Appeal against a decision of the Commission in Matter No. U 184 of 2014 given on 6 July 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00171

DELIVERED : THURSDAY, 24 MARCH 2016

FILE NO. : FBA 8 OF 2015

Appellant

AND

Kimberley Individual and Family Support Association Incorporated

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2015] WAIRC 00490; (2015) 95 WAIG 1434

File No : U 184 of 2014

CatchWords : Industrial Law (WA) - Appeal against decision of Commission - Harsh, oppressive or unfair dismissal referred - Claim dismissed - Appellant claimed breach of procedural fairness - Claimant engaged in secondary employment - Implied duty of good faith considered - No error demonstrated - Turns on own facts

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(b), s 29(1)(b)(i), s 49(2)

Result : Appeal dismissed

Representation:

Appellant : Mr J (Shey) Fombason, as agent

Respondent : Mr B R Jackson (of counsel)

Solicitors:

Respondent : DLA Piper Australia

Case(s) referred to in reasons:

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Cementaid (NSW) Pty Ltd v Chambers (Unreported, NSWSC, Library No BC9504439, 29 March 1995)

Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543

House v The King [1936] HCA 40; (1936) 55 CLR 499

In re Loty and Holloway v Australian Workers' Union [1971] (NSW) 95

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

Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

R v Murphy (1985) 4 NSWLR 42 [6] (CCA)

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Subramaniam v Public Prosecutor [1956] 1 WLR 965, 969 (PC)

Reasons for Decision

SMITH AP:

Introduction

1         This appeal is instituted under s 49(2) of the Industrial Relations Act 1979 (WA) (the Act) against a decision made by the Commission in U 184 of 2014 on 6 July 2015:  [2015] WAIRC 00490; (2015) 95 WAIG 1434.

2         Application U 184 of 2014 was an industrial matter referred to the Commission by Ms Eveline Wiyenka Fombason under s 29(1)(b)(i) of the Act.  Ms Fombason claimed she was harshly, oppressively or unfairly dismissed by the Kimberley Individual and Family Support Association Incorporated (the Association) on 29 July 2014.

3         After hearing the application, the Commission issued an order on 6 July 2015 dismissing the application.

Background

4         Ms Fombason was employed as a disability support worker for the Association from September 2011 until her employment was terminated in July 2014.  Ms Fombason was engaged to provide home and out of home support for people with a disability in Broome.  At all material times, Ms Fombason provided support to one client only and that was a Mr M, an adult who is blind and is autistic.  Ms Fombason and her husband and Mr M live next door to each other.

5         Ms Fombason provided services to Mr M on a part-time basis on a 'live-in' basis from 3:00pm Friday to 3:00pm Sunday of each week.  Mr M requires constant care, 24 hours per day, seven days a week.  From March 2013, Ms Fombason obtained a full-time job working for Centrelink from Monday to Friday which required her to work on Friday afternoons.  Consequently, from March 2013, on each Friday from 3:00pm to 4:30pm it was agreed that Mr M would be cared for by either his mother or by Ms Fombason's husband.

6         Initially, Ms Fombason was paid $600 per week for the weekend work she performed for the Association.  This rate of pay arose from a written agreement entered into between her and the Association in August 2012.  This provided for Ms Fombason to be engaged as a 'casual' and paid in two blocks of 24 hours each, at $300 per block.  Later Ms Fombason entered into an agreement on 9 August 2013, which provided for a higher rate of pay of $1059.98 gross per week.

7         During Ms Fombason's entire employment she was paid the same amount for each weekend she worked.  However, it is clear from her evidence that whilst Mr M required 24‑hour care there were periods of time during most weekends that he did not require care by Ms Fombason as Mr M's mother would regularly visit Mr M on a Sunday and either spend time with him or take him out.  During those periods of time, Ms Fombason would carry out housework at Mr M's house.

8         In June 2014, the Department of Child Protection (DCP) contacted Mr and Ms Fombason and asked if they would take on the care of two children, two boys aged 13 and 16.  The boys then came to live with Mr and Ms Fombason.  The older boy has non-verbal autism and was known to the Association as he had been a client.

9         In early July 2014, a new chief executive officer (CEO), Mr Brendon Grail, commenced employment with the Association.  Mr Grail called Ms Fombason into a meeting at the office of the Association on 4 July 2014.  Also present at that meeting was Ms Caterina Ponzio, who was a member of the board of the Association and who at that time had relinquished her role on the board to become a consultant to the Association.

10      Mr Grail's evidence was that when he commenced employment as the CEO it was conveyed to him by the Disability Services Commission, who is the sole funding body of the Association, that the Association was required to ensure that funds were used optimally and only where reasonable and necessary.  He also said that the Disability Services Commission also advised that being at home when a client is not at home would not be considered reasonable and necessary use of funds and therefore the Association should be looking to restructure those arrangements (ts 87).  Thus, the meeting with Ms Fombason was initiated by Mr Grail as he formed the opinion that all employees who support people with disabilities should record the actual hours of start and finish times and should only record as hours of work the hours they carry supporting the person with the disability.  Mr Grail understood that there might have been a prior discussion with Ms Fombason about her being allowed to stay in the house and do housework and chores when not caring for Mr M but he was of the opinion that from time to time the Association was required to revisit the funding arrangements with clients.

11      Consequently, Mr Grail wished to have a discussion with Ms Fombason about the accurate recording of information on timesheets.  Whilst there is some dispute between the parties as to what occurred at the first meeting, it appears that Ms Ponzio had become aware prior to the meeting that Mr and Ms Fombason had taken on the care of the two children who were under the care of DCP.

12      Mr Grail's evidence of this meeting was that after being introduced to Ms Fombason by Ms Ponzio, he said to Ms Fombason that Mr M's family were appreciative of the work that she and her husband were doing and happy with their services.  He then started to talk about the importance of recording information accurately in timesheets to ensure that they were paying staff correctly.  Mr Grail said that Ms Fombason was resistant to engaging in the discussion about the subject, at which point Ms Ponzio said that she was aware that Ms Fombason now had the care of two children under the care of the DCP at which point Ms Fombason became extremely agitated and aggressive and stated that it was none of Ms Ponzio's business what she did in her private life.  The discussion broke down at that point and Ms Fombason refused to continue any discussion.  Mr Grail said the meeting lasted less than five minutes (ts 89 - 90).

13      When Ms Fombason gave evidence she said when she walked into Mr Grail's office the first thing that he did was to 'shove' a tally sheet at her face and asked her to justify the number of hours.  She said that he scared her that she almost cried and that it was not proper to ask her to account for the number of hours on her timesheet.  She denied that she said to Ms Ponzio when the care of the children was raised that it was none of her business, but she did say that she told Ms Ponzio that she had already told her this a couple of months ago and she asked Ms Ponzio 'why are you discussing about my family again?  Have you called me here to discuss about my family?'  She then told them both that she was leaving the meeting and her husband would come and discuss the matter.  She said the reason why she told Mr Grail that they could speak with her husband was because the children were not under her care; they were under her husband's care on a voluntary basis (ts 53 - 54).  When asked in cross-examination why she did not simply answer the question, she said she could not do so because she was scared of her CEO.

14      When Ms Fombason's husband, Mr Joseph Fombason, gave evidence he tendered into evidence a copy of an email that he had received from Ms Peta-Lee Cole-Manolis (an officer employed by DCP) on 26 May 2015 in which Ms Cole-Manolis stated that she had had a meeting with Ms Ponzio and Mr Josh du Boulay at the Association in April 2014 to discuss CAAPS funding for one of the boys under the care of Mr and Ms Fombason.  In that email, Ms Cole-Manolis stated she:

(a) discussed with them that they had approached Mr and Ms Fombason to become approved carers for the boys and that they would be assessing them as 'significant other's' given their already established relationship with the boys' family;

(b) advised them that DCP were aware that Ms Fombason was employed with the Association caring for Mr M on weekends as respite/support care; and

(c) confirmed that DCP had already planned around the boys naturally being supervised/cared for by Mr Fombason when Ms Fombason was working with Mr M as any parent/carer would do when one has work.

15      At the hearing Ms Cole-Manolis was not called to give evidence.  However, Ms Ponzio gave evidence about this meeting.  When provided with a copy of the email she said that she recalled the meeting was fairly brief and that she was told the purpose of the meeting was that DCP wanted to transfer the funding from the Association for the family (of the boys) to another service provider, Life Without Barriers.  She said that at the end of the meeting the Fombasons were mentioned and in passing she was told that they (DCP) were waiting for a response from the Fombasons.  She also said that:

(a) she was not aware that the boys were living with the Fombasons until a few weeks later or about a month later when she was informed by Mr du Boulay that he had 'bumped into them' at the Boulevard Shopping Centre (ts 114 - 115); and

(b) at no time after the meeting with the officers of DCP did Ms Fombason come into the office of the Association and inform her that the children were in her care (ts 117).

16      On 7 July 2014, Mr du Boulay, who was at that time the client services manager, told Mr Grail that he had seen Ms Fombason at the Boulevard Shopping Centre with Mr M and the two boys and had spoken to her just to say hello and let her know he had seen her.  As a result of that report, Mr Grail arranged a second meeting with Ms Fombason in his office.  Ms Ponzio attended the meeting, together with Mr and Ms Fombason.

17      Mr Grail said when giving evidence about the second meeting he raised with Ms Fombason his concern about the number of continuous hours she was working and he told her she had been seen at the shopping centre with the boys at which point she again became aggressive and said, 'How dare you?  That’s none of your business.  That’s private.'  He then explained to her that the Association is contracted to provide one on one support and group support is not permitted.  She then stood up and said, 'My husband’s a lawyer so he’s well able to continue this discussion.  I give him authority to speak on my behalf.'  Mr Grail then told her he would not engage in further discussion after she left the room as she was the employee.  She then left the room and the meeting concluded (ts 90).

18      When Ms Fombason was cross-examined she denied that Mr Grail put to her at the second meeting that she had been seen in public with the two children and Mr M.  She also claimed that the first she had heard of the allegation that she was seen in public was when it was put to her by counsel for the Association (ts 56).  Ms Fombason maintained that they discussed her timesheets and she told him that he could speak to her husband about the foster children and she left the meeting (ts 56).  She also stated that she was not upset when she left the meeting (ts 57).  She explained that she did not want to discuss the children because they were not under her care, they were under the care of her husband on a voluntary basis (ts 55).  When giving evidence Ms Fombason denied she ever went out with both the foster children and Mr M.  She said that she considered the children as her own children during the week but not during the weekend when she was working with Mr M.

19      Mr Fombason's evidence about this meeting was that they were asked to come to the meeting about a timesheet.  When cross-examined, it was put to Mr Fombason that Mr Grail had said to Ms Fombason that he was aware that she was working two jobs, as well as having the care of two foster children, and that working such long hours was breaching the Association's duty of care.  Mr Fombason agreed that was said.  It was also put to Mr Fombason that Mr Grail said to Ms Fombason that she had been seen in public looking after the foster children at the same time as she was taking care of Mr M.  Mr Fombason agreed that that was put to Ms Fombason at the meeting and said that that 'was a dishonest lie that upset his wife and caused her to leave the meeting'.  It was also put to him that she had said that that was 'none of your business'.  He said he did not hear that, but conceded she might have said that (ts 21).

20      After the second meeting, Ms Fombason did not speak to Mr Grail again until the termination of her employment.  All communication between the Association and Ms Fombason from that point of time was in writing.

21      Mr Grail gave evidence that shortly after he first commenced employment, which was sometime in May 2014, he was briefed by Mr du Boulay and Ms Ponzio that there were a range of issues in respect of a number of employees, one of whom was Ms Fombason, that needed to be addressed.  One of those issues was the proper recording of time worked in timesheet records and the issue of paying penalty rates on a Sunday when an employee was not with the client.  In respect of Ms Fombason, he had been advised at some point that she had been employed by Centrelink and was effectively working two full-time jobs creating seven days per week employment.  He said that the Disability Services Commission had strongly drilled into him on their duty of care to people with a disability, particularly those at the high end with significant multiple disabilities and that he considered anyone who is working in excess of 45 hours a week was putting themselves and the client at risk of harm.  He then found out in addition to the Centrelink job that Mr and Ms Fombason had taken on a significant obligation which was the care of the two children, one of which has significantly high needs.  He said he was never able to discuss these issues with Ms Fombason because she repeatedly refused to engage in the discussion about these matters.  When asked why he could not speak to Mr Fombason, he said he was not prepared to do so because Mr Fombason was a family member and he had attended the second meeting as an advocate and a support person.  His arrangement and legal obligations were with the employee.  Mr Grail sent a number of emails to Ms Fombason, but he says she did not properly respond.  He formed the opinion that she was evading him and this was particularly displayed by her very aggressive behaviour on both occasions that he met with her.

22      On 11 July 2014, Mr Grail sent an email to Mr Fombason's private email address stating:

Hi Joseph, I tried call your mobile and Eveline's mobile. I need to see Eveline about her timesheet. Can you please ask her to drop into the office this afternoon, but please call first on 0429 309 710 to make sure I'm not in a meeting. I need to talk to Eveline direct - it's not appropriate for me to discuss her timesheet with you.

23      Ms Fombason replied by email that afternoon and said:

Thanks for your email. Unfortunately I am too busy and would not be able to come in as requested.

Could you please write to me about the timesheet. Also, use this email as authority to discuss my work and finances at KIFSA with my husband (Joseph)

24      On the same day, Mr Grail sent another email and said:

Hi Eveline, as mentioned in my email, I will only discuss work-related matters direct with the employee (i.e. you), not a family member.  It is your timesheet I need to talk with you about, not Joseph's.

Please advise a day/time next week that you're available to come in to the office to discuss.

25      On 14 July 2014, Ms Fombason responded once again by email and said:

I have been working with [Mr M] on a permanent shift during the week ends for the past three years with KIFSA.

If there is anything to discuss about my time sheet, I would appreciate, if you could please put it in writing and I would be able to response.

Also, could you please advise whether KIFSA,s fortnightly pay days have changed from the normal Wednesdays indicated in my contract.

For the past two fortnights, my wages have been withheld or delayed for about a week and a half.

26      In response to Ms Fombason's request that he put the issues in writing, Mr Grail sent an email to Ms Fombason on the morning of 14 July 2014 in which he stated as follows:

Hi Eveline, I still need to see you in person to discuss, but the issues are as follows:

• You are required to take an unpaid meal break of at least 30 minutes after 5 hours of work

• Can you please advise what your work hours are at Centrelink. As discussed with you previously, we have a duty of care to ensure that staff do not put the client (or themselves) at risk by working multiple jobs in one day that result in long uninterrupted shifts being worked.

• I have sought clarification on the subject of doing household chores while a client is not present. From now on, if [Mr M] spends time with his mother or some other family member or friend, you will need to clock off. This is due to DSC's funding guidelines, as well as the obligation we have to our clients to conserve funding for times when it is most needed. As soon as you become aware that you are no longer required to be in [Mr M's] presence during a scheduled shift, can you please contact the Broome Team Leader Dinu Thomas on 0478 079 844 to advise him. I will advise Margaret of this.

Can you please advise what times you are available this week to come into the office to meet with myself, Josh, Elaine and Dinu. After we meet with you in person, you can amend your timesheet from the last pay period and we will process it.

27      Later that day, Ms Fombason replied by email and stated:

Thanks for your email.

I refer to my previous email and would like to clarify that I have got contractual obligations with KIFSA; ongoing now for about three years; and would appreciate that we stick firmly to that agreement.

With due respect, I would highly appreciate that you do not intervene in whatever I do at my other times. I believe that my other hours are private and personal.

If there are any amendments to my time sheet, could you please scan it back to me or post it to Eveline Fombason (PO 3386, Broome WA 6725); stating specifically what needs to be amended.

In my previous email, I did seek clarification as to the reasons why my wages have been withheld or delayed, but have not got a response.

The fact that my wages are delayed without due notice and all the several phone calls I have received from KIFSA about my personal life makes me real feel uncomfortable to attend your office for any meeting.

Could you please put whatever you would like to discuss with me in writing, and I will respond.

28      On the following day, 15 July 2014, Mr Grail responded by email in which he stated that he had clarified the issues in writing in his prior email and he would discuss the issues further with her when they meet face-to-face.  He also said in the email that he did not wish to discuss any personal issues with her, so she did not need to feel uncomfortable and asked her to telephone and make a time to meet.  He also said that after they had met and she had amended her timesheet it would be paid.

29      When Ms Fombason gave evidence, she said that when Mr M was not at the house she carried out housework.  She said she was still on duty whilst she was carrying out that work and it was in her contract that she was required to carry out that work.  She said when Mr M was in the house she could not leave Mr M on his own and that she could not take a 30 minute meal break because the Association had never sent anyone out to replace her for a 30 minute period.

30      Ms Fombason also said when giving evidence that she was not available to go into the office of the Association during the week to meet with Mr Grail as she was employed at Centrelink.  She said there would have been no difficulty if Mr Grail had come to Mr M's house whilst she was at work because when she has had meetings in the past with the CEO of the Association they always put Mr M to bed to have a 'catnap' whilst she has had a discussion with the CEO.  She said it would be better to meet at Mr M's house because the office was so intimidating to her and that is why she said they should meet at the client's residence where she had previously had other meetings.  She said she was so scared of the environment at work that she had been receiving the services of a psychologist because of the incident that occurred whilst employed by the Association.

31      The day after Mr Grail sent the email to Ms Fombason on 15 July 2014, he had a meeting with Mr M's mother, who is Mr M's guardian.  The purpose of the meeting was a planning session which was held with Ms M, Mr M, the Disability Services Commission and two of his staff members at which they discussed forward planning to support Mr M with his goals into the future.  At that meeting he raised with Ms M, Mr du Boulay's account that Ms Fombason had been seen supporting Mr M in the community in the presence of two boys and asked whether she was aware of that.  He said that Ms M informed him that she was horrified and expressed her discontent about that.  Mr Grail informed Ms M that he was in the process of having discussions with Ms Fombason about a number of matters and he hoped to meet with her in the next few days.

32      On 20 July 2014, Mr Grail sent a letter to Ms Fombason asking to meet with her for 30 minutes and proposed a number of alternative times to meet in the following week (AB 303).

33      Early in the morning of 21 July 2014, Ms Fombason sent an email to Mr Grail in which she stated (AB 304 - 305):

Thank you for your letter.

I will first clarify that I responded to your first two emails and was in the process of preparing a response to the third when I received your letter. More so there was no time frame indicated by you to respond. So there is no breach as alleged in your letter.

However as I have previously stated, I am not comfortable for a face to face meeting with you in your office following my experience of two previous meetings with you.

Can you please in writing notify myself of what you require and explain why?

Alternatively, could you please follow the arrangements about meeting with you as set up in the Terms and Conditions of Employment Co-Residency, as written in my contract; and I quote;

Supervision:

"Regular meetings will be arranged at the house with either the Client Services Manager or the Executive Officer, you will be provided with notice of these meetings. The purpose of the meetings are to provide you with support within your role and also for you to raise any suggestions or issues you may have so that a team decision can occur to find resolution to these"

The above arrangement suits well with Pattern 2: (3pm Friday afternoon through to 3pm Sunday afternoons); the only times that I provide service to KIFSA.

This arrangement has worked well with me in the past with the three previous CEOs I worked with in KIFSA. There has never been a breakdown of communication or allegation of breach of contract as stated in your letter.

Our emails have been about my time sheet. You indicated that the time sheet needed amendments. The amendments were not specified and to date I have not receive the payment.

I hope that this can be resolved in a timely manner.

34      On the same day, Ms M contacted Mr Grail and informed him that Ms Fombason spoke to her on Sunday and that Ms Fombason had expressed her discontent with him and the Association.  Ms M explained to Mr Grail that this was causing her a great deal of stress and she thought that it was inappropriate for Ms Fombason to be talking to her about these matters.

35      By that time Mr Grail had come to the view that if Ms Fombason was not prepared to engage in any discussion around the issues that he wished to discuss with her and it was his opinion that there was an irrevocable breakdown in trust.  He decided that he would suspend Ms Fombason on full pay and he sent her a letter dated 21 July 2014 which stated as follows:

In response to your email which I received on Monday 21 July, I wish to advise the following:

a. Despite my repeated lawful directives for you to attend a meeting at the KIFSA offices with your Support Person, you have instead repeatedly advised that you are unavailable to do so and now appear to be dictating to me the circumstances where you will attend - I note that you are referring to a clause in your Contract which is totally unrelated to the requirement for the meeting which I have requested and you have failed to provide any valid reason for non attendance - particularly as independent parties will be present.

b. On multiple prior occasions, I have asked you to disclose the details of other paid work you undertake and which may form the basis of a direct conflict of interest with your KIFSA employment and negatively impact on your support of KIFSA service users, you have failed to respond to all such reasonable requests. As explained to you in person during the last two face to face meetings with you, KIFSA has a duty of care to its employees and its clients to never roster staff on when they have just completed a shift with a different employer.

c. KIFSA is contracted to provide one-on-one support to the client [Mr M], however it is alleged that you have been observed by independent witnesses caring for up to three people simultaneously whilst rostered on to work with [Mr M] - if so this would represent a breach of your contract.

d. It is further alleged that you made an inappropriate approach to a client's mother on the weekend of 12/13 July where you aired your grievance with KIFSA directly with [Ms M] - this action represents both a breach of faith with KIFSA and a breach of your contract.

As at the date of this letter you are hereby formally advised that you are being placed upon immediate suspension - you will be paid as per your normal shift allocations during this period. You have until close of business (ie 5pm) Thursday the 24th of July to respond to the above matters in writing to me and show 'just cause' as to why you should not be terminated for breach of contract relating to the matters referred to in items b, c and d above.

Alternatively you may choose to attend a meeting here at the KIFSA Offices with myself and Shelley Baker present at 4:30pm on Wednesday 23 July and to which you may bring a 'support Person'. You are reminded that a support person is not an advocate and may not speak on your behalf. If you choose to attend this meeting then you are required to inform me no later than 1pm on Wednesday 23 July.

I would draw your attention that any failure to respond to this directive within the timeframe specified without valid excuse will result in the termination of your employment.

36      On 23 July 2014, Mr Grail received a letter from solicitors acting for Ms Fombason in which they requested 14 days to respond to the letter of 21 July 2014 and stated that Ms Fombason was still happy to continue with the current employment duties for Mr M, should she be reinstated and asked for confirmation in writing that she would not be required to provide her usual support duties to Mr M from Friday, 25 July 2014 (AB 309).

37      On the following day, Mr Grail wrote to Ms Fombason's solicitors and advised them that he was not prepared to wait 14 days for a response to the matters raised in the letter dated 21 July 2014.  He said in the letter, however, he was prepared to extend the deadline for a response until 5:00pm on Monday, 28 July 2014.  He also stated that given the serious nature of Ms Fombason's employment contract breaches, and the fact that Ms Fombason initiated additional inappropriate conversations with the client's mother on Sunday, 20 July 2014, he advised that her suspension reverted to being unpaid as at Thursday, 24 July 2014.  He also advised that alternative arrangements for the care of the client had been made and Ms Fombason was instructed not to attend the client's house (AB 310).

38      On 25 July 2014, Ms Fombason's solicitors wrote again to Mr Grail and stated that they did not believe it was reasonable for Ms Fombason to only have seven days to obtain legal advice and respond to the allegations and advised that Ms Fombason would not be responding to the allegations by 5:00pm on Monday, 28 July 2014.  They also stated that the terms and conditions of Ms Fombason's contract provided that meetings were to be arranged at the co-residency house and not at the Association's office and that they were instructed that he had not previously requested a meeting with Ms Fombason at the co-residency house.

39      On 28 July 2014, Mr Grail wrote to Ms Fombason's solicitors and informed them that as Ms Fombason has again failed to meet his request to respond to a number of serious issues, and following a letter that had been delivered by Ms Fombason to the chair of the Association on Friday, 25 July 2014, Ms Fombason's employment with the Association was terminated as of Tuesday, 29 July 2014.

40      It was put to Mr Grail in cross-examination that the main reason why he had terminated Ms Fombason's employment was because of the allegation that she was caring for Mr M and other children and that had horrified Ms M.  In response, Mr Grail said that was one of a number of issues.  He said there were multiple issues; there was the breach of confidentiality, aggressive behaviour towards him and another staff member and not being prepared to respond to any questions about the timesheets.

41      Ms M gave evidence via telephone link.  Ms M said that in the middle of 2014, Mr and Ms Fombason came to her house to tell her that Ms Fombason was going to be caring for two teenage boys and one of them was autistic.  Ms M asked how this would affect Mr M and Ms Fombason told her that there were various activities that had been set up for the boys and it would have no effect on Mr M's care.  Ms M also told the Commission that it had been reported to her some time later that Mr M had been seen with two boys with Ms Fombason at the shopping centre.  She said that as Mr M is totally blind, autistic and needs a lot of assistance she was not happy about that.  She also said that Ms Fombason complained to her about Mr Grail and she told Ms Fombason that they should speak to Mr Grail and she did not wish to hear about her complaints.  Ms M also stated that she subsequently informed the Association that she was not happy about this issue.

42      When cross-examined, Ms M conceded that until they took on extra caring she had always been very happy with Mr M's care from Mr and Ms Fombason.

43      When Ms Fombason gave evidence she said she spoke to Ms M about Mr Grail when she saw Ms M at church on the Sunday.  She said she regularly saw Ms M at church.  She agreed that she may have complained to Ms M about Mr Grail being unfair to her and said that she was discussing it on a personal basis because Ms M knows everything about her family and she knows everything about Ms M's family.

The Commissioner's findings at first instance

44      After considering the evidence given on behalf of the parties, the learned Commissioner pointed out that the principles that apply to whether a dismissal is harsh, oppressive or unfair:

(a) involve an objective assessment by the Commission as to whether an employer has abused its lawful right to terminate a contract of employment; and

(b) the employee is entitled to 'a fair go all round':  Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 (Undercliffe) and In re Loty and Holloway v Australian Workers' Union [1971] (NSW) 95.

45      The learned Commissioner also pointed out that it is not for the Commission to sit in the managerial chair and to decide for itself if a decision should have been taken.  Rather, the Commission's role is to objectively consider the employer's actions, and whether the employer's actions in dismissing the employee, were unfair.

46      After setting out those principles of law, the learned Commissioner made the following findings of fact:

(a) As an employee of the Association, Ms Fombason was responsible for the care of the client.  As an employee, she had other duties.  One duty was to ensure that the policies of the organisation were complied with.  A key policy of the Association is the policy to not cause a conflict of interest between any activities engaged in by an employee and the Association's obligations to its clients.  Concerns about a conflict of interest plainly may involve matters such as the performance of excessive hours of work in other occupations or activities that may impact on the provision of care to clients.

(b) At common law, as an employee of the Association, Ms Fombason was at all times required to comply with the lawful and reasonable directions of Mr Grail as the CEO of her employer:  Sappideen et al, Macken's Law of Employment (Lawbook, 7th ed, 2011) [5.790].  Ms Fombason was clearly in breach of her duty in this respect.  She failed to respond to the several lawful and reasonable requests by Mr Grail, on behalf of the Association, her employer, to meet and to discuss the various matters raised by him in his correspondence.  Mr Grail had raised a number of legitimate issues, that as Ms Fombason's employer, he was entitled to raise with her.  Given the policies of the Association, Mr Grail was obliged to clarify and resolve these issues.  It was simply not for Ms Fombason to dictate to the Association where and how these matters were to be progressed. Similarly, it was not for Ms Fombason to appoint her husband as her spokesperson.  Mr Fombason was not an employee of the Association.  He had nothing to do with the employment contract between Ms Fombason and the Association.

(c) As Mr Grail was not made directly aware of Ms Fombason's specific working arrangements during the week, Monday to Friday, nor the specific arrangements for the care of the two foster children, these matters were very properly able to be raised by him.  There was nothing at all unreasonable about the Association, as Ms Fombason's employer, wishing to discuss these matters properly with her.  Mr Grail also wished to discuss the allegation that Ms Fombason took both the client and the two foster boys on an outing together, contrary to the Association's usual practices.  Mr Grail also wanted, again quite properly, to discuss with Ms Fombason the allegation that she had inappropriately raised with the client's mother her employment issues involving both Mr Grail and the Association.

(d) The assertion of Ms Fombason that she was bullied and intimidated by Mr Grail is not accepted.  There was no cogent evidence to support such an allegation.

(e) On all of the evidence, Mr Grail's impression that he had formed by at least 21 July 2014, that Ms Fombason was deliberately attempting to avoid any meeting with him, was quite correct.

47      The learned Commissioner then found that:

(a) Whilst Ms Fombason did inappropriately engage with Ms M about her employment matters with the Association that was a matter not by itself which would warrant termination of employment.

(b) The employer did have a proper ground for the termination of Ms Fombason's employment and that was the complete failure and refusal by Ms Fombason, as an employee of the Association, to properly engage with her employer on important matters in connection with her employment.

48      The learned Commissioner explained that Ms Fombason's unreasonable refusal to comply with the Association's requests left the Association with little option, and he did not consider Ms Fombason's requests through her solicitors of more time to respond to be reasonable.  In particular, he found that Ms Fombason had ample time to consider the matters raised by Mr Grail, which were well known to her.  He also found that such a request was a further attempt to delay and frustrate the Association's legitimate request to meet with its employee to discuss some important work matters.  Further, he found that the suggestion of a meeting at the client's home was plainly not appropriate.  The matters that Mr Grail wanted to discuss with Ms Fombason did not relate in any way to the provision of support for her in her role as a carer for the client.  They were matters relating to potentially serious breaches of the Association's policies.

49      For these reasons, the learned Commissioner was not persuaded that the dismissal of Ms Fombason was harsh, oppressive or unfair.  Accordingly, he made an order that the application be dismissed.

The grounds of appeal

50      The amended grounds of appeal are set out in a document which also contains some written submissions about the evidence.  However, it is clear from the document that the grounds of appeal are as follows:

1. The origin of the entire case was based on hearsay.  The learned Commissioner erred in his judgement in that he relied solely on hearsay evidence to take the final decision.  He failed to consider any other facts especially the contract of employment of the appellant.

2. That the appellant had not been afforded procedural fairness.

3. The learned Commissioner further erred in his judgement in that he disregarded the appellant's request for a reasonable time to respond to allegations made by the CEO of the Association.

4. On a matter of public interest an appeal should lie on grounds:

(a) that the appellant has worked continuously for three years with the Association and has an unblemished record; and

(b) that during the time of the appellant's employment with the Association her performance has never been affected or questioned at any time as a result of a second job.

51      As the appeal is against a decision to dismiss Ms Fombason's claim of unfair dismissal, it is not necessary for the Full Bench to form an opinion that in the public interest an appeal should lie.  Ms Fombason has an appeal as of right against a decision to dismiss her claim.  Consequently, it is not necessary to consider the fourth ground of appeal.

Application to adduce fresh evidence

52      At the hearing of the appeal, the appellant sought to tender a number of documents which had not been tendered as exhibits in the hearing before the Commission at first instance.  After hearing the parties, the Full Bench received into evidence one document only and that is a document which is annexed to the appellant's written submissions as annexure AA.  This document is a medical report written by Dr Lauren Turner MBBS dated 25 July 2014.  It appears to be a letter of referral to a psychologist, Robyn Bradbury.  In the letter, Dr Turner states:

Thank you for seeing Eveline Wiyenka and advising with regard to psychological therapies for depression.

Eveline has suffered low mood, feelings of emptiness and worhtlessness [sic], poor appetite, anhedonia and poor sleep for about 6 weeks following issues in the workplace.

She has a MHCP in place. K10 score 44

53      The reason why this document was admitted is that the Full Bench accepted the submission made on behalf of Ms Fombason that at the time of the hearing of the application at first instance Dr Turner was away and consequently Ms Fombason was unable to obtain a copy of any report from her.  The reason why Ms Fombason seeks to put this document before the Commission is to counter the finding made by the learned Commissioner that there was no cogent evidence before him to support an allegation made by Ms Fombason that she was bullied and intimidated by Mr Grail.  Whilst the Full Bench formed the opinion that the use of this document is extremely limited, it did admit the document into evidence on the grounds that the evidence was not available at the time of the hearing and it could be adduced in support of a submission to contend that finding made by the learned Commissioner was incorrect.  However, for reasons that follow in these reasons for decision, it is clear that when the document is properly analysed it does not support the contentions made on behalf of Ms Fombason.

The appellant's submissions

54      In the written submissions filed by the appellant on 9 November 2015, and those which are set out in the amended grounds of appeal, a number of submissions and matters are referred to which were not the subject of evidence before the Commission at first instance.  At the hearing of the appeal, we advised Mr Fombason, who is acting on behalf of Ms Fombason, that the Full Bench would not have regard to any submission that was not the subject of evidence.

55      Consequently, in these reasons for decision I have only set out the submissions which have been made on behalf of Ms Fombason which were the subject of evidence before the Commission at first instance, together with the letter of referral from Dr Turner which is the only additional document admitted into evidence by the Full Bench.

(a) Ground 1

56      In ground 1 of the appeal, it is contended on behalf of Ms Fombason that the origin of the entire case was based on hearsay and that the learned Commissioner erred in his judgement in that he relied solely on hearsay evidence in making a decision to dismiss Ms Fombason's claim and he failed to consider other facts, in particular the contract of employment of the Ms Fombason.

57      In support of ground 1 of the appeal, the following submissions are made:

(a) In July 2014, Ms Fombason attended two meetings with Mr Grail, the current CEO.  During the first meeting, Mr Grail alleged that he had been informed by independent witnesses that Ms Fombason had been observed caring for up to three people while rostered for the Association's client only.  Ms Fombason denied the allegation.  However, during cross-examination, it was revealed that the allegation was made by the former acting CEO of the Association, Mr du Boulay.  Yet, Mr du Boulay was not called as a witness and the motive for him making the allegation was not established.  When Mr Grail was asked whether Mr du Boulay was available to substantiate the allegations, Mr Grail told the hearing that his whereabouts was unknown as he no longer worked for the Association.  Ms Fombason contends that Mr du Boulay was the most important witness in this matter and yet he was not called by the Association to give evidence.

(b) Ms Fombason also claims the learned Commissioner should have summoned the officers from DCP to give evidence who provided an email confirming that the Association were informed about the children and that they were to be looked after by Ms Fombason's husband when Ms Fombason cared for Mr M.

(c) Ms Fombason has never refused to meet with the employer at any time.  When she first met with Mr Grail she felt bullied, intimidated, embarrassed and harassed.  She subsequently paid a number of visits to a clinical psychologist, Ms Bradbury, and was counselled how to deal with bullying actions of Mr Grail.  During the proceedings, the learned Commissioner did not request any evidence to justify the bullying, but simply asserted that he did not believe that Ms Fombason was bullied by Mr Grail.  The psychologist and Dr Turner who saw Ms Fombason during this stressful time, could provide evidence of her depression.

(d) Ms Fombason was willing to meet with Mr Grail at Mr M's home, but Mr Grail had predetermined to terminate the employment of Ms Fombason and did not consider any of the letters or emails Ms Fombason sent to him.  A finding should have been made that Mr Grail was fully aware of Ms Fombason's working arrangements when he took over from the acting CEO, Mr du Boulay, as the evidence established that Mr Grail was advised of the working arrangements of Ms Fombason when he commenced work as the CEO of the Association.

(e) Ms Fombason was too frightened and embarrassed to meet with Mr Grail following the first meeting.  She was so frightened to the level that she gave implied and written permission to her husband to meet with Mr Grail.  By Mr Grail failing to meet with Ms Fombason in the manner required by Ms Fombason's contract of employment, the Association failed in its duty as an employer.

(b) Ground 2

58      In this ground it is contended that Ms Fombason has not been afforded procedural fairness.

59      In the reasons for decision of the learned Commissioner, he found that a key policy of the Association is the policy not to cause a conflict of interest between any activities engaged in by an employee and the Association's obligations to its clients.  He also found that concerns about a conflict of interest may involve matters such as the performance of excessive hours of work in other occupations or activities that may impact on the provision of care to clients.  Ms Fombason challenges this finding.  She points out that she gave uncontradicted evidence that prior to the policy document being put to her in cross-examination she had not seen that document.

60      It is also pointed out on behalf of Ms Fombason that her employment obligations to the Association arose only on weekends and that in the three years that she was employed by the Association on weekends to care for Mr M, no issue of performance or any breach by her was reported until the arrival of Mr Grail.

61      It is also contended that the learned Commissioner failed to have regard to the fact that:

(a) in May 2014, Ms Fombason and her husband were contacted by DCP in Broome to care temporarily for the two boys already known to them while a decision was taken about their permanent placement.  Ms Fombason immediately informed DCP about her weekend commitments with the Association and her other duties with Centrelink.  Considering the urgent request and the need for the children to get a roof over their head, the Fombasons accepted on the condition that the children would be cared for by Mr Fombason on weekends;

(b) DCP informed Centrelink and the Association that they were in desperate need for a place for the children and that the Fombasons were the only immediate family that could help.  The Association was informed of this at a meeting in April 2014.  The email from Ms Cole-Manolis, a case worker from DCP, verifies this evidence.  The Association claimed in the proceedings that they had never been informed of the arrangement and the learned Commissioner accepted the Association's evidence in this regard which is contrary to the evidence given in the proceedings;

(c) during the proceedings, Mr M's mother confirmed that Ms Fombason attended her home to advise her of the boys coming into her care and that Ms M had no problem about that until Mr Grail revealed to her about the two boys being cared for simultaneously with Mr M.  Thus, all concerned parties were advised about the boys.  But this evidence was ignored.  Further, during cross-examination Ms M explained that she had never had any issues with Ms Fombason for over three years until Mr Grail called and reported this matter to her.  It is contended, however, that Ms M confirmed that she would always recommend the Fombasons as carers;

(d) Ms Fombason was denied an opportunity to present her own side of the story or to return to work at the Association as all of her responses to the Association were not considered;

(e) although it is conceded that after church on 13 July 2014, Ms M asked Ms Fombason how work was going and Ms Fombason is alleged to have explained that the work was good, but she was having some difficulties working with the new CEO, the learned Commissioner ignored the evidence that during the three years of service Ms M has built a friendship with the Fombasons.  Thus, the idea of an inappropriate approach to Ms M by Ms Fombason as stated by Mr Grail in his letter was a fabrication by Mr Grail to support the unlawful dismissal as for over three years Mr M, his mother and Ms Fombason had built a personal attachment to each other;

(f) the issues relied upon by Mr Grail were never put in writing;

(g) in 2013, Mr du Boulay gave Ms Fombason a copy of the last page of a nine page document to sign which she says she signed, but she did not sign the contract of employment tendered into evidence as she only received one page of the document (AB 54, ts 40);

(h) Ms Fombason was not a foster carer and she did not have the care of the children on the weekends.  It is conceded, however, on her behalf that if one applies 'the Clapham omnibus test' that an ordinary man would not be able to look after two children and a blind man at the same time;

(i) Ms Fombason was still determined to continue her job and Mr Grail was asked if he could please come to Mr M's house as other CEOs have done as Ms Fombason's work was weekend work.  Thus, the requirement of weekend meetings were not only in her contract of employment, but the Association was well aware that she worked full-time for Centrelink during the week and was not available for meetings during the working week.

(c) Ground 3

62      In ground 3 of the appeal, it is contended that the learned Commissioner erred by disregarding Ms Fombason's request for reasonable time to respond to the allegations.

63      In support of this submission, it is pointed out that although Ms Fombason's lawyer wrote to Mr Grail requesting for 14 days to respond, this request was ignored and the termination proceeded without a reasonable period of time to respond.  This is because Ms Fombason's solicitors were unable to respond within a period of seven days.  The refusal to allow further time was unreasonable in circumstances where Ms Fombason had false allegations levied against her, threats of termination and bullying.

64      In these circumstances, it is contended that the learned Commissioner did not consider the gravity of Mr Grail's actions on a conscientious employee who had worked for the same employer for three years and was sacked in less than a month without just cause.

Conclusion

65      The learned Commissioner was required to consider whether the Association exercised its right to terminate the employment of Ms Fombason so harshly, oppressively or unfairly so as to amount to an abuse of that right:  Undercliffe (386) (Brinsden J).  A determination of whether the dismissal of Ms Fombason was harsh, oppressive or unfair turned on an assessment of not only the oral evidence given by witnesses, but also of the documents tendered into evidence.  An evaluation of the evidence, resulting in the finding by the learned Commissioner that he was not persuaded that the dismissal was harsh, oppressive or unfair, involves an exercise of discretion.

66      The Full Bench is only empowered to set aside a discretionary decision in limited circumstances.  A discretionary decision cannot be set aside because members of the Full Bench would have exercised the discretion in a different way.  In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ observed (504 - 505):

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

67      A Full Bench is required to accord an evaluative decision made by a Commissioner that a dismissal was, or was not, harsh, oppressive or unfair with significant deference:  Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266 [139].  In Michael, Ritter AP observed [143]:

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

68      Underlying the submissions made on behalf of Ms Fombason in respect of grounds 1 and 2 of the grounds of appeal is an assumption that the learned Commissioner accepted that Ms Fombason had taken Mr M shopping with the two boys and had been seen by Mr du Boulay.  However, the learned Commissioner did not make such a finding.  He found that after Mr Grail received a report from Mr du Boulay, Mr Grail on behalf of the Association was entitled to discuss this allegation with Ms Fombason.  This finding is not founded in hearsay.  Although, pursuant to s 26(1)(b) of the Act, the Commission is not bound by the rules of evidence and may inform itself on any matter in such a way as it thinks fit, even if the rules of evidence were applied in respect of this particular issue, the evidence given by Mr Grail that he received such a report from Mr du Boulay would be admissible.  This is because it is a rule of evidence, that evidence of a statement made to a witness (Mr Grail) by a person who is not called as a witness (Mr du Boulay), is received into evidence not to establish the truth of the statement but to establish the fact that the statement was made, is not hearsay and is admissible:  Subramaniam v Public Prosecutor [1956] 1 WLR 965, 969 (PC); R v Murphy (1985) 4 NSWLR 42 [6] (CCA).

69      Thus, it was open to the learned Commissioner to accept the evidence given by Mr Grail that Mr du Boulay told him that he had seen Ms Fombason at the Boulevard Shopping Centre with Mr M and the boys.  It was also open to the learned Commissioner to find that it was not unreasonable for Mr Grail to discuss the allegation that Ms Fombason took Mr M and the boys on an outing together and the specific arrangements for the care of the boys.

70      The contents of the email written by Ms Cole-Manolis about a meeting she and another officer of DCP had with Ms Ponzio does not assist Ms Fombason's case.  The contents of the email is not inconsistent with the direct evidence given by Ms Ponzio that in April 2014 she was informed that the Fombasons were considering whether to take on the care of the boys.  If Ms Fombason wished to call Ms Cole-Manolis to give evidence about this meeting at the hearing at first instance that was a matter for Ms Fombason to arrange through her agent, Mr Fombason.  A hearing of an application referred pursuant to s 29(1)(b)(i) of the Act is not inquisitorial.  It is up to each party to determine who they wish to call to give evidence, not the Commission.

71      The submission that Ms Fombason never refused to meet with Mr Grail at any time is partially correct.  After meeting Mr Grail twice at the office she refused to meet again at the office of the Association she informed Mr Grail whilst she was not comfortable with meeting him face to face, a meeting could be arranged during the hours she worked for Mr M at his house:  email to Mr Grail from Ms Fombason of 21 July 2014 (AB 304 - 305).  Ms Fombason submitted that this arrangement for meetings was in accordance with the express terms of her contract of employment.

72      The provision of the contract of employment relied upon by Ms Fombason is in a document signed by her on 26 June 2012.  Under the heading 'Supervision' on page 3 of the contract it is stated (AB 43):

Regular meetings will be arranged at the house with either the Client Services Manager or the Executive Officer, you will be provided with notice of these meetings. The purpose of the meetings are to provide you with support within your role and also for you to raise any suggestions or issues you may have so that a team decision can occur to find resolution to these.

73      However, it appears that at the time of the termination of Ms Fombason's employment that provision had no effect.  On 9 August 2013, Ms Fombason signed a new contract containing brief terms in two pages that made no reference to where meetings should be held which expressly replaced the previous contract (AB 44 - 45).

74      The Association contended that the 9 August 2013 contract was subsequently replaced by a contract signed by Ms Fombason in 2013.  Whilst that document contains no clause about where meetings are to take place, cl 16 of the document provides (AB 51):

Policies and Procedures

a)  You must comply with all of our policies and procedures as published and amended from time to time.

b) A breach of our policies and/or procedures may result in disciplinary action including the termination of your employment.

75      The document contains comprehensive terms which are not otherwise relevant to the disposition of this appeal set out in nine pages and was signed by Ms Anne Jennings on 13 September 2013 on behalf of the Association (AB 54).  The document also bears an undated signature by Ms Fombason.  However, Ms Fombason denies 'she signed that document' and claimed when giving evidence that she had not previously seen that document, although she conceded she had signed page 9 of the document (the signature page) (ts 40).  Although her evidence on this point is not entirely clear, I gather her contention is that she was only provided with one page of the nine pages of the document.

76      The learned Commissioner, however, made no finding as to whether Ms Fombason had signed the document or whether cl 16 of the document formed part of the terms of Ms Fombason's contract of employment.

77      The learned Commissioner found, however, that it was not appropriate to meet at the client's home to discuss the matters that Mr Grail wished to discuss with her as they were not matters contemplated by the terms of the contract which expressly stated that such meetings were for the purpose of providing support to Ms Fombason.

78      In any event, it is apparent when all of the evidence is considered, including the emails Ms Fombason sent to Mr Grail, that Ms Fombason had formed the opinion that the matters Mr Grail wished to raise with her were matters the Association was not entitled to raise with her.  These matters were:

(a) her hours of work whilst employed by Centrelink;

(b) the care arrangements for the boys;

(c) the allegation raised by Mr du Boulay that she had been seen to be caring for the boys whilst providing care to Mr M; and

(d) working arrangements during her rostered shift when Mr M was in the care of his mother, other family member or friend.

In respect of the first three issues, Ms Fombason, in an email sent to Mr Grail on 14 July 2014, stated that 'I would highly appreciate that you do not intervene in whatever I do at my other times. I believe that my other hours are private and personal' (AB 298).  As to the fourth issue, Mr Grail raised this matter squarely with her in his email to her earlier that day and informed her that she needed to clock off when she was not required to be present with Mr M during a scheduled shift.  In response, Ms Fombason stated that 'I have got contractual obligations with KIFSA; ongoing now for about three years; and would appreciate that we stick firmly to that agreement' (AB 298).  She also stated in her email that if there were any amendments to her timesheet, could they please scan it back to her or post it, stating what was to be amended.

79      It was open to the learned Commissioner to find that it was not unreasonable for Mr Grail to discuss with Ms Fombason her working arrangements during the week (with Centrelink).  Irrespective of whether Mr Grail had been told by Mr du Boulay that Ms Fombason was working for Centrelink, it was open to the learned Commissioner to find Mr Grail was entitled to raise these matters directly with Ms Fombason.

80      When the responses by Ms Fombason are considered, it is clear that it was open to the learned Commissioner to make the finding that the Association did have a proper ground for the termination of Ms Fombason's employment as Ms Fombason completely failed and refused to engage with her employer on important matters in connection with her employment.

81      The submission that it should have been found in effect that Ms Fombason was too frightened and embarrassed to meet with Mr Grail after the first meeting, which resulted in Ms Fombason being bullied, is a submission that has little strength when regard is had to the evidence.  It is pleaded in the application that at the two meetings Ms Fombason had with Mr Grail she felt intimidated, embarrassed, humiliated and bullied.  Ms Fombason gave evidence that at the first meeting Mr Grail scared her to the point that she almost cried (ts 52).  However, when she gave evidence about the second meeting she said she was not upset when she left the meeting (ts 57).  Further, the tone of Ms Fombason's emails could be described as assertive and she made no complaint about being scared other than to say discussion about her personal life made her feel uncomfortable.

82      In these circumstances, when regard is had to the fact that Mr Grail was legitimately seeking to raise with Ms Fombason a number of workplace issues, it was open to the learned Commissioner to reject the assertion of Ms Fombason that she was bullied and intimidated by Mr Grail.  The medical report, in my opinion, does not assist Ms Fombason.  Whilst the report was written five days before her employment was terminated, the report indicates that Ms Fombason had been exhibiting symptoms for about six weeks, which, if correct, is evidence of symptoms that pre-date Ms Fombason's first meeting with Mr Grail on 4 July 2014.  Whilst it appears clear that Ms Fombason suffered depression the report by Dr Turner does not state that Ms Fombason's symptoms were caused by bullying or intimidation by Mr Grail.  All the report says is Ms Fombason's symptoms arose following 'issues in the workplace'.  The report does not say what the issues are that caused the symptoms and it is open from the matters stated in the report to infer the symptoms first arose prior to the first time Ms Fombason met Mr Grail.

83      Ms Fombason also contends that prior to the hearing she had not seen the Association policies and procedures manual.  Thus, it is argued that she was denied procedural fairness as the learned Commissioner relied upon one of the key policies in the manual and that is the 'Policy on Human Resources Conflict of Interest' (AB 200 - 202), which is a document that she had not previously seen.

84      Even if this argument is accepted, and a breach of procedural fairness could be made out, not every breach of procedural fairness will necessarily lead to a decision being set aside.  In Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 - 146, the High Court found:

The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board ([1957] 2 Q.B. 55, at p. 67), in these terms:

'There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.'

That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules, O. 58, rr. 6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.

85      In Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 [187] - [188], Ritter AP said:

The broader principle which may be extracted from Stead is encapsulated by their Honour’s question 'would further information possibly have made any difference?' (145) and that all 'the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome' (147).

Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [10] said: 'In a case of failure to give a hearing when a hearing is required, the person complaining of denial procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness'. Similarly, Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [86] referred to the High Court in Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 as affirming the 'strong principle earlier stated in Stead'. This principle was a 'could not possibly have produced a different result' test.

86      If the learned Commissioner did not have regard to the policy, it cannot be said that Ms Fombason was denied the possibility of a different outcome.  Firstly, the fact of the policy was only relevant to Mr Grail's obligation to commence a discussion with Ms Fombason about whether her hours of work with Centrelink and whether the care arrangements of the boys impacted upon her obligations to the Association.

87      Secondly, at common law, whilst there is no general rule that employees cannot engage in other employment in their spare time, an employee may be in breach of the implied duty of good faith if their other employment results in an incompatibility, or conflict, or the destruction of confidence with their first employer:  Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, 81 - 82 (Dixon and McTiernan JJ).  In Cementaid (NSW) Pty Ltd v Chambers (Unreported, NSWSC, Library No BC9504439, 29 March 1995) Spender AJ suggested it is relevant to address four questions when determining whether a second job conflicts with the duty to the first employer.  At (5) his Honour said:

[G]enerally there can be no reason why one should not hold down two different jobs. Many people do: from choice, or from financial necessity. This is sometimes called 'moonlighting', working at a job in addition to one's regular, full time employment: Macquarie Dictionary.

The touchstone for determination of cases such as the present one is to be found in the passage I have quoted from the judgment of Dixon J (as he then was) and McTiernan J in Blyth. It may be put in questions: 1. Is the second activity incompatible with the fulfilment of the employee's duty to his other employer? 2. Does it involve an opposition or conflict between his interest and his duty to his employer? 3. Does it impede the faithful performance of his obligations to his other employer? 4. Is it destructive of the necessary confidence between employer and employee? In all cases an actual repugnance between the employee's acts and his relationship with his employer must be found.

88      Consequently, at common law, Mr Grail was entitled, if not obliged, to make enquiries on behalf of the Association of Ms Fombason to ascertain whether her hours of work with Centrelink resulted in excessive hours being worked which could impact on her ability to provide 24‑hour care to Mr M on weekends.  The same considerations applied to the care of the boys.  Mr Grail as the CEO of the Association was obliged to ascertain whether Ms Fombason's care of and activities with the boys impacted on her ability to provide 24‑hour care to Mr M on weekends.

89      The fact that Ms M knew that the Fombasons had taken on the care of the boys is immaterial and that until Mr Grail sought to raise with Ms Fombason issues that directly related to the proper care of Mr M, Ms Fombason had a good relationship with Ms M is also irrelevant.

90      For these reasons, I am not persuaded that ground 1 or ground 2 of the grounds of appeal have been made out as I am not persuaded that any error in the reasoning of the learned Commissioner for dismissing Ms Fombason's claim has been demonstrated.

91      I am also not persuaded that ground 3 of the grounds of appeal has any merit.  Ms Fombason had seven days to respond to the allegations put in writing to her on 21 July 2014.  In circumstances where Ms Fombason's attitude to enquiries Mr Grail wished to make of her remained unchanged, in that she maintained that any questions about her hours of work with Centrelink and the care of the boys were not matters the Association was entitled to raise with her, I am not satisfied that the learned Commissioner erred in finding that the matters Mr Grail wished to raise with her were well known to her and that she had ample time to consider the matters raised by Mr Grail.

92      For these reasons, I am of the opinion that the appeal should be dismissed.

BEECH CC

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

SCOTT ASC

94      I have had the advantage of reading in draft form the reasons of her Honour, the Acting President.  I agree with those reasons and have nothing further to add.