2006 WAIRC 04110

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES SEALANES (1985) PTY LTD
APPELLANT
-AND-
JOHN FRANCIS FOLEY AND JOHN ANTHONY BUKTENICA
RESPONDENTS
CORAM FULL BENCH
THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J F GREGOR
COMMISSIONER J H SMITH

HEARD MONDAY, 13 MARCH 2006
DELIVERED TUESDAY, 4 APRIL 2006
FILE NO. FBA 22 OF 2005, FBA 23 OF 2005
CITATION NO. 2006 WAIRC 04110

CatchWords Industrial Law (WA) - Appeals against decision of the Commission - Alleged unfair dismissals - Appellate review of factual findings - Meaning of redundancy - Unfair dismissal in case of redundancy - Credibility of witness - Mitigation of loss and relevance to order under s23A of the Industrial Relations Act 1979 (as amended) - Industrial Relations Act 1979 (as amended), s23A, s23A(1), (3), (4), (5), (5)(b), (6), (7), (7)(a), (8), (9)-(12), s29, s49, s49(4) - Minimum Conditions of Employment Act 1993 (WA), s41, s43, Part 5
Decision Appeals upheld in part, orders to be varied as later published
Appearances
APPELLANT MR J BLACKBURN (OF COUNSEL), BY LEAVE

RESPONDENTS MS J BOOTS (OF COUNSEL), BY LEAVE


Reasons for Decision

THE FULL BENCH:

The Appeals
1 Before the Full Bench are two appeals which have been instituted under s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act). The appeals were heard together. The appeals are against orders made by the Commission on 18 November 2005. The orders were made following a hearing of the applications made by Mr Buktenica and Mr Foley for orders pursuant to s23A of the Act, in consequence of their alleged harsh, oppressive or unfair dismissals from employment by the appellant.
2 Separate applications were made by Mr Buktenica and Mr Foley, but the hearing of the applications occurred together as the applications had similar facts. The hearing seemed to proceed on the assumption that all of the evidence given at the hearing was admissible both to the applications of Mr Buktenica and Mr Foley.
3 The orders made on 18 November 2005 were that the Commission:-
“1 DECLARES THAT the respondent harshly, oppressively and unfairly dismissed John Anthony Buktenica and John Francis Foley on 11 November 2004.
2 ORDERS that the respondent shall reinstate Mr Buktenica and Mr Foley in its employment, to their former positions, as if their contracts of employment had not been terminated on 11 November 2004, within seven (7) days of the date of this order.
3 ORDERS that the respondent re-instates Mr Buktenica’s and Mr Foley’s accrued entitlements and that their service with the respondent be regarded as continuous for all purposes including long service leave.
4 ORDERS that the respondent shall pay Mr Buktenica and Mr Foley, within 14 days of the date of this order, an amount of money in respect of all of the remuneration lost by them by reason of the termination of their contracts of employment as if they had worked continuously in the employment of the respondent between 11 November 2004 and the date they are reinstated, less the following amounts:
a) any income earned by Mr Buktenica or Mr Foley in the period from 11 November 2004 to the date they are reinstated;
b) any payments made by the respondent to Mr Buktenica and Mr Foley in lieu of any accrued but untaken entitlements to annual leave and long service leave on or about 11 November 2004;
c) any payments made by the respondent to Mr Buktenica and Mr Foley in lieu of notice on or about 11 November 2004; and
d) any payments made by the respondent to Mr Buktenica and Mr Foley in lieu of redundancy payments on or about 11 November 2004.
5 THAT liberty to apply is reserved to the parties to this order in relation to (4) above.”

4 Appropriately, separate notices of appeal were filed against the orders made respectively about Mr Buktenica and Mr Foley. Attached to the notices of appeal were grounds of appeal. The grounds of appeal numbered 11 for the Foley appeal and 10 for the Buktenica appeal. The first 10 grounds of appeal in the Foley appeal were identical to the Buktenica appeal. The additional ground 11 in the Foley appeal relates to a factual finding made about whether Mr Foley mitigated his loss after a certain date. The identical, 10 grounds of appeal are, in some instances, very lengthy, due to the “particulars” provided, and it is unnecessary to set out the grounds of appeal in full.

Factual Background
5 The case for Mr Buktenica and Mr Foley was that, essentially, there had been no adequate reason for their dismissal from their employment with the appellant on 11 November 2004. Although, at the time of their dismissal, both were informed the dismissal was on the basis of a redundancy, they argued there was no genuine redundancy. Additionally, they both asserted that their dismissal was linked to their membership of the Shop, Distributive and Allied Employees’ Association of Western Australia (the union) and their activities as part of that union to seek an enterprise order from the Commission to cover the employment of employees of the appellant who had not signed an Australian Workplace Agreement (AWA).
6 The business operations of the appellant were not summarised with any precision in the evidence given at first instance. It seems, however, that the appellant is involved in the wholesale and retail food industry. Part of its operations include a shipping service, trucking transport, a wholesale warehouse, dry goods store, and retail shop. Within the wholesale warehouse, there is a freezer and meat section. The freezer section operates a day and night shift.
7 The witnesses who gave evidence for the respondents were Mr Buktenica, Mr Foley and Mr Luke Woodfin who is employed as freezer hand on day shift for the appellant. Witnesses who gave evidence for the appellant were Mr Lance Power who was the appellant’s human resources and quality assurance manager from 10 March 2003 to 1 July 2005; Mr Robert Thompson who had worked as a trainer/assessor with Jobs West for three years up to 3 August 2005 and who had worked at the appellant’s premises for approximately 18 months; Mr Dean O’Brien, the leading hand in the meat section, reporting to a Mr Da Silva; Mr Bruce Jeffery, the supervisor of the freezer section of the appellant and Ms Megan Osborne who has worked for the appellant as a storeperson for two and a half years in the freezer section.
8 Prior to his dismissal, Mr Buktenica worked as a full-time permanent employee for the appellant. He commenced his employment as a truck driver in December 1993 and, approximately 12 months later, was transferred to work as a freezer storeperson on the night shift. Mr Buktenica worked in this position until September/October 2003, when he was transferred to the day shift in the freezer section. He remained in this position until the termination of his employment.
9 Mr Foley was employed on a full-time basis with the appellant from 28 October 1996. For most of his employment, Mr Foley had worked in the freezer section but, approximately 12 months prior to his dismissal, he had been transferred to the meat section.
10 The conditions of employment of Mr Buktenica and Mr Foley at the time of their termination of employment was subject to the terms of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (No R32 of 1976) (the award).
11 The case of the appellant at first instance was primarily given through the evidence of Mr Power. Essentially, the appellant argued that both Mr Buktenica and Mr Foley were dismissed on the basis of a genuine redundancy and that the reason Mr Buktenica and Mr Foley were dismissed from employment had nothing to do with their union membership or activities. The position of the appellant was encapsulated in the following summary of Mr Power’s evidence, provided in paragraphs [68] – [72] of the reasons of the Commission. (These paragraphs of the Commissioner’s reasons were not subject to any criticism in the hearing of the appeal). The reference to Mr Pozzi is a reference to the former chief executive officer of the appellant who ceased working for the appellant in February 2005. Reference to Ms Paino is a reference to the appellant’s former legal counsel who was, at the time of hearing, their chief executive officer. Mr Raffaele was the appellant’s warehouse manager.
“68 Mr Power stated that in 2004 Sam Paino negotiated to buy his brother’s interest in the respondent’s operations and that as a result Sam Paino took on significant borrowings to pay out Victor Paino. Once it became clear that a significant debt would arise as a result of this transaction Mr Power stated that Mr Pozzi was asked in May 2004 to look at cost cutting measures. Mr Power stated that this was not the first instruction that was given by the respondent to reduce costs as the respondent’s Board of Directors had given Mr Pozzi an instruction in late June or early July 2003 to reduce wages and overtime by 10 percent if possible. In May 2004 Mr Power stated that Mr Pozzi prepared a list of persons whose positions could be made redundant after Mr Power and Mr Pozzi had discussions with a range of managers and supervisors. Mr Power stated that this list did not include anyone from the warehouse section as he had been working closely with Mr Raffaele for some time to reduce costs in this area by altering the hours worked by employees.
69 Mr Power stated that as a result of the May 2004 review a number of redundancies were effected. Mr Power stated that three positions in the respondent’s accounting section were made redundant and the employees concerned were advised of this and were able to find alternative employment. Mr Power stated that when Victor Paino and his two sons left they were not replaced. Mr Power stated that Victor Paino’s personal assistant was offered and transferred into an alternative position, two other administrative employees one of whom was 65 years old and the other who had 23 years of service were also made redundant and a third person left prior to their position being made redundant. Mr Power stated that the respondent’s David Jones operations were closed in late August early September 2004 and that the relevant employees were made redundant except for one casual employee who transferred to the respondent’s retail shop as a result of this closure. Mr Power stated that one maintenance employee was terminated in October 2004 and the work was outsourced. Mr Power stated that as two employees had recently left the dry stores area this section was left alone.
70 Mr Power stated that he did not review the night shift in the freezer section because there were problems staffing the night shift in the past (for example one employee was transferred to the day shift in the freezer section after an altercation with another employee) and the night shift supervisor had told him the numbers required in this section were appropriate. Mr Power stated that it was not easy to find employees to work the night shift and Mr Power stated that the night shift was a delicate area and that it was not a good idea to meddle with it. Mr Power stated that when Mr Di Carlo and Mr Joe Piccininni had wanted to come off this night shift they were transferred to other sections.
71 Mr Power stated that when he spoke to Mr Jeffrey and Mr Da Silva from the meat and freezer sections about whether or not any positions could be abolished he was advised by Mr Jeffrey that the day shift freezer section could lose one to one and a half persons. Mr Power stated that Mr Da Silva believed that the shipping dispatch numbers were correct and that the meat section could not afford to reduce employee numbers but Mr Power reminded Mr Da Silva that the meat section had coped with two full-time employees plus added assistance from time to time and Mr Power stated that he convinced Mr Da Silva that the meat section could probably operate with two full-time employees.
72 Mr Power stated that as employee numbers could be reduced in these sections he was asked by Ms Paino to draw up a matrix of criteria to assess employees.”

12 Mr Power gave evidence about the matrix which he developed and assessed with assistance from Mr Raffaele, Mr Jeffery, Mr Da Silva and Mr O’Brien. The items which were included in the matrix were included on the basis of what attributes these people would want for a new employee in their sections. They were not informed that Mr Power was developing a matrix to determine the person who should be made redundant in the meat and freezer sections. Indeed, none of the employees in these sections were informed of the intention to make an employee redundant until Mr Buktenica and Mr Foley were advised of their dismissal on 11 November 2004. The criteria which was included in the matrix was forklift ticket, forklift experience, date of employment, level of fitness, standard of skill – basic computer, transport and storage certificate III and promotion potential. Entries were made on the matrix for the three employees in the meat section and the nine full-time employees working in the day shift in the freezer section.
13 Mr Power completed the matrix on about 21 October 2004. When the matrix was completed, Mr Power said that it showed that Mr Buktenica and Mr Foley were the employees who should be dismissed. Mr Power discussed the matrix with Mr Pozzi at the end of October 2004 and it was agreed that Mr Buktenica and Mr Foley would be terminated when the consent for this course of action was obtained from Mr Sam Paino. This occurred a week later. Mr Power had said that Mr Pozzi was reluctant to dismiss Mr Buktenica and Mr Foley as they were union members and they would say they were being picked out for this reason. However, Mr Power was of the view and told Mr Pozzi that, as the respondents were identified for termination under the matrix, it would be unfair to other employees if the respondents were not terminated.
14 As stated, Mr Buktenica and Mr Foley were advised of the termination of their employment at separate meetings on 11 November 2004. The meetings were attended by Mr Power and Ms Paino. Mr Buktenica and Mr Foley were provided with letters of termination on that date. At the meetings, Ms Paino informed both Mr Buktenica and Mr Foley that their dismissals were not linked to their union membership or activities.

The Reasons of the Commissioner
15 In the reasons for decision of the Commissioner, there is a lengthy summary of the evidence of each of the witnesses. The grounds of appeal do not call into question this narration of the evidence. The grounds of appeal call into question, however, the approach of the Commission to the resolution of the applications and some of the factual findings made by the Commission.
16 Under the heading “Findings and Conclusions”, the Commissioner at paragraphs [141] – [187] set out in detail, observations on the relevant law and facts, factual findings and conclusions. The following is a summary of those which are most material. (The paragraph number at the end of each point indicates the relevant paragraph number of the reasons of the Commissioner at first instance).
(a) The Commissioner said Mr Buktenica, Mr Foley, Mr Woodfin and the appellant’s witnesses, except for Mr Power, gave detailed, considered and plausible evidence. ([141])
(b) The Commissioner had concerns about the evidence given by Mr Power and formed the view that Mr Power tailored his evidence to suit the appellant’s case. Parts of the evidence of Mr Power were unconvincing. Some of Mr Power’s evidence was inconsistent with the evidence given by Mr O’Brien and Mr Jeffery and Mr Power’s evidence about the assessments included in the matrix were doubted. The Commissioner had doubts about the veracity of the evidence given by Mr Power and treated his evidence with caution. ([142])
(c) Redundancy is itself a sufficient reason for dismissal (Amalgamated Metal Workers and Shipwrights Union of Western Australia and Other v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733) and when an employer reduces its workforce due to an excess of employees reasonably required to perform the work available this constitutes a redundancy situation (Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220). Despite the requirement to accord procedural fairness, not every denial of procedural fairness will entitle an employee to a remedy. No injustice will result if after a review of all the circumstances of the termination it can be said that the employee could be justifiably dismissed (Shire of Esperance v Mouritz (1991) 71 WAIG 891); Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ and at 466 per McHugh and Gummow JJ). ([143])
(d) The Commissioner was not convinced the appellant had labour in excess of the required number of employees, given the amount of work to be undertaken in the freezer and meat sections in the immediate period after the appellant terminated the respondents’ employment and was of the view accordingly that the respondents were not terminated due to a genuine redundancy situation. ([144])
(e) In the alternative, the Commissioner found that, even if the respondents were surplus to the appellant’s requirements in November 2004, the appellant had a range of options open to it to exercise in preference to terminating the respondents. ([144])
(f) The appellant had not demonstrated it had labour in excess of that required in the meat and freezer sections at the time it terminated the respondents as there was evidence that the appellant’s workload in the meat and freezer sections in the period November 2004 through to January 2005 was no different to the appellant’s normal increased workload at this time of the year and there was no evidence confirming that fewer employees were required by the appellant to work in these sections during this period. ([145])
(g) There was sufficient work for Mr Foley to undertake in the meat section until at least the end of January 2005. From November 2004 through to January 2005 three full-time employees were required to work in the appellant’s meat section. Also, Mr Foley could have remained employed with the appellant through December 2004 to fill in for Mr O’Brien when he was on leave and required to be replaced. ([146])
(h) If the amount of work required to be undertaken declined in the meat section after January 2005 and three full-time employees were not required on a regular basis in this section, an alternative position would have become vacant in the freezer section into which Mr Foley could have transferred within a short period. ([147])
(i) The Commissioner had doubts about the appellant’s claim that, as at November 2004, the freezer section could get by with fewer employees in this section during the busy period from November 2004 to January 2005 onwards. The freezer section had enough work for Mr Buktenica to undertake from November 2004 onwards as there was evidence that additional staff were required to work in this section during the period November 2004 through to January 2005. ([148])
(j) The Commissioner was of the view, therefore, that the appellant had not demonstrated there was insufficient work for Mr Buktenica to undertake in the freezer section as at November 2004 and that this section could get by with the equivalent of one less full-time employee at this time. Mr Buktenica was not excess to its requirements in November 2004. ([148])
(k) The appellant’s summary of employees in the freezer section in the period after Mr Buktenica’s termination (exhibit R3) demonstrates the appellant required close to 11 full-time employees after Mr Buktenica was terminated. As at May 2005, the records showed 11 employees were rostered to work in the freezer section which was the same number as at November 2004. Even though a Ms Snell commenced a period of sick leave in April 2005, she was designated as a permanent employee in this section and has since returned to work in the freezer section. The summary of employees working in the freezer section showed at the date of hearing the freezer section operated with one less employees and, as this time of year was not the appellant’s busiest period, it would therefore be logical for the appellant not to have its full complement of employees in any event at this point in time. ([149])
(l) Although the respondents were terminated at a time when other employees ceased working with the appellant, a number of these employees were not terminated due to a redundancy situation, thereby bringing into doubt Mr Power’s claim that the respondents were terminated at a time when a number of other employees were terminated due to a genuine redundancy situation. ([150])
(m) There was no dispute that the appellant incurred a significant debt as at October 2004 due to Sam Paino buying out Victor Paino’s interest in the appellant and that the appellant sought to reduce the amount of money it spent on wages in the second half of 2004. ([150])
(n) The Commissioner doubted the terminations were based on a genuine redundancy because the Commissioner was not persuaded Mr Power’s review of the appellant’s meat and freezer sections which led to the respondents’ terminations formed part of the appellant’s rationalisation of its divisions in the latter part of 2004. The Commissioner made this finding by a reference to the letters of termination given to the respondents which did not refer to any restructuring in the freezer and meat sections. ([151])
(o) In support of the conclusion that the respondents were not terminated due to a genuine redundancy situation, the Commissioner found it highly probable that the respondents were terminated due to their ongoing efforts to have a collective agreement govern their conditions of employment. The Commissioner referred to the state of play regarding the attempts to obtain an enterprise order from the Commission and the appellant’s response to this. ([152])
(p) Even if the appellant had demonstrated it was necessary to reduce employee numbers in the meat and freezer sections in November 2004, the respondents should have continued in employment as there were alternatives to the respondents being terminated that were open to the appellant to consider and should have been considered and given effect by the appellant. ([153])
(q) The respondents should have been given the opportunity to transfer to other sections if they were excess to requirements. This was the appellant’s normal practice for dealing with vacancies or increased or diminished workloads. ([154])
(r) The appellant could and should have continued to employ the respondents pending a position becoming available in the freezer section because, at the time the respondents were terminated or soon after, positions became vacant in the freezer section to which the respondents could have been transferred. Even if no positions were available for the respondents as at November 2004, the appellant was aware of the high turnover of staff in the freezer section and should have continued to employ the respondents pending a position becoming vacant. This was an option which should have been considered instead of terminating the respondents’ employment. The Commissioner referred to employees who had resigned subsequent to the termination of employment of Mr Foley and Mr Buktenica and, which would have, in her view, allowed them to have remained in employment. ([155])
(s) The respondents were treated unfairly compared with a number of the appellant’s employees whose positions were genuinely targeted for redundancy as they were not given the same opportunity to transfer nor given any advance warning of their terminations. They were also not consulted on whether they would like to become casual employees, although at the time two casual employees who worked close to full-time hours were employed in the freezer section on the day shift. ([156])
(t) In any event, the respondents were unfairly terminated because the process used by the appellant to determine who should be made redundant in the meat and freezer sections was so fundamentally flawed that it could not be relied upon to select which employees in these sections should have been terminated. ([157])
(u) The selection of the respondents was not based on objective and unbiased criteria. There was an inappropriate range of criteria used to assess which employees should be identified for termination. The range of employees considered for redundancy was too limited as there was no logical reason for excluding the freezer night shift employees and the day shift casual employees who worked on a close to full-time basis in the freezer section. Furthermore, as Mr Foley had many years of experience in the freezer section, he should have been compared with employees in this section. ([158])
(v) The forklift and computing skills items in the matrix advantaged some employees in the meat and freezer sections as they spent a greater proportion of their time undertaking these duties and would therefore automatically be given better assessments. Additionally, as the appellant did not weight some of the criteria included in the matrix to take into account each employee’s different roles to ensure that all employees were treated fairly, the assessments for those areas should be ignored. ([159])
(w) The appellant ignored the fact that some of the criteria included in the matrix were skills which were not essential to employees undertaking their work in both the meat and freezer sections and, as a result, some employees, particularly Mr Buktenica and Mr Foley, were disadvantaged. As examples, the Commissioner referred to the forklift and computer skills assessments and the undertaking of the transport and storage certificate. ([160])
(x) The range of criteria included in the appellant’s matrix was too restricted and other relevant criteria should have been assessed. Mr O’Brien had given evidence that the criteria should have included good temperament for working in cold stores and good product knowledge and Mr Power acknowledged that safety should have been included in the matrix but was not. The respondents completed their own matrix for the purpose of the hearing and this matrix included additional relevant criteria including health and safety, product knowledge, punctuality, initiative and multi-skilling. These criteria were appropriate to include in the matrix and should have been included and assessed. ([161])
(y) Some of the criteria used by Mr Power to assess employees were incapable of assessment; assessment levels on the matrix were inconsistent; some criteria were not expressly assessed and some of the assessments given were questioned, given they were different to the assessments provided by Mr O’Brien and Mr Jeffery during the hearing. The Commissioner referred to examples relating to forklift experience, fitness, commencement date, promotional potential, length of service and the transport and storage certificate. ([162])
(z) The employees were not assessed in a consistent manner, as the evidence of Mr Power was employees were assessed as being “poor”, “fair” and “good”, but other assessment levels included in the matrix were “excellent” and “inadequate”. ([163])
(aa) Many of the assessments contained in the matrix were unreliable because they did not reflect the assessments of Mr Jeffery and Mr O’Brien, as had been asserted by Mr Power. These differences were summarised by the Commissioner in a table. ([164])
(bb) It was implausible that Mr Foley was selected by the appellant as the most appropriate person for termination from the meat section in October 2004 as he had worked in this section for over a year and Mr Di Carlo had only worked in the meat section for approximately three weeks prior to the appellant deciding to choose Mr Foley for termination. A period of three weeks would be insufficient time for Mr Di Carlo to match Mr Foley’s expertise and skill level. ([165])
(cc) Mr O’Brien had not been considered for redundancy by Mr Power which brought into question why his name was on the matrix. It was also unclear who assessed Mr Jeffery and Mr O’Brien. Additionally, the matrix was flawed because the two casual employees employed in the freezer section at the time the respondents were terminated, who worked close to full-time hours, were not included in the assessment as well as the seven full-time employees. It was appropriate to include all employees who worked both day and night shifts in the freezer and meat sections so a proper analysis could be undertaken of which employees were suitable for termination in both of these sections. ([166], [167])
(dd) Garbett v Midland Brick Company Pty Ltd (2003) 83 WAIG 893 (IAC) was cited by the Commissioner as authority for the proposition that, in a redundancy situation, the employee terminated is required to demonstrate that another employee should be terminated instead of them. The Commissioner concluded, however, that the process undertaken by the appellant which resulted in the respondents being chosen for redundancy was fundamentally flawed “because of the incorporation of inappropriate selection criteria, some of which were incapable of assessment, the lack of inclusion of other relevant criteria, the lack of weighting for the criteria and because some of the assessments included in the matrix were inaccurate. Furthermore, the full range of relevant employees was also not included in the matrix as the night shift and casual employees were excluded from the matrix”. The Commissioner found the criteria included in the matrix and the assessments contained therein could not be relied upon and, in the circumstances, it was unnecessary for the respondents to demonstrate that other employees should have been terminated instead of them, using the appellant’s matrix. ([168])
(ee) If it was necessary to identify specific employees for redundancy, the matrix prepared by the respondents would constituted a reasonable set of criteria which would need weighting, along with the inclusion of employees working in the freezer night shift and the casual employees working on the day shift in the freezer section. Under such a revised matrix, it was highly unlikely the respondents would be identified for termination. Although the assessments completed by the respondents on their matrix were fair and reasonable, no finding was made on which specific employees should have been terminated instead of the respondents as this matrix should have included night shift and casual employees in the freezer section. ([169])
(ff) In all of the circumstances, the respondents were unfairly selected for termination, given the flawed assessments and criteria in the appellant’s matrix and because casuals and night shift freezer employees were not included. ([170])
(gg) The respondents were unlawfully terminated when the appellant failed to comply with the process that it was bound to follow under clause 51 of the award and the Minimum Conditions of Employment Act 1993 (the MCE Act) when effecting the respondents’ terminations. ([171])
(hh) Clause 51 of the award was deliberately ignored so that the appellant could escape the scrutiny of its actions by the union and the respondents, and the canvassing of alternatives to termination prior to effecting the respondents’ terminations. ([171])
(ii) Under clause 51 of the award, the appellant was required to hold discussions with the employees concerned and their union once it had made a decision that it no longer wished the job the respondents were doing to be done by anyone, and these discussions should have taken place as soon as practicable after the decision was made to terminate the respondents and these discussions should have covered the reasons for the proposed terminations, measures to minimise the terminations and measures to mitigate any adverse effects of the terminations on the employees concerned. The appellant was also required to provide in writing to the respondents as well as the union all relevant information about the proposed terminations, including the reasons for the proposed terminations, any process for choosing the respondents, and the period over which the terminations were likely to be carried out and, as part of these discussions, genuine alternative options such as transfer, redeployment and casual employment should have been considered and should have been made available to the respondents. ([171])
(jj) If these processes had been undertaken, alternative positions would have been found for the respondents and short term options apart from termination could have been identified for the respondents, pending a position becoming available in the freezer section, given the high rate of turnover of staff. ([171])
(kk) The respondents were treated unfairly as the appellant denied them access to retraining opportunities, as well as outplacement services which should have also been offered to the respondents, given their lengthy and committed service to the appellant and their ages. ([171])
(ll) The Commissioner referred to Part 5 of the MCE Act and s43 of that Act in particular, the contents of which were, by force of the MCE Act, implied into the contract of employment of each respondent. The Commissioner said a failure to comply with the mandatory requirements under this section is a factor to be taken into account in deciding whether a dismissal is unfair. ([172, 173])
(mm) Although the respondents were identified as early as 21 October 2004 for termination, they were not informed about the terminations until 11 November 2004, the date of their terminations. This was a substantial period of time for the appellant to adhere to the award and the MCE Act requirements and the appellant chose not to do so. The respondents were unable to access the entitlement contained in s43 of the MCE Act as they were terminated without notice and forewarning. This contributed to them being unfairly terminated. ([174], [175])
(nn) The respondents were treated unfairly as they were denied the opportunity to gain or improve the skills which the appellant believed were appropriate for its future operations. ([176])
(oo) Both respondents were unfairly terminated because the appellant failed to take into account each respondent’s particular circumstances and their good and lengthy service to the appellant when it decided to effect their terminations. The respondents’ age, alternative job prospects, and the extent of their service for the appellant should have been taken into account. ([177])
(pp) The respondents were denied procedural fairness, given the process adopted by the appellant in choosing the respondents for termination and the manner of their terminations. This contributed to the respondents being unfairly terminated. The appellant did not give the respondents any opportunity to review their assessments as the appellant withheld access to its matrix until the applications were lodged in the Commission. This was deliberately done, according to the evidence of Mr Power, so that the respondents could not contest the content of the matrix. Additionally, the respondents were terminated in a summary fashion and, as a result, had no opportunity to discuss alternatives to termination or the ways in which the impact of their terminations could be ameliorated. ([178])
(qq) The respondents were not given the opportunity to work out their notice and no reason was given for this not occurring. This also contributed to the unfair terminations of the respondents. ([179])
(rr) The respondents were terminated in perfunctory meetings which constituted callous treatment. ([179])
(ss) In all of the circumstances, the respondents were unfairly terminated as they were not afforded a fair go all round (Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385). ([180])
(tt) The respondents were seeking reinstatement and the onus is on the appellant to establish that reinstatement or re-employment is impracticable. ([181] – [183])
(uu) The Commissioner referred to her finding that the respondents did not have to demonstrate that other employees should have been terminated instead of them. The Commissioner said the respondents should be reinstated to their former positions with the appellant as reinstatement is not impracticable. The appellant was about to commence its busiest period of the year and it was therefore the Commissioner’s view that there would be work available for the respondents to undertake in their former sections if they were reinstated. Mr O’Brien and Mr Jeffery saw no impediment to the respondents’ return to work when they gave their evidence. There were no performance issues of any substance with either respondent. ([184])
(vv) The Commissioner earlier quoted from the Full Bench decision of Portilla v BHP Billiton Iron Ore Pty Ltd (2005) 85 WAIG 3441. The Commissioner said (presumably on the basis of this authority) that, as the respondents were being reinstated, they were not required to demonstrate that they had mitigated their losses. If mitigation were to be taken into account, Mr Foley was found to have fully mitigated his loss and Mr Buktenica had failed to mitigate his loss. ([185])
17 The Commissioner then referred to the orders which would be made.

Appellate Intervention, Factual Finding
18 The conclusion of the Commissioner in both applications, that the respondents were unfairly dismissed, involved an evaluation of the facts and circumstances which gave rise to the dismissals. It was a discretionary judgment. It was a judgment which was guided by the legal principles which the Commissioner set out and purported to follow as well as the factual findings made by the Commissioner. The appeals challenge some of the Commissioner’s expression and application of legal principles and findings of fact. Given the grounds of appeal, which will be referred to in detail later, to succeed in setting aside the orders made by the Commissioner for reinstatement, the appellant needs to establish that the conclusion of the Commissioner that the respondents were unfairly dismissed was tainted by the type of error described by the majority of the High Court in House v The King (1936) 55 CLR 499 at pages 504/505. This can include errors of law and errors of fact.
19 In considering challenges against the factual findings of Commissioners at first instance, the Full Bench in almost all cases conducts its appeals on the basis of the written record of the evidence which was before the Commission. This is clearly contemplated by s49(4) of the Act. In Fox v Percy (2003) 214 CLR 118, the High Court considered the nature and extent of appellate review of factual findings in the determination of such appeals. The observations made by the High Court have been recently considered and applied by the Court of Appeal of the Supreme Court of Western Australia in Skinner v Broadbent [2006] WASCA 2 and Lackovic v Insurance Commission of Western Australia [2006] WASCA 38.
20 Relevant to the present appeal, Gleeson CJ, Gummow and Kirby JJ in Fox v Percy said as follows:-
“[23] ….On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance” (Dearman v Dearman (1908) 7 CLR 549 at 561 …). On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record (Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281). These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share…
[24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies…
[25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect” (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287). In Warren v Coombes (1979) 142 CLR 531 at 551, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation” (Warren v Coombes (1979) 142 CLR 531 at 551. See also Taylor v Johnson (1983) 151 CLR 422 at 426; Jovanovic v Rossi (1985) 58 ALR 519 at 522; cf Moran v McMahon (1985) 3 NSWLR 700 at 715-716, per Priestley JA).”

21 The above considerations apply in determining the grounds of appeal which are against factual findings of the Commissioner.

Redundancy and Unfair Dismissal
22 The appeals call into question what a redundancy is, as a matter of law and fact. They also call into question what an applicant has to establish to prove an unfair dismissal in a case of dismissal on the basis of redundancy.
23 A well known and often quoted statement of what a redundancy is was provided by Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6 at 8, where His Honour said:-
“[T]he concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.”

24 In Quality Bakers of Australia v Goulding (1995) 60 IR 327, Beazley J at 332-333 said:-
“A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs: R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 44 SAIR 1202 per Bray CJ at 1205; Gromark Packaging v FMWU (1992) 46 IR 98, per Franklyn J at 105. It is not necessary for the work to have disappeared altogether. As was said in Bunnetts' case (Bunnett v Henderson's Federal Spring Works Pty Ltd) (1989) AILR 356:
“Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.””

25 At page 333, Beazley J also stated:-
“An employer might decide to make certain positions redundant with the sole intention of increasing the profitability of an already profitable business. Such a decision would relate as much to the operational requirements of the business as would a decision as to redundancies taken in the case of a business which was in a parlous financial condition or when a certain type of work was no longer undertaken by the business.”

26 Additionally, as indicated by Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308, a redundancy may occur where an employer rearranges their organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributes them among the holders of other positions, including newly created positions. His Honour said that what is “critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties to discharge”. If not, then their position has become redundant.
27 In Garbett v Midland Brick Company Pty Ltd, EM Heenan J (with whom Parker J agreed) at paragraph [74] described the termination of employment on the basis of redundancy in the following way:-
“The need to terminate a contract of employment may arise because of some change in the nature of the employer’s business, or a shift of business location, or some restructure genuinely considered by the employer to be necessary for the improvement or refinement of its business operations or for some other reason quite independent of the performance of the individual employee or employees. Terminations of employment for these reasons are often described as being because of redundancy, a term of somewhat variable meaning depending upon the context and circumstances.”

28 His Honour at paragraph [76] referred to the Bunnett case in the same way as Beazley J did in Quality Bakers.
29 In our opinion, the above observations are all relevant to an understanding of the concept of a termination of employment on the basis of a redundancy.
30 As set out earlier, the Commissioner in this instance referred to a redundancy situation being constituted in circumstances where an employer reduces its workforce due to an excess of employees reasonably required to perform the work available. In our opinion, whilst this is one instance of when a redundancy can occur, it does not exclusively or comprehensively set out all such circumstances. As stated by Beazley J in Quality Bakers and referred to earlier, it is not necessary for the work which an employee was doing to have disappeared. What is required for a redundancy is that the employer no longer wishes anybody to be engaged to fulfil the position previously occupied; meaning the functions, duties and responsibilities of that position.
31 Issues of redundancy are often involved in applications to the Commission under s29 of the Act for a remedy under s23A. It should be remembered, however, that the jurisdiction to make an order under s23A of the Act is dependent upon the Commission making a determination that “the dismissal of an employee was harsh, oppressive or unfair” (s23A(1) of the Act). This is the issue for determination by the Commission. The issue is not whether the termination of employment occurred because of a genuine redundancy. In many cases, however, an employer may seek to defend an application asserting a harsh, oppressive or unfair dismissal on the basis that the dismissal occurred because of the justifiable reason of a genuine redundancy. When such an issue is raised, and it is disputed, it will ordinarily be necessary for the Commission to resolve the issue. It is not the same issue, however, as whether there has been a harsh, oppressive or unfair dismissal.
32 In these appeals, it was argued by the appellant that, in considering an application for a remedy under s23A of the Act, in a situation where a dismissal has occurred because of a genuine redundancy, the dismissal cannot be found to be unfair unless the applicant establishes that one or more other employees were more appropriate than them for selection to be made redundant. This submission was made on the basis of observations by the Industrial Appeal Court in the decisions AMWSU and Others v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733 and Gromark Packaging v FMWU (1992) 73 WAIG 220. The appellant also submitted that, whether a dismissal has occurred because of a redundancy is a finding of fact. Further, it was submitted that, if redundancy is found by the Commission, the remaining issue is whether the selection of the employee dismissed was unfair; the onus being on the party alleging unfairness to show, by specific comparison with other employees, that their selection was unfair. This was referred to as the “comparative test”.
33 Although we agree that whether a dismissal has occurred because of redundancy involves findings of fact, we do not agree that the appellant’s argument entirely represents the present law. It is true that there are observations by members of the Industrial Appeal Court in both the ASI and Gromark Packaging decisions which support the contentions made by the appellant. However, the following needs to be remembered about these decisions. The applications in both of them were for reinstatement. Secondly, there was no doubt that a dismissal because of redundancy had occurred. Thirdly, they did not involve the same legislative scheme and jurisdiction as that presently given to the Commission under the Act. Fourthly, they do not deal with the only circumstances in which a dismissal on grounds of redundancy can be found to be unfair.
34 Furthermore, in Metals and Engineering Workers’ Union - Western Australia v Newcrest Mining Limited (1993) 73 WAIG 969, the Industrial Appeal Court indicated that the reach of the ASI and Gromark Packaging decisions was not as far as that argued for by the present appellant. It is noteworthy that the Newcrest Mining decision was delivered only a few months after the Gromark Packaging decision and that the court was constituted by two of the three justices constituting the court in the Gromark Packaging case (Franklyn and Nicholson JJ). In the Newcrest Mining decision, Rowland J (who had also sat as part of the court in the ASI case) gave the lead judgment which was agreed to by Franklyn and Nicholson JJ. On page 972, Rowland J said the following:-
“In the instant case, the appellant’s seemed to suggest that the Full Bench held that the ASI case established as a matter of law that allegations of unfair dismissal in a redundancy case could only succeed if the employee established that others should have gone before him. In the ASI case, that was critical. It may well be critical in many cases, but I can find nothing in any of the judgments that indicates that it must, as a matter of law, apply in all cases.”

35 In the same paragraph, Rowland J referred to the reasons of the Full Bench in Newcrest Mining, to the extent that unfairness in the process may well be a factor to be taken into account in deciding whether a dismissal was unfair. As Rowland J observed, the Full Bench had quoted with approval the comments of Kennedy J in Shire of Esperance v Mouritz (1991) 71 WAIG 891, in this regard. Rowland J stated that the Full Bench was not wrong in taking into account issues of unfairness of process in determining whether a dismissal is unfair. At page 973, Rowland J stated that, where there was no evidence led to indicate that there were others who should have been retrenched before the employees who complained of unfair dismissal, this was an important and relevant, if not dominant, consideration. The judgment indicates however that this is not the sole basis upon which an applicant may establish a dismissal was unfair.
36 The Newcrest decision was relied on to this effect by the Full Bench in Jason Industries Ltd v Forest Products, Furnishing and Allied Industries, Industrial Union of Workers, WA Branch [1993] 74 WAIG 32 at 37.
37 That the appellant’s argument does not represent the law is also apparent from two more recent decisions of the Industrial Appeal Court, FDR Pty Ltd v Gilmore (1998) 80 IR 411 and Garbett, which we have cited earlier. In Gilmore, the Commissioner at first instance made a finding that the position of Mr Gilmore was abolished and that there was a true redundancy. Nevertheless, it made a finding that the dismissal was harsh, oppressive or unfair. The dismissal bore this character because of circumstances including the lack of consultation with Mr Gilmore before his dismissal; he was not given any work references; he was required to leave the premises immediately and was not given any reason for that requirement; company staff were circulated as to his dismissal by a memorandum which merely stated that he no longer worked for the company from a given date without saying that his position had become redundant and the manner of treatment of Mr Gilmore was without precedent in relation to staff being made redundant. When the matter came before the Industrial Appeal Court, Anderson J, with whom Kennedy and Franklyn JJ agreed, said at page 414 that these facts justified the finding of unfair dismissal and he was not persuaded the Full Bench had erred in dismissing this aspect of the employer’s appeal. Clearly, therefore, the Industrial Appeal Court were endorsing a finding of unfair dismissal in a case of genuine redundancy where the applicant had not satisfied the so called “comparative test”.
38 Garbett was referred to by the Commissioner at first instance in these appeals as “authority confirming that in a redundancy situation the employee who is terminated due to a redundancy situation is required to demonstrate that another employee should be terminated instead of him or her”. ([168]) In our opinion, Garbett is not authority for this proposition. On the contrary, it confirms that the “comparative test” is not the only basis upon which an employee dismissed as a result of a genuine redundancy can establish that their dismissal was unfair.
39 EM Heenan J in Garbett said as follows:-
“75 … there may be genuine operational reasons rendering a particular employee redundant, which of themselves would justify an employer in terminating the employment of that individual employee, yet, because of the manner in which the termination was effected, the overall result can produce a harsh, oppressive or unfair dismissal has also long been recognised. FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore & Anor v Cecil Bros & Ors (1998) 78 WAIG 1099 IAC, as already noted, is one example which recognises such a situation, notwithstanding that the case involved a bona fide redundancy, and also Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366 (IRC of Aust).
…
77 Other examples of harsh, unjust and unreasonable or oppressive dismissals, notwithstanding a genuine redundancy, have been found where the employee is provided with no meaningful information about the reasons for the termination and no discussions are held with him or her with regard to the termination - Gibbs v City of Altona (1992) 37 FCR 216; where there had been no exploration of possible alternatives with the applicant before the ultimate step of termination in order to remove the need for dismissal - Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 473; where there is a failure to apply fair and objective selection criteria in determining which employee is to be made redundant - Budget Couriers Equity Management v Beshara (1993) 5 VIR 173; where there has been no proper investigation of the facts or consultation with the employee about those facts and their consequences - Byrne & Frew v Australian Airlines Ltd (1994) 47 FCR 300 per Beaumont and Heerey JJ at 63 and Budget Couriers Equity Management v Beshara (supra); and where there has been a failure to provide adequate notice - Budget Couriers Equity Management v Beshara (supra). In the category of cases where it is alleged the harsh, oppressive or unfair feature of the termination, notwithstanding a redundancy, is due to the employer’s failure to apply fair and objective selection criteria in determining which employee is to be made redundant, the onus will be upon the employee to show that the selection criteria adopted were unfair: Quality Bakers of Australia Ltd v Goulding; Wickham v Quality Bakers of Australia Ltd (1995) 60 IR 327 per Beazley J at 337 and Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (supra).”

40 In Garbett, the Industrial Appeal Court held that a termination of employment on the basis of redundancy could be unfair where the termination had occurred in breach of s41 of the MCE Act. As indicated in paragraph [100] in the reasons of EM Heenan J in Garbett, reinstatement may not always be practicable in a situation where there has been an unfair dismissal because of redundancy. This is a different question though to whether the dismissal was unfair. In a situation where reinstatement is impracticable, it will be necessary to consider whether the applicant can establish an entitlement to compensation under s23A of the Act.

Grounds 1 and 4
41 Ground 1 contended the Commissioner erred in fact in finding that the respondents’ employment was not terminated due to a genuine redundancy situation. Ground 4 asserted the Commissioner erred in finding that it was “highly probable” that the respondents’ employment was terminated because of their union activities.
42 As argued, Ground 1 included the contention that, not only did the Commissioner err in fact in finding that the respondents’ employment was not terminated due to a genuine redundancy situation, but also that the Commissioner erred in not applying the correct test as to what is a redundancy. It was submitted that the test applied by the Commissioner was too narrow in that she considered only whether there was sufficient work available for the dismissed employees to have done, subsequent to their dismissal. We accept this argument of the appellant. We do so, having regard to findings (d), (f), (g) and (j) made by the Commissioner, which we have referred to earlier in paragraph [16]. It can be seen from these findings that the focus of the Commissioner’s attention was whether the workload within the meat and freezer sections had diminished and whether there was work which Mr Buktenica and Mr Foley could have done within the sections if they had remained in employment.
43 In our respectful opinion, this is not an appropriate test of whether there was a redundancy in these applications. That correct question involved considering whether there was a restructure, such that the position of the employees no longer remained. The appellant argued at first instance that this had occurred because there had been a decision taken by management to reduce the number of full-time employees by one in both the meat and day freezer sections. The respondents’ duties had been taken up by existing full-time and casual employees. The appellant’s position was that this had occurred as a genuine cost cutting measure due to the financial difficulties of the appellant. There seemed to be no dispute at first instance as to the appellant’s financial difficulties and therefore the desire to reduce costs. Indeed, finding (m) made by the Commissioner as referred to earlier in paragraph [16] was consistent with this.
44 With respect to the meat section, there was undisputed evidence that it operated with two full-time employees after Mr Foley’s termination in November 2004 to and including the hearing dates. Mr O’Brien, whom the Commissioner accepted as a witness of truth, gave evidence that the meat section had operated satisfactorily with two full-time employees for the period from February 2002 to September 2004, excluding two periods of two and three weeks respectively. Mr O’Brien said that, when Mr Di Carlo joined him and Mr Foley in the meat section in September 2004, there were then three employees in the section. His view, however, was that a third person was not necessary. He said it was “a two man job” (T268). Mr O’Brien also said that, since Mr Foley had left, there had been just he and Mr Di Carlo in the meat section and that they had “managed comfortably” (T268). Mr O’Brien said that, when work in the meat section got busy, “you just lift your work rate” (T283). He also said that occasionally someone from the shipping section had come in to the meat section to give the two full-time employees there a hand (T283-284). Mr O’Brien said that his hours of work and work rate had not changed significantly since Mr Foley’s departure (T285).
45 In our opinion, the evidence of Mr O’Brien confirmed that there was a genuine redundancy in the meat section. Prior to November 2004, there were three full-time employees. After Mr Foley’s dismissal, there were two full-time employees who worked in that section supplemented, on occasions, by additional staff, including (from the evidence of Mr Power) casual employees.
46 The findings made by the Commissioner in paragraph [146] of her reasons were coloured by the application of an incorrect test of whether there was “sufficient work for Mr Foley to” do in the meat section. In this paragraph, the Commissioner made the finding “that [t]he workload in this section was sufficient for three full-time employees as Mr Power gave evidence that the meat section required at least two full-time employees as well as additional employees who were transferred into this section from the shipping section to assist as necessary, and he stated that casual employees worked additional hours to assist with increased workloads…” With respect, this evidence did not establish that three full-time employees were required. It simply established that three workers were required on some occasions within the meat section. The same may be said of Mr Woodfin’s evidence which the Commissioner referred to; to the effect that three employees were required to work in the meat section during busy periods.
47 Accordingly, in our opinion, the Commissioner erred in law and fact in deciding that there was not a genuine redundancy with respect to Mr Foley’s position in the meat section.
48 With respect to the freezer section and Mr Buktenica’s position, the reasons of the Commissioner indicate again that she applied an incorrect test. The redundancy was not shown to be non-genuine by evidence that existing or casual employees worked longer hours during busy periods after the termination of Mr Buktenica’s employment. Contrary to the findings of the Commissioner referred to at (k) above, in our opinion the evidence did establish that there was a reduction of full-time employees in the day freezer section following Mr Buktenica’s dismissal.
49 Indeed, prior to the dismissal, Mr Jeffery said that he was asked by Mr Power how the freezer section would cope if it had to lose one or two staff members and that he had replied that they could get by with one to one and a half less employees (T290). Mr Jeffery said in his evidence that, before Mr Buktenica’s dismissal, there were nine full-time employees and two casuals in the day freezer section. He said that, after Mr Buktenica left, he was not replaced (T289). He also said that, because of another resignation, the numbers of full-time employees had reduced by two but that there had been an additional casual employee engaged (T290).
50 Exhibit R3 was tendered by the appellant at the hearing to indicate the manning levels in the freezer and meat sections on 1 November 2004, May 2005 and 8 June 2005. With respect to the day freezer section, the exhibit showed there were nine full-time and two casual employees as at 1 November 2004. This included Mr Buktenica. A Mr Luison was so employed on 1 November 2004 but resigned on 8 December 2004 and was not replaced. A Mr Muncey resigned on 11 April 2005. On 4 April 2005, a Ms Snell became a full-time permanent employee in the freezer section. However, she went on sick leave following an aneurism on 7 April 2005. The document showed that there were eight full-time and two casual employees in the freezer section in May 2005 and seven full-time and two casual employees in that section on 8 June 2005. These numbers did not include Ms Snell. In our opinion, the Commissioner was in error at paragraph [149] of her reasons (finding (k)) in saying that, as at May 2005, eleven employees were rostered to work in the freezer section. To get to eleven employees, the Commissioner must have included Ms Snell. Due to her illness and absence from work at this time, we do not think that Ms Snell could be characterised as being someone “rostered to work in the freezer section”, even though she remained, on paper, an employee attached to the freezer section. In our opinion, exhibit R3 did not provide evidence other than that Mr Buktenica was dismissed due to a genuine redundancy.
51 Mr Woodfin gave evidence that, before Mr Buktenica left, there were nine full-time employees and two casual employees working in the freezer on day shift. At the date of his evidence on 8 June 2005, he said that there were seven full-time employees and two casual employees working in the freezer section on day shift. This corroborated the appellant’s position as contained in exhibit R3 (see T134, 138, 163, 164).
52 The Commissioner’s reasons also referred to the letters received by Mr Buktenica and Mr Foley when they were terminated. The Commissioner attached weight to these letters not referring to any restructuring in the meat and freezer sections, in support of her finding that there was not a genuine redundancy. In our opinion, the terms of the letters did not outweigh the evidence which established that genuine redundancies had occurred.
53 Ground 4 attacks the finding referred to as (o) above that it was highly probable that the respondents were terminated due to their ongoing efforts to have a collective agreement govern their conditions of employment. The reasons given by the Commissioner to support this finding were as follows (at [152]):-
“Both applicants gave evidence that the respondent’s Chief Executive Officer Ms Paino was unhappy that not all of the respondent’s workforce were covered by AWAs and that in the period immediately prior to the applicants’ terminations several meetings were held with the applicants and other employees to have those employees who had not signed AWAs reconsider their positions. It also appears that these meetings were held within the context of an apparent undertaking given by the respondent to its employees covered by AWAs that they would be paid any additional wages granted to employees covered by the enterprise order (see evidence of Mr O’Brien transcript page 282). If no employee was covered by the enterprise order then this commitment would not have to be fulfilled, thus saving the respondent money. It is also my view that by terminating the applicants, who were effectively the leaders of the group of employees who had chosen not to sign an AWA, the respondent was in a better position to encourage its remaining non-AWA employees to become covered by an AWA. Mr Power also gave evidence that Ms Paino was ‘drained’ by the issue of the enterprise order in October 2004 which was around the time that the respondent constructed the matrix which led to the applicants’ terminations (see paragraph 88 of this decision).”

54 In our respectful opinion, the facts referred to did not sustain the conclusion that the respondents’ employment was terminated due to their efforts in having a collective agreement govern their conditions of employment. In our opinion, the finding made by the Commissioner was somewhat speculative, especially given the contents of the evidence of Mr Power and the lack of any direct evidence of union activity being a reason for the termination of the respondents’ employment.
55 The Commissioner was concerned about the evidence given by Mr Power as referred to in finding (b) above. She did not, however, reject all of the evidence given by Mr Power. Mr Power’s evidence was that a decision was made to reduce by one the number of full-time employees in each of the meat and day freezer sections. He then constructed a matrix to assist in determining which employees should be made redundant. After completing the matrix, with input from supervisory staff, he discussed the same with Ms Paino and Mr Pozzi. The outcome of the matrix was that Mr Buktenica and Mr Foley would be the employees selected for redundancy. When Mr Power discussed this with Mr Pozzi, Mr Pozzi expressed concern as to whether it would appear that they had been chosen for redundancy because of their union activities. Mr Power responded that it would not be fair to other employees to not dismiss Mr Buktenica and Mr Foley simply because of this concern. This was then accepted by Mr Pozzi. At the meetings when Mr Buktenica and Mr Foley were informed of their dismissal, Ms Paino told each of them that it was not related to their union activities.
56 If finding (o) of the Commissioner was correct, this would involve:-
(a) Mr Power having given false evidence that Mr Buktenica and Mr Foley were not selected for redundancy because of their union activities.
(b) The matrix, purportedly constructed to determine which employees should be made redundant, was a sham because the employees were selected for a reason not recorded on the matrix; that of union activity.
(c) Ms Paino lied to both Mr Buktenica and Mr Foley when informing them that they were not dismissed because of their union activities.
57 The Commissioner did not expressly make any of these findings. It may be that, in making the finding she did as reflected in (o) above, the Commissioner did not fully appreciate the implications of making such a finding in the circumstances of the case.
58 In our opinion, however, the evidence simply did not sustain the finding which was made by the Commissioner.
59 We would therefore uphold grounds of appeal 1 and 4. This does not of itself lead to the appeals being allowed. This is because the decision of the Commissioner was dependent upon findings alternate and additional to those which have been challenged in grounds of appeal 1 and 4. The outcome of the appeals is therefore dependent upon the other grounds of appeal and the findings and reasoning of the Commissioner leading to the conclusion that the respondents were unfairly dismissed.

Ground 2
60 This ground asserted that the Commissioner erred in fact in finding that, had each respondent’s employment not been terminated on 11 November 2004, an alternative position would have become available, when the evidence demonstrated a continual decline in the appellant’s numbers.
61 The ground was argued together with ground 9 which related to the Commissioner’s findings about the consequences of the failure to comply with the procedures in the award and the MCE Act. In our opinion, the latter ground raises separate considerations and will be considered later.
62 The findings which ground 2 calls into question are those referred to as findings (h) and (r) above. In both findings, the Commissioner held that alternative positions would have become vacant in the freezer section for Mr Buktenica and Mr Foley to be employed within a short time after their dismissal. Specifically in paragraph [155], the Commissioner explained that Mr Buktenica and Mr Foley could have replaced a number of employees who resigned or left the freezer section day shift including Mr Luison (8 December 2004), Mr Muncey (11 April 2005), Mr Tucker and Mr Brabin (24 March 2005), or Mr Torre of the night shift (1 November 2004). The Commissioner said that all of these employees were replaced and referred to exhibit R3. The Commissioner said that the appellant was also aware that Mr O’Brien would be on leave in December 2004 and would need replacing and therefore Mr Foley could have continued to be employed in the meat section at least until Mr O’Brien returned from leave.
63 One difficulty with a number of these possibilities referred to by the Commissioner is that they were not known about or did not occur until after the date of dismissal of Mr Buktenica and Mr Foley, although the Commissioner did refer to the fact that there was known to be a high turnover of staff in the freezer section. Although this seems to be correct, it is difficult to make a finding of unfair dismissal because an employer has decided not to dismiss a redundant employee, in the hope that another employee will voluntarily leave their business in the near future so as to make the redundancy unnecessary.
64 There are also problems with the Commissioner’s findings that Mr Buktenica and Mr Foley could have been kept on until one of the positions which was identified in paragraph [155] of her reasons became vacant. This was because:-
(a) When Mr Luison left from a position in the day freezer on 8 December 2004, he was replaced by an existing employee from night shift (T289).
(b) Mr Tucker did not resign but was transferred to night shift (T289).
(c) When Mr Muncey left on 11 April 2005, this was five months after the dismissals of Mr Buktenica and Mr Foley and also Mr Muncey was not replaced (T289, exhibit R3).
(d) Mr Torre resigned from night shift on 1 November 2004 (before the retrenchment of Mr Buktenica and Mr Foley) but was not replaced until 21 March 2005 (exhibit R3). This was when a Mr Cardoso commenced employment on 21 March 2005 (exhibit R3).
(e) Mr Brabin resigned on 24 March 2005 which was four and a half months after the dismissals of Mr Buktenica and Mr Foley. Additionally, Mr Brabin, as well as Mr Tucker, had been casual employees. The positions they left were not full-time positions of the same type as those enjoyed by Mr Buktenica and Mr Foley prior to their dismissals.
65 Therefore, the evidence was that the first position which would have become available to Mr Buktenica or Mr Foley which was not filled internally was the night shift position taken up by Mr Cardoso on 21 March 2005.
66 The reference to Mr O’Brien’s leave by the Commissioner in paragraph [155] could have only provided short term relief from dismissal for either Mr Foley or Mr Buktenica until he returned from leave. Of itself, it does not suggest an alternative to the dismissal of either Mr Foley or Mr Buktenica which would make their dismissal unfair. Mr O’Brien’s position whilst on leave was filled internally by Ms Osborne who returned to the freezer section after Mr O’Brien came back from leave.
67 In our opinion, this ground of appeal should also be upheld. However, the consequences of this are the same as those with respect to grounds 1 and 4 referred to earlier.

Ground 3
68 This ground argues as an alternative ground that the Commissioner had regard to an irrelevant consideration in finding that, had the respondents’ employment not been terminated on 11 November 2004, an alternative position would have become available in December 2004 or March or April 2005.
69 This ground seems to refer to the same factual findings as those referred to with respect to ground 2. We do not think that the ground involves any separate consideration to ground 2. As it is phrased, we would not uphold this ground of appeal. This is because we do not think it is an irrelevant consideration for the Commission to consider whether there were alternatives open to an employer other than terminating the employment of an employee whose position was to be made redundant. It is legitimate to consider whether other positions were or were likely to become available. The difficulty with the Commissioner’s findings in this instance is that the facts did not support the conclusions drawn by the Commissioner.

Ground 5
70 This ground contends the Commissioner erred in finding that Mr Power was not credible. In our opinion, this ground to some extent misstates the findings made by the Commissioner about Mr Power’s evidence. The Commissioner did not state that Mr Power was not a credible witness. The Commissioner said, in effect, that she thought that all of the respondents’ witnesses except Mr Power had given detailed, considered and plausible evidence. At paragraph [142], the Commissioner said she had concerns about the evidence given by Mr Power as he tailored his evidence to suit the appellant’s case. The Commissioner said she found parts of Mr Power’s evidence to be unconvincing. The Commissioner said that Mr Power’s evidence explaining why he thought the award did not apply to the present redundancies lacked credibility. The Commissioner also said that Mr Power was evasive and unconvincing when he explained how he assessed the length of service of each employee on the appellant’s matrix and when he attempted to justify how he assessed workplace safety. The Commissioner said that some of Mr Power’s evidence was inconsistent with the evidence given by Mr O’Brien and Mr Jeffery and doubted Mr Power’s evidence about the assessments included in the matrix. As a result of this, the Commissioner said that she treated his evidence with caution.
71 In our opinion, this fell short of a blanket finding that Mr Power lacked credibility, which is the assertion made in this ground of appeal. In our opinion, the findings made by the Commissioner about Mr Power’s evidence in paragraph [142] of her reasons were open to her. The appellant questioned the Commissioner’s description of Mr Power as being an “experienced human resources practitioner”, in this paragraph when discussing his evidence about the applicability of the award to the redundancies. Mr Power gave evidence that he had been employed as the human resource and quality assurance manager for the appellant since 10 March 2003. This means that he had been engaged in this position for about twenty months prior to the dismissals of Mr Buktenica and Mr Foley. Given this, we do not think that the description given to Mr Power was inappropriate. Additionally, Mr Power gave evidence that he was aware of the respondents’ employment being covered by the award and the Commissioner was entitled to form the view that Mr Power’s explanation as to why he considered the redundancies were not covered by the provisions of the award to be unconvincing.
72 In referring to part of Mr Power’s evidence as being “evasive and unconvincing”, it is apparent that the findings made by the Commissioner were, in part, based upon her assessment of how he gave his evidence. Whilst a factual finding based in part upon such a consideration is not immune from appellate review (see Skinner v Broadbent at [34]), in this case we do not think there is any sound basis for overturning the findings made about Mr Power’s evidence.
73 In our opinion, this ground of appeal has not been substantiated.

Ground 6
74 This ground pleads that the Commissioner erred in law in holding that the respondents were not required to show that their selection for dismissal was unfair because another employee should have been selected instead.
75 This ground relates to finding (dd) as set out above.
76 Earlier in these reasons, we have set out the basis upon which the Commission may find a dismissal from employment to be unfair, notwithstanding there is a situation of genuine redundancy. This ground of appeal proceeds on the premise that, in a situation of genuine redundancy, a dismissal cannot be shown to be unfair unless the applicant can establish another employee should have been selected for dismissal instead of them. As we have set out earlier, this view of the law is incorrect. Accordingly, the ground of appeal has not been established.

Ground 7
77 This grounds pleads the Commissioner erred in failing to find the respondents had not discharged their burden of showing their selection for dismissal was unfair because another employee should have been selected instead.
78 This ground must fail for similar reasons to those set out for ground 6. The ground is premised upon the assertion that the applications before the Commission, given a case of genuine redundancy, had to fail unless the applicants could establish another employee should have been selected for dismissal instead of them. As stated, the premise is not correct as a matter of law. The ground is not established.

Ground 8
79 This ground pleads the Commissioner had regard to an irrelevant consideration in finding that the process adopted by the appellant in determining who was to be made redundant was flawed.
80 To some extent, this ground is also dependant upon the acceptance by the Full Bench of the appellant’s “comparative test” argument, which has been referred to earlier. As stated, with respect to ground 6, this contention of the appellant is not correct. Additionally, it was not irrelevant for the Commissioner to have regard to the process adopted by the appellant in determining who was to be made redundant, in considering whether the dismissal of the respondents was unfair. As stated by EM Heenan J in Garbett at paragraph [77] and quoted earlier, there can be unfair dismissal in a case of redundancy where the dismissed employee establishes, “there is a failure to apply fair and objective selection criteria in determining which employee is to be made redundant”. This ground of appeal has not been established.

Ground 9
81 This ground pleads that the Commissioner erred in finding that, had the appellant complied with the procedures in the award and the MCE Act or taken other steps, alternative positions would have been found. The ground relates to finding (jj) referred to above.
82 The relevant clause of the award, clause 51, is referred to above in the context of the observations made by the Commissioner which we have noted as (ii). Clause 51 of the award was clearly not complied with by the appellant. The clause provided an obligation to give notice of the pending redundancies and discussions aimed at minimising the prospect of or potential impact of the redundancies on those whose employment could or was going to be terminated. The award provision has similar aims and functions to s41 of the MCE Act. The requirements of this section were also not complied with by the appellant, as noted by the Commissioner (see (gg) above).
83 Whilst the breach of the award and the MCE Act were both matters which the Commissioner was entitled to take into account in considering whether the dismissals were unfair, we do not think it was open to the Commissioner to make the finding that, had there been compliance with these obligations, then “alternative positions would have been found”. Our reasons for coming to this conclusion are similar to those expressed above with respect to ground 2. If discussions were held prior to the dismissals, however, we do think it is possible that alternatives to this action could have been found, at least in the short term. It is possible that one of the respondents could have remained in employment whilst Mr O’Brien was on leave, as referred to earlier. If the relevant discussions had been held, it is also possible that the issue of whether either of the respondents would like to move to casual employment could have been discussed with them. Another possibility was that they could have taken any leave which was owed to them to see whether, during this period of leave, any other permanent employee resigned from their employment, thus creating an opening for either of the respondents. The known high rate of turnover of staff in the freezer section, as referred to by the Commissioner, made this a realistic possibility.
84 We also think that the facts did not establish, as a matter of inference, that the appellant deliberately did not comply with clause 51 of the award so that the appellant could escape the scrutiny of its actions by the union (finding (hh) above). Given the involvement of Mr Buktenica and Mr Foley with the union, it is most unlikely that the appellant would consider its actions, in making them redundant, would not be brought to the attention of the union.
85 To the extent referred to above, this ground of appeal should be upheld in our opinion. The consequences of this are dealt with below.

Disposition of Appeals
86 We have now considered each of the grounds which attack the conclusion of the Commissioner that both respondents were unfairly dismissed by the appellant. In general, we have found that the Commissioner erred in deciding the respondents were not dismissed on the basis of a genuine redundancy, that if they had remained in employment there were positions available for them and that if the award and the MCE Act had been complied with, then alternative positions for both respondents would have been found. As can be seen from the review of the Commissioner’s reasons set out at length earlier, however, these were not the only bases on which the Commissioner found each of the respondents to be unfairly dismissed. There were additional or alternative findings leading to this conclusion.
87 These are findings (s), (t), (u), (v), (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ff), (kk), (nn), (oo), (pp), (qq) and (rr) referred to above. These findings are not swept away by the grounds of appeal which have been allowed. They are not challenged in the grounds of appeal. They remain in support of the conclusion reached by the Commissioner that the dismissals were unfair and the orders which were made.
88 The appellant’s written submissions contained the following with respect to the relief which was sought:-
“174 The appellant submits that the appropriate relief in each case is for the appeal to be upheld, the order issued on 18 November 2004 be quashed and the application be dismissed.
175 That is because each of the respondents failed to discharge their burden of proving that another employee should have been selected for redundancy in their place.”

89 The latter submission was based upon the appellant’s contention that the Full Bench accept its “comparative test” argument. Indeed, that argument was a lynchpin of how the appeal grounds were drafted and the appeal argued. It is a lynchpin which we have not however accepted. Accordingly, the appeals fail, insofar as they seek to disturb Orders 1 – 3 made by the Commission. We also note that no appeal ground raised, in the event the findings that the dismissals were unfair could not be disturbed, that the reinstatement of the respondents’ employment should have been found to be impracticable.

Ground 10 and Ground 11 (Foley Appeal)
90 Both of these grounds called into question Order 4 made by the Commission. They both concern issues of mitigation of loss. Ground 10 asserts that the Commissioner erred in law in holding the respondents were not required to mitigate their loss and in failing to take this into account in making the order. Ground 11, in the Foley appeal, is that the Commissioner erred in fact in holding that the respondent had mitigated his loss after 11 May 2005.
91 Ground 11 may be dealt with shortly, in our opinion. The Commissioner found that Mr Foley was not fit enough to seek out alternative employment immediately after he was terminated as he was stressed by his termination. The Commissioner found that, in January 2005, Mr Foley mitigated his loss and he found alternative employment. The Commissioner said that this “lasted until around the first hearing date”. The alternative employment which Mr Foley obtained was casual boning work in Canning Vale. He was engaged in this employment from 23 January 2005 until 12 May 2005. He did not seek additional employment from 12 May 2005 until the first date of the hearing, when Mr Foley gave his evidence, on 7 June 2005. In our opinion, in these circumstances, it was open for the Commissioner to find that Mr Foley had mitigated his loss. There was only a few weeks between the date when he ceased the casual employment until the first date of the hearing in which Mr Foley was seeking reinstatement. In our opinion, it was open to the Commissioner to find that it was not unreasonable for Mr Foley to not have sought alternative employment during this relatively short period. We would therefore not uphold Ground 11 of the Foley appeal.
92 This has the effect that Ground 10 only remains live with respect to the Buktenica appeal. This is because of the Commissioner’s finding that Mr Buktenica had not mitigated his loss. Yet, on the basis of the Portilla decision, the Commissioner said that this did not have any impact upon the orders which could be made under s23A(5)(b) of the Act. The appellant contends that the Commissioner erred in following Portilla, as Portilla was incorrectly decided.
93 The same issue was raised in BHP Billiton Iron Ore Pty Ltd v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (2006) WAIRC 03908. In that decision, the Full Bench found it unnecessary to consider the correctness of Portilla. At paragraphs [86] – [89] of the reasons of Ritter AP in the BHP Billiton case, His Honour considered the circumstances in which it would be appropriate for the Full Bench to consider the correctness of one of its earlier decisions. His Honour referred, for example, to the view taken, in joint reasons, by five Justices of the Court of Appeal of the Supreme Court of Western Australia in Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159 at [24] – [26]. In our view, although caution should be exercised in reviewing the correctness of an earlier decision of the Full Bench, it is now appropriate to conduct that review of Portilla in this case. The factors referred to by the Court of Appeal in Pilcher, in our opinion, favour doing so.
94 The relevant paragraphs of Portilla are contained in the joint judgment of Sharkey P and Kenner C at [206] – [207]. Beech CC wrote separate reasons in Portilla, although there is nothing in those reasons to suggest any divergence of view. The paragraphs provided:-
“206 In our opinion, s23A(5)(a) and (b) orders are designed, unequivocally, to put an employee back in the position in which she or he would have been, had she or he not been unfairly dismissed, both by actual reinstatement or re-employment and/or by restoring the remuneration lost. Such an order is very different from an order to pay compensation for loss caused by an unfair dismissal. There is no requirement to mitigate loss where an order is made to the employer to pay to an employee “the remuneration lost or likely to have been lost by the employee because of the dismissal”. Such an order is required by s23A(5)(b), in its actual words, to require the payment of the remuneration lost; that is, the actual remuneration lost or, alternatively, the remuneration which is likely to have been lost. There is no requirement to mitigate or take any act of mitigation into account in the section, unlike s23A(7) which expressly requires mitigation to be taken into account in awarding an amount of compensation (see also the Workplace Relations Act 1996 (Cth), s170CH(1), (2) and (4)).

207 If we are wrong in that opinion, and the amount ordered to be paid under s23A(5)(b) of the Act constitutes compensation, then we would find fair compensation for loss during the time when Mr Portilla remained dismissed and was awaiting the outcome of proceedings was the whole amount of remuneration not paid to him (see the principles expressed in Growers Market Butchers v Backman (1999) 79 WAIG 1313 (FB)).”

95 S23A of the Act sets outs the orders which the Commission may make if it determines that a dismissal of an employee was harsh, oppressive or unfair. S23A(3) provides the Commission with jurisdiction to order reinstatement. S23A(4) provides jurisdiction to order re-employment, where reinstatement is impracticable. S23A(5) provides for orders which the Commission may make in addition to an order under subsection (3) or (4). The subsection provides that the Commission may make either or both of the following orders:-
“(a) any order it considers necessary to maintain the continuity of the employee’s employment;
(b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.”

96 S23A(6) of the Act provides that, if and only if, the Commission considers reinstatement or re-employment to be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay the employee an amount of compensation for loss or injury caused by the dismissal. S23A(7) provides for matters which the Commission is to have regard to in deciding an amount of compensation for the purposes of making an order under s23A(6). They include, as s23A(7)(a), the efforts of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal. S23A(8) provides that there is a limit to the amount which may be ordered under s23A(6) to that of 6 months’ remuneration of the employee. S23A(9) – (12) provide for ancillary matters which are not relevant to the determination of the present appeal.
97 With respect, the reasoning of Sharkey P and Kenner C in Portilla as to why questions of mitigation are not relevant to the making of an order under s23A(5) of the Act is not particularly clear to us. It may be that their conclusion was reliant upon mitigation being specifically mentioned in s23A(7), but not in s23A(5). Whilst it is perhaps curious that mitigation might be mentioned in one subsection and not the other, in our opinion, the effect of this is not that mitigation of loss can never be relevant to a consideration of whether and, if so what order to make under s23A(5)(b) of the Act.
98 In considering this issue, it is necessary to look at the specific language used in s23A(5)(b) of the Act. This refers to an order to pay “the remuneration lost, or likely to have been lost, by the employee because of the dismissal”. This involves, in our opinion, a causal link between the remuneration lost and the fact of the dismissal from employment. For example, if a person on the day after they have been dismissed, obtains employment which provides remuneration at the same or a greater level than that which they were receiving in their previous employment, then it could not be established, in our opinion, that the person had lost remuneration, because of the dismissal, up to the time of the making of a reinstatement order by the Commission. Further s23A(5) expressly contemplates, by the use of the words “may make either or both”, that the Commission could exercise its discretion:-
(a) not to make any orders;
(b) to make an order under (a) but not (b);
(c) to make an order under (b) but not (a); or
(d) to make an order under both (a) and (b).

99 In our opinion, issues of mitigation are relevant to determining whether there has been a loss of remuneration because of a dismissal. This is because if a failure to mitigate is established, then it may not be found that there has been a loss of remuneration because of the dismissal; or at least, the total amount of remuneration not received prior to reinstatement is not found to be because of the dismissal. In this respect, in our respectful opinion, Sharkey P and Kenner C erred in what was said in Portilla.
100 The link between mitigation and causation of loss has been recognised in both the common law and in cases dealing with similar powers to those contained within s23A(5)(b) of the Act.
101 In Sotiros Shipping Inc and Aeco Maritime S A v Sameiet Solholt (“The Solholt”) [1983] 1 Lloyd’s Law Reports 605 at 608, the Court said:-
“A plaintiff is under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase “duty to mitigate”. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff’s loss as is properly to be regarded as caused by the defendant’s breach of duty.”

102 Additionally, in Standard Chartered Bank v Pakistan National Shipping Corporation and Others [2001] 1 All ER (Comm) 822 at [41], Potter LJ with whom Wall J and Henry LJ agreed, said:-
“It seems to me that, in truth, causation and mitigation are two sides of the same coin, see per Robert Goff J in the Elena D’Amico at 88-89, to which Toulson J made reference at pp.758-9 of his judgment: see also Watts –v- Rake at paragraph 38 above. In every case where an issue of failure to mitigate is raised by the defendant it can be characterised as an issue of causation in the sense that, if damage has been caused or exacerbated by the claimant’s unreasonable conduct or inaction, then to that extent it has not been caused by the defendant’s tort or breach of contract. However, it seems clear that the burden of proving both unreasonable conduct and exacerbation of damage as a result rests upon the defendant.”

103 The reference to the reasons of Robert Goff J are to those in the decision of The Elena D’Amico [1980] 1 Lloyd’s Reports 75. The reference to Watts v Rake is to the judgment of the High Court reported at (1960) 108 CLR 158. Earlier in his reasons, Potter LJ at [38] quoted from the reasons of Dixon CJ in Watts v Rake, including the following:-
“If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course…”

104 The link between the concepts of mitigation of loss and causation was discussed in a similar way to these cases by Madgwick J in Westen v Union des Assurances de Paris, IRCA, 28 August 1996, 960419, in considering a claim for relief consequent upon an unreasonable termination of employment, pursuant to the former Industrial Relations Act 1988 (Cth). (See also Biviano v Suji Kim Collection, 28 March 2002, PR915963, AIRC; Mann Judd (A Firm) v Paper Sales Australia (WA) Pty Ltd and Others [1998] WASCA 268.)
105 Accordingly, it is relevant, in our opinion, for the Commission to take into account whether a respondent can establish that an applicant seeking reinstatement mitigated their loss in order to determine whether there has been a loss of remuneration because of the dismissal, for the purposes of deciding if an order under s23A(5)(b) of the Act should be made. If therefore, after dismissal, a former employee does not take reasonable steps to find new employment, this may mean that the loss they have suffered because of their non receipt of remuneration from their former employer is not, at least to some extent, “because of the dismissal”. This is a question of fact, dependent on the evidence adduced in each case.
106 It follows that the Commissioner, albeit understandably, erred in following Portilla and deciding that mitigation was irrelevant to the making of an order under s23A(5)(b) of the Act. The Commissioner made a finding that Mr Buktenica had not mitigated his loss. The Commissioner did not make a finding, however, on what impact this would have had upon any orders to be made under s23A(5)(b) with respect to Mr Buktenica.
107 The order made by the Commission with respect to Mr Buktenica should be varied so that he does not receive payment for remuneration, not lost because of his dismissal, but because of his failure to take reasonable steps to obtain alternative employment. It may be that the parties can agree upon the way in which the order made by the Commission should be varied. If agreement cannot be reached, then further submissions will need to be made on this issue.
108 In our opinion, it is appropriate to request that the parties within 7 days advise the Full Bench of whether they have been able to reach agreement on this issue and, if they have not, to provide written submissions upon the way in which they contend the order of the Commission ought to be varied. If this occurs, it will be necessary for the Full Bench to consider these written submissions and provide supplementary reasons for decision. On either scenario, a minute of proposed orders will be published in due course.