100213205

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES STEVEN JAMES O'BRIEN

APPELLANT

 - and -

 PERTH METALWORK CO PTY LTD

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER J H SMITH

  COMMISSIONER S WOOD

DELIVERED WEDNESDAY, 20 NOVEMBER 2002

FILE NO/S FBA 19 OF 2002

CITATION NO. 2002 WAIRC 07045

_______________________________________________________________________________

Decision  Appeal dismissed

Appearances

Appellant   Mr M Richardson, as agent and Mr S J O’Brien, on his own behalf

Respondent   Mr S B Watters (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          This is an appeal by the abovenamed appellant, Steven James O’Brien (hereinafter called “Mr O’Brien”), against the decision of the Commissioner at first instance made on 13 March 2002 in application No 778 of 2001.

2          It would seem that the whole of the decision is appealed against, at least from the submissions.

3          The decision is in the following terms (see pages 63-64 of the appeal book (hereinafter referred to as “AB”)):-

“(A) ORDERS THAT leave be granted to amend the claim for compensation from 3 months’ lost earnings to 6 months’ remuneration.

(B) ORDERS THAT the application filed in the Commission on 1 November 2001 for orders pursuant to s.27(1)(l) to amend the Notice of Application otherwise be dismissed.

(C) DECLARES THAT the dismissal of Steven James O’Brien by Perth Metalwork Co. Pty Ltd was unfair and that reinstatement is impracticable;

(D)    ORDERS THAT:

(1)          Perth Metalwork Co. Pty Ltd pay Steven James O’Brien the sum of $4998.90 (less tax) by way of compensation for the dismissal that occurred; and

(2)          Perth Metalwork Co. Pty Ltd pay to a superannuation fund nominated by Steven James O’Brien the sum of $388.62 by way of compensation for the dismissal that occurred; and

(3)          Perth Metalwork Co. Pty Ltd pay Steven James O’Brien the sum of $30.00 being reimbursement to which he is entitled.”

GROUNDS OF APPEAL

4          The appeal is on the following grounds (see pages 2-7 (AB)):-

“1. The Commissioner erred in holding that the appellant caused the respondent to incur loss during the course of his employment. In particular, the Commissioner erred in:

(a) confusing the normal constructive criticism, advice and feed-back that is common to many employment relationships, and particularly during the initial period of employment when the employee is still learning the tasks or assignments that he is required to undertake and the employer’s procedures for effecting those tasks or assignments;

(b)  thinking that any loss caused by the appellant’s lack of familiarity or experience with a particular task or assignment was the fault of the appellant rather than of the respondent;

(c) holding that the appellant caused the respondent to incur time and cost in

• the Inglewood Soccer Club estimate
• the Bunnings Warehouse estimate
• the Bateman Road Mount Pleasant estimate; and

(d) thinking that the appellant made other errors when there was no evidence led to indicate that there were such errors.

 2 The Commissioner erred in holding that the employment was subject to a period of review in the sense that if the review was unfavourable to the appellant the respondent could lawfully and fairly terminate the appellant’s employment.  In particular, the Commissioner erred in:

(a) confusing a review of the employment and of the terms and conditions of the contract of employment with the concept of probation; and

(b) thinking that a future review of the appellant’s performance could have led to a lawful dismissal that was not harsh, unjust or unfair.

 3. The Commissioner erred in holding that there was any reason for the respondent to be dissatisfied with the appellant’s performance. In particular, the Commissioner erred in:

(a) thinking that there was any genuine reason for the respondent to be dissatisfied with the appellants performance; and

(b) thinking that there was any evidence that would have led the appellant to believe that the respondent was dissatisfied with his performance.

 4. The Commissioner erred in not awarding compensation for the loss caused by the dismissal.  In particular, the Commissioner erred in:

(a) holding that the respondent could have fairly dismissed the appellant after a further six weeks because it was more likely than not that the respondent would not have continued the employment beyond the period of probation to which the respondent’s manager believed the employment was subject when the Commissioner had found that the employment was not subject to a period of probation;

(b) holding that it was more likely than not that the appellant would not have remained in employment indefinitely; and

(c) holding that the employment would not have continued indefinitely when there was no evidence of probative value to support a conclusion that the appellant would have left of his own accord or that the respondent would have been able to dismiss the appellant in non-legally remedial circumstances.

 5. The Commissioner erred in not computing the appellant’s weekly loss caused by the dismissal as the weekly remuneration to which he was entitled rather than the weekly remuneration that he was being paid at the time of his dismissal. In particular, the Commissioner erred in:

(a) not taking into account the amount of remuneration to which the appellant was entitled by the operation of The Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award No. R11 of 1979 (“the Award”) on the employment; and

(b) not recognising the principle that the loss was the remuneration to which he was entitled when he had determined the appellant’s weekly loss as being based on an annual salary of $40,000 as agreed in the contract of employment which governed the employment, i.e. the remuneration to which he was entitled under the contract, rather than being based on an annual salary of $42,000 which he was being paid in error, i.e. what he was actually being paid at the time of his dismissal.

 6. The Commissioner erred in not affording natural justice to the appellant in failing to allow him to argue his case. In particular, the Commissioner erred in:

(a) not allowing the appellant to lead evidence as to the applicability of the Award to his employment when the appellant’s case was that the loss caused by the dismissal was dependant on the remuneration to which he was entitled under the Award; and

(b) not allowing the appellant to argue his case that the loss caused by the dismissal was dependant on the remuneration to which he was entitled under the Award.

 7. The Commissioner erred in failing to give reasons for not determining the amount to which the appellant was entitled under the Award as a necessary step in determining the loss caused by the dismissal.  In particular, the Commissioner erred in:

(a) not giving reasons for not hearing the appellants evidence as to the applicability of the Award;

(b) not giving reasons for not computing the remuneration to which the appellant was entitled under the Award; and

(c) not giving reasons for not awarding compensation for loss caused by the dismissal based on the remuneration to which the appellant was entitled under the Award.

 8. The Commissioner erred in failing to apply the fundamental principle that a party should be allowed to amend the proceedings when there was no prejudice to the other party. In particular, the Commissioner erred in:

(a) not determining whether there any prejudice to the respondent;

(b) not having regard to the appellant’s right to bring a claim in any event for a denied contractual benefit and a claim for a payment of an amount to which the claimant was entitled under an award in separate proceedings;

(c) not having regard to the intent of Parliament in enacting s23A(1)(a) of the Industrial Relations Act 1979 to allow an employee who claimed that he had been unfairly dismissed to have all of the claims arising out of his employment determined in one proceeding; and

(d) not having regard to the requirement to determine the question of whether the remuneration to which a claimant in an unfair dismissal claim was entitled under an award governing the employment was a necessary step in determining the compensation to be awarded for loss caused by the dismissal and the maximum compensation that could be awarded under s23A(4) of the Industrial Relations Act 1979.

 9. The Commissioner erred in not having regard to the respondent’s failure to comply with the requests made by the Commissioner at the conference held on 16 July 2001 to provide:

• specified further and better particulars in respect of two statements made by the respondent in its Answer and Counter Proposal;

• extracts from the estimate sheets completed by the appellant; and

• a detailed statement of the appellant’s final pay.

10. The Commissioner erred in not allowing the proposed amendment seeking the monetary value of a benefit that had been denied under his contract of service, that is the period of notice to which he was entitled under the contract.  In particular, the Commissioner erred in:

(a) not allowing the amendment when the respondent did not argue, and the Commissioner did not find, that it would suffer any prejudice if the amendment was allowed;

(b) holding that the claim was not a “true issue in controversy” between the parties;

(c) not making an order for the payment of the remuneration that the appellant would have earned during the period of notice to which he was contractually entitled when he made an order for the payment of $30 in respect of a denied contractual benefit which had not been raised as an issue in controversy; and

(d) holding that there was little chance of success and that the circumstances in Blakeley v Vanpress (1989) 5 SR (WA) 133 were not applicable to the appellant in this case.

11. The Commissioner erred in not allowing the proposed amendment seeking the recovery of entitlements arising under the Award. In particular, the Commissioner erred in:

(a) holding that the claim was “something of an afterthought”;

(b) holding that the claim was not a “true issue” between the parties;

(c) holding that s23A(1)(a) of the Industrial Relations Act 1979 did not extend to the recovery of entitlements arising under a State award;

(d) thinking that the appellant’s submissions sought to distinguish the decision in Chapman v JL and MN Rossiter t/a Armine Painting Services (1998) 78 WAIG 4900 when the appellant’s submissions were that that decision was wrong in law;

(e) thinking that the recovery of an entitlement arising under a State award is the same thing as an enforcement of a State award in the sense that the term “enforcement” is used in s83 of the Industrial Relations Act 1979; and

(f) that the decision in WA Aboriginal Media Association v Hoffman (2000) 80 WAIG 4329 is applicable to the recovery of entitlements arising under a State award.

12. The Commissioner erred in not allowing the proposed amendment seeking compensation for injury caused by the dismissal.  In particular, the Commissioner erred in:

(a) holding that the claim was not a “true issue” between the parties;

(b) holding that it might be open to the respondent to request the appellant to attend a medical practitioner to establish his claim that he suffered injury caused by the dismissal.

13. The Commissioner erred in not having regard to s26(1)(a) and s26(2) of the Industrial Relations Act 1979.

AND THE APPELLANT SEEKS THE FOLLOWING ORDERS:

• the appeal be allowed;

• the rate of remuneration on which the appellant’s loss is to be determined is the remuneration to which the appellant was entitled by operation of The Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award No. R11 of 1979 on the employment;

• the rate of remuneration on which the statutory cap in s 23A(4) of the Industrial Relations Act 1979 is to be determined is the remuneration to which the appellant was entitled by operation of The Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award No. R11 of 1979 on the employment;

• the appellant be awarded compensation for loss caused by the dismissal of six months’ remuneration;

• the appellant be allowed to amend his application as requested in his Notice of Application lodged on 1 November 2001, and the claims in those amendments that were not allowed be heard by the Full Bench or in the alternative be remitted to the Commissioner for determination.”

BACKGROUND

5          Mr O’Brien made application to the Commission pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) alleging that the respondent employer had harshly, oppressively or unfairly dismissed him from his employment.  There was initially a claim for compensation, only.  That application was filed on 7 May 2001 in the Commission.  The application was opposed.

INTERLOCUTORY APPLICATIONS – BACKGROUND AND FINDINGS

6          On 24 October 2001, Mr O’Brien lodged a notice of application for an order for further and better particulars.  The parties were aware, since at least 3 October 2001, that the substantive matter was listed for hearing on 15 November 2001.

7          On 1 November 2001, Mr O’Brien lodged an application to amend the substantive notice of application in this matter.

8          The substantive matter had by then been listed for hearing and determination on 15 November 2001, and the Commissioner at first instance then heard the two interlocutory applications as a matter or urgency on 8 November 2001.

9          Mr Richardson, who appeared on behalf of Mr O’Brien on 8 November 2001, did not press for an order regarding further and better particulars.  Accordingly, that application was dismissed.

10       The Commissioner at first instance did, however, request each party to provide to the other within 24 hours of the commencement of the substantive hearing in the matter, copies of any documents upon which they intended to rely of which the opposing party did not have a copy.  The Commissioner then dealt with the application to amend the notice of application which related to the fact that the substantive application before the Commission was a claim of harsh, oppressive or unfair dismissal and was made on 7 May 2001.  That hearing was adjourned for other interlocutory matters to be dealt with, the substantive matter having been listed for hearing on 15 November 2001.

11       The Commissioner at first instance observed that for Mr O’Brien to now seek leave to amend his claim at such late notice in these circumstances, was an application made “extraordinarily late”, as observed by Mr Watters (of Counsel), who appeared for the respondent at first instance.

12       The amendments sought were as follows:-

“AND THE APPLICANT SEEKS:

an order pursuant to Section 27(1)(l) allowing the amendment of the Applicant’s claim.

…

Orders sought pursuant to section 23

An order that the respondent pay to the applicant the following amounts in respect of a contractual benefit that he was denied.

…

Orders sought pursuant to section 23A(1)(a)

An order that the respondent pay to the Applicant the following amounts to which he is entitled.

…

Orders sought pursuant to section 23(1)(ba)

An order that the respondent pay the applicant for loss and injury caused by the dismissal.

…”

Contractual Benefit Claim:  Reasonable Notice - Findings

13       Mr O’Brien sought to amend his notice of application by introducing a new claim that he had been denied a benefit to which he was entitled under his contract of service.  What he sought to allege was that it was a term of his contract of service that he would be entitled to reasonable notice of 26 weeks.  There was no suggestion prior to this, the Commissioner held, that Mr O’Brien considered that he had been denied reasonable notice, and this was a substantial and significant issue which had not been raised prior to this.

14       A conference was held on 16 July 2001 without this issue having been raised and there was no explanation as to why this issue had only now been raised in close proximity to the commencement of the hearing.

15       The Commissioner observed that an amendment to the application should be permitted if it is necessary to allow the true issues in controversy to be resolved and if it will not result in injustice to the other party which is not capable of being compensated by an award of costs   The Commissioner observed that he was not convinced that the amendment now sought to be made raises a “true issue in controversy” between the parties.  This was the first time, according to the Commissioner, that Mr O’Brien alleged that he was entitled to a notice period of 26 weeks, and Mr Richardson, in fact, conceded that the claim really being made would lie somewhere between “two weeks and 26 weeks”.  That, however, did not reveal that the period of notice had been of itself an issue.

16       On what was before the Commissioner at first instance, Mr O’Brien did not say that the circumstances found applicable in Blakeley v Vanpress (1989) 5 SR(WA) 133 were applicable to him.  In that case, Mr Blakely had been employed for seven weeks before his dismissal, but it was a term of his contract that he be employed for a minimum period of 12 months in circumstances where he left his previous employment of 15 years and moved with his family from Adelaide to Perth.  There was no other authority cited to support the amendment.

17       Leave to amend was refused because the amendment being sought did not represent a true issue between the parties, but, in fact, was something of an afterthought on the part of Mr O’Brien and represented a claim which the Commissioner at first instance held stood little chance of success.

Claim Regarding Benefits Due Arising from an Award - Findings

18       Mr O’Brien sought to amend, also, to assert that Mr O’Brien’s employment was governed by the terms of The Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979, No R 11 of 1979 (hereinafter referred to as “the award”).  He wished to claim that he had not been paid in accordance with the award and to seek an order pursuant to s.23A(1)(a) of the Act for the entitlements which he said were due to him by virtue of the award.

19       In his notice of application, however, Mr O’Brien indicated that he did not believe his employment was covered by any award, and again this was said by the Commissioner at first instance to constitute an afterthought, as it clearly was open to say given the time lapse.

20       Next, the Commissioner said, as a matter of jurisdiction, referring to the decision of Kenner C in Chapman v J L and M N Rossiter t/a Arunine Painting Services (1998) 78 WAIG 4900, that s.23A(1)(a) of the Act did not give the Commission the power to make an order for the payment of an amount to which the employee was entitled under an award of this Commission.  The Commissioner then agreed with what Kenner C said and held that an Industrial Magistrate is given the exclusive jurisdiction to deal with the enforcement of an award.

21       The Commissioner also referred to WA Aboriginal Media Association v Hoffmann (2000) 80 WAIG 4329 (FB) where it was held that the word “entitled” in s.23A(1)(a) does not confer jurisdiction on the Commission to order payment of amounts due to an employee under a Federal award.  The Full Bench reached this decision on the basis that the enforcement of a Federal award is specifically provided for in the relevant statute.  In the same way, the enforcement of a State award is a matter specifically provided for in the relevant statute, and that statute confers exclusive jurisdiction to do so upon an Industrial Magistrate.  Accordingly, that leave to amend the claim was refused.

Claim for Compensation for Loss - Findings

22       The substantive application sought compensation for “three months lost earnings, costs involved in closing and re-opening business”.  Paragraphs 17 to 21 inclusive of the proposed amendment, according to the Commissioner at first instance, sought to particularise the claimed compensation by indicating that the loss caused by the dismissal was significantly more that the statutory cap of six months’ remuneration.  This, the Commissioner held, did little more than particularise the compensation already being sought, and to the extent that the claim for compensation was extended from three months to the six month statutory ceiling he did not believe that this caused sufficient prejudice to the respondent for it to be rejected.  The Commissioner therefore gave leave to amend the claim.

Claim for Compensation for Injury Caused by the Dismissal - Findings

23       Paragraphs 22 to 24 of the proposed amendment sought to claim compensation for injury.  There was no doubt that s.23A of the Act gave the Commission the power to award compensation for injury arising from a dismissal.  The Commissioner noted that there was no suggestion of injury arising from the dismissal referred to in the notice of application in the substantive matter lodged in the Commission on 7 May 2001, nor in any other proceedings until just before this hearing on 15 November 2001.

24       The Commissioner at first instance held that in his view the notice of application in the matter raised the same issues as did Mr O’Brien seeking to amend the application to claim a denied contractual benefit.  For similar reasons, he was not satisfied that the amendment being sought represented a true issue between the parties and leave would not be granted to amend  Any claim for compensation arising from the dismissal was therefore limited to the matters set out in the original notice of application as that was amended by paragraphs 17 to 21 inclusive of the proposed amendments.  The application was otherwise dismissed.

The Application Proper - Background

25       There was evidence given for the appellant, the applicant at first instance, by himself and by his uncle, Mr Colin John Pearce, a financial consultant.  There was evidence given for the respondent by Mr Mario Galipo, a director of the respondent and the workshop manager, as well as by Mr Carl Cicanese, the manager.

26       Mr O’Brien’s claim was that his dismissal on 9 April 2001 was harsh, oppressive or unfair.  He had been employed by the respondent for six weeks from 26 February 2001 until the date of his dismissal on 9 April 2001. He was employed as an estimator by the respondent.   He said that he was approached by the respondent to work for it as an estimator.  The person who approached him was Mr Carl Cicanese, the manager.  It would seem that the business of the respondent company is fabrication of metal structures.  He said that he was not given reasons for his dismissal, and he did not seek reinstatement.  Originally he sought compensation in an amount equal to three months’ lost earnings and the costs involved in the closing and re-opening of his own private business.

27       The respondent’s case was that one of the conditions of his employment was a probationary period of three months, that it was clear that during that period Mr O’Brien was not capable of performing the basic duties of estimating and site measurements, and that on 9 April 2001 he was advised that he was considered unsuitable for the estimator’s position, and when he asked why it was fully explained to him.  He was offered an alternative position within the company as the workshop foreman or manager, and this was rejected by him, it being alleged that he became aggressive and emotional and yelled abuse until he left the premises.

28       Mr O’Brien strongly denied that he was employed for a probationary period and gave his evidence-in-chief by way of an affidavit.  He notes in the affidavit that the actual words and language used in it are not always his own words but rather the words and language of his agent, but confirmed it as being true and accurate.  He had completed an apprenticeship as an engineering tradesperson (fabrication) in February 1996.  Before he entered into employment with the respondent, he ran his own business called Quality Design Steel, and it is this business which he has re-established after his dismissal.  His evidence was that he was never told that his performance was unsatisfactory and that he was in danger of being dismissed for incompetence or for unsatisfactory performance.

29       In January 2001, Mr O’Brien was contacted by Mr Carl Cicanese, whom he understood to be the manager of the respondent, who offered him a job.  He told Mr Cicanese that he was not able to use a computer at all, although the job was estimating and quoting for jobs and ordering steel for fabrication and installation (see page 41 (AB)).

30       Mr Cicanese’s evidence was that Mr O’Brien was struggling as an estimator and there were a number of jobs which created difficulties.  They were Inglewood Soccer Club, Bunnings Midland Warehouse, Castlereagh School, Bateman Road, Mt  Pleasant and Palmyra Pizza Hut.  The allegations by Mr Cicanese were that Mr O’Brien could not do the job.  Mr Cicanese told him on 9 April 2001 that he was being dismissed because he was unsuitable.

FINDINGS AT FIRST INSTANCE

31       The Commissioner at first instance found, and I summarise, as follows:-

(a)               While there is no specific agreement in the terms of a three month probationary period, it was a term of Mr O'Brien’s contract of employment that he would commence employment and be subject to a review at a later stage.

(b)               That Mr O'Brien’s employment was subject to a period of review.

(c)               That, whilst his evidence was that he would not have accepted the employment if it had been subject to a period of probation, he nevertheless accepted the employment on the basis that there would be a review, and that in one sense, they amount to the same thing in that a review will include at least an assessment by the respondent of the period of Mr O’Brien’s employment.

(d)               Further, that even though Mr O’Brien suggests that he would not have accepted the offer of employment, which meant closing down his own business, if he did not have long term prospects of employment, there was no suggestion by him that he sought a term to be included in his contract of employment that he would be guaranteed a minimum period of employment or that he would be entitled to a minimum period of notice.

(e)               That it was a term of Mr O’Brien’s contract of employment that it would be subject to review and if no time was agreed for the review to take place then it could occur at any time after his employment commenced, including six weeks into his employment.

(f)                That, on the evidence, despite the dispute as to whether he was dismissed or not, Mr O’Brien was, indeed, dismissed as an estimator, and it is that dismissal that he brings to the Commission claiming unfairness.

(g)               That the evidence did not establish that Mr O’Brien was incompetent, and, in any event, his dismissal was not summary.

(h)               That while there may have been constructive criticism or advice, he was unaware that his work performance was such that the respondent considered him unsuitable.

(i)                 That it was unfair of Mr Cicanese to attribute blame to Mr O’Brien when it was possible that the blame lay elsewhere.

(j)                 That Mr O’Brien was not given a fair go, that fairness would require, at least, that he be told that his employment was in jeopardy, and that he was unlikely to survive the period of probation, as Mr Cicanese believed it to be.  If there was a period of probation, as Mr Cicanese believed, the employer must give the employee a proper opportunity to prove himself/herself and to warn the employee of the possible consequences of a failure to improve.  Provided this is done, an employee who is on probation would have little cause to complain if a decision was taken during the course, or at the end of the probationary period, to terminate the employment (see East Kimberley Aboriginal Medical Service v ANF (2000) 80 WAIG 3155 (FB)).

(k)               That Mr O’Brien’s dismissal was unfair for that reason.

(l)                 That there was no reinstatement ordered.

(m)            The Commissioner at first instance applied the principles laid down in Bogunovich v Bayside Western Australia (1998) 79 WAIG 8 (FB)).

(n)               That in his original claim Mr O’Brien stated that his loss should include the loss to him of the costs associated with the closing and then re-opening his own business.  This claim was not pursued.

(o)               That, given Mr Cicanese’s view that Mr O’Brien’s employment was subject to a three month probationary period, it appears more likely than not that Mr Cicanese would not have continued Mr O’Brien’s employment for more than a further six weeks.  There was nothing in Mr Cicanese’s evidence which could allow a conclusion that he would have regarded Mr O’Brien’s employment as indefinite.

(p)               That Mr O’Brien did not fail to mitigate his loss in refusing to accept the position in the workshop.

ISSUES AND CONCLUSIONS

Discretionary Decision

32       All of the decision appealed against was a discretionary decision as that is defined in Norbis v Norbis [1986] 161 CLR 513 (see also Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348 (HC)).

33       Also, in addition, the principle in Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 applies where the Commission has made findings, as it did, dependent upon the advantage enjoyed by the Commission in seeing the witnesses (see also State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306).

The First Part of the Application to Amend

34       Mr O’Brien sought first to amend his application by introducing what was clearly a new claim, namely that he had been denied a benefit to which he was entitled under his contract of service, because, as he sought to allege, it was a term of the contract of service that he would be entitled to reasonable notice of 26 weeks.  This issue had not been raised before that time.  Indeed, the Commissioner at first instance observed that there was no suggestion prior to the filing of the application that Mr O’Brien had been denied reasonable notice, it having not been raised at the conference in the Commission in July 2001 or after the conference.  The Commissioner also observed that there did not appear to be any explanation why the issue had been raised “in close proximity to the commencement of the hearing”.  S.27(1)(m) of the Act certainly does not prohibit such an application being made.  It was contended that one amendment sought was not opposed but I can find no such point of view expressed in relation to any of the amendments not allowed.  (There is no transcript and no evidence that this was the case).

35       I would also add that the power which the Commission was asked to exercise the power to amend conferred by s.27(1) is not a great deal different from the general power in the Supreme Court under the rules of court which exist to allow an amendment of a document at any stage of a proceeding.  The power of amendment is correctly characterised as existing to determine the real question in controversy between the parties, or, put another way, to decide the merits of the dispute.  The power to allow amendments is a discretionary power.  There is no requirement imposed on the court to allow an amendment.  It is all a question of what the court considers to be just in the circumstances (see Cairns “Australian Civil Procedure” (4th Edition), at page 292).

36       In Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345, Taylor J said:-

“If a party satisfies the court that he genuinely desires to amend his pleadings so as to modify or alter an existing claim or defence as to introduce a new claim or defence he should be permitted to do so subject to proper terms unless the proposed amendment is obviously futile or would cause substantial injustice which cannot be compensated.”

37       Lord Brandon summarised the principles for giving leave to amend a pleading in Ketteman v Hansel Properties Ltd [1987] AC 189 at 212:-

“First, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided.  Secondly, amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them; it is not the function of the court to punish them for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights.  Thirdly, however, blameworthy (short of bad faith) may have been a party’s failure to plead the subject matter of the proposed amendment earlier, and however late the application for leave to make the amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party.  Fourthly, there is no injustice to the other party if he can be compensated in costs.”

38       The principle was well expressed, too, by the Federal Court in Londish and Others v Gulf Pacific Pty Ltd (1993) 117 ALR 361 where the Full Court of the Federal Court (Neaves, Burchett and Ryan JJ) held that, in an application to amend the pleadings before the completion of the hearing, or after the hearing, but before the judgement has been given, the essential principle is to do justice between the parties, and, broadly speaking, the amendments should be allowed unless the embarrassment or prejudice caused to the opposing party, if any, cannot be cured by adjournment and costs.  The object of the courts is not to punish parties for mistakes in presenting their case, unless fraudulent or intended to overreach, but to ensure that a decision can be made on the real matters of controversy.  A distinction had to be drawn between an amending party who is not at fault, or whose fault was slight, and a party who sought to amend as a result of its own carelessness or incompetent conduct of its case.  Since it is plainly intended by the rule that relief might be granted even in cases of the latter kind, the former had a claim to amend, a fortiori, although still dependent upon the exercise of a judicial discretion.

39       In Ketteman v Hansel Properties Ltd (op cit) at page 220, Lord Griffiths observed that whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies; many diverse factors will bear upon the exercise of the discretion.  His Lordship referred to the strain of litigation, the anxieties raised by the raising of new issues, and the public interest in containing the cost of litigation.

40       In Cairns “Australian Civil Procedure” (op cit), at page 293, the following is observed:-

“A party therefore should be allowed to make any necessary amendment so that the merits of the controversy are submitted for the decision of the court.  Terms as to costs may be imposed as a condition of the amendment.”

41       In this jurisdiction, of course, there are two significant features.  One exists in the terms of s.26(1)(a) of the Act, which requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form.  The other is that the award of costs is not a generally available form of compensation, so that amendment for that reason may not be as freely permitted as it would in a jurisdiction where that compensation ((ie) an order for costs), is freely available.

42       The Commissioner at first instance, in the end, refused the application to amend.  At page 36 (AB), paragraph 8, the Commissioner held:-

“An amendment to the application should be permitted if it is necessary to allow the true issues in controversy to be resolved and if it will not result in injustice to the other party which is not capable of being compensated by an award of costs (compare in the marriage of N & ML Johnson (1997) 22 Fam LR 141 para 105 citing Qld v JL Holdings (1997) 141 ALR at 357,8).  However, I am far from convinced that the amendment now sought to be made raises a “true issue in controversy” between the parties.  There has been no suggestion until now that Mr O’Brien considered he was entitled to a notice period of 26 weeks.  Mr Richardson was frank enough to concede that the claim really being made would lie somewhere between “two weeks and 26 weeks” but that does not reveal that the period of notice has been of itself an issue.”

43       Further, the Commissioner found that there was no previous suggestion that Mr O’Brien considered that he was entitled to a notice period of 26 weeks, and that Mr Richardson was frank enough to concede that the claim really being made would be somewhere between “two weeks and 26 weeks”, but that does not reveal the period of notice has been of itself an issue.  A judgment of the District Court in Blakely v Vanpress (op cit) would not seem to advance the matter further, at all.  In the end, the Commissioner found that the claim stood little chance of success and did not represent the true issue between the parties.

44       It was submitted for Mr O’Brien that there would have been no prejudice to the respondent in granting leave to make the amendments sought, and, in not determining whether there was any prejudice to the respondent, the Commissioner erred.

45       For the respondent, it was submitted that the amendments sought were not relevant to the proceedings which the Commissioner was required to determine.

46       The application was originally made in this matter on 7 May 2001.  It was a claim made alleging unfair dismissal seeking three months lost earnings and the amount of costs involved in closing and re-opening a business by Mr O’Brien.  In my opinion, read with the other proposed amendments, Mr O’Brien sought at a very late stage to add new “causes of action” and to substantially alter the course of the litigation in a jurisdiction where compensation and costs is not readily available.  Further, it has not been established that, to make the amendment, would have enabled the decision on the true issues between the parties to have been made, for the reasons expressed by the Commissioner.

The Second Part of the Application to Amend

47       By the second application to amend, Mr O’Brien sought to amend the application to claim that he had not been paid in accordance with the award and to seek an order pursuant to s.23A(1)(a) of the Act for the entitlements which he said were due to him under the award.  Reference was made to s.23A(1)(a) in the form in which then applied.  The application is not an application for compensation, but, in its clear terms, is an application to enforce an award.  S.23A(1)(a), as it then read, gave no power to the Commission to make an order for payment for an amount to which the employee is entitled under an award of the Commission (see Chapman v J L and M N Rossiter t/a Arunine Painting Services (op cit)).

48       The powers of the Commission under s.23A were subject to the jurisdiction given “subject to this Act”.  An employee’s entitlement under an award is an “industrial matter”, but the exclusive jurisdiction is clearly and unambiguously cast upon an Industrial Magistrate.  The words “order the payment to the claimant of any amount to which the claimant is entitled” do not and cannot confer jurisdiction on the Commission to make an order for enforcement of an award.  The enforcement of a State award is clearly and specifically provided for in s.83 of the Act which confers exclusive jurisdiction on industrial courts in such matters.  That is supported by the opinion expressed by the Full Bench in WA Aboriginal Media Association v Hoffmann (FB) (op cit).  The word “entitled” in s.23A(1)(a) does not confer jurisdiction on this Commission to order payments under an award, any more than it confers jurisdiction in claims for unfair dismissal or contractual benefits, which jurisdiction is also conferred separately and specifically by a separate section.

49       In addition, the initial application clearly and unequivocally contained an assertion that Mr O’Brien did not believe that his employment was covered by an award.  Accordingly, the Commissioner at first instance held, and held correctly, that since it was such an afterthought it was difficult to understand that it would represent a true issue between the parties.

50       S.23(1) of the Act then provided and still does as follows:-

“Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”

51       S.23A(1) of the Act then provided as follows:-

“(1) On a claim of harsh, oppressive or unfair dismissal, the Commission may –

(a)          order the payment to the claimant of any amount to which the claimant is entitled;

(b)          order the employer to reinstate or re-employ a claimant who has been harshly, oppressively or unfairly dismissed;

(ba) subject to subsections (1a) and (4), order the employer to pay compensation to the claimant for loss or injury caused by the dismissal; and

(c) make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this subsection.”

52       It is to be noted, as it was noted by the Commissioner at first instance, that jurisdiction is and was conferred by s.23(1) on the Commission “subject to this Act”.  S.23A then went on to provide the powers which the Commission might exercise in relation to a claim of unfair dismissal including the right to order compensation for loss caused by an unfair dismissal exist (see s.23A(1)(ba) as it then read).

53       S.23A(1)(a) significantly also conferred on the Commission in such a claim  the power to “order the payment to the claimant of any amount to which the claimant is entitled”.

54       S.23(1)(h) limited the orders which could be made on a claim of unfair dismissal to those prescribed by s.23A. 

55       The evidence was that the respondent by the contract of service contracted to pay Mr O’Brien $40,000.00 per annum.  There was no prescription in express terms for the recovery of an amount not paid under an award, in the Act, save and except that contained in s.83 of the Act which confers such jurisdiction expressly and specifically on the Industrial Magistrate’s Court and on no other court or tribunal.

56       S.23A confers jurisdiction “subject to the Act” and therefore subject to s.83.  Further, s.23 does not confer a power to act judicially and enforce existing legal rights.

57       Further, as a matter of interpretation, there is express jurisdiction and power conferred on the Industrial Magistrate’s Court to the exclusion of any other jurisdiction or power in the Commission to enforce awards.  Such a provision has effect to the exclusion of any general provision in s.23.  That is, of course, supported by the fact that s.23 is expressed to be “subject to this Act”.  It therefore cannot be read contrary to s.83 in the jurisdiction conferred thereby (see generally Pearce and Geddes “Statutory Interpretation in Australia” (5th Edition) 113-115).

58       The application to amend was in clear and unmistakable terms.  The application if made would place before the Commission a claim to an amount alleged not to have been paid as an award entitlement which is precisely the jurisdiction conferred solely on the Industrial Magistrate’s Court by s.83(1), and particularly s.83(4) which reads as follows:-

“(4) On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —

(a) if the contravention or failure to comply is proved —

(i) issue a caution; or

(ii) impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organization or association and $500 in any other case;

or

(b)          dismiss the application.”

59       By the application to amend it was sought to confer jurisdiction on the Commission which it did not have under the Act and the application to amend was, for those reasons, without merit.  I respectfully apply the principle laid down by Kenner C in Chapman v J L and M N Rossiter t/a Arunine Painting Services (op cit).

60       For those reasons, it is quite clear that that amendment should not have been allowed.

The Third Application to Amend

61       A third application contained in paragraphs 17 to 21 of the application to amend the quantum of compensation already claimed under a head identified in the particulars of claim was granted.

The Fourth Application to Amend

62       The fourth part of the application to amend was one whereby Mr O’Brien sought leave to amend to claim compensation for injury, which claim was clearly not made in the original application and not previously referred to in the proceedings.

63       It was submitted on behalf of the respondent that for Mr O’Brien to establish injury (under quantum of compensation) it might require time for the respondent to consider its position and to request that Mr O’Brien attend a medical practitioner designated by the respondent.

64       For the same reasons which the Commissioner at first instance expressed in relation to the first head of application to amend, the amendment was held not to represent a true issue between the parties, and the application was dismissed.  For all of the same reasons which I have advanced above, the Commissioner did not err.

65       Further, an appeal tribunal should be slow to overturn a decision made in an interlocutory matter.  Further, it is doubtful that it was in the public interest that an appeal should lie, since this was a finding as that is defined in s.7 of the Act.

General Findings – The Application to Amend

66       There are a number of factors to be taken into account:-

(a)                    The application was filed on 3 April 2001 and no application was made to amend it until the application to amend was filed on 1 November 2001.  This was almost seven months later.

(b)                    No explanation was offered at first instance for that delay.

(c)                    The amendments sought were sought to institute claims which in the normal course of events would, could and should have been included in the application when it was first filed, or at least by amendment shortly after.

(d)                    No explanation was offered at first instance for this omission.

(e)                    No notice that these claims might be made was ever mentioned at the conference in the Commission in July 2002 or otherwise.

(f)                     The claim for compensation for injury could have no life beyond that of the application at first instance since no further claim could be made.

(g)                    The claims for contractual benefits are not subject to any limitations as to time.

(h)                    In the absence of any explanation of the omission of these claims from the application until almost the last minute before the hearing, the only inference is that the omissions were due to incompetence, carelessness or had insufficient substance to be included in the original application.

(i)                     The addition of the four new claims at such a late stage would involve the respondent in costs that might not be recoverable and/or force it into an adjournment when the matter had been listed for hearing for some time.

(j)                     To allow these amendments would prevent the necessity of making two extra claims to be made separately and would thus avoid a multiplicity of actions.

(k)                    That, there is a consideration that, in the public interest, the cost of litigation should be contained.

(l)                     That this sort of amendment adds to the strain of litigation for the parties, not the least being the respondent in this case.

(m)                 That the merit of the claims the subject of the amendments was not demonstrated to and they could not properly be said to represent matters of controversy between the parties, or of sufficient merit.

(n)                    As to the question of amendment to make a claim under the award for the reasons which appear hereinafter, it was a claim so manifestly devoid of merit that it should not have been allowed.

(o)                    It is also relevant that case management is a consideration and the time of the Commission should not be lightly misused (see Bank of New Zealand and Another v Spedley Securities Ltd (In Liq) and Others (1992) 27 NSWLR 91 (CA)).

(p)                    It is also necessary to consider the principles which apply to an appeal such as this against the decision in relation to a procedural matter (this was purely a procedural matter) (see Londish and Others v Gulf Pacific Pty Ltd (op cit)).  The principle is that where the decision appealed against involved the exercise of discretion affecting procedural rights, as this did, an appeal court will exercise even greater restraint in reviewing a discretionary decision than that affecting substantive legal rights (see Contender 1 Pty Ltd v LEP International Pty Ltd 63 ALJR 26 at 28 (HC) and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Another [1981] 148 CLR 170).  I take into account all of those relevant considerations and apply that principle.  I also am directed by the principle in House v The King [1936] 55 CLR 499 and Gromark Packaging v FMWU 73 WAIG 220 (IAC).

(q)                    It has not been established by the appellant, as he was required to do, that the discretion exercised by the Commissioner at first instance at all miscarried for the reasons which I have set out above, and all of the authorities which I have cited.

67       In my opinion, those considerations, particularly that there was such an unexplained delay before the application to amend was made, that it was made very late, that there was no explanation for the omission, or for the lateness, the lack of merit demonstrated in the submissions, and the fact that it was not clear that there was any real controversy between the parties demonstrated by the text of the amendments sought, were clearly matters which, having regard to s.26(1)(a) and s.26(1)(c), would lead to the decision being made by the Commissioner, being properly made.  The interests of the respondent and the justice of the matter lead, too, to that conclusion.  That is cogently emphasised by the fact that, in this jurisdiction ready compensation by way of costs is not available as a matter of course, which is different to what occurs in the civil courts.  Even the fact that there may be no claim for injury once the matter is disposed of, does not displace the weight of all of those factors.  Further, those factors displace the weight of the factor that a multiplicity of actions is to be avoided if possible.  Further, of course, the exercise of the discretion was one not made in error according to principles laid down in House v The King (op cit)), and further, that is the appropriate finding, in my opinion, which the Full Bench should make, given that the Commission made a procedural order and an appeal tribunal is more restrained in interfering with a discretionary order in a procedural matter such as this one was, on the authorities I have cited above.

Ground 1

68       I do not understand why that ground is pleaded.  The appeal, apart from the question of amendment, is against the quantum of the loss found and of compensation ordered to be paid.  Further, nothing was advanced in argument which would persuade me that the findings were not open to the Commissioner at first instance based on the evidence (see the findings at paragraphs 24, 28, 34 and 38 of the reasons for decision at first instance).  However, since the appeal was not against the finding of unfair dismiss, the ground is entirely and utterly irrelevant.  There is, understandably, no appeal against the finding of unfair dismissal or the award of compensation except as to quantum.

69       That there would be a review of performance, it was submitted, was a term of the contract of employment.  There was ample evidence from all of the parties that a trial period or review period existed.  The evidence given by the witnesses for the respondent was that it was three months.  Mr O’Brien denied that there was any such period.  In my opinion, it was open to argue that a probationary period of three months did exist.  Even the appellant admitted in the evidence that there was a review period in the following terms (see page 19 of the transcript at first instance (hereinafter referred to as “TFI”)) where the following exchange took place:-

“Right.  Well, what I suggest to you is he said to you "Let's make it 40,000 and we'll review that.  If you're happy with us, we're happy with you, we'll review it at the end of the 3 month period".  You agree or disagree?---There was nothing mentioned about "3 month period".  (It is to be noted that the fact that a review was to take place was there not denied).

All right.  Well, do you agree that he said to you "We'll give you 40,000"?---Yes, I do.

Right.  Do you agree that he also said that would be reviewed at some stage?---Some stage.

Right.  What I suggest to you is that stage was the end of the 3 month period?---I disagree.

All right. What I suggest to you is he also said to you "We might increase it to - -"  well, "We might increase it.  We might also give you a car, a phone".  Things like that were also offered.  Is that right?---Yes.”

70       There was substantial evidence from the two witnesses for the respondent that the employment was subject to review.  I am therefore persuaded, insofar as is at all relevant to this appeal, which it is not, that it was clearly open to find on that basis that there would be a review of his performance, as was clearly the case and that it was a term of his contract of employment.

Ground 2

71       By this ground, it is alleged that the Commissioner at first instance erred in holding that the employment was subject to a period of review.  The finding appealed against in that regard was neither germane to the appeal or to the orders sought upon appeal.  There was no appeal against the merits of the finding that the dismissal was unfair in relation to which the finding that there was a review period was relevant.  In any event, there was clear evidence to support such a finding (see paragraphs 40 and 41 of the reasons for decision at first instance, and see also my observations in relation to ground 1).

Ground 3

72       It was submitted that the Commissioner at first instance erred in holding that there was any reason for the respondent to be dissatisfied with Mr O’Brien’s performance.  It was submitted that, on the evidence, there was no genuine belief that Mr O’Brien’s performance was unsatisfactory, nor that there was any reason for such belief.

73       For the respondent, it was submitted that the finding was open on the evidence (see page 50 (AB), paragraph 37 of the reasons for decision at first instance).  It was not at all submitted why that is relevant to the appeal.  In any event, it is difficult to understand why it is submitted that the belief on the part of the respondent’s director and manager that Mr O’Brien’s performance of his work was unsatisfactory or that there was reason for such a belief without submitting why.  There was substantial and repeated evidence, unshaken in cross-examination, that Mr Galipo and Mr Cicanese were dissatisfied with his work, and Mr Cicanese gave evidence that he offered constructive criticism of Mr O’Brien’s work on more than ten occasions over six weeks, and that was also accepted by the Commissioner at first instance.  Mr O’Brien’s evidence that he did not understand the respondent to be dissatisfied with his work was rejected by the Commissioner.  That was done after the Commissioner had seen and heard the witnesses and clearly preferred the evidence of Mr Galipo and Mr Cicanese on this point.  On a fair reading of all the evidence, it was open to him to so find.

74       Again, it is not at all clear why such a ground of appeal is relevant when the fact that an “unfair” dismissal was found was not challenged upon appeal.

Ground 4

75       By ground 4, it was alleged that the Commissioner at first instance erred in not awarding compensation for the loss caused by the dismissal.  In particular, the complaint is that the Commissioner erred in holding that:-

(a)                 The respondent could have fairly dismissed Mr O’Brien after a further six weeks because it was more likely than not that the respondent would not have continued the employment beyond the period of probation to which the respondent’s manager believed the employment was subject when the Commissioner had found that the employment was not subject to a period of probation but of review.

(b)                 That it was more likely than not that Mr O’Brien would not have remained in employment indefinitely.

(c)                 That the employment would not have continued indefinitely when there was no evidence or probative value to support a conclusion that Mr O’Brien would have left of his own accord or that the respondent would have been able to dismiss Mr O’Brien in “non-legally remedial circumstances”.

76       The crux of the submission is that the Commissioner at first instance failed to adopt and apply the principle applicable to the “determination of compensation” to be paid.  The submission relies on authority not binding on the Commission, and does not refer to authority binding on the Commission.  The principles are well settled (see Gilmore and Another v Cecil Bros and Others 76 WAIG 4434 (FB) and Bogunovich v Bayside Western Australia (FB) (op cit)) and were properly applied by the Commissioner on the evidence at first instance.  Both of those cases refer to and apply s.26(1)(a) and the requirement that the decision must be made according to equity, good conscience and the substantial merits of the case (see also BGC (Australia) Pty Ltd v Phippard (2002) 82 WAIG 2014 at 2019 per Hasluck J).

77       What the Commissioner was required to decide was whether the appellant had, on the balance of probabilities, proven the loss which he claimed that he had suffered.  The Commissioner found that there was no term in his contract of employment which prescribed a minimum term of employment (see paragraph 41 of the reasons for decision at first instance).  That finding was not challenged.

78       The Commissioner also found that there was no guarantee that Mr O’Brien would be entitled to a minimum period of employment if the review was not favourable to him.

79       The Commissioner went on to find that if no time was agreed then the review could occur at any time after employment commenced which would not preclude that event occurring six weeks into his employment.  That finding was relevant to the finding of future loss, which sometimes involves a finding, based on the balance of probabilities, as to how long a claimant employee might have remained in employment had she/he not been unfairly dismissed.  Taking into account that factor, the Commissioner found that even had a warning been given and an opportunity to correct the problems which his employer saw, then Mr O’Brien would not have remained in employment with the respondent indefinitely.  There was no evidence that he would.  Indeed, because Mr Cicanese and Mr Galipo had formed a view as to his unsuitability, which it is clear on their evidence they had formed, it is clear that the appellant would not have remained in the respondent’s employment indefinitely (see paragraph 58 of the reasons for decision at first instance).

80       The Commissioner went on to find that had Mr O’Brien been given a warning and an opportunity to address the complaints about his work, then he would have remained in employment, but would still have been subject to review.  The Commissioner found that it was by no means clear that he would have taken steps to remedy the complaints against him, and that was a finding open on the evidence, particularly the evidence that Mr O’Brien did not see himself as having made the errors which it was alleged he had made.  Indeed, he did not even admit that the respondent’s managers were dissatisfied with his work.  The Commissioner found that he had made mistakes in his employment, which was open to do so on the evidence.  The Commissioner accepted that Mr Cicanese had spoken to him about ten times in six weeks about errors, which was the evidence given and not shaken.  Having seen the witnesses, it was open to him on the evidence to make such a finding, and, on a fair reading of the evidence, the advantage enjoyed by the Commissioner was not misused.

81       The Commissioner also found that the relatively short period of his employment before termination increased the possibility that his employment may not have continued indefinitely, which was open to him to conclude.

82       The Commissioner then found that because Mr Cicanese regarded Mr O’Brien’s employment as being subject to a three months probation period, it is unlikely that his employment would have continued beyond a further six weeks.

83       Whilst Malec v J C Hutton Pty Ltd [1990] 169 CLR 638 is of some assistance, it is an authority primarily applicable to the assessment of damages in cases where questions arise as to the future or hypothetical effect of physical injury or deterioration.

84       The question to be determined here, was how long the appellant might have continued to be employed had he not been unfairly dismissed when he was.  It cannot be resolved by reducing the amount of loss and consequent compensation awarded, according to the degree of probability, because the Commission is not dealing with something like the hypothetical effect of physical injury or deterioration.

85       The Commission is required to make a finding as to time which then provides a basis for assessment of compensation based on a future loss of remuneration at the rate payable under his terminated contract of service.

86       In my opinion, given that Mr O’Brien had already been warned about his performances, he has not established on the facts, for the reasons expressed and the findings made by the Commissioner, which were correctly made, that he would be employed for any more than six weeks.  That is a period which would give him time to remedy the complaints against him, if he recognised their validity.  Of course, if he refused to recognise the validity of the complaints and thereby to improve, that might well become apparent in a period sooner than six weeks, and result in a termination of employment short of the end of that period.

87       It is quite clear that the finding was open, for the reasons expressed in paragraphs 40, 41 and 42, and that the Commissioner correctly found, as he did, in accordance with the principles laid down in Bogunovich v Bayside Western Australia (FB) (op cit).

88       There was, for those reasons, no error in the finding made.  That ground is not made out.

Grounds 5, 6 and 7

89       By those grounds, it is submitted that the Commissioner at first instance erred in not “computing” Mr O’Brien’s weekly loss caused by the dismissal “based” on the remuneration to which Mr O’Brien was allegedly entitled under an award.  It was submitted that the weekly remuneration to which he was entitled was the rate which should have been used in computing the loss caused by the dismissal when the loss was first quantified in terms of a number of weeks of lost remuneration.

90       It was submitted that the Commissioner, at the hearing of the matter, did not hear a witness who should have been heard as to quantum, having stood him aside.

91       Further, it was submitted that whether the Commissioner has power to order the payments of entitlements arising under a State award or not, the Commissioner erred in not considering whether the award governed Mr O’Brien’s employment so as to determine the quantum of Mr O’Brien’s loss caused by the dismissal.

92       For the respondent, it was submitted that the Commissioner at first instance was correct according to law and on the evidence, citing Chapman v J L and M N Rossiter t/a Arunine Painting Services (op cit), City of Geraldton v Cooling (2000) 80 WAIG 5341 (IAC) per Kennedy J, and WA Aboriginal Media Association v Hoffmann (FB) (op cit).

93       As well as and for the reasons I have already expressed, if the Commissioner at first instance had found other than it did find, then to do so would be outside jurisdiction because it would constitute an enforcement of an award and an order to that effect would be incompetent.

94       By ground 6, it was submitted that the Commissioner at first instance erred in not affording natural justice to Mr O’Brien in failing to allow him to argue his case.  The submissions in support of this ground were only that the Commissioner erred in not affording natural justice to Mr O’Brien because he did not allow Mr O’Brien to lead evidence as to the applicability of the award to his employment when Mr O’Brien’s case was that the loss caused by the dismissal was dependent on the remuneration to which he was entitled under the award.

95       It was further alleged that the denial of procedural fairness arose because Mr O’Brien was not allowed to argue his case that the loss caused by the dismissal was dependent on the remuneration to which he was entitled under the award.

96       It was submitted for the respondent that the Commissioner’s decision touching upon the permissibility of Mr O’Brien adducing evidence regarding the award was correct both in law and based upon the evidence.  For the reasons which I have already advanced, the Commissioner would have acted outside jurisdiction had it dealt with the matter in the manner submitted on behalf of Mr O’Brien.

97       By ground 7, it was alleged that the Commissioner erred in failing to give reasons for not determining the amount to which Mr O’Brien was entitled under the award as a necessary step in determining the loss caused by the dismissal.  In support of that ground, it was submitted that the weekly remuneration to which Mr O’Brien was entitled, (not what he contracted to receive as I understand the ground), was the rate that should have been used in computing a loss caused by the dismissal where the loss was first quantified in terms of a number of weeks of lost remuneration.  This, it was submitted, is not the rate which should be used in computing the quantum of the “statutory cap”.  The Commissioner at first instance stood aside one witness who could give this evidence as to quantum.  Further, whether the Commission has power to order the payment of entitlements arising under a State award or not, it was submitted that the Commissioner erred in not considering whether the award governed Mr O’Brien’s entitlements so as to determine the quantum of loss.

98       For the respondent, it was submitted that in accordance with the decisions in Chapman v J L and M N Rossiter t/a Arunine Painting Services (op cit), City of Geraldton v Cooling (IAC) (op cit), and WA Aboriginal Media Association v Hoffmann (FB) (op cit), such reasons would have been otiose.

99       It was also submitted that the Commissioner had already observed that the only appellant’s amendment allowed was to bring the claim up to the six months statutory cap.

100    At the commencement of proceedings proper, at first instance, Mr Richardson, the agent for the appellant (the applicant at the first instance), (see page 3a (TFI)) submitted that the appellant needed “to actually prove the award to prove the entitlements that arise under the award for the purpose of calculating the loss on a weekly basis”.  He submitted that the “loss experienced by Mr O’Brien, by the applicant, is the loss of the amounts which he was entitled to and also that the statutory cap of 6 months’ remuneration extends to the amount that he was entitled to” (see page 2 (TFI)).  He submitted that what Mr O’Brien was entitled to under the award, was the award rate with the extra award entitlements.  He indicated that he wished to call a Mr Hicks to actually prove that the award applied to Mr O’Brien’s employment.  He submitted that the loss to which Mr O’Brien should be compensated for “is the loss of what he was entitled to be paid”.  That application was opposed on the basis that the application to amend to claim an entitlement under the award had already been dismissed and the evidence therefore on that point would be completely irrelevant.

101    The Commissioner did not then rule on the objection by Mr Watters to Mr Hicks being called, but released Mr Hicks saying (see page 5 (TFI)):-

“In the event that we get to the stage where compensation is to be assessed by the Commission I will allow you to renew your request for it to be looked at on the basis of an award calculation and we'll find time for Mr Hicks to return if that's going to be permitted.

MR RICHARDSON:  Yes.  That’s highly acceptable, sir.”

102    On the speaking to the minutes, on 12 March 2002, the Commissioner dealt with an application by Mr Richardson to reopen Mr O’Brien’s case in order to call Mr Hicks.  The Commissioner decided that he was of the view (see page 7 (TFI), 12 March 2002), that if he was to award or calculate the compensation to be awarded based on the award rate he would be in effect enforcing the award and s.83 of the Act clearly stated that that cannot be the case.  He therefore saw no point in Mr Hicks being called to give evidence, observing:-

“Rather, Mr Hicks’ evidence is, as I would understand it, tied up with the overall intention of Mr O’Brien to have sought to have amended his application to argue the application of the award.”

103    For the reasons which I have expressed above, that decision was entirely correct.

104    Further, a reading of Mr Richardson’s initial submission in this matter indicates that what he was seeking to prove was that Mr O’Brien had not been paid “the award plus over-award payments”.  I do not understand that.  It is quite clear that if he were being paid the amount due under the award plus over-award payments, then all he had to do was claim as his loss what he was paid pursuant to the contract, not to make a claim to enforce the award.  What it would seem that he wanted to claim, however, was an amount calculated on the basis that Mr O’Brien was not being paid either under the award or over the award ((ie) he wanted to claim as a loss caused by his dismissal namely he wanted to claim a loss of future earnings calculated at a rate at which he was not paid).  He wanted, too, to claim a loss to be calculated at a rate which he said he was entitled to be paid.

105    First, what he was not paid is not a loss.  Second, what he was not paid, he claims should have been paid, is not a loss caused by his dismissal; nor would it form a proper basis for calculating compensation; nor is it a basis for finding such a loss.  If he was not being paid in accordance with the award, he was therefore seeking to enforce the award.  If he was not being paid what he did not contract to be paid, he suffered no loss in that respect because there was only an obligation to pay what the contract provided for.  The Commission was required, by s.23A(4) of the Act, to assess loss based on the remuneration of the claimant ((ie) that which was actually paid to the claimant).  Further, by the same subsection, the Commission calculates the amount of loss on the basis of the average rate received during any relevant period of employment.  This means that the Commission looks back in time at amounts actually paid to the claimant and does not enable the Commission to make any collateral inquiry as to any amounts which the claimant alleges should have been paid.

106    In any event, he was not denied natural justice, because he was given a reasonable opportunity to be heard.  Further, he availed himself of that opportunity.

107    The Commissioner properly made a finding as to the admissibility of certain evidence, that of Mr Hicks, and the appeal on that point has no merit in it.

Ground 8

108    By ground 8, it was alleged that the Commissioner at first instance erred in failing to apply the fundamental principle that a party should be allowed to amend the pleadings when there was no prejudice to the other party.  I have already made findings as to that, and ground 8 is not made out.  Further, the principle in Myers v Myers [1969] WAR 19 is simply not relevant for those reasons.

Ground 9

109    Nothing binding or persuasive was submitted in respect to that ground.

Ground 10

110    By ground 10, it was alleged that the Commissioner at first instance erred in not allowing the proposed amendment seeking the monetary value of a benefit that had been denied under his contract of service.  For the reasons I have advanced above, that ground was not made out.

Grounds 11 and 12

111    For the reasons I have advanced above, grounds 11 and 12 are not made out.

Adjournments and Other Matters

112    This appeal was originally listed for hearing on 1 August 2002.  The listing was notified by notice of hearing dated 25 June 2002 to the parties.  On 25 July 2002, the appellant applied to adjourn the hearing of the appeal on the following grounds:-

“The respondent indicated that its counsel was unavailable on the date set down for the hearing of the appeal.  The applicant’s agent has since made other commitments and will be in Queensland from tomorrow until 12.30pm on 1August”.

113    On 1 August 2002, the Full Bench sat to hear the matter on the date listed for the hearing of it.  Mr Richardson, the agent for the appellant, did not appear but in his stead, and at his request, another agent, Mr M Fitzgerald, appeared for the appellant on the application to adjourn.  He advised the Full Bench that Mr Richardson had left Western Australia on the day when he filed the application “on pressing business”.  He said that on 3 July 2002 Mr Richardson received a copy of a letter from Counsel for the respondent stating that he would not be able to attend in the Full Bench on 1 August 2002 and “requesting an adjournment”.  Mr Richardson then acted on the basis of that letter, he said.  The Full Bench reminded him that it is not for the parties to change a listing of the Full Bench by an arrangement between them.  Mr Fitzgerald said “We accept that”.  Mr Fitzgerald advised the Full Bench that Mr Richardson “apologised for his poor judgement”.  Counsel, it was said, was then available to be heard so this final application was made.

114    Mr Watters (of Counsel) for the respondent appeared before the Full Bench.  He advised that his instructing solicitors had not asked him his available dates, and when he was notified of the date of hearing advised his instructing solicitors that he would not be available because he had another trial listed for 1 August 2002.  On 16 July 2002, because that matter was to be adjourned, he became available.  His instructing solicitors had told him that they had advised the other side that they neither opposed or consented to the application.  However, Mr Watters, referring to Myers v Myers (op cit), submitted that in a no cost jurisdiction the prejudice to both sides had to be weighed up and there had been prejudice to the respondent.

115    I must observe that it is difficult to understand how an agent appearing in this court could assume that adjournments of matters before the Full Bench are effected by the unilateral action of a party or parties, and not by order of the Full Bench.

116    Applying the principles in Myers v Myers (op cit), the Full Bench granted an adjournment, reluctantly, on the basis that the appellant should not be prejudiced by the absence of his agent, Mr Richardson.

117    The matter was re-listed for hearing again, after the parties available dates were ascertained from them, on 26 September 2002.  When the Full Bench convened on that date, Mr O’Brien appeared in person.  An application was made to adjourn on the basis that Mr Richardson was unavailable because it was necessary for him to go to hospital, because of back problems, and that he would be in hospital on 26 September 2002, the date when the appeal was re-listed for hearing.  No attempt was made to pass the matter to solicitors or another agent given that both Mr O’Brien, the appellant, and the respondent would obviously both suffer prejudice by the matter not proceeding as listed.  The application to adjourn was refused, the Full Bench finding that the injustice to the respondent not proceeding on a second occasion such as this was greater than that which might be occasioned to the appellant.  Further, however, to lessen any disadvantage to the appellant who would be unable to proceed in the absence of his agent, and who submitted that he would be disadvantaged in doing so, the Full Bench gave leave to the appellant to file written submissions in reply to those filed on behalf of the respondent.

118    Further, the Full Bench acceded to the respondent’s counsel’s submission that the appeal be determined on the written submissions and that is what is occurring.  The Full Bench took account of the fact that no attempt was made to instruct solicitors or another agent to act for Mr O’Brien upon this appeal on 26 September 2002, although there was time in which to do so.  Such written submissions, which were filed on 24 October 2002, I am bound to say, are unsatisfactory because they purport, to an unsatisfactory extent, to repeat matters which are properly the matters of an opening address and are not matters of reply.  To that extent, it would be wrong to take account of them and I do not do so.  I take account only of those matters which are properly matters of reply.

119    I am bound to observe that the conduct of Mr Richardson, the agent for the appellant in this matter, has been unsatisfactory and unhelpful, and, in some respects, contrary to the duty of an agent in this Commission.

Finally

120    For all of those reasons, the appeal is not made out in my opinion.  There is no miscarriage in the exercise of the discretion at first instance, established.  There is no other ground on which the appeal might otherwise succeed, established.

121    I would dismiss the appeal for those reasons.

COMMISSIONER J H SMITH:

122    I have had the benefit of reading in draft the reasons to be published by the President.  For the reasons his Honour gives, I agree the Appeal should be dismissed and I have nothing further to add.

COMMISSIONER S WOOD:

123    I have read the reasons for decision of His Honour the President.  I agree with those reasons and have nothing to add.

THE PRESIDENT:

124    For those reasons, the appeal is dismissed.

       Order accordingly