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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 30377 W.A.I.G.

Western Australian

Industrial GazettePUBLISHED BY AUTHORITY

Sub-Part 2 WEDNESDAY, 26TH FEBRUARY, 1997 Vol. 77Part 1

303

THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:77 W.A.I.G.

CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION

FULL BENCHAppeals against decision of

CommissionWESTERN AUSTRALIAN

INDUSTRIAL RELATIONS COMMISSION.Industrial Relations Act 1979.

Grovenor Pty Ltd t/a Harvey World Travel (Sorrento Quay)(Appellant)

andM Buckley.

(Respondent)No 1128 of 1996.

BEFORE THE FULL BENCH.HIS HONOUR THE PRESIDENT P J SHARKEY.

SENIOR COMMISSIONER G L FIELDING.COMMISSIONER J F GREGOR.

16 December 1996.

Reasons for Decision.THE PRESIDENT: This is an appeal against the decision ofthe Commission at first instance, constituted by a single Com-missioner, and brought under s.49 of the Industrial RelationsAct 1979 (as amended) (hereinafter referred as the Act).

By that decision, on 30 July 1996, the Commission ordered,having heard and determined an application by the respondentfor contractual benefits, that the appellant pay to the respond-ent the sum of $3,336.00 being

(1) Annual Leave: 17 days x $107.70 $1,830.90(2) Days in lieu: 11 days x $107.70 $1,184.70(3) Annual Leave Loading on Annual

Leave$1,830.90 x 17.5%: $ 320.40Total $3,336.00

GROUNDS OF APPEALIt is against that decision that the appellant now appeals on

the following grounds1) The Commission erred in failing to adjourn the hear-

ing in the matter No 164 of 1996 given advise toCommission in that the appellant was unable to at-tend.

2) In the light of the answer filed the commission shouldhave determined that there was a valid defence tothe application and that the appellant should be heardin the matter.

3) The commission denied the appellant natural justicein that Application No 164 of 1996 was heard anddetermined in their absence and an order was madeagainst them as set out in the Order of CommissionerA R Beech dated 30th July 1996.

Order sought

That the matter be referred back to CommissionerBeech for further hearing and determination.

BACKGROUND

The appellant is a company which, at all material times, car-ried on the business of travel agent at Shop 1, Hillarys BoatHarbour, Sorrento Quay, in the State of Western Australia.

One of its directors is and was Mr John David Dawkins whoappeared for the company on this appeal. Ms Fleur Dawkins,his daughter, was, at all material times, a co-manager of thebusiness. The applicant at first instance was her husband andthe son-in-law of Mr and Mrs Dawkins. At one time he wasthe co-manager of the travel agency conducted by the appel-lant company. His employment lasted from 26 November 1992until 16 June 1995. The respondent worked full-time for theappellant as manager. In or about June 1995, the respondentand Ms Fleur Dawkins separated.

The respondent was found by the Commission at first in-stance not to have been dismissed for misconduct. It was notat any time before the Full Bench or otherwise suggested thathe was dismissed for misconduct. In fact, it was said that hehad left of his own accord.

His claim before the Commission at first instance was thathe was entitled to be paid for annual leave, annual leave load-ing and unpaid wages for 14 days. Mr Buckley also claimedthat he was entitled to additional leave which he said that heaccumulated because he worked on public holidays. Unlikethe claim for annual leave proper, this was not supported bythe contents of exhibit 1, a letter from the appellant to therespondent dated 8 October 1993.

The Commission at first instance accepted that it was rea-sonable for an arrangement to exist whereby if employees workon a public holiday they are allowed to take time in lieu orhave the day added to annual leave.

There was evidence before the Commission, and supportedby the evidence of Ms Faye Carol Longmuir, a sales consult-ant employed by the appellant, and Mrs Edna ChristineLongmuir, the aunt of Ms Fleur Dawkins, that Mr Buckleyworked on public holidays whilst in the employ of the appel-lant. Indeed Ms Edna Christine Longmuir said that Mr Buckley,the respondent, worked on every public holiday.

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 77 W.A.I.G.304

Mr Dawkins said in a statement to the Commission that allof Mr Buckleys entitlements to annual leave had been used.The Commission at first instance held that a letter from MsFleur Dawkins, to which I will refer later, as calling into ques-tion only three days in March and May 1995. However, thereasons given were not considered by the Commission to bereasons for annual leave. The Commission found that claimfor 28 days annual leave proven. Mr Buckley claimed that theannual leave was to be paid with a leave loading of 17.5%.

The Commission also found that the annual leave loadingwas also to be paid on untaken annual leave on termination.The Commission did so because exhibit 1 contained a state-ment that no holiday loading would be paid on severance payif the staff member had been employed for less than 12 months.This led the Commission to the conclusion that where a staffmember had been employed for more than 12 months, a holi-day loading would be paid on severance pay. The Commis-sion, however, found that the annual leave loading was notpayable on other kinds of leave than annual leave.

The Commission at first instance ordered that Mr Buckleybe paid 17.5% annual leave loading on 17 days annual leave.

The respondent also claimed unpaid wages for the final twoweeks of his employment. The Commission found that MrBuckley worked those two weeks and was entitled to be paidthe sum of $831.12. However, the defence was that the appel-lant paid the money by cheque dated 16 June 1995, the amountthen having been paid into a joint Visa account partly in MrBuckleys name on 20 June 1995. It was a joint account in thename of his wife and himself. During his employment, therespondents wages had been paid into that account. The Com-mission held that even though the monies had been taken outof the joint account, the appellant had, however, dischargedits obligation by paying the monies into the joint account aswas the custom in the past.

A claim that monies owing to Mr Buckley by the appellantwas within the jurisdiction of the Commission to dismiss onthe authority of ADSTE v BMA 72 WAIG 2162 (FB).

The respondent, as I have said, made application allegingthat these were contractual benefits to which he was entitledand which had not been paid to him. The application was servedon the appellant on 12 February 1996. An answer was filed onbehalf of the respondent on 7 March 1996.

The matter was listed for and was the subject of a confer-ence in the Commission on Monday, 18 March 1996 at 10.00am conducted by an Acting Deputy Registrar (Industrial).

On 22 May 1996, the matter came on for a conciliation con-ference presided over by a Commissioner at 9.00 am. Thematter was not settled at that conference. The Commissionlisted the matter for hearing and determination on 14 June 1996at 10.00 oclock in the forenoon. A notice dated the 24 May1996, advising of the date of that hearing was sent to the ap-pellant, and the appellant, through Mr Dawkins, concedes thatsuch notice was given and received.

On 11 June 1996, Mr Dawkins telephoned the Commissionand left a message. By that message he advised that he wasoverseas, that he and his wife were unable to fly to Australiabecause Mrs Dawkins had the flu, and that they would be inAustralia on Monday or Tuesday of next week.

On 15 May 1996, Ms Fleur Dawkins had written to the Com-mission advising that Mr Dawkins would not be able to attendthe conference of 22 May 1996 because Mr Dawkins hasbeen temporarily delayed overseas and will contact your of-fice promptly (sic) on his return.

The Associate to the Commissioner wrote to the manager ofthe appellant on 12 June 1996, advising that the telephonemessage to which I have referred would be treated as a requestfor an adjournment and stating that the Commission wouldnot adjourn the application, giving the following reasonstherefor (see page 55 of the appeal book (hereinafter referredto as AB))

1. The date of the 14th June was set down after advicefrom the respondent that Mr Dawkins would be re-turning to Australia in the week commencing the 3rdJune and would be available after the 11th June;

2. The respondent has known of the date since the 24thMay 1996;

3. That Mr Buckley has made specific arrangements tobe available on the 14th June, is not available in theweek following and will be inconvenienced becauseof the short notice given by Mr Dawkins.

There is no evidence of any response to that letter.On 14 June 1996, the matter came on for hearing and deter-

mination in the Commission. There was no appearance for theappellant company. Mr Dawkins informed the Full Bench onthe hearing of this appeal, that he did not want the manager,Ms Dawkins, involved and that that is why she did not appearin the matter. The Commission at first instance, noting that thenotice of hearing in this matter was served on both parties,held that he was satisfied that he could proceed in the absenceof the appellant (see pages 57-59 (AB)). It is quite clear thatthe notice of hearing was served on both parties and that wasnot disputed.

The Commission then sought submissions from Mr Buckleywho submitted that he doubted whether Mr Dawkins was un-able to travel because of his wifes flu. Indeed, Mr Buckleysought to attribute this unavailability to Mr Dawkins waitingfor a free ticket with United Airlines in San Francisco. MrBuckleys submission was that Mr Dawkins was putting thingsoff and had done this before. He submitted that Mr Dawkinsknew of the need to appear and just decided not to because hedid not want to pay for a ticket. This evidence was the evi-dence of the applicant at first instance from the bar table.

However, Mr Buckley did say that there would not be anyproblem in adjourning the matter if he had adequate noticeand it was not too far in the future. Mr Buckley then applied toproceed.

The Commission at first instance noted that the respondentat first instance was a company, and being unaware whetherMr Dawkins was the only person able to represent the com-pany, noting that Mr Buckley was in a financially difficultsituation and had taken time off from his current employmentto appear, decided to proceed with the matter. The Commis-sion heard evidence from Mr Buckley and the two other wit-nesses to whom I have referred and received documentaryevidence. At the conclusion of the hearing, the Commissionreserved its decision.

However, the Associate to the Commissioner wrote on 17June 1996 to the manager of the appellant (see page 98 (AB))forwarding a copy of that letter to Mr Buckley. In that letterthe Commission said thus, inter alia

... I have been directed to advise you that if GrovenorPty Ltd wishes to make a written response to the submis-sions and evidence made to the Commission the Com-mission is prepared to take the response into account. TheCommission would be prepared to accept a written re-sponse from the company within 7 days of the transcriptof the case being available...

By letter dated 25 June 1996, Ms Fleur Dawkins replied interms to which I will refer later (see pages 99-100 (AB)).

On 27 June 1996, Mr John Dawkins wrote to the Commis-sion making submissions and giving evidence (see pages 101-108 (AB)). I will refer to those in detail later.

The Commission at first instance took the matters set out inthese letters into account and gave Mr Buckley a right of re-ply.

Further, with the consent of Mr Buckley and Ms Dawkins,the Commission obtained copies of bank records relating tothe joint Visa account of Mr and Mrs Buckley from BankwestJoondalup. The Commission considered those records.

There were written submissions, therefore, made in responseto the opportunity afforded to the appellant by the Commis-sion.

Ms Dawkins letter of 25 June 1996, to which I have re-ferred, raised a number of matters from the proceedings atfirst instance. Some observations in her letter were made aboutthe claim for leave. There was an assertion by Mr Dawkinsthat, for the period November 1992-1995, Mr Buckley took52 days leave and had an entitlement of 51 days leave. That iscorroborated by Ms Dawkins.

Mr Dawkins in his letter also alleged that no notice wasgiven when Mr Buckley walked out and his so doing re-sulted in a loss to the appellant. He also asserted that Mr


Buckley had not returned his uniform when he left the employof the appellant.

It was asserted, too, by both Mr Dawkins and Ms Dawkinsthat Mr Buckley left the appellants employ in embarrassmentbecause an alleged misdemeanour committed by him in theUnited States of America was known to staff and he could notface them. There were also allegations that in 1995 problemsarose with trust accounts for which the respondent was re-sponsible and these problems have not yet been resolved. Thiswas according to the letter of Mr Dawkins.

Both Mr Dawkins and Ms Dawkins asserted that the respond-ent had been paid his last two weeks wages. Whether he hadbeen so paid was of course in issue.

Three statutory declarations were included in the appeal book,all having been declared after the decision in this matter wasmade, and not having been at all before the Commission atfirst instance. On 15 August 1996, one member of staff, MsGail Chapman, declared a statutory declaration in which shealleged that the respondent had made a comment with a sexualconnotation to her. Another member of staff alleged that a jun-ior female member of staff had complained about personalcomments and suggestions made to her by the respondent. Thisstatutory declaration was dated 14 August 1996.

Ms Fleur Michelle Dawkins filed a statutory declarationdated the same date in which she spoke of the allegation thatthe respondent had sexually harassed other members of staff,Ms Dawkins having been informed of these by another staffmember. However, her statutory declaration alleges that therespondent admitted these matters to her when she confrontedhim with them before he left their employ. On 16 June 1995,the respondent would have been asked to leave had he notdone so, Ms Dawkins said of course, none of these allegationswere before the Commission at first instance.

ISSUES AND CONCLUSIONS

By s.27(1)(d) of the Act the Commission is empowered toproceed and hear and determine a matter or part thereof in theabsence of any party thereto who has been duly summoned toappear or duly served with notice of the proceedings. It wasnot in dispute, and it was quite clear too, that the appellant hadbeen served with a notice of proceedings. Further, the Com-mission is empowered to adjourn to any time and place (sees.27(1)(f) of the Act).

Any decision of the Commission must be made in accord-ance with s.26(1)(a) and (c) of the Act, and, insofar as it isrelevant, s.26(1)(d) of the Act.

In this case, the Commission at first instance refused, in theexercise of its discretion, to adjourn the hearing and determi-nation of this matter. Effectively, however, it did because theCommission afforded the opportunity to the appellant to makewritten submissions. The appellant made those submissions.The Commission did not adjourn the matter, however, to en-able the appellant to be represented and conduct its case fully.

To grant or refuse an adjournment is a matter for the discre-tion of the court (Commission) to whom the application ismade. But wherever refusal of an adjournment will result in aserious injustice to one party, an adjournment should be grantedunless in turn this would mean a serious injustice to the otherparty. An appellate court will not interfere with a discretion-ary order of this sort unless there is strong reason for believ-ing that an injustice has resulted (see Myers v Myers [1969]WAR 19 at 21 (SC) per Jackson J).

The next question is whether there was a denial of naturaljustice. It is trite law to say that the Commission is bound bythe rules of natural justice. The principles of natural justiceare not a fixed body of rules applicable inflexibly at all timesand in all circumstances. The application of the rules mustdepend on the circumstances of the case, including the natureof the inquiry, the rules under which the relevant tribunal isacting, the subject matter under consideration and so on (seeKioa and Others v Minister for Immigration and Ethnic Af-fairs and Another 55 ALR 669 at 683 (HC) and R v Common-wealth Conciliation and Arbitration Commission and Others;Ex parte Angliss Group [1969] 122 CLR 546 at 552-553 (HC)and National Companies and Securities Commission v NewsCorporation Ltd and Others [1984] 156 CLR 296 (HC)).

The maximum hearing standards are those which apply in acourt of law or an administrative tribunal possessing the trap-pings of a court and bound by elaborate statutory hearing pro-cedures. These include prior notice of the matter in issue andof the time and place of the hearing (required by s.27(1)(d) ofthe Act and the Industrial Relations Commission Regulations1985 (as amended)), an oral hearing, legal representation (inthis Commission legal representation or representation by anagent), the calling and examination of witnesses and the cross-examination of opposing witnesses, disclosure of materialevidence to the parties and the decision based on that evidence(see s.27(1)(a) and s.35 of the Act) (see generally Hotop Prin-ciples of Australian Administrative Law, 6th Edition, page192). All of these requirements apply in this Commission tohearings in the Commission

If a tribunal conveys the impression that an oral hearing willbe given and that impression is acted upon, a failure to give anoral hearing may constitute a denial of natural justice (see R vSecretary of State of Wales, Ex parte Green [1969] 67 LGR560).

These are all manifestations of one of the two fundamentalcommon law rules of natural justice. The first is audi alterampartem: the principle that a decision-maker must afford anopportunity to be heard to a person whose interest will be ad-versely affected by the decision. Of course, outside a criminaltrial there is no requirement that a judge or a member of atribunal do more than afford a party a reasonable opportunityto present his or her case. In particular, there is no requirementto point to arguments or evidence that may assist in makingthat partys case (see Re Media, Entertainment and Arts Alli-ance; Ex parte Hoyts Corporation Pty Ltd 119 ALR 206 at 213(HC)) (see generally Flick Natural Justice: Principles andPractical Application, 2nd Edition, chapters 2,3 and 4 andHotop Principles of Australian Administrative Law, 6thEdition, chapter VII).

Even, however, if there is denial of natural justice that is notan end of the matter. Not every departure from the rules ofnatural justice will entitle the aggrieved party to a new trialbecause the appellate court will not order a new trial if it wouldinevitably result in the making of the same order as that madeby the primary judge at the first trial. Where the denial ofnatural justice affects the entitlement of a party to make sub-missions on an issue of fact, especially when the issue iswhether the evidence of a particular witness should be accepted,it is more difficult for a court to conclude that compliancewith the requirements of natural justice could have made nodifference and the court should proceed with caution. All thatthe party need do in such a case is to show that the denial ofnatural justice deprived him/her of a successful outcome. Inorder to negate this possibility, it must be established that aproperly conducted trial could not possibly have produced adifferent result (see Stead v SGIC 67 ALR 21 (HC)).

THE ADJOURNMENTThe first question is whether the discretion of the Commis-

sion in refusing an adjournment miscarried. If the refusal ofan adjournment would result in a serious injustice to one party,an adjournment should be granted unless, in turn, this wouldmean a serious injustice to the other party. The Full Bench, asan appellate tribunal, will not interfere with the order in thiscase of the Commission at first instance (see Myers v Myers(op cit) (SC)) unless there is strong reason for believing thatan injustice has resulted. The appellant had plenty of notice ofthe hearing, and also sought an adjournment at a time close tothe last minute. Also, however, the respondent himself con-ceded that he would not suffer if the matter were adjourned,provided there was not a great delay in hearing the matter.There was, even though the hearing was not adjourned, in anyevent, a delay to enable the appellant to file submissions. Thatdelay could, of course, have served to enable the appellant toadduce evidence and to be permitted to cross-examine. Theappellant would then have been afforded the same opportu-nity as the respondent to present its case and it should havebeen afforded such opportunity.

I would observe that the matter had proceeded on the basisof oral evidence and there would have been a proper expecta-tion that an opportunity to adduce such evidence should prop-erly be afforded to the appellant (see R v Secretary of State ofWales, Ex parte Green (op cit)).


The opportunity to adduce evidence by way of written sub-mission was not a substitute in the circumstances of this casefor the opportunity to adduce oral evidence and to cross-ex-amine the witness called by the respondent.

An oral hearing is always appropriate where there is a con-flict of evidence, or personal characteristics are at issue orwhere allegations are grave. I would suggest that normally ina tribunal such as this, which is required to act judicially, atleast when arbitrating or dealing with certain other matters,then a matter would normally be decided on oral evidence.That is not to say, of course, that in the proper exercise of itsdiscretion the Commission may deal with the matter on writ-ten submissions, statements of agreed fact and affidavits, etc,particularly, but not solely, by consent (see generally Heatleyv Tasmanian Racing and Gaming Commission [1977] 137 CLR487 at 516 (HC) per Aicken J and Chen Zhen Zi v Minister forImmigration and Ethnic Affairs and Others 121 ALR 83 at 93-94 (FC FC), also Excell v Harris and Others 51 ALR 137 (FCFC) and Ansell v Wells and Others 43 ALR 41 (FC FC)).

Similarly, it is difficult to envisage a case where evidence isgiven and the right to cross-examination could be denied with-out breaching the rules of natural justice. However, in thiscase, there was an assertion that the respondent had no annualleave entitlements, having used them. That would, had theappellant appeared at first instance, have involved questionsof credibility. That in turn would have necessitated a need inthe appellant to adduce evidence and be able to cross-examinewere justice to be done.

Because, by the refusal of the adjournment, the appellantwas deprived of the opportunity to do so, there was an injus-tice. The only injustice which the respondent conceded, not-withstanding some initial protest, before the Commission atfirst instance would be occasioned to it was a short delay werethe adjournment to be granted. As a result, there were strongreasons for believing that an injustice has resulted (see Myersv Myers (op cit) (SC)). This is a decision which I would con-fine to the peculiar facts of this case.

There was one other matter. It was argued by the appellantthat some account should be taken of evidence that Mr Buckleyhad misconducted himself during his employment. The Com-mission at first instance found that he was not dismissed. Theappellant does not assert that he was. That evidence was re-duced to statutory declarations declared after the order wasmade, at first instance. The statutory declarations filed revealedthat the matters referred to therein were known to Ms FleurDawkins before Mr Buckley resigned and before the applica-tion at first instance was heard. This was not fresh evidencewhich could be admitted on appeal since it was known to theappellant through a director, Ms Fleur Dawkins, who was alsothe manager of the business. No reason has been advanced asto why such evidence had not been adduced at the originalhearing, and there was nothing said to persuade me that hadsuch evidence been adduced, it would have altered the results.As I understand the appellants argument, it is this. Had thisevidence been adduced then the Commission might have foundthat Mr Buckley should have been summarily dismissed formisconduct, even though he was not. There was simply nomerit in such an argument. First, it was Ms Dawkins ownevidence, were it accepted, that these matters were known toher. Second, having admitted that these matters were knownto her, she condoned the misconduct, if it occurred of course,and did not summarily dismiss the respondent. Third, the re-spondent was not dismissed, he resigned.

The discovery of fresh evidence can rarely, if ever, be aground for a new trial unless

(1) It is reasonably clear that if such evidence had beenavailable at the first trial and had been adduced therewould have been an opposite result;

(2) If it is not reasonably clear that such would havebeen the outcome, it must have been so highly likelyas to make it unreasonable to suppose otherwise; and

(3) Reasonable diligence had been exercised prior to trialto procure such evidence.

(See Council of the City of Greater Wollongong v Cowan[1955] 93 CLR 435 (HC)).

On all of those criteria, the evidence of misconduct not ad-duced at first instance was not admissible.

As to the application by the respondent to dismiss the matterunder s.27(1) of the Act, nothing was submitted to persuademe that the appeal should be dismissed. The appeal was notfrivolous, vexatious, nor did it require dismissal on any ground.Indeed, the appeal had merit.

I would uphold the appeal, suspend the order made at firstinstance and remit the matter back to the Commission to hearand determine the question of whether the respondent wasentitled to claim annual leave payments, the subject of his claimat first instance.

SENIOR COMMISSIONER G L FIELDING: This appealsimply brings into question the Commissions decision to refuseto grant a request by the Appellant, then the Respondent, toproceedings instituted under section 29 of the Industrial Rela-tions Act 1979 to recover benefits said to have been denied bythe Appellant to the Respondent in respect of the latters con-tract of employment with the Appellant.

A date was fixed for the hearing of the original proceedings,apparently in consultation with both parties. At that time theRespondents principal officer, Mr Dawkins, was overseas,but was expected back before the date fixed for the hearing.Three weeks written notice of the date and time for the hear-ing was given to each of the parties. Approximately three daysbefore the matter was due to be heard Mr Dawkins telephonedthe Commission from overseas asking for an adjournment andindicating that he would be unable to attend on the appointedday because he was overseas and unable to fly as his wife hasthe flu. He indicated that he would be in Australia approxi-mately three or four days after the appointed time. Not sur-prisingly, the Commission took the message to be, in effect, arequest for an adjournment and sought the views of the presentRespondent, who objected to an adjournment. In the circum-stances, quite properly the Commissioner advised the presentAppellants manager and the Respondent that is was not pre-pared to adjourn the proceedings in response to a telephonemessage, particularly as the hearing date had been set afterconsultation with the Appellant and the Appellant had hadnotice of the hearing for approximately three weeks.

When the matter came on for hearing the learned Commis-sioner asked the Respondent, in its capacity as the Applicantin the initial proceedings, what he had to say of the Appel-lants request. The Respondent indicated that he wanted toproceed, seemingly because he was keen to have the matterresolved because it had been, to use his words, a worry forthe last 12 months. The learned Commissioner decided toproceed in the absence of the Appellant because the presentRespondent indicated he was in a financially difficult situa-tion and had taken time off work to attend the hearing. Thelearned Commissioner heard evidence from the present Re-spondent and reserved his decision. Before giving his deci-sion, he invited the Appellant to make a written response tothe submissions made by, and evidence tendered on behalf of,the Respondent within seven days of the transcript being madeavailable. Mr Dawkins responded with a detailed letter inwhich, amongst other things, he claimed to have fully met hiscontractual obligations to the Respondent. After inviting theRespondent to comment on the contents of the letter, the Com-missioner handed down his decision in which he found theAppellant liable for annual leave benefits, leave loading andfor holiday pay; but rejected the Respondents claim for wagesearned during the last two weeks of his employment.

The Appellant now contends that the learned Commissionererred in refusing to grant an adjournment and complains thathe was denied natural justice in that the matter was heard anddetermined in his absence. Mr Dawkins argues that the rea-sons for the Appellants request were genuine and that by re-fusing to grant its request for an adjournment it was denied theopportunity to put adequately its case and thus denied naturaljustice.

Section 27 of the Industrial Relations Act 1979 gives theCommission an unqualified power to adjourn to any time andplace any matter properly before it (section 27(1)(f)). None-theless, the discretion whether or not to exercise that power isnot absolute. It must be exercised in accordance with the pro-visions of section 26 of the Act and, since in this case, theproceedings essentially involved the determination and enforce-ment of existing legal rights in accordance with the establishedprinciples governing the exercise of a similar power by


judicial tribunals. Those principles are set out in the well knowncase of Myers v. Myers (1969) WAR 19 (and see too: GradePty Ltd (Formerly World Enzymes Pty Ltd) v. GrahamMcCorry, Department of Productivity and Labour Relations(1993) 73 WAIG 2014). The decision in Myers makes it clearthat the decision to grant or refuse an adjournment is a matterfor the discretion for the tribunal where the application is made,but where the refusal of an adjournment would result in aserious injustice to one party, an adjournment should be grantedunless in turn this would mean serious injustice to the otherparty. Furthermore, in reviewing the exercise of a discretion-ary judgment of that nature the decision in this case makes itclear that the appellate tribunal should not interfere with thejudgment unless there is strong reason for believing that aninjustice has resulted (see: Myers v. Myers (supra) at pages21-22).

Somewhat reluctantly I have come to the conclusion thatthis is an instance where the Full Bench should interfere withthe learned Commissioners exercise of discretion.

It seems common ground that the Respondent, in opposingthe request for an adjournment, did not question the fact thatMr Dawkins was overseas. Indeed, it seems that the hearingdate was set in the knowledge that Mr Dawkins was goingoverseas prior to the hearing. Furthermore, although the Re-spondent appears to have questioned the veracity of the rea-sons advanced for Mr Dawkins being unable to return fromoverseas, he does not question that Mr Dawkins was in factunable to return by the given date. Rather than his wifes flubeing the reason for his inability to return, the Respondentappears to have suggested that it was because Mr Dawkinswas off loaded from his nominated flight by reason of beingthe holder of a sub-low ticket, that is, a ticket given to travelagents cheaply and which by reason of that fact does not guar-antee a seat. It was not therefore in dispute that Mr Dawkinswas out of the country and unable to get back in time for thehearing, as had originally been planned. Although the Appel-lant, being a body corporate, has officers other than MrDawkins, it is clear from the material before the Commissionthat he was the person principally involved in and concernedwith the matters in dispute. Thus in all the circumstances itcannot be said that the Appellants request for an adjournmentwas without good reason.

Additionally, the Appellant did not ask for the proceedingsto be put off indefinitely, but indicated that he would be avail-able at a time which was barely three or four days later thanthat upon which the matter was listed. The matter was listedfor hearing on a Friday and Mr Dawkins indicated that he wouldbe back in Australia, and presumably available to take part inthe hearings, on the following Monday or Tuesday. The learnedCommissioner, in considering the request for the adjournment,expressly observed that the Appellant might be able to argueon an appeal that the proceedings were only delayed by oneor two days and the Commission shouldnt have proceeded in(its) absence. In my assessment, that is indeed a valid obser-vation.

Further, although the Respondent was concerned at the timetaken to resolve the matter, there was no suggestion that onceproceedings had been instituted, that the Appellant deliber-ately embarked upon a course to delay those proceedings.Again, as the learned Commissioner observed, when the mat-ter was before the Registrar, the Appellants principal attendedas requested, and so far as the learned Commissioner wasaware, there was nothing in the record of this particular ap-plication that suggests that the Appellants principal set outto delay the proceedings, a proposition with which it seemsfrom the transcript the Respondent agreed. The situation wasnot like that considered in Structor Pty Ltd trading as Interigov. Cooray (1990) 70 WAIG 979, to which the agent for theRespondent referred, where the party ignored the hearing no-tice, failed to appear and then complained about the outcomeof the proceedings. Instead, the Respondent requested an ad-journment, albeit in a rather informal manner, before the pro-ceedings commenced.

Furthermore, and perhaps most significantly , the Respond-ent although he objected to the adjournment and expressed apreference for the matter to proceed there and then, informedthe Commission that he would not suffer any inconvenience ifthe proceedings were not adjourned as long as I have you

know some adequate notice of the (adjourned date) and basi-cally if its not too far away in the future. The Appellantsrequest was such that the proceedings would not be delayedfar into the future.

On the Respondents own admission, there was thus no preju-dice or serious injustice to him if the matter was adjourned, asrequested by the Appellant. On the other hand, there does ap-pear to have been a serious injustice to the Appellant by rea-son of Mr Dawkins having been unable to be present and putthe Appellants case directly and in person to the Commissionor to cross-examine the Respondent as to the matters in dis-pute.

Although the learned Commissioner gave the Appellant anopportunity to make written submissions in respect of theRespondents case, in my assessment it was not enough toremove the prejudice which the Appellant suffered by beingunable, in contradistinction to the Respondent to put its caseor directly challenge the Respondents case in the presence ofthe adjudicator. The limitations inherent in presenting a casein writing are such that it will not often be the case that apresentation in that manner will be a fair substitute for oralpresentation. The Appellant, by its Notice of Answer, amongstother things, denied that any of the claimed benefits were out-standing. Even putting aside the Appellants claim to set offmonies said to be due to it by the Respondent, the Notice ofAnswer raised a number of other matters which might havegiven rise to a different outcome had the Appellant, throughMr Dawkins, been given the opportunity to directly challengethe evidence of the Respondent. In particular, there appears tohave been an issue between the parties as to the meaning andimport of the Respondents contract of employment, at leastwith respect to his entitlement to leave loading and an entitle-ment to payment for public holidays and in respect of the quan-tum of leave already taken. The learned Commissioner didnot accept the Respondents claim in respect of unpaid wagesand one cannot but wonder what might have been the outcomeif the Appellant had had the opportunity to put its case orallywith respect to annual leave entitlements and to cross-exam-ine the Respondent with respect to that matter.

In summary, there was, in my assessment, a good and validreason for an adjournment. Moreover, there was reason to be-lieve that if the adjournment was not granted the Appellantwould be prejudiced. On the other hand, there was admittedlylittle or no prejudice to the Respondent had the adjournmentbeen granted. In the circumstances, I consider that it can prop-erly be said that the learned Commissioners discretion mis-carried on this occasion. In so saying, I do not wish to understate the importance of the Commission disposing of mattersof the kind in question expeditiously, but that cannot be al-lowed to override the obligation to ensure that each party isnot unduly prejudiced in the presentation of its case againstthe other.

The Respondent, by a separate application, sought to havethe appeal dismissed by the Full Bench in exercise of its pow-ers under section 27(1)(a) of the Act on the grounds that, sincethe learned Commissioner made his decision, proceedings as-sociated with it had been before the President by way of anapplication for a stay and before the Industrial Magistrate toenforce the order, each application of which was unsuccess-ful. As the President pointed out in the stay proceedings, whatwas there said and done was to have no bearing on the out-come of the appeal. Likewise, the nature of proceedings forenforcement before Industrial Magistrate are such that theycan have no bearing on the issues raised by the appeal. Equally,for the reasons outlined the Respondents claim that the groundsof appeal are frivolous and vexatious, in my view have nomerit. The suggestion on the part of the Respondent that theAppellant is seeking to adduce new evidence is likewise base-less. Essentially the Appellants complaint is that it was nevergiven a proper opportunity to give evidence. It should, how-ever, be noted that to the extent that the Appellant seeks to putto the Commission material designed to establish that it hadgrounds to dismiss the Respondent, it is misguided. It is anundisputed fact that the Applicant resigned and his resigna-tion was accepted in the knowledge of the material which theApplicant now seeks to tender. In the circumstances any claimto contractual benefits has to be dealt with on the basis of theresignation.


I therefore agree that the appeal should be upheld and, as theAppellant seeks, the order of the Commission should be sus-pended and the matter remitted to the learned Commissionerfor further hearing and determination. Insofar as it is neces-sary to do so, I would dismiss the separate application madeby the Respondent to dismiss the appeal.

COMMISSIONER J F GREGOR: His Honour The Presi-dent has described in detail the events which give rise to thisappeal. I respectfully adopt his description. In 1993 the FullBench of the Commission in the Western Australian Meat In-dustry Commission v. The Australasian Meat Industry Em-ployees Union, Industrial Union of Workers Western AustralianBranch, ([1993] 73 WAIG 2655)(Meat Commission case) de-termined an appeal which had been brought on the basis thatnatural justice had been denied because the Commission haddisposed of a matter without an expert witnesses opinion be-ing subjected to cross examination.

In my Reasons for Decision in that matter I examined thequestion of the right of a party to cross examine. I came to theconclusion that

... leads me to the conclusion that given all of the cir-cumstances in the matter under appeal, the parties wereboth denied access to procedural fairness and thereforethe appeal must succeed. However, I do not accept Mr.McGuires submission that by implication, in all circum-stances there is a right for cross examination. The au-thorities confirm that there is a flexible quality of fairnessand it cannot be said in every circumstance that there is aneed to cross examine although it could be said that theability to cross examination would be high on the list ofthose requirements of natural justice which should be af-forded to the parties in proceedings before the Commis-sion.

I still hold the views I expressed in the Western Meat Com-mission case. I am of the view that the right to cross examina-tion is not absolute given the objects of the Industrial RelationsAct 1979, and the duties and the powers of this Commission.In short my view is that if there has been a refusal to allowcross examination, there needs to be an examination of theparticular circumstances, to discover whether there has been adenial of natural justice.

The first matter that immediately comes for considerationhere is whether or not the Commission did refuse to allow across examination. The Appellant who is the respondent atfirst instance, knew the matter was to be heard but was absentfrom Australia he says through reasons beyond his control.However, he did know the matter was listed, and he decidednot to have a Director of his company appear. For whateverreason he made that decision it is a decision for which he car-ries the responsibility for the outcome.

Next, the Commission at first instance allowed the Appel-lant in these proceedings to make written submissions. He hadbefore him all of the information which had been put to theCommission. It does not appear that at any time during theevents which took place after the day of hearing did the Ap-pellant ask the Commission whether it would re-open the matterfor him to conduct a cross examination of the applicant in thematter below. The grounds of appeal in essence complain thatthere has been a denial of natural justice in that the applicationwas heard and determined in the absence of the respondent. Inthe proceedings before the Full Bench Mr Dawkins who ap-peared for the Appellant particularised that complaint to thedenial of the opportunity for cross examination. He also wishedto present what he described as additional evidence whichhe had been able to collect since the date of the hearing. Idont intend to comment on this last as I respectfully agreewith the way His Honour has disposed of that matter in hisReasons for Decision. However, I understand the Appellantsfundamental complaint to be that [he was] denied the oppor-tunity on this previous occasion to cross examine people whowere there on that particular day.

It is my view that much of the responsibility for the positionwhich the Appellant finds himself must rest with him. Forwhat ever reason, it appears that he did not seek leave fromthe Commission for it to re-open the matter by way of hear-ing, where he could conduct cross examination. The best glossone can put on that from his point of view is that he did notrealise that he had the opportunity to do so at any time the

matter was on foot. Instead, he took the Commissions letterof invitation to provide written submissions as a decision finalby the Commission as to how it would deal with the Respond-ents case. The history of this matter leads one to the conclu-sion the Appellant has arrived late at the realisation that heshould cross-examine the applicant. He now seeks to remedythis deficiency, a deficiency for which he is the architect, byasserting that he was denied natural justice by the Commis-sion at first instance.

If the circumstances of this case are not as they are I woulddismiss the appeal, but for whatever reason the Appellant hasbeen denied an opportunity to test the applicants evidence onan important matter upon which a finding to the Appellantsfinancial detriment has been made. For that reason and thatreason alone I agree that the appeal ought be allowed. Theorder made at first instance should be suspended and the mat-ter remitted to the Commission to hear and determine the ques-tion of whether the respondent in this appeal was entitled toclaim annual leave payments, the subject of his claim at firstinstance.

THE PRESIDENT: For those reasons, the appeal is upheld,the order made at first instance suspended and the matter re-mitted back to the Commission to hear and determine the ques-tion of whether the respondent was entitled to claim annualleave payments, the subject of his claim at first instance.

Order accordingly.Appearances: Mr J Dawkins on behalf of the appellant.Mr C Young, as agent, on behalf of the respondent.

WESTERN AUSTRALIANINDUSTRIAL RELATIONS COMMISSION.

Industrial Relations Act 1979.

Grovenor Pty Ltd t/a Harvey World Travel (Sorrento Quay)(Appellant)

andM Buckley.

(Respondent)No. 1128 of 1996.

BEFORE THE FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEY.

SENIOR COMMISSIONER G L FIELDING.COMMISSIONER J F GREGOR.

16 December 1996.Order.

THIS matter having come on for hearing before the Full Benchon the 12th day of November 1996, and having heard Mr JDawkins on behalf of the appellant and Mr C Young, as agent,on behalf of the respondent, and the Full Bench having re-served its decision on the matter, and reasons for decision be-ing delivered on the 16th day of December 1996 wherein itwas found that the appeal should be upheld, it is this day, the16th day of December 1996, ordered as follows

(1) THAT appeal No 1128 of 1996 be and is hereby up-held.

(2) THAT the decision of the Commission in applica-tion No 164 of 1996 made on the 30th day of July1996 be and is hereby suspended and the matter beand is hereby remitted back to the Commission atfirst instance to hear and determine the question ofwhether the respondent was entitled to claim annualleave payments, the subject of his claim at first in-stance.

(3) THAT the application by the respondent herein pur-suant to s.27(1)(a) of the Industrial Relations Act1979 (as amended) be and is hereby dismissed.

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

[L.S] President.




Steven Stanik

(Appellant)

and

Wonwalls Pty Ltd t/a Wonder Walls

(Respondent).

No 1563 of 1996.

BEFORE THE FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEY

SENIOR COMMISSIONER G L FIELDINGCOMMISSIONER A R BEECH.

20 December 1996.

Reasons for Decision.THE PRESIDENT: This is an appeal brought under s.49 ofthe Industrial Relations Act 1979 (as amended) (hereinafterreferred to as the Act) against the decision of the Commis-sion at first instance, constituted by a single Commissioner.

By that decision, the Commission dismissed an applicationby the appellant whereby he alleged that he was unfairly dis-missed and claimed compensation and contractual benefits. Inthe end, he sought orders for compensation and contractualbenefits.

It is against that decision that the appellant now appeals onthe following grounds

1. Commissioner RH Gifford erred in fact and in law:i) in finding that Mr Luck for the Respondent,

did not terminate Mr Staniks employment, nordismiss him from his employment;

ii) by ruling that the Commission is without au-thority or jurisdiction to deal with the claimpursuant to Section 29(b)(i) of the IndustrialRelations Act, 1979, He has ignored well es-tablished case law from the Industrial AppealCourt and in doing so, the Commissioner hasignored the substantial part of the evidence inrelation to the plain of his Reasons for Deci-sion.

iii) when he determined that the Commission hasno ability to investigate any further aspects ofalleged unfairness or denied contractual ben-efits.

2. Commissioner RH Gifford erred in fact:i) by finding that the appellant resigned from his

position with the Respondent on or about 8March 1996, following an early morning dis-cussion between Mr Stanik and Mr Luck inthe Respondents office. In doing so, thelearned Commissioner has

a) ignored the evidence given by MrStanik which indicated he had no in-tention of resigning on that day;

b) ignored evidence which demonstratedthat Mr Stanik had recently entered intoa financial commitment with respect toa home mortgage, and had no intentionof abandoning or resigning from hisposition with the Respondent;

c) Mr Stanik had not initiated any discus-sion about any alleged shortcomings atwork or immediate medical problemsthat would prevent him from carryingout his normal work duties.

ii) when ruling that the termination was done onthe initiative of Mr Stanik, because of his al-leged condition of cement dermatitis.

iii) when he ignored the facts given on the origi-nal Employment Separation Certificate, whichwas completed by the employer, which statedthat in the section for reasons for voluntary

termination of employment: employee can-not continue in concrete industry because ofallergy ie cement dermatitis.

iv) when he ruled that Mr Luck for the Respond-ent was keen for Mr Stanik because of hisbeing faced with a second onset of cement der-matitis, to review whether he should seriouslyconsider stopping working in the concrete in-dustry, but change to working in another in-dustry. There was no medical evidence givenby Dr DR Bott, a medical practitioner, in re-spect to long term effect of the cement derma-titis which would prevent Mr Stanik fromcontinuing to work in his proper duties withthe Respondent. There was no evidence whichconfirmed that the contents of the EmploymentSeparation certificate, namely the cement der-matitis, was the actual cause of the discussionin the Respondents office. The learned Com-missioner erred in fact when he confused theevidence concerning cement dermatitis beingthe reason why Mr Stanik resigned from hisposition with the Respondent. There was nomedical evidence given which related to ce-ment dermatitis actually being caused duringthe employees employment with the Respond-ent, nor with it preventing him long term fromcarrying out his normal duties.Mr Luck made no prior investigation or en-quiries either with medical advice or with theAppellant, in respect to Mr Staniks ability tocontinue his employment due to his cementdermatitis condition, nor did he raise his con-cerns with the Appellant at that time.

3. The learned Commissioner ignored the medical evi-dence given by Dr DR Bott, in respect to the differ-ences between acne and cement dermatitis.

4. The learned Commissioner erred in fact and in lawwhen he determined in his Reasons for Decision thatbased upon the evidence given by Mr Luck, the be-haviour of the Appellant, as well as his ability tocarry out his work due to his poor work attitude andmedical condition deteriorated due to the fact that

a) there was no evidence given to the Commis-sion that Mr Stanik was ever given any warn-ings orally or in writing by Mr Luck or MrStaniks supervisor.

b) he ignored the evidence of other witnesses inrespect to the alleged unhappiness of the Ap-pellant in the workplace.

c) he ignored other evidence given to the Com-mission, which stated that the workplace wasa happy workplace, with Mr Stanik fitting intothe place quite happily.

d) he indicated that the reason why Mr Stanikwent on workers compensation leave was dueto his unhappiness or due to his inability toobtain further sick leave.

5. The learned Commissioner erred in fact and in lawwhen he suggested in his Reasons for Decision thatMr Stanik had every intention of looking for anotherposition, and he failed to take into consideration theevidence in respect to the dismissal over the telephoneby the Respondents Mr Luck on or about 6 March1996.

6. The learned Commissioner erred in law when heruled that the conversation was not in relation to thetermination of employment, and ignored establishedcase law in respect to termination of employment atthe initiative of the employer.

7. Even if Mr Stanik had resigned his position at thefinal day of employment, the then Commissionererred in fact and in law in finding that the termina-tion was on the initiative of the employee, in so faras it was clearly a constructive dismissal. The em-ployee was clearly under the impression that the


employer was giving him no option but to resign orface dismissal.

REASONS WHY IT IS IN THE PUBLICS INTERESTFOR THE APPEAL TO BE HEARD:

1. Immediately prior to his termination, the Appellantwas on workers compensation payments due to a tem-porary dermatitis complaint. He was still under medi-cation during his final exit interview.

2. The learned Commissioner has ignored substantialparts of evidence given by several witnesses.

3. The conclusions by the learned Commissioner go be-yond the discretion of the Commissioner under theAct.

RELIEF SOUGHT:1. The Appellant seeks that the Order of Commissioner

RH Gifford be quashed, and replaced by the follow-ing substituted order:

a) That Order No. 474/1996 dated 10 October1996 be quashed;

b) That the Appellant was harshly, unfairly andoppressively dismissed by the Respondent onor about 6 March 1996.

c) That the matter be remitted back to Commis-sioner RH Gifford for determination of com-pensation in lieu of reinstatement.

d) The Appellant has been denied natural justicein this Commission.

BACKGROUND AND EVIDENCEThe appellant was employed by the respondent company,

commencing in June 1994, as a labourer. He was engaged byMr Edwin Arthur Gambrell, who was responsible for the re-spondents factory operation. He was involved in the produc-tion of concrete retaining walls at the respondents factory.His duties mainly involved stripping panels and moulds, con-crete mixing and forklift driving. He was one of a team of fiveemployees involved in the factory.

The respondents managing director, at all material times,was Mr Graham Robert Luck.

There was a conflict in the evidence in this matter.There was evidence on both sides as to Mr Staniks history

as an employee.Mr Steven Stanik gave evidence on his own behalf. Dr

Donald Roland Bott, a medical practitioner, James ArthurGreen and Elaine June Davis gave evidence for the appellant,at first instance. There was evidence given for the respondent,at first instance, by Mr Graham Robert Luck, Mr KevinNewman, Mr Edwin Arthur Gambrell and the respondentssales operation manager, Mr Norman Barry Thomas.

In mid-February 1996, Mr Stanik contracted cement derma-titis. (He had initially contracted that disease in February 1995).On 19 February 1996, he went to his doctor, Dr Bott, whoinitially advised him to take a week off work.

Mr Luck said that Mr Stanik attended work on 23 February1996 and showed him the effects of the dermatitis. Mr Luckwas aware that Mr Stanik had suffered from the disorder pre-viously in his employment with the respondent. Mr Lucksevidence was that he told Mr Stanik, on that day, that, becausethere was a recurrence of the disease, it might be appropriatefor him to look for a job in a different industry. Mr Lucksevidence was that Mr Stanik said words to the effect of Ifyou want me to leave, it will cost the insurance company a lotof money. Mr Staniks evidence was that he had no recollec-tion of such a conversation, nor did he recall attending workon that day.

There was then clearly a telephone conversation betweenMr Luck and Mr Stanik on 6 March 1996. Mr Stanik telephonedMr Luck and advised him that he had received a medical clear-ance from his doctor. He said that he would start work nextday. Mr Lucks evidence was that he, Mr Luck, said that if thecement dermatitis troubled Mr Stanik on returning to work,then he ought to consider getting a job in a different industry.Mr Staniks evidence was, however, that he told Mr Luck thathe was going to attend work next day, and Mr Luck said to

him that he, Mr Luck, hoped that he, Mr Stanik, had beenlooking for a job for the last two weeks. Mr Staniks evidencewas that he then said Why?, and Mr Luck said BecauseIm going to sack you. Mr Stanik said that Mr Luck then toldhim that he (Mr Luck) would give him another couple of dayswork. Mr Stanik denied that Mr Luck told Mr Stanik that heshould consider getting a job in another industry if the cementdermatitis troubled him when he returned to work. Mr Luckdenied that he had informed Mr Stanik, in that telephone con-versation, that he would be dismissed.

On 7 March 1996, Mr Stanik returned to work. Mr Staniksaid that, as a result of the conversation, he knew that he wouldbe dismissed on the Friday. Mr Stanik said that he spoke to MrGambrell who said that he knew nothing about the matter. MrGambrell had no recollection of this conversation.

On Friday, 8 March 1996 Mr Luck invited Mr Stanik to hisoffice to resolve the situation. There was a conflict, in theirevidence, over what was said. Mr Luck said in evidence thathe asked Mr Stanik whether he remembered a conversationwhich they had had six months previously about Mr Stanikbeing unhappy. He also asked him whether Mr Luck could doanything about it. According to Mr Luck, Mr Stanik said thathe did not care and Mr Luck could do what he liked. Accord-ing to Mr Luck, Mr Stanik replied I dont care, you can dowhat you like, it doesnt matter because Ive got another job,and I can start tomorrow. Mr Luck said that by that he under-stood that Mr Stanik had resigned. He then said to Mr Stanikthat this was the best solution and Mr Stanik should leavestraight away, but should come back for his pay.

Mr Stanik said that at 8.30 am when they met Mr Luck wasgoing to sack him. Mr Luck, according to Mr Stanik, said thatMr Stanik had been unhappy for six months and Mr Luck hadnot been happy with him. Mr Stanik said that Mr Luck thenasked him if he had anything to say, and Mr Stanik gave evi-dence that he answered by saying Well, obviously I am notgoing to change your mind, to which Mr Luck replied No,youre not. Mr Luck then said that he could pick his wagesup at 1.00 pm. Mr Stanik therefore claimed that he had beendismissed and did not resign. There was evidence from MrThomas which partially corroborated this version by Mr Luckof the discussion.

However, Mr Thomas also gave evidence that Mr Luck saidto him after Mr Stanik left that Mr Stanik had another job, andthat, by mutual agreement, he left having been given a weekspay in lieu of notice. That evidence was, of course, in part,hearsay. Little weight was attached to this evidence by theCommission at first instance.

There was evidence from Mr Luck and Mr Gambrell that,from the middle of 1995, Mr Staniks behaviour at work dete-riorated, and that he provoked arguments and was unco-op-erative.

After visiting a dermatologist on 4 August 1995, Mr Staniktook the full day off and was upset when he only received halfa days sick pay, Mr Luck said.

In late September 1995, Mr Luck said that he approachedMr Stanik because the latter was unhappy and asked him ifthere was something which he, Mr Luck, could do about it.Mr Stanik told him that there was no problem. Mr Gambrellgave evidence that he did not think that Mr Stanik was toohappy in his job.

In October and November 1995, Mr Stanik was absent on anumber of occasions, some of which were paid sick leave ab-sences, and some of which were paid as annual leave. How-ever, Mr Stanik remained unhappy until his absence on workerscompensation in February 1996. Mr Stanik, however, said thathe never considered himself unhappy. He did say that, in No-vember 1995, he was annoyed when he was not paid for thewhole of three day absence, on the basis that the full amountwas due to him.

There was also evidence from Mr Kevin Newman, a factoryemployee, that, after Mr Stanik left his interview with Mr Luckon 8 March 1996, Mr Stanik said I told him he could stickit. Mr Stanik, however, said that he had told Mr Newmanthat Mr Luck had sacked him.

The Commission at first instance preferred the evidence ofMr Luck, having regard to the corroborating evidence of MrGambrell.


There was evidence about a separation certificate (see ex-hibit C4, page 26 of the appeal book (hereinafter referred to asAB)) which had on it the notation Employee cannot con-tinue in concrete industry because of allergyie cement der-matitis. There was a tick inserted in the box opposite the wordsunsuitability for this type of work. The Commission at firstinstance accepted Mr Lucks evidence that he did not tick anyof the boxes on the form.

FINDINGSThe Commission at first instance made the following find-

ings(1) Mr Luck was keen for Mr Stanik, his being faced

with the onset of cement dermatitis, on the secondoccasion, to review whether he wanted to considerworking in another industry where he would not bein contact with cement.

(2) That such a position was put was not necessarily theprecursor to a termination of employment.

(3) That this was the case of confronting an employeewith the implication of an inherent disability fromworking in a particular industry, but leaving the op-tion of any action to the employee.

(4) That it was raised on more than one occasion be-cause there was no response one way or the otherfrom Mr Stanik.

(5) That at the meeting on 8 March 1996, Mr Luck wasactually seeking to confront the wider question ofMr Staniks unhappiness with the job, to try to clearup an issue that had been outstanding for a longperiod of time, not in the context of presenting MrStanik with no option.

(6) That it was reasonable for Mr Luck to treat that re-sponse as constituting an act of resignation by MrStanik from his position at the company.

(7) That none of the boxes on the separation form wereticked by Mr Luck.

(8) That Mr Luck did not terminate Mr Staniks employ-ment or dismiss him from that employment.

(9) That the claim by Mr Stanik for workers compensa-tion payments arose from the Workers Compensa-tion and Rehabilitation Act 1981, that theCommission was unable to enforce that Act, and theclaim must therefore be refused.

ISSUES AND CONCLUSIONSThe decision at first instance depended on the Commissions

preference of the evidence of the respondents witnesses evi-dence over that of the applicant. This preference was made,the Commission at first instance having had the advantage ofseeing and hearing the witnesses. There was almost a directconflict between much of the evidence of the applicant andthat of Mr Luck and Mr Gambrell.

The law is clear. A finding of fact by a trial judge, based onthe credibility of a witness, is not to be set aside because anappellate court thinks that the probabilities of the case areagainst, even strongly against, that finding. If the finding de-pends to any substantial degree on the credibility of the wit-ness, the finding must stand, unless it can be shown that thejudge has failed to use or has palpably misused his advantage,or has acted on evidence which was inconsistent with factsincontrovertibly established by the evidence or which was glar-ingly improbable (see Devries and Another v Australian Na-tional Railways Commission and Another [1992-1993] 177CLR 472 at 479 (HC) per Brennan, Gaudron and McHughJJ).

The most significant findings were that Mr Luck had notdismissed Mr Stanik, and that Mr Stanik had resigned. Oncethose findings were made, the Commission had no jurisdic-tion since there was no dismissal. The Commission at firstinstance found this, accepting Mr Lucks version of what oc-curred, partly corroborated by Mr Thomas evidence. Althoughthere was not a specific reference to Mr Newmans evidence,it is implicit that that evidence was accepted, and it should notbe overturned unless the advantage enjoyed by the Commis-sion at first instance was misused (see Abalos v AustralianPostal Commission [1990] 171 CLR 167 (HC)).

The essence of the conversation of 8 March 1996 was thatMr Staniks answer to Mr Lucks question about what actionMr Stanik would take about his unhappiness in the job, thatMr Luck could do what he liked, and, further, that Mr Stanikhad another job which he could start the following day, didamount to a resignation. That was a finding open to the Com-mission. It was all the more so because Mr Newman said thatimmediately after the interview Mr Stanik said to him I toldhim to stick it. If that evidence were accepted, together withthe evidence of Mr Luck, that Mr Luck paid Mr Stanik outand signed a separation certificate, then there was certainly aresignation.

Nothing was submitted to the Full Bench to the effect thatthe Full Bench should find that the Commission had erred inany way referred to in Devries and Another v Australian Na-tional Railways Commission and Another (op cit) (HC)).

Ground 2(ii) contains complaints that the Commission atfirst instance had not made certain findings in accordance withthe evidence of Mr Stanik. I make the following observations.First, once the Commission had accepted the evidence of MrLuck and other witnesses, he did not accept Mr Staniks evi-dence. Second, ground 2(ii) has no merit because the Com-mission did not make a finding that termination was effectedon the initiative of Mr Stanik because of his alleged conditionof cement dermatitis (see pages 12-14 (AB)).

Ground 2(iii) contains a complaint that the Commission atfirst instance ignored the facts, given that the original Em-ployment Separation Certificate completed by the employerstated in the section Give reason for voluntary termination ofemployment or for unsatisfactory work performance Em-ployee cannot continue in concrete industry because of al-lergyie cement dermatitis.

In evidence, Mr Luck explained that he inserted that state-ment because it might assist Mr Stanik to get benefits. MrLucks evidence was accepted. In any event, that statement isnot necessarily significant evidence, having regard to all theother evidence that Mr Stanik did resign.

I make a similar comment in relation to ground 2(iv) as toground 2(iii).

The fact was, insofar as it was relevant, that it was foundthat Mr Luck was keen because of a second outset of cementdermatitis, that Mr Stanik review whether he should considerworking in another industry than the concrete industry. Thatground is not made out.

As to ground 3, the evidence of Dr Bott as to the differencesbetween acne and cement dermatitis were simply not relevantto determining whether there was a resignation or a dismissal.That ground is not made out.

As to ground 4, once the Commission at first instance ac-cepted the evidence of Mr Luck and the other witnesses suchas Mr Gambrell, and rejected the evidence of Mr Stanik, thesematters were irrelevant in finding that his attitude to his workworsened. There was clear evidence from Mr Luck and MrGambrell to this effect. There was ample evidence on whichto so find. There was also evidence of discussions about hisattitude. That ground is not made out.

As to ground 5, I would merely observe that the Commis-sion did not to take into account the evidence of Mr Stanikalleging the dismissal over the telephone by Mr Luck on orabout 6 March 1996 because the Commission did not acceptMr Staniks evidence.

Ground 6 is not made out for the same reasons.Ground 7 is not made out because the Commission at first

instance, accepting the evidence of Mr Luck, found that therewas a resignation and not a dismissal. There was no evidencethat the employee was under the impression that the employerwas giving him no option but to resign or face dismissal.

I have considered the evidence and the submissions care-fully. The substantial evidence is as outlined above. There werefindings of fact made by the Commission at first instance basedon the credibility of witnesses. The probabilities of the case,once the evidence of one set of witnesses were preferred, werenot against the probabilities of the case. The findings, and theultimate decision, depended to a substantial degree on the cred-ibility of the witnesses. It was not shown that the Commissionat first instance failed to use or had palpably misused its ad-vantage or had acted on evidence which was inconsistent with


facts uncontrovertibly established by the evidence. It was notshown that the Commission had acted on evidence which wasglaringly improbable.

I would also observe that, as I understood Mr Crossleyssubmissions, he was not submitting that the Commission hadmisused the advantage which it enjoyed at first instance. Fur-ther, as I understood his submissions, he conceded that theappellant was not entitled to orders for workers compensationpayments in his application under this Act. To so concede wasmanifestly right.

For those reasons, no ground of appeal was made out. I woulddismiss the appeal.

SENIOR COMMISSIONER G L FIELDING: The Appel-lant instituted proceedings before the Commission seekingrelief for what he alleged to be an unfair dismissal from hisemployment with the Respondent. As so often happens withmatters of this nature there was a significant conflict in theevidence adduced by and on behalf of the Appellant and thatadduced by and on behalf of the Respondent.

In brief, the Appellant testified that shortly before his em-ployment was terminated he was told by the Respondentsmanaging director, Mr Luck, that he was to be sacked whichhe said in fact occurred a few days later. Mr Luck, on the otherhand, testified that he had spoken to the Appellant shortly be-fore the termination of his employment because the Appellantappeared unhappy in his employment. It was common groundthat the Appellant had been rendered unfit for work at leasttemporarily, because he was suffering from cement dermati-tis. Mr Luck testified that immediately before the Appellantsemployment terminated he spoke to the Appellant and askedwhat he could do about making the Appellants lot happier.Mr Luck says the Appellant responded by saying that it didnot matter because he had obtained another job which he couldstart tomorrow. Mr Luck replied by saying that he thoughtthat this was the best solution for both of them and he wouldprefer if the Appellant left straight away as indeed occurred.

The Appellant called evidence, including evidence from amedical practitioner treating him for his dermatitis, regardingthe cause of his dermatitis and the prognosis for a permanentrecovery. The Respondent adduced evidence to verify its claimthat the Appellant appeared to be increasingly unhappy in hiswork and to support Mr Lucks interpretation of the meetingbetween he and the Appellant at the time of the termination ofthe Appellants employment.

The Commission in the end preferred the evidence of MrLuck where it conflicted with the Appellant. In the circum-stances and not surprisingly, the Commission found that theAppellant had not been dismissed from his employment. Fromthat it necessarily followed that the allegation of unfair dis-missal was not made out and thus the claim was dismissed. Indeciding whose evidence to prefer the Commission noted thatthe Respondents sales operations manager, Mr Thomas, hadheard excerpts of the final meeting between the Appellant andMr Luck and, amongst other things confirmed that Mr Luckhad said to the Appellant that he appeared not to be happy andasked if there was anything he could do to help. Moreover, hetestified that immediately following the meeting Mr Luck cameto him and indicated that the Appellant had another job andthat the Appellants employment had ended by mutual agree-ment. Although reluctant to place much weight on what MrThomas said, because he had only heard a portion of the dis-cussion between the Appellant and Mr Luck, the Commissionnonetheless thought the statement by Mr Luck to Mr Thomassoon after the meeting in question was significant.

The Appellant now contends that the Commission erred infinding that he was not dismissed from his employment withthe Respondent. In the grounds of appeal the Appellant assertsthat the Commission ignored parts of his evidence, most nota-bly the fact that the Appellant testified that he had no intentionof resigning. He also asserted that the Commission ignoredthe medical evidence which was to the effect that the Appel-lant might not continue to suffer from dermatitis even if hecontinued to work in the same environment and also ignoredthe contents of the separation certificate which indicated thatthe Appellant could not continue in the concrete industry be-cause of cement dermatitis. Alternatively, the Appellant con-tends that if indeed he did resign he did so under duress so that

for all intents and purposes his resignation should be seen as adismissal.

Stripped of the unnecessary verbiage, all of the grounds ofappeal essentially challenge the Commissions decision to ac-cept the evidence of Mr Luck in preference to that of the Ap-pellant. Put simply, the learned Commissioner concluded thatMr Luck was a more credible witness than was the Appellant.That decision was made with the benefit of having heard andseen all of the witnesses, a benefit which the Full Bench doesnot have. The Full Bench in common with other appellate tri-bunals has consistently refused to interfere with findings offact, based on an assessment of the credibility of witnesses,made by the Commission at first instance before whom thewitnesses appear. Only if it can be established that the Com-mission has misdirected itself, or that any advantage enjoyedby reason of having seen and heard the witnesses could not besufficient to explain or justify the findings under challengewill it interfere. (see: Devries v Australian National RailwaysCommission & Anor (1993) 177 CLR 472 and see also; TheFederated, Brick Tile and Pottery Industrial Union of Aus-tralia, WA Branch v Bristile Clay Tiles ( 1996) 76 WAIG 4420.)Indeed, the difficulties associated with allowing appeals basedon the weight attached to evidence have frequently been re-ferred to by the Full Bench and are now almost legend. (seeAustralian Workers Union, WA Branch, Industrial Union ofWorkers v Hamersley Iron Pty Ltd (1986) 66 WAIG 322, Cainv Shuttleton (1996) 76 WAIG 4458; Gromark Packaging PtyLtd v The Federated Miscellaneous, Workers Union of Aus-tralia, WA Branch, (1992) 72 WAIG 215.)

Nothing was said by the Appellants agent during the courseof the appeal and nothing is contained in the Appeal Bookwhich in any way leads me to conclude that the Full Benchshould interfere with the learned Commissioners findings offact on this occasion. The Appellants agent referred at lengthto passages of the evidence adduced by and on behalf of theAppellant which show or tend to show that he was dismissed.With great respect to the Appellants agent those submissionsare of no assistance unless and until it is shown why it is thatthat evidence should have been be preferred to the contraryevidence accepted by the learned Commissioner. The Appel-lants agent complained that the learned Commissioner ignoredthe evidence in question adduced by or on behalf of the Ap-pellant apparently because it was not referred to in the learnedCommissioners reasons for decision. The fact that evidenceis not referred to in the reasons does not mean that it was ig-nored. Having regard to the fact that the learned Commissionerconsidered the evidence adduced by and on behalf of the Re-spondent to be the most credible there is little point to be gainedby referring in any detail to evidence to the contrary. In anyevent, it is well established that the obligation to give reasonsfor decision does not require that every element of the factsshould be sifted, analysed and mentioned as the agent for theAppellant appears to suggest. ( see: Pitcher v Langford (1991)23 NSWLR 142); and see too: Federated Miscellaneous Work-ers Union of Australia, WA Branch v Federated Clerks Unionof Australia Industrial Union of Workers, WA Branch and oth-ers ( 1985) 65 WAIG 2033,2034, The Federated Brick, Tileand Pottery Industrial Union of Australia, WA Branch v BristileClay Tiles ( 1996) 76 WAIG 4420.) Furthermore it should beremembered that the Industrial Relations Commission is es-sentially a lay tribunal and parties ought not expect that rea-sons for decision produced by members of the Commissionwill be written as if the Commission was a traditional court oflaw. ( see: Hunter v Beagle Bay Community Inc ( 1994) 74WAIG 1717.)

In my view, the learned Commissioner wrote enough in hispublished reasons for decision to make it plain that he did notfind the evidence adduced by the Appellant as credible as thatof the Respondents managing director, Mr Luck. In those cir-cumstances it is not in the slightest surprising that he did notrefer to the evidence of the Appellant in any detail. Likewisethe fact that the learned Commissioner did not refer to themedical evidence adduced on behalf of the Appellant is oflittle significance. If, as the learned Commissioner found, theAppellant resigned, the prognosis for a permanent recoveryfrom his dermatitis became irrelevant if it ever was relevant.

The agent for the Appellant made much of the fact that theseparation certificate given to the Appellant by the Respond-ent referred to him being unable to continue in concrete


industry because of allergy-i.e.cement dermatitis as being thereason for the termination of his employment. Mr Luck ex-plained why he used that terminology which, in short, wasdesigned to protect the Appellant. Clearly the learned Com-missioner accepted that explanation. That explanation is con-sistent with memorandum given to the Appellant at or aboutthe time his employment terminated outlining the details andthe money paid to him at that time. The memorandum indi-cated that he was given one weeks pay ex gratia not as pay-ment in lieu of notice which might have been expected had theAppellant resigned. Furthermore, it is to be noted that the ref-erence to the Appellants medical condition is contained inthat part of the certificate which, inter alia, deals with volun-tary termination. Moreover, Mr Luck testified that the separa-tion certificate tendered in evidence was not identical withthat prepared by him on behalf of the Respondent to the extentthat it referred to the Appellant being terminated due to un-suitability for the work in question. He testified that he leftblank the box indicating the reason why the employment wasterminated asserting the form tendered in evidence had thebox ticked showing the reason to be unsuitability for the work.He asserted that the box giving that answer had been com-pleted by someone else after the form was handed over. Thelearned Commissioner clearly accepted that to be the case be-cause he expressly found that Mr Luck ticked none of theboxes on the form.

Having accepted the evidence of Mr Luck it was virtuallyinevitable that the learned Commissioner would find, as hedid, that the Appellant was not dismissed from his employ-ment. The evidence of Mr Luck unequivocally indicated thatthe Appellant resigned. Furthermore,the circumstances sur-rounding the resignation as outlined by Mr Luck are not suchas to admit of any allegation that the Appellant resigned underduress. On the contrary, the evidence of Mr Luck is that hewas concerned to find ways and means to help the Appellantbut the Appellant instead preferred to resign saying he hadalternative employment. Thus it was not open to find that therewas a constructive dismissal. Moreover, as Mr Luck suggestedin his submissions to the Full Bench, it ill behoves the Appel-lant to assert now that he was constructively dismissed whenin making submission to the learned Commissioner the Ap-pellants agent expressly stated that it was not a case of con-structive dismissal but rather one of summary dismissal.

In my view none of the grounds of appeal are made out andI would therefore dismiss the appeal.

COMMISSIONER A R BEECH: I agree that the appealshould be dismissed and have nothing to add.

THE PRESIDENT: For those reasons, the appeal is dis-missed.

Order accordinglyAppearances:Mr T C Crossley, as agent, on behalf of the

appellant.Mr G R Luck on behalf of the respondent.



Steven Stanik

(Appellant)

and

Wonwalls Pty Ltd t/a Wonder Walls

(Respondent).

No 1563 of 1996.

BEFORE THE FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEY

SENIOR COMMISSIONER G L FIELDINGCOMMISSIONER A R BEECH.

20 December 1996.

Order.This matter having come on for hearing before the Full Benchon the 5th day of December 1996, and having heard Mr T C

Crossley, as agent, on behalf of the appellant and Mr G RLuck on behalf of the respondent, and the Full Bench havingreserved its decision on the matter, and reasons for decisionbeing delivered on the 20th day of December 1996 wherein itwas found that the appeal should be dismissed, it is this day,the 20th day of December 1996, ordered that appeal No 1563of 1996 be and is hereby dismissed.

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

[L.S] President.


Industrial Relations Act 1979.State School Teachers Union of WA (Inc)

(Appellant)and

The Minister for Education.(Respondent)

No 830 of 1996.BEFORE THE FULL BENCH

HIS HONOUR THE PRESIDENT P J SHARKEY.COMMISSIONER J F GREGOR.COMMISSIONER C B PARKS.

22 January 1997.Reasons for Decision.

THE PRESIDENT: This is an appeal against the decision ofthe Government School Teachers Tribunal (hereinafter referredto as the Tribunal).

By its decision, made on 23 May 1996, the Tribunaldismissed an application by the appellant organisation ofemployees, whereby it sought the orders, directions,interpretation and declarations referred to in the reasons fordecision of the Tribunal (see page 13 of the appeal book)(hereinafter referred to as AB)). Most significant were theorders sought for the permanent stay of an inquiry commencedunder s.7C of the Education Act 1928 (as amended) (hereinafterreferred to as the Education Act).

It is against that decision that the appellant appeals on thefollowing grounds

The Government School Teachers Tribunal erred in law infinding:

1. Regulation 135 of the Education Act did not applyto inquiries instituted pursuant to s.7C of the Educa-tion Act 1928 in that:

(a) It was common ground that at no stage of theinquiry by Ms N Reeves between 1 Septem-ber 1994 and on or about 13 December 1994or in the investigation by Mr D Maisey be-tween 13 December 1994 and 13 February1995 that the procedure in Regulation 135 hadbeen complied with (specifically,

(i) that the Chief Executive Officer did notcause a copy of the complaint madeagainst the teacher by parents or pu-pils or by some other person to be re-ferred to the teacher for his remarks;

(ii) after receipt of the teachers remarks,the Chief Executive Officer shall, if heconsiders the complaint worthy of in-vestigation, inform the complainantthat an investigation of the complaintwill be made upon receipt by the ChiefExecutive Officer of the complaint inwriting on a departmental form andsinged (sic) by the complainant beforea Justice of the Peace and that upon theapplication of the complainant, theappropriate departmental form shouldbe supplied to him;


(iii) if the complaint so signed differs in sub-stance from the original complaint re-ferred to in paragraph (i), no furtheraction shall be taken by the Chief Ex-ecutive Officer and the complainantshould be informed accordingly; but ifthe complaint so signed does not differin substance from the original com-plaint, the Chief Executive Officer maycause an inquiry to be held, and noticeof that inquiry shall be given to theteacher against whom the complaintwas made, and to the complainant, atleast a week before the date fixed forthe inquiry;

(iv) if it appears that (sic) the Chief Execu-tive Officer that the complaint is of anature which would admit of a settle-ment between the parties, without aformal inquiry, every assistance shallbe given to the parties to reach a settle-ment; and

(v) at an inquiry referred to in this Regula-tion, the Officer holding or presidingover, the inquiry may permit a mem-ber of the Parents and Citizens Asso-ciation or one other person, who is nota legal practitioner, to be present;

(vi) the teacher against whom the complaintwas made may, if he so desires, have afriend or an adviser present, and thecomplainant may, if he so desires, havea friend or an adviser present; but thefriend or adviser shall not be a legalpractitioner or a person employed by alegal practitioner.)

2. A determination that compliance with the require-ments of regulation 135 was and is mandatory, mustnecessarily result in a determination that the enquiryinto allegations of misconduct by Mr Phillip Bur-rows has not been conducted in accordance withstatutory authority and is thus null and void.

OrdersThe Applicant seeks:

(a) a declaration that no action now taken by the author-ised person in order to comply with the provisionsof Regulation 135 could render lawful that which isunlawful; and

(b) the Applicant further seeks a declaration that a newappointment by the Chief Executive Officer unders.7C of the Education Act 1928 would not be capa-ble in fact or in law of meeting the requirements ofregulation 135 by reason, inter alia, of the passageof time.

BACKGROUNDThe background to this matter is set out in detail in the

chronology tendered on behalf of the appellant.Briefly, however, what occurred was this. Following

allegations made to the police, anonymously, in 1993, Mr PhilipMurray Burrows, a teacher employed by the respondent, wasarrested and charged on three counts of indecent dealing. Thecharges were dismissed in the Court of Petty Sessions at Perthin 1994. However, the Principal of the school at which MrBurrows taught reported to the District Superintendent withdetails of complaints resulting from interviews with childrenby a psychologist and a social worker.

Notice of the institution of a s.7C inquiry was given to MrBurrows by letter dated 29 August 1994 written by the thenChief Executive Officer of the Ministry of Education. Theauthorised person, Ms Reeves, conducting the inquiry, wasreplaced after Mr Burrows solicitors requested that shedisqualify herself on or about 13 December 1994. The newauthorised person, Mr Maisey, embarked upon the s.7C inquiry.

The application to which I have referred was dismissed for anumber of reasons. The reasons relevant to this appeal (seepages 21-23 (AB)) can be summarised as follows.

It was not correct that an inquiry conducted under s.7C ofthe Education Act may only be embarked upon after theprocedures contained in regulation 135 of the Education ActRegulations 1960 (as amended) (hereinafter referred to as theEducation Act Regulations) have been followed.

The Tribunal relied upon a decision of the Tribunal itself in1987 in SSTU v Honourable Minister for Education 67 WAIG1028.

The Tribunal concluded that s.7C of the Education Act andregulation 135 of the Education Act Regulations were separateand distinct, and that either might be used by the ChiefExecutive.

S.7C of the Education Act reads as follows(1) ... (2) For the purposes of this section a teacher shall be

guilty of misconduct if(a) he disobeys or disregards a lawful order ap-

plicable to him as a person on the teachingstaff of the department;

(b) he fails to comply with or contravenes any ofthe provisions of this Act or the regulations;

(c) he is absent from school without leave;(d) he wilfully makes a false entry in a return or

register;or

(e) he engages in di

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