WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES SAMANTHA UNDERDOWN

APPELLANT

-and-

DOWFORD INVESTMENTS PTY LTD

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER P E SCOTT

  COMMISSIONER S J KENNER

DATE MONDAY, 18 APRIL 2005

FILE NO. FBA 45 OF 2004

CITATION NO. 2005 WAIRC 01243

CatchWords Industrial Law (WA) – Appeal against decision of a single Commissioner – Application to adduce fresh evidence – Denial of contractual benefits – Contract of employment – Implied term – Express term - Ostensible bias – Procedural unfairness – Industrial Relations Act 1979 (as amended), s29(1)(b)(ii), s49 – Industrial Relations Commission Regulations 1985 (as amended)

Decision Appeal dismissed

Appearances

Appellant Mr A Heedes, as agent

Respondent Mr D Cronin (of Counsel), by leave, and with him Ms A Gotjamanos (of Counsel), by leave

Reasons for Decision

THE PRESIDENT AND COMMISSIONER S J KENNER:

INTRODUCTION

1         These are the joint reasons for decision of the President and Commissioner Kenner.

2         This is an appeal by the above-named appellant, Samantha Underdown, against the whole of the decision of the Commission, constituted by a single Commissioner, given on 19 October 2004 in application No 376 of 2004.  This appeal is brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  The decision appealed against is constituted by a declaration as follows:-

“that the Applicant is entitled to take two days off work in lieu of public holidays worked on 2 June 2003 and 29 September 2003; and

….that the application made is otherwise dismissed.”

GROUNDS OF APPEAL

3         That decision is now appealed against on the following grounds:-

“The decision handed down by the learned Commissioner was manifestly wrong at law and one that was not open to be made in that;

 1. The conclusions beginning at paragraph (42) were based and centered around the pivotally erroneous finding of fact that “the respondent is part of the Milne AgriGroup group of companies” and more importantly at the time of the execution of the written contract, that being the 2nd April 2001, that Milne Feeds Pty Ltd was thus effectively owned by the respondent.  This is both wrong factually and wrong at law to attempt to enforce the applicant to such.

 2. The learned Commissioner failed to give sufficient enough weight to the evidence before her that the contract that was in place was not the void written contract thus determined upon, but a specific totally verbal and implied contract executed between the applicant and the CEO.

 3. Had the written contract indeed been valid and was to be interpreted as the learned Commissioner states, that would have given the employer the effect of being able to forcibly work the applicant every day of the week without a day off except for public holidays being the only days she gets off per year. This does not create legal intentions as to formation of a contract.

 4. The applicant has a reasonable apprehension of bias held against her and in favour of counsel for the respondent.

 5. The learned Commissioner failed to allow the applicant to have her prepared opening address read out prior to or even during the hearing of the application, in order to clearly outline the applicants claim and how it would be lead and what was relied upon to substantiate such.

 6. The applicant was unable to obtain and thus accurately refer to copy of the hearing transcript in her written submissions due to not having sufficient time allowed by the Commissioner’s orders, whereas the respondent in antithesis was able to answer the applicants submissions with the provision of the transcript and therefore referred specifically to various sections verbatim of such in their final submissions to support such.

 ORDERS OR DECISION SOUGHT BY APPELLANT

 7. The decision handed down by the learned Commissioner on the 12th October 2004 in the first instance, be set aside, quashed and or expunged.

 8. Orders or an affirmative decision as to the nature sought by the appellant /applicant in her claim that was the subject of the hearing, granting her full relief as sought or in the alternative an expedient full rehearing of the matter to be recommenced from inception.

 9. Costs, with substantiating argument why this is a special circumstance application.”

FRESH OR NEW EVIDENCE

4         The appellant, on the hearing of the appeal, applied to adduce fresh evidence.  The fresh evidence consisted of a letter of resignation from her employment dated 14 August 2004 and addressed to Mr Graham Laitt, Managing Director of Dowford Investments Pty Ltd, the above-named respondent.  There was also an affidavit sworn by Ms Underdown on 4 November 2004.   In the affidavit, the substance of evidentiary matters deposed to related to the relationship between Dowford Investments Pty Ltd and Milne Feeds Pty Ltd, now known as Milne AgriGroup Pty Ltd (see paragraphs 2, 3, 4, 5, 6 and 7 of the affidavit).

5         In the affidavit, Ms Underdown also seeks to challenge some findings of the Commissioner and to complain about the decision approximately one month after it had issued (see paragraphs 8, 11, 12 and 13 of the affidavit).

6         There are also matters deposed to which are irrelevant to any ground of appeal (see paragraphs 9, 12 and 13 of the affidavit).

7         This appeal was heard and determined on 2 February 2005.  The application at first instance was filed on 23 March 2004.  The application was heard and determined on 26, 27 and 28 July 2004 and the decision and reasons are dated 19 October 2004 and 12 October 2004 respectively.

8         The evidence is fresh evidence and can only be admitted if certain conditions are complied with (see FCU v George Moss Limited 70 WAIG 3040 (FB) and see Hanssen Pty Ltd v CFMEU (2004) 84 WAIG 694 (FB)).  The evidence, insofar as it was relevant, and some of it was not, could only be admissible if it were not “available to the appellant at the time of the trial” and could not by reasonable diligence have been made available.  Further, it is only admissible if the evidence sought to be admitted is credible, although it does not have to be beyond controversy.  Further, it can only be admitted if it is almost certain that, if the evidence had been available and adduced, an opposite result would have been reached.

9         We would add that, in FCU v George Moss Limited (FB) (op cit), we put the effect of this last condition too low by saying that the evidence sought to be admitted is required to be such that it would have had an important influence on the result of the hearing at first instance, and we wish to retract what we said in that case and substitute what we have said about the almost certain opposite result being likely to be achieved.

10      In this case, the letter of resignation could have been sought to be admitted by the appellant reopening the case because the decision and the reasons therefor did not issue until about six weeks later.  There is no evidence that any such application was made.  Second, its admission could have no effect at all on the finding concerning contractual benefits claimed.  It is, whether credible or not, simply irrelevant to the question whether Ms Underdown was entitled to an order for the contractual benefits to which she alleged she was entitled, and which she alleged she was denied.

11      As to the evidence relating to the relationship between the companies involved in the matter at first instance, we see no reason why that evidence was not adduced if it were admissible or relevant, at first instance.  It is not at all clear that some of it, or perhaps all of it, is admissible, since there seems to be an element of hearsay in the evidence.  There is nothing to suggest, however, that that evidence was unavailable at first instance.  If it were wrongly excluded, as was alleged in submissions, and indeed it does not seem to have been, then that should be a ground of appeal.  It is not a matter to be cured by adducing fresh evidence.

12      In any event, it is not at all clear that the evidence, if adduced at first instance, would have achieved a different result in the face of the documents adduced on behalf of the appellant.  It is to be borne in mind that it is the appellant who produced the Australian Securities and Investments Commission (hereinafter referred to as “ASIC”) documents pertaining to the registration and other dealings by and with the companies referred to in this matter.

13      The evidence is either irrelevant, argumentative, or should be the subject of submission on appeal, and/or is not admissible fresh evidence, according to the conditions with which we have said above are required to be complied.

14      We would emphasise this aspect of fresh evidence:-

“If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice.”

 (See Orr v Holmes and Another [1948] 76 CLR 632 at 640 per Dixon J).

15      There was, for those reasons, no merit in the application to adduce fresh evidence and we agreed therefore with our colleague to dismiss the application.

BACKGROUND

16      There was documentary evidence adduced at first instance.  Ms Underdown, too, gave evidence on her own behalf, as did her brother, Mr Robert Stuart Underdown, a fellow employee of hers for about seven days, Ms Pauline Ward who was Ms Underdown’s assistant, and Ms Jo Ellis, the Payroll Manager for Milne AgriGroup Pty Ltd.  Mr Bevan Garfield Treloar was also called to give evidence, who was the Meat Division Manager for Milne Feeds Pty Ltd.  Mr Colin Aitken, the Chief Financial Officer of Milne AgriGroup Pty Ltd, also gave evidence.

17      Ms Underdown, who was the applicant at first instance, claimed that she was owed benefits to which she was entitled under her contract of employment not being a benefit under an award or order.  She therefore made application to the Commission under s29(1)(b)(ii) of the Act.  She claimed the following:-

(a)          15 days’ pay in lieu for days worked on weekends and public holidays.

(b)          Paid sick leave at the rate of $4,300.01 net per month from 9 February 2004 until she is deemed fit to return to work by her medical practitioner.  The appellant claimed that failure to pay this money was a breach of her contract of employment.  She said in her final amended Statement of Claim that she was prepared to put a ceiling on the sick leave pay to 31 August 2004.

(c)          Reinstatement of her accrued annual leave which was 50 days, taken from 9 February 2004, when her sick leave payments ceased.

(d)          The sum of $4,300.01 net “illegally” deducted from her account on 23 February 2004, contrary to clause 8 of her contract of employment.  The Commission understands that the use of the word “illegally” is in the sense of unlawfully deducted.

18      Ms Underdown commenced employment with Milne Feeds Pty Ltd in April 2001 as an assistant to Mr Treloar, then the Meat Division Manager.  Ms Underdown’s official title was the Sales Marketing Development Manager.  As she described it, she worked in that position until approximately twelve months later “when Graham Laitt took over the company and then promoted me to Business Manager”.  Her salary was increased from $36,500.00 per annum to $43,000.00 and then to $60,000.00, because she was promoted.

19      Ms Underdown had signed a written contract of employment with Milne Feeds Pty Ltd dated 2 April 2001 (exhibit 1), the terms of which we will refer to hereinafter.  That agreement was not replaced by a new agreement when Dowford Investments Pty Ltd, with Mr Laitt as Managing Director, took over in 2002 some twelve months later.  Further, the existing written agreement was not varied in writing, and whether it was replaced by or varied by an oral agreement is a different question to which we will come to later in these reasons.  Indeed, Ms Underdown’s evidence was quite clear that she asked Mr Laitt if she should have a new contract, “especially as I was then working for Dowford”, and he said, “no”.

20      Ms Underdown was still employed by Dowford Investments Pty Ltd at the time of the hearing at first instance but had been unable to work, having gone on sick leave on 28 October 2003, after being diagnosed on 9 October 2003 with Grade 3 breast cancer.  She was therefore medically unfit to work at the time of the hearing because of her illness.  She was required to undergo extensive chemotherapy and radiotherapy.  Her illness is obviously a very serious one.

21      At the time when Ms Underdown went on sick leave, she was employed as the Business Manager of Mount Barker Chicken, the trading name of the respondent.  She was also the Consumer Products Manager for Milne AgriGroup Pty Ltd, formerly Milne Feeds Pty Ltd.  The Milne AgriGroup includes Dowford Investments Pty Ltd.  The business conducted under the name “Mount Barker Chicken” is the business of the production and sale of poultry meat.

22      The breast cancer having been diagnosed on 9 October 2003, on Monday, 13 October 2003, Ms Underdown had a meeting with Mr Laitt.  After discussing various matters of business, including her good performance, Ms Underdown informed Mr Laitt that she had breast cancer and would need time off to have surgery.  She said that she would probably have to undergo chemotherapy and radiotherapy.  According to her, Mr Laitt, who was not called to give evidence by either side, told her that she should take all of the time that she needed and that “he will cover me for as long as it took”.  She said that Mr Laitt told her that he had experience of it and that she would get through it and he would look after her (see page 35 of the transcript at first instance (hereinafter referred to as “TFI”). 

23      Ms Underdown claimed that her entitlement to ongoing paid sick leave arose out of a contractual promise made to her at that meeting by Mr Laitt.  She also contended that the contractual obligation arose either as an agreement within the meaning of clause 24(b) of her contract of employment, or, alternatively, as a separate contract or collateral contract.

24      Ms Underdown had subsequent discussions with Mr Laitt on 23 and 24 October 2003.  On 23 October 2003, she admitted, Mr Laitt did not say “we will cover your wages”.  She said that that was implied.  She also reiterated in evidence that Mr Laitt never promised an indefinite extension of sick leave, but he never said that sick leave would be for a set time either (see page 137 (TFI)).

25      On 23 and 24 October 2003, according to Ms Underdown’s evidence, they discussed loose ends including offloading some of her work to other people.  She said that, during these discussions, Mr Laitt again said that she should not worry because her job would still be there and that she would be “covered”.  In fact, as at the date of hearing, she was still employed, but not working and not in receipt of sick leave pay.  Ms Underdown admitted that the written agreement which she had signed on 2 April 2001 she was satisfied with and that it accurately reflected what she and Mr Treloar had discussed.

26      Ms Underdown gave evidence that she expected to be covered by such leave until she came back to work because of what Mr Laitt told her, namely, “…I would be covered, take as long as I need…” (see page 81 (TFI) (page 139 of the appeal book (hereinafter referred to as “AB”)).  This, she said, was a verbal contract.  She agreed that Mr Laitt did not say that she was to be covered “ad infinitum” as the particulars of her claim assert.  Indeed, she said that she was not planning to be away from work for ever and ever.  She had hoped to go back in December 2003/January 2004 but her recovery was delayed, it is clear.  She agreed that some compassion was shown to her by Mr Laitt by allowing her a number of months’ sick leave when there was no obligation to allow her more than ten days in any one year.

27      Ms Underdown also admitted that she had a job to go back to, as far as she was aware, because that was what she had been told.  There was no evidence to the contrary.  Ms Underdown admitted in evidence that, having no obligation to do so, Mr Laitt agreed that she could have more than ten days’ leave (see page 89 (TFI)).  She said, however, she had not considered her legal rights when she sent her letter of 1 March 2004, a letter to which we will refer hereinafter.

28      Ms Underdown was, in fact, paid sick leave from 28 October 2003 until 6 February 2004, when the payment of sick leave was unilaterally terminated without notice by a letter written by the Commercial Director of the respondent, Mr Darryl Calligaro, to her.  She replied to that on 12 February 2004 and we will refer to that hereinafter.

29      If Ms Underdown was successful in her claim for sick leave, it was not in dispute that 50 days of accrued annual leave should be reinstated.  The respondent denied any commitment or binding agreement was ever given or entered into.

30      The claim for payment in lieu of 15 days worked on public holidays and weekends was made by Ms Underdown when she received the letter dated 6 February 2004 from Mr Calligaro, advising her that her paid sick leave was to cease, because there was a limitation of three months on it.  Mr Laitt had not told her, she said, that there was such a limitation on it.  In that letter, she was asked to advise by Friday, 13 February 2004 whether she wished to access her accrued annual leave, which is all that she would be paid.

31      In a letter dated 12 February 2004, Ms Underdown advised that she was owed a minimum additional 15 days in lieu and, in order to alleviate some of the unexpected financial pressure, she requested that she have access to those 15 days in lieu to make up her full monthly wage.  Ms Underdown complained that her sick leave was being terminated without notice because she was led to believe that sick leave was being covered until she went back to work, the words being “you’re covered” and “take as much time as you need”.  She considered, she said, that that was a verbal contract.

32      The response was that, under her contract, Ms Underdown was not entitled to additional days as claimed for working weekends.  She was told that her contract provided that the salary which she was paid was in satisfaction of and takes into account all aspects of her employment, including hours of work that she may be required to perform on weekends.  As to the sum deducted on 23 February 2004 from her account, she said that that arose out of instructions given by the respondent’s representatives to her bank to stop payment of her monthly pay.  The respondent said that, before 23 February 2004, Ms Underdown had been advised that her paid sick leave would cease and was asked to say whether she wished to “access” her accrued annual leave.  She advised that she did not wish to.  As a result, a “stop payment” advice was given to the bank which the bank acted on so that Ms Ellis said that the money was withdrawn, Ms Underdown’s monthly payment having been “reversed” by the bank in February 2004.

33      It is quite clear from Ms Ellis’ evidence that there are not two different bank accounts, or were not at the time, and there were not two different corporate entities for the purposes of financial transactions.  She said “….. it always says Milne’s because the bank …… banking system is set up as Milne AgriGroup.”  That was, of course, so even though Dowford Investments Pty Ltd’s name appeared on some of Ms Underdown’s payslips.

34      A sum for the amount of $4,300.01, however, was later paid into her bank account after she complained to the respondent.  Later, the payment of $4,300.01 was deducted from Ms Underdown’s entitlement to accrued annual leave. 

35      Ms Underdown’s contract of employment (exhibit 1) signed by her on 2 April 2001 with Milne Feeds Pty Ltd, in its material terms, is reproduced at pages 182-188 (AB).

36      Clause 21 of the contract reads as follows:-

“Hours of Work:

21) The normal business hours are from 8am to 5pm from Monday to Friday.  However, in order for the Company to meet its service obligations and for you to adequately perform your duties and responsibilities, you may need to, or be required to, work additional hours or hours outside the nominated office hours.”

37      Clause 23 of the contract reads as follows:-

“23) Public Holidays

a. You are entitled to all Western Australian public holidays as indicated in the General Conditions of Employment section of the Milne Feeds Employment Policies, Induction and Safety Rules handbook.”

38      The sick leave clause, clause 24, reads as follows:-

“24) Sick Leave

a. You will be entitled to 10 days sick leave in each year.  At any time, the Company may require you to provide a medical certificate to support the claim for sick leave.

b. Sick leave is non cumulative from year to year.  In the event of prolonged illness which requires a sick leave period in excess of 10 days, the individual circumstances of the case will be evaluated by the Managing Director and exceptions to this condition may then be applied at the discretion of the Managing Director. (our emphasis)

c. Sick leave is not to be taken for purposes other than genuine ill health.  If time is required for other reasons, you may make an application for consideration by your Supervisor.”

39      Clause 31 of the agreement reads as follows:-

“Subsequent Positions:

31) Unless otherwise agreed between Milne Feeds and you, the terms set out in this letter apply to you in any subsequent position you are appointed to with Milne Feeds.”

40      Ms Underdown did work at trade fairs at weekends as well as her normal hours, and worked on public holidays.

41      There is no clause in the agreement which gives any entitlement to receive extra days off in lieu of days worked at weekends, at trade exhibitions, or otherwise.  Ms Underdown admitted that it was not in the written agreement and she knew that it would not be included, that she should claim days off in lieu of hours or days worked at weekends or public holidays.  She said, “it was an implied term that happens within the industry, from previous experience”.  She also said in evidence that she discussed this with Mr Treloar but he did not put it in the agreement because it was not asked to be put in “…. because it was an implied agreement, verbal agreement between Mr Treloar and myself…. because it’s industry standard.” (see page 62 (TFI)).  Mr Treloar strenuously denied, both in evidence in chief and cross-examination, that there was any such agreement between them but referred to a “bit of give and take” which we understood to be somewhat informal and not an agreement.  As we have said, there was no new written contract or written amendment to the contract of 2 April 2001, as a result.

42      This unequivocal denial came in the face of other evidence of Ms Underdown, namely that they discussed the fact that, if she worked extra hours or on weekends, then she was to be able to take off personal time to do personal things.  This, she said, was not part of the written agreement because she said she was inexperienced in handling contracts.  She took Mr Treloar’s word, she said, “at good faith” (see page 63 (TFI)).  She did, however, say that she considered the written contract complete.  She said that there was no express authorisation or agreement that she would receive days off in lieu of work done at weekends.

43      It is quite clear that there was no evidence that Mr Laitt, to whom she was responsible, agreed with any such arrangement and that Ms Leanne Hinch did not and had no authority to agree.  We have already referred to Mr Treloar’s evidence which was unequivocally that he did not represent to Ms Underdown that she could take time off or days off in lieu of weekends (see page 181 (TFI)).

44      Ms Ward’s evidence seemed to be of little weight or relevance, on a fair reading, nor was Mr Aitken’s, for the most part.  Mr Robert Underdown, Ms Underdown’s brother, gave evidence directed to corroborating her evidence of hours worked.

The Corporate Links

45      It is necessary to make some observations about the companies referred to in the proceedings at first instance.  We refer to the ASIC records put in on behalf of the appellant.  Originally, Milne Feeds Pty Ltd was Ms Underdown’s employer for about one year.  There was a group of companies which, on all of the oral and written evidence, included Dowford Investments Pty Ltd and Milne AgriGroup Pty Ltd, which was called the Milne AgriGroup.  Mr Laitt and Mr Calligaro were directors of Dowford Investments Pty Ltd and Milne Feeds Pty Ltd at material times.  Milne Feeds Pty Ltd changed its name to Milne AgriGroup Pty Ltd as at 11 November 2002 (see page 40 (AB)), however, it remained the same entity.  The directors were Mr Spencer-Laitt (herein referred to as “Mr Laitt”) from 16 February 1987 and Mr Calligaro from 11 October 2002, and then Mr Maxwell Alan James Cameron from 15 January 2003.  The record shows the ultimate holding company for Milne AgriGroup Pty Ltd to be Dowford Investments Pty Ltd and also the sole shareholder (see page 45 (AB)).

46      What is clear and seems to be common ground is that Dowford Investments Pty Ltd became the sole holding company in Milne Feeds Pty Ltd, owning all of the shares, whilst Milne Feeds Pty Ltd remained in existence, changing its name to Milne AgriGroup Pty Ltd.

47      As we understand it, Milne Feeds Pty Ltd, which was Ms Underdown’s employer, remained in existence under a different name.  Her employer did not change but the management of and shareholder in it did.  On all of the evidence, Milne Feeds Pty Ltd remained Ms Underdown’s employer under its new name, Milne AgriGroup Pty Ltd, as the proprietor of Mount Barker Chicken for whom she worked.

FINDINGS OF THE COMMISSIONER AT FIRST INSTANCE

48      The Commissioner at first instance found as follows:-

(a)          That the documents from the ASIC showed that Milne Feeds Pty Ltd changed its name to Milne AgriGroup Pty Ltd on 6 December 2002 and that the sole owner of Milne AgriGroup Pty Ltd is the respondent.  The respondent was incorporated on 20 June 2000 and, some time later, became the owner of Milne AgriGroup Pty Ltd.  Therefore, the respondent’s contention was correct that the respondent was part of the Milne AgriGroup Pty Ltd group of companies.

(b)          That, pursuant to clause 31 of the written contact, it is clear that the terms of the written contract, at all material times, applied to Ms Underdown’s conditions of employment.

(c)          That the Commissioner did not accept Ms Underdown’s contention that it was an implied term of her contract of employment that she was entitled to take days off in lieu for days worked on weekends or that she was entitled to pay in lieu for days worked on weekends.

(d)          That to do so would contradict an express term of the contract, namely clause 21, which clearly provides that, whilst the normal business hours are between 8.00am and 5.00pm from Monday to Friday, Ms Underdown was required from time to time to work additional hours outside the nominated office hours in order for her to adequately perform her duties and responsibilities.

(e)          That it was conceded by the respondent that Ms Underdown had an arguable claim to be entitled to be paid for the two public holidays that she worked.

(f)           That, when clauses 21 and 23 of the contract are read together, Ms Underdown is required to work at any time after office hours except on a public holiday and that, if she works on a public holiday, she is entitled to take a day off in lieu for that public holiday.

(g)          That the entitlement to sick leave is governed by clause 24(b) of the written agreement, and that the Managing Director is able to evaluate the circumstances of the case and determine a longer period of sick pay, but it is a discretion that can be exercised at will.

(h)          That, if clause 24(b) does not apply, the terms of the conversation between Ms Underdown and Mr Laitt on 13 and 23 October 2003 could not at law be regarded as a binding contractual obligation as there is a clear absence of any consideration provided by Ms Underdown.

(i)            That Ms Underdown’s claim for sick leave fails and so does her claim for reinstatement for 50 days’ accrued annual leave.

(j)            That, for those reasons, Ms Underdown’s claim in respect of the sum which was said to be unlawfully deducted from her account also fails.  In any event, the money was not unlawfully deducted because, at that particular point in time, she had advised the respondent that she did not wish to access her accrued annual leave.

ISSUES AND CONCLUSIONS

49      We want to preface this part of these reasons for decision by noting that the “Final Amended Statement of Claim” (see pages 191-194 (AB)) at first instance pleads, inter alia, that:-

(a)          Ms Underdown and Milne Feeds Pty Ltd entered into an employment agreement by way of a written contract signed by the parties on or about 9 April 2001.

(b)          There was an implied term of the contract referred to above which entitled Ms Underdown to take days off in relation to “full weekends and public holidays worked”.

(c)          The respondent has committed breaches of clauses 9, 11 and 23 of the contract.

(d)          Paragraph 4 contains the following allegation:-

“In early October 2003, the applicant was diagnosed with an aggressive and invasive type 3 cancer that required expedited surgery.  Upon advising the Managing Director and CEO Graham Laitt of the need for surgery, Mr Laitt having extensive personal involvement and experience with the disease, extended upon the applicant an “ad infinitum” amount of sick leave time in order to recover, pursuant to section 24b of the contract.  Mr Laitt repeatedly affirmed on the 13th, 23rd & 24th October 2003, “You take all the time you need to get over this and we’ll cover your leave and wages aspect and make sure you have something to return to” unquote verbatim.  This promise was deliberately breached by way of personal discrimination in order to bear weight, by way of letter dated 6th February 2004 by Darryl Calligaro, without any prior warning or notice and causing extreme anguish, stress, financial hardship and subsequent substantive financial damage.”

50      The relief claimed, as it emerged in the end, was a claim for paid sick leave at the rate of $4300.01 per month from 9 February 2004 “until the applicant is deemed fit to return to work by her medical practitioners, as promised by Graham Laitt the Managing Director and CEO of the respondent by way of verbal contract re-emphasised on the 13th , 23rd & 24th October 2003” (see paragraph 8).

51      Ms Underdown said that she was prepared to put a limit on her sick leave claim up to 31 August 2004.

52      There was also an order sought for costs and disbursements.  That order was not granted and that part of the decision is not appealed against.

53      The onus fell on Ms Underdown, as the applicant at first instance, to establish that the benefits which she claimed were benefits to which she was entitled under the contract of service and which were denied her.

54      What Ms Underdown was required to establish was correctly set out by the Commissioner at first instance, referring to the reasons for decision of the Full Bench in Ahern v The Australian Federation of Totally and Permanently Incapacitated Ex‑Service Men and Women (WA Branch Inc) (1999) 79 WAIG 1867 at 1869 (see paragraph 37 of the reasons for decision at first instance).

The Parties

55      The Commissioner was required to determine what the contract of employment was and whether the benefits claimed were conferred by the contract of employment on Ms Underdown.

56      First, we wish to say something about the parties to the contract of service.  The documents from ASIC, which were produced to the Commissioner at first instance on behalf of the appellant/applicant, and which appear in the appeal book at page 31 et seq (AB) make it clear that a company, Milne Feeds Pty Ltd, the company which employed Ms Underdown pursuant to the written contract to which we have referred above, changed its name to Milne AgriGroup Pty Ltd on 6 December 2002.  Those documents also show clearly that, at all times material to this claim, the respondent, having been incorporated on 20 June 2000, and having become the owner of Milne AgriGroup Pty Ltd, namely Milne Feeds Pty Ltd under its new name, some time later.  However, it is arguable that Dowford Investments Pty Ltd may not have been Ms Underdown’s employer because it was a company holding shares in her employer.  However, that was not contended and it is not necessary for us to reach a judgment on it.

57      Thus, the respondent’s contention that the respondent company was, at all material times, part of the Milne AgriGroup group of companies is entirely correct.

58      By virtue of clause 31 of the contract, too, the written contract applies and applied at all times to Ms Underdown’s employment.  Therefore, her only entitlement was what that contract expressed.

59      It is quite clear that Ms Underdown, at first instance and in her case before closing submissions were made, was that, during her employment by Milne Feeds Pty Ltd, the respondent purchased Milne Feeds Pty Ltd, but that the written contract between Ms Underdown and Milne Feeds Pty Ltd continued to have force and effect.

60      However, in closing submissions, Ms Underdown contended that the terms of the written contract ceased to have effect in July 2001 and therefore did not bind Ms Underdown during 2003 and 2004.

61      Indeed, her case was that, at all material times, she was, after July 2001, employed and paid by the respondent, Dowford Investments Pty Ltd, trading as Mount Barker Chicken, and not by Milne Feeds Pty Ltd or Milne AgriGroup Pty Ltd which did not exist until November 2002.

62      However, this is the fact.  Milne Feeds Pty Ltd continued in existence as a company and to all intents and purposes continued until the time of hearing at least, in existence, because it merely changed its name on 6 December 2002 to Milne AgriGroup Pty Ltd.  Thus, as we have observed, she continued to be employed by Milne Feeds Pty Ltd under its new name of Milne AgriGroup Pty Ltd, it was arguable.  In any event, the contract, as was held by the Commissioner and not successfully challenged in the proceedings, applied to Dowford Investments Pty Ltd, as the Commissioner found at first instance.

63      The ASIC records which form part of the records at first instance (see page 32 et seq (AB)) record that Dowford Investments Pty Ltd was registered in this State on 20 June 2000 and that its directors were Mr Laitt and Mr Calligaro appointed respectively on 3 July 2001 and 11 October 2002, and that they remained directors as at 4 August 2004.

64      This application was heard on 26 July 2004.

65      No new written contract was entered into between the parties.  Ms Underdown gave evidence, however, that she asked Mr Laitt whether she should have a new contract since she was then working for Dowford Investments Pty Ltd and not Milne AgriGroup Pty Ltd.  Her evidence was, however, and it was not contradicted or challenged, that she would not need another contract.  That is, of course, in part consistent with the fact that she continued to be employed by Milne Feeds Pty Ltd or Milne AgriGroup Pty Ltd.

66      The fact of the matter is that no written contract replaced the original written contract between Milne Feeds Pty Ltd and Ms Underdown and that it still had force and effect at all times relevant to this claim.

67      In any event, it was clear that, and it was open to find that, no new written agreement was ever entered into between the parties.  Thus, it was open to find and correct to find, as the Commissioner at first instance did, that, at all material times, Ms Underdown was a party to a written contract, the one which has been identified, and that any benefits which she claimed could only be benefits conferred on her by that written contract of employment, namely that of 2 April 2001 (see pages 182-188 (AB)) insofar as her claim for sick leave was concerned.  By that written contract the only entitlement she had was, at all material times, prescribed by clause 24 of the written contract which limited sick leave to ten days in each year.  This, however, was subject to the managing director’s discretion in the event of prolonged illness requiring sick leave for a period in excess of 10 days, to make an exception to the ten day limit.

68      The next question was, therefore, whether any and what exception to that limit was permitted by the managing director who was, at the material times, Mr Laitt.

69      There were discussions which occurred between Ms Underdown and Mr Laitt on 13, 23 and 24 October 2003, and Ms Underdown admitted in evidence that, on 13 October 2003, when she discussed her illness with Mr Laitt she told him that she hoped to be back at work around Christmas/New Year 2003 and he told her that she had his full support.  He also told her, as was undenied, that she should take as long as she needed for her recovery.  She also admitted that Mr Laitt made it clear to her that she only had a ten day contractual entitlement to sick leave.  She also admitted, contrary to her evidence in chief, that she was not told by Mr Laitt that he would pay her sick leave for ever and a day, or ad infinitum, as is alleged in the particulars of claim.  She herself said that she did not intend to be off work for ever and ever.

70      She admitted that on 23 October 2003 Mr Laitt did not say that “we will cover your wages”.  This, she said, was implied from what he said to her.  On 24 October 2003, the only discussion, she admitted, was about her illness.

71      Her complaint when she received the respondent’s letter of 6 February 2004 was not that she had been promised sick leave “ad infinitum”, but that her sick leave had been terminated without notice.  Some time later, of course, she claimed that she was entitled to continuing sick leave until she was fit enough to return to work.

72      There was no evidence that there was any agreement to pay sick leave until she returned to work, or any exercise of discretion in those terms under the agreement itself.  There was clearly, on her evidence, as we have described it, no evidence that any verbal agreement which there was contained any term entitling her to be paid sick leave until she was well enough to return to work, and, in fact, that is not what occurred.  Indeed, if we might add it, her own evidence was clearly to that effect.

73      What occurred in this case was quite clear.  Mr Laitt, as Managing Director of Dowford Investments Pty Ltd, or Milne AgriGroup Pty Ltd, or both, pursuant to the written contract of employment, exercised his express power and discretion as conferred by clause 24 of the contract of employment, to grant sick leave to Ms Underdown for a period greater than the ten days sick leave to which she would normally be entitled, or any employee would be entitled, as a maximum, in any one year (see clause 24(b) of the contract).  Because she had a prolonged illness, Mr Laitt granted her much longer sick leave, something which she actually admitted in cross-examination.  That is what was correct to find and what the Commissioner at first instance was entitled to find.  We would so find.

74      In accordance with the express terms of the written contract, the discretion was exercised and exercised for a finite period, fixed within the discretion of Mr Laitt.  It might have been more helpful had the term of sick leave to which the respondent was agreeable had been communicated to Ms Underdown and had not been terminated so unceremoniously, but that does not vitiate the valid exercise of the company’s right under clause 24 of the written contract of employment.

75      There was no express or implied condition of the agreement conferring a right to sick leave on Ms Underdown for any indefinite period, or indeed at all, and certainly not for the whole period of a prolonged illness until she was fit to return to work.  Apart from anything else, there might, unfortunately, where an employee suffers a prolonged illness, come a time when the doctrine of frustration is invoked by the employer, and that of course could have occurred here.  There was clearly no verbal agreement to the contrary, on all of the evidence. 

76      Thus, the Commissioner was correct to find and we would find that the respondent, which was at all times the owner of Milne AgriGroup Pty Ltd formerly Milne Feeds Pty Ltd, was part of the Milne AgriGroup group of companies and that, at all material times, the written contract of 2 April 2001 applied to Ms Underdown’s employment.  For the reasons found by the Commissioner that her sick leave entitlement was entirely governed by clause 24 of the contract, the Commissioner was correct to find and we would so find.

77      Further, the Commissioner was correct to find and we would find that the terms of the conversations between Ms Underdown and Mr Laitt could not at law constitute a binding contractual obligation because there was a clear lack of any consideration provided.  Indeed, it was not argued otherwise on this appeal, nor was that finding challenged in the grounds of appeal.  In any event, there was no assertion at all in those conversations that she would be covered indefinitely.  The promise that she would remain an employee was kept up to the time of the hearing at first instance, at least.  The 50 days accrued annual leave she was not entitled to, the Commissioner found.  Again, that finding was not appealed against, particularly the finding that no consideration was provided.  We would so find and the Commissioner was correct to so find.

78      In any event, there seems to be no challenge to those findings in the grounds of appeal.  There was no appeal against the finding that Ms Underdown’s claim in respect of the monies said to be unlawfully deducted from her account failed.

79      For all of the reasons expressed by the Commissioner and to which we have referred above, the Commissioner did not err and we would so find.

80      Ms Underdown also alleged on this appeal that the written contract was void or legally unenforceable from July 2001 and afterwards.  Her case was also that the terms and conditions of her contract changed when she became a manager and reported to Mr Laitt.

81      The Commissioner at first instance was correct to find that no such contractual benefit existed in the written contract, or by virtue of any collateral agreement, or by virtue of any verbal variation or new verbal agreement or implied term.  The application did not so establish and grounds 1 and 2 fail.

Days Off in Lieu

82      It was not contended that there was any express provision in the written contract which entitled Ms Underdown to claim days off in lieu of time worked on weekends or trade fairs.  There was no other express agreement to that effect.  Mr Laitt did not agree to it.  Ms Leanne Hinch did not agree to it, and had no authority to do so.

83      Indeed, as the Commissioner at first instance correctly found, such a term was not impliable because to do so would be to imply a term directly contrary to clause 21, an express term of the contract.

84      For the reasons expressed by the Commissioner, we agree that that was correct (see BHP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] 180 CLR 266).

85      However, as was not appealed against, and as it was clearly open to find, reading clauses 21 and 23 together, that it was a term of the contract that if she worked on a public holiday she is entitled and was entitled to take a day off in lieu.  This, of course, applied to public holidays only.  To that extent what she claimed was a benefit under the contract.  The Commissioner at first instance ordered the payment of that amount.  It was not appealed against.

Ground 3

86      Ground 3 is difficult to understand, but nothing said in support of it could support a finding that there was any express or implied term of any contract of employment giving Ms Underdown the right to claim as a benefit days off in lieu of time worked at trade fairs at weekends.  For all of those reasons, ground 3 is not made out either.

87      We now turn to grounds 4, 5 and 6.

Ground 4 – Ostensible Bias

88      By ground 4 it was alleged that there was ostensible bias in the Commissioner at first instance in that the Commissioner favoured through its counsel the respondent as against the appellant/applicant.  In our opinion, although it was not argued, since that point was not taken at first instance, the ground might well be subject to waiver on the authority of Vakauta v Kelly [1989] 167 CLR 568.  The test to be applied is laid down a large number of cases, and most recently in this Commission in McCarthy v Sir Charles Gairdner Hospital (2004) 84 WAIG 1304 (FB) and the cases cited therein.

89      The appellant was required to establish that a reasonable observer might apprehend that the Commissioner might not or would not resolve the issues with a fair and unprejudiced mind.  The test is not subjective.  It is objective.  It certain does not depend on what the person who alleges bias may subjectively believe or understand.

90      “The test does take account of the fact that an unprejudiced and impartial mind is not necessarily one which has not thought about the issues in dispute or formed any preliminary views or inclinations of mind or conclusions about those issues” (see McCarthy v Sir Charles Gairdner Hospital (FB) (op cit) at page 1308 (paragraphs 42 and 43)).

91      In this case, the appellant was clearly required to establish that the reasonable apprehension was that the Commissioner’s mind was so prejudiced in favour of a conclusion already reached, that it would not be altered irrespective of the arguments made and of any evidence which would be made or adduced.

92      There is simply nothing in this case to demonstrate that the Commissioner was biased or that there is any reasonable apprehension of bias from any objective stand point.

93      On a fair reading of the evidence, there is nothing which shows any attitude of favour to counsel for the respondent, and therefore to the respondent.  Indeed, the Commissioner, within the bounds of her duty to both parties, was of assistance to the agent for the appellant.  The Commissioner gave him some guidance about how to ask questions.  In particular also, she gave him two opportunities to gather his thoughts, once over lunch and once over night when she could have required him to go on (see pages 55-56 (TFI).  She twice gave him opportunities to tender further documents which had not been tendered, after she explained the necessity to tender them (see pages 58-59 (TFI)).  It is not clear what documents he did not adduce but he said that some would be adduced through witnesses (see page 59 (TFI)).  However, further documents were tendered (see pages 115-116 (TFI)).  The Commissioner allowed the appellant’s agent to commit his address to writing overnight instead of requiring him to address forthwith, as she could rightly have done.  Again, that the respondent was permitted to address after him was not correct, but, in the circumstances where the agent for the appellant did not attend the next day, understandable but it could not have altered the result (see pages 192-196 (TFI)), (see Stead v State Government Insurance Commission [1986] 161 CLR 141).

94      That is as much as we can extract from a number of submissions, which, in any event, fail because they were not pleaded as part of the grounds.  Indeed, the grounds did not comply with the Industrial Relations Commission Regulations 1985 (as amended) and the notice of appeal could have been rejected for that reason.

Ground 5

95      Ground 5 demonstrates a misunderstanding of what occurred.  First, since the appellant was represented by an agent, it was for him to deliver the opening statement, and he did.  Second, any opening statement is read and spoken from the bar table and is not evidence unless the parties agree or no objection is taken to evidence being given in that statement.  That was not the case in this matter.

96      In this case, the witness, Ms Underdown, entered the witness box and proposed to read from a prepared statement in the witness box, a step which was rightly objected to.  However, correctly, the Commissioner at first instance ruled that Ms Underdown could refer to this statement to refresh her memory, if her recall failed.  As well as being correct, this ruling was helpful to a person who complained about the effect of chemotherapy and radiotherapy upon her.  At no time did Ms Underdown need to do so, and no application was made on her behalf to that end.  There was no error established by that ground (see pages 21-21(a), 22-23 (TFI)).

97      There is no merit in ground 5 and, for those reasons, it fails.

Ground 6

98      Ground 6 has no merit in it.  Whether a party to proceedings in the Commission obtains transcript or relies on notes is a matter for the party concerned.  We are aware that persons, on the ground of economic hardship, may apply for exemption from transcript fees to the Registrar.  There was no evidence that that was done.  The Full Bench was taken to nothing arising in or from that ground which might have evidenced unfairness which could be said to have been able to change the result (see Stead v State Government Insurance Commission (HC) (op cit)).  That ground is not made out either.

99      There were a number of other procedural complaints made to the Full Bench by Mr Heedes who appeared as Ms Underdown’s agent at first instance and before the Full Bench.  Nothing was included in the grounds of appeal which went to these complaints.  This includes an allegation that the respondent “controlled” witnesses.  Of course, none were called for the respondent and no application was made to call them on behalf of Ms Underdown.

100   In any event, nothing was put upon this appeal to the Full Bench which might constitute an allegation of procedural fairness or such as to be likely to change the result (see Stead v State Government Insurance Commission (HC) (op cit)).

101   Further, the appellant was given every reasonable opportunity to put her case and did so.

102   The appeal fails for all of those reasons.  We would therefore dismiss the appeal.

COMMISSIONER P E SCOTT:

103   I have had the benefit of reading the reasons of decision of His Honour the President.  I agree that none of the grounds of appeal is made out and that the appeal ought to be dismissed.

THE PRESIDENT:

104   For those reasons, the appeal is dismissed.

Order accordingly