Appeal against a decision of the Commission in matter no. B 211 of 2016 given on 4 January 2018

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2018 WAIRC 00330

DELIVERED : Wednesday, 30 May 2018

FILE NO. : FBA 1 OF 2018

Appellant

AND

Presidian Management Services Pty Ltd

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner D J Matthews

Citation : [2018] WAIRC 00007; (2018) 98 WAIG 25

File No : B 211 of 2016

CatchWords : Industrial Law (WA) - Leave to appeal out of time - Principles for an extension of time considered - Not satisfied appeal has any prospects of success - Leave to extend time to institute an appeal refused - Advice and assistance a self-represented litigant should receive from the Commission considered

Legislation : Industrial Relations Act 1979 (WA), s 29(1)(b)(ii), s 32, s 32A, s 49, s 49(4)(a)

Fair Work Act 2009 (Cth), s 90

Result : Leave to appeal refused; appeal dismissed

Representation:

Appellant : In person

Respondent : Mr D McLaughlin (of counsel)

Solicitors:

Respondent : Rigby Cooke Lawyers

Case(s) referred to in reasons:

Brailey v Mendex Pty Ltd (1992) 73 WAIG 26

Kinneen v Whelans [2017] WAIRC 00301; (2017) 97 WAIG 589

Kinneen v Whelans Australia Pty Ltd [2018] WASCA 5

Loftus v Australia and New Zealand Banking Group Ltd (No 2) [2016] VSCA 308

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129

Rajski v Scitec Pty Ltd (Unreported, NSWCA, 16 June 1986)

Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197

Tobin v Dodd [2004] WASCA 288

Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22

Trkulja v Markovic [2015] VSCA 298

Reasons for Decision

SMITH AP:

Introduction

1         Mr Chris Kiosses (the appellant) seeks to institute an appeal out of time under s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision given by the Commission on 4 January 2018 dismissing application B 211 of 2016.  Application B 211 of 2016 was a claim of alleged denied contractual benefits, being unpaid commissions, referred to the Commission by the appellant pursuant to s 29(1)(b)(ii) of the Act.

2         The appellant was employed by Presidian Management Services Pty Ltd (the respondent) as an account manager.  He was employed to sell what can be described as 'wholesale' warranty insurance packages to car dealers and finance brokers who in turn 'retailed' the insurance to their customers.  His main duties were business development, sales and account management. 

3         The appellant commenced employment on 7 February 2013.  He terminated his contract of employment by letter dated 2 November 2016 by giving four weeks' notice to expire on 30 November 2016 (exhibit 4).

4         At the time the appellant submitted his resignation, the terms and conditions of his employment were set out in a written contract of employment executed as a deed on 2 June 2015 (the 2015 contract) (exhibit 3).

5         The appellant's contact of employment provided for a base annual salary of $43,000 per annum.  This amount was supplemented by substantial commission payments on sales.  The effect of Item 11 of the schedule to the 2015 contract was that the terms upon which commissions were payable were as provided in sch 1 to a letter of appointment dated 1 March 2014 (the 2014 contract).  In sch 1 to the 2014 contract, the appellant's entitlement to payments of commissions were:

You will be entitled to the following commission, paid on a fortnightly basis.

10% for new business

5% for existing/handed business

Policies must be paid for within 60 days to receive commission.

Please Note:  The business reserves the right to review/amend this at any time.

6         In the 12 months prior to the appellant terminating his employment the appellant earned $503.84 per day in commissions on sales of warranty insurance packages, being a total of $136,037.13 for the 12 month period or, calculated another way, $5,038.41 per fortnight.

The appellant's claim

7         In the appellant's notice of application, he simply made an unparticularised claim of unpaid sales commission.

8         In attachment A to particulars of answer filed on behalf of the respondent, the respondent set out calculations of:

(a) payments of average daily commissions made to the appellant for 12 months up until 10 November 2016;

(b) assessed actual commissions that had been owing and paid to the appellant up until the date of his termination of employment on 30 November 2016; and

(c) amounts paid and invoices created by other account managers whilst the appellant was on 'garden leave' from 10 November 2016 to 30 November 2016.

9         The appellant particularised his claim for commission when the hearing of the appellant's claim proceeded on 23 November 2017.  It is clear he formulated his claim by regard to the information contained in attachment A of the respondent's particulars of answer.  The particulars of his claim for unpaid commissions are as follows:

(a) $17,503.62 commission earned whilst employed;

(b) $11,785.59 in commissions for the period 8 November 2016 to 30 November 2016, being the period of time the appellant contended he was on 'garden leave'; and

(c) commissions 'due' on unused accrued annual leave payable on the termination of his employment being $503.84 per day x 29.7 days = $14,964.05.

10      The appellant was, however, paid an amount of $13,705.28 as commissions earned and due as at 10 November 2016 (which was the last day he was at work before proceeding on 'garden leave').

11      When the hearing commenced on 23 November 2017, prior to hearing evidence, after the appellant had particularised the amounts he claimed, the Commissioner spent a considerable amount of time asking the parties to explain their calculations.  The Commissioner also asked the respondent to explain its defence in respect of each of the claims made by the appellant.  Although the respondent had set out detailed particulars of its answer which explained each of its defences to the claims which were made, the Commissioner spent time explaining the points that were made by the respondent to the appellant.

12      After some debate between the parties and as a result of questions asked by the Commissioner, the appellant conceded that the amount of commission which he said was owing to him on work that was performed by him up to the date of his resignation was an amount of $3,798.34 (ts 73).  The appellant also conceded, leaving aside his claim for a commission to be paid on accrued annual leave, that if he was not entitled to be paid commission during 'garden leave' for work performed by other account managers earning on his behalf, then his claim for commissions was an amount of approximately $3,800.00 (ts 73).

13      After the concessions were made by the appellant, the Commissioner convened a conciliation conference between the parties.  It is clear that to do so was within power, as the Commission is conferred with jurisdiction to exercise a power to conciliate a dispute between parties during the course of a hearing of the substantive matters in dispute.  Pursuant to s 32 of the Act, where an industrial matter has been referred to the Commission, the Commission is required, unless it is satisfied that the resolution of the matter would not be assisted by so doing, to endeavour to resolve the matter by conciliation.  Section 32A expressly provides that the functions of the Commission under the Act (as to the resolution of matters by conciliation) are to and may be performed at any time (and from time to time as and when their performance is necessary or expedient) and nothing in the Act prevents the performance of conciliation functions merely because arbitration functions are being or have been performed.

14      During the conciliation process in this matter, an agreement was reached between the appellant and the respondent to resolve the claims made by the appellant for commissions earned whilst employed and commissions claimed whilst on 'garden leave'.  These are the claims referred to in [8](b) and (c) of these reasons for decision.

15      When the hearing resumed on 23 November 2017, the Commissioner stated on the record of the transcript that (ts 75):

(a) these claims had been compromised between the parties;

(b) there would be no finding on these aspects of the claims;

(c) the settlement did not have underlying it in any way an acceptance by the respondent that the commission was payable in the circumstances claimed;

(d) the compromise would be the subject of a deed of settlement which, subject to the claim relating to the accrued annual leave payment, would end all matters of dispute or potential conflict between the parties; and

(e) the deed would contain a non-disclosure or confidentiality clause.

16      The Commissioner then proceeded to hear and determine whether the appellant had a contractual entitlement to include a component of commissions in the payment made to him on the termination of his employment for accrued (but not taken) annual leave.

The claim for commission payments on accrued annual leave – the evidence

17      Mr Peter Lester Fowler, who was the respondent's group executive of risk, was informed by Mr Brad Smith, who was at that time a state manager of Western Australia and South Australia, that there had been a number of resignations, including the other state manager of Western Australia, Mr Allan Callisto, and the appellant.  As a result of this information, Mr Fowler travelled to Western Australia from the Eastern States to speak to the employees who had resigned.

18      Mr Fowler met with the appellant and Mr Callisto.  Mr Fowler gave the appellant a document which informed the appellant that he was to commence 'garden leave'.  Mr Fowler explained to the appellant what 'garden leave' was and told the appellant that he was still technically employed but he did not have to attend work and that he would be paid as normal.

19      The appellant's evidence was that he was relieved of his duties and more or less to 'down tools'.  When he spoke to Mr Fowler, he asked about the annual leave he had accrued because he had quite a bit of that.  He asked (ts 80):

[W]hat happens with that?  He said (Mr Fowler), 'Well, you know, we'll – we'll work that out, you'll get paid that'.  And I said, 'What about all the commission that I'm due?'  And he said, 'Well, we'll just average it out over your past 12 months'.

20      The Commissioner asked the appellant how this evidence related to annual leave and the appellant said he was told an average commission (rate of pay) would be paid on his annual leave.

21      When cross-examined, the appellant gave the following evidence about this conversation (ts 89):

I didn't ask for average commissions.  I had asked his advice because of his position in the company - because his previous position with a major organisation that was the same, ah, position that he held was similar so I asked in innocence his advice, and his advice was what was discussed.

22      The appellant then said, when cross-examined (ts 90):

Yes.  Okay.  And so what was the advice you received?---The advice was thinking - what - I - I asked him, 'What happens now?'

Okay.  Now, as I had your initial evidence, there was - you said, 'I have a significant amount of annual leave accrued'.  And you asked what would happen to that annual leave given that you were being put on garden leave?---Correct.

And Mr Fowler said ,'We'll work it out'?---We'll work it out.

Yes, 'You will get paid your annual leave'?---Correct.

Yes.  And you said 'What about commission?  Will it be averaged over 12 months'?---No, I didn't.  No, I said, 'What about all my commission that is owing?'.

All your commission that is owing?---Mm hmm.

Okay.  And he said that would be paid?---He said, 'We'll work it out.  We'll average it out over your past 12 months'.

Okay.  So that's how that conversation went?---To the best of my knowledge.

23      Shortly after the conversation between the appellant and Mr Fowler, there was an email exchange between Mr Fowler and the appellant.  Mr Fowler emailed the appellant attaching an email he had received from another senior manager of the respondent which said nothing about the issue of a payout of accrued annual leave, including a commission component.  In response, the appellant emailed Mr Fowler on 10 November 2016 as follows:

I haven't spoken with Allan as yet about this but I've noticed that there is no mention of a 12 month pay base + commission average being applied for the balance of the annual leave period owing.

Also, that pay was to be calculated as normal (and not a 12 month average) up until the last pay day during the Garden Leave period with the balance (being the 12 month pay/commission average being applied to the annual leave component as promised) to be paid on the 30th of November 2016 as a final lump sum.

I would feel more comfortable for the above adjustments to be made as well as figures to be noted moving forward as discussed.

Can you please organise this ASAP.

24      Mr Fowler responded later the same day as follows:

Your pay from the day we place you on gardening leave until your final day was to be calculated using your base pay plus the average of your commission over the last 12 months.  This was discussed yesterday but I do apologise if this wasn't clear.  When I said you would be paid as normal we were talking about pay cycles that fell between these dates.

In relation to the holiday pay I stated that I would absolutely push for that to happen and that is what I am doing and is what I have represented to Stuart and whilst I don't want to get into semantics I did not promise this.

I will reiterate though it is my absolute intent to ensure the right thing happens.

25      Mr Fowler's evidence-in-chief about the conversation he had with the appellant was as follows (ts 99):

I had a meeting with Chris, ah, by - Mr Kiosses by himself, um, and that's when it - he - it, ah, come to light that he was talking about the - the commission factor.  And I said well if we had paid that in the past that - as part of your annual leave, we would absolutely do that again.  Um, we - this is not about, um, trying to, ah, short-change anyone.  Um, not really understanding I - I guess, given my, ah, short tenure there that - that - how we had treated that in the past but I said we would absolutely - if that's the way it's been done, that's the way we'll represent it.  Um, for which, ah - and there was a - a number of other discussions but, um, I at the time wasn't aware of how we treated that.

So you - when you said – I'll just take you back - we would pay it out as normal, did you have - what was your understanding at that stage?---Well, um, my - well, I - I to be honest I didn't have an understanding of how we paid out annual leave.  I assumed annual leave is accrued, we would pay it out how we would normally pay out accrued leave.

26      When cross-examined, Mr Fowler was asked about what he meant by stating in the email that he would absolutely push for that to happen, Mr Fowler answered (ts 102):

[W]hat I mean by that was if we had paid commissions as part of base - um, annual leave in the past, that's what I would represent.

27      Mr Fowler also said that he told the appellant when he spoke to him that he did not know the answers as to whether average commissions would be paid on the annual leave component and he needed 'to check it out'.

28      The effect of Mr Fowler's evidence was that when he spoke to the appellant he had been employed by the respondent for about six weeks, he had not previously been employed in a company where commission payments were the main source of income paid to employees and was unsure of how annual leave payments were to be calculated. 

The Commissioner's reasons for decisions

29      After setting out the evidence given by the appellant and Mr Fowler, the Commissioner observed that it seemed that the issue of the payment of commission during periods of annual leave was a subject of the conversation between the appellant and Mr Fowler, and the issue of whether what had happened in the past would impact upon the accrued annual leave payout to the appellant was also discussed [22].

30      The Commissioner importantly found that it was difficult to work out exactly what was discussed and on what basis the parties left the issue at the end of the meeting.  He observed that neither party took contemporaneous notes and that the appellant had said in his evidence that his recall was affected by the passage of time [22].  The Commissioner, however, found it was not necessary for him to resolve exactly what was said at the meeting [23].

31      Notwithstanding this finding, the Commissioner then went on to find that if he had to determine what was said:

(a) the email exchange which took place between the appellant and Mr Fowler soon after the meeting suggested that there was discussion about the appellant receiving by way of a payout of his accrued annual leave entitlement the base rate of pay and a payment calculated as an average of commissions [24]; and

(b) the version of events which he considered had a ring of truth about it, was that [26]:

(i) the appellant brought up the issue of the commissions that might have been paid to him if he had not resigned and also mentioned that he had received commission payments during periods of annual leave in the past, without knowing or explaining the basis for those payments; and

(ii) it appeared likely that Mr Fowler sought to deal with the issue of commissions that might have otherwise been payable, in light of what he had been told about previous periods of annual leave, by talking about such commissions being incorporated or reflected in some way in the accrued annual leave entitlement payout.

32      Importantly, the Commissioner observed that the conversation was between two people who did not really know what they were talking about, both in terms of the facts or the legalities, about what had happened in the past during annual leave, the appellant's accrued annual leave entitlement and whether commissions would be payable after the end of the appellant's employment.  These issues he found became entangled in a way that was now not possible, if it ever was, to disentangle [28].

33      It is plain from these findings made by the Commissioner that if he had determined exactly what was said by whom at the meeting, that he would have found that what was said between the appellant and Mr Fowler was insufficient to find that there had been any promise made by Mr Fowler about the payment of commissions on accrued annual leave.

34      The Commissioner, however, did not make such a finding because he found it was unnecessary to do so.  He went on to find that even if he was to take the appellant's case at its highest (by finding as claimed by the appellant that Mr Fowler volunteered a promise that the appellant's annual leave payout would include a commission component calculated by an average daily commission figure) there was clearly no contract entered into between the appellant and the respondent in the terms of the 'promise' [30].

35      The effect of this finding is that even if the evidence given by the appellant was accepted in its entirety, it is clear that the legal incidents for the formation of a legal binding contract were not entered into.  The Commissioner explained why this was so as follows [31] - [48]:

For a contractual entitlement to arise I have to find the following:

(1) the claimant and Mr Fowler were parties capable of making a contract;

(2) the claimant and Mr Fowler had an intention to enter into contractual relations;

(3) there was a valid offer and acceptance; and

(4) there was consideration in the form of mutual promises by the parties.

There is little difficulty for the claimant in relation to (1) above.  Mr Fowler had, as a senior manager of the respondent, actual or ostensible authority to agree to pay the claimant a commission payment as part of his accrued annual leave payout.

The claimant however has resoundingly failed to establish (2), (3) and (4) above.

There was nothing 'contractual' about the discussions between the claimant and Mr Fowler.

The claimant had a written contract of employment which made specific reference to the National Employment Standards and which in no way improved upon section 90 Fair Work Act 2009 (Cth).

By letter dated 2 November 2016 the claimant resigned from his employment with the respondent.

Mr Fowler travelled to Perth and spoke with the claimant about, as the claimant said in evidence in chief, 'what happens now' (ts 79).  It was agreed that the main action taken by Mr Fowler was to inform the claimant that he was not required to attend work for the period of notice he had given.

As the claimant put it, what Mr Fowler did was 'essentially…relieve (me) of duties and, um, that's it, more or less down tools.' (ts 80).

The claimant was more or less happy to comply with that direction and did so.

The claimant says himself that he went into the meeting with Mr Fowler seeking 'advice' as to what happens next.  This is hardly consistent with entering the discussion viewing it as a contractual negotiation where he had things to trade to achieve an outcome he wanted.

Frankly, it is not believable that in those circumstances the claimant and Mr Fowler would both intend to make further and different agreements to those in the written contract of employment.  In circumstances where the claimant was leaving the respondent's employment and was not even being required to provide any further service to the respondent it is objectively unbelievable that the claimant and Mr Fowler had an intention in the discussion to come to a new legally binding contractual agreement.

It is not surprising then that even on the claimant's version of the discussion it is difficult to discern within it a clear offer and acceptance.  The claimant raised the issue of 'what would happen next' in relation to his annual leave entitlement.  Even if Mr Fowler said that it would include commission in some way this was not an 'offer'.  It was, taking the claimant's case at its highest, something that Mr Fowler was saying would happen, not an offer which, in the course of negotiations, he put to the claimant for response.  The claimant did not give evidence consistent with him having 'accepted an offer'.  The claimant gave evidence consistent with being provided with information and being content with it.

The hopeless nature of the claimant's case becomes particularly clear when I turn to the issue of consideration.

It is necessary, for there to be consideration, for the respondent to have made a promise to benefit the claimant and the claimant to have promised in some way, as a quid pro quo, to benefit the respondent or to forego some detriment or loss he could otherwise cause the respondent to suffer.  There has to be mutuality of obligation.

The claimant was unable to point to anything he did or did not do as a result of what he says was promised by Mr Fowler, let alone something that conferred a benefit upon or avoided or potentially avoided a detriment to the respondent.

The best the claimant could do was say that if the promise had not been made he may have sought to rescind his resignation or have sought to rescind his resignation and then take his annual leave.

Giving up or not taking the opportunity to seek an indulgence from another is not consideration.

On any version of events there was no contract between the claimant and the respondent to the effect the claimant claims.

Application to extend time

36      The appellant filed an application for an extension of time to institute an appeal on 5 February 2018.  Time to institute an appeal expired on 25 January 2018.  The appellant, however, unsuccessfully sought to lodge a notice of appeal from the decision in B 211 of 2016 in the Industrial Appeal Court on 25 January 2018. 

37      In these circumstances, but for my findings that the appeal has no prospects of success, I would have granted the appellant an extension of time to institute the appeal as it is clear the appellant took steps (albeit unsuccessful steps) to institute an appeal within the time prescribed.

The appellant's grounds of appeal

38      In the appellant's application for an extension of time, the grounds upon which the application is made is simply stated, '[Y]ou'll see from the attached email I had sent to Commissioner Matthews straight after the hearing I feel I was not given a fair hearing'.

39      The email referred to is attached to the notice of appeal and the application for extension of time.  There are otherwise no 'grounds' of appeal attached to the notice of appeal.  The email was sent to the associate to Commissioner Matthews after the hearing, but on the same day as the hearing concluded.  In this email, the appellant put the following points which could be said to be relevant to the appeal:

(a) His understanding was that the Commission was there to represent, guide and act on his behalf throughout the claim process and then a judgment would be made by a Commissioner once the parties had presented their cases.

(b) He was not aware of any of the requirements expected when submitting a claim, therefore he was not prepared for what eventuated in the hearing (eg calling witnesses, providing evidence, etc).  Therefore, he felt that he was not given a fair chance to substantiate his case.

(c) The appellant was offended by a question put to him by the Commissioner as to whether his sales colleagues were his agents during his period of 'garden leave' and he felt shut down and had no option but to agree to strike it from the claim (which he internally did/did not agree with).

(d) Should he have known that he was representing himself from the start, he would have taken a different tact, and sought legal advice, which then would have better prepared him for the hearing, but instead he had no idea as to the protocol and was left bewildered, frustrated and humiliated.

40      At the hearing of the appeal, the appellant was asked to state each of the points he wished to raise.  After some explanation by the appellant, the Full Bench understands the point the appellant attempts to put is that the decision of the Commissioner to dismiss his application was in error, as it resulted in a miscarriage of justice, as the hearing was not conducted fairly. 

41      The grounds upon which the appellant seeks to claim he was denied a fair hearing appear to be as follows:

(a) He was denied an opportunity of putting before the Commissioner facts, documents and witness evidence about matters relevant to the claims made by him.

(b) He was under duress when he agreed to compromise his claims in respect of commissions due and earned by him whilst he was employed by the respondent and commissions during the period of 'garden leave' and his claim of costs.

(c) He was under a false impression that the Commission would represent him.

The Commission's duty to self-represented litigants

42      The Commission's duty to a self-represented litigant like any court or tribunal is that a Commissioner must do no more than what is required to diminish the disadvantage to a self‑represented person.  A Commissioner, and the Commission itself, is not to act as a representative of a party.  To do more than is required to ensure a fair trial by conferring upon a litigant in person a positive advantage would be unfair to a represented opponent and would jeopardise the appearance of and the requirements of judicial neutrality.

43      In Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197, Smith AP and Beech CC (Harrison C agreeing) observed [28]:

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

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

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

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

44      The right to a fair hearing does not entitle an unrepresented litigant to unconfined assistance.  As Samuels J in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986) remarked (14):

(a) The absence of legal representation on one side ought not to induce a court (or a tribunal) to deprive the other side of one jot of its lawful entitlement.

(b) An unrepresented party is as much subject to the rules as any other litigant.  The court (or tribunal) must be patient in explaining them and may be lenient in the standard of compliance which it exacts.  But it must see that the rules are obeyed, subject to any proper exceptions.  To do otherwise, or to regard a litigant in person as enjoying a privileged status would be unfair to the represented opponent.

45      The aforementioned principles in Rajski were considered by E M Heenan J (Murray J and Le Miere J agreeing) in Tobin v Dodd [2004] WASCA 288 [14].  E M Heenan J considered the observations of the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129.  In Minogue, the Full Court had regard to the general principles in Rajski and also relevantly observed [27].

In Abram v Bank of New Zealand (1996) ATPR 41-507 at 42,347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

'What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.'

We respectfully agree with this observation.  Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented:  cf MacPherson v R (1981) 147 CLR 512; 37 ALR 81; D A Ipp, 'Judicial Intervention in the Trial Process' (1995) 69 ALG 365, at 369-70.

46      It is elementary that a court (and a tribunal) ought to ensure that a self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of these rights.  Notwithstanding this, the court (and a tribunal) should refrain from advising a litigant as to how or when he or she should exercise these rights:  Trkulja v Markovic [2015] VSCA 298 [39]; Loftus v Australia and New Zealand Banking Group Ltd (No 2) [2016] VSCA 308 [27] - [28].

47      The appellant appears to be a very successful salesman whose position with the respondent was to sell contracts of insurance in the form of warranties.  The appellant agreed that he understood what terms of contracts are because of his work.  The appellant is not in the position of many unrepresented persons who file an application in the Commission claiming denied contractual benefits, some of which are persons for whom English is a second language, or who are poorly educated.

48      The appellant is intelligent.  In my assessment, it appears he is capable of robust debate.  If he thought something was wrong, or unfair, he is capable of complaining about it, as he did so at the hearing at first instance and in this appeal. 

Application to admit evidence into the appeal

49      When the appellant was asked what evidence he would have put before the Commission at first instance if he had had the opportunity to do so, the appellant said that he would have adduced evidence from witnesses about two matters:

(a) his conversation with Mr Fowler to corroborate his evidence about that conversation; and

(b) the fact that whilst he was employed, he was paid commissions when he took annual leave.

50      The appellant did not file any written submissions in the appeal.  He did, however, prior to the hearing of the appeal, provide to the Full Bench three statutory declarations.  One statutory declaration was made by him.  The other two were made by Mr Callisto and another ex-employee of the respondent, Robert Francesca, who appears to have been employed in South Australia.  Each statutory declaration was to the same effect.

51      The respondent objected to the admission into evidence in the appeal the statutory declarations on grounds that s 49(4)(a) of the Act provides that an appeal to the Full Bench shall be heard and determined on the evidence and matters raised in the proceedings before the Commission.

52      The Full Bench has a discretion to receive additional evidence in an appeal within strict confines.  In Kinneen v Whelans [2017] WAIRC 00301; (2017) 97 WAIG 589 [9], Smith AP and Scott CC observed evidence can only be admitted in an appeal if:

The evidence, insofar as it was relevant, and some of it was not, could only be admissible if it were not 'available to the appellant at the time of the trial' and could not by reasonable diligence have been made available.  Further, it is only admissible if the evidence sought to be admitted is credible, although it does not have to be beyond controversy.  Further, it can only be admitted if it is almost certain that, if the evidence had been available and adduced, an opposite result would have been reached:  Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437 [8] (Sharkey P and Kenner C); applied in Merredin Customer Service Pty Ltd v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10]; Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 [60].

53      On appeal, the Industrial Appeal Court rejected an argument by Mr Kinneen that the Full Bench erred in applying this test or had erred in not admitting the documents sought to be admitted:  Kinneen v Whelans Australia Pty Ltd [2018] WASCA 5 [12] - [15].

54      Having read the transcript of proceedings in this matter at first instance, I am not persuaded that the statutory declarations should be admitted into evidence in the appeal.  Nor am I persuaded that the first particular to the appellant's ground of appeal has any merit.  When the content of the statutory declarations are read, it is clear the matters stated if admitted could not in any material way bolster the appellant's case.

55      Mr Callisto stated in his declaration:

It was standard company practice that when an account manager was on annual leave that other account managers were assigned the task to perform all the day to day duties of Christos.  Any commissions earned during annual leave was paid to Christos.

56      Mr Francesca stated in his declaration that his package included a base retainer (salary) plus weekly commissions on sales.  He also stated:

The commission we made was 100% rewarded to the manager responsible for the account regardless whether he or she was sick or on leave.  This arrangement took place from the beginning to the end of my employment at NWC.

57      Firstly, the appellant was provided considerable assistance by Commissioner Matthews to present his case.  The appellant was asked by the Commissioner as to whether he wished to call Mr Callisto to give evidence.  The appellant said that he could call him, however, when asked again whether he wished to call any witnesses the appellant declined to do so and said that the only oral evidence he wished to adduce was his own.

58      Secondly, I cannot see how any additional evidence about the conversation that occurred between Mr Fowler and the appellant could assist the appellant's case as the Commissioner, in his reasons for decision, made it plain that he was deciding the appellant's case on the basis that the appellant's case should be considered at its highest - that is, if the evidence given by the appellant was to be accepted entirely.  In these circumstances, it is difficult to see how any evidence by any other person present during that conversation would further assist the appellant's case.  When this point was put to the appellant at the hearing of the appeal, the appellant said that the other persons present at the meeting with Mr Fowler may have a different recollection of what was said.  As members of the Full Bench pointed out to the appellant, if the witnesses have a different recollection from the appellant, that evidence would not corroborate his evidence and could undermine his case.

59      In any event, the statutory declarations about payments made to the appellant and other sales persons employed by the respondent whilst the appellant was employed could be said to be contradictory to the oral evidence given by the appellant in the hearing.  The appellant was cross-examined about payments of commissions made to him during a period of annual leave between 9 July 2016 to 22 July 2016.  The appellant's payslip for this period was tendered into evidence as exhibit 6.  The payslip records that the appellant was paid a base salary during that period together with a commission amount of $4,621.84.  When cross-examined about the amount paid to him as commissions in this period, the appellant conceded that the amount were commissions that fell due to be paid during his annual leave (ts 87, 88 and 90).

60      It is clear from this evidence that the payment of commission made to the appellant whilst on annual leave were payments for commissions earned by him prior to going on leave.  Pursuant to the terms and conditions of employment providing for the payment of commissions, the appellant was entitled to be paid commissions on new business created by him and for existing business, that were paid by the purchaser within 60 days.  When attachment A to the particulars of answer of the respondent is analysed, it is clear that whilst invoices were generated for work (policies that are signed by clients), not all of those policies finally eventuated as policies that entitled the appellant to payment as commission became due on policies that were actually paid within the 60-day period.

61      In any event, it follows that, once a person is relieved from their duties as an employee, from the time the appellant went on 'garden leave' the appellant had ceased to carry out work for the respondent.  'Garden leave' is not annual leave.  Further, once on 'garden leave' the appellant ceased to be a manager of accounts.

62      As the Commissioner properly found, the appellant's 2015 contract expressly provided that payment for annual leave was to be calculated as provided for in s 90 of the Fair Work Act 2009 (Cth) which provides for a base rate of pay.  In the absence of any agreement to pay an additional amount that was effective at law, the appellant's claim for a rate of commission to be paid on accrued annual leave was untenable.

Was the appellant denied a fair hearing?

63      I do not accept the appellant's contention that he was under the impression the Commission would represent him.  Alternatively, if he had formed such an erroneous opinion, it appears that opinion was brought about by a failure by him to take any reasonable steps to ascertain how he, as an unrepresented litigant, should prepare for a hearing.

64      The appellant said that when he first decided to institute this claim, he sought legal advice but decided it was too expensive and that he had tried to call at least one agency who provides phone advice but no one answered the phone.

65      When asked whether he had looked at the guides for persons who represent themselves on the Commission's website, he stated that he had simply glanced at the website but had not taken any steps to read any of the material.  He also said that he had been told by various persons employed by the Commission that they could not provide him with legal advice.

66      During the hearing of the appeal, it was patently clear to the members of the Full Bench that the appellant had not taken any steps to properly prepare for the appeal.  Whilst he informed the members of the Full Bench he was now in the position to retain legal representation if the appeal was successful and the matter was remitted for further hearing, other than making a general complaint about not obtaining a fair hearing, he had taken little steps to prepare for the appeal.

67      The appellant was provided with a copy of the transcript of the proceedings at first instance, at no cost to him.  This is an unusual step as parties are usually required to pay for a transcript of proceedings before the Commission, or they are to make arrangements to attend the registry of the Commission to inspect a copy of the transcript.  A copy of the transcript was directed to be sent to the parties because the respondent's solicitors are located in Melbourne.  In these circumstances, it was unreasonable for the Commission to expect the respondent to take steps to inspect the transcript.   

68      When various matters from the transcript of the hearing at first instance were put to the appellant by members of the Full Bench, it was clear he had not read the transcript.  When questioned by members of the Full Bench whether he had read the transcript, the appellant simply said that he had glanced at it.

69      When asked about specific findings made by the Commissioner at first instance in the reasons for decision for dismissing the claim, it was clear to the Full Bench that he had simply 'glanced' at those reasons and had not properly read them or considered the points made in the decision.

70      I am not satisfied the Commissioner breached his obligation to give the appellant information and advice as was necessary to ensure that he had a fair trial.  The Commissioner asked questions of the appellant to elucidate each of the elements of his claim for commissions.

71      When the transcript of the hearing at first instance is read, it is clear that the Commissioner conducted a fair hearing.  He allowed and encouraged the appellant to fully state his case.  He explained to the appellant matters of law that were raised by the respondent.

72      The Commissioner asked the appellant if he intended to call any witnesses.  The appellant said no.  He would rely upon his own evidence.  The appellant did not inform the Commissioner that he wished to do so, or that he needed time to contact these witnesses.  In these circumstances, the duty to ensure a fair trial did not require the Commissioner to inform the appellant that he could apply for an adjournment to call any other witnesses.

73      The appellant had an opportunity to put before the Commission any evidence he wished to do so in support of his case.  He did not do so.  It is quite clear the appellant was not denied a fair hearing.

74      The appellant claims that he was denied procedural fairness on grounds that the compromise agreement he entered into with the respondent during the conciliation conference that occurred during the course of the hearing was an agreement reached under duress and should be vitiated, that is, set aside because of duress.  When asked by members of the Full Bench why he felt that he was under duress during the conciliation conference, the appellant was reluctant to answer.  When pressed, he said he was concerned that if he revealed what was said in a conciliation conference he may be in breach of the law.  However, when further pressed, he said that he felt under duress because during the conciliation conference the Commissioner pointed out to him what could be deficiencies in his case.  Consequently, he accepted the offer of settlement made to him by the respondent because he thought at the time it was the best resolution he would achieve and he felt under pressure to resolve his claims.

75      When regard is had to these matters, I am not satisfied that the appellant is able to make out a claim that the compromise agreement was entered into by him because of duress on the part of the Commissioner.  Plainly, the appellant's case for unpaid commissions had deficiencies.

76      It is plain that the appellant does not appear to appreciate that his case in respect of what he says were unpaid commissions is weak.

77      The claim for commissions to be paid whilst he was on 'garden leave', in addition to the amounts that were paid to him, appears to have no merit whatsoever.  The respondent agreed to pay, and did pay, the appellant a nominal amount for commissions, being $503.84 per day for each of the 14 days of 'garden leave'.  'Garden leave' cannot be regarded at law to be annual leave.  The direction to the appellant by the respondent to take 'garden leave' was expressly provided for in cl 18 of the appellant's 2015 contract of employment.  Clause 18 provided:

The Company may require you to perform different duties within your capacity and/or not attend at Company premises (Garden Leave) during the notice period (of when termination of employment is given by notice).  During any period of Garden Leave, you will remain an employee of ours and must not undertake paid employment (including self employment) or provide services under contract to another company or entity.   [emphasis in italics]

78      During the period of 'garden leave', the appellant had ceased to carry out any duties which would have awarded him commissions.  It was his evidence that:

(a) he was told to 'down tools'.  It follows that he was not to perform any further work that could have earned him commissions; and

(b) Mr Fowler had agreed that nominal commissions would be paid to him for that period of leave and this amount would be calculated on the average of the commissions he had earned in the previous 12 months. 

79      In these circumstances, the appellant's claim for any additional payments whilst on 'garden leave' was unmeritorious.

80      As to the remaining claim that formed part of the compromise agreement, the appellant conceded that the amount he claimed for outstanding commissions was an amount of $3,798.34.  The respondent's defence to this claim is that payments made to the respondent on policies that are paid (by the purchaser) outside the 60-day period, which were payments received after the appellant's employment was terminated on 30 November 2016, did not accrue to the appellant as his employment had ceased (ts 71).

81      This explanation was provided by the respondent in a discussion between the parties prior to the Commissioner convening a conciliation conference. 

82      Whilst the appellant complained in the email attached to his notice of appeal that he had an unaddressed claim for costs for parking, transport and mental health support services, such claims would not usually be successful in any proceeding before the Commission.  The general policy of the Commission is that costs ought not to be awarded, except in extreme cases:  Brailey v Mendex Pty Ltd (1992) 73 WAIG 26, 27; see also Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22, 27.

83      The appellant also complained in the email that he had an unaddressed claim for interest.  However, the Commission has no power to award interest in any matters before it.

84      In circumstances where the appellant's claim for additional commissions to be paid on garden leave was entirely absent of merit and the respondent had an arguable defence to the appellant's claim for outstanding commissions in the sum of $3,798.34, it cannot be maintained that it was unfair for the appellant as an unrepresented party to enter into an agreement that compromised an aspect of, or put another way, part of his claim for commissions.

Leave to appeal refused

85      As the appeal has no prospects of success, leave to extend time to appeal should be refused and the appeal should be dismissed.

SCOTT CC

86      I have had the benefit of reading the draft reasons of Her Honour, the Acting President.  I agree with those reasons and have nothing to add.

EMMANUEL C:

87      I have had the benefit of reading the draft reasons of Her Honour, the Acting President.  I agree with those reasons and have nothing to add.