100319421

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES IVY BILOS

APPELLANT

 -and-

 AURION GOLD

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER P E SCOTT

  COMMISSIONER J L HARRISON

DELIVERED WEDNESDAY, 29 OCTOBER 2003

FILE NO/S FBA 25 OF 2003

CITATION NO. 2003 WAIRC 09858

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Appeal to the Full Bench – Application to set aside appeal – Failure to give full or proper particulars – Question of whether appeal is arguable or fairly arguable – leave granted to amend grounds of appeal – Application to set aside appeal dismissed – Industrial Relations Commission Regulations 1985 r29 – Industrial Relations Act 1979 (as amended) s6(c), s26(1)(a) and (c), s27(1)(a), (l), (m) and (v), s29, s49

Decision  Application to set aside or dismiss appeal dismissed; Other orders                             and directions               made

Appearances

Appellant   Ms C P Crawford (of Counsel), by leave

Respondent   Mr A N Cameron, as agent

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          On 2 September 2003, the above-named appellant, Ivy Bilos, filed a notice of appeal in this Commission, namely FBA 25 of 2003.  The appeal was against the decision of the Commission, constituted by a single Commissioner, given on 14 August 2003 in matter No 1991 of 2002, and perfected by its being deposited in the Registrar’s office on the same date.  The appeal was against the whole of the decision.

2          The grounds of the appeal contain a number of allegations of error of fact and law, and appear at (see page 2-3 of the appeal book (hereinafter referred to as “AB”))

3          The decision appealed against (see AB 27) was a decision to dismiss an application made by the appellant (hereinafter called “Ms Bilos”) pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”) whereby Ms Bilos alleged that she was harshly and unfairly dismissed by her position being made redundant on her return from maternity leave in circumstances where there was no true redundancy, and for other reasons.  She sought relief.  That application was opposed by the above-named respondent.

4          The decision appealed against was a decision of the Commission that Ms Bilos’ application be dismissed.

5          The notice of appeal herein was served on the respondent’s representative on a date which is not clear, but the appeal book was served on 17 September 2003.

6          On 17 September 2003, a sealed copy of an application to set aside the appeal, No FBA 25 of 2003, which had been filed on 17 September 2003 on behalf of the above-named respondent, Aurion Gold (hereinafter called “Aurion”) was served on Ms Bilos and, also on her solicitor, Mr Noel Whitehead.

7          The grounds of this application are as follows:-

“1. The “appeal” is incompetent in that it discloses no recognized ground of appeal whatsoever.  It is not an appeal that is recognized by the Industrial Relations Commission Regulations 1985.

PARTICULARS

The Industrial Relations Commission Regulations 1985 prescribe the contents and requirements for an appeal. 

The relevant sub-regulation provides as follows:-

Regulation 29(1) …

Regulation 29(2) of the Industrial Relations Commission Regulations 1985 (as amended)

Without affecting the specific provision of the foregoing subregulation, it is not sufficient to allege that a decision or part of it is against the evidence or the weight of evidence or that it is wrong in law; the notice must specify the particulars relied on to demonstrate that it is against the evidence and the weight of evidence and the specific reasons why it is alleged to be wrong in law.

…

The “appeal” in this matter does not even seek to comply with the forgoing requirements.

The schedule to the “appeal” does no more than make the bold, yet utterly bare, assertions that the learned Commissioner erred in finding, accepting, doubting and considering certain matters (save and except for ground of “appeal” A(c) which contains no such verb at all).

2. The Industrial Relations Commission Regulations 1985 provide for the lodging and serving of appeal books as follows:-

…

Neither the respondent to this “appeal” or it’s agent have been served with an appeal book.

3. Non-compliance with the Regulations is governed by regulation 93 which provides as follows:-

Regulation 29(10) Appeal Book…

FBA 25 of 2003 discloses no recognizable ground of appeal whatsoever.  It is therefore inappropriate that the current void be purported to be amended, or that it be otherwise dealt with in a manner that leaves it afoot.  It is so completely irregular that it is appropriate to set it wholly aside.

4. The applicant herein seeks an Order that Matter No. FBA 25 of 2003 be wholly set aside.”

The application is made pursuant to s.27 and/or s.49 of the Act.

8          The first main ground of this application by Aurion was that there was a failure by Ms Bilos to comply with regulation 29 of the Industrial Relations Commission Regulations 1985 (as amended) (hereinafter called “the Regulations”), in that, in particular, regulation 29, which requires, to paraphrase it, prescribed particulars to be provided in a notice of appeal of allegations of errors of fact or law which are made.

9          Further, and more seriously, the case for Aurion upon this application was that there was no arguable or seriously arguable case on appeal.  It was also asserted that to allow the appeal to proceed would be to the prejudice of Aurion.

BACKGROUND

10       It is necessary to mention briefly the background to this matter.

11       The above-named appellant employee, Ms Bilos, was employed by the above-named respondent company, Aurion, as an underground geo-technician at mining operations conducted by Aurion at Mt Pleasant in the Eastern Goldfields of this State.

12       On 5 December 2002, Ms Bilos, as applicant, made application to the Commission, pursuant to s29 of the Act, claiming that Aurion as her employer had harshly, oppressively and unfairly dismissed her in that it or they had dismissed her by making her position redundant, and, one assumes, retrenching her, when there was no true redundancy.  The case at first instance was opposed by Aurion whose case was that the dismissal was fair for a number of reasons, and that, in any event, Ms Bilos had resigned.  After hearing the matter, the Commissioner at first instance made its determination to dismiss the application and did so.

13       The following facts were found by the Commissioner at first instance and do not seem to be in issue in these proceedings.  Ms Bilos was employed by Centaur Mining and Exploration, Mt Pleasant Operations, and then by the new miner at that site, Goldfields Pty Ltd.  Goldfields Pty Ltd later merged with Delta Gold to form the respondent, Aurion.  Ms Bilos commenced employment with Aurion on 8 April 2002, pursuant to a contract which she accepted (see AB 218), continuing to work as an underground geo-technician.

14       In January 2002, she advised her employer that she was pregnant.  Arrangements were made between Aurion and Ms Bilos on 24 May 2002 by a confirmatory letter (see page 227 (AB)) that she would commence maternity leave on 1 July 2002 and return to work as an underground geo-technician on 1 October 2002.

15       By the time that she returned to work, there were no underground geo-technicians employed by Aurion and her job was or had been made redundant.  Her contract of employment, according to Aurion’s parental leave policy, entitled her, if the position which she occupied prior to going on maternity leave no longer existed due to a restructuring of the work section, to have determined by the manager a position comparable in status and equal in pay to that of the employee’s former position.  Such a determination was made or purported to be made.  Of course, it was Aurion’s position that those terms did not, in fact, apply to her because she had not qualified for maternity leave by serving as an employee for 12 months, which was the qualifying period for maternity leave.  However, she was, in any event, offered a new position by letter of 29 October 2002 (see AB 228), namely that of data base technician.

16       On 5 November 2002 (see AB 230), she wrote to Aurion refusing the position because it was not comparable with her previous position because of a pay difference.  This assertion was disputed by Aurion, and, in fact, disputed in correspondence with her (see AB 231).

17       She did, however, cease her employment as a result and alleged that she had been unfairly dismissed, a proposition which was denied by Aurion, and, indeed, it was found, at first instance, that there was no dismissal but a resignation.

PRINCIPLES

18       I refer to the canvassing of a number of principles relevant to this application in Moylan v Chairman of Commissioners, City of South Perth Council (2002) 82 WAIG 2649 at 2652-2653.

19       I want to observe that this Commission is not a court of pleading and matters such as this are required to be considered in accordance with s26(1)(a) and (c) and s27(1)(l), (m) and (v) of the Act (see also s6(c) of the Act).

20       It is trite to observe that the provision of particulars cannot remedy a defect in “pleading”, nor can it make a case or a strong case where no case or a flimsy case exists.  Where there is an application for particulars it would not on the face of it have merit if no request for particulars was first made.  However, this was not an application for particulars but an application to dismiss the appeal pursuant to s27(1) and s49(5) of the Act.

21       Frequently and desirably, defective “pleadings” should be cured by the delivery of particulars, usually voluntarily and without recourse to the Commission.

22       If the failure to give full or proper particulars renders the “pleadings” defective, the application is then one properly to strike them out, although an application for particulars is often made in the same application as an alternative claim to strike the matter out (see Rubenstein v Truth and Sportsman Ltd [1960] VR 473 and H Nominees Pty Ltd v Galli (1979) 40 FLR 242).

23       This application is akin to an application for the summary determination of an action before trial, because s27(1)(a)(iv) and s49 of the Act enable any matter including an appeal to be dismissed “for any other reason”.  Such a “reason” obviously includes the reason that the appeal will not succeed in that it is not “arguable” or not “fairly arguable” (see Moylan v Chairman of Commissioners, City of South Perth Council (op cit) at pages 2652-2653, citing Gummow and Hayne JJ in Jackamarra v Krakouer [1998] 195 CLR 516 at 527-529).

ISSUES AND SUBMISSIONS

24       The first question is whether the issues arising from the “summary” determination of the appeal should be resolved against Ms Bilos.  That was the substance of Aurion’s case along with the submission that the appeal was defective and invalid because there were not any or any sufficient particulars of the grounds of appeal as prescribed by regulation 29(2) of the Regulations, and further because to permit the appeal to proceed would be to the prejudice of Aurion.

25       Let me observe that the grounds of appeal as drafted are not particulars which comply with regulation 29(2).

26       That was apparent from the grounds which do not at all give necessary particulars of the alleged errors of law or fact (see grounds (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j)) ((ie) on a fair reading, they do not or do not sufficiently specify the particulars relied on to demonstrate that the decision or parts of it are against the evidence and/or the weight of the evidence or the reasons why the decision is wrong in law).

27       Further, the grounds do not challenge all of the findings which it is necessary to challenge and that was conceded by counsel for Ms Bilos upon this application.

28       First let me say that the absence of prescribed particulars is, for the reasons and on the authorities which I have stated above, remediable and requires, having regard to s26(1)(a) of the Act, that Ms Bilos be given an opportunity to remedy the situation, but only if there is an “arguable” or “fairly arguable” case.  I would not therefore accede to any application to dismiss the matter for lack of prescribed particulars for those reasons.

29       Aurion’s case was this, inter alia.  The decision at first instance was a discretionary decision as that 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.  It was submitted that Ms Bilos was not entitled to maternity leave with Aurion, not having been employed for the qualifying period of 12 months by Aurion and the Commissioner at first instance so found and there was no appeal against that.

30       It was submitted for Aurion, too, that the discretionary finding by the Commissioner at first instance that the dismissal was not unfair was not in error because:-

(a)           Aurion granted maternity leave on an ex gratia basis.

(b)          Aurion offered Ms Bilos a position on her return to work which was equal in status, pay and responsibility to her former position.

(c)           Aurion had the ability to vary Ms Bilos’ role and responsibility, in any event.

31       For those reasons, it was submitted that, on a correct application of the principle in House v The King [1936] 55 CLR 499 and Gromark Packaging v FMWU 73 WAIG 220 (IAC) the appeal could not possibly result in the decision at first instance being overturned.

32       Next, it was submitted that the appeal could not succeed because the Commissioner at first instance had made findings based on his view of the credibility of the witnesses, whom, of course, he had seen and there was no reason to overturn those findings.  The authorities on this point are well known and include Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472, Fox v Percy (2003) 197 ALR 201 and State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 (HC).

33       For Aurion, it was submitted that Aurion would be prejudiced in being required to defend the appeal on three counts:-

(a)           That it would have to defend an appeal which had no chance of success.

(b)          That Aurion faced the prospect of the appeal causing it prejudice to proceedings involving it and Ms Bilos on the same basis in the Equal Opportunity Tribunal based on the same factual position as the proceedings at first instance in this matter and which would be considered on this appeal.

(c)           That the appeal was a sham.

34       It was also submitted that the decision of the Commissioner at first instance would be devalued in any proceedings in the Equal Opportunity Tribunal because there has been an appeal instituted against the decision of the Commissioner at first instance in the Full Bench.

35       The argument then goes on to say that Aurion may well then have to seek an adjournment of the Equal Opportunity Tribunal proceedings until these proceedings are completed. 

36       Further, it was submitted that the existing grounds of appeal do not attack the important finding made by the Commissioner at first instance in the following terms:-

“I find that the applicant did not serve the qualifying period to trigger the parental leave and it must only be assumed that the Respondent decided to apply its conditions ex gratia.”

That is so.

37       It was also submitted that the existing grounds of appeal do not attack the finding that a position offered to Ms Bilos upon her return from maternity leave, namely database technician, was not equal in responsibility and pay to her former position as underground geo-technician.  That also is so.

38       It was submitted that the appeal was a sham and our attention was drawn to some errors in the typing and other errors in the grounds of appeal.

39       For Ms Bilos it was submitted that the right of an appeal is an important one and should be preserved (see Da Cunha v 1929 Holdings Pty Ltd (1983) 63 WAIG 1514 at 1515), and that this application was not a substitute for the hearing and determination of the appeal on its merits.

40       It was also submitted that the submissions concerning the existence of other proceedings in the Equal Opportunity Tribunal are irrelevant.

41       Next, it was submitted that those findings not currently challenged in the grounds of appeal could be challenged in amended grounds of appeal and the first draft of proposed amendments to the grounds of appeal was handed up.

42       The submissions for Ms Bilos were, too, that whilst the grounds for appeal were improvable they did in fact comply with the Regulations.  Further, and significantly, it was submitted that there were a number of errors in the findings of fact.  It was further submitted, for example, that the job was made redundant and there was evidence to that effect (see pages 86-87 (AB)).

43       It was also submitted that there was a process of discussion entered into about what the new position being offered to Ms Bilos was when she returned to work.

44       The Full Bench was referred to paragraph 16 of a contract of service (see page 243 (AB)) which contract of service Mr Cameron had submitted did not apply whilst Ms Crawford submitted that it did.  It was then Ms Bilos’ contention that that term of the contract had been breached because she was not offered a comparable contract of employment if her position were made redundant. 

45       It was also submitted that Ms Bilos had not resigned but had been dismissed.  Further, it was submitted that the findings as to credibility were defective or inadequate in that there was no apparent consideration of the different issues and no assessment of credibility in relation to them (see paragraph 57 of the reasons for decision at first instance).  It was submitted that this approach was wrong in principle.

46       It was therefore submitted on behalf of Ms Bilos that, within the principle laid down in Moylan v Chairman of Commissioners, City of South Perth Council (op cit), there was a sufficient argument capable of being advanced to the Full Bench to justify the appeal proceeding.

47       Whilst it was conceded that the findings that a job of equal status had not been challenged and that the contract of employment had enabled her employment role to be varied, as the finding was not also challenged on appeal, it was submitted that they would be in any amended grounds. (See clause 1 on page 220 (AB) which was relied on).

48       It was also submitted that the fact that there were proceedings concurrent in the Equal Opportunity Tribunal was irrelevant.

CONCLUSIONS

49       On those facts, as found by the Commissioner at first instance, there arose a number of issues.  First, as Mr Cameron submitted, there is no attack in the grounds of appeal on the two findings identified in paragraphs 68, 82 and 91 of the reasons for decision.  However, as Ms Crawford submitted, that can be remedied by amended grounds of appeal.  I agree with that submission.

50       An issue also arises whether the maternity leave afforded was gratuitously or ex gratia afforded or not or whether the parties had by agreement made it a term of the contract of employment, in any event.  It is trite, too, to observe that to characterise something as gratuitous or ex gratia does not mean that it is, nor does it mean in particular that it is not something done pursuant to an obligation under a contract.

51       The Commissioner at first instance also found that there was no jurisdiction because there was no constructive dismissal, there having, in fact, been a resignation by Ms Bilos as was the case for Aurion.

52       Aurion’s position is that the maternity leave policy was not a term of Ms Bilos’ contract of employment.  However, it also, at the same time, relies on a right to direct her to change “roles” in her employment, as part of the contract of employment even if it is found in the parental leave policy.  For Ms Bilos it was submitted that even if it were a term of her contract of employment, it was not relevant to this matter.  That, it was submitted, was because what was occurring was that her position had been made redundant and therefore abolished, and she was being offered a contract of employment in a new position pursuant to the parental leave policy which, as I understand the argument for Ms Bilos, was a term of her contract of employment.  It will be clear that those questions raise an issue and that there is an arguable case on appeal.

53       Ms Bilos’ grounds of appeal already allege that there was a constructive dismissal in that she was not offered a comparable position when she returned from maternity leave.  Implicit in that is the allegation that she “was pushed” and “did not jump” as was said in The Attorney-General v WA Prison Officers’ Union (1995) 75 WAIG 3166 (IAC) by Kennedy J.  There is, of course, involved in that question a consideration of whether Ms Bilos in fact resigned and was not dismissed having particular regard to her letter of 5 November 2002 to Aurion.

54       It is very much Aurion’s case, inter alia, that there is no serious issue to be tried because if Ms Bilos were dismissed she was dismissed fairly in that Aurion granted her maternity leave on an ex gratia basis, Aurion offered her a comparable position, and Aurion had the ability to vary her role and level of responsibility, in any event.

55       A question still arises on that basis whether the contract required a comparable position to be offered to her, whether it was, and whether, if there was a failure to offer the same, that constituted an act of the employer effectively and unfairly dismissing her.  The case for Ms Bilos is arguable on that basis alone.

56       Accordingly, so the submission went, the discretion, for the reasons which were submitted for Aurion, could not be readily said to have miscarried at first instance.

57       However, an issue arises whether the dismissal, if dismissal it was, was unfair because Ms Bilos was not offered a comparable position when she was made redundant, and that might be said to be unfair.  Further, if that provision was a term of her contract and there was a breach, a question arises whether that alone constituted the dismissal unfair.

58       Further, there is the overall question about what the terms of the contract were.

59       Next, if there were a dismissal, a question arises whether it was unfair, having regard to all of the circumstances of the case, including those as I have outlined them above.  Part of the question would involve a consideration of matters not confined to, but such as what Ms Bilos’ obligations and rights under the contract were and what Aurion’s obligations and rights under the contract of employment were.

60       The next question is whether there was any breach of the contract, and the next question is whether the dismissal was lawful, and next whether it was harsh, oppressive and unfair.  In the end, if there were a dismissal, all of those matters have to be considered and the question of whether they were properly considered is, as I have expressed it, fairly arguable.

61       As Mr Cameron correctly submitted, a question of credibility arose at first instance.  There was a finding by the Commissioner at first instance, which in that respect went against Ms Bilos (see paragraphs 57, 58, 59, 60, 61, 62 and 82, 83 and 84 of the decision at first instance, page 24(AB)).

62       However, the submission for Ms Bilos was that such a finding was challengeable since insufficient reasons were given for so finding.  In other words, there was no analysis by the Commissioner of why the evidence of Ms Bilos should not be preferable to that of the other witnesses.  That point is arguable in this case upon a fair reading of the reasons expressed by the Commissioner.

63       Next, there was raised the question of concurrent proceedings on the same factual basis in the Equal Opportunity Tribunal.  It would seem from what Mr Cameron submitted that this application was made after the proceedings in this matter at first instance had been completed.

64       For Aurion it was submitted that to allow this appeal to proceed when those proceedings were a foot in the Equal Opportunity Tribunal was prejudicial to Aurion.  That was because the fact that this appeal was in existence would reduce the strength of the decision at first instance in the eyes of the Equal Opportunity Tribunal, as I understood the submission.  Further, it was submitted that the fact that this appeal was proceeding might weaken the case for Aurion in the Equal Opportunity Tribunal.  Inter alia, then, therefore, as I understood the submission, Aurion would be required to apply and argue for an adjournment of those proceedings.

65       I do not think that that question of prejudice is at all relevant.  The main question in this matter is whether there is an arguable appeal or a fairly arguable appeal within the principles laid down in Moylan v Chairman of Commissioners, City of South Perth Council (op cit) and the cases cited therein.  Second, there are principles of law relating to the desirability of concurrent proceedings taking place and whether Aurion applies to adjourn those proceedings and what the Equal Opportunity Tribunal does about such an application is a matter for the Tribunal, for Aurion and for Ms Bilos in those proceedings.  The argument is simply not relevant.

66       I am not persuaded either, for those reasons which I have expressed, that the appeal is a sham.

FINALLY

67       For those reasons, in fact, I was satisfied that there was an “arguable” or “fairly arguable” case on appeal, and I agreed with my colleagues to dismiss the application of Aurion and made orders for leave to amend the grounds of appeal and for the provision of particulars if requested by Aurion.

COMMISSIONER P E SCOTT:

68       I have had the benefit of reading the Reasons for Decision of His Honour, the President.  I agreed that there is an arguable or fairly arguable case on appeal and accordingly agreed to dismiss the application to strike out the appeal.

COMMISSIONER J L HARRISON:

69       I have had the benefit of reading the Reasons for Decision of His Honour, the President.  I agree with those reasons and have nothing to add.

THE PRESIDENT:

70       For all of those reasons, the application to set aside the appeal was dismissed.