WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES JL

APPELLANT

 -and-

 HAYDAR FAMILY RESTRAUNTS T/A MCDONALDS

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER S WOOD

DELIVERED TUESDAY, 23 SEPTEMBER 2003

FILE NO/S FBA 14 OF 2003

CITATION NO. 2003 WAIRC 09489

Catchwords Industrial Law (WA) – Unfair dismissal claim – Dismissed for want of jurisdiction – Appeal to the Full Bench – Employee resigned of his own volition – No constructive dismissal by employer - Principles of constructive dismissal – Appeal dismissed – Applications to extend time dismissed – Industrial Relations Act 1979 (as amended).

Decision  Appeal dismissed

Appearances

Appellant   L, as agent

Respondent   Ms R Harrison (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE FULL BENCH:

INTRODUCTION

1         These are the unanimous reasons for decision of the Full Bench.

2         This is an appeal by the above-named appellant employee, JL, (hereinafter referred to as “the appellant”) against the decision of the Commission, constituted by a single Commissioner, brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

3         The decision appealed against was given on Thursday, 17 April 2003 in application No 1473 of 2002.  The decision appealed against was a dismissal for want of jurisdiction of an application made by the appellant pursuant to s.29(1)(b)(i) of the Act.

GROUNDS OF APPEAL

4         Against that decision, this appeal is brought on the following grounds, as amended, (see page 4 of the appeal book (hereinafter referred to as “AB”)):-

“1. The commissioner S J Kenner erred in his findings by not giving sufficient opportunity for applicant to cross-examine the evidence submitted.

a. The respondent claimed they had the video tape recording the stealing but refused to show the video evidence to support their slander.

b. The incident was in the nature of Deprivation of liberty. My son was locked in the dark room against his will, and without good cause!

c. He was locked in room after his working hours.

d.  He was locked in room for 30 minutes rather than 5-l0minutes.

e. In the locked dark room there were only 2 persons, Ms Meredith Hendry and my son, when she threaded my son. She said she would tell his school and report to police if he did not confess the stealing.

f. The stealing story was completely made up by the respondents.

2. The commissioner erred in his findings by accepting the false verbal and written evidence provided by the store manager Ms Meredith Hendry.

3. The commissioner erred in his findings by accepting three false and forged witness reports submitted by the respondents.

4 The commissioner erred in his findings by ignoring completely the evidence I submitted.

5. The commissioner erred in his findings by not allowing me to have questions on the false evidence because the respondent’s lawyer, Mr Craig Taylor from BLACK DAWSON WALDRON, was going to get married in the afternoon and the court must end earlier.

6. The commissioner erred in his decision by not taking into account the workplace bullying and the slander occurred.

7. I have not received any reply to my letter addressed to commissioner J F Gregor and dated on 10th November 2002 after the pre conference.

8.  I seek 3 remedies:

a. A written formal apology addressed to my son and an announcement to all staff of McDonald’s Dianella that my son did not steal anything.

b.  $5,000 compensation for damage to my son’s reputation and medical and legal cost.

c. $10,000 compensation for the further damage caused by the respondents through providing the false and forged evidence to court.

d. Compensation for lost income of six months”

5         Some of the grounds of appeal do not seem at all to relate to the decision made at first instance.  We will turn to that issue later in these reasons.

APPEAL AND APPLICATIONS BY THE INFANT APPELLANT

6         It was common ground that, at all material times, the appellant was an infant ((ie) he was under the age of majority), namely 18 years, in fact it was common ground that, at the time, he was 15 years of age (see  the Age of Majority Act 1972 (WA) (as amended).  L (hereinafter referred to as “L”), the father of the appellant, represented the appellant as applicant at first instance, and upon appeal.  There is no provision in the Industrial Relations Commission Regulations 1985 (as amended) (hereinafter referred to as “the Regulations”) which prescribes the procedure to be adopted where an application is to be made by an infant.

7         An infant, in our opinion, should only make application through a next friend.  However, proceedings where an infant applies to the Commission without a next friend are only irregular and will not be null and void (see, in addition, s.27(1)(m) of the Act).  Thus, unless the respondent objects, the proceedings continue as if no next friend has been appointed (see Mewburn v Mewburn (1934) 51 WN (NSW) 170 and Spellson v George and Others (1987) 11 NSWLR 300).

8         The absence of a next friend may be cured, in any event, by the respondent proceeding without taking an objection, and that is what occurred here.  The appointment of a next friend in this Commission can, in our opinion, be simply done, as it was here, by noting that the application is made by the infant applicant through his next friend, father, mother or whatever other adult is appointed as his next friend.  There is, however, a presumption in law that an infant cannot assert rights or form a judgment so that the next friend is appointed to carry on the litigation on the infant’s behalf (see Dey v Victorian Railways Commissioners [1948-1949] 78 CLR 62 at 83, 113).  We were not able to find anything to indicate that the Legal Representation of Infants Act 1977, or any regulations made under s.4(2) of that Act, applied to this Commission.

9         The office of next friend is designed for the protection of the infant.  It is for the next friend to conduct the proceedings so that the interests of the infant are paramount.  The next friend is not a party to the proceedings.  The infant is the party (see Pink v Sharwood and Co Ltd [1913] 2 Ch 286).

10      For the purposes of the appeal, it is clear that L was appointed as his son’s next friend.  In addition, L represented his son upon this appeal, without objection.  Indeed, the grounds of appeal bear such a notation.

BACKGROUND

11      The only oral evidence adduced, at first instance, on behalf of the appellant was that of the infant appellant himself.  On behalf of the respondent, oral evidence was adduced through Mr Amon Haydar and Ms Meredith Lee Hendry.  There was also documentary evidence tendered on behalf of both parties.  There was no evidence given or sought to be given by L, the father of the appellant.

12      The appellant claimed by his application at first instance that he was harshly, oppressively and unfairly dismissed from his employment on or about 3 August 2002 by the respondent.  His employment was as a casual employee front counter operator with the respondent which, at all material times, conducted a fast food restaurant.  The respondent’s business, whether conducted by a company or a partnership or a trust was “owned” by Mr Amon Haydar and his wife.  The respondent conducted two such businesses, one at Dianella, and one at Mirrabooka, at the material times.

EVIDENCE

13      The appellant is an infant, or was at the time of his alleged dismissal and of his employment, being a school boy under the age of 18 years, and, in fact, at the time, about 15 years of age and a school boy.  The evidence reveals that he is something of a gifted student.  It was his first job.

14      The appellant commenced employment with the respondent some five or six weeks prior to the events of 3 August 2002, having undertaken a period of training for about two to three weeks after which he was rostered to work shifts rostered two weeks in advance on a regular basis.  He was employed in counter service which involved serving customers, taking orders and cleaning the restaurant dining room.  He worked between four to six hours per week and was paid weekly.  He was rostered in advance for a fortnight.

15      At all material times, the manager was Ms Meredith Hendry.

The Appellant’s Evidence

16      The following is a summary of the appellant’s relevant evidence.

17      Evidence was given by the appellant infant (see page 25 (AB) et seq and page 8 (of the transcript at first instance (hereinafter referred to as “TFI”))) that Ms Hendry had pulled him into her room, locked the door and with a very fierce expression on her face immediately said “You stole food.  You stole four big bags of food”.  It was his evidence that he denied to Ms Hendry that he had taken any food.  He said that he did not take any food.  He was extremely shocked and was speechless almost, he said.  She said that this was a criminal act.  She said, according the appellant “I have three witnesses, three accounts on my desk here and video evidence, saying that you stole”.  All he could say was “No.  I’m sorry.  I don’t know anything about this”, he said.  According to him she then said “What are you going to do now?  This is a criminal offence.  You’re a thief.  I’m going to tell the police.  Okay?”  He said that he was extremely upset and shocked.  He was stunned.  Tears were flowing down his face.  He was prepared to come to work the next day, but did not know what to say.  He said that she kept provoking him saying “You’ve taken the food.  Now what are you going to do, hey?  What are you going to do?  We’ve got video evidence capturing you doing that”.  No one else was in the office at the time.  He denied that he had taken the food and said he was not a thief and she ignored that and said “Amon has the video.  I have three accounts here.  What are you going to do now? … You’re a thief”.  She said that there were three witnesses who saw it.  He said that it was already about 4.20pm and his dad was waiting outside, so he said “I’m sorry Meredith.  I have to go”.  He was speechless then.  He left the room.  He was still in a state of shock and speechless.  He said that he felt bewildered and could not say anything.

18      After that meeting the appellant came out of the office, and his father met him and he told his father about what had occurred, that is that he had been accused of stealing, and that he had no knowledge of the allegation.  His father became very angry and went and talked to Ms Hendry.  She denied that she had said that he had stolen the food.  There was a telephone discussion between L and the owner, Mr Amon Haydar.

19      The appellant said that he was rostered to work after 3 August 2002, but that he had no contact with his employer after that day.  It was an unfair dismissal, he said.  He said that he did not resign, because he liked his job.  He was even rostered to work the next day and was already preparing to cancel arrangements with his friends to see a movie, and, in fact, come back to work.  He said that he had no intention of resigning.  Ms Hendry did not tell him not to come into work after 3 August 2002, he admitted.  He was in year 12 and was a TEE student, he said.  The appellant said that he was in a state of shock and was taken to Morley Medical Centre by his father and there counselled by a doctor.  That was about 5.30pm to 6.00pm on 3 August 2002.

20      The appellant said that he would find it extremely hard to return to work without an apology.

21      In cross-examination, the appellant said that he was really upset and that his father was, too, when his father saw him in an emotional state.  He admitted that he did not say anything about the dismissal to his father.  The appellant repeated that he did not resign but was forced to not come back to work.  Ms Hendry told his father, he said, that she was going to investigate the matter further.  The appellant denied that he told her that he could not work the next shift.  He did not tell her that he wanted to change shifts to go to the football, he said.  He denied several times, in cross-examination, that he resigned.  He said in cross-examination that his father was very proud of him and that it had upset his father a lot when he thought that the respondent was accusing him of stealing things.  He said that he was so shocked that he did not know what to say.  The appellant said that he was afraid to tell his father that he had been accused of stealing.  He said also that he was afraid that even his father might turn against him.  However, he said that he told his father the whole story, and cried afterwards as well.

22      In the car park, (outside the restaurant presumably), the appellant told his father that he did not steal and said “Why are they doing this to me?”  He said that he told his father the truth, but he did not tell his father about the dismissal.

23      If he had left the job, the appellant said, he would find it very hard to tell his father so.  He asserted again in evidence that he did not resign.  He said also that he was forced “to not come back”.  He said that he told his father what he was accused of and that he had not done it, that is taken food from the store without paying.  Ms Hendry told him, he said, that that is what his workmates accused him of doing, and said “What are you going to do now?”

24      He said that she told his father but not him that she was going to investigate the matter further.  He said also that he did not tell Ms Hendry that he could not work the next shift, and, indeed, did not tell her that he wished to change his shift.

25      The appellant also said that all that he said to Ms Hendry was “I don’t (sic) what happened.  You’re accusing me of something that I didn’t know”.

26      The appellant said that he was rostered to work the next day, and was prepared to come.  The appellant said that he did not tell Ms Hendry that he did not want to work at McDonalds any more.  He said that he did not tell her that he wished to leave his employment, and he was aware that he had to give two weeks notice before leaving.  He said “I left my employment because I didn’t have the face to come back.  I couldn’t work”.  He reiterated that he did not say to Ms Hendry that he was leaving.  He said that he did not come back after the threats were made and the temper she was in.  He also said “I just didn’t - - morally, I didn’t have the dignity - - I didn’t have, you know, that in me to come back the next day.  I did not resign”.

27      The appellant said that he did not attend the meeting with Mr Haydar the next day, 4 August 2002, because he did not know Mr Haydar that well and, at that point, he did not wish to go back because his name was destroyed, he said.  He said, also, that he could not go back and he also did not meet Mr Haydar because “I knew this wasn’t my problem”.  He said that he knew that he had done nothing wrong, and “my own choice said that I didn’t want to go back.  So that was my thing”.  He said that Ms Hendry had stressed to him that this was a criminal matter and she was going to report it to the police.  He does not know for a fact that she did this because he never went back.  Indeed, he admitted that he did not know whether they did anything about it, but said that 20 or 30 people at school knew of the incident.

28      In relation to the meeting in the office, the appellant said that Ms Hendry flicked the switch on the door of the office, but he did not know whether that was a lock or not a lock.  He got out and that was all he cared about at the time, he said.  He could, however, see her in the room.  When he got into the room he did not look at the lights and did not look at whether the door was locked.  He went into the office because she called him in, and, as an employee, he had the duty to respond to her questions so he was not “focussing” on the lighting.

29      He was emotional at the time ((ie) after the meeting, as we understand it), he said, as was his father.

The Evidence of Ms Meredith Hendry

30      We summarise the relevant evidence of Ms Hendry hereunder.

31      Ms Hendry gave evidence that she had been employed as store manager of Dianella since about August 2002 and employed by the McDonalds operation for some seven years.  She runs the whole store, but has no authority to dismiss employees.  She gave evidence that the appellant had been a casual crew person who worked two or three shifts of four or five hours per shift per week.  She gave evidence generally about the orientation process that all employees undertake when they commence employment with the respondent and there were put in evidence various policy documents given to employees as a result of that process.  Ms Hendry said that she took the appellant through his orientation process.  She gave to him an employee’s handbook and a set of policies and procedures.  She asked him to take these home and give them to his parents to read.  She said that she emphasised several of the policies to him, one being that which made taking food and drink without paying an offence which might lead to termination of employment, the dishonesty and stealing policy.  She also mentioned, both in evidence in chief and cross-examination, that the guidelines provided for a period of 24 hours cooling off if there was to be a resignation given or a termination proposed.  It was her uncontradicted and unshaken evidence, too, that she had no power to dismiss employees and that this was solely the prerogative of the owner, Mr Haydar.  That this was so was corroborated in evidence by Mr Haydar.

32      She produced various crew orientation check lists and policy notes, and an employees’ handbook for the store.  One provision, (page 9 of exhibit R2), relates to dishonesty and stealing which says that such an act could result in dismissal.  Resignation or termination will not be accepted until a 24 hour cooling off period expires according to the policy (see exhibit R2), she said.  There was also an employee handbook as well as a policies and procedure document given and explained to him.  There was also an employees’ manual in the crew room which is used by employees.  She told him in the training session “You’re not to give away food and you’re not to steal”.  She also said “Well you don’t take food unless you ask for it.  That’s just it”.  She told him that this could result in dismissal.  She said to him also “If you have doubts, always see the restaurant manager or owner/operator”.

33      She also said that termination would only take effect after a 24 hour cooling off period and three counselling forms have to be given before an employee is terminated.  Indeed, she said, in evidence, resignation or termination “will not be accepted” until after a 24 hour cooling off period.  That gives both sides, she said, 24 hours to gather their facts or to do anything that they need to do, and perhaps have another meeting afterwards.

34      On 30 July 2002, she got a telephone call from her casual manager, Deanna, reporting that two crew people had reported to her, Deanna, that the appellant had taken food from the store without paying, or asking for it.  (This was contrary to the respondent’s policy).  Ms Hendry said that she asked Deanna to make a file note of everything that she had just told Ms Hendry, and asked her, also, to have the two crew people write down what they had seen and leave it for her for her next shift.  This was done.  She came in on her next shift, 3 August 2002, and read the note and the statements (see exhibit R4).

35      Her evidence was that she discussed with the appellant at the end of the appellant’s shift this matter which had been brought to her attention.  She said that the meeting was fairly short and lasted no more than ten minutes.

36      Ms Hendry’s evidence continued as follows.  On 3 August 2002, a Saturday, after the appellant had completed his shift at about 1.00 pm, she asked the appellant to come into her office where there is a desk, a chair and a door.  The lighting was good.  There is a lock on the door, but she did not lock it.  She only locks the door when there is cash inside.  She said that she asked the appellant if he could remember specifically the night that the alleged stealing occurred and if there was anything he could remember that he wanted to tell her.  He said “No”, and she said “Are you sure?”, and he said “No”, and she said “Okay.  Well, I’ve had two crew people report to me that you took some food without paying for it.  Is this true?”  He said “No.”  She said “Are you sure, because if I need to watch the video tape, then I will, but I just want you to tell me the truth”.  He said “No.  I didn’t do it at all”.  She said “Is there any particular reason that crew people would make this up about you, or allege this?  Can you think of anything at all?”  He said “No.”  She said “Okay.  Well, in that case, I will have to investigate with the other side - obviously to talk to the other kids why they would say this, what they saw - and at that point I told him not to worry about it, that we’ll just - - I’ll deal with that first and then, if I need to, I’ll get back to him”.

37      The following excerpt from page 29 (TFI) is important and we reproduce it here:-

“MR TAYLOR:  Did you tell him at that point that you were going to tell his school and the police about what had happened?---No.

What happened next?---JL then said something about wanting to change his shift for the next day.  I believe he had a football game and he wanted to go to the footy the next day and he wanted me to swap the shift.  I said “Well, it’s your responsibility to swap the shifts.  You’re aware of the rostering policies.”  He said that wasn’t fair and I said “Well, unfortunately, you know the rules.  If you need to swap a shift, then it’s your responsibility.  We’ve got 48 crew people who can do it.  It’s not going to be a hard task, but again it’s up to you.”  And then he said well, he quits, and I said “Well, no.  That’s not what I want.”  He said “No.  I don’t want to come back.”  I said “Are you sure that is what you want?”  He said “Yes.  I don’t want to come back.”  I said “Well, you need to give 2 weeks notice.”  He goes “Nah, I’m not coming back to any of my other shifts” and I said “Well, if you want to do that, then you need to give 2 weeks - - sorry, you need to hand back your uniform deposit - - uniform.  We’ll give you your deposit” and then he walked away.

If JL thought that he had been terminated as a result of the allegations you put to him about stealing, why would he then go on and request a change of roster after that?---Because I hadn’t terminated him.  He knows that he had to do the shift the next day.

So in your view, in his mind at the time, he didn’t think - -

KENNER C:  Don’t lead, Mr Taylor.

MR TAYLOR:  Yes, Commissioner. 

(TO WITNESS):  Did JL indicate anything to you about his view of the continuing employment relationship?---He said he quit.  So I had to take it he wasn’t coming back.

KENNER C:  Did he actually use those words, Miss Hendry?  What actual words, as far as you can recall, were used - the actual words?  Can you remember?---He said “I quit.”

And you’re sure that you remember those words?---Yes.

And what did you say to him when he mentioned those words?---I said “Well, that’s not what I want.”  I said “Are you sure?”  He goes “Yes.  I don’t want to come back."

38      Ms Hendry’s evidence continued as follows.  She went back to her work, and then the appellant’s father came in to the restaurant and wanted to see her.  She went out to the front counter, introduced herself, shook his hand, asked him to sit down at the dining table and proceeded to tell him exactly what happened in the meeting.  L wanted to know what was happening.  He wanted her to show him the evidence.  He started raising his voice and banging the table, and wanted to know what was going on.  He also wanted her to ring her boss.  He kept saying “Show me the evidence”.  She did not tell him that the appellant had been terminated, or that he was likely to be terminated.  She rang her boss, Mr Haydar, and then gave the telephone to L and he spoke to her boss, and there was yelling.  Then afterwards L continued to yell for about 40 minutes.  Mr Haydar had instructed her on the telephone to ask L to come in next morning at 7.00am for a meeting.  Mr and Mrs L both were yelling and she told them “There’s a meeting at 7.00am”.  They then left.

39      Ms Hendry’s evidence continued.  At 7.00am the next morning, Sunday, 4 August 2002, the two crew people, the mother of one, Deanna, Mr Haydar and Ms Hendry were in the store.  Deanna was the manager on the night the stealing was alleged to have occurred.  The two crew members were the ones who had provided the written statements.  At 7.00am neither the appellant nor L showed up.  Although they waited until 8.30am, neither L nor the appellant showed up.  The meeting could therefore not be held.  Mr Haydar spoke to the other employees about what had happened.  Mr Haydar left about 8.30am.

40      A couple of nights later, L came in and wanted to talk to Ms Hendry.  He wanted to talk to the two other crew members who had made the allegations.  She did not permit him to.  Mr Haydar instructed her, by telephone, to ask him politely to leave and if he would not then to call the police.  This is what she did.  Mr Haydar had attempted again to meet L before this, she said.

41      Ms Hendry said in evidence also that she had two people who were informing her as manager that something had occurred which was her responsibility to follow up, that is anything of that nature, and she went to the appellant to get his version of events.

42      In cross-examination, Ms Hendry admitted that on 3 August 2002 she interviewed the appellant for about ten minutes after he finished his shift and that she had the three reports beforehand.

43      Ms Hendry said, too, that, on 30 July 2002, the casual manager, Deanna, was on duty.

44      Ms Hendry denied locking the door on 3 August 2002 when she asked the appellant into the office.  She said that she did close the door, that the lights were on.  She admitted that the video camera was in the store on 30 July 2002 and operating.  It works 24 hours a day.  Each tape is kept for a week, and is then used again.  She had the tape on 3 August 2002.  She was, however, instructed by her boss to keep using the tape.  She did not say to the appellant that the appellant was on the tape, she said.  She said that she told the appellant that she had the tape and if she needed to watch it she would.  The appellant was crying during the meeting, she said.  She was not cross-examined about the question of the alleged dismissal.  She said that although he was upset the appellant could still talk about swapping rosters.  She made a file note on 3 August 2002, and that was tendered as exhibit R6.  She said in cross-examination that when she interviewed the appellant, she said to him that someone had reported that he had stolen food from the shop.  She also said that she did not believe either of them, that meaning as we understood her evidence, that she had not accepted that either version of what had occurred was correct because, as she said, she needed to investigate further.  That was why she was interviewing the appellant.  She said that L walked in about two minutes after she completed her meeting with the appellant.  She denied again that she said the appellant’s action would be reported to the police.  She wrote down a note of what occurred for the appellant about 10 to 20 minutes after the meeting concluded (see exhibit R5) in which appeared the words “the video camera could be used.  JL on camera with bags”.  She did not think that she said that, she said in cross-examination.  She reiterated, as appears in a second and fuller note made the same day, that she told the appellant that the video tape could be used to check whether the statements of the other employees were true.  She did not say that she had checked the video and that it proved that the appellant had the food.

45      She repeated that she had spoken to the appellant in order to investigate both sides of the story, and said at the end of her discussion with the appellant, “We’ll just leave it at that”, and this was because she did not need to investigate it with the other side.  She made the more complete file notes (see exhibit R6) on 3 August 2002, after both meetings, and after everyone had left.

The Evidence of Mr Amon Haydar

46      Evidence was given by Mr Amon Haydar.  He said that he had been with McDonalds for 20 years and progressed through the ranks there.  He became the owner of the company, Haydar Family Restaurants, trading as McDonald’s Dianella and Mirrabooka, about two and a half years before.  His wife and he owned the business where the appellant was employed.  He said that he had not been involved in allegations of stealing against an employee before.  He said that they had never fired a person for stealing or not coming to work.  He said that he was not going to fire a 15 year old who takes a hamburger, but would explain to that person the allegations made against him or her and the policies, and tell them to follow the policies.  Had he had the opportunity to meet L that is the approach which he would have taken, he said (see page 44 (TFI)).  He said that nobody had authority to terminate the employment of employees, except him, and Ms Hendry certainly did not.  She told Mr Haydar on the telephone on 3 August 2002, in tears, about her discussion with the appellant.  He asked her to stop crying and put L on the telephone, which she did.  L demanded that he drop everything and come to the restaurant immediately.  He told L that that was impossible.  He was at home and they had people from the eastern states staying with them.  L said to him “It’s not good enough.  You have to come down”.  Mr Haydar said that he was sorry that he could not do that at that time and hung up.  However, he instructed Ms Hendry to arrange a meeting with L next morning at 7.00am.

47      Ms Hendry had told Mr Haydar that she had seen the appellant in the office and asked him whether he had taken any food, and the appellant had said “No”.  She also said that she had left it alone and that they had discussed the roster.

48      Next day, at 7.00am, Mr Haydar waited with Ms Hendry, Deanna, Michael and Kathryn, the two young crew persons who had made the allegations, and the mother of Michael, for L and his son to attend.  They did not attend.  They attempted to contact L by telephone but they could not get through.  Mr Haydar had to leave to attend Holy Communion at his church at 9.00am.  He said that he had at that time made no decisions.  He was surprised to hear the allegations, because he thought that the appellant was a good lad.  However, it was important to investigate the matter and “have closure”.  At 10.00am the same day, 4 August 2002, L rang him from the restaurant.  Mr Haydar was then at church, and organised to meet L later by instructing a Chinese speaking manager employed by him to arrange a meeting.  He understood that that meeting was organised for 9.00pm that day.  Mr Haydar and Ms Hendry attended to wait for L at that time, but he did not turn up.  Again, they tried to contact L, but could not get in touch with him.  He again rang L and told him that they needed to resolve the situation and asked him to meet him (see page 45 (TFI)), in the near future, after Mr Haydar returned from leave.  When he did return he tried again to contact L, but L did not return his calls.

49      He said to L, on the very first telephone call on 3 August 2002, that, when Ms Hendry rang him and said “L wants to talk to you” - - I said “L, please calm down.  Stop yelling at me”.  He said that he told L “Your son’s not in trouble.  These are allegations that are made.  My manager has to follow up.  This is her job.  This is what I pay her to do.  He is not in trouble.  He hasn’t been fired.  I’ll meet with you tomorrow.  So no, the answer is “No””.  At no time did L or the appellant withdraw the resignation.  In fact, he was never able to meet L or the appellant.

50      The only time that he saw L was one day he received a call from his manager at Dianella when he was at the Mirrabooka restaurant, who said that L was there.  He came out to the restaurant and met L and he grabbed Ms Hendry and they sat in the crew room and L tried to get him to sign some documents which he declined to do.  He was not sure what the documents were.  Then L told him they were from the Industrial Relations Commission.  L got up and left.  Then he got a call from Dianella saying that L was there with the documents and two police officers.  He told his manager to take the documents and he would come and pick them up, which he did.  He wrote a letter to accept the resignation on 25 September 2002 and gave him a letter of service also.  This was after the filing of the application on 26 August 2002.  He said that he then accepted, after all of his attempts to contact the appellant and L were in vain, that the appellant had resigned and he terminated his employment.

51      After 3 August 2002, the appellant never turned up to work again, Mr Haydar said.

52      In cross-examination, Mr Haydar said that they did not fire anyone, that there is a 24 hour cooling period if there is an incident in the store, then there are verbal warnings given.  He said that he wrote to the appellant on 25 September 2002 to accept the resignation.  The delay in writing occurred because he was trying to meet L to resolve the matter and after that he, Mr Haydar, was on leave.  He said that he had not come to any conclusions about the matter.  He said that they record over the videos every week.  The appellant never returned to work after 3 August 2002 and was never accused falsely of stealing.  He did not view the video.  He had not believed any story.  He needed to have an investigation.  He had to instruct Ms Hendry to call the police when, one day, L came into the store yelling.  He did not complete his investigation because he was unable to have a meeting with the appellant and L.  The appellant did not put in writing that he resigned, but he never returned.

FINDINGS OF THE COMMISSIONER AT FIRST INSTANCE

53      The Commissioner at first instance made, summarised, the following findings:-

(a)          That a meeting took place on 3 August 2002 between the appellant and Ms Hendry, the store manager of the respondent.

(b)          That at the meeting in the office of the Dianella restaurant premises, Ms Hendry raised with the appellant allegations made to her by co-employees of the appellant that he had removed food from the respondent’s premises at some time previously, contrary to the respondent’s policies and procedures.

(c)          That Ms Hendry was putting to the appellant allegations that had been raised with her and she did not herself accuse the appellant of theft or removal of food contrary to the respondent’s policies.

(d)          That there was then an obligation on the respondent, once the allegations were made, to put them to the appellant and the appellant became quite upset and emotional as a result.

(e)          That on that evidence, it is more than likely the case that the appellant had a degree of misunderstanding as to the issues which were being raised by Ms Hendry.

(f)          That it would seem on the evidence that the appellant took what was said to him as an accusation or effectively a finding of guilt in relation to theft of food from the respondent, but the evidence does not bear that out.

(g)          That Ms Hendry was doing no more than she was obliged to do, that is to raise the allegations with the appellant giving him an opportunity of commenting and responding to those allegations and then advising him that she would need to take the matter further with those who made the allegations to undertake further investigations.

(h)          That the appellant was upset and no doubt went to his father shortly thereafter and told him what had occurred earlier.

(i)          That whilst the appellant said he had no hesitation in telling his father what had occurred, it may well be the case that during the course of that process there might have been a less than clear explanation as to the events which transpired.

(j)          That understandably L took it upon himself to take steps to make further enquiries about what had occurred in the meeting with Ms Hendry.

(k)          That as a result of the meeting of 3 August 2002, there were only allegations raised by the respondent and the Commissioner did not accept that any findings could be made, were made or could be made, as to whether the allegations were properly founded or not.

(l)          That as a consequence of the meeting, the appellant being upset, indicated as his own evidence made clear, that he was of the view that he did not want to return to the respondent in the light of what had occurred.

(m)          That there was no dismissal as a matter of fact or law to found the jurisdiction of the Commission.

(n)          That applying the ratio in Attorney-General v WA Prison Officers’ Union of Workers (1995) 75 WAIG 3166 (IAC), there was no action on behalf of the employer or by the employer which constituted or ultimately led to the termination of employment, that is there was no calculated act by the employer to bring the relationship to an end, or such conduct which made it simply unbearable for the employee to remain and to have no alternative other than to tender their resignation.

(o)          That the Commissioner was not persuaded that the circumstances of 3 August 2002 were such that the appellant had no alternative but to abandon his employment or to resign.

(p)          That the employer had no conscious design to engage in a course of conduct to force the employee to leave the employment.

(q)          That the appellant made the decision based upon his perceptions of the meeting which constituted a misunderstanding of the events as they occurred.  It was clearly the case, on the evidence, that the investigation which the respondent employer was obliged to conduct as a matter of employment law, did not proceed beyond the events of 3 August 2002, for reasons which were manifestly plain on the evidence.

(r)          That the conduct alleged not being established ought not and should never be held against the appellant as a young 15 year old boy.  However, the appellant had not established the jurisdictional prerequisite that he had been dismissed.

ISSUES AND CONCLUSIONS

Not a Discretionary Decision

54      The decision appealed against was not a discretionary decision as that term is defined in Norbis v Norbis [1986] 161 CLR 513 and Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194.

55      This was a decision based on findings of fact and law that there was no dismissal of the appellant, and, accordingly, that the Commission had no jurisdiction to hear and determine the matter (see Pisconeri v Laurens & Munns incorporating Munns Nominees Pty Ltd and George Laurens Pty Ltd (1999) 79 WAIG 3187 at 3190 (FB) per Sharkey P).

Credibility

56      We apply the principle laid down in Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 at 479 and 482-483, as that principle was modified in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 (HC), and Fox v Percy (2003) 77 ALJR 989 at 990-998 per Gleeson CJ, Gummow and Kirby JJ, and the further reasons for judgment of Kirby J in Shorey v PT Ltd (As Trustee for McNamara Property Trust)  (2003) 77 ALJR 1104 at 1106-1112.  That principle is as follows:-

“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.”

(See also Abalos v Australian Postal Commission [1990] 171 CLR 167).

Jurisdiction

57      It is trite to say that s.23A and s.29(1)(b)(i) of the Act confer no jurisdiction on the Commission to hear and determine a claim of unfair dismissal unless there was a dismissal.  If there was no dismissal in this case, there was no jurisdiction.

58      It is trite to observe that separation from an employer of an employee may be voluntary or the result of restructuring and redundancy or arise from an actual or constructive dismissal.

59      It should be observed that there is no definition of “dismissal” in the Act.

60      For a dismissal to have occurred, there must be some action on the part of the employer which leads to or effects the termination of the employee’s employment.

61      The employer must act to bring the relationship to an end.  This can be effected by the employer making it unbearable for the employee to remain.  (We refer also to Metropolitan (Perth) Passenger Transport Trust v Gersdorf 61 WAIG 611 (IAC) where a “dismissal” is defined, and see also Attorney-General v WA Prison Officers’ Union (op cit) (IAC) (see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205 (FC FC)) (see also Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886 at 1893 (FB) and the cases cited therein where Sharkey P said):-

“Where an employee does not fairly consent to the termination of employment, then the termination is a dismissal.  Further, it is the case that, even though there is no statutory definition of “dismissal” in the Act (unlike the Industrial Relations Act 1988 (Cth), which was referred to in Mohazab v Dick Smith Electronics Pty Ltd (No 2)(FC)(op cit)) that a dismissal in which the action of the employer is a principal contributing factor leading to the termination of the employment relationship is a constructive dismissal.  It can also be put this way:  the employee is dismissed if he/she is given no option but to leave.”

62      Rowland J, with whom Anderson J agreed, in Attorney-General v WA Prison Officers’ Union of Workers (op cit) (IAC) at page 3169 applied the doctrine of constructive dismissal.  He applied and quoted from the dicta of Cooke J in a judgment of the Court of Appeal of New Zealand in Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 at 374 where His Honour said, inter alia:-

“Obviously there is a dismissal when an employer in fact “dismisses” a worker in the ordinary meaning of the word.  But the Arbitration Court has held in a line of cases that the concept is wider and includes constructive dismissal.  In our opinion that is the correct approach.  In the context of an Act aimed at good industrial relations it is right to assume that Parliament would have meant “dismissal” to cover cases where in substance the employer has dismissed a worker although technically there has been a resignation.

…  It would be undesirable to try to visualise all the kinds of case which the Arbitration Court could properly treat as constructive dismissals, but it is not difficult to list some.

The concept is certainly capable of including cases where an employer gives a worker an option of resigning or being dismissed; or where an employer has followed a course of conduct with the deliberate and dominant purpose of coercing a worker to resign.”

63      Quite clearly, an employee is dismissed if she/he is given no option but to leave the employment.

64      “Harassment” directed to bringing about resignation constitutes a constructive dismissal also (see Francesca v Prime Security Systems Pty Ltd (1993) 60 SAIR 505 at 513 (Full Commission)).

65      The case for the respondent was that the appellant had resigned without pressure and of his own volition.

66      Put another way, an important element of termination by an employer, that is dismissal of an employee, is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.  That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

67      Again, when an employee has no effective or real choice but to resign, it can hardly be said that the termination of the employment is effected by him or is his act.  It is quite clear, in those circumstances, that, but for the insistence of the employer, termination of employment would not cross the mind of the employee.  It is trite, therefore, to observe that a constructive dismissal must be at the initiative of the employer and a “voluntary resignation” is not a dismissal (see Corneille v Composite Buyers Ltd t/a Maxi Foods (2000) 48 AILR 4-278 (AIRC) per Hingley C).

68      It also follows that, if an employee has other options, other than to resign and does resign, she/he will not be held to have been dismissed (see Librizzi v Flower Power Pty Ltd (2000) 48 AILR 4-323 (FC) per Einfeld J).

69      Thus, we would also add that if an employee unilaterally terminates a contract of employment, then she/he has clearly not been dismissed.  Where the employee resigns of her/his own volition and without coercion, that employee has not been dismissed.  This Commission has been required to consider that question on a number of occasions.  The test for an intention is not a subjective one depending on actual intention.  Intention is to be judged from what the innocent party reasonably infers from the acts and words used of the party who repudiates (see Loughridge v Lavery [1969] VR 912 at 913).  A repudiation of obligation occurs when a party to a contract of employment clearly indicates an absence of readiness or willingness to perform his contractual obligations if the absence of readiness or willingness satisfies the requirement of seriousness (see Carter “Breach of Contract” (1991) 2nd Edition at pages 217 – 218 and 221 - 222).

70      An employee who leaves the job without sufficient notice or without notice repudiates the contract (see Thomas Marshall (Exports) Ltd v Giunle [1978] 3 All ER 193 and also Evening Standard Co Ltd v Henderson [1987] ICR 588 (CA)).

71      Further, there is an implied term in every contract of employment that an employer must be good and considerate to its employees, or that the employer should not, without reasonable cause, do anything to destroy the relationship of trust and confidence between the employer and the employee.  In our opinion, a breach of such a term may amount to a repudiation entitling the employee to treat the contract as at an end (see Macken, O’Grady, Sappideen and Warburton “Law of Employment”, 5th Edition, at pages 113-117 and Burazin v Black Town City Guardian Pty Ltd (1996) 142 ALR 144 and Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, as well as Whelan v Waitaki Meats Ltd (1991) 2 NZLR 74 at 85 and Brighouse Ltd v Bilderbeck [1994] 1 NZLR 158 at 164). There is no suggestion that such a term was breached here.

Matters of Evidence and Fact

72      It is necessary to consider the evidence of all of the witnesses, much but not all of which did not differ a great deal, was not impugned, shaken or contradicted.  We have carefully considered all of the evidence.

73      What is quite clear occurred is this.  Two other employees of the respondent complained to a shift manager, one Deanna, who was not identified by her surname, that they had seen the appellant take food without paying for it.  Such an act, it was not in issue, was contrary to the policies and procedures of the respondent and might lead to a dismissal.

74      That such an act was contrary to the policies and procedures of the respondent was, it was not denied or challenged, made known to the appellant and emphasised to him in the course of his orientation by Ms Hendry, who was the manager of the store.  Further, we should add that such an act constitutes stealing from the employer.

75      The allegations in written form signed by the two employees were brought to Ms Hendry’s attention upon her instructions, as the store manager, and she read them on 3 August 2002.  At the conclusion of his shift at about 1.00pm on 3 August 2002, Ms Hendry asked the appellant, who had been about one month in the job and whose first job it was, to come into the office at the restaurant.  She wished to raise the allegations with him, she said.  The office, on the evidence, was an ordinary office with a chair, desk, etc.

76      The interview between Ms Hendry and the appellant took no more than 10 minutes.  That was not in dispute.  In evidence in chief the appellant said that he had been locked in, that the room was dark, that Ms Hendry pulled him into the room with a fierce face, and locked the door.  At no time did he say the lights were off, and in cross-examination he admitted that he did not know whether the office was locked or the light was on, and that he could see Ms Hendry.  He did say that he was glad to get out of the place.  He did not say that the office had to be unlocked to let him out.  Ms Hendry’s evidence was that she did not lock the door, and that the lights were on during the interview, as well.

77      Mr Haydar and Ms Hendry said that it was her duty to investigate the allegations made by the other employees, which indisputably it clearly was.

78      The appellant agreed in cross-examination that it was his duty to enter into the discussions with his employer when its manager, Ms Hendry, requested him to, as she did on this occasion.

79      Thus, it is quite clear that Ms Hendry interviewing the appellant about the allegations was correctly carrying out her duty as a store manager.  It was correctly not suggested otherwise.

80      The appellant said that Ms Hendry alleged that he had stolen food, namely some fries, chickens and hamburgers.  These were in four big bags, he said she said, and that he took these from the store without paying.  She told him, she said, that there were three witnesses, that the accounts were on the desk, and that there was evidence on video that he stole.  He said that he was speechless and crying and told her that he did not know anything about this.  He said that she called him a thief and said that she would tell the police and his school about it.

81      He said that he denied taking the food.  Ms Hendry, on the other hand, said that she told the appellant that she had the statements, that the allegations had been made, and asked him what he had to say.  She also said that she told him that she could use the video to check.  One note that she made, however, as we have said above, indicated that she said to him that he was caught on the video taking the bags (see exhibit R5).  She said, in cross-examination, that that was not what she did say to him.  She denied saying that she would tell the police and the school about the incident.  She also said that she did not watch the video, which was eventually used again on Mr Haydar’s instructions.

82      She also said that she told the appellant that she now had to investigate the matter.  She also said that, and we paraphrase, she had reached no conclusion as to who was right.  She said that she had to investigate the matter and then see Mr Haydar to sort it out.  Very importantly, Ms Hendry said in evidence that the appellant told her “I quit”, that she told him that that was not what she wanted, and that she reminded him about giving two weeks notice and spoke of obtaining a deposit refund on his uniform.  The appellant denied that he resigned or that he informed Ms Hendry that he was resigning.  He certainly did not resign in writing.  It was the undisputed unchallenged evidence of both the appellant and Ms Hendry that she did not dismiss him in any express words, not using the words “dismiss” or “finished” or anything like that.  It was also the evidence that Ms Hendry had no power to dismiss employees, and that evidence was not disputed.  That power only rested in the owner, Mr Haydar, both he and Ms Hendry said.

83      It was the appellant’s case that the meeting was directed to his dismissal because he was wrongly accused of stealing food.  While Ms Hendry admitted that, in the interview, the appellant was upset, she said that he was not so upset that he was unable to mention to her that he wished to swap the shift which he was to work the next day, according to the roster, in order to attend a football match, she believed.  That this topic was discussed at all was denied by the appellant.

84      That it was the case, too, as Ms Hendry and Mr Haydar said in evidence, and which was not disputed, that one could not accept a resignation until after a cooling off period of 24 hours expired, was so.  Such a cooling off period also applied to a proposed dismissal, which, in any event, could only occur after three sets of counselling evidence on a form, on Ms Hendry’s uncontroverted evidence.

85      Straight after the interview ceased, the appellant went out to the car park where his father, mother and sister were waiting in the car.  He told his father that he was wrongly accused of stealing food by Ms Hendry.  His father was angry.  He was afraid that his father would turn on him, but he did not.  He said that he told his father the truth.  He did not, however, significantly, tell his father that had been dismissed.  There followed shortly after the prolonged discussions and the angry behaviour of L with and towards Ms Hendry and Mr Haydar, and this is referred to in detail above.  This resulted in Mr Haydar advising him that he was unable to attend to the matter immediately, but instructing Ms Hendry, who was in tears, to arrange a meeting with L the next day, Sunday, 4 August 2002, at 7.00am.  L, it was not denied, engaged that afternoon for about 40 minutes in yelling.

86      Ms Hendry gave evidence, not denied or shaken, that she told Mr and Mrs L and the appellant that afternoon that there would be a meeting at 7.00am next morning to discuss the matter.  The appellant himself, however, said in evidence that he did not wish to attend the meeting with Mr Haydar because he did not know him that well, “so I had nothing really to say to him”.

87      The appellant also said “At that point in time, I didn’t want to go back because it was the - - the name was destroyed.  I couldn’t go back, and also I didn’t meet Haydar because I knew this wasn’t my problem.  I knew I did nothing wrong and my own choice said that I didn’t want to go back.  So that was my thing” (see page 18 (TFI)).

88      Thus, at, before, or just after the meeting was proposed on the afternoon of 3 August 2002, the appellant had decided, on his own evidence, by his own choice and his own decision, to leave his employment with the respondent.  He also had decided not to attend a meeting with Mr Haydar because he had decided not to go back.  There is no evidence that either he or his father told anyone that they would not attend the meeting.  Indeed, next morning, Deanna, Ms Hendry, the two crew people who made the allegations, and the mother of one of them, and Mr Haydar attended at the restaurant at 7.00am for the meeting and neither L nor the appellant attended.  Attempts to contact them and find them whilst these persons were waiting were unsuccessful.  At that time, too, the undisputed and unshaken evidence of Mr Haydar was that he had not completed his investigation and that he was surprised about the allegations made about the appellant.  He said, and again this was undisputed, that he would not dismiss a 15 year old for taking food, that he had not had this sort of incident before, and that, to paraphrase it, he did not, in any event, know who was right.  Mr Haydar also was not contradicted when he said that he told L that his son was not in trouble.  It is also clearly the fact that L rang Mr Haydar at 10.00am that day while he was at church and wanted to see him then, and, of course, this was not possible.

89      L also attended at the premises on another occasion seeking to see and interview the young persons who had made the allegations about his son, and it was necessary to ask him to leave, particularly since one of the persons was present and did not wish to speak to him.

90      It is also the fact that Mr Haydar then attempted on 4 August 2002 to arrange another meeting to discuss the matter with L at 9.00pm the next day.  Again, neither L nor the appellant attended, although Ms Hendry and Mr Haydar were available that time and another attempt to contact L at that time by telephone was unsuccessful.

91      Subsequent attempts to contact L by telephone by the appellant were also unsuccessful, although on one occasion he rang him and said that it was necessary to meet to resolve the matter.  The indisputable fact is that in accordance with his own admitted decision of 3 August 2002, not to return to work, the appellant did not return to work although he was rostered to do so.  It is clear, too, on the undisputed evidence of Mr Haydar that he was not expressly dismissed, nor, indeed, had any decision to dismiss him been made, nor was one made.

92      There was no evidence that the police or the school were informed about the matter by the respondent or anyone acting on the respondent’s behalf.

93      On 25 September 2002, Mr Haydar wrote to the appellant giving him a letter of service and accepting his “termination” of the contract, that is his resignation.  This was, as we have said, after the filing of the application at first instance.

94      We should also observe that, on a fair reading of the transcript and consideration of all of the evidence, there was no error within the principle laid down in Devries and Another v Australian National Railways Commission and Another (op cit).  In particular, the Commissioner at first instance did not err in findings in matters of fact and did not fail to use and did not palpably misuse his advantage.  He did not act on evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable.  (The summary of the evidence above, in our opinion, demonstrates that).

Findings Open

95      It was therefore open to the Commissioner at first instance to find, and he should have found:-

a)                              That the appellant knew of the policy which forbade food being taken by an employee without permission or without it being paid for and of the likely consequences of it.

b)                             That the appellant knew that when questions of resignation or termination arose that there was a 24 hour cooling off period before either act could take effect.

c)                              That it was the duty of Ms Hendry to investigate allegations of stealing food made by fellow employees about the appellant, and those allegations were committed to writing.

d)                             That on 3 August 2002, in order to pursue this investigation, Ms Hendry interviewed the appellant in the restaurant office.

e)                              That on his own admission in cross-examination, which was contrary to his assertion in evidence in chief, and having regard to the fact that he himself admitted that he therefore was not coerced, not locked in, not detained in a dark room or detained at all against his will, or placed under duress, his credibility was reduced.

f)                               That to assert so in the first place was untrue, having regard to Ms Hendry’s clear evidence, and properly would bring his credibility into question.

g)                             That on a fair reading of the transcript, the appellant was not told that he was a thief, nor that the matter would be reported to the police or his school, and there was no evidence that this was done, having regard to the clear evidence of Ms Hendry.

h)                             That on a fair consideration of the evidence of Ms Hendry and the appellant, Ms Hendry informed the appellant that there were allegations by two work mates who alleged that they had seen him stealing food, that this was on video, or could be checked on video, and his comments were sought.  It may have been put sternly, but this did not prevent the appellant denying the allegations, as he did.

i)                               That it is quite clear that Ms Hendry did not take the matter further, on her own evidence.  It is also clear, on her evidence, which would seem might properly be preferred, on a fair reading of all of the evidence, that the appellant said that he quit, that is he resigned without notice or proper notice.  That is partly corroborated by the fact that the appellant clearly, in evidence, admitted that he made the decision to quit that day and certainly within hours of the time when Ms Hendry said that he had told her that he was “quitting”.

j)                               That he was not told, on any of the evidence, that the employer accepted the allegations of guilt against him.

k)                             That he was not dismissed by Ms Hendry then or at any time and that he did not allege that he was in those terms.

l)                               That he could not properly be, because of the cooling off period and the counselling requirements, of which he was aware, dismissed at the time when he said he was, in any event.

m)                           That, in any event, Mr Haydar did not dismiss him, had no intention of dismissing him, and informed his father that he was not in any trouble.

n)                             That further he did not tell his father that he had been dismissed, when one might have expected him to have done so had he thought that that is what was intended or occurring.

o)                             That he told his father that he had been wrongly accused of stealing.

p)                             That he had made up his mind at the latest on 3 August 2002 before he went to the doctor, on his own admission, at the time the question of a meeting with Mr Haydar was arranged, to leave his employment and would not even attend a meeting to which he was invited by his employer to discuss the matter further.

q)                             That the appellant was not dismissed because Mr Haydar was attempting to meet L and the appellant to discuss the matter, but was, through no fault of his own, unsuccessful in that endeavour.  It is clear from the findings of the Commissioner that within the principle in Abalos v Australian Postal Commission (op cit), by strong implication, he was not persuaded that where there was conflict between the appellant’s evidence and that of the witnesses for the respondent, he should accept the appellant’s evidence (see the principle in Abalos v Australian Postal Commission (op cit)).

r)                               That the employer made a number of genuine attempts to meet L and the appellant to resolve the matter, but because the appellant had decided to leave his employment already, he did not co-operate, nor did his father.

s)                              That no allegations were made, and there was no suggestion at first instance that the allegations by the other crew members were forged or fraudulent.

t)                               That there was no express evidence or evidence from which any inference could be drawn that there was any intention to force the appellant to resign because:-

i)                        The investigation was, on all of the evidence, uncompleted.

ii)                      Ms Hendry had no power to make any decision about dismissal.

iii)                    The cooling off period which both parties knew about applied.

iv)                    There was no or no credible evidence of direct coercion or implicit coercion.

v)                      The appellant, on his own evidence, had decided to leave and made that decision on 3 August 2002.

vi)                    The respondent’s “owner” had, on his own evidence, not decided to dismiss the appellant, did not intend to dismiss him, and never completed his investigation.

vii)                  The respondent made every attempt to arrange meetings to resolve the matter, but was unable to do so because of the lack of co-operation from the appellant and his father.

viii)               There was clearly no intention by Mr Haydar, on his own evidence, to dismiss the appellant.

ix)                    The Commissioner was therefore correct, too, in finding as he did, and, in particular, those findings summarised in sub-paragraphs (a) to (r) inclusive of paragraph 52 hereof.

96      We are also satisfied, for all of those reasons, that the Commissioner at first instance did not, insofar as it was relevant, misuse the advantage which he enjoyed by seeing and hearing the witnesses at first instance.  It was open to find, within the meaning of the principles expressed above, that the appellant resigned from his employment of his own volition, on his own evidence, and that of the respondent’s witnesses, and there was no suggestion express or implied that he should resign or be dismissed by his employer.  He, in fact, repudiated his contract of employment by giving no or no sufficient notice and by his conduct and without even express advice that he was doing so, resigned from his employment.  That is his own evidence.  On Ms Hendry’s story, he, without notice or sufficient notice, having told her that he would “quit” his employment, did so.  No argument was put to the Full Bench which would persuade us that Ms Hendry’s evidence, which was given directly and straightforwardly on a fair reading, should not be accepted, particularly since in substantial parts it was corroborated by the appellant himself.  There was no dismissal.  There was therefore no jurisdiction in the Commission to hear and determine the matter, and the Commissioner was correct in so deciding and dismissing the matter.

The Grounds

97      For those reasons, grounds 2 and 3 have no foundation and are not made out.

98      Ground 4 can be commented upon as follows.  In our opinion, as we have expressed it above, it was open to find that the Commissioner at first instance did not ignore the evidence which was submitted to him at all.  The Commissioner made findings which he was entitled to make on a fair reading of the transcript.

99      Further, there was no evidence, as alleged in ground 6, of workplace bullying or slander at all from the appellant or anyone else.

100   For those reasons, grounds 4 and 6 would not be made out.

101   We now turn to ground 5 which makes allegations of a denial of natural justice or a failure to accord procedural fairness by the Commissioner to the appellant at first instance.  This ground was an unsatisfactory ground and the submissions in support of it were unsatisfactory.  This was particularly so because when the allegations were made by L, and he took us to those portions of the transcript which he said supported these submissions, they in fact supported the view that he was given every opportunity to cross-examine.  There is nothing in the transcript to indicate that counsel for the respondent was getting married that afternoon or at any time.  There is nothing in the transcript to indicate that “the court must end earlier”.  Indeed, the Commissioner asked L (see page 36 (AB) and page 62 (TFI)) the following:-

“KENNER C:  … L, do you wish to say anything further or you've said what you want to say?

L:  I have few points to make.

KENNER C:  Do you propose to be very long?  Normally the Commission would adjourn for lunch at 1 o'clock.  Can you - -

L:  Two minutes.

KENNER C:  All right.  I don't want to rush you, but if you can give me some indication.

L:  Yes. 

KENNER C:  You just will be a couple of minutes?

L:  Okay.  Couple of minutes.

KENNER C:  Is that what you want?  Is that how you want to put it?  If you want to take longer, tell me and I'll adjourn.

L:  No.  Two minutes will be enough.

KENNER C:  All right.  Please proceed.”

(See also the opportunity afforded to him to cross-examine at page 56 (TFI)).

102   That clearly reveals, as does all of the transcript, that the Commissioner at first instance gave every opportunity to L to properly address him.

103   L was given every reasonable and proper opportunity to present his case, including every reasonable and proper opportunity to cross-examine.  Indeed, those pages of the transcript to which L took us were evidence of this.  Finally, L himself acknowledged the fairness of the hearing when at page 38 (AB) (see also page 63a (TFI)) he said:-

“Okay.  So what I want to say is thank you very much for offering us such opportunity to tell the story.  One thing really.  I told my son "This world is not perfect.  Many problems, but since we're lucky to live in Australia, the law here has got the power, so can return the justice to you.  You believe this" because he's got a long way in his life to go.  This is the first time.”

104   Further, there was nothing at all in this case to indicate that, within the principle in Stead v State Government Insurance Commission [1986] 161 CLR 141, the appellant was denied by the Commission any chance of a favourable outcome, even if there had been a denial of natural justice or procedural fairness, which there was not.  That ground is clearly not made out.

General Observations on the Grounds of Appeal

105   The basis of the decision at first instance was simple.  The Commissioner found that there was no dismissal and therefore that the Commission had no jurisdiction.  The grounds, as they are framed, except ground 4, do not attack that finding.  They are, for the most part, on a fair reading, irrelevant, as are the orders sought.

106   The Commissioner correctly found that there was no dismissal and therefore no jurisdiction to hear and determine the matter.  L himself gave no evidence at first instance, nor is there any record that he sought to, although the Commissioner advised him to call witnesses.  In particular, attempts to allege that the allegation by the appellant’s workmates were fraudulent and forged which were made on the appeal were not made at first instance.  Their relevance, in any event, given that the Commissioner admitted the written statements of allegation only as evidence of the fact that the allegations were made and not their truth, and the investigation of the allegation seeking the appellant’s response was not completed, is very doubtful.

107   Much of what L said in submissions to the Full Bench sought to augment from the bar table evidence given at first instance by evidence which was not given at first instance, and therefore which was properly excluded by the operation of s.49(4) of the Act (see FCU v George Moss Ltd 70 WAIG 3040 (FB) and Orr v Holmes and Another [1948] 76 CLR 632).  In particular, the evidence sought to be given was reasonably adducible at first instance, and/or was irrelevant to and could have no bearing on the outcome of the proceedings.

108   For those reasons, the appeal had no merit at all.

Applications to Extend Time

109   There was also an application on behalf of the appellant to extend time within which to appeal and within which to file applications to extend time.

110   The decision appealed against was perfected by being deposited in the Registrar’s office at this Commission on 14 May 2003.  The notice of appeal was filed herein on 18 June 2003.  The only evidence for the reason for the delay of over one month was that the order had been forwarded by this Commission to L late.  L was not able to say when it arrived or refer to the date or any document evidencing this.

111   The relevant authorities are, however, Ryan v Hazelby and Lester trading as Carnarvon Waste Disposals 73 WAIG 1752 (IAC), Tip Top Bakeries v TWU 74 WAIG 1189 (IAC) and Gallo v Dawson (1990) 64 ALJR 458.

112   In this case, applying the relevant authorities, the appellant failed to establish, as he was bound to do, that the appeal had any merit, nor did he establish that the delay in filing the appeal was properly explicable and not his fault.  Accordingly, the justice of the matter was not established to lie with the applicant/appellant, and there is no merit in the application.  We would therefore dismiss the applications, and we would therefore, for that reason, dismiss the appeal.

The Appeal

113   If our dismissal of the application to extend time were wrong, then, for the reasons which we have expressed, the appeal is not made out and should be dismissed.  We would therefore dismiss it, in any event.

Finally

114   This was a matter which is somewhat unfortunate.  It is not a matter which should reflect on the young people involved, nor on the respondent’s witnesses.  The simple fact is that no guilt was established in the appellant, there can be no reflection either on him or those who made the allegations.  The investigation was not completed and the matter should be left there.

115   For our part, we would propose, unless there is objection, for the protection of the appellant infant to refer to him as JL and his father as L in the heading and text of these reasons and the appeal documents.  We have already referred to the two other crew persons by their first names only.  Unless there is an objection expressed in writing to the Full Bench within 48 hours of the date hereof with notice to the other party, that is what we would do.

       Order accordingly