Appeal against a decision of the Commission in matter number B 167/2019 given on 5 November 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00317

DELIVERED : Friday, 29 July 2022

FILE NO. : FBA 8 OF 2021

Appellant

AND

Roman Catholic Bishop of Bunbury

Respondent

ON APPEAL FROM:

Jurisdiction : The Western Australian Industrial Relations Commission

Coram : Commissioner T B Walkington

Citation :  [2021] WAIRC 00566

File No : B 167 OF 2019

Catchwords : Industrial law (WA) - Appeal against decision of the Commission - Procedural fairness - Right of applicant to examine a witness not called - Contract interpretation - Relevant principles applied - Length of contract of employment - Whether the Commission erred in finding contract was for three discrete periods - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 41(4), s 49, Part III

Employment Dispute Resolution Act 2009 (WA) s 12(1)

Roman Catholic Church Property Act 1911 (WA) 

Result : Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr I Curlewis of counsel

Solicitors:

Respondent : Lavan

Case(s) referred to in reasons:

Ansett Transport Industries (Operations) Pty Ltd and Others v Australian Federation of Air Pilots and Others (1989) 95 ALR 211

Adrian Doyle v Mandurah Catholic College [2020] WAIRC 00234

Adrian Doyle v Roman Catholic Bishop of Bunbury [2020] WAIRC 00385; (2020) 100 WAIG 559

Adrian Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00054; (2021) 101 WAIG 151

Adrian Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00055; (2021) 101 WAIG 153

Director General, Department of Education Western Australia v State School Teachers’ Union of WA (Incorporated) [2020] WAIRC 00927; (2020) 100 WAIG 1493

Grigson v The St Cecilia’s College School Board [2005] WAIRC 03124; (2005) 86 WAIG 3146

King v Griffin Coal Mining Company Pty Ltd [2017] WAIRC 00102; (2017) 97 WAIG 527

Kiosses v Presidian Management Services Pty Ltd [2018] WAIRC 00330; (2019) 98 WAIG 295

Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193

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

Reasons for Decision

THE FULL BENCH

Background

1         The appellant Mr Doyle was employed at the Mandurah Catholic College from January 2014 to November 2019. The appellant commenced in the position of Head of Music under a written contract of employment that the appellant maintained was for a fixed term of eight years.

2         The following summary is largely taken from the Commission’s reasons for decision at  first instance, to the extent that matters raised were not controversial. There were several documents relevant to the appellant’s contract of employment, which were central to the issues determined at first instance. These included a letter of 19 September 2013 from Mrs Fraser, the Principal of the College. The second document was a letter from the appellant to Mrs Fraser accepting the offer of the position, signed by him on 26 September 2013. Thirdly, was a further letter from Mrs Fraser dated 11 February 2014, enclosing several ‘contractual documents’, applying to the appellant’s position as the Head of Music. These documents comprised three Schedules, with each Schedule referring to periods of engagement from 1 January 2014 to 31 December 2015; from 1 January 2016 to 31 December 2018, and 1 January 2019 to 31 December 2021.

3         Relevantly, formal parts omitted, the letter of 19 September 2013 from Mrs Fraser provided:

On behalf of The Roman Catholic Bishop of Bunbury, you are invited to be a member of staff at Mandurah Catholic College under the terms and conditions of the Western Australian Catholic Schools (Enterprising Bargaining) Agreement No. AG33 of 2012. A copy of this agreement can be located on the Catholic Education Office of Western Australia website www.ceo.wa.edu.au.

As a member of staff you are required to comply with all Catholic Education Commission of Western Australia Policy Statements (which are also located at www.ceo.wa.edu.au) and College policy statements. It is also a condition of your employment that you actively contribute towards the maintenance of the Catholic ethos of the College through a manner of life and stated beliefs which are in keeping with the teachings of the Catholic Church.

4         The appellant’s acceptance of the letter of offer, formal parts omitted, was in the following terms:

LETTER OF ACCEPTANCE FOR TEACHING STAFF

I wish to accept the position offered to me in your letter of 19 September 2013.

I have studied and understood the letter of offer and the provisions outlined in the Western Australian Catholic Schools (Enterprise Bargaining) Agreement No. AG33 of 2012.

I agree to comply with all Catholic Education Commission of Western Australia Policy Statements and College policy statements.

I understand that I am required, under the direction of the Principal, to actively contribute towards the maintenance of the Catholic ethos of the College through a manner of life and stated beliefs which are in keeping with the teachings of the Catholic Church.

I undertake to work with you and other staff of Mandurah Catholic College in the interests of Catholic education of the students.

5         The later letter dated 11 February 2014 from Mrs Fraser was in the following terms:

Please find enclosed your contractual document for your position as Head of Music.

Your contract for this position is for an 8 year term. It is broken into three parts of:

Your position will be reviewed during the year prior to the next renewal period commencing.

Please sign both copies and return one to Mrs Joanne Pustkuchen and retain one for your records.

6         The three Schedules, set out the above periods of employment. The first Schedule, to cover the period 1 January 2014 to 31 December 2015, was as follows:

7         The second Schedule, to cover the period 1 January 2016 to 31 December 2018 was as follows:

8         The third Schedule, to cover the period 1 January 2019 to 31 December 2021 was as follows:

9         The appellant’s evidence at first instance was he was asked to sign all three Schedules at the time he commenced employment, which he did. As will be developed later in these reasons, at issue in the proceedings at first instance was the meaning and effect of those documents, as terms of the appellant’s contract of employment.

10      As noted in the letter of offer, the appellant’s employment at the College was covered by the terms of the Western Australian Catholic Schools (Enterprise Bargaining) Agreement 2012. The successor industrial agreement, The Roman Catholic Bishop of Bunbury Teachers Enterprise Agreement 2015 contains largely the same provisions as those set out in the 2012 Agreement. This was not in dispute at first instance.

11      It is convenient to set out relevant provisions of the 2015 Agreement, a copy of which was exhibit R1 (AB230) now, as follows:

4.  ‑   SCOPE OF AGREEMENT

(1) This Agreement shall apply to all teachers employed by the employer as prescribed in Clause 3 and who are members or eligible to be members of the IEUwa.

(2) This Agreement provides for all conditions contained within the Independent Schools' Teachers' Award (1976).

(3) The number of teachers covered by this agreement is 724.

5.  ‑  DEFINITIONS

…

(7) "Teacher" shall mean any person registered by the Teacher Registration Board of Western Australia (TRBWA) or its successor and employed on the teaching staff of a Catholic school including those employed with "Limited Authority to Teach" (as defined by TRBWA) but does not include the Deputy Principal or the Principal.

…

23.  -  CHANGE

(1) Employer's duty to notify

(a) Where an employer has made a definite decision to introduce major changes in program, organisation, curriculum, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the IEUwa.

(b) "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where this Agreement makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

(2) Employer's duty to discuss change

(a) The employer shall discuss with the employees affected and the IEUwa, inter alia, the introduction of the changes referred to in 1 (b) of this clause, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and the union, in relation to the changes.

(b) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in 1 (a) of this clause.

(c) For the purposes of such discussion, the employer shall provide in writing to the employees concerned and the union, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interests.

25.  ‑  CONTRACT OF SERVICE

…

 (2) (a) A teacher shall, upon engagement, be given a letter of appointment in which the general conditions and the special conditions (if any) of his/her appointment are stated. A copy of that letter shall be retained by the school and signed by the teacher within one week of commencing work. This subclause shall not apply to a relief teacher.

(b) The conditions stated in the letter of appointment shall, while the employment continues, be observed by the parties and shall not be subject to any alteration of significance without the consent of the teacher.

(c) Paragraph (a) of this subclause does not authorise the inclusion in a letter of appointment of any provision which is inconsistent with or contrary to any provision of this Agreement.

(d) The letter of appointment for a temporary teacher shall include the term of the appointment and the reason for the temporary appointment.

 (3) (a) Except in the case of a relief or temporary teacher, the termination of the service of a teacher shall require a minimum of six (6) working weeks' notice by either party usually to take effect from the close of school business at the end of the school term.

(b) Termination of service for teachers working in remote schools shall require a minimum of ten (10) weeks' notice by either party in Term four (4) when the teacher is not returning the following year to take effect from the close of school business at the end of the school term.

(c) Provided that the requirements of this subclause may be waived in part or in whole by mutual agreement between the teacher and the employer. Any request to waiver such notice shall not be unreasonably withheld by the employer, where it is deemed that the teacher has not been able to give the required notice through no fault of their own.

(d) Subject to the provisions of this subclause, failure to give the required notice shall make either party liable for the payment to the other party of an amount equivalent to the period of notice not given.

(e) When a teacher resigns, the employer reserves the right to withhold or recover an amount equivalent to any period of overpayment of salary. However, approval must be obtained from the Executive Director of Catholic Education before such action is proceeded with.

…

35.  ‑  REDUNDANCY PROVISIONS

(1) Should a position in a Catholic school become redundant then the provisions of:

(a) the Industrial Relations Act 1979 0/VA); and/or

(b) the Catholic Education Commission of Western Australia policy on redundancy; and/or

(c) this Agreement,

whichever is the greater, shall apply.

(2) Discussions Before Termination

(a) Where an employer has made a definite decision that the employer no longer wishes the job the teacher has been doing done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the teachers directly affected and with their Union, where applicable.

(b) The discussion shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph (a) of this subclause and shall cover among other things, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to minimise any adverse affect of any terminations on the teachers concerned. The employer will confirm the content of these discussions in writing.

(c) When the employer identifies a potential redundancy and before a teacher is named as the person whose position has been declared redundant, the employer shall offer all teachers at that school the opportunity to take leave without pay for a period of one school year or such a period to resolve the potential redundancy. Where a suitable application is received that resolves the potential redundancy. then the teacher shall be granted leave without pay for the period.

(3) Notice Period of Termination on Redundancy

(a) If the services of a teacher are to be terminated due to redundancy, the teacher shall be entitled to notice of termination as prescribed in Clause 25 - Contract of Service, of this Agreement, provided that teachers to whom notification of termination of service is to be given because of the introduction of automation or other like technology changes shall be given not less than three (3) months' notice of termination.

(b) Should the employer fail to give notice of termination as required in part (a) of this subclause the employer shall pay to the teacher an amount calculated in accordance with the ordinary rate of pay for a period being the difference between the notice given and that required to be given.

(c) Payment of Notice Treated as Service

If an employer makes payment for all or any of the period of notice prescribed, then the period for which such payment is made shall be treated as service for the purposes of calculating any service related entitlements of the teacher arising pursuant to this Agreement and shall be deemed to be service with the employer for the purposes of Long Service Leave.

…

(Our emphasis)

12      Management of the College was restructured in 2018 and the position of Head of Music was abolished. The appellant had a period of sick leave from the end of term one in 2018 for the rest of that year. The appellant applied for an alternative position at the College in September 2018 but was not successful. He then went on leave without pay for 2019. The College offered the appellant an alternative teaching position from January 2020 however, the appellant did not accept the offer. By that stage the parties were in dispute. Mr Wallace, the then Principal, wrote to the appellant in November 2019 and informed him that as he had not taken up the offer of a position in 2020 and had not otherwise communicated his intentions to the College, he was regarded as having repudiated his contract of employment and the employment was at an end.

13      The appellant commenced proceedings in the Commission for a denied contractual benefit based on what he maintained was the unexpired term of his fixed term contract of employment from 1 January 2018 to 31 December 2021. The appellant claimed $345,000 for loss of income for this period. The claim was opposed by the respondent which contended that the contract of employment between the appellant and the respondent comprised three discrete periods, the first for two years, the second for three years and the third for a further three years. Each discrete period was subject to a renewal process as a condition of the contract of employment continuing. The second period, originally to run from 1 January 2016 to 31 December 2018, was, according to the respondent, extended by the appellant’s absence on leave without pay for 2019, to 21 December 2019. On the appellant refusing to accept the respondent’s offer to return to the college as a teacher from 1 January 2020, the respondent contended this resulted in the termination of the contract of employment and the appellant had no entitlements to payment beyond this time.

Preliminary applications

14      Prior to the substantive hearing of the application, two preliminary issues were dealt with by the Commission, which are relevant to the grounds of appeal.

15      The first issue relates to the proper name of the respondent. The application at first instance filed by the appellant on 11 December 2019 cited the respondent as the ‘Mandurah Catholic College’, with the business trading name as ‘CEWA Ltd’. The respondent in its response contended that the appellant was employed by the respondent, and not the College, as the respondent delegated the management of the College, through the Catholic Education Commission of Western Australia, to the College Principal.

16      It appears that the appellant accepted that the respondent was, in relation to his employment, the proper named respondent at the material times. A Form 1A ‑ Multipurpose Form which was filed by the appellant on 23 June 2020, was to this effect. Subsequently, on 1 July 2020, the Commission made an order formally amending the name of the respondent in the proceedings to the ‘Roman Catholic Bishop of Bunbury’.

17      Secondly, prior to the hearing proceeding on 11 March 2021, on 12 February 2021 the appellant filed a summons, directed to Bishop Gerrard Holohan, as the respondent, to give evidence in the proceedings. On 26 February 2021, an application was filed by the respondent to have the summons set aside. It was contended by the respondent that as the respondent delegated the operational control of all Catholic Schools through the Catholic Education Commission of Western Australia, and in turn to each school, the Principal of the College had operational knowledge of matters relevant to the appellant’s claim. The respondent contended that in practical terms, the appellant’s contract of employment was with the College, in accordance with these delegated arrangements, and that the respondent himself had no knowledge of the appellant’s claim or any matters relevant to it.

18      The appellant opposed the respondent’s application to set aside the summons. The Commission, in reasons for decision published on 9 March 2021 (Adrian Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00054; (2021) 101 WAIG 151) held that the respondent could not give evidence as to matters relevant to the appellant’s claim. Whilst noting that the appellant continued to raise issues as to the proper identity of the employer, the learned Commissioner observed that the appellant had not sought to further alter the order made on 1 July 2020, which changed the name of the employer to the respondent. The learned Commissioner set aside the summons and the respondent did not give evidence in the substantive proceedings.

The Commission’s decision

19      The learned Commissioner made the following findings and came to the following conclusions in relation to the submissions and evidence before her:

(a) The contract of employment between the appellant and the respondent was not for a fixed term of eight years but comprised three discrete periods: an initial period and two ‘renewal periods’ each of which were discrete fixed terms;

(b) The second fixed term came to an end on 31 December 2018;

(c) In the alternative, if the second period was extended by either the agreement of the parties or by the terms of the contract of employment, then it came to an end on 31 December 2019;

(d) The third period, if it were renewed, would end on 31 December 2021;

(e) Having considered the relevant cases in relation to the incorporation of external documents into contracts of employment, the Catholic Education Commission of Western Australia Policy Statements and the College Policies were incorporated into the appellant’s contract of employment. One such policy statement was to the effect that contracts of employment are for a minimum of one year and a maximum of eight years, with reviews at regular intervals. The continuation of contracts was dependent on a successful review of performance (see AB 68 [31] reasons).  On the same basis, the 2012 Agreement was found to also be incorporated into the appellant’s contract of employment;

(f) As the appellant was not at work for 2019 no review could be conducted after the second renewal period to 31 December 2018. As no review took place the third renewal period was not agreed, and relevant documents not signed by both parties. As the appellant’s contract of employment was not renewed in accordance with the relevant policies incorporated into the contract of employment, the appellant’s contract of employment was not renewed for the third period;

(g) As to the restructuring of the management of the College in 2018 and the abolition of the appellant’s position, the relevant provisions of the 2012 Agreement in relation to introduction of change, consultation, and redundancy, had application and were complied with by the College;

(h) As the appellant was not at work in 2019, he had no entitlement to be paid for this period as he performed no work and provided no services to the College; and

(i) In all the circumstances, the appellant had not discharged the burden to make out his claim and the application was dismissed.

Grounds of appeal

20      The appellant’s grounds of appeal to the Full Bench, as amended on 11 March 2022, are as follows:

Ground 1a): The Commissioner erred in discarding the applicant the right to examine witnesses.  By this restraint obtaining evidence from the relevant respondents of the College, in relation to the contract and review procedure, was hindered.

Ground 1b): The Commissioner erred in allowing the subpoena of the Bishop to be set aside on papers based on “the Bishop had no evidence”.

Ground 2: The Commissioner erred in finding that the applicant’s eight-year fixed term contract was comprised of three separate parts, not just one contract.

Ground 3: The Commissioner erred in finding that a schedule was entered into when the principal signed the contract many months while the applicant had been working under it.

Ground 4: The Commissioner erred in providing inadequate reasons for delivering a decision of dismissal of the matter. The applicant was dismissed from his position the same day he applied at the WAIRC for Conciliation and Arbitration.

Ground 5: The Commissioner erred in stating the performance reviews were contracts. The performance review was an integral evidence but was not thoroughly examined due to absence of witness and lack of opportunity for the applicant to cross examine. Or in the alternative…

The Commissioner erred in finding that the third contract did not continue to run even though a successful review had been completed.

Ground 6: The Commissioner erred in failing to fully acknowledge the change of respondent of July 2020. The employer change from CEWA to CEWA Ltd in Jan 2020 confused the Hearing, the Decision and the resultant Order.

Ground 7a) The Commissioner erred in not accepting all the EBA Agreement. The process of review did not occur as contracted in any schedule. The contract could not be altered without consent of employee.

Ground 7b) The Commissioner erred in allowing restructure and dismissal without consent, while the contract was still running.

Grounds 1(a) and 1(b)

21      In accordance with directions made by the Commission at first instance, the parties filed witness statements in respect of those persons who were to be called to give evidence. On behalf of the appellant, he filed a witness statement of his own. On behalf of the respondent, witness statements were filed by Mr Wallace, the Principal of the College from January 2017; Mrs Fraser who was the Principal of the College from 2011 to December 2014 and Mr Watson, the Principal of the College from January 2015 to December 2016.

22      The appellant submitted that prior to the hearing on 11 March 2021, he enquired by email to the Associate of the learned Commissioner dated 16 February 2021, whether both Mrs Fraser and Mr Watson would be present at the proceedings. The appellant was informed that they would be. The appellant said he did this because he was deciding who he may need to have summonsed to give evidence in his case. He submitted that based on his understanding from 16 February 2021, he did not need to summons those who had filed witness statements.

23      Towards the conclusion of the hearing on 11 March 2021, and after the evidence of Mr Wallace, the first witness called for the respondent, had been completed, counsel for the respondent requested a short adjournment. On the resumption of the hearing, counsel informed the learned Commissioner that he did not intend to call any further evidence and that he would close his case (see AB164). The learned Commissioner then invited the appellant to put his closing address which he said he would. The appellant indicated that whilst he was expecting Mrs Fraser and Mr Watson to be called to give evidence, as he wanted to ask them about his ‘maximum term contract’, he would proceed, nonetheless.

24      The issue of the respondent not calling Mrs Fraser and Mr Watson was not raised by the appellant any further and he did not suggest to the learned Commissioner that he wished to call them himself. Of course, to do so, would have required him to seek leave to reopen his case. No suggestion was put by the appellant at that time, that the failure by the respondent to call Mrs Fraser or Mr Watson was unfair or untoward in any way. The appellant contended on the appeal that he wanted to cross-examine both Mrs Fraser and Mr Watson about ‘contradictions in their witness statements’. This was not a matter he raised before the learned Commissioner.

25      The conduct of a party’s case is for the party or for the party’s counsel or advocate. Forensic decisions to be made during the hearing of a matter, as to what evidence to call and in what order, are a matter for the party concerned and not the party’s opponent. This is subject to the overriding obligation on the presiding judicial officer to ensure that the proceedings are conducted fairly. A party is entitled to a reasonable opportunity to put their case before an independent and impartial tribunal. For example, if a judge or other judicial officer limits cross-examination, by indicating that a witness’s evidence will not be considered, which evidence is subsequently shown to be of significance, there will be a denial of procedural fairness: Stead v State Government Insurance Commission (1986) 161 CLR 141.

26      Obligations arise in the case of unrepresented parties. The Commission, as with any court or tribunal, is obliged to give an unrepresented party some additional assistance to reduce any disadvantage that they may suffer when faced with a represented opponent. This involves a balance, to ensure that any assistance provided to the unrepresented party does not lead to disadvantage to the other. It is not for the Commission to become the advocate for a party. The Commission’s duty in this respect was referred to by the Full Bench in Kiosses v Presidian Management Services Pty Ltd [2018] WAIRC 00330; (2019) 98 WAIG 295. In this case, Smith AP (as she then was) (Scott CC and Emmanuel C agreeing) observed at [43] to [46]:

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].

27      On the opening of the respondent’s case, counsel for the respondent informed the Commission that apart from Mr Wallace, who would give evidence and who had been summonsed, two other witness statements had been filed (Mrs Fraser and Mr Watson). Counsel expressly reserved the respondent’s right whether those witnesses would be called or not. He informed the Commission that he did not want it to be said that the respondent had committed to calling those witnesses as a part of the respondent’s case: AB150.

28      While the respondent filed three witness statements prior to the hearing, until they were admitted into evidence through the witnesses making them, the content of those witness statements was not evidence before the Commission. As noted, counsel for the respondent announced at the outset of the proceedings that whilst witness statements had been filed for three of the respondent’s potential witnesses, he was not committing to calling all of them. No issue was raised by the appellant about counsel’s comments at that stage of the proceedings. This is especially so given what he submitted to us were his expectations regarding the calling of witnesses by the respondent, prior to the hearing commencing.

29      It may have been prudent for the learned Commissioner to have inquired of the appellant at the time the respondent’s counsel indicated he no longer intended to call any further evidence after the evidence from Mr Wallace was taken, whether the appellant wished to make an application to reopen his case to call evidence from either Mrs Fraser or Mr Watson, himself. However, we are not persuaded that the respondent’s decision not to call the witnesses, or the failure by the learned Commissioner to raise this matter, denied any right that the appellant possessed, or otherwise lead to a denial of procedural fairness.

30      This ground is not made out.

31      As to ground 1(b), the appellant submitted that the order of the Commission of 9 March 2021, referred to above, setting aside the witness summons to the respondent, was in error. Whilst it was not entirely clear, we understood the appellant’s contention to be that as the respondent was a named party to the 2015 Agreement, and signed the document as the employer, the respondent ‘owned’ the 2015 Agreement, and it was ‘his’. As the 2015 Agreement was tendered in evidence as exhibit R1, this constituted in some way, evidence that the respondent was the employer and implicitly, he had to have knowledge of matters covered by it.

32      The appellant also contended that whilst he did not object to the setting aside of the summons at the time, based on the respondent’s letter to him of 3 March 2021, stating that the respondent knew nothing of the circumstances surrounding the appellant’s employment, this was because of a ‘threat’. The nature of this threat was not made clear. The learned Commissioner recorded at [7] of her reasons that the appellant’s position on the application to set aside the witness summons was that he ‘accept(s) his written response as long as it is included (on the papers) in the Commissioner’s considerations to set aside the summons by papers’: Adrian Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00054; (2021) 101 WAIG 151. The Commission’s order setting aside the summons, dated 9 March 2021 (Adrian Doyle v Roman Catholic Bishop of Bunbury [2021] WAIRC 00055; (2021) 101 WAIG 153) was not the subject of an appeal to the Full Bench by the appellant.

33      Given these circumstances, it is doubtful that it is now open for the appellant to seek to challenge the order to set aside the summons to the respondent, given the terms of s 49 of the Industrial Relations Act 1979 (WA). Even if it were open to do so, there has been no ground made out by the appellant to challenge the order. Not only did the appellant not seriously challenge the basis for the learned Commissioner’s decision, that the respondent had no direct knowledge of the matters the subject of the proceedings at first instance, but as the learned Commissioner recorded, the appellant ultimately accepted the matters raised by the respondent in that regard.

34      This ground of appeal is not made out.

Ground 2

35      As to this ground the appellant submitted that the learned Commissioner should have concluded, as was the case in Grigson v St Cecilia’s College School Board [2005] WAIRC 03124; (2005) 86 WAIG 3146, that his contract of employment with the respondent was for a fixed term of eight years. He contended that the language of the letter from Mrs Fraser of 11 February 2014, in the second sentence to the effect that ‘your contract for this position is for an eight-year term’, was conclusive. The appellant submitted that signing all three Schedules when he did on 19 February 2014, was consistent with his contention as to the eight-year fixed term. In his evidence at first instance, the appellant said that he saw the contract of employment as comprising four parts, being the offer; his acceptance; the letter of 11 February 2014; and the three Schedules.

36      When taken together, in conjunction with the signing of the Schedules, the appellant contended this constituted the entirety of his contract of employment with the respondent. He did accept when it was put to him in cross-examination, however, that the 2012 Agreement and the Staff Appointment Policy also applied to his employment (AB124-127). These latter issues are, however, matters of law having regard to the terms of the Act and a proper construction of the terms of the contract of employment.

37      The only witness called for the respondent, Mr Wallace, did not become the Principal of the College until January 2017. He therefore did not give evidence and had no knowledge as to the formation of the contract of employment between the appellant and the respondent. Mr Wallace’s evidence was that he met with the appellant in 2017 to discuss some issues with him, at the appellant’s request. He agreed that the review under the contract (the second Schedule) which was to be undertaken in 2018, would be undertaken in 2019 instead, and as a result, agreed to extend the second ‘renewal period’ by one year to 31 December 2019. We will return to this issue when considering ground 3 below.

38      In addressing this ground of appeal, we consider first the construction of the terms of the written contract of employment, and secondly, the intersection between the contract of employment and the relevant industrial instruments, in conjunction with the provisions of the Act. In relation to the latter, we should observe at this point that the appellant did not challenge in his grounds of appeal, or address in his submissions on the appeal, the fact that the learned Commissioner concluded that both the 2012 Agreement and the Staff Appointment Policy were incorporated by reference into his contract of employment with the respondent, which issue the learned Commissioner identified as ‘central’ (see [36] reasons AB70).

39      As to the principles to apply in the construction of contracts generally, in King v Griffin Coal Mining Company Pty Ltd [2017] WAIRC 00102; (2017) 97 WAIG 527, Kenner SC (as he then was)  observed at [11] as follows :

11 Some rules have been developed in the cases as to the approach to adopt in construing the terms of a contract. A recent summary of the relevant principles to be applied was set out by the Court of Appeal (WA) in Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219. In this case, Newnes and Murphy JJA and Beech J observed at par 42:

Construction of contracts: general principles

42 The principles relevant to the proper construction of instruments are well known, and were not in dispute in this case. In summary:

(1) The process of construction is objective. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean.

(2) The construction of a contract involves determination of the meaning of the words of the contract by reference to its text, context and purpose.

(3) The commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole.52 Extrinsic evidence may nevertheless assist in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, its background, the context and the market in which the parties are operating.

(4) Extrinsic evidence may also assist in determining the proper construction where there is a constructional choice, although it is not necessary in this case to determine the question of whether matters external to a contract can be resorted to in order to identify the existence of the constructional choice.

(5) If an expression in a contract is unambiguous and susceptible of only one meaning, evidence of surrounding circumstances cannot be adduced to contradict its plain meaning.

(6) To the extent that a contract, document or statutory provision is referred to, expressly or impliedly, in an instrument, that contract, document or statutory provision can be considered in construing the instrument, without any need for ambiguity or uncertainty of meaning.

(7) There are important limits on the extent to which evidence of surrounding circumstances (when admissible) can influence the proper construction of an instrument. Reliance on surrounding circumstances must be tempered by loyalty to the text of the instrument. Reference to background facts is not a licence to ignore or rewrite the text. The search is for the meaning of what the parties said in the instrument, not what the parties meant to say.

(8) There are also limits on the kind of evidence which is admissible as background to the construction of a contract, and the purposes for which it is admissible. Insofar as such evidence establishes objective background facts known to the parties or the genesis, purpose or objective of the relevant transaction, it is admissible. Insofar as it consists of statements and actions of the parties reflecting their actual intentions and expectations it is inadmissible. Such statements reveal the terms of the contract which the parties intended or hoped to make, and which are superseded by, or merged into, the contract.

(9) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ.

(10) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.

(11) Definitions do not have substantive effect. A definition is not to be construed in isolation from the operative provision(s) in which the defined term is used. Rather, the operative provision is ordinarily to be read by inserting the definition into it.                                                                                

(footnotes omitted)

40      Importantly, in adopting the above approach, is the need to construe a contract as a whole. Where a contract is made up of several component parts, as in this case, there is a need to consider all of them together, rather than focus on one component part or only a portion of such a component. For this reason, the appellant’s focus only on the second sentence of the third part of his contract, the letter from Mrs Fraser of 11 February 2014, was misplaced.

41      The letter of 11 February 2014 went on to provide in the third sentence ‘It is broken into three parts of …’ (our emphasis). Clearly, as a matter of plain meaning of the words used, the ‘it’ referred to was the appellant’s contract of employment for the position he accepted at the College as the Head of Music. There followed in the letter, reference to three discrete periods of time, described as an ‘initial period’ of two years, ‘and a further two “renewal periods”’ of three years each. The second last paragraph of the letter then provided that ‘Your position will be reviewed during the year prior to the next renewal period commencing’. The relevant dates in the letter correspond with the initial and two subsequent renewal periods.

42      The Schedules, which were the fourth component, must be considered. These were part of the ‘contractual documents’ provided by Mrs Fraser to the appellant with the letter of 11 February 2014.  As can be seen from them, as set out above, they correspond with the three periods in the body of the letter of 11 February 2014. Each comprises a separate ‘term’ with a corresponding ‘period of appointment’. Both the appellant, as the Head of Music and the Principal of the College, were to sign the Schedules. In the case of the Principal of the College, this was done as a delegate of the respondent.

43      Considered objectively, the conclusion is irresistible that a reasonable person, considering all its component parts, would conclude that the appellant’s contract of employment with the respondent comprised three discrete periods of engagement of two, three and three years respectively, to a maximum of eight years, with each term subject to a review and renewal process. The learned Commissioner did not err in reaching this conclusion.

44      The next issue is the intersection of the provisions of the 2012 Agreement with the contract of employment. This can often present complex and difficult issues. As noted earlier, there was on this appeal no challenge to the finding made by the learned Commissioner at [52] of her reasons, that the terms of the 2012 Agreement were incorporated into the appellant’s contract of employment, in reliance on the reasoning of the Supreme Court of Victoria in Ansett Transport Industries (Operations) Pty Ltd and Others v Australian Federation of Air Pilots and Others (1989) 95 ALR 211 per Brooking J at 256. In concluding this was the case, the learned Commissioner further found that the provisions of the 2012 Agreement in cls 23 and 35 applicable to change and redundancy, entitled the respondent to abolish the appellant’s position and the respondent complied with its obligations in this respect. We will deal with this latter issue in more detail when considering ground 7(b).

45      This finding also had the effect of incorporating into the contract, cl 25 – Contract of Service of the 2012 Agreement, the terms of which are set out above. We note cl 25(2)(a) which provides that on engagement, a teacher is to be provided with a letter of appointment setting out the general and special conditions of appointment. Further and importantly, by cl 25(2)(c), cl 25(2)(a) does not authorise any provision of a letter of appointment to be ‘inconsistent with or contrary to’ any provision of the 2012 Agreement. Importantly too, for present purposes, by cl 25(3)(a), either a teacher or the employer may give a minimum of six working weeks’ notice of termination of employment.

46      Therefore, regardless of the purported fixed term arrangement entered into between the appellant and the respondent, at all times the contract of employment could be terminated by either party on the giving of a minimum of six working weeks’ notice. In effect, the contract of employment between the appellant and the respondent, given this provision of the 2012 Agreement, was properly characterised as being for a specified period, terminable by either party on notice. Such a term would have in any event, been fatal to the appellant’s claim for payment of the balance of what he contended was a fixed term contract of employment. This is irrespective of the conclusions that the learned Commissioner reached about either the construction and operation of the contract of employment, in terms of the requirement for a review as a condition of a contract renewal, or the circumstances under which the employment of the appellant came to an end.

47      It is arguable that it was not necessary for the learned Commissioner to find that the 2012 Agreement was incorporated into the appellant’s contract of employment, for the above conclusions to be reached. We say this because the 2012 Agreement and the successor 2015 Agreement, were industrial instruments made under and given statutory effect by s 41(4) of the Act. Such an industrial agreement ‘extends to and binds’ all employees employed in classifications mentioned in the 2012 Agreement and the employer, that being the respondent, as a party to the 2012 Agreement.

48      In this case, the contract of service clause in cl 25 of the 2012 Agreement contained obligations imposed on both the appellant and the respondent concerning termination of employment. When read with the further obligation contained in cl 25, that no provision of the terms of appointment of a teacher, as defined, which included the appellant, could be ‘inconsistent with or contrary to’ the 2012 Agreement, further confirmed the effect of the contact of service provision of the 2012 Agreement. To the extent that the contract of employment documents were silent as to notice of termination of employment, then the operative parts of the 2012 Agreement would have arguably applied in any event, to the contract between the appellant and the respondent, once formed. However, given that these issues were not raised on the grounds of appeal and were not argued before the Full Bench, they are best left to be fully considered on another occasion.

49      The learned Commissioner also as noted earlier, found, in reliance on the decision of the Full Court of the Federal Court of Australia in Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at [24] (see reasons at first instance at [38] to [44] AB70-71) that from the language used in the offer of contract letter dated 19 September 2013 and the acceptance signed by the appellant on 29 September 2013, that the relevant policies were incorporated into the contract of employment.

50      At cl 5.5 Middle Leadership Positions of the Staff Appointment Policy, it was provided at pars 5.5.4 and 5.5.5 as follows (see AB288):

5.5.4 The tenure of the middle leadership position shall be at the discretion of the Principal but shall be no less than one year and no longer than eight years, at which time the position is to be advertised. Reviews shall occur at regular intervals of at least three years.

5.5.5 Continuation of the contract is dependent upon a successful review of performance in relation to defined responsibilities.

51      The learned Commissioner found these provisions were incorporated into the contract of employment and were relevant to the issue of conduct of reviews under the contract. They supported her conclusion that the contract of employment did not continue or was not renewed for the third renewal period to 31 December 2021. This conclusion was open on the material before the learned Commissioner.

52      In relation to the appellant’s reference to Grigson, whilst that case was not raised or argued before the learned Commissioner at first instance, the present matter is distinguishable. In Grigson, whilst the appellant in that case was engaged as the head of a junior school under a contract which contained some similarities to the appellant’s, no finding was made that the relevant industrial agreement terms or employer policies, in relation to termination of employment and the introduction of change, were incorporated into Ms Grigson’s contract of employment. This is a significant point of difference for present purposes.

53      Additionally, and importantly, in Grigson, the evidence was the employer signed all the relevant Schedules to Ms Grigson’s contract of employment, evidencing agreement to the extended terms. This supported the conclusion that her contract of employment ran to the end date claimed by her, and that she was entitled to be paid as she claimed.  That is not the case in this matter.

54      This ground of appeal is not made out.

Ground 3

55      To the extent that the appellant referred to the written statements of Mrs Fraser and Mr Watson, who were not called to give evidence and therefore whose evidence was not before the Commission at first instance, for the reasons identified above, as explained to the appellant during the hearing of the appeal, it is not permissible to consider that material on this appeal and it will be disregarded.

56      The learned Commissioner accepted and found that upon a proper construction of the contract of employment, it provided for three discrete periods of engagement, comprising an initial period from January 2014 to December 2015; a second period from from January 2016 to December 2018; and a third period from January 2019 to December 2021.

57      The learned Commissioner further concluded at [28] of her reasons (AB68) that the practical effect of the contract of employment read as a whole, was that each of the ‘renewal periods’ constituted fixed terms. She further concluded that if the second period (i.e. January 2016 to December 2018) was extended either by agreement or as permitted by the terms of the contract of employment, the second renewal period would run to December 2019. On the evidence, which we will come to shortly, the latter event is what in fact occurred.

58      As noted above, the learned Commissioner concluded that the Staff Appointment Policy was, having regard to the authorities in relation to the incorporation of external documents into a contract of employment, incorporated into the contract between the appellant and the respondent (at [44] reasons AB71). This conclusion was not challenged on the grounds of appeal and from the language of the contract documents, the learned Commissioner was correct to so conclude. We note too, that by the terms of both the 2012 Agreement and the successor 2015 Agreement, by cl 24(2) of both, the parties to the Agreements ‘acknowledge all policies of the Catholic Education Commission of Western Australia are binding’.

59      Relevant terms of the Staff Appointment Policy are set out earlier in these reasons. The learned Commissioner concluded that based on cl 5.5.4, which bound the parties under both the 2012 Agreement and the terms of the contract of employment, successful reviews were a condition of the continuation of the contract of employment. In this regard, the appellant made submissions as to when performance reviews were or were not to occur and suggested there were express or latent ambiguities in both the terms of the contract of employment and in the learned Commissioner’s findings in relation to these matters. There was no such ambiguity as to either the terms of the contract of employment or based on the evidence and findings of the Commission.

60      It was clear from the contract of employment that performance reviews were required to only take place after the ‘initial period’ of January 2014 to December 2015 and in the last year of the second renewal period, being 2018. The evidence was, as accepted by the learned Commissioner, that the review undertaken by Mr Watson, the then Principal of the College, did not take place until 2016 as evidenced by his signature dated 26 August of that year. There was no issue in the proceedings below, that the appellant’s contract of employment was extended for the second period to December 2019.

61      As noted above, the evidence of Mr Wallace was that he met with the appellant in 2017 to discuss some issues regarding his position title and duties. As a result of this meeting, he agreed with the appellant to extend the scheduled review that was to take place in 2018, to 2019 instead. This led to a one-year extension of the contract of employment from December 2018 to December 2019.

62      However, it is the events of 2018 and 2019 that were crucial for the purposes of the appellant’s claim that the respondent had denied him contractual benefits and this appeal. The evidence of Mr Wallace was that in 2018 he commenced a review of the structure of the music and arts departments at the College. He decided to introduce a new position of ‘Director of Arts.’ The appellant’s evidence, as confirmed by the evidence of Mr Wallace, was that the appellant was off work on sick leave after term 1 in 2018, for the rest of that year. A meeting took place between the appellant and Mr Wallace in September 2018. The restructuring of the department, which was to take effect in January 2019, was discussed at the meeting. The appellant was encouraged to apply for the position of Director of Arts. The appellant was told by Mr Wallace that if he was not successful in obtaining the new position, he would retain a teaching position for 2019. The appellant did apply for the new position but was not successful.

63      In November 2018, a further meeting took place between the appellant and Mr Wallace in the presence of the appellant’s union representative. Whilst the appellant was not happy with the outcome of the restructuring process, Mr Wallace offered to pay the appellant his Head of Music promotional allowance, in addition to the salary for a teacher for 2019. In the alternative, Mr Wallace offered the appellant a redundancy package. The appellant did not accept either offer.

64      On 6 December 2018, the appellant by email to Mr Wallace of the same date, requested leave without pay for the whole of the 2019 year. Mr Wallace approved the appellant’s request and confirmed that the appellant ‘would return to work in 2020 to a full-time ongoing teacher position at Step 10 salary only’ (see witness statement Mr Wallace [22] AB298).

65      Solicitors became involved in early 2019. In subsequent correspondence between the appellant and Mr Wallace in late 2019, the appellant maintained that he had a fixed term contract of employment to the end of 2021, being the third renewed term from January 2019 to December 2021. This was despite there having been no performance review as required by the contract of employment before entry into the third renewed term and no signed agreement by the respondent, as evidenced by the lack of a signature on the third Schedule. As the appellant did not accept the respondent’s offer of a position for 2020, on 15 November 2019 Mr Wallace wrote again to the appellant to inform him that as he had not accepted an offer of an ongoing position in 2020 and had no apparent intention of returning to the College, the respondent regarded this as a repudiation of his contract of employment and his employment at the College was at an end.

66      The learned Commissioner, under the heading in her reasons ‘Extension of Second Renewal Period and Non-Renewal of Third Period’ found that the review in 2018 or 2019, as contemplated by the contract of employment, had not taken place because the appellant was absent on sick leave or leave without pay over these periods and such a review was not possible (see reasons at [45] AB 71). Accordingly, in the absence of the required review, as evidenced by the Principal not having signed the third Schedule, when also read with the Staff Appointment Policy requirements, this meant that the contract of employment was not renewed for the third renewed term to December 2021.

67      This conclusion, on the undisputed evidence, was plainly open and indeed, was the only conclusion that could have been reached by the Commission. There was no fixed term contract in existence to apply after 2019 and no basis upon which the appellant could establish his claim at first instance, for the payment of salary to December 2021.

68      This ground is not made out.

Ground 4

69      This ground of appeal asserted that the learned Commissioner erred in providing inadequate reasons for her decision to dismiss the appellant’s claim. In both his written and oral submissions before the Full Bench in relation to this ground of appeal, the appellant referred to matters such as jurisdiction; the identification of a not for profit employer as a corporate sole; the Roman Catholic Church Property Act 1911; the ‘ownership by the respondent of the EBA’; and the lack of reference by the learned Commissioner to being ‘hounded’ to accept what he described as his demotion, based on the decision in Grigson.

70      None of the above considerations are relevant to whether the reasons of the learned Commissioner were adequate. We would add that the appellant at first instance made no reference to being ‘hounded’ by the respondent in relation to the restructuring and as already noted earlier, no reliance was placed by the appellant on Grigson in this regard at first instance. It is not open for the appellant to now raise these matters on appeal for the first time.

71      In Director-General, Department of Education of Western Australia v State School Teachers Union of WA (Incorporated) [2020] WAIRC 00927; (2020) 100 WAIG 1493, Kenner SC (as he then was), referred to relevant principles to apply in considering the adequacy of reasons for decision. At [51] to [53] he said:

51 In a recent decision of the Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 Quinlan CJ, Murphy and Beech JJA summarised the legal principles as to the adequacy of a judge’s reasons at [112]:

Adequacy of reasons for decision: legal principles

112 Principles relevant to an evaluation of the adequacy of reasons include the following:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appealable error.

(3) It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party’s case and explain why that case fails.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge’s or tribunal’s consideration.

52 (See too Mt Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58; Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 at 409 – 410; Bucu v Midland Brick Co Pty Ltd (2002) 82 WAIG 743; Ruane v Woodside Offshore Petroleum Pty Ltd (1991) 71 WAIG 913)

53 In Marshall, McClure JA referred to the obligation on a judge to give reasons and at [247] - [249] and said:

Adequacy of reasons

247 The trial Judge was under a duty to give reasons. In determining the adequacy or sufficiency of the reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson (1999) 21 WAR 226 at 248 per Owen J. The function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error and to provide procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful. It is sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson at 248.

248 However, reasons need not be lengthy and elaborate nor do they require reference to all of the evidence led in the proceedings or every submission advanced by the parties: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [28]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

249 Further, as the Full Court stated in Mount Lawley Pty Ltd v Western Australian Planning Commission at [29], inadequacy of reasons does not necessarily amount to an appealable error; an appeal court will only intervene when the inadequacy or insufficiency in the reasons are such as to give rise to a miscarriage of justice.

(Footnotes omitted)

72      There is no substance in this ground of appeal. The learned Commissioner set out in her reasons the relevant issues for determination and made findings and reached conclusions open to her on the evidence. The reasoning process is clearly revealed in her reasons, and, in relation to the area of specific complaint by the appellant (at [52] to [57] of the reasons), the learned Commissioner set out relevant provisions of 2012 Agreement and their application to the facts as she found them.

73      We are far from persuaded that the Commission’s reasons were inadequate, in the sense as described in the authorities referred to above.

Ground 5

74      As with ground 3, whilst he attempted to do so, no reference can be made by the appellant to the witness statement of Mr Watson, whose evidence was not before the Commission at first instance.

75      As we understood the appellant’s submissions in relation to this ground, it was contended that the learned Commissioner was in error in concluding that the performance reviews that were required to be undertaken, were a part of the contract. The appellant also complained that the performance reviews were ‘not thoroughly examined due to an absence of witnesses and lack of opportunity for the applicant to cross-examine’.

76      Whilst the appellant referred to [45], [47] and [48] of the learned Commissioner’s reasons, only [45] dealt with the performance review. The learned Commissioner made no error in concluding that the performance reviews were part of the process of contract renewal, as included in the contract documents, set out above. 

77      In any event, nothing raised in this ground of appeal is relevant to the ultimate decision of the learned Commissioner, as the only renewal period that arose for consideration at first instance, and that which was relevant to the appellant’s claim for the payment of the balance of his contract to December 2021, was the third and final renewal term. No performance review took place for this final term, for the reasons identified by the learned Commissioner at [45] (AB71).

78      This ground of appeal is not made out.

Ground 6

79      As noted earlier when referring to the preliminary applications brought before the hearing of the claim on the merits, the name of the respondent was changed by an order of the Commission on 1 July 2020: Adrian Doyle v Roman Catholic Bishop of Bunbury [2020] WAIRC 00385; (2020) 100 WAIG 559. This was in response to an application made by the appellant. No issue was taken with the proper identity of the respondent at any time during the proceedings at first instance. Considering this, it is not open for the appellant to now challenge the Commission’s decision based on submissions which, with due respect to the appellant, we had considerable difficulty in understanding.

80      Matters raised in the appellant’s written submissions, including the corporate restructuring of the respondent and governance and employment arrangements for Catholic Schools in Western Australia, which may have taken place after the appellant’s employment ceased, are not relevant to the present appeal.

81      This ground is not made out.

Grounds 7(a) and 7(b)

82      As to grounds 7(a) and 7(b), the appellant referred to an earlier decision of Matthews C in application 48 of 2019, in which the Commission dealt with an application by the appellant under the Employment Dispute Resolution Act 2009 (WA): Adrian Doyle v Mandurah Catholic College [2020] WAIRC 00234. In that matter, Matthews C dismissed the application, purportedly made by the appellant under a referral agreement for the purposes of s 12(1) of the EDR Act.

83      In his decision, Matthews C concluded that to be able to make an application under a referral agreement, for mediation under the EDR Act, a person had to be a party in this case, to the 2015 Agreement. As only the respondent and the Independent Education Union of Western Australia were parties to the 2015 Agreement, the appellant had no standing to bring the application.

84      The outcome of those proceedings is not relevant to whether the appellant was denied a contractual benefit by the respondent. The issue is also quite different to whether the 2012 Agreement was incorporated into the appellant’s contract of employment with the respondent, as found by the learned Commissioner.

85      Also, in relation to these grounds of appeal, the appellant contended that the learned Commissioner made no reference in her decision to several other provisions of the 2012 Agreement. However, none of these provisions of the 2012 Agreement were relevant to the appellant’s claim to a denied contractual benefit, in any event. Whether the respondent failed to comply with these other various provisions of the 2012 Agreement, is a matter of enforcement, exclusively within the jurisdiction of the Industrial Magistrate’s Court under Part III of the Act. This is not a matter that we can be concerned with on this appeal.

86      Whilst ground 7(b) of the appeal grounds specifically referred to the restructure of his department and alleged error of the learned Commissioner in ‘allowing the restructure and dismissal without consent’, these matters were not developed in the appellant’s submissions on the appeal. To the extent that the ground as stated is maintained, the answer to it lay in the terms of the 2012 Agreement. As found by the learned Commissioner, the terms of the 2012 Agreement in cls 23 and 35 dealt with consultation, introduction of change and redundancy. Clause 25, enabling the termination of the appellant’s employment on the giving of six working weeks’ notice, was also relevant. As found by the learned Commissioner at [55]-[56] of her reasons (AB72), the then Principal Mr Wallace notified the appellant of the proposed changes, in the presence of his union representative. Options were considered and offered to the appellant. The appellant elected to not take up the alternatives put forward by the employer. The respondent was entitled to act as it did, in accordance with the 2012 Agreement and the contract of employment.

Conclusion

87      For the foregoing reasons, the appeal is dismissed.