100316855

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES JOSE RODRIGUEZ

APPELLANT

 -and-

 PARKS INDUSTRIES PTY LTD

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER S J KENNER

  COMMISSIONER S WOOD

DELIVERED FRIDAY, 6 JUNE 2003

FILE NO/S FBA 6 OF 2003

CITATION NO. 2003 WAIRC 08443

_______________________________________________________________________________

Decision  Appeal upheld, order at first instance suspended and matter remitted                             to the Commission

Appearances

Appellant   Mr P E Mullally, as agent

Respondent   No appearance

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         This is an appeal by the above-named appellant employee against the decision of the Commissioner at first instance, made and perfected on 27 March 2003 in application No 255 of 2003, whereby the Commissioner dismissed an application by the appellant brought pursuant to s.29(3) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

2         The appeal is brought pursuant to s.49 of the Act.  It is not clear whether it is an appeal against a finding.

3         On the day fixed for the hearing of the appeal Mr P Mullally, Industrial Agent, appeared for the appellant.  There was no appearance by or on behalf of the respondent.

GROUNDS OF APPEAL

4         The appellant now appeals against the dismissal of the application, on the following grounds (see pages 2-5 of the appeal book (hereinafter referred to as “AB”)):-

“1. The learned Senior Commissioner erred in law when having listed the appellant’s application for hearing he dismissed the appellant’s application, without hearing or taking any evidence on oath:

PARTICULARS

1.1 The appellant’s application was filed out of time and in his application the appellant sought to obtain the benefit of Section 29(3) of the Industrial Relations Act.

1.2 When the application was called on for hearing on the 27th March 2003 the appellant’s Agent opened the case on the question of Section 29(3) and indicated his intention to call the applicant to give evidence in support of his application;

1.3 The learned Senior Commissioner at the conclusion of the appellant’s opening then invited submissions from the Respondent;

1.4 At the conclusion of the submissions the learned Senior Commissioner then adjourned shortly;

1.5 Upon resumption, the learned Senior Commissioner then announced that he did not need to hear evidence and proceeded to deliver oral reasons for decision at the conclusion of which he dismissed the application;

1.6 The appellant was thereby denied his fundamental right to be heard.”

Ground 2 goes to the merits of the decision.  As Mr Mullally correctly conceded, it would be unnecessary to decide ground 2 of the grounds of appeal if the Full Bench found for the appellant on ground 1.

“ORDERS SOUGHT ON APPEAL

(AS AMENDED)

3 That the Appeal be upheld.

4 That the decision of the Commission made 27 March 2003 in application number 255 of 2003 be suspended and the matter be referred back to a single Senior Commissioner for hearing and determination according to law and according to the reasons for decision of the Full Bench.”

S.27(1)(d)

5         The appellant appeared by an industrial agent.  There was no appearance by or on behalf of the respondent.  The Full Bench was satisfied that the respondent had been duly served with notice of the hearing of the appeal (ie) notice of proceedings, and proceeded to hear and determine the matter in the absence of the respondent, pursuant to the power conferred by s.27(1)(d).

BACKGRROUND

6         The above-named appellant, Jose Rodriguez, (hereinafter called Mr Rodriguez) alleged that he was an employee who was dismissed from his employment by the above-named respondent employer on 18 December 2002.

7         On 28 February 2003, Mr Rodriguez filed an application to the Commission, pursuant to s.29(1)(b)(i) of the Act, by which he claimed that he was harshly, oppressively or unfairly dismissed and claiming an order for compensation.  He made no claim for reinstatement.  That application was opposed.

8         S.29(2) of the Act requires that a referral by an employee under s.29(1)(b)(i) must be made not later than 28 days after the day on which the employee’s employment is terminated, but subject to s.29(3).  The date of termination of employment was alleged to be 18 December 2002.

9         S.29(3) provides that the Commission may accept a referral by an employee under s.29(1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.

10      The application, as originally made, seems also to be an application seeking an extension of time within which to make the claim (see page 16 (AB)).  The grounds of that application are as follows:-

“1. The applicant is not familiar with his rights and English is not his first language.

 2. At the date of dismissal his boss told the applicant that he should accept the situation.

 3. A (sic) the date of dismissal he was required to sign a document agreeing to keep everything confidential.

 4. The applicant therefore felt constrained to not seek any advice.

 5. After being unemployed for 8 weeks he decided to seek advice and has now appointed Workclaims Australia to act for him.  He signed his Form 27 on the 18th February 2003.”

11      An answer and counterproposal was filed on behalf of the respondent on 6 March 2003, which does not comply with the Industrial Relations Commission Regulations 1985 (as amended) but nonetheless opposes the application.

12      The matter came on for hearing by the Commission, on its own motion, on 27 March 2003, for the Commission to hear and determine why it would be unfair not to accept the application out of time.  Mr Mullally, industrial agent, appeared for Mr Rodriguez and Mr Parks, the managing director, represented the respondent.  Submissions were made on behalf of the appellant, at first instance, by Mr Mullally.  Submissions were made by Mr Parks who advised that much of what was being said was not in issue.  The Commissioner at first instance therefore went on to dismiss the application.

BACKGROUND

13      On 28 February 2003, the above-named appellant, by his agent, filed an application in the Commission alleging that he had been unfairly dismissed from his employment by the respondent, on 18 December 2002.  The basis of the claim was that he had suffered an injury to his elbow at work.  He was a machinist by occupation.  Further, it was said that the evidence would be that he was medically assessed as fit to do light duties only instead of his normal machinist duties.  He alleged that he was dismissed, (not retrenched for redundancy), because he was unfit to perform those duties although he had apparently recovered for the most part.  It should be said that the answer (see AB 17-21), which has with it, contrary to the rules, a copy of a letter, dated 5 March 2003, seems to say that the application was opposed because the applicant had agreed to a “voluntary redundancy”, on terms set out in that letter.

14      The application under s.29(1)(b)(i) claiming unfair dismissal, was filed some 44 days after the date of the alleged dismissal.  The basis of the application appears above and appears in the appeal book at (AB 16).

THE HEARING

15      At the hearing at first instance to determine the question of extension of time within which the Commission might accept the refusal of the claim, if it deemed it fair to do so, Mr Mullally representing the appellant, referred to Mr Rodriguez’ case, that was that he was injured on 18 September 2002; and that because of the appellant’s condition, even though he was improving, he was dismissed from employment by his supervisor, Mr Tony Baxter.  The case was, too, that his dismissal was as Mr Baxter told him, to be described as a redundancy.  Further, he was told by Mr Baxter, and this would be his evidence it was said, that he would have to sign a document to that effect.  In fact he did sign the document and received monies pursuant to it. 

16      At (AB 24-26), Mr Mullally outlined the evidence which his client would give to the Commission.  The reasons for the delay in filing the application were that canvassed by Mr Mullally (AB 26-27). 

17      Mr Mullally then also informed the Commission that he proposed to call the applicant.  Then in reply the Senior Commissioner said that he had not anticipated that Mr Rodriguez would be called.  Mr Mullally said:-

MR MULLALLY:  “Well, I’m in your hands, sir. I - - ultimately you have to make a judgment and perhaps it could be done by submissions.  I’m happy for it to be done on that basis  but I - -

BEECH SC:   Yes, I see. All right.

MR MULLALLY:  Perhaps it may be a case where having heard from the respondent we then decide what - -

BEECH SC:   Yes, all right. Thank you, Mr Mullally. Mr Parks, it would seem to me that if Parks Industries Pty Ltd is going to disagree with- - - is going to disagree with what Mr Mullally has said, that in fairness I ought to allow Mr Rodriguez to give evidence so that I can at least give him the opportunity to say it in his own words and give you an opportunity to cross-examine him. So if I do that I’ll ask him to give evidence and you will have the opportunity to give your evidence in reply. Does that cause you any difficulty if I do it that way?

MR PARKS:  Well, what if I agree with what he says?

BEECH SC:  Then there’s no need because what Mr Rodriguez would say is not in dispute. I had assumed it was in dispute because of the answer that’s been filed.”

18        Mr Parks then said quite clearly that he, Mr Parks, had the voluntary redundancy agreement and Mr Rodriguez signed it “so I’ve got nothing else to add”.

19        It is to be noted that Mr Mullally’s submission was that, if Mr Rodriguez’ evidence was taken as “a prima facie case”, he did make out a very clear case of unfair dismissal.  Also, on the face of it given that his first language is not English he has and had a handicap in the matter.

20        Mr Mullally also canvassed the evidence at (AB 26) which would be given to explain the delay in the filing of the application..  The Commissioner at (AB 28) advised the parties that he was not certain that the matter could be dealt with without calling evidence.

21        Mr Mullally went on to submit that it would be demonstrated that the agreement was neither “ voluntary or a redundancy”.  That, of course, was in direct conflict with what Mr Park's case was.  Mr Mullally’s submissions related to the evidence which would be given including evidence relating to the reason for the application being filed 44 days late.  Mr Parks submitted that the prejudice to the respondent if the claim were “to go forward”, was that “I’ve done everything legally and within my rights and waited too long for a response”.  Mr Parks also submitted that to grant an extension of time would “open the floodgates to everyone employed for the last 15 years to come forth”.  For the applicant it was submitted that no prejudice would be suffered by the respondent company.  The Senior Commissioner then said that he would stand the matter down for five or ten minutes and go through the notes which he had made. 

22        The Senior Commissioner then said:-

“It would seem to me that the issue is this:  If I am able to decide the matter on the basis of Mr Mullally’s submissions, then there may be no need for Mr Rodriguez to give evidence this morning in support of those submissions.  If, however, I reach the conclusion that some of the issues that Mr Mullally raises are matters that I ought hear from Mr Rodriguez on before deciding the matter, then I will ask Mr Rodriguez to give evidence briefly and allow him to be cross-examined.” 

23        Having stood the matter down, the Senior Commissioner returned and dismissed the matter.

24        The Commission decided the matter on the basis that, if Mr Rodriguez had given evidence, the evidence would have been as Mr Mullally had outlined it to the Commission.

25        The reasons for the decision to dismiss the application, summarised, are as follows:-

(1)          That whilst the appellant found the termination of his employment disturbing and even frightening, and further, was concerned that he did not get a copy of the voluntary redundancy agreement which he had signed and which he had been persuaded not to discuss with anyone, he was unable to accept that Mr Rodriguez was as disturbed as he suggested.  (It is difficult to understand how such a finding could be made without hearing Mr Rodriguez).

(2)          (a)              That the Commission was persuaded that Mr Rodriguez decided to pursue the claim of unfair dismissal more because he had been unemployed for eight weeks than because of the merit of the claim.

(b)     In that regard the Commissioner placed weight on the fact that the appellant sought only compensation and not reinstatement.

(c)     That the Commission was not satisfied that there was an acceptable explanation for the delay.

(3)          As to the merit of the application,

(a)   Mr Rodriguez returned to work in October 2002 after his injury of 18 September 2002.

(b)   It was not apparent from those dates that Mr Rodriguez was not able to do his job properly.

(c)   The statement by Mr Parks that there was a need to reduce the workforce in the quiet period leading up to Christmas was quite plausible.

(d)   Mr  Rodriguez’ suggestion that he was dismissed because of his injury was equally matched by the evidence of the company that there was a need to reduce the size of the workforce.  (This finding of course, demonstrates part of the conflicting evidence between the parties).

(e)   On its face, the voluntary redundancy agreement was one that he could have refused to sign and Mr Rodriguez faced the task of having to persuade the Commission that the document was incorrect or that there was some other reason why he put it to one side.

(f)    The first that the respondent knew of the appellant contesting the dismissal was when the application was lodged and served, namely, two and a half months after the dismissal.

(g)   There was a prejudice to the respondent in having to defend a claim where, even accepting the evidence that Mr Rodriguez would give, the merit was not substantial.

26      Generally speaking, in this Commission, as has many times been stated, the Commission is entitled to act upon the assertions of advocates from the bar table even though such assertions are not made on oath, or even if the advocate might not have been competent as a witness according to the ordinary rules of evidence, to make them.  If the correctness of these assertions is challenged however, it would at least be imprudent on the part of a Commissioner not to further examine the matter so as to satisfy her/himself of the actual facts, if need be, by evidence formally given.  (See The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board [1965] 113 CLR 228 at 243 per Barwick C J.)  Further, as Menzies J said in the same case at page 252:- 

“An arbitrator would, no doubt, usually refuse to act merely upon the representations of parties made before him if there were a genuine dispute about the relevant facts, but it is a far cry from such a rule of fairness and prudence to an insistence that there cannot be arbitration within the meaning of s.51(xxxv) of the Constitution unless the arbitrator hears and decides upon sufficient evidentiary material submitted to him by the parties.”

27      As Kirby J said, too, in Coal and Allied Operations v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1360:-

“It seems clear from the passage which I have cited that Giudice J’s conception of the “supervisory” role of the Full Bench was such that he felt that it authorised him to consider whether or not as a member of the Full Bench he was “satisfied” of the conclusions to which Boulton J had come on the basis of the same evidentiary material.  I say evidentiary material because, as is the case in many tribunals (and as has long been the case in the Commission and its predecessors), decisions are made on materials that could not be described as “evidence” strictly so called.  The entitlement of the Commission to act in reliance on such materials, at least in given circumstances, has been acknowledged by this court.” 

28      His Honour cited, inter alias, the Tramways Case (op cit) and The Queen v Williams; ex parte Australian Building Construction Employees’ and Builders Labourers Federation (1982) 153 CLR 402 at 411.

NATURAL JUSTICE OR PROCEDURAL FAIRNESS DENIED?

29      This Commission is bound by the rules of natural justice or procedural fairness.  (See Hocks v Ken and Faye Davies t/a Kembla Built-In Furniture (1987) 67 WAIG 1527 (FB), RRIA v AMWSU and Others (1986) 66 WAIG 1553 (IAC), RRIA v AMWSU and Others (1990) 70 WAIG 2083 (IAC); DeVos and Minit Australia Pty Ltd (2003) 83 WAIG 219 at 222-4).

30      As a manifestation of the duty to afford procedural fairness or natural justice, the following are some of the relevant principles which apply.  (See DeVos and Minit Australia Pty Ltd (op cit) and the cases cited therein as well as the cases referred to hereunder):-

(1)   The Commission is required to afford parties a reasonable opportunity to present their cases.

(2)   There is no obligation on the Commission to ensure that the parties take advantage of that opportunity or to make the case for a party.

(3)   A tribunal should not proceed while relying on the parties to assert their rights where to do so would deny the parties the opportunity to be heard.

(4)     (a) However, whilst this Commission normally proceeds by way of oral hearings, in contested matters, it does not and does not need to do so where there is no question of credibility, or no contested issues of fact or where facts are agreed or admitted, or where such a course is agreed by the parties, or where the Commission in the proper exercise of its discretion under s.27, directs otherwise.  (S.26(1)(a) is not present for mere effect).

(b)     For example, in this Commission, assertions from the bar table are often and can be accepted as evidence within the principles which I have set out above.

(5) An oral hearing is necessary in my opinion, in this Commission:-

(a) Wherever there is a conflict of evidence.  (See Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J.  See also, The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board (op cit)).

(b)  Where persons are unable to express themselves in writing and may not have access to assistance to enable that to occur.  (See Chen Zhen Zi v Minister for Immigration and Ethnic Affairs and Others (1994) 121 ALR 83 (FCFC) and see also Jeffs v New Zealand Dairy Production and Marketing Board [1966] 3 ALL ER 863 (PC).

(c)  Where personal characteristics are at issue.  (See for example Exell v Harris (1983) 51 ALR 137 per Neaves J (a promotion appeal)).

(d)  Where the allegations are grave.  (See Finch v Goldstein (1981) 36 ALR 287 per Ellicott J at 304 and Ansell v Wells (1982) 43 ALR 41 per Davies J at page 52.

(6) What I have said does affect the use of documents, concessions, admissions, affidavits and written evidence of all types in the Commission.  I am referring to the use of oral evidence and the right to be heard orally as an element of the affording of procedural fairness.  In other words, the hearing of oral evidence in the context of what I have said in these reasons, is not always an essential element of the proper affording of procedural fairness.

CONCLUSIONS

31      In this case there were direct and fundamental conflicts of evidence foreshadowed and a direct collision between the parties concerning the fundamental issue of whether there was a voluntary redundancy or a dismissal of the employee by the employer.  This issue itself could not be resolved as the Commission did by making findings of credibility without seeing the witnesses under examination or cross-examination, on oral submissions on behalf of the parties from the bar table.  Indeed, to do so was contrary to the authority which I have cited above.  In this case, there was a genuine dispute about the relevant facts which could only be properly resolved by the parties being given the opportunity to adduce oral evidence in the case after the applicant, as his agent foreshadowed, gave his evidence.  No positive finding could be made on the evidence before the Commission merely as it was foreshadowed from the bar table.  Given the significance of the strength or otherwise of the appellant’s case and of the explanation for the delay and the divergence between the cases of the two parties, the conflict could only be resolved on the authorities which I have cited above, by giving the parties the opportunity to call oral evidence.  Thus, having heard and seen the witnesses, the Commission could make whatever findings the Commission decided that it should make.  As it was, findings were made which assessed matters based on the mere plausibility of assertions of fact from the bar table instead of evidence on oath or affirmation subject to cross-examination.  Those findings, which required oral evidence to be properly made, were those outlined by me above in paragraph 25 (1), (2) and (3).  Such findings could not be made without hearing the witnesses, seeing the witnesses and assessing their credibility and in the light of that advantage.

32      Inferences from conflicting facts, not the subject of oral evidence, could not correctly be made in this case and could not be made in a procedurally fair manner, in the circumstances of the case.

33      This was a clear case where the denial of the right to call oral evidence as it was intended to do so, occasioned clear procedural unfairness to Mr Rodriguez. 

34      On a fair reading of the transcript of proceedings too, there was no agreement by Mr Mullally to any other course.

35      I find for those reasons that the appellant was not afforded procedural fairness or natural justice. 

The principle in Stead v SGIC (1986) 161 CLR 141

36      Of course, the matter does not end there.  The appellant is not entitled to relief unless he establishes that by the denial of natural justice or procedural fairness he has been deprived of the possibility of a successful outcome.  To negate that possibility, it would be necessary for the Full Bench to find that a properly conducted trial could not possibly have produced a different result.  Such a finding was not open to be made.  In this case, it was abundantly clear that a hearing on the oral evidence was necessary to resolve questions of credibility and conflict in evidence and might have produced a different result had such a hearing taken place, with the Commission seeing and hearing the witnesses.  It is not certain but there was some indication that there might have been more witnesses called for the appellant than Mr Rodriguez himself.  For those reasons I was of the opinion and would find that, within the meaning of the principle in Stead v SGIC (op cit), this Full Bench would not be able to find that a properly conducted hearing could not possibly, on the oral evidence, have produced a different result than the result which was achieved at first instance.

FINALLY

37      I would add that in deciding the question of extension of time, the Commission at first instance might derive some assistance from the discussion of extension of time in relation to other limitation periods such as are reported in cases like Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 and Girando and another v Girando (1997) 18 WAR 450 (FC).  See also, Baker v Shire of Albany (1994) 14 WAR 46 (FC) and Clayton v Aust (1993) 9 WAR 364 (FC).

38      Finally, for those reasons, I concluded that the appellant was not afforded procedural fairness.  Therefore, I joined my colleagues in upholding the appeal and making the orders which the Full Bench made in this matter.

COMMISSIONER S J KENNER:

39      I have had the benefit of reading in draft form, the reasons for decision of the President.  I am in general agreement with those reasons and add the following brief observations of my own.

40      It would seem that there would only be limited circumstances arising where the Commission would determine whether to exercise its discretion pursuant to s 29(3) of the Industrial Relations Act 1979 (“the Act”), to extend time for the referral to the Commission of an application alleging harsh, oppressive or unfair dismissal, without the need to hear evidence on matters in issue. 

41      A first circumstance could be where there are admissions by an applicant, on all relevant issues to be determined.  A second circumstance would seem to be where there is common ground between the parties on the relevant factors to consider, by way for example, of an agreed statement of facts with the Commission being requested to determine the application, based on those agreed facts. 

42      In the case at first instance, the Commissioner, in effectively precluding the appellant from giving oral evidence, which, from a fair reading of the transcript, he clearly wished to do, denied the appellant natural justice in the circumstances of the case given the conflict on the facts.  In my opinion, this denial did deprive the appellant of the possibility of a successful outcome: Stead v SGIC (1986) 161 CLR 141.

43      It was for these reasons that I considered that the appeal should be upheld and the matter remitted to the Commission at first instance, for further hearing and determination.

COMMISSIONER S WOOD:

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

THE PRESIDENT:

45      For those reasons, the Full Bench upheld the appeal.  The operation of the decision at first instance is suspended and the matter remitted to the Commission at first instance to be heard and determined according to law and the reasons of the Full Bench herein.