Appeal against a decision of the Commission in Matter No. B 166 of 2013 given on 22 September 2014

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2015 WAIRC 00244

DELIVERED : FRIDAY, 20 MARCH 2015

FILE NO : FBA 12 OF 2014

Appellant

AND

Troy Patrick Franse

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2014] WAIRC 01035; (2014) 94 WAIG 1594

File No : B 166 of 2013

CatchWords : Industrial Law (WA) - Appeal against decision of the Commission - Industrial matter - Claim of contractual benefits by an employee - Appeal conceded - Commissioner erred in finding an implied term about a motor vehicle allowance - Commissioner erred in failing to apply correct principles of law - Commissioner erred in the assessment of the evidence - Commission's power to make an award of compensation in the form of damages for breach of a term of contract considered - New point raised on appeal - New point cannot be raised when evidence could be called to meet the point - Decision suspended - Matter remitted for further hearing and determination

Legislation : Industrial Relations Act 1979 (WA) s 7(1), s 23, s 23(1), s 23A, s 26(2), s 29(1)(b)(ii), s 35(1), s 49, s 49(5)(c)

Taxation Administration Act 1953 (Cth) s 12-35 of sch 1, s 16-5 of sch 1

Result : Appeal allowed

Representation:

Appellant : Mr G McCorry, as agent

Respondent : Mr P E Mullally, as agent

Case(s) referred to in reasons:

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570

Australian Goldfields NL (In liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191

Barnes v Forty Two International Pty Ltd [2014] FCAFC 152

Bennett & Dix (a firm) v Higgins [2005] WASCA 197; (2005) 85 WAIG 3653

Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; (1977) 52 ALJR 20

Brown v Churchill [2006] WASCA 17

Browne v Dunn (1894) 6 R 67 (HL)

Calandra v Civil Aviation Safety Authority [2015] WASCA 31

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 88 ALJR 814; (2014) 312 ALR 356

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193

Deane v The City Bank of Sydney (1904) 2 CLR 198

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471

Hoyt's Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133

Hughes v St Barbara Ltd [2011] WASCA 234

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kingstyle Investments Pty Ltd v Lawson [2013] WAIRC 00355; (2013) 93 WAIG 493

Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 00034; (2014) 94 WAIG 37

Major v Bretherton [1928] HCA 11; (1928) 41 CLR 62

Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 84 WAIG 2152; (2004) 136 IR 156

Miller v Wheatbelt Individual & Family Support Association Inc [2014] WAIC 00028; (2014) 94 WAIG 179

Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451

Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28

Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76

Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596

Shacam Transport Pty Ltd v Damien Cole Pty Ltd [No 2] [2014] WAIRC 01294; (2014) 94 WAIG 1835

Skinner v Broadbent [2006] WASCA 2

The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; (1985) 60 ALR 68

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Reasons for Decision

SMITH AP:

The appeal

1         This appeal is instituted under s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision made by the Commission on 22 September 2014 in B 166 of 2013.  Application B 166 of 2013 is an industrial matter referred to the Commission by Troy Patrick Franse (the respondent) under s 29(1)(b)(ii) of the Act.  The respondent claimed in his application that he was owed by Alfresco Concepts Pty Ltd (the appellant) a car allowance to the value of $23,750 and a bonus in the amount of $17,339 (being a total of $41,089).

2         The respondent's claim was substantially successful.  The appeal is instituted against the decision which is in the form of a declaration and order in which it is declared that the appellant had denied the respondent benefits under his contract of employment and ordered the appellant to pay the respondent $34,536 (less applicable taxation) within 21 days of the date of the order.

The material written terms of the contract of employment

3         The respondent was employed between 4 July 2011 and 11 February 2013 by the appellant as the appellant's manager.  The respondent was paid a base salary of $80,000.  It was an agreed fact in the proceedings at first instance that a letter of offer of employment dated 11 June 2011 was provided to the respondent prior to commencing employment.  It was not in dispute that the letter dated 11 June 2011 proposed a three-month trial period of employment.  The offer also contained a number of benefits totalling a package of approximately $120,000 which included that after a three-month trial period the respondent was to be provided with a fully maintained company vehicle, including fuel (value approx $15,000) and a bonus of 1% of the appellant's turnover paid on a quarterly basis (exhibit Franse 1).

4         It was also an agreed fact that the appellant and the respondent signed a formal contract of employment dated 4 July 2011.  However, the employment contract did not contain any conditions in respect of remuneration other than superannuation.  It provided for a period of three months' probation, the respondent's duties, hours of work, conditions relating to annual leave, personal(sick)/carer's leave and other leave.  The contract also contained a confidentiality clause, a clause relating to policies and procedures, a restraint of trade clause and a clause setting out the conditions by which the contract of employment could be terminated.

5         At the hearing at first instance, the appellant claimed the respondent signed the contract of employment on 4 July 2011 which was the first day he commenced work (exhibit Franse 2).  On behalf of the appellant, evidence was adduced that at the end of the probationary period Mr Henry Kowalewski, one of the appellant's directors, met with the respondent on 7 October 2011 and provided him with a letter dated 7 October 2011 containing an offer for a full-time position as manager which included a salary of $80,000, superannuation of 9% and a fully maintained Mazda ute which was not to be used for the respondent's private business (exhibit Alfresco 2).  The offer did not contain a bonus of any amount.  Mr Kowalewski's evidence was that this offer was accepted by the respondent.

6         The respondent gave evidence that he had never seen the letter of 7 October 2011.  He also testified that he had a meeting with Mr Kowalewski on 28 September 2011 and at that meeting he signed the employment contract dated 4 July 2011 (exhibit Franse 2).

7         The Commissioner in her reasons for decision found the purported letter of 7 October 2011 (exhibit Alfresco 2) did not form part of the respondent's contract of employment and that the terms and conditions of employment of the respondent were set out in the letter of offer dated 11 June 2011 (exhibit Franse 1) and the employment agreement dated 4 July 2011 (exhibit Franse 2) ([64], [72], AB 40, AB 41).  At the hearing of the appeal it was accepted by the appellant that the contractual terms of employment were those contained in exhibits Franse 1 and Franse 2.

Motor vehicle allowance

8         When the agent for the respondent made an opening submission in the hearing at first instance he stated that the claim for the motor vehicle allowance raised an issue between the parties as to what was agreed.  He also said that the respondent relied primarily on the letter of 11 June 2011 to say that a motor vehicle would be provided throughout the respondent's employment for the use in the respondent's employment, including fuel, but that the respondent would testify about a conversation with the appellant in which he the respondent said he had his own Ford Falcon ute and was happy to use that to do his job as the manager if the appellant paid him the value of the vehicle that had been described in the letter of 11 June 2011.  The appellant's agent then put a submission that:

(a) the respondent's claim for the motor vehicle allowance was made on grounds that there was a conversation that if the respondent used his own vehicle, the appellant was happy to pay him $15,000 per annum; and

(b) secondly, and in the alternative, the claim for the motor vehicle allowance was made on the basis that it could be implied into the contract of employment that if the appellant, having promised to provide a vehicle, did not do so, it would be fair and reasonable for the respondent to expect to be paid $15,000 per annum in lieu of the provision of a fully maintained motor vehicle (ts 26).

9         When the respondent gave evidence he stated that he had the following discussion with Mr Kowalewski about the payment of a motor vehicle allowance (ts 33):

Henry and I were actually driving I - I think we went to have a look at some outdoor furniture.  We drove past a red dual cab Holden ute which was for sale; it's on the corner of Bannister Road and I don't recall the street name that we turn off which then leads onto Vinnicombe where the - Alfresco's premises was at the time.  Henry mentioned to me that he had - have to start looking for a new vehicle.  At that point I said to him, 'Well, I have a perfectly good ute.  I don't believe we need to - you need to go to the expense of buying another vehicle, I'm happy to drive my vehicle to and from work and use it as necessary at work,' which our - and I did say, however, 'You know, I would like - that way you could put the vehicle component as part of my bonus.'  And this was - this was still during the probation period.

And what did he say with respect to that proposition?‑‑‑He agreed.

10       When asked about this conversation in cross-examination, the respondent did not depart from his version of events.

11       When Mr Kowalewski gave evidence he denied that he had ever had any discussion with the respondent about the payment of the motor vehicle allowance.  His testimony was that a fully maintained 10-year-old Mazda ute was available to the respondent for his exclusive use (ts 82).

12       In closing submissions the respondent's agent, after referring to the evidence given by the respondent about the payment of the motor vehicle allowance, made a submission that the contract of employment had been orally varied.  No submission was put on behalf of the respondent in closing that a finding should be made that it was an implied term of the respondent's contract of employment that he be paid a motor vehicle allowance calculated at $15,000 per annum (ts 163).

Evidence relevant to the assessment of the quantum of the bonus

13       When the respondent gave evidence he testified that whilst he was employed by the appellant he received a total amount of $24,000 in cash bonus payments from Mr Kowalewski and he kept 'track' of the bonus payments made to him against two documents containing a register of sales that he had in his possession.  In support of his evidence, these documents were tendered into evidence as exhibit Franse 4.  One document is titled 'Sales Register [All Sales]' from July 2011 to June 2012 and the other is titled 'Sales Register [All Sales]' from 1 July 2012 to 12 December 2012 (AB 64 - 71).  The documents record dates and numbers of invoices issued, customer names and the amount of each invoice and the status of each payment as closed, quote or open.  The sales register from July 2011 to June 2012 records a total amount of sales including quotes and open invoices of $2,233,439.18 with an amount due of $572,081.29 (AB 69).  The sales register from 1 July 2012 through to 12 December 2012 records invoices up to 21 November 2012 and a total amount of sales including quotes and open invoices of $1,500,498.53 with an amount due of $527,268.17.  The respondent explained when giving evidence that the amounts recorded as 'open' in exhibit Franse 4 indicate that final payments had not been made.  When cross-examined, the respondent conceded that he could not say whether all of the jobs recorded in exhibit Franse 4 had been performed or not.  He also said there was at least one sale which was recorded to be a quote but it in fact had been incorrectly entered as it was a sale.  It was invoice #00002628 for an amount of $45,876.40.

14       Also tendered into evidence in support of the respondent's claim for a bonus were two exhibits setting out goods service tax (GST) details for the value of sales during the period the respondent was employed by the appellant (exhibits Franse 5 and Franse 7).

15       Exhibit Franse 5 was tendered into evidence when the respondent gave his evidence in chief.  That document records the details of the sale value for GST purposes of 10% from 1 July 2012 until 11 February 2013.  The document also records that the total value of sales in that period was an amount of $1,233,159.58.  When the document was tendered into evidence, the respondent was not asked to comment on the document.  However, when he was cross-examined he was asked whether there was much of a difference between the value of the sales set out in exhibit Franse 5 and exhibit Franse 4.  In response the respondent said he had not had an opportunity to check that and it was at that point of the evidence that he conceded that he could not say whether many of the jobs set out in exhibit Franse 4 were performed or not.  Mr Kowalewski was not questioned by his counsel or the agent for the respondent about the sales figures in exhibit Franse 5.

16       Exhibit Franse 7 was tendered into evidence during the cross-examination of Ms Amanda Kowalewski.  Ms Kowalewski is the office manager of the appellant.  Ms Kowalewski identified exhibit Franse 7 as a record of the sales value of items sold by the appellant's business from 4 October 2011 until 28 June 2012.  Exhibit Franse 7 records a total value of sales for that period in the amount of $1,506,577.11.  Ms Kowalewski, however, was not cross-examined about the contents of that document.  She gave evidence after her father, Mr Kowalewski.

17       Mr Kowalewski produced in his evidence exhibit Alfresco 5, a document that he said he had prepared, from notes in his diary, about a week prior to the commencement of the hearing at first instance.  Mr Kowalewski gave evidence that the exhibit Alfresco 5 records 15 cash payments he made to the respondent which he said totalled an amount of $32,000.  He also said his daughter, Ms Kowalewski, helped him create the document.  His testimony was that the document sets out the payments he made to the respondent and the monthly turnover of the appellant during the relevant period of the respondent's employment.  Whilst exhibit Alfresco 5 sets out amounts of turnover on a monthly basis, it is not clear from the document itself which month the figures relate to.  Mr Kowalewski explained this was because when he created the document on the computer he was unable to input the months in the Excel program.

18       Whilst exhibit Alfresco 5 does not contain a total of the monthly sale figures, when each of the figures are added they total $2,726,000.  Mr Kowalewski said that this figure was verifiable against the GST sales records discovered by the appellant to the respondent prior to the hearing (exhibits Franse 5 and Franse 7), but not from the sales register produced by the respondent (exhibit Franse 4).  The Commissioner said to the respondent's agent when Mr Kowalewski was being cross-examined (ts 110):

The assertion that - that Mr Kowalewski makes is the documents that you provided are in fact early documents and do not ring true with the documents that are later provided because in fact orders either fell by the wayside or were not fully paid.

19       The agent for the respondent then asked Mr Kowalewski, 'Right.  Is that your case?' and Mr Kowalewski said, 'Yes' (ts 110).

20       Mr Kowalewski said in his evidence that he paid the respondent in cash as his company receives a lot of payments in cash.  He then testified that he had processed the cash he gave the respondent in the books of his account out of the company's funds and that he had paid tax on each cash payment he made to the respondent as 'his drawings' (ts 110).  He, however, agreed that he had not recorded the cash payments in the respondent's PAYG summaries.

21       When Ms Kowalewski gave evidence she said she had not seen exhibit Alfresco 5 before it was tendered into evidence (ts 137).  When asked whether she assisted in its preparation, she said she did not (ts 137).  She was also asked questions about the contents of exhibit Alfresco 5 when compared with exhibit Franse 7.  She said she was not able to comment on the contents of exhibit Alfresco 5 (ts 138).

The Commissioner's reasons for decision

22       After summarising much of the evidence given by each of the parties and the submissions made on their behalf, the Commissioner made the following findings:

(a) It was her view that the outcome of the proceedings rested primarily on the credibility of the evidence given by the witnesses for the applicant and the employer and the documentation associated with that evidence.

(b) In assessing the credibility of the applicant there was nothing in particular about that evidence which would lead to a conclusion that the applicant tried to deliberately mislead the Commission.  From time to time it became apparent that he had a different story to the employer, but there was nothing which suggested that the Commission ought to consider what he said as other than a truthful version of the events.

(c) The evidence given by Mr Kowalewski in respect of the letter dated 7 October 2011 together with a meeting of the same date should be treated with some caution and that Mr Kowalewski's credibility on this issue could not be accepted.

(d) The letter dated 7 October 2011 did not form part of the applicant's contract of employment.

(e) With respect to the evidence given in relation to the bonus, the parties were at variance with respect to the amounts received in that the applicant claims to have received $24,000 and the employer claims to have paid $32,000 in incentives.

(f) Considering the terms relied upon by the employer in the letter dated 7 October 2011, the bonus payments continued on a monthly basis with the exception of the final month of the applicant's employment.

(g) There was a substantial variation between the monthly GST sales figures in exhibits Franse 5 and Franse 7 and the amounts in the monthly turnover figures in exhibit Alfresco 5 as analysed in exhibit Franse 8 which suggests the credibility of the employer on this matter is somewhat in doubt.

(h) Counsel for the employer neglected to ask the applicant whether he had received $32,000 or $24,000 in bonus payments when the applicant was in the witness box.  Having regard to the reasoning in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 in the High Court where their Honours restricted the application of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 it is the case now that the Commission can only act on the basis of the evidence called.

(i) The applicant's evidence that he received $24,000 in bonus payments from the employer is accepted, rather than $32,000 suggested by the employer.  There is $14,536 outstanding in bonus payments owed by the employer in accordance with the letter dated 11 June 2011 (exhibit Franse 1).

(j) At no stage did the applicant access the entitlement to a fully maintained company motor vehicle including fuel valued at approximately $15,000.

(k) The applicant's evidence is that he was driving his own vehicle to and from work and a company vehicle was not available for his own purposes as other employees were using it.  He discussed and reached agreement with the employer to use his own vehicle in return for the motor vehicle allowance to save the employer the purchase cost of a new vehicle.

(l) The applicant had no access to any motor vehicle allowance throughout his employment.

(m) The employer's evidence was that a Mazda utility vehicle was available for use by the applicant and the applicant at no stage throughout his employment requested his motor vehicle allowance.

(n) If it appears from the written contract that a term is to be implied, there are conditions which any proposed term must satisfy.  In the decision of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 their Honours referred to the majority judgment in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; (1977) 52 ALJR 20 adopted by Mason J with the concurrence of the other members of the court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596.  These conditions are:

(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

(o) From the applicant's written contract (exhibit Franse 1) it is an implied term of the applicant's contract that after the three month probation period, in the absence of a motor vehicle, a $15,000 motor vehicle allowance would apply.  The applicant was denied that contractual benefit.  Accordingly, the applicant is owed $20,000 by the employer.

(p) The conclusion reached about Mr Kowalewski's evidence is that with the exception of those matters already referred to, it is accepted that Mr Kowalewski presented a true version of the events.  The evidence of Ms Kowalewski is evidence that can be regarded as satisfactory.  In all other regards it is clear on the assessment of credibility that the weight of evidence should lay with the applicant.

(q) The applicant has been denied contractual benefits.  Accordingly, an order will issue in a minute form requiring the respondent to pay to the applicant the sum of $34,536 (less applicable taxation) within 21 days of the final order issuing.

The appellant's submissions and grounds of appeal

23       The grounds of appeal set out 14 grounds of appeal.  The appellant concedes that the grounds of appeal as filed are unnecessarily prolix and could be combined into two broad grounds:

(a) the Commissioner failed to properly exercise jurisdiction; and

(b) the Commissioner made errors of fact and law.

24       The appellant in its submissions focussed on two errors which it says are appealable; the finding of an implied term about the motor vehicle allowance and the implicit conclusion about the credibility of the appellant's evidence.

25       The appellant informed the Full Bench it should take at its highest the evidence of the respondent as to what were the terms of the contract of employment and the amount that he was paid as bonuses during the period of employment.  Thus, it is said that the Full Bench can determine a large part of this appeal on the basis of the respondent's evidence alone.  The respondent's evidence was that:

(a) the contractual terms were those contained in the letter dated 11 June 2011 and the formal employment agreement dated 4 July 2011 and signed by the respondent on 28 September 2011;

(b) he was paid $24,000 by way of bonuses by the appellant; and

(c) after a three-month trial period the respondent's package would include a fully maintained company vehicle, including fuel (value approximately $15,000).

26       Whilst there is nothing in the reasons for decision to indicate whether the $24,000 in payments were net or gross, it appears to be that the payments were net (evidence of Mr Kowalewski, ts 110).

27       The appellant contends that even if the respondent was entitled to the $38,536 in total that he claims to be the bonuses payable to him, those bonuses would be subject to taxation at the marginal rate of 37%, giving him a net entitlement of $24,277, which is not significantly different from what he admits receiving.

28       The appellant says that putting the highest and most favourable to the respondent complexion on all this evidence, the contractual benefits claim must fail for two reasons.  Firstly, the Commissioner's error of law in relation to the existence of an implied term as to the motor vehicle allowance and the Commissioner's failure to make necessary finding of facts, in respect of the turnover of the appellant during the relevant period, and to provide reasons for doing so.

29       The appellant points out that much of the evidence given by the parties was in conflict and the resolution of that conflict required the Commissioner to determine which evidence was to be accepted and the reasons for accepting one piece of evidence over another.  However, the Commissioner made only 12 findings.  Those in contest were that:

(a) there was no extension of the respondent's probationary period;

(b) the respondent received $24,000 rather than $32,000 in bonus payments;

(c) the respondent did not access the entitlement to the fully maintained company vehicle;

(d) the contract contained an implied term that in the absence of provision of the vehicle a motor vehicle allowance of $15,000 per annum and the respondent was denied a contractual benefit of $20,000 thereby; and

(e) on an assessment of the credibility of witnesses the weight of evidence should lie with the respondent.

30       The appellant argues that the Commissioner gave no reasons for not making findings of fact in any contested matter and failed to provide any sufficient reasons for preferring the credibility of one witness over another.  In particular, the Commissioner made no finding of what the turnover of the appellant was.  Thus, it says the failure to make necessary findings of fact and provide reasons for doing so is a failure to properly exercise jurisdiction.

31       The appellant points out that after citing the gravamen of the decision in Codelfa the Commissioner not only failed to consider how the conditions which must be satisfied for a term to be implied might apply in the instant case, but proceeded to ignore the clear evidence that an implied term must not contradict any express term of the contract.

32       As the provision of a company vehicle is an express term of the contract, to posit an implied term for payment of a motor vehicle allowance as an alternative, constitutes a contradiction between the express and implied term which Codelfa says cannot be allowed.

33       The appellant also argues that:

(a) It is not obvious that a motor vehicle allowance would be payable if the vehicle was not supplied.  There is nothing in any of the documentation or evidence before the Commissioner at first instance that showed any requirement for the respondent to do any travel in the performance of his duties or that he would be put to any expense or inconvenience if a motor vehicle was not supplied.

(b) It is not necessary to give business efficacy to the entirety of the contract to imply such a term.  The contract was for the personal services of the respondent in the business of the appellant and in no way conditional or essentially dependent on the use by the respondent of a motor vehicle.

(c) The implied term is not capable of clear expression without also implying other terms such as for what purposes the motor vehicle allowance was payable.

34       Thus, the appellant says the Commissioner at first instance erred in law in finding the existence of the implied term and in addition she erred in failing to give reasons for so doing.  Thus, it says the order for payment to the respondent in relation to the motor vehicle allowance must be set aside.

35       The alternative basis for the claim, again not considered by the Commissioner at first instance, was that there was an oral variation to the contract following a discussion between the appellant and the respondent while out driving.  The appellant denied there was such a conversation or such an agreement reached, but in any case, again putting the respondent's claim at its highest, the claim for an oral variation to the contract must fail as the respondent's evidence was that the conversation in which an agreement was reached occurred early during the respondent's trial period and as he signed the contract at the end of his trial period and it makes no reference to a motor vehicle allowance, it must be taken that the written documents (exhibits Franse 1 and Franse 2) contain the entirety of the contractually binding terms:  Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.

36       In the application, the respondent initially claimed that he had not been paid a bonus of $17,339 (Form 1 particulars of claim, AB 10).  The turnover of the appellant's business in the relevant period was later said to be $3,853,601.34 and the total bonus payable was then said to be $38,536 (respondent's further and better particulars of claim, AB 18).  It was alleged that $24,000 had been paid and the outstanding amount was thus $14,536 (AB 18).  The appellant points out there was no evidence of whether the bonus percentage or the turnover was to be calculated on a GST inclusive or exclusive basis.

37       The appellant also points out that the respondent initially relied upon exhibits Franse 4, Franse 5 and Franse 7 for the calculation of the appellant's turnover.  Yet, the Commissioner in her findings in her reasons for decision made no reference to exhibit Franse 4, despite the respondent admitting when giving evidence that some of the figures may not be correct because some orders had not been finalised (evidence of the respondent, ts 52).  Further, the Commissioner only referred to exhibits Franse 5 and Franse 7 when setting out the respondent's submissions on the comparison between the monthly turnover figures allegedly derived by the respondent and those in the appellant's exhibit Alfresco 5 and an obscure reference to cross-examination of one of the appellant's witnesses indicating a GST turnover of $190,000 in exhibits Alfresco 5 and Franse 7 (reasons for decision [54], AB 38).

38       The appellant says the Commissioner at first instance made no findings about what the appellant's turnover was during the respondent's employment and based her decision on the credibility of the witnesses in light of an alleged significant variance between the figures in exhibit Alfresco 5 and the summary document exhibit Franse 8 prepared by the respondent's representative.

39       The appellant also argues that the issue whether the turnover of the appellant's business during the period of the respondent's employment was $3,853,601.34 was not a live issue in the proceedings before the Commission.  It points out that the case that the respondent put to the Commissioner at first instance in closing submissions was that the turnover of the business in the relevant period was as set out in exhibits Franse 5 and Franse 7 and compiled in exhibit Franse 8.  Thus, the appellant says that the respondent must be bound by its case that it put to the Commissioner at first instance and it is not open to the respondent to now put a different case to the Commission in this appeal:  University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; (1985) 60 ALR 68.

40       The appellant argues that for the variance between the two sets of figures in exhibits Franse 5 and Franse 7 when compared to exhibit Alfresco 5 to be so significant as to affect the credibility of the parties, they would need to be large and biased so as to show the appellant's claimed turnover was less than what the respondent alleged was the case.

41       The appellant in its written submissions provided a table which is a reproduction of exhibit Franse 8 with an additional column added showing the percentage variance of calculated turnover each month.  This table is as follows:

42       The appellant points out that it is significant that when the percentage of calculated turnover figures are examined that in seven of the 16 months, the turnover asserted by the appellant is greater than that alleged by the respondent, considerably so in March, June and October 2012, which is inconsistent with the appellant seeking to mislead the Commissioner at first instance.

43       The appellant also points out that where the variance between what the respondent alleges was the calculated turnover and what the appellant asserted it was, the percentage variation is insignificant (less than 5% for six of the nine months and less than 3% for four of them).

44       It is also pointed out that the difference between the two sets of figures over the entire period in question is $15,116.77.  The appellant reaches this figure by totalling the stated turnover for each month in exhibit Alfresco 5 which amounts to $2,726,000.00 and the calculated turnover from GST sales in exhibits Franse 5 and Franse 7 (as reflected in exhibit Franse 8) is $2,710,883.23 which is a variance of 0.56% and what is more, the variance is in favour of the exhibit Alfresco 5 figures.  That is, the appellant's total figures for turnover are greater than what the respondent alleges.

45       Thus, the appellant says the Commissioner erred in finding that the variance between the respective figures had any relevance to the credibility of the witnesses.

46       The appellant also points out that in the absence of any findings about what was the turnover of the appellant's business in the relevant period and on the basis that there was a contractual entitlement to the bonuses, the Commissioner erred in finding that the respondent has been denied any contractual benefit.

47       The appellant then says in the alternative, and considering the most favourable position possible for the respondent, if the total turnover was as asserted by the appellant in exhibit Alfresco 5 such that the respondent was entitled to bonuses of 1% of that turnover, then he was entitled to be paid a total of $27,260.00 gross by way of bonuses.  From that amount tax at 37% or $10,086.20 would be required to be withheld leaving $17,173.80 due to be paid to the respondent in cash.  The respondent says he received $24,000 in cash payments which is more than he was entitled to receive.  The appellant says tax was paid by it in respect of the cash payments the respondent received.  Thus, the appellant says that the respondent has not been denied any contractual benefit.

48       For these reasons, the appellant seeks an order that the appeal be upheld and the decision at first instance quashed.

The respondent's submissions

49       Prior to the hearing of the appeal the respondent filed written submissions which contained a concession that the Commissioner fell into error both as to determining the essential and relevant facts and determining questions of credibility.  The written submissions also concede that the Commissioner failed to provide adequate reasons for decision and therefore made appealable errors of both fact and law.

50       At the hearing of the appeal the respondent put a submission before the Full Bench that the decision of the Commissioner should be suspended and the matter be remitted for further hearing and determination.  The basis of the respondent's submission is as follows:

(a) By letter dated 11 June 2011, the appellant offered to employ the respondent as its manager on a base salary of $80,000 and otherwise on the terms and conditions set forth in the letter (exhibit Franse 1).  The respondent's case is that the parties signed a formal contract of employment which incorporated the letter.  On the appellant's evidence this was on 28 September 2011 and the respondent's case was that it was on 4 July 2011.

(b) The dispute between the parties concerned two aspects of the terms and conditions of the letter.  These were:

(i) that the appellant would pay to the respondent a bonus of 1% of the appellant's turnover on a quarterly basis; and that at the conclusion of the employment the appellant had not paid all of the bonus to which the respondent claimed he was entitled;

(ii) that the appellant would provide during the term of employment to the respondent a fully maintained company vehicle including fuel at a value of approximately $15,000 or if not so provided pay to the respondent a motor vehicle allowance of $15,000 per annum.

(c) There were a number of live issues between the parties which were not resolved by the Commissioner in her reasons for decision.  The first is that the turnover claimed by the respondent during the period of his employment was $3,853,601.34.  In support of his case, the respondent relied upon exhibits Franse 4, Franse 5 and Franse 7 to establish that amount.  The appellant relied upon a substantially different amount of turnover, which is set out in exhibit Alfresco 5.  Whilst the respondent agrees with the submission made by the appellant that the Commissioner made no proper findings as to what was the turnover during the relevant period of the respondent's employment, the respondent does not concede that he relied only upon exhibits Franse 5 and Franse 7 to establish the quantum of his entitlement to a bonus of 1% of turnover.

(d) The second live issue between the parties is the issue raised by the appellant in respect of taxation.  Whilst it is not in dispute that the respondent was paid bonus payments in cash, nor is it in dispute that these payments were not recorded in the PAYG system, the respondent's case is that it was agreed that he would be paid a bonus as a gross amount and that he would have to pay his own tax on that amount.  This issue the respondent says turns upon whether Mr Kowalewski's evidence that he paid tax on the bonus payments should be accepted.

(e) The respondent does not concede that it was not open to the Commissioner to find that it was an implied term that he should be paid a motor vehicle allowance calculated at $15,000 per annum in the absence of the provision of a fully maintained company vehicle including fuel during his employment.  However, the respondent says it would have been open on the evidence for the Commissioner to make a finding that the contract of employment had been varied in that the appellant entered into an agreement to vary the contract of employment to provide to the respondent a motor vehicle allowance.

51       When regard is had to all of these matters, the respondent says the appealable errors made by the Commissioner are that there was a failure to:

(a) make findings in respect to the turnover of the appellant's business;

(b) make findings in respect to the taxation issue;

(c) make findings in respect of the implied term argument;

(d) make findings of fact to establish whether there was a variation of the contract of employment which established the respondent's entitlement to a motor vehicle allowance of $15,000 per annum;

(e) give adequate reasons for decision which created an injustice; and

(f) make proper findings of credibility.

52       In these circumstances, the respondent says the decision should be suspended and the matter remitted to the Commissioner at first instance to enable the parties to make further submissions as to the findings of fact and law that should be made.

Additional submissions made by the parties

53       Following the hearing of the appeal, the Full Bench sought written submissions from the parties in respect of the following questions:

(a) Is it conceded in this appeal on behalf of the appellant that a fully maintained company vehicle including fuel with a value of approximately $15,000 per annum had not been provided to the respondent?

(b) If the answer to (a) is yes and the terms of the contract of the respondent are solely to be found in exhibits Franse 1 and Franse 2 without variation by any oral agreement, would it be open to the Full Bench to vary the decision by making an award of compensation in the nature of damages assessed as $15,000 per annum, for a breach of the term that required the appellant to provide to the respondent, post the trial period, a fully maintained company vehicle including fuel?

Any submission about this question should address the reasoning of the Industrial Appeal Court in Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 84 WAIG 2152; (2004) 136 IR 156 [20] - [27], [48] - [49] and [73]; Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76 [122] and Kingstyle Investments Pty Ltd v Lawson [2013] WAIRC 00355; (2013) 93 WAIG 493 [50] - [54].

(c) Is it open to scale up the bonus payments totalling $24,000 by 37% paid to the respondent to take account of taxation that should have been withheld from those payments as PAYG tax paid to the Commissioner of Taxation on behalf of the respondent, in light of the reasoning of the Industrial Appeal Court in Bennett & Dix (a firm) v Higgins [2005] WASCA 197; (2005) 85 WAIG 3653 [36] - [42]?

54       In response to the request made by the Full Bench the parties filed written submissions on 6 March 2015.

(a) The appellant's further submissions

55       In answer to question (a), the appellant states its answer is, 'No'.

56       The appellant points out that its evidence was that a vehicle was provided and the respondent chose not to use it (ts 81 - 82, 87, 105 - 106).  The appellant also relies upon the evidence given by the respondent that there was an oral agreement that he would receive a motor vehicle allowance rather than have the use of the appellant's vehicle (ts 33, 45, 48, 73, reasons for decision [15], AB 30); that he never received the use of the vehicle apart from an eight-week period (ts 71) or received the allowance or made any representations or complaint about not receiving either during the period of his employment or for six months afterwards (ts 34, 48, 70).  The appellant also points out that Mr Kowalewski was not cross-examined on whether a vehicle was provided because it was the respondent's case that by oral agreement the contractual entitlement to the vehicle had been exchanged for a vehicle allowance and he was entitled only to the vehicle allowance (ts 48).

57       The appellant also relies upon the principle in Metwally (No 2) that it is elementary that a party is bound by the conduct of his case.  It says that the respondent's claim for the motor vehicle allowance was never maintainable at law given the long established principles relating to written contracts that was endorsed by the High Court in Toll [42] - [48].  It also contends that in light of the respondent's own evidence that during the entire period of his employment and for six months afterwards he made no complaint about not receiving the motor vehicle allowance or not being given the vehicle the Full Bench should find that the vehicle was provided.

58       In these circumstances, the appellant says that question (b) is not required to be answered.

59       The appellant contends it is unable to answer question (c) as Bennett & Dix (a firm) v Higgins [2005] WASCA 197; (2005) 85 WAIG 3653 involved a question of whether the employer was obliged by Commonwealth law to withhold tax from an order of compensation ordered by the Commission to be paid to an unfairly dismissed employee rather than pay the entire amount to the employee.

60       The appellant says the gravamen of the decision in Bennett & Dix (a firm) v Higgins is contained in [40] in which it was found that an employer is discharged from all liability to pay to an employee or account for monies properly withheld under s 12-85 of sch 1 [sic] of the Taxation Administration Act 1953 (Cth), provided the amount withheld is the amount required to be withheld.  On the facts of that matter, the employer was discharged from all liability to pay to the former employee, Mr Higgins, the $973.10 in tax that was the amount required to be withheld and was properly withheld and remitted to the Australian Taxation Office and thus the proceedings in the Industrial Magistrate's Court for failing to do so were not sustainable.

61       The question as framed by the Full Bench in this matter, with the expression 'taxation that should have been withheld', assumes that tax was not withheld, but the question is it open to scale up by 37% is mathematically incorrect to reflect the proper process of deriving the gross amount from the net amount with a marginal tax rate of 37%.  The correct formula is net sum divided by (1-0.37).  The question framed by the Full Bench suggests that taxation was withheld and the question may be whether it should be taken into account.  If the former is the case, Bennett & Dix (a firm) v Higgins is not relevant to this appeal.  If the latter then the decision is relevant.

62       The evidence established that the respondent received at least $24,000 in cash, in monthly payments rather than quarterly as the contract stipulated, but Mr Kowalewski said that he paid the tax in respect of those payments (ts 110).

63       Whether this amounts to not withholding the tax appears to be a matter of semantics:  it is scarcely modern day accounting practice to physically divide an amount into two and give one part to the employee and the other to the taxman, which is what to withhold implies.  Bookkeeping entries achieve the same outcome.  The payment of the tax by the appellant, howsoever carried out, discharged any obligation to make payment of that amount to the respondent.  There was no direct evidence of what that amount was.

64       The respondent's gross salary was $80,000 and any payments above that figure attracted a 37% tax withholding obligation.  If the cash payments received by the respondent were $24,000, the amount of tax the appellant was required to remit to the Australian Taxation Office was $14,095, being $24,000/(1-0.37) = $38,095.  There was no evidence it was not remitted.  If it was not remitted the appellant itself would be liable for taxation on the entire amount as it would be income to the company rather than an expense.

65       The respondent asserted that he was owed $38,536 by way of bonuses.  The cash payments and the tax paid by the appellant amount to $38,095, a difference of $441 from what the respondent says was due.  In these circumstances, the appellant says there has been no denial of the contractual benefit claimed.

(b) The respondent's further submissions

66       In answer to the question whether it is conceded in this appeal on behalf of the appellant that a fully maintained company vehicle including fuel with a value of approximately $15,000 per annum had not been provided to the respondent, the respondent points out although this question is primarily directed to the appellant, the respondent's case was that this condition of employment was denied.  Further, that the respondent asserted that the term of the employment contract with respect to the motor vehicle contained in exhibit Franse 1 was varied orally to a term that the appellant would pay an annual motor vehicle allowance of $15,000 and the respondent would use his own car (ts 33, 44).  The respondent also points out the oral variation was denied by the appellant (ts 87).

67       The respondent's answer to question (b) is, 'Yes'.  The respondent says if the Full Bench found on the evidence that the oral variation to the motor vehicle term was not established given the conflict of evidence about the oral variation, it is open to find that the term in exhibit Franse 1 with respect to the motor vehicle was operative.  He says that despite the attempts by the appellant to show that a Mazda ute was available to the respondent, he did not use it.

68       It is said that it is open for the Full Bench to vary the decision at first instance to find that the respondent was not provided with a benefit or entitlement under his contract of employment and to award compensation in the nature of damages based on the agreed value of the motor vehicle to the respondent of $15,000 per annum post the trial period.

69       The respondent says it should be open to raise this new point of law although it was not argued for at the hearing below.  In support of the respondent's submission it relies upon the principles set out in Kingstyle Investments Pty Ltd v Lawson [2013] WAIRC 00355; (2013) 93 WAIG 493 [52] - [53] (Smith AP).

70       The respondent says that when regard is had to those principles that it would be taking a very technical view of the proceedings below for the Full Bench in this matter to exclude reliance upon the motor vehicle term in exhibit Franse 1 given that the respondent opened his case on the basis that exhibit Franse 1 provided 'the backbone of this application' (ts 24).  The respondent points out that the raising of this point does not require the introduction of new evidence and to do so does not prejudice the appellant.  In addition, the new point clearly has substantial merit and in the interests of justice ought to be allowed.

71       The respondent also argues it is open on the authorities for the Full Bench to award compensation for the failure of the appellant to provide the motor vehicle as agreed.  The respondent submits that the decision of the Industrial Appeal Court in Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 84 WAIG 2152; (2004) 136 IR 156 makes this abundantly clear.  The contractual benefit which is denied by the employer is that which is contained in the contract itself.  The award of compensation or damages is the means by which the Commission deals with the industrial matter referred to it under s 29(1)(b)(ii) of the Act utilising the broad power given to it under s 23(1) and s 26(2) of the Act:  Cool or Cosy [24] (Steytler P).  The rationale of Cool or Cosy was confirmed in Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76 [317] (Ritter AP).

72       In respect of question (c), the respondent submits there is no basis for scaling up the $24,000 already paid, as the time for withholding tax is when the payment is made.

73       The rationale of the Full Bench decision in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 is that compensation is not compensation as defined if it does not as much as possible put the person who suffered the loss or damage back in the position in which but for the loss or damage, the person would have been.  This was a case of unfair dismissal and the measure of compensation for such.  However, the respondent submits that the same principles should be applied to compensation to be awarded under s 29(1)(b)(ii) in this case for the denial of the appellant to pay the appropriate or the full bonus on sales turnover.

74       The award will be made more than 12 months after the employment has ended.  The payment to the respondent by force of the Taxation Administration Act (sch 32 [sic]) is that the appellant will be required to withhold tax at the rate of 31.5% on the basis that this will be an employment termination payment:  Bennett & Dix (a firm) v Higgins.  This decision is authority for the proposition that tax must be withheld at the time of payment or the employer could face a penalty.

75       The respondent submits only the balance of the sum owing to the respondent is capable of being scaled up by the termination rate of 31.5% so that the respondent will receive full compensation for the denied contractual benefit.

Conclusion

(a) What were the terms of the contract?

76       The parties do not take issue with the findings made by the Commissioner that the express terms of the contract of employment were initially set out in exhibits Franse 1 and Franse 2 which were the letter dated 11 June 2011 and the employment agreement signed by the respondent on 28 September 2011.

77       The terms of the contract material to the resolution of the issues in this appeal are as follows (exhibit Franse 1):

SALARY $80,000 pa

After a 3 month trial period, the package will include the following:

 A fully maintained company vehicle, including fuel (value approx $15,000)

 A mobile phone

 Bonus of 1% of Infresco's turnover.  (The turnover in 2009/10 was approximately $2million, so the bonus would be approx $20,000 a year).  This will be paid on a quarterly basis.

 Superannuation (9% SGC) will be paid on base salary only

This represents a total package of approximately $120,000

78       Of importance in this appeal is the fact that the respondent was offered and accepted terms that were to provide him with a package of salary and contractual benefits including bonuses and a fully maintained vehicle to the value of approximately $120,000 per annum.

(i) Was there scope to imply a term?

79       From the promissory statement in the letter of 11 June 2011 that was accepted, it was a term of the contract of employment that the appellant would be provided with a fully maintained vehicle including fuel (value approximately $15,000).  From that term, the first question that arises in this appeal is whether it is open to imply a term into the contract that if a fully maintained vehicle and fuel were not provided to the respondent he would be paid $15,000 per annum.

80       There are five conditions that must be satisfied for a term to be implied on grounds of fact to give business efficacy to a contract.  In BP Refinery (Westernport) Pty Ltd and in Codelfa (347), the conditions were stated that the term sought to be implied must:

(a) be reasonable and equitable;

(b) be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(c) be so obvious that it goes without saying;

(d) be capable of clear expression; and

(e) not be contradictory of any express term of the contract.

81       The determination of whether a term should be implied is dependent upon the ascertained subjective intention of the parties at the time of the agreement.  Courts (and tribunals) should be slow to imply a term into an agreement:  Codelfa (346) (Mason J).

82       The Commissioner referred to the conditions in Codelfa but did not even attempt to address whether each of the five conditions were satisfied before finding that it was an implied term that, in the absence of a motor vehicle, a $15,000 per annum motor vehicle allowance would apply.  In failing to do so the Commissioner erred in law by failing to provide any reasons in support of this finding.  Such an error of law by a Commissioner who has a statutory duty to provide reasons for decision by operation of s 35(1) of the Act is a clear failure to provide good adjudication.

83       In my opinion, if the Commissioner had directly addressed each of the conditions it would have been clear to her that all of the five conditions could not in this matter be satisfied and thus it would have been clearly apparent to her that the term in question could not be implied.

84       When each of the five conditions for implying a term are addressed, the following findings must follow:

(a) In light of the promissory statement in the letter of 11 June 2011 that the respondent's remuneration was a package of approximately $120,000, as the provision of a motor vehicle was to constitute approximately $15,000 of the approximate annual remuneration package, it could be said that in the absence of the provision of the motor vehicle that it would be reasonable and equitable that the respondent be paid an approximate annual sum in lieu.

(b) However, it could not be found that the contract would not have been effective without such a term or that such a term was so obvious that it went without saying.  In Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 88 ALJR 814; (2014) 312 ALR 356 French CJ, Bell and Keane JJ observed [22]:

Implication of a term in fact in a contract, by reference to what is necessary to give it business efficacy, was described in Codelfa Construction Pty Ltd v State Rail Authority of NSW as raising issues 'as to the meaning and effect of the contract' ([1982] HCA 24; (1982) 149 CLR 337 at 345 per Mason J, Stephen J agreeing at 344, Wilson J agreeing at 392).  Implication is not 'an orthodox exercise in the interpretation of the language of a contract, that is, assigning a meaning to a particular provision.' ([1982] HCA 24; (1982) 149 CLR 337 at 345 per Mason J, Stephen J agreeing at 344, Wilson J agreeing at 392) It is nevertheless an 'exercise in interpretation, though not an orthodox instance.' ([1982] HCA 24; (1982) 149 CLR 337 at 345 per Mason J, Stephen J agreeing at 344, Wilson J agreeing at 392) The implication of terms in fact was also characterised in Attorney General of Belize v Belize Telecom Ltd ([2009] UKPC 11; [2009] 1 WLR 1988; [2009] 2 All ER 1127) as an exercise in construction. Lord Hoffmann, delivering the judgment of the Privy Council, said ([2009] UKPC 11; [2009] 1 WLR 1988 at 1994 [22]; [2009] UKPC 11; [2009] 2 All ER 1127 at 1134):

'it is not enough for a court to consider that the implied term expresses what it would have been reasonable for the parties to agree to. It must be satisfied that it is what the contract actually means.'

The distinction thus drawn is appropriate even though the scope of the constructional approach adopted by Lord Hoffmann has been debated (Hooley, 'Implied Terms After Belize Telecom', (2014) 73 Cambridge Law Journal 315; Courtney and Carter, 'Implied Terms: What Is the Role of Construction?', (2014) 31 Journal of Contract Law 151 at 160–163).

(c) The condition of necessity is not easily met.  The following passage in the judgment of Beach J in Barnes v Forty Two International Pty Ltd [2014] FCAFC 152 (with whom Siopis J agreed) makes this point clear.  At [140] his Honour said:

In terms of the necessity to give business efficacy, as Bowen LJ in The Moorcock (1889) 14 PD 64 at 68 made clear, one is seeking to identify 'an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have'. It must be 'clearly necessary' in the context of the terms and circumstances of the particular contract and the particular relationship between the specific parties to the contract (Heimann v Commonwealth of Australia [1938] NSWStRp 47; (1938) 38 SR (NSW) 691 at 695 per Jordan CJ); a broader context of necessity is applied when dealing with terms implied in or by law (see Commonwealth Bank of Australia v Barker (2014) 312 ALR 356; [2014] HCA 32 at [28]- [29] per French CJ, Bell and Keane JJ, [86] per Kiefel J and [113]-[114] per Gageler J). Moreover, this 'business efficacy' condition overlaps with the 'so obvious' condition. In Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 at 605, Scrutton LJ said:

A term can only be implied if it is necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, 'What will happen in such a case,' they would both have replied, 'Of course, so and so will happen; we did not trouble to say that; it is too clear.'

(d) There was nothing missing or left incomplete in the obligation resting on the appellant to provide a company motor vehicle including fuel to the appellant.  The terms of the contract could not be said to be ineffective, futile or necessary to give efficacy without the implication of a motor vehicle allowance in lieu of the provision of a motor vehicle allowance.  Nor could such a condition be said to be objectively obvious when the parties entered into the agreement.

(e) The implied term would be contradictory of the express term to provide a company motor vehicle.  Although such an implied term would only have effect if a vehicle is not provided, such an implied term would change the meaning of the term of the contract that expressly only created an obligation on the appellant to provide a motor vehicle and fuel to the respondent to the approximate value of $15,000 per annum.  The implied term would if applied widen that obligation in circumstances not contemplated in the express terms of the contract.

85       If the Commissioner had properly considered each of these principles she would have found that there was no scope to imply such a term.  She then should have turned her mind to the question raised directly by the evidence of the respondent whether the terms of contract in respect of the provision of a motor vehicle and fuel set out in exhibit Franse 1 had been varied by agreement.

(ii) Should findings have been made as to whether the contract had been varied by oral agreement?

86       At first instance, in opening submissions and in closing the respondent's agent put a submission that the terms of the contract were varied by an oral agreement to pay a car allowance of $15,000 per annum.  The appellant disputes that the matter was ever the subject of a discussion or agreement.  In any event, it says that:

(a) if an oral agreement was reached it was prior to the execution of exhibit Franse 2 on 28 September 2011; and

(b) the terms of an oral agreement cannot contradict the terms of the written documents that set out the terms of the agreement.

87       The resolution of this issue turns on whether the terms of the contract, post the probation period, were wholly in writing or partly oral.  Although this issue also turns upon whether the evidence of the respondent should be preferred to the evidence given by Mr Kowalewski, the argument put forward in this appeal on behalf of the appellant may not require the Full Bench to consider or resolve any issue going to the credibility of any witness.

88       The starting point in a consideration of this issue is that a party who alleges that a written agreement does not represent the entire contract must counter a presumption that it does:  Major v Bretherton [1928] HCA 11; (1928) 41 CLR 62, 67 (Isaacs J).

89       In Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 00034; (2014) 94 WAIG 37, I set out the well-established principles that apply when determining whether a contract is partly in writing and partly oral and are relevant to the issues raised in this appeal.  At [22] - [29] I made the following points that are relevant to the issues raised in this appeal:

(a) If a contract is partly in writing and partly oral, the oral terms cannot contradict the terms of the written agreement:  Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 [36].  Nor can the terms of a collateral contract impinge upon the terms of the main contract:  Hoyt's Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133, 147.  If earlier agreed oral terms contradict written agreement the terms of the oral agreement can be said to be discharged by the written agreement:  Equuscorp [36].

(b) Courts are reluctant to find that the parties' contract is partly in writing and partly oral when the written document appears to be a complete contract.  In Equuscorp, the High Court in a joint judgment of five judges made the following points why generally a party having executed a written agreement will be bound by it.  These are:

(i) The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions [34].

(ii) Oral agreements will sometimes be disputable and resolving such disputes is commonly difficult, time-consuming, expensive and problematic [35].

(c) Whether the parties intended the contract to be wholly in writing is a question of fact.  In Deane v The City Bank of Sydney (1904) 2 CLR 198 Griffith CJ said:

In the present case the first question is, what is the agreement? Is it the writing, or the verbal conversation, or is it to be gathered from the conversation and the letter with all the other circumstances? Possibly it was open to the jury to find that the agreement was contained in the writing, but whether it was or not was a preliminary question of fact for the jury to determine on the evidence (209).

(d) Whilst the principle may have been controversial, it is now accepted that a court or tribunal cannot look at subsequent conduct to interpret a written agreement:  Hughes v St Barbara Ltd [2011] WASCA 234 [106] (Pullin JA); The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 446 (Gibbs J); Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 [35] (Gummow, Hayne and Kiefel JJ).

(e) However, regard may be had to subsequent conduct of the parties for the purposes of determining what were the entire terms of the contract:  County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [21] - [27] (Spigelman CJ).

(f) To determine the terms of agreement, consideration must be given not only to what the parties by their words and conduct said and surrounding circumstances, but not their substantive beliefs or understanding:  Toll [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22].

90       Toll is authority for the point that once a party signs a contractual document, knowing it is a legal document relating to his or her rights and obligations, he or she is bound by the document:  Toll (177 - 179); Equuscorp [33] - [35] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).  Equuscorp is also authority for the point that the execution of a later agreement will discharge an earlier oral consensus where there is conflict between the oral agreement and the written agreement [36] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).

91       These points arising from Toll and Equuscorp do not apply as the facts of this matter are that the later document executed by the respondent on 28 September 2011 did not comprehensively or exhaustively contain all terms of the contract.  In particular, the written agreement signed on that day was incomplete in respect of the remuneration the respondent was to receive (exhibit Franse 2).  Relevantly, the written agreement:

(a) provides in cl 6.1 (AB 59):

During the period that the Employee serves the Company under this Agreement, the Company must pay to the Employee the gross salary amount set out in Item 2 in the Schedule to this agreement payable weekly to the Employee's nominated local bank account.

(b) has no schedule attached; and

(c) provides in cl 7.1 conditions that attached to the appellant's obligation to pay superannuation to the respondent's nominated superannuation fund but this clause does not specify an amount of superannuation to be paid.

92       In these circumstances, no inconsistency could arise between the terms of the 'purported oral agreement' and the written agreement.  If it were to be found that an agreement to vary the terms of the 11 June 2011 agreement (exhibit Franse 1) was made, the remaining terms of exhibit Franse 1, the oral variation and the written agreement signed on 28 September 2011 (exhibit Franse 2) could stand together.

93       For these reasons, I am of the opinion that the appellant's argument that no oral agreement could be effective at law fails as the written contract (exhibit Franse 2) was incomplete in that it did not contain the respondent's conditions of remuneration.

94       It is clear that the Commissioner erred in failing to consider whether the term relating to the provision of a motor vehicle in exhibit Franse 1 was varied by an oral agreement to provide a motor vehicle allowance in lieu of a motor vehicle.  However, the members of this Full Bench are not in a position to assess the evidence on this issue and make findings of credibility as the Commissioner made insufficient findings about the credit of the witnesses.

95       When making findings of fact dependent upon findings of credibility, when a tribunal or court has before it competing versions, Steytler P in Skinner v Broadbent [2006] WASCA 2 [37] explained:

[I]t is necessary for a trial judge to explain why one version has been preferred over another. In doing so, the trial judge should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of significant evidence, set out his or her findings as to how he or she has come to accept the one over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443; Waterways Authority at 1830. It is a judge's duty to consider all of the evidence in a case and, where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442 and Beale, at 443. As Samuels JA pointed out in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, for a judge to ignore evidence critical to an issue of fact found against a party may promote a sense of grievance and create a litigant who is both disappointed and disturbed, because it tends to deny both the fact and the appearance of justice having been done.

96       In the Commissioner's conclusions she recited some relevant evidence and submissions but then failed to make findings about which parts of the evidence and submissions she accepted.  In addition, the specific findings the Commissioner made about the evidence of Mr Kowalewski are confusing.  Although, she made a clear finding that she rejected the evidence given by Mr Kowalewski about a purported meeting on 7 October 2011 (exhibit Alfresco 2) and evidence that he had extended the respondent's probationary period ([63] - [64], AB 40) she made no other relevant specific findings of fact relating to his credibility.  The Commissioner went on to refer to the respondent's submission that the figures reflected in exhibit Alfresco 5 were unreliable on grounds that exhibit Franse 8 showed a significant variance from the monthly GST sales figures.  However, she did not state whether she accepted this submission.  She then found that she rejected the evidence given by Mr Kowalewski that he had paid the respondent $32,000 in bonus payments, but did not reject this evidence on grounds of credibility, but on grounds that counsel for the appellant had neglected to ask the respondent whether he had received $32,000 or $24,000 in bonus payments ([66], AB 40).

97       The Commissioner excluded this evidence because counsel for the appellant had failed to cross-examine the respondent about this issue.  In these circumstances, it was indeed open to the Commissioner to reject the evidence given by Mr Kowalewski that an amount of $32,000 was paid to the respondent by application of the rule in Browne v Dunn (1894) 6 R 67 (HL), as this evidence was about a matter that was a critical issue in dispute and Mr Kowalewski's evidence on this issue was not put to the respondent.  The Commissioner did not, however, rely upon the rule in Browne v Dunn to reject this evidence but instead relied upon the rule in Jones v Dunkel.  However, the rule in Jones v Dunkel could have no application, as it is a rule that it may be sometimes appropriate to apply in proceedings before this Commission when a party fails to give relevant evidence, to call particular witnesses or tender documents.  Consequently, the application of Jones v Dunkel by the Commissioner in this matter was clearly an error of law.  However, the error is not material to the disposition of this appeal as it is accepted in this appeal that the respondent was paid $24,000 in bonus payments.

98       After finding that it was an implied term of the respondent's contract of employment in the absence of a motor vehicle a $15,000 motor vehicle allowance would apply, the Commissioner found:

[W]ith the exception of those matters already referred to the Commission accepts that Mr Kowalewski presented a true version of the events … In all other regards it is clear on the assessment of credibility that the weight of evidence should lay with the applicant.

99       This finding is at best confusing as the Commissioner made no findings about what aspects of Mr Kowalewski's evidence that she accepted.  In particular, she made no findings about whether she preferred the evidence of the respondent or Mr Kowalewski in respect of whether or not an oral consensus was reached to pay a motor vehicle allowance of $15,000 per annum.

100    If in a case credibility is a critical factor, and if evidence wrongly excluded may bear upon the critical witness credibility, a retrial may generally be had:  Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641, 661 (Windeyer J), applied in Brown v Churchill [2006] WASCA 17 [40] (Pullin JA with whom Steytler P agreed).  In this matter, as this issue turns solely on an assessment of the credit of the respondent and Mr Kowalewski, it is clear that the Full Bench not having seen and heard the witnesses is not in a position to legitimately make the necessary findings of fact.

101    Whether the term in exhibit Franse 1 was varied turns on an assessment of the credibility of the evidence in respect of this issue.  Such an assessment would necessarily include an assessment of all relevant logically probative evidence which would include a consideration and assessment of exhibit Franse 3 which is an acknowledgment signed by the respondent on 15 March 2013 that he had received payment of all financial entitlements owed to him and the circumstances of the making and execution of that document.  This assessment should have been made in light of the principle that the onus is on the respondent to counter a presumption that the terms of the contract were set out in writing.  The Commissioner made no assessment of the effect of the contents of this letter.  The respondent gave evidence that he signed the letter after he had received payment of pay in lieu of notice and holiday pay (ts 35).  His evidence about this was not substantially challenged in cross-examination.  Nor was any submission made about the effect of the acknowledgement in closing submissions.  In these circumstances it would have been open to accept the respondent's evidence about why he signed the acknowledgement and what the acknowledgment of payment related to, however, the Commissioner neglected to make any finding about the veracity of this document.  An assessment should have also included an assessment of the veracity of evidence relating to whether a motor vehicle and fuel were made available to the respondent.

102    In the event that a finding is made that there was an oral agreement reached between the parties which had the effect of varying the terms of the contract so as to entitle the respondent to a motor vehicle allowance of $15,000 per annum to be added to the entitlement of the bonus calculated on turnover, in lieu of the provision of a company vehicle and fuel, a finding that the respondent was entitled to an amount of $20,000 in lieu of the provision of a company motor vehicle would be open as the respondent was employed for 16 months post the three month trial period.

(iii) If a finding is made that the contract had not been varied by oral agreement, would it be open to make an award of compensation for a breach of the term relating to the provision of a motor vehicle?

103    In the event a finding is made that there was not an oral agreement, can it be inferred from the fact that the Commissioner granted the respondent's claim for a motor vehicle allowance that she must have rejected Mr Kowalewski's evidence that a fully maintained vehicle had been made available to the respondent for his use?  On the one hand, the answer to that question could be said to be, 'Yes', as the Commissioner found that it was an implied term of the respondent's contract that after the three-month probation period, in the absence of a motor vehicle, a $15,000 motor vehicle allowance would apply and the respondent was denied that benefit.  However, leaving aside the finding in respect of the implied term which has already been considered in these reasons, the difficulty with this finding is that the Commissioner failed to make any findings of fact or reasons to support this finding.  She simply recited the evidence given on behalf of each party in respect of this issue.  In the absence of any findings of fact in support of this finding and reasons for making that finding, the finding that there was an absence of a provision of a motor vehicle to the respondent cannot stand.

104    Findings of fact should have been made by the Commissioner as to which version of events relating to this issue is preferred.

105    As this issue also turns solely on an assessment of the credibility of the evidence, the Full Bench not having seen and heard the witnesses is not in a position to legitimately make findings of fact in respect of this issue.

106    If the decision is suspended and the matter remitted for further hearing and determination by the Commissioner and a finding was subsequently made that the terms of the contract were not varied, would it be open to the Commissioner to make an award of compensation in the nature of damages for loss caused by the breach of the term of the contract to provide a company vehicle and fuel to the respondent?  The appellant says that the answer to this question is, 'No'.  It says the Commission has no jurisdiction to award damages for breach of a term of contract to provide to the respondent a fully maintained vehicle.

107    I do not agree that this submission is correct.  Under s 23 of the Act, the Commission is empowered to make a monetary award in the nature of damages to resolve a claim of a breach of a right or entitlement to a 'benefit' made under s 29(1)(b)(ii) in relation to an industrial matter.  In Cool or Cosy, a finding had been made by a Full Bench that it was an implied term of Mr Matthews' contract of employment that he was entitled to reasonable notice.  President Sharkey with the concurrence of the other members of the Full Bench found the term of reasonable notice amounted to a period of 12 months.  It had also been found that Mr Matthews had been harshly, oppressively and unfairly dismissed.  The Full Bench capped Mr Matthews' loss of remuneration at six months' remuneration under s 23A of the Act and did not make an award for the breach of contractual benefit of 12 months' notice to terminate the contract of employment.

108    On appeal to the Industrial Appeal Court, the Court found s 23A had no application to the contractual benefits claim referred under s 29(1)(b)(ii) of the Act and each member of the Court made the point that the Commission in determining a claim brought under s 29(1)(b)(ii) of the Act can, in the exercise of its power under s 23(1) of the Act to inquire into and deal with an industrial matter, award damages in lieu of a denied contractual benefit.  Justice Steytler explained [20]:

The Full Bench having found that it was an implied term of the appellant's contract of employment that he should be given reasonable notice, that a reasonable period of notice was one of 12 months and that the appellant had been denied that benefit (and, in my opinion, it plainly was a 'benefit' for the purpose of s 29(b)(ii) [sic], having been for the advantage or good of the appellant: cf Slee and Stockden Pty Ltd v Blewitt, above, and Wardell v Donnybrook Stone Company (1992) 72 WAIG 2250), the only remaining question was that of whether it was empowered to award to the appellant compensation in lieu of that benefit, it obviously having been impracticable to require the employer to let the appellant work out that period of notice.

109    In [22] his Honour then said:

Some of the cases to which we were referred by counsel for the respondent were cited in support of the proposition that damages in lieu of a denied contractual entitlement could not be a 'benefit ... to which ... [an employee] is entitled under his contract of employment' for the purposes of s 29(1)(b)(ii) as the 'benefit' there referred to is the contractual entitlement itself and damages 'is a common law remedy which is not based on any doctrine relating to implied contractual terms or their enforcement': HotCopper, above, per Anderson J at [22]. However, the 'benefit' which was denied in this case is, as I have said, the entitlement to reasonable notice itself and the question is not whether damages in lieu can be regarded as a benefit for the purposes of s 29(1)(b)(ii), but whether the Commission can, in the exercise of its power under s 23(1) to inquire into and 'deal with' a matter referred to it under s 29(1)(b)(ii), award compensation in lieu of the denied contractual benefit.

110    Justice Steytler then went on to consider a number of cases in which the distinction to award compensation in the form of damages in lieu was discussed.  He then said at [24] and [27]:

[24] In my respectful opinion, the better analysis in each of those cases should have been that the contractual benefit which was denied by the employer was that which was provided for by the contract of employment itself (respectively the full term of employment provided for by the contract, the right to a defined period of notice and the right to reasonable notice) and that the award of compensation was the means by which the Commission dealt with the industrial matter referred to it under s 29(1)(b)(ii), utilising the broad power given it under s 23(1) of the Act read, if necessary, with s 26(2) thereof.

[27] The approach which I have favoured is that which was favoured, also, by Anderson J in HotCopper, above, at [24], where, without intending to express a concluded view, his Honour said (with the concurrence of the other two members of the Court) in the context of a claim referred under s 29(1)(b)(ii) that he was inclined to think that the Commission was empowered to make 'a monetary order for compensation - that is, a damages award - in an appropriate case, as long as its purpose is to do no more than is necessary to "redress the matter by resolving the conflict in relation to the industrial matter" - Welsh v Hills (1982) 62 WAIG 2708 - and as long as its effect is so limited'.

111    Justice Pullin also made the same point.  At [48] - [49] he said:

The appellant argues that the 'benefit' he was not allowed was the contractual right to receive written notice. The word 'benefit' is a word of wide meaning: see Balfour v Travelstrength Ltd (1980) 60 WAIG 1015. A benefit is in ordinary meaning 'anything that is for the good of a person or thing'; 'Macquarie Dictionary'. A contractual promise by an employer to give an employee 12 months' notice before employment is terminated, confers a right on the employee to be given such notice. Such a contractual right is a benefit with real and measurable value. If a contract containing a term requiring notice to be given, is terminated by an employer without cause and without notice, and therefore in breach of such a term, then the employee is entitled to an award of damages: see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465.

In the language of s 29(1)(b)(ii), an employee dismissed without notice in breach of contract, may refer to the Commission a claim 'that he [had] not been allowed by his employer a benefit … to which he [was] entitled under his contract of service'. Once the claim has been referred, the authority or jurisdiction of the Commission to grant remedies, is to be found in s 23. The section is extraordinary in its brevity. As I have already said, it simply confers jurisdiction on the Commission to enquire into and 'deal with' the claim. In my opinion, this provision confers jurisdiction on the Commission to order damages for the non-allowance of a benefit if the non-allowance amounts to a breach of contract. The principal objects of the Act are set out in s 6, and they include a statement that the objects of the Act are to provide a means for conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes, and to provide means for 'settling industrial disputes not resolved by amicable agreement'. If there were no power to award damages, then the Commission would not be able to settle this type of dispute.

112    Justice EM Heenan agreed with the conclusions of Steytler and Pullin JJ and said that he did not 'wish to be understood as suggesting that this is a special exception or qualification upon limits of the Commission, otherwise, to give effect to common law entitlements on an application by an employee under s 29(1)(b)(ii)' [73].  His Honour also observed that entitlements that can be claimed under s 29(1)(b)(ii) are 'entitlements which the employee has arising out of his contract of employment with the employer.  They are contractual and, therefore, common law claims which exist independently of the provisions of the Act and which could, if necessary, be pursued in any court of appropriate general civil jurisdiction [60].

113    In Saldanha, Ritter AP pointed out that the determination of a denial of contractual benefits claim by the Commission involves the enforcement of legal rights and the exercise of judicial power [122].  He also said that Cool or Cosy made it clear that the way in which the Commission deals with a claim of a contractual benefit that has not been 'allowed' is in accordance with the common law [122]; see also the discussion of these principles by Scott ASC in Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67.  Thus, it is clear that the Commission does have jurisdiction to make an award of compensation in the form of damages for a breach of a term of contract where the term creates an entitlement to a contractual benefit that is an 'industrial matter' within the meaning of the definition of industrial matter in s 7(1) of the Act.

114    In this matter, however, no submission was put at first instance on behalf of the respondent that an award of compensation in the form of damages could be awarded for breach of the term of contract set out in exhibit Franse 1 which required after a three-month trial period the appellant to provide to the respondent a company motor vehicle and fuel valued at approximately $15,000 per annum.  In my opinion, this omission may not be fatal.  In Kingstyle Investments, the principles that apply when a new point is sought to be raised on an appeal were considered.  At [50] - [54] I observed:

Appeals brought under s 49 of the Industrial Relations Act 1979 (WA) (the IR Act) are not by way of rehearing, but are appeals in the strict sense:  Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852; see the discussion in The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 [73] (Smith AP and Beech CC).  Fresh evidence can, however, be admitted by a Full Bench where special or exceptional circumstances are raised:  Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040.  This does not allow a matter to be heard without regard to the manner in which a matter was conducted at first instance.  In Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50, Martin CJ set out the circumstances when a new point may be raised on appeal to an appellate body at [49] - [52]:

49 [I]n University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, the High Court observed:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (71).

50 Similar observations were made by the Court of Appeal of New South Wales in the case under appeal in Coulton v Holcombe. Their Honours observations as to:

... the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court

were endorsed by the plurality in Coulton v Holcombe (8) as important principles underpinning the public interest in the finality of litigation: see also Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321, 330 - 331 (Gummow and Callinan JJ).

51 However, this is not to say that a new point can never be raised on appeal. In Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, the plurality (Mason CJ, Wilson, Brennan and Dawson JJ) observed:

It is true that in Maloney v Commissioner for Railways (1978) 18 ALR 147, 152 it was recognised that in 'very exceptional cases' a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant. No exceptional circumstances arise in this case where the parties adopted the course which they took of their own choice (498).

52 It is significant to note that the High Court has twice described the circumstances in which a party will be allowed to raise a new point on appeal as 'very exceptional'. Such a course will only be permitted if two requirements are met. First, the interests of justice must require determination of the new point. Second, there must be no prejudice to the party against whom the new point is taken.

In SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760, the Full Bench found it was the duty of the Full Bench to entertain a plea as to jurisdiction irrespective whether the point had been taken at first instance.  It is clear that this principle applies where the jurisdictional issue sought to be raised for the first time on appeal is a bare legal point.  However, in circumstances where additional or different evidence may have been led if the point had been raised at first instance, it is open to the Full Bench to refuse to permit an appellant to raise the issue for the first time.  In recent times courts and tribunals have applied this rule strictly.

In Minister for Education v Liquor Hospitality and Miscellaneous Union, Western Australian Branch [2011] WAIRC 00818; (2011) 91 WAIG 1839 [23] - [24], I had regard to the principles set out in Water Board v Moustakas (1988) 180 CLR 491, 497 - 498 and then had regard to the observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 [7] - [8] where their Honours said:

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

I then observed at [25] - [26]:

25 When assessing whether it would be expedient in the interests of justice to allow a new point to be raised Branson and Katz JJ also had regard to whether the point had any merit [9].

26 From these passages the following principles guide when a finding could be made that it is expedient and in the interests of justice to entertain a point:

(a) The point must be one of construction or of law and not be met by calling evidence.

(b) In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance.

(c) In very exceptional cases an omission to put a case formulated on appeal may not be conclusive. The opportunity to assert the new case should be granted only where the interests of justice require it and such a course can be taken without prejudice to the defendant.

(d) Consideration of the interests of justice should extend to a consideration of relevant matters beyond the interests of the parties to the interests of other litigants and efficient case management.

(e) When assessing the interests of justice, the merit of the new point sought to be raised is a relevant consideration.

Where the point sought to be raised for the first time is an issue that goes to jurisdiction, the same rule applies.  This was made clear by the Industrial Appeal Court in Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality & Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 4417.  In that matter the appellant had applied to register an agreement which had the effect of varying and renewing a current registered industrial agreement.  On appeal by the union against the decision to register the agreement the appellant sought to be heard on an issue that was said to be jurisdictional.  The appellant sought to advance an argument that the Full Bench had no jurisdiction to hear the appeal because the union's officers had not been duly elected and were not authorised to bring the appeal.  The Full Bench refused to entertain the argument and heard and determined the appeal.  On appeal to the Industrial Appeal Court the Court held the Full Bench had not erred.  Justice Anderson, with whom Rowland and Franklyn JJ agreed, held (4419):

The Full Bench took the view that this question of authorisation should have been argued below and that all the relevant evidence should have been canvassed below. I am not persuaded this was wrong. An appeal tribunal is entitled to refuse to allow matters which ought to have been agitated below to be raised for the first time before it at least where the matters involve disputed factual issues. This is a rule of broad application, applied in the interests of expedition and the finality of legal proceedings. Coulton v Holcombe (1986) 162 CLR 1 at 7; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; The Water Board v Mustakis (1988) 68 ALJR 209; Paltara Pty Ltd v Dempster (1991) 6 WAR 85 at 99.

Although in one sense the issue of authority to bring the appeal did not arise until the appeal stage, that would be taking too technical a view of the principle. The appeal proceeding was part of the intervenor proceedings and the issue whether the intervenor proceedings generally were properly authorised and whether the people purporting to file appropriate documents were authorised to do so raised substantial factual issues which could have been settled at first instance. I am not persuaded the Full Bench was wrong to decide the present appellant should be held to the conduct of its case below. There was plainly an opportunity before the Commissioner to challenge the authority of those purporting to represent the first respondent in the intervenor proceedings and the failure to take advantage of that opportunity, whether it was deliberate or inadvertent, entitled the Full Bench to say that should be the end of the matter.

As the appellant's argument was developed before us it seemed to me to be firmly based on the proposition that because this issue of due authorisation went to the jurisdiction of the Full Bench to hear the appeal the Full Bench had no discretion to decline to entertain argument on the point and its refusal to do so therefore constituted fatal error. I am unable to accept this proposition. In the first place I am not sure the rule that an appeal tribunal may refuse to allow a point to be raised for the first time in the appeal where contested issues of fact are involved does not apply even where questions of jurisdiction arise. See the comments of Deane J in Squire v Rogers (1979) 27 ALR 330 at 337

115    The principles that govern the circumstances in which a party would be allowed to raise on appeal an argument which had not been raised in proceedings below were recently applied by the Court of Appeal in Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28.  When summarising the well-established principles Martin CJ (Pullin and Murphy JJA agreeing) [85] said in relation to the prejudice which a party may suffer as a result of the other party being able to raise a new argument on appeal that the following comments of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [51] are of direct relevance.  In Whisprun, their Honours said:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas (1988) 180 CLR 491 at 496-497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

116    Recently applied by Martin CJ (Mazza JA and Hall J agreeing) in Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [19]. 

117    The question is whether to now allow the point to be raised before the Commissioner in the event that the decision is suspended and the matter remitted to the Commissioner for further hearing and determination would prejudice the appellant.

118    In this matter, as the finding that the terms of the contract are those in exhibits Franse 1 and Franse 2 whether a motor vehicle and fuel to the approximate value of $15,000 was provided is a matter that should be decided at first instance having regard to the evidence before the Commission.  The issue is not solely one of law, the raising of the issue of damages is an issue that could in part be met by further evidence, which could reduce the quantum of the loss occasioned by the breach.

119    If the point was taken at first instance, the Commissioner would be required to turn her attention to the assessment of the loss occasioned by the breach of contract.  I do not agree that the principles in Bogunovich have any application.  In Shacam Transport Pty Ltd v Damien Cole Pty Ltd (No 2) [2014] WAIRC 01294; (2014) 94 WAIG 1835 [22], the Full Bench referred to principles for assessing damages for a breach of contract that were summarised by Buss JA in Australian Goldfields NL (In liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191, in which his Honour observed [276]:

The general contractual principle governing the measure of damages is that the innocent party suing for breach of contract is to be placed in the same position, so far as money can do it, as if the contract had been performed: see Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [13] per French CJ, Gummow, Heydon, Crennan and Kiefel JJ; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 per Mason CJ and Dawson J; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 at 237 per Gibbs CJ; Wenham v Ella (1972) 127 CLR 454 at 471 per Gibbs J. The innocent party is entitled to damages for loss of bargain (expectation loss) and damage suffered, including expenditure incurred, in reliance on the contract (reliance loss): see Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 11 - 12 per Mason, Wilson and Dawson JJ. The innocent party should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss suffered by reason of the breach of contract. Ordinarily, this involves a comparison between the position in which the innocent party would have been if the breach of contract had not occurred and what, relevantly, represents the position in which the innocent party is in after the occurrence of the breach: see Amann Aviation (at 116) per Deane J.

120    The Full Bench in Shacam Transport Pty Ltd (No 2) also observed [29(a)]:

An assessment of a head of damage need not be calculated in a way that is precise.  In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 Toohey J observed (138):

[T]he quantification of damages is 'in many cases no more than an approximation lacking in mathematical or economic accuracy or sufficiency' (Pennant Hills Restaurants (1981), 145 C.L.R., at p. 636) or even that the assessment of damages 'does sometimes, of necessity, involve what is guess work rather than estimation' (Jones v. Schiffmann (1971), 124 C.L.R. 303, at p. 308). It is now almost a century since Bowen L.J. said in Ratcliffe v. Evans ([1892] 2 Q.B. 524, at pp. 532-533):

'As much certainty and particularity must be insisted on ... in ... proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.'

121    In this matter, if it were found that the conditions of employment set out in exhibit Franse 1 were not varied and no fully maintained motor vehicle including fuel with an approximate value of $15,000 per annum was provided to the respondent at the expiration of the three-month trial period, it follows that if no vehicle at all was provided the loss occasioned by the breach of the term could be said to be expressly quantified in the terms of the contract, that is a sum approximately $15,000 per annum.  In these circumstances it would be open to the Commissioner to make an award of compensation by way of damages for the loss assessed at $20,000. 

122    However, if the Commissioner was to find that a vehicle was provided to the respondent for his use that had a lesser value than $15,000 per annum, would it be open to the Commissioner to assess the loss taking account of the approximate value of the vehicle and fuel that was provided?  In my opinion, such an assessment could not be made as even if Mr Kowalewski's evidence about the availability of a 10-year-old Mazda ute is accepted, there is no evidence before the Commissioner as to the value of the 'use' to the respondent.

123    Assessment of the loss occasioned by the breach of the condition if it could be made, could turn on:

(a) whether the evidence given by Mr Kowalewski that a 10-year-old Mazda ute was made available for the personal use of the respondent, should be accepted;

(b) a consideration of the respondent's evidence that for a period of eight weeks he sought to use one of the appellant's vehicles for his personal use, including whether that occurred after the expiration of the three-month trial period; and

(c) if it is accepted that the respondent had available to him for his personal use a fully maintained company vehicle including fuel for any period of time, even if that period was only for eight weeks, an assessment of the value of that use to the respondent.

124    The issues raised in the preceding paragraph would be clearly relevant to an assessment of loss occasioned by the breach of the term requiring the provision of a fully maintained company vehicle to the approximate value of $15,000 post the three-month trial period.  However, the respondent's case at first instance was not put to the Commission on the basis that this condition had been breached.  As the appellant points out in its submissions filed on 6 March 2015, it was the respondent's case that by oral agreement the contractual entitlement to the vehicle had been exchanged for a vehicle allowance.  The appellant would suffer prejudice if the respondent is now allowed to take this point that he did not take at the hearing at first instance.  If the point had been taken, the appellant would have had an opportunity to adduce evidence of the value of the use of the vehicle to the respondent that Mr Kowalewski says he made available to the respondent for his personal use and if relevant, the value of the use of the vehicle to the respondent that may have been available to him for his personal use in the eight-week period.

125    In these circumstances, the respondent should not now be allowed to raise the point before the Commissioner at first instance, that an award of compensation in the form of damages could be made for breach of the term of contract that required the appellant to provide to the respondent a fully maintained motor vehicle including fuel valued at approximately $15,000 per annum.

(b) Quantum of turnover of the appellant's business

126    It is patently clear that the Commissioner erred in law in finding that the appellant had denied the respondent a contractual benefit of $14,536 in bonus payments.

127    The Commissioner made no findings of fact as to how that amount was calculated. 

128    Although the respondent pleaded in his further and better particulars that the amount of $14,536 has been calculated as 1% of a turnover of $3,853,601.34 less $24,000 that had been paid, the Commissioner made no findings of fact that the turnover of the appellant's business from the end of the respondent's three-month trial period until the termination of employment was the amount claimed in the particulars.

129    At the hearing of the appeal the respondent's agent informed the Full Bench that the evidence relied upon to prove the turnover of the appellant's business was the addition of the figures in exhibits Franse 4, Franse 5 and Franse 7 with allowance made for the commencement of the entitlement period for the bonus on 4 October 2011 or thereabouts.  The appellant says that this contention was not a live issue in the proceedings at first instance.  I do not agree.

130    In the hearing at first instance, the quantum of the turnover of the appellant's business during the material period of the respondent's business was squarely in issue.  The respondent's agent tendered into evidence documents in support of the respondent's case which were a sales register (exhibit Franse 4) and GST [Detail - Cash] (exhibits Franse 5 and Franse 7).

131    The Commissioner made no findings in her reasons for decision about the reliability of exhibit Franse 4.  Nor did she refer to exhibit Franse 4 in her reasons for decision.  The appellant's counsel and the respondent's agent made no submission about exhibit Franse 4 in closing submissions.  The respondent's agent in his closing address spent some time putting a submission that the monthly figures in exhibit Alfresco 5 could not be relied upon because there was a substantial variance between the monthly GST figures in exhibits Franse 5 and Franse 7 and exhibit Alfresco 5 and that the figures in those exhibits had been analysed in a document in the nature of an aide memoire and is tendered into evidence as exhibit Franse 8.  Exhibit Franse 8 is not a source of documentary evidence in itself but simply a summary of the figures set out in exhibits Franse 5, Franse 7 and Alfresco 5.

132    However, the fact that no submissions were made about exhibit Franse 4 did not absolve the Commissioner from the duty cast upon her to reveal her reasons for finding that the claim of $14,536 in outstanding bonus payments had been made out.  As the only basis for that finding must have in some sense entailed some analysis of exhibit Franse 4 the Commissioner was bound to make findings about exhibit Franse 4.

133    The respondent properly concedes that the Commissioner erred in failing to make findings about this issue.  The respondent says the decision should be suspended and the matter remitted to the Commissioner to enable a submission to be made that the figures in exhibit Franse 4 should be accepted, together with exhibits Franse 5 and Franse 7 in an assessment of the turnover during the relevant period of the respondent's employment.

134    The respondent's agent attempted to make a submission to the Full Bench that the respondent had believed that the figures in exhibit Franse 4 were accepted, except for some of the challenges with respect to sales that had fallen through.  The difficulty with this submission is that the effect of the evidence given by both the respondent and Mr Kowalewski was that exhibit Franse 4 could not be relied upon to determine the turnover of the appellant's business during the material time.  The respondent said that he could not say whether many of the jobs listed in exhibit Franse 4 were performed and that the jobs listed as open were not finalised in payment (ts 51 - 52).  If proper regard is had to this evidence it would be difficult to sustain a submission that the sales figures in exhibit Franse 4 can be regarded as reliable.  Thus if exhibit Franse 4 is not relied upon the consequence is that the turnover figures in exhibits Franse 5 and Franse 7 would have to be accepted to calculate turnover during the material period. This would lead to a finding that the turnover of the appellant's business during the period of the respondent's employment post the trial period was $2,710,883.23 entitling the respondent to a gross bonus of $27,108.83.  Alternatively, in light of the fact that exhibit Alfresco 5 records a higher turnover figure of $2,726,000.00, if that figure is accepted, the respondent would have had an entitlement of a gross bonus of $27,260.

135    It is notable that the Commissioner in her reasons for decision did not make a finding the figures in exhibit Alfresco 5 to be unreliable.  She simply recited the submissions made on behalf of the respondent that:

(a) the figures were not produced from Mr Kowalewski's diary until a week before the hearing and were not provided to the respondent; and

(b) the monthly sales figures in exhibit Alfresco 5 significantly varied from GST sales receipts in exhibits Franse 5 and Franse 7.

136    The submission made on behalf of the appellant in this appeal is that the overall difference in the figures between exhibits Franse 5 and Franse 7 and exhibit Alfresco 5 is not significant.  The evidence of Mr Kowalewski was that the source of the monthly figures came from his diary and verifiable by the sales register of figures provided in discovery by the appellant (exhibits Franse 5 and Franse 7).  From this evidence and the fact that it appears from the reproduction of the figures in exhibit Franse 8, that the figures in exhibit Alfresco 5 are rounded, whereas the figures in exhibits Franse 5 and Franse 7 are not, a finding would be open that the best evidence to ascertain the turnover of the appellant's business during the period in question is exhibits Franse 5 and Franse 7.

137    If this finding is accepted, it is clear that the Commissioner erred in failing to find that the quantum of turnover of the appellant's business in the material period was $2,710,883.23 and that the respondent had a contractual entitlement to gross monthly payments of a bonus assessed at 1% of the turnover which is an amount of $27,108.83.

138    Turning to the issue of taxation, the appellant's agent points out that an employer is subject to a mandatory obligation to withhold taxation from remuneration payments made to an employee and pay that amount to the Commissioner of Taxation.  Pursuant to s 12-35 of sch 1 to the Taxation Administration Act an entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee.  Pursuant to s 16-5 of sch 1 to the Taxation Administration Act the entity must withhold an amount of taxation from a payment, when making the payment.  In Bennett & Dix (a firm) v Higgins, the respondent in that appeal worked for the appellants as a painter.  When his employment was terminated he made an application to the Commission claiming he had been unfairly dismissed from his employment.  In defence the appellants claimed he had been contracted to them under a contract for services and was an independent contractor.  The Commission found the respondent was an employee and that he had been unfairly dismissed.  The Commission ordered the appellants to pay the respondent two weeks' pay which totalled an amount of $2,006.40.  After the order was made, the appellants' agent wrote to the respondent's solicitors stating that:

In addition to the obligation to deduct as an eligible termination payment 47.5 percent of the compensation ordered, a total of $950.00, our client is also obliged to deduct the PAYG instalments due in respect of your client's earnings of $2,588.80 in July 2003. That tax liability amounts to $1,229.68.

139    The Attorney General for the Commonwealth of Australia intervened in the appeal and made submissions about the effect of the obligation on an employer to withhold taxation.  In the judgment of Le Miere J he set out a submission made by the Commonwealth Solicitor General that is relevant to the disposition of this appeal.  At [36] his Honour said:

The Solicitor-General submitted, and it was not disputed by either of the parties, that the words of s 16-5 in Sch 1 require the withholding to occur when making a payment. These laws do not require and do not permit a payer to withhold from a later payment a PAYG amount that should have been withheld from an earlier payment. The opportunity to withhold is lost once the full amount of the payment is made to the employee.

140    His Honour (with whom Wheeler and Pullin JJ agreed) then found [37] - [42]:

As discussed above, the compensation of $2,006.40 required by the WAIRC order to be paid by the appellants to the respondent is properly characterised as an eligible termination payment. The appellants were obliged to withhold from that payment an amount worked out under the holdings schedules. It is common ground that the amount so calculated is $973.10.

The appellants withheld a further amount on the basis that they were obliged by the Commonwealth taxation legislation to deduct that further amount on account of the wages and salary payments made by them to the respondent in the course of his employment prior to the termination of his employment.

The definition of salary and wages in s 221A of Div 2 of Pt VI of the ITA Act to include an eligible termination payment is not relevant to Sch 1. Division 2 of Pt VI applied to the PAYE deduction system. The PAYE deduction system ceased to operate in respect of salary and wage payments made after 30 June 2000. Consequently the Solicitor-General submitted that the appellant had no obligation to make a deduction under s 221C(1a) from the payment and remit it to the Commissioner of Taxation. The obligation under s 221C(1a) only applies to payments to an employee of salary and wages before 1 July 2000. That submission was not contested by the appellants and I accept it.

In respect of its obligation to pay $2,006.40 to the respondent, the appellants may rely upon s 16-20 of Sch 1 to the TA Act to say that it is discharged from all liability to pay or account for an amount properly withheld under s 12-85 provided it is the amount required by s 15-10 of Sch 1 to be withheld.

The appellants may not rely upon s 16-20 of Sch 1 in respect of the amount they withheld from the $2,006.40 in respect of the PAYG amounts that they did not withhold under s 12-35 at the time payments of salary and wages were made to the respondent in July 2003.

Thus, the appellants were required under Commonwealth tax law to withhold the amount of $973.10 from the payment of $2,006.40 to the respondent under the WAIRC order. Further, having remitted that amount to the Commissioner of Taxation the appellants were discharged from all liability to pay or account for that amount to the respondent. However, the appellants were not required under Commonwealth tax law to withhold any further amount from the payment of $2,006.40 to the respondent under the WAIRC order and were not discharged from their liability to pay the balance of that sum to the respondent.

141    Thus the obligation to withhold taxation from amounts paid to an employee as remuneration arises at the time the payment is made, but no amount can be withheld from any future payment of remuneration in respect of a past payment.

142    The facts of this matter in this appeal are that:

(a) the respondent was paid a total amount of $24,000 as bonus payments; and

(b) no amount of taxation was withheld from any bonus payment and paid to the Commissioner of Taxation as tax withheld from a bonus payment paid to the respondent.

143    Although it is argued on behalf of the appellant that tax on the amount of $24,000 was paid to the Commissioner of Taxation, it is apparent from the evidence given by Mr Kowalewski that the respondent paid tax on that amount as taxation paid on behalf of the appellant or Mr Kowalewski and not the respondent.

144    The respondent's agent urged the Full Bench not to accept Mr Kowalewski's evidence that he had paid the bonus payments from the company and he had paid taxation on the amounts paid.  Whilst this raises an issue going to the credibility of the evidence given by Mr Kowalewski, it is not necessary to consider whether this is an issue that should be determined by the Commissioner following the remittal of this matter by the Full Bench pursuant to s 49(5)(c) of the Act.

145    The respondent's agent made a submission in this appeal that the respondent treated the payment of $24,000 as a gross figure upon which he would have to pay his own tax.  The difficulty with that submission is the respondent did not give any evidence to that effect.  He simply said that he had received a total of $24,000 in bonus payments and that the payments had been paid randomly but on a quarterly basis to cover specific timeframes (ts 34).  He made no comment about whether he understood the payments had been made to him on a net or gross basis.

146    The reasoning of Le Miere J makes it clear that at the time each of the bonus payments were made the appellant was required to withhold the rate specified by the Commissioner of Taxation.  It is obvious that the amount withheld must be remitted to the Commissioner of Taxation as an amount withheld from a payment made to the respondent.  Thus, the tax paid must be paid as tax to be credited and accounted for by the Commissioner of Taxation as part of the respondent's assessable income.  It is clear from Mr Kowalewski's evidence (even if accepted) this did not occur.  In these circumstances, the appellant is not discharged from its liability to pay to the respondent the balance of the amount between $27,108.83 and the amount of $24,000.  Thus, $3,108.83 remains owing to the respondent.  From that amount the appellant would be required to withhold the applicable rate of taxation.  It is not open to the Commission to scale this amount up to take account of the rate of tax that must be paid when making an eligible termination payment, as all amounts of compensation paid in compliance with an order made by the Commission form part of an employee's assessable income in the financial year the payment is made.  If an amount withheld as taxation results in an overpayment of tax, the Commissioner of Taxation will deal with that overpayment as part of an assessment of the employee's assessable income for that financial year:  Miller v Wheatbelt Individual & Family Support Association Inc [2014] WAIC 00028; (2014) 94 WAIG 179.

147    As the decision should be suspended and the matter remitted to the Commissioner to further hear and determine the respondent's claim in relation to the company vehicle, the Full Bench is unable to make an order to vary the decision to order the appellant to pay this sum to the respondent.  This is a matter that can be rectified by the Commissioner when she determines the claim relating to the motor vehicle.

Determination of the appeal

148    For these reasons, I am of the opinion that an order should be made by the Full Bench to uphold the appeal, suspend the operation of the decision and remit the matter for further hearing and determination.

149    The issues the Commissioner is required to determine after hearing submissions by the parties are in my opinion as follows:

(a) Whether the condition in the contract of employment and set out in exhibit Franse 1 relating to the provision of a motor vehicle was varied by oral agreement?

(b) If the condition referred to in (a) was varied, what were the terms of the variation and were the terms of the variation breached by the respondent?

150    If the condition in the contract of employment relating to the provision of the motor vehicle was not varied this part of the claim of denied contractual benefits should be dismissed.

151    After hearing and determining the respondent's claim in respect of the motor vehicle, the Commissioner should then deal with the respondent's claim to the balance of money's owing from the bonus payments calculated on the appellant's turnover, being a gross amount of $3,108.83.

BEECH CC:

152    I have had the advantage of reading in draft form the reasons for decision of the Acting President.  I agree with those reasons and have nothing to add.  I agree with the order to issue.

HARRISON C

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