Appeal against a decision of the Commission in matter number U 27/2020 given on 26 August 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00049

DELIVERED : TUESDAY, 8 FEBRUARY 2022

FILE NO. : FBA 5 OF 2021

Appellant

AND

Natasha Stephenson

Respondent

ON APPEAL FROM:

Jurisdiction : The Western Australian Industrial Relations Commission

Coram : Commissioner T B Walkington

Citation : 2021 WAIRC 00479

File No : U 27 OF 2020

Catchwords : Industrial Law (WA) - Appeal against decision of the Commission - Principles for admission of fresh evidence on an appeal applied - Principles not satisfied - Fresh evidence not admitted - Award coverage - Relevant award did not apply - Assessment of compensation for loss and injury - No evidence of injury - Award of compensation reduced - Appeal upheld in part

Legislation : Industrial Relations Act 1979 (WA) s 23A(6), s 49(4)(a)

Industrial Relations Commission Regulations 2005 (WA) reg 102(3)

Veterinary Surgeons Act 1960 (WA) 

Result : Appeal upheld in part

Representation:

Counsel:

Appellant : In person

Respondent : Ms E Creek of counsel

Solicitors:

Respondent : Clayton Utz

Case(s) referred to in reasons:

Anderson v Director General, Department of Education [2017] WAIRC 00792; (2017) 97 WAIG 1420

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

Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986

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

Myers v Myers [1969] WAR 19

Richards v Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117

Stephenson v MJ Edwards T/as M.J Edwards and J. Pendarvis [2021] WAIRC 00479; (2021) 101 WAIG 1252

Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437

Reasons for Decision

THE FULL BENCH:

Brief background

1         The respondent commenced employment with the appellant as a Kennel Hand at the appellant’s business known as Mageela Cottage and Boarding Kennel.  The respondent was responsible for the care of the dogs at the kennel, including their feeding and cleaning.  The respondent initially worked up to 30 hours per week increasing to 38 and a half hours per week from September 2019.  On 3 February 2020, the respondent was dismissed by the appellant, the owner and operator of the kennel business.

2         In February 2020, the respondent commenced proceedings in the Commission alleging that she had been unfairly dismissed and sought compensation for loss and injury.  The application was listed for hearing and was heard on 17 December 2020.  The learned Commissioner found that the respondent had been unfairly dismissed and awarded her compensation for loss and injury in the sum of $9,438.89.  As set out in the learned Commissioner’s reasons, the appellant did not appear before the Commission at first instance, despite being afforded every reasonable opportunity to do so: Stephenson v MJ Edwards T/as M.J Edwards and J. Pendarvis [2021] WAIRC 00479; (2021) 101 WAIG 1252.

Decision of the Commission at first instance

3         Considerable delay in the hearing and determination of the matter at first instance was substantially caused by the appellant seeking, and being granted, extensions of time to comply with time limits imposed by the Commission concerning procedural directions made.  Additionally, the appellant sought, and was granted, two adjournments of the hearing of the application.  The hearing was first listed to proceed on 25 November 2020 however the appellant sought an adjournment on the grounds of staffing issues and work commitments.  The appellant also had not yet by that time, complied with directions to file and serve his outline of submissions in respect of the respondent’s claim.  The respondent did not oppose the adjournment application on the condition that the appellant file and serve his outline of submissions by 27 November 2020 and that the hearing be relisted on a date prior to 24 December 2020.  The matter was relisted for hearing on 10 December 2020.

4         Shortly before the listed hearing date, on 7 December 2020 the appellant made another application to adjourn the listed hearing date.  This was again on the basis that the appellant had been unable to staff his kennel operation and needed to attend to some specific care requirements for some animals.  Despite the respondent opposing the appellant’s second request for an adjournment, the learned Commissioner granted the application, and it was ultimately relisted for hearing on 17 December 2020.

5         On 15 December 2020, the appellant informed the Commission that he would be unable to attend the hearing.  A specific application to adjourn the proceedings was not made.  The appellant again raised the issue of being short staffed and his inability to recruit and train a replacement.  The appellant still had not filed his written submissions as previously required, by 14 December 2020.  After considering the relevant principles in relation to adjournments set out in Myers v Myers [1969] WAR 19, the learned Commissioner determined to proceed in the absence of the respondent and the matter listed for hearing on 17 December 2020, proceeded.  The respondent was the only witness called to give evidence.

6         In considering whether the respondent was unfairly dismissed, the learned Commissioner made findings and reached the conclusion that none of the complaints raised by the appellant in his notice of response were ever put to the respondent.  These complaints related to mistreatment of a dog ‘Cooper’; the respondent’s alleged refusal to work shifts on afternoons, weekends, and public holidays; the alleged manipulation of the roster by the respondent and her excessive telephone use whilst at work.  The learned Commissioner found the respondent to be an honest witness and she accepted her evidence.  The Commission found that the appellant had not raised these matters with the respondent, explained the consequences of failing to address them and did not offer any assistance to the respondent.

The appeal

7         The appellant has appealed against the decision of the Commission.  The notice of appeal does not comply with the requirements of reg 102(3) of the Industrial Relations Commission Regulations 2005 (WA).  It does not specify particulars relied upon by the appellant to demonstrate that the learned Commissioner’s decision was against the evidence or the weight of the evidence, nor specific reasons why it is alleged to be wrong in law.  Despite this, the appellant attached a statement to the notice of appeal which, whilst lengthy, is in the following terms:

I am seeking to appeal against a decision of the Commission.  Please consider the damning text msg and pdf file evidence (attached, a fair proportion of which I had never sighted nor had in my possession prior to 5 September 2021) that Ms Stephenson did have knowledge of and/or was in her possession but elected to deny and/or not disclose during her questioning by the Commission at the 17 December 2019 hearing; concerning namely but not limited to:

• Whether or not Ms Stephenson had been given a fair go all around (53).

• Factual evidence of some of Ms Stephenson’s misconduct and unlawful activities including rosters and roster manipulation for extra hours worked, refusing to work shifts as requested, unlawful hours, unlawful unauthorised training up of a fellow employee and extra unauthorised hours claimed by that employee whilst being unlawfully trained (mgs Stephenson ‑ Slender).

• Factual evidence of Ms Stephenson admitting to Ms Slender she had trained up Ms Stanley (Bec) to complete 6am ‑ 3pm shifts and I quote a text msg from Ms Stephenson to Ms Slender “Also Bec is all good to go for the 6am‑3pm shifts ‑ I trained her up on everything on Saturday so she is all good to go”.

• Factual text msg evidence Ms Stephenson did this deliberately behind my back as she had refused to work 26 January 2020 as per my lawful request/instruction.  Ms Stephenson had never been authorised to train anyone up, Ms Stephenson was also the most junior employee at the kennel at the time, and the last one that had been employed so Ms Stephenson was the first employee in line to go should I have to return home to work at the kennel.  Ms Stephenson also has no comprehension or understanding of how the roster has been formulated to accommodate the requirements of all four employees of this business.

• The repeated financial and emotional bullying proof of an employee (Ms Slender ‑ rosters)

• Manipulating of shift roster again; Ms Stephenson telling another employee she can no longer complete the shifts she used to be able to do because she had to make arrangements for her new boyfriend for activities on weekends, and also pick him up from uni in the afternoons so that he didn’t have to pay for parking at uni.  Ms Stephenson wanting Ms [S]lender and Ms Mackintosh to change a majority of their shifts up to accommodate for Ms Stephenson new availabilities & unavailability’s, new unavailability’s that Ms Stephenson never raised with me (her employer).  This was creating extreme distress, disharmony and unrest amongst the four employees at the time.  This happened at least two times that I’m aware of, once in November 2019 where Ms Stephenson was expressly told that she was not responsible for allocating shifts for other employees, and then Ms Stephenson started trying to do it again in early January 2020, which coincided again with my being away at work and not present at the kennel.

• The emotional and attempted financial bullying of her employer.

• No less than three references of conversations and warnings to Ms Stephenson about her phone usage December 12th 2019 to January 4th 2020.

• Msgs and references to conversations where Ms Stephenson was told her employment and/or hours were subject to change and/or termination.

• Evidence of Ms Stephenson’s performance and conduct being observed and addressed with her from around September 2019 onwards and more frequently from mid November 2019 on an almost weekly basis through to termination of her employment 3 February 2020.

• Evidence of Ms Stephenson’s repeated transgressions, mood swings, deceitfulness, unlawful and bullying behaviour, her repeatedly demonstrating she is unable or unwilling to follow lawful instruction/requests, and her repeatedly demonstrating that she is capable of mistreating the animals when I was not present to supervise, which in the end after some considerable time (months) left me the only option of Summary dismissal of Ms Stephenson as soon as I was sure that I was suitably organised and resourced to be able to enact it.

• All of the above were extremely damaging and disruptive to the viability and profitability of my business and my personal life.  Having to fire Ms Stephenson because of her Serious Misconduct and unlawful activities, had a direct impact to me at the time, on my being able to earn an income to meet my day to day and weekly expenses, expenses which included paying the wages of 6 other employees over two businesses, and my ability to be able to recover and resume with a private life after the late passing of my partner.  It was a very distressing time in my life.

• The text messages attached between Ms Slender and Ms Stephenson represent a window of time of just three days.  Apparently this had been going on unbeknownst to me for some weeks if not months verbally and by text message.

With reference to most of all of the above, material that Ms Stephenson had in her possession all the time whilst making her claim and submitting her evidence at the Hearing, I believe the Commission has erred in finding that her employer has not given Ms Stephenson ample opportunity to correct her ways.

Along with the attached text message and pdf file evidence there is also a word document and some photos attached providing some commentary and evidence for the following items;

The RSPCA report: Third party employee evidence quoting Ms Stephenson as admitting the RSPCA inspection being linked to Ms Stephenson by Ms Stephenson quoting to this employee “must have (the RSPCA inspection) come about by something I said to someone else or sent through Facebook (the internet)”.

Factual evidence (photos) that locking the kennel door simply can’t be done.  The kennel door has never ever had a lock fitted to it and therefore it can’t be locked.  The kennel is located at the rear of my private residential property and the kennel is not accessible from the street frontage other than through the front door of my house or a side gate that always remains locked.

The door that was locked shortly after Ms Stephenson was told to leave was in fact the front door to my private home and not the entry door to the kennel.  I did not lock the door immediately behind Ms Stephenson as I had made sure I was never in the same room as Ms Stephenson throughout the entire but short dismissal process.  I’m sure most private properties in Perth have their front doors locked and I’m sure I have the basic civil right to lock the front door to my house.  I cannot for the life of me see how the Commission has viewed my locking the front door to my house as callous.

Evidence that employees of the Business are not, and cannot be, covered by the WA Animal Welfare award.

I also have a Fair Work Order that was issued in 2010 stating that this very same business is not covered by an Award and is indeed determined as “Award free”.

I believe the Commission has erred in its determination of whether or not the business is covered by the WA Animal Welfare Award.

I don't admit to some of Ms Stephenson’s recollections of what she got told when she was dismissed.  Ms Stephenson was told;

“It’s time for you to go Nat”.  When Ms Stephenson asked why I replied “you have cost me my income” (I can't work away anymore as a direct result of Ms Stephenson’s actions and subsequent sacking), “I don't like your attitude” (not willing to accept nor follow lawful requests such as medication regimes, roster requests, animal management and movement techniques and more especially so when left unsupervised, and so on) and “you're hard to be around” (Ms Stephenson hadn’t spoken to me much voluntarily, if at all, since 4th of January when I gave her her last warning about her mobile phone usage.  She elected to not talk to me but elected to be silent and moody instead, playing very loud music from her phone when performing tasks that had to be done in my house when I was in there trying to do paperwork and other tasks and she also very deliberately tried to organise not having to work any shifts with me from that point on).

My next comment was “You're a good worker ...(pause)... in areas, but it’s time for you to go.  Can you give me my front door key before you go please?” Ms Stephenson had a couple of sobs, gave me the front door key, then departed the house in a composed manner.  I closed and locked the open front door (I had left the door open upon my return that morning) about half a minute after she left.

At the time of the dismissal I was trying to make the dismissal as pleasant as possible for Ms Stephenson.  But that changed after the RSPCA visit and the constant barrage of text msg demands I received from Ms Stephenson after her dismissal.

I do admit that the threat of euthanizing 60 dogs appears inappropriate from the outside looking in, but in context, those spineless and gutless people who choose to contribute to and make false accusations and malicious reports in anonymity hiding behind regulatory powers need to realise that sometimes there may be adverse outcomes to what they might be expecting and they need to learn that their opinions count for very little or nothing in most outcomes, and they need to think again before acting in such a way.

I don’t admit to threatening to tarnish Ms Stephenson’s reputation, I simply told Ms Stephenson I had the right and obligation to pass on to any prospective employers of veterinary nurses in that capacity, my experiences of Ms Stephenson’s conduct, performance, work ethic and standards.  If Ms Stephenson felt threatened by that, well by now I think we all know why.  No apologies from me if Ms Stephenson never works with animals again.

I deny locking the kennel door behind Ms Stephenson, this is simply not possible to do, and I can’t understand why Ms Stephenson has mislead and lied to the Commission resulting in the Commission to believe that such an action happened, and why the Commission did not ask Ms Stephenson to produce evidence of the act of locking the door to the Kennel actually occurring.  I believe the Commission has erred in assuming this as fact.

So my question is, given the above paragraphs and the factual text messages and photos that have been attached, what parts of Ms Stephenson’s claims and testimony can you believe, if any?

Hopefully the Full Bench of the Commission elects to get to the bottom of the facts and truth surrounding this matter rather than elect to choose to go out on to autopilot, stick its head in the ground, and hide behind historical legal principle and procedure.

Hopefully the Commission is also strong enough to be able to be proactive and recognise this is a matter that has a few unique circumstances for it to consider outside of the mainstream e.g. timing of the death of my partner versus the effect on the business versus my resources to be able to provide, the community expectation of me to attend to the unforeseeable and unpredictable immediate animal welfare commitments of my dogs versus the importance to attend to matters of the Commission ‑ this was a relatively easy decision for me to make, but again no apologies from me for the path that I chose.

8         In the appellant’s outline of submissions, he has summarised his contentions under a heading described as ‘Summary of Grounds of Appeal’ which are as follows:

…

2. The finding of the Commission that the Respondent was unfairly dismissed was incorrect on the evidence.

3. The finding of the Commission that the Respondent’s position was a Level 2 position covered by the Animal Welfare Industry Award was incorrect at law.

4. The award of compensation for distress in the Decision was not supported by the weight of the evidence.

9         As the appellant developed his written and oral submissions before the Full Bench in accordance with these three identified issues, and as the respondent’s written submissions and her oral submissions before the Full Bench were responsive to these three issues, for the purposes of these reasons, we will deal with the appellant’s contentions on the same basis.

Relevant principles

10      The decision of the learned Commissioner that the respondent’s dismissal was unfair was a discretionary decision.  The relevant principles applying to an appeal from a discretionary decision are well known.  It is only in limited circumstances that the Full Bench should interfere with the exercise of a discretion by a Commissioner.  It is only if the appellant can satisfy the Full Bench that a Commissioner has made an error in the exercise of their discretion, that the Full Bench can intervene.  This might be a matter of principle, it may involve mistaking the facts, it may involve an error of law, it may also involve failing to take into account relevant considerations or taking into account irrelevant considerations.  Additionally, if the decision reached is manifestly unreasonable or plainly unjust, appellate intervention may be permissible: House v The King [1936] HCA 40; (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at [504]‑[505].

11      Additionally, in Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266, Ritter AP observed that a Commissioner’s decision that a dismissal was unfair or not, should be accorded due deference.  Ritter AP said at [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]).

Preliminary issue – fresh evidence

12      The appellant contended that as he was unable to participate in the hearing before the learned Commissioner on 17 December 2020, certain evidence should be taken into account by the Full Bench, and which was not before the learned Commissioner in the proceedings at first instance.  A lot of this material includes, but is not limited to, text messages over various dates between the respondent and Ms Slender, another employee of the appellant, which the appellant contended related to the allegation that the respondent failed to follow lawful and reasonable directions.  The second category of new evidence is a series of photographs of the front of the appellant’s premises and of the kennel door.  The third category of new evidence is a letter from the Fair Work Ombudsman dated 9 August 2011, which, in response to a complaint by an employee of the appellant in early 2011, concluded that the appellant’s employees were award free (see AB189‑192).

13      The clear identification of the documents sought to be tendered by the appellant as new evidence has been made more difficult by reason of the fact that there is very considerable overlap and duplication between documents that we understood the appellant sought to have tendered as new evidence, and other documents in evidence, and exhibited in the proceedings at first instance.  Furthermore, a number of the documents which we understood to be identified by the appellant as new evidence, were duplicated in various attachments to the Form 8 ‑ Notice of Appeal, and in part of Form 1A ‑ Extension to Lodge the Appeal Book, filed by the appellant.

14      In the appellant’s written and oral submissions however, it appeared that the focus of the appellant’s application to tender new evidence were text messages passing between the respondent and Ms Slender (see AB65‑77). These text messages were also the subject of the affidavit of Ms Slender, commencing at par 7.  Ms Slender deposed to the effect that from about September or October 2020, the appellant approached her to ask if she had any text message exchanges between the respondent and herself.  Ms Slender said that she had discussed these with the appellant much earlier, in January 2020.  Ms Slender went on to say that she suffered some ill health from about the end of September through to late December 2020, which limited her to only performing minimal duties at the kennels.  Ms Slender said that given her state of health and her general reluctance to ‘dob in’ others, she did not feel comfortable with the appellant’s requests, to produce text messages between herself and the respondent.  According to Ms Slender, it was not until the appellant discussed with her the decision of the Commission, finding the respondent to have been unfairly dismissed, which discussion took place she says in about early September 2021, that she obtained some of the messages passing between her and the respondent, and showed them to the appellant at about this time.

15      Ms Slender, also referred to the text messages at AB65‑77 and said they referred to difficulties that she had with the respondent in relation to rostering and other issues.  Ms Slender also deposed to other matters involving the respondent, including telephone use in the workplace and various instructions given by the appellant in relation to the care and treatment of the animals.

16      The appellant contended that this text message material would have had an influence on the hearing of the matter before the learned Commissioner.  It was asserted that this material would substantiate that:

(a) the respondent manipulated the work roster without authority;

(b) the respondent attempted to reduce the rostered working hours of other employees without permission;

(c) the respondent refused to work shifts as agreed;

(d) the respondent was providing unauthorised training to other employees; and

(e) the respondent had been issued warnings in relation to the inappropriate use of her mobile telephone whilst at work.

17      The respondent opposed the admission of the new evidence, by way of the affidavit of Ms Slender and the various text messages and other material sought to be adduced.  The respondent’s submission was that none of the material was new, and it existed well prior to the hearing of the proceedings at first instance in December 2020.  It was contended that the new evidence was available to the appellant at the time of the hearing before the Commission in December 2020.  Also, that reasonable diligence by the appellant would have disclosed the material in the preparation of his case.

18      Furthermore, and in any event, the respondent contended that none of the material that the appellant sought to have considered by the Full Bench as new evidence, even if admitted, would have led to the Commission concluding that the appellant did not unfairly dismiss the respondent.

19      The principles applicable to the adducing of ‘fresh’ or ‘new’ evidence are well settled.  Whilst s 49(4)(a) of the Industrial Relations Act 1979 (WA) provides that an appeal ‘shall be heard and determined on the evidence and matters raised in the proceedings before the Commission…’ this does not preclude the admission of fresh evidence, if the circumstances justify it.  In Anderson v Director General, Department of Education [2017] WAIRC 00792; (2017) 97 WAIG 1420, Smith AP (as she then was), adverted to the applicable principles regarding the tender of fresh evidence at [87]–[89] as follows:

87 Section 49(4)(a) of the IR Act does not prohibit the Full Bench from admitting additional evidence.  It does so if the evidence is ‘fresh’ and where special or exceptional circumstances are made out.

88 In Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 it was observed [59] ‑ [60]:

The test to be applied by the Commission for admission of fresh evidence on an appeal was for many years set out in the decision of the Full Bench in Federated Clerks’ Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040, 3041 in which the Full Bench held that fresh evidence is only admissible if:

(a) The evidence was not available to the parties seeking to tender it at the time of the trial and the evidence would not have been available to that party with reasonable diligence in the preparation of their case; and

(b) The evidence must be such that it would have had an important influence on the result of the trial and must be credible, but not necessarily beyond controversy.

89 The Full Bench modified this criteria in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437, when Sharkey P and Kenner C with whom Scott C agreed, said at [8] and [9] that fresh evidence 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.  They also observed that they had put this last condition too low in Federated Clerks’ Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040 and they wished to retract what they said in that case and substitute the stricter criteria.  The modified principle was applied by the Full Bench in Merredin Customer Service Pty Ltd as trustee for Hatch Family Trust t/a Donovan Ford/Merredin Nissan and Donovan Tyres v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10].

20      It is clear that the test is now not just whether any fresh evidence, if admitted, would have had an important influence on the result of the proceedings.  Rather, it must be almost certain that the opposite result would follow if the evidence were admitted.  For the following reasons, in our view, none of the material sought to be tendered by the appellant in these proceedings meets the test for the admission of fresh evidence on this appeal.

21      The text messages at AB18‑41, are exchanges between the appellant and the respondent over the period 5 November 2019 to 22 January 2020.  These text messages cover various topics.  Given they are between the appellant and the respondent, they were plainly available to the appellant prior to the date of hearing in December 2020.  Likewise, is the letter of 10 March 2020 from the RSPCA to the appellant at AB92‑93.  Self‑evidently, given the letter was addressed to the appellant, again plainly, this was a document available to the appellant at the time of the hearing in December 2020 and none of this material satisfies the first limb of the test in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437.

22      As noted above, the focus of the appellant’s attempt to admit fresh evidence related to text message exchanges between the respondent and Ms Slender over an undefined period in relation to rostering and other issues.  It was suggested by the appellant that this evidence would have had an important influence on the hearing because it would assist in establishing that the respondent engaged in the manipulation of the work roster without authority; evidenced attempts by the respondent to reduce the hours of other staff to their financial disadvantage without authority; evidenced the respondent refusing to work as directed; evidenced the respondent training other staff without authority; and evidenced warnings given to the respondent as to the use of her mobile phone at work.

23      The appellant was plainly aware of the existence of the text message exchanges between the respondent and Ms Slender.  At par 8 of his written outline of submissions, the appellant admits to seeking information from Ms Slender as early as September or October 2020, well prior to the hearing in December 2020, but did nothing further to pursue the matter.  The affidavit of Ms Slender filed in these proceedings dated 12 November 2021, confirms this approach for information and that the appellant did nothing further about these matters until the decision of the Commission was handed down in September 2021.  At this time, the appellant discussed the outcome of the case with Ms Slender, and she mentioned further text messages between herself and the respondent, which the appellant requested a copy of.  Furthermore, Ms Slender also said that as far back as January 2020, she discussed with the appellant the existence of text message exchanges between the respondent and herself.  The appellant did nothing further about this, until September 2020.

24      The next item of evidence the appellant sought to admit was photographs of the front of the appellant’s house and the kennels: AB82‑85.  As we understood it, this material was sought to be tendered in connection with the appellant’s contention that the respondent was not locked out of the appellant’s premises at the time of her dismissal.  The obvious difficulty with such material is that it was always available prior to the date of hearing, to be tendered as evidence.  Therefore, it does not satisfy the first limb of the test to admit fresh evidence.

25      At AB86, is an advertisement placed on ‘Gumtree’ for the position that the appellant says the respondent applied for at the appellant’s business.  Again, if the date of the advertisement of ‘26.6.2018’ on the advertisement is accurate, and there is no contention this is not so, then this material was clearly in existence well prior to the hearing of the respondent’s claim at first instance.  It is not fresh in any sense.

26      The next category of material is a document at AB87‑89, described as ‘Text msgs between Mitch (M) & JK (J)’.  This is a two‑page document that purports to reproduce text message exchanges between ‘J’ and ‘M’ from 14 December 2019 to 1 February 2020.  Again, self‑evidently from the dates, this material was in existence well prior to the date of the hearing and there is no reason why it could not have been submitted in the proceedings at first instance.

27      At AB90‑91, is the respondent’s application for the position of Kennel Hand at the appellant’s business, dated 24 June 2018.  As this application was made to the appellant by the respondent for the position he was seeking to fill, the document existed well prior to the date of the hearing.  As with the advertisement for the position referred to above, this does not satisfy the first limb for admission as fresh evidence.

28      Finally, is a document from the Fair Work Ombudsman dated 9 August 2011 at AB189‑192, which the appellant contended established the appellant’s business was award free, contrary to the finding of the learned Commissioner at first instance, at par 48 of her reasons (see AB141), that the respondent’s employment was covered by the Animal Welfare Industry Award.  As this letter was sent to the appellant in August 2011, again, it was a document in existence and in the appellant’s possession, well prior to the date of the hearing and similarly, it is not able to be considered as fresh evidence.

29      Despite, for the reasons set out above, most of the material the appellant sought to tender as fresh evidence failing to satisfy the first limb of the test in Underdown, even if this were not so, none of the material sought to be tendered would meet the second limb in Underdown, that being if the evidence was before the Commission at first instance, then the outcome would have been almost certainly in favour of the appellant.

30      This is because the learned Commissioner’s principal findings as to why the respondent’s dismissal was unfair, was because the appellant failed to raise his grievances with the respondent as to her performance and conduct and give the respondent a reasonable opportunity to respond to and remedy the appellant’s concerns (see pars 66‑69 reasons at first instance: AB143‑144).  None of the material sought to be tendered as new evidence could be regarded as evidence directly contrary to that adduced by the respondent and which the learned Commissioner accepted at first instance.  This was especially so in the absence of any direct evidence adduced by the appellant at all.  Even if this material did unequivocally contain evidence of the kind the learned Commissioner was said to be lacking at pars 66‑69 of her reasons, that still would not, with any certainty, have led to the opposite result.  This is because, after considering what material the appellant did submit to the Commission in support of his decision to dismiss the respondent, the learned Commissioner found the respondent’s evidence to be credible and she accepted it without hesitation.  Therefore, neither limb of the test in Underdown is made out in this case, in respect of any of the material sought to be tendered as new evidence.

Was the unfair dismissal finding incorrect on the evidence?

31      The appellant’s case on the appeal as to this ground was largely reliant on the admission of the fresh evidence, which has been refused.  We have already concluded that even if this material was admitted into evidence, it would not have led to the opposite result.  The learned Commissioner found that the respondent was dismissed without reason, other than the appellant did not like her attitude and it was time for her to go.  This was the respondent’s uncontroverted evidence and the Commission so found at par 51 of her reasons (see AB141).  Whilst the appellant asserted at pars 15‑21 of his written outline of submissions, that the summary dismissal of the respondent was for established misconduct and the respondent was given warnings as to aspects of her conduct and performance, there was no evidence adduced by the appellant at first instance, to support these assertions.  The learned Commissioner found to the contrary and the appellant has not established that the learned Commissioner’s conclusions were in error in this regard.  On the material before her, the learned Commissioner’s conclusion that the respondent was unfairly dismissed was reasonably open and was correct.

32      Furthermore, the materials submitted to the Commission by the appellant as to the reasons for the dismissal of the respondent, referred to by the learned Commissioner at par 60 of her reasons (see AB142‑143), contains no reference to any of the grounds that the appellant now maintains, supported the respondent’s dismissal.

33      Therefore, this ground is not made out.

Coverage of the Award

34      The learned Commissioner found at par 48 of her reasons that the appellant employed the respondent as a Kennel Hand under the Animal Welfare Industry Award.  It was not in contest that the respondent held a Certificate IV in Veterinary Nursing and was a qualified veterinary nurse.  The appellant contended that the Award did not apply, and the appellant’s business was not covered by it.  Accordingly, the appellant contended that the learned Commissioner used the incorrect rate of pay for the purposes of calculating compensation.  It was contended that the rate should not have been the Level 2 Award rate of $25.34 per hour, but the respondent’s actual rate of pay, of $23.59 per hour.

35      The Award, by cl 3 – Area and Scope, provides as follows:

This award shall apply throughout the state of Western Australia to all employees employed in any classification referred to in clause 18 – Rates of Pay in the veterinary industries of animal welfare, animal care, animal breeding or animal homes and to all employers employing such employees.

36      Clause 18 – Rates of Pay of the Award sets out the classification structure.  Employees may be engaged from an introductory level, without any experience, to a Level 5 classification, for those possessing a Diploma in Veterinary Nursing.  A Level 2 employee under the Award, has a range of duties including to ‘consult the duty veterinarian’; has tasks ‘relating to the clinic and surgery including maintaining patient records and compiling patient histories …’ (our emphasis).  Similarly, a Level 3 employee is also required to engage in ‘patient care’ and follow ‘clinic routines’.  Level 4 and 5 employees are more qualified and may engaged in ‘clinic pathology services’ and ‘conduct medical and surgical support’.  A Level 5 employee is, additionally, to be registered under the Veterinary Surgeons Act 1960 (WA).  In Schedule A – Named Parties to the Award, there appear a number of veterinary hospitals and the RSPCA.  No other named parties appear, aside from the relevant union party to the Award.  Whilst the named parties to the Award do not, for the purposes of cl 3, define its scope, they do provide some indication of examples of employers to whom the Award applies.  Additionally, the classifications referred to above, apart from the introductory level classification, as we have emphasised, all refer variously to duties involving ‘clinical work’, ‘patients’, and various types of medical care for animals.

37      When reading these provisions of the Award taken together, we do not consider that the Award had application to the appellant’s business, which primarily provided kennelling for dogs.  Whilst the animals in the kennels were, naturally, to be cared for, no veterinarians were employed and the evidence before the Commission and the appellant’s submissions, were to the effect that veterinary services are provided externally.  We do not consider that the kennels operated by the appellant are in the ‘veterinary industry’ as contemplated by the Award.  The work the respondent performed was not ‘patient care’.  The work performed by the respondent mainly involved cleaning out kennels; feeding and exercising the animals etc and other duties.  Some medications were provided to animals, but this was on the basis of external veterinary advice and treatment.

38      We would therefore uphold this ground of appeal.

Compensation for injury or distress

39      As noted above, the learned Commissioner awarded $3,000 in compensation for injury, suffered by the respondent.  This was based on the findings of the Commission that the respondent suffered injury at the time of the dismissal, through the appellant locking the door after the respondent left the premises.  A finding was also made that conduct after the dismissal, included some text messages from the appellant to the respondent in relation to an alleged report by the respondent to the RSPCA, in conjunction with a threat to euthanise 60 dogs; and alleged threats to tarnish the respondent’s reputation with future employers, contributed to the respondent’s injury (see par 81 reasons at first instance: AB145).

40      Section 23A(6) of the Act enables the Commission, if it considers reinstatement or re‑employment would be impracticable, to order an employer to pay compensation ‘for loss or injury caused by the dismissal’ (our emphasis).  Thus, compensation, whether for loss or injury or both, must be causally connected with the act of dismissal itself.

41      In Richards v Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117, the Full Bench set out relevant principles to apply in assessing compensation for injury.  Smith AP set out these principles and prior precedent, and whilst the passages are quite lengthy, her Honour stated at [37]‑[44] as follows:

37 The leading statement of principles to be applied by the Commission when considering whether to make an award of compensation for injury is set out in the following passage of the joint judgment of Coleman CC and Smith C in Birnie wherein it was said [200]:

It is accepted that there is an element of distress associated with almost all employer initiated terminations of employment.  For injury to be recognised by way of compensation and thereby fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal there needs to be evidence that loss of dignity, anxiety, humiliation, stress or nervous shock has been sustained.  Injury embraces the actual harm done to an employee by the unfair dismissal.  It comprehends 'all manner of wrongs' including being treated with callousness (Capewell v Cadbury Schweppes Australia Limited (1998) 78 WAIG 299).  The injury may be manifested by the detrimental impact on the physical or emotional wellbeing of the person whose services were terminated.  However dismissals will impact to varying degrees on individuals and while the need for professional care may be evidence of that impact, this will not necessarily always be the case in order to establish the causal link between the termination of employment and the injury.  While it is necessary to exercise a degree of caution to ensure that compensation is confined to reasonable limits (Timms v Phillips Engineering Pty Ltd (1997) 70 WAIG 1318 and Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144) that is not to say that every claim for injury necessarily involves expert evidence of emotional trauma.

1 The circumstances in which the dismissal from employment has been effected may be sufficient to demonstrate the injury which is experienced.  Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying recognition for compensation for injury (Lynham v Lataga Pty Ltd (2001) 81 WAIG 986).

2 However, the Commission is not able to adjust the measure of compensation according to the opinion of the employer or employee or of the conduct of the respective parties (Capewell v Cadbury Schweppes Australia Limited (op cit)).

38 From these principles emerges a requirement to assess the gravity or scale of the injury.  In particular, when considering whether to make an award of compensation for injury, the following matters should be considered:

(a) Whether the behaviour by or on behalf of an employer by the termination of employment has caused injury to the employee.

(b) If the behaviour in question has caused an injury, the gravity of the behaviour of the employer.

(c) The level of effect or impact of the behaviour on the employee and whether the effect or impact goes beyond a level of distress that is caused by almost all employer initiated terminations of employment.

39 This approach was implicitly approved of by the Full Bench in Anthony & Sons Pty Ltd v Fowler [2005] WAIRC 01744; (2005) 85 WAIG 1899.  In Fowler v Anthony & Sons Pty Ltd [2004] WAIRC 13416; (2004) 84 WAIG 3855, at first instance, Mr Fowler was awarded $3,000 as compensation for injury caused by his dismissal.  He had been employed as a skipper of Swan River cruise boats and had ascertained his employment had been terminated by his employer when he was told his name was removed from the roster.  He later received a letter informing him that there was no requirement for his services as there had been a downturn in trade.  Mr Fowler was horrified, mortified and depressed which caused him to visit a doctor.  The manner of the termination by the employer was found to be callous, caused Mr Fowler injury and he had suffered feelings of shock within the legal meaning of that word [40].

40 On appeal the award was reduced to $2,000.  President Sharkey, with whom Mayman C agreed, assessed the nature of the injury to Mr Fowler to be towards the lower end of the scale [68].  His Honour then observed [69] ‑ [70]:

Speaking for myself, I would add this.  There is something to be said for an opinion that awards in this Commission of compensation for injury are too low, and particularly in cases where there is medical and legal evidence of injury, but not solely.  It might be said that Full Benches of this Commission should consider, if the parties submit it, whether the awards should be increased.  However, that is a matter which it is not necessary to consider on this occasion and can await any submissions which are made another day before there is any consideration of it.

This award was not sufficiently judged as being at the lower end of the scale, which the injury was.  I would reduce it therefore by one‑third to reflect that it was at the lower end of the scale and award $2,000.00 not $3,000.00.  The discretion, for those reasons, and in that respect alone, I am satisfied, is established to have been miscarried within the grounds laid down in House v The King [1936] 55 CLR 499 because the amount is manifestly outside what a fair exercise of discretion would be.  The Full Bench is therefore entitled to substitute its decision for that of the Commissioner at first instance, on that point.

41 Commissioner Kenner also agreed the award of compensation to Mr Fowler should be reduced to $2,000 on grounds that the effect of the dismissal was at the lower end of the scale.  At [80] Kenner C found:

In this case, the evidence as to the effect on the respondent of the dismissal was brief.  However, simply because the evidence was brief, does not mean that it may not support a finding of injury for the purposes of s 23A(6) of the Act.  Where there is an allegation or claim of injury, then some caution should be exercised.  Whilst not always necessary, it will be of assistance in assessing any such claim if there is independent oral or documentary evidence of the effect of a dismissal on an employee, by way of medical or other evidence to that effect.  On the evidence at first instance, the injury found by the learned Commissioner was certainly at the lower end of the spectrum and would warrant a limited award of compensation.  I agree that to this extent, the discretion of the Commission at first instance miscarried and it would be appropriate to reduce the award by 30% in this case, given the evidence and the findings made.

42 The approach of the Full Bench in Anthony & Sons Pty Ltd v Fowler was applied by the Full Bench in Bone Densitometry Australia Pty Ltd v Lenny [2005] WAIRC 02081; (2005) 85 WAIG 2981.  In that matter, Sharkey P, with whom Scott and Mayman CC agreed, after applying the principles approved of in Birnie, said [124] ‑ [126]:

‘Injury’, as the Commissioner found, embraces the actual harm done to an employee by an unfair dismissal and 'comprehends all manner of wrongs' including being treated with callousness.  The Commissioner correctly observed, too, that whilst injury may be manifested by the detrimental impact on the physical or emotional wellbeing (or, for that matter, the reputation) of an employee unfairly dismissed, dismissals will affect individuals to varying degrees and, I might add, not at all.

The Commissioner observed, too, that, while the need for professional care may be evidence of this impact, this will not always be necessary to establish the causal link between the termination of employment and the injury.  Not every claim for injury, as the Commissioner correctly observed, necessarily involves or should involve expert evidence of emotional trauma.  (The Commissioner referred, too, to Timms v Phillips Engineering Pty Ltd (1998) 78 WAIG 4460 and Burazin v Blacktown City Guardian Pty Ltd (FC) (op cit).)

The Commissioner went on to observe, too, and correctly, that the circumstances in which the dismissal from employment had been effected may be sufficient to cause the injury experienced.  Examples were given of locking an employee out of the workplace or escorting an employee from premises in full view of staff, particularly, I might add, if this were unjustifiably done by a police officer or uniformed security officer (see the discussion of these matters in Lynham v Lataga Pty Ltd (FB) (op cit).)

43 His Honour in Bone Densitometry Australia Pty Ltd also applied the principle that an employer is bound to take an employee's reaction to a dismissal as it found him or her.  He said [133]:

Ms Lenny clearly did not suffer shock and humiliation because of her personality.  She, first of all, suffered it as a result of, and caused by, the unfair dismissal and the surrounding treatment of her, effected by Professor Will.  That was entirely clear.  That she might have suffered greater injury than someone else would, or any injury, was not established at all.  Even if it were, it is trite to observe that BDA, as the respondent, was bound to take Ms Lenny as it found her.  There was also unshaken evidence and uncontradicted evidence of her being bullied and exploited by Professor Will in the past, which might reasonably be found, if it were necessary, which it was not, to have caused a greater susceptibility to hurt and humiliation when the dismissal did come.

44 Finally, his Honour found [136]:

In this case, and the authorities which I have cited above are clear, one must look at the nature of the unfair dismissal and other evidence to determine whether the unfair dismissal caused any injury alleged to have been caused by it.  One has to look at the alleged injurious act and assess the conduct in that light when it has been alleged to be injurious.

42      (See too the observations of Kenner ASC (as he then was) at [186]‑[188]).

43      The evidence at first instance from the respondent was that on Monday, 3 February 2020, the respondent arrived at work and began preparing meals for the dogs.  Two other Kennel Hands were at work also.  The respondent must have been inside the appellant’s premises, as she said that the appellant came in and told her ‘It was time for her to go’.  The respondent said in her evidence she was shocked.  There was some mention by the appellant to the respondent of the respondent’s attitude.  The appellant said to the respondent that she was costing him income.  The respondent said that she did not ask or query anything at that time.  The appellant then told the respondent that she was hard to be around, and the respondent then said ‘that was pretty much (sic) and then we walked to the front door.  He wanted his key back and I gave him the key’.  The appellant then told the respondent she was ‘a good worker but it’s just time for me to go and that’s when I left and shut the door behind me pretty much’ (transcript at first instance pp 6‑7).

44      Given that this was the extent of the respondent’s evidence as to the circumstances of the dismissal on the day that it occurred, in our view, with respect, the learned Commissioner erred.  The evidence does not establish a level of distress beyond that that can be attributed to most dismissals, especially where they may be summary.  Whilst the respondent said she was shocked by the appellant’s comment that it was time for her to go, that was the extent of the evidence as to the impact of the actual dismissal on her.  There was no evidence from the respondent of anxiety, distress, humiliation, or nervous shock sustained by the respondent.  ‘Injury’, in the sense cited in the cases, referred to above, must actually be sustained by the dismissed employee, on the evidence.  There does not need to necessarily be medical evidence, but there needs to be evidence of the actual detrimental impact on the dismissed employee, over and above that which would normally be associated with a dismissal.

45      There was no evidence that the respondent was escorted from the premises in the view of other employees, that may cause humiliation and a higher level of distress than usual.  Whilst reference was made by the learned Commissioner to the appellant locking the door after the respondent left the appellant’s premises, the respondent did not give evidence to this effect, as noted above.  There was also no concession to this effect, made by the appellant in his written responses to the respondent’s claim at first instance.  We note also that as in exhibit A1, a text message from the respondent to the appellant dated 6 February 2020, when referring to her dismissal on 2 February 2020, the respondent said, ‘…as soon as that door shut behind me I moved on…’.  There was no evidence of any other impact of the dismissal on the respondent.

46      The above Full Bench authority, to the extent that reference is made to ‘locking out’ an employee, refers to the circumstance where an employee is prevented from accessing an employer’s premises, perhaps to retrieve personal possessions, to speak to other staff members, or some other abrupt and arbitrary exclusion from an employer’s premises, where ordinarily, one would not expect this to occur.  For example, in Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986 the employee refused to accept a reduction in his pay and, as a result, was sent home and refused access to the employer’s premises, directed not to speak to other employees and told the police would be called if he did attempt to enter the premises and he would be thrown out.  The evidence in that case was the appellant was stressed and humiliated by this course of conduct and was physically affected by it: see pars 52‑59 per Sharkey P.  This is not what, on the evidence, occurred in this case.

47      As noted above, the other bases for the award of compensation for injury were text messages one week after the dismissal in relation to the report to the RSPCA and associated threats to euthanise 60 dogs and threats to tarnish the respondent’s reputation with other employers.  We note that this conduct took place after the dismissal, in some respects, well after.  The issue that arises is whether such conduct can be brought to account in assessing compensation for injury caused by the dismissal.  Secondly, as we have already mentioned, there was no evidence before the Commission as to the direct impact, if any, of such matters on the respondent.

48      Submissions were made from the bar table by the respondent’s counsel (see pp 12‑13 of the transcript at first instance).  This included how the appellant conducted himself during the proceedings; the unwillingness of the appellant to provide the respondent with a separation certificate and a threat to tarnish the respondent’s reputation with other employers.  However, such submissions do not constitute evidence from the respondent as to injury.  There were also submissions from counsel for the respondent about plainly inappropriate and intemperate comments by the appellant in the ‘addendum’ to his filed response and in correspondence to the Commission.  As unsavoury as some of these comments were, they did not constitute evidence from the respondent, upon which findings of fact could be based and an assessment of compensation for injury made.

49      As to the issue of the complaint to the RSPCA, and the text messages between the appellant and the respondent as exhibit A1, the respondent was taken to them in her evidence (see pp 11 transcript at first instance).  The respondent denied she did report the appellant to the RSPCA, but importantly, apart from making reference to the euthanising of 60 dogs, the respondent gave no evidence of the impact, if any, this had on her.  Furthermore, the text message exchanges about this matter, occurred a week or so after the dismissal.  This was not an event that was part of the dismissal itself, as was the case in Nicoletti.  In that case, the appellant, Mr Richards, was evicted from the respondent’s house, which was provided as part of Mr Richard’s employment conditions.  The eviction was accompanied by serious threats of violence, and abusive behaviour by the employer, which occurred over a period of about one week from the day of the dismissal.  The findings of fact at first instance in that case were that Mr Richards feared for his and his partner’s safety.  Given the gravity of the employer’s conduct, the Full Bench assessed it at the very high end of the scale of callous and abusive behaviour.  The Full Bench increased the award of compensation for injury from $1,000 to $6,000.

50      In this case, while the appellant’s post‑dismissal communication with the respondent was rude and threatening, we are not persuaded that the evidence showed that the impact of the actual dismissal on the respondent was any greater than normal and it was not beyond that which would be expected in the circumstances.  We would uphold this ground of appeal.

Conclusion

51      For the foregoing reasons, we would uphold the appeal in part.  The order made at first instance should be varied by calculating the respondent’s compensation for loss of five weeks, plus two weeks’ notice, based on 36.3 hours per week at the rate of $23.59 per hour, with no award of compensation for injury.  Thus, the compensation payable to the respondent will be $5,994.22.  We order accordingly.