Appeal against a decision of the Commission in Matter No. U 45/2013 given on 17 October 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00488

DELIVERED : MONDAY, 16 JUNE 2014

FILE NO. : FBA 17 OF 2013

Appellant

AND

Jeremy Freeman

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner J L Harrison

Citation : [2013] WAIRC 00871; (2013) 93 WAIG 1711

File No : U 45 of 2013

CatchWords : Industrial Law (WA) - Appeal against decision of the Commission - Termination of employment - Commission found employee unfairly dismissed - Applications to adduce fresh evidence considered - Appeal against discretionary decision - Turns on own facts - No error demonstrated - Appeal dismissed - Applications for costs and interest dismissed

Legislation : Industrial Relations Act 1979 (WA) s 23A(6), s 26(1)(a), s 27(1)(c), s 29(1)(b)(i), s 49(2), s 49(4)(a)

Minimum Conditions of Employment Act 1993 (WA) s 5, pt 5, s 41, s 43

Result : Appeal dismissed

Representation:

Appellant : Mr M J Griffiths and Ms A Griffiths

Respondent : Ms A Tapsell, as agent

Case(s) referred to in reasons:

Amalgamated Metal Workers and Shipwrights Union of Western Australia v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733

Brailey v Mendex Pty Ltd (1993) 73 WAIG 26

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 61 IR 32; (1995) 185 CLR 410

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Gilmore v Cecil Bros (1996) 76 WAIG 4434

Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220

Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266

Shire of Esperance v Mouritz (1991) 71 WAIG 891

WA Access Pty Ltd v Vaughan (2000) 81 WAIG 373

Case(s) also cited:

Malik v Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

Reasons for Decision

THE FULL BENCH:

The appeal and the order appealed against

1          This appeal is instituted under s 49(2) of the Industrial Relations Act 1979 (WA) (the Act) against the decision made by the Commission on 17 October 2013 ([2013] WAIRC 00871; (2013) 93 WAIG 1711) in U 45 of 2013.

2          Application U 45 of 2013 was an industrial matter referred to the Commission by Jeremy Freeman under s 29(1)(b)(i) of the Act.  Mr Freeman claimed he was harshly, oppressively or unfairly dismissed by Marcus John Griffiths and Angeline Griffiths trading as Midwest Top Notch Tree Services (Top Notch Tree Services).

3          Application U 45 of 2013 was lodged in the Commission on 25 March 2013.  Mr Freeman claimed his employment was terminated on 18 December 2012.  Consequently, the application was 69 days outside of time for filing an application pursuant to s 29(1)(b)(i) of the Act.  The matter was heard on 5 September 2013.  At the hearing at first instance Mr Freeman gave evidence in support of his claim and Ms Griffiths gave evidence on behalf of Top Notch Tree Services.  At the conclusion of the hearing of oral evidence, the Commissioner informed Ms Griffiths that she required copies of Mr Freeman's time and wages records to be produced.  These records were provided to the Commission on 12 September 2013.

4          After hearing the parties, the Commission made an order that application U 45 of 2013 be accepted out of time.  The Commission also made a declaration that the dismissal of Mr Freeman by Top Notch Tree Services was unfair, that reinstatement or re-employment was impracticable and ordered Top Notch Tree Services to pay Mr Freeman compensation in the sum of $3,240 gross within 14 days of the date of the order.

5          Mr Freeman also made an application for contractual benefits in B 45 of 2013 which was heard at the same time as the claim for unfair dismissal in U 45 of 2013.  The claims related to the non-provision of wage slips and the ability to access eight hours leave to attend job interviews.  After hearing the matter an order was made to dismiss B 45 of 2013.

6          The grounds of appeal are drafted in narrative and set out some of the submissions why it is said that the Commissioner erred in making the declaration that Mr Freeman was unfairly dismissed.  It appears, however, from the grounds of appeal and the submissions made by the parties that the decision to accept the application for unfair dismissal out of time is not directly challenged in this appeal.

Reasons for decision at first instance

7          The Commissioner hearing the matter found the following facts:

(a) Mr Freeman commenced employment with Top Notch Tree Services in early May 2012 and his last day of work was 18 December 2012.  He was employed on a full-time basis and paid $27 per hour.  He undertook grounds person duties which included cutting trees and feeding them into a chipper.

(b) Mr Freeman's terms and conditions of employment were contained in a written contract of employment (exhibit A1).  Clause 16 of the contract states that either the employee or employer may terminate the employee's employment by giving two weeks' notice during the employee's first year of employment or payment in lieu of notice.  The employer could pay the employee's wages for the notice period or require him to work either part or none of the notice period.

(c) Mr Freeman was informed by Mr Griffiths, on or about 18 December 2012 that he was terminated as the business was closing down in December 2012.  Top Notch Tree Services claimed that it had decided that after the two week Christmas close down commencing on 20 December 2012, it would cease to operate or continue trading after restructuring its operations.  Either way Mr Freeman's services would no longer be required in 2013.  If Top Notch Tree Services was to continue trading other employees were to be retained who were more skilled than Mr Freeman and therefore more flexible with respect to the work that they could undertake.

(d) During the Christmas close down period Top Notch Tree Services decided to continue operating in 2013 and to employ all of its permanent employees except Mr Freeman and Mr Malcolm McIntyre, who no longer wished to work for Top Notch Tree Services.  The employees who remained working for Top Notch Tree Services included Mr Brett Marendez, Mr Caleb Dumitro and Mr Mark Rulyanich.  Even though Mr Rulyanich had less service than Mr Freeman as a permanent employee, he was more multi-skilled than Mr Freeman.

8         The Commissioner set out the evidence given by Mr Freeman as follows:

(a) After Mr Freeman had worked 17 days for the employer on a job in Southern Cross he returned to work on 17 December 2012.  The next day he spoke to Mr Griffiths about returning to New Zealand during the employer's Christmas close down.  In response Mr Griffiths told him that he did not have a job next year as Top Notch Tree Services was closing down.  He was also told that the employer would give him a positive reference.  On 19 December 2012, Mr Griffiths rang Mr Freeman to invite him to the employer's Christmas 'break-up' function.  Mr Griffiths also sent Mr Freeman a text message saying he 'couldn't go about it (Mr Freeman's termination) the way I have' (ts 21) and he told Mr Freeman to return to work for two weeks in January 2013 and he would then be terminated.

(b) As Mr Freeman had already been dismissed and his job would not continue after the two weeks he was asked to work in January 2013 he decided to use the two week notice period in January 2013 to look for other work.

(c) Mr Freeman spoke to Mr Dumitro in February 2013 about obtaining a reference from the employer and he discovered that Top Notch Tree Services was still trading and continued to employ all of its other permanent employees except for him.  Mr Freeman then contacted the Fair Work Commission on or about 27 February 2013 and the Commission about his options, including lodging an unfair dismissal claim.

(d) After he was terminated Mr Freeman was unsuccessful in obtaining other employment.  He applied for a number of jobs including concreting, joinery, gardening and work at the local bowling club.  Mr Freeman was due to commence employment in Brisbane in October 2013 working in the building industry.

9         The Commissioner found the employer's evidence was as follows:

(a) It was Ms Griffiths' understanding that on 17 December 2012 (in order to give as much notice as possible to its employees), all employees were told by Mr Griffiths that the employer would be reducing the number of its employees or closing after Christmas.  This notice was to allow employees to look for alternative work.  However, they were still required to work the remainder of that week.  Top Notch Tree Services then received advice that employees could not be given notice of their termination during a Christmas close down period so Mr Griffiths left a message on Mr Freeman's telephone telling him that he was required to return to work for two weeks in January 2013 to work out his notice period.

(b) When Mr Freeman did not return to work for the rest of that week or for two weeks in January 2013 the employer assumed he had abandoned his employment so he was not paid the two weeks' notice due to him.

(c) Ms Griffiths stated that the employer was unaware that Mr Freeman was unhappy about his termination or that he would be contesting his termination until they received a copy of his application in the mail.

10      The Commissioner set out the test for determining whether a dismissal is unfair.  She found that the principles are well settled.  These are as follows:

(a) The onus is on Mr Freeman to establish that the dismissal was, in all the circumstances, unfair.

(b) Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against Mr Freeman as to amount to an abuse of the right needs to be determined.

(c) A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair.  However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair:  Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 61 IR 32; (1995) 185 CLR 410.  In Mouritz, Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.

(d) Redundancy is itself a sufficient reason for dismissal:  Amalgamated Metal Workers and Shipwrights Union of Western Australia v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733.  When an employer reduces its workforce due to an excess of employees reasonably required to perform the work available this constitutes a redundancy situation:  Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220, 224.

(e) By virtue of s 5 of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act), pt 5 of that Act is implied into Mr Freeman's contract of employment and a failure to comply with the mandatory requirements under this section is a factor to be taken into account in deciding whether a dismissal is unfair:  Gilmore v Cecil Bros (1996) 76 WAIG 4434, 4445; WA Access Pty Ltd v Vaughan (2000) 81 WAIG 373, 378.

(f) Section 41 of the MCE Act requires that an employee is to be informed by the employer of the decision to make him or her redundant in a timely manner and an employer is required to discuss the effect of the redundancy on the employee and measures that may be taken to minimise the impact of the effect of the redundancy.  Section 43 of the MCE Act provides that an employee is entitled to paid leave of up to eight hours to attend interviews for other employment and the eight hours need not be consecutive.

(g) Mr Freeman was unfairly terminated.  He was not given any notice of his termination prior to being terminated by Mr Griffiths on 18 December 2012, nor was he given a payment in lieu of notice when he was terminated and told his services were no longer required.  The employer subsequently sent Mr Freeman a text message on or about 19 December 2012, after his termination, asking him to return to work in January 2013 for two weeks to work out his notice, effectively reinstating him.  The sending of a text message to an employee to reinstate him in this instance was inappropriate when taking into account that Mr Freeman had been terminated without notice the day before.

(h) As Mr Freeman was entitled to two weeks' notice of termination under his contract of employment and taking into account s 26(1)(a) of the Act and the duty on the Commission to consider the relief being sought on the basis of equity, good conscience and the substantial merits, an order would be made that Top Notch Tree Services pay Mr Freeman three weeks' remuneration as compensation for his unfair dismissal.

Grounds of appeal

11      Although the grounds of appeal are not drafted in a conventional way, there appears to be two grounds of appeal.  The first is that the Commissioner erred in law in that she was remiss in her duty to be unbiased and failed to act in a manner equitable to both parties.  The second ground of appeal is that although the onus was on Mr Freeman to prove his claim, he failed to provide any proof whatsoever to substantiate his claim.

12      Top Notch Tree Services argue that the Commissioner accepted Mr Freeman's evidence despite conflicting details to his story.  In particular, the whole of Mr Freeman's evidence should have been rejected as there was evidence before the Commission which showed that Mr Freeman's evidence was unreliable in respect of a number of issues.

Applications to adduce fresh evidence

13      At the hearing of the appeal, both parties sought to tender into evidence copies of documents that were not before the Commission at first instance.  On behalf of Top Notch Tree Services an application was made to tender a Telstra telephone account invoice issued on 16 January 2013 to Terra Form Contracting for a mobile telephone which shows numbers dialled and the duration of telephone calls from a mobile telephone.  One call on the list is said to be a record of a telephone call to the mobile telephone of Mr Freeman on 19 December 2012 at 7:38pm for a duration of one minute.  The telephone bill was sought to be admitted on grounds that it shows that on 19 December 2012, Ms Griffiths telephoned Mr Freeman.  This was said to support the oral evidence that she gave that they attempted to make telephone contact with Mr Freeman.

14      Mr Freeman's agent, Ms Tapsell, also made an application to tender a number of documents into evidence.  These were said to be evidence of Mr Freeman's driver's licence, evidence of phone records, emails and a timebook which was relevant to the contention by Mr Freeman that workers' compensation had not been paid to him.  Ms Tapsell conceded that at the hearing at first instance Mr Freeman had those documents in court but they were not produced to the Commission or shown to any witness.  When asked why, Ms Tapsell said that those documents were not asked for and the timebook was already one of the documents which had been tendered into evidence.

15      Whilst the application made on behalf of Top Notch Tree Services was not opposed by Mr Freeman's representative, after hearing from the parties, the Full Bench informed the parties that the application to adduce evidence by Top Notch Tree Services was refused.  The reasons why the Full Bench refused the application are as follows:

(a) Section 49(4)(a) of the Act provides that an appeal to the Full Bench shall be heard and determined on the evidence and matters raised in the proceedings before the Commission.

(b) The Full Bench does, however, have a discretion to receive additional evidence within strict confines which is that fresh evidence can only be admitted if:

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: Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437 [8] (Sharkey P and Kenner C); applied in Merredin Customer Service Pty Ltd v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10]; Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 [60].

16      The application made on behalf of Top Notch Tree Services to adduce evidence of the Telstra telephone account was refused on grounds that it was a document that could have been produced at the hearing at first instance if reasonable diligence had been used to locate the document prior to the hearing.

17      The application made on behalf of Mr Freeman to produce documents was also refused.  The reason the application was refused was because it is well established that each party is bound by the case that they run at first instance.  If a party has documents available to them at a hearing and they choose not to seek to tender them into evidence or put them to any witnesses for examination or cross-examination, then they are bound by the course that they have taken and the documents in question should not be admitted on appeal.

18      An application was also made on behalf of Top Notch Tree Services for Mr Griffiths to give evidence about what occurred at the meeting which Mr Griffiths had with Mr Freeman and the other employees on Monday, 17 December 2012.  The grounds upon which that application was made were that the Commissioner had rejected the evidence given by Ms Griffiths about what was said at the meeting on grounds of hearsay because she was not present at that meeting.  This application to adduce further evidence was also refused on grounds of the principle that each party is bound by the way they conduct their case at first instance.

19      In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

Submissions

20      Both parties filed written submissions prior to the hearing of appeal.  Top Notch Tree Services also sought to rely upon matters set out in a statutory declaration made by Ms Griffiths on 15 November 2013.  In this appeal we have only had regard to the matters set out in the statutory declaration which are submissions made about the issues raised in the appeal and the evidence before the Commission at first instance.

Submissions made on behalf of Top Notch Tree Services

21      The relevant submissions as to the reasons why Top Notch Tree Services says the evidence given by Mr Freeman should not have been accepted by the Commission at first instance are as follows:

(a) The meeting at which Mr Griffiths informed Mr Freeman that the business would be either downsizing or closing down occurred on Monday, 17 December 2012, not 18 December 2012.  The wage records completed by Mr Freeman show that he finished work at 1:00pm on Monday, 17 December 2012 and he did not come to work on Tuesday morning, 18 December 2012.  The timesheet for the week ending 19 December 2012 was tendered as part of exhibit R1(2).  That document shows that Mr Freeman worked six hours that week and on 17 December 2012 he started work at 7:00 am and finished at 1:00 pm.

(b) Mr Freeman claims to have been terminated on 18 December 2012, days before they ceased operating for Christmas because there was no work.  However, there was enough work for all of the other employees for the remainder of the week until they closed down, including three casuals (ts 32).  Ms Griffiths gave evidence that there was tree cutting to carry out on 18, 19 and 20 December 2012 and they had a Christmas party on the evening of 20 December 2012.

(c) Mr Freeman claimed that he had not received any wage slips and he had raised this issue at the staff meetings, yet he failed to provide any witnesses or statements to confirm this.  At the commencement of the hearing of this matter and prior to evidence being adduced by the parties, Ms Griffiths informed the Commission that when Mr Freeman first commenced employment her practice was to put each wage slip in Mr Freeman's time book.  Halfway through that employment she changed her practice and sent the payslips by email (AB 39).

(d) The Commissioner failed to act in a manner equitable to both parties.  Mr Freeman was provided approximately six weeks to request documents for the hearing.  He failed to do so in the allocated timeframe.  The Commissioner then contacted Top Notch Tree Services via email requesting the documents and they were provided limited time, 27 hours to produce them.

(e) Mr Freeman also claimed he had not been paid workers' compensation.  After viewing his payslips, the Commissioner was satisfied that his workers' compensation had been paid, disproving that claim.  However, she failed to acknowledge discrepancies in his wages which support the claim that he was unreliable, demonstrating that her interest was in finding evidence in support of his claim rather than focusing on getting to the truth of the matter.  Thus, it is contended that the Commissioner showed bias.  Also, the employer says this evidence shows that Mr Freeman's evidence should not have been accepted because his workers' compensation had been paid and that is reflected in the payslips, so therefore the whole of his evidence should be regarded as unreliable.

(f) Ms Griffiths also gave evidence that there were other reasons which contributed to the decision not to keep him on, because they downsized, because Mr Freeman did not have a current licence and it was impractical to use him.  From this submission it is said he was unreliable and thus his evidence should have been regarded as unreliable (AB 28).

(g) Top Notch Tree Services contend that the events set out in the evidence given by Ms Griffiths should have been accepted by the Commissioner.  This evidence was that before the meeting on 17 December 2012 Ms Griffiths and Mr Griffiths were trying to decide whether or not to close the business or downsize as the business was not financially viable.  However, they did not make their final decision until sometime during the two-week period they closed over Christmas.  In that period they decided to retain Mr Dumitro, Mr Marendez and Mr Rulyanich and for Mr Griffiths to take on a more managerial role.  Prior to the meeting on 17 December 2012, she discussed with Mr Griffiths what was to occur.  Mr Griffiths told Ms Griffiths that he was going to tell the employees that they were considering closing down or downsizing to give them notice and plenty of opportunity to look for other work.  Because they had had issues with terminating employees before, she told Mr Griffiths to make sure he did it procedurally correct.  However, at the time of the conversation she wondered if they could terminate any employees over the two-week period that they were closed over Christmas.  At the meeting on 17 December 2012, the four employees including the casuals and Mr Freeman were told that they would be terminated after Christmas or that they would not be required.  Sometime later she telephoned Wageline and was informed that they were unable to terminate employees during the Christmas period.  After she was told by Wageline that she could not give people notice over the period that they were closed for Christmas, she told Mr Griffiths after he had met with the employees that:

On the Tuesday morning you go in and you inform everybody that we have to give them two weeks' notice and that they can work when we start back after Christmas for two weeks, specifically Mr Freeman.  That's why we rang and left a message on his phone (AB 57).

When asked by the Commissioner was that confirmed in writing that employees still had a job after Christmas, Ms Griffiths said:

Well, basically, Mr Freeman was the only one entitled, the other three were casuals. My husband rang his phone and left him a message telling him that, as Mr Freeman stated in his application. He said - you know, under our, 'We're obligated to provide you these two weeks' notice, so come back to work when we start back after Christmas for two more weeks' work' (AB 58).

(h) Mr Freeman did not complete all the tasks required of him.  He was repeatedly instructed to obtain a driver's licence.  Because he did not, it was impractical for Top Notch Tree Services to maintain his employment when they downsized, as was explained to him on 17/18 December 2012 (AB 93).  Pursuant to the express terms of Mr Freeman's contract of employment on grounds of failing to follow all lawful and proper directions Top Notch Tree Services was entitled to terminate Mr Freeman's employment summarily.

(i) Mr Freeman was not paid the two-week notice period because he abandoned his employment, did not request job search entitlements or provide proof that he had attended any interviews.

(j) A finding should have been made that Mr Freeman abandoned his employment because he did not continue to work the days prior to Christmas, nor did he return to work after Christmas and for those reasons they did not make any further payments to him other than his wages and his leave entitlements.

Relevant submissions made on behalf of Mr Freeman

22      Mr Freeman gave evidence at first instance that he was off work for two weeks and made a workers' compensation claim, but he was not paid workers' compensation because he was not at work to fill in his timebook (AB 32).  The submission was made that when the payslips are examined for the period 4 October 2012 to 10 October 2012 it can be seen that he was paid sick leave for that period instead of being paid workers' compensation, so consequently that period of time he was off work was deducted from his sick leave.

23      Ms Tapsell, on behalf of Mr Freeman, pointed out that even if you have regard to the evidence given by Ms Griffiths in her evidence, her evidence could not be accepted in its entirety because it is clear that it is common ground that a telephone call was made to Mr Freeman in which he was told that he was effectively being reinstated to return to work for two more weeks of work after Christmas.  Thus, it is said that if it were the case that Mr Freeman was not terminated at the meeting prior to Christmas 2012 then there would have been no reason for that telephone call to have been made.  It was clear that the employer had already decided to terminate Mr Freeman's employment and had done so.

Did the Commissioner err in finding Mr Freeman had been unfairly dismissed?

24      The central issue in the employer's grounds and submissions is a contention that the Commissioner unfairly preferred the evidence given by Mr Freeman to the evidence given by Ms Griffiths.

25      The decision made by the Commissioner that the dismissal of Mr Freeman was unfair was made by the Commissioner on assessment by her of the evidence given in proceedings at first instance which included the documents tendered into evidence on behalf of the employer at the hearing.  She also had regard to copies of payslips and payroll transactions provided by the employer after the hearing of oral evidence.

26      The assessment of evidence is a discretionary decision.  A discretionary decision cannot be set aside because members of a Full Bench would have exercised the discretion in a different way.  Error in the decision-making process must be demonstrated.  In Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266 Ritter AP said ([140] - [143]):

The relevant principles were set out in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 as follows:

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'

As there stated, an appeal against a discretionary decision cannot be allowed simply because the appellate court would not have made the same decision.  The reason why this is so was explained in the joint reasons of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]-[21]. At [19] their Honours explained by reference to the reasons of Gaudron J in Jago v District Court (NSW) (1989) 168 CLR 23 at 76, that a discretionary decision results from a 'decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result"'.  Instead 'the decision-maker is allowed some latitude as to the choice of the decision to be made'.  At [21] their Honours said that because 'a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process'.  Their Honours then quoted part of the passage of House v King which I have quoted above.

Similarly, Kirby J in Coal and Allied at [72] said that in considering appeals against discretionary decisions, the appellate body is to proceed with 'caution and restraint'.  His Honour said this is 'because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions.  It is rare that there will only be one admissible point of view'.  (See also Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 and Wilson and Dawson JJ at 535).

These principles of appellate restraint have particular significance when it is argued, as here, that a court at first instance placed insufficient weight on a particular consideration or particular evidence.  This was considered by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519.  There, his Honour explained that although 'error in the proper weight to be given to particular matters may justify reversal on appeal, … disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge'.  This is because, in considering an appeal against a discretionary decision it is 'well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion', and that when 'no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight'.  (See also Aickin J at 534 and 537 and Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36]).

27      The employer's submissions are founded in part on a contention that insufficient weight was given to the documentary evidence, which are the payslips and the timesheets for the week ending 19 December 2012, which contradicts Mr Freeman's evidence that he was not paid workers' compensation when he was unfit for two weeks in September 2012 and the meeting at which he said he was dismissed occurred on Monday, 17 December 2012.  When Mr Freeman gave evidence he simply said he was not paid workers' compensation (AB 20 - 21).  He also said he was not trying to prove that was the case; only that he was 'using it for an example of how unfair they were' (AB 21).  The payslips provided to the Commission following the hearing showed he was paid wages in September 2012 and October 2012.  However, an inference that Mr Freeman's evidence was not reliable or truthful in respect of this issue cannot be conclusively drawn from the timesheets.  The Commissioner found in her reasons for decision that Mr Freeman was employed full-time and his contract of employment states his ordinary hours are eight hours a day ([34], AB 78).  This finding has not been challenged in this appeal.

28      Clause 5.1 of the contract states (exhibit A1):

the Employee is required to work a maximum of 40 hours/week.  They may be required to work reasonable additional hours

29      Whilst the contract of employment contemplates that Mr Freeman was to work up to 40 hours a week together with reasonable overtime, the hours of work for which he was paid varied.  Mr Freeman gave uncontradicted evidence that he had an accident on 20 September 2012 (ts 20, AB 41).  The payslips for the two weeks prior to the accident indicate he was paid for the following hours:

(a) pay period 6 September 2012 to 12 September 2012 – 40.75 hours;

(b) pay period 13 September 2012 to 19 September 2012 – 30 hours.

30      The payslips for the four weeks on and from 20 September 2012 indicate he was paid for the following hours:

(a) pay period 20 September 2012 to 26 September 2012 – 37 hours;

(b) pay period 27 September 2012 to 3 October 2012 – 23 hours;

(c) pay period 4 October 2012 to 10 October 2012 – 11 hours and 24 hours;

(d) pay period 11 October 2012 to 17 October 2012 – 36.5 hours;

31      Whilst the payslips indicate that Mr Freeman was paid wages in the period in question, no evidence was before the Commission as to the entitlements from which those payments were made.  In particular, whether the payments made were deducted from sick leave credits or were payments of workers' compensation is not known.  Nor was any finding made by the Commissioner that Mr Freeman was paid compensation for the period he was off work in September or in October 2012.

32      Mr Freeman's evidence was that he went to work on Monday, 17 December 2012 and after finishing one job at 1:00 pm he was told:

'See you in the morning', come into work. The boys are saying, 'We've got no work on for the rest of the year. We might be closing down - closing down earlier than we were going to', so I thought, 'Well, I'll go and see Marcus', because I was wanting to go back to New Zealand for Christmas. If there was going to be something down early, I asked him, 'Could I be let go early to go home for Christmas?' and right at that minute he goes to me, 'Hang on, hang on, we're going to have a meeting', and I said, 'Oh, yeah', and we go to the meeting and he goes to me, 'I wouldn't go spending all your money on plane tickets because you've got no job next year'. That's what he said. That's the exact words.

And then what happened?-And then we had a meeting - the other boys came in. We sat down and he bought up the spiel of, 'I'm closing down Top Notch Trees next year. I'm closing the (indistinct 10.02.49)'. That's what he said, 'Closing the business of Top Notch Trees next year, so there's no job for me' (AB 36).

33      The evidence given by Ms Griffiths that the meeting Mr Griffiths convened with Mr Freeman and the other employees occurred on Monday, 17 December 2012 and not Tuesday, 18 December 2012 could be said to be consistent with and supported by Mr Freeman's timesheet which indicates he only carried out work on Monday, 17 December 2012.  However, in the notice of answer and counterproposal Top Notch Tree Services clearly sets out material facts that are inconsistent with the evidence of Ms Griffiths that:

(a) no decision had been made to downsize the business prior to the Christmas shutdown; and

(b) Mr Freeman was not told at the meeting his employment was terminated.

34      To the contrary, the following matters are clearly stated that are contrary to the evidence given by Ms Griffiths:

(a) at the meeting Mr Griffiths notified the employees they may be closing down or at least downsizing;

(b) Mr Freeman and three employees were informed that their employment would be terminated.

35      In the notice of answer and counterproposal, Top Notch Tree Services state:

Monday 17 December 2012, Marcus notified the Employees that we may be closing down the business after Christmas, or at least downsizing. Four employees including you, were informed that your employment would be terminated. (You chose not to attend the last three days of work before we closed for Christmas, therefore you could not have been informed of your termination in person on the day).

Your duties are currently being performed by Brett Marendaz who commenced employment with us January 2011.

You requested time off to seek alternative employment. According to your time book, you finished work at 1pm Monday 2012 [sic].

Tuesday 18 December 2012, Marcus left a message on your phone and provided you opportunity to continue your employment, meeting our obligations to provide adequate notice of termination of employment (AB 14).

36      It is also claimed that Mr Freeman requested time off to seek alternative employment and according to his time book he finished work at 1:00pm.  The fact that Mr Freeman asked for time off work to seek alternative employment is consistent with his evidence that his employment was terminated at the meeting in question.  Mr Freeman's evidence is also consistent with the evidence given by both him and Ms Griffiths that he received a text or telephone message on the day following the meeting telling him that they (Top Notch Tree Services) had to give him two weeks' notice after the Christmas shutdown and asking him to return to work after Christmas for two weeks.  If the employer had not terminated the employment of Mr Freeman at the meeting there would be no reason to call him to tell him to return to work after Christmas.  If his employment had not been terminated, as a full-time employee he would have been expected to return to work after Christmas.  Nor is it relevant that there was work performed by other employees on 18, 19 and 20 December 2012.  Mr Freeman's employment had been terminated.  It is immaterial that other employees continued to work.  It is common ground that in the text message sent to Mr Freeman, Mr Griffiths did not ask Mr Freeman to work on 18, 19 or 20 December 2012.  Even if the telephone record of calls made from the mobile phone in the account of Terra Form Contracting was admitted into evidence, it would not have assisted Top Notch Tree Services' case as the evidence of Ms Griffiths was simply that she attempted to telephone Mr Freeman to inquire if he intended to attend the Christmas party.  A call for this purpose could not shed any light on whether Mr Freeman's employment was terminated on Monday, 17 December 2012.  In any event, Mr Freeman's evidence was that he not only received a text message from Mr Griffiths he also received a telephone call from Mr Griffiths who gave him information about the Christmas party that was to be held on 20 December 2012 and told Mr Freeman to bring 'his missus' (AB 42).

37      Even if Mr Freeman's assertion that he was not paid workers' compensation for the period he was unable to work as a result of a workplace injury or that the meeting occurred on Tuesday, 18 December 2012 is accepted as wrong or even misleading, it does not mean that the Commissioner should have rejected all of his evidence, as she is required to weigh all of the evidence in light of the matters pleaded by the parties.

38      Whilst it is clear that the reasons for decision of the Commissioner do not disclose her analysis of her assessment of the weight of the evidence of each party, it is clear that she rejected the evidence of Ms Griffiths about her understanding of what was said by Mr Griffiths at the meeting in question.  In our opinion, when the evidence given by Mr Freeman and Ms Griffiths about the meeting in question and the evidence of the subsequent message Mr Freeman received on his mobile telephone is analysed, no error in the decision made by the Commissioner can be demonstrated.

39      The evidence given by Mr Freeman about the meeting and what was said by Mr Griffiths at the meeting were matters within his own knowledge, as he was present at the meeting.  On the other hand, the evidence of Ms Griffiths about those matters was evidence of what Mr Griffiths told her had been said.  She was not present at the meeting.

40      Whilst the Commission is not bound by the rules of evidence and can have regard to hearsay, the fact that evidence is hearsay affects the weight to be given to that evidence.  What this means is that where there is evidence given by a person who has actually experienced the event in question and conflicting evidence given by a second person who has not experienced the event but whose source of evidence about the event is what he or she has been told by a third person who experienced the event, it would not be reasonable for a decision-maker to accept a version of events of the second person, unless the evidence given by the first person could not be relied upon.  For example, such circumstances rendering the evidence by the first person unreliable could arise if the first person was heavily intoxicated at the time of the event in question and the evidence of the second person was consistent with and supported by other evidence or other material.

41      In this matter, the only evidence that could be said to support Ms Griffiths' version of events is the timesheet for 17 December 2012.  However, that evidence also supports Mr Freeman's version of events as he gave evidence that he finished work on 17 December 2012 at 1:00pm which is the time recorded on the timesheet.  Also, the evidence of the text message from Mr Griffiths is consistent with Mr Freeman's evidence that his employment had been terminated prior to receiving the text message.  Further, as set out above, the evidence of Ms Griffiths is clearly inconsistent with the matters pleaded in the notice of answer.

42      The submission that Top Notch Tree Services was entitled to summarily dismiss Mr Freeman because he failed to obtain a driver's licence is not a submission that is open to be put in this appeal.  No evidence was adduced in the hearing before the Commission at first instance that was the reason for the dismissal.  The evidence of Ms Griffiths was that Mr Freeman's employment was terminated because a decision was made to downsize the business.  The reason why they chose to retain other employees rather than Mr Freeman was because the other employees were more skilled than Mr Freeman.  If it was the case that Mr Freeman did not have a driver's licence that may have been a factor as to why a decision was made to retain other employees and not him.  However, such a decision was part of the reason to terminate Mr Freeman on the grounds that a decision was made to operate the business with fewer employees.

43      For these reasons, no error can be demonstrated in the findings made by the Commissioner to accept the evidence of Mr Freeman and reject the evidence of Ms Griffiths about what occurred at the meeting Mr Griffiths held with the employees.  As the Commissioner properly found, once Mr Freeman had been dismissed on 18 December 2012 on grounds that the business was to be downsized, it was not open to attempt to reinstate Mr Freeman by providing him with a further two weeks' work as work within a notice period, to terminate the contract of employment.  It was not open to the employer to do so, as Mr Freeman's employment came to an end on 18 December 2012.  The termination was not effected in accordance with the requirements of cl 16 of the contract which expressly required written notice of two weeks or two weeks' pay in lieu of notice.  Further, no error has been demonstrated in the finding made by the Commissioner to award one week's remuneration as compensation for the failure of the employer to comply with the requirements of s 41 and s 43 of the MCE Act.

44      The rule against bias requires a member of a tribunal to hear a matter without a closed mind.  The tribunal member must not merely listen but be open to persuasion:  Forbes J R S, Justice in Tribunals, (3rd ed, 2010) [15.1].

45      The grounds upon which the employer says the Commissioner was biased appear to be that her findings did not reflect the evidence.  However, for the reasons set out above, this submission has absolutely no merit whatsoever.  In addition, the transcript of the proceedings reveals that the employer was provided with an opportunity to test the evidence of Mr Freeman in cross-examination; to lead evidence in chief and in reply; and to make submissions at the close of the evidence.  The Commissioner also properly invited Ms Griffiths to tender into evidence the documents attached to the notice of answer and to subsequently provide copies of payslips and payroll transactions showing payments made to Mr Freeman from 17 May 2012 until 10 January 2013.

46      The submission that the Commissioner allowed Mr Freeman six weeks to request documents and only allowed Top Notch Tree Services 27 hours to produce documents is incorrect and misleading.  The Commission file records that on 5 July 2013 the Associate to Commissioner Harrison sent a letter to both parties in which it was stated in respect of U 45 of 2013 and B 45 of 2013:

In relation to both applications, the parties are advised as follows:

1. Each party is to provide to the other party the names of any witnesses they intend to call to give evidence at the hearing, by no later than 26 August 2013.

2. Discovery of documents is to be informal. The parties are to exchange any documents they will be relying on at the hearing and any additional documents relevant to the proceedings, by no later than 16 August 2013.

3. Liberty to apply is granted to the parties to seek the assistance of the Commission in relation to the discovery of documents

47      The direction to Top Notch Tree Services to provide discovery of documents was not contingent on a request from Mr Freeman for documents.  Pursuant to the direction Top Notch Tree Services was required to produce all relevant documents and they had six weeks to do so.

48      The email referred to by Top Notch Tree Services in their submissions is contained in the appeal book at AB 87.  The email was sent to Top Notch Tree Services on 29 August 2013 at 1:52pm by the Associate to Commissioner Harrison.  In the email the Associate stated:

Dear Ms Griffiths

Please find following a copy of the email that Mr Freeman says was sent to you on 12 July 2013 requesting documents for the hearing.

Commissioner Harrison has asked that the respondent provide copies of the documents requested by the applicant to him by no later than close of business Friday 30 August 2013.

49      Thus, it is palpably clear that contrary to the submission made by Top Notch Tree Services that they only had 27 hours to produce documents, the time to produce discoverable documents was in fact extended.  Notice was given on 5 July 2013 that discovery was to be provided by 16 August 2013 and this requirement was later extended to 30 August 2013.

50      For these reasons, we are of the opinion that the grounds of appeal have not been made out and an order should be made to dismiss the appeal.

Costs and interest

51      An order for costs of defending the appeal is sought on behalf of Mr Freeman as follows:

52      Pursuant to s 27(1)(c) of the Act, the Commission is empowered to make an order for costs.  Such orders are, however, rarely made.  In Brailey v Mendex Pty Ltd (1993) 73 WAIG 26, the Full Bench found it is well settled in industrial law that an order for costs ought not to be awarded, except in extreme cases such as where proceedings have been instituted without reasonable cause.  Whilst the ground of appeal in which it is argued the Commissioner was biased is a matter that has no reasonable basis, the other ground of appeal which raises issues of weight to be given to parts of the evidence whilst weak could not be classed in the category of grounds of appeal that are so manifestly untenable so as to attract an order of costs against Top Notch Tree Services.

53      For these reasons, we are of the opinion the application on behalf of Mr Freeman for an award of costs should be dismissed.

54      An order is also sought on behalf of Mr Freeman for an award of interest on the amount to be paid to Mr Freeman as compensation for his unfair dismissal.  The Full Bench, however, is unable to deal with this application as the Commission is not empowered to make an award of interest on awards of compensation made pursuant to s 23A(6) of the Act.  For these reasons, we are of the opinion that this application should also be dismissed.