2007 WAIRC 00547

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 00547

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER J L HARRISON

HEARD
:
TUESDAY, 24 APRIL 2007

DELIVERED : MONDAY, 25 JUNE 2007

FILE NO. : FBA 28 OF 2006

BETWEEN
:
WAYNE SHORTLAND
Appellant

AND

LOMBARDI NOMINEES PTY LTD T/A HOWARD PORTER
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER J H SMITH
CITATION : (2006) 86 WAIG 1135; (2006) 86 WAIG 2652
FILE NO : U 135 OF 2005

CatchWords:
Industrial Law (WA) - Appeal against decision of the Commission - Application for compensation for alleged harsh, oppressive or unfair dismissal - Extension of time not allowed - Issues to be determined at hearing at first instance - Whether denial of natural justice or procedural fairness - Effect of notice of hearing - Representation by registered agent - Whether procedure was unfair - Effect of conditional and invalid signed letter of resignation by appellant - Repudiation of an employment contract - Effect of an invalid notice - Acceptance of repudiation - Appeal allowed

Legislation:
Industrial Relations Act 1979 (WA) (as amended), s29(1)(a), s29(1)(b)(i), s29(3), s31(1)(b), s31(3), s49(2), s112A(3)(d), (e)

Result:
Appeal allowed
REPRESENTATION:
Counsel/Agent:
APPELLANT : MS K WROUGHTON (OF COUNSEL), BY LEAVE
RESPONDENT : MR R GIFFORD, AS AGENT


Case(s) referred to in reasons:

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Berger v Boyles [1971] VR 321
Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Coal and Allied Pty Ltd v AIRC and Others (2000) 203 CLR 194
Conway-Cook v Town of Kwinana (2001) 108 IR 421
Foran and Another v Wight and Another (1989) 168 CLR 385
Gunnedah Shire Council v Grout (1995) 134 ALR 156
Gunton v Richmond-upon-Thames LBC [1981] Ch 448
Hill v C A Parsons and Co Ltd [1972] Ch 305
Hooper Bailie Association Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
House v The King (1936) 55 CLR 499
Lines MacFarlane Marshall Pty Ltd v Fletcher Construction Australia Ltd [2000] VSC 358
Little v Women’s Legal Services Inc (WA) (2000) 81 WAIG 296
Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84
WAIG 683
Muin and Lie v Refugee Review Tribunal and Others (2002) 190 ALR 601
Norbis v Norbis (1986) 161 CLR 513
Perpetual Trustee Company Ltd v Meriton Property Management Pty Ltd (2006) ANZ Conv R
321, [2006] NSW CA 75
Poort v Development Underwriting (Vic) Pty Ltd (No 2) [1977] VR 454
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214
CLR 1
SBA Foods Pty Ltd v Victorian WorkCover Authority and Anor [2001] VSC 276
Shevill and Another v The Builders Licensing Board (1982) 149 CLR 620
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006)
81 ALJR 515, 231 ALR 592
Vitol SA v Norelf Ltd (The Santa Clara) [1996] 3 All ER 193
WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271

Case(s) also cited:

No additional cases cited.

Reasons for Decision

RITTER AP:

Introduction
1 This is an appeal against an order made by the Commission on 31 July 2006 which dismissed the appellant’s application for an order for compensation for an alleged harsh, oppressive or unfair dismissal by the respondent. The application was referred to the Commission by the appellant pursuant to s29(1)(a) of the Industrial Relations Act 1979 (WA) (the Act). The application was dismissed because the Commission decided not to allow the appellant an extension of time within which to bring the application, pursuant to s29(3) of the Act. The Commissioner (as the Senior Commissioner then was) announced her decision and delivered extempore reasons at the conclusion of a hearing on 10 July 2006. Written reasons for decision were then published on 31 July 2006 which as I have said was also the date when the order dismissing the application was made.

The Application
2 The application to the Commission had been filed on 20 October 2005. The application had attached to it a statement of claim which contained the following assertions.
3 The appellant was employed by the respondent from 20 May 2004 until 5 October 2005.
4 He was initially employed as a storeman but was then appointed as a purchasing officer. Whilst in that position the appellant commenced 2 weeks annual leave on 21 January 2005. During that time the respondent appointed a new purchasing officer in place of the appellant. When he returned from leave on 8 February 2005 the appellant was informed of his “demotion”.
5 He then commenced an unfair dismissal action in the Commission. This proceeded to a conciliation conference where the respondent made settlement offers. The conference adjourned so the appellant could consider the offers. In “due course” the appellant informed the respondent’s agent that he wanted to accept one of the offers but was told the settlement offer had been withdrawn the previous day.
6 The appellant thereby “became distressed” and “incapacitated for work because of the stress, and consulted a medical practitioner”. The appellant then made a claim against the respondent for entitlements under the Workers’ Compensation and Injury Management Act 1981 (WA) (the Workers’ Compensation Act). The claim was denied by the respondent’s insurer, Allianz Australia Insurance Ltd and proceeded to a conference before a conciliation officer. On 2 August 2005 an agreement was reached to settle the claim by way of a deed of settlement and release. It was a “condition of the settlement that the [appellant] tender his resignation”.
7 The appellant signed a letter of resignation addressed to the respondent dated 11 August 2005, “to take effect upon the registration of the Deed of Release with Workcover”. The deed was not registered so the appellant sent a letter of resignation on 4 October 2005, to take effect immediately. The termination of employment through that resignation “came about by the conduct of the Respondent”, because of the demotion, subsequent withdrawal of the offer of settlement of the unfair dismissal action and harsh treatment causing incapacity to work. The appellant sought compensation of “6 months pay”.

The Answer
8 The respondent filed a notice of answer and counter proposal on 18 November 2005 (the answer). In a schedule to the answer the respondent denied it had effected a termination or dismissal of the appellant on 5 October 2005 or on any other date. The respondent asserted the appellant resigned by the letter dated 11 August 2005 pursuant to an agreement which was reached upon the signing of a “Deed of Settlement and Release” on the same date. The Deed, it was asserted, provided for the payment of a sum of money to the appellant in consideration of discontinuing a workers’ compensation claim. It was asserted the Deed also released the respondent from any future claims before “any Court, Tribunal or Commission”. The answer said that although “the letter of resignation referred to the resignation taking effect upon the date of approval the Deed by Workcover, such approval was in fact unnecessary. Accordingly, the resignation was effected in the ordinary course”. It was submitted the purported (subsequent) resignation by letter dated 3 October 2005 was a contrived resignation, “allegedly forced by the company”, to establish a basis for an unfair dismissal claim. The answer concluded that the appellant had engaged in a “contrived action”.

The Notice of Hearing
9 The application did not settle at conciliation and accordingly was listed for the hearing of a jurisdictional issue or issues, based upon the terms of the Deed. The hearing was listed for 3 February 2006.
10 As will be set out more fully later, a major plank of the appellant’s argument on appeal was that at the hearings on 3 February 2006 and 10 July 2006 there was a denial of natural justice or procedural unfairness. The argument was largely based upon what was contained in an Amended Notice of Hearing issued by the Registrar on behalf of the Commission dated 19 December 2005. The Amended Notice of Hearing listed the hearing of “the abovementioned matter” before the Commission on 3 February 2006. With respect to “the abovementioned matter”, the document set out the title of the application but also said, above the names of the parties:-
“IN THE MATTER OF: Jurisdictional issue – estoppel by agreement or by deed”

The First Hearing and Reasons
11 Following the hearing on 3 February 2006, the Commissioner reserved her decision. On 13 April 2006 the Commissioner published her reasons. The Commissioner did not accept the argument that the application should not be permitted to proceed because there was an estoppel by agreement or deed.
12 In the course of her reasons however the Commissioner also decided the appellant’s employment was terminated when notice of intention to resign, provided by the appellant to the respondent by letter, was accepted by the respondent on 11 August 2005. There was therefore an extension of time issue because the application was not filed until 20 October 2005.
13 The Commissioner said in her reasons that the application would be listed for a hearing about whether it had been filed out of time and if so whether an extension of time should be granted.

The Second Hearing and Reasons
14 As I have already said the extension of time issue was heard and determined by the Commission on 10 July 2006 and reasons for decision were published on 31 July 2006. The Commissioner referred to the evidence and issues before her and reached her conclusions in paragraphs [15]-[19]. In reaching the conclusion that an extension of time ought not to be granted the Commissioner applied the criteria set out in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 (Industrial Appeal Court) (IAC) and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 (IRCA) and approved by the IAC in Malik.

The Nature of the Appeal
15 In deciding whether or not to exercise the power contained in s29(1)(b)(i) of the Act, the Commissioner made a discretionary decision. Accordingly, for the appeal to succeed the appellant must establish that in exercising the discretion the Commissioner committed the type of error which has been described many times but in particular by the High Court in House v The King (1936) 55 CLR 499 at 504/505, Norbis v Norbis (1986) 161 CLR 513 at 518/519 and Coal and Allied Pty Ltd v AIRC and Others (2000) 203 CLR 194 at [21] and [72].
16 The appellant contends that errors of the relevant type were made, essentially because there was a denial of natural justice or procedural fairness and/or the Commissioner erred in her finding on 13 April 2006 that the appellant’s employment was terminated when the notice signed by the appellant was accepted by the respondent on 11 August 2005. These contentions comprised grounds 1 and 3 of the Schedule to the Notice of Appeal. Ground 2 was abandoned, as was ground 4, which was an unnecessary assertion that the appellant was required to and could persuade the Full Bench that an appeal should lie against a finding of the Commissioner, in accordance with s49(2) of the Act.

Ground 1
(a) The Ground
17 This ground is as follows:-
“1. The Learned Commissioner breached the rules of natural justice and denied the Applicant procedural fairness on 3 February 2006 in proceeding to consider and make a finding on an issue concerning the time in which the application had been filed and the date upon which the Applicant’s employment with the Respondent had ended.

PARTICULARS:
1.1 The Respondent alleged in its notice of answer and counter proposal that the Applicant by executing a Deed of Release on 11 August 2006 had discharged the Respondent from all future claims.
1.2 Accordingly, the Respondent applied to the Commission for an order that the application contained in U135/2005 be struck out on the grounds that the terms of the Deed of Settlement estopped the Applicant from making his claim.
1.3 The Commission listed the Respondent’s application for hearing on 3RD February 2006.
1.4 After hearing evidence on the issue of the Deed of Release and submissions on 3RD February 2006, the Learned Commissioner reserved her decision.
1.5 On 3RD April 2006 the Learned Commissioner delivered her decision in which she dismissed the Respondent’s application on the preliminary issue of whether the Deed or Release created an estoppell to the claim.
1.6 In her said reserved decision, the said Learned Commissioner made a finding that the Applicant’s employment was terminated when a Notice of Resignation signed by the Applicant on 11 August 2005 was accepted by the Respondent.
1.7 The Applicant was not aware of the Commission’s intention to deal with the issue of the termination of employment in the hearing of 3RD February 2006 and accordingly was not prepared for that issue, did not lead evidence on it and did not cross-examine the Respondent’s witnesses on that issue.
1.8 Notwithstanding the Learned Commissioner’s finding in Par. 1.7 hereof, the Learned Commissioner then proceeded to list the application for a further hearing which took place on 10TH July 2006 and which according to the Notice of Hearing was for the purpose of considering whether the application is out of time, and if so, whether an extension of time should be granted.
1.9 The Applicant’s claim in Application U135/2005 identified his date of termination as 5TH October 2005.
1.10 The application U135/2005 was filed in the Commission on 20TH October 2005, which was within the time limited for the Applicant to file such an application.”

(b) The Particulars
18 “Particulars” 1.1, 1.2, 1.3, 1.4, 1.5, 1.8 and 1.9 are not controversial. “Particular” 1.10 is not controversial insofar as its states the date on which the application was filed.
19 With respect to “particular” 1.7 the appellant did not endeavour to put before the Full Bench any evidence of the asserted lack of awareness or lack of preparation for the issue. The only “evidence” placed before the Full Bench was the Amended Notice of Hearing referred to earlier and the transcript of the hearing on 3 February 2006. The Amended Notice of Hearing was not contained in the appeal book but with the agreement of both parties, the Full Bench looked at the document at the hearing of the appeal.

(c) Representation by an Agent
20 Materially, the appellant was represented by a registered agent at the hearings before the Commission at first instance. The same agent represented the appellant at both hearings. The fact that parties may be represented by registered agents in hearings before the Commission is a characteristic of the conciliatory, arbitral and judicial system created by the Act. An industrial agent may be registered under s112A of the Act and may therefore pursuant to s112A(3)(d) and (e) appear for a party, person or body under s31, s81E or s91 of the Act and provide advice and other services in relation to “industrial matters”. Section 31 of the Act provides for the representation of parties to proceedings. Section 31(1)(b) provides that a party to proceedings before the Commission may appear by an agent. A consequence of this is, set out in s31(3) of the Act, is that a person or body appearing by a legal practitioner or agent is “bound by the acts of that legal practitioner or agent”. In my opinion this subsection applied to the representation of the appellant by his agent at the hearings on 3 February 2006 and 10 July 2006.

(d) The Transcript of the hearing on 3 February 2006
21 In considering the transcript it is to be noted that there is nothing to suggest other than that the appellant and his agent were present throughout the hearing on that day.
22 At the hearing the respondent presented its case first due to the basis on which it asserted a lack of jurisdiction. The respondent called two witnesses, Ms Susan Courthope, the technical claims manager of the workers’ compensation division of Allianz Australia Insurance Ltd, and Mr Giulio Lombardi, one of the joint managing directors of the respondent. Both were examined and cross-examined. The appellant’s agent when called upon to present his case did not call the appellant or anyone else to give evidence. (T58). Closing submissions were made and the Commissioner reserved her decision.
23 In his opening, the respondent’s agent said at T2-4:-
“May it please the Commission, these are proceedings which are to deal with a jurisdictional issue and as to the title to the - - the notice of hearing in this matter, said "Jurisdictional issue, estoppel by agreement or deed". And, of course, the focus of these proceedings therefore is to be upon a deed of settlement and release that was entered into in relation to a workers compensation claim and an accompanying agreement that Mr Shortland resign his employment with the company….

So we've now got the jurisdictional issue before us and it's our position in relation to that, or it will be our position in relation to that - and this is purely just some opening observations for me to make in this matter - but by virtue of the principle of estoppel, and one particular branch of estoppel, we say that the applicant in relation to this application is prevented from proceeding with it due to him being party to, firstly, an agreement to resign and an actual resignation effected by him on the 11th of August 2005 and him being party to a deed of settlement and release in relation to a workers compensation claim and that deed was dated also the 11th of August 2005…

Now the other aspect as we've touched upon which is in contention in these proceedings will relate to whether the original resignation of the 11th of August 2005 constituted a valid resignation or - - or was a resignation that could be properly effected because of this notion of it being - - this apparent notion of it being conditional upon the deed - that is the deed of settlement and release - being approved or registered by - - by WorkCover. And the position that we take in relation to that matter that at no - - at no point in the conciliation process that led to the settlement and the conciliation process being part of the workers comp compensation dispute resolution process, during no part of that was there even an agreement between the parties that resignation was to be conditional in the way in which the document seems to suggest.” (Emphasis added)

24 Accordingly, in opening, the respondent’s agent said, without demur by the appellant’s agent at that time or any time thereafter, that the validity of the resignation was in issue at the hearing.
25 Additionally, throughout the hearing on 3 February 2006 there were numerous references made to the appellant’s resignation on 11 August 2005 and the nature and scope of the jurisdictional hearing. Examples will now be set out.
26 In the examination-in-chief of Ms Courthope at T15-20 there was evidence given about the appellant’s intention to resign as part of the settlement of the workers’ compensation claim, the creation of the deed and the fact of the notice of resignation by letter dated 11 August 2005 being signed by the appellant. Ms Courthope said she was told by a case manager that the appellant had sent the signed deed and resignation letter. The letter was admitted into evidence as an exhibit. (T21). The letter was read by Ms Courthope. The letter said: “In accordance with your request, I hereby tender my resignation effective the date of approval of a Deed of Release signed by me this day by Workcover”.
27 During the evidence of Mr Lombardi the Commissioner said to the respondent’s agent that the “matter today is confined to the jurisdictional issue”. (T32).
28 In his evidence at T37-39, Mr Lombardi spoke of the appellant’s intention and agreement to resign. He agreed with a leading proposition by his agent, which was not objected to, that: “But was the resignation part of that overall settlement?” (T38). The first resignation letter was looked at by Mr Lombardi and he agreed with another unobjected to leading question which was whether he treated “this as being a genuine, bona fide resignation”. (T40). He also said however that at the WorkCover conciliation conference the only condition of resignation was “that the money changed hands, the deed was binding and that was it.” After payment of the money and receipt of the letter and deed he thought matters were complete. He answered “none whatsoever” to a question of whether he expected “further relationships” with the appellant.
29 A little later Mr Lombardi said he received a second letter of resignation dated 3 October 2005 which he looked at, did not know what to make of and just asked his secretary to file. (T41). There was then discussion between the Commissioner and both agents about whether this letter of resignation would be tendered as an exhibit. There was reference in this discussion, by the appellant’s agent, to the limits of the “jurisdictional point”, but the Commissioner then interjected and said that he did not have to explain that to her but she might find it helpful if she saw the letter. The letter was then tendered as exhibit 6. (T43).
30 During the cross-examination of Mr Lombardi, reference was made to exhibit 3 which was the letter of resignation dated 11 August 2005. The terms of the letter were referred to Mr Lombardi at T45 and he said his “interpretation is if the deed is - -is legal and binding, well, so is the resignation.” After another question and answer the Commissioner said that it was “a legal question which I will deal with in due course as to whether that’s an effective notice or not”. The Commissioner then said in effect there was a question as to whether a conditional notice attached to a resignation which was not satisfied “whether it’s an effective notice or not”. (T45). The Commissioner said the witness could not speculate about that.
31 Additionally, during the cross-examination of Mr Lombardi, on the topic of the rate of pay of the appellant the Commissioner asked “How does this relate to the jurisdictional issue?” At T47 the Commissioner said she did not “think you need to go into the minutia” [sic] of a dispute during the course of the appellant’s employment. The Commissioner made the same point at T48 about the issue of the appellant’s hourly rate.
32 At T49 the Commissioner said the “question’s referred for hearing as to whether there - the [appellant] should be estopped from bringing a claim for unfair dismissal. There is no claim for contractual benefits before the Commission”.
33 The appellant’s agent made his closing submissions first. In commencing his submissions at T58 he said that the “jurisdictional issues are based on two items”. One was “is jurisdictional [sic] denied because of resignation and, two, does the deed of settlement and release contain a - - [sic] ingredients by which the worker has no further right to proceed”. In the next paragraph as recorded in the transcript the appellant’s agent said the “second part is concerning a resignation. That resignation was conditional upon the deed being presented to Work Cover. The evidence was it was never done so and any notice given of an intention to resign is invalidated”. It was then submitted that “we say there is no valid resignation”. (T59).
34 In the closing submissions by the respondent’s agent at T65 he referred to the other “vital question in this matter is the question of the agreement to - - to resign”. Reference was made to the lack of evidence being given by or on behalf of the appellant so that there was uncontradicted evidence on behalf of the respondent. (T65/66). The question of the validity of the resignation was discussed by the respondent’s agent and the Commissioner at T67-68. There was discussion about the effect if the first resignation notice was ineffective and a nullity. The Commissioner said “does it really matter for the point of view for the jurisdictional argument because there is a second tendering of a notice which appears to be quite effective on its face”. (T68).
35 The respondent’s agent said the letter dated 3 October “conveys clearly a resignation”. (T69). It was also submitted by the respondent’s agent that if the resignation on 11 August 2005 constituted a valid resignation then: “There is no basis to any of this application because what this application is doing is relying upon a subsequent resignation – that is, that of the 3rd of October”. (T73).
36 The appellant’s agent made submissions in reply but did not question the entitlement of the respondent’s agent, as part of the hearing, to have made submissions about the issue of the resignation on 11 August 2005.

(e) Lack of Awareness
37 Notwithstanding the contents of the Amended Notice of Hearing and perhaps the statement by the Commissioner at T49 referred to above, the way in which the respondent’s agent opened the hearing on 3 February 2006 and the plethora of references to the facts and effect of the “resignation” during the hearing, shows that this was, or was taken by the parties and the Commissioner overall to be, an issue for hearing and determination that day. The appellant’s agent did not at any stage indicate any lack of awareness of the intention by the Commission to “deal with the issue of the termination of employment” as asserted in “particular” 1.7. Additionally, as stated earlier, s31(3) provides that a party represented by an agent is bound by their actions. It may be, as asserted in “particular” 1.7 that the appellant by his agent did not on his behalf call witnesses or cross-examine about, or was prepared for the issue of, the termination of employment. There is however no evidence to support the assertion that, as pleaded in the ground, the appellant was not aware of the Commission’s intention to deal with the termination issue, and that as a consequence there was a denial of natural justice or procedural fairness.
38 Accordingly, and in particular in the absence of any evidence by or on behalf of the appellant suggesting the contrary, in my opinion the ground of appeal falls at the first hurdle. This is that the appellant cannot establish he was unaware of the Commissioner’s intention to deal with the issue of the termination of employment at the hearing on 3 February 2006.

(f) The Hearing on 10 July 2006
39 At the commencement of the hearing on 10 July 2006 the appellant’s agent said the matter was listed to determine whether the claim had been filed out of time and if so, with the Commission’s permission, whether the unfair dismissal claim could proceed. (T2). There was early discussion with the Commissioner about an assertion by the appellant’s agent that the application for unfair dismissal had been filed within time. The Commissioner asked, in effect, how the application could be said to be filed within time if the date of resignation was 11 August 2005. The agent submitted “there was no requirement as contained in that - - that notice for the worker to resign”. The Commissioner then said that she had already made a finding about that; as to which the appellant’s agent said “yes”. The Commissioner then said that whether the matter was filed out of time or not turned on what date Mr Lombardi received the notice of resignation. The Commissioner also said she had already found the appellant’s letter constituted a notice of resignation “so you can’t challenge that finding …”. The Commissioner said the agent was “bound by the findings I‘ve already made on that”. The appellant’s agent thanked the Commissioner and moved on.
40 Again, it is very material that there was no complaint raised at that stage by the agent about any alleged unawareness of the resignation issue being part of what was to be heard and determined at and as a consequence of the hearing on 3 February 2006, or any suggested denial of natural justice or procedural fairness in what had occurred. Again, as stated, the appellant is bound by the actions of his agent.

(g) The Status of the Amended Notice of Hearing
41 The Amended Notice of Hearing did not by its contents suggest the issue of the date of termination of employment would be heard on 3 February 2006. In my opinion, however this did not of itself mean the hearing and determination of that issue on and after 3 February 2006 was procedurally unfair.
42 The Commission’s procedural charter contains flexibility. (See for example s27 of the Act). This feeds into a consideration of whether the terms of the Amended Notice of Hearing alone meant there was procedural unfairness. The terms of the Amended Notice of Hearing did not by way of either an express or implied status under the Act or Industrial Relations Commission Regulations 2005, delineate the boundaries of what could be heard and determined on 3 February 2006. The flexibility of process which the Commission possesses meant that although the Commission was bound to act fairly, this did not necessarily mean it was confined to only hear and decide on 3 February 2006 what was listed in the Amended Notice of Hearing. The issue for consideration, now, is whether there was a process of determination by the Commission which was unfair. The facts set out earlier demonstrate that it was not.

(h) Natural Justice or Procedural Unfairness
43 Representations made by an administrator, Tribunal or Court may, in some circumstances lead to a denial of natural justice. The authorities emphasise however that the facts and legislative context are what is important in establishing such a contention. I have already referred to the procedural charter of the Commissioner containing flexibilities but with the duty to act fairly.
44 The High Court discussed some of the relevant principles of natural justice or procedural fairness in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006), 81 ALJR 515, 231 ALR 592. In the joint reasons of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ their Honours said:-
“[25] Counsel for the respondent minister correctly submitted, at the outset of his argument of the appeal to this court, that “what is required by procedural fairness is a fair hearing, not a fair outcome” …
…
[26] It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. …”

45 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 the High Court rejected an asserted denial of procedural fairness by the failure of a departmental officer to interview a person who had relevant information and had provided a letter, before a decision was made to cancel a visa. There had been a previous representation that this would occur.
46 Gleeson CJ at paragraph [34] said:-
“The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”

47 McHugh and Gummow JJ at paragraph [48] said that “the particular requirements of compliance with the rules of natural justice will depend upon the circumstances” and at paragraph [105] emphasised that it is “the fairness of the procedure adopted” which is “the concern”. (See also Hayne J at paragraph [114]).
48 An example of where there was a denial of procedural fairness is Muin and Lie v Refugee Review Tribunal and Others (2002) 190 ALR 601. Both the applicants were misled by representations made by the Tribunal into thinking it was unnecessary for them to draw to the attention of the Tribunal information which had been contained in documents, considered by the Minister’s delegate, in refusing a protection visa application, which were said to have been received and considered by the Tribunal. It was part of an agreed statement of facts before the High Court that if the applicants were aware that all of the documents had not been sent to or read by the Tribunal, they would have arranged for additional submissions or evidence to be placed before the Tribunal. Statements made by the Tribunal to the applicants were very material, on the agreed facts, in providing a foundation for the applicants to hold the beliefs which they did. Neither applicant was given an opportunity to place before the Tribunal material which they would have submitted if they were not induced into being mistaken about what had been before or read by the Tribunal. There was therefore a denial of natural justice.
49 Another relevant example is the Full Court of the Federal Court decision in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271. There was a denial of natural justice where an applicant for a protection visa was, because of the wrongful prevention of her lawyer from representing her, subjected to a “process of surprise”. ([72]). In that case however there was evidence before the Court as to what had occurred before the Tribunal and in particular the appellant’s knowledge of, reaction to and state of mind. There was no such evidence here and from the transcript, no evidence of a “process of surprise”.
50 Another decision of the High Court where issues were discussed about the possible denial of natural justice, based in that case upon a representation by a judge, was Stead v State Government Insurance Commission (1986) 161 CLR 141. There is nothing however in the facts or decision which supports the present appeal.
51 Finally, the observations of Gillard J in SBA Foods Pty Ltd v Victorian WorkCover Authority and Anor [2001] VSC 276 at [280]-[283] may be apposite:-
“[280] My conclusion is supported by the House of Lords decision of Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876.
[281] In that case, the notice of a hearing of an appeal, against a decision to deport a person, was mistakenly sent by his solicitors to the old address, with the result that the appeal was heard in his absence, and dismissed. The House of Lords held that there was no breach of natural justice.
[282] At p.898, Lord Bridge of Harwich said -
"These considerations lead me to the conclusion that the party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument."
[283] In my opinion, those principles apply, a fortiori, when a party and its advisers decide to conduct a review on a certain basis. They can hardly complain when, having established the ground rules, an adverse decision is made. What they seek to do is change the rules. This they cannot do after the decision is made.”

(i) Conclusions on Ground 1
52 If there was any unfairness to the appellant arising out of what happened on 3 February 2006 and the decision of 13 April 2006 it was not because of a lack of procedural fairness or denial of natural justice by the Commission. This is because, despite the terms of the Amended Notice of Hearing, there is no evidence to support the asserted lack of awareness. The transcript shows the appellant’s agent was, or at the very least ought to have been, aware that the termination of employment issue on the basis of the letter dated 11 August 2005 was to be dealt with at the 3 February 2006 hearing. If the agent was genuinely taken by surprise at the hearing he did not at the time and has not thereafter asserted that this was so. If the appellant, via his agent or otherwise, did not take the opportunity to best present his case at the hearing, this was not because the Commission engaged in an unfair process.
53 For these reasons ground 1 cannot be established.

Ground 3
(a) The Ground
54 Ground 3 is that:-
“3. The Learned Commissioner misdirected herself and fell into error in her finding on 13TH April 2006 that the Applicant’s employment was terminated when the notice signed by the Applicant on 11 August 2005 was by the Respondent.

PARTICULARS:
3.1 The notice signed by the Applicant on 11TH August 2005 was a conditional one and was based on registration of the Deed of Release signed at the same time as the notice being registered with WorkCover and was to take effect from the date of such registration.
3.2 The Deed of Release was never registered with WorkCover and its resignation was within the control of the Respondent.
3.3 The Notice of Resignation dated 11TH August 2005 ought to have been found by the Learned Commissioner in the circumstances to have been a nullity or alternatively a notice that it had lapsed due to the failure of the condition and therefore is of no force or effect.
3.4 There was no communication from the Respondent to the Applicant of any acceptance by the Respondent of the notice of 11TH August 2005.
3.5 The Respondent did not finalise the Applicant’s entitlements due at termination such as accumulated annual leave based on termination being effected by 11TH August 2005 notice.
3.6 The Respondent did not issue a Separation Certificate to the Applicant based on the 11TH August 2005 notice.
3.7 The Applicant did not waive the condition contained in the notice of 11TH August 2005 that the resignation was to take effect on the registration of the Deed of Release with WorkCover.”

(b) The Particulars
55 The question of whether the appellant’s employment was terminated when the notice signed by him on 11 August 2005 was accepted by the respondent involves questions of law and fact. As to matters of fact there is no dispute about what is contained in “particulars” 3.1, 3.2, 3.4, 3.5, 3.6 and 3.7. As to “particular” 3.2 the registration of the deed did not occur but there was no agreement on whether it could or should be registered with WorkCover registration.

(c) The Relevant Reasons
56 With respect to “particular” 3.3, the Commissioner’s reasons at paragraphs [29]-[30] are:-
“29 To be valid a notice of termination must specify when the termination is to occur, or must at least make it possible for that to be ascertained (McCarry, “Termination of Employment Contracts by Notice” (1986) 60 ALJ 78 at 79 and the cases cited therein.) If the notice is conditional, the condition must be satisfied (McCarry, op cit at 85). A notice of termination which is invalid is, at law, a repudiation but can bring the contract to an end if the invalid notice is accepted by the other party (McCarry, op cit at 81 and 85. See also Macken, O’Grady, Sappideen and Warburton, “Law of Employment” (5th Edition) at 173 to 174).

30 In this matter the notice was invalid as the time set for the notice period could not expire as the condition that the Deed be approved by WorkCover could not be satisfied. However, the evidence given by Mr Lombardi makes it clear that the notice to resign was accepted by him on behalf of the Respondent as an agreement was reached between the Applicant and the Respondent at the conference on 2 August 2005 that the Applicant would resign. Consequently, I find that the Applicant’s employment was terminated when the notice signed by the Applicant on 11 August 2005 was accepted by the Respondent.”

57 Accordingly, the Commissioner seems to have accepted the first part of what is asserted in “particular” 3.3 but decided the invalid resignation did have force and effect because it constituted a repudiation which could and did bring the contract to an end when accepted by the respondent.
58 That is, the steps in the Commissioner’s reasoning were:-
(a) The notice was invalid because the condition could not be satisfied.
(b) An invalid notice of termination is a repudiation of the contract of employment.
(c) As such, if accepted by the other party it can bring the contract to an end.
(d) As the notice was accepted by Mr Lombardi on behalf of the respondent on 11 August 2005, the appellant’s employment then terminated.

(d) Repudiation of an Employment Contract
59 The ground of appeal, and particulars 3.3 and 3.4 bring into question the soundness of steps (b) and (d) of the Commissioner’s reasons. In my respectful opinion, for the reasons set out below the Commissioner erred in both steps (b) and (d).
60 The McCarry article and Macken text cited by the Commissioner proceed from the conventional foundation that a contract of employment is generally subject to the same rules which apply to other commercial contracts. This includes that if there is a repudiation of the contract by one party, this may bring the contract to an end, but only if the other party elects to accept the repudiation.
61 In the sphere of employment law the authorities establish a distinction between the employment contract and employment relationship, and a repudiatory breach (such as a refusal by an employer to allow an employee to work) may end the relationship but not, at that point, the contract. (Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 per Brennan CJ, Dawson and Toohey JJ at 427). If the repudiation is accepted then the contract is then at an end.
62 Although there has been academic criticism of this approach (see Theories of Termination in Contracts of Employment: The Scylla and Charybdis, B Hough and A Spowart – Taylor, (2003) 19 Journal of Contract Law 134) there is no doubt it currently applies as part of the common law in Australia. With respect, a very clear statement of the position is given by Steytler J (with whom Wallwork and Parker JJ agreed) in Conway-Cook v Town of Kwinana (2001) 108 IR 421 at [29] where his Honour said:-
“[29] The distinction between termination of the employment relationship, on the one hand, and termination of the contract of employment, on the other, is important. While there is no doubt that a wrongful dismissal terminates the employment relationship, the contract of employment itself continues until such time as the employee accepts the repudiation constituted by the wrongful dismissal (and a wrongful dismissal will almost invariably amount to a repudiation: see Gunton v Richmond-upon-Thames LBC [1981] 1 Ch 448 at 468) and puts an end to the contract: see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427.”

(e) The Invalid Notice as Repudiation
63 In my respectful opinion the Commissioner erred in law in paragraph [29] in saying that a notice of termination which is invalid is, at law, a repudiation and in paragraph [30] in applying this principle to the facts of the applications.
64 In the present case the notice of resignation was expressed to take effect when the deed was approved by WorkCover. The notice of resignation was because of this found by the Commissioner to be conditional. There is no complaint by the respondent about this finding.
65 In the McCarry article at page 81 it refers to a “repudiatory notice” if accepted, bringing the contract to an end upon acceptance. The article does not at that point say that all invalid notices of termination of employment constitute a repudiation of the contract. Indeed later on page 81 the article says that a “purported acceptance of a supposed but non-existent repudiation will not bring a contract of employment to an end, nor will it operate as a valid notice of termination under the contract”. At page 85 of the article it states that there is “authority that notice must be unconditional or, if conditional, the condition must be satisfied”. McCarry does not there state that a conditional notice, where the condition has not or cannot be satisfied constitutes a repudiation of the contract. Admittedly the article does on page 85 also provide that an “invalid notice of termination is a repudiation of the contract by the person issuing it”. It may be however that this is too broad a statement given what was written earlier.
66 In Macken, at page 178 there is the following passage:-
“An invalid notice has been called a “nullity” for the purposes of assessing damages to which the innocent party may be entitled as a result of the breach of contract by the party terminating the contract invalidly. In Automatic Fire Sprinklers Pty Ltd v Watson, Dixon J called an inadequate notice “abortive”. An inadequate notice may be made effective by the recipient’s acceptance. Alternatively, the giving of inadequate notice may be treated as an offer to terminate capable of acceptance.” (Footnotes omitted)

67 I note the use of “may” in the quoted passage. The footnotes to the passage cite Gunton v Richmond-upon-Thames LBC [1981] Ch 448 at 474 per Brightman LJ; Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 467; Hill v C A Parsons and Co Ltd [1972] Ch 305 at 313 and Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 164-5.
68 In CA Parsons, Denning LJ at 313 said:-
“Then comes the important question: what is the effect of an invalid notice to terminate? Suppose the master gives the servant only one month's notice when he is entitled to six? What is the consequence in law? It seems to me that if a master serves on his servant a notice to terminate his service, and that notice is too short because it is not in accordance with the contract, then it is not in law effective to terminate the contract — unless, of course, the servant accepts it. It is no more effective than an invalid notice to quit. Just as a notice to quit which is too short does not terminate a tenancy, so a notice which is too short does not terminate a contract of employment.”

69 This passage was quoted with approval by the Full Court of the Industrial Relations Court of Australia in Gunnedah Shire Council. Their Honours held the primary judge had correctly stated the principles of repudiation where his Honour said:-
“… the respondent's conduct did not constitute an ``absolute refusal to perform the contract'’: see Lord Selborne in Mersey Steel & Iron Co v Naylor, Benzon & Co (1884)9 App Cas 434 at 438.”

70 The Full Court did not however agree with the primary judge’s application of principle to the facts. Their Honours also did not share the primary judge’s view that the notice of termination was “conditional on Mr Grout being accepted as incapacitated for superannuation purposes … In our opinion, the correct conclusion on the evidence is that, although the notice given by Mr Grout was unduly short, it was an unconditional notice capable of acceptance by the council so as to bring the contract of employment to an end, subject only to the point earlier reserved and to which we now turn.”
71 There is an implication in these reasons that if the notice was conditional it might have lead to different legal consequences.
72 Gunnedah Shire Council was cited by Smith C in Little v Women’s Legal Services Inc (WA) (2000) 81 WAIG 296 at paragraph [34]. There the Commissioner said that a resignation which is too short may be made effective by acceptance by the recipient, citing both Hill v CA Parsons and Gunnedah Shire Council. It was then said that alternatively, “inadequate notice can constitute repudiation of a contract of employment, in that the giving of immediate notice and not presenting for work could be characterised as an absolute refusal to perform the contract”, citing Gunnedah Shire Council at 165-167. In this passage I note the use of “can” and “could”. In the present case, after the provision of the conditional notice on 11 August 2005 the appellant did not present himself for work but the inference is open from the evidence that he still held a medical certificate to possibly explain this.
73 The present issue may be considered by reference to what at law constitutes the repudiation of a contract. I have already quoted Gunnedah Shire Council on this point. In Foran and Another v Wight and Another (1989) 168 CLR 385 Brennan J at 416 said that for there to be repudiation of a contract there must be a breach of an essential term.
74 In Shevill and Another v The Builders Licensing Board (1982) 149 CLR 620, Gibbs CJ at 625 said that a repudiation occurs where a party to a contract evinces an intention to no longer be bound by the contract because they are not willing to continue to perform it.
75 In Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138, Hasluck J at [31]-[33] said:-

“31 A repudiation occurs when a party manifests unwillingness or inability to perform a contract at all or in some essential respect. The focus is on the conduct or attitude of the contract-breaker. A contract is repudiated when the party evinces an intention no longer to be bound by it, or to fulfil it only in a manner substantially inconsistent with his or her obligations, or if and when it suits. An actual intention to repudiate is not necessary: the issue is resolved objectively: Cheshire & Fifoot, "Law of Contract" (supra) at par 21.11.
32 Breach of an essential term may indicate that the party in breach is renouncing its obligations under the contract or is unable to perform it. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the contract, as the case may be, and that this ought to have been apparent to the promisor: Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR(NSW) 632 at 641; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 430.
33 Repeated failure to perform is not in itself enough to establish repudiation. Thus, consistently late payment of the rent by a lessee plainly endeavouring to meet his obligations was held not to be repudiatory in Shevill v Builders Licensing Board (1982) 149 CLR 620. However, on the other hand, in Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, the lessee was not merely late in paying rent, but asserted the right to withhold it, and committed other breaches of the lease; these factors added up to repudiation.”

76 Finally, Basten JA in Perpetual Trustee Company Ltd v Meriton Property Management Pty Ltd (2006) ANZ Conv R 321, [2006] NSW CA 75 said (Mason P and McColl JA agreeing) succinctly at paragraph [52]: “Repudiation occurs when one party says ‘I agree that this is what our bargain requires me to do, but I do not intend to do it’”.

(f) Conclusion on Repudiation
77 Applying these principles to the present case involves consideration of the status of the appellant’s letter that he was to resign his employment, conditional upon the approval of the deed by WorkCover. There was not either in the hearing before the Commissioner or the Full Bench, a full discussion of the issue of whether the deed could be approved by WorkCover. It is clear that it was not so approved but the submissions on appeal did not clearly establish whether this approval was not permitted under the Workers’ Compensation Act or was just unnecessary for the deed to be legally effective. The Commissioner found the condition “could not be satisfied”, and earlier referred to the respondent’s submission that s67 of the Workers’ Compensation Act meant that WorkCover could not “by operation of law” approve the deed ([21]).
78 It is not necessary to have a firm view on this however to determine this aspect of the appeal. Here, there was a resignation which was to take effect if a particular condition was satisfied. It was contingent upon the happening of the facts constituting the condition. Those facts did not occur. The resignation did not therefore take effect. The resignation did not because of its conditional nature breach an essential term of the contract or show the appellant did not want to be bound by the contract, other than when the condition was fulfilled. Unless and until that occurred, the terms of the resignation show the appellant was and intended to remain the employee of the respondent. The notice of intention may have been “invalid” in the sense that it was conditional upon something which could not arise, but this did not make the resignation a repudiatory breach of the contract.
79 For these reasons, step (b) in the reasoning of the Commissioner identified above did not apply in the circumstances of this case. Accordingly in my opinion and with great respect this aspect of ground 2 of the appeal is established.

(g) Acceptance
80 Additionally, with respect to (d) in the Commissioner’s reasons, the Commissioner seems to have decided that “acceptance” occurred when Mr Lombardi received the notice and accepted it in the sense of thinking the “matter was complete”. This was because of the prior agreement to resign at the workers’ compensation conciliation conference and the receiving of a copy of the deed on the same day. (See reasons for decision at [17]). This “acceptance” was not however on the evidence communicated to the appellant.
81 It seems that Mr Lombardi assumed the contract of employment was at an end but had no dealings with the appellant about this. The appellant it seems had been off work from the time of the making of his workers’ compensation claim.
82 To constitute an acceptance of a repudiation there needs to be either a communication to the “guilty” party or some act which shows unequivocally that the “innocent” party is treating the contract at an end (see Vitol SA v Norelf Ltd (The Santa Clara) [1996] AC 800 at 810-11, [1996] 3 All ER 193 at 200; Hooper Bailie Association Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 at 213; Berger v Boyles [1971] VR 321 at 326; Poort v Development Underwriting (Vic) Pty Ltd (No 2) [1977] VR 454 at 459 and Lines MacFarlane Marshall Pty Ltd v Fletcher Construction Australia Ltd [2000] VSC 358 at [511]-[513]).
83 In The Santa Clara, Lord Steyn, with whom the other law lords agreed said at (All ER) 200:-
“(1) Where a party has repudiated a contract the aggrieved party has an election to accept the repudiation or to affirm the contract: Fercometal SARL v Mediterranean Shipping Co SA, The Simona [1988] 2 All ER 742, [1989] AC 788. (2) An act of acceptance of a repudiation requires no particular form: a communication does not have to be couched in the language of acceptance. It is sufficient that the communication or conduct clearly and unequivocally conveys to the repudiating party that that aggrieved party is treating the contract as at an end. (3) It is conceded by counsel for the buyers that the aggrieved party need not personally, or by an agent, notify the repudiating party of his election to treat the contract as at an end. It is sufficient that the fact of the election comes to the repudiating party’s attention, for example notification by an unauthorised broker or other intermediary may be sufficient: Wood Factory Pty Ltd v Kiritos Pty Ltd [1985] 2 NSWLR 105 at 146 per McHugh J, Majik Markets Pty Ltd v S & M Motor Repairs Pty Ltd (No 1) (1987) 10 NSWLR 49 at 54 per Young J and Carter and Harland Contract Law in Australia, (3rd edn, 1996) pp 689-691, para 1970.”

84 The reasons of Lord Steyn in The Santa Clara were cited with approval and applied by Nathan J in Lines MacFarlane, cited above.
85 The Commissioner did not, in her reasons or recital of the facts set out what Mr Lombardi did to indicate to the appellant he had accepted the apparent repudiation. From my reading of the evidence there was no communication to the appellant or other unequivocal action by Mr Lombardi which satisfied the legal requirements of an “acceptance” of any repudiation. Accordingly and with great respect I am also of the opinion that the Commissioner erred in law and/or fact in finding that there was an “acceptance”.

Orders
86 If the appeal was successful, the appellant sought an order that the decision of the Commission made on 31 July 2006 be set aside and the matter remitted for further consideration by the Commission. These orders may be made under s49(5) of the Act and in my opinion are the appropriate orders. The Commissioner will need to review the issue of the date of the termination of employment in light of these reasons and consider whether as a result the application was or was not filed out of time, and what flows from that. Due to the way in which the application was decided at first instance and the grounds of appeal, it has not been necessary in this appeal to review the reasons of the Commissioner in refining to extend time.
87 In my opinion a Minute of Proposed Orders should be issued in these terms:-

1. The appeal is allowed.
2. The operation of the decision of the Commission made on 31 July 2006 is suspended.
3. The application is remitted to the Commission for further consideration and determination.

BEECH CC:
88 I agree that the appeal must be upheld for the reasons outlined by his Honour, and have nothing to add.

HARRISON C:
89 I agree that the appeal must be upheld for the reasons outlined by his Honour, and have nothing to add.
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