WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MARK GEORGE CURTIS

APPELLANT

-and-

Ausdrill Limited

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Chief Commissioner A R Beech

 Senior Commissioner J F Gregor

HEARD Wednesday, 20 September 2006

DELIVERED Thursday, 26 October 2006

FILE NO. FBA 20 OF 2006

CITATION NO. 2006 WAIRC 05656

CatchWords Industrial Law (WA) - Appeal against order made by Commission - Alleged harsh, oppressive or unfair dismissal - Whether Commission properly assessed amount of compensation to be paid to appellant - Issue of mitigation - Whether appellant took reasonable steps to find alternative employment after dismissal - Whether loss of wages suffered by appellant “caused by the dismissal” - Construction of ss23A(6) and (7) of the Industrial Relations Act 1979 - Appeal dismissed - Industrial Relations  Act 1979 (WA) (as amended), s23A, s23A(5)(b), (6), (7)(a), (7)(c), s26(1), s29(1)(b)(i), s49, s49(5) - Labour Relations Reform Act 2002, Part 7

Decision Appeal dismissed

Appearances

Appellant  Mr G McCorry, as agent

Respondent Mr A Cameron, as agent

Reasons for Decision

THE ACTING PRESIDENT AND SENIOR COMMISSIONER J F GREGOR:

The Appeal

1          This is an appeal 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 19 June 2006.  The order was made after a hearing on 11 May 2006, of the appellant’s application for a remedy in respect of his alleged harsh, oppressive or unfair dismissal from his employment with the respondent.  The application was referred to the Commission by the appellant under s29(1)(b)(i) of the Act.  The appellant sought orders from the Commission under s23A of the Act.

2          The appellant had been employed with the respondent as a driller, based at the St Ives mining operation at Kambalda in Western Australia from 17 February 2003 until 13 March 2006.  On the latter date, as the Commission found, the appellant’s employment was terminated after a verbal disagreement between the appellant and the respondent’s site manager.

3          The order which was made by the Commission followed the publication of reasons for decision on 14 June 2006.  The order made by the Commission was that the Commission “hereby –

1 DECLARES that the applicant was harshly, oppressively and unfairly dismissed from his employment as a Driller on or about 13 March 2006.

2 DECLARES that reinstatement or re-employment is impractical.

3 ORDERS the respondent to pay to the applicant the sum of $500.00 as compensation for loss less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid within 21 days of the date of this order.”

4          The appeal which has been instituted is against order 3, with respect to the amount of compensation ordered to be paid by the respondent to the appellant.  The respondent has not appealed against the first order made and neither party has questioned on appeal the making of the second order.  The appeal raises the question of whether the Commission properly assessed the amount of compensation to be paid to the appellant.

The Powers of the Commission

5          The powers of the Commission in determining claims of harsh, oppressive or unfair dismissal are contained in s23A of the Act which is as follows:-

“23A. Powers of Commission on claims of unfair dismissal

(1) The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.

(2) In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

(a) at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

(b) had been so employed for a period of less than 3 months.

(3) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(4) If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers —

(a) the employer has available; and

(b) is suitable.

(5) The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —

(a) an order it considers necessary to maintain the continuity of the employee’s employment;

(b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

(6) If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

(7) In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —

(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal;

(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

(c) any other matter that the Commission considers relevant.

(8) The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.

(9) For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.

(10) For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.

(11) An order under this section may require that it be complied with within a specified time.

(12) The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.”

The Hearing and Relevant Evidence

6          As stated the Commission heard the application on 11 May 2006.  The application was heard in Kalgoorlie.  At the hearing the appellant gave evidence on his own behalf and Mr Graeme Davis gave evidence for the respondent.  Mr Davis was the site manager referred to earlier.  The main evidence at the hearing which is relevant to the appeal is the evidence by the appellant about what he did to obtain alternative employment after his dismissal on 13 March 2006.

7          In examination-in-chief, the appellant said that after he was dismissed and taken home from the mine site he told his partner what had happened when she returned home from work that night.  (T16).  The appellant explained that he had been having problems with his partner and they had “quite an argument” that night.  (T17).  The appellant was asked what his state of mind was at the time and he said that for “probably the first week I was quite stressed, I didn’t sleep at all much”.

8          The appellant was asked what he decided to do in relation to his termination.  He said that “all the mines in the area are underground and I have never worked underground, so I didn’t really have any intentions of doing so.  So I decided within a couple of weeks that I’d have to relocate to Perth and … either find employment in the city or … do fly in, fly out”.  (T17).  The appellant answered no, to a question of whether he had any other skills which would have been useful “above ground”.  The appellant also indicated the only open pit in the area was the site he had worked on.

9          The appellant was asked about relocating to Perth.  The appellant said he and his partner were buying their house in Kambalda, decided they were going to sell the house and on 28 March 2006 “got the real estate to sign the paperwork”.  (T17).  We infer that this was the “paperwork” necessary to appoint a real estate agent to sell the house on behalf of the appellant and his partner.  The appellant then said that he had to “get the house up to scratch” so he spent the next couple of weeks painting.  The appellant also said that his partner was not going to relocate with him to Perth, they had decided to separate and she was being transferred within the company that she worked for to north of Sydney.  The appellant also said that he had to fix his house up by doing things like gardening, fixing leaking taps, painting the bathroom and “things like that”.  (T18).  The appellant also said that the whole house was re-carpeted but this had been booked about a month before his dismissal.  The appellant said he had to sell his furniture because he did not have the money to relocate it to Perth and so “garage saled” it.  (T18).  With respect to his partner, the appellant said she had to give a couple of weeks notice of her transfer as she was the manager of the shop where she worked and had a stocktake sale on 18 April 2006.  The appellant said they decided they would leave “as soon as she had done that”.  (T18).  The appellant also said he had to find homes for some animals which they had.  The appellant then said they relocated to Perth on 22 April 2006.  The separation from his partner occurred on the next day when she travelled to Sydney by aeroplane.

10       The appellant was then asked when he found out about a conference that was scheduled with respect to his application to the Commission.  He said that he found out that week by receiving a letter saying it would be on 18 May 2006.  The appellant said it was subsequently brought forward so that it occurred the week prior to the hearing.

11       The appellant was asked whether he had sought or obtained other employment.  The appellant said he had found casual employment recently, starting on 5 May 2006.  The appellant said he had been “speaking to people about trying to get some work but I wasn’t sure what was happening with all of this and where I was going to live and so …”.  (T19).  The answer was interrupted by the next question from his agent who asked what was the nature of the casual employment.  The appellant answered that it was 20 to 30 hours a week as a handy man and the appellant was being paid $35 per hour.  The appellant said he had not been paid as yet because he had only done a couple of days work.  The appellant then answered some questions about returning to work with the respondent.  The appellant also said that he did not have a problem living in single person’s quarters or working on a fly in/fly out basis on mine sites.

12       Before turning to the appellant’s cross-examination we will mention the relevant evidence before the Commission about the appellant’s income and termination payments.  It was not in dispute before the Commission that the appellant’s income when employed by the respondent averaged $1,900 per week.  It was also the common position of the parties before the Commission that the appellant had been paid one week’s “base pay” in lieu of notice.  When the appeal was heard however it was common ground that no payment in lieu of notice was made until July 2006 when three weeks’ pay in lieu of notice was provided.

13       The relevant cross-examination of the appellant was at T26-27.  It was first put to the appellant that his skill as a driller was one that is in very much demand.  The appellant answered: “yes, it is at the moment”.  It was then put to the appellant that if he chose to obtain work as a driller he could obtain that work quite readily.  The appellant agreed with this proposition.  It was put to the appellant that he put restrictions on the sort of work that he was prepared to do and this had stopped him getting a job as a driller.  The appellant answered that he could get one but had to get his affairs in order before he could move on with his life.  The appellant then agreed with the proposition that he did have a valuable skill, acknowledged the present skills shortage and agreed that his skill was one that was “very much in demand out in the marketplace”.  It was then put to the appellant that he could very readily get himself another job as a driller.  The appellant said he would have some trouble using the respondent as a reference because he had been trained as a driller by the respondent and his only experience in working as a driller was for them.  It was then put to the appellant that “the shortage is such that people are frankly scrambling for drillers aren’t they”.  The appellant answered: “They are”.  There was no further cross-examination of the appellant.  We note that the cross-examination suffers to some degree by a lack of specificity in the questions.  For example, the questions did not articulate the “marketplace” which was being referred to or identify with precision where the appellant could readily obtain work as a driller.  It was not clarified for example whether this referred to Kalgoorlie or the state of Western Australia as a whole and in particular at mines in the northwest of the state.

14       There was no re-examination of the appellant which was relevant to the present appeal.

15       In his closing, counsel for the respondent made submissions about the quantum of compensation which should be awarded if a finding was made that the dismissal was unfair and as counsel urged, reinstatement or re-employment was found to be impracticable.  Counsel submitted that compensation for an unfair dismissal was not meant to be paid time off work while somebody attends to personal matters.  It was submitted that it was meant to be compensation for the loss that has actually been inflicted and that is the loss after there has been proper attempts at mitigation.  Counsel submitted there was no proper attempt at mitigation and if the appellant had sought to do so he could have almost seamlessly moved between jobs.  It was submitted therefore that any compensation should be extremely small.

16       In his closing, the appellant’s agent, with respect to compensation, conceded that the appellant was “very employable”.  It was submitted however that he could still be compensated for the losses incurred to date because while he has not actively sought work in his chosen field he had the problem of relocating himself “and his family and all that involves to another environment”.  Reference was made to the evidence about what the appellant had to do to relocate to Perth.  It was submitted that the period of time was not excessive because the appellant was terminated on 13 March 2006 and he managed to relocate to Perth on 22 April 2006.  It was submitted that the appellant was notified shortly thereafter of his application being set down for conference.  It was submitted it was not practicable for the appellant to be going off to a mining site at the end of April 2006 if he has to return for a conference on 18 May 2006, and fortuitously the conference was then brought forward.  It was submitted the appellant had immediately sought casual work to carry him over to the present period of time.

17       The submission was made that the appellant could obtain other employment in the mining industry on a fly in/fly out basis but would first have to give notice, of perhaps a week, to end his present employment so it was unclear as to when he could actually get out to a site and commence work.  It was submitted there was a period of at least eight weeks for which the appellant should be compensated.

18       Although there was no evidence before the Commission about the amount of income which the appellant would have received if he was employed as a driller at another mine site in the future, the hearing seems to have proceeded on the basis that this would be roughly equal to the amount he had been paid when employed by the respondent.  It was not submitted otherwise on the appeal.

The Reasons of the Commissioner

19       The Commissioner’s reasons for decision set out and considered the facts which lead him to conclude the dismissal of the appellant had been harsh, oppressive and unfair.  The Commissioner then considered what remedy should be granted.  The Commissioner said that reinstatement or re-employment was not tenable.  The Commissioner then considered the question of compensation.

20       At paragraph [27] the Commissioner said the appellant’s agent had “attempted to explain the [appellant’s] failure to mitigate his loss given his personal circumstances.  Counsel for the respondent argued however, that if any order for compensation for loss is to be made by the Commission, in the circumstances it should be nominal”.

21       The Commissioner then referred to the powers under s23A of the Act and quoted s23A(6) and (7).

22       At paragraph [29] the Commissioner said that principles relevant to the making of findings as to loss of injury and orders for compensation were discussed by the Full Bench in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8.  The Commissioner referred to the amendments made to the Act, with respect to the power to make orders for compensation, by the insertion of s23A, effected by the Labour Relations Reform Act 2002.  The Commissioner then said at paragraph [30] that he remained of the view he expressed in Bogunovich that in assessing compensation for loss and injury, the Commission should not have regard to the conduct of the employee or employer which led to the dismissal itself.

23       At paragraph [31] the Commissioner said:-

“Whilst it has always been accepted by the Commission that an employee in an unfair dismissal claim is required to mitigate his or her loss, Parliament has now made that requirement express in s 23A(7)(a) of the Act, following the amendments made in 2002.  It is also the case that despite the duty to mitigate, the onus of proving a failure to mitigate is upon a respondent in such a claim: Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VR 507; Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711; Bogunovich at 8 and 13.  An employee who is wrongfully dismissed and unreasonably acts by failing to mitigate his loss would only be entitled to nominal damages: Brace v Calder [1895] 2 QB 253; Beckham v Drake (1849) 2 HLC 579 at 607-608.”

24       At paragraph [32], the Commissioner has said he was not satisfied the appellant had taken any reasonable steps to mitigate his loss.  The Commissioner said the appellant had conceded in his evidence and it was well known that the job market in the mining industry in this state is very buoyant.  The Commissioner said the appellant accepted he could have obtained another position as a driller on a mine site almost immediately.  The Commissioner said he did “not accept that attending to some of his personal affairs supplanted his obligation to seek and obtain alternative employment, which he could have easily done on the evidence, in this case”.  The Commissioner referred to the appellant’s evidence that he did not look for alternative work until he had arrived in Perth on or about 22 April 2006 and found some casual work from 5 May 2006.  The Commissioner then said this was not work in the mining industry where he could clearly have enhanced his income.  The Commissioner said that whilst he found the appellant’s loss in terms of his loss of remuneration to have been some $15,200, being a period of about eight weeks to the date of the hearing, and maybe ongoing, he took into account as s23A(7)(a) of the Act requires, the failure of the appellant to effectively mitigate his loss, which had been established by the respondent.

25       At paragraph [33] the Commissioner said the appellant would have been able to obtain another position as a driller in the industry very readily but took no steps at all to do so.  The Commissioner said the appellant took no steps to obtain any form of alternative employment at all until he returned to Perth “some considerable time after his dismissal”.

26       The Commissioner said that that was not the end of the matter however.  The Commissioner referred to evidence of abuse which the appellant had given to Mr Davis and the respondent after he had been dismissed.  This evidence was summarised by the Commissioner earlier in his reasons.  The Commissioner said the abuse was profane, vitriolic and a sustained attack on Mr Davis and the respondent.  The Commissioner said the abuse occurred in the presence of other employees of the respondent and was targeted particularly and spitefully towards Mr Davis in terms that were no doubt hurtful to him.  The Commissioner said the abuse was of such a magnitude that the appellant conceded it should tell against any order of reinstatement or re-employment, should his claim succeed.  The Commissioner then said:-

“In my view, given its proximity to the dismissal, this is a matter the Commission can have regard to for the purposes of assessing compensation as being a matter “the Commission considers relevant” under s 23A(7)(c) of the Act, in the specific circumstances of this case.  In my view the Commission should be slow to reward such conduct, in the present circumstances, by way of an award of compensation.”

27       The Commissioner then said that taking all of these matters into account including the fact the appellant had made some income from casual work to the date of the hearing, for the purposes of s23A(7) of the Act, and in accordance with equity and good conscience, he proposed to only make a nominal award of compensation in the sum of $500.

The Grounds of Appeal

28      The grounds of appeal contained in a schedule to the notice of appeal were in the following terms:-

“1) The learned Commissioner erred in fact and in law in finding that the appellant failed to take any reasonable steps to mitigate the loss arising out of the termination of his employment, by failing to take into account relevant considerations, namely that -

a) On the evidence —

i. The appellant was domiciled in a remote area where the only employer engaged in open pit operations having a need for open pit drillers, was the Respondent who had terminated his employment and the appellant had no available transport to go to neighbouring areas to seek alternative employment;

ii. The only alternative comparable employment open to the appellant was underground operations, for which he was not qualified, or fly in-fly out operations outside the place of domicile which he reasonably did not wish to undertake because of the deleterious effect such working arrangements would have on his family life;

iii. The appellant had family, financial and property obligations and was required to remain in the area of his former employment for a reasonable period in order to make arrangements to adjust his domestic affairs, to effect necessary repairs to his residence and arrange for its sale, to arrange for the disposal or removal of household furniture and pets, to relocate his place of domicile and to deal with the breakdown of his relationship with his partner;

iv. The period between the date of dismissal and the date the appellant had relocated to Perth (5 weeks) and was ready and available to seek alternative employment was in all the circumstances a reasonable period not to be actively seeking alternative employment; and

v. In the period between the appellant relocating to Perth and the date of the hearing (3 weeks) the appellant obtained casual employment which was reasonable and appropriate in the light of the scheduled hearing date of the application and the logistics and inconvenience to all parties associated with his commencing employment at a remote location as a driller.

b) The Appellant’s obligation to mitigate his loss arising from the termination of his employment is that he should make reasonable efforts to do so and his actions were reasonable in all the circumstances.

2) The learned Commissioner erred in law by taking into account irrelevant considerations, namely (as “a matter the Commission considers relevant pursuant to section 23A(7)(c) of the Act) the abuse of Mr Davis by the appellant subsequent to the termination of his employment; in that -

a) the interactions between the appellant and Mr Davis subsequent to the termination of employment are not relevant to the issue of appropriate compensation for loss or injury arising out of the termination; and

b) the learned Commissioner failed to have regard or any proper regard for —

i. there being (subsequent to his summary and unfair dismissal by Mr Davis) no obligation on the appellant to treat Mr Davis with any respect or consideration whatsoever;

ii. the abuse being provoked by the conduct of Mr Davis in unfairly dismissing the appellant from his employment it being a recognized principle that any dismissal will give rise to feelings of hurt and anger in the dismissed employee; and

iii. workplace relations in the mining industry are not conducted in, nor can be reasonably expected to be conducted in, the language of the diplomatic corps.”

29       In his written and oral submissions, the agent for the appellant elaborated on these grounds.  The orders sought by the appellant were the setting aside of the order made by the Commission with respect to compensation and an order that the “respondent be ordered to pay the appellant compensation for the loss and damage incurred between the date of dismissal and the date of the hearing”.

30       The respondent in its written submissions, as elaborated upon by counsel during the hearing, submitted that the Full Bench should not find the Commission erred in awarding the amount of $500 compensation.  This was particularly so, it was submitted, given the payment of three weeks’ pay in lieu of notice.  Although this had been provided after the hearing and determination by the Commission at first instance, it was submitted it was something the Full Bench could take into account in deciding whether to allow the appeal.

Ground 1 – Mitigation

31      As set out earlier the powers of the Commission in determining claims of unfair dismissal are set out in s23A of the Act.  (We will use “unfair dismissal” as shorthand for the expression “harsh, oppressive or unfair” which is used in the Act).  As stated in s23A(1) of the Act, the Commission may make an order under this section if the Commission determines that the dismissal of the employee was unfair.  The power to award compensation is provided for in s23A(6).  The empowerment provided by that subsection is conditional upon the Commission making a finding that reinstatement or re-employment, as provided for under s23A(4) and (5) “would be impracticable”.  In those circumstances the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.  Section 23A(8) provides for an upper limit to the amount of compensation which may be ordered, and is not relevant to the present appeal.  Section 23A(7) of the Act is relevant to the appeal and will be considered below.

32       It should be noted that the compensation which may be ordered is of a specified type.  It is limited to loss or injury caused by the dismissal.  Before compensation can be ordered therefore the employee must have suffered something which can be characterised as loss or injury.  Additionally that something must have been “caused by the dismissal”.  Furthermore, it must be quantified in the form of a payment, as the payment of an amount of compensation is the only compensatory method embraced by s23A(6).  Section 23A(6) of the Act therefore contemplates in our opinion a process of the determination of compensation by an assessment and quantification of the loss and injury caused by the dismissal.

33       Mitigation of loss is the taking of measures to reduce the impact of something.  In the context of unfair dismissal it means the taking of measures to reduce the financial impact upon an employee of their unfair dismissal.  Prior to the insertion of s23A into the Act, it was understood that mitigation was relevant to an assessment of compensation for unfair dismissal.  (See for example Bogunovich, cited above and Growers Market Butchers v Backman (1999) 79 WAIG 1313, both decisions of the Full Bench).

34       The relevance of mitigation to the assessment of compensation in an unfair dismissal claim has been maintained in s23A of the Act.  It is specifically mentioned in s23A(7)(a) of the Act.  With respect to the conduct of an employee, s23A(7)(a) requires the Commission to have regard to the efforts of the employee to mitigate the loss suffered by them as a result of the dismissal.  Although this subparagraph requires the Commission to have regard to an employee’s efforts to mitigate, it does not specify the impact which this consideration should have upon the assessment by the Commission of compensation.

35       It may also be that s23A(7)(a) of the Act insofar as it applies to an employee, was inserted by the legislature out of an abundance of caution to ensure that employee mitigation was taken into account in assessing compensation.  We say this because mitigation is in any event relevant to an assessment of the loss or injury caused by the dismissal.  The Full Bench has decided that mitigation is relevant to a determination of the remuneration lost by an employee “because of” an unfair dismissal for the purposes of s23A(5)(b) of the Act.  (Sealanes (1985) Pty Ltd v Foley and Buktenica (2006) 86 WAIG 1239 at [99]).  This was so despite the lack of an equivalent to s23A(7)(a) being enacted with respect to the power to make an order for payment of remuneration lost under s23A(5)(b) of the Act, ancillary to an order for reinstatement or re-employment.  The Full Bench came to this conclusion because, if a failure to mitigate by the employee is established, then it may be that there has not been a loss of remuneration “because of the dismissal”; or at least, the total amount of remuneration not received prior to reinstatement/re-employment has not been “because of the dismissal”.  The Full Bench in Sealanes recognised the link between mitigation and causation of loss acknowledged in the common law and in cases dealing with what may broadly be called powers of statutory compensation in cases of unfair dismissal.  It is appropriate to set out the reasons of the Full Bench in Sealanes at paragraphs [101]-[105] as follows:-

“101 In Sotiros Shipping Inc and Aeco Maritime S A v Sameiet Solholt (“The Solholt”) [1983] 1 Lloyd’s Law Reports 605 at 608, the Court said:-

“A plaintiff is under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase “duty to mitigate”.  He is completely free to act as he judges to be in his best interests.  On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting.  A defendant is only liable for such part of the plaintiff’s loss as is properly to be regarded as caused by the defendant’s breach of duty.”

102 Additionally, in Standard Chartered Bank v Pakistan National Shipping Corporation and Others [2001] 1 All ER (Comm) 822 at [41], Potter LJ with whom Wall J and Henry LJ agreed, said:-

“It seems to me that, in truth, causation and mitigation are two sides of the same coin, see per Robert Goff J in the Elena D’Amico at 88-89, to which Toulson J made reference at pp.758-9 of his judgment:  see also Watts –v- Rake at paragraph 38 above.  In every case where an issue of failure to mitigate is raised by the defendant it can be characterised as an issue of causation in the sense that, if damage has been caused or exacerbated by the claimant’s unreasonable conduct or inaction, then to that extent it has not been caused by the defendant’s tort or breach of contract.  However, it seems clear that the burden of proving both unreasonable conduct and exacerbation of damage as a result rests upon the defendant.”

103 The reference to the reasons of Robert Goff J are to those in the decision of The Elena D’Amico [1980] 1 Lloyd’s Reports 75.  The reference to Watts v Rake is to the judgment of the High Court reported at (1960) 108 CLR 158.  Earlier in his reasons, Potter LJ at [38] quoted from the reasons of Dixon CJ in Watts v Rake, including the following:-

“If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course…”

104 The link between the concepts of mitigation of loss and causation was discussed in a similar way to these cases by Madgwick J in Westen v Union des Assurances de Paris, IRCA, 28 August 1996, 960419,  in considering a claim for relief consequent upon an unreasonable termination of employment,  pursuant to the former Industrial Relations Act 1988 (Cth).  (See also Biviano v Suji Kim Collection, 28 March 2002, PR915963, AIRC; Mann Judd (A Firm) v Paper Sales Australia (WA) Pty Ltd and Others [1998] WASCA 268.)

105 Accordingly, it is relevant, in our opinion, for the Commission to take into account whether a respondent can establish that an applicant seeking reinstatement mitigated their loss in order to determine whether there has been a loss of remuneration because of the dismissal, for the purposes of deciding if an order under s23A(5)(b) of the Act should be made.  If therefore, after dismissal, a former employee does not take reasonable steps to find new employment, this may mean that the loss they have suffered because of their non receipt of remuneration from their former employer is not, at least to some extent, “because of the dismissal”.  This is a question of fact, dependent on the evidence adduced in each case.”

36       If therefore it can be established that there has been a failure by an employee applicant to reasonably mitigate their loss, the total amount of wages or salary they have not received following their dismissal could not be said to be “caused by the dismissal” for the purposes of s23A(6) of the Act.

37       In the end we do not think it matters however whether mitigation is relevant because it is inherent within the process of quantification set out in s23A(6) or because of its specification in s23A(7) of the Act.  In our opinion there is the same outcome and process involved.  The outcome is that if an employee fails to take reasonable steps to mitigate their loss this can impact upon the amount of compensation awarded.  With respect to the process, it is for the respondent employer to establish that an employee has failed to take reasonable steps to mitigate.  (See for example Growers Market Butchers at 1316).  We do not think that if an applicant’s attempts at mitigation are taken into account in assessing their “loss”, mitigation will be twice regarded, because of its specific mention in s23A(7) of the Act.  This is because if the efforts of the applicant to mitigate loss have been taken into account in assessing their loss, as part of deciding the appropriate amount of compensation under s23A(6), this will have satisfied that part of the requirement of s23A(7)(a).  There will be no need to repeat the process.

38       In an unfair dismissal case, issues of mitigation will usually revolve around whether an employee has taken reasonable steps to find alternative employment after their dismissal.  Ritter AP discussed this issue (with the concurrence of Beech CC and Gregor SC) in BHP Billiton Iron Ore Pty Ltd v The Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (2006) 86 WAIG 642 at [101]-[103].  As stated in BHP Billiton at [101] in our opinion the reasonableness of the conduct, overall, remains the touchstone of whether mitigation of loss has occurred.  This is, as stated in the reasons of the Full Bench in Sealanes quoted above, an issue of fact dependent upon an evaluation of the circumstances and evidence in the individual case.  (See also Yetton v Eastwood Froy Pty Ltd [1967] 1 WLR 104 at 118, cited by Sharkey P in Growers Market Butchers at 1316; Biviano v Suji Kim Collection, AIRC, 28 March 2002, PR915963 at [52]).

39       It is necessary in this appeal to consider whether the Commissioner erred in law or fact in his assessment of the mitigation by and compensation to be ordered for the appellant.

40       We have earlier quoted paragraph [31] of the reasons of decision of the Commissioner.  The Commissioner there referred to the “requirement” and “duty” to mitigate.  Whilst there may be some technical misdescription involved in the use of these terms, based on the authorities referred to earlier, nothing necessarily turns on this.  In the same paragraph the Commissioner said that an employee who is wrongfully dismissed and unreasonably acts by failing to mitigate his loss would only be entitled to nominal damages.  Two cases are cited in support of this proposition which will be referred to in a moment.  In our opinion the point made by the Commissioner should be qualified to the extent that nominal damages (or compensation under the Act) will only be the result where the consequence of the unreasonable failure to mitigate is that no loss has been caused by the dismissal.  The outcome of nominal damages (or compensation) is not some form of punishment imposed upon an employee who unreasonably fails to mitigate.  Even such an employee will be entitled to the remaining loss caused by the dismissal.  This is illustrated by the supplementary reasons of the Full Bench in Sealanes.  (See (2006) 86 WAIG 1255-1258).  In Sealanes, there had been a finding at first instance, not appealed against, that an employee had failed to take reasonable steps to mitigate his loss.  The Full Bench found that if he had chosen to seek employment the employee would have been successful in doing so between two and five weeks after the termination of his employment.  Loss of remuneration for this period therefore marked the maximum amount of lost remuneration which could be characterised as being because of the dismissal.  (This was on the basis that the employee could have found equally remunerative employment).  The failure to mitigate did not of itself mean there would be no order made for lost remuneration.

41       The qualification which in our opinion should be made to what the Commissioner said in the last sentence in paragraph [31] of his reasons is supported by the two authorities cited by him.  The first of those, Brace v Calder [1895] 2 QB 253, was discussed in my reasons in the BHP Billiton decision, cited earlier.  Relevantly, in paragraph [104], Ritter AP said the following:-

“… Brace v Calder was a common law breach of employment contract case.  The plaintiff was employed by a partnership, under a contract for a term of two years.  Before that period expired, the partnership dissolved by the retirement of two of the four partners, with the other two partners continuing to carry on business.  Those parties offered the plaintiff employment with their partnership for the remainder of the two year term, on the same remuneration and terms as previously existed.  The plaintiff did not accept this offer.  A majority of the Court of Appeal decided that, although there had been a breach of contract, only nominal damages would be awarded.  This was because, in declining the new offer of employment, “it was his own fault that he suffered any loss” (per Lopes LJ at page 261).  Rigby LJ at page 263 said the “defendants are entitled in mitigation of damages to put forward the offer of an engagement on the same terms made by the continuing partners”, and in effect agreed no loss had been suffered.”

42       The second authority cited by the Commissioner was Beckham v Drake (1849) 2 HLC 579 at 607-608.  In that case there was an agreement between an employer and an employee whereby the employee would be engaged by the employer for a term of seven years from the date of the agreement.  Prior to the expiration of the seven years the employee was dismissed by the employer.  This constituted a breach of contract.  The employer subsequently went bankrupt.  The issue which was before the court was whether the employee’s assignees in bankruptcy had become entitled to his cause of action against his former employer.  This issue was not dependent upon any question of mitigation of loss.  In the course of his reasons however Erle J made observations relevant to questions of damages and mitigation.  This was in a passage in His Honour’s reasons at pages 606-607, which seems to be the passage which the Commissioner had in mind in his reasons in the present matter.  There is no other passage of the reasons of Erle J or the other members of the court which are relevant to questions of mitigation in the assessment of damages for wrongful dismissal.  Erle J said:-

“The law considers that employment in any ordinary branch of industry can be obtained by a person competent for the place, and that the usual rate of wages for such employment can be proved, and that when a promise for continuing employment is broken by the master, it is the duty of the servant to use dili-[607]-gence to find another employment; Elderton v. Emmens (4 Com. Bench Rep. 498, n,; 6 Com. Bench Rep. 160; 17 Law J., C.P. 307).  Upon these principles, in the present case, if the place of foreman in a type-foundry could not probably be again obtained without delay, and if the wages in the contract broken were higher than usual, the damages should be such as to indemnify for the loss of wages during that delay, and for the loss of the exess of the wages contracted for above the usual rate; but no allowance would be made in the nature of pretium affectionis, nor any reference to any pain that might be felt by the bankrupt on the ground that he was attached to the place.

If the breach of promise had arisen because the defendants had retired from business, the action would have lain; but if the defendants, in answer to the claim of damages, had proved that another person carried on the same business, and offered the plaintiff the same situation at the same or higher wages, the claim for more than nominal damages would, in my judgment, be at an end, and the plaintiff would not be allowed to prove that the change of employer was a source of regret personal to himself, and to obtain compensation for such regret.”

43       Accordingly, the relevant observations made by members in court in Brace v Calder and Beckham v Drake support the view that an employee who is unlawfully or unfairly dismissed and unreasonably acts in failing to mitigate their loss, would be entitled to nominal compensation if the consequence of their failure to mitigate is that there has been no loss caused by the dismissal.

44       In paragraph [32] of the Commissioner’s reasons he makes the finding that the appellant has not taken any reasonable steps to mitigate loss.  Within this paragraph is the finding that the appellant accepted he could have obtained another position as a driller on a mine site almost immediately.  In our opinion in making this finding the Commissioner did not, with respect, properly take into account the appellant’s evidence about where such employment as a driller could be obtained and if it was outside Kambalda, the extent to which this would involve relocation and what would be involved in the appellant relocating.  This is relevant to an understanding of when the appellant could reasonably have been engaged in such employment and the extent to which in the interim period he had suffered loss caused by his dismissal.  The evidence from the appellant in examination in chief, which was not completely overtaken by his cross-examination, was to the effect that the appellant would need to leave Kambalda to obtain work as a driller.  In our opinion, with respect, the Commissioner did not properly take the relocation issue into account.  Put slightly differently, the Commissioner does not seem to have considered whether the appellant, in deciding to relocate to possibly again obtain employment as a driller, was acting unreasonably in failing to mitigate his loss.

45       We have earlier quoted from paragraph [32] of the Commissioner’s reasons where there is reference to the appellant’s attendance to his personal affairs not supplanting his obligation to seek and obtain alternative employment.  The words used by the Commissioner seem, with respect, to contain a misdescription of the relevance of seeking alternative employment to an assessment of loss and compensation under the Act.  This is because the obtaining of alternative employment is not a duty or obligation, as set out earlier, but is relevant to an assessment of the loss caused by the dismissal, in the way we have described above.  The issue was not so much whether the attending to his personal affairs supplanted the obligation to seek alternative employment but whether the delay in seeking alternative employment was reasonable in all of the circumstances.  In this regard it was relevant that on the appellant’s evidence his decision to relocate to Perth was for the purpose of finding employment either in the city or on a fly in/fly out basis.  (T17).  We infer the latter meant work on a fly in/fly out basis, on a mine site, as a driller.  The Commissioner’s statement in paragraph [33] of his reasons that the appellant took no steps to obtain alternative employment until he returned to Perth overlooked the evidence that the relocation of the appellant to Perth was part of the process of obtaining new employment.

46       Having said this, in our opinion however, we think the evidence established the appellant was slower than a reasonably prudent person would have been to make the decision to relocate and then do so.  The evidence was that the decision made to relocate took two weeks to arrive at and then it was a further three to four weeks before the relocation occurred.  Even taking into account that the appellant suffered some stress from his dismissal (as he said), had to make a decision about his future, appoint a real estate agent and take care of his house, property and pets, the time taken in all of the circumstances seems greater than what was reasonable.  This is especially so given that the appellant’s partner was to remain in Kambalda until the conclusion of the stocktake sale and could, we infer, have assisted with or finalised some of these matters.  Put slightly differently, we do not think the period whilst the appellant was unemployed and during which he took his time to relocate was in its entirety a period over which he had suffered a loss of wages “caused by the dismissal”.

47       In our opinion if the appellant had been acting reasonably prudently and given the ready availability of work as a driller which he accepted in his evidence, the appellant could have mitigated his loss by obtaining employment as a driller at a mine site, even if this involved relocation, in four weeks.  Accordingly, the loss caused by the dismissal was a loss of wages from the appellant’s former employment for a period of four weeks.  (In saying this, it is assumed that any subsequent employment by the appellant as a driller would have generated the same income as that of his former employment.  Whilst there was no evidence on this issue, it appears to be the basis upon which both the hearing and the appeal were conducted.  It would therefore be inappropriate to make a finding contrary to the interests of the respondent on the basis that it had not been established that alternative employment as a driller would have generated the same income).

48       In our opinion the Commissioner at first instance, with respect, erred in failing to make the finding mentioned in the previous paragraph.  This does not, in the circumstances of this case, however mean that the appeal should be allowed.  This is because there are three factors which need to be taken into account at this point in considering the loss caused by the dismissal.  The first is the $500 compensation which was awarded, which represented about two days’ pay for the appellant.  The second is that the appellant said he had a “couple of days” work in his employment as a handyman which was to be remunerated at a rate of $35 per hour.  Although the appellant did not specify in his evidence how many hours he had worked in doing the “couple of days work” he referred to, if he worked the reasonable amount of seven hours on each day then this would generate $490 which is again in the vicinity of the equivalent of two days’ pay at his employment with the respondent.  Thirdly, as indicated earlier the respondent did after the determination by the Commission pay to the appellant three weeks’ pay in lieu of notice.  This payment should, in our opinion, be taken into account by the Full Bench in deciding whether the appeal should be allowed.  This is because it is an amount which was paid to the appellant which in part offsets the losses consequent upon his dismissal.  It is therefore relevant to take into account in considering compensation, under s23A(6) of the Act, either on its own or by reference to s23A(7)(a) of the Act.  (Payments made by the employer have been recognised as being relevant to an assessment of compensation in unfair dismissal cases; see FDR Pty Ltd v Gilmore (1998) 78 WAIG 1099 at 1102 per Anderson J; Kennedy and Franklyn JJ agreeing).  The appellant has therefore effectively received an amount in total which, on balance, is close to that of four weeks’ pay.  In these circumstances it is not in our opinion appropriate to allow the appeal on the basis of the first ground.  In reaching this conclusion we take into account the inexactitude involved in making the finding that the appellant could reasonably have obtained alternative employment as a driller in four weeks.  We also have had regard to the clearly discretionary powers of the Full Bench in determining an appeal, set out in s49(5) of the Act.

Ground 2 – Finding under s23A(7)(c) of the Act

49       The way in which we have analysed and determined ground 1 of the appeal makes it unnecessary to decide ground 2.  This is because even if the appellant succeeded on this ground, it could not change the result we have described above.  This is because success on this ground would not mean the amount of the loss would increase from that we have referred to above.  In our opinion it is not therefore desirable in the present case to consider the ambit of s23A(7)(c) of the Act.  In part this is because the respondent did not provide full submissions on this issue.  In this combination of circumstances we think it preferable to not consider the difficult issues involved in the determination of an appeal against a decision based in part upon s23A(7)(c) of the Act, in the present appeal.

Conclusion

50       For the reasons expressed above in our opinion the appeal should be dismissed.

CHIEF COMMISSIONER A R BEECH:

51      Ground 1 of the appeal alleges that the Commission at first instance erred in fact and in law in finding that the appellant failed to take any reasonable steps to mitigate the loss arising out of the loss of the termination of his employment by failing to take into account relevant considerations.

52      I have been unable to find from the submissions of the appellant any error in fact in the Commission’s Reason for Decision.  When asked to identify the alleged error in fact referred to in the grounds of appeal, Mr McCorry referred to a sentence in paragraph [33] of the Reasons where the Commission at first instance referred to “the abuse metered out to both Mr Davis and the respondent”.  Mr McCorry submitted that the abuse was metered out only to Mr Davis.  However, whether or not the abuse was directed to Mr Davis or to the respondent or both is irrelevant to Ground 1 of the appeal.  

53      Further, although the appellant’s second ground of appeal goes to the Commission at first instance allegedly erring by taking into account the abuse of Mr Davis by the appellant, the alleged error of fact is not raised in this ground of appeal; certainly, in relation to the second ground of appeal it is not suggested that the Commission at first instance made any errors of fact.  My reading of the Reasons for Decision does not show that anything turns upon the alleged error of fact and it can be safely disregarded.  I conclude that it is simply an irrelevant point and the ground of appeal was poorly worded. 

54      As to the alleged error of law, the Commission at first instance was not satisfied from the evidence that the appellant had taken any reasonable steps to mitigate his loss (paragraph [32], AB16).  The Commission at first instance noted the concession by the appellant in his evidence that the job market in the mining industry is very buoyant and that he could have obtained another position as a driller on a mine site almost immediately.  The Commission at first instance noted the appellant’s testimony that he did not endeavour to look for alternate work until he arrived in Perth on 22 April 2006, some five weeks after his dismissal.  The appellant’s searching for work resulted in some casual work on 5 May, but it was work as a handyman and not in the mining industry.

55      The appellant does not suggest that the Commission at first instance has incorrectly summarised the appellant’s position in this regard.  Rather, the appellant alleges that in his circumstances the five week period was a reasonable period not to be actively seeking alternate employment and, in acting reasonably, it could not be properly held that the appellant failed to mitigate his loss.

56      It is helpful to approach this ground by noting firstly that the manner of assessing compensation is now prescribed in the Act.  As the Commission observed, s23A is a new section; it was inserted into the Act by Part 7 of the Labour Relations Reform Act 2002.  Relevantly to this appeal, when deciding an amount of compensation for loss or injury caused by the dismissal the Commission is now obliged by s23A(7) of the Act to have regard to the efforts (if any) of the employee to mitigate the loss suffered by the employee as a result of the dismissal.

57      Although Bogunovich v. Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 to which the Commission referred examined the principles to be applied by the Commission when assessing compensation for unfair dismissal, that case was decided on the now-repealed s23A.  The now-repealed s23A provided the power to order the employer to pay compensation to the employee for loss or injury caused by the dismissal but it did not specify the considerations to be applied in deciding the amount of compensation.  The Act now specifies those considerations and with that change, so too, with respect, has changed the relevance of Bogunovich to that issue.

58      Relevantly to this appeal, in deciding an amount of compensation the Commission is required by s23A(7)(a) to have regard to the efforts (if any) of the employee to mitigate the loss suffered by the employee as a result of the dismissal.  It is not a requirement when the Commission is considering the loss suffered by the employee as a result of the dismissal; it is a requirement when the Commission is considering the compensation to be ordered for that loss.

59      To put it another way, if in accordance with s23A(6) the Commission considers reinstatement or re-employment would be impracticable, it may order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.  The Commission necessarily will need to consider first whether there has been any loss or injury caused by the dismissal because if there has not been any, there can be no compensation ordered to be paid (Garbett v. Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893 at [85]).  If, when considering whether there has been any loss caused by the dismissal under s23A(6), the Commission has regard to the efforts (if any) of the employee to mitigate the loss suffered by the employee as a result of the dismissal, then it will be required by s23A(7)(a) to again take those efforts, if any, into account in deciding the amount of compensation to be ordered for that loss.  The efforts to mitigate would be taken into consideration twice and I cannot see how that is intended by the legislation.

60      The preferable view must be that, by s23A(7)(a), if an employee has not made any effort to mitigate the loss suffered by the employee as a result of the dismissal, the compensation, not the loss, will be adjusted accordingly.  The loss caused by the dismissal is matter of evidentiary fact.  The effect of any loss might be mitigated by the efforts of the employee (by lessening it in force or intensity or moderating its severity: The Macquarie Dictionary, 3rd ed., p.1378).

61      Even though the failure of an employee after dismissal to take reasonable steps to find new employment may mean that the loss they have suffered because of his/her non-receipt of remuneration from his/her former employer is not, to some extent, “caused by the dismissal”, the very words of s23A(7)(a) direct that the failure to mitigate is relevant to deciding an amount of compensation.

62      This conclusion is supported by looking at the remainder of 23A(7).  By s23A(7)(b) the Commission is to have regard to any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission.  Section 23A(7)(b) was not raised in this appeal and its full meaning will wait for another day.  However, it is sufficient to observe here that the requirement on the Commission in s23A(7)(b) is for the purpose of deciding an amount of compensation for both the loss or injury caused by the dismissal.  It is not for the purpose of reducing the loss caused by the dismissal.

63      By s23A(7)(c) the Commission is to have regard to any other matter the Commission considers relevant.  The wording of s23A(7) does not direct this consideration to the calculation of loss but to the amount of compensation for loss or injury caused by the dismissal.  The full meaning of what is embraced by s23A(7)(c) will also await another day.  However, it should hardly be surprising that it has been included for the purpose of deciding an amount of compensation.  Whatever may be said about the calculation of damages at common law by the courts, in the exercise of its jurisdiction under the Act the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s26(1)).

64      The Commission should be slow to fetter its own wide discretion under s26(1) to produce an outcome which is just and equitable and not simply lawful.  It is not irrelevant to note that the power given to the Commission is to order compensation, not damages; what might be a correct outcome in a court of law may nevertheless be unacceptable according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. There may well be good reason for the inclusion of s23A(7)(c) if it thereby allows the Commission to have regard to any other matter believed to be crucial to achieving a fair go all round to be taken into account in the overall assessment of any compensation ordered in lieu of reinstatement (Sprigg v. Paul’s Licensed Festival Supermarket (1998) 88 IR 21 at 31).

65      Finally, the distinction between deciding whether there has been any “loss” caused by the dismissal and deciding an amount of “compensation” for that loss is also apparent from s23A(8) whereby the amount of compensation for loss or injury caused by the dismissal ordered to be paid under s23A(6) is not to exceed 6 months’ remuneration of the employee.  Thus, even if the loss caused by the dismissal is an amount greater than 6 months’ remuneration, it is the compensation which is limited to 6 months’ remuneration.

66      This leads to the following conclusions:

(i) The Commission is obliged to find as a matter of fact whether the employee has suffered loss or injury caused by the dismissal.  Loss would commonly be the entitlements under the employee’s contract of service, including wages, which would otherwise have been paid to the employee but for the dismissal which occurred, but is not restricted to these things.

(ii) If the Commission finds that there has not been any loss or injury caused by the dismissal, there can be no order for compensation: Garbett v. Midland Brick [2003] WASCA 36 at [85], (2003) 83 WAIG 893.

(iii)            If the Commission finds that there has been loss or injury caused by the dismissal, the Commission is then to decide an amount of compensation to be paid for that loss or injury. 

(iv)             In doing so the Commission is to have regard to -

(a)   in the case of loss, the efforts made by the employer and employee to mitigate the loss;

(b)   in the case of loss or injury, any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

(c)   in the case of loss or injury, any other matter that the Commission considers relevant.

(v)               The amount ordered to be paid as compensation for loss or injury caused by the dismissal is not to exceed 6 months’ remuneration of the employee.

67      In applying these conclusions to the appeal, I note that the Commission at first instance found the appellant’s loss as approximately $15,200 being a period of about 8 weeks.  He made no finding whether the loss was ongoing although he noted it “may be ongoing” (paragraph [32], AB16).  The Commission found that the appellant failed to “effectively mitigate” his loss.

68      The appellant alleges in Ground 1 that the Commission failed to take into account relevant considerations that the appellant was domiciled in a remote area where the only employer engaged in open pit operations having a need for drillers was the respondent; and that the appellant had no available transport to go to neighbouring areas to seek alternate employment.  The evidence of the appellant (T17) is that all the mines in the area are underground.  He was asked whether he had any other skills which would have been useful above ground and replied “No, not … that was the only pits in the area, so I would’ve had to work on the same site.”  In cross-examination (T26) he admitted that the skill of a driller is one that is very much in demand at the moment and that if he chose to obtain work as a driller he could obtain it quite readily.  He stated that he could have got a job as a driller - “I just had to get my affairs in order before I could move on with my life”.

69      The Commission noted at first instance (at paragraph [32], AB16) that the appellant accepted he could have obtained another position as a driller on a mine site almost immediately.  However, the Commission did not note that the only employer engaged in open pit operations was the respondent.  I find that part of Ground 1(a)(i) to be made out.

70      The Commission at first instance did not mention whether or not the appellant had transport available to him to go to neighbouring areas to seek alternate employment.  However, it was not the appellant’s evidence either in his examination in chief, or cross-examination that he had no available transport to go to neighbouring areas to seek alternate employment.  The appellant’s evidence at T5 was that there are no other open pit mines in Kambalda and that although he owned a car of his own, his partner used that car to drive to Kalgoorlie and he would meet other employees at the single persons’ quarters at Kambalda and go to work on a bus: T7.

71      Whether or not the appellant had transport available to go to neighbouring areas to seek alternate employment was something therefore open to inference.  The Commission cannot be validly criticised for not reaching a conclusion that was not itself the subject of evidence and which did not even form part of the appellant’s agent’s closing submissions.  In any event there may more than one inference open from that evidence, including that after his dismissal the appellant might have driven his partner to Kalgoorlie in order to retain the car to at least allow him to go to neighbouring areas to seek alternate employment. I find that part of Ground 1(a)(i) not to be made out.

72      Ground 1(a)(ii) is that the only alternative comparable employment was underground operations for which the appellant was not qualified or fly in-fly out operations outside his place of domicile.  It became apparent during the hearing of the appeal that there is no evidence whether or not the appellant was qualified to work underground; the evidence was that he had never worked underground and did not have any intention of doing so (T17).

73      The Commission at first instance noted that “the job market in the mining industry in this State is very buoyant” and that the appellant accepted he could have obtained another position as a driller on a mine site almost immediately; however, he did not deal with the appellant’s evidence that he would not work underground and whether that decision was or was not reasonable in the context of s23A(7)(a) of the Act.  This is relevant to the comment by the Commission at first instance (paragraph [32], AB16) about the appellant’s evidence that he did not endeavour to look for alternate work until he arrived in Perth.  Thus, the Commission at first instance did not deal with the relevant consideration whether or not the absence of open pit drilling work in the area where the appellant lived meant that the appellant’s decision to relocate to Perth in order to seek fly in-fly out work was acting reasonably for the purposes of s23A(7)(a) of the Act.  To this extent, I find Ground 1(a)(ii) is made out.

74      Ground 1(a)(iii) makes reference to the appellant’s family, financial and property obligations requiring him to remain in the area for a reasonable period in order to then relocate.  The Commission at first instance merely noted the appellant’s evidence that he did not endeavour to look for alternate work until he arrived in Perth.  The Commission’s failure to consider whether or not the appellant was acting reasonably in relocating to Perth in order to find alternate work meant that these relevant matters were not considered and accordingly that Ground 1(a)(iii) is also made out.

75      Ground 1(a)(iv) summarises the above positions by alleging that the period between the date of dismissal and the date the appellant relocated to Perth was in all of the circumstances a reasonable period not to be actively seeking alternate employment.  This requires no further comment given my conclusions above.

76      Ground 1(a)(v) deals with the period after the appellant relocated to Perth and the date of the hearing.  The Commission at first instance did find that the appellant endeavoured to look for alternate work after he arrived in Perth and found some casual work from 5 May.  The Commission concluded that the circumstances constituted a failure of the appellant to “effectively mitigate” his loss and that the appellant would have been able to obtain another position as a driller in the industry “very readily”.  However this conclusion did not take into consideration whether or not it was reasonable for the appellant to have decided not to work underground, a decision which on the evidence I have referred to above, was the basis of his decision to relocate to Perth.

77      I find the grounds of appeal to have been made out to the extent cited above.  I agree with the conclusion of the Hon Acting President and Senior Commissioner, and for the reasons they give, that the evidence overall established that the appellant was slower than a reasonably prudent person would have been to make the decision to relocate and then do so.  I also agree with their conclusions regarding Grounds 1 and 2 and I too would dismiss the appeal.