Appeal against a decision of the Commission given on 27 July 2012 in Matter No. B 43 of 2012

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2013 WAIRC 00133

DELIVERED : FRIDAY, 8 MARCH 2013

FILE NO. : FBA 5 OF 2012

Appellant

AND

Dhaliwalz Pty Ltd

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2012] WAIRC 00710; (2012) 92 WAIG 1609

File No : B 43 of 2012

CatchWords : Industrial Law (WA) - appeal against decision of the Commission - duty to explain court procedures to self‑represented litigants - scope of duty considered - Commissioner failed to perform duty to assist - Commissioner erred in receiving documentary evidence - rule in Browne v Dunn not applied - claims of denied contractual benefits - terms of the contract of employment considered - even if hearing fairly conducted no entitlement to the benefits claimed could succeed - appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 27, s 29(1), s 29(1)(b), s 29(1)(b)(ii), s 49, s 49(3)

Fair Work Act 2009 (Cth) s 14, s 26(1), s 26(2)(b)(ii), s 26(2)(c)

Minimum Conditions of Employment Act 1993 (WA) s 5, s 23

Magistrates Court Act 2004 (WA) s 30

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr M N Zia and Mr S Singh

Case(s) referred to in reasons:

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607

Browne v Dunn (1893) 6 R 97

Reid v Kerr [1974] 9 SASR 367

Stead v State Government Insurance Commission (1986) 161 CLR 141

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

In Marriage of F [2001] FamCA 348; (2001) 161 FLR 189

Michael v State of Western Australia [2007] WASCA 100

Tomasevic v Travaglini [2007] VSC 337

Case(s) also cited:

Nil

Reasons for Decision

SMITH AP AND BEECH CC:

The appeal and the order appealed against

1          This is an appeal instituted under s 49 of the Industrial Relations Act 1979 (WA) (the Act).  The appeal is against an order made by the Commission on 27 July 2012 dismissing the appellant's application for orders requiring payment by the respondent for alleged outstanding contractual benefits.  The application at first instance was made pursuant to s 29(1)(b)(ii) which provides for an industrial matter to be referred to the Commission by an employee claiming 'that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment'.

2          After hearing the matter, the Commission published an order dismissing the application and reasons for decision on 27 July 2012.  The appellant filed his notice of appeal on 17 September 2012.  Due to the unavailability of the parties, the appeal was not heard by the Full Bench until 22 January 2013.  The appeal was lodged out of time as s 49(3) of the Act requires that an appeal against a decision of the Commission is to be instituted within 21 days of the date of the decision.  The appeal was 31 days out of time.

3          We are of the opinion that leave should be granted to extend time to institute the appeal on grounds that the grounds of appeal raise the manner in which documentary evidence was received into evidence in the hearing of the application at first instance and whether the hearing was conducted in a manner that was fair to the parties.

The factual background

4          The appellant was employed for a short period by the respondent from 26 November 2011 until 23 December 2011.  It was common ground that he was employed to work as a chef and that he would be paid $1,500 gross per week.  The parties were in dispute as to whether he was employed as an executive consultant chef and the duties that he was to perform.  However, the dispute about those issues was not material to the appellant's claim that he had not been allowed benefits under his contract of employment, or to the issues raised in this appeal.

5          The appellant's case was that after he commenced work he was required to work long hours.  This led to him giving notice.  The appellant's claims were as follows:

(a) Payment for 85 hours and 15 minutes in overtime.  He calculated the amount he alleged was owing using an hourly rate of $39.47.  The appellant also claimed penalties for working on Saturdays and Sundays.  The total amount he claimed for overtime and penalties was $5,375.

(b) Payment of $357.75 in travelling allowance.  He contended that this amount became due and owing when he was required to travel between Perth and Mandurah on three occasions to pick up goods.  On the first occasion he collected meat and groceries.  On the second occasion he collected a replacement Roband oven and on the third occasion he collected a stick-blender and groceries.  He calculated the travelling allowance amount at 75 cents for each kilometre travelled.

(c) Three weeks pro-rata annual leave being an amount of $355.25.

6          The respondent disputed each of the appellant's claims.

The evidence

7          The evidence of the appellant in chief was as follows:

(a) He advertised on 'Gumtree' that he was looking for work.  Mr Salwant Singh (who it appears from the way the defence was conducted is the owner of the respondent) met with the appellant at McDonald's Restaurant in East Victoria Park and told him that he was starting a new restaurant and he urgently needed someone to work as a chef, as his chef had suddenly disappeared.

(b) He was engaged by Mr Salwant Singh as an executive consultant chef and it was agreed that he would be paid a weekly salary of $1,500.  His job was to plan the menus, create recipes, train kitchen staff, prepare food, ensure hygiene and cleanliness and to assist in establishing a business and operation model for future restaurants.

(c) Soon after he started working he realised all that was required was a cook, as his executive functions were not utilised very much other than preparing a menu.  He did, however, conduct some staff training.  He worked long hours over the short period he was employed and he kept a record on his phone of the hours that he worked.  He claims 85 hours and 15 minutes in overtime.  When asked by the Commissioner how he calculated the amount he claimed as overtime, he said his hourly rate of pay was based on 38 hours, which was $39.47 a week.  He also said that he was claiming penalties for the period of time that he worked on Saturdays and Sundays.

(d) The Commissioner also asked what were the other parts of his claim for contractual entitlements.  In response, the appellant said that on 13 December 2011, he was requested by the respondent (it is assumed that was Mr Salwant Singh) to pick up meat and groceries from Perth.  When he did so he drove 152 kilometres.  On 14 December 2011, he picked up a replacement oven because the one in the restaurant was not working properly and in doing so he drove 158 kilometres.  On 15 December 2011, he travelled 167 kilometres when he picked up a commercial blender and groceries.  For these journeys he claimed 75 cents a kilometre which he said was an 'award rate'.

8          The appellant was cross-examined by Mr Muhammad Naseem Zia, who was the company manager of the respondent.  In cross-examination the appellant was asked whether there was an agreement to pay him (the appellant) for any expenses incurred in picking up equipment and groceries and the appellant said, 'No'.  The appellant then said that he was just following instructions and he was asking for payment because he incurred expenses in carrying out these duties.  The only other issues raised with the appellant in cross-examination were whether the kitchen staff were qualified and about the training they received.

9          After the very short examination in chief and cross-examination of the appellant was concluded, he stood down from the witness box and Mr Zia gave evidence.

10       When Mr Zia gave his evidence in chief he said that the appellant was not a contracted employee of the company because after the appellant commenced work they were in negotiation over the terms of the contract.  He then said that the respondent disputed the hours worked by the appellant.  In particular, he said, 'We have his timesheets that - we have kept his record of his work.  According to these - this record, we have already paid him more than he deserved.':  Singh v Dhaliwalz Pty Ltd t/a Punjabi Virsa, B 43 of 2012, hearing ts 7.  When Mr Zia gave this evidence the Commissioner asked the appellant whether he had seen the timesheets to which the appellant replied, 'No, I haven't.':  hearing ts 7.  The evidence of Mr Zia then continued.  Mr Zia then went on to express an opinion that it was misleading and false for the appellant to claim payment for additional hours as they were only operating a dinner service from 5.00pm until 10.00pm.  He conceded that some preparatory work was required each day, probably from 3.30pm or 4.00pm, to be worked by the appellant, but said that was part of the appellant's job and all included in the set pay of $1,500 a week.  Without the respondent seeking to tender them, the Commissioner simply accepted the bundle of timesheets into evidence and marked them as exhibit R1.

11       Mr Zia then gave evidence that the appellant was employed as a cook and not as an executive consultant chef and produced a bundle of pay sheets which described the appellant as a cook.  Again, but this time without asking the appellant whether he had previously seen the pay sheets, the Commission accepted the pay sheets into evidence and marked them as exhibit R2 with the title 'Bundle of pay sheets defining Mr Singh as a cook'.

12       Mr Zia was then cross-examined by the appellant.  It was put to Mr Zia by the appellant that a verbal contract of employment was formed when he (the appellant) met with Mr Salwant Singh at McDonald's and that most of the terms of the contract were finalised at that meeting.  Mr Zia said that he was not present at that meeting and pointed out there was no written contract which set out the number of hours that the appellant was to work.  The appellant then put to Mr Zia a copy of a draft letter of appointment which was drafted by him (the appellant).  The appellant asked to submit the document into evidence and the Commission accepted it and marked it as exhibit A1 and the exhibit was titled 'Letter of Appointment'.

13       The appellant then made what appeared to be a submission from the bar table that he had sent the respondent a letter of demand.  Although it was not in response to a question, Mr Zia stated that they had a copy of the document and the appellant asked if that document could be submitted and it was accepted into evidence as exhibit A2 and the exhibit was titled 'Letter of Demand'.

14       After the letter of demand was tendered into evidence, the Commissioner asked the appellant a number of questions about his claims in the letter of demand although Mr Zia was still in the witness box under cross-examination.  Whilst being questioned, the appellant tendered two more documents.  The first was a document titled 'Working hours at Punjabi Virsa'.  The document was accepted into evidence as exhibit A3.  It is a typed document which sets out the hours on each day the appellant said he worked giving starting and finishing times and any breaks.  The second document was a summary of the appellant's calculations of overtime and penalty rates which are said to be owed.  The document was titled 'Wage claims against Punjabi Virsa Restaurant' and contains calculations of the hours worked.  It was accepted into evidence as exhibit A4.  It also contains calculations of overtime at time and a half, double time and a claim for additional penalties of 25% for working on Saturdays and 50% for working on Sundays.

15       After those documents were tendered, the cross-examination of Mr Zia resumed.  Questions were then asked about the letter of demand and circumstances of how the employment relationship came to an end.

16       Mr Salwant Singh then gave evidence in chief.  Mr Salwant Singh spoke about looking for a chef as he was starting his first and very new business.  When he spoke to the appellant at McDonald's he was told by the appellant that he was a qualified chef with 45 years' experience in Singaporean and Malaysian food.  Mr Salwant Singh also said that the appellant told him that he would take $1,500 a week and do everything from morning to evening including six lunches and six dinners each week.  Mr Salwant Singh said that they did not end up doing lunches, but from the very first day the appellant commenced work he (Mr Salwant Singh) was not happy with the standard of the appellant's work.

17       The appellant cross-examined Mr Salwant Singh and sought to adduce evidence about his own qualifications and resume.  During the cross-examination the appellant handed up a bundle of references which were accepted into evidence as exhibit A5.  Mr Salwant Singh, however, gave no evidence about those documents.  The entire cross-examination of Mr Salwant Singh was concentrated on questions about qualifications of other persons employed in the kitchen and the equipment that was available to be used.  Importantly, there were no questions to Mr Salwant Singh about the terms and conditions of the appellant's employment.

18       At the conclusion of the evidence given by Mr Salwant Singh, both parties made very brief submissions.

The findings and conclusions of the Commission

19       After briefly recounting the evidence given by the witnesses, the Commissioner made no reference to the evidence given by the appellant about the records he kept of the hours of work, other than to say that the appellant had indicted he was owed 85 hours and 15 minutes in overtime at $39.47 (the hourly rate):  [12] (AB 10).  She then found that it was useful to examine the number of hours worked by the appellant as set out in the timesheets tendered as exhibit R1 which commenced from 26 November 2011 until 20 December 2011.  She referred to the evidence given by Mr Zia that in total between those dates the appellant had worked 124 hours and that the maximum hours worked in any one day were eight.  The Commissioner then made the following findings in her reasons, which we will repeat in full.  They were as follows:

20 I have had the benefit of listening to each witness in these proceedings.  I find the evidence of Mr Muhamed [sic] and Mr Sulwant [sic] Singh to be open and honestly given.  It is always open to the Commission in the circumstances to believe part of what a witness has said and to reject another part of that evidence.  Support for that proposition is found in the Industrial Appeals Court decision Cousins v YMCA of Perth [2001] WASCA 374; (2001) 82 WAIG 5 [43].  With respect to the number of hours worked during the applicant's employment I have considered exhibit R1 and the evidence given by the applicant and I prefer the evidence presented by the respondent in exhibit R1.  The Commission rejects the evidence of Mr Kulwant Singh with respect to the number of hours worked.  At no stage during the proceedings did the applicant raise the issue of accrued annual leave either in written evidence or in oral submissions.

21 The onus is on the applicant to prove that his claims, in this case additional hours were worked during his period of employment and that they are benefits to which he was entitled under his contract of employment.  Furthermore, it is for the Commission to determine the terms of the contract and to ascertain whether the claim constitutes a benefit denied under such a contract, having regard to the obligations of the Commission to act according to equity, good conscience and the substantial merits of the case as per Belo Fisheries v Froggett (1983) 63 WAIG 2394 and Hot Copper Australia Ltd v Saab (2001) WAIRC 03827; (2001) 81 WAIG 2701 - 2707.

22 It is my view that the applicant has not made out his claim that he has been denied payment due under his contract of employment specifically for the additional hours worked.  Furthermore, the Commission would go so far as to suggest that the applicant has not made out of [sic] claim that he has worked such additional hours.

23 It is the view of the Commission, the applicant conceding, that there was no contractual obligation to pay for the three days of travel undertaken on 13, 14 and 15 of December 2011 to collect goods.  In cross-examination the applicant conceded that he had offered to do it without payment on the part of the respondent.

24 The third aspect of the claim relates to accrued annual leave, a matter that the Commission has yet to receive any submissions.  Accordingly, it is the Commission's view that the applicant has not made out his claim that he has been denied payment due under his contract of employment for accrued annual leave.

25 The Commission finds there was an employee/employer relationship with the respondent.  The Commission finds there is no entitlement for accrued annual leave, additional hours claimed or travel undertaken on 13, 14 and 15 December 2011.

26 For the reasons expressed above the Commission dismisses the applicant's claim for accrued annual leave, additional hours and travel undertaken on 13, 14 and 15 December 2011.  An order will now issue dismissing the application.

Grounds of appeal

20       The appellant's grounds of appeal set out not only what the appellant says were errors made by the Commissioner at first instance, but also contain his submissions.  These are as follows:

1. In Para 14 of the Reasons for Decision the Commissioner states that in relation to the claim for travel expenses for errands done by Mr. Kulwant Singh for the respondent, the former had 'conceded there had been no commitment on the part of the respondent to pay for such travel as he had offered to pick up the equipment'.  This is not true.  This was not voluntary work but job done in response to instructions given by an employer to his employee.  As an employer, it is highly inconsiderate for to expect an employee to carry out errands involving travel of over 100 km each time without offering any compensation for travel costs.  It would also have been improper for an employee, when asked to perform an errand, to bargain for compensation before undertaking the tasks.  Applicant never expected that he was required to perform extra duties at his own expense for free.

2. In Para 16, referring to time-sheets tendered by Respondent as exhibit Rl, Commissioner Mayman observes 'while the exhibit did not cover the entire employment period of the applicant it was certainly useful to examine the number of hours worked by the applicant’.  When the time-sheets were tendered by Respondent the Commissioner asked Applicant if he had seen these before and was answered in the negative.  It is market practice for time-sheets to be filled in and signed by employees and witnessed by the employer or supervisor at the workplace.  In this case, the time-sheets were filled in by the employer himself without the knowledge of Applicant.  Furthermore, it is not market practice to have time-sheets for executive employees, only hourly-rated junior staff, so that wages can be fairly worked out at the end of the wage period.  Applicant was employed as an Executive Consultant Chef at a gross weekly package of $1500/-.  This was admitted in evidence (para 8 of Reasons for Decision).  During the entire period of employment Respondent never brought up the matter of recording working hours and never required Applicant to record or submit time-sheets.  He also never indicated that he was recording Applicant's times of arrival and departure from the workplace.  It is submitted that the time-sheets tendered by Respondent were compiled after Applicant left the employment expressly to counter the overtime hours claim.  After Commissioner Mayman asked Applicant if he had seen these time-sheets before, and his answer that he had not, they should not have been admitted in evidence.  Not only were they admitted in evidence but were accepted as the preferred evidence as against Applicant's record of working hours that was submitted in support of the overtime claim.  The decision to dismiss the claim seems in large part to be based on this fragile evidence.

3. In Para 25 the Commissioner finds there was an employer-employee relationship with the respondent.  There was also no dispute as to the period of employment, i.e. from 26/11/2012 [sic] to 23/12/2012 [sic].  Surely, to go on to say that there was no entitlement to pro-rated annual leave would be a contradiction.  Respondent never disputed this entitlement during the proceedings and Commissioner Mayman herself did not bring up the subject although it was listed as one of the denied entitlements in the original claim by Applicant.  To dismiss this claim on the grounds that no submissions were made is denying justice to the applicant.  Applicant and Respondent are both not legally-trained people and it was the responsibility of the Commissioner to guide the proceedings to ensure all points are adequately covered.  Commissioner Mayman failed to conduct the proceedings in a fair and impartial manner, leaving applicant with the impression that he has not only been denied his contractual entitlements but also been denied justice.

Did the Commissioner err in dismissing the application?

21       The question posed in this heading is important.  Firstly, it is apparent that when one crucial part of the evidence given in this matter is considered, it is patently clear that no error can be demonstrated in the finding made by the Commissioner that the appellant had no entitlement to payment for additional hours, accrued annual leave or travel.  It was common ground that it was agreed by the appellant and Mr Salwant Singh on behalf of the respondent that he would be paid $1,500 a week.  This was the only material term agreed by the parties.  Thus, the appellant's claims for overtime and travel could not succeed as there was no agreement to pay overtime or payment for kilometres travelled.  The agreement was simply that the appellant would work as a chef each week for the agreed amount.  There was no agreement that particular hours were to be worked, or that penalties or overtime would be paid.  It was an all‑up payment for each week's work as a chef, irrespective of the number of hours that had to be worked or the duties performed.  Secondly, when the question in the heading is put in this way, without considering the Commissioner's reasons for decision, regard can be had to the most important issue that should have been addressed by the Commissioner in her reasons.  That issue is and was, what were the terms of the contract?  This issue was not properly addressed by the Commissioner.  She failed to find what were the terms of the contract of employment and whether the appellant had been denied any benefit accrued to him in accordance with the terms of the contract.

22       Nor was there any agreement to pay for untaken accrued annual leave.  Where the provisions of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) apply, a right to pro-rata annual leave is implied into each contract of employment, pursuant to s 5 and s 23 of the MCE Act.  However, the respondent is a national system employer within the meaning of s 14 of the Fair Work Act 2009 (Cth).  Where a person is employed by a national system employer, no right to pro-rata annual leave can be implied into the appellant's contract of employment.  By operation of s 26(1), s 26(2)(b)(ii) and s 26(2)(c) of the Fair Work Act, an entitlement to pro-rata annual leave under the MCE Act does not apply to the conditions of employment of a person employed by a national system employer.  Thus, in this matter, in the absence of any agreement to make payment for accrued pro-rata annual leave, the appellant's claim for payment for pro-rata annual leave could not have succeeded.  In particular, there was no evidence it was a term of the appellant's contract of employment that he was to be paid for pro-rata annual leave.

Did the Commissioner err in her reasons for decision?

23       The decision appealed against is not the reasons for decision, but the order to dismiss the application.  Whilst we are of the opinion that when regard is had to the evidence given by the parties, the order to dismiss was the only order that was open on the evidence; it is apparent that the Commissioner erred in her reasons for making the order.  In addition, when the transcript of the hearing at first instance is reviewed, it is clear that the hearing was not conducted in a way that was fair to the parties.  However, this could not have changed the outcome of the application.

(a) Ground 1 – the claim for travelling allowance

24      We are not persuaded that the Commissioner erred in finding the appellant had no contractual entitlement to travelling allowance.  The appellant conceded when giving evidence at the hearing at first instance that there was no agreement that he would be paid travelling allowance to collect goods from Perth.  He resorted to 'award rates' as a yardstick.  But 'award rates' were not a term of his contract.  The Commissioner, in our opinion, properly relied upon this concession in making her finding that this claim had no merit.  For this reason, ground 1 of the appeal fails.

(b) Ground 2 - the timesheets tendered by the respondent as exhibit R1

25      Although any record of the hours worked by the appellant should have not been material as uncontradicted evidence of the parties could be relied upon to find an all‑up rate of pay, it is apparent the contents of the timesheets formed the central evidential premise relied upon by the Commissioner in making her decision to dismiss the appellant's claim for overtime.  Thus, the procedure adopted by the Commissioner in accepting these documents into evidence requires examination.

26      In ground 2 of the grounds of appeal, the appellant points out that when the timesheets were produced by Mr Zia, the appellant informed the Commissioner that he had not seen them.

27      The timesheets were tendered into evidence during the examination in chief of Mr Zia and after the appellant had given his evidence.  Whilst the timesheets were tendered into evidence without objection by the appellant and the contents were not challenged by him in cross-examination of Mr Zia or Mr Salwant Singh, the tender of these documents was, in our opinion, unfair to the appellant.  When the Commissioner asked the appellant whether he had seen the timesheets and he said, 'No', the Commissioner had a duty to assist the appellant as a self-represented litigant by advising him that he could, if he wished, object to the tender of the documents into evidence, or if the documents were to be accepted he could return to the witness box and give evidence about his knowledge of the matters stated in the timesheets.  She did neither of these things.

28      As Bell J in Tomasevic v Travaglini [2007] VSC 337 recently observed, it is the function of a judicial decision-maker to find facts on the basis of the evidence and in doing so is to ensure trial fairness and to elicit relevant evidence [127] - [128].  At [139] - [141] he explained:

139 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair.  A fair trial is the only trial a judge can judicially conduct.  The duty is inherent in the rule of law and the judicial process.  Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR [International Covenant on Civil and Political Rights].  The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

140 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity.  Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds.  Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.  Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

141 The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial.  The proper scope of the assistance depends on the particular litigant and the nature of the case.  The touchstones are fairness and balance.  The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.  The Family Court of Australia has enunciated useful guidelines on the performance of the duty.

29      These principles are also applicable to matters heard in this Commission.

30      In light of the statement from the appellant that he had not seen the timesheets, the Commissioner should have asked Mr Zia who prepared the timesheets and how the entries in the timesheets were made.  It was necessary for these questions to be asked to test whether the information contained in the timesheets could be relied upon as an accurate record of hours worked by the appellant.  Without such an inquiry, and in light of the appellant's evidence that he kept his own record of the hours he worked, it was not open for the Commissioner to have relied upon the timesheets as evidence of the actual hours worked by the appellant.  In any event, if questions were asked about who was the author of the entries in the timesheets and how were they prepared, it would have emerged that a third party kept records of times worked by the appellant and Mr Zia made the entries in the timesheets:  appeal ts 10.

31      If a party has not been given a proper opportunity to deal with evidence that is given without warning by the opposing party, the situation can in some matters be remedied by the recall of the first party:  Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607 (630).  When the timesheets were accepted into evidence, if the contents were to be regarded by either party as directly relevant to the matters in issue, the appellant should have been afforded an opportunity of being recalled to the witness box to give evidence about his knowledge of the fact of the existence of the timesheets and whether the record of hours in those timesheets was accurate.  The failure to afford the appellant such an opportunity was a breach by the Commissioner of the rules of procedural fairness and entitled the appellant to call in aid the rule in Browne v Dunn (1894) 6 R 67.  The observance of the rule in Browne v Dunn is a rule that is fundamental to the proper conduct of a hearing of any application made under s 29(1) of the Act.

32      In Allied Pastoral Holdings Pty Ltd Hunt J said about the rule in Browne v Dunn (623):

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.  Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.  That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

33      This rule of practice, as Wells J in Reid v Kerr [1974] 9 SASR 367 said, is derived from (373 - 374):

[T]wo basic precepts designed to ensure a fair trial according to law.  The first is one of common justice: no witness should be attacked – and it is of prime importance that no party and no witness should think that it has happened – behind his back; he should have a fair opportunity of meeting whatever challenge is offered to his evidence and the substance of any testimony that is to be adduced to contradict it.  The second precept is based on the practical needs of a trial under the adversary system: a judge (or jury) is entitled to have presented to him (or them) issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v. Dunn ((1894) 6 R 67 (HL)) has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night.

34      It is notable that when the Magistrates Court Act 2004 (WA) was enacted, the rule in Browne v Dunn was expressly incorporated into procedures prescribed for Magistrates Courts.  Section 30 of the Magistrates Court Act provides:

In a case where a party is self‑represented, the Court must inform the party of —

(a) the need, when cross‑examining a witness called by another party, to ask the witness about any evidence of which the witness or the other party has not previously had notice that the self‑represented party —

(i) intends to adduce; and

(ii) intends to allege will contradict the witness’s evidence;

and

(b) the consequences of not doing so.

35      The reason why this provision was enacted is that in recent times there has been a decline of professional representation in civil matters in Magistrates Courts.  This provision was enacted to reflect the common law obligation on courts and tribunals to explain court procedures to self-represented parties:  Civil Procedure WA Magistrates Court, Legislative Developments, Bulletin No 14, May 2004.  Magistrates who preside over Magistrates Courts are, unlike members of the Commission, strictly bound to apply the rules of evidence.  Thus one might say that the Commission is not obliged to apply the rule in Browne v Dunn.  Yet, in hearings where evidence is given and tested by cross-examination, the application of the rule becomes fundamental to a fair hearing.

36      Although pursuant to s 27 of the Act, the Commission is not bound by the rules of evidence and is able to inform itself as it thinks fit, that does not mean that the rules of evidence can or should be ignored.  In Justice in Tribunals (3rd ed, 2010) the learned author J R S Forbes said [12.44]:

The more important rules of evidence are designed to achieve justice and a tribunal may be persuaded, as a matter of discretion, that it is fair is to follow them.  If they are not used to exclude evidence they may help in assessing its weight (Kirkpatrick v Commonwealth (1985) 9 FCR 36; 62 ALR 533).  Consider, for example, the caution with which the courts treat eye-witness identifications (Craig v R (1933) 49 CLR 429 at 446; R v Turnbull [1977] 1 QB 224).  In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott ((1933) 50 CLR 228, 256 Evatt J observed:

Some stress has been laid by the present respondents upon the provision that the tribunal is not … 'bound by any rules of evidence'.  Neither it is.  But this does not mean that all rules of evidence may be ignored as of no account.  After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth.  No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the [other].

37      Forbes then went on to consider some practical considerations of a statutory command to liberate a tribunal from strictly applying the rules of evidence.  He observed [12.45], [12.47] - [12.49]:

[12.45] While it is clear that tribunals may act on hearsay (T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992), it may be prudent to give it little or no weight if it is not sourced, or if no supporting evidence is adduced (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33).  Some other pertinent questions are: How many 'tellers' has it passed through before reaching the tribunal?  How likely is it that the original story was distorted?  Was it reasonably possible to produce the same evidence in some better form (Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 5)?

[12.47] There are other rules of evidence that a tribunal may choose to follow.  As a matter of fairness it might decline to receive 'similar fact' evidence (See paragraph [12.60], below) if lapse of time, lack of resources or other circumstances are likely to make an effective response impossible (This is a reason for treating such evidence carefully, apart from its prejudicial tendencies:  Berger v Raymond Sun Ltd [1984] 1 WLR 625).

[12.48] The rule in Jones v Dunkel ((1959) 101 CLR 298; Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365) is a common sense rule of practice that a tribunal is entitled to apply (Stasos v Tax Agents' Board of NSW (1990) 90 ATC 4950; Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 693; Edelsten v Minister for State for Health (1998) 53 ALD 342; Hewett v Medical Board (WA) [2004] WASCA 170; Rivera v Health Care [2006] NSWCA 216; Council of the NSW Bar Association v Power [2008] NSWCA 135; Bowen-James v Walton (unreported, NSWCA, 5 August 1991); New South Wales Bar Association v Meakes [2006] NSWCA 340). According to Jones v Dunkel it may be inferred that a failure to call a significant witness, by a party well placed to call him, indicates that the missing evidence would not have assisted that party.

[12.49] According to the rule in Browne v Dunn ((1893) 6 R 97 [sic]; Allied Pastoral Holdings v Commissioner of Taxation [1983] 1 NSWLR 1), a party who intends to ask a court to reject a witness's evidence should normally challenge that evidence in cross-examination and give the witness an opportunity to respond.  This rule has been treated as a matter of natural justice in tribunals where oral evidence is received and cross-examination allowed (Hoskins v Repatriation Commission (1991) 32 FCR 443 at 446).

38      Where hearings of contested claims proceed in the Commission by the giving of witness evidence and cross-examination, the rule in Browne v Dunn should be explained to self-represented parties prior to the commencement of a hearing.  It appears that did not occur.  When the hearing transcript in this matter is read, it is apparent, as Wells J said, the body of evidence given by the appellant and the respondent passed each other without being tested 'like two trains in the night'.  In light of the fact the appellant had not previously seen the timesheets and without the reliability of the contents of timesheets being tested, the timesheets should not have been relied upon by the Commissioner.

(c) Ground 3 - the appellant's claim for pro-rata annual leave

39      In ground 3 of the grounds of appeal, the appellant complains that the Commissioner did not ensure that all claims were covered and in failing to do so he had been denied justice.  Whilst the complaint is correct, the fact is that the evidence did not provide any evidentiary support for the appellant's claim that he was entitled to under his contract of employment payment for pro-rata annual leave.  Consequently, even if the appellant had been afforded an opportunity of giving evidence and making a submission about this claim, this claim could not have succeeded.  However, that does not mean the complaint the appellant makes is not legitimate.

Further matters

40      Although the following matters were not raised by the appellant, they relate to the fundamental issue of the Commissioner not having conducted the hearing fairly.  At a point in the appellant's evidence, the Commissioner said 'All right.  You can stand down now' and asked Mr Zia whether he wanted to give evidence:  hearing ts 7.  In doing so, she did not give the appellant the opportunity, by way of re-examination, to explain or comment upon any of the answers he had given when being cross-examined.  She did not confirm that he had concluded his evidence.  She did not confirm that he had no other evidence to produce and that his case was therefore closed.  The appellant does not complain that these omissions have disadvantaged him.  However, that does not remove the obligation that was on the Commissioner to follow a procedure that ensured he was not disadvantaged.

41      At hearing ts 18-19, the appellant referred to his bundle of references and asked:  'Will they be of any use if I submit them?'  The Commissioner's response was 'Well, I'm not going to tell you that.  That would be most inappropriate, wouldn't it?'  This was unhelpful to the appellant.  We do not understand why it would be inappropriate for the Commissioner to explain to the appellant issues going to relevance and weight to be given to documents if they are tendered.  This was a hearing in which there were unrepresented parties and it was appropriate that the Commissioner respond to such a question in a way that the appellant could make an informed decision whether or not he wished to tender his references.

42      When the Commissioner reserved her decision at the conclusion of the hearing, she said:

I just want to let the parties know that this is a judicial decision, it's not an arbitral decision, which means, to prove the case, the applicant - it's a lot harder to prove a judicial decision than an arbitral decision.

43      We have great difficulty understanding this statement.  It would have been a correct statement if the Commissioner had observed that she was exercising a judicial function, and not an arbitral function.  It would be correct because when the Commission is enforcing entitlements due under a contract of employment, it is exercising a judicial function.  However, the words 'it's a lot harder to prove a judicial decision than an arbitral decision' are a nonsense:  an applicant is required to prove his claim on the balance of probabilities whether the jurisdiction being exercised by the Commission is judicial or arbitral.

44      More concerningly, if the Commissioner was intending to alert the appellant to the requirement on him to prove his case, in order to show fairness to him it was necessary that this be done at the commencement of the appellant's case, and not at the conclusion of the hearing when he had already presented his evidence.

Should the appeal be dismissed?

45      It has long been established that every person who brings an action before a court or tribunal is entitled to a fair hearing.  Usually, when a miscarriage of justice on grounds of a breach of procedural fairness has occurred, an appeal will be successful and a new hearing will be ordered.  This will not occur if a new hearing would be futile:  Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).  Thus, if compliance with the requirements of procedural fairness 'could have made no difference' to the result, relief will be withheld:  Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, applying Stead [4] (Gleeson CJ), [104] and [110] (McHugh J), [131] (Kirby J) and [211] (Callinan J).

46      Although the hearing of the appellant's claims for contractual benefits was conducted in a manner that was unfair to the appellant, the demonstrated errors did not deny the appellant the possibility of a successful outcome.  Even if the timesheets produced by Mr Zia were not accepted into evidence and the appellant's evidence about the hours he worked was accepted and even if the appellant was afforded an opportunity to make a submission or give evidence about his claim for pro-rata annual leave, in the face of uncontradicted evidence given by the appellant and Mr Salwant Singh about the agreed terms of the contract of employment, all the claims made by the appellant would necessarily fail.

47      We are of the opinion that leave should be granted to the appellant to appeal out of time as the Commissioner erred in her reasons for decision and in the manner she conducted the hearing of the application for denied contractual benefits.  Although we are of the opinion that grounds 2 and 3 of the grounds of appeal have been made out, as the appellant is unable to show that he has benefits under his contract of employment that have been denied, we are of the view that the appeal should be dismissed.

HARRISON C:

48      I have had the benefit of reading the reasons for decision of her Honour, the Acting President and Beech CC.  I agree with those reasons and have nothing to add.