WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 01150

DELIVERED : THURSDAY, 4 OCTOBER 2007

FILE NO. : FBA 39 OF 2006

Appellant

AND

Roslyn Green

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner J H Smith

Citation : (2006) 86 WAIG 3253

File No : U 172 OF 2005

CatchWords:

Industrial Law (WA) - Appeal against amount of compensation ordered to be paid by appellant for unfair dismissal - Principles regarding mitigation and compensation - Parties ordered by Full Bench to file additional written submissions about amount of loss to be found - Additional submissions of respondent not taken into account - Information/Evidence not before Commission at first instance - Allowance made for period of adjustment - Economic factors considered - Inference of ready employment - Four weeks compensation for loss

Legislation:

Industrial Relations Act 1979 (WA), s49(4)(a)

Result:

Appeal allowed, order 2 of the Commission on 23 October 2006 set aside, substituted compensation order

Representation:

Appellant: Mr R Gifford, as agent

Respondent: In person

Case(s) referred to in reasons:

Underdown v Dowford Investments Pty Ltd (2005) 85 WAIG 1437

Trades and Labour Council of WA v Minister for Consumer and Employment Protection and Others (2006) 86 WAIG 1633

Case(s) also cited:

Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711

Supplementary Reasons for Decision

RITTER AP:

The Purpose of the Additional Submissions

1          The Full Bench published its primary reasons on 16 August 2007.  In my reasons (with which Scott C agreed), in conclusion, at paragraphs [80]-[84] I said:-

“(k) Applicability of Principles in Assessing Compensation in the Appeal

80 There is a difficulty in determining the orders which should be made in this appeal.  This is because apart from the reference to nominal compensation the appellant did not make any submission to the Full Bench about the extent to which the respondent’s reasonable failure to mitigate had exacerbated her loss.  Accordingly in my view the Full Bench is not yet in a position to assess the extent which the loss of the respondent could have been lessened if she had made reasonable attempts to mitigate.  The Commissioner found that but for the unfair dismissal the employment of the respondent with the appellant would have lasted at least a further six months.  This finding of fact is not challenged on appeal and must in my opinion be taken into account in assessing compensation.  In my opinion however it cannot be said that the loss of wages by the respondent over the whole of that period was caused by the unfair dismissal.  At least some of it was caused by her failure to mitigate.  The difficulty is in deciding that amount.

81 In deciding compensation the Commission is also required by s23A(7)(a) of the Act to take into account the efforts of the former employer to mitigate loss.  Here the appellant paid the respondent two week’s wages instead of providing notice.  This amount must be taken into account in assessing loss.  (See Dellys v Elderslie Finance Corporation Ltd (2002) 82 WAIG 1193).

82 Additionally it is my preliminary view that in assessing the respondent’s compensation the Full Bench may take into account the unskilled nature of her employment with the appellant, the level of wages she earned and hours worked in that employment, the buoyancy of the Western Australian economy and statistics about the rate of unemployment.  Using this evidence and information the Full Bench could make a reasoned determination, on balance, of the extent of the loss caused by the dismissal.

(l) Additional Submissions

83 This method of now assessing the respondent’s loss was not discussed with the parties at the hearing of the appeal.  Therefore in accordance with s26(3) of the Act and the duty of the Full Bench to be procedurally fair, in my opinion the appropriate course is for the Full Bench to publish its reasons and seek additional submissions from the parties about the amount of the loss which should be found by the Full Bench and orders which should be made, in light of my reasons. 

84 As to this, the respondent is at a disadvantage because of her lack of representation.  Accordingly, I would suggest the respondent ascertain if the Employment Law Centre of Western Australia would be prepared to assist her to provide submissions.”

The Order and Compliance

2          On 23 August 2007 the Full Bench issued an order in the following terms:-

“1. The parties shall file and serve additional written submissions within 21 days about the orders which should be made as a consequence of the reasons for decision of the Full Bench.”

3          After delivery of the reasons the respondent advised my associate by telephone that, as suggested in my reasons, she had made contact with the Employment Law Centre.  She advised my associate however that although it had given her some advice, the Centre was not able to represent her in making submissions.

4          The respondent filed her written submissions on 11 September 2007.  The appellant did so on 13 September 2007.

The Respondent’s Submissions

5          The respondent’s submissions did not address the point identified in paragraph [83] of my reasons (agreed to by Scott C) and paragraph [107] of the reasons of Wood C.  That is they did not address the amount of loss which should be found by the Full Bench in light of the reasons for decision.

6          Instead, the respondent made submissions directed at the issue of whether she had taken reasonable steps to mitigate her loss.  Her submissions:-

(a) Provided further information about the move from Merredin to Boyanup.  A copy of a letter sent to the respondent’s husband advising of his transfer was provided.  The letter showed that this was eight months after the unfair dismissal.

(b) The respondent’s husband’s work roster was also included for the months during which the respondent worked with the appellant and after that.  The roster demonstrated the dates and times when the respondent’s husband was away from home.  The respondent said this supported a submission that she was running their household “as almost a single parent”.

(c) Said the type of work which the respondent could most readily have applied for would be night shift or weekend work which would either interfere with her caring for her children or require a full-time nanny to be employed.

(d) Said, with respect to the teacher’s aides positions applied for, that there were others employed as teacher’s aides at the time who had completed less of the relevant course than she had.

(e) Indicated the only positions which would be reasonably practicably available for the respondent were those where the work hours coincided with school hours.

(f) Said her concern about not being able to find work after being dismissed by Mr Hatch was genuine because of the “small town syndrome” of people generally offering employment to those who they knew as part of sporting clubs, churches, social groups and the like.

7          The respondent concluded that she had done “everything I could to mitigate my loss”.

Can the Respondent’s Submissions be Taken into Account?

8          Regrettably for the respondent, I think that I am unable to take into account the additional information provided about whether her attempts to mitigate were reasonable.  Section 49(4)(a) of the Industrial Relations Act 1979 (WA) (the Act) provides that an appeal “shall be heard and determined on the evidence and matters raised in the proceedings before the Commission …”.  The information provided in the respondent’s additional written submissions was not “evidence” raised in the proceedings before the Commissioner at first instance.  According to the ordinary meaning of the words contained in s49(4)(a), the Full Bench cannot determine the appeal on the basis of this evidence/information.

9          It has been previously held by the Full Bench that in some exceptional circumstances, despite the terms of s49(4)(a), the Full Bench may receive new or fresh evidence.  In Underdown v Dowford Investments Pty Ltd (2005) 85 WAIG 1437 Sharkey P and Kenner C with whom Scott C agreed said at paragraphs [4]-[9] the following:-

“FRESH OR NEW EVIDENCE

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

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

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

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

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

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

10       Although these paragraphs may blur any difference between “new” and “fresh” evidence that is immaterial in this appeal.  Also paragraph [8] refers to the “opposite result” being reached to that at first instance.  This aspect of the reasoning in Underdown does not apply because the respondent seeks to provide additional evidence/information before the Full Bench to maintain the finding made by the Commissioner at first instance that reasonable steps were taken to mitigate.  This difference is not however material in the present case.

11       The evidence/information which the respondent has now tried to put before the Full Bench does not meet the tests outlined in Underdown.  The evidence/information was certainly available to the respondent at the time of the hearing before the Commissioner.  Additionally, as set out in my primary reasons, both the Commissioner and the appellant’s agent asked the respondent questions about her attempts to find employment after her dismissal.  It was then open to the respondent to make the points she now wishes to.  She did not take this opportunity to do so.  Even though the respondent was unrepresented at first instance, she is bound by the way she ran her case and the failure to provide this evidence/information at that time.

12       Accordingly, I do not intend to take into account the respondent’s additional submissions.

The Appellant’s Submissions

13       The appellant’s written submissions argued that although it did not lead any direct evidence about the prospects of other relevant employment opportunities in Merredin, it was open to the Commission to rely on other information.

14       In the submissions there was reference to the following:-

(a) Information which could be obtained from the yellow pages about other motor vehicle dealerships in Merredin.

(b) The state of the Western Australian economy including unemployment statistics available from the Western Australian Treasury website.

(c) The reasons for decision of the Commission in Court Session in the “General Order to Vary all Award Rates and Allowances”; Trades and Labor Council of Western Australia v Minister for Consumer and Employment Protection and Others (2006) 86 WAIG 1633 (the 2006 General Order).

15       With respect to (a) and (b) I am not persuaded that the Full Bench should have regard to this information, given the constraints referred to above about receiving new evidence/information.  I do think however that the Full Bench may have regard to the findings made by the Commission in Court Session in the 2006 General Order.  The analysis by the Commission in Court Session of economic conditions was relevant to the period now under consideration.  I also think that the Full Bench can take into account facts which are “at large” or which one might take judicial notice of such as the buoyant state of the economy of Western Australia including the low unemployment rate.

16       In the 2006 General Order the Commission in Court Session made findings about the state of the Western Australian economy including the gross domestic state product and the unemployment rate.  At paragraph [111] the Commission in Court Session said the unemployment rate was 3.5% in May 2006.

17       The appellant submitted the Full Bench ought to conclude that it had discharged its onus to both prove a failure to reasonably mitigate and the amount of the respondent’s prima facie loss had not therefore been caused by the appellant.  It was submitted that the only steps taken to reasonably mitigate loss were the attempts to secure the teacher’s aide positions.

18       It was submitted that the loss caused by the appellant amounted to only two weeks pay.  The appellant also referred to the amount paid by it to the respondent in lieu of notice; and pointed out that contrary to what I said in paragraph [81] of my primary reasons, the evidence was that the respondent was paid a week’s pay in lieu of notice and not two.  I thank the appellant’s agent for pointing this out.

19       The bottom line submission of the appellant therefore was that an amount equivalent to two weeks average earnings was the appropriate amount of compensation.

The Amount of Compensation for Loss

20       I largely accept the process of analysis submitted by the appellant.  As suggested in my primary reasons, I think the Full Bench, in assessing the respondent’s loss, may take into account the nature of employment the respondent had with the appellant, the rate of her pay and the economic factors I have referred to.  As set out in my primary reasons it is also appropriate to take into account the pay in lieu of notice given by the appellant to the respondent.  In my opinion, on balance, the respondent could readily have obtained employment with at least a similar rate of pay and hours of work if she had taken reasonable steps to mitigate her loss.

21       The issue of when it is reasonable for a person to commence looking for work after their employment has ended is a question of fact, dependent on the circumstances. As discussed in my primary reasons it is a question of what a reasonable person would have done in the circumstances of the wronged employee. On the particular facts of this case I think that allowance should be made for a period of adjustment for the respondent in coming to terms with a dismissal which was found to be unfair, making an assessment of her position and then trying to obtain alternative employment.  This is because of the following:-

(a) In giving her evidence it is clear, from the transcript, that the respondent had been upset by what had happened.

(b) The experience that she described in the workplace involving unfair treatment by another employee.

(c) The way she found out about the real reason for her dismissal. The respondent was initially told by Mr Hatch that he could not afford to keep her on. In her evidence the respondent said that she was “really upset though I could understand his position…”.  (T8).

(d) The respondent took a sensible first step towards getting another job by asking for a reference. She did this by sending an email to the appellant.

(e) A couple of days after her dismissal the respondent was told by someone she knew that worked near the appellant’s workplace that it looked like there was another car cleaner being employed there.

(f) Shortly afterwards the respondent went to the appellant’s workplace to find out about the reference and collect her pay. She spoke to Mr Hatch and was told they had a new car cleaner and that the reason she had been dismissed was that she “didn’t do a good job”. In response the respondent said that she was “really really hurt” and “shocked” and walked out.  (T11).

22       In my opinion on the facts of this case a period of two weeks should be allowed for the adjustment referred to. I emphasize however that this does not mean that this is an appropriate allowance to be made in every case. Also it is not a back door way of obtaining compensation for injury for what might be described as the ordinary disappointments of losing a job. It is simply recognition that the allowance may be justified on the facts where the circumstances are such that a reasonable person in the position of the wronged employee would take a period to adjust to their position before seeking other work.

23       I am satisfied, as conceded by the appellant, that the attempts to obtain the teacher’s aide positions were reasonable attempts to mitigate loss.  There was no precise evidence about when or how long this process took. I am prepared to make an allowance of three weeks for this however, on the basis of what the respondent said about writing letters of application, receiving responses and her following up why she had not received an interview.

24       In my opinion after this period of five weeks (two for adjustment and three for the teacher’s aide applications) the respondent did not reasonably mitigate her loss.  Additionally, based on the factors referred to above, if she had done so she would probably have been able to earn an amount which was at least the same as that which she was being paid by the appellant.  Accordingly, taking into account the one week’s pay in lieu of notice, in my opinion the appropriate level of compensation which ought to be ordered by the Full Bench is the equivalent of four weeks pay.

25       In paragraph [47] of her reasons the Commissioner made a finding that the respondent was paid on average $340.00 gross per week.  The appellant has not sought to challenge that figure.  Accordingly in my opinion it is appropriate for the Full Bench to make an order that the appellant pay the respondent within seven days of the date of the order the sum of $1360.00 less any taxation that may be payable to the Commissioner of Taxation.

Orders

26       In my opinion therefore the Full Bench should publish a minute of proposed orders that:-

1. The appeal is allowed.

2. Order 2 made by the Commission on 23 October 2006 is set aside.

3. The appellant pay to the respondent within seven days of the date of this order compensation of $1360.00 less any taxation that may be payable to the Commissioner of Taxation.

SCOTT C:

27       I have had the benefit of reading the supplementary reasons for decision of the Honourable Acting President.  I respectfully agree with those reasons.  The circumstances of each case are unique.  As his Honour makes clear, the components for compensation applicable to the respondent in this matter, particularly a period of adjustment of two weeks, relate directly to the facts of this case.  There are many cases of unfair dismissal where the circumstances are such that the employee is able to commence looking for and secures alternative employment without delay.  This will depend on a number of factors including but not limited to:

1 The circumstances of the dismissal;

2 The type of work the employee is capable of performing and seeks;

3 The employee’s personal circumstances which may limit his or her availability to move locations or to work different hours arrangements; and

4 The labour market, both generally and for the particular employee’s skills, qualifications and experience.

28       Therefore it should not be seen that any period of adjustment will automatically arise.  On the contrary for most employees the period of notice will constitute that period of adjustment.

WOOD C:

29      I have had the benefit of reading the Supplementary Reasons for Decision of His Honour the Acting President.  I agree with those reasons and have nothing to add.