WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES PETER GRIERSON

APPELLANT

-and-

International Exporters Pty Ltd

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Commissioner P E Scott

 Commissioner J H Smith

HEARD Thursday, 7 September 2006

DELIVERED FRIDAY, 22 SEPTEMBER 2006

FILE NO. FBA 19 OF 2006

CITATION NO. 2006 WAIRC 05465

CatchWords Industrial Law (WA) - Appeal against order made by the Commission - Alleged harsh, oppressive or unfair dismissal - Whether Commission erred in finding appellant was not dismissed - Issues relating to witness credibility/reliability - Role of Full Bench in appeals against findings based on credibility of witnesses - Whether Commission properly considered the evidence before it - Whether Commission accepted glaringly improbable evidence - Appeal dismissed - Industrial Relations Act 1979 (WA) (as amended) - s29(1)(b)(i), s49

Decision Appeal dismissed

Appearances

Appellant Mr G McCorry, as agent

Respondent Mr P Momber (of Counsel)

Reasons for Decision

THE ACTING PRESIDENT:

The Appeal

1          This is an appeal which has been instituted under s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).  The appeal is against an order made by the Commission on 1 June 2006.  The order was that the application before the Commission was dismissed for “want of jurisdiction”.

2          The application which was before the Commission was referred by the appellant pursuant to s29(1)(b)(i) of the Act and sought an order in respect of the appellant’s alleged harsh, oppressive or unfair dismissal from employment by the respondent.  The Commission decided that it did not have jurisdiction because it found, after a hearing, that the appellant had not been dismissed but had resigned from his employment with the respondent.  The Commission was obliged to dismiss the application because “whether the [respondent] dismissed the [appellant] is a question concerning the existence of a condition precedent to the power of the Commission to deal with the matter”.  (Bone Densitometry Australia Pty Ltd (t/as Perth Bone Densitometry) v Lenny (2006) 153 IR 117 per Le Miere J at [31]).

3          The appellant contends that the Commission erred in making the factual finding that the appellant was not dismissed from his employment.  The appellant asserts that in coming to this conclusion the Commission overlooked, misconstrued or placed insufficient weight upon some of the evidence and accepted a version of events that was “glaringly improbable”.

General Background and The Hearing before the Commission

4          The appellant was employed by the respondent as the general manager of an abattoir situated about 20 kilometres west of Gingin.  He was employed in this position from September 2004 until 30 March 2005.  On the latter date, in the evening, there was a meeting between the appellant, Mrs Stephanie Tucun and her husband Mr Tugomir Tucun.  Mr and Mrs Tucun were beneficiaries of the Mansar Family Trust (Mansar) which owned 25% of the shares in the respondent.  Mr Tucun was also a trustee of Mansar and a director of the respondent.  Mrs Tucun was the primary person representing the respondent in the running of the abattoir.  It was at the meeting on 30 March 2005 that the appellant was dismissed, according to his evidence, or resigned, according to that of Mr and Mrs Tucun.

5          The hearing before the Commission took place on 13 October 2005 and 19 and 20 April 2006.  At the conclusion of the hearing orders were made for written closing submissions.  The Commission published its reasons for decision on 1 June 2006, the same date upon which the order dismissing the application was made.

The Evidence

6          At the hearing the appellant gave evidence in support of the application and called Mr Brian McAuliffe and Ms Nicole Williams to give evidence on his behalf.  Mr McAuliffe became the general manager at the abattoir following the cessation of the appellant’s employment.  He commenced this employment the day after the appellant’s employment ceased.  Mr McAuliffe had been engaged by Mrs Tucun to become an employee of the respondent prior to the cessation of the appellant’s employment.  It was the respondent’s case that Mr McAuliffe was initially engaged as a manager to assist but not replace the appellant.  It was the appellant’s case that the engagement of Mr McAuliffe was as a replacement for the appellant and that this showed the respondent was intending to terminate the appellant’s employment on 30 March 2005.

7          Ms Williams was employed by the respondent at the relevant time as a cleaning supervisor at the abattoir.  She gave evidence of a conversation with Mr Tucun after his meeting with the appellant on 30 March 2005 which left her with the impression that it was the respondent’s decision to terminate the employment of the appellant.  Ms Williams also gave evidence about an address by Mrs Tucun to the employees of the abattoir the next day which also left her with the impression that the respondent had decided to terminate the appellant’s employment.

8          Mr and Mrs Tucun both gave evidence for the respondent.  The respondent also called Dr James Godwin and Mr George Chalklen to give evidence.  Dr Godwin was a veterinary officer employed by the Australian Quarantine and Inspection Service (AQIS) and based at the abattoir.  Mr Chalklen was a contract meat inspector with AQIS also based at the abattoir.  Neither Dr Godwin nor Mr Chalklen gave any evidence relevant to the issue of whether the appellant resigned or was dismissed from his employment.

9          The only three witnesses who gave first hand evidence about the crucial meeting on 30 March 2005 were the appellant and Mr and Mrs Tucun.  The determination of the issue of whether the appellant was dismissed therefore depended upon the assessment and findings made by the Commission about the evidence given by the appellant and Mr and Mrs Tucun.  At the meeting Mr and Mrs Tucun were accompanied by a security guard.  He had been brought to the abattoir by Mr and Mrs Tucun, because, they said, they were concerned that the appellant may become irrational.  They feared he might do so during the meeting because of some of his past behaviour and as they intended to raise with him issues of concern about the management of the abattoir.  It is not entirely clear from the evidence whether the security guard was present at the meeting but neither the appellant nor the respondent called him to give evidence.

10       The appellant’s evidence about the meeting and its immediate aftermath was as follows.  (T35‑37).  The appellant said that he had left the abattoir in the afternoon of 30 March 2005 before returning at about 7 o’clock.  He went into the office and saw Mr and Mrs Tucun and the security guard.  The appellant said he did not know that Mr and Mrs Tucun were to attend at the abattoir that day.  Mr and Mrs Tucun at the time ordinarily resided in Sydney.  The appellant said he had spoken to Mrs Tucun that morning and she had not said she intended to come to the plant or Western Australia.  The appellant said he was “informed that my services with the company were effectively terminated as of then, and that the security guard would search my bag.  I was asked to pack all my personal things, to clean out my desk, and that the security guard would drive me home”.  (T36).  The appellant said he was “pissed off” by this and said he told Mr and Mrs Tucun he could not believe the dismissal had occurred and that he had no notification of any dissatisfaction from Mr or Mrs Tucun or any other of the board members of the respondent.  The appellant said in evidence that he had only received praise “from the Board” and as late as two weeks previously a part owner of the respondent was on site and had complimented the appellant on his work performance.

11       The appellant said that he had started to pack up his clothes and was upset.  He refused the offer of transport to his home in Bayswater and telephoned his wife, informed her that he had been “sacked” and requested her to come and pick him up.  Whilst waiting for his wife the appellant telephoned Dr Godwin and Mr Ian Wood, a fitter at the abattoir and informed them as to what occurred.  The appellant then went into a different office and saw Mr and Mrs Tucun.  Mr Tucun told the appellant how sorry he was and Mrs Tucun explained that they were told by other directors to terminate the appellant’s employment.  The appellant asked what were the reasons for the termination and these were explained to him by Mrs Tucun.  The appellant took some diary notes of the reasons he was given.  They were: failure to meet production targets; high cost of production; inability to get on with AQIS, “Aus Meat” and excessive staff turnover.  (Aus Meat was referred to in the hearing as another regulator).  The appellant said in evidence that there had not been any complaints about these issues to him before.  The appellant said that he asked Mr and Mrs Tucun whether there was any question about his honesty or integrity and he was told that there was not.

12       The appellant said that in the conversation with Mr and Mrs Tucun he asked what “severance pay they were paying me” and Mrs Tucun said they were paying “a month”.  The appellant said he expressed his disagreement with this and said he told Mrs Tucun that he may go to the Industrial Commission as to which she said the appellant would not “get a penny, we’ve had advice”.

13       The appellant said he then packed up his belongings at the abattoir and had a walk and conversation with the security guard.  After this conversation the appellant’s wife arrived on site and the appellant was asked to hand in keys to the front gate, abattoir and motor vehicle.  The appellant then left the premises.  He later received payment of one month’s salary together with holiday pay.  The appellant said that he was not told at any time during the course of his employment that it was in jeopardy.  The appellant said to the contrary “all I received from the directors was praise”.  (T40).  The appellant acknowledged in other evidence however that there had been problems at the abattoir prior to 30 March 2005.

14       Mrs Tucun, who was the first witness called by the respondent, gave the following evidence about the meeting on 30 March 2005.  Mrs Tucun said that prior to this date there had been problems with the performance of the abattoir and the work of the appellant as general manager.  Mrs Tucun said that she had discussed these problems with an industrial advisor Mr Merv Darcy.  (Mr Darcy was also the advocate who appeared for the respondent at the hearing.)  Mrs Tucun said Mr Darcy had given her advice prior to her coming to Perth with Mr Tucun.  Mrs Tucun said she was advised to make some “bullet points” and that she needed to come to talk to the appellant to attempt to resolve the issues.  (T116).  Mrs Tucun said the “plant was in absolutely diabolical trouble at this stage”.  (T116).  Mrs Tucun said Mr Darcy advised that she should speak to the appellant in front of a witness and that her husband would be a suitable witness.  Accordingly they flew to Perth with the intention of speaking to the appellant about the problems.  Mr and Mrs Tucun picked up the security guard and travelled to the plant together.  On the way to the plant Mrs Tucun telephoned Mr Darcy to go through her notes again so that she could be sure they were dealing with the matter in a legal and appropriate way.  Mrs Tucun said it was not her intention in attending at the plant to sack the appellant.  Mrs Tucun said she knew from Mr Darcy that “we were unable to sack [the appellant] and also we were unable to force his - - his resignation”.  (T116).  Mrs Tucun said that Mr Darcy had been very specific and clear about that point.

15       Mrs Tucun said that she and her husband and the security guard attended at the abattoir in the late afternoon.  The workforce had left although the cleaning staff were still about the place.  About five minutes later the appellant arrived and Mrs Tucun asked him if she could speak to him.  The security guard waited in the reception area, the door was closed and they sat down to talk to the appellant.  Mrs Tucun said that they had some serious concerns that they had come to talk to him about.  The appellant was, according to Mrs Tucun, “immediately defensive and kept asking what was the bottom line”.  (T117).  Mrs Tucun said the bottom line was that there were a number of issues to address.  Mrs Tucun said the appellant continued to ask about the bottom line and that she insisted that they needed to sit down and go through some things.  She said she told the appellant they were very concerned.  Mrs Tucun said the appellant became very dismissive and within a short space of time said “Oh, well I’ll go now because I’ll be blamed for the losses.  The place is a lemon.  It can’t make much money”.  (T117).  Mrs Tucun said that they tried to appease the appellant and calm him down.  Mrs Tucun said they would have preferred to work with him than to work against him but there was no calming him down.  The appellant said “No, I want to go”.  Mrs Tucun said the appellant became very belligerent.  Mrs Tucun said that they tried to discuss the matters they wished to with him and keep the appellant calm but he insisted that he wanted to go.  Mrs Tucun said that they said to the appellant “if you want to leave then you must leave.  We’ll pay you a month in lieu of notice”.  Mrs Tucun said the appellant was half way out of his chair and sat down again and said he wanted more.  Mrs Tucun said that they did not offer him any more.  Mrs Tucun said that they told the appellant they were offering a month in lieu of notice and that was it.  Mrs Tucun said Mr Tucun suggested to the appellant that he pack his personal belongings and that any other of his belongings would be delivered to him the following day.

16       Mrs Tucun was then asked in examination-in-chief whether she meant “a month in lieu because you gave notice, or because you were giving an ex gratia payment”.  Mrs Tucun answered they were “giving an ex gratia …” and her evidence was then interrupted by the Senior Commissioner who requested that Mr Darcy not ask leading questions.  (T117).

17       Mrs Tucun then said that the appellant was told that the security guard would drive him home but the appellant did not accept this.  He asked that his wife collect him.  Prior to this he asked whether he could use the car he had been driving, for another month and was told no.  Mrs Tucun said the appellant then became very hostile and the meeting was terminated and she and Mr Tucun went into the next office so that Mrs Tucun could write up notes of the meeting as per instructions she had received from Mr Darcy.  Mrs Tucun said that about 45 minutes later the appellant came into the office where she was writing the notes and angrily asked about the issues they wanted to talk about.  Mrs Tucun said she told the appellant that they had “gone beyond that” now.  The appellant said he wanted to know what they were.  Mrs Tucun said she started to go through the bullet points and the appellant was very dismissive.  The appellant then said he wanted six months’ pay or he would start saying things that they would not like.  Mrs Tucun also gave evidence about the appellant’s wife attending at the plant, a conversation with her and the appellant subsequently leaving the plant.  Mrs Tucun said she had not had a conversation with the appellant since then.

18       Mr Tucun gave evidence that he and Mrs Tucun travelled to Western Australia on 30 March 2005.  The purpose of the trip was to discuss with the appellant the problems they were having at the plant and licences with AQIS and Aus-Meat being in jeopardy.  (T180).  Mr Tucun said that they travelled to the plant together with a security guard.  This was because of advice given by Mr Darcy consequent upon the concern of Mr and Mrs Tucun as to how the appellant may react.  Mr Tucun said he thought they arrived at the plant at about 7:00pm.  The appellant was not there at the time but he arrived some minutes later.  Mr Tucun said they asked the appellant to go into his office and said they needed to discuss some issues that they had regarding the plant.

19       Mr Tucun said the appellant made it very difficult to go through the issues.  The appellant had a very angry reaction when they said to him that they needed to discuss issues and said “What’s the bottom line?  What’s the bottom line?”.  (T181).  Mr Tucun said the appellant became very angry because they persisted with the comment that they needed to discuss issues.  (T181).  Mr Tucun said he could not remember the appellant’s actual wording but the appellant said that: “He’ll go now”.  Mr Tucun said the appellant said: “The company was a lemon, that it’s going to be very difficult to make a profit and when he goes he will probably get the blame for it”.  (T181).  Mr Tucun said it was difficult to talk to the appellant at that stage.  Mr Tucun said the appellant said he was going to leave and then Mrs Tucun said to him that if he was going to leave they would pay him one month’s salary.  Mr Tucun said he thought the appellant made a comment about wanting to retain the car for a month to which Mrs Tucun said no that she was not willing to do that.  Mr Tucun said: “That was it.  I mean we went into the next room because it was very difficult to talk to him.  He was obviously very upset”.  (T181).

20       Mr Tucun said that sometime after that, maybe an hour or so, the appellant came back and wanted to go through some of the “so called bullet points that we had listed and we briefly discussed them with him”.  Mr Tucun said that he was “pretty sure” that the appellant’s response at that time was that he wanted six months’ pay and if they did not come back to him within a week “we’d be sorry for whatever reason but, yes, he was pushing for the six months payout”.  (T181).

21       Mr Tucun said that the appellant then made some telephone calls including to his wife to come and pick him up.  The appellant’s wife attended at the abattoir about 45 minutes later and she had a conversation with Mr and Mrs Tucun.

22       Mr Tucun was asked in examination-in-chief whether “there was no concoction after [the appellant] alleging [sic] being terminated, that you changed the story to suit that he resigned?”.  (T182).  Mr Tucun replied that “you” (Mr Darcy) “gave us strict instructions and guidance not to bring about a termination action.  We were very conscious of that all the way through this - - the whole episode so, no, there was no - -no termination.  I - - I believe that [the appellant] brought about his own termination”.  (T182).

23       Mr McAuliffe in evidence-in-chief said that he had been employed as the general manager of the abattoir from 31 March 2005.  In answer to a question of who recruited you to “that position” he answered, Mrs Tucun.  Asked when he had been recruited to “that position”, Mr McAuliffe said “probably a week or two weeks prior to that”.  (T8).  He said at that time it had not been agreed that he would commence on 31 March 2005.  This was agreed in the last few days leading up to Easter.  (The Commission was told Easter commenced on 27 March 2005.)

24       During cross-examination Mr McAuliffe said that he was first contacted about employment at the abattoir by Dr Godwin.  Dr Godwin had given him a telephone number and said that Mrs Tucun would like to talk to him about his experience in the meat industry and “stuff like that”.  (T9).  Mr McAuliffe said that he had resigned from employment with AQIS and Dr Godwin was aware of that and possibly thought he might be available to take on some work in the meat industry.  At that stage there was no discussion of a job offer from Mrs Tucun.  Mr McAuliffe said he telephoned Mrs Tucun probably within a day or two and they discussed his experience in the meat industry and future intentions.  There was no offer for a job at that point.  Mr McAuliffe said that he did not remember the following sequence of events “particularly”, but was offered a job around 27 March 2005.  (T10).  Mr McAuliffe said he had probably given notice to finish with AQIS at Easter some eight weeks earlier and did not really want to be available for probably three to four weeks.  He said he needed a bit of a holiday but then had a telephone call from Mrs Tucun just prior to Easter making the job offer and asking if he could “bring it forward”.  Mr McAuliffe said the job offer was “managing the plant”.  (T10).  Mr McAuliffe said he was aware that the appellant was the general manager of the abattoir.  Mr McAuliffe said he did not enquire as to what was going to happen (to the appellant) if he was employed there.  Mr McAuliffe was asked whether he saw his job as manager and the appellant’s position as general manager “as distinct”.  Mr McAuliffe answered “possibly” to this.  (T11).

25       Mr McAuliffe said that he was told on 30 March 2005 that he was going to start the next day.  Mr McAuliffe said he did not enquire as to the appellant’s position because it was none of his business.  Mr McAuliffe said that when he commenced at the plant the appellant was not present and that he did not specifically asked where the appellant was, “but there was a bit of talk around the plant that there had been - - that he’d actually been removed from the plant the day before”.  (T12).  Mr McAuliffe was also asked about his experience in the meat industry.  He said he had a strong understanding of regulatory issues but was probably not as strong in the production/finance issues because they were not his background.  (T13).

26       In re-examination Mr McAuliffe was asked about his discussions with Mrs Tucun and what were the duties of the position he had agreed to take on.  Mr McAuliffe said “running the abattoir I suppose”.  Mr McAuliffe also said he was to report to Mrs Tucun.

27       During cross-examination Mrs Tucun was asked about the appointment of Mr McAuliffe.  Mrs Tucun agreed that Mr McAuliffe had been engaged two weeks prior to his commencement date.  It was then put to Mrs Tucun in effect that it was questionable that she did not go to the abattoir to dismiss the appellant when Mr McAuliffe was going to start as manager the following day.  Mrs Tucun answered that “Mr McAuliffe was there in a managerial position to appease the regulators and also Mr Lindsay Taylor was going to remain at that plant to take charge of the outside.  [The appellant’s] terms and conditions would not have altered except we would have had people reporting back to us from that plant”.  (T165).  Mrs Tucun was asked in what capacity was Mr McAuliffe going to be reporting back to her and she answered as “the person who was responsible for looking after the plant at that stage”.  Mrs Tucun was asked: “But the general manager was responsible?”, as to which she answered “the general manager wasn’t competent to look after the plant”.  There was then some further questions and answers about Mr McAuliffe reporting to Mrs Tucun.  Mrs Tucun was then asked whether this was discussed with the appellant at all.  Mrs Tucun answered that they were “about to discuss it” with the appellant.  (T166).  A little later Mrs Tucun reiterated that Mr McAuliffe was appointed as a manager and “his duties were to appease the regulators and report back to me”.  (T168).  Mrs Tucun was asked why her diary entries did not indicate she told the appellant that Mr McAuliffe was going to be coming to help him “to do all this to appease the regulator”, and she answered that the appellant did not give them a chance to talk about anything.  (T168-169).

28       Ms Williams’ evidence-in-chief was that she was on duty on the evening of 30 March 2005 and saw the appellant who told her and a fellow employee that “his job was no longer his job and he’d been sacked, and he thanked us for everything we had done and wished us all the best”.  (T208).  Ms Williams waited with the appellant until he left with his wife.  Ms Williams then said she later met Mr Tucun at the plant who explained to her that the appellant’s services were no longer required and there would be a new manager in the morning.  Mr Tucun said that everybody’s job would be safe and then the conversation ended.

29       Ms Williams then gave the following evidence which will be quoted because it was relied upon by the appellant in support of the appeal:-

“Did anything else happen that evening?---A man, Lindsay Taylor, and Alan, came into the building.

Let me stop you there. Who's Alan?---Alan was a stockman at the abattoir.

Okay. So they came into the building. How long after the Tucuns left?---Oh, not long. I - - it was about - - I think it was about 10 minutes after Peter left.

Okay. And what happened?---He came into the slaughter floor where I was scrubbing the white pipe and told me that it was all for the better and that when I needed to get out at night that I would be locked in and I needed to go up to the stock shed and wake Alan up and he would let me out.

And what were the - -

MR DARCY: If I may object, this is hearsay.

GREGOR SC: Thank you.

MR McCORRY: And what was the procedure you usually followed to get out?---I would go and lock all the doors and all the offices, I would drive to the gate which was usually open, and lock it on my way out.

Okay. And how did you get out this particular evening?---I had to drive up to a big shed where Alan was staying the night and took me over an hour to wake him up to be let out that night.”  (T209)

30       Mr Lindsay Taylor who was referred to in this evidence was according to other evidence given at hearing a livestock purchaser who bought livestock on behalf of Mansar.

31       Ms Williams said that the following day she went to the abattoir in the morning for a meeting attended by everybody who worked there together with Mr and Mrs Tucun and Mr McAuliffe.  Ms Williams said that Mrs Tucun said that the appellant’s “services were no longer required and they introduced us to the new manager and that was pretty much it”.  (T210).

32       In cross-examination Ms Williams was asked about the words used in the conversation with Mr Tucun on 30 March 2005.  Ms Williams was asked whether she was definite that Mr Tucun said the appellant was no longer required.  Ms Williams said that they were the words used as far as she could recall but added that it was long time ago.  It was then put to Ms Williams that she was not definite and she agreed with that proposition.  Ms Williams was asked whether she was told the appellant “is leaving us”.  Ms Williams said it was “along the lines that he was not coming back and that it was their decision”.  (T213).

33       Ms Williams was also asked about the words used by Mrs Tucun the next day.  She agreed with the proposition that the words used by Mrs Tucun could have been that the appellant is “not working with us” or “no longer going to be working here”.  Ms Williams again added that it was a “long long time ago”.  It was then put to Ms Williams that she was not very clear in her memory of what transpired.  Ms Williams said not “the exact words but it was along the lines that they - - it was their decision to terminate or to not have [the appellant] back”.  (T214).

34       During re-examination, Ms Williams was asked the following:-

“And my friend asked you some questions about how accurate your recollection of the words were and your answer was that you couldn't be sure of the exact words but you're sure it was their decision to not have [the appellant]  back?”  (T217).

35       Ms Williams answered yes to this.  It was not clear whether the question was directed to the conversation with Mr Tucun, the address to staff by Mrs Tucun, or both.  Whatever the case, however, it is appropriate to state my opinion that the answer to such a leading question did not deserve any weight.

36       Mr and Mrs Tucun in their evidence denied using the words attributed to them by Ms Williams in her evidence, which suggested they terminated the appellant’s employment.

The Reasons for Decision

37       The Commission commenced its reasons for decision with a general discussion about the application and the abattoir.  The Commission then summarised the evidence of the appellant.  Following this the Commission summarised the evidence of Mr McAuliffe and Ms Williams.  The Commission then summarised the evidence of Mrs Tucun and Mr Tucun.

38       The Commission made some observations about the evidence given by the witnesses.  Relevantly, this was as follows:-

“24 … The evidence of the Applicant himself is important.  There is no doubt in my mind that he honestly believes all of what he said to the Commission.  He believed in his version of the events.  It is on cross examination clear that he is not a man who suffers fools gladly and is a strong and forceful character.  His background in the meat industry which is a difficult industry gives testament to the type of character he is.  It is obvious that if a Respondent had an operation which needed to be driven along to be successful that the Applicant was the ideal person to undertake such an activity.  The Applicant is a credible witness and I so find.

25 The evidence called on his behalf from Mr McAuliffe is also evidence which should be given weight; in fact, it is useful in assisting the Commission to determine what has happened in this matter.  His evidence in that sense goes more to supporting the contentions of the Respondent than the Applicant.  The evidence of Nicole Williams on behalf of the Applicant is credible but the reality is she adds very little weight to the Applicant’s version of events because she admits that she cannot recall or might not even know the precise words used by the Respondent at the time of the dismissal.

26 The main witness on behalf of the Respondent was Stephanie Tucun.  As I have indicated earlier Mrs Tucun gave clear and concise evidence which was subject to vigorous attack by the Applicant’s advocate.  Much of what Mrs Tucun says is corroborated by the contemporaneous notes in her diary which I find should be given weight.  Mrs Tucun’s version of events survived that attack.  I find that Stephanie Tucun is a witness of truth and her evidence is credible.  Tugomir Tucun was less positive in his evidence.  He is nevertheless credible.  Dr Godwin and Mr Chalklen both gave evidence there is nothing to indicate their evidence is not credible.

27 Where the Commission finds that all the witnesses are prima facie credible it must look to corroboration or other evidence which might help it distil the events in order to decide on the balance of probabilities what happened.”

39       It is plain that in these reasons the Commission was using the word “credible” in the sense of meaning honest or not intentionally giving untrue or misleading evidence to the Commission.  It was not used to connote both honesty and reliability.

40       The Commission then considered the evidence further under the heading “Analysis and Conclusions”.

41       At paragraph [31] the Commission said that it accepted the evidence of Mr and Mrs Tucun that there had been difficulties with the accounting and general management of the abattoir and that they had in various conversations raised those with the appellant.  The Commission said that it was able to draw the conclusion on the evidence that the respondent while uncomfortable with some of the accounting and management side of the abattoir, nevertheless needed a person of the appellant’s character, skill and experience to continue to drive the operation.  The Commission said it was not in their interests to replace him with someone else who did not have those particular character traits and therefore on the balance of probabilities their story about the engagement of Mr McAuliffe to in effect soften the dealings with regulators carried the ring of truth.  In paragraph [31] the Commission said the close proximity of Mr McAuliffe’s commencement to the so called dismissal did not detract from the probability that Mr McAuliffe’s engagement was to provide backup management to deal with what had become strained relationships with the regulators.  The Commission said that because of his experience Mr McAuliffe would have been an ideal person to do this.  The Commission said that the “story that he was employed for that purpose is one on which the balance of probabilities should be accepted”.

42       At paragraph [32] of its reasons the Commission referred to the respondent’s position that they took advice as to how they should deal with the appellant.  The Commission referred to the character and approach of the appellant as being well known and that he was a strong man and when confronted with someone telling him they did not like his method of management predicably could have a strong reaction.  The Commission said in that context the engagement of the security officer to go with Mr and Mrs Tucun to the abattoir is one which could be understood.

43       At paragraph [33] the Commission said that on the balance of probabilities the Commission concluded that the respondent decided it had to change the management structure of its Gingin operations.  This was because of a whole series of events which had occurred and in particular a more than usually strained relationship with the regulators.  The Commission said that to ameliorate this strain they decided they would remove “interface” from the work done by the appellant and have it done by someone else.  Hence, the Commission said, they approached Mr McAuliffe some weeks before they moved to raise the issue with the appellant.

44       At paragraph [34] of its reasons the Commission said that on 30 March 2005 Mr and Mrs Tucun went to the plant after having received advice as to how they ought to conduct themselves with the appellant.  The Commission said it was open to conclude they took that advice because they anticipated the appellant would not take kindly to what they were going to do and that was to remove from him some of his work and give it to someone else.  The Commission said it was open to conclude that when they tried to raise this with the appellant his response was that he thought they would try to dismiss him.  The Commission said the evidence of Mr and Mrs Tucun about what happened at the meeting should be accepted on the balance of probabilities.  The Commission said that nothing that happened later, for instance the memory of Ms Williams “indicates that the [appellant] was dismissed”.  The Commission said that there “is sometimes a very fine line in these matters and one could appreciate the [appellant] being extremely distressed about what happened and having concluded in his own mind that he had been let go as it were, and using words to that effect to other people they [sic] spoke to at the time.  That he knew he was going to leave was apparent from the fact that he returned to try to negotiate a better deal for himself after Stephanie Tucan had offered him a month’s pay after he had resigned”.

45       The Commission concluded its reasons in paragraph [36] by saying that in “all of the circumstances by fine balance the Commission has decided that there was not a termination in this matter and therefore the [appellant] has not the authority to refer this matter to the Commission”.

The Notice of Appeal

46       I have earlier set out the general basis upon which the appellant argued the appeal.  This reflected the grounds of appeal which were as follows:-

“1) The learned Senior Commissioner failed to consider or to properly consider incontrovertible evidence that the Respondent had –

a)             recruited a replacement manager for the abattoir at least one week prior to the Appellant allegedly resigning, the commencement date of the replacement manager having been agreed to be the day after the Appellant allegedly resigned;

b)             canvassed with its advisors the amount of notice the Appellant was required to be given;

c)             arranged to have the abattoir locks changed and a night watchman appointed prior to the Appellant’s alleged resignation;

d)             subsequently conveyed to the staff of the abattoir that it was the Respondent’s decision that the Appellant was not working there any longer;

e)             admitted in its initial Notice of Answer and Counter Proposal that it had terminated the Appellant’s employment;

f)              admitted in evidence that it told the Appellant he would be given pay in lieu of notice.

2) The learned Senior Commissioner failed to consider or to properly consider the glaring improbability of the totality of the Respondent’s evidence about the circumstances of the Appellant’s cessation of employment.

3) The learned Senior Commissioner erred in making findings of fact and drew inferences from those found facts relative to credibility that were not open on the evidence.”

47       The appellant provided an extensive set of written submissions which were elaborated upon during the hearing of the appeal.  The focus of the written submissions was upon those aspects of the evidence which the appellant contended were overlooked, misconstrued or had insufficient weight placed upon them by the Commission or showed the respondent’s version of events was “glaringly improbable”.

The Role of the Full Bench

48       I have set out earlier the Commission’s assessment of the witnesses and its analysis of their evidence.  The Commission decided the application the way in which it did because it accepted the evidence of Mr and Mrs Tucun about what happened at the meeting of 30 March 2005.  From the Commission’s reasons, in my opinion, it made this finding at least in significant part because of its assessment of the way in which Mr and Mrs Tucun and the latter in particular, gave their evidence.  I say this because of the Commission’s characterisation of the evidence of Mrs Tucun in paragraph [26] of its reasons as being “clear and concise”.  In the same paragraph the Commission said that Mrs Tucun’s “version of events” survived what the Commission described as being a “vigorous attack” by the appellant’s advocate.  It is just after this that the Commission says that Mrs Tucun was a witness of truth and her evidence is credible.  Mr Tucun was in the same paragraph described as being less positive in his evidence although nevertheless credible.

49       Where a factual finding is made at first instance in part because of the credibility of witnesses’ evidence, including the way in which they gave their evidence, an appellant attempting to have the finding set aside on appeal faces a difficult although not insurmountable task.

50       The process involved for an intermediate appellate court in an appeal of this type was discussed by Steytler P in Skinner v Broadbent [2006] WASCA 2 at [32]-[37].  By reference to the relevant authorities, the President made a number of points which may be summarised as follows:-

(a) An appellate court has a disadvantage in assessing the credibility of witnesses to that of a trial court.  As stated by Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, unless it is shown that a trial court has misused its advantage the appeal court should not reverse conclusions reached, based on their own assessment of the evidence and the probabilities of the case.

(b) Kirby J criticised this approach in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 327 [88].

(c) Despite this, caution must be exercised in overturning findings of fact based on the credibility of witnesses.  In resolving a conflict of evidence the “subtle influence of demeanour” cannot be overlooked.  (Citing McHugh J in Jones v Hyde (1989) 63 ALJR 349 at 351 and Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179).

(d) Steytler P quoted the reasons of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 where their Honours said a finding of fact based on credibility is not to be set aside because an appellate court thinks the probabilities are against the finding.  If the finding is to any substantial degree dependent upon the credibility of a witness, the finding must stand unless the trial judge has failed to use or palpably misused his advantage or acted on evidence inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

(e) Even allowing for the criticism by Kirby J of the words “misused his advantage”, this is a strong reminder of the difficulties facing a person seeking to overturn a finding of this kind.  As a matter of logic, experience and legal authority, the appellate court must respect the advantage of the primary decision maker.   (Quoting Suvaal v Cessnock City Council (2003) 77 ALJR 1449 at 1462 [73] per McHugh and Kirby JJ).

(f) As stated by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118, an appeal court must perform their statutory functions even when a trial judge has reached a conclusion by favouring the witnesses of one party over another.  This may lead to the overturning of a finding where incontrovertible facts or uncontested testimony demonstrate the trial judge’s conclusions are erroneous or the conclusion reached was glaringly improbable or contrary to compelling inferences.

(g) As stated by their Honours in Fox v Percy, recent research has cast doubt upon the ability of judges to tell truth from falsehood from the appearance of witnesses.

(h) When deciding between competing versions of facts it is necessary for a trial judge to explain why one version has been preferred to another.

(i) It is a trial judge’s duty to consider all of the evidence in a case and where important or critical evidence is not referred to an appellate court may infer that it has been overlooked or not considered.

51       Although Steytler P dissented in Skinner v Broadbent, the reasons of the other members of the court (McLure and Pullin JJA) did not differ from the President’s analysis of these issues.  (See also Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 per Buss JA at [65]-[67]; Steytler P and Pullin JA agreeing).  In the authorities referred to by Steytler P in Skinner v Broadbent there is reference to “incontrovertible” evidence and “glaringly improbable” versions of events, which are the words used in the grounds of appeal and submissions made by the appellant in this matter.

52       In paragraph [37] of Skinner v Broadbent, as referred to in (i) above, Steytler P referred to the duty to consider all of the evidence in a case and when important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it.  The same principle applies with respect to the reasons of the Commission and the approach of the Full Bench.  In paragraph [37], Steytler P referred to the reasons of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728.  On that page, Samuels JA said that “a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her”.  The situation was different if a judge were to “ignore evidence critical to an issue in a case”.  When that occurred his Honour said this tended to deny the fact and appearance of justice having been done and produced a mistrial.

Ground 1

53       In order to consider whether the Commission erred in making the factual finding which it did, it is necessary to consider and assess the evidence relied on and submissions made by the appellant.  I will now discuss these.  In doing so I will make observations on the points made by the appellant.  It will then be necessary to consider their collective effect.

Mr McAuliffe

54       The appellant argued the Commission erred in its findings about the evidence of Mr McAuliffe and by failing to adequately take into account the evidence about his appointment.

55       In paragraph [25] of its reasons the Commission referred to the evidence of Mr McAuliffe.  It was said that his evidence “goes more to supporting the contentions of” the respondent rather that the appellant.  The Commission did not explain why it formed this opinion.  It may be that the Commission thought this because Mr McAuliffe did not give any evidence of being told by Mrs Tucun that he was being engaged to replace the appellant.  Additionally, at one point in his evidence Mr McAuliffe said he was engaged as a manager of the abattoir, he knew the appellant was employed as the general manager and that the two positions were “possibly” distinct.  This aspect of Mr McAuliffe’s evidence was referred to by the Commission at paragraph [14] of its reasons.

56       In paragraph [31] of its reasons the Commission said that it was not in the interests of the respondent to replace the appellant with Mr McAuliffe who did not have the “particular character traits” of the appellant.  These were described in the same paragraph of the reasons as being the appellant’s “character, skill and experience to continue to drive the operation”.  The appellant submitted that the Commission had erred in this paragraph as there was no evidence that Mr McAuliffe lacked these characteristics.  Additionally it was submitted that this was an important finding because it was used by the Commission to support the acceptance of the evidence on behalf of the respondent about the basis upon which Mr McAuliffe was engaged.

57       I do not accept this criticism of the reasons of the Commission.  As noted earlier, Mr McAuliffe did say that he lacked background in production issues and his stronger understanding was that of regulatory issues.  In any event the Commission’s observation that Mr McAuliffe did not have the relevant character traits of the appellant was relevant to an understanding of the perspective of Mr and Mrs Tucun on behalf of the respondent.  There was no evidence before the Commission that Mr and Mrs Tucun understood that Mr McAuliffe had the relevant character traits at the time of his appointment.  Therefore there was validity in the observation which the Commissioner made.  The observation made by the Commission was as to what was in the interests of the respondent, represented by and based on the understanding of Mr and Mrs Tucun at the time.  As there was no evidence that they knew Mr McAuliffe had the same character traits as the appellant, the Commission was not incorrect on the evidence to say it was not in their interests to replace the appellant with Mr McAuliffe.

58       The appellant also criticised the Commission’s recitation of Mr McAuliffe’s evidence at paragraph [14] of its reasons.  In that paragraph the Commission said Mr McAuliffe’s evidence was that he spoke to Mrs Tucun for the second time some eight weeks after the first occasion.  As set out earlier, Mr McAuliffe’s evidence was that the eight week time period was between his giving notice to finish with AQIS and the offer of employment from Mrs Tucun.  In my opinion this is a minor point and did not affect the decision made by the Commission that there was no dismissal.

59       The appellant also submitted that Mr McAuliffe’s evidence “incontrovertibly” established that he was recruited to be the general manager of the abattoir and not for some other position.  In my opinion Mr McAuliffe’s evidence did not incontrovertibly establish this fact.  Although at one point Mr McAuliffe’s evidence-in-chief seemed to be to the effect that he had been engaged by Mrs Tucun as the general manager prior to 30 March 2005, this point was undermined by his evidence in cross-examination.  This was because in his cross-examination Mr McAuliffe said he was appointed as a manager and the appellant was the general manager and he saw the positions of manager and general manager as being possibly distinct.

60       It was also submitted that Mr McAuliffe’s evidence was that he discussed with Mrs Tucun his proposed duties of running the abattoir and not the management of regulatory issues.  The appellant submitted this undermined the evidence of Mrs Tucun as to the basis upon which Mr McAuliffe was engaged and that it was a piece of evidence which the Commission did not consider when deciding to accept the evidence of Mrs Tucun.  In paragraph [14] of its reasons the Commission did refer to Mr McAuliffe’s evidence that he was offered a job to manage the plant.  This was not specifically referred to in the Commission’s analysis of the evidence of Mr and Mrs Tucun at paragraph [31] and following but because of the Commission’s earlier referral to this piece of evidence I do not draw the conclusion that it was overlooked by the Commission.  In any event the issue about what duties Mr McAuliffe was engaged to do was not explored in any detail in the evidence.

61       In his written submissions at paragraph [16], the appellant referred to other aspects of Mr McAuliffe’s evidence but in my opinion none of these submissions were very cogent.  For example there was reference made to there being talk around the plant when Mr McAuliffe commenced on 31 March 2005 that the appellant had been removed the previous day.  The Commission referred to this piece of evidence at paragraph [14] of its reasons but did not again refer to it in its assessment of whether the appellant was dismissed other than to say in paragraph [34] that nothing that happened later indicated the appellant was dismissed.  It is unclear whether in saying this the Commission was referring to the evidence of Mr McAuliffe about the talk around the plant.  In any event however this generalised piece of evidence, clearly of a hearsay nature, did not have any cogency and does not undermine the finding made by the Commission that there was no dismissal.

62       The appellant also referred to the evidence of Mrs Tucun with respect to the appointment of Mr McAuliffe and said that her evidence “incontrovertibly” established she believed the appellant was not competent to manage the plant and that Mr McAuliffe was appointed to be the person who was responsible for looking after the plant and not the regulatory bodies.  I have earlier set out a summary of Mrs Tucun’s evidence on this issue.  In my opinion the appellant’s submission suffers from the deficiency of being selective in extracting parts of the evidence of Mrs Tucun without having regard to the whole of it.  On consideration of the whole of the evidence in my opinion Mrs Tucun’s evidence did not “incontrovertibly” establish those facts which the appellant alleges.  In considering the evidence of Mrs Tucun as a whole, in my opinion, it did support the Commission’s finding that Mr McAuliffe was employed as a manager to assist the respondent with its interaction with the regulatory bodies.  The observation made by Mrs Tucun about the appellant not being competent to manage the plant must be seen in the context of her evidence as a whole.  The effect of the evidence of Mrs Tucun was not that she believed the appellant was incompetent to remain in the position of general manager but that his deficiencies needed to be supplemented by other employees including Mr McAuliffe who was to be appointed in a managerial position to appease the regulators.

63       It is also unclear whether Mrs Tucun’s answer as to the “capacity” that Mr McAuliffe was going to be reporting to her, quoted earlier was a reference to Mr McAuliffe or herself.  In other words it is not clear that Mrs Tucun was indicating that it was Mr McAuliffe rather than herself who was responsible for looking after the plant.  It may have been that Mrs Tucun meant that she was in a generalised sense looking after the plant and that her answer was referable to herself rather than Mr McAuliffe.  I am not satisfied that this evidence from Mrs Tucun was a critical piece of evidence which the Commission failed to consider, therefore establishing error.

64       I am not satisfied that as submitted by the appellant the Commission failed to properly consider the evidence of Mr McAuliffe or what the appellant referred to as the admissions of Mrs Tucun.

The Evidence of Ms Williams

65       The appellant submitted the evidence of Ms Williams and Mr McAuliffe established that the abattoir staff were of the view, based on what they were told by Mr and Mrs Tucun, that the appellant did not voluntarily leave his employment.  It was submitted that how Mr McAuliffe, Ms Williams and the other staff formed this view, if the accounts of Mr and Mrs Tucun about what they told Ms Williams and the staff on 30 and 31 March 2005 was accurate, was something the Commission did not give any serious consideration to.  It was submitted the failure of Ms Williams to recall the exact words used was not a valid reason for her evidence to be “completely disregarded”.

66       In my opinion, this submission overstates the evidence about the “view” of the abattoir staff.  The evidence fell short of establishing the “view” of the staff was that the appellant did not leave his employment voluntarily.

67       I have already referred to the evidence of Mr McAuliffe about the talk around the plant on the morning of 31 March 2005.  As stated earlier, in my opinion this was a piece of generalised and hearsay based evidence which did not demand serious consideration by the Commission in its reasons.

68       Ms Williams did not give evidence of any “view of the staff” about how the appellant ceased his employment.  She gave evidence about what she was told by Mr Tucun on the evening of 30 March 2005, and what Mrs Tucun told the staff on 31 March 2005.  This evidence was not however incontrovertible evidence that it was conveyed to the staff that it was the respondent’s decision that the appellant’s employment ceased, as asserted in ground (1)(d) of the notice of appeal.  This is because the evidence of Ms Williams on these issues was somewhat uncertain and disputed by Mr and Mrs Tucun.  It was the duty of the Commission to assess the weight of the evidence.  In doing so it was open to the Commission to have regard to any uncertainties expressed by the witnesses during their evidence.  In this case the Commission did not in my opinion completely disregard the evidence of Ms Williams because of her failure to recall the exact words used in the conversations she gave evidence about.  The Commission did, as it was entitled to do, however, take this into account in assessing the weight or strength of her evidence, against that of Mr and Mrs Tucun.

69       The Commission referred to the evidence of Ms Williams three times in its reasons for decision.

70       The Commission first referred to the evidence of Ms Williams at paragraph [16] of its reasons.  It was there recorded that Ms Williams “told the Commission she had heard the [appellant] had parted company with the respondent but in cross-examination she admitted she did not hear the detail of that conversation or at least her memory was unclear about that”.  The Commission said it appeared the “source of her information was initially in a communication with either the [appellant] or Mr Tucun”.  As to the latter point, Ms Williams’ evidence was that she first heard from the appellant about the issue and then Mr Tucun.  The use of the word “initially” suggests however that the Commission also had in mind Ms Williams’ evidence about the later communication from Mrs Tucun the next day.  The Commission was not inaccurate in saying that Ms Williams’ memory of what she heard about the appellant parting company with the respondent was “unclear”.  This description applied to what Ms Williams said she heard both on 30 and 31 March 2005.

71       The Commission next referred to the evidence of Ms Williams in paragraph [25] of its reasons.  The Commission said that Ms Williams’ evidence was credible “but the reality is she adds very little weight to the [appellant’s] version of events because she admits that she cannot recall or might not even know the precise words used by the respondent at the time of the dismissal”.

72       At this point the Commission was, as required, assessing the weight of Ms Williams’ evidence.  The sentence is a little unclear in using the expression “at the time of the dismissal”.  This is because Ms Williams did not give evidence about hearing the words used at the meeting on 30 March 2005, when it was alleged the dismissal took place.  She gave evidence as to what she was told by Mr Tucun later that night and what Mrs Tucun said to the staff the next day.  In the context of the reasons as a whole, however, and in particular having regard to the third time when the Commission referred to Ms Williams’ evidence, mentioned below, I am not satisfied the Commission misunderstood Ms Williams’ evidence.  The use of the expression “at the time of” was, I accept, a reference to the time of the alleged dismissal generally, rather than specifically to the meeting on 30 March 2005.

73       In assessing the weight of Ms Williams’ evidence the Commission referred to her lack of recollection of the precise words used “by the respondent”   Again the use of the word “respondent” was a little imprecise, but in the context must mean the words used by Mr Tucun on 30 March 2005 and Mrs Tucun on 31 March 2005.  As stated Ms Williams did lack recollection about the precise words used, and this was something the Commission was entitled to take into account in assessing the weight of her evidence.  Also material, albeit not specifically referred to by the Commission, was the contrary evidence of Mr and Mrs Tucun.  It is true that with respect to what she heard both on 30 and 31 March 2005, Ms Williams said it was “along the lines” that it was the respondent’s decision to end the appellant’s employment.  This evidence however was non specific, impressionistic, and weakened by the uncertainties expressed elsewhere in Ms Williams’ evidence.  The Commission was in my opinion entitled to accord Ms Williams’ evidence little weight for the reason expressed.

74       The final time when the Commission referred to the evidence of Ms Williams was in paragraph [34] of its reasons.  As stated earlier, the Commission said that the evidence of Mr and Mrs Tucun about “what occurred in the meeting should be accepted on the balance of probabilities.  Nothing that happened later, for instance the memory of Nicole Williams indicates that the [appellant] was dismissed”.  The word “indicates” is a word that has different shades of meaning.  It can mean “show” which in the present context would mean establish or prove.  It can also mean to be a sign of or to point to.  (See The Macquarie, Concise Dictionary, 2nd Edition).  In the context of the reasons as a whole I think the use of the word “indicates” in paragraph [34] of the Commission’s reasons meant show or establish.  Used in this sense there was no misdescription of the evidence of Ms Williams.  It did not on its own show or establish the appellant was dismissed.  However Ms Williams’ evidence was relevant to the issue of whether there was a dismissal.  If the Commission thought her evidence was reliable about what was said by Mr and Mrs Tucun then what they said could have been regarded as admissions being made on behalf of the respondent that there was a termination of the appellant’s employment.  The Commission assessed the reliability of Ms Williams’ evidence however and accorded it little weight.

75       I have, as expressed above, some unease about the words used by the Commission to describe Ms Williams’ evidence.  Overall, however, I am not satisfied that the Commission did not properly understand and appropriately consider and weigh the evidence of Ms Williams as to what was said by Mr and Mrs Tucun.  The result was that despite Ms Williams’ evidence the Commission accepted on balance the evidence of Mr and Mrs Tucun about what happened at the meeting on 30 March 2005.  I do not think the Commission erred in so concluding.

76       The appellant also asserted that Mrs Tucun’s evidence about what happened at the meeting with the staff on the morning of 31 March 2005 was contradictory.  The attention of the Full Bench was drawn to the evidence of Mrs Tucun in examination-in-chief when she said that at the meeting she and Mr Tucun introduced Mr McAuliffe and told the staff the appellant had decided to resign and had left.  (T170).  When later recalled to give further evidence, Mrs Tucun said she said at the meeting that the appellant had left the respondent.  She was then asked, “and no other statement?”.  Mrs Tucun said in answer: “no other statement.  There was no inference whatsoever that [the appellant’s] employment had been terminated other than he had left the employ of the company.  That was all”.  (T237).  In my opinion any difference between these two pieces of evidence by Mrs Tucun was minor and was not something which the Commission was required to closely consider in the assessment of Mrs Tucun’s evidence as a whole or with respect to an assessment of the evidence of Ms Williams about the meeting on 31 March 2005.

The Evidence About the Locks

77       At paragraph [29] above I have set out the evidence of Ms Williams relevant to this topic.

78       Mrs Tucun was not asked about the presence of Mr Taylor and the stockman Alan at the abattoir on the evening of 30 March 2005.

79       Mr Tucun was cross-examined on this issue.  He said that Mr Taylor at the time lived approximately 20km from the abattoir.  He said that he did not telephone Mr Taylor that evening but did not know whether Mrs Tucun did.  Asked whether he could explain why Mr Taylor and Alan attended at the abattoir that night, Mr Tucun answered that they were “both involved in livestock so I would assume that it was in regard to livestock”.  (T240).  On being further questioned Mr Tucun could not offer an explanation as to why this would have occurred about 10 o’clock in the evening.  Asked as to why Ms Williams had to wake up Alan to let her out of the premises when her evidence was that prior to that she had a “key to the padlock”, Mr Tucun said that he did not know and that Ms Williams would have to be asked about this.  (T240).  This was not a proper question to have put to Mr Tucun because the evidence of Ms Williams was not that she had a “key to the padlock”.  The next question put to Mr Tucun was also not a proper question.  The question asked why there had been a “change in padlocks and Alan’s staying there and they have to see him to get out”.  (T240).  The question was not proper because the evidence did not establish there had been a change in any padlocks.  Mr Tucun answered that he did not know anything about the padlocks.  Mr Tucun also gave evidence that Alan had stayed at the abattoir on quite a few occasions.  (T240).

80       The appellant submitted that there had been a “changing of the padlocks and the installation of a night watchman at a late hour”.  It was submitted that this was a relevant piece of evidence which was required to be considered by the Commission and that the Commission ought to have made what the appellant described as a Jones v Dunkel [(1959) 101 CLR 298] inference about the failure of the respondent to call Mr Taylor on this issue.

81       I do not accept any of these propositions.  The evidence did not establish that there had been a change of the padlocks on 30 March 2005.  The evidence of Ms Williams went no further than establishing there was a change of practice.  This was that in the past the gate was usually open but on that night she would be locked in and need to wake Alan up to let her out.  The evidence did not establish that Ms Williams formerly had a key to the lock.  If the locking mechanism of the gate was a padlock and this was usually open, Ms Williams could as she said in her evidence, exit through the gate and lock it on her way out.

82       In my opinion the evidence about the locks was not a piece of evidence which the Commission was in error in failing to consider in its assessment of whether there was a dismissal.

The Notice of Answer and Counter Proposal

83       The respondent filed a Notice of Answer and Counter Proposal prior to the hearing by the Commission.  This document said it was filed by the respondent, care of the Australian Meat Industry Council of WA.  The document was signed by “MJ Darcy”.  The particulars to the document were in an attached schedule.  The fourth and fifth paragraphs of the schedule were in the following terms:-

“The company became most concerned with matters raised by various government agencies and departments as to the operations at Gin Gin [sic] as their license for exporting meat to America was in jeopardy. On the 30th March 2005 a meeting was scheduled with two of the Directors of the Company to discuss their concerns with the applicant in relation to the operations at Gin Gin [sic]. On speaking with the applicant the Directors advised that they had a number of concerns, which they wish to discuss with the applicant. Many of these being, loses [sic] that were unsustainable, AQIS and AUS-Meat concerns and a number of other issues.  However, the applicant became agitated and refused to discuss any issues and stated he did not wish to discuss anything and advised the Directors that the company was a lemon and that his creditability could be damaged by working there and that he would leave immediately.

As the applicant refused to discuss any issues and stated he would leave immediately and was derogatory of the company and its operations, the respondents found themselves in no other position to advise the applicant that they would terminate his services and pay him one months wages in lieu of notice. This amount has been forwarded into the applicant’s bank account accordingly.”

84       It can be seen that there is some discrepancy between these two paragraphs in that the first asserts the appellant said “he would leave immediately” whereas in the second the respondent advised the appellant “they would terminate his services”.

85       The appellant submitted on the appeal that the Commission had not properly taken into account how the document contained an assertion that the appellant had been terminated, when it was prepared by Mr Darcy and he was involved in advising Mr and Mrs Tucun that they could not at the meeting on 30 March 2005 terminate the appellant’s employment.  It is correct that this issue was not referred to in the reasons for decision of the Commission.  In my opinion however this was something which was resolved during the course of the hearing and the Commission was not obliged to refer to it in its reasons.

86       During the cross-examination of the appellant on 13 October 2005 the version of events about the 30 March 2005 meeting, which was later given by Mr and Mrs Tucun in their evidence, was put to the appellant.  (T85/86).  The hearing on 13 October 2005 concluded when Mrs Tucun was part way through her evidence but she had not at that time given evidence about what happened at the meeting on 30 March 2005.

87       On 6 February 2006 the appellant brought an application before the Commission in part seeking orders that the respondent be directed to indicate exactly what its defence was.  In this context the appellant referred to the fifth paragraph of the schedule to the Notice of Answer and Counter Proposal and contrasted it with the cross-examination of the appellant at T85.  In response to this application, Mr Darcy referred to the fourth paragraph of the schedule and accepted the next (fifth) paragraph was a contradiction of this.  Mr Darcy said that in the fourth paragraph it was clearly indicated that the appellant had offered to leave.  (T106).  Mr Darcy said of the fifth paragraph “maybe the choice of words is probably not correct”.  (T106).  Mr Darcy then went on to say that it had always been the contention of the parties (presumably meaning the respondent) that the appellant “did terminate” (presumably meaning resign).  Mr Darcy said this had been explained at the first conciliation conference.  Mr Darcy also submitted that the words should have been used that the respondent accepted the appellant’s termination (presumably meaning resignation).  Mr Darcy accepted that those words had not been used in the schedule but said this had been the intent.  The Senior Commissioner asked whether this clarified matters for the appellant’s advocate.  He answered that it did.  (T106).

88       The issue was raised however with Mrs Tucun in her cross-examination on 19 April 2006.  (T166).  The fifth paragraph of the schedule to the Notice of Answer and Counter Proposal stating the respondent “would terminate” the appellant’s services was put to Mrs Tucun.  She said she could not comment on it and said “I don’t recall seeing”, before the appellant’s advocate interjected with the next question.  It was then put to Mrs Tucun that she gave instructions to Mr Darcy.  Her response was “I asked [sic] Mr Darcy to comment on that”.  (T166).  Mr Darcy then said he thought the matter had been dealt with previously and that as he had said at that time he made an error.  Mr Darcy said he did the document on his own and had admitted he had made an error in the wording of the document and he thought the matter was clarified at the previous hearing where he had given an explanation of what had transpired.  The Senior Commissioner then said that “your friend knows as well as you do that they are not pleadings, and I know that too”.  The Senior Commissioner then said that “it doesn’t help his cross-examination.  Sounds really good to the audience, but it doesn’t mean much”.  (T167).  The cross-examination then moved to another topic.

89       The issue arose again during the cross-examination of Mr Tucun.  At the time of this cross‑examination, Ms Williams had not as yet been called to give evidence but the appellant’s advocate indicated he had a witness statement from her and wanted to cross-examination Mr Tucun about it.  There was some discussion about when the witness statement had been provided to the respondent.  During submissions on this issue the appellant’s advocate said that it was not apparent until 6 or 7 February 2006 that there was any issue about whether or not the appellant was terminated.  (T199).  It was asserted that the Notice and Answer and Counter Proposal had “made it clear that he was terminated”.  It was submitted that it was not until Mrs Tucun gave evidence the appellant knew the respondent’s position was that the appellant had resigned.  Mr Darcy objected to this statement and said the appellant’s advocate had known of the respondent’s position as it had been clearly stated at a conciliation conference.  The Senior Commissioner then looked at and read from a report on the conference by a Deputy Registrar.  The note which was read recorded the respondent’s position as consistent with that which had been taken throughout the hearing.  The appellant’s advocate accepted the note of the conference.  (T200).  The cross-examination of Mr Tucun then moved on.

90       At the commencement of the hearing on the next day (20 April 2006), the appellant’s advocate said he had taken the opportunity overnight to check his notes in relation to the conference and had not recorded anything about what the respondent’s defence was.  He indicated again however that he was prepared to accept what the Deputy Registrar had recorded at the conference.  An apology was provided for any misleading of the Commission.  This was accepted by the Senior Commissioner. 

91       In my opinion the contradictory aspects of the Notice of Answer and Counter Proposal were explained by Mr Darcy during the course of the hearing.  He said that the wording in the document was his and that he had made an error.  There was no evidence the document was endorsed by Mr or Mrs Tucun.  The contents of the document did not therefore reflect upon the credibility of Mr or Mrs Tucun.  In the circumstances, how Mr Darcy made the error was not an issue which the Commission was required to entertain as possibly reflecting upon the credibility of Mr or Mrs Tucun. 

92       In my opinion there is no cogency in this point.

Payment in Lieu of Notice

93       The evidence of Mrs Tucun was that she had taken advice from Mr Darcy prior to the meeting with the appellant on 30 March 2005.  Mrs Tucun said she made notes of the points made by Mr Darcy in the page of her diary for 21 March 2005.  One of the diary notes was “1mth in lieu of notice (could do 2 wks)”.  The appellant contended that this diary note was inconsistent with an intention not to terminate the employment of the appellant.  Mrs Tucun was cross-examined about the diary entry.  Mrs Tucun said that Mr Darcy had made it clear the respondent could not dismiss the appellant or force his resignation but that if the appellant chose to leave, Mr Darcy mentioned “what would we have to pay him”.  (T159).  It was put to Mrs Tucun that Mr Darcy “told you you could terminate him by giving him pay in lieu of notice”.  This was not accepted.  Mrs Tucun said Mr Darcy “was very emphatic” that the respondent could not terminate the appellant’s employment and could not force his resignation.  (T160).  Asked again why the note referred to one month in lieu of notice, Mrs Tucun answered that it was in case the appellant chose to leave, that was what Mr Darcy felt he was entitled to.  Mrs Tucun added that in fact, Mr Darcy said two weeks.

94       Mrs Tucun’s evidence-in-chief about her conversation with the appellant as to what he would be paid upon his resignation at T117 has been summarised earlier.

95       The appellant submitted the evidence about payment in lieu of notice was important and had not been considered by the Commission.

96       In its reasons the Commission did record at paragraph [20] that Mrs Tucun’s evidence was, after the appellant said he would leave immediately, that “in accordance with the industrial advice she had been given she offered him one month’s pay”.  At paragraph [22] of the reasons the Commission in summarising Mr Tucun’s evidence also referred to the advice taken by the respondent from their “industrial advisors” and that during the meeting with the appellant of 30 March 2005, it was said he was to be given a month’s pay.

97       The Commission did not specifically discuss the cross-examination of Mrs Tucun on this issue in the reasons but as stated earlier said that it accepted her evidence despite the “vigorous attack by the” appellant’s advocate.

98       I am not of the opinion that this issue was of such importance that it needed to be more specifically considered by the Commission.  The note made by Mrs Tucun in her diary about payment in lieu of notice indicated that she discussed with Mr Darcy the possibility of the appellant’s employment ceasing, as she admitted in her evidence.  The note reflected what Mrs Tucun said Mr Darcy advised her she should do in the event that the appellant resigned.  There was no evidence which contradicted this.  The appellant argued that an experienced industrial relations practitioner would not have advised Mrs Tucun of any requirement to pay a month in lieu of notice if an employee resigned, or that the respondent could not terminate the appellant’s employment.  Quite apart from there being no evidence before the Commission as to Mr Darcy’s level of knowledge and experience, I do not accept that the Commission could in effect take judicial notice that an experienced advisor would not, in the circumstances, have given this advice.  Mrs Tucun’s evidence about what she agreed to pay the appellant after he resigned from his employment and her description of it as being a payment “in lieu”, was consistent with the advice she said she received from Mr Darcy and recorded in her diary.  In my opinion the Commission was not required to consider this evidence more specifically than is recorded in the reasons.

99       The appellant also made submissions about another point noted by Mrs Tucun in the record of advice given by Mr Darcy.  Noted as point 5 was: “protect computers, paperwork, plant integrity”.  Point 6 was “guard?”.  Mrs Tucun was cross-examined about why Mr Darcy had recommended they take a guard.  Mrs Tucun answered that “given the volatility of [the appellant’s] personality, and given the incidents that happened at the plant as they were reported to me, Mr Darcy suggested that we protect the plant and the computers and the paperwork should [the appellant] go out of control again”.  (T159).  This evidence was consistent with other evidence given about the appellant’s volatility and other incidents that had occurred.  Mrs Tucun was not further cross-examined on this issue.  Given her explanation, I am not satisfied that point 5 of the note sufficiently indicated a discussion with Mr Darcy about, or an intention on behalf of Mrs Tucun to, terminate the employment so as to require explicit consideration by the Commission.

Conclusion - Ground 1

100    I have now considered each piece of evidence relied on in support of this ground.  I do not think they lead to a conclusion that the ground should be upheld.  The ground does not gain any strength either from a collective consideration of them.

101    I do not think the evidence and submissions relied upon by the appellant, considered as a whole, demonstrate the Commission erred in failing to properly consider the evidence or in finding there was no dismissal.

102    In my opinion ground 1 has not been established.

Ground 2 - Glaring Improbability of Mr and Mrs Tucun’s Evidence

103    As set out earlier, the second ground of appeal was in effect that the evidence of Mr and Mrs Tucun about the circumstances of the appellant’s cessation of employment was glaringly improbable and the Commission had therefore erred in accepting it.

104    Again it is necessary to consider each of the aspects of the evidence relied upon by the appellant in support of this ground.  They will need to be assessed both individually and for their cumulative effect.

Appellant’s Character

105    Firstly, it was submitted it was improbable that a person with the character of the appellant would have decided to resign simply because Mr and Mrs Tucun wanted to discuss with him questions relating to their serious concerns.  It was submitted that this was inconsistent with the appellant’s character as the respondent had attempted to portray in the appellant’s cross‑examination and the evidence of Mrs Tucun including her discussions with Dr Godwin and other people.  It was submitted that the intent was to “show the appellant as an intimidating bully who gets knives thrown at him, tried to run down a management representative in a utility, failed to respond at all adequately to telephoned concerns for a month and was so apoplectic in nature they felt he was at risk of a stroke or heart attack or likely to harm someone”.  In my opinion this point is not established.  It is correct that part of the respondent’s case was that the appellant behaved unpredictably and erratically at times.  His decision to resign from employment at the commencement of the meeting on 30 March 2005 was not however inconsistent with this.  It was consistent with a person of unpredictable behaviour.  In my opinion this point does not demonstrate any glaring improbability of the evidence of Mr or Mrs Tucun.

Mrs Tucun’s Diary Notes

106    The appellant also made submissions about Mrs Tucun’s diary notes of what she intended to and did discuss with the appellant at the meeting on 30 March 2005.  Reference was made to T157 where Mrs Tucun was cross-examined about her diary entry of the points of concern which she intended to raise with the appellant.  When questioned about her note as to production targets, Mrs Tucun said that Mr Tucun could give more specific answers and also said that “we compiled these bullets points together”.  Mrs Tucun said that she wrote the bullet points in conjunction with Mr Tucun.  (T158).

107    The appellant submitted this evidence was not supported by that of Mr Tucun.  Reference was made to his cross-examination at T183.  During this evidence Mr Tucun said he had no input into the diary entries on the page for 30 March 2005.  These were the notes made by Mrs Tucun about the intended discussion points with the appellant.  Mr Tucun also said that he believed these notes were made after the meeting with the appellant.  (T184).  Mr Tucun also gave evidence however that the items noted by Mrs Tucun were discussed between them over a period of time.  In my opinion this is not a major point which does not seriously impair the evidence of Mr or Mrs Tucun.

108    It was also submitted that Mr Tucun did not support Mrs Tucun’s evidence about when she made the diary notes of the meeting with the appellant on 30 March 2005.  Mrs Tucun’s evidence was that these notes were made immediately after the cessation of the first part of that meeting.  Mr Tucun’s evidence was somewhat imprecise about when Mrs Tucun made the notes of the meeting.  Under cross-examination at T195 he said that he could not remember but presumed the notes were made that night in the diary.  He said he remembered Mrs Tucun making notes and he helped her with compiling the notes.  He said however that he could not remember whether she wrote the notes on “a paper first and then put it on here.  I can’t remember”.  (T195).  It was then put to Mr Tucun that she might have written the notes on a pad and then transferred it later.  Mr Tucun answered that he could not remember.

109    This evidence falls short of any contradiction between the evidence of Mr Tucun and that of Mrs Tucun.  Mr Tucun’s lack of recollection and suggestion of the possibility that the notes could have been written on another piece of paper and then transferred into the diary did not undermine Mrs Tucun’s evidence on this issue.  The evidence did not undermine the finding of the Commission that the notes made by Mrs Tucun were almost contemporaneous and “corroborative” and should be given weight.  (Reasons at paragraph [26]). 

110    The appellant also cast doubt upon the reliability of the evidence of Mrs Tucun because of the lack of diary notes about other matters of importance at or around the same period of time.  It was argued in effect that this was inconsistent with Mrs Tucun’s description that her diary notes were contemporaneous and comprehensive.  Reference was made to the evidence-in-chief of Mrs Tucun at T106.  Mrs Tucun was asked as to whether she kept a “conclusive diary of day-to-day events with regards” to the operations at the abattoir.  Mrs Tucun’s answer was simply that “I kept a diary”.  Mrs Tucun agreed with the proposition that she recorded day-to-day issues in relation to the management of the operations.  She agreed with the proposition that they were “pretty comprehensive type notes that you maintained”.  (T106).  Mrs Tucun also agreed that the notes were made at the time the telephone conversations and discussions were held.  It was submitted that Mrs Tucun’s credibility was undermined by the fact that there were not extensive notes made in her diary as to important matters before and after 30 March 2005.  Mrs Tucun accepted in her evidence that on this basis the notes were not “comprehensive, contemporaneous, day-to-day diary entries in relation to issues at the plant”.  (T137).  Mrs Tucun then said that she really started making notes from the date she became aware there was a problem with the appellant which occurred on 25 February 2005.

111    Mrs Tucun was also asked about the lack of diary notes for the period subsequent to the cessation of the appellant’s employment.  Mrs Tucun said she did not always make notes of events happening in relation to the new general manager but she added she got a number of written reports from him as well.  (T157).

112    Mrs Tucun was also cross-examined about her lack of notes as to the appointment of Mr McAuliffe.  Mrs Tucun said she did not recall why there were no entries in her diary about her discussions with Mr McAuliffe and the terms of his employment.  (T168).

113    In my opinion the lack of diary entries on these issues is not a sufficiently important point to seriously undermine Mrs Tucun’s evidence about the purpose of the appointment of Mr McAuliffe or what happened at the meeting with the appellant on 30 March 2005. 

114    Mrs Tucun was also asked about the lack of diary entries prior to 25 February 2005.  She explained that up until that point the respondent thought the plant was in very good hands.  (T137).  In my opinion this answer satisfactorily answers the criticism by the appellant as to the lack of notes made by Mrs Tucun prior to 25 February 2005.

115    There were other points made in the appellant’s written submissions about the lack of record in Mrs Tucun’s notes about a number of matters.  They are set out in paragraph [57] of the written submissions.  I have considered each of these but in my opinion they do not individually or cumulatively have the effect that the believability of Mrs Tucun’s evidence was seriously impaired.

116    In making this statement I have regard to the fact that the diary notes do record the following (the notes use the word “Peter” to describe the appellant):-

(a) On 3 March 2005 there is a note of a conversation with the appellant.  It indicates questions being asked by Mrs Tucun about staff training and AQIS.  There was also an enquiry about “7 pallets (1300) sheepskins thrown away – rotten”.  The notes record the appellant not discussing the matter, “had to go”.

(b) On the same date there is a note of an enquiry to the appellant as to whether he needed help or advice from a Mr Dave Arnold.  The note records that the appellant became cross and said “everybody is an expert + he doesn’t need help”.  The note also records that the appellant “had to go”.

(c) On 4 March 2005 there is another note of a conversation which makes reference to the appellant having “no time to do skins”.  The note records the appellant as being erratic and cranky.  The note records the appellant being told of “losses to mid Feb over 125,000”.  The note records the appellant being evasive about the 7 pallets of rotten skins.  “Suggested advice from Dave Arnold” is also recorded, and the appellant saying “no interest”.  The note also records “asked about AQIS and Aus-Meat”.  The note records the appellant advising “they are happy”.  The note also records “asked about another re-work – said hard to get labour in Gingin”.  This note also records the appellant as being “very cranky”.

(d) On 8 March 2005 there is a record of a conversation with the appellant in which animal welfare issues were mentioned.  Other production issues were recorded as being discussed.

(e) On 9 March 2005 there is a record of a conversation with the appellant where he was told “AQIS not happy – said “piss anty””.  The note also records “I am very worried – wouldn’t discuss getting annoyed”. 

(f) On another page of the diary on which the date is not reproduced, there is a record of a conversation with the appellant where Mrs Tucun records her expression of concern about a lack of hygiene.  The appellant responded according to the record “unable to get labour – no one wants to work”.

(g) On 18 March 2005 there is a record of conversation with the appellant about him being very upset with “Lindsay”.  This note records that the appellant “raved on approx 10 minutes with no break (almost incoherent with rage)”.  The note records Mrs Tucun encouraged the appellant to settle down. 

(h) On 19 March 2005 there is a record of a conversation with the appellant about 30 minutes later with it being noted that the appellant was a different person.  The note records the appellant as saying “not to tell Lindsay about what was said”.  The note records Mrs Tucun told the appellant to go home and was concerned about his health. 

(i) On 23 March 2005 there is a record of a conversation with the appellant in which Mrs Tucun told him she was worried about the quality of product numbers and his health.  The notes records the appellant seemed to be agitated and saying he was fine and wanting to know who had been talking.

117    It was also submitted that Mr McAuliffe was not listed in the things recorded in Mrs Tucun’s diary that she and Mr Tucun wished to discuss with the appellant.  Whilst this is relevant to assessing Mrs Tucun’s evidence it is not of major importance in my opinion.

118    It was also submitted that the omission from the diary entry of the advice received from Mr Darcy of any reference to putting the appellant on notice of the possible consequences of not addressing the concerns Mr and Mrs Tucun allegedly held, compellingly suggested that an intention to terminate the appellant’s employment had been formed.  In my opinion this conclusion does not follow.  It could be equally argued that a lack of any note about an intention to terminate the employment of the appellant suggests that no such intention was formed at the time of taking the advice from Mr Darcy.  The point raised is an equivocal one and does not assist in establishing a lack of acceptability of the evidence of Mr and Mrs Tucun. 

Lack of Documents

119    The appellant also asserts there was a lack of explanation from the respondent as to why there was not other documented evidence of the respondent’s concerns about the appellant’s management of the abattoir.  For example, it was submitted there were no faxes, e-mails or memorandums sent to the appellant raising any of these concerns.  Mr Tucun was asked about this and said that they were discussing matters with the appellant and also did not want to provide him with all of the information because they did not want to discourage him.  Mr Tucun said that he used to tell the appellant the results were ugly but did not want to provide him with the magnitude of the losses.  (T187).  The tenor of Mrs Tucun’s evidence was also that her practice was to raise matters with the appellant in discussions rather than in written form.  In my opinion this point does not render her evidence or that of Mr Tucun as lacking in reliability.

The Appellant’s Non Involvement in Engaging Mr McAuliffe

120    The appellant also submits that there was no reasonable explanation why, if the appellant had authority with respect to hiring staff, as had been the evidence of Mrs Tucun (T128), that the appellant was not involved with Mrs Tucun in the recruitment of Mr McAuliffe to assist the appellant and appease the regulators.  Mrs Tucun’s evidence was that this matter was to be raised in the meeting with the appellant on 30 March 2005.  (T168).  By this time however Mr McAuliffe had already been engaged.  I accept it might be thought unusual that the issue of Mr McAuliffe’s appointment was not discussed with the appellant.  However this needs to be considered in the context of Mrs Tucun’s evidence about her concern for the state of the abattoir and the appellant and his lack of receptiveness to suggestions of assistance.  In those circumstances it is not improbable that Mrs Tucun would engage the services of Mr McAuliffe and then seek to discuss with the appellant at the meeting on 30 March 2005 the particular role he was to play.

Unannounced Arrival

121    The appellant also argued there was no reasonable explanation as to why Mr and Mrs Tucun arrived at the abattoir unannounced to see the appellant to discuss their concerns.  Mrs Tucun gave evidence about this in cross-examination at T152.  She agreed that although she had spoken to the appellant on the morning of 30 March 2005 on the telephone from Sydney she did not tell him they were coming to Perth.  She said she “felt it was important to go and speak to [the appellant] face to face”.  Mrs Tucun went to continue with this answer but was interrupted with a question: “Surprise him?”.  Mrs Tucun answered: “Not surprise him but sit down and talk to him calmly and get some direct answers”.  (T152).  Mr Tucun does not seem to have been cross-examined about this.  I accept that Mrs Tucun’s evidence does not entirely explain why no notice was given to the appellant of the meeting of 30 March 2005.  This does not of itself or in combination with other factors persuade me however that her evidence was glaringly improbable.  Mrs Tucun said she wanted to speak with the appellant face to face about these matters.  If she advised him by telephone in advance that she wanted to meet with the appellant it is quite likely that the discussion would have moved on to what those matters were.  This would have created difficulties for Mrs Tucun.  Also if she had sent written notice of the intended meeting with the appellant to him it may have also lead to an enquiry as to what it was about.

The Points Raised in Ground 1

122    The appellant also relied upon points made earlier in these reasons such as the evidence of Ms Williams, the evidence about the locks, the diary notes of the advice given by Mr Darcy, Mrs Tucun’s evidence about giving the appellant one month’s pay in lieu of notice and the evidence from Mr and Mrs Tucun they were given instructions by Mr Darcy that they could not terminate the appellant’s employment to support the contention that Mr and Mrs Tucun’s evidence was glaringly improbable.  In my opinion none of these pieces of evidence individually, collectively or together with the other points referred to in this ground leads to the conclusion that the Commission erred in accepting the evidence of Mr and Mrs Tucun, on the basis that it was glaringly improbable.

Conclusion – Ground 2

123    After giving consideration to all of the points raised, taken together, I do not think they show the Commission erred in accepting the evidence of Mr and Mrs Tucun that there was no dismissal.  In my opinion, their evidence has not been shown to be glaringly improbable.  This ground therefore is not established.

Ground 3 - Evidence and Credibility of Witnesses

124    The written submissions on this ground repeat points referred to earlier about the Commission’s findings with respect to Mr McAuliffe’s lack of the appellant’s character traits and the evidence that he was recruited to be the general manager.  These issues do not require separate consideration to that given earlier.  The ground is not established in my opinion.

Conclusion

125    For the reasons set out above in my opinion none of the grounds of appeal have been established and the appeal must therefore be dismissed.

COMMISSIONER P E SCOTT:

126    I have had the benefit of reading the draft reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing to add.

COMMISSIONER J H SMITH:

127    I have had the benefit of reading the reasons to be published by the Acting President.  For the reasons his Honour gives, I agree the Appeal should be dismissed and I have nothing further to add.