any person employed by an employer to do workfor hire or reward” (ibid, per Wallace J. at 1706). Theessence of a contract of service is the supply of the workand skill of a person (Humberstone v. Northern TimberMills (1949) 79 CLR 389 at 404; see too WesternAustralian Builders’ Labourers, Painters and PlasterersUnion of Workers v. RB Exclusive Pools Pty Ltd t/a FloridaExclusive Pools (1996) 77 WAIG 4 at 6).

22 It is unfortunate that there is no single test for determiningwhether Mr Lockley was an employee of the respondent.Both Mr Reyburn, who appeared for Mr Lockley, andMr Howlett who appeared for the respondent, referred tothe indicia which have been relied upon to determinewhether a person is or is not an employee, and referencewill necessarily be made to these indicia in what follows.The circumstances of each case will determine the weightto be given to the various indicia but the “ultimate questionwill always be whether a person is acting as the servantof another or on his own behalf and the answer to thatquestion may be indicated in ways which are not alwaysthe same and which do not always have the samesignificance” (Stevens v. Brodribb Sawmilling Company(1985-1986) 160 CLR 16 per Wilson and Dawson JJ at37).

Control23 It is clear that the right of an employer to control what

the employee shall do, and how the employee shall do it,is a test well recognised by authority and of long standing(TWU v. Readymix, above, Stevens v. Brodribb SawmillingCompany, above, and see too AMP v. Chaplin (1978) 18ALR 385 at 387; ABLF v. Brajkovich (1991) 71 WAIG23; CMEU v. V.R.D. Contracting (1988) 68 WAIG 1015).It is also clear that it is not the only test, but that it is aprominent factor. The test is to see whether there was

ultimate authority over the person in the performance ofhis work which resided with the employer—not whetherin practice the work was in fact done subject to a directionand control exercised by an actual supervision(Humberstone v. Northern Timber Mills, above per DixonJ at 404). It will be enough if there is scope for controlover even incidental matters (Zuijs v. Wirth BrothersCircus, (1955) 93 CLR 561).

24 The evidence is that Mr Lockley was allocated his workby Mr Rodney Beurteaux. Mr Beurteaux did not supervisehis work as such. However, Mr Lockley is a tradesmanand Mr Beurteaux is not. The issue is not whether MrBeurteaux told Mr Lockley how to do the work of a motortrimmer. It is whether there was ultimate authority overMr Lockley in his work, over even incidental matters.The evidence does not permit a firm conclusion regardingthe scope of Mr Rodney Beurteaux’s ultimate authorityto control Mr Lockley. Mr Lockley’s evidence is that in1993 it was he, himself, who decided whether on anygiven day he would work at Beurteaux or complete hisown business. He did not have to advise Beurteaux if hewas not going to attend. He was certainly working fulltime at Beurteaux at the time of his “dismissal”, however,his evidence is that was because Beurteaux has enoughwork for him to do and it was his choice how much ofthat work he wanted to do (transcript pp. 47 and 65). Itwas he who decided to increase the hours he worked(transcript p. 66). His hours were not set for him. Hishours varied significantly (transcript p. 67). Although hewould work on weekends only if requested (whichsuggests control), he worked public holidays and it washis decision whether or not to do so (which does notsuggest control). Mr Lockley decided which jobs wereto be done, including who would do particular jobs.

25 Mr Lockley was required to attend meetings, and did so,but he could as a contractor be required to attend meetingsin order to be kept informed of new work to be done (cf.AMP Society v. Allan (1978) 52 ALJR at 411). AlthoughMr Rodney Beurteaux would not have accepted anyalternate worker supplied by Mr Lockley unless he knewthat alternate worker, it may not be uncommon for aprincipal to exercise control over the identity ofsubcontractors in this way: TWU v. Readymix Group,above at 1717.

26 I am not persuaded that the evidence shows that MrLockley was subject to control such that he was likely tohave been an employee of the respondent.

Mode of Remuneration27 The evidence that an hourly rate was paid, as distinct

from a payment for work completed, may be morecharacteristic of a contract of service because it maysuggest that there is some degree of control to ensureefficient performance: WA Carpenters and Joiners,Bricklayers and Stoneworkers Industrial Union v.Hauswirth ( 1981) 61 WAIG 862 at 863. However, itdepends on the nature of the particular contract (TWU v.Readymix Group, above at 1717). Mr Lockley was paidweekly. However, it is significant that Mr Lockleypresented, at least initially, invoices to Beurteaux for workperformed. He did not, at least at that time, sign aBeurteaux time sheet. If he signed a Beurteaux time sheetsubsequently (transcript p. 30), none were presented inevidence. Further, the payments made were not made toMr Lockley at all. They were made initially to FLMTand later to Skyzone Pty Ltd. As Mr Lockley conceded,if FLMT got the payment, it was FLMT which was doingthe work (transcript p. 82). He was not paid if there wasno work available, although this event occurred more atthe commencement in 1993 than later. Nevertheless, as Iunderstand the evidence, that would be the circumstancethroughout if no work was available.

28 Further, the existence of the business FLMT, and laterthe company Skyzone Pty Ltd, are very strong indicatorsagainst Mr Lockley being an employee of Beurteaux.There are authoritative decisions to the effect that theability of a person to incorporate a company, or theexistence of a partnership, is certainly unusual in anemployer/employee relationship, if not absolutely


inconsistent with it: AMP Society v. Allan (1978) 52 ALJRat 410; Barro Group Pty Ltd v. Fraser [1985] VR 577 at580. That is not to say that those factors are conclusiveevidence that there was not an employer/employeerelationship. The partnership and taxation arrangementsmay have simply reflected Mr Lockley’s desire to avoidthe incidence of income tax. If that is the case and thetrue nature of the relationship was employer and employeethen those factors may be divorced from the contract andthe contract would still be correctly characterized as acontract of service (Alman v. Unwin [1983] WAR 157per Olney J at 164-165; Jennings Industries v. Negri(1982) 64 FLR 35 at 43/33). Certainly Mr Lockley’sconsistent evidence is that he was motivated principallyby taxation motives in the partnership and companystructures. There may have been other benefits, forexample, if Mr Lockley was not paid personally then hewould not have a liability to pay child support (transcriptp. 54), but the desire to lessen his taxation was the primaryconsideration. However, in this case I am not persuadedthat these factors ought be “divorced from the contract”.They remain strong indicators against Mr Lockley beingan employee of Beurteaux.

29 Even though Mr Lockley’s work was paid by the hour,and paid regularly, the evidence of remuneration as awhole does not persuade me that Mr Lockley was anemployee.

Provision of tools, equipment30 The fact that Mr Lockley supplied the tools ordinarily

expected of a tradesman is not determinative of this issue.It is not uncommon for awards of this Commission toprescribe that a tool allowance be paid to a tradesmanemployee who provides his or her own kit of tools andthat allowance may form part of the ordinary wage (seere Electrical Contracting Industry Award (1997) 77 WAIG1510). The provision of tradesman’s tools therefore maybe characteristic of an employee or a contractor. There islittle evidence to show the extent to which other equipmentwas essential to the job and from which it might beconcluded that the provision of an industrial sewingmachine is a significant factor in this case.

Taxation31 Mr Lockley paid no tax himself, or if he did, it was the

PPS arrangement characteristic of a contractor. He wasnot given a group certificate. He sought to take advantageof tax benefits which are not characteristic of, nor availableto, an employee. Rather, they are characteristic of aprincipal and contractor: TWU v. Readymix Group aboveat 1718.

Entitlements32 Mr Lockley was not entitled to, nor did he claim while

working at Beurteaux, annual leave, sick leave oradditional penalty rates for weekends or public holidays.While this is characteristic of a contract for services, itmay also be characteristic of a casual employee. I havenot found this factor to be decisive.

33 Beurteaux did include Mr Lockley in its workers’compensation insurance and paid a superannuationentitlement on his behalf. Both of these factors arecharacteristic of an employer/employee relationship.However, Beurteaux has produced in evidence advice ithas received that it is obliged to make those payments tocontractors (exhibits N and O). Without commentingdirectly on that evidence, it has persuaded me to attachless weight overall to these factors in the context of thiscase.

Manner of termination34 Mr Lockley was given one week’s pay in lieu of notice.

This is characteristic of an employer dismissing anemployee, not the giving of notice to a contractor.

The Organization test35 The test of considering whether a person was part of the

other party’s organization as a guide to whether or not heor she was an employee of that organization has beenquestioned: Stevens v. Brodribb Sawmilling, above perMason J at 27-28. However, it is in this case a useful

heading to take into account the following facts whichsuggest that Mr Lockley was part of Beurteaux’sorganization. I do not view these in isolation from thefactors already considered above.

36 Mr Lockley was given the use of a Beurteaux motorvehicle to travel to and from work. Beurteaux reimbursedhim for the petrol used. He was given by Mr RodneyBeurteaux a Beurteaux business card describing him asBeurteaux’s Production Manager. Mr Lockley was notresponsible for warranty work if work was faulty. MrLockley was sent by Beurteaux to Hong Kong atBeurteaux’s entire cost to remedy a seat in a client’s ferry.Mr Lockley was not penalised if a job was not completedon time. Mr Lockley had a right to hire and fire, subjectto Mr Beurteaux’s authorisation, other persons whoworked at Beurteaux.

37 In my view, these facts argue that Mr Lockley wasBeurteaux’s employee. However, they also serve toillustrate that the indicia in this case, as is not unusual incases where the relationship between the parties isdisputed, provide indications both for and against MrLockley’s claim that he was an employee of Beurteaux.His claim is certainly arguable as the facts mentioned inthe preceding paragraph reveal. Beurteaux cannot validlycomplain about the circumstances in which it finds itselfin these proceedings if it gives Mr Lockley a right to hireand fire its own staff, provide him with its own vehicle,call him its Production Manager and give him its ownbusiness card saying so. I include in this comment theevidence that Beurteaux, via Mr Howe, wrote a letter to abank on Mr Lockley’s behalf to assist him with a loanand another letter to the DPP to allow Mr Lockley to bepaid for “wages lost” due to attending court.

38 These facts nevertheless are to be seen in a context of thecase as a whole. In my view, while some indicia point toMr Lockley being an employee none of them, includingthe somewhat limited control able to be exercised by MrRodney Beurteaux over Mr Lockley, have been decisive.In such a situation, I have found the intention of the partiesto be significant. Beurteaux asserts that it did not intendan employment relationship. For Mr Lockley’s part, hehad made it abundantly clear that he has deliberatelysought to maintain the taxation benefits which arise fromhis business FLMT. He sought to do so when he initiallyreturned to Beurteaux and continued to do so. They arethe taxation benefits which are not available to anemployee. I am not persuaded that Mr Lockley is asunaware of the consequences of his intention as MrReyburn has submitted. Mr Lockley actively sought athis own initiative to create Skyzone Pty Ltd which becamethe proprietor of FLMT. Mr Reyburn makes the pointthat FLMT eventually wound down. It is true that thereis no evidence that Mr Lockley actively pursued FLMT’sbusiness interests outside of his work for the respondent.However, that appears to be entirely consistent with theevidence that the respondent had sufficient work to enableMr Lockley to work at its premises full-time. Thesubmission that FLMT wound down, therefore does notstrengthen the argument that Mr Lockley became anemployee of the respondent.

39 Further, Mr Lockley’s evidence that Skyzone Pty Ltd isnow defunct and does not have an Australian BusinessNumber is simply not correct. The documents put to MrLockley in cross-examination by Mr Howlett forced MrLockley to admit, grudgingly in my view, that SkyzonePty Ltd currently exists and also that from 1 November1999 it had an Australian Business Number (transcript p.48 and exhibit A). Furthermore, Mr Lockley’smaintenance of FLMT was not a mere paper arrangementor something of a sham. In contrast to the facts consideredby the Full Bench of this Commission in WesternAustralian Builders’ Labourers, Painters and PlasterersUnion of Workers v. RB Exclusive Pools Pty Ltd t/a FloridaExclusive Pools (1996) 77 WAIG 4, the use of the PPStaxation rate by Mr Lockley and the creation of FLMTand of Skyzone Pty Ltd was deliberately done by MrLockley for his own purposes and was not initiated byBeurteaux.


40 In my view this is firm evidence that Mr Lockley hasretained to the end the relationship between him andBeurteaux which was first established. That relationshipwas distinct from the relationship he had with it when hewas employed as an apprentice. The contrast betweenhis working conditions when he was an apprentice, thatis, when he was an employee, and his return in 1993 areacknowledged by him to be different (transcript p. 38).He did not want to give up his own business (ibid.). Hereturned to Beurteaux on the understanding that he couldcontinue his own business and he submitted invoices toBeurteaux of his work in the name of FLMT. He did notwant to become an employee. Indeed, in order to continuethe tax benefits he enjoyed he needed to avoid becomingan employee of Beurteaux: Ferguson v. John Dawson &Partners (Contractors) [1976] IRLR 346 per Lawton LJat 351. While the frequency of his work and the nature ofit moved from hands-on work to allocating work to others,the evidence as a whole does not persuade me thatanything changed in the essential relationship betweenMr Lockley and Beurteaux. He did not return to Beurteauxin 1993 as an employee and was not somehow convertedto an employee because he chose to work at Beurteauxfull-time and not advertise for other work.

41 Mr Lockley conceded under cross-examination,reluctantly in my view, that it was his choice that heworked only for the respondent—Mr Howlett—

When you worked for John Davies and the otherpeople that you worked for when you— just imme-diately after you went back to Beurteaux in 1993,did you have approval to work for those otherpeople?—I didn’t need approval from BeurteauxAustralia.Why not?—I wasn’t working full time for BeurteauxAustralia. What I did outside of Beurteaux Australiahad nothing to do with them.What were your working hours—what were yourset working hours at Beurteaux Australia when youfirst went back?—Basically 8.00 till 4.30 when thework was there.But didn’t you tell us earlier that you juggled yourhours amongst the other work that you weredoing?—Yes, I did.So it wasn’t just a matter of when Beurteaux had thework, was it, it was a matter of when you were avail-able, wasn’t it?—Well, that also had part to do withit, yes.Yes. So you had the ability to tell Beurteaux I’m notavailable next week, didn’t you?—I did, yes, andthey had the ability to do the same to me.Yes. And that situation continued right through,didn’t it? You said there was no change. That—thatsituation continued right through, didn’t it?—It did,apart from the fact that I had worked full time forBeurteaux—But that was your choice, wasn’t it?—I never—Inever worked anywhere else.So it was your choice, though, wasn’t it?—Yeah,due to the amount of work we had. That’s correct.

(transcript p. 47)42 The fact that it was Mr Lockley’s choice whether or not

he worked at the respondent’s premises is a choiceconsistent with him being a contractor. It may also beconsistent with him being a casual employee. However,the evidence as a whole does not suggest that Mr Lockleywas a casual employee or that he regarded himself ascasual employee of the respondent. In the context of thiscase, the fact that Mr Lockley had a choice whether ornot he worked at the respondent’s premises is a choiceinconsistent with him being an employee of therespondent.

43 Furthermore, Mr Lockley admits in evidence that heregarded himself as an employee of FLMT. It isunarguable that Mr Lockley cannot be both an employeeof FLMT and at the same time be an employee of the

respondent. Mr Lockley’s admission is significant in thatcontext.

44 Against that background, the indicia which might pointto Mr Lockley being an employee lose some of their force.For those reasons, Mr Lockley was not an employee forthe purposes of the Industrial Relations Act 1979. Itfollows that his claim in this Commission is not valid.The Commission does not have the jurisdiction to dealwith his claim and an Order will issue to that effect.


INDUSTRIAL RELATIONS COMMISSION.PARTIES FRANK ARTHUR LOCKLEY,

APPLICANTv.BEURTEAUX (AUSTRALIA) PTYLTD, RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED WEDNESDAY, 8 AUGUST 2001FILE NO. APPLICATION 1114 OF 2000CITATION NO. 2001 WAIRC 03447_______________________________________________________________________________


RepresentationApplicant Mr J. Reyburn (of counsel)Respondent Mr D. Howlett (of counsel)_______________________________________________________________________________

Order.HAVING HEARD Mr J. Reyburn (of counsel) on behalf ofthe applicant, and Mr D. Howlett (of counsel) on behalf of therespondent, the Commission, pursuant to the powers conferredon it under the Industrial Relations Act 1979 hereby orders—

THAT the application be dismissed for want ofjurisdiction.



INDUSTRIAL RELATIONS COMMISSION.PARTIES JO-ANN MORRISON, APPLICANT

v.SUZANNE GRAE CORPORATIONPTY LTD, RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED TUESDAY, 11 SEPTEMBER 2001FILE NO APPLICATION 467 OF 2001CITATION NO. 2001 WAIRC 03730_______________________________________________________________________________

Result Application for an adjournmentdismissed.

RepresentationApplicant Mr B. Stokes (as agent)Respondent Mr M. O’Connor (as agent)_______________________________________________________________________________

Reasons for Decision.1 The substantive matter before the Commission is a claim

by Ms Morrison that she has been unfairly dismissed andalso that she has not been paid a benefit under her contractof employment. The hearing of the matter is due to


commence on 17 September 2001. The parties attendeda conference before the Commission on 28 May 2001 atwhich, with the agreement of the parties, they were tocontinue their discussions in an endeavour to resolve thematter. If the matter was not resolved by 2 July 2001 therespondent was to file and serve Further and BetterParticulars. In turn, within 14 days of the receipt by MsMorrison of the Further and Better Particulars, MsMorrison was to have filed and served a Reply to thoseParticulars including the detail of the respondent’s allegedrepudiation of the contract of employment upon whichMs Morrison relies to claim that she has been dismissed.

2 The matter was not resolved. The hearing listed for 17September 2001 is to deal with the issue of jurisdictionwhile days in December have been set aside in the eventthat the issue of merit is to be dealt with.

3 The respondent’s Further and Better Particulars were filedin the Commission on 4 July 2001. On 27 August 2001the respondent’s agent, Mr Uphill, wrote to Mr Stokeswho is Ms Morrison’s agent stating that—

“Despite a reminder on 20 August 2001, I have stillnot received your answering submission that was dueto be forwarded to me by 16 July 2001.Unless I receive the documentation by the end ofthis week, I will not have adequate time to preparefor the hearing scheduled for 17 September 2001and accordingly, I will be requesting the WesternAustralian Industrial Relations Commission adjournthe hearing.”

4 On 4 September 2001 Mr Uphill wrote to the Commissioninforming the Commission that the answering statementhad not been received by him and that he is not ableadequately prepare for the hearing—

“Accordingly, I hereby request that the matter be ad-journed and understand that the applicant is nowresiding in Queensland”.

5 The applicant’s Reply was filed in the Commission on 7September 2001. The Commission has been advisedverbally by Mr Stokes that the application foradjournment is opposed.

6 An application for an adjournment is within the discretionof the Commission. Where the refusal of an adjournmentwould result in a serious injustice to one party anadjournment should be granted unless in turn this wouldmean serious injustice to the other party (Myers v. Myers[1969] WAR 19). The ground in support of theadjournment is that the respondent has insufficient timeto adequately prepare for the hearing. Of itself, a failureto provide a reasonable opportunity to prepare for ahearing could result in a serious injustice to a party. Thereis no submission from, or on behalf of, Ms Morrison thatthe adjournment would result in a serious injustice to her.

7 The request for an adjournment is therefore to beapproached as follows. The Notice of Hearing for 17September 2001 was sent to the parties on or about 5June 2001. The period of time between then and nowwould provide more than adequate time for a party toprepare for the hearing. If the respondent’s request for anadjournment is because Ms Morrison’s Reply, whichought to have been filed in the Commission on or about16 July 2001 (allowing for the filing of the respondent’sstatement in the Commission on 4 July 2001 and timefor the service of that document) was not filed and madeavailable to the respondent until at least 7 September 2001,much will depend upon the extent to which the Replycontains issues not known to the respondent and of whichit may have had 5 or 6 working days’ notice.

8 In the absence of any detail regarding the precise issuesupon which the request for an adjournment is made, theresolution of this issue is not straightforward. MsMorrison’s application is accompanied by a 41 paragraphstatement. It is not immediately apparent to theCommission which of the matters referred to in MsMorrison’s Reply are not embraced within the scope ofthe statement attached to her original application. As such,it is also not immediately apparent what serious injusticeis caused to the respondent. Accordingly, the request foran adjournment is not granted.

9 That does not say that the fact that Mr Stokes did not fileMs Morrison’s statement until some 7 weeks after thedate initially agreed at the conference before theCommission does not pass unnoticed. No explanation orapology was forthcoming regarding the late filing of thedocument. However, it is not a matter of granting theadjournment merely because the document was filed late.Rather, it is a matter of assessing the consequence uponthe respondent of the late filing, and that will dependupon the content of the document.


INDUSTRIAL RELATIONS COMMISSION.PARTIES PATRICK ROLAND MORITZ,

APPLICANTv.HOME AGAIN ENTERPRISES PTYLTD, RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED THURSDAY, 9 AUGUST 2001FILE NO APPLICATION 458 OF 2001CITATION NO. 2001 WAIRC 03472___________________________________________________________________________

Result Applicant unfairly dismissed.Compensation awarded.

RepresentationApplicant Mr P.R. Moritz appeared on his own

behalfRespondent No appearance for the Respondent___________________________________________________________________________

Reasons for Decision.(Ex Tempore)

1 This application was filed in the Commission on 13th

March 2001, when Patrick Roland Moritz (the Applicant)sought orders from the Commission against Home AgainEnterprises Pty Ltd (the Respondent).

2 The history of the matter is as follows: After the date offiling the Applicant filed, as is required by the IndustrialRelations Commission Regulations 1985 (theRegulations) a declaration of Service.

3 At the completion of 28 days from the time the applicationwas filed, there had been no Notice of Answer andCounter-Proposal (an Answer) filed by the Respondent.On 4th April the Registry wrote to the Respondent at theaddress given in the application, and drew its attention tothe necessity to file an Answer in the matter. No Answerhas ever been filed.

4 This matter was allocated to the Commission asconstituted on 17th April 2001, and on 18th April a letteradvising that a conference had been convened was sentto the Respondent at the address shown on the application,that is Home Again Enterprises Pty Ltd, 4 Beadon Close,Ballajura. There was further correspondence from theCommission to the Respondent on 10th May 2001. Thiswas after the Applicant had advised the Commission, byletter dated 3rd May that he thought that the Respondent’sprincipal was now located in the United States of America.Again, the Commission wrote to the Respondent, advisingthat a conference had been convened for 19th June 2001.

5 The Respondent was told in that letter that it could wellbe that failure to attend that conference would result inthe matter being referred for hearing in its absence. Theletter of 10th May was returned to the Commission by thepostal service, undelivered.

6 On 18th May the Applicant was advised by letter that therewas no response from the Respondent to the efforts madeby the Commission to contact its principal, and the matterwould be listed for hearing for 23rd July 2001.


7 A Notice of Hearing was prepared and served upon theRespondent in accordance with the requirements ofRegulation 89, that is, by pre-paid post, on 23rd July 2001.That Notice of Hearing was also returned undelivered bythe postal service.

8 The Applicant has now appeared at the hearing, and hasrequested that the Commission exercise the powers vestedin it by the Industrial Relations Act, 1979 (the Act) andhear the matter in the absence of the Respondent. Section27(1)(d) provides that the Commission can proceed tohear and determine a matter, or any part of it, in theabsence of any party who has been duly summoned orduly served with a notice of the proceedings.

9 However before it does the Commission is required tosatisfy itself that it is right in the circumstances to do so,and make findings accordingly. Relevant is whether theapplicant was duly served with a Notice of Hearing. TheRegulations provide that it is good service if thedocuments of the Commission advising date of hearingare served by leaving the document at the principal placeof business or principal office in the State of a respondentor alternatively by pre-paid post [Regulation 89(2)(6)]. Ifind the latter form of service has occurred in this case.

10 There has been a history of the Respondent failing toattend to this matter, firstly by failure to file an Answerand then, as detailed, failure to take part in any of theproceedings or respond to any of the correspondence thatthe Commission has sent it.

11 I find that the Respondent has been duly served with aNotice of Hearing. In view of the antecedent history ofthis matter, I am prepared to exercise the powers vestedin Section 27(1)(d) of the Act, and proceed to hear anddetermine the matter in the absence of the Respondent.

12 The Commission has decided that it will hear this matterin the absence of the Respondent. The Applicant has givenevidence. I have listened carefully to his evidence. Thereis no reason to conclude that he has not told theCommission the truth about what happened to him. I findthat he is a credible witness and a witness of truth.

13 There is no evidence led in opposition to what was put tothe Commission and so therefore I conclude, on thebalance of probabilities, that it is more likely than notthat the events as the Applicant has described them,occurred.

14 What he said is that he obtained employment in theRespondent’s business.

15 He made arrangements to work as a chef, commencingon 12th July 2000. His duties included cooking, stockcontrol, supervision of staff, rostering, and for the last 3months of his engagement, he managed the business. Hetherefore, in that position, knew how the business wasbeing run. He had no indication at all that on 12th March2001 the business would be shut down. He says heattended for work, and the locks had been changed. Hemade some inquiries and was told the principal of theRespondent, Patrick James Muller, is no longer inAustralia. The Applicant felt that Muller’s absence wouldonly be for 3 weeks, but it turned out to be much longerthan that; and as the chronology of the events indicate,there has been nothing heard of Mr Muller since the timehe left and since the date the restaurant has been closed.

16 The question for the Commission is whether a dismissalin these circumstances is unfair. The Applicant impressedme as a person who went about his business and did thework for which he was employed. There is nothing fromevidence that indicates a great involvement with therunning of the business by its Principal Mr Mueller,particularly during the last 3 months when the Applicantsays he was managing the operation.

17 The test to be applied is described in FMWU v Undercliffe(1995) 65 WAIG 385. The employer has the right to hireand fire, and that right is not to be interfered with by theCommission, unless that right is abused. An abuse of thatright is indicative that there has not been ‘a fair go’ allround, which is the fundamental test described inUndercliffe (op cit).

18 If a person is engaged as an employee, and if the firsttime they find out that they do not have a job is whenthey present for work and the building is locked downwith new locks, that can be nothing but unfair. It iscertainly not indicative of a fair go all round. Theemployer has not extended to the employee any of thecourtesies to which he is entitled under the contract ofemployment, and, indeed, which are required by the law.

19 I find that the Applicant must, in those circumstances,have been unfairly dismissed. It is clear that theRespondent is no longer in a position to offer re-employment, in fact the whereabouts of the Respondent’sprincipal can be categorised as being unknown. It followsthe first remedy that the Commission must consider, thatof reinstatement, is unavailing.

20 The Commission therefore ought to fix compensation. Iapply the tests that are set out in Ramsay Bogunovich vBayside Western Australia (1999) 79 WAIG 8. Statedbroadly, the rule is that the Applicant is to be put back inthe position [financially] that he would have been if hehad not lost his job.

21 The Applicant has told the Commission that from whenthe business closed he was unemployed until 25th April2000. He then obtained a part time or casual job until30th April. Thereafter he worked fulltime at that sameestablishment until 30th June, when he left the State.During that period he earned a total of $3106. Hisearnings, calculated on the basis of $580 net per week,with the Respondent would have netted him $7700. Itherefore award to him, on the authority of Bogunovich(op cit) the sum of $3514. There have been no submissionsto me concerning injury, and I therefore make no awardunder that head of compensation.

22 I now consider the contractual benefits claim. TheApplicant says he was employed under the RestaurantTearooms and Catering Award. He claims that he isentitled under that award to notice but received neither itor pay in lieu nor was he paid wages for the period 5th

March to 11th March 2001. He also claims that he has notbeen paid for annual leave or public holidays. Hisstatement of claim also indicates he has not been paidsuperannuation.

23 I need to deal with those claims. It is clear to me, and Iaccept the Applicant’s evidence in this respect, that hewas employed under the terms of the Restaurant Tearoomsand Catering Award of this Commission. Each of theentitlements he claims were not paid to him wereentitlements which arise under that award, except forsuperannuation.

24 The claim for superannuation of the nature specified herecannot be mounted in this Commission. It is a matterwhich falls within the provisions of the SuperannuationGuarantee Act (Commonwealth) and it has to be pursuedin accordance with the requirements of that Act. Section29(1)(b) allows an employee who claims that he has notbeen allowed by his employer a benefit, not being a benefitunder award or order, access to this Commission.

25 It is clear that for an applicant to have locus standi topursue such a claim that the benefit cannot be a benefitunder an award or order. Clearly, in this case the benefitsclaimed by the Applicant do arise under an award or orderof the Commission. There is no jurisdiction to deal withthem.

26 And even if that is wrong the claims for annual leave andholidays most likely would fall within the ambit of theMinimum Conditions of Employment Act. By Section83 of the Act, a person who contravenes or fails to complywith any provision of an award, industrial agreement ororder, other than an order made under Section 32 orSection 44(6) or Section 66, may apply in the prescribedmanner to an Industrial Magistrate’s Court forenforcement of the award or order.

27 The exclusive jurisdiction for enforcement resides bySection 83 with the Industrial Magistrate. TheCommission as constituted has no power to deal withany of the award related entitlements claimed by theApplicant. The Commission cannot dismiss the claim foran entitlement under an award, but it cannot exercise a


power under Section 29 to give relief, because the powerto do so resides solely with the Industrial Magistrate. Itsimilarly is unable to deal with claims to enforce theMinimum Conditions of Employment Act.

28 The Commission will determine this matter by orders asfollows: That the Applicant was unfairly dismissed on orabout 12th March 2001; that reinstatement would beunavailing; that compensation in the sum of $3514 willbe awarded to the Applicant; that the claims for benefitsas set out in the application will be dismissed for want ofjurisdiction.


INDUSTRIAL RELATIONS COMMISSION.PARTIES PATRICK ROLAND MORITZ,

APPLICANTv.HOME AGAIN ENTERPRISES PTYLTD, RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED THURSDAY, 9 AUGUST 2001FILE NO APPLICATION 458 OF 2001CITATION NO. 2001 WAIRC 03474___________________________________________________________________________

Result Applicant unfairly dismissed.Compensation awarded.

___________________________________________________________________________

Order.HAVING heard Mr P.R. Moritz on his own behalf and therebeing no appearance for the Respondent, the Commissionpursuant to the powers conferred on it under the IndustrialRelations Act, 1979, hereby orders—

1. THAT the Applicant was unfairly dismissed and re-instatement is unavailing.

2. THAT the Respondent pay to the Applicant com-pensation in the sum of $3,514.00.

3. THAT the Application for contractual benefits bedismissed for want of jurisdiction.



INDUSTRIAL RELATIONS COMMISSION.PARTIES MARILYN MUGGERIDGE,

APPLICANTv.PENRHOS COLLEGE (INC),RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED FRIDAY, 31 AUGUST 2001FILE NO/S APPLICATION 1502 OF 2000CITATION NO. 2001 WAIRC 03660_________________________________________________________________________

Result Application upheld. Order issuedRepresentationApplicant Mr T Dixon of counselRespondent Mr R Gifford as agent_________________________________________________________________________

Reasons for Decision.1 At material times Marilyn Muggeridge (“the applicant”)

was employed by Penrhos College (“the respondent”) asa Home Economics Assistant (Clothing and Fabrics). The

applicant’s employment with the respondent commencedon or about 3 February 1997. The applicant’s employmentrelationship with the respondent came to an end on orabout 28 August 2000 as a consequence of a letter to herof the same date. By a subsequent letter dated 5 September2000, the contract of employment was brought to an end.The applicant commenced these proceedings pursuant tos 29(1)(b) of the Industrial Relations Act 1979 (“the Act”)alleging that her dismissal was harsh, oppressive andunfair. Additionally, the applicant’s claim also included aclaim for severance pay, which claim was not pressedwhen the matter was heard before the Commission.

2 The respondent opposed the applicant’s claim in itsentirety.

The Evidence3 The applicant testified that she commenced employment

in the Home Economics department of the respondenton 3 February 1997. The applicant enjoyed her work andhad a productive and good working relationship with thethen head of department Mrs Bridle. The applicant’s letterof appointment and subsequent documents referring tothe terms and conditions of her employment were tenderedas exhibit A2. The applicant’s employment was alsosubject to the terms of the Independent SchoolsAdministrative and Technical Officers Award 1993 (“theAward”).

4 Apparently, in or about July 1998, there was a change ofpersonnel in the Home Economics department, with MrsBalbi assuming the position of acting head of departmentfrom this time. The applicant testified that she had a goodworking relationship with Mrs Balbi in late 1998 and inearly 1999. Some time thereafter, there appeared to havedeveloped some difficulties in the working relationshipbetween the applicant and Ms Balbi. The applicant wasnot able to articulate what those difficulties were but shesaid that there was some change in Ms Balbi’srequirements of the applicant, to what had previously beenthe position under Mrs Bridle.

5 These tensions culminated in a meeting between theapplicant, a representative of the ISSOA and MrWoodford, the respondent’s administrator. At thismeeting, Mr Woodford outlined a number of issues inrelation to the applicant’s attitude towards Mrs Balbi ashead of department, and other performance matters. Thesematters were set out in a letter of 17 September 1999tendered as exhibit R1. Whilst the applicant recalled goingthrough these issues with Mr Woodford, she did not agreewith the content of the letter and had no knowledge of anumber of the issues raised in it. During this meeting on17 September, Mr Woodford, because he also was not inposition of all of the relevant facts, requested the applicantand Mrs Balbi to meet, in an endeavour to resolve theissues raised. He also requested the applicant to providea response to the matters set out in his letter. The applicanttestified that she then met with Mrs Balbi to discuss theissues set out in exhibit R1, leading to a letter from her toMr Woodford by way of response, dated 1 November.This letter was exhibit R4.

6 As a result of this initial meeting, and in response to aprocess put in place by Mr Woodford, both the applicantand Mrs Balbi met on a weekly basis to discuss workrelated issues. The applicant testified that she thought theprocess was helpful in assisting in the communicationsbetween her and Mrs Balbi. The applicant did sayhowever, that she felt that Mrs Balbi’s approach involvedtargeting her and she also thought that sometimes MrsBalbi was being vindictive. Accompanying these weeklymeetings, were summaries prepared by Mrs Balbi, withresponses prepared by the applicant. These documentswere tendered as exhibit R8.

7 On or about 22 November 1999, a meeting took placebetween the applicant, Mr Woodford, Mrs Balbi and MrsTeresa Howe from the ISSOA. At this meeting, theongoing difficulties in the working relationship betweenthe applicant and Mrs Balbi were discussed. In particular,reference was made to an unpleasant exchange thatoccurred between the applicant and Mrs Balbi at one ofthe weekly meetings on 17 November 1999. The


respondent was particularly concerned in relation to theconfrontational manner of communication between theapplicant and Mrs Balbi. As a result of this meeting, aletter dated 25 November 1999 from Mr Woodford to theapplicant issued, which, formal parts omitted, was in thefollowing terms—

“Since our meeting on 17 September 1999 when wediscussed my concerns about your relationship withthe Head of your Department and some perform-ance issues, there has been some short termimprovement in your relationship with the Head ofDepartment.However, in the last fortnight the situation hasdeteriorated to an intolerable level culminating withthe unpleasant exchange you had with your Headof Department at your appraisal meeting 17November 1999.At the meeting on Monday 22 November attendedby you and I, Mrs Teresa Howe from the ISSOA andyour Head of Department it became quite evidentthat we would not reach a resolution. From yourdenial of matters referred to in verbal or written com-munication between you and Mrs Balbi, it is apparentyou did not share the same interpretation of theevents/issues as Mrs Balbi.Independently and in the company of Mrs Howe, wehave interviewed several staff from the Food & Tex-tiles Technology Department. Having given dueregard to all the comments we have heard, I havereached the conclusion that you are unable to clearlyrecognise your Head of Department’s point of viewand are unaware of the manner in which you re-spond to her.You must desist from the confrontational mannerin which you communicate with Mrs Balbi. Fail-ing this we will not be able to retain your servicesand the next instance of unacceptable behaviourwill result in dismissal.To assist you with resolving this issue I offer you theservices of the College Counsellor. On the otherhand, if you do not believe that you can modify yourattitude towards Mrs Balbi I strongly recommendyou seek alternative employment thereby avoidinghaving a dismissal on your record.Please do not hesitate to contact me if you need todiscuss this matter.”(My emphasis)

8 The applicant testified that she had no doubt that thisletter was a letter of warning. The letter was tendered asexhibit R2.

9 The applicant said after receiving this letter, she went onsummer leave and intended to return to school for a freshstart. It was the applicant’s evidence that on resumptionof school and during the 2000 year, she made every effortto perform her duties well and said that she received nowarnings at all throughout this period. In particular, theapplicant testified that since receiving exhibit R2, she hadno further direct contact with Mr Woodford. Theapplicant’s evidence was that during the course of the2000 school year, she did not consider her job to be injeopardy. In cross-examination, a number of events inrelation to work performance were put to the applicantwhich occurred in the period February through to August2000. These matters were the subject of evidence fromMrs Balbi, and in addition, contained in a documentheaded “diary notes re—Marilyn Muggeridge 2000”tendered as exhibit R7. There was some controversy inrelation to the tender of this document into evidence, towhich I will make some reference below.

10 These matters included the applicant arriving late for workand leaving work early; taking longer than usual lunchbreaks; not assisting teachers in class as directed; failingon occasions to properly set up for class or failing to setup class at all as required; forgetting to undertake certaintasks, some of which were minor in nature; and generallydisplaying less than a positive work ethic. Additionally,allegations in Mrs Balbi’s evidence and exhibit R7, related

to an ongoing unco-operative attitude exhibited by theapplicant. Many of these incidents were denied by theapplicant or alternatively, she could not recall themoccurring. In relation to what appeared to probably bethe matter of most concern to the respondent, that beingfailing to set up classes or properly set up classes, theapplicant could only recall one instance where she failedto set up a class. On the respondent’s evidence, it appearedthat this occurred on at least four occasions.

11 Events appeared to come to a head somewhat in August2000 when on or about 7 August 2000, the applicantinjured herself as a result of a slip on an area of wentfloor. The applicant testified that she notified Mrs Balbiof the incident and was informed that a note would bemade of this and it would be followed up. The applicantsaid that as she heard nothing further, she took it uponherself to inform the respondent’s health and safety officerof the incident, believing this was the appropriate thingto do. Apparently, this resulted in some involvement bythe cleaning staff of the respondent.

12 The day after the incident, the applicant said she informedMrs Balbi that she had spoken to the head cleaner aboutthe matter. On or about 11 August 2000, the respondent’shealth and safety officer Ms Hitchins, requested herattendance at a meeting about the incident. As theapplicant was in class at the time, she said that sheinformed the teacher Ms Jones, that she would be leavingthe class for approximately five to 10 minutes to attendthis meeting. On her return about 10 minutes later, theapplicant testified she was confronted by Mrs Balbi whoasked where she had been. The applicant said she toldMrs Balbi that she had advised her teacher of herwhereabouts and that she did not have a practical class atthat time. Her evidence was that she wanted to avoid goinginto detail about her whereabouts as she was sensitive tothe fact that she had initially reported the matter to MrsBalbi, but had later herself become involved with thehealth and safety officer about the incident. The applicantsaid there was no argument between herself and Mrs Balbiat this point. The applicant denied that she told Mrs Balbithat she did not have to advise her as to where she wasand agreed that if this had been said, that it would beinsubordinate.

13 The next event occurred on or about 28 August 2000according to the applicant. She was informed by Mrs Balbithat she was to report to Mr Woodford’s office. She hadno prior knowledge of this meeting. The applicant testifiedthat on arriving in Mr Woodford’s office, she was handeda letter of the same date and asked to read it. Formal partsomitted, this letter provided as follows—

“Over the last 12 months we have had continuingdiscussions with you regarding a number of unsat-isfactory aspects of your job performance and yourinteractions with your Head of Department. Our in-tention was to indicate these to you and to work withyou to rectify this situation. This culminated in aletter to you dated 25 November 1999 in which weindicated the seriousness of the situation and its pos-sible consequences to you in retaining your position.Since our intention is to work positively with ourstaff and work together to maintain a friendly andproductive work environment we were gratified tosee some early signs of improvement in both of theareas in question. However this improvement hasnot been sustained and the situation has reachedcrisis point.Since sending you the November 1999 letter I havekept myself informed about your progress duringperiodic discussions with the Head of Food & Tex-tiles Technology. An examination of the situationindicates that there are a number of areas in whichyour performance has been unsatisfactory. Theseare—

• Punctuality, late arrivals for work• Taking extended lunch breaks• Attitude to your work• Relationship with Head of Department


• Repeatedly not setting up for lessons• Setting up in wrong class rooms

The matter of not setting up for classes or setting upin the wrong room is of particular concern as it isvery disruptive for the students and the teacher in-volved. It reflects on the quality of teaching providedat Penrhos College. Of even greater concern is yourrepeated resistance to respond to ongoing counsel-ling offered by Mrs Balbi on strategies to overcomethis problem and how to improve your performance.There is also the issue of your behaviour recentlyduring an incident resulting from your unexplainedlengthy absence from the department during classtime. Your response to the Head of Department, in-sisting she did not need to know where you were andthat you did not have to tell her, was insubordinate.I conclude that the situation is much like it was lastNovember and your continued employment atPenhros College is not viable. I request that you givefour weeks notice of your resignation or you willleave me with no alternative but to terminate youremployment.It is intended that you will not be required to serveout your notice thereby providing you with four weeksto seek other employment.”

14 The applicant testified that the letter came as a completeshock to her. She said that she had no opportunity torespond to the allegations. She said that she tried to speakup but Mr Woodford would not let her answer. MrWoodford then escorted her from the premises, on theapplicant’s evidence, in the full view of other staff. Shewas requested to return her keys and collect herbelongings as a part of this process.

15 The applicant said she felt ashamed and embarrassed bythis and was in shock. Upon considering her position,the applicant testified that she refused to resign assuggested in the letter of 28 August, and subsequentlyreceived a letter dated 5 September 2000 terminating heremployment by paying two weeks salary in lieu of notice.Both of these letters were tendered as exhibits A8 and A9respectively. The applicant said that the allegations ofunsatisfactory performance referred to in the letter of 28August were never put to her either by Mr Woodford orby Mrs Balbi. She said that she had no discussions at allwith Mr Woodford in the year 2000 concerning heremployment.

16 The applicant gave evidence in terms of events post herdismissal. She had not as at the time of the hearing ofthis matter, been able to gain any employment since herdismissal. She testified that it took up to 19 January 2001to receive the monies that she was lawfully entitled ontermination of her employment. The applicant testifiedthat as a consequence of the manner and timing of herdismissal by the respondent, she felt personally aggrieved,distressed, betrayed, shocked and deeply hurt.

17 Evidence was adduced on behalf of the respondent fromMr Woodford and Mrs Balbi.

18 Mr Woodford testified that his source of information inrelation to the applicant was Mrs Balbi. He said that inthe last two weeks of August 2000 or thereabouts heformed the view, after conducting his own research intothe matter that the applicant could no longer remain inemployment with the respondent and decided to suggestthat she resign. Mr Woodford quite readily conceded thathis last direct involvement in the applicant’s employmentwas the meeting in November 1999, leading to theissuance of exhibit R2. Mr Woodford testified that hetried to put in place the weekly meeting process, toreconcile both the applicant and Mrs Balbi in theirworking relationship. Not unimportantly, Mr Woodford,to his credit, admitted that the formal meeting processthat took place was stressful on both of them and probablywas a mistake, in retrospect. His evidence also was thathe requested Mrs Balbi to keep and produce a diary ofevents for him so he could monitor the position.

19 Mr Woodford said that as a result of the August 2000incident, involving the occupational health and safety

officer, he came to the conclusion that the applicant andMrs Balbi could no longer work together. It was hisevidence that this incident was “the straw that broke thecamel’s back”. Mr Woodford also appeared to beconcerned that in the very first meeting he had on 17September 1999 with the applicant, she did not appear torecognise there were issues between her and Mrs Balbi.

20 Mr Woodford was extensively cross-examined. Whilstbeing concerned in relation to the applicant’sperformance, Mr Woodford accepted that the paragraphhighlighted above, of exhibit R2, refers to the applicant’salleged confrontational manner in which shecommunicated with Mrs Balbi. He also accepted that thiswas the reference to the “unpleasant exchange” that hadoccurred on 17 November 1999 between the applicantand Mrs Balbi which gave rise to the letter of warning asexhibit R2. Mr Woodford also agreed that prior toSeptember 1999, the applicant was meticulous in relationto the performance of her duties, and he did not expresslystate that work performance issues may lead to herdismissal. He said however, that in his view, there wereunderlying performance issues.

21 Based upon reports given to him from Mrs Balbi, MrWoodford said that the applicant’s performance in termsone and two of 2000 was acceptable and there were areasof improvement in her performance. It was also clear fromMr Woodford’s evidence that many of the allegations putto the applicant based upon the content of exhibit R7,Mrs Balbi’s diary notes, were not of great consequence.It appeared from his evidence, that the main concern MrWoodford had, was his view that productivity in the homeeconomics department was being compromised, and inparticular was concerned about the failures by theapplicant to set up for classes. In this regard, Mr Woodfordaccepted that there were a total of four classes not set upduring the entire term three.

22 As to specific warnings about work performance, asopposed to the attitude towards Mrs Balbi, Mr Woodfordsaid that there were no specific warnings given to theapplicant during the 2000 school year. He relied uponthe November 1999 letter (exhibit R2) in this regard.

23 The “performance management” process that appearedto have been utilised with the applicant, was the subjectof evidence from Mr Woodford. He accepted that the detailof the scrutiny placed upon the applicant by Mrs Balbi,including matters of an apparently minor nature, may wellhave contributed to the degree of tension between themin their working relationship and if there had been a lessintensive process that might have assisted in theirrelationship improving.

24 It was also the case from Mr Woodford’s evidence, thathe was aware that Mrs Balbi had some concerns aboutthe applicant’s health and that this may have affected herwork performance to an extent. This issue was never raisedby Mr Woodford with the applicant or anyone else itseems. As to the letter of 28 August 2000 (exhibit A8),Mr Woodford agreed in evidence that the performanceissues set out, apart from the relationship with the headof department, had not been the subject of any expresswarning by him, or anyone else it seemed, either orallyor in writing. Mr Woodford also accepted that the issuereferred to in the third last paragraph of exhibit A8,regarding the August 2000 incident, was never raiseddirectly with the applicant to ascertain her version of theevents. Additionally, Mr Woodford accepted that thetermination meeting that took place on 28 August 2000,leading to the applicant leaving the respondent that daywas a fait accompli and the applicant had no opportunityof responding to the allegations contained in the letter.Mr Woodford also accepted that in or about March 2000,the applicant had requested of Mrs Babli whether shewas being warned for her work performance and if socould she be provided a letter to this effect. Mr Woodforddeclined to provide a letter because on his evidence,exhibit R2 sufficed.

25 Mrs Balbi was the acting head of department of homeeconomics from mid 1998 and was formally in thatposition from about the beginning of 2000, as she said.


Mrs Balbi testified that she had concerns about theapplicant’s confrontational manner with her and what sheperceived to be a questioning of her authority in herposition as head of department. Mrs Balbi testified thatshe kept a diary of matters on Mr Woodford’s suggestionas a recollection of events and showed it to him in theirvarious discussions. It was her evidence that theapplicant’s performance was acceptable in terms one andtwo of 2000, although there were incidents as noted inher diary.

26 It appeared however, that in term three matters took aturn for the worse on Mrs Balbi’s evidence. She testifiedthat the applicant on several occasions failed to set upclass or set up incompletely. This had a disrupting effecton her students in the school timetable. Mrs Balbi gaveevidence about a suggestion she made to the applicant toinclude more information in her dairy, to avoid thisproblem. When the applicant raised with Mrs Balbiwhether she was being warned for her performance, MrsBalbi confirmed in her evidence that she told the applicantthat she had already received the letter of November 1999.Mrs Balbi confirmed in her evidence that the applicantdid say to her that she was not aware that her job was stillin jeopardy at this time. All this occurred in term two of2000.

27 Mrs Balbi also gave evidence about many of the mattersthe subject of her dairy notes contained in exhibit R7. Ido not intend to recite all of these matters covered in herevidence, apart from those referred to above. Many ofthese matters were accepted as being minor in nature.However, I have had regard to all of Mrs Balbi’s evidenceon these matters.

28 In relation to the incident in August 2000 involving theapplicant’s slip, Mrs Balbi testified that the applicant wasabrupt in her dealings with her and that she wasdisappointed that the applicant did not tell her that shehad already taken the matter up with the respondent’soccupational health and safety officer. Mrs Balbi said thatwhen she raised this issue with the applicant, she wastold that the absence from the classroom was none of herbusiness which upset Mrs Balbi. This appeared to haveled to Mrs Balbi going to see Mr Woodford to discuss thematter and clearly led to the meeting and letter of 28August 2000. Mrs Balbi said that she conferred withcolleagues about how to handle the situation with theapplicant and did not feel that she was victimising her.

Findings29 I turn to my findings in this matter. This is not a case in

which I have, having carefully considered all of theevidence and observed the witnesses giving theirevidence, a clear preference for the evidence of one partyover the other. I am satisfied that the witnesses gave theirevidence to the best of their ability, and I have no reasonto doubt the overall veracity of the evidence given byeach witness, despite there being some inconsistenciesand some areas in which the oral evidence does notprecisely correspond with the documentary evidence.

30 On the evidence I am satisfied and I find that some timeprior to September 1999, tension developed in theworking relationship between the applicant and MrsBalbi. The reason for this tension was not clear on theevidence to ground any particular finding. I am alsosatisfied that prior to about this time, the applicant was avery well performing employee, described by MrWoodford in his evidence as meticulous in theperformance of her duties. The applicant enjoyed herposition and had an affinity with arts and crafts work.

31 A meeting took place in September 1999, in relation towhich, some allegations about her working relationshipwith Mrs Balbi and work performance issues were put.These matters were the subject thereafter, of regularmeetings between the applicant and Mrs Balbi, at leastfor a period of time up to in or about November 1999.These meetings were stressful, and I find that they leadto an exacerbation of the tension between the applicantand Mrs Balbi. I also accept Mr Woodford’s evidenceand find that he regarded that process, in retrospect, asan error.

32 Consequent upon those regular meetings, and in particulararising from a meeting on 17 November 1999, a meetingtook place on or about 25 November 1999 leading to theissuance of a letter to the applicant of the same date. I amsatisfied on the evidence and I find, that it was the“unpleasant exchange” that was the crystallising factorleading to the meeting, with both the meeting and theletter focusing on the relationship between the applicantand Mrs Balbi in terms of allegations that the applicantwas confrontational in her manner. I find that it was thisissue that was the subject of the express warning in theletter of 25 November.

33 Subsequently, in terms one and two of 2000, someimprovement in the position appeared to occur, betweenthe applicant and Mrs Balbi. There was someacknowledgement of this on the evidence. I am alsosatisfied on the evidence that the applicant understoodher obligations to the respondent, as set out in exhibitR4.

34 At about the time of the start of the 2000 teaching year,Mrs Balbi commenced to keep a detailed diary in whichevents were recorded concerning the applicant’s day today work performance. This diary was recorded in greatdetail, including many matters which were conceded bythe respondent to be relatively minor or inconsequential.I am also satisfied on the evidence that the applicant’sperformance was subject to quite intense scrutiny by MrsBalbi. I am satisfied on the evidence, that despite theimprovements in working performance, some tension inthe working relationship between the applicant and MrsBalbi continued in the year 2000. It was apparent on theevidence that Mrs Balbi seemed to have expectations ofthe applicant that the applicant thought she was meeting,contrary to the assessment of Mrs Balbi.

35 On the evidence I am also satisfied and I find, that one ofthe most significant issues occurring in the year 2000was the applicant’s failure to set up for class or to do soproperly, on four occasions referred to in term three. Inote however, that given the number of classes requiredto be set up each day throughout the term, four instancesof such occurring is a very small number of the total. Ihave no doubt however, that such occurrences weredisruptive to the school program. I also accept on theevidence, that the applicant did experience some healthdifficulties at about this time, which were broadly knownby the respondent and it was aware that this may haveimpacted in some way, on the applicant’s performance atwork.

36 On all of the evidence I also find, that of all of the“performance” type issues referred to by Mrs Balbi inher evidence, and contained in the letter of 28 August2000 (exhibit A8) none of those issues were ever thesubject of any warnings to the applicant from either MrsBalbi or Mr Woodford, that the applicant’s employmentwas in jeopardy. I find also, that there was nocommunication at all between Mr Woodford and theapplicant in 2000.

37 In relation to the events of August 2000, I find that thoseevents probably did further exacerbate the tensionbetween the applicant and Mrs Balbi. I am satisfied thatMrs Balbi did probably feel somewhat put out by the factthat the applicant directed her inquiries to the respondent’soccupational health and safety officer and not throughher, after the initial report. I also accept that there mayhave been an exchange between the applicant and MrsBalbi, when the applicant was questioned about herabsence from the classroom. I am also satisfied and I findthat it was this matter which led to the meeting on 28August involving Mr Woodford. The applicant was notspoken to at all by Mr Woodford about the health andsafety matter, to ascertain her version of the events. Theapplicant had no inkling as to what this meeting was aboutand when she attended at the meeting she had noopportunity at all to respond to the matters put to her byMr Woodford. As described by Mr Woodford in hisevidence, this meeting was a fait accompli, leading to theapplicant’s dismissal on 6 September 2000.


Conclusions

38 The relevant principles in relation to these matters arewell settled. The test as to whether a dismissal is harsh,oppressive or unfair is whether the right of the employerto dismiss an employee has been exercised so harshly oroppressively such as to constitute an abuse of that right:Miles v Federated Miscellaneous Workers Union ofAustralia, Industrial Union of Workers, WesternAustralian Branch (1985) 65 WAIG 385. This involves aconsideration of the interests of the employer, and notjust the employee. Additionally, in assessing a claim suchas the present matter, it is not the province of theCommission to assume the role of the manager, but toconsider the dismissal objectively and in accordance withthe obligations imposed on the Commission pursuant toss 26(1)(a) and 26(1)(c) of the Act. Moreover, inobjectively assessing the circumstances of the case, thepractical realities of the workplace need to be consideredand a commonsense approach to the application of thestatutory provisions should be adopted: Gibson v Bosmac(1995) 60 IR 1. It is also the case in this jurisdiction, thatthe lack of any procedural fairness in matters such asthese can be a most important circumstance: Shire ofEsperance v Mouritz (1991) 71 WAIG 891.

39 In all of the circumstances, having regard to the findingsI have made and the applicable legal principles, I am ofthe view that the dismissal of the applicant was harsh,oppressive and unfair. In this case, the foundation for thedismissal, in terms of being warned of its possibility, wasthe letter of 25 November 1999. However, in my view,the respondent has a number of difficulties in this regard.Firstly, it was clear on the evidence that the warning thatissued from the meeting that took place, waspredominantly, if not exclusively, based upon allegationsof the applicant’s confrontational manner with Mrs Balbi.In this connection, as the letter itself records, the meetingconcerned arose out of the weekly meeting of 17November 1999, part of the process put in place by therespondent, conceded by it to have been a mistake. I haveno doubt that the weekly meeting process was verystressful for both the applicant and Mrs Balbi, particularlythe applicant. In my view it was harsh to base a writtenwarning upon the outcome of a process which therespondent itself conceded was in the circumstances,inappropriate and one that certainly did not ease tensionsbetween the parties concerned, but rather, appeared tohave had the opposite effect. Whilst it is not for theCommission to sit in the chair of the manager, in light ofthe experience of these meetings, a far better course inmy view would have been to provide a fresh start, in termsof the tension between the applicant and the respondent,and consider other ways of addressing the issue.

40 Secondly, the written warning itself, having been issuedin unfair circumstances, and then being completely reliedupon by the respondent subsequently, in my view taintedthe entire ensuing period with unfairness. This was allthe more so given that the performance issues, notexpressly the subject of the 25 November letter, were inmany respects minor, and the issue of setting up classes,occurring over a relatively small number of occasions interm three.

41 In relation to the performance allegations set out in therespondent’s letter of 28 August 2000, it was clear on theevidence that none of these issues were ever put to theapplicant in the context of her employment being injeopardy. This situation was exacerbated by the fact thatsome time in term two, the applicant inquired of MrsBalbi whether she was being formally warned for someof these performance issues, which drew no furtherresponse from Mr Woodford and at best, a generalresponse from Mrs Balbi. Moreover, the final meetingon 28 August 2000 was clearly, as admitted by therespondent to its credit, a fait accompli, with noopportunity at all for the applicant to respond. Ofparticular note in this regard, is the fact that the healthand safety issue, described by the respondent as the “strawthat broke the camel’s back”, was not the subject of anyinquiries of the applicant by Mr Woodford, as to her

version of the events, before deciding to dismiss her. Onthese bases alone in my view, the dismissal could be saidto be harsh, in that the applicant was denied anyopportunity to defend herself.

42 In light of my conclusions as to unfairness, it isunnecessary for me to conclusively deal with thesubmissions of counsel for the applicant as to whetherthe dismissal was unlawful, given the relevant terms ofthe Award. However in my view, there is something tobe said for the applicant’s submissions that clause 6(4)of the Award does not confer a right on an employer boundby it, to terminate a contract of employment by thepayment in lieu of notice. There is a distinction to bedrawn between a right to do so on the one hand, and thecreation of a liability for breach, in the form of liquidateddamages, on the other (cf for example clause 6 of theMetal Trades (General) Award 1966). However, on a closereading of the respondent’s letter of 5 September 2000(exhibit A9) the respondent did not dismiss the applicantby paying in lieu of notice. It gave the applicant two weeksnotice in accordance with clause 6(4) of the Award, butrelieved the applicant of the need to work in this period.In my opinion, the effect of this was that the contract ofemployment came to an end on 20 September 2000,although the applicant was not required to work duringthis period.

43 I turn now to the question of the relief to be granted. I amsatisfied on the evidence that the working relationshipbetween the applicant and Mrs Balbi had broken downsuch that any order of reinstatement would beimpracticable. I therefore turn to the question ofcompensation. I apply the principles set out in Bogunovichv Bayside Western Australia Pty Ltd (1998) 78 WAIG3635 and Tranchita v Wavemaster International Pty Ltd(1999) 79 WAIG 1886. On the evidence I am satisfiedthat the applicant took all reasonable steps to mitigateher loss, the contrary not having been established by therespondent: Bogunovich.

44 Having regard to all of the circumstances of the case, Iconclude that the applicant should be compensated forher loss to the fullest extent possible, subject to the capin s 23A(4) of the Act. I am not persuaded that theapplicant has established on the evidence, any claim forcompensation for injury: Lynam v Latanga Pty Ltd (2001)81 WAIG 986; Coms 21 Ltd v Lui & Ors 47 AILR 4-229.

45 In the absence of the applicant earning any other incomein the intervening period, and my findings, I assesscompensation in the sum equivalent to the loss of sixmonths remuneration, that being $13,760.00 in roundterms.

46 There is one final issue upon which I wish to comment. Ihave noted above there being some argument betweencounsel for the applicant and the agent for the respondentconcerning Mrs Balbi’s diary notes and their tender intoevidence as exhibit R7. Whilst it is not uncommon forparties in proceedings such as these to seek to tender intoevidence diary notes and the like, said to corroborate orotherwise support oral testimony, in my view, suchmaterials need to be treated with considerable caution,given their propensity to be self serving and to provide aparty the opportunity to “pull up its case by its bootstraps.” They sometimes also offend against the ruleprecluding the use of previous consistent statements tobolster the credibility of a witness called by a party: SeeCross on Evidence 4th Ed at para 17250; Gillie v PoshoLtd (1939) 2 All ER 196.

47 Whilst clearly, by s 26(1)(b) of the Act the Commissionis not bound by the rules of evidence, that does not meanthat a party is freed from the obligation to establish itscase by credible evidence. Moreover, in cases of thisparticular kind, involving the vindication of an individuallegal right between contesting parties, it is notinappropriate in my view, to apply the general principlesof the rules of evidence, to ensure that both parties receivea fair hearing. That does not mean of course that theabsolute technical rules of evidence should be used, butsome latitude is applied, having regard to the nature of


the matter before the Commission: Bunbury and DistrictBranch of the Metropolitan and South-WesternAmalgamated Certified Engine Drivers Union v Millars’Karri and Jarrah Co (1902) Ltd (1910) 9 WAAR 219;Coastal District Timber Hewers’ Union v Millars’ Karriand Jarrah Co (1902) Ltd (1906) 5 WAAR 93; Baron vGeorge Western Foods Ltd (1984) 64 WAIG 590;Australian Workers Union, WA Branch v Hamersley IronPty Ltd (1986) 66 WAIG 322; ALHMWU v AirliteCleaning Pty Ltd (2001) 81 WAIG 1162.

48 Accordingly, I have placed considerably less weight onexhibit R7, than the oral testimony led in theseproceedings.

49 A minute of proposed order, giving effect to these reasons,now issues.

2001 WAIRC 03676


PARTIES MARILYN MUGGERIDGE,APPLICANTv.PENRHOS COLLEGE (INC),RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED WEDNESDAY, 5 SEPTEMBER 2001FILE NO/S APPLICATION 1502 OF 2000CITATION NO. 2001 WAIRC 03676_________________________________________________________________________

Result Application upheld. Order issued.RepresentationApplicant Mr T Dixon of counselRespondent Mr R Gifford as agent_________________________________________________________________________

Order.HAVING heard Mr T Dixon of counsel on behalf of the appli-cant and Mr R Gifford as agent on behalf of the respondent,the Commission, pursuant to the powers conferred on it un-der the Industrial Relations Act, 1979, hereby—

1. DECLARES that Ms Marilyn Muggeridge washarshly, oppressively and unfairly dismissed fromher employment, as a home economics assistant, bythe respondent effective 20 September 2000.

2. DECLARES that reinstatement of Ms Muggeridgeis impracticable;

3. ORDERS the respondent to pay to Ms Muggeridgethe sum of $13,760.00 less any amount payable tothe Commissioner of Taxation pursuant to the In-come Tax Assessment Act 1936 and actually paidwithin 7 days of the date of this order.

(Sgd.) S.J. KENNER,[L.S.] Commissioner.


INDUSTRIAL RELATIONS COMMISSION.PARTIES ANDREA NIBLETT, APPLICANT

v.KOOLKUNA EASTERN REGIONDOMESTIC VIOLENCE SERVICESNETWORK, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED THURSDAY, 30 AUGUST 2001FILE NO. APPLICATION 2072 OF 2000CITATION NO. 2001 WAIRC 03652_______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr P Ward of CounselRespondent Mr M O’Connor as Agent_______________________________________________________________________________

Reasons for Decision.1 This is an application pursuant to section 29(1)(b)(i) and

(ii) of the Industrial Relations Act, 1979 (the Act). Theapplicant, Ms Andrea Niblett alleges in her applicationthat she was unfairly dismissed from her position at the(Koolkuna) refuge on 24 November 2000. The reasonsgiven were—

• Conflict of hours between Koolkuna and the East-ern Region Domestic Violence Prevention Council(the Council)

• Poor performance in regard to communication• Attending work for another employer whilst on sick

leave from Koolkuna.2 The applicant also claims a denied contractual benefit of

$22,272 less wages paid from 31 July 2000 for what shesays is the remainder of her contract as the Coordinatorof Koolkuna.

3 The respondent, the Eastern Region Domestic ViolenceServices Network, is an organisation run by a voluntarycommittee of management, an incorporated body, and isprimarily set up to receive funding through the Familyand Children’s Services Department to operate domesticviolence services. In particular the respondent operates arefuge known as Koolkuna where the applicant wasemployed.

4 The applicant commenced work with the respondent ona part time basis on 23 March 1999. She was employedas a support worker to assist with the administrative andgeneral domestic duties at the women’s refuge. On 11March 2000 she says she was appointed to the positionof refuge Coordinator and another employee, Ms PraneePawaboot, was employed as the Manager of the refuge.These staffing changes arose when the then Manager, MsLorena Rose, left to take up a temporary position withDepartment of Family and Children Services. As aconsequence of difficulties in the working relationshipbetween Ms Pawaboot and Ms Niblett, and the consequenteffect on services, Ms Pawaboot was dismissed from herposition on 31 July 2000 and Ms Niblett was demoted tothe position of support worker effective from the samedate. At that time a Ms Avezzu took over the managementof the refuge. Ms Pawaboot filed two applications in theCommission for unfair dismissal and denied contractualbenefits. These applications were dealt with byCommissioner Smith and orders issued on 4 May 2001.

5 It is clear that the conflict between the parties stemmedfrom the poor working relationship engendered betweenMs Pawaboot and the applicant and the concern of thecommittee for the services operated due to the frictionbetween these two senior staff, who had previously beenfriends. Secondly, and most importantly, the conflictrevolved around the absence of the applicant fromKoolkuna to attend to her duties with the Council. Thirdly,the respondent expressed ongoing concern about MsNiblett’s communication skills vis-à-vis clients and staff.


6 When Ms Lorena Rose was seconded to a 12 monthposition in the Family and Children Services Department,both Ms Pawaboot and the applicant, following a selectionprocess, were given twelve month contracts in theirrespective roles of Manager and Coordinator. MrO’Connor for the respondent says—

“The clear intention of the committee was that thiswas to be a temporary assignment but unfortunatelythe way on which the appointments were made bythe manager did not properly reflect the intentionsof the committee and there’s no doubt that the ap-pointments that were given to the two employeeswere purported to be for a 12 month term and didn’tstate sufficiently accurately that this was clearly inthe absence of the manager or whilst they appropri-ately performed the duties of the position.”(Transcript Pg 224-225)

7 The position which Ms Niblett held as Coordinator wasa Level 6 position under the Crisis Assistance SupportedHousing Award (a federal award). The award was used asthe benchmark for funding and employment of staff. Theappointment was for a full-time position.

8 Ms Niblett was removed from the position of Coordinatoron 31 July 2000 and, although this is in contention, thenperformed as a Level 4 Support Worker at Koolkuna untilshe was ultimately dismissed on 24 November 2000. Therespondent says that the applicant accepted the changeof contract from Coordinator to Support Worker until suchtime as she was ultimately dismissed from Koolkuna. Therespondent says the demotion related in part to MsNiblett’s own actions but was primarily due to thedismissal of Ms Pawaboot and not being able to havetwo people perform the Coordinator role, which in anyevent was finally removed as a position.

9 The applicant says that she was not dismissed from theposition of Coordinator but that there was a variation ofthe contract; she continued to work full-time and onlythe designation of the position changed. Ms Niblett saysthat she continued to do some of the duties of theCoordinator.

10 I will deal with this matter first as the evidence is clear. Ido not accept Ms Niblett’s evidence that she continued todo some of the duties of the Coordinator’s position atKoolkuna post 31 July 2000. The evidence was self-serving and quite unconvincing. In contrast it is clear thather contract as the Coordinator was terminatedconsequential to Ms Pawaboot being dismissed from theposition of Manager. The contract was for a twelve monthperiod and clearly a dismissal from the position ofCoordinator took place. That was the full-time contractoperative at the time, regardless of whether the respondentintended the contracts to operate otherwise. I make nofinding as to whether the dismissal at that time was unfairor harsh as it is not necessary to do so. Ms Niblett’sremedy would have been to lodge a claim for unfairdismissal. She did not do so and cannot successfully makesuch a claim now as she is out of time (E.J.Richardson vCecil Bros Pty Ltd 74 WAIG 1018). I also have no doubtthat Ms Niblett accepted the change until she wasdismissed from the Level 4 position many months later.A complaint was raised on her behalf by Mr Bibby, aunion official, but was not pursued with vigour. For thesereasons I would dismiss the claim relating to deniedcontractual entitlements.

11 This leaves the issue as to whether Ms Niblett was harshly,unfairly or oppressively dismissed from her full-timeposition as a Level 4 Support Worker. The principlesapplied in Undercliffe Nursing Home—v- FederatedMiscellaneous Workers’ Union of Australia, Hospital,Service and Miscellaneous, WA Branch 65 WAIG 385are what must guide the Commission in thesecircumstances. That is did Ms Niblett receive a fair go allround? Mr Ward for the applicant says that as of 10 July2000 Ms Niblett had a clean bill of health. The letter ofMrs Day (the Chair of the Koolkuna managementcommittee) to her says—

“I must apologise for the delay in confirming ourverbal discussions on 26 June 2000.

This letter is to confirm the outcome of the reviewmeeting held on Monday 26 June 2000 regardingtwo final performance concerns outlined in my let-ter of 12 May 2000.We discussed and agreed that the level of improve-ment in your communication style and support andcooperation with the Manager during the reviewperiod, has demonstrated the standards required wereachieved.On behalf of the Management Committee, I wouldlike to say that I am pleased that the matters of con-cern have been resolved.It is also the expectation of the Management Com-mittee that now you have demonstrated theseperformance standards, they will continue to be metin the future.”

This is document 27. A bundle of documents was providedto the Commission as agreed by the parties, albeit theyvaried on the weight to be attached to some of thedocuments (Transcript pg 302). The respondentchallenges that this letter also related to the resolution ofthe time-keeping concerns.

12 In addition, Mr Ward on Ms Niblett’s behalf says thatthere was a history of management taking issue with MsNiblett’s dual performance of her Koolkuna and Councilresponsibilities and then acquiescing. He characterisesthis as acceptance by management, which would alter,when they had other complaints that they sought to raisewith Ms Niblett. At such times concerns regarding aconflict of roles would be resurrected. Mr Ward says thatnothing of concern appeared in Ms Niblett’s performancefrom 10 July 2000 until her dismissal on 24 November2000 except for a report from one of the residents whichhe says is unreliable. He says also that the specialcommittee meeting of 12 November 2000 made it clearthat the applicant was to be dismissed and that nothingshe could do or say to Mrs Day after that committeemeeting could have changed the course of her dismissal.Hence he alleges that her dismissal was both procedurallyand substantively harsh and unfair.

13 The letter of dismissal of 24 November 2000 (Document45) states—

“Dear AndreaRe: My letter of 16 NovemberMeeting of 14 NovemberI acknowledge receipt of your written response tothe aboveThe Management Committee have carefully consid-ered your response and have determined that it doesnot adequately address our concerns over your per-formance and behaviour. Despite previousdisciplinary action by the committee, issues and con-cerns consistent with the initial disciplinary actionhave continued. You have clearly failed to accept thatthe Committee, being the legal employer, has notsanctioned the manipulation of your working hoursto allow you to work for two organisations concur-rently.The Committee believes that your actions in obtain-ing medical justification for your absence from dutyat Koolkuna whilst brazenly attending for work withanother organisation reflects the degree of non com-mitment to Koolkuna and its clients and is indicativeof the extent to which you have gone to defy thewishes of the Committee.Further, your response to the written complaints re-ceived from clients did not adequately address theconcerns of the Committee. There is consistency incomplaints received from clients which demonstratesthat your communication style is inappropriate inan agency dedicated assisting women in crisis.Your statement that the Management Committee ‘notside with clients so readily” has been considered.Whilst it is accepted that “clients are often extremelysensitive”. It is the case that whilst there are numer-ous written and verbal complaints on record from


clients, staff and other organisations regarding yourbehaviour, there are none concerning other staff ofKoolkuna with similar roles.After serious consideration of all the issues involvedand with regard to the consistency of concerns, andyour continual non-compliance to the behaviourexpected of a staff member of this organisation theCommittee has unanimously determined that youremployment with Koolkuna be terminated as ofMonday 27 November 2000 on the grounds of un-satisfactory service.Under these circumstances you will not be requiredto serve a period of notice. You will be paid in lieuof the notice period and will be paid all accrued andpro rata annual leave to which you are entitled. Aseparation certificate and cheque together with astatement outlining leave entitlements will be mailedto you within the next three days.”

14 The final payments to Ms Niblett are not challenged. MsRose was Ms Niblett’s manager on appointment and waspart of the selection panel which recommended her forthe Coordinator’s position. She was also the Chairpersonof the Council for half of 1999 and for the year 2000 andwas on the selection panel which recommended MsNiblett for the coordinator’s job with the Council. Herevidence is that Ms Niblett was a conscientious workerwho worked well with the women and the children andin the court support programme. She says that theapplicant’s work at Koolkuna and with the Council wascomplementary. The issue of Ms Niblett’s dualresponsibilities at Koolkuna and the Council were raisedat the interview for the Koolkuna Coordinator. The rosterwas drawn up to accommodate Ms Niblett’s dual role.She says that Pranee, Andrea and her worked together onthe roster.

15 I have no difficulty accepting the evidence given by MsRose. She was direct in her evidence and under cross-examination and the importance of what she had to say isthat in her view there was full knowledge of Ms Niblett’sdual positions at the time she was offered the KoolkunaCoordinator’s position, both by Pranee and at least onemember of the committee. Ms Niblett’s dual role in herview was of relevance to Koolkuna and wasaccommodated through rostering changes. It is clear fromher evidence also that the dual role was accepted on thebasis of no conflict with her duties at Koolkuna(Document 7).

16 Ms Avezzu, similar to Ms Rose, is now outside theoperations of Koolkuna and gave a clear and objectiveaccount of matters arising during her time as Manager. Iaccept her evidence. I accept also the evidence of MrsDay who was involved in much of the activities designedto correct the staffing or other problems that were beingexperienced at Koolkuna. I was impressed with her as awitness. I have no difficulty accepting as credible theevidence provided by Dr Wilson and Ms Wright, albeitthe evidence of Ms Wright was accompanied by a degreeof hesitancy under cross examination.

17 I am less convinced that the evidence of Ms Niblett canbe accepted without question. She was neither consistentnor direct in parts of her evidence. In particular, I doubtgreatly her evidence surrounding whether she continuedto perform the duties of the Koolkuna Coordinator after31 July 2001. I also found her evidence concerning herapplication to hours quite unconvincing. An example ofthis is clearly seen at Transcript pg 65-67 where sheindicates that she was allowed one afternoon a month offfor the Council meeting but also was aware of substantialday time hours required for Council work. I would preferthe evidence of Mrs Day and Ms Avezzu to that of MsNiblett.

18 The two issues of most significance relate to the allegationthat Ms Niblett failed to follow the directions of therespondent by attending to the work of the Council duringher hours of work for Koolkuna. There is also theallegation that Ms Niblett failed to communicate properlywith clients. I do not consider this latter point to be ofequal importance in determining whether the termination

of the applicant’s services was fair or otherwise. Whilst Iaccept the evidence of Mrs Day in respect of clientconflicts with Ms Niblett, the investigation of the matterscannot be said to be conclusive, or given Ms Niblett’sotherwise record of service to Koolkuna, sufficient to leadto her dismissal. This is not to say that I do not acceptthat they were ongoing issues of concern.

19 Ms Niblett says that she had an arrangement withKoolkuna to accommodate her work with the Council.This is consistent with the evidence given by Ms Roseand the evidence also is that the arrangement was thatthere was not to be conflict with her work at Koolkuna. Ifind that there was initially an arrangement with Koolkunato accommodate Ms Niblett’s work at the Council, onthe basis of no conflict with her work at Koolkuna. MsNiblett says that the problem was that conflict arose asthe rosters were changed regularly and this made it hardfor her to fulfil both roles. She also says that she was toldto put down regular hours on her time sheets rather thanthe actual hours worked. This evidence is in direct contrastto a direction from Ms Pawaboot of 20 March 2000, whichwas initialled by the applicant (Document 9). It is also incontrast to very early concerns raised on behalf of thecommittee about her conflict in hours (Documents 10,12 and 19 as examples).

20 Ms Niblett says that Ms Avezzu prevented her fromattending the Council during Koolkuna’s hours, that on6 September and 11 October 2000 she attended theCouncil while on sick leave from Koolkuna and that thespecification of the hours she was to work for the Councilwas challenged and clarified. Document 35, the minutesof the Council, in part state—

“Availability of the Co-ordinator for 20 hours perweek. The Co-ordinator clarified that she was basedat the office in the old Midland Library on thefollowing days and times—

Monday 8am-10:30amTuesday 8am-10:30amWednesday 8am-10:30amThursday 3:30-5:30pmFriday 3:30-5:30pm”

21 Ms Niblett’s version at Transcript pg 67 is—“(MR O’CONOR): Yes. How was it possible thatyou were able to indicate to that organisation theywere the times you could work for them when theywere certainly some of the times in which you wouldhave to work at Koolkuna?(MS NIBLETT)—I will have to repeat again that inSeptember, around this date I thought?—our rosterwas done. Up—and we were informed in that meet-ing—I can’t remember what’s the date, that that willbe the roster for 3 weeks. So when I received thatand I was asked by my other management commit-tee what are the days that I could work for them,because they have agreed that they could accommo-date month to month changes to help me be able todo what jobs. But as soon as I have already submit-ted this schedule the time that the—what do you callit, the roster has been changed again.”

22 Mrs Day was part of the selection panel who appointedthe applicant as Coordinator for Koolkuna. She says thatthe issue of a potential for conflict between the two jobswas raised and discussed at interview. Document 12 raisesthe concerns of the committee soon after Ms Niblettstarted in the Coordinator’s role. The letter is clear andsupported by the evidence of Ms Rose in that she saysthat there should not have been conflict in the roles andMonday was left free in the roster for Ms Niblett’s Councilbusiness. The Commission can only surmise from theevidence and the letter that the whole situation was notclarified to everyone’s common understanding andagreement prior to Ms Niblett taking on the KoolkunaCoordinator’s role. Document 12 says—

“Dear AndreaI am writing to inform you that your letter of ap-pointment to the position of Refuge Co-Ordinator,


written on 11 March 2000, was written without theauthorisation of the full Board of Management ofKoolkuna.The Board of Management accepted your appoint-ment to this position conditional on an immediatereview of the conditions of employment a) and b).These conditions are—

a) The non-interference of your role as ERDVPCCo-Ordinator within this organisation

b) Your availability between 7.30am and 6pmTuesday to Friday

At the Management Committee Meeting of 4 April2000 your joint roles as Coordinator and ERDVPCCo-ordinator was discussed at great length. It wasthe consensus of all Members present that the abovesituation is untenable as both positions held by you,require duties to be performed during 7.30am to 6pmMonday to Friday.An option put forward by the Members present whoare representatives of both Boards is that you mayneed to consider resigning from one of the positions.We feel that an urgent solution needs to be found tomeet the requirements of both your positions andrequest that a meeting be held as soon as possible todiscuss this further.Yours sincerelyDorothy DayChairperson—Koolkuna”

23 The evidence of Mrs Day is that Ms Niblett continued towork for the Council during times when she should havebeen working for Koolkuna and when her time sheet saidshe had worked for Koolkuna. Her evidence is also thatPranee Pawaboot was not capable of managing thesituation, the conflict between Ms Niblett and MsPawaboot was affecting staff and Koolkuna’s services andthat Mrs Day had to take over the disciplinary actioninvolving Ms Niblett. This led to Mrs Day issuing MsNiblett with a warning letter on 12 May 2000 which shesays was the first in the formal disciplinary process. Againthe terms of the letter are clear, and without citing theletter, it directed Ms Niblett to comply with a strict rosterto avoid conflict with her two roles, to communicateprofessionally with other staff and to comply withmanagement instructions. Ms Niblett replied to that letterstating that she had been put in an untenable position ofhaving to choose between the two roles, she had soughtlegal advice and that Mrs Day’s position was unfair.

24 There followed a period where Ms Niblett either did notattend to the Council because she was instructed not to,did attend but was on sick leave from Koolkuna or simplyattended. There followed a meeting of the managementcommittee of Koolkuna on 12 November 2000 where theyresolved to dismiss Ms Niblett. They made their decisionagainst a backdrop of concerns about inappropriatebehaviour by Ms Niblett to clients and her attendance atthe Council whilst on sick leave from Koolkuna. Therefollowed a discussion between Ms Niblett, Mrs Day andMr Bibby, a union official who represented Ms Niblett.The concerns of the management committee were putinto a letter of 16 November 2000. Ms Niblett replied on20 November 2000. The management committeeconsidered the response, decided to go through with thedismissal and Ms Niblett was advised by letter on 24November 2000, as previously cited.

25 The issue which is clear from all of the evidence is thatMs Niblett did not respond appropriately to the directionof the committee, through Mrs Day, to not allow herworking hours at Koolkuna to be adversely affected byher attending to Council business. Ms Niblett appearedto take the view that she should have been allowed tocontinue her Council work as required. She says therewas an agreement to allow her to do this. The evidencespeaks strongly against this and only displays aconditional accommodation of Ms Niblett’s dual rolessubject to no conflict with her Koolkuna work. Ms Niblettalso says that the arrangements she had for her Councilwork were fully known by the respondent and if not

endorsed, as per Ms Rose’s evidence, were accepted bythe respondent in that these arrangements were not hiddenin any way. Koolkuna had at all times a representative onthe Council; i.e. they knew what she was doing.

26 Weighed against this is the evidence of Ms Avezzu andMrs Day of the corrective action which they undertookto ensure that Ms Niblett complied with her hours of workfor Koolkuna. It is quite clear from this evidence, whichI accept, that Ms Niblett could have been left with noother impression than she needed to apply herself to herduties at Koolkuna during her rostered hours, albeit theserostered hours did change to a degree. The impressiongained is not one of acceptance by the employer but thatMs Niblett had a continual disregard of her employer’sconcerns and organised her working arrangements to herown advantage against the instruction of her employer.

27 The very clear view that I have formed after listening tothe evidence of Mrs Day and Ms Niblett in particular,after reading the train of correspondence between MsNiblett and Mrs Day, after checking the hours to beworked in the two jobs and the hours recorded by Niblett,and after hearing the evidence of Dr Wilson concerningMs Niblett’s stress induced by the situation at Koolkuna,is that Ms Niblett persistently failed to take proper regardof the concerns and directions of her employer. I amconvinced that Ms Niblett was stressed by the mattersarising at Koolkuna but I am also convinced that thosematters were of her own making and that she consistentlyengineered her hours of work to her own advantage. Atall times at hearing she sought to give the impressionthat the employer had acted unreasonably in the concernsthey raised continually. The impression Ms Niblett wishedto leave the Commission with was that she was entitledto do as she wished because she was a conscientiousemployee in the face of an unfair employer. This is farfrom how I view the matter. I find that Ms Niblettengineered her hours of work to her own advantageagainst the expressed concerns and directions of heremployer. It is on this basis alone, leaving aside the otherhistory of conflicts at the workplace between Ms Niblettand Ms Pawaboot and the concerns about communicationwith clients, I would find that Ms Niblett’s dismissal tobe fair (Undercliffe Nursing Home—v- FMWU).

28 I am also not convinced that there was an absence ofprocedural fairness arising from the managementcommittee’s decision of 12 November 2000. Ms Nibletthad an opportunity to put her case. She simply wanted tocontinue doing what she had been doing against theunderstandable concerns of the committee.

29 For the above reasons I would dismiss the application.


INDUSTRIAL RELATIONS COMMISSION.PARTIES ANDREA NIBLETT, APPLICANT

v.KOOLKUNA EASTERN REGIONDOMESTIC VIOLENCE SERVICESNETWORK, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED THURSDAY, 30 AUGUST 2001FILE NO. APPLICATION 2072 OF 2000CITATION NO. 2001 WAIRC 03650_______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr P Ward of CounselRespondent Mr M O’Connor as agent_______________________________________________________________________________

Order.HAVING heard Mr P Ward of counsel on behalf of the appli-cant and Mr M O’Connor on behalf of the respondent, the


Commission, pursuant to the powers conferred on it underthe Industrial Relations Act, 1979, hereby orders—




INDUSTRIAL RELATIONS COMMISSION.PARTIES RITA POWELL, APPLICANT

v.RONIN SECURITY PTY LTD,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED FRIDAY, 7 SEPTEMBER 2001FILE NO APPLICATION 1844 OF 2000CITATION NO. 2001 WAIRC 03700____________________________________________________________________________

Result DismissedRepresentationApplicant Mr D. Love (of Counsel) appeared on

behalf of the ApplicantRespondent Mr C. Martel (of Counsel) appeared on

behalf of the Respondent____________________________________________________________________________

Reasons for Decision.1 On 16th November 2000 Rita Powell (the Applicant)

applied to the Commission for orders pursuant to Section23A of the Industrial Relations Act, 1979 (the Act) onthe grounds that she had been the subject of a harsh,oppressive or unfair dismissal and was entitled tooutstanding contractual entitlements at the conclusion ofan employment relationship with Ronin Security Pty Ltd(the Respondent).

2 The Applicant alleges that prior to 12th October 2000 shewas employed by a company providing security servicesto Perth’s Domestic Airport where she workedapproximately 40 hours a week and was paid $16.60 perhour (Exhibit L1).

3 The Applicant said she was invited by the Respondent toan interview on or about 2nd October 2000, when she wasasked to complete an application form (Exhibit L2). Shealso supplied a resume (Exhibit L4).

4 On the day following an interview with Mr QuintonBluntish the Applicant says he called her and asked thatshe attend another interview with a Mr Ken Besson. TheApplicant says that at all times she believed that thesetwo men had the authority and power to recruit employeeson behalf of the Respondent.

5 It is claimed by the Applicant that during the initialinterviews the proposed hours of work were discussedand she told the men she would not accept any offer thatdiminished her existing conditions of employment. Thiswas in the context that she thought they were offering 22hours work per week. When she refused this offer sheclaims Mr Besson offered her 44 hours work per week.

6 The Applicant was unsure whether a money amount wasoffered to her at the meeting with Mr Besson but he didask the rate of pay at her airport job and she told him$16.60 per hour. There were then discussions about whatshifts she could work, for instance two shifts of 11 hoursat the Sunday Times and two shifts of 11 hours each atthe Perth Print site at a rate of $12.00 per hour for thefirst three months and $13.00 per hour thereafter. TheApplicant is emphatic that she turned down those moneyamounts because she was already getting $16.60 per hourand she would not be able to afford to take a drop in pay.

7 The Applicant says that she received a message to callMr Besson which she did. During that call he offered her

$13.00 per hour for the first three months and $15.00 perhour thereafter for a total of 44 hours per week. She hadsaid to him words to the effect that “…under thoseconditions and that amount of money, I accept the job”.

8 It was also claimed by the Applicant that she told MrBesson that she would not work weekends or nights. Hehad agreed that the job was purely day work. As a resultof the offers made to her she gave notice to her employer.

9 The Applicant says that on or about the 17th October 2000she rang Mr Quinton Bluntish and told him that she wouldaccept the conditions that Mr Besson had offered she wasthen invited to the Respondent’s office to discuss and signa workplace agreement and collect her uniform. At theoffice she was presented with a workplace agreement,she saw that it only provided for 40 hours per week. Shedrew this to the attention of Mr Bluntish telling him thather agreement with Mr Besson was for 44 hours pre week.The wage rate was also incorrect, Mr Besson hadpromised her $13.00 per hour for the first three monthsand $15.00 per hour after that. Mr Bluntish told theApplicant not to sign workplace agreement and said hewould speak to Mr Besson about her claims.

10 On 23rd October 2000 the Applicant reported for duty,she was to work an 11 hour shift. The subject of her paybecame an issue towards the end of the shift. TheApplicant says that a man, whom she could not identify,engaged her in conversation. During that conversation afemale workmate indicated to the man that she was gettingpaid $10.00 per hour. The Applicant then told her shewas getting more. According to the Applicant thisconversation caused her some concern.

11 On the evening of 23rd October she received a phone callat home from Mr Mal Westhead, a senior manager of theRespondent. In a later discussion with Mr Westhead theApplicant said he raised two complaints about herperformance. There was also discussion about the hourlyrate of pay. Mr Westhead said that no-one employed bythe Respondent was paid $15.00 per hour or $13.00 forthat matter, he also told her that there was only 33 hoursper week work available not 44 hours. The Applicant haddrawn the attention of Mr Westhead to her discussionswith Mr Besson. She had told him that Mr Besson hadoffered her $13.00 per hour for the first three months and$15.00 per hour after that.

12 Mr Westhead told her he would make enquiries and whilehe did she was not to report for work on site the next daybut instead was to come into the office. The Applicanthad told him she could not afford to do so: he told hershe would be paid as a training day.

13 As instructed she attended the office and the hourly rateand hours to be worked each week were discussed. TheApplicant said she was not offered 44 hours a week, atthat stage she was offered 33 hours a week at the rate of$11.00 per hour for the first three months and $12.00 perhour thereafter. Mr Westhead then said because of whathad occurred the Respondent would commence paying$12.00 per hour. But the Applicant insisted upon the termsshe thought were offered to her by Mr Besson. MrWesthead refused saying it is not possible for theRespondent to either pay $15.00 per hour or provide 44hours a week. The Applicant understood this to mean hewas refusing to honour the terms of the agreement shehad made with Mr Besson.

14 Later on there was another phone call and again theApplicant was told to come to another interview on thepromise that she would be paid. The same things werediscussed as during the previous interview, she stillasserted that Mr Besson had made promises to her andagain Mr Westhead rejected her assertions. Nothing wasresolved at the meeting. Mr Westhead told her to go homeand he would call her again. He rang on the evening of25th October and there was a discussion between them.This discussion was covertly recorded by one Mr DerekColin Smith the finance of the Applicant.

15 A transcript of the recording has been submitted to theCommission in Exhibit L2.

16 During the conversation the Applicant says that she askedMr Westhead if he thought she was lying to him about


her assertions. He did not dismiss her but there werediscussions about whether or not there would berepercussions if he did, but she did not allege that shehad been dismissed. The Applicant went to work on 26th

October and while at work she was advised that a facsimiletransmission had been sent to her home by Mr Westhead.A copy of the facsimile is included hereunder—

“Rita,1. Following our recent discussions surround-

ing your employment opportunity with ourcompany it is appropriate for me to confirmyour employment status and conditions. I alsowish to take this occasion to formally notifyyou of our actions to date relative to your al-legations surrounding comments made by ouremployee Mr Besson.

2. As discussed with you during our meetingsand again this afternoon per telephone, weare pleased to continue our offer of employ-ment to you either on the basis of a Work PlaceAgreement (WPA) or on a casual basis underaward conditions.

3. To this point in time we (yourself and RoninSecurity) have not entered into a WPA.

4. Your current employment status with our com-pany is as a casual employee under awardconditions.

5. Your request today for termination of your em-ployment and the issue of a dismissal noticeis not appropriate to the circumstances. Youhave not been dismissed and are not currentlythe subject of any professional standards mat-ter.

6. Dismissal and severance documents are onlyprovided to personnel who have been dis-missed due to misconduct related matters,never in the case of personal issues such asthe circumstances nominated by you.

7. To continue your ongoing training and devel-opment we request that you present yourselffor further training at the Sunday Times at0900 hours tomorrow, Thursday 26/10/2000and on Friday 27/10/2000.

8. Your allocated shift times for these days are0900 to 1700 (9.00am to 5.00pm). You will beshadowing the duties of Tracey O’Dea. Tracyis an experienced member of our team, pleasefollow her instructions and seek any directionsrelative to the duties innate to the post thatyou feel necessary.

9. You are required to take an unpaid meal breakfor one (1) hour between 1300 (1.00pm) and1400 (2.00pm).

10. Should you have any queries or experienceany difficulties whatsoever regarding thesetimings please do not hesitate to contact medirectly per telephone from 0830 (8.30am)tomorrow morning, Thursday 26/10/2000.

11. We have noted your comments regarding thepurported statements of our employee MrBesson. As discussed with yourself and yourfather earlier today, we will interview MrBesson surrounding this matter and have com-menced our review of the issues associatedwith your statement.

12. Upon our complete review of the associatedissues I will formally notify you of the out-comes.

13. I trust that the aforementioned employmentconditions are suitable to your availability andthat this course of action is congruent withthe current state of affairs.”

[Exhibit L7]The Applicant told the Commission that the offer set outin the facsimile was different to those that had beenpreviously made to her.

17 By the time the Applicant had been informed about thecontent of the facsimile by her finance she had alreadybeen told by Mr Westhead that her hours had been cut to21 per week. On advice an officer from a governmentdepartment she was told to walk out but she did not andinstead gave an hour’s notice (Exhibit L8). The Applicantlater signed a document acknowledging the receipt of herpay cheque. She did so not for the purpose of dischargingany claims she might have but because she was sufferingfrom stress and thought that the Respondent’s officersmight not release her pay cheque. A detailed payslip forthe Applicant is before the Commission in Exhibit L10.The Applicant says that this document reveals she hasnot been paid fully for the hours worked neither did shereceive the promised hourly rate.

18 The Applicant claims she was unfairly then treatedbecause the Respondent made a promise to pay an hourlyrate for a number of hours acceptable to her, they refusedto give her both, she left a perfectly good job on promisesthat had not been delivered. There was no question ofany misconduct by her.

19 The preceding is sufficient recitation of the Applicant’sevidence in chief, I will deal with matters raised by MrMartel (of Counsel) with the Applicant in his extensivecross examination of her in my analysis.

20 Evidence was taken from Mr Derek Colin Smith whowas called to confirm the dates the Applicant says sheattended various meetings with representatives of theRespondent. He said that she reported she had beenintroduced to Mr Ken Besson. Mr Besson and Mr Bluntishwere impressed with her credentials, there was apossibility of employment at the Sunday Times and PerthPrint, and during an interview they discussed hours ofwork but not remuneration.

21 Mr Smith says that the Applicant received a call from MrBesson during which Mr Besson eventually offered her aposition. According to Mr Smith the Applicant told himthat the first offer was for 44 hours per week at a rate of$12.00 per hour during probation period and $13.00 perhour thereafter. They had reviewed their financial positionand decided the offer was not viable for them. On oraround 11th or 12th October 2000 that Mr Smith witnessedanother telephone conversation; at least he gathered fromthe Applicant’s side of the conversation that Mr Bessonwas keen to procure her services. During this telephoneconversation Mr Besson changed the offer, the Applicantrepeated the figures to Mr Smith and he ran them throughhis calculator. The offer was $13.00 per hour for threemonths going to $15.00 per hour.

22 Mr Smith says that Mr Besson waited on the phone whilehe and the Applicant discussed the offer, they consideredthe cost of fuel for driving from Canning Vale toJoondalup, they took into consideration their currentfinances and they agreed that the offer was viable forthem. They thought that the $13.00 per hour would bedifficult for the first three months but they would be ableto scrape through. It was not a lightly taken decision, theamount of income was very important because Mr Smithwas a student at a University with no income and theApplicant’s income had to support the family. Mr Smithclaimed that Mr Besson had tried to convince theApplicant by making the comment that the fares wereonly $3.00 a day. Mr Smith factored this suggestion intothe calculation, he asked the Applicant to repeat the offerback to Mr Besson which she did.

23 Being satisfied with the offer the Applicant had him typeout a letter of resignation from her previous employer.

24 In the following days Mr Smith helped the Applicant,who was also assisted by her father, to obtain her securitylicense for which Mr Besson had asked her to apply. Shebrought home a workplace agreement which providedfor a rate of pay of $12.00 per hour after three months.The Applicant had said it was not what had been agreedwith Mr Besson. Mr Smith swears that the Applicant saysshe mentioned this to Mr Quinton Bluntish and hisresponse was “fine we’ll sort it out with Ken later”.

25 The next relevant event was a phone call from MrWesthead during which he asked the Applicant to come


to a meeting at the offices of the Respondent. Mr Westheadagreed that Mr Smith could attend with her.

26 Mr Smith says during the meeting Mr Westhead explainedthat the Respondent simply did not pay the rates that MrBesson had allegedly promised. Mr Smith was alsoconcerned that there had been an offer of 44 hours workper week and there was only 33 available. To his mindthe outcome of the meeting was an impasse. Mr Westheadhad asked the Applicant and Mr Smith to go home andconsider his revamped offer which by that time haddropped off the $11.00 per hour for probation and hadfixed the final offer at $12.00 per hour for 33 a week.

27 As a family the Applicant and Mr Smith could not affordto accept that offer. Mr Smith confirmed he passed theinformation in Mr Westhead’s facsimile on to theApplicant at work but not in detail because he realisedshe might be distressed and wanted her to come homeand talk to him in private. According to Mr Smith theApplicant was caught in a distressing situation, shethought that during a phone call Mr Westhead had beenblunt and more aggressive than he had been in the past.

28 Mr Smith admitted that he made a recording of thetelephone call from Mr Westhead using software in hishome computer. He said that not all the conversation wasrecorded because of settings in the machine but nothinghad been done to alter the sound that had been captured.

29 The preceding is sufficient review of the evidence of MrSmith for the purposes of these Reasons.

30 On behalf of the Respondent the Commission heardevidence from four witnesses. Mr Quinton James Bluntishtold the Commission that as part of his duties with theRespondent he was occupied a few days a weekinterviewing prospective employees, he also organisesrosters at various jobs including the Sunday Times. Earlyin October 2000 he had invited the Applicant for aninterview after she had left her contact details when shemade an inquiry for employment. On 3rd October 2000Mr Bluntish met with the Applicant and asked her tocomplete an application form (Exhibit L2). From theirconversation he understood she was working at the airportbut was looking for a change because of the hours shewas getting and the distance she had to travel to work. Italso was clear that the Applicant did not wish to workweekends and preferred day shift fulltime.

31 The Applicant had been told that employment would beconditional upon her signing a workplace agreement, therates of pay under that agreement would be $11.00 perhour during a probation period of three months and then$12.00 per hour thereafter. The Applicant did not takeissue with the rate of pay. This amount had been offeredon the instructions of Mr Westhead, and he (Mr Bluntish)did not have permission or authority to offer anythingelse.

32 Having considered the Applicant’s work experience MrBluntish decided that she would be suitable for a deskjob at the Sunday Times; but not for security work in acourt. He later rang the Applicant and told her there wasa possibility of a position and arranged for her to comeinto the office. Because the Respondent had troubleretaining staff at the Sunday Times the supervisor of thatjob, Mr Ken Besson, was organised to take part in theinterview.

33 Mr Bluntish said a further interview was arranged for13th October 2000; Mr Besson was to take part. In thepresence of Mr Bluntish Mr Besson was briefed by MrWesthead on his role was during the interview. He was toform an opinion about the Applicant but was not to discussany employment conditions with her. The interview tookplace one on one between the Applicant and Mr Besson,after it was finished the Applicant was given a copy ofthe workplace agreement. This agreement provided thatshe would be paid $11.00 per hour until 13th January 2001after which she would be paid $12.00 per hour.

34 Various administrative arrangements which involved theApplicant coming in to sign the workplace agreementand collect her uniform and receive a letter of an intentoccurred. The workplace agreement was discussed andin that context the Applicant told Mr Bluntish that Mr

Besson had offered to pay her $15.00 per hour. MrBluntish told her that must be incorrect because thestandard offer was $11.00 per hour while on probationfollowed by $12.00, provided the workplace agreementwas signed. Notwithstanding he promised the Applicantthat he would speak to Mr Westhead to find out whetherany other different wage rate had been authorised.According to Mr Bluntish he never gave the Applicant acommitment to employ her, nor did he place her on theroster at the Sunday Times for which he had theresponsibility of preparing. On 23rd October 2000 hebecame aware she had commenced work at the SundayTimes. On 24th October 2000 Mr Westhead had contactedMr Bluntish to find out what had been said to theApplicant during the interviews. Mr Bluntish related hisversion of the events to him.

35 On 25th October 2000 Mr Bluntish was present in MrWesthead’s office at a meeting with the Applicant andher father during which the Applicant’s father made threatsabout the Respondent’s contractual position at theJoondalup Law Courts unless the argument about hisdaughter’s employment conditions was resolved to hissatisfaction. He demanded that the Applicant be employedon terms and conditions she alleged were offered to her,alternatively that she wanted a letter terminating heremployment. Mr Westhead had declined to provide atermination letter because he thought the Applicant wouldgo to the Industrial Commission and also that it wouldbe a fraud to do so because there was no intention of theRespondent to terminate her employment. In responsethe Applicant’s father indicated that there would becontractual consequences at Joondalup Court for theRespondent.

36 Evidence was taken from Mr Kenneth John Besson whowas a supervisor of the Respondent.

37 Mr Besson said that his role as a site supervisor requiredhim to assist with rosters, supervise sites, maintain logbook of incidents and liaise with clients. He said that inOctober 2000 the Respondent had been desperate to geta suitable person to work on the front counter at theSunday Times, several employees had been tried but noneproved to be suitable. It was because of this experiencethat he was instructed by the Respondent’s Director, MrGlen Towill, and the then Operations Manager, MrMalcolm Westhead, to attend interviews to be held forprospective front counter employees so he could pass anopinion on their suitability.

38 In October 2000 where he was asked to meet with theApplicant to assess whether she was suitable for theposition at the Sunday Times. Mr Besson says that hewas instructed by Mr Westhead that his sole function wasform an opinion whether the Applicant was suitable forthe job.

39 During the interview he heard Mr Bluntish explain to theApplicant the terms and conditions of employment. MrBesson then met the Applicant alone. At the end of thatinterview the Applicant asked him about the pay and hesaid to her that she had been told by Mr Bluntish whatshe would be on. He also told her that Mr Towill wascurrently trying to renegotiate the contract with NewsLimited. Mr Besson was asked if any increase would bepassed on to the staff and he told the Applicant that if thenegotiations went well that she could probably get $13.00per hour. Mr Besson says he was careful to conditionwhat he said to the success and negotiations with theclient. He says the Applicant had then said to him thatshe would take the job on the conditions offered as longas she could get four shifts. There was some discussionbetween them about the shifts. He told her he would dowhat he could to get her a day at the Perth Print. He didthis because he really wanted her for the Sunday Timesjob. She then said to him that she had come from $16.60per hour at the airport, this surprised Mr Besson and heasked her why she left; she had told him if she could get44 hours a week she would not have to travel as far. Hethen reminded her that she knew the wages that had beenoffered but told her to remember the negotiations are underway and if they were successful she could get an extra$1.00 per hour. He promised her that he would do


everything he could to get her the hours she wanted butthat he did not have the final say.

40 The next time Mr Besson saw the Applicant was on 23rd

October 2000. He became aware that there wereconversations during the day between Ms MaggieEastwell and an unknown man concerning rates of pay.At that stage the Applicant told him she had been promisedshe would be paid $15.00 per hour after three months.Mr Besson had asked her who had told her, she had said“Kenny did”, it was clear to Mr Besson that she did notknow that he in fact was Kenny.

41 Mr Besson made notes of the conversation; these arebefore the Commission in Exhibit M6.

42 Some days later Mr Towill and Mr Westhead had askedhim what he had said to the Applicant when he had metwith her. He told them that he had discussed the job butnot wages except to the extent that Mr Towill wasnegotiating a variation in the contract at the Sunday Times.He swore that he only ever told potential employees thatthey would receive wages that Mr Westhead or anothersenior person that instructed him they were to receive.He knew he had no authority to increase wages and henever told the Applicant she would be guaranteed anymore than $12.00 per hour. Nor did he guarantee that shewould receive 44 hours a week he admitted that hepromised that if she did a good job she would have noworries in the future and that her future wages wouldlikely rise if the Respondent was able to get more moneyfrom the client.

43 Evidence was also taken from Mr Malcolm TerrenceWesthead. During the time of the Applicant’s employmenthe was responsible for all staff and client issues, he hiredand fired staff and worked both on site and in the office.He answered directly to Mr Glen Towill the thenManaging Director of the Respondent.

44 Mr Westhead said that in the period leading up to October2000 there was difficulty in retaining staff at the SundayTimes site. There were complaints from the client aboutthe quality of personal and as a result it was suggestedthat Mr Besson, the site supervisor meet and assess anyprospective employee.

45 There was a standing instruction to Mr Bluntish that allpotential employees were to be initially employed onprobation for three months at $11.00 per hour andthereafter $12.00 per hour on condition that they sign aworkplace agreement. Mr Bluntish was not authorised tooffer any more, but he had delegated authority to employon those conditions.

46 Mr Westhead first had knowledge of the Applicant inOctober 2000. He had told Mr Bluntish or Mr Bessonthat she should look at the site before she decided whethershe wanted to work at the Sunday Times. Later in October2000 he heard that the Applicant had made complaintsabout her pay and he asked her to come into the office todiscuss the problem. The Applicant told him that shewanted to work so he told her that he would pay her forattending the meeting.

47 There was a meeting on 24th October 2000 which theApplicant attended together with her partner; the notesof that meeting are before the Commission in ExhibitM7.

48 The major issue was the claim by the Applicant that MrBesson had promised $13.00 per hour initially and thenafter probation $15.00 per hour. Mr Westhead madeenquiries with Mr Besson who denied that he had madeany such promise, but he did admit that he said words tothe effect that there were negotiations taking place withthe client and a pay increase would be likely if these weresuccessful. Mr Westhead told the Applicant that MrBesson had no authority to discuss wages. He later toldthe Applicant he had spoken to Mr Besson who had deniedher claim.

49 The Applicant’s partner rang Mr Westhead and accusedthe Respondent of not paying her what had beenpromised. Mr Smith had been told that there was simplynot enough money in the contract to sustain an offer of$15.00 per hour and Mr Westhead made it clear that no

such offer had been made by the Respondent. MrWesthead made enquiries with Mr Bluntish to confirmthat the only offer he had made was for $11.00 per hourand then $12.00 per hour after the probationary period.

50 On 25th October 2000 the Applicant attended the officein company with her father, who demanded that theApplicant be given the job on the terms she alleged werepromised. The notes of that conversation are attached toExhibit M7. As a result of the meeting the Applicant wastold by Mr Westhead to go home and she would be paid,he would talk to Mr Towill and see what he thought abouta proposal to terminate the Applicant’s employment soshe could get the dole. Later that evening he spoke to theApplicant and told her the offer could only be inaccordance with the workplace agreement, otherwise shecould be employed on a casual basis under the terms ofthe award. The Applicant had responded that she wantedto work so he told her to attend the Sunday Times on 26th

October 2000. After discussion with Mr Towill a facsimilewas sent to the Applicant, this document has previouslybeen incorporated into these Reasons. The terms offeredon the phone were exactly the terms offered in thefacsimile.

51 On 26th October 2000 Mr Westhead was advised that theApplicant had called and resigned on an hour’s notice,he asked for her resignation to be put in writing.

52 Evidence was also taken from Ms Mary Carlin Eastwellwho had worked at the Sunday Times site for theRespondent, she did not know that the Applicant wasgoing to commence work at the site and on 26th October2000 met her for the first time. Ms Eastwell says shetried to help the Applicant settle in by demonstratingequipment to her, she appeared though to have noenthusiasm for the job.

53 On that day a man appeared at the counter running downthe Respondent, labelling them as crooks. There was adiscussion about how bad wages were and the Applicantthen said that she was on $15.00 per hour and wouldsoon go to $16.00, and words to the effect that ifeverything works out she had a chance working directlyfor News Limited in the future.

54 When the man left Ms Eastwell had asked the Applicanther pay rate, she told her she was being paid $15.00 perhour and this had been promised by Kenny and Quinton(Besson and Bluntish) when they interviewed her. MsEastwell then suggested that there was probably a mistakebecause that was not the rate she was on and suggestedthe Applicant ring the office. The Applicant had respondedby saying that she was being paid $16.60 per hour on thejob that she had left so there was no way she would leavefor less money. Later Ms Eastwell told Mr Besson aboutthe incident, she also told him that the Applicant had saidthat he (Besson) had offered her $15.00 per hour, MrBesson denied that he ever made such a promise. MsEastwell had said she did not care who had said it but theApplicant thought she was getting $15.00 per hour. WhenMr Besson arrived on site that evening he asked theApplicant who told her she would be getting paid $15.00per hour, she was flustered and responded “Kenny said”.Mr Besson then said to Ms Eastwell “see Maggs shedoesn’t even know who I am”. Later Mr Besson told herthat the Applicant was telling lies about how much shewas getting paid.

55 The Commission is required to make findings ofcredibility of witnesses in order to make clear the evidencethat it favours. This is an aid to demonstrating that theCommission has correctly applied the test that the matteris to be decided on the balance of probabilities.

56 Sometimes that aid is not available because it is difficultto make clear a finding on witness credibility. This is oneof those cases. The Commission received evidence fromthe Applicant and her partner, she appeared to believethat the story she told was true. Similarly there is no reasonto draw any adverse conclusions about the quality ofevidence from Mr Smith who gave evidence in hersupport. One can say the same about the evidence of MrBluntish, Mr Westhead and Ms Eastwell for that matter.The only person whose evidence may have some sort of


query is Mr Besson, however that he was effusive in hisrejection of the contentions of the Applicant concerningthe promises she alleged he made should not be taken tomean that he has not told the Commission the truth fromhis point of view.

57 When the Commission is placed in this situation ittherefore must rely on the analysis of the evidence andapply the test of deciding the matter on the balance ofprobabilities upon that analysis.

58 This matter has been referred by the Applicant under s.29of the Act which allows such a reference in the face of aclaim that an employee has been harshly, oppressively orunfairly dismissed or has not been allowed a benefit bythe employer not being a benefit under an award or orderto which there is an entitlement under the contract ofservice. The jurisdiction can only be invoked if as a matterof law there is an employment relationship and theemployee was dismissed from the relationship. Thismeans if a person resigns or a contract comes to end byeffluxion of time the jurisdiction can not be excited.

59 In this case it is common ground that the Applicantsubmitted a letter of resignation. Its terms are as follows—

“To Whom It May Concern. As of 11.45am today, I give you one hour’s noticeof my resignation. I will be leaving the premises ofthe Sunday Times at 12.45.Yours faithfully Rita Powell

[Exhibit L8].The concept of dismissal involves termination of theemployment at the initiative of the employer so that notevery termination of employment gives rise to thejurisdiction in s.29, it must be termination by way ofdismissal. In most cases where a termination ofemployment is clearly instigated by the employer that adismissal has occurred is not at debate, a dismissal mustbe a clear and unequivocal indication that the employerintends the employment to finish, in particular there mustbe an identifiable point in time at which the employmentis to finish.

60 A number of difficulties arise where the employee resigns.It is common cause in this case there was a resignation.Counsel for the Applicant, Mr Love says that it constitutesan unfair dismissal, he does so because he says theRespondent’s dismissal occurred because the Applicantrefused to acquiesce to contractual terms in relation tohourly rate of pay and number of hours that wereotherwise in accordance with an agreement and indisregard of the Respondent’s legal obligations havingmade such an agreement. This means that the Applicantwas denied procedural fairness because she wascompelled to attend meetings with Mr Westhead andprevented from returning to work until the matter wasresolved. While she was promised that she would be paidfor these meetings as training, this did not occur, and inany event she had not been paid for the full amount ofhours lost by her not attending shifts at the contractualrate of pay to which she thought she was entitled.

61 In addition she was forced to attend the meetings underduress. While the Respondent did not tell her she wasgoing to be dismissed the inference was open to her thatshe would not be dismissed provided she acquiesced tothe modified terms of agreement concerning rates of payand number of hours.

62 Concurrently she was subjected to what she says wereunsubstantiated accusations that she did not perform theduties correctly in any event. This was for the purpose ofsuborning or intimidating her into acquiescing to modifiedterms of agreement, she refused to do so and even thoughshe signed the confirmation that she had voluntaryresigned she did so to ensure that she would get her pay.

63 This, says the Applicant’s Counsel was to combat denyingher procedural fairness and amounts to constructivedismissal and should be regarded by the Commission assufficient to constitute a dismissal for the purpose of s.29(1)(b)(i) of the Act. Mr Love relies upon an authority ofFederated Clerks Union of Australia WA Branch v CargillAustralia Ltd (1997) WAIRC 2553 upon which headvanced the contention that the existence of a threat that

would cause the employee to resign amounts toconstructive dismissal. The fact that an act of resignationsubsumes the act of dismissal does not alter the essentialcharacter of it or of the transactions between the partiesand that if an employee terminates the contract by reasonsof an employer’s conduct he is constructively dismissed.I need to examine these contentions.

64 I have recently done so at length in Clifton John Fox vNews Illustrated Pty Ltd Application 1492 of 2000 citationNo. 2001 WAIRC A3237 (unreported), the followingpassages are relevant—

“The seminal authority on constructive dismissal inthis jurisdiction is Attorney General and West Aus-tralian Prison Officers Union (1995) 75 WAIG 3167.That case was decided after the Industrial AppealCourt had issued its Reasons for Decision in CargillAustralia, Leslie Salt Division v Federated ClerksUnion of Australia (1992) 72 WAIG 1495 and in myview extended the concept discussed in Cargill’sCase.In the Attorney General and West Australian PrisonOfficers Union (op cit) their Honours examined theconcept against the background of cases which hadbeen decided in the United Kingdom and New Zea-land, particularly in Sothern v Franks Charlesly andCo (1981) IRLR 278 and Auckland Shop EmployersUnion v Woolworth’s NZ Ltd 85 2NZLR 372. In hisReasons Kennedy J. observed that the critical ques-tion before the Industrial Commission and beforethe Court was whether the facts revealed that theemployee concerned was “dismissed”. His Honourthen observed as follows—

“…In this context, it does not appear to me tobe particularly helpful to introduce any no-tion of constructive dismissal, the onlyquestion being whether or not Mr De Grussawas “dismissed” by his employer. There isnothing in the Industrial Relations Act equiva-lent to s55(2)(c) of the Employment Protection(Consolidation) Act 1978 (UK) which ex-pressly created the concept of constructivedismissal. The position for the present pur-poses is, in my view, summarised in thejudgment of Stephenson LJ in Sothern vFranks Charlesly & Co [1981] IRLR 278 at280—

“Did he trip or was he pushed? Was itmurder or was it suicide? I know that sucha simple consideration of starkly con-trasted alternatives is too often outlawedby authority in deciding the issue of dis-missal vel non. Even if the question, ‘Wasthe employee dismissed?’ cannot alwaysbe answered by answering the question,‘Who really terminated his contract?’ thereal answer to the second question givesthe right answer to the first question inthis case.”

In his Reasons for Decision Rowland J. referred tothe Decision of Denning MR in Western Excavating(EEC) Ltd v Sharp 78 QB 761 wherein the commonlaw position was disclosed. His Honour JusticeRowland made the following observations—

“… Whilst recognising that the English Actdiffered from the Western Australian Act, theIndustrial Appeal Court, in relation to theMaster of the Rolls’ exposition of the commonlaw on the subject, said, at 1497—

“If that be the correct test, it is difficult toenvisage circumstances where the employ-er’s conduct which must be a breach goingto the root of the contract to justify its ac-ceptance by the employee, could ever besaid to be other than an unfair dismissal”.

The court also said, at 1498—“Unfortunately, this case has been bedev-illed by the Full Bench’s decision that thiswas a “constructive dismissal”. It was not.


To be a constructive dismissal the em-ployer had to be “guilty of conduct whichis a significant breach going to the root ofthe contract” which entitles the employeeto accept the breach and leave. That didnot happen.”

Cargill’s case, in the end, went off on the basis ofwhether the employer’s actions were unfair and theinquiry developed into whether it had proved thatthe employee was guilty of misconduct sufficient towarrant summary dismissal. The case has evidentlybeen used in the present matter to justify a findingthat if there is a constructive dismissal, then an or-der for reinstatement is justified.In my view, Cargill’s case does not lend support tothat conclusion.”It appears to me that His Honour was of the opinionthat there was a difference of view in the operationof common law principles that give rise to finding ofconstructive dismissal and that Cargill’s Case didnot provide the complete answer. Later in his Rea-sons he adopted with approval the approach of theCourt of Appeal of New Zealand in Auckland ShopEmployees Union v Woolworths NZ Ltd (op cit) HisHonour cited a long passage from that Decision,but he ultimately adopted the following principle:“the concept is certainly capable of including caseswhere an employer gives the worker an option ofresigning or being dismissed; or where an employerhas followed a course of conduct with a deliberateand dominant purpose of coercing a worker to re-sign.” (Emphasis added)This concept fits well with the citation in the Deci-sion of Kennedy J. where he quoted Stephens LJ inSothern v Franks Charlesly as saying “did he tripor was he pushed, was it murder or was it suicide”.By merging these concepts the Industrial AppealCourt has erected a stringent test to be applied insituations where its alleged that a constructive dis-missal took place. The test that Mr Stokes urges uponthe Commission is the employer must undertake actswhich were unreasonable and leave no other choicebut to resign. The Full Bench has made it clear inPisconeri v Laurens and Munns that the conceptexpounded in Auckland Shop Employees Union vWoolworths NZ Ltd and adopted by Rowland J. inhis Decision in Attorney General v West AustralianPrison Officers Union (op cit) is the appropriate con-cept to be applied, that is there must be a deliberateand dominant purpose of coercing a worker to re-sign. These then are the concepts that need to beapplied in this case…”

65 As I have noted in Fox’s case the authorities, as Iapprehend, create a more stringent test than that suggestedin the authority upon which Mr Love relies. Theappropriate concept is that there must be a deliberate anddominate purpose of coercing the worker to resign.

66 On the balance of probabilities the following chain ofevents occurred. The Applicant was employed on a job atPerth Airport. It was some considerable distance fromher home and she was interested in obtaining alternativeemployment that would provide a reasonablycommensurate pay but would be closer to home and soreduce her daily travel. As a result she applied to theRespondent for a job and was invited to an interview withMr Quinten Bluntish.

67 Mr Bluntish made her an offer of employment inaccordance with the authority given to him by theRespondent. I accept his evidence that the offer he madewas in accordance with that authority. That is he offeredemployment in accordance with the terms set out in theworkplace agreement and on condition that the terms beaccepted without modification.

68 I accept that he told the applicant that as part of therecruitment process she would have to meet with Mr KenBesson, the site supervisor on the Sunday Times contractso that he could assess whether she would be suitable forthe job. I find that this step in the recruitment process

occurred on the instruction of Mr Westhead and was solelyfor the purpose of assessing suitability, and that Mr Bessonwas not granted authority to negotiate terms andconditions on the Respondents behalf. Acting on theinstruction Mr Besson met with the Applicant.

69 I find on the balance of probabilities that what most likelyhappened is that when the question of pay came up MrBesson told the Applicant that if Mr Towill couldsuccessfully negotiate a variation to the contract withNews Limited, the client at Sunday Times, then a wageincrease could well flow on to employees. It is fair todraw the conclusion that type of suggestion was made tothe Applicant.

70 I accept her evidence that during the later telephoneconversation with Mr Besson that she repeated what MrBesson had said to her partner Mr Smith who madecalculations, they decided that they could accept the jobif the rate was $15.00 per hour. I am unable to determineon the evidence whether Mr Besson told the Applicantthat she would get $15.00 per hour but it is open toconclude that he may have inferred that there was apotential that the work could be worth that muchdepending upon the success of the Respondent in re-negotiating contractual arrangements at the Sunday Timessite.

71 It is open to find and I do that the Applicant took whatMr Besson was saying to her to be an offer. I am unableto find positively that it was an offer because even thoughMr Smith was standing beside the Applicant he gave noevidence that he heard Mr Besson say words whichspecifically said there was an offer of wages in the sumthe Applicant communicated to Mr Smith. The Applicanthas been unable to establish with certainty that a firmoffer was made.

72 Even though I described Mr Besson as being effusive,his denials of making the offer have the ring of truth. Hewas never ever allowed to make such an offer in the past,he was in no doubt that the Respondent’s rules were thatemployees received $11.00 per hour while on probationfollowed by $12.00 per hour. He knew that if there was adifferent amount of money paid to the Applicant thatwould immediately put her at odds with Ms Eastwell whowas already employed at the Sunday Times. This was notacceptable and could also affect the rates of pay that otherpeople were receiving. I accept that these issues wouldhave been in his mind.

73 The reason why I had some confidence in making such afinding is because of the evidence of Mr Westhead whichI accept. He made it clear that the Respondent’s policyconcerning hiring and firing were well known to the staff,he personally carried the authority subject to a specificdelegation to Mr Bluntish to make an offer to a prospectiveemployee of $11.00 per hour followed by $12.00 per hourafter three months probation if a workplace agreementwas signed. The evidence of Mr Bluntish confirms this.There is nothing in the evidence of Mr Westhead whichwould allow any inference or any shadow of doubt thatthe authority to hire and fire resided with him and it mostdefinitely was never conceded by the Respondent to MrBesson. It is open to conclude that Mr Besson never hadthe ability to make offers which would bind theRespondent and I so find.

74 What Mr Westhead did in the various interviews he hadwith the Applicant is try and resolve the issue. He wasprepared to move on the offer to $12.00 per hour and asthe Applicant would not sign the workplace agreementhe was prepared to continue the relationship on an awardbasis as a casual. That was a logical fallback position forhim to do to try and resolve the matter. I think it clearthat he never suggested or intimated that the Applicantwould be dismissed or that she should resign, in fact hewithstood considerable pressure from the Applicant’sfather, who did not give evidence in this matter, to providehis daughter with a letter of dismissal because that wasmore convenient for her, for social security purposes.

75 It is open to conclude that a contract was made betweenthese parties after the interview with Mr Westhead whenthe Applicant presented for work at the Sunday Times


site on the basis of $12.00 per hour as a casual awardemployee.

76 Much was made by the Applicant about the covertrecording by Mr Smith of a telephone conversationbetween Mr Westhead and the Applicant concerning theseissues. In my view the transcript of that conversation doesnothing other than support the contention of Mr Westheadthat he was trying to resolve the matter on the basis thathe wanted to retain the Applicant but he could not payher the amount of money that she thought Mr Bessonhad promised her.

77 The question remains to be decided whether in the faceof a finding that Mr Besson had no authority from theRespondent to make the offer, that he nevertheless didmake an offer, and whether the Respondents were boundby it. I explore this issue because if I am wrong in findingthat Mr Besson did not make the offer the Applicantalleges it might be argued that he had the ostensibleauthority of the Respondent by virtue of his position as asupervisor to make such an offer.

78 This type of authority stems from the principle of estoppel.If a principal holds out an agent as having authority thenthe principal will be estopped from denying the existenceof that authority. There are a number of elements to thedoctrine.

79 There must be a representation. It may be expressed orimplied from the course of dealing or it may be byconduct—by permitting the agent to act in some way inthe conduct of the principal’s business with other persons.An implied representation only extends to an act normallyperformed by an agent of that description, that is, to suchauthority as would normally be implied.

80 The representation must be made by either the principal,someone acting on its behalf or permitted to act on itsbehalf. A representation by the agent that he/she is theauthority cannot create apparent authority, unless theprincipal can be regarded to have in some way instigatedor permitted it. The representation by the agent as theextent of his/her authority cannot amount to a holdingout by the principal, but the doctrine does not apply incircumstances where the third party does not know ofthe principal’s existence that is where the agent purportsto deal as the principal.

81 There must have been reliance placed upon therepresentation by the third party, a principal cannot beheld liable if there is no causal connection between therepresentation and a dealing with an agent.

82 That means a third party cannot hold the principal liableif they did not believe that the agent had the authoritydespite the appearance of authority, or they were not awareof the circumstances giving rise to apparent authority,nor could they hold a principal liable if they had noticeof the terms of the agent’s authority. Finally the thirdparty must have acted on the representation.

83 In Freeman & Lockyer v Buckhurst Park Properties(Mangal) Ltd [1964] 2 QB 480 at 506 Diplock Jformulated special rules to apply when the agent is theagent of a company, these in my respectful opinion needto be applied in this case. The rules are—

(1) That a representation that the agent had author-ity to enter on behalf of the company into acontract of the kind sought to be enforced wasmade to the contractor;

(2) Such representation was made by a person orpersons who had ‘actual’ authority to manage thebusiness of the company either generally or inrespect of those matters to which the contract re-lates;

(3) The contractor was induced by the representa-tion to enter into the contract, that is that he/shein fact relied upon it; and

(4) That under the memorandum of articles of asso-ciation the company was not deprived of thecapacity either to enter into the contract of thekind sought to be enforced or to delegate author-ity to enter into the contract of that kind to theagent.

84 In Australia, Freeman & Lockyer’s case was approved bythe High Court in Crabtree-Vickers Pty Ltd v AustralianDirect Mail Advertising & Addressing Co Pty Ltd [1975]133 CLR 72 and Northside Developments Pty Ltd vRegistrar-General (1990) 170 CLR 146.

85 The facts of this case do not fit the rules described above.Mr Besson did not represent that he had the authority toenter into a contract on behalf of the Respondent. Hiswords concerning the possible effect of the negotiationsbetween Mr Towill and News Limited may have beenphrased to give the Applicant some encouragement to beinterested in the job but they did not, in my opinion,amount to a representation.

86 It should have been clear to the Applicant that Mr Bessonhad no actual authority on behalf of the Respondent andeven if it could be said that his words could have impliedthe contrary, the series of meetings that then followedwith Mr Westhead should have made it clear to her thatMr Westhead was the only one with the authority on behalfof Respondent to fix her rates of pay. That Mr Westheadcould make arrangements for her to come to meetingswith him, waive the necessity for her to go to work butstill pay her and make her offers of a rate of pay as acasual should have all been indicators to the Applicantthat he was the person with the authority to contract withher on behalf of the Respondent. The Applicant was notinduced by any representation by Mr Besson to enter intothe contract, the contract was entered into, as I have found,after discussions between the Applicant and Mr Westhead.The contract was not formed until the Applicant presentedfor duty upon the terms and conditions that Mr Westheadhad put to her verbally in their meeting and which heconfirmed by facsimile.

87 Finally it is clear from the evidence that Mr Besson hadno authority on a day to day basis for the running of theRespondent’s affairs particularly the right to hire and fire,nor would it be reasonable for the Applicant to concludethat he did. Even if she was justified from the behaviourof Mr Besson to reach that conclusion, the Respondentmoved quickly and positively to make the position clearto her. It also cannot be said that Mr Besson had ostensibleauthority to make the arrangements the Applicant claimedhe did and I so find.

88 I find that there was no dismissal in this case and thejurisdiction under s.29 therefore does not arise. If I amwrong I need to consider the question of constructivedismissal, I have cited the authorities to be applied, it isopen to conclude on the evidence that the Applicantthought she had made an arrangement with Mr Bessonfor a different rate of pay and hours of work regime thanhad been offered to her by the Respondent. She sought tonegotiate with the Respondent to change the offer to onewhich she would accept. In the meantime she hadcommenced to work for the Respondent, she was unablethrough a number of conversations with the senior officerof the Respondent to achieve a contract in the form shewanted, what the Respondent was offering to hereventually did not meet her financial requirements andshe decided to end the relationship by resignation.

89 What happened was the Applicant decided she did notwant to continue, she was not tripped and she was notpushed. The question to be addressed, according toKennedy J in Prison Officers Union v Attorney Generalibid, is who really terminated the contract. The real answerto that question is that the Applicant for all of the reasonsI have set out above, decided she did not want to continueand terminated the contract. She was unable to get theRespondent to pay her what she wanted, she decided itwas in her best financial interest to go somewhere elseand that is what she did. There is no evidence a deliberateand dominant purpose of coercing the Applicant to resign.In fact the Respondent’s conduct demonstrates thecontrary and I so find. There was no dismissal, thejurisdiction is therefore not excited and the applicationwill be dismissed for that reason.



INDUSTRIAL RELATIONS COMMISSION.PARTIES RITA POWELL, APPLICANT

v.RONIN SECURITY PTY LTD,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED FRIDAY, 7 SEPTEMBER 2001FILE NO APPLICATION 1844 OF 2000CITATION NO. 2001 WAIRC 03702____________________________________________________________________________

Result Dismissed____________________________________________________________________________

Order.HAVING heard Mr D. Love (of Counsel) on behalf of theApplicant and Mr C. Martel (of Counsel) on behalf of theRespondent, the Commission pursuant to the powers conferredon it under the Industrial Relations Act, 1979, hereby orders—

THAT the Application be, and is hereby, dismissed.(Sgd.) J.F. GREGOR,



INDUSTRIAL RELATIONS COMMISSION.PARTIES MISTY JOY PROCTOR, APPLICANT

v.WAIKIKI PHOTOGRAPHICS,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED TUESDAY, 24 JULY 2001FILE NO APPLICATION 1128 OF 2001CITATION NO. 2001 WAIRC 03330_______________________________________________________________________________

Result Order issued by consent.RepresentationApplicant Ms M. ProctorRespondent Mr J. Steere_______________________________________________________________________________

Order.WHEREAS the Commission has before it a claim by Ms Proc-tor that she was unfairly dismissed;

AND WHEREAS the respondent opposes the claim;AND WHEREAS the parties met in conference before the

Commission and agreed on terms to settle the claim;AND WHEREAS the parties agreed that an Order could

issue reflecting the terms of that agreement;AND WHEREAS the Commission is of the view that the

parties’ agreement should be reflected in an Order;AND HAVING HEARD Ms M. Proctor on her own behalf

as applicant and Mr J. Steere as a director of the respondenton its behalf, the Commission, pursuant to the powers con-ferred on it under the Industrial Relations Act 1979 herebyorders that Misty Joy Proctor and Waikiki Photographics ob-serve the terms of this agreement between them—

(1) THAT Waikiki Photographics pay Misty Joy Proc-tor the sum of $458.00 net by direct deposit into MsProctor’s nominated bank account by Friday 20 July2001 being the sum of two weeks’ net wages less$50.00 to be credited to her staff account which sheowes to Waikiki Photographics.

(2) THAT Waikiki Photographics reduces the balanceof Misty Joy Proctor’s staff account which she owesto Waikiki Photographics as at 19 July 2001 from$262.00 to $150.00.

(3) THAT on 27 July, 3 and 10 August 2001 Misty JoyProctor pay Waikiki Photographics the sum of $50.00to clear the balance remaining in her staff accountwhich she owes to Waikiki Photographics.

(4) THAT Misty Joy Proctor accepts this agreement infull and final settlement of all matters arising out ofher application in this Commission and in the Aus-tralian Industrial Relations Commission;

(5) THAT upon her receipt of the sum to be paid in ac-cordance with this Order Misty Joy Proctor willwithdraw the application she has made in the Aus-tralian Industrial Relations Commission.

(6) THAT this application be adjourned for four weeksand then be hereby discontinued provided neitherparty advises the Commission prior to that time thatthe Order has not been complied with.



INDUSTRIAL RELATIONS COMMISSION.PARTIES PAUL ANTHONY RENWICK,

APPLICANTv.JOHN HOLLAND CONSTRUCTION &ENGINEERING PTY LTD ACN 004282 268, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED FRIDAY, 17 AUGUST 2001FILE NO APPLICATION 571 OF 2000CITATION NO. 2001 WAIRC 03569_______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr D Armstrong of CounselRespondent Mr S Foy as agent_______________________________________________________________________________

Reasons for Decision.1 This is an application made pursuant to section 29(1)(b)(i)

of the Industrial Relations Act, 1979 (the Act). Theapplicant, Mr Paul Anthony Renwick, worked as a RailMaintainer for the respondent, John Holland Constructionand Engineering Pty Ltd, from 18 March 1999 to 30March 2000. The applicant was dismissed on 31 March2000 for failing, what was deemed by the respondent tobe, three formal alcohol breathalyser tests within a twelvemonth period.

2 The application was first listed for conference in Geraldtonon 13 June 2000. This conference was cancelled and thematter listed again for conference, by teleconference, on27 July 2000. The matter did not settle and the applicantafter an extended period of negotiation with therespondent asked that a further conference be convenedby the Commission. The matter failed to settle at aconference on 1 December 2000, was referred to hearingand a preliminary hearing on jurisdiction was held on 9February 2001. The Commission found that it hadjurisdiction (these reasons have been reported) and themerit of the matter was heard on 26 and 27 April 2001 inGeraldton and by videoconference in Perth on 18 May2001.

3 It is now agreed that the terms of Mr Renwick’semployment are governed by John Holland Construction& Engineering Pty Ltd Rail Infrastructure MaintenanceAgreement 1996-1999 and the Rail InfrastructureMaintenance Award 1996. This point lacked some clarityat the time of the Preliminary hearing. Clause 25 of theAgreement and the respondents’ policy manual cover


procedure for handling alcohol related issues. I will cometo those provisions.

4 The applicant worked in a team of approximately 20employees who carried out repair and maintenance onrailway lines under contract for Westrail. The team workedin the Mullewa, Morawa and Perenjori regions on a 11days on and 3 days off basis. They stayed in local caravanparks and were transported each day to their work locationby bus. It is common ground that alcohol consumptionwas of concern to the respondent to the extent that aregime existed whereby breathalyser tests could beundertaken to ascertain whether an employee was fit forwork. It is uncontested that the circumstances of the teammeant that there was little to do to occupy one’s timefollowing work each day and hence the local hotel anddrinking at the caravan site were regular leisure activities.

5 It is common ground that, due to the nature of the work,it was unsafe to be under the influence of alcohol at work.The rules that applied to alcohol on the rail reserve,courtesy of Westrail, were stricter than those which thecompany applied. However, the company had a regimeof testing which included self-testing as well as formaltesting to avoid the situation of an employee being onsite and unfit for work due to alcohol. The regime alsostipulated that a refusal to submit to a formal test wouldmean that the refusal would be deemed to be a positivetest.

6 As for self-testing, a breathalyser kit was kept by MrDouglas Madden, one of the team’s leading hands whichcould be accessed on request. It was the combined viewof the team that Mr Madden should be the person to holdthe kit; the team trusted him to do so. If an employeeself-tested and found himself to be above the acceptablelimit then he could absent himself from work and alsoretest at a later time, with a view to attending work whenno longer under the influence of alcohol.

7 The applicant challenges the validity of the three positivealcohol readings which he received. The first test wasconducted outside his caravan at the Mullewa caravanpark on 5 April 1999. There was an incident the nightbefore involving Mr Gutteridge, a leading hand, and MrRenwick. Mr Gutteridge wanted Mr Renwick and hisdrinking partner to be quiet so that he could get to sleep.When he complained Mr Renwick told him where to go.Mr Renwick awoke late for work the next morning andwas visited by the superintendent and supervisor whorequired him to be breathalysed. He returned a positivereading and was stood down. He was subsequently givena letter of warning [Exhibit PAR3].

8 The second test was conducted on 20 February 2000 atPerenjori. The test was conducted at the worksite themorning after a function that had been put on for theteam by the publican of the Perenjori Hotel. Mr Renwickrefused to be breathalysed as he says he was advised thathe was the only employee who was to be tested. He wastaken back to the caravan park, along with anotheremployee.

9 He was given a letter of warning for refusing to be tested[Exhibit PAR4]. After both warnings the applicantcomplains that no counselling or assistance was offeredby the respondent as per the respondent’s policy.

10 The third test was conducted next to the bus at thePerenjori store on 30 March 2000 on the way to theworksite. Mr Renwick says that he—

“went into the deli, grabbed some smoko, drinks andthe paper. I walked out. Dougie Madden approachedme and he suggested I test myself before I went tothe worksite. He mentioned that there’d be a few ofus tested on the worksite and I said “I’d rather betested here”. (Transcript pg. 35)

After the testing Mr Renwick says that Mr Madden saidto him, “Paul, you can chance it.” He says he decided notto chance it, as he had two weeks to get a chance back,and he declared himself unfit for work. Mr Renwick sayshe believed this to be a self-test.

11 The applicant challenges the validity of each of these tests.However, at the time of dismissal it is Mr Renwick’s

evidence that he knew he was on his final warning, hislast chance. In fact, he says that everyone knew he wason his final warning (Transcript pg. 111). Exhibit PAR4states—

“22 February 2000Paul RenwickMaintainer PT3Dear PaulUNFIT FOR WORK—SECOND WRITTENWARNINGOn the 20 February 2000, at Pererjori you were re-quested to undertake a “Alcohol Breath” test by GarryWilson.The result of this test on 20 February 2000 was posi-tive and you were stood down from work on 20February 2000 effective from when you were ad-vised by Mr Garry Wilson, Acting SuperintendentPT3.Under the provisions of the Alcohol & Other DrugsPolicy, which was explained to you at your safetyinduction at commencement of employment, thisfailure to pass the test is unacceptable. Therefore thisletter is your 2nd written warning, the first being used14 April 1999. Failure of or refusal of any Drug orAlcohol test for the 3rd time in a twelve month pe-riod will cause your employment to be terminated.[my emphasis]Please note that the above policy requires you tosubmit a negative result to a “Alcohol Breath” Testbefore you will be allowed to recommence work.This result has to be carried out within 30 calendardays to comply with the policy.You are also advised that the Policy allows for moni-toring of your progress towards heeding therequirements of “fitness for work”. In this regardyou will be required to pass a breath test to be ar-ranged by your supervisor a few weeks after youresume duty.If you feel you have a problem or need to speak tosomeone regarding this, a counselling service is avail-able by phoning our Employee Assistance Programon metro 9225 4522 or country 1800 198 191. Thisservice will be carried out in a strictly confidentialmanner.Yours sincerelyJOHN HOLLAND CONSTRUCTION & ENGI-NEERING PTY LTD”[Emphasis added in italics]

12 It is clear from the evidence that Mr Renwick did notreally challenge these warnings at the time and he knewquite clearly that they meant that he was on his last chance.His own evidence is quite plain about this, the impressiongained by the Commission of his evidence is that the firsttwo warnings have become an issue due to Mr Renwick’sthird positive test (which is challenged) and his dismissal.This is with the exception that Mr Renwick was obviouslyannoyed at the time because he thought that he had beensingled out, when others had also taken part in thefestivities the night before. In my mind though that doesnot take away from the validity of the warnings in anyway or the fact that he was rightly on his last chance andknew his employment to be in jeopardy. There is noindication that Mr Renwick wanted or sought counsellingin response to the warnings. In fact his evidence is to thecontrary. That is, he would have felt embarrassed amongsthis peers to have taken that route. In relation to the firstwarning I should also say that from the evidence of MrRenwick himself it is clear that he overslept, and wasintending to go to work when he was then tested at thecaravan park, during work hours, and returned a positiveresult. I find that both tests are valid and that Mr Renwickwas legitimately on his last warning in accordance withhis terms of employment.

13 The determination as to whether the dismissal of MrRenwick was harsh, unfair or oppressive, in my view,rests not on the earlier tests and warnings, but on the


third test. The issue is whether that test was a self-test ora valid formal test. In addition, the determination ofunfairness or otherwise must be viewed in the light ofthe terms of Mr Renwick’s employment and theinvestigation of events after the third test incident. I shouldadd that Mr Renwick had separately received three lettersof warning for absenteeism arising from drinking. Thisadds weight to the fact that the respondent had concernsabout Mr Renwick’s drinking vis-vis his work, but arenot of themselves central to my judgement on thisapplication.

14 In relation to the credibility of witnesses, having viewedeach witness, I have no reason to challenge their evidenceexcept to say that Mr Renwick’s uncertainty and hesitancyin his attempts under cross-examination to explain someof his actions lead me to doubt his evidence. The mostrelevant example is that I do not believe Mr Renwick’sevidence that he did not know of the can of beer in hisesky on the morning of 30 March 2000. His evidence onthis point was not at all plausible.

15 I should also say that where there are conflicts in theevidence of Mr Madden and Mr Renwick I prefer theevidence of Mr Madden. He was very straightforward inhis evidence and very credible. These were the twoemployees who knew most about what transpired withthe third test.

16 Following the third incident of breathalyser testing, MrRenwick was told by the supervisor, Mr Gary Wilson, topack his bags and leave on 31 March 2000. Mr Renwicksays that Mr Wilson also told him to go and apply tohave his job back. Mr Renwick approached MrMcMurray, another supervisor, to see whether he couldget his job back. Nothing came of this approach, althoughMr Renwick says that Mr McMurray indicated that hethought what had happened was unfair. Mr McMurraywas not called to give evidence and I make nothing ofthis approach on Mr Renwick’s evidence in relation to it.

17 Mr Renwick knew at all times that if he failed threebreathalyser tests in twelve months then he was likely tobe dismissed. He does not challenge this, instead the issuefor him is that the tests were not valid for various reasons.Let me deal with those reasons, as they relate to the thirdtest.

18 In relation to the third test there is a difference as to thelevel of the reading. This is not relevant in deciding thematter. However, I accept the evidence of Mr Maddenwho took the reading and says that the level was .158.The applicant disputes that the test was taken correctly inthat the device was not working properly. It is clear onthe evidence of Mr Renwick and Mr Madden that theyhad some difficulty at first in starting the device. Theywere then aided by Phil (a fitter) and Adam (an electrician)and some light, at the back of the bus, was shed on theinstrument. It is clear to me that the device was thenoperational and a proper reading was taken. Counsel forthe applicant went to some lengths to seek to prove thatthe device did not work properly. I do not accept this.The device had recently been in for a service. Mr Maddendisplayed convincingly at hearing how the instrumentoperated and that he was competent in operating it eventhough he was not accredited. In that regard I makenothing of the evidence of Sargant Watkins other than athorough attempt by counsel for the applicant to discreditor lay doubt in the mind of the Commission about theadequacy and accuracy of the third test. I find the thirdtest was conducted properly and returned a reading of.158.

19 The issue with the third test with which I haveconsiderably more difficulty is whether the third test wasan official test or a self test. The evidence is that self testswere normally conducted by Mr Madden. Members ofthe maintenance crew could approach him to self test andthen absent themselves from work so as not to penalisethemselves or put at jeopardy their workmates. Clearly,the more stringent procedures and penalties applied toworkers by Westrail on the rail reserve where prominentin the minds of the maintenance crew and the respondent’smanagers and supervisors. Mr Madden was given the task

of retaining the breathalyser equipment and operating theself tests. He was given this task at the request of membersof the crew as they trusted him to do it. The point ofconfusion, and I consider that it was just that, is whetherMr Renwick believed he was engaging in a self test onthe morning of 30 March 2000 or a formal test.

20 The evidence of Mr Madden is that he was instructed totest Mr Renwick and did not suggest it was a self-test.The evidence of Mr Wilson is that it was a formal test.The evidence of Mr Gutteridge is that it started as a self-test and became a formal test (Transcript pg 190, 194 &199). He says—

“Because it was pretty run of the mill with Paul thathe would’ve been over, so it was just usual to sendhim home”. (Transcript pg. 190)

21 Weighing up all of this evidence I find that it is moreprobable that the test conducted on 30 March 2000 was aformal test. The fact that Mr Madden was conducting thetest rather than one of the supervisors may have led MrRenwick to consider that it was a self test and done so asto ensure that he did not commence work on the railreserve in an intoxicated state. Weighed against this isthe evidence that these tests were normally conducted atthe caravan site, were conducted at the request of the crewmember and that Mr Renwick never sought to be selftested (even though there were occasions when he wasabsent from work as he was under the influence ofalcohol). Put at its simplest Mr Renwick had boarded thebus to go to work and the test was conducted at the requestof Mr Madden. It is clear that Mr Madden instigated thetest (Transcript pg. 247) and at no time suggested that itwas a self-test. It was not conducted at Mr Renwick’sinstigation.

22 Mr Renwick was sent back to the caravan park. MrRenwick was then dismissed the following day on theinstructions of Mr Lawes, for having failed his thirdpositive test within twelve months. He has clearly takenconsiderable offence at having to return to the caravanpark in light of the fact that Mr Kruger was allowed toproceed to work and was required to re-test andcommenced work once his reading came within acceptedlimits. Mr Renwick displayed at hearing a sense ofinjustice at the different treatment he perceives Mr Krugerto have received. Whereas this plays some prominencein Mr Renwick’s thinking, it is not important in the contextof my decision. The evidence which I accept is that therewas a difference in the readings. Mr Kruger’s readingwas .02 in the end and Mr Renwick’s reading was .158.Mr Renwick’s breathalyser reading could not have comedown to accepted limits within a reasonable period oftime for him to work that day. I do not consider that theemployer acted unreasonably in treating the two mendifferently.

23 Mr Renwick then sought what amounts to a rethink onthe decision to terminate his services. I say rethink becauseMr Wilson’s evidence is that he told Mr Renwick afterthe dismissal, that there was no problem coming back ifhe could improve his attendance (Transcript pg. 204).Hence causing some doubt about the finality of thedismissal. The respondent conducted an investigation intothe incident through Mr Lawes. Mr Renwick subsequentlyreceived a dismissal letter [Exhibit PAR 5]. The train ofcorrespondence at Exhibits PAR 6 & PAR 8 show thatMr Renwick had the opportunity to put his case and tohave it considered at that point in time. The evidence ofMr Lawes was that once he discovered that Mr Renwickhad a can of beer in the esky, which he was taking towork, that this was decisive. Mr Lawes in his evidencestates—

“But we felt that given that he also had a can of beeron the bus as well then it almost gave a disregard tothe policy we felt that wasn’t warranted”. (Transcriptpg. 262)

And further, under cross-examination—“MR ARMSTRONG: So his offence, the straw thatbroke the camel’s back, as far as you’re concerned,is having a can in his esky on the bus?


MR LAWES: That-MR ARMSTRONG: Is that right?-MR LAWES: Yes, and also his intent to go to workunder the influence of alcoholMR ARMSTRONG: No. The straw that broke thecamel’s back-?-MR LAWES: No, it was not because I also .. (indis-tinct)… investigations that Mr Renwick had to beasked to actually do the positive test, albeit not per-haps strictly in accordance with the procedure, buthe had to be asked to produce a positive—a alcoholtest—produced a positive test and was intending togo to work under the influence. The can of beer onlyadded—I guess what you might say, more strengthto the termination.” (Transcript pg. 274)

24 It confirmed for him, that is Mr Lawes, Mr Renwick’slack of adherence to the company’s policy on alcohol. Iconsider that there is nothing unreasonable on the part ofthe respondent in forming this view. Mr Renwick knewnot to take alcohol to work. He says that it was simply acan of beer that was in there from the previous night ofdrinking. He did not notice it or forgot to remove it. I donot accept that evidence. Mr Renwick’s esky, as hedisplayed by his hand gestures at hearing, was aconsiderable size. Certainly it was of a size where a singlecan would roll around in it and be noticed. Mr Renwickwas fully aware that he should not have had the can in hisesky at work. I consider that it is more probable that hemeant to take the alcohol with him rather than simply didnot know or overlooked it. I do not consider that theemployer was unreasonable in taking this into accountand then confirming the dismissal of Mr Renwick.

25 The other issue of prominence in the submissions onbehalf of the applicant was that the respondent did notfollow their own policies in deciding to terminate MrRenwick’s employment. The relevant Clause of the JohnHolland Construction & Engineering Pty Ltd RailInfrastructure Maintenance Agreement, Clause 25 reads—

“25. EMPLOYEES UNFIT FOR DUTY—DRUGSAND ALCOHOL

(i) A person in possession of non prescribedillegal drugs on Westrail or John HollandConstruction & Engineering property, orwhilst on duty, shall be summarily dis-missed.

(ii) A person who is affected by drugs or alco-hol and unable to work safely will not beallowed to work.

(iii) the decision on a person’s ability to workin a safe manner will be made by the su-pervisor in discussion with other membersof the work group.

(iv) there will be no payment of lost time to aperson unable to work in a safe manner.

(v) If this happens twice, the worker shall begiven a written warning and made awareof the availability of treatment/counselling.If the worker refuses help he/she may bedismissed the next time he/she is affected.

(vi) For the purposes of disciplinary action awarning shall be effective for a period of12 months from the date of issue.

(vii) A worker having problems with alcohol orother drugs—(a) will not be sacked if he/she is willing

to get help; and(b) must undertake and continue with rec-

ommended treatment to maintain theprotection of this programme; and

(c) will be entitled to sick leave or leavewithout pay while attending treat-ment.”

The relevant provisions of the John Holland Construc-tion & Engineering Pty Ltd Westrail InfrastructureMaintenance Project—Alcohol and Other Drugs in the

Workplace: An Awareness Program Information, Policy& Procedures are—“12.2 After commencement of employment

It is a term and condition of employment that allpersons employed on the project agree to undergoalcohol and other drug testing as and when re-quested to do so by the organisation in accordancewith this policy. Testing may be conducted eitherfor cause (section 12.3), at the discretion of theManager Rail Maintenance (section 12.4), atTrack Access re-accreditation or randomly as re-quired and conducted by Westrail.

12.3 For Cause TestingExamples of circumstances where testing forcause may be carried out include the following—

a) Following accidents or incidents.b) Where an employee’s general behaviour

indicates to a supervisor that the employeemay be influenced or adversely affected byalcohol or drugs, the supervisor may ar-range for the employee to undergo analcohol and/or other drug test.

c) Where a supervisor becomes aware that anemployee’s performance has deterioratedsuch that in the opinion of the supervisorjob performance standards are not met andthat supervisor suspects the inappropriateuse of alcohol or drugs to be the cause, thenthe supervisor may arrange for the em-ployee to undergo an alcohol and/or otherdrug test.

d) Where a supervisor has reason to believethat there has been inappropriate use ofalcohol or other drugs.

e) where an individual who has previouslytested positive is being monitored to en-sure safe practice.

12.4 Discretion of Manager Rail MaintenanceThe Manager Rail Maintenance may from timeto time and without notice at any time direct test-ing to take place. Discretionary testing may applyto any individual on site, particular people orgroups of people.

13.3 Self TestingAlcohol and drug testing equipment will be avail-able upon request from the manager or supervisorfor self testing at any time. Any person who be-lieves that they may be affected by alcohol orother drugs is encouraged to conduct a self testprior to commencing work.If a person obtains a positive result from a selftest prior to commencing work, they shall notifytheir supervisor and declare themselves unfit forwork—

a) The person will take sick leave and will beinterviewed by the supervisor on return towork.

b) The result will not be treated as a positiveresult under this policy.

c) Consistent or regular absence from workas a result of alcohol or other drugs will betreated as an attendance or performanceissue and be dealt with accordingly.

13.5 Alcohol Testing Procedures13.5.1 Equipment Selection and Maintenance

Breathalyser test units will be equivalentin standard to those used by the WesternAustralian Police Force. They will be usedand maintained in accordance with themanufacturers instructions or the appropri-ate Australian AS 3547-1997.

13.5.2 Administration of TestingBreathalyser testing will be conducted bypeople suitably trained and approved to doso.


13.5.3 Method of TestingThose selected can either choose to takethe test privately or in the presence ofother(s). The results of each test will berecorded from the breathalyser read out asBlood Alcohol Content expressed as a per-centage. Any reading above 0.02% BACwill be regarded as a positive test result. Aperson testing positive may request a retestto be done within 10 minutes and a personof their choice to be present.

14.1 Refusal to take a TestIn the event that an employee presents his/her selffor work and subsequently refuses to take a testwhen required to do so by a supervisor, the em-ployee will be encouraged to take part in the test.Continued refusal will be treated as if it were apositive test.

14.3 Test Results Recorded Outside of the RailwayReserveThe following action will be taken in the event ofpositive tests recorded for employees and con-tractors working on John Holland business whoare not on the Railway Reserve.

14.3.1 First Positive TestIn the event of a first positive result for al-cohol or other drugs the following actionwill be taken—a) General management action will be

taken as outlined in section 9.2.1b) The person will be counselled by their

supervisor or manager regarding—• the performance standard that

has not been met• the procedures that have not

been followed• the alcohol and other drugs

policy and the obligations andresponsibilities under it

• the serious nature of the per-son’s behaviour

• the risk that this behaviour cre-ates for other employees and theworkplace

• the consequences for this andfuture breaches

• the employee’s responsibility todemonstrate that the problemhas been effectively addressed

• the reasons for the person’spositive test and unfit state

c) The person will be advised that theymay be monitored for a period of timeto ensure that the problem has beenaddressed and that during this periodthey may be subject to periodic alco-hol and drug screening

d) The person will be advised of the avail-ability of the Employee AssistanceProgram and offered assistance to ad-dress the problem

e) The person will receive a written warn-ing reflecting the key points in thisprocess and indicating that the em-ployee is liable to receive a secondwarning if there is a second positivetest. A copy of this will be placed ontheir personnel file;

f) The person will take sick leave,rostered leave or annual leave (if soaccrued) or otherwise authorised un-paid leave depending uponentitlements

14.3.2 Second Positive TestIn the event of a second positive result foralcohol or other drugs, the person willtreated in the same way as for the first posi-tive test. In addition,a) The person will be provided with writ-

ten warning indicating that theemployee is liable to termination ofemployment if there is a further posi-tive test. A copy of this will be placedon their personnel file;

b) The person will be formally offered theopportunity to contact a professionalcounsellor through the Employee As-sistance Program.

c) The person will take sick leave,rostered leave or annual leave (if soaccrued) or otherwise authorised un-paid leave depending uponentitlements

14.3.3 Third Positive TestIn the event of a third positive result foralcohol or drugs, unless there are legitimatereasons to the contrary, the person’s em-ployment with Rail Division will beterminated.

26 Mr Armstrong made out a lengthy case to say that therespondent ignored or misapplied these policies. I agreethat the policies where not adhered to literally by therespondent. However, I do not accept the argument thatthe application of the policy was fatally flawed so as tobe unfair because the device may not be a police standarddevice; Mr Renwick did not get counselled; Mr Maddenwas not a “supervisor” as put by Mr Armstrong; or thelocation of the test was wrong. Mr Renwick was notcognisant of the policies except as they related to thewarning letters he received. The respondent in my viewdid follow sufficiently the substance of the policy. Iconsider also that in making my decision, and havingregard to the fair go all round principle of UndercliffeNursing Home—v- Federated Miscellaneous Workers’Union of Australia, Hospital, Service and Miscellaneous,WA Branch 65 WAIG 385, I need to go past these policiesand deal with what the actual members of the crewunderstood. It is clear from the bulk of evidence that theemployees and supervisors were not fully aware of thecontent of the policies.

27 What the members of the crew, the supervisors andmanagers, and Mr Renwick himself knew was that it wasa serious matter warranting dismissal if someone wascaught three times under the influence of alcohol withintwelve months. Mr Renwick freely admits he knew thisand that it was important as the job was hazardous andsomeone could loose a finger or arm if not careful. Alcoholwould clearly diminish someone’s capacity and increasethe possibility of injury.

28 For all the reasons above I do not find Mr Renwick’sdismissal to be unfair and I would dismiss the application.


INDUSTRIAL RELATIONS COMMISSION.PARTIES PAUL ANTHONY RENWICK,

APPLICANTv.JOHN HOLLAND CONSTRUCTION &ENGINEERING PTY LTD ACN 004282 268, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED FRIDAY, 17 AUGUST 2001FILE NO APPLICATION 571 OF 2000CITATION NO. 2001 WAIRC 03564

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 261781 W.A.I.G._______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr D Armstrong of CounselRespondent Mr S Foy as agent_______________________________________________________________________________

Order.HAVING heard Mr D Armstrong of counsel on behalf of theapplicant and Mr S Foy on behalf of the respondent, the Com-mission, pursuant to the powers conferred on it under theIndustrial Relations Act, 1979, hereby orders—




INDUSTRIAL RELATIONS COMMISSION.PARTIES CRAIG ANTHONY SMITH,

APPLICANTv.TAB TRANSPORT PTY LTD,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED TUESDAY, 4 SEPTEMBER 2001FILE NO APPLICATION 558 OF 2001CITATION NO. 2001 WAIRC 03691_______________________________________________________________________________


RepresentationApplicant Mr C. SmithRespondent Mr D. Price (of counsel)_______________________________________________________________________________

Reasons for Decision.(Extemporaneous)

1 I am able to give you my decision in relation to what Isee as being the two issues that are fundamentally beforethe Commission. The first one is the nature of Mr Smith’semployment and the second one is whether if there was adismissal that dismissal was unfair.

2 In relation to the first issue, I have considered the notesthat I have taken of the evidence that has been given byall of the persons who have given evidence and I acceptthe evidence of Mr Seragusana regarding the operationof his business, and in particular that he is only able tooffer employment to drivers if there is a load available.That seems to me to be a reasonably sensible approachand it carries the implication that if there is no load thenthere is no employment for the driver and the driver isnot paid. That might mean that if there is no load for aday then the driver is not employed for a day. If there isno load for another week, the driver is not employed foranother week. That seems to be the evidence of Mr Fowleras to how his employment operates and it suggests to meas being the most likely form of employment.

3 I find it unlikely that Mr Smith’s employment was on thebasis that he would get paid even if there was no load. Idid not understand that to be his evidence and accordinglyI find that he was employed on what the parties thismorning have described as a casual basis.

4 The word casual is a word of indefinite meaning thesedays given the increased casualisation of employmentgenerally. I find as a fact that in this matter, Mr Smithwas employed as a truck driver on the basis that he wouldbe offered work to complete a trip of Perth to Sydneyand return.

5 I also accept that Mr Seragusana was prepared to put MrSmith on his books such that when, as Mr Seragusanasays, he has a load he rings drivers on the books.Sometimes drivers are unavailable, but that means thathe would just continue down the list until he found adriver that was available. It also carries with it thisconsequence: if Mr Smith’s employment was on the basisof the trip, that is Perth to Sydney and return, then at theend of that trip his employment came to an end until hewas offered another trip.

6 In this case, the words used by Mr Seragusana in hisevidence, and even the words used by Mr Smith in hisevidence, are words that I believe indicate that MrSeragusana would not be offering further work to MrSmith. At the time that was said, the contract ofemployment between Mr Smith and TAB Transport PtyLtd which was Perth to Sydney and return, at that stagehad been completed.

7 I therefore find that the situation in which Mr Smith foundhimself was not that he had been dismissed but ratherthat he was not to be offered further work. The unfortunateconsequence from Mr Smith’s point of view, is that thisCommission can only become involved in his case if hehas been dismissed. He may have been able to bedismissed part way through the Perth to Sydney and returntrip, in which case there would have been a dismissalbecause the trip was not complete. But at the time thisoccurred, I think that the trip had been completed and theissue is not that Mr Smith was dismissed, but rather thathe was not to be offered a further trip.

8 On that basis then, although Mr Smith is obviouslyaggrieved at what happened, I do not believe that there isa dismissal for the purposes of this Commission and thatreally is the end of the matter other than the two mattersthat I now raise.

9 In the event that I have misunderstood the nature of theemployment, I have also considered the evidence aboutwhat occurred and it seems to me that the central issue isnot that a blow-out of the tyre occurred, but whether whenthe blow-out occurred it is likely or not that Mr Smitheither knew, or ought to have known, about the blow-out.I accept Mr Smith’s evidence is that he did not know.

10 It appears to me on the evidence overall that if a tyredoes blow there is a likelihood that the driver of the truckwill know, either from a movement in the rev counter orfrom some sound. That is what the evidence is and I thinkit is open to me to reach that conclusion.

11 It would be up to Mr Smith (assuming that there was adismissal) to prove that his dismissal was unfair. On thebalance of the evidence, I would find it difficult toconclude that he has show that it was unfair. In part Iaccept his point when he says that if the other driver, Ithink his name was Mr Holmes, if Mr Holmes had notheard the tyre burst, then it is reasonable to assume thatMr Smith did not hear the tyre burst and that may be avalid observation, but it is up to Mr Smith to show thatwas the case. He would do so by putting Mr Holmes inthe witness box. Therefore, the fact that Mr Holmes hasnot given evidence is actually an issue for Mr Smith ratherthan an issue for the respondent. If Mr Smith had calledMr Holmes to give evidence and Mr Holmes said there isno way that he would have heard the tyre burst, perhapsMr Smith may have been on stronger ground.

12 So even if there had been a dismissal, I am not sure thaton the evidence before me I would comfortably concludethat Mr Smith has proven his case.

13 The second matter that I raise concerns the amount of$200.00 that was deducted from Mr Smith’s wages. Therespondent agrees that it deducted $200.00. It has beenconceded on its behalf, and I think quite properly giventhe terms of section 17C of the Minimum Conditions ofEmployment Act 1993, that the respondent has no legalright to deduct that money. It also seems to me that that isan issue that Mr Smith could have brought to thisCommission pursuant to section 29(1)(b)(ii) of theIndustrial Relations Act 1979 which allows an employeeto bring to the Commission a claim that he has been denied


a benefit under his contract. However, Mr Smith has notdone that.

14 All I have before me is a claim of unfair dismissal andthat is really all I am in a position to decide. Even duringthe case, Mr Smith did not ask as compensationreimbursement of the $200.00. In fact it was an issue thatthe Commission raised at the conclusion of theproceedings and it was only then that Mr Smith spokeabout the matter.

15 I am therefore not of the opinion that I have the power inthese proceedings to issue an Order requiring therespondent to re-pay the money deducted because it wasnot a matter that is before me. I merely pass theobservation that in my view there is an obligation on therespondent to make good the deduction. Also it wouldseem to me to be open to Mr Smith to now file anapplication under s.29(1)(b)(ii) and bring that as a matterbefore the Commission. That is entirely a matter for himif he wishes to do so and it may well be, given thecomments that I have just made, that if Mr Smith electsto do so and the respondent resists that claim, that that isa matter that ought to be decided by anotherCommissioner.

16 However, to return to the substantial point. The claimbefore the Commission is a claim of unfair dismissal andfor the reasons that I have given, I am not satisfied thatMr Smith was dismissed as such and for that reason anOrder will issue that dismisses the claim for want ofjurisdiction.

17 Order accordingly.


INDUSTRIAL RELATIONS COMMISSION.PARTIES CRAIG ANTHONY SMITH,

APPLICANTv.TAB TRANSPORT PTY LTD,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED THURSDAY, 6 SEPTEMBER 2001FILE NO APPLICATION 558 OF 2001CITATION NO. 2001 WAIRC 03690_______________________________________________________________________________


RepresentationApplicant Mr C. SmithRespondent Mr D. Price (of counsel)_______________________________________________________________________________

Order.HAVING HEARD Mr C. Smith on his own behalf as the ap-plicant and Mr D. Price (of counsel) on behalf of therespondent, the Commission, pursuant to the powers conferredon it under the Industrial Relations Act 1979, hereby orders—

THAT the application be dismissed for want of juris-diction.



INDUSTRIAL RELATIONS COMMISSION.PARTIES GAVIN GEORGE WELLS,

APPLICANTv.JOHN REYBURN t/a NICHOLSON,CLEMENT SOLICITORS,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED MONDAY, 27 AUGUST 2001FILE NO APPLICATION 226 OF 2001CITATION NO. 2001 WAIRC 03617_______________________________________________________________________________

Result Application alleging unfair dismissal anddenied contractual entitlements grantedin part.

RepresentationApplicant Mr G.G. Wells on his own behalfRespondent Mr S. Stocks (of counsel) on behalf of

the respondent_______________________________________________________________________________

Reasons for Decision.1 The respondent in this matter is a firm of solicitors of

which Mr Reyburn is the proprietor. Mr Wells wasemployed by the respondent from July 1998 until,according to his claim, either his dismissal on 25 January2001 or his constructive dismissal on 30 January 2001.Mr Wells claims that in either case his dismissal wasunfair. Mr Wells also claims as a benefit due to him underhis contract of employment which has not been paid bythe respondent, bonus payments and reimbursement oftravelling expenses.

2 The claims are opposed. It is convenient to deal with theparties’ respective positions in relation to each claim asfollows.

Claim of unfair dismissal3 Mr Wells was employed as a solicitor with the respondent.

Relevantly, he had conduct of a matter listed before theDistrict Court relating to workers’ compensation (theDistrict Court matter). On the evidence, Mr Wells wassuccessful in negotiating the settlement of the DistrictCourt matter prior to him commencing his annual leaveon 24 December 2000. I find on the evidence that someminor matters relating to costs incurred between June andDecember 2000 and items of special damages which mayor may not be payable, remained to be calculated. Thefact of the settlement of the District Court matter wasconfirmed by the series of correspondence which MrWells sent to his client and various intended witnesseson 27 December 2000 (exhibits C, D and E).

4 Mr Wells returned from annual leave on or about 15January 2001. He attended to a number of duties includingfinalising the settlement of the District Court matter. Thisincluded, for example, correspondence of 21 January2001 (exhibit 10) between Mr Wells and the solicitor forthe other party in the District Court matter.

5 In that week, Mr Reyburn left a note for Mr Wells askingabout the status of the District Court matter. Mr Wellswrote on the note words to the effect that the matter wassettled and the respondent’s costs were secured, andreturned the note to Mr Reyburn.

6 Mr Wells was anxious to advise the District Court of thesettlement because the hearing of the matter was due tocommence on 29 January 2001 for two days. Thepropriety of Mr Wells needing to advise the District Courtof the settlement is not questioned. In the evening of 24January 2001 he drafted a letter dated 25 January 2001to the case management clerk of the District Court asfollows—

“This letter is to confirm that agreement has beenreached between the Insurance Commission and theplaintiff to settle this dispute. Settlement has beenachieved after last minute negotiations without a


formal minute being prepared. In that situation werespectfully ask the trial date be vacated. There is noprospect that the matter will proceed any further andthat the Court is entitled to receive a minute of con-sent judgement which will finalise the matter fromthe point of view of the Court and that documentscannot be prepared and lodged prior to the trial datehaving regard to the forthcoming long weekend andto the writer’s Court commitments. Indeed this fac-simile is being signed by the writer’s colleague inthe writer’s absence on the writer’s instructions …”.

7 He also prepared a letter to the solicitor of the other partyconfirming that the District Court matter had settled. Heleft the draft on a secretary’s desk to be typed the nextmorning with a request that they be placed before MrReyburn for his signature and dispatch. Mr Wells washimself engaged on other matters in Perth the nextmorning.

8 Upon Mr Wells’ return to the respondent’s premises about1:00pm on 25 January, he saw that the letters had notbeen signed by Mr Reyburn and for that reason they hadnot been sent. When Mr Wells asked Mr Reyburn whythe letters had not been sent it is clear from the evidenceof both Mr Wells and Mr Reyburn that they had anargument between them with much shouting. Mr Reyburnwas of the view that the letter to the District Court wasfactually incorrect because the settlement had not resultedfrom “last minute negotiations”. Mr Reyburn accused MrWells of “fudging the truth” and of being a liar. The word“liar” was apparently repeated on more than one occasion.Mr Wells shouted back in reply and described Mr Reyburnas “the biggest a… there is, but you don’t know it”. MrReyburn asked Mr Wells for his resignation. Mr Wellsleft the room, apparently without replying.

9 On the evidence, this heated exchange took place atapproximately 1:30pm. It is common ground that MrReyburn then left the building. Mr Wells states that MrReyburn was absent for two hours. Mr Reyburn’s evidenceis that he followed his normal practice for purchasinglunch and would not have been absent for more than onehour. His recollection, to the extent that Mr Reyburn isable to recollect the time he was absent, is that he estimateshe was absent for less than half an hour.

10 Mr Wells, meanwhile, believed he was in a difficultsituation. He was aware that Mr Reyburn was adamantthat under no circumstances was correspondence to besent from the respondent without him signing it. Mr Wellswas aware that Mr Reyburn had not approved the contentof the District Court letter. Mr Wells, nevertheless, feltunder pressure due to the obligation as he saw it to notifyboth the District Court, and the solicitor representing theopposing party, formally of the settlement of the matter.Mr Wells’ evidence is that the letters needed to be faxed.He telephoned both the District Court and the solicitorfor the opposing party and informed them of his dilemma.They, however, replied that without a formal notificationfrom him, little further could be done. Mr Wells believedthat he had a professional duty to the District Court, aprofessional courtesy to the respondent’s solicitors and apersonal responsibility to his client not to delay mattersfurther with a possible increase in costs, all of whichoutweighed his obligation to Mr Reyburn arising fromMr Reyburn’s requirement that he sign outgoingcorrespondence. Accordingly, Mr Wells signed the lettersand faxed them to the District Court and to the solicitorfor the opposing party.

11 When, shortly afterwards, Mr Reyburn discovered thatthe letters had been signed by Mr Wells and sent heconfronted Mr Wells in an angry manner. He inquiredhow dare Mr Wells disobey his orders. He informed MrWells that he was suspended and that he was required toleave the building immediately. Mr Wells refused, andthere was some mention of whether the police would becalled. I am satisfied that Mr Wells asked Mr Reyburnwhether his suspension was with, or without pay, and itis likely that Mr Reyburn replied that he had not givenany thought to that particular issue. For the reasons whichfollow, I find that little turns upon this particular aspect

of the conversation. Mr Wells subsequently left thebuilding.

12 Either on that Thursday afternoon, or over the followingAustralia Day long weekend, Mr Wells spoke to the officemanager, Mr Bathurst, and indicated that if Mr Reyburnrang him by 7:15am on Monday, 29 January 2001 to sayhe could return to work without any loss of benefits, MrWells would be prepared to return to work. Mr Wells’further evidence is that on Monday, 29 January 2001 whenhis telephone did not ring by 7:15am, he rang Mr Bathurstand informed him that he was prepared to extend thedeadline to 7:45am. Mr Reyburn did not ring. Accordingto Mr Wells, Mr Bathurst rang him at about 8:35am andtold Mr Wells that Mr Reyburn would like to see him. MrWells dressed ready to commence work and went in tothe office.

13 Mr Wells met with Mr Bathurst. On Mr Wells’ evidenceMr Reyburn did call into their meeting and said that hehad lost all confidence in Mr Wells. Mr Reyburn denieshe said that. Mr Reyburn’s evidence is that he made thepoint that he wanted Mr Wells to address his behaviourof the 25 January. In any event, Mr Wells states that hediscussed the terms of his remuneration with Mr Bathurstand left that meeting on the understanding that MrBathurst would contact him later. Mr Wells’ evidence isthat no agreement resulted from either that meeting or asubsequent meeting and that he received 2 telephone callsfrom Mr Reyburn. Those calls were to the effect that MrReyburn expected him to return to work the next day,even on the same conditions of employment, but Mr Wellswas of the view that “enough was enough” and that hecould not trust Mr Reyburn any further (transcript p.20).

14 Mr Reyburn’s evidence is that as long as Mr Wells agreedto comply with his requirements as to office procedures,he was very happy to have Mr Wells back working and toend what he had termed “his suspension” (transcript p.68).He sent an e-mail to Mr Wells on that day (exhibit 6)stating that he confirmed that he regarded Mr Wells’suspension as completed and he was welcome to returnto fulltime work. As to the conditions of Mr Wells’ return,Mr Reyburn was of the view that they were significantlybetter in a financial sense, and no worse in any other sense.In Mr Reyburn’s view, if Mr Wells chose not to returnthen Mr Wells should work out a period of notice.

15 Ultimately, as at Wednesday, 31 January 2001 noagreement was able to be reached between Mr Wells andMr Reyburn on the return of Mr Wells to the office.

16 Mr Wells received payment from Mr Reyburn of hisregular fortnightly wage up to and including 1 March2001. It is not entirely clear to the Commission from MrWells’ evidence whether that salary was paid on eachpayday as it fell due, or whether it was paid somewhatlater and in a lump sum.

17 With that background information, I turn to considerwhether it can be said that Mr Wells was dismissed on 25January 2001 as a result of Mr Reyburn suspending him.It is admitted that Mr Wells was suspended. Mr Stockssubmitted that an employer has the right to direct anemployee to perform work in another location. That maybe correct as a general proposition. It may have beencompetent for Mr Reyburn to direct Mr Wells to performhis work at another location away from the office.However, that is not what happened in this case. Theevidence of Mr Reyburn himself makes it quite clear thatMr Wells was not merely sent home. Mr Reyburnexpressly purported to suspend him.

18 The learned authors of The Law of Employment (Macken,McCarry and Sappideen), Fourth Edition state at page155—

“Exclusion of employees from the workplace as adisciplinary measure in the absence of authorisationby the contract, statute or award would constitute anunlawful suspension.”

19 It is common ground that the contract of employmentbetween Mr Wells and Mr Reyburn did not authorise hissuspension. Mr Wells’ employment was not covered byan award and there is no statutory entitlement affectingMr Wells which would authorise his suspension. Mr


Reyburn suspended Mr Wells because he thought MrWells had shown contempt for his instructions. I find thatreason to be a disciplinary response to allow Mr Reyburnthe opportunity he required to consider what to do aboutMr Wells. Mr Wells was therefore unlawfully suspended.The conclusion that Mr Wells was suspended unlawfullyapplies whether or not he was paid for the period of hissuspension.

20 As I find, to do so was unlawful. Unlawful suspensionwill almost invariably constitute a breach of contractsufficient to allow the employee to terminate the contract(ibid at 158). I have no doubt from Mr Wells’ evidencethat he regarded himself as dismissed if not when heinformed Mr Bathurst that he would be prepared “toreturn” to work if Mr Reyburn contacted him by 7:15amon Monday, 29 January 2001, then after the failure of heand Mr Reyburn to reach agreement on terms to allowhim to return. I find on the facts of this case that Mr Wellsregarded the contract as terminated on 25 January 2001.I therefore find Mr Wells was dismissed on that day, MrReyburn’s purported suspension being the action thatreally terminated the contract of employment.

21 The issue becomes whether or not the dismissal wasunfair. In this regard, the conclusion is inescapable thatthe dismissal was unfair. It is clear that Mr Wells breacheda policy of the respondent in signing correspondence andhe was wrong to have sent unaltered a letter which hisemployer had said was incorrect. Even if I accept that MrWells felt that he was motivated by a higher duty, or duties,as described earlier in these Reasons, that does not excusehim sending the letter in its unaltered state. I have littledoubt that Mr Wells understood the point made by MrReyburn and the precise part of the letter to which MrReyburn objected. I have little doubt also that if Mr Wellsfelt that the District Court needed to be advised of thesettlement of the matter for the reasons Mr Wells hasstated, he could have done so with that part of the letterto which Mr Reyburn objected deleted. Mr Wells did notdo so and I find nothing in the reasons he has advanced,with the utmost respect to him, which explains why hedid not alter the letter accordingly before sending it.

22 Nevertheless, not all misconduct justifies dismissal and Ihave no difficulty reaching the conclusion that Mr Wells’actions did not constitute misconduct serious enough towarrant dismissal. He sent the correspondence in goodfaith. Apart from the reference to which Mr Reyburnobjected, the letter was otherwise appropriate. There isno evidence that Mr Reyburn, or the firm of which he isproprietor, suffered any actual detriment. It was not therepeat of conduct about which Mr Wells had previouslybeen warned. In the circumstances of Mr Wells’employment overall, I do not regard his action as soseriously in breach of the contract as to justify hisdismissal: North v Television Corporation Ltd (1976) 11ALR 599 at 608/9. While Mr Reyburn is quite entitled tohave the office procedure which is at the heart of thismatter, and indeed it is proper that he have that procedure,the breach of it on this occasion was not serious. In thesecircumstances, a reprimand would have been all that waswarranted: Undercliffe Nursing Home v. FMWU (1985)65 WAIG 385.

23 I therefore conclude that Mr Wells’ dismissal was unfair.24 By section 23A of the Industrial Relations Act 1979, the

Commission is to consider whether or not Mr Wells shouldbe reinstated in his employment. I have no difficulty, also,in concluding that reinstatement would be impracticable.The deterioration in the relationship between Mr Wellsand Mr Reyburn is evident from their evidence and alsofrom my observation of both of them when they gaveevidence in these proceedings. It would be futile to attemptto recreate the employment relationship.

25 I turn then to consider the issue of compensation. As tothat, it is relevant to take account of the evidence that MrWells took immediate steps to secure alternateemployment. He contacted the Department of SocialSecurity. He e-mailed his CV to eleven employmentbrokers and responded to all advertisements for solicitor’spositions. On 26 February 2001, that is four weeks after

the termination of his employment, he found employmentwith another firm of solicitors. This employment was foran initial period of eight weeks but in fact lasted until 18May 2001. Mr Wells has also received a small amount ofincome for work he performed for one month from 21May 2001 to 22 June 2001. He found his presentemployment on 25 June 2001.

26 The Commission should also take into account thelikelihood that if this incident between Mr Wells and MrReyburn had not ended as it did Mr Wells’ employmentwould have continued for a period of time beyond 26January 2001. The evidence suggests the likelihood thatMr Wells’ employment would not have continued for anysubstantial period of time at all. The language used byeach of them to describe the other shows the utmost lackof respect for their respective personal attributes. Thereis evidence of a breakdown in the necessary relationshipof trust and confidence which must exist between anemployer and an employee. That evidence includes MrWells’ evidence that because of the issue regarding hisbonus which occurred in May or June 2000, his “heartwas not in the job from that point on”. Mr Wells makes itclear that he would have wanted to leave Mr Reyburn’semployment, but he did not do so for economic reasons.While I appreciate that the economic reasons meant thatMr Wells remained in Mr Reyburn’s employment afterMay or June 2000, and that Mr Wells had neverthelessremained in Mr Reyburn’s employment since that time, Ifind that the point of no return was reached on 25 January2001 after they had each abused the other. Mr Reyburn’srequest for Mr Wells’ resignation is not withoutsignificance and allows Mr Reyburn’s later invitationsfor Mr Wells to return to his employment to be placed incontext. Mr Reyburn’s later invitations were to returnprovided Mr Wells addressed his behaviour in a mannersatisfactory to Mr Reyburn so that Mr Wells undertookto comply with Mr Reyburn’s procedures. Although MrReyburn states that he was happy to have Mr Wells back,his preparedness to do so was not without qualification.

27 I therefore conclude that even if the events of 25 January2001 had not resulted in Mr Wells’ dismissal, it is unlikelythat Mr Wells would have continued in Mr Reyburn’semployment for any further significant period of time.Given that Mr Wells was paid the wages which he wouldotherwise would have earned up to 1 March 2001, afurther five weeks after his dismissal, I am unable toconclude with confidence that Mr Wells has suffered aloss which is susceptible to compensation in thisCommission. The wages he would have earned betweenthe date of his dismissal and the commencement 4 weekslater of the alternative employment found by him werepaid to him by virtue of Mr Reyburn paying him for 5weeks after his dismissal. Although Mr Wells earned onlya small income for one month from 21 May 2001 to 22June 2001, it is by no means certain that he would stillhave been employed by Mr Reyburn at that time in anyevent.

28 By the application of the same reasoning, I am notpersuaded that Mr Wells has shown that his employmentwith the respondent was a long-term proposition suchthat he has suffered a loss of job security for whichcompensation should now be ordered.

29 Accordingly, although I find that events of 25 Januaryconstituted an unfair dismissal, on these facts no order ofcompensation is made.

Contractual Benefits Claim30 Mr Wells also brings two claims that he has been denied

benefits to which he is entitled under his contract ofemployment. In both cases the approach of theCommission is limited to determining from the evidencethe terms of Mr Wells’ contract of employment to establishthe benefits to which he was entitled, establishing whetheror not the benefits have been paid, and if they have notbeen paid deciding on the basis of equity, good conscienceand substantial merit whether or not an Order should issuerequiring them to be paid.

31 It is first necessary to establish that there is a benefit towhich Mr Wells was entitled. The first claim relates to


the payments that Mr Wells received by way of a bonus.The written contract of employment between Mr Wellsand Mr Reyburn of 8 March 1999 provided for thefollowing remuneration (so far as it is relevant to thisclaim)—

“(c) the Solicitor shall be entitled to a performancebonus calculated quarterly corresponding to onethird of the employee’s work performed on orafter the commencement of this Contract andbilled during or after the Contract as exceeds 3.5times the Solicitor’s salary for that quarter, suchbonus to be paid fifteen days after the quarterduring which such billings are paid by the client;

32 Mr Wells’ salary was $60,000 per annum. He wastherefore entitled to ? of any receipts in excess of$52,500.00 per quarter that were generated through hisown work. That written contract of employmentprescribed that the term of employment was between 1January 1999 to 31 December 1999 “and thereafterrenewable as the parties agree…” (exhibit 3 clause 2(e)).

33 Mr Wells continued in employment after 31 December1999 although the evidence is that no subsequent writtencontract was executed between the parties. It appears thata contract was prepared, but it was not executed and itplays no further part in these Reasons. The terms of MrWells’ employment after 31 December 1999 are thereforeto be found in the oral agreement, if any, reached betweenMr Wells and Mr Reyburn.

34 Mr Wells’ evidence is that in December 1999 he askedMr Reyburn in the presence of Mr Bathurst, the officemanager, at a Thursday afternoon/evening meetingwhether his terms would be renewed on the same basisfor the following year. His evidence is that Mr Reyburnsaid to Mr Bathurst, “Fred, what you think. Yeah? Yes.Done” (transcript p.7).

35 Mr Reyburn’s evidence of that conversation is that hewas happy for Mr Wells to stay at Nicholson Clementand that over the Christmas holidays he would reviewthe financial aspects which involved the hourly ratescharged for solicitors’ work, their annual budgets and thetargets and the bonus payment system (transcript p.55/56).

36 On that evidence I have been unable to decide withcertainty that Mr Wells’ entitlement to the bonus containedin the written contract continued past 31 December 1999.It is Mr Wells who carries the onus of proving that it did.Although Mr Wells’ evidence was that Mr Bathurst waspresent at the conversation, Mr Bathurst was not calledto give evidence. It is open to me to conclude that hisevidence would not have assisted Mr Wells on this point.

37 The terms of any bonus arrangement to apply after 31December 1999 therefore remain unclear to theCommission. It is in this context that Mr Wells’ evidencethat on approximately 17 or 18 January he attended astaff meeting where Mr Reyburn indicated there wouldbe a revised quota system for all employees suggests thatthe arrangements remained to be confirmed.

38 Mr Wells’ evidence is that the office manager, Mr Bathurst,indicated later to Mr Wells that Mr Wells’ quota wouldnow be $70,000.00 per quarter and Mr Wells acceptedthis. His evidence is, however, that Mr Bathurst did notmention an alteration to the bonus and Mr Wells did notunderstand that the $70,000.00 minimum was requiredbefore the bonus was applied.

39 Mr Wells’ evidence is that it was not until the middle ofMay that he believed that he had been underpaid his bonusand that it was then that he was told that he was expectedto get $70,000.00 per quarter before the bonus applied.Mr Wells’ evidence is that he was angry and that he didnot accept it, however, nothing was done about that issue.Mr Wells’ evidence is that he did not want to leave hisemployment because it was the only job he had at thetime and he had commitments to service. However, hedid not believe that his staying in employment with therespondent should be deemed to be agreeing to what hesaw as a reduction in his entitlements.

40 Mr Reyburn’s evidence in this regard is that at thebeginning of the year 2000 he reviewed the hourly ratesfor solicitors, the annual budgets, the targets and the bonuspayments system. The charge out rate for Mr Wells wasincreased, the billing target which he had was set higherthan the previous year and the formula to calculate theperformance based portion of his remuneration packagewas also changed.

41 He did not personally advise Mr Wells of the change.Rather, he instructed Mr Bathurst to inform Mr Wells ofthe change. Mr Reyburn’s evidence is that he didsubsequently have discussions with Mr Wells on a numberof occasions. Mr Reyburn’s evidence is that he explainedto Mr Wells the basis of the new formula and how hearrived at it, and his evidence is that Mr Wells repliedthat he was not happy with that arrangement.

42 On balance, I am not satisfied that it remained a term ofMr Wells’ contract of employment that he would continueto be entitled to ? of any receipts in excess of $52,500.00per quarter that were generated through his own work. Iam not satisfied on the evidence that this was agreedbetween Mr Wells and Mr Reyburn in December 1999.The evidence does not establish that Mr Wells and MrReyburn agreed that it would and the evidence of thesubsequent changes of which Mr Reyburn gave evidencesuggests that he certainly was of the view that Mr Wells’bonus arrangements were not agreed in December 1999.

43 That disposes of this part of Mr Wells’ contractual benefitsclaim. Although the claim had been advanced in part onthe basis that there had been deductions made from thebonus payments, the Commission does not understandthat the issue to be decided involves deductions from thebonus that was otherwise due. Rather, the only differencebetween the parties in this hearing is the issue of whetheror not Mr Wells’ bonus arrangements were referable to afigure of either $52,500.00 or $70,000.00 per quarter.

44 The next and final aspect of Mr Wells’ claim is the claimfor reimbursement of travel expenses. It appears agreedbetween the parties that it remained a term of Mr Wells’contract of employment that he would be reimbursed fortravelling costs and parking fees billed to clients uponpayment by the client. Mr Wells’ evidence is that whenhe ceased employment with the respondent most of histravel expenses had been paid to that date, however, thebalance of the entitlements that he is due were only paidto him in the week prior to the commencement of thehearing of this matter. Thus, as I understand it, as of thehearing of this matter Mr Wells has been paid all of thetravel expenses due to him to that point, that is, the travelexpenses which are due to him by virtue of the relevantclient having paid the relevant part of the bill. However,he has approximately $1,500.00 of travel expensespotentially due to be paid to him.

45 Mr Wells’ complaint is that he believes Mr Reyburn wasso tardy in paying the travel expenses due to him as at thecommencement of the hearing of this matter that an Ordershould now issue from the Commission requiring thebalance of the outstanding travel expenses which willbecome due to him to be paid now. Mr Wells regards MrReyburn’s belated payments as effectively being a breachof contract on his part and although he has now beenpaid in full to the date of the hearing, he asks that in theabsence of an undertaking given to the Commission byMr Reyburn, there should be found by the Commissionto be an anticipatory breach in respect of the remainderof the outstanding travel expenses.

46 In my view, the answer to the claim is that the Commissionis only able to order that Mr Wells be given a benefit towhich he is entitled under his contract of employmentwhich has not been paid to him. The balance of the travelexpenses are not due to him under his contract until theclient pays the relevant part of the bill. If the client doesnot pay the relevant part of the bill, then the terms of MrWells’ contract of employment do not entitle him to bepaid. The Commission is therefore not in a position toorder the payment to Mr Wells of the travel expenseswhich are not yet a benefit under his contract ofemployment.


47 However, in the circumstances of this matter, and giventhe deterioration in the relationship between Mr Wellsand Mr Reyburn to which I have already referred, theCommission is prepared to adjourn this part of Mr Wells’claim for a period of six months during which time theCommission expects Mr Reyburn to ensure that his officepunctually remits to Mr Wells the reimbursement of histravel expenses upon the receipt by the respondent of thepayment by a client of the relevant parts of the bill. Theobligation to ensure the remittance rests with Mr Reyburnas the proprietor. Although the evidence is that MrReyburn has “absolutely no input” (transcript p.94) intothe reimbursing of Mr Wells’ travelling expense, and thathe has every confidence in the practice manager attendingto that function, he nevertheless bears the ultimateresponsibility of ensuring that the respondent properlydischarges its remaining obligations to Mr Wells arisingout of the contract of employment. The Commissionwould be surprised, given that the respondent in thismatter is a firm of legal practitioners, that any furtherrecourse to the Commission on this claim would benecessary. An Order will issue discontinuing this part ofthe application if nothing is heard from Mr Wells withinsix months of the delivery of the Order in this matter.

48 To the extent that the Compensation Claim Scheduletendered by Mr Wells at the conclusion of the hearingseeks an order for costs, costs are usually awarded in thisjurisdiction only in extreme cases and I do not considerthis to case to be extreme.

49 That brings the proceedings to an end and a Minute of anOrder now issues which—

(1) declares that Mr Wells was unfairly dismissed byMr Reyburn;

(2) orders that the claim for compensation arisingfrom the dismissal be dismissed;

(3) orders that the contractual benefits claim madeby Mr Wells as it relates to the bonus entitlementbe dismissed; and

(4) orders that the contractual benefits claim madeby Mr Wells as it relates to the reimbursement oftravel expenses—

(a) be adjourned for a period of six months;(b) be re-listed within that time for further hear-

ing upon the request of either party withinthat time; and

(c) be discontinued at the expiration of thattime if neither party has requested that itbe re-listed for further hearing.


INDUSTRIAL RELATIONS COMMISSION.PARTIES GAVIN GEORGE WELLS,

APPLICANTv.JOHN REYBURN t/a NICHOLSON,CLEMENT SOLICITORS,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED WEDNESDAY, 29 AUGUST 2001FILE NO APPLICATION 226 OF 2001CITATION NO. 2001 WAIRC 03648_______________________________________________________________________________

Result Application alleging unfair dismissal anddenied contractual entitlements grantedin part.

RepresentationApplicant Mr G.G. Wells on his own behalfRespondent Mr S. Stocks (of counsel) on behalf of

the respondent_______________________________________________________________________________

Order.HAVING HEARD Mr G.G. Wells on his own behalf as theapplicant and Mr S. Stocks (of counsel) on behalf of the re-spondent, the Commission, pursuant to the powers conferredon it under the Industrial Relations Act 1979 hereby—

(A) DECLARES that Mr Wells was unfairly dismissedby Mr Reyburn;

(B) ORDERS THAT—(1) the claim for compensation arising from the

dismissal be dismissed;(2) the contractual benefits claim made by Mr

Wells as it relates to the bonus entitlement bedismissed; and

(3) the contractual benefits claim made by MrWells as it relates to the reimbursement oftravel expenses—

(i) be adjourned for a period of sixmonths;

(ii) be re-listed within that time for furtherhearing upon the request of either partywithin that time; and

(iii) be discontinued at the expiration of thattime if neither party has requested thatit be re-listed for further hearing.

(Sgd.) A. R. BEECH,[L.S.] Commissioner.


INDUSTRIAL RELATIONS COMMISSION.PARTIES MARK WISEMAN, APPLICANT

v.HILLS INDUSTRIES LIMITED,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED TUESDAY, 21 AUGUST 2001FILE NO APPLICATION 65 OF 2001CITATION NO. 2001 WAIRC 03577_______________________________________________________________________________

Result Unfairly dismissed that reinstatement isunavailing. Compensation awarded

RepresentationApplicant Mr D. Schapper (of Counsel) appeared

on behalf of the ApplicantRespondent Mr P. Robertson appeared on behalf of

the Respondent_______________________________________________________________________________

Reasons for Decision.1 On 10th January 2001 Mark Wiseman (the Applicant)

applied to the Commission for orders on the grounds thathe had been unfairly dismissed from employment withHills Industries Limited (the Respondent). He claims thedismissal occurred either in December 2000 or in January2001, the relationship between the parties is not capableof being restored and he therefore seeks compensationfor unfair dismissal. The Respondent denies that theApplicant was unfairly dismissed, on the contrary it saysthat the Applicant was the architect of his own misfortunein that he abandoned his contract of employment. Thatabandonment took place in early December 2000 andtherefore the application filed by the Applicant on 10th

January 2001 is out of time.2 The dispute between the parties can be described in

general terms, albeit incompletely, as follows. TheApplicant went on approved leave in November 2000.While he was on leave he discovered his father wasgravely ill in England and he departed from Australia to


be by his side. While he was away the Respondent formedthe view that he abandoned his employment.Subsequently when he returned to Australia in January2001 there was no job available to him. He discoveredhis services had either been terminated or his employmentcontract was treated as being at an end by reason of theRespondent’s view that he had abandoned theemployment contract in late November or early December2000. The Applicant says that in all the circumstancesthe Respondent was wrong to reach that view; theemployment had come to an end either when theRespondent filled his job in December 2000 or when hereturned to Australia in January 2001 and presented forwork.

3 The Applicant told the Commission that he hadcommenced working for the Respondent on 1st July 2000,at the time he had been working for another company inthe industry and the Principal of the Respondent inWestern Australia, Mr Paul Knight, spoke to him andoffered him a position.

4 The Applicant says that about one month into theemployment he drew to Mr Knight’s attention that hehad holidays pre-booked in Melbourne and Mr Knightagreed without demur that he could have two weeks leavein November 2000.

5 When November arrived he went to Melbourne, met hisfriends and as a matter of courtesy called in on Mr RickStokes, the General Manager of Pacific Communications,an associated Company. He had informal discussions withMr Stokes about how the Applicant’s employer wasperforming in Perth and expressed some views. His leavewas due to end on or about 17th November 2000.

6 In September he had been made aware that his father wasunwell but there was no specific knowledge about theextent of his illness. At that time he had mentioned thematter to Mr Knight who had suggested that the Applicantuse the two weeks leave that he had booked and go toEngland. He declined to do that because even though hisfather had been diagnosed with cancer, his prognosis wasunknown at that time.

7 In November during the last week of his leave he receiveda call from England to say that his father’s condition haddeteriorated and his mother felt that he should return toEngland urgently if he wished to see his father who wasthen very ill.

8 The Applicant immediately made arrangements to go toEngland. According to his evidence he rang Mr Knightand told him of his predicament. Proof that he did so, hesays, is contained in his telephone account (Exhibit S1).

9 The Applicant says he explained the situation during ashort telephone call to Mr Knight, he told him exactlywhat had happened, he says that Mr Knight expressedhis regret, the phone call ended with the Applicant sayingthat he would see Mr Knight on Thursday in Perth beforehe left for England.

10 He returned to Perth and went into the office, Mr PaulKnight was off ill but his wife Cherri was present, shesaw him return his car keys, company phone and creditcard, he asked her where he should put the keys. Hereturned these items as he understood it was companypolicy for that to happen if the holder was to be absentfor any time. He left telling Mrs Knight that when hereached England he would be able to make an assessmentof his father’s condition and give her more informationas to when he would be returning.

11 About a week or so later when he was in possession ofthat information he rang as promised, he was unable tospeak to either Mrs Knight or Mr Knight who was offsick again but he did speak with Mr John Todd andexplained the situation to him. He asked that Mr Toddpass on the message to Mr Knight and get him to call.There was no response immediately from Mr Knight andso later the Applicant rang the company’s Melbourneoperations explaining the situation. He was assured thathe should not be worried about the situation and theperson to whom he was speaking said they were sure MrKnight would give him a call.

12 On 4th December 2000 Mr Knight called but the Applicantwas not present at the house, Mr Knight spoke to theApplicant’s mother, he told her he would call back thefollowing day. There was another call by the Applicantto Melbourne but he waited for Mr Knight to call him thefollowing day. That occurred on 5th December 2000. TheApplicant says he was awakened by the call at 6:00am,he disputed with Mr Knight the suggestion that he hadabandoned his employment, he vigorously assured MrKnight that was not the case.

13 The Applicant says his pressing family matters overtookhim at that stage and he was fully committed in attemptingto deal with those. They culminated with the death of hisfather on 9th December 2000. Arrangements were thenmade for the funeral which occurred on 16th December2000. The Applicant said dealing with the death of hisfather and making arrangements to look after his motherkept him occupied until on 21st December 2000 hereceived advice from a friend that two letters had comefor him from the Respondent. They were read to him overthe telephone and in response he asked the person whocollected them to contact the writer, Ms Jane Pfitzner. Hewas assured the person tried to do this by leaving amessage for her on 21st December 2000.

14 The two letters are important for the disposition of thiscase and are incorporated hereunder—“24 November 2000Dear MarkIt has come to my attention that you have abandonedyour employment as a Sales Representative—Major Sys-tems with Direct Alarm Supplies, a division of HillsIndustries Limited, effective Monday 20 November 2000.I confirm that you were on Annual Leave from Monday 6November 2000 up to and including Friday 17 Novem-ber 2000. You were expected to return to work from AnnualLeave on Monday 20 November 2000. Your absence fromwork now exceeds three (3) working days during whichyou have made no attempt to notify Hills of your inten-tion to return to work.Although I can confirm that your Branch Manager hasadvised that during the period of your leave you returnedyour company supplied motor vehicle and fuel and creditcards to the branch, you made no attempt to officiallyresign your position nor discuss this matter with him.Are we to assume that by you returning these items, youhave resigned? As a monthly paid employee it is a condi-tion of your employment that you provide one (1) month’snotice of your intention to resign your position. To thedate of this correspondence, you have failed to providethis notice nor notify your Branch Manager of your in-tentions.Should your absence be due to illness or incapacity pleasecontact me on (08) 83013340 by no later than 5.00pmon Friday 1 December 2000.”Yours sincerely

[Exhibit S2]“8 December 2000Dear MarkI refer to correspondence sent to you dated 24 November2000 requesting that you contact me no later than 5.00pmon Friday 1 December 2000 to confirm whether yourabsence from work since Monday 20 November 2000 isdue to illness or incapacity. To the date of this letter youhave failed to comply.As a result of your abandonment of employment, you werepaid into the nominated financial institution of yourchoice on or around 15 November 2000 for the periodup to and including 30 November 2000. You did notpresent yourself to work for the period Monday 20 No-vember up to and including Thursday 30 November 2000nor did you notify the company of your intended absenceon any of these dates. You were also inadvertently paidfor some Annual Leave which you had not yet accruedan entitlement to. Nor have you satisfied notice require-ments and as a result of your actions, we are entitled toclaim payment from you for one (1) month’s salary in


lieu of the one (1) month notice period required. Conse-quently, the Payroll Office have calculated that moniesowed by you equate to a net amount of $3,419.72. De-tails are attached.We require you to repay the total net amount of $3,419.72by Thursday 21 December 2000 or as agreed in writingwith us.If we have not received payment for the total amount ofmonies owed by that date, we will commence legal pro-ceedings to recover the monies owed.Should you have any queries or wish to discuss this mat-ter further please do not hesitate to contact me on(08)83013340.Yours sincerely”

[Exhibit S3}The Applicant returned to Perth on Sunday 7th January2001. He called Mr Knight and asked if he could seehim. In a brief conversation and was told that he no longerhad a position. The Applicant says he was shocked to betold this.

15 Thereafter he filed the Application and on 11th Januaryhe received a letter from Ms Pfitzner making demandsfor payment of money.

16 The Applicant says that since his dismissal he had activelysought employment, made numerous applications, had anumber of interviews and eventually obtained a job inthe first week of June 2001.

17 The Commission heard evidence on behalf of theRespondent from Mr Paul John Knight who is the BranchManager of Direct Alarm Supplies which is a division ofthe Respondent. Mr Knight has been the Branch Managerfor nine years having started the branch on transfer fromSouth Australia. He told the Commission that he knew ofthe Applicant through the industry and invited him tohave an interview, Mr Knight says that at the point ofinterview the Applicant had told him that he would liketwo weeks leave in September, to which he agreed.

18 The Applicant commenced on duty on 3rd July 2000 andin September the Applicant had told him that his fatherwas not well. It was at that time that Mr Knight askedhim to rethink his holiday plans to accommodate thepossibility of him having to go back to England. Theresponse of the Applicant had been aggressive, he saidthat his holidays were booked and he was going to takethem. This surprised Mr Knight, it seemed to him thatthe Applicant thought the holiday was more importantthan his father’s health.

19 In November the Applicant duly left on his holidays andto the knowledge of Mr Knight attended the MelbourneCup. According to Mr Knight he received reports fromMelbourne of comments attributed to the Applicant thatsome of the work allocated to him on the trade counterwas demeaning. The Applicant had not raised any suchissues with Mr Knight.

20 Mr Knight denied that the Applicant telephoned him on15th November 2000, he was in the office on that day,but not on 16th when he was ill. He was told by his wifeCherri that the Applicant had returned his companyaccoutrements. When Mr Knight looked at the Applicant’soffice he thought that it had been cleaned out as if theoccupant had gone for good. This was because not onlyhad all company property had been returned including acredit card, phone but personal items had been taken aswell. He knew nothing of the Applicant’s intentions, allhe knew was that his father was ill in England.

21 Mr Knight says that he contacted the Respondent’s HumanResource Department to let them know of the absence,they then took over the preparation of correspondence. Itwas a busy time for the Respondent and Mr Knight waspre-occupied with dealing with business matters.

22 On 25th November 2000 Mr Knight received an emailfrom Mr Todd which told him of a telephone conversationMr Todd had had with the Applicant (Exhibit R2). Theemail is as follows—

“Paul I spoke to Mike yesterday, nothing much tosay, he still doe’s (sic) not know when he is coming

back anyway can you give him a call his UK numberis 00 11 44 1243 379674 See you on Thursday”.

23 Mr Knight gave evidence that Christmas was a busy time,there was a rush and he did not have time to deal with theissue for a couple of weeks. He described himself as being“out of the loop” and “very busy” he says that the emailfrom Mr Todd sat in his in tray for that period.

24 It was not until 4th December 2000 Mr Knight rang theApplicant at his mother’s home in England, but wasunable to make contact with him He rang again on 5th

having discovered that there had been a call by theApplicant to Pacific Communications in Melbourne inthe meantime. Mr Knight’s evidence of the response fromthe Applicant was that he said “you are telling peoplethat I don’t have a job” to which he had responded“basically you have abandoned it …you left us with noauthorisation” he then told the Applicant to direct anycorrespondence to the Human Resource Department. MrKnight thought the Applicant’s attitude was aggressiveand he found it personally threatening. Mr Knight claimedit was well known that the emergency call number forthe company was his mobile and he could have been calledat any time by the Applicant.

25 Mr Knight says that after 5th December 2000 he startednegotiations with Mr Todd to take over the Applicant’swork. He made Mr Todd an offer on 17th December 2000which he accepted on 22nd December 2000.

26 His next meeting with the Applicant in person was on11th January 2001 when he came in to the office. He saidthe Applicant asked if his job was open, Mr Knight’sresponse was ‘no’ as had been explained to him while hewas in England. The Applicant then went to his officeand picked up some personal effects and left.

27 According to Mr Knight the Respondent has a policy(Exhibit R4) which deals with abandonment ofemployment, this policy should have been known to theApplicant who would have known that under itabandonment of employment constitutes grounds fordismissal.

28 Mrs Cherri Anne Knight gave evidence on behalf of theRespondent. Mrs Knight is married to Mr Paul Knightand had worked in the business since 1991. She recalledthat the Applicant came into the office on or about 17th

November 2000, informed her that he was flying toEngland and left keys and his mobile telephone. Theyhad a conversation about his holiday. She knew he wasflying out to England to see his father, who thoughprevious conversations she knew was very ill. TheApplicant gave her no indication at all about how longhe might be away. He declined an offer Mrs Knight madefor a cab or a lift to the airport. The Applicant asked herto let Mr Knight know what had happened.

29 Evidence was also taken from Mr John Todd; Mr Todd isa sales representative who now occupies the positionpreviously filled by the Applicant.

30 Mr Todd says on 24th November 2000 he received atelephone call from the Applicant who wanted to speakwith Mr Knight, however he was off sick. Mr Toddenquired about the condition of the Applicant’s father, hewas told that it was fluctuating and the Applicant did notknow how long he would be away. Mr Todd passed onthe Applicant’s telephone number to Mr Knight by email.

31 Mr Todd gave evidence that some time in December 2000he was offered the position previously occupied by theApplicant. In cross examination he said there were nonegotiations at the time he was offered the job, they cameafter he decided to accept it.

32 Evidence was also taken from Mr Darren Lee Thomas, acustomer of the Respondent, who had seen the Applicanton a flight to Singapore, on or around 17th November2000. He said he had a general conversation with theApplicant who had told him that his father was ill and hehad to leave the country to go to his side. He said that itwas hard to remember exactly what the Applicant saidbut it was words to the effect that he could be away for aweek or two weeks or maybe a month, depending uponhis father’s condition.


33 The preceding is sufficient summary of the evidence inthis matter for the purposes of these Reasons for Decision.

34 The Commission is required to make findings upon thecredibility of witnesses. I have had the opportunity ofobserving the Applicant during his Evidence in Chief andduring an extended and vigorous cross examination byMr Robertson, who appeared for the Respondent. Nothingin either phase of his evidence gives rise to any doubtsabout the truthfulness of his story. There is no ground onwhich I could reach a conclusion that his version of eventsshould not be accepted.

35 I have not the same comfort with the evidence of the mainwitness on behalf of the Respondent, Mr Knight. Thereare direct contradictions between his evidence and theevidence of the Applicant. Mr Knight was equivocal undercross examination by Mr Schapper (of Counsel) whoappeared for the Applicant. The equivocation damagedthe quality of the evidence of Mr Knight, some of hisresponses are indicative of what can be described as apetty approach to some of the events. Under crossexamination he modified some statements made inevidence in chief, for instance whether and to what extentthe Applicant had cleaned out his office.

36 As I have mentioned there has been a direct conflictbetween the evidence given by the Applicant and MrKnight. None of the evidence that was called to supportthat of Mr Knight remedied that problem for him. Forinstance Mrs Knight gave her evidence clearly about whatconversation passed between her and the Applicant, herevidence was not at odds with his evidence. But theevidence of Mr Todd, called in support of the Respondentdirectly disputed the clear evidence of Mr Knight that hehad been negotiating with Mr Todd over a period of weekswhen they were discussing Mr Todd taking over theApplicant’s position. Mr Todd said that there were nosuch negotiations and I believe what he said. This makesit all the more difficult to accept Mr Knight’s version ofevents as being correct. I conclude that where the storiesof the Applicant and the Respondent particularly theevidence given by Mr Knight differ, I prefer the versionoffered by the Applicant.

37 In examining the issues raised by this application itappears the Respondent has proceeded with the dismissalupon the presumption that there has been a repudiationby the Applicant of his contract of employment byabandonment.

38 The Texts indicate that although repudiation may have avariety of meanings it is accepted that a repudiation willexist either when there is a breach of a condition going tothe essence of the contract or when one of the parties tothe contract has evinced an intention through conducteither expressly or by implication no longer to be boundby it.

39 Whether there has been a repudiation of the contract inan individual case is not a question law but a question offact (see discussion on the concept in The Law ofEmployment Macken, O’Grady and Sappidean, FourthEdition, LBC Information Service 1997). The concept ofabandonment, upon which the action of the Respondentin this case seems to be premised, involves a unilateralact by an employee which ends the relationship. Forabandonment to be established it must be shown that therewas clear intention to do so, that intention may be evincedwhen the employee’s absence is against the expressinstructions of the employer, and there is a substantialabsence or where the employee has acted in a mannerinconsistent with an award definition of the abandonmentof employment. In Unfair Dismissal in New South Walesby Mark Baragwanath, LBC Information Services 1999,the learned author observes “…a clear indication thatthe employee is treating his/her employment contract ascontinuing, despite an absence, may have the effect ofrendering the abandonment of employment a mereunauthorised absence”.

40 I need to examine the facts in the matter against the lawto be applied.

41 Previously I have made findings on witness credibility,applying those I find that the Applicant was employed

by the Respondent on or about 1st July 2000 in a salesposition. His evidence, which I accept, is that during hisinterview with Mr Knight he requested, and it was agreed,that he could take leave in the following November. Ireject the contention of Mr Knight that the request forleave was made in September. I find that it was well knownamongst the Respondent’s employees, including MrKnight, that the Applicant’s father was ill and that therewere in fact discussions about that between the Applicantand Mr Knight in September 2000. I accept theApplicant’s version of those discussions that his fatherwas ill with a terminal illness but his prognosis wasunknown at that time, that his father’s conditiondeteriorated in November, that the Applicant was advisedduring the time he was on holidays of that situation andthat the deterioration of his father’s condition was so badthat he decided, after discussing the matter with hismother, that it was essential that he returned to Englandto see his father before he died.

42 I accept the Applicant’s assertion that on 15th November2000 he rang the office of the Respondent in Perth at4:24pm and that more likely than not he had a discussionwith Mr Knight during which he advised Mr Knight ofthe situation and of his intentions. Even if there is anydoubt about the knowledge held by Mr Knight about theApplicant’s intentions that doubt would have beenremoved on the following day when the Applicantattended the office in Perth to hand in his companyaccoutrements during which time he had a discussion withCherrie Knight, Mr Knight’s wife. I accept the submissionof Mr Schapper that if “she knew, he knew”. I cannotbelieve that Mrs Knight did not tell her husband aboutthe Applicant’s intentions, or that his father was thengravely ill.

43 It is open to find and I do that about the time the Applicantleft Australia to fly to England to see his father that theRespondent’s officers knew of his intentions. They alsoknew that he was unaware of how long he would need todeal with the urgent family situation that confronted him.His lack of knowledge in this respect is clear from thecomments he made to Mr Thomas at the Singapore Airportand later to Mr Todd.

44 Having found that officers of the company were inposition of the knowledge of the Applicant’s intentionsto go England it is passing strange that on 24th November2000 when Mr Knight advised the company’s HumanResources Department the Applicant had departed thathe did not give this information to them. The letters thathave been produced earlier in these Reasons show no signthat the writer, Ms Pfitzner, knew of the Applicant’ssituation. It is inconceivable that a professional humanresources officer would write such a letter if she were inpossession of such information. It is open to concludetherefore that Mr Knight did not tell her.

45 I accept the Applicant’s evidence that on 24th November2000 he rang and tried to make contact with Mr Knight.The evidence in Exhibit R2, which is an email that MrTodd sent to Mr Knight to tell him of the phone call,supports such a finding. That email clearly gives thecontact number for the Applicant, therefore hiswhereabouts and contact details were known to theRespondent as early as five days after he left Australia.On any reasonable examination of the passage of timethis was the first opportunity which presented itself forthe Applicant to advise the Respondent where he couldbe contacted. The evidence of Mr Knight is that he didnot look at that email until the 4th December 2000 heexplained the delay by saying it was in his in tray but hewas busy. The conclusion that is open to be drawn is thathe did not give the matter priority because he knew wherethe Applicant was and he knew what was happening. Thealternate view is that if he did not know he was at thevery least tardy in dealing with the issue.

46 By this time the Applicant knew through contact withthe Respondent’s Melbourne office and through advicereceived from the person accepting his redirected mailthat there was a view that he had abandoned his contractof employment. Mr Knight eventually got around to


ringing the Applicant on 4th December 2000, he was notavailable and on 5th December Mr Knight rang again andspoke to the Applicant. It is not at all surprising that ifthe Applicant was aggressive at the time it was because,notwithstanding his efforts to advise the Respondent ofhis intentions and whereabouts, it appeared that his jobwas in jeopardy. I accept that Mr Knight said words tothe effect to the Applicant that “… basically, Mark, you’veabandoned your job….’.

47 These dates are crucial in the disposition of this matter, itis a matter of fact and not law whether there has beenrepudiation, and it is a matter of fact whether there hasbeen abandonment. At the time Mr Knight spoke to theApplicant on 5th December 2000 as a matter of fact hehad not abandoned his contract and had taken everyreasonable action he should have to tell the Respondentas much as he could about his intentions. I therefore findthat if it was suggested that he was dismissed on that dayor knew of his dismissal on that day as a matter of factand law that was wrong.

48 Concerning the matters after 5th December 2000 I acceptthe evidence of Mr Todd in preference to the evidence ofMr Knight that there were no negotiations between themconcerning the details of the employment arrangementsbetween the Respondent and Mr Todd as they would applyto the position previously occupied by the Applicant. MrTodd’s evidence is that he simply was offered the job andtook it, there were no negotiations. He considered theoffer and a week later he told Mr Knight that he wouldtake the job, they then discussed terms and conditions.Mr Knight tried to give the impression that there was aseries of negotiations between him and Mr Todd. I rejectthose contentions as being fictional. What they show aspart of a continuum is that Mr Knight did not attend tomatters arising from the Applicant’s absence with anyalacrity at all. He excuses himself by saying it was a busytime of the year, however he then relies on his own lackof attention to dealing with the matter as grounds toterminate the Applicant in that it extended the period ofabsence without contact from the Applicant, at least inMr Knight’s contention.

49 The Applicant’s father died on the 9th December 2000 itis reasonable to accept that the Applicant had family andother obligations from that time and up till Christmas. Itis quite understandable that he stayed with his motherduring that period and it is not unreasonable that he didnot return to Australia until the 10th January 2001. It isopen to find that when he did return he made his presenceknown as soon as practicable and attended theRespondent’s office where he was told by Mr Knight thathis job was gone and his services had been terminated.

50 On the basis of the above findings of fact I need to dealwith the issues raised by the Respondent concerning thedate of filing of the Application. On the basis of thefindings I conclude that the Applicant was dismissed onor about 10th January 2001. He had no knowledge thatthe Respondent had appointed Mr Todd to replace himand had done so early in December 2000. It could befound that the appointment of Mr Todd by the Respondentat that time when the contract of employment with theApplicant was extant constituted a repudiation of thecontract by the Respondent. However the Applicant wasin no position to either accept or reject the repudiationbecause he did not know about it directly until January2001. Be that as it may it is clear that the contract betweenthe Applicant and the Respondent was not available tohim from the date that Mr Todd was formally appointedand if I am wrong about 10th January 2001, as the datewhen the Applicant was dismissed, he may well have beendismissed when Mr Todd was appointed.

51 I find the Application was filed in time and is notdismissible on that ground.

52 The determination of matters such as this depends onwhether there has been a fair go all round [FMWY vUndercliffe Nursing Home (1985) 65 WAIG 305] .Theevents have to be considered from both points of view, itis understandable that an employer faces a dilemma whenin a team of three or four, one member is absent, butagainst that must be weighed that the Respondent clearly

knew that the Applicant’s father had been suffering aterminal illness. Similar matters have been before tribunalspreviously and in E.B. Skamantzaris v AutotechInternational Pty Ltd (Print M8491) about similarcircumstances Commissioner Merriman made thefollowing comment “it is inconceivable that when aperson is faced with a situation of the impending deathof their partner that an employer would seek to sack anemployee in such circumstances”. Those are commentsapposite here. The Applicant knew of his father’s illness,he had not hidden it from his employer; he may have hada disagreement with Mr Knight in September aboutwhether he ought to go and see his father that time. Thatwas a decision for him, he was in a much better positionthan Mr Knight to know his father’s prognosis. TheApplicant knew in November that his father was ill buthis condition deteriorated rapidly and on the 14th

November 2000 the Applicant was told by his motherthat the situation was grave and that he should come tohis father’s side. It is perfectly understandable that he didso.

53 The Applicant did not leave the country without talkingto his employer, he did all of the things that he shouldhave done, that is he let the Respondent know. It is aperverse view of his conduct that he returned his companyequipment because he was clearing out his office. Thatcontention by Mr Knight is unsustainable. There was noexpress instruction from the Respondent not to go. TheRespondent went about dealing with the issue in whatmust be categorised as a strange way. It did not attemptto contact the Applicant with any sort of haste even thoughhe gave them his contact number as soon as practicable.It sent mail to him at an address that it knew would notreach him. As I understand the law an employer isobligated to do far more than this Respondent did toascertain whether an employee intends to continue withtheir contract of employment. It is inconceivable that aprofessional human resource officer with knowledge ofthe Applicant’s situation would have written the letterthat Ms Pfitzner wrote if they were in possession of theinformation that I find Mr Knight was. In short there wasno unilateral act by the Applicant to end the relationship,there was no clear intention to abandon and the absencewas not contrary to any express instruction of theemployer. Clearly there has not been a fair go all roundin this matter and the Applicant has been unfairlydismissed. The Commission finds accordingly.

54 There has been a considerable time passed since theApplicant’s dismissal and clearly the remedy ofreinstatement is unavailing and I so find. I need now toconsider the question of compensation. The rules to beapplied have been subject to a number of Decisions inthis Commission, Boganovich v Bayside WesternAustralia (1999) 79 WAIG 8 describes these. I accept thatin applying those rules the Applicant has to demonstratethat he sought to mitigate his loss, I accept his evidencethat he did not work until June 2001 and that he pursuedemployment opportunities as best he could. The evidenceis that he accepted money from Centrelink in the sum ofapproximately $3,500.00 and he now has other work at$12,000.00 a year less salary than he had before. He lostsalary at the rate of $4,000 per month between Januaryand May 2001 plus $500.00 in June which constitutespart of his loss. There is ongoing loss which could bequalifiable at $12,000 per year and it is reasonable toallow two years loss at that rate. In addition theCommission is to assess injury caused to the Applicant.In the circumstances here the conduct of the Respondentcould not have done anything other than to contribute tothe grief and upset the Applicant was suffering at the timethrough the loss of his father and in the circumstances itis reasonable that a sum of $5,000.00 be awarded. Thesums that I have identified as being lost total more thanthe equivalent of six months remuneration. By s.23A theCommission any award of compensation is capped a sixmonths, the parties agree that the sum of $24,084.70constitutes six months remuneration for the calculationof compensation. I accept that that is the correct figureand compensation in that amount will be ordered.


55 Orders that the Applicant was unfairly dismissed, thatreinstatement is unavailing and that he be paidcompensation in the sum of $24,084.70 will issue.


INDUSTRIAL RELATIONS COMMISSION.PARTIES MARK WISEMAN, APPLICANT

v.HILLS INDUSTRIES LIMITED,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED WEDNESDAY, 22 AUGUST 2001FILE NO APPLICATION 65 OF 2001CITATION NO. 2001 WAIRC 03590____________________________________________________________________________

Result Unfairly Dismissed that reinstatement isunavailing and that he be paidcompensation in the sum of $24,084.70

____________________________________________________________________________

Order.HAVING heard Mr D. Schapper (of Counsel) on behalf of theApplicant and Mr P. Robertson on behalf of the Respondent,the Commission pursuant to the powers conferred on it underthe Industrial Relations Act, 1979, hereby declares andorders—

1. THAT the Applicant was unfairly dismissed and re-instatement is unavailing.

2. THAT the Respondent pay to the Applicant com-pensation in the sum of $24,084.70.



INDUSTRIAL RELATIONS COMMISSION.PARTIES PETER HENRY WOODS, APPLICANT

v.EAST KIMBERLEY ABORIGINALMEDICAL SERVICE, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED TUESDAY, 28 AUGUST 2001FILE NO APPLICATION 1290 OF 2000CITATION NO. 2001 WAIRC 03739_______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr P H WoodsRespondent Mr P Robertson as agent_______________________________________________________________________________

Reasons for Decision. (Given extemporaneously and subsequently edited by the

Commissioner)1 This is an application pursuant to section 29(1)(b)(i) of

the Industrial Relations Act, 1979 (the Act) filed in theCommission on 18 August 2000. The applicant, Mr PeterHenry Woods alleges that he was constructively dismissedfrom his position as a Health worker with the respondent,East Kimberley Aboriginal Medical Service.

2 The matter came on for conferences on 21 November2000, 2 February 2001 and 4 April 2001, at the conclusionof which the matter remained unresolved and was referredfor hearing and determination. The applicant did notattend in person at the first two conferences; hisrepresentatives attended. The applicant was requested bythe Commission to lodge the particulars of his claim whichwere forwarded to the Commission by a letter of 16 March2001.

3 The facts of this matter involve a request by Mr Woods tohis employer on 19 July 2000 for 20 weeks leave withoutpay to do a feasibility report on a men’s refuge/safehousein Kununurra. Mr Woods would seem to have had hisheart set on developing the project. His request wasrejected by the respondent, on that day, on the basis thathis work for the respondent should take precedence overother outside interests. It is not in contention that MrWoods, subsequent to the refusal of leave without pay,indicated that he would resign. Mr Woods was sent a letteron 28 July 2000, from Ms Gill Lefmann, the actingAdministrator for the respondent, formally accepting MrWoods’ resignation. From Mr Woods’ letter of 16 March2001 and Ms Leffmann’s letter of 2 August 2000 it isclear that Mr Woods spoke to her about withdrawing hisresignation. This was also rejected. The applicant in hisletter of 16 March 2001 also complained of “humiliationand degrading acts” suffered during the course of hisemployment. Mr Woods’ employment was to finish on30 August 2000. He was paid the remainder of the noticeperiod on 11 August 2000 and finished on that day.

4 The Commission wrote to the parties on 18 April 2001advising them that the matter would be heard inKununurra, by way of oral evidence, on 28 and 29 June2001. The Commission sought the views of the partieson this approach. The respondent concurred and theCommission did not receive any submissions or requestson behalf of the applicant. The Commission heard openingsubmissions from the parties in Perth on 28 June 2001,to ascertain the cases to be put, at which time Mr Woodsexpressed some financial difficulty with attending forhearing in Kununurra. Mr Woods then confirmed for theCommission that he would attend for hearing inKununurra. The Commission advised the parties that oncethe matter was listed, if an adjournment was sought, therewould need to be strong arguments for the adjournmentto be granted. The applicant advised that he soughtreinstatement. The parties were to exchange documentsand lists of witnesses one week prior to hearing. Thematter was listed for hearing on 4-6 September 2001 inKununurra.

5 Prior to the hearing date the respondent complained thathe had not heard from the applicant concerning documentsand witnesses. My associate contacted the applicant andhe advised that he could not attend the hearing inKununurra, and wanted a postponement for 6 months toget some money together. The application foradjournment was heard on 28 August 2001. The applicantsought an adjournment due to financial difficulties andas he had apparently gained some temporary employment.The respondent objected to an adjournment based on thelength of time it had taken this matter to come on forhearing and the potential absence of witnesses shouldthe matter be delayed further. As the matter had sufferedconsiderable delay to that time, the applicant hadpreviously assured the Commission that he would bepursuing his application and the difficulties faced by therespondent due to their witness availability, the applicant’srequest for an adjournment was denied. The applicantthen advised the Commission that he would not beattending the hearing when it convened in Kununurra.

6 The Commission advised the parties that given thesecircumstances he would refrain from further hearing theapplication in the public interest and the dates for hearingthe claim would be vacated. I think it would beunreasonable in the circumstances to make the employerawait an indefinite time for the matter to be determinedwith the prospect live at all times that the applicant mightachieve reinstatement as claimed. I say this also with amind to the facts which I have recited, and which are not


in contention, based on the documentation of both parties.Mr Woods resigned initially, this was accepted and thenhe complained that he should have been allowed towithdraw the resignation.

7 For the above reasons the application is dismissed.


INDUSTRIAL RELATIONS COMMISSION.PARTIES PETER HENRY WOODS, APPLICANT

v.EAST KIMBERLEY ABORIGINALMEDICAL SERVICE, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED TUESDAY, 11 SEPTEMBER 2001FILE NO APPLICATION 1290 OF 2000CITATION NO. 2001 WAIRC 03738

_______________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr P H Woods on his own behalfRespondent Mr P Robertson as agent_______________________________________________________________________________

Order.HAVING heard Mr P H Woods on his own behalf and Mr PRobertson on behalf of the respondent, the Commission, pur-suant to Section 27(1)(a) of the Industrial Relations Act, 1979,hereby—

(1) DECLARES that further proceedings are not neces-sary or desirable in the public interest.

(2) ORDERS that the matter be and is hereby dismissed.(Sgd.) S. WOOD,


SECTION 29 (1)(b)—Notation of—Applicant Respondent Number Commissioner Result

Anderson MA Foodland Associated Limited 1103/2001 SCOTT C. DiscontinuedAngel SK Caltex Naval Base 1123/2001 GREGOR C DiscontinuedAtter G Otis Building Technologies Pty 2007/2000 GREGOR C DiscontinuedAzcue A K. Care 1172/2001 KENNER C DiscontinuedBaldwin T City of Cockburn 594/2001 SMITH, C DiscontinuedBalfe AK Byford Health Care 738/2001 GREGOR C DiscontinuedBanks SB MW & CA Bennett T/A Narrogin Boning 475/2001 GREGOR C DiscontinuedBeatty LJ John R. Spencer of Super Bowl Pty 1385/2001 WOOD,C DiscontinuedBell JD Adlam Enterprises P/L 196/2001 BEECH C DiscontinuedBennett MA Country Linemarking P/L 1279/2000 KENNER C DiscontinuedBlacklock AM Intercorp Services Pty Ltd trading as Westvision 811/2000 SMITH, C Discontinued

Painting CompanyBorg AS Warren Mead-Flanders Investments Pty Ltd 275/2001 KENNER C Discontinued

T/a Meads Mosman BayBuckland SJ Sindiswa Pty Ltd 653/2001 GREGOR C DismissedCain DJ Craft Decor Pty LDD 1965/2000 SCOTT C. DiscontinuedCalderbank SD Bridges Pty Ltd T/a The Bridges Family Restaurant 1973/2000 SCOTT C. DiscontinuedCallander WJ Tim J Sampson (Albany Grain Drying) 1748/2000 KENNER C DiscontinuedCampbell DP Greg Kirk—Planfarm Pty Ltd 721/2001 SCOTT C. DiscontinuedCarter T Zepel Fabrics 1237/2001 BEECH C DiscontinuedCavan G JSE Group—Electrical—Tom Price Branch 779/2000 SMITH, C DiscontinuedChanning SG Pure and Healthy 1179/2001 GREGOR C DiscontinuedChew B Travelshop 730/2001 KENNER C DiscontinuedChew CYH Richard Tay Acacia Hotel Northbridge 306/2001 GREGOR C DismissedCoumbe BG Bignona Pty Ltd ACN 010 443 544 & Kemprust Pty Ltd 1101/2001 SCOTT C. Discontinued

ACN 069 513891 both t/as “Bonnie Rock Transport”Coutts DL Dewsons Donnybrook 543/2001 GREGOR C DiscontinuedCox B Webb & Brown-Neaves Pty Ltd 1205/2001 GREGOR C DiscontinuedCroom GR Centurion Transport Co Pty Ltd 361/2001 SMITH, C DiscontinuedCross EF Wirrimanu Aboriginal Corporation 544/2001 GREGOR C DiscontinuedCroucher SK Bell-A-Bike Rottnest Pty Ltd 55/2001 GREGOR C DiscontinuedDavies EJ Amici’s Pasta Bar & Health Grill 21/2001 SMITH, C DismissedDel Borrello MR T.V.T. Engineers (Webb Construction) 1246/2001 BEECH C DiscontinuedDennis PM Hosch International Pty Ltd 514/2001 GREGOR C DiscontinuedDouglas MJ Steve Zelinski—Raunchy Promotions 1068/2001 GREGOR C DiscontinuedDowney AK Sandringham Hotel 1153/2001 BEECH C DiscontinuedEdwards KJ The Circuit Cabaret & Function Centre 358/2001 WOOD,C DismissedEldrid PL Oakforest Nominees Pty Ltd Dawson Family Trust 2035/2000 KENNER C Discontinued

T/a Fremantle Yamaha


Applicant Respondent Number Commissioner Result

Errington MD Iannopollo Investments Pty Ltd as Trustee for the 916/2001 GREGOR C Order IssuedIannopollo Trust t/a Stirling Furniture

Espin RA Kewdale Hotel 1073/2001 SCOTT C. DismissedEyers SJ Silviculture Ltd 291/2001 SMITH, C DiscontinuedEyers SJ Silviculture Management Pty Ltd 290/2001 SMITH, C DiscontinuedFahy LK Western Property Consultants Pty Ltd 831/2000 SCOTT C. DiscontinuedFitzharris P Hamersley Iron Pty Ltd 661/2001 KENNER C DismissedFlockton S Brett Martin Plastics Pty Ltd 740/2001 SCOTT C. DiscontinuedFurlong KC Char International Pty Ltd (ACN 060 649 505) 918/2001 KENNER C DiscontinuedFurtado SA First Church of Christ Scientist 1125/2001 SCOTT C. DiscontinuedFurtado SA First Church of Christ Scientist 770/2001 SCOTT C. DiscontinuedGale SA Action Supermarkets (Foodland Associated Litd) 1274/2001 KENNER C DiscontinuedGalipo E Director General, Education Department Of WA 715/2001 KENNER C DiscontinuedGates S Association of Independent Schools of 808/2000 KENNER C Discontinued

Western Australia, UnionGilbert BC Weslite Pty Ltd (CAN 050 738 228) 2126/2000 SMITH, C Discontinued

t/a Cambridge Private HospitalGilson SA Louies Security World 634/2001 BEECH C DiscontinuedGraham AJ Charter Mercantile (WA) Pty Ltd 1311/2001 BEECH C Discontinued

t/a Charter Mercantile AgencyGrewar MW Jenzia Pty Ltd 927/2001 SCOTT C. DiscontinuedGriffiths AM Harmony Forrost Villas Pty Ltd 334/2001 SMITH, C DismissedGwynne RB Aussie Air Australia Pty Ltd 1777/2000 GREGOR C DiscontinuedHancock NG Pendrey Agencies 1115/2001 KENNER C Order IssuedHarbron GT Kenwick Sportsclub Inc. 728/2001 GREGOR C DiscontinuedHarding SJ Michael John Penn & Tammy June Penn t/a Auto Repaint 888/2001 KENNER C DiscontinuedHassett MG Chicken Treat 1271/2001 KENNER C DiscontinuedHawkes M Rockbreaking Solutions 186/2001 SMITH, C DiscontinuedHawkings JR Monadelphous Engineering Associates Pty Ltd 335/2001 KENNER C DiscontinuedHeath SF Cecil E Mayo Pty Ltd 1163/2001 KENNER C DiscontinuedHeenan MJ Terri Hankinson as Pip’s Cafe 1208/2001 KENNER C DiscontinuedHills RA BCE Surveying Pty Ltd 1087/2001 KENNER C Order IssuedHoare S Womens Legal Services Incorporated (WA) 1216/2000 KENNER C DiscontinuedHoughton-Smith C Orbit Health & Fitness Solutions 885/2001 BEECH C DiscontinuedHowe R Intercorp Services Pty Ltd trading as 810/2000 SMITH, C Discontinued

Westvision Painting CompanyHuggins AK Edith Cowan University 708/2001 SCOTT C. DiscontinuedHughes DF Fibre Concrete Pty Ltd 1089/2001 GREGOR C DiscontinuedHutchinson P Canley Vale Pty Ltd T/as Bill Lee Automotives 359/2001 BEECH C Order IssuedInwood RW Tiles and Tubs Design Studio 1067/2001 GREGOR C DiscontinuedJames SA Chevor Pty Ltd Trading As Sunnyvale Plants 240/2001 GREGOR C DiscontinuedJefferies LD Crystal Swan 620/2001 WOOD,C DismissedJennings SJ Live Clothing Pty Ltd 723/2001 SCOTT C. DiscontinuedJohnson IJ Toffs of Dalkeith 283/2001 GREGOR C DismissedJohnstone PA BSD Consultants Pty Ltd 588/2001 BEECH C DiscontinuedJones D Rise Investments / BP Peppermint Grove 1109/2001 BEECH C DiscontinuedJuratovac N Smith’s Snackfood Company Ltd 748/2001 GREGOR C DiscontinuedKeilar B Livestock Shipping Services 1240/2001 GREGOR C DiscontinuedKenney CM Lesmurdie Sand-Soils 513/2001 BEECH C DiscontinuedKiely KS Toplodge Investments Pty Ltd 1189/2001 BEECH C DiscontinuedKotsoglo MP Dale Alcock Homes Pty Ltd 1955/2000 SMITH, C Order

(Arbitration)Lawson P Versatile Home Improvements 864/2001 WOOD,C Order` (Knightlife Investments Pty Ltd) (Arbitration)Losik TJ Willetton Sports Club (Inc) 1126/2001 WOOD,C DismissedLyons R C.O.C. Pty Ltd Trading as Cool or Cosy, 1882/2000 SCOTT C. Discontinued

ACN 058817771 ABN 46058817771Marshall PA Catco Supply and Services Pty Ltd & Others 1998/2000 BEECH C DiscontinuedMarshall RB Van’s Sidewalk Cafe & Deli—Regents—View Pty Ltd 935/2001 KENNER C DiscontinuedMcCallum IR Iluka Resources Limited 565/2001 BEECH C DiscontinuedMcEvoy JR Lamb Print Pty ltd 1055/2001 KENNER C DiscontinuedMcKenzie T Fitzroy River Lodge Pty Ltd 1272/2001 BEECH C DiscontinuedMijatovic T Peter Terrence Hare and Evelyn Lilly Tuba 1659/2000 SMITH, C Discontinued

t/as E&S Legal Group


Applicant Respondent Number Commissioner Result

Mischefski DE WA Fork Truck Distributors Pty Ltd 1118/2001 GREGOR C Order IssuedMoelands F Otis Building Technologies Pty 2006/2000 GREGOR C DiscontinuedMonteleone D Indiran Rajadurai and Associates as Administrator for 827/2001 GREGOR C Dismissed

Rimmer Pty Ltd t/a Swan Valley Cheese CoMonteleone G Indiran Rajadurai and Associates as Administrator for 828/2001 GREGOR C Dismissed

Rimmer Pty Ltd t/a Swan Valley Cheese CoMoon CB Western Portables Pty Ltd 370/2001 SMITH, C DiscontinuedMortimer AJ Seagate Structural Engineering Pty Ltd 276/2001 SMITH, C DiscontinuedNankiville SR Safeman Aust (WA) Pty Ltd 1402/2001 KENNER C DiscontinuedNguyen LTM Hanson Publishing Pty Ltd trading as Jam Graphic Design 210/2001 BEECH C DiscontinuedNicol GA Jensen Jarrah Pty Ltd 911/2001 KENNER C DiscontinuedNiendieker D Crestwell Pty Ltd T/A Canning Vale Coaters 797/2001 SMITH, C DiscontinuedO’Connor K Harnischfeger of Australia Pty Ltd 1658/2000 SMITH, C DiscontinuedO’Connor S Welded Mesh 1322/2001 KENNER C DiscontinuedOlsen SA Eyre Travelstops Pty Ltd ACN 009 464 153 735/2001 WOOD,C Dismissed

BP Norseman TravelstopPajic KL Morley-Windmill Sportclub Inc 823/2001 KENNER C DiscontinuedPassmore J TYCO Australia Pty Ltd t/as Wormald 1858/2000 GREGOR C DiscontinuedPedler DT JGF Accounting & Financial Services 1147/2001 KENNER C DiscontinuedPetrie TD Liquorland Australia Pty Ltd 682/2001 BEECH C DiscontinuedPhilpot MA Coli Timber Products Pty Ltd 1247/2001 SCOTT C. DiscontinuedPurnell DC Cascades Tavern 22/2001 GREGOR C DiscontinuedQuartermaine MM Anson Management Services Pty Ltd 1155/2000 COLEMAN CC Order

(Arbitration)Rammelt MP Beissbarth(Australia)Pty Ltd ACN 007 366 618 1093/2000 SMITH, C DiscontinuedRandall ML Mandurah Hardware 1264/2001 KENNER C DiscontinuedRickersey JG Meadowbrooke Industries t/a Meadowbrooke farm & 1196/2001 KENNER C Order Issued

Pig and Plough RestaurantRipamonti MP Westaff 367/2001 SMITH, C DiscontinuedSadlier DJ Bristile Ltd trading as Metro Brick, Bristile Clay Tiles 825/2001 KENNER C Discontinued

& Temple FreightsSampson GR Albany Interiors Carpet Hotline 223/2001 BEECH C DiscontinuedSeager S Falcon Protective Services Pty Ltd ACN 089 919 068 1837/2000 SMITH, C DiscontinuedSeeley AJS Academy W.A Pty Ltd (70 084 108 412) 1121/2001 BEECH C DiscontinuedShaw SH Allison & Stephan Brown, Cornwell Hotel 852/2001 KENNER C DiscontinuedSimpson SA Premium Security Services 122/2001 GREGOR C DiscontinuedSivyer HJ Aussie School Photos Pty Ltd 172/2001 SCOTT C. DiscontinuedSkelton LM Bed, Bath N. Table Pty Ltd 585/2001 KENNER C DiscontinuedSmith DG Gascoigne Furniture ACN 008 924 329 1084/2001 SCOTT C. DiscontinuedSmith KW W.A. Truck & Machinery Repairs Pty Ltd 843/2001 GREGOR C DiscontinuedSmith YD Silver Chain 476/2001 KENNER C DiscontinuedStone H Howard Porter Pty Ltd 1233/2001 SCOTT C. DiscontinuedStradwick KL Volona Nominees Pty Ltd 669/2001 KENNER C Discontinued

t/a Pricewave Family HairdressingSuckling NS Adam Hunter 713/2001 SCOTT C. DiscontinuedTelford A Noskab Pty Ltd (CAN 087 281 169) 2031/2000 SCOTT C. DiscontinuedTrenka SM Barminco Pty Ltd 624/2001 KENNER C DiscontinuedTune J Springer Foods 879/2001 KENNER C DiscontinuedWallis K Parkfeeds (WA) Pty Ltd 1889/2000 SMITH, C DiscontinuedWard A Anthony John Keenan 587/2001 GREGOR C Discontinued

t/a Bodysculpt Personal Training StudioWaters CM Tang Holdings Pty Ltd ACN 009 017 789 619/2000 SCOTT C. DiscontinuedWeatherhead SL McNeil’s Dental Care (Warkara Billa) 1192/2001 GREGOR C Discontinued

Dr Geoffrey S McNeil (Dental Surgeon)Webster SC Uquon Pty Ltd T/A Laurie Kelly Real Estate 2025/2000 KENNER C DiscontinuedWhiteside D Westaff (Australia) Pty Ltd 1306/2001 KENNER C DiscontinuedWilliams B Vox Retail Group Limited 378/2001 GREGOR C DiscontinuedWindle MJ Galaday Pty Ltd trading as Beldon Tavern 829/2001 KENNER C DiscontinuedWong L Stamfords 754/2001 GREGOR C DiscontinuedZhuang MB Advantage Air Pty Ltd 1701/2000 KENNER C DiscontinuedZikovic S Kelair Holdings Pty Ltd 219/2001 GREGOR C Discontinued


CONFERENCES—Matters arising out of—

2001 WAIRC 03713


PARTIES THE AUTOMOTIVE, FOOD, METALS,ENGINEERING, PRINTING ANDKINDRED INDUSTRIES UNION OFW O R K E R S — W E S T E R NAUSTRALIAN BRANCH & THECOMMUNICATIONS, ELECTRICAL,ELECTRONIC, ENERGY,INFORMATION, POSTAL,PLUMBING, AND ALLIEDWORKERS UNION OF AUSTRALIA,ENGINEERING & ELECTRICALDIVISION, WA BRANCH,APPLICANTS

v.

ARGYLE DIAMOND MINES PTYLTD, RESPONDENT

CORAM COMMISSIONER S J KENNER

DELIVERED THURSDAY, 6 SEPTEMBER 2001

FILE NO/S C 196 OF 2001, C 197 OF 2001

CITATION NO. 2001 WAIRC 03713_________________________________________________________________________

Result Order issued.

Representation

Applicant Mr D Hicks on behalf of the AFMEPKIU

Mr J Murie on behalf of the CEPU

Respondent Mr R Allen of counsel_______________________________________________________________________________

Order.

HAVING heard Mr D Hicks on behalf of the Automotive,Food, Metals, Engineering, Printing and Kindred IndustriesUnion of Workers, Western Australian Branch and Mr J Murieon behalf of the Communications, Electrical, Electronic, En-ergy, Information, Postal, Plumbing and Allied Workers Unionof Australia, Engineering and Electrical Division, WA Branchand Mr R Allen of counsel on behalf of the respondent, theCommission, pursuant to the powers conferred on it underthe Industrial Relations Act, 1979, hereby orders—

THAT applications C 196 and C 197 of 2001 be andare hereby joined and will be heard and determined to-gether.



INDUSTRIAL RELATIONS COMMISSION.PARTIES THE AUTOMOTIVE, FOOD, METALS,

ENGINEERING, PRINTING ANDKINDRED INDUSTRIES UNION OFW O R K E R S — W E S T E R NAUSTRALIAN BRANCH & OTHERS,APPLICANTSv.BHP IRON ORE PTY LTD ANDANOTHER, RESPONDENTS

CORAM COMMISSIONER S J KENNERDELIVERED TUESDAY, 11 SEPTEMBER 2001FILE NO/S C 217 OF 2001CITATION NO. 2001 WAIRC 03735_______________________________________________________________________________

Result Recommendation issued.RepresentationApplicants Mr D Schapper of counselRespondents Mr R Lilburne of counsel_______________________________________________________________________________

Recommendation.WHEREAS the applicants made application on 5 September2001 for an urgent compulsory conference pursuant to s 44 ofthe Industrial Relations Act 1979 (“the Act”).

AND WHEREAS the Commission convened a compulsoryconference between the parties on 7 September 2001.

AND WHEREAS at the conference the Commission wasinformed that the parties were in dispute in relation to appro-priate persons to attend a MUA/Company meeting scheduledfor September 2001, pursuant to cl 6.0—Meetings of the In-dustrial Relations Agreement (1997-As Amended) (“theAgreement”), which meetings are to be held no more thanquarterly for a maximum duration of four hours.

AND WHEREAS the applicants submitted that for manyyears up to and including the most recent MUA/Companymeeting held in or about November 2000, the respective un-ions party to the Agreement have been represented at suchmeetings by the on site President of the MUA and a repre-sentative of each of the four unions parties to the Agreementfrom Finucane Island and Nelson Point, being a total of nineunion representatives.

AND WHEREAS BHPIO submitted that as a consequenceof the merger of industrial relations management betweenFinucane Island and Nelson Point on the making of the Agree-ment and by notice at the last meeting in November 2000, thecompany advised that for future meetings there should be atotal of four union representatives attending on behalf of bothsites on the basis that the company recognised both FinucaneIsland and Nelson Point as one site; furthermore and in anyevent, that as the MUA/Company meetings were for the pur-poses of broad communication on company wide issues, thisrepresentation was appropriate and adequate.

AND WHEREAS following attempts by the Commissionto conciliate an agreement between the parties the Commis-sion advised the parties that to facilitate the resolution of thematter it would issue a recommendation, which recommen-dation would, by agreement of the parties, only apply to theMUA/Company meeting scheduled to take place in Septem-ber 2001.

NOW THEREFORE the Commission having regard for thepublic interest and the interests of the parties directly con-cerned hereby recommends—

THAT for the purposes of the MUA/Company meetingto be held pursuant to clause 6-Meetings of the Agree-ment in September 2001 there be in attendance at themeeting four representatives of the unions to representboth the Finucane Island and Nelson Point operationsand up to four representatives from BHPIO.




INDUSTRIAL RELATIONS COMMISSION.PARTIES THE BREWERIES AND

BOTTLEYARDS EMPLOYEES’INDUSTRIAL UNION OF WORKERSOF WESTERN AUSTRALIA,APPLICANTv.KIRIN AUSTRALIA PTY LTD A.C.N.009 079 645, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED FRIDAY, 17 AUGUST 2001FILE NO C 187 OF 2001CITATION NO. 2001 WAIRC 03567_______________________________________________________________________________

Result Consent OrderRepresentationApplicant Mr R MurphyRespondent Mr S Heathcote_______________________________________________________________________________

Order.WHEREAS the parties entered into a consent agreement on20 April 2001 in matter No C 64 of 2000 entitled the KirinAustralia (Fitters’) Enterprise Agreement 2000; and

WHEREAS the agreement stipulated an expiry date of 11August 2001; and

WHEREAS the parties in conciliation in matter no C 187of 2001 sought a consent order to extend the period of opera-tion of the Fitters agreement until such time as the applicationis resolved or the matter is determined by the Commission;

NOW THEREFORE the Commission, pursuant to the pow-ers conferred on it under section 44(8) of the IndustrialRelations Act, 1979, and by consent, hereby orders—

THAT the period of operation be extended, by con-sent, until such time as the matter is determined by theCommission.



INDUSTRIAL RELATIONS COMMISSION.PARTIES THE WESTERN AUSTRALIAN

BUILDERS’ LABOURERS, PAINTERS& PLASTERERS UNION OFWORKERS, APPLICANTv.BRADY’S BUILDING PRODUCTS,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED WEDNESDAY, 12 SEPTEMBER 2001FILE NO C 213 OF 2001CITATION NO. 2001 WAIRC 03745____________________________________________________________________________

Result Order____________________________________________________________________________

Order.WHEREAS on 3 September 2001 The Western AustralianBuilders’ Labourers, Painters & Plasterers Union of Workersapplied to the Commission for a conference pursuant to Sec-tion 44 of the Industrial Relations Act, 1979; and

WHEREAS on 12 September 2001 the Commission con-ducted conciliation proceedings between the parties and wasadvised there is a dispute about redundancies; and

WHEREAS having heard from the parties the Commissiondecided to Order the Union serve a claim for redundancy onthe Respondent, that the parties negotiate on a program theyagree, report back within 14 days, during this period no em-ployee bound by EBA AG161 of 1998 be made redundant,there be liberty to apply.

NOW THEREFORE pursuant to the powers vested in it bythe Industrial Relations Act, 1979, the Commission, herebyorders that—

1. The Western Australian Builders’ Labourers, Paint-ers & Plasterers Union of Workers serve a claim onBrady’s Building Products.

2. The parties are to negotiate on a program.3. The parties report back within fourteen (14) days.4. That there be no redundancy of employees under

the Enterprise Bargaining Agreement prior to the re-port back.

5. There be liberty to apply for the parties with 48 hoursnotice.



INDUSTRIAL RELATIONS COMMISSION.PARTIES THE HONOURABLE ATTORNEY

GENERAL, APPLICANTv.WESTERN AUSTRALIAN PRISONOFFICERS UNION OF WORKERS,RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED THURSDAY, 30 AUGUST 2001FILE NO C 177 OF 2001CITATION NO. 2001 WAIRC 03649_______________________________________________________________________________

Result Application to vary Interim Order notgranted.

RepresentationApplicant Mr R. Andretich (of counsel)Respondent Mr P. Momber (of counsel)_______________________________________________________________________________

Reasons for Decision—Amendment of Interim Order.1 The Interim Order which issued from the Commission

on 27 July 2001 provided that the Superintendent ofHakea Prison fill up to 6 vacant positions on the dailysheets over a 24-hour period and that the HonourableAttorney General authorise that to occur. That Orderissued on the understanding that the arbitration of thismatter which commenced on 26 July would resume on20 and 21 August 2001. For reasons which are coveredin the Commission’s Statement issued to the parties on15 August 2001, the discussions between the parties on 7and 14 August 2001 resulted in an understanding that itwould be premature for the hearing to resume on 20 and21 August 2001. The hearing will now resume on 14September 2001 with reports on how the prison hasoperated under the Interim Order and to commence theunion’s case.

2 On 20 August 2001 the union applied to vary the InterimOrder to require the Department to replace up to 8vacancies per day at Hakea Prison exclusive of theadditional 12-hour position in unit 6 and of the additional8-hour escort position. The union also states that theDepartment should authorise the Superintendent of HakeaPrison to approve additional staff if there is an operationalnecessity to do so. The Department has opposed theunion’s application to vary the Interim Order.


3 The Commission has given the parties an opportunity tobe heard. The union submits that the position is“intolerable”: roster positions are continually vacant asat sign-on, the Interim Order has not changed anythingand there is no confidence in the management of the issue.The union states that if 8 shifts remain vacant the prisonis effectively locked-up. The Department strongly rejectsthe union’s position. It states that the movement of staffto fill vacant positions as required results in positionsbeing covered and there is absolutely a safe environment.There have been disruptions but the position is not“intolerable”.

4 In the course of that hearing, the union tendered to theCommission its analysis of the operation of the InterimOrder supported by a copy of the diary maintained by aroster clerk for the period 20 July to 20 August 2001.The Department was given an opportunity to considerthe differences between the union’s document and thereports provided to the Commission by the Department.The Department has provided a Reply together with abundle of documents containing minutes of debriefmeetings and the daily absent/coverage sheets for theprison. On 27 August 2001, the union provided theCommission with its Reply to the Department’sdocumentation.

5 The Commission has considered the submissions and allof the material. Some of the differences between theunion’s and the Department’s documentation has not beenable to be reconciled by the Commission. However, tokeep the issue in context the Commission makes thefollowing points—

(1) The issue is whether or not the Interim Ordershould be amended. The Interim Order is only toensure a certain level of roster-filling establishedby the Commission until the union’s claim isheard and determined.

(2) The Interim Order is not for the purpose of grant-ing the union’s claim prior to it being heard anddetermined.

(3) The fact that the Interim Order does not grant theunion’s claim prior to it being heard and deter-mined, and the fact that the Commission has beenrequesting information for the purposes of thedecision to be made by it later, is not to the un-ion’s disadvantage. The arbitration of the union’sclaim means that a process is well and truly intrain for the concerns raised by the union to beproperly heard and determined.

(4) The principal differences between the union andthe Department, and the differences in the docu-mentation supplied by each to the Commission,will be the subject of a full and open hearing.

6 With that in mind the Commission’s analysis of all of thematerial indicates that the Interim Order requiring thatthe Superintendent replace a minimum of 6 positions onthe roster has generally operated to ensure that the numberof shifts remaining vacant has been kept low. Iacknowledge that even then the prison operated on normalroutine on 12 days since 27 July 2001. Disruption issignificant when the number of shifts remaining vacantafter the 6 positions have been filled is 7 or morevacancies.

7 The disruption does not appear to be dependent entirelyupon the figures of positions remaining vacant. Forexample, on 3 August the filling of 6 positions on theroster still left 7 vacant positions (I note the union’s figureis 6) resulting in closure of the concrete products andupholstery sections. Whereas on 12 August 2001, whereon the Department’s figures the number of vacanciesincreased to 7 after 10:00am, the result was a need forprison administration to meet with the senior officers forthe purpose of discussing the situation as a result of whichthere was a late unlock. Although the disruption wasproperly managed, it was at the cost of a routine beingestablished to see units 6 and 7 run normally. Unit 4 ranon a restricted regime (the union states that it was closedall day) with staff deployed to cover the shortfall.Reception was closed and the medical centre ran on a

restricted regime. The union states that crisis care alsowas restricted due to the absence of an officer to supervisethe medical centre.

8 This level of disruption ought be avoided. In fact, thePrison management has since addressed the issue byfilling more than 6 vacancies if it has been necessary todo so. On 22 August 7 vacancies were filled leaving oneposition vacant. On 23 August 11 vacancies were filledleaving one position vacant. On 24 August 2001 the prisonexperienced what was described as the highest numberof absences in the past 12 months. Prison managementdecided to fill 10 positions, 4 more than the Interim Orderrequired. Staff were re-deployed so that eventually onlyone position, the internal escort position, remained vacant.Although unlock was delayed to deploy staff to otherareas, both education centres were closed and twoworkshops operated on a reduced muster, this would haveoccurred even if, as the union now requests, the InterimOrder required 8 positions to be filled.

9 For the purposes of the Interim Order therefore, I am notpersuaded that merely requiring 8 positions to be filledin lieu of the current 6 is appropriate. Rather, theCommission considers the action taken by the prisonmanagement to ensure that when there are a large numberof vacant positions, more than 6 (and up to 10) vacancieswill be filled, to be quite appropriate. It evidently doesnot require an amendment to the Interim Order toauthorise the Superintendent to approve additional staffif there is an operational necessity to do so.

10 For the above reasons, the Commission at this stage willnot vary the Interim Order.

CONFERENCES—Matters referred—


INDUSTRIAL RELATIONS COMMISSION.PARTIES THE AUSTRALIAN WORKERS’

UNION, WEST AUSTRALIANBRANCH, INDUSTRIAL UNION OFWORKERS, APPLICANTv.BHP IRON ORE LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED FRIDAY, 3 AUGUST 2001FILE NO/S CR 46 OF 2001CITATION NO. 2001 WAIRC 03420_____________________________________________________________________________

Result Declaration issued.RepresentationApplicant Mr M LlewellynRespondent Mr M Lundberg of counsel______________________________________________________________________________

Reasons for Decision.1. The matter before the Commission is one referred

pursuant to s 44(9) of the Industrial Relations Act 1979(“the Act”) following conciliation proceedings before theCommission. The question posed by the s 44(9) referralis whether Mr William Warren Tracey, described as anorganiser employed by the applicant, is a full time officialof the applicant. This is denied by the respondent. Thesignificance of this matter relates to an ongoing disputebetween the applicant and the respondent as to MrTracey’s right of entry pursuant to clause 28 of the IronOre Production and Processing (Mt Newman MiningCompany Pty Ltd) Award A 29 of 1984 (“the Award”).


2. It should be noted that it is this relatively narrow issuethat is before the Commission, and not any wider issuesarising pursuant to s 49 AB of the Act, going to thepurposes of any right of entry sought to be exercised bythe applicant: cf BHP Iron Ore Pty Ltd v William WarrenTracey (unreported AIRC 7 June 2001 per Polities SDP).

Contentions of the Parties3. Mr Llewellyn, on behalf of the applicant, submitted that

Mr Tracey is a full time official of the applicant becausehe was validly appointed as an employee organiser bythe branch executive of the applicant’s counterpart federalbody, the Australian Workers Union (“the Federal Union”)by decision of the branch executive on or about 17November 2000.

4. Mr Llewellyn submitted that when read in accordancewith the relevant provisions of the Rules of the AustralianWorkers Union (“the Federal Rules”) and the Rules ofthe Australian Workers Union West Australian BranchIndustrial Union of Workers (“the State Rules”) this wassufficient to properly appoint Mr Tracey as an employeeorganiser of the State Union. It was also submitted thatthe appointment of Mr Tracy was enabled by the powersconferred on the secretary of the WA Branch and the StateUnion, Mr Daly. On this basis, it was therefore submittedthat Mr Tracey, in conjunction with his full time status, isa full time official of the State Union, for the purposes ofclause 28 of the Award.

5. Counsel for the respondent, Mr Lundberg, submitted thatneither the Federal Rules nor the State Rules supportedMr Tracey’s employment as an organiser. Therefore, hecould not be an official of the State Union for the purposesof the Award. Furthermore, it was submitted by therespondent that even if Mr Tracey were such an official,then he was not a full time official, for the same purposes.

Evidence6. The applicant led evidence from Mr Timothy Daly, the

State secretary of the State Union and the branch secretaryof the Federal Union. Mr Daly testified that there are threeelected officials of the Federal Union, they being thebranch secretary, the branch assistant secretary and thebranch mining division secretary. In addition, there are anumber of employee organisers. In relation to the StateUnion, there exists the State secretary, the mining divisionsecretary and a number of other employed persons. Itwas Mr Daly’s evidence that the structure of the WAbranch of the Federal Union (“the WA Branch”) and theState Union was determined in about 1996 by the branchexecutive. He said that the employment of organisers, asopposed to their election for a specified term, was to givethe union some flexibility in relation to responding tomembership demand. Mr Daly testified that theresponsibility for the employment of organisers was his,in conjunction with the branch executive.

7. At a meeting of the WA Branch executive on 17 November2000, Mr Daly referred to circumstances arising at therespondent and as a result of discussions at that meeting,the executive resolved to appoint Mr Tracey as “an officerof this Union”. An extract of the minutes of the WABranch executive for this day, about which Mr Daly gaveevidence, was tendered as exhibit A8. By letter dated 5February 2001, the appointment of Mr Tracey as anorganiser with both the WA Branch and the State Unionwas confirmed. Formal parts omitted, this letter providedas follows—

“This correspondence is to confirm an offer of em-ployment as an organiser with the W.A. Branch ofthe Australian Workers’ Union and the AustralianWorkers’ Union West Australian Branch IndustrialUnion of Workers.The offer has a salary of $54 575.22 per annum.You will also have a superannuation contributionmade on your behalf of 15% of your base salary(8% award and 7% employer).All conditions of employment inclusive of the abovementioned are reviewed from time to time by theNational Executive of the Union and should you

accept this offer of employment, you accept any fu-ture decisions of either the National or BranchExecutive as appropriate, regarding your conditionsof employment.”Should you accept this offer, your commencementdate would be Monday February 12th 2001.”

8. Also tendered in this connection, was a copy of adocument described as “AWU Member Master FileDetails”, referring to the engagement of Mr Tracey as anorganiser at Port Hedland. This document also refers toMr Tracey becoming a member of the WA Branch andthe State Union, effective 28 February 2001. (exhibit A3).Exhibit A4 was a copy of an application for membershipof the WA Branch and the State Union, dated 12 February2001. Additionally tendered through Mr Daly, was a taxfile number declaration, specifying on its face theemployment of Mr Tracey on a full time basis. Thesignatory to this document being Mr Daly (exhibit A5).

9. Mr Daly testified that the terms of exhibit A2, that beingMr Tracey’s letter of confirmation of appointment wasthe usual format for appointing an organiser in order thatthere could be a clear record between the union and theemployee, of the appointment.

10. As to the duties of an organiser, Mr Daly said that anorganiser is employed full time in recruitment, visitingsites and generally promoting the union. A person in sucha position is not able to hold any other paid employment,but may hold other voluntary positions, in connectionwith peak councils etc. Also tendered through Mr Dalyas exhibit A9, was a copy of an extract of a meeting ofthe WA Branch executive held on 12 April 2001, at whichMr Daly advised the executive that Mr Tracey hadcommenced employment with the union as an organiserin the North West of the State.

11. Also tendered in evidence through Mr Daly, was adocument described as “Australian Workers UnionPayroll” (exhibit A6) which contained an entry for MrTracey providing for normal hours of 35 per week andthe payment of salary and appropriate allowances. Thiscovers the period from 16 February up to and including1 June 2001.

12. In cross-examination, Mr Daly said that the appointmentof Mr Tracey by the WA Branch was not the subject of,to his knowledge, any separate resolution of the StateUnion executive but he said that in effect they are oneand the same, in that Mr Tracey was to be considered anofficial of both the WA Branch and the State Union. Inthis connection he testified that the State Union“piggybacked” the WA Branch in matters such as this. Itwas also Mr Daly’s evidence that he had no knowledgeof Mr Tracey holding any other position and Mr Traceyhad no obligation to advise him unless any other positionimpacted on his work as an organiser. A letter dated 23April 2001 (exhibit R1) was put to Mr Daly, which letterdescribed Mr Tracey, on an AWU letterhead, as an “ACTUOrganiser”. Mr Daly said he had no knowledge of this.

13. The respondent called no evidence.14. I find accordingly.

Consideration15. The issue before the Commission is whether Mr Tracey

is a “full time official” of the State Union that being theunion party to the Award for the purposes of clause 28—Union Officials. There is no definition of “official”contained within the Award for the purposes of clause 28however I am content to conclude that it should beinterpreted consistent with its ordinary and naturalmeaning. The Concise Oxford Dictionary defines“official” to include 1. “Performing some office forservice;… 2. Of or pertaining to an office, post or place3. Of person: Holding office; employed in some publiccapacity 4. Derived from, or having the sanction of,persons in office; hence, authorised, authoritative 5.Having the manner or air usual with persons in office;formal, ceremonious.”

16. With this definition in mind, I turn to consider the positionof Mr Tracey, in the light of the evidence and the relevantprovisions of the Federal Rules and the State Rules.


17. The Federal Union is, for the purposes of the Act, thecounterpart federal body of the State Union, by reason ofa certificate issued by the Industrial Registrar of thisCommission on 22 April 1981 pursuant to s 71(5) of theAct. The s 71 certificate declares that for the purposes ofunion elections, the relevant provisions of the Act do not,from 1 June 1982 apply to the State Union andfurthermore, as from that date, persons holding office inthe WA Branch shall be, for all purposes, the officers ofthe State Union. The effect of the s 71(5) certificate isreflected in rule 24(3) of the State Union rules, where itis provided that from such time as the Executive maydetermine, each office in the State Union is to be held bythe person who holds the corresponding office in theFederal Union. Furthermore, by rule 47, the State Unionwas incorporated with and became a branch of the FederalUnion. Whilst it is not necessary to determine the questionfor present purposes, it is not possible in my opinion forthe State Union, as a separate entity, to be “incorporated”into the Federal Union in this manner.

18. Additionally, the Federal Rules were incorporated intothe State Rules and are applicable to the State Union andits members, except in so far and to the extent that suchrules are inconsistent with the State Rules or the Act, inwhich event the State Rules will prevail. This means thatfrom this time, the rules of the Federal Union also formpart of the rules of the State Union.

19. It thus can be seen that whilst the WA Branch of theFederal Union and the State Union possess a separatelegal identity, for the purposes of the officials, registeredrules and membership, they are conducted effectively asone and the same: Moore v Doyle (1969) 15 FLR 59; ReMcJannet; Ex parte Minister For Employment (Etc)Queensland and Another (1995) 62 IR 1. Dualmembership is also reflected in rule 8 of the Federal Rules.

20. It would appear that the s 71(5) certificate, when readwith the relevant provisions of the Act, means and refersto “office” and “officer” as those terms are defined in s 7of the Act. It would also appear to be common groundbetween the parties that Mr Tracey is not an “officer” asdefined for the purposes of s 7 of the Act and I concludeaccordingly. Therefore, the applicant is not able to relyin my view, on the s 71(5) certificate, to support Mr Traceybeing an “officer” of the State Union, for these purposes.However, it is the case that a person can be an officer forthe purposes of the rules of a union, without necessarilymeeting the statutory definition of an “officer” of anorganisation, under industrial legislation. Whether aperson is so described, is dependant on the duties andresponsibilities of the position held: Landeryou v Taylor(1969) 15 FLR 147; Grove v Rigby (1971) 19 FLR 160;Thompson v Ludwig 1992 AILR 344.

21. I turn now to examine the relevant provisions of theFederal Rules. By rule 35 the branch executive has thegeneral control and conduct of the business of the branch,and acts on its behalf in all matters. By rule 39, the branchsecretary has the powers, duties and functions to actgenerally according to the instructions of the branchexecutive and is responsible for the administration of thebranch. Furthermore, by rule 39(b), the branch secretaryis empowered to “appoint, control and dismiss the clerical,research, accountancy and other staff of the Branch orSub-Branch.”

22. Rule 41 deals with branch organisers. It provides that allorganisers, “elected or employed”, must conform to thedirection of the branch secretary, district secretary ordivisional secretary by which they are employed. Theterms of rules 60-64 provide for the qualifications forand the election of persons to hold office in the FederalUnion. Mr Tracey not being an elected organiser, noneof these rules have application. By rule 65, provision ismade for the filling of vacant elected offices within theFederal Union, by which rule an appointment may bemade by the relevant branch executive in the case of abranch office.

23. It would appear that by reason of rule 78, “office” meansany elected position in the Union and “elected office”has a corresponding meaning. It would seem therefore

that the power residing in a branch executive to appoint,in the case of a vacant office, only applies to an office inrespect of which an election has been held. It wascommon cause that in the case of Mr Tracey, he was notappointed by the WA Branch, to a position createdpursuant to rule 65, dealing with the filling of a vacantoffice. It would appear to follow therefore, that at leastfor the purposes of the Federal Rules, Mr Tracey is neitheran “organiser” nor an “Employed Organiser”, at least asthose positions are defined in rule 78.

24. The issue that then arises from this proposition, is whetherthe terms of the Federal Rules dealing with the generaland very broad powers of the branch executive ascontained in rule 35, noted above, should to any extent,be read down in light of the relevant definitions in rule78. It is trite to observe that the rules of a union dealingwith the exercise of powers of the relevant organs of theorganisation, should be interpreted liberally: TheAmalgamated Society of Engineers v Smith (1913) 16CLR 537 at 559; Stevens v Keogh (1946) 72 CLR 1 at27; Williams v Hursey (1959) 103 CLR 30 at 56-57;Ludwig v Harris (1989) 37 IR 189 at 193-194. In myopinion, there is nothing within the Federal Rules tosuggest that the extensive powers of the branch executiveshould in any way be read down.

25. By rule 34 dealing with branch authority, it is to be noted,that the highest authority of any branch in the FederalUnion, is the branch executive. By rule 35, the powers ofthe branch executive, as noted above, extend to the generalcontrol and conduct of the business of the branch. As acorollary of the powers of the branch executive, by rule39, also noted above, the branch secretary is to actgenerally according to the instructions of the branchexecutive. This tends to confirm the ultimate decisionmaking authority of the branch, as residing within thebranch executive.

26. Given the clearly wide powers conferred on the branchexecutive, I am of the view that it was open to the branchexecutive to decide as it did according to the uncontestedevidence of Mr Daly, to not specify the election oforganisers in the branch, presumably consistent with rule61(2) of the Federal Rules, but rather to employ suchorganisers as employees of the union.

27. A not dissimilar issue arose in proceedings before theFederal Court in Ecob v Ludwig (unreported Federal Courtof Australia, 22 March 1991, per Einfeld J). The issuearising in that case being whether the appointment of anational organiser to work in the WA Branch, was properlyauthorised by a decision of the executive council of theunion. After considering the relevant provisions of thethen federal rules, including rule 36(a) as it then was,providing for the executive council to have responsibilityfor the general management of the union, a not dissimilarprovision to rule 35 of the present rules, Einfeld Jconsidered the issue of whether the executive council hadpower under the federal rules to make such anappointment and observed at 13 as follows—

“Thus in my opinion, an “appointed” organiser isto be compared with and distinguished from an“elected” person. The appointment of federal or-ganisers being a matter to do with the “generalmanagement” of the union’s affairs rule 36(a) veststhe appointment in the executive council. Looked atfrom the opposite end, “general management” ofthe affairs of any organisation would normally in-clude appointment of staff, either directly or asincidental to it. Unless the rules of this union pre-vented the executive council from appointingorganisers to its staff, rule 36(a) would authorisethe appointment. In my opinion, there is nothing inthe rules that would have this effect.”

28. Similarly in my opinion, the appointment of a branchorganiser, such as Mr Tracey, would normally besubsumed within the “general control and conduct of thebusiness of the Branch” for the purposes of rule 35(1) ofthe Federal Rules. Consistent with Einfeld J’s reasoningin Ecob, there is nothing in the Federal Rules in myopinion, which would preclude the WA Branch executivefrom making such an appointment.


29. On this basis, I am of the opinion that the WA Branchexecutive acted within power and properly appointed MrTracey to the position of an organiser employed by theFederal Union. To the extent that those same personsconstitute the executive of the State Union, as they clearlydo, as prescribed by the s 71 certificate and the terms ofthe State Rules referred to above, the decision-makingorgans of both the WA Branch and the State Union interms of the administration and management of the Unionbeing one and the same, the decision of the executivealso had the effect of empowering the employment of MrTracey as an organiser with the State Union.

30. Turning now to the State Rules, by rule 24(1) themanagement of the State Union is prescribed. Specifiedoffices are there are set out. By rules 29, 30, 31, 31A and32, provision is made in the State Rules for the electionof offices of the union and the filling of vacant offices.Also, by rule 48, specific provision is made for the electionand control of organisers, in accordance with the electionprocess prescribed in the earlier rules. Of course, thoseprovisions no longer have any operation as a consequenceof the s 71 certificate, as the elected officers of the StateUnion are those persons holding corresponding office inthe Federal Union and duly elected under the FederalRules.

31. By the terms of rule 49(5) “offices” shall include thePresident, Secretary, Vice-President’s, the President andSecretary of the Mining Division, West Australian Branch,Organisers and Executive Committeemen. Rule 49(6)defines “organiser” to mean “an officer elected orappointed in the manner hereinbefore.” However, despitethis definition, there is no express provision in the StateRules for the appointment of organisers.

32. By rule 35 the powers of the secretary of the State Unionare set out. There is no express power to appoint, controland dismiss staff. The secretary is obliged to act generallyin accordance with the instructions of the executive ofthe union. Importantly, by rule 27 the executive of theState Union is the ultimate authority of the union. Byrule 27(1)(a) the executive has the power to decide anyquestion affecting the union that may arise under the rules.Furthermore, by rule 27(1)(b) the executive has the powerto do certain things and generally to have the absolutecontrol of the affairs of the union. Additionally, similarto the position in the Federal Rules, by rule 27(3) theexecutive is the highest authority within the union.

33. If one were to take the State Rules in isolation from theFederal Rules, which they are not for reasons referred toabove, there is no express power residing in the secretaryto employ any staff to assist in running the union. In thiscase, reliance can be placed on the general powers of theexecutive, in particular rule 27(1)(b), to have the absolutecontrol of the union, which must include the power toengage, control and dismiss employees and to delegatesuch of these powers as the executive may see fit, to thesecretary. If this were not the case, it is difficult to seehow the State Union could function as an organisation,consistent with its objects as set out in rule 3. Applyingthe liberal rule of construction in relation to the plenarypowers of the executive of the State Union, and as withthe similar relevant provisions of the Federal Rules, inmy opinion it was quite open for the executive whenreading the State Rules as a whole, to determine as it didto employ rather than elect organisers.

34. But of course the State Rules incorporate the FederalRules, save for any inconsistency arising. Of those rules,as noted above rule 39(b) empowers the secretary toappoint, control and dismiss various staff. I am far frompersuaded that this would not confer sufficient power onthe secretary of the State Union, Mr Daly, to appoint anemployee in Mr Tracy’s position. There is nothingotherwise in the State Rules to suggest that this broadpower should be read down to exclude Mr Tracy’semployment by Mr Daly, as set out in exhibit A2. Thiswould also clearly include positions such as industrialofficers and research officers.

35. However, there is no necessity in this case to even seek torely on the apparent power in rule 39(b), because the

uncontested evidence was that the executive took thedecision in about 1996 to employ rather than electorganisers. Undoubtedly the executive of the State Unionhad the power to so decide and direct. Having done so,pursuant to rule 35(1)(a) of the State Rules, the secretaryof the State Union, Mr Daly for present purposes, wasand is required to act in accordance with the instructionsand directions of the executive. In acting in accordancewith this instruction, Mr Daly, in employing Mr Tracey,did so consistent with the authority and power conferredupon him to do so by the executive. It is axiomatic thathaving so instructed the secretary to act, the authority toact in accordance with that instruction must necessarilyalso be conferred.

36. In my view, the executive of both the WA Branch and theState Union had ample power to determine as they didon Mr Daly’s evidence. The appointment of Mr Traceyas an employee organiser of both the WA Branch and theState Union was clearly and manifestly within power asbeing made by the executive of the WA Branch and theState Union, or further and alternatively, pursuant to thegeneral powers of appointment conferred on the secretaryof the WA Branch and the State Union.

37. As to the argument of counsel for the respondent that theappointment of Mr Tracey under either the Federal Rulesor the State Rules required him to have been a memberof either union for a specified period of time, I am notpersuaded by these submissions. It is clear from both theFederal Rules and the State Rules that the preconditionof membership for the specified one and three year periodsrespectively, applies only to persons as candidates forelected office within the union. Mr Tracy was not such acandidate. There is no such limitation applying toemployed officers of the union.

38. Regarding the issue whether Mr Tracey should beconsidered an “official” for the purposes of the Award,given the ordinary and natural meaning of this word, andthe authorities dealing with “officer” to which I havereferred above, I am of the view that the duties andresponsibilities of an organiser, both on the evidence ofMr Daly, and as generally understood in industrialparlance, would qualify Mr Tracey as an official. In thisregard, it is not insignificant to note that for the purposesof the Federal Rules at least, by rule 78(24), industrialofficers and research officers are defined as “officers” ofthe Federal Union.

39. As to the issue of Mr Tracey’s full time status, given theevidence before the Commission, which evidence wasuncontroverted, I am persuaded that prima facie theapplicant has established that Mr Tracey was employedby the applicant in a full time capacity, as reflected in theinstruments of appointment and the applicant’s ownrecords. On the evidence before me, I am not able toconclude to the contrary.

40. Accordingly a declaration will issue to the effect that MrWilliam Warren Tracey is and has been a full-time officialof the applicant since 12 February 2001 in accordancewith his contract of employment with the applicant.



UNION, WEST AUSTRALIANBRANCH, INDUSTRIAL UNION OFWORKERS, APPLICANTv.BHP IRON ORE LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED TUESDAY, 7 AUGUST 2001FILE NO/S CR 46 OF 2001CITATION NO. 2001 WAIRC 03439

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 263781 W.A.I.G._______________________________________________________________________________

Result Declaration issued.RepresentationApplicant Mr M LlewellynRespondent Mr M G Lundberg of counsel_______________________________________________________________________________

Declaration.HAVING heard Mr M Llewellyn on behalf of the applicantand Mr M G Lundberg of counsel on behalf of the respond-ent, the Commission, pursuant to the powers conferred on itunder the Industrial Relations Act, 1979, hereby declares—

THAT Mr William Warren Tracey, an organiser em-ployed by the applicant, is and has been a full time officialof the applicant since 12 February 2001 in accordancewith his contract of employment with the applicant.




UNION, WEST AUSTRALIANBRANCH, INDUSTRIAL UNION OFWORKERS, APPLICANTv.HENRY WALKER ELTIN,RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED MONDAY, 20 AUGUST 2001FILE NO/S CR 282 OF 2000CITATION NO. 2001 WAIRC 03574_________________________________________________________________________

Result Application upheld.RepresentationApplicant Mr LlewellynRespondent Mr Smetana of counsel________________________________________________________________________

Reasons for Decision.1 Mr Paul Curran had been employed by the respondent

for approximately ten and a half years, commencing onor about 5 April 1990. On 18 October 2000, Mr Curranwas dismissed from his employment with the respondent,apparently by the giving of five days payment in lieu ofnotice. The reason given for Mr Curran’s dismissal wasdisobedience of instructions in relation to an incident thatoccurred on or about 17 October 2000, whilst Mr Curranwas undertaking loading out duties at the CV21 locationat the Boddington mine site. The applicant brought theseproceedings alleging that the respondent had unfairlydismissed Mr Curran.

2 The respondent opposed the applicant’s claim on behalfof Mr Curran and said that in all the circumstances, hisdismissal was not unfair.

3 At the conclusion of the proceedings, the Commissiondetermined that the dismissal of Mr Curran was indeedharsh, oppressive and unfair with reasons to be publishedin due course. These are my reasons for so concludingwhich I can relatively shortly state.

Facts4 Mr Curran, in the course of his employment with the

respondent, had, as it was common ground, anunblemished record of performance until events occurredin the period September to October 2000. Mr Curranduring his employment had worked in a variety ofcapacities including store duties, servicemen’s duties andas an operator on various production machines.

5 On or about 4 September 2000, Mr Curran was engagedin the task of building a drill pad for a drilling contractorusing a loader. Whilst doing so, Mr Curran backed theloader into the drill rig causing, as it was common ground,some minor damage to the rig. Apparently, the loaderalso sustained a broken tail light. This incident wasrecorded in an incident report tendered as exhibit R1 andwas the subject of a performance improvement noticetendered as exhibit A2. On the evidence it appeared thatthe incident occurred as a result of misjudgement.

6 However, the respondent’s concern was that Mr Currandid not report the incident which led to the performanceimprovement notice issuing. It was the failure to report,which failure I might add was readily conceded by MrCurran, that was the issue. I should also add that MrCurran was adamant in his evidence that at the time thathis loader made contact with the rig, he spoke with theemployees of the drilling contractor concerned.

7 This aspect of this incident was disputed in the evidenceof the respondent, through Mr Fewings, albeit thisevidence was hearsay in nature. He testified that he spokewith the drill rig contractor employees who advised himthat the reason for their concern at the time was that theoperator, Mr Curran, drove off without discussing thematter with them. Mr Fewings conceded however, thatas soon as Mr Curran saw him he told him about thedamage resulting from the contact with the drill rig. Itwas Mr Fewings’ evidence that the only real issue arisingfrom this incident was Mr Curran’s failure to report theincident immediately.

8 On or about 18 September 2000, Mr Curran was operatinga truck BT 313 and failed to sound his horn when movingoff from the “go line” area. Apparently on the evidence,it is a general requirement for truck operators to soundtheir horn when leaving the “go line”. On this particularoccasion, Mr Curran was issued a performanceimprovement notice. This notice, which was exhibit A1,also referred to an earlier verbal warning for not soundinga truck horn in similar circumstances, in June 2000.

9 Evidence given by both Mr Curran, and also Mr Fewingson behalf of the respondent suggested however, that failureto sound the truck horn when moving off the “go line”was not an infrequent occurrence. This was also confirmedto an extent by Mr Spibey, the project manager, in hisevidence. Apparently on the evidence, only Mr Curranhas received a written warning for this issue. Mr Curranrefused to sign this performance improvement notice.

10 The final matter was an incident which occurred on orabout 17 October 2000 whilst Mr Curran was engaged inclean-up and load out works at location CV21. This jobapparently involved the movement of material by MrCurran using a 990 loader to load trucks. It was commonground that the work area was somewhat confined andthat as a result of discussions between Mr Curran, MrArundle, one of the respondent’s supervisors, and MrNever, a relief leading hand, Mr Curran had the jobgenerally explained to him.

11 Mr Curran testified that the first three or four loadsinvolved loading trucks on an adjacent road to the clean-up area, because of the confined nature of the work site.He said that when attempting to clear some material, hehit the conveyor belt with the loader. He testified that hesaw the conveyor in his mirror but misjudged the distance.On this event occurring, Mr Curran testified that he calledMr Arundle on the radio to advise of the incident. MrArundle said he was too busy and could not come to thelocation. I pause to note that Mr Arundle, in his evidence,denied receiving such a radio call at this time.

12 Mr Curran continued working and prior to lunch saw MrArundle at the “go line” and told him that he had backedinto the conveyor at CV21. He told Mr Arundle of theincident and that the crossbar on the conveyor was bent.Mr Curran then attended a seminar of some form and itwas whilst he was so engaged that Mr Arundle inspectedthe site and later returned to speak with Mr Curran. Heretrieved Mr Curran from the seminar and informed himthat the damage was quite major and the matter wasserious.


13 An incident report, tendered as exhibit A3, was preparedin relation to the incident. This document appeared tohave been prepared by a Mr Baskovich, a site safetyadviser employed by the respondent. Surprisingly, thesupervisor involved, Mr Arundle, testified that he did notcarefully read the report nor apparently, did Mr Baskovichdiscuss the incident with him. Despite this, Mr Arundlesigned the report. Notably, the incident report forminitially recorded the reporting of the incident at 8am on17 October, but this time was changed to 12.45pm thatsame day. Notably also, despite the evidence from therespondent that Mr Curran failed to follow instructionsin relation to the CV21 job, the relevant part of the incidentreport form indicated that he did not deviate frominstructions given. The incident report form containednotes that the work area was confined; a smaller loadershould have been utilised; no JSA was prepared; andcontrary to the earlier entry, that Mr Curran attempted toclean up with a large machine not in accordance with hisinstructions.

14 It was after this incident that the project manager forBoddington became involved. He was aware of the priorincidents with Mr Curran and was briefed in relation tothe conveyor matter and the incident report form (exhibitA3). Mr Spibey then met with Mr Curran the next day on18 October to discuss the matter. There was somedivergence on the evidence as to what was said and donein this meeting.

15 Mr Curran testified that he told Mr Spibey that he wasembarrassed as to what had occurred with the most recentincident. Mr Curran agreed that Mr Spibey may have saidhow these matters can be avoided in the future. Mr Curranconceded that he may have said words to the effect that“everything was getting hard because of safetyrequirements” but strongly denied suggesting to MrSpibey that it would be better if the respondent dismissedhim, as this was put to him in cross-examination.

16 Mr Curran testified that Mr Spibey, on the completion ofthe meeting, signed a form that he had in front of himand handed it to him, which effected his dismissal by thepayment of five days pay in lieu of notice. Mr Curransaid that he did not recall Mr Spibey filling out thisdocument during their meeting and suggested that it wasalready completed before the meeting took place.

17 Mr Spibey said that he asked Mr Curran how the conveyorincident occurred and how these matters could beprevented in the future. Mr Spibey testified that it wasnot his intention to dismiss Mr Curran in this meetingbut rather to explore ways of preventing furtheroccurrences. However, he said that he decided to dismissMr Curran towards the latter stages of the meeting becauseMr Curran did not respond or satisfy him appropriately,that such incidents may not occur in the future.

18 In cross-examination, Mr Spibey conceded that Mr Curranhad a good record until the events commencing in or aboutSeptember 2000. He also said, as noted above, that it wasnot unusual for employees to be told twice to sound theirhorns when leaving the “go line”. Notably, Mr Spibeysaid in his evidence that he was told by Mr Arundle thathe had a call from Mr Curran on the radio earlier in theday of the conveyor incident, but was too busy to attendthe location at that time. This is entirely consistent withthe evidence given on this issue by Mr Curran.

19 Since his dismissal, Mr Curran has unsuccessfully soughtalternative employment as evidenced by exhibit A9.

Conclusions20 It was clear on the evidence and I find, that the practice

of failing to sound horns on the “go line” was notuncommon and employees were told more than onceabout this matter. It appears however, that only Mr Curranhad received a formal warning in relation to this issuewhich in all the circumstances is questionable.

21 In relation to the drill rig incident in September, therewas no suggestion that this was other than an error ofjudgement by Mr Curran, who readily conceded he didnot report the matter, considering it to be somewhat minor.I accept that the respondent’s concern was that the incident

was not reported which concern was in my opinion, avalid one.

22 As to the conveyor incident, I accept that Mr Curran didhave the job explained to him and particularly thecircumstances of the CV21 location. However, it was alsoapparent on the evidence that the loader allocated by therespondent for this job was not suitable, it being too large.Clearly this was a contributing factor, as the incident reportitself revealed. At the end of the day however, on all ofthe evidence, this incident amounted in my view, to anerror of judgement by Mr Curran. Certainly, there wasno suggestion on the evidence that he was in any waydeliberately negligent or grossly careless in his conduct.

23 Importantly, I except that Mr Curran did contact MrArundle on the radio to request his attendance at the siteas soon as the incident occurred. I do not except MrArundle’s denial of this. Mr Curran’s evidence in thisregard was supported by the evidence of Mr Spibey, asnoted above, that Mr Arundle told him that Mr Curranhad contacted him on the radio to attend the location buthe was too busy at that time.

24 I am also satisfied on the evidence and I find that MrSpibey had no intention to dismiss Mr Curran at thecommencement of the meeting on 18 October, but ratherto discuss ways to avoid future occurrences. Critically,there was no evidence that Mr Curran had ever beenadvised, either orally or in writing, that he was facing thepossibility of dismissal for such incidents. Whilst theperformance note in evidence as exhibit A2 in relation tothe drill rig referred to “further incidents will result inthe next step in the disciplinary process”, there was noevidence as to what this next step would be and certainly,no evidence that Mr Curran was ever told by anyone inauthority at the respondent that his employment was injeopardy.

25 It seems on the evidence and I find that Mr Spibey simplychanged his mind in the meeting with Mr Curran anddecided to dismiss him there and then. This was in myopinion, prima facie unfair: Margio v Fremantle ArtsCentre Press (1990) 70 WAIG 2559; Bogunovich vBayside Western Australia Pty Ltd (1998) 78 WAIG 3635at 3645. It was indisputably clear on the evidence, thatMr Curran had no inkling that he was to be dismissedthere and then in the meeting with Mr Spibey, or indeedat any time previously.

26 Additionally, a relevant consideration in my view wasMr Curran’s unblemished record over about ten and ahalf years of service, prior to the incidents that I havedealt with above. In light of this employment record, andthe circumstances of the incidents that occurred, it wouldhave been in my view and in any event, harsh for therespondent to have dismissed Mr Curran simply becauseof these incidents and nothing more.

27 The dismissal of Mr Curran was harsh, oppressive andunfair. I directed the parties to confer as to an appropriateorder for compensation for loss, noting that Mr Curranshould be compensated fully for his loss in thecircumstances. I was satisfied that Mr Curran had takenall reasonable steps to mitigate his loss. I also indicatedthat in the event that the parties were unable to agree oncompensation for loss, the matter would be re-listed bythe Commission in order that this matter be determined.

28 Subsequent to announcing my decision in this matter,but prior to the publication of these reasons, my associatehas been advised by the parties that they have agreed onan amount of compensation, to reflect my decision. Thesum agreed is $32,345.00.

29 A minute of proposed order now issues.


2001 WAIRC 03610


PARTIES THE AUSTRALIAN WORKERS’UNION, WEST AUSTRALIANBRANCH, INDUSTRIAL UNION OFWORKERS, APPLICANTv.HENRY WALKER ELTIN,RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED FRIDAY, 24 AUGUST 2001FILE NO/S CR 282 OF 2000CITATION NO. 2001 WAIRC 03610_________________________________________________________________________

Result Application upheld.RepresentationApplicant Mr M LlewellynRespondent Mr A Smetana of counsel_________________________________________________________________________

Order.HAVING heard Mr M Llewellyn on behalf of the applicantand Mr A Smetana of counsel on behalf of the respondent, theCommission, pursuant to the powers conferred on it underthe Industrial Relations Act, 1979, hereby—

1. DECLARES that Mr Paul Curran was harshly, op-pressively and unfairly dismissed from hisemployment, as a plant operator, by the respondenton or about 18 October 2000.

2. DECLARES that reinstatement of Mr Curran is im-practicable;

3. ORDERS the respondent to pay to Mr Curran thesum of $32,345.00 less any amount payable to theCommissioner of Taxation pursuant to the IncomeTax Assessment Act 1936 and actually paid.


2001 WAIRC 03572


PARTIES THE AUTOMOTIVE, FOOD, METALS,ENGINEERING, PRINTING ANDKINDRED INDUSTRIES UNION OFW O R K E R S — W E S T E R NAUSTRALIAN BRANCH,APPLICANTv.BHP IRON ORE PTY LTD,RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED FRIDAY, 17 AUGUST 2001FILE NO/S CR 108 OF 2001CITATION NO. 2001 WAIRC 03572_________________________________________________________________________

Result Application granted in part. Order issued.RepresentationApplicant Mr J FergusonRespondent Mr T Lucev of counsel and with him Mr

B DiGirolami of counsel_________________________________________________________________________

Order.HAVING heard Mr J Ferguson on behalf of the applicant andMr T Lucev of counsel and with him Mr B DiGirolami of

counsel on behalf of the respondent, the Commission, pursu-ant to the powers conferred on it under the Industrial RelationsAct, 1979, hereby orders—

1. THAT the three-day suspension penalty issued toMr George Daccache by the respondent on 11 May2001 for his refusal to attend a preliminary safetyinquiry be quashed and in lieu thereof a written rep-rimand be placed on Mr Daccache’s personal file inthe terms as set out in annexure A to this order.


ANNEXURE ADear GeorgeWritten ReprimandI refer to the disciplinary investigation conducted on 10 April

2001, 1, 2 and 11 May 2001 into your refusal to attend asafety inquiry on 6 April 2001, in relation to a tagging inci-dent in which you were involved.

It has been found that you refused to attend the safety in-quiry.

In the circumstances, you are now issued with a written rep-rimand. Any further refusal of a lawful instruction by youmay result in the termination of your employment.

In addition, I wish to reiterate the Company’s position thatverbal abuse in the workplace is not acceptable.

Yours sincerely



HOSPITALITY ANDMISCELLANEOUS WORKERSUNION, WESTERN AUSTRALIANBRANCH, APPLICANTv.BURSWOOD RESORT(MANAGEMENT) LIMITED,RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED TUESDAY, 4 SEPTEMBER 2001FILE NO CR 153 OF 2001CITATION NO. 2001 WAIRC 03674_______________________________________________________________________________

Result Applicant’s member dismissed harshly;reinstatement ordered.

RepresentationApplicant Mr J Rosales-Castaneda, of CounselRespondent Mr R LeMiere, of Queens Counsel and

with him Mr H Downes, of Counsel_______________________________________________________________________________

Reasons for Decision.1 This application comes to the Commission pursuant to

section 44 of the Industrial Relations Act, 1979 (the Act).The Australian Liquor, Hospitality and MiscellaneousWorkers’ Union, Western Australian Branch, “theapplicant”, alleged that their member, Ms Leanne Claytonwas unfairly dismissed on 19 June 2001. The applicant’smember was a croupier at the Casino for the last 14 years.She had previously been the President of the BurswoodResort Union of Employees and a member of the Healthand Safety Committee and at the time of dismissal was aunion delegate. The matter came on for conference on 29June 2001, could not be settled and was referred tohearing.


2 The terms of the memorandum for hearing anddetermination are as follows—

“THE APPLICANTThe applicant union contends that their member,Leanne Clayton, was dismissed on 19 June 2001 ina manner that was harsh, unfair and unlawful.The union seeks reinstatement as an appropriate rem-edyTHE RESPONDENTThe respondent opposes this claim.”

3 The union sought an interim order reinstating Ms Claytonto her position as a croupier prior to the hearing anddetermination of the matter. The Commission dealt withthe matter on 29 June 2001. Parties were provided withreasons for the Commission’s decision and these arepublished herein.

INTERIM ORDER“Reasons for Decision

1 This is a matter that comes to the Commission pur-suant to section 44 of the Industrial Relations Act,1979 (the Act). The applicant union sought the as-sistance of the Commission in a dispute between theparties concerning the applicant’s member Ms LClayton who was terminated by the respondent on19 June 2001. The application was filed in the Com-mission on 20 June 2001 and the matter dealt within conference pursuant to s.44 of the Act on 29 June2001. The applicant contends that Ms Clayton washarshly, oppressively and unlawfully dismissed inthat she spoke to the media (Channel 7) regardingthe alleged sexual assault of a patron of the BurswoodCasino. Ms Clayton who was previously the presi-dent of BRUE was approached by Channel 7 andgave an interview regarding the security concerns ofmembers. The respondent alleged that Ms Claytonbreached her contract and company policy in speak-ing to the media, in a manner which and disclosingmaterial that, was detrimental to the company.

2 The facts at conference were not greatly in dispute.What was largely at issue at conference was firstlywhether the employer had complied with clause 39of the enterprise bargaining agreement (EBA), ie thedispute settlement procedure; and whether the Com-mission had power, and if so whether it wasappropriate, for the Commission to issue an interimorder reinstating Ms Clayton until such time as thematter was heard and determined.

3 The applicant union sought reinstatement of MsClayton per se. This was rejected by the respondent.The matter was referred for hearing and will be listedin the near future. The dispute not having resolved,the Commission heard the parties in conference re-garding whether an interim order should issuereinstating Ms Clayton.

4 Clause 39 of the EBA states—“39.—RESOLUTION OF DISPUTES

Any problem or dispute arising under the agreementduring the currency of the agreement shall be dealtwith as follows—

(a) The matter should first be discussed be-tween the employee concerned and theirimmediate Supervisor with the view toresolution of the matter in question.

(b) If at this point the matter is not resolved tothe satisfaction of the employee concerned,the matter shall be referred to a HumanResources Officer or other appropriate of-ficer of the Company for furtherinvestigation and discussion.

(c) If the matter should still not be settled, theemployee concerned shall be referred to theHuman Resources Manager for further dis-cussion.

(d) Should the employee concerned so desire,the appropriate Union delegate may accom-pany such employee and participate in any

discussions or investigations prescribed insub-clauses (b) and (c) of this sub-clause.If for any reason it is the intention of theCompany to give an employee a writtenwarning, such employee shall have theright to have a Union delegate present atsuch time as the written warning is issued.

(e) If the matter is still not satisfactorily re-solved, it shall be formally submitted bythe Secretary or other official of the Unionto the Company for consideration and reso-lution. Provided that persons involved inthe problem or dispute will confer amongthemselves and make reasonable attemptsto resolve problems or disputes before tak-ing those matters to the Western AustralianIndustrial Relations Commission. Shouldthe matter, after this, still not be satisfacto-rily resolved, it may be referred to theWestern Australian Industrial RelationsCommission.

(f) Until the matter is determined in accord-ance with the above procedures, work shallcontinue normally. All parties to the agree-ment, the Company, its officials, the Unionand its members will take all possible ac-tion to settle any dispute within 7 days ofnotification of the dispute to the HumanResources Manager.

(g) No party shall be prejudiced as to the finalsettlement by continuance of work in ac-cordance with this clause.”

5 Further clause 34 of the EBA is also relevant andstates—

“34.—UNION DELEGATES AND MEETINGS(1) The employees shall have the right to elect

Union delegates, in agreed work areas, andupon notification by the Union to the Com-pany, such delegates shall be recognised bythe Company.

(2) Delegates accredited in accordance with sub-clause (1) shall be allowed the necessary timeduring working hours to interview the appro-priate Company representative on mattersaffecting the employees so represented withintheir designated work area.

(3) Prior to the intended dismissal of a Union del-egate, the Company shall notify the Unionaccordingly of the reasons for such dismissal.

(4) The Union shall be allowed to convene one“Union Meeting” each year, during ordinaryworking hours, in accordance with the follow-ing conditions—

(a) At least fourteen days’ written noticeof such meeting is given to the Com-pany by the Secretary of the Union.

(b) The duration of the meeting shall be 3hours as a maximum, the employeesreturning to duty by noon.

(c) Payment at ordinary time rate of payto be made for the period that employ-ees were rostered for duty.

(d) Such Union meetings shall be held onweekdays, on other than a Thursdayor Friday.

(e) Payment of wages shall be made onlyupon the Company being in receipt ofsatisfactory evidence of the employee’sattendance at the meeting.”

6 The employer says there were meetings with MsClayton on 12 June 2001 and then with Ms Claytonand a union delegate and management on 15, 18 and19 June 2001.

7 It is common ground that the union wrote to the re-spondent at about 12:03 pm on 19/06/01 indicatingthat the dispute had not been resolved and making


reference to clause 39(e). A meeting between MsClayton, the respondent and a union delegate washeld at 12:30pm. The respondent contends that MsClayton provided no or insufficient reason as to whyshe should not be terminated. A decision to termi-nate Ms Clayton was made following that meeting.The respondent advised the union by letter pursuantto clause 34(3) that a union delegate was to be dis-missed at 5pm that day. The company contends thatas no letter from the union was received calling in toquestion clause 39(e) prior to 5pm then that clauseof the dispute settlement procedure was not activated.The employer contends that the dismissal havingbeen effected the EBA is not relevant to Ms Clay-ton.

8 In relation to power, the Commission must read theprovisions of the Act on their face. If it is unclear onits face then ancillary material may be used for in-terpretation purposes. (BHP Iron Ore Pty Ltd—v-AFMEPKIU unreported, delivered 21 May 2001).Section 44(6)(ba) of the Act is clear. It states—“44(6)(ba) with respect to industrial matters, give

such directions and make such ordersas will in the opinion of the Commis-sion—

(i) prevent the deterioration of in-dustrial relations in respect ofthe matter in question until con-ciliation or arbitration hasresolved that matter;

(ii) enable conciliation or arbitra-tion to resolve the matter inquestion; or

(iii) encourage the parties to ex-change or divulge attitudes orinformation which in the opin-ion of the Commission wouldassist in the resolution of thematter in question;”

9 It is clear on its face this provision allows for theCommission to issue interim orders so as to preventthe deterioration of industrial relations between theparties. In deciding whether the Commission haspower there is no need to go further than this provi-sion of the Act. This is a broad provision and a centralprovision in the Commission’s powers to resolveindustrial disputes. It is not in my view to be fetteredor read down in any way as the respondent wouldhave it by section 23(3)(h) of the Act. Section23(3)(h) states—

“on a claim of harsh, oppressive or unfair dis-missal make any order except an order that isauthorized by section 23A.”Section 23A is an extensive provision dealingwith the powers of the Commission on claimsof unfair dismissal and without going to theentire provision allows the Commission inclaims for unfair dismissal to either reinstatethe employee or order compensation (City ofGeraldton v Cooling 80 WAIG 5341). Sec-tion 44 is a separate provision and this matterhaving come to the Commission pursuant tothat section must be treated in its context.

10 Beech C in his decision of 30 April 2001 regardingan application for an interim order between the sameparties (ALHMWU v Burswood Resort (Manage-ment) Ltd 81 WAIG 1248) said at paragraph 13 thatin his view section 23(3)(h) does not prevent theCommission exercising the powers that are containedwithin s.44 of the Act. I would agree with that al-though in saying so I do not necessarily adopt, noris it necessary to do so for the purposes of this mat-ter, all of his reasons for decision.

11 I should say also, as it has been argued, that s.27 inmy view is an important section in the Act, beingprocedural in nature. It provides for the general effi-cient conduct of the Commission in all matters before

it. Refer Food Preservers Union—v- AFMEPKIU81 WAIG 1141. In short form I find the Commis-sion has power to issue the interim order sought bythe applicant union to reinstate Ms Clayton until suchtime as the matter in dispute has been heard and de-termined. It is clear through s.44(6)(c) that theCommission has full access to all powers referred toin s.27(1) in matters referred to it pursuant to s.44.The issue then is whether the Commission havingpower to issue such an interim order should in allthe circumstances issue the order.

12 The first issue to consider is whether there is in themind of the Commission likely to be a deteriorationof industrial relations between the parties. In thisinstance, a deterioration until such time as the mat-ter has been resolved by arbitration. I should saythat the Commission having dealt with the partieson a regular basis is reasonably able to form a viewas to the state of industrial relations between theparties. The parties’ relations are strained at best.Specifically in relation to this matter, Mr Rosales-Castaneda on behalf of the union has referred tocertain circulars on behalf of both parties which havebeen circulated regarding Ms Clayton’s dismissal.Beech C in reaching his decision of 30 April 2001reached the conclusion that industrial relations be-tween the parties were “indeed at a very low ebb”.He stated “That is not to say that their industrial re-lations are not able to further deteriorate.Deterioration is a relative concept”. Albeit the mat-ter in dispute concerning Mr Mitchell was stronglycontested by both parties, I do not consider the samelevel of agitation has maintained itself between thattime and now. Similarly I have not evidenced any-thing by way of substantive improvement in thatrelationship. Beech C went on to say “in my view,industrial relations may deteriorate notwithstandingthat there may not be industrial action apparent.” Iwould agree wholeheartedly with that comment.Nevertheless although I am sure this is a matter thatwill be hotly contested between the parties at hear-ing, the potential for further deterioration ofindustrial relations between the parties was not evi-denced in submissions by both parties at conference.In that sense the onus is on the applicant seeking theorder to sustain the argument for the order. This hasnot been made out in this instance.

13 The other point of reference for the Commission iswhether the applicant has an arguable case. I shouldsay that the matter comes to the Commission at atime when the dismissal has occurred. This is as perthe matter with Mr Mitchell before Beech C, but thecircumstances of course present a different back-ground. In the earlier matter there was an existingorder placing Mr Mitchell back in employment bythe Commission as presently constituted. Neverthe-less, it is clear that there is an arguable case to bemade in this particular matter. The merits of the caseof course will be dealt with at hearing.

14 The next issue to be treated is the balance of con-venience of the parties in issuing the order. Giventhe decision in Cooling v City of Geraldton on theface of it, Ms Clayton stands to lose income, shouldshe be successful in the union’s application, so theunion would argue until such time as the matter isdetermined. The employer likewise suggests that tohave Ms Clayton reinstated would be a disservice tothem should they be successful in the arbitration.The essential point of the applicant union is that dueto the Cooling decision the applicant will be disad-vantaged. I do not consider the s.44 should be usedby the Commission as a devise to overcome any di-lemma the applicant may consider they face due tothe Cooling decision. This is not available to an ap-plicant via s.29 in unfair dismissal cases and I donot believe that s.44 should be taken out of contextand used simply to overcome a perceived disadvan-tage by the applicant due to the Cooling decision. Iemphasise this is in the context of this matter, it


being a claim for unfair dismissal that has come tothe Commission via s.44 at a time of the dismissalhaving taken place.

15 The more difficult part of the argument between theparties is in relation to clause 39 of the EBA. I donot accept the respondent’s position that somehowthis union should have activated their request be-tween about 1:30 and 5:00pm on 19 June 2001referencing clause 39(e). If this were the case it wouldlead to a result where dispute settlement clauses aredrafted in immense detail to overcome such obsta-cles. As a matter of equity and good conscience Iwould find that a difficult position to construct andsupport. However, equally and arguably it is not clearfor me that clause 39 would act so as to prevent thetermination of Ms Clayton. I make no finding onthis issue and am not required to do so at this stage.This is a matter that will come on for hearing and bedealt with at that time. Suffice to say that in all thecircumstances the balance of convenience does notlie with the applicant and the interim order for rein-statement of Ms Clayton will not be issued.

16 I should add that I consider orders of this kind shouldnot be issued lightly. Both in the sense of there be-ing a need to assess whether the order is necessaryto prevent deterioration of industrial relations be-tween the parties, but more particularly incircumstances such as this where a matter comes onfor conciliation and determination by the Commis-sion pursuant to s.44 of the Act seeking reinstatementof an employee who has already been dismissed. Itwould be easy to portray such an interim order as aninstance where the Commission has predeterminedthe outcome of the arbitration. This is again espe-cially so in the matter before the Commission wherethe prime issue in question is a limited one of theapplicant’s member having been dismissed for al-legedly having breached the terms of her employmentby talking to the media.”

BACKGROUND4 Ms Clayton worked night shift from 4am until noon. On

9 June, 2001 she arrived at work and heard from fellowemployees a rumour of an alleged sexual assault on thegrounds of Burswood Resort. At 8:30am she telephonedher husband to awaken him as she had meant to set thealarm for him. During that conversation she advised himof the alleged sexual assault. Later that morning shereceived a message to call him and did so on break atabout 10:30am. He advised her that he had approachedChannel 7 and Channel 7 wanted to interview her aboutthe alleged sexual assault. He gave her a contact numberfor a Ms Heather McDonald, a Channel 7 reporter, andMs Clayton contacted and arranged to meet her atHamburger Hill (a location behind the Dome) at the endof her shift. Ms Clayton was interviewed on camera afterher shift and the story containing her interview went toair as the lead story on Channel 7 that night. The story ofthe alleged sexual assault was also aired without anycomment by the employee on Channel 9 and ABC.

5 The comments by Ms Clayton that were aired on Channel7 [Exhibit HM1 & HMR1] were as follows—

“It raises an alarm in us, that says, Oh my goodnessif it can happen to someone out there it can happento us, any time” and again “Security is one depart-ment that has had staff cutbacks in, and there justaren’t enough security officers to go around such alarge resort”.

6 The program aired on a Saturday evening. Ms Claytoncontinued to work her shifts and did not hear anythingfrom management until approximately half an hour priorto the finish of her shift on the following Tuesday, 12June 2001. She was approached on the floor of the casinoto attend an interview in Mr Simmons’ office. MrSimmons and his assistant Ms Cheryl Sproul intended toask Ms Clayton various questions about her Channel 7interview. Ms Clayton refused to answer questions andleft the office. She later returned to the office and aninterview of sorts was conducted.

7 Ms Clayton was not on shift the following Wednesdayand Thursday. She was contacted on the Thursday toattend a formal interview with Mr Simmons on Friday,15 June 2001. Present at that interview were Mr Simmons,Ms Sproul, Mr Shanti DeSilva, a union delegate and MsClayton. Ms Clayton was also interviewed on 18 and 19June 2001. Present at both the subsequent interviews wereMr Simmons, Ms Drimatis, Senior Workplace RelationsOfficer, Mr DeSilva and Ms Clayton. The interviews on15, 18 and 19 June 2001 were all taped by Ms Claytonand transcribed. The transcripts of these interviews are at[Exhibits LMC11, LMC12 and LMC13]. It should besaid that Ms Clayton was on suspension with pay at thetime. She was suspended by Mr Simmons on 12 June2001 for insubordination, having failed to answerquestions regarding the Channel 7 interview. On 18 June2001, Ms Clayton was asked to show cause why sheshould not be dismissed. On 19 June 2001, following herinterview she was asked to wait while her answers wereconsidered. She was then advised by Mr Simmons thatshe would be dismissed on notice with effect from 5pmthat day.

8 In parallel with this process there was an exchange ofcorrespondence between the applicant union and therespondent and various telephone calls between Mr Welchfor the union and Mr Kennedy, the Human ResourcesManager, for the respondent. The union sought pursuantto clause 39 of the Burswood International Resort CasinoEmployees’ Industrial Agreement 2000 to prevent anytermination while the dispute was being negotiated. Thismatter was argued before the Commission in conferenceand my reasons appear above.

CREDIBILITY9 The witnesses called by the applicant were Ms Clayton;

Ms Heather McDonald, Channel 7 reporter; Ms LeahRamos-Tolang, a croupier with Burswood for about 7years; Ms Linda Waterhouse, a croupier with Burswoodfor about 5 years; Mr John Welch, a union official withthe applicant; Mr Shanti DeSilva, an inspector withBurswood who has worked there for more than 15 years,and a union delegate; and Mr Robert Clayton, themember’s husband.

10 The witnesses for the respondent were Mr Paul Simmons,General Manager, Games; Ms Cheryl Sproul, CasinoTraining and Development Manager; Mr BarryHildebrand, Head of Security, Burswood; and Ms Julie-Anne Cameron, Public Relations Manager, Burswood.

11 I consider that each of these witnesses have come forwardto the Commission and given an honest andstraightforward account of events as they remember them.I do not have a difficulty with the credibility of any of thewitnesses except to say that the evidence of Ms Claytonunder cross-examination must be treated with somecaution. Clearly many questions which would have beenstraightforward to answer were treated with somehesitancy and reluctance. This is particularly so in relationto questions concerning the company’s policies andprocedures and her knowledge of some events which werepublicised around Burswood and by the union.

THE ISSUES12 There were a range of issues canvassed in submissions

by the parties and covered in evidence. The central issue,however, is that Ms Clayton was dismissed for breach ofher contract of employment. Her contract of employmentrequired her to comply with the policies and practices ofthe respondent. The policy in question [LMC 10] is atSection 8 of the Employee manual and states in part—

“DISCIPLINARY PROCEDURESThese disciplinary procedures form an integral partof your employment conditions. They are designedfor the mutual benefit and best interests of both theemployer and employee. Clarification of any pointcan be provided by your Department Head or theHuman Resources Department.Staff who do not comply with Company rules, poli-cies and procedures or acceptable standards ofperformance, as outlined below, will be subject tothe Company disciplinary policy.


Contravention of one or more of the following rulesand regulations will give rise to disciplinary action.(This list is not to be regarded as exhaustive)…….3. Disclosure of information against the Compa-ny’s interest to unauthorised persons.”………….DISCIPLINARY PROCEDURE FOR SERIOUSOFFENCES

1. You may be immediately suspended from dutywith pay. An investigation of the facts will beconducted by your Department Head. Duringthis time you will be asked to state your caseand advance any extenuating circumstances.

2. On completion of the investigation and de-pendent on the results, the following actionmay be taken—

(a) Exoneration of the person concerned(b) A written warning(c) Demotion(d) Dismissal

3. In the case of a written warning being issuedan investigation will be carried out and youwill be advised of the result of that investiga-tion. An employee has the right to have anotheremployee present when the results of the in-vestigation and written warning are issued.The nature of the offence and the possibleconsequence of any further offences will benotified to the employee. Written confirma-tion of the warning will be sent to theemployee and a copy placed on their personalfile.”

13 Although there was some evidence given which went toconsiderations of Ms Clayton’s performance the partiesagree that performance was not in issue in this matter.Transcript at Page 122 clarifies this ground—

“MR LE MIERE: Well, if I can put it this way: wewould be happy for all this matter to be excised onthe basis that the applicant is not—does not seek toput anything in the nature of her performance, record,and so on. If it’s put up in any way that the dismissalwas in part unfair, because of her past record, or her14 years service, then we feel obliged to answer thatmatter. However, if the applicant does not put for-ward such a contention then we are content to leavethe matter.

MR ROSALES-CASTANEDA: I must justclarify for the sake of the proceedings, that if thereisn’t a contention to be made about her records andany warnings, the only thing we’re saying is thatshe hasn’t received any warnings in respect of con-tacts with the media or comments that she had madein the media prior to the 9 June, that’s the only thingthat may be relevant. But the rest of the documents—- I scanned them quickly this morning and not readthem in detail, but I don’t think they have any alle-gation of a warning in respect of contact with themedia.

WOOD C: All right. Well, can I put it in theseterms, and see whether I can get agreement for thesake of expediting the matter, and that’s all I’m do-ing it for: is it agreed between the parties that aprevious performance is not in question, for the sakeof the matter I need to decide? And then secondly,that there has been no warning or reprimand in re-spect of earlier contact by Ms Clayton with media?

MR ROSALES-CASTANEDA: I’m quitehappy with the two parts, yes.

MR LE MIERE: Yes, all right. Commissioner,I have already put to Ms Clayton that Mr Simmonsspoke to her about not contacting the Gaming Of-fice, and I will lead evidence from Mr Simmons aboutthat, that is the extent of any evidence of what mightbroadly be called the “prior warnings”. That’s as faras we go.”

14 Evidence that went to the safety and security of patronsand staff was led. Leaving to one side the evidenceregarding whether this issue was raised and resolved inthe Health and Safety Committee, the direct evidence goesto an assault and theft on Ms Ramos-Tolang in November2000, the absence of a security escort for Ms Waterhousewhen requested in December 2000, Ms Clayton’s viewson security and the extent of security arrangements andstaffing as evidenced by Mr Hildebrand. The incidentinvolving Ms Ramos-Tolang occurred in the patron’scarpark near the Dome. It was very unsettling for her andshe has since parked in the staff carpark. She did not parkin the staff carpark that day due to her own convenienceand did not ask for a security escort as she did not thinkabout it. The incident involving Ms Waterhouse was abreach of procedure by the security staff involved andMs Waterhouse was concerned about the incident. Thematter was investigated and Ms Waterhouse received anapology. She has asked for a security escort on otheroccasions and received one. The evidence of MrHildebrand goes to the security arrangements atBurswood, the improvements that have been made tosecurity, and the level of staffing for security which hesays has only been reduced by the redundancy of onemanagement rank. Based on this evidence it is clear thatwhilst there are understandable concerns about personalsecurity by staff at times at the Burswood complex, thereare also extensive arrangements in place to address thesecurity risks to staff and patrons. There is no adversefinding that can be made about the level of security atBurswood based on this evidence.

15 Of greater relevance is the clear evidence that there hasnot been a reduction in the operational component ofsecurity at Burswood as indicated in Ms Clayton’scomments during the television interview. It should benoted that it is common ground that the alleged sexualassault of a patron on 9 June 2001 was, followinginvestigation by the Police, found not to be accurate.

16 I do not need to deal in detail with the evidence of MsMcDonald or Mr Clayton. It is clear from their evidence,and that of Ms Clayton, that the initial approach was madeby Mr Clayton to Channel 7 out of his concern from theconversation he had that morning with his wife about thealleged sexual assault. This was followed up by MsMcDonald and responded to by Ms Clayton. Therespondent does not say that Ms Clayton was wilfullyacting so as to damage her employer in her actions ingiving the interview. They say her actions were consideredand deliberate. The evidence of Ms McDonald and MrClayton goes to the fact that Ms Clayton herself did notinstigate the train of events which led to the airing of thestory on television. There is one further aspect of MsMcDonald’s evidence which I will later deal with.

17 The intention of Ms Clayton in giving the interview was onher own evidence to publicise the issues of safety at theBurswood complex. She says this is against a backdrop ofconcerns she had raised with the employer in the Health andSafety Committee as an employee representative. She doesnot believe that the interview was damaging to her employer’sinterests. Let me first deal with the words of the interview.They stand for themselves and convey to me at least animpression that the safety of staff at Burswood is in jeopardyand that the employer has reduced security personnel. Putdifferently the employer has failed to address an alarmingsituation for staff. The respondent argues rightly that a similarimpression of lack of safety could be gained by patrons andpotential patrons of Burswood and hence be detrimental toBurswood’s interests.

18 Ms Clayton is of course in no way responsible for thecontent or context (it being a lead story which alsoreceived promotion on radio) of the complete Channel 7story. Her interview was a small part of that story, albeitthe evidence suggests an important part of the story interms of lending credibility to the story. The news itemalso contained information provided by Burswood abouttheir security efforts. The simple point and the finding Imake is that Ms Clayton acted purposefully to publiciseher views I find also that the nature of her commentswere detrimental to her employer. There is no evidence


of loss of patronage or public concern arising from thenews item. However, I do not consider this necessary asthe words of the interview speak for themselves.

19 Given my finding concerning security at Burswood andthe agreed fact that the alleged sexual assault provedillfounded, Ms Clayton’s comments proved incorrect andpremature. I say this advisedly in the context of theevidence before me. It is not intended to downplay inanyway concerns that staff have or have had for theirpersonal security. It is simply that, on the evidence beforeme, the measures taken by management to addresssecurity issues are extensive.

20 Ms Clayton expressed the view that as a delegate she wasentitled to publicise the security concerns of staff. Indeedthis is part of her role as a delegate and was part of herrole as a representative on the Health and SafetyCommittee. The challenge to her actions is the manner inwhich she acted and whether it breached her contract ofemployment. Ms Clayton did not contact the union officeor a union official before agreeing to the interview. Shesays that she could not do so as the day in question was aSaturday and the office was closed. Whilst it clearly wouldhave been more prudent for her to contact a union officialand have the matter raised with management, given thetrain of events which followed, this is not central to myreasoning and it is not necessary to go past a commentthat Ms Clayton believed that she was acting as a uniondelegate, and I accept this evidence. She consistently putthis view to Mr Simmons after the event.

21 The evidence of Ms Clayton at hearing was that she knewthat company policy was that she should not makedetrimental comments about the company. At the firsttaped interview of 15 June 2001 with Mr Simmons, MsClayton in answer to one of his questions stated—

“As an employee basically that you cannot make anydetrimental reference to the company.”

She made a distinction between being an employee and aunion delegate. When asked previously whether she wasaware of company policy she stated—

“I am aware as an employee but as you are aware Iam an active member of BRUE and a Union del-egate, and given the circumstances that quite often Ispeak my piece representing the Union, that is ex-actly what I believed my position was making mycomment and I did make it clear to the interviewer, Ihad quite a lengthy conversation with her that I wasactually a Union delegate.”

22 Mr Le Miere for the respondent took the Commission toa range of authorities dealing with the rights and dutiesof shop stewards. I do not go to all the authoritiescanvassed except to say that I concur with the reasoningexpressed by Senior Commissioner Fielding inConstruction, Mining, Energy, Timberyards, Sawmills andWoodworkers Union of Australia—Western AustralianBranch v BHP Iron Ore Pty Ltd and Matt Willie v BHPIron Ore Ltd 80 WAIG 4515 as follows—

“12. I am prepared to accept that Mr Willie’s conductwas, in part at least, driven by a desire to advancethe interests of the members of the ApplicantUnion on his shift. Though the law expressly pro-tects an employee from being penalised unjustlyor otherwise victimised for his “participation inlegitimate activities as a union representative” thatrepresentative status is not “a magic cloak con-ferring on the wearer immunity from liability forwrongful actions”. (see: In re Dispute at BrokenHill Pty. Co. Ltd Steel Works, Newcastle (No. 2)[1961] AR (NSW) 48, 66; and see too: Amalga-mated Metal Workers Union v ElectricalCommission (NSW) (1989) 28 IR 155, 177). In-deed, as the Commission observed in WesternAustralian Amalgamated Society of RailwayEmployees Union of Workers v WA GovernmentRailways Commission (1966) 46 WAIG 898 ashop steward is first and foremost an employeeand he must carry out his representative duties ina way which does not impinge upon his dutiesand obligations under his contract of employment

(see too: Owens v Swan Portland Cement Lim-ited (1993) 73 WAIG 1605). Mr Willie was notpenalised for raising matters of concern but be-cause of the insubordinate and offensive mannerin which he persisted in doing so despite repeatedwarnings that this was unacceptable.”

23 This argument was not challenged effectively by theapplicant. It is clearly not adequate or right for Ms Claytonto potentially breach her contract of employment underthe cloak of acting as a union delegate.

24 There was considerable evidence given about thepublicising of the employers policies and other notices.It is common ground that the policies resided in theBurswood International Resort Casino EmployeeHandbook [Exhibit LMC 10] and the Code of Ethics andGaming Practice [Exhibit CPS2] of which all staff weregiven a copy. The evidence also covered other avenuesfor information being the information kiosk and the staffnotice boards that exist near the staff entrance and thecanteen area. Further, the evidence went to documentswhich are signed for and collected by employees, albeitMs Clayton in the main refused to sign for documentsbut still collected them.

25 The key notice referred to by the respondent is [ExhibitLW1] which is a staff notice of 29 December 1999reminding staff of the policy that—

“employees are not permitted to provide informa-tion that is confidential, sensitive or not in the bestinterests of the Company, to media or third parties.”

26 As stated, I doubt Ms Clayton’s evidence about an absenceof knowledge of the companies policies and publications.Specifically, though I find that she was aware of her termsand conditions of employment. Her evidence is that sheknew she could not say things detrimental to her employeras an employee.

27 The other issue in contention is whether Ms Clayton hadknowledge of “the fishy affair”. This is an instance wherean employee was dismissed from Burswood, in early2001, for advising a friend that a supply of seafood hadnot been refrigerated for a period of time. The friendworked in the media and the story was made public. Theemployee was then dismissed. I do not recite all theelements of this matter as they are not relevant to MsClayton’s matter, other than the argument for therespondent that Ms Clayton must have known of this eventand hence the attitude of the employer to actions of anemployee which were detrimental to the employer’sinterests. The earlier matter was settled in conferencebefore myself. Ms Clayton denies knowledge of “the fishyaffair” and I find her evidence improbable given the activeinvolvement she exhibited in union business.

28 Much was said in evidence about the employer’s evincedattitude to speaking out against the employer. MsClayton’s evidence is that she considered her earlierstatements against the employer to be on par with hercomments in the interview with Channel 7 but that shehad not been spoken to or disciplined by management inrelation to these comments. This evidence wasunchallenged, except the respondent says that there is noevidence to suggest that the company was aware of thesecomments. The applicant tendered as exhibits severalarticles which included comment by Ms Clayton.

29 Exhibit LMC 1 states—“BRUE president Leanne Clayton said the union hadbeen formed because of exasperation with the LTUwhen morale among staff was at an all-time low.“For a long time the LTU has not been here for us,so we don’t want it here any more,” she said”Ms Clayton said BRUE hoped to tackle with man-agement passive smoking at the casino and otherissues. A more contented and productive workforcewas in the interests of management.“This will probably come as a bolt out of the blue tomanagement, but we are looking for a win, win situ-ation. At the moment it is a win, loss situation and itis the staff that are losing,” she said”(THE WEST AUSTRALIAN Page 26 of 31 July1998)


30 Exhibit LMC 3 states—“Burswood employee and Miscellaneous WorkersUnion representative Leanne Clayton said yesterdayworkers at the gaming tables were exposed to con-stant smoke and the Government and Casino weremore concerned about profits than their health.Workers wanted the union to sue the Governmentfor discriminating against hospitality industry work-ers.Under the Government’s legislation Burswood willhave to restrict smoking to 50 per cent of its gamingfloor—but 40 per cent is already smoke free.”(THE WEST AUSTRALIAN Page 34 of 19 Decem-ber 1998)

31 Exhibit LMC 4 states—“Burswood Resort Union of Employees (BRUE)section head Leanne Clayton said “our concern isthat exempting Burswood from regulations meansthat workers’ health is dependent on the goodwill ofmanagement and that’s not fair. Workers at Burswoodand in the hospitality industry generally deservequality air as much as any other employees and forthe Government and employers to deny them this isdiscriminatory.”

32 There was also a video of a television interview whichMr DeSilva gave in 1991 where he made quite stronglycritical comments about his employer in relation to a lackof control of smoking in the workplace.

33 In my opinion I would certainly view the reportedcomments of Ms Clayton as exhibited in LMC 3 as beingon par with her comments to Channel 7 in terms of beingadverse to her employer, and I so find. Ms Clayton, inDecember 1998, accused the company of being moreconcerned about money than employees health. On 9 June2001, she accused the company of cutting security staffin the face of staff concerns for personal safety. Whetherthey would have the same potentially detrimental effectcomparing a 6 o’clock television news story to a dailynewspaper article at page 34 is arguable. But this is nothow I believe the matter should be gauged. It is thecomments themselves that I assess and the fact that theyhave been made to a daily media outlet with widecirculation.

34 Ms Clayton also made a distinction in her knowledge ofthe policy that she was not aware of a prohibition ontalking to the media as opposed to not saying anythingdetrimental to the company. I make nothing of thisdistinction. The transcripts of the meetings of 15, 18 and19 June 2001 speak for themselves. There wasconsiderable debate about the process used, namely beingcalled in to answer questions, who would be therepresentative, the taping of the interviews and the issueof insubordination. Ms Clayton was advised on 18 Junethat she should give reason why she should not bedismissed and a meeting was arranged on 19 June, 2001for this purpose. Up to that point on 18 June, 2001 therehad been comparatively less discussion about theinterview other than Ms Clayton did not make theapproach, she thought she was operating as a delegate,Channel 7 did not report all her comments, her commentsin her view were not detrimental to the company and shehad made such comments at the Health and SafetyCommittee. She was asked whether she knew about theterms of her contract of employment.

35 Mr Simmons gave evidence that he saw the tail end ofthe news report on the Saturday night and was contactedby another Burswood employee about it. He viewed theinterview on the Tuesday after his initial interview withMs Clayton. Tuesday 12 June, 2001 was his first availableopportunity to raise the Channel 7 interview with MsClayton. He wanted to interview her before her shift endedand as she was about to take a rostered day off. He couldnot interview her earlier that day as there were othermatters to attend to. Ms Clayton objected to the requestand then instruction to attend for interview in MrSimmons office and then later refused to answerquestions. She asked for Mr De Silva to be present as her

representative and this was refused as he was not at work.She did not wish to have an alternate representative. Heractions led to her being suspended for insubordination toawait contact from Mr Simmons as to a further interview.Ms Clayton complained at the next interview of not havingbeen given on, 12 June, an appropriate notification of themeeting.

36 At the meeting on 19 June, 2001 the issue ofinsubordination was still being addressed. The processof calling in Ms Clayton on 12 June 2001 was still beinghotly debated. At that time Ms Clayton refused to tell MrSimmons and Ms Drimatis how Channel 7 came tointerview her. Her evidence at hearing was that she soughtto protect her husband. She also raised an issue to dowith her personal situation (related to her family) of whichshe indicated that the staff counsellor and Cheryl Sproulwere aware. This she said made her extremely emotionalin any stressful situation. She raised also her 14 years ofservice and that she had previously made publiccomments. Ms Clayton maintained that her commentswere not derogatory towards the company. Ms Claytonstated—

“The problem is that no enough staff will come for-ward and tell you this. The problem is as so manytimes before I end up saying it and now the reper-cussions on me have been met. But at no time did Imake any comments to a television station that Ibelieved wasn’t unsuitable, nor did I believe that Iwas making it in the capacity which was in breachof my terms and conditions of Employment.” [Ex-hibit LMC 13 pg 16]

37 The meeting adjourned for 45 minutes whilst MrSimmons and Ms Drimatis considered Ms Clayton’sresponse. On resumption Mr Simmons stated—

“Now Leanne I have reviewed your responses to ourquestions. Your response to our request for you toshow reason why you should not be terminated. Ihave to say that after having given considerablethought and consideration I don’t accept the reasonsthat you supply. I find that I have lost confidence inyou as an employee, and in particular as a licensedemployee in your capacity as a Dealer to act in aresponsible and loyal manner to the company. It istherefore that accordingly I am terminating youremployment with this Company. That will be effec-tive from 5.00pm this evening.”

Ms Clayton responded—“OK. I must say that I am disappointed in your out-come because given my fourteen years here I don’tconsider that you did give all consideration.” [Ex-hibit LMC 13 pg 17]

38 Lastly, in relation to the evidence, Ms Cameron gaveevidence that Burswood pays Media Monitors to providea daily summary of relevant media reports. Ms Clayton’sunequivocal evidence [Transcript page 128] under cross-examination was that with the benefit of hindsight, in asimilar situation, she would do the same again.

39 I have not given full consideration to Ms Clayton’sevidence about family difficulties. There is no evidenceto suggest that these factors led her to give the Channel 7interview, or that she was in a state of mind whereby shewas not thinking clearly at the time of giving the interview.Her personal circumstances were only raised in generalterms in mitigation at the meeting of 19 June, 2001.

40 I do not consider that Mr Simmons, Ms Sproul and MsDrimatis acted unfairly in the procedures which theyadopted to investigate and decide upon Ms Clayton’stermination. Ms Clayton complained at the time and inevidence about the timing of the meetings and the lack offorewarning about the meeting of 12 June, 2001. Whilsther suspicions may have been aroused given two managerswanted to speak to her, her own evidence is that she knewshe should not make comments detrimental to thecompany, hence she had every reason to consider that MrSimmons had a matter of some concern which he wantedto raise with her. She was not refused a representativewhen she asked for one. I do not consider the timing ofthe meeting, ie about half an hour before the completion


of her shift, to be oppressive or unfair or engineered inanyway to disadvantage her. I accept Mr Simmons’evidence as to the reasons for the timing of the meeting.Ms Clayton was given fair opportunity to present herreasons and to put her case. She chose not to provide heremployer with all the information which they sought,namely who approached Channel 7.

41 Likewise, I do not find that there has been a breach ofclause 39 of the Industrial Agreement. This ground wascovered in part on the application for an interim order forreinstatement. Whereas, I do not accept the respondent’sconstruction of the clause as stated in [Exhibit JW6], Ido not consider the clause reads or operates so as to negatethe employer’s right to terminate the services of anemployee.

42 I should say also that the dismissal is in no way unlawful.This was not argued by the applicant at hearing.

43 The issue that I turn to, and which I have considered atsome length in reviewing the evidence and submissions,is whether the penalty applied is too harsh. The contextin which I have considered this is whether, given herprevious media comments, and an absence of disciplinaryaction by the employer, or any action at all, should shehave been dismissed on notice.

44 Mr Le Miere identified the issue in his closingsubmissions as to whether the applicant had proven thatthe rules were applied by the respondent inconsistentlyand unfairly. He says that the character of the commentsare not comparable, they do not disclose any informationconcerning Burswood. With respect to [Exhibit LMC3] Idisagree. He says that there is no evidence that thecompany knew of these comments. Ms Cameron’sevidence about daily monitoring leads me to find that itis more probable that the company did know of thesecomments. Albeit it was not a 6 o’clock television newsitem, it was a fairly prominent article in the dailynewspaper and a difficult matter that received somepublicity.

45 The evidence of Ms Clayton which is unchallenged andwhich I accept is that she was not disciplined or rebukedfor her earlier media comments. She was challenged at alater date about a letter of complaint she wrote to theOffice of Racing and Gaming. This may fit within theterms of the employer’s policy but is qualitatively differentto the matters in question here.

46 Given these findings the question for me is whether thedismissal of Ms Clayton is harsh based on this incident,in that she had earlier given interviews to the mediaunchallenged, and on occasion made detrimentalcomments which I find on par with her comments madeto Channel 7.

47 The test to be applied is that in Undercliffe Nursing Home—v- Federated Miscellaneous Workers’ Union of Australia,Hospital, Service and Miscellaneous, WA Branch 65 WAIG385. Kennedy J at p 387 of the decision states—

“Nevertheless, it has long been acknowledged thatthe power to order reinstatement is one to be exer-cised only where the employer’s action is harsh orunjust in relation to that employee. No doubt it could,in such a case, be said that the employer was notsimply exercising his managerial prerogative. Thefollowing principle, stated in In re Barrett and Wom-en’s Hospital, Crown Street (1947) A.R. 565, at pp.566-567 was cited with approval by Walsh J. in NorthWest County Council v. Dunn (1971) 126 C.L.R.247 at p. 262—

It is not the province of the Commission, inthe exercise of the jurisdiction conferred on itby the Industrial Arbitration Act, to take overthe functions of the employer in relation tothe selection and retention of employees, andit will intervene only when its intervention isnecessary to protect an employee against anunjust or unfair exercise of the employer’sright of dismissal, a right which is as funda-mental in the relationship of employer andemployee as is the right of an employee toleave his employment.

As Walsh J. went on to stress at p. 263, it is not aquestion as to the parties’ respective legal right, buta question as to whether the legal right of the em-ployer has been exercised so harshly or oppressivelyagainst the employee as to amount to an abuse ofthat right. He accepted, citing McKeon J. in WesternSuburbs District Ambulance Committee v. Tipping(1957) A.R. 273, at p. 280, that a proper test is toask the question: “Has there been or has there notbeen oppression, injustice or unfair dealing on thepart of the employer towards the employee?”

48 Pursuant to section 26 of the Act the Commission has tohave regard to “equity, good conscience, and thesubstantial merits of the case”. I find that on balance MsClayton’s dismissal was harsh.

49 This has been a difficult decision to reach given that MsClayton did breach the terms and conditions of hercontract. Her actions were wrong. They were also wronglypremised on a view that she was entitled to give theinterview as she was a union delegate. Ms Clayton didnot do herself any favours by refusing to answer questionsher employer quite correctly sought to put to her. Shealso maintained in the witness box that she would do thesame again with hindsight. So as to leave the applicantand Ms Clayton in no doubt as to the error of her actions,given the circumstances of this matter and my decision, Iwould consider that should Ms Clayton repeat her actions,and in so doing, breach her contract, her dismissal wouldbe justifiably inevitable.

50 Having said that, I make it clear that my judgment is notbased on a view that Ms Clayton should be given anotherchance. Even if that were an appropriate way of viewingthis matter, and it is not, her attitude to her interviews of12, 15 and 18 June 2001 and her evidence at hearing,would not warrant that approach.

51 The Commission should not lightly step in to overturnthe employer’s judgment. However, what should havebeen balanced by the employer is the fact that she hadpreviously spoken out as a union delegate/employee andnot been corrected, challenged or disciplined by theemployer. Yet her contract was the same at that time. Thediscipline policy of the employer does not mandatedismissal in such circumstances. It provides for a rangeof possibilities and whilst I consider that Ms Claytonworked on the wrong premise, that as a union delegateshe was allowed to do what she did, the penalty appliedto her was harsh, given the absence of previousdisciplinary action for speaking out.

52 Mr Simmons says that he had lost confidence in her as anemployee. There was nothing to stop him fromappropriately disciplining Ms Clayton and placing a finalwarning on her file. This would have been a moreappropriate and a just course of action.

53 The respondent says at paragraph 25 of their closingsubmissions that reinstatement would not be practicableor equitable. They say—

“Ms Clayton gave evidence at a time when she wasfully aware of the company policy and the compa-ny’s attitude to her TV interview. In her evidenceMs Clayton—

(a) Maintained that he conduct did not breachcompany policy or her contract of employ-ment;

(b) Said that if similar circumstances arose againshe would do the same thing.”

54 Ms Clayton wrongly distinguished her role as a delegateand employee. Even though at hearing she said she woulddo it again I consider that that is now not likely. If I amwrong on this, I have spelt out my view, namely thatdismissal would then be justifiably inevitable.

55 I do not consider that based on this one breach MsClayton’s reinstatement can be said to be impracticable.The passage of time is not so great as to make it difficultfor her to return to her job.

56 I would therefore order reinstatement as the remedy.




HOSPITALITY ANDMISCELLANEOUS WORKERSUNION, WESTERN AUSTRALIANBRANCH, APPLICANTv.BURSWOOD RESORT(MANAGEMENT) LIMITED,RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED MONDAY, 10 SEPTEMBER 2001FILE NO CR 153 OF 2001CITATION NO. 2001 WAIRC 03721_______________________________________________________________________________

Result Applicant’s member dismissed harshly;reinstatement ordered.

RepresentationApplicant Mr J Rosales-Castaneda, of Counsel

Respondent Mr R LeMiere, of Queens Counsel andwith him Mr H Downes and Mr B DiGirolami, of Counsel

_______________________________________________________________________________

Order.HAVING heard Mr J Rosales-Castaneda, of Counsel on be-half of the applicant and Mr R LeMiere of Queens Counseland with him Mr H Downes and Mr B Di Girolami of Coun-sel on behalf of the respondent, the Commission, pursuant tothe powers conferred on it under the Industrial Relations Act,1979, hereby—

(1) DECLARES that the applicant’s member, Ms LeanneClayton, was harshly dismissed by the respondent;and

(2) ORDERS that Ms Clayton be reinstated to her nor-mal roster as from 13 September 2001.


CONFERENCES—Notation of—

Parties Commissioner/ Date Matter ResultConference Number

Australian Workers’ Union BHP Iron Ore Ltd KENNER C 18/06/2001 Denial of access of ConcludedC128/2001 union organiser

Australian Workers’ Union BHP Iron Ore Ltd KENNER C 11/06/2001 Use of contractors ConcludedC129/2001

Australian Workers’ Union BHP Iron Ore Ltd KENNER C 11/06/2001 Refusal to offer ConcludedC130/2001 training

Australian Workers’ Union Co-Operative Bulk WOOD,C N/A Alleged unfair DiscontinuedHandling Limited CR106/2001 dismissal

Australian Workers’ Union Henry Walker Eltin KENNER C 30/11/2000 Alleged dismissal ReferredC282/2000 of employee

Australian Workers’ Union Maver Contracting KENNER C 5/12/2000 Alleged unfair ReferredC289/2000 dismissal

Australian Workers’ Union Maver Contracting KENNER C N/A Alleged unfair DiscontinuedCR289/2000 dismissal

Australian Workers’ Union SSL Nationwide Facilities WOOD,C 8/06/2001 Termination ConcludedManagement C97/2001

Australian Workers’ Union Victoria Park Bowling WOOD,C 19/03/2001 Termination ConcludedClub (inc) C71/2001

Australian Workers’ Union Wayne Carter t/as WOOD,C 9/11/2000 Termination of ReferredShearbody and another C287/2000 19/12/2000 employment

2/04/2001Australian Workers’ Union Cockburn Cement Ltd GREGOR C 4/07/2001 Industrial action Concluded& Others C161/2001Automotive, Food, Metals, ABB Engineering GREGOR C 24/08/2001 Entitlements ConcludedEngineering, Printing and Construction Pty Ltd C191/2001Kindred Industries UnionAutomotive, Food, Metals, BHP Iron Ore Pty Ltd KENNER C 10/05/2001 Stand down of ReferredEngineering, Printing and C108/2001 14/05/2001 union memberKindred Industries UnionAutomotive, Food, Metals, Cargill Salt Australia KENNER C N/A Use of contractors ConcludedEngineering, Printing and Limited C165/2001Kindred Industries UnionAutomotive, Food, Metals, Eagle Aircraft Pty Ltd GREGOR C 6/08/2001 Alleged termination ConcludedEngineering, Printing and C166/2001 9/08/2001Kindred Industries Union 15/08/2001Automotive, Food, Metals, Kiam Corporation Ltd GREGOR C 10/07/2001 Living away from ConcludedEngineering, Printing and C150/2001 home allowanceKindred Industries UnionAutomotive, Food, Metals, Simsmetal Limited GREGOR C 1/08/2001 Entitlements ConcludedEngineering, Printing and C164/2001Kindred Industries Union



Automotive, Food, Metals, West Australian WOOD,C 15/02/2001 Dispute settlement ConcludedEngineering, Printing and Newspapers Limited C21/2001 procedure in theKindred Industries Union agreementAutomotive, Food, Metals, Workpac (WA) Pty Ltd BEECH C N/A Breach of Contract DiscontinuedEngineering, Printing and CR379/1998Kindred Industries UnionBreweries and Bottleyards Kirin Australia Pty Ltd WOOD,C 24/07/2001 Dispute over terms ReferredEmployees’ Industrial Union C169/2001 14/08/2001 and conditions of

employment of unionmember that are indisputation

Builders’ Labourers, Painters AIS Refractory Pty Ltd GREGOR C 13/06/2001 Time and wages Concluded& Plasterers Union C124/2001 13/06/2001 recordsBuilders’ Labourers, Painters Dtmt Construction GREGOR C 28/06/2001 Right of entry and Concluded& Plasterers Union Company C148/2001 wagesBuilders’ Labourers, Painters Foothills Painting Services GREGOR C 10/07/2001 Right of entry Concluded& Plasterers Union Pty Ltd C160/2001Builders’ Labourers, Painters Jazz Star Investments GREGOR C& Plasterers Union Pty Ltd trading as C83/2001 17/04/2001 Alleged unfair Concluded

Dependable Roofing terminationBuilders’ Labourers, Painters Jovista Pty Ltd T/A GREGOR C 5/09/2001 Alleged non-payment Concluded& Plasterers Union SDR Construction C202/2001 of redundancy payBuilders’ Labourers, Painters Lomma Constructions GREGOR C 11/07/2001 Non provision of Concluded& Plasterers Union C136/2001 amenitiesBuilders’ Labourers, Painters Mills Signs Pty Ltd GREGOR C 3/07/2001 Alleged fore- Concluded& Plasterers Union C155/2001 shadowed dismissalsBuilders’ Labourers, Painters Novacoat Pty Ltd GREGOR C 23/05/2001 Non-employment Concluded& Plasterers Union C119/2001 28/06/2001 of union memberBuilders’ Labourers, Painters Novacoat Pty Ltd GREGOR C N/A Re-employment of Concluded& Plasterers Union C170/2001 a union memberBuilders’ Labourers, Painters Troubleshooters Available GREGOR C N/A Dispute over alledged Concluded& Plasterers Union C162/2001 underpaymentCivil Service Association Board of Western SCOTT C. N/A Permanent Concluded

Australian Centre for PSAC16/2001 employmentPathology and MedicalResearch

Civil Service Association Chief Executive Officer SCOTT C. 13/06/2001 Payments to ReferredWestern Australian (“WA”) PSAC5/2001 2/07/2001 employeesTourism Commission

Civil Service Association Director General, SCOTT C. 31/07/2001 Attempt to prevent ConcludedDepartment of Agriculture PSAC11/2001 the unlawful and/or

unfair dismissalCivil Service Association Disability Services SCOTT C. 29/06/2001 Negotiations for Concludedof Western Australia Commission PSAC8/2001 4/07/2001 a replacementIncorporated 5/07/2001 agreement

6/07/20019/07/200113/07/200116/07/200117/07/200118/07/2001

Communications, Electrical, ABB Service Pty Ltd GREGOR C 14/05/2001 Alleged ConcludedElectronic, Energy, C104/2001 underpaymentInformation, Postal,Plumbing, and AlliedWorkers UnionCommunications, Electrical, Buttermere Nominees GREGOR C 18/06/2001 Alleged ConcludedElectronic, Energy, Pty Ltd as Trustee for C140/2001 terminationInformation, Postal, the Anderson Unit TrustPlumbing, and Allied trading as NufordWorkers UnionCommunications, Electrical, G.R.Services, A GREGOR C 9/08/2001 Termination ConcludedElectronic, Energy, Division of Ralph.M. C188/2001 10/08/2001Information, Postal, Lees Pty LtdPlumbing, and AlliedWorkers UnionCommunications, Electrical, Linde Materials GREGOR C 19/06/2001 Alleged unfair ConcludedElectronic, Energy, Handling Pty Ltd C144/2001 terminationInformation, Postal,Plumbing, and AlliedWorkers UnionCommunications, Electrical, Tyco International Ltd., GREGOR C 27/03/2001 Alleged ReferredElectronic, Energy, Haden FM Pty Limited C76/2001 terminationInformation, Postal, (previously BrookesPlumbing, and Allied Maintenance Service).Workers UnionCommunications, Electrical, Tyco International Ltd., GREGOR C N/A Alleged unfair DiscontinuedElectronic, Energy, Haden FM Pty Limited CR76/2001 dismissal/Information, Postal, (previously Brookes redundancyPlumbing, and Allied Maintenance Service).Workers Union



Construction, Mining, AIS Refractory Pty Ltd GREGOR C 13/06/2001 Time and wages ConcludedEnergy, Timberyards, C124/2001 13/06/2001 recordsSawmills and WoodworkersUnionConstruction, Mining, Energy, Albany Spinning Mills GREGOR C N/A Alleged ConcludedTimberyards, Sawmills and C149/2001 redundanciesWoodworkers UnionConstruction, Mining, Energy, Carl Anthony Perrott GREGOR C 3/07/2001 Sequence of ConcludedTimberyards, Sawmills and and Sandra Lee Perrott C154/2001 redundanciesWoodworkers Union Trading as C & S PerrottFederated Brick, Tile and Metro Brick (Armadale) GREGOR C 25/07/2001 Redundancies ConcludedPottery Industrial Union C172/2001Financial Sector Union Commonwealth Bank BEECH C 20/07/2001 Union member Concluded

of Australia C176/2001 has been informedthat the Respondentintends to retrenchher.

Hospital Salaried Officers Brightwater Care Group SCOTT C. 29/01/2001 Interpretation of an ConcludedAssociation (Inc) C8/2001 agreementHospital Salaried Officers Metropolitan Health SCOTT C. 31/10/2000 Overtime and back ConcludedAssociation Service Board—Sir PSAC18/2000 12/12/2000 pay allegedly owed

Charles Gairdner HospitalHospital Salaried Officers The Metropolitan SCOTT C. N/A Incorrect ConcludedAssociation Health Service Board PSAC16/2000 classificationIndependent Schools Roman Catholic KENNER C 5/12/2000 Status of ReferredSalaried Officers’ Archbishop of Perth C302/2000 employmentAssociation Inc & OthersIndependent Schools Roman Catholic KENNER C 5/04/2001 Status of DiscontinuedSalaried Officers’ Archbishop of Perth CR302/2000 14/05/2001 employment forAssociation Inc & Others Ms StirlingLiquor, Hospitality and Ace Auto Clean WOOD,C N/A Employment ConcludedMiscellaneous Workers C185/2001 relationshipUnionLiquor, Hospitality and Airlite Cleaning Pty Ltd BEECH C N/A Termination of Ms ConcludedMiscellaneous Workers C216/2000 Tracey BramholdUnionLiquor, Hospitality and Airlite Group BEECH C 29/02/2000 Unfair, unjust and ConcludedMiscellaneous Workers C326/1999 oppressive dismissalUnionLiquor, Hospitality and Burswood Resort WOOD,C 10/08/2001 Redundancy ConcludedMiscellaneous Workers (Management) Limited C182/2001 paymentsUnionLiquor, Hospitality and Burswood Resort WOOD,C 6/02/2001 Contracting out ConcludedMiscellaneous Workers (Management) Ltd C22/2001 hotel housekeepingUnionLiquor, Hospitality and Burswood Resort WOOD,C 28/02/2001 Ability of members ConcludedMiscellaneous Workers (Management) Ltd C59/2001 to perform rangeUnion of dutiesLiquor, Hospitality and Cannington Community SMITH, C 31/07/2001 Termination of a ReferredMiscellaneous Workers College P & C C158/2001 29/08/2001 union memberUnion Association IncLiquor, Hospitality and Coles Supermarkets WOOD,C 4/07/2001 Alledged unfair ReferredMiscellaneous Workers C151/2001 dismissalUnionLiquor, Hospitality and Education Department KENNER C 1/09/2000 Full entitlements ReferredMiscellaneous Workers of Western Australia C211/2000 1/11/2000 of a permanentUnion employeeLiquor, Hospitality and Mastercare Property SMITH, C 22/08/2001 Dispute over the ReferredMiscellaneous Workers Services (WA) Pty Ltd C157/2001 working hours ofUnion union membersLiquor, Hospitality and Ministry for Culture SCOTT C. 6/07/2001 Sick leave ConcludedMiscellaneous Workers and the Arts C133/2001 entitlementUnionLiquor, Hospitality and Mundaring Pharmacy BEECH C 27/08/2001 Reduction in hours ConcludedMiscellaneous Workers C189/2001UnionLiquor, Hospitality and The Minister for KENNER C 10/05/2001 Employees correct ConcludedMiscellaneous Workers Education C/- Education C96/2001 classificationUnion Department of Western

AustraliaLiquor, Hospitality and Tip Top Bakeries WOOD,C 10/05/2001 Alleged unfair ReferredMiscellaneous Workers C93/2001 15/06/2001 terminationUnion 24/07/2001Meat Industry Employees’ Geraldton Meat Exports SMITH, C 14/03/2001 Unfair dismissal Order IssuedUnion CR4/2001 15/03/2001

4/05/200131/08/2001

Plumbers and Gasfitters City of Stirling SCOTT C. 20/06/2001 Written warning DismissedEmployees’ Union CR78/2001 over the wearing

of uniforms



Police Union Commissioner of Police SCOTT C. 22/06/2001 Approval to reduce ConcludedPSAC6/2001 hours of work

Prison Officers’ Union Attorney General BEECH C 14/12/2000 Staffing situation ConcludedC345/2000 19/12/2000 at Bunbury Regional

PrisonPrison Officers’ Union Hon. Attorney General BEECH C 30/03/2001 Renewal of Concluded

C79/2001 9/04/2001 contracts19/04/2001

Transport Workers’ Union Jordanville Pty Ltd BEECH C N/A Work not being ConcludedC175/2001 allocated to union

member

PROCEDURAL DIRECTIONSAND ORDERS—


INDUSTRIAL RELATIONS COMMISSION.PARTIES GAVIN MICHAEL CANN, APPLICANT

v.BLACKBURNE REAL ESTATE(LICENCEE: JOBURNE PTY LTD,RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED FRIDAY, 31 AUGUST 2001FILE NO. APPLICATION 936 OF 2000CITATION NO. 2001 WAIRC 03663____________________________________________________________________________

Result Interlocutory Order Issued____________________________________________________________________________

Order.WHEREAS on 20th August 2001 the Commission issuedReasons for Decision ex tempore and made Orders that interalia granted liberty to apply to Gavin Michael Cann to vacatehearing dates set for 27th and 29th August 2001; and

WHEREAS the Applicant exercised that liberty on 29th

August 2001 when the Commission heard arguments fromMs H. Ketley (of Counsel) on behalf of the Applicant and MrI. Curlewis (of Counsel) on behalf of the Respondents; and

WHEREAS the Commission announced to the partiesduring the hearing that in the circumstances it was preparedto vacate the hearing dates of 27th and 29th August 2001 andfix the 5th October 2001 for the matter to be heard; and

WHEREAS the Commission also decided that theApplicant file and serve witness statements on which it in-tends to rely at hearing on or before 24th September 2001 andthe Respondent file and serve witness statements on which itintends to rely at hearing on or before 2nd October 2001; and

WHEREAS the Commission has now decided to issueOrders to give effect to this decision.


1. The hearing dates of 27th and 29th August 2001 bevacated.

2. The matter to be heard on 5th October 2001.3. The Applicant file and serve witness statements on

which it intends to rely at hearing on or before 24th

September 20014. The Respondent file and serve witness statements

on which it intends to rely at hearing on or before2nd October 2001.



INDUSTRIAL RELATIONS COMMISSION.PARTIES GAVIN MICHAEL CANN,

APPLICANTv.BLACKBURNE PROPERTIESLIMITED, RESPONDENT


Result Interlocutory Order Issued____________________________________________________________________________

Order.WHEREAS on 20th August 2001 the Commission issuedReasons for Decision ex tempore and made Orders that interalia granted liberty to apply to Gavin Michael Cann to vacatehearing dates set for 27th and 29th August 2001; and

WHEREAS the Applicant exercised that liberty on 29th

August 2001 when the Commission heard arguments fromMs H. Ketley (of Counsel) on behalf of the Applicant and MrI. Curlewis (of Counsel) on behalf of the Respondents; and

WHEREAS the Commission announced to the parties dur-ing the hearing that in the circumstances it was prepared tovacate the hearing dates of 27th and 29th August 2001 and fixthe 5th October 2001 for the matter to be heard; and

WHEREAS the Commission also decided that the Appli-cant file and serve witness statements on which it intends torely at hearing on or before 24th September 2001 and the Re-spondent file and serve witness statements on which it intendsto rely at hearing on or before 2nd October 2001; and

WHEREAS the Commission has now decided to issueOrders to give effect to this decision.


1. The hearing dates of 27th and 29th August 2001 bevacated.

2. The matter to be heard on 5th October 2001.3. The Applicant file and serve witness statements on

which it intends to rely at hearing on or before 24th

September 20014. The Respondent file and serve witness statements

on which it intends to rely at hearing on or before2nd October 2001.




INDUSTRIAL RELATIONS COMMISSION.PARTIES KERRI-ANN CICCHINI, APPLICANT

v.CAPTAIN CHOPPERS PTY LTD ACN00944722 T/AS RED DOT STORES,RESPONDENT


Result Order of 10th July 2001 cancelled____________________________________________________________________________

Order.WHEREAS on 10th July 2001 the Commission made ordersthat the application be discontinued; and

WHEREAS on 3rd August 2001 the Commission receivedwritten submissions from solicitor for the Applicant seekingthat the matter re-opened; and

WHEREAS it is clear from the supporting documentationthat the issues raised by the application had not been resolvedat the time the Order of Discontinuance was issued; and

WHEREAS having considered the matter ex parte the Com-mission has decided that the Order made on 10th July 2001was made in error in that the matter was still alive; and

WHEREAS the Commission has concluded that it is notfunctus officio in the matter and the Applicant is entitled toproceed with the application; and

WHEREAS the Commission while issuing this Order ofcancellation has decided that there should be finality in thematter and for that reason has decided that if the Applicantdoes not advise the Commission of the disposition of the ap-plication by 6th September 2001 the matter will be listed toshow cause why it should not be dismissed for want of pros-ecution.

NOW THEREFORE pursuant to the powers vested in it bythe Industrial Relations Act, 1979, the Commission, herebyorders—

1. THAT Application No. 1980 of 2000 Citation No.2001 WAIRC 03226 be, and is hereby, cancelled.

2. THAT the Applicant is required to advise the Com-mission of the disposition of the Application by 6th

September 2001 failure to do so will result in thematter being listed for the Applicant to show causewhy the Application should not dismissed for wantof prosecution.



INDUSTRIAL RELATIONS COMMISSION.PARTIES NATASHA DEANNE WALSH,

APPLICANTv.PETER JOHN & MADELEINE MARIECOCHRANE t/a RAY WHITE(MADDINGTON), RESPONDENT


Result Application for Interlocutory Orders.RepresentationApplicant Mr B. Stokes (as agent) (by way of

written submissions)Respondent Mr J. Brits (of counsel) (by way of written

submissions)_______________________________________________________________________________

Reasons for Decision—Interlocutory Matters.1 The substantive application before the Commission is a

claim by the applicant that she was harshly, oppressivelyor unfairly dismissed and also that she is entitled tobenefits under her contract of employment which havebeen denied by her former employer. The application islisted for hearing and determination on 28 and 29 August2001. On 20 August 2001 the respondent faxed to theCommission a Notice of Application for Orders—

(1) That the applicant provide the particulars re-quested in letters it had forwarded to the applicanton 4 May and 8 August 2001 by not later thanclose of business on Thursday, 23 August 2001,or alternatively;

(2) That the hearing listed for 28 and 29 August 2001be vacated.

2 The Commission listed the application at short notice on22 August 2001 at 1:30pm.

3 The applicant’s agent advised by facsimile of his inabilityto attend on that occasion. However, he set outcomprehensively the applicant’s objection to the Orderssought by the respondent. The facsimile included theapplicant’s list of discoverable documents and copies ofsome documents which appear to have been sent to therespondent by the applicant’s agent on 28 March 2001.

4 The respondent accepted the opportunity to reply inwriting to the applicant’s objection and neither party wasrequired to attend the Commission at the listed time.

5 The Commission has considered the application, theobjection and the submissions in reply to the objection.What follows are brief Reasons for Decision. To the extentnecessary, the Commission may expand upon theseReasons in any subsequent reasons which issue in thesubstantive matter.

6 The applicant relies on Regulation 8 to object to the Orderssought. She argues that the respondent’s application isnot in proper form and r.8 has not been complied with. Inmy view, once a substantive application is before theCommission, it should not be necessary for a furtherformal application pursuant to r.8 to be lodged in theCommission in order to apply for an Order of the kindenvisaged under section 27(1)(o) of the IndustrialRelations Act 1979 in that substantive matter. To the extentthat r.8 applies, non compliance with the regulation doesnot render void the proceeding before the Commission:r.93. I am not, in the circumstances of this matter, inclinedto set the application aside as irregular and will deal withit on its merits. In my view, that is consistent with therequirement on the Commission to act without regard totechnicalities or legal form.

7 The Commission considers that the respondent’s requestfor the provision of particulars is reasonable given thatthe respondent has requested them of the applicant’s agenton 4 May 2001 and 8 August 2001. The claims ofreimbursement of all expenses and advertising, unpaidcommission and damages for misdirected listings are partof the remedy sought in paragraph 23 of the Notice ofApplication.

8 The Commission notes the list of discoverable documentsfiled by the applicant’s agent on 21 August 2001. Thisdocument contains the headings of printing costs,telephone charges, stationery purchases, petrol purchases,postal charges, other expenses and miscellaneous. It isnot clear to the Commission the extent to which the listof discoverable documents satisfies the claim forparticulars made by the respondent. Accordingly, Ipropose to issue an Order on the applicant to provide theparticulars requested.

9 It must be noted however that this application hasnevertheless been made in close proximity to the hearingdates. It gives little enough time for the orderly executionof an order, and possibly little enough time to prepareonce it has been complied with. Given its earlier requeststo the applicant, to the extent that the respondent isprejudiced by the provision of particulars at relativelylate notice, the Commission may allow evidenceconcerning the three claims covered by the Order to be


completed at a later stage. However, that does not amount,in the context of the application before the Commissionas a whole, to a valid reason for the adjournment of thesubstantive hearing.

10 The remaining matter is application made by the applicantherself for an order requiring the respondent to discoverdocuments supporting “the alleged charges made undercover of the respondent’s letter of 7 December 2000,copies of all property listings assigned to the applicantduring her period of employment, copies of all propertyfiles relating to those listings and copies of allcommissions paid to the applicant or other representativesrelating to those listings”. The respondent objects to anOrder issuing in that form.

11 The applicant’s own application suffers from the samecomplaints as to form upon which she objects to therespondent’s application. Her application is merelyincluded at paragraph 15 of the notice of objection. Italso is made at late notice.

12 The Commission is prepared to accept that the applicationmade by the applicant’s agent in paragraph 15 of its noticeof objection is as validly before the Commission as is theapplication by the respondent for particulars, and for thesame reasons.

13 As to merit, however, no grounds were cited in supportof the application. While the respondent in relation to theOrder it sought was able to point to two previous requestsmade to the applicant’s agent for the production of thedocuments, requests which do not appear to have beensatisfied, the respondent makes the point that the applicanthas thus far made no effort to request discovery.

14 After a consideration of the issues raised in the Notice ofApplication and in the Notice of Answer and CounterProposal, the Commission dismisses so much of theapplicant’s application for discovery other than for inparagraph 15(d): copies of all commissions paid to theapplicant. The Commission considers it is reasonable forthose documents to be discovered given the issues claimedin the substantive application and will issue an Orderaccordingly.

15 Finally, the Commission once again refers to the fact thatthe substantive hearing is due to commence in a few daystime. The Order to issue now for the interlocutory mattersclaimed envisages compliance with it by midday on theday prior to the hearing commencing. If any issue arisesregarding this timetable, the Commission will give theparties an opportunity to be heard before finalising theOrder.

2001WAIRC 03619WESTERN AUSTRALIAN



CORAM COMMISSIONER A R BEECHDELIVERED MONDAY, 27 AUGUST 2001FILE NO APPLICATION 2055 OF 2000CITATION NO. 2001 WAIRC 03619_______________________________________________________________________________

Result Application for Interlocutory Ordersgranted in part.

RepresentationApplicant Mr B. Stokes (as agent) (by way of

written submissions)Respondent Mr J. Brits (of counsel) (by way of written

submissions)_______________________________________________________________________________

Order.HAVING HEARD Mr B. Stokes (as agent) on behalf of theapplicant (by way of written submissions) and Mr J. Brits (ofcounsel) on behalf of the respondent (by way of written sub-missions), the Commission pursuant to the powers conferredon it under s.27(1)(o) of the Industrial Relations Act 1979hereby orders—

(1) That Natasha Deanne Walsh provide to Peter John& Madeleine Marie Cochrane t/a Ray White(Maddington) particulars of the claims in paragraph23 of her Notice of Application as follows—

(a) reimbursement of all expenses and advertis-ing;

(b) unpaid commission; and(c) damages for misdirected listings.

(2) That Peter John & Madeleine Marie Cochrane t/aRay White (Maddington) provide to Natasha DeanneWalsh a copy of all commissions paid to her duringher period of employment.

(3) That each party comply with the terms of this orderby 12:00 midday on Monday, 27 August 2001.





CORAM COMMISSIONER A R BEECHCORAM COMMISSIONER A R BEECHDELIVERED TUESDAY, 28 AUGUST 2001FILE NO APPLICATION 2055 OF 2000CITATION NO. 2001 WAIRC 03635_______________________________________________________________________________

Result Application alleging unfair dismissaldiscontinued.

RepresentationApplicant Mr B. Stokes (as agent)Respondent Mr J. Brits (of counsel)_______________________________________________________________________________

Order.WHEREAS an application was lodged in the Commissionpursuant to section 29 of the Industrial Relations Act 1979;

AND WHEREAS a conference between the parties wasconvened;

AND WHEREAS the application was listed for hearing;AND WHEREAS the applicant subsequently filed a Notice

of Discontinuance in the Commission;AND HAVING HEARD Mr B. Stokes (as agent) on behalf

of the applicant and Mr J. Brits (of counsel) on behalf of therespondent;


THAT the application be discontinued.(Sgd.) A.R. BEECH,




INDUSTRIAL RELATIONS COMMISSION.PARTIES MARIE HELENE MALLET,

APPLICANTv.SOLUTION 6 PTY LTD,RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED THURSDAY, 23 AUGUST 2001FILE NO/S APPLICATION 416 OF 2001CITATION NO. 2001 WAIRC 03615_________________________________________________________________________

Result Direction issued.RepresentationApplicant Mr G McCorry as agentRespondent Ms A Docherty_________________________________________________________________________

Direction.HAVING heard Mr G McCorry as agent on behalf of theapplicant and Ms A Docherty on behalf of the respondent theCommission, pursuant to the powers conferred on it underthe Industrial Relations Act, 1979, hereby directs—

(1) THAT each party shall give an informal discoveryby serving its list of documents by 13 September2001.

(2) THAT inspection of documents shall be competedby 20 September 2001.

(3) THAT evidence in chief in this matter be adducedby way of signed witness statements which will standas the evidence in chief of the maker. Evidence inchief other than that contained in the witness state-ments may only be adduced by leave of theCommission.

(4) THAT the parties file and serve upon one anotherany signed witness statements upon which they in-tend to rely no later than 14 days prior to the date ofhearing.

(5) THAT the matter be listed for hearing for 1 day.(6) THAT the parties have liberty to apply on short

notice.(Sgd.) S.J. KENNER,



INDUSTRIAL RELATIONS COMMISSION.PARTIES NEVILLE JOHN HODGSON,

APPLICANTv.SOTICO PTY LTD, RESPONDENT


Result Discovery and Inspection of Documents____________________________________________________________________________

Order.WHEREAS the applicant in this matter has applied for dis-covery and inspection of documents in relation to the claim;and

WHEREAS on 3 August 2001 at a conference convenedbetween the parties, the Commission heard from the partieson the matter; and

WHEREAS the Commission has decided that an Order fordiscovery and inspection of documents will now issue.

NOW THEREFORE pursuant to the powers vested in bythe Industrial Relations Act, 1979, the Commission herebyorders—

THAT the Respondent supply to the Applicant the fol-lowing information—1. THAT a copy of the scope and breakdown of the

Respondent’s Manjimup operations.2. THAT a copy of any record of two meetings held on

31 January 2001 and one meeting held on 1 Febru-ary 2001 be provided to the Applicant.



INDUSTRIAL RELATIONS COMMISSION.PARTIES NEVILLE JOHN HODGSON,

APPLICANTv.TRICIA BROPHY REHABILITATIONSERVICES PTY LTD, RESPONDENT

CORAM COMMISSIONER J F GREGORDELIVERED WEDNESDAY, 12 SEPTEMBER 2001FILE NO. APPLICATION 578 OF 2001CITATION NO. 2001 WAIRC 03743____________________________________________________________________________

Result Discovery of Documents____________________________________________________________________________

Order.WHEREAS the applicant in this matter has applied fordiscovery of documents in relation to the claim; and

WHEREAS on 12 September 2001 at a conference convenedbetween the parties, the Commission heard from Mr C. Garvey(of Counsel) on behalf of the Applicant and Ms T. Brophy onbehalf of the Respondent; and

WHEREAS the Commission has decided that an Order fordiscovery of documents will now issue.

NOW THEREFORE pursuant to the powers vested in bythe Industrial Relations Act, 1979, the Commission herebyorders—

THAT Tricia Brophy Rehabilitation Services Pty Ltdsupply to the Applicant the following information—

1. (a) any report produced by Ms T. Brophy inrelation to the Applicant;

(b) records of interviews with the Applicant;(c) records of discussions with the Respondent

regarding the Applicant;(d) records of instructions from the Respondent

to Ms T. Brophy regarding the Applicant;(e) records of telephone discussions with the

Respondent regarding the Applicant;(f) records of any assessments of the Applicant

by Ms T. Brophy regarding the capacity ofhis on-going employment with the Respond-ent.

2. Provided that documents discovered will be listedon either of two schedules as follows—

(1) Any document to which there is noobjection to production.

(2) Any document to which there is anobjection.




INDUSTRIAL RELATIONS COMMISSION.PARTIES JANET ELIZABETH AUGUSTYN,

APPLICANTv.VISTADALE PTY LTD AS TRADINGFOR THE RANGER FAMILY TRUSTTRADING AS RANGERCONTRACTING, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED THURSDAY, 6 SEPTEMBER 2001FILE NO APPLICATION 679 OF 2001CITATION NO. 2001 WAIRC 03689_______________________________________________________________________________

Result Direction issuedRepresentationApplicant Mr G Broderick as agentRespondent Mr L Pilgrim as agent_______________________________________________________________________________

Direction.The Commission, having heard Mr G Broderick on behalf ofthe applicant and Mr L Pilgrim on behalf of the respondent,and having determined that the following orders and direc-tions were necessary and expedient for the just hearing anddetermination of the matter, it is this day, the 6th day ofSeptember 2001, ordered and directed that the following docu-ments be provided to the applicant by the respondent within 7days of this order—

1. The letter (ASSIC) written by Mr Rave Ravendran(of Hall Chadwick) at the request of the Respondentand signed by the Applicant about June, 1998.

2. A copy of the Employment Declaration formsubmitted to the Australian Taxation Office on be-half of the Applicant. Signed by the Applicant onthe 24/07/1994.

3. Copies of the Time cards from week ending02/07/1997 to 01/11/2000.

4. Copies of the computerised wage records, includ-ing, wages, ATO, PAYG tax payments.



INDUSTRIAL RELATIONS COMMISSION.PARTIES SUZANNE JANE LOCKWOOD,

APPLICANTv.KMART AUSTRALIA LTD ACN 004700 485, RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED THURSDAY, 23 AUGUST 2001FILE NO/S APPLICATION 751 OF 2001CITATION NO. 2001 WAIRC 03616_________________________________________________________________________

Result Direction issued.RepresentationApplicant Mr P Ward of counselRespondent Mr D Jones as agent_________________________________________________________________________

Direction.HAVING heard Mr P Ward of counsel on behalf of the appli-cant and Mr D Jones as agent on behalf of the respondent theCommission, pursuant to the powers conferred on it underthe Industrial Relations Act, 1979, hereby directs—

(1) THAT each party shall give an informal discoveryby serving its list of documents by 6 September 2001.

(2) THAT inspection of documents shall be competedby 13 September 2001.

(3) THAT evidence in chief in this matter be adducedby way of signed witness statements which will standas the evidence in chief of the maker. Evidence inchief other than that contained in the witness state-ments may only be adduced by leave of theCommission.

(4) THAT the parties file and serve upon one anotherany signed witness statements upon which they in-tend to rely no later than 14 November 2001.

(5) THAT the matter be listed for hearing for 1 day.(6) THAT the parties have liberty to apply on short no-

tice.(Sgd.) S. J. KENNER,



INDUSTRIAL RELATIONS COMMISSION.PARTIES JULIE-ANNE LEISHA HURST,

APPLICANTv.HOUSE OF STUART, RESPONDENT


Result Application for an Interlocutory Ordergranted.

RepresentationApplicant Mrs J. Hurst (by way of written

submissions)Respondent Ms J. Auerbach (by way of written

submissions)_______________________________________________________________________________

Reasons for Decision—Interlocutory Matters.1 The substantive application before the Commission is a

claim by Mrs Hurst that she has not been paid her Marchretainer and her commission minus tax. The House ofStuart disputes Mrs Hurst’s calculation of commissionowed. A conference before the Commission on 26 June2001 did not result in any agreement between the parties.On 10 July 2001 Mrs Hurst advised the Commission thatshe had been in contact with the House of Stuart and thatthey had not been able to reach an agreement in relationto the figures. Mrs Hurst advised that she had beenprovided with worksheets, but that she had not beenprovided with her notes for each customer. She hasprovided to the Commission a copy of a letter sent by heron 24 July 2001 requesting the documents said to havebeen promised by the House of Stuart with reference toall the contracts, notes and worksheets for the jobs inquestion and the timesheets that were filled out by MrsHurst relating to the January commissions.

2 Mrs Hurst has since advised the Commission that theHouse of Stuart has advised her that they have changedtheir system and they no longer keep the documents thatshe is referring to, and that they do not have them. On 17August 2001, Mrs Hurst wrote to the Commissioninforming the Commission that the documents, includingher measurements and workings out of the jobs inquestion, were kept in a filing cabinet in the showroom.All notes and measurements were attached to the contractand worksheet and then filed in that cabinet. She findsunusual the statement on behalf of the House of Stuartthat all information has been put on to computer and allhandwritten notes no longer exist. She requests that theCommission obtain the documents.


3 The Commission has the power to order a party to produceto the other all documents in their possession, custody orcontrol, relating to an issue before the Commission. Iconsider Mrs Hurst’s request for the production of thedocuments to which she has referred as being entirelyreasonable and appropriate. Accordingly, I propose toissue an Order that the House of Stuart provide, onaffidavit, copies of the contracts, notes and worksheetsrelevant to Mrs Hurst’s claim in this Commission. If theHouse of Stuart maintains that these documents no longerexist, they are required to state that upon affidavit.

4 A Minute of the Proposed Order now issues. If the partiesbelieve the Minute requires correction, they should informthe Commission within two working days of the issuanceof the Minute. If nothing is heard from the parties, anOrder will issue in the terms of the Minute after that time.


INDUSTRIAL RELATIONS COMMISSION.PARTIES JULIE-ANNE LEISHA HURST,

APPLICANTv.HOUSE OF STUART, RESPONDENT

CORAM COMMISSIONER A R BEECHDELIVERED TUESDAY, 28 AUGUST 2001FILE NO APPLICATION 773 OF 2001CITATION NO. 2001 WAIRC 03638_______________________________________________________________________________

Result Application for an Interlocutory Ordergranted.

RepresentationApplicant Mrs J. Hurst (by way of written

submissions)Respondent Ms J. Auerbach (as agent) (by way of

written submissions)_______________________________________________________________________________

Order.HAVING HEARD Mrs J. Hurst on her own behalf as the ap-plicant (by way of written submissions) and Ms J. Auerbach(as agent) on behalf of the respondent (by way of written sub-missions), the Commission pursuant to the powers conferredon it under the Industrial Relations Act 1979 hereby orders—

That the House of Stuart provide to Julie-Anne LeishaHurst on affidavit, copies of the contracts, notes andworksheets relevant to Julie-Anne Leisha Hurst’s claimin this Commission.



INDUSTRIAL RELATIONS COMMISSION.PARTIES BRADLEY MAX PULS, APPLICANT

v.HON MINISTER FOR EDUCATION,RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED TUESDAY, 14 AUGUST 2001FILE NO/S APPLICATION 1162 OF 2001CITATION NO. 2001 WAIRC 03520_________________________________________________________________________

Result Application granted. Order issued.RepresentationApplicant Mr M Ritter of counselCommissioner of Police Ms C Bathurst of counsel_________________________________________________________________________

Reasons for Decision.1. On 21 June 2001 the Commission as presently constituted

determined that application number 2088 of 2000 bedismissed for want of jurisdiction. By further order ofthe Commission of 22 June 2001, it was ordered that allsteps taken and things done in application number 2088of 2000 be and are hereby taken to be steps taken andthings done in the herein application. One of those stepstaken was the issuance by the applicant of a summons towitness directed to the Commissioner of Police dated 19June 2001 summonsing his attendance at the Commissionand requiring him to produce certain specified books,papers and other documents in his position or under hiscontrol, said to relate to these proceedings.

2. The documents sought to be produced included “notes,statements, audio tape recordings, correspondence andother documents possessed by the Police Department orpolice officers relating to an investigation into theapplicant in respect to his employment in 2000 asPrincipal at Leeman Primary School, including, but notlimited to all correspondence and notes of communicationbetween the Police Department or police officers and theEducation Department of Western Australia or officersengaged by the Education Department.”

3. On the return date of the summons, the Commissioner ofPolice was represented by counsel and objection wastaken to the production of the documents for inspectionon grounds set out in submissions subsequently filed inthe Registry of the Commission. The applicant filed awritten outline of submissions in reply and both counselfor the applicant and for the Commissioner of Police wereafforded an opportunity to make oral submissions insupport of their outline of submissions.

4. The Commissioner of Police objected to the productionof the documents outlined in the summons on the groundsthat the summons was oppressive, alternatively, that nolegitimate forensic purpose had been demonstrated:Commissioner for Railways v Small (1938) 38 NSWLR564 at 573; R v (1989) 16 NSWLR 14 at 17; MallesonsStephen Jaques v Carter (1993) 11 WAR 159 at 169. Forthere to be a legitimate forensic purpose, it was submittedthat the Commission would need to be satisfied that it is“on the cards” that the documents sought by the applicantwould materially assist the applicant in his defence beforethe production of them would be ordered: R v Saleam(1989) 16 NSWLR 14; RAN v The Queen (1996) 16 WAR447 at 456. It was also submitted by the Commissionerof Police, that the width of the summons gives rise to aninference that the applicant’s request is merely a fishingexpedition.

5. Counsel for the applicant submitted that the submissionsmade on behalf of the Commissioner of Police did notreflect the legislative scheme of proceedings before thisCommission and to determine this matter, theCommission should consider the issue having appropriateregard to ss 26(1)(a) and 27(1)(o) of the IndustrialRelations Act 1979 (“the Act”) and apply the relevantprinciples set out in ALHMWU v WAHHA & BurswoodResort Management (Ltd) (1995) 75 WAIG 1801. It wassubmitted by counsel for the applicant that the documentssummonsed were clearly relevant to the proceedingsbefore the Commission, the request for production wasnot oppressive in accordance with the established legalprinciples and finally, and in any event, there was alegitimate forensic purpose to be achieved in theirproduction for inspection. The applicant also denied thatits summons to produce was in any way a fishingexpedition.

Consideration6. To the extent that counsel for the Commissioner of Police

relies upon the “legitimate forensic purpose” test asapplicable to criminal proceedings, in my opinion, withdue respect, those principles are inapplicable toproceedings in this Commission, which are in the natureof civil proceedings. The established tests in thisjurisdiction as to whether documents should be the subjectof discovery and inspection, or produced for inspectionon appropriate application, were dealt with by the Full


Bench in Burswood. In Anthony Ellis v The Grand Lodgeof WA of Antient Free & Accepted Masons Incorporated& Others (1998) 79 WAIG 1736, I considered the relevantprinciples regarding discovery and inspection in thisjurisdiction at 1736-1737, including those discussed bythe Full Bench in Burswood. I do not propose to repeatwhat I said in the The Grand Lodge, save to repeat whatwas said by the Full Bench in Burswood at 1805 asfollows—

“The Commission may therefore only make an or-der if such order is just (see Springdale Comfort PtyLtd t/a Dalfield Homes v BTA (op cit)(IAC)). Sec-tion 26(1)( a) of the Act would not seem to beexcluded from operation by the words of s 27 (1)(o)but we do not think it alters the questions to be askedand answered under s 27(1)(o). It is for the appli-cant for an order under s 27(1)(o), to establish thatis just for such an order to be made. The expression“just” means “right and fair, having reasonable andadequate grounds to support it, well- founded andconformable to a standard of what is proper andright”. See Loxton v Ryan (1921) State Reports (Qld)79 at 84, 88 per Lukin J. Perhaps more appositely inSmith’s Weekly Publishing Co Ltd v Sunday TimesNewspaper Co Ltd (op cit), which was a case relat-ing to discovery of documents, Isaacs and Rich JJ atpage 562 held that “just” means “just according tolaw”.

7. Clearly, what is “just” in a particular case will dependupon the circumstances of the case and the nature of theobjections taken to the production of the relevantdocuments. For example, if the production of the relevantdocuments would offend against the well establishedprinciples upon which production can be resisted, suchas the application of the principles relating to privilege,public interest immunity or oppression etc, then it wouldnot ordinarily be just that they be the subject of an orderfor production.

8. The relevant principles in relation to the issue of objectingto a subpoena for production of documents in civilproceedings, was the subject of consideration by the FullCourt of the Supreme Court of Western Australia inApache North West Pty Ltd & Others v Western PowerCorporation (1998) 19 WAR 350 at 371-375. In that case,the Court when referring to proceedings before the Courtat first instance said at 371—373—

“It is helpful at this stage to consider the authoritiesrelied upon by her Honour as they relate to the rel-evance of subpoenaed documents. In Waind v Hilland National Employees’ Mutual General Associa-tion Ltd [1978] 1 NSWLR 372, Moffitt P, with whomHutley JA and Glass JA agreed, said at 381—

“As Jordan CJ pointed out in Small’s case[(1938) 38 SR (NSW) 564 at 574] and, asappears in Burchard’s case [(1891) 2 QB 241at 247, 248] there are at least two steps in theprocedure of having a third party bring docu-ments to court, and in their use thereafter.Indeed, on a correct view, there are three steps.The first is obeying the subpoena, by the wit-ness bringing the documents to the court andhanding them to the judge. This step involvesthe determination of any objections of the wit-ness to the subpoena, or to the production ofthe documents to the court pursuant to thesubpoena. The second step is the decision ofthe judge concerning the preliminary use ofthe documents, which includes whether or notpermission should be given to a party or par-ties to inspect the documents. The third stepis the admission into the evidence of the docu-ment in whole or in part; or the use of it in theprocess of evidence being put before the courtby cross-examination or otherwise. It is thethird step which alone provides material uponwhich ultimate decision in the case rests. Inthese three steps the stranger and the partieshave different rights, and the function of thejudge differs.”

The application the subject of this appeal is con-cerned with the first two steps identified in thispassage. The ultimate decision as to admissibility(step 3) must be that of the trier of the facts in thelight of the evidence and evidentiary issues that arisein the course of his enquiry. In the present case, thatwill be the arbitrator. It appears to have been as-sumed that, in consequence of the order of MurrayJ, her Honour would deal with questions of inspec-tion and relevance as if the subpoenaed documents(insofar as those originally sought were not success-fully objected to or were not insisted upon) had beenproduced to the court. The third parties were enti-tled to object to the inspection of those documents.As Moffitt P said at 383 in Waind’s case, “The criti-cal question for present purposes, however, arisesin relation to this second step, as to the exercise ofthe power of the judge to permit inspection”. Heobserved that the power was “quite independent of,and quite different from, those in relation to discov-ery and inspection upon discovery”. Afterelaborating on that, he said at 384—

“If a subpoena for production is properly is-sued and not set aside, and, if there is ruled tobe no valid objection to the production of thedocuments to the court, then the documentsare in the control of the judge, who is investedwith jurisdiction to take all steps necessaryfor the proper trial of the issues before him,subject to the due observance of any relevantrules and procedures of the court. So far asfactual matters are concerned, the proper con-duct of the litigation can only be that whichfairly leads to the introduction of all such evi-dence as is material to the issues to be tried,and the testing of that evidence by the acceptedprocedures of the court. The only legitimatepurpose of requiring the production, and per-mitting the inspection, of a stranger’sdocuments can be to add, in the end, to therelevant evidence in the case. Small’s case andBurchard’s case did not directly deal with thepresent question. Jordan CJ quoted [at 574]as his authority the passage in Burchard’s caseearlier quoted by me, but what he said wentfar beyond it and, in bold but imprecise out-line, referred to the essential ingredients ofthe power of the judge.

Contrary to the very passage in Burchard’s case [at247, 248] cited by him, he acknowledged [at 574]the power of the judge to hand the documents to aparty, and for a party to inspect them merely ‘with aview’ to tendering them. He accepted there was adiscretion in the judge to permit or refuse inspec-tion. He did not spell out what he meant preciselyby the words ‘with a view’ or what he meant by ‘ten-dered’, and he did not, as in Burchard’s case [at247-248] purport to limit the power to that impre-cisely stated by him. In my view these dicta, longstanding as they are and impressive as is their source,should not be understood as laying down, as woulda rule of court, some arbitrary limitation on the ex-ercise of the wide discretion of the judge to permitthe documents to be used for the purpose of provid-ing him or the jury, in the end, with the best availableevidence testing by the accepted procedures of cross-examination.”And at 385—

“... [I]n my experience it has long been thepractice in this State for the judge, evenagainst opposition, to exercise a discretion toallow one party or the other to inspect docu-ments which appear to be relevant to theissues, whether or not in admissible form. AsI understand past practices, where, however,objection is raised by the owner of the docu-ments, the judge examines the documents withsome care to ensure there is no abuse ofthe subpoena, and to determine whether the


documents appear relevant in the sense thatthey relate to the subject matter of the pro-ceedings, in which event he will permitinspection by one or both parties at an ap-propriate time. The question of theiradmissibility without more, in accordance withthe rules of evidence, does not then arise be-cause, if relevant, they may be admitted in avariety of ways, as by first establishing factsor adopting procedures which make them ad-missible or by their being admitted by consent.If apparently relevant, I do not see how theobjections of the stranger could prevent theiradmission in evidence, by consent or other-wise, or the inspection which may lead to thisoccurring. The ultimate question of whetherthey are ruled to be relevant and/or admissi-ble is left to the third stage of receivingevidence. In my view, this practice is withinthe wide judicial discretion already referredto, to permit inspection of documents in thecontrol of the court pursuant to a valid sub-poena.The crucial question in relation to the exer-cise of the discretion to permit inspection inthe second step is whether the documents haveapparent relevance to the issues. It is at thethird step that questions between the partiesof relevance in fact and admissibility are ruledupon. The judge is in some difficulty in deter-mining whether documents are relevant priorto the presentation of the evidence or at thecommencement of the case. If there is particu-lar objection from the witness, or questionsof privacy are involved, no doubt procedurescan be adopted to ensure that only relevantdocuments are inspected. In other cases, itwould appear appropriate to proceed to exer-cise the discretion, provided the documents areapparently relevant or are on the subject mat-ter of the litigation. However, the limitationon the exercise of the judge’s discretion to al-low inspection is that the document containsinformation of apparent relevance to the is-sues. Once the judge has that opinion,inspection will normally be allowed, notwith-standing that the document is not admissibleas it stands, and notwithstanding that the partyseeking inspection has not given any under-taking to tender it, or use it incross-examination.” [underlining supplied]In our view, the above quoted passages cor-rectly set out the law and practice in civilproceedings in this State relating to the pro-duction and inspection of documents pursuantto a subpoena. It is said in Seaman’s CivilProcedure in Western Australia at 36.12.13—

“If the recipient of the subpoena objects,the court will not allow the parties to in-spect the documents unless it is requisitefor the purposes of the administration ofjustice that they should do so. The judgehas a wide discretion, and will, for ex-ample, permit inspection to secure a trialupon the best possible evidence withproper cross-examination. If there is par-ticular objection from the recipient ofthe subpoena, or questions of privacy areinvolved, the court will devise a proce-dure to ensure that those matters areprotected before inspection is permitted.The judge may take steps to protect astranger’s privacy and rights althoughthere is no person before him who ob-jects to their inspection. Generallyinspection will be permitted when heforms the opinion that the documentsare apparently relevant to the issues inthe litigation, even if the party seeking

inspection gives no undertaking to ten-der them or use them in cross-examination. This question of apparentrelevance is quite separate from claimsto privilege (ss [36.12.12]) and from thequestion of relevance for the purpose ofadmission into evidence.”

Waind’s case is cited in support of this passage.”9. Applying these principles to the circumstances before me,

the substance of the substantive application is an appealpursuant to s 23B of the Act by the applicant against hisdismissal by the respondent for misconduct. It is clearfrom the respondent’s notice of answer and counterproposal, that the respondent’s decision to dismiss theapplicant pursuant to s 7C of the then Education Act 1928,involved allegations of theft of monies that was the subjectof an inquiry by the respondent pursuant to the relevantterms of the Education Act 1928. It is also clear that therespondent referred the applicant’s conduct to the policefor investigation and it is that same conduct which is thesubject of the documents now sought to be produced.

10. Having considered the matter, and having viewed thedocuments to ascertain their apparent relevance, I am ofthe view that they satisfy the tests as set out in theauthorities to which I have referred, that being that thedocuments are apparently relevant to the issues in thesubstantive proceedings such that an order for inspectionshould be made. However, it is also clear that the issue ofapparent relevance, for the purposes of this stage of theproceedings, is an entirely different matter to that ofrelevance for the purposes of admitting any of thedocuments into evidence in the substantive proceedings.

11. In the alternative, even if I were to apply the “legitimateforensic purpose test” to the documents now sought tobe produced, I am of the opinion that they would satisfythis test that being that it is “on the cards” that thedocuments would materially assist the applicant in hisapplication before the Commission.

12. I am also not persuaded that the request by the applicantas set out in the summons is in any way oppressive asthat concept is developed on the authorities: Halsbury’sLaws of Australia at 325-7425, 325-7430 and 325-7435.There clearly has been no difficulty in identifying andcompiling the relevant documents into a lever arch filefor the purposes of responding to the summons.Additionally, clearly, the documentation is not sovoluminous as to constitute oppression on that basis either.

13. I am therefore of the view that in all of the circumstancesit would be just for an order to issue to the effect that thedocuments be made available for inspection.


INDUSTRIAL RELATIONS COMMISSION.PARTIES BRADLEY MAX PULS, APPLICANT

v.HON MINISTER FOR EDUCATION,RESPONDENT

CORAM COMMISSIONER S J KENNERDELIVERED MONDAY, 27 AUGUST 2001FILE NO/S APPLICATION 1162 OF 2001CITATION NO. 2001 WAIRC 03622_________________________________________________________________________

Result Application granted. Order issued.RepresentationApplicant Mr M Ritter of counselCommissioner of Police Ms C Bathurst of counsel_________________________________________________________________________

Order.HAVING heard Mr M Ritter of counsel on behalf of the ap-plicant and Ms C Bathurst of counsel on behalf of theCommissioner of Police, the Commission, pursuant to the


powers conferred on it under the Industrial Relations Act, 1979,hereby orders—

THAT the documents the subject of a summons to wit-ness to the Commissioner of Police filed on 19 June 2001and delivered into the custody of the Commission be madeavailable for inspection by the applicant.



INDUSTRIAL RELATIONS COMMISSION.PARTIES SHANE DIROU, APPLICANT

v.DAYTRADERHQ LTD, RESPONDENT

CORAM COMMISSIONER J H SMITHDELIVERED MONDAY 10 SEPTEMBER 2001FILE NO/S APPLICATION 1241 OF 2001CITATION NO. 2001 WAIRC 03719_____________________________________________________________________________________

RepresentationApplicant Mr A D Lucev of counselRespondent Mr R H Carthew of counsel_______________________________________________________________________________

Order.HAVING heard Mr A D Lucev of counsel on behalf of theApplicant and Mr R H Carthew of counsel on behalf of theRespondent and by consent the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act 1979hereby orders—

1. The Respondent within 28 days of 6 September 2001file and serve on the Applicant further and betterparticulars of paragraph 3 of its Notice of Answerand Counter Proposal;

2. The Applicant within 28 days of 6 September 2001file and serve on the Respondent—

(a) particulars of all remuneration earned by theApplicant from any source from the date oftermination until the date of provision of theparticulars; and

(b) particulars of all positions applied for sincedate of termination until the date of provisionof the particulars; and

3. The Applicant and the Respondent provide mutualdiscovery on affidavit of the documents within theirpossession, custody or power within 28 days of6 September 2001, and state a time and place atwhich the documents may be inspected and copied.

(Sgd.) J.H. SMITH,[L.S.] Commissioner.

NOTICES—Appointments—

THE INDUSTRIAL RELATIONS ACT 1979I, the undersigned, the HONOURABLE DAVID KINGSLEYMALCOLM AC CitWA, Chief Justice of Western Australia,in exercise of the powers conferred on me by section 85(3) ofthe Industrial Relations Act 1979 (WA), DO HEREBY NOMI-NATE THE HONOURABLE GRAEME FREDERICKSCOTT, a Judge of the Supreme Court of Western Australia,to be the Deputy Presiding Judge of the Western AustralianIndustrial Appeal Court from 1 September 2001.

As witness my hand this 30th day of August 2001.

Chief Justice of Western Australia.

THE INDUSTRIAL RELATIONS ACT 1979I, the undersigned, the HONOURABLE DAVID KINGSLEYMALCOLM AC CitWA, Chief Justice of Western Australia,in exercise of the powers conferred on me by section 85(3) ofthe Industrial Relations Act 1979 (WA), DO HEREBY NOMI-NATE THE HONOURABLE NICHOLAS PAUL HASLUCK,a Judge of the Supreme Court of Western Australia, to be anOrdinary Member of the Western Australian Industrial Ap-peal Court from 1 September 2001.



THE INDUSTRIAL RELATIONS ACT 1979I, the undersigned, the HONOURABLE DAVID KINGSLEYMALCOLM AC CitWA, Chief Justice of Western Australia,in exercise of the powers conferred on me by section 85(3) ofthe Industrial Relations Act 1979 (WA), DO HEREBY NOMI-NATE THE HONOURABLE ROBERT JOHN McARTHURANDERSON, a Judge of the Supreme Court of Western Aus-tralia, to be the Presiding Judge of the Western AustralianIndustrial Appeal Court from 1 September 2001.



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