WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES POLLOCK NOMINEES PTY LTD

APPELLANT

 -v-

 JAMES LESLIE BUTTERFIELD

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER A R BEECH

  COMMISSIONER J H SMITH

DELIVERED MONDAY, 5 FEBRUARY 2001

FILE NO/S FBA 50 OF 2000

CITATION NO. 2001 WAIRC 01973

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Decision  Appeal upheld on the basis of Ground 6 and the order at first instance varied, and otherwise appeal dismissed.

Appearances

Appellant   Mr A R Beer, as agent

Respondent   Mr B F Stokes, as agent

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Reasons for Decision

THE PRESIDENT:

1                 This is an appeal against the decision of the Commission, constituted by a single Commissioner, made on 13 October 2000 in matter No 604 of 2000, being against orders 7, 11, 12, 15 and 16 in the decision.  That order was delivered on 13 October 2000 and deposited in the office of the Registrar on 16 October 2000.

2                 The Notice of Appeal was filed on 3 November 2000.  The appeal is made pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

GROUNDS OF APPEAL

3                 The grounds of appeal upon which the decision is appealed against are as follows:-

  “1) That the applicant, Mr James Leslie Butterfield, is to be reinstated at the Jackson Road site Goldfields Contracting Pty Ltd owns this site.

  2) The shortage of work has been misunderstood to be at the Jackson Road site and not the Kalamunda Road work site.  The Kalamunda Road work site is where Mr. Butterfield was employed.  This site has now closed.

  3) The amount of $31,018.43 ordered to repay, being the loss of earnings, should be reduced by the amounts for annual leave and notice in lieu, which was paid in the termination pay.  The total amount is $6,036.10.

  4) The amount of $31,018.43 should also be reduced by Mr. James Butterfield’s Centrelink payments he received as unemployment benefits for the corresponding period.

  5) Reinstatement is not possible due to the fact that Pollock Nominees has ceased to operate; therefore, there are no positions available.”

4                 At the conclusion of the submissions for the appellant, the appellant sought leave to amend the grounds of appeal to add Ground 6 in the following terms:-

  “6) That the Commission at first instance erred in that it ordered that amounts said to have been lost or not paid to the respondent between the date of dismissal and the date of the order appealed against be paid.”

 Leave was granted and the amendment made.

5                 There was an application filed on 17 November 2000 to amend the orders sought in the following terms:-

  “We would like the order to be referred back to the Commissioner as Pollock Nominees has ceased to operate.”

6                 It is to be emphasised that there was no appeal against the finding that Mr James Butterfield was unfairly dismissed.

BACKGROUND

7                 The respondent, Mr Butterfield, commenced employment with the appellant on 9 September 1994 as a boilermaker welder.  Mr Butterfield made application pursuant to s.29 of the Act seeking reinstatement because, after completion of six years of work as a boilermaker welder, he was able to apply for a trade certificate with the support of his employer and he wished to pursue that course of action.

8                 Mr Butterfield performed his work on behalf of the appellant both at sites in the metropolitan area and at various mine sites throughout the State.

9                 Upon Mr Butterfield’s arrival at the Jackson Road site late on 13 April 2000, he was told by Mr Terry Nuttall to pack his tools up and go to the Kalamunda Road site and to see Mr Bill Campbell, the appellant’s supervisor there, which he did.  Mr Campbell told him that there was no work for him and asked him did he want “his missus to come and pick [him] up”.  Mr Campbell telephoned Mr Archie Beer to arrange for Mr Butterfield’s pay to be made up and told Mr Butterfield to go and pick his pay up from the company’s Welshpool Road office.

10              Mr Butterfield’s wife collected him and his tools from the Kalamunda Road site and took him to the Welshpool Road office where he was given a cheque for his final pay.  He was paid one week’s pay in lieu of notice, rather than the five weeks required by the Workplace Relations Act 1996 (Cth).  The appellant acknowledged that the additional four weeks was due and payable.  Mr Butterfield was paid all other entitlements and the appellant provided him with an employment separation certificate and a statement of service, both of which said that his employment was terminated due to “shortage of work”.  He was, therefore, dismissed by his employer on 13 April 2000.

11              Mr Butterfield was never, at any time, advised that his job was in jeopardy nor was he counselled about his performance, his punctuality or his absenteeism.  The only occasion upon which any such issue was raised was when Mr Campbell advised him in early 1999 that he should “pull his socks up” regarding his attendance.  Mr Butterfield said that there was not a shortage of work and estimated that, at the time of his termination, there was at least three months work available for someone of his classification.  He also said that the appellant engaged another boilermaker welder, Mr Fred Shortland, at the Kalamunda Road site on Monday, 10 April 2000, who did the same work as he did.

12              That is the background of the matter, based on the findings of the Commission at first instance, which findings were not challenged and were based on uncontradicted evidence at first instance.

FINDINGS

1. The Commissioner accepted Mr Butterfield’s evidence, there being no evidence to the contrary.

2. The Commissioner found that Mr Butterfield had been harshly, oppressively and unfairly dismissed from his employment.

3. The Commissioner was satisfied that there was at least three months work for a boilermaker welder and that another boilermaker welder was employed only four days before the termination of employment.

4. The termination, on the basis of an alleged redundancy, was not supported by the material before the Commission and it was not the true reason for termination.

5. Mr Butterfield’s employment was terminated on account of his being late on the day of termination and, perhaps, on the previous day.

6. In this case, there was no evidence that Mr Butterfield was counselled beyond being told in early 1999 to “pull his socks up” in relation to his absenteeism.

7. There was no evidence that he was warned that his job was in jeopardy for reasons of punctuality or absenteeism, or for any other reason.

8. In all of the circumstances, for an employee of almost six years’ standing who had been working approximately 60 hours per week in the recent past and similar, if not the same hours, over most of his employment, it could not be said that he was given a fair go by the appellant in deciding to terminate his employment.

9. If the reason for dismissal was the absenteeism or the lateness to work, these do not justify an employee simply being told there is no work for him.

10. There is an obligation on the employer to have made Mr Butterfield aware of its intentions and provide him with a reasonable opportunity to meet the standards which the appellant required.

11. It is important to note that, notwithstanding that Mr Butterfield said that he believed that an employee should be entitled to take their birthdays off, employees are obliged to attend work unless they are ill or for other good reason and that, under normal circumstances, they should advise their employer of their absence as soon as they are able.

12. Mr Butterfield was harshly, oppressively and unfairly dismissed.

13. There was no evidence that reinstatement would not be practicable.  The appellant did not challenge Mr Butterfield’s assertion that he could work together with the appellant to re-establish a working relationship.  Although Mr Beer, for the appellant, said that the appellant would not be keen on reinstatement, this did not make reinstatement impracticable.

14. Mr Butterfield should be reinstated.

15. The appellant should be ordered to pay Mr Butterfield for all wages lost during the intervening period.

13              Save and except for the findings in paragraphs 14 and 15 supra, there was no challenge to any of those findings on appeal.

Application to Re-open

14              After the Minutes of Proposed Order issued and after the order issued on 13 October 2000, pursuant to Order 4 of that order, Mr Butterfield applied to re-open the hearing “to amend respondent’s name to include Whitefire Enterprise P/L”.

15              There was another application by Mr Butterfield to abridge time made on 16 October 2000 which was not pursued.

16              The application, filed on 13 October 2000, alleged that “Whitefire Enterprises Pty Ltd” took over and commenced paying, as at 1 July 2000, Boilermaker/Welders previously employed by the respondent.  The application was misnamed.  It was really an application to substitute Whitefire Enterprises Pty Ltd or add it as a party.

17              It is difficult to understand why the agent for Mr Butterfield left the application so late.  There seems to have been evidence adduced by statement from the bar table in support of that application.  In any event, the application, whatever its nature, was dismissed so that there was no leave to re-open and no other order.

18              What is significant is that the application was not made until the Minutes of Proposed Order issued and was not disposed of until the order appealed against was perfected, i.e. formal orders had issued.

19              The evidence before the Commission upon the application was not evidence in the substantive proceedings, such evidence not having been adduced or no leave having been given to re-open to adduce that evidence.  There was no evidence before the Commission of the existence of Whitefire Enterprises Pty Ltd in the proceedings which led to the order made and now appealed against.

20              That evidence was therefore not considered and could not properly be.  The evidence before the Commission at first instance and unchallenged was that the employer was the appellant in these proceedings.  In any event, that the decision of the Commission not to permit a re-opening or “a change of the respondent’s name” was not appealed against in these proceedings.

THE STATUS OF THE APPELLANT

21              It was common ground that the appellant is a company duly incorporated.  Because the grounds of appeal alleged that Pollock Nominees Pty Ltd had ceased to operate, it was necessary for the Full Bench to make inquiries as to the status of the company, namely whether it had been wound up, whether a liquidator had been appointed, or whether a receiver or administrator had been appointed.  This was necessary in order to ascertain whether the Corporations Law would operate to prevent the appeal proceeding until the necessary consent was obtained, or at all.

22              It was asserted by the Directors in writing that none of those events had occurred (see exhibit 2).  This assertion was accepted by Mr Stokes, as industrial agent for Mr Butterfield.  It is, therefore, clear that the company is in existence, and that the Full Bench was not prevented or inhibited from hearing the appeal by the operation of the Corporations Law (see Helm v Hansley Holdings Pty Ltd 79 WAIG 1860 (IAC)).  In any event, there was no contention that it was so prevented or inhibited.

23              However, other than for that purpose, that evidence could not, by operation of s.49(4) of the Act, be before the Full Bench upon appeal.

APPEAL

Ground 6

24              There is no appeal against the declaration of unfairness at dismissal.

25              Ground 6 was conceded on behalf of Mr Butterfield by Mr Stokes.  This ground alleged that the Commissioner erred in ordering the payment of monies which the Commissioner ordered to be paid, being wages and other remuneratory items not paid or lost by Mr Butterfield because of unfair dismissal.

26              Ground 6 is based on City of Geraldton v Cooling 80 WAIG 5341 (IAC) which is authority for the proposition that an order for compensation following a dismissal is not within power if an order for reinstatement was made, as it was here.

27              Accordingly, Grounds 3 and 4 become otiose and fall away.

28              In this case, Order 3 was made to effect such a payment and is not within power.  It was made in error.

29              I would uphold the appeal on the basis that Ground 6 is made out and vary the order made at first instance by deleting Order 3.

30              It is fair to observe that the decision of the Industrial Appeal Court in City of Geraldton v Cooling (IAC) (op cit) was not delivered with its reasons until after the order appealed against issued.

Grounds 1, 2 and 5

31              These grounds attack the order for reinstatement on the following bases:-

(a) That the order for the reinstatement of Mr Butterfield was at the Jackson Road work site which is said to be owned by Goldfields Pty Ltd and not the appellant.

(b) That Mr Butterfield was employed at the Kalamunda Road work site which has now closed.

(c) That reinstatement is not possible due to the fact that Pollock Nominees Pty Ltd has ceased to operate. 

32              These grounds of appeal were sought to be supported by evidence which was not before the Commission at first instance.  It was not contended at first instance that Pollock Nominees Pty Ltd had “ceased to operate” or that it was not, at all material times, Mr Butterfield’s employer.  There was no evidence, either, before the order appealed against was made that Pollock Nominees Pty Ltd was not Mr Butterfield’s employer, and the Commissioner so found.

33              It was not contended nor was there evidence before the Commission at first instance that there was any practicable reason why Mr Butterfield should not be reinstated.  It was not contended before the order was made at first instance, nor was leave given to re-open to permit any such evidence to be given, that Pollock Nominees Pty Ltd had “ceased to operate”.  There was no application to vary the order on the basis of any such evidence, if such an application were competent, which is doubtful.

34              Further, there was no evidence at first instance that the Kalamunda Road work site had closed.  The Commissioner found correctly that Mr Butterfield, as an employee of the appellant, worked at various sites throughout the State.  Next, Order 2 is not an order restricting reinstatement to reinstatement in employment at any particular site.  The order directs Mr Butterfield to attend for work at the Jackson Road site (where he had been working before he was dismissed) and then requires the appellant to reinstate Mr Butterfield in employment in no less favourable conditions than applied to him during his employment by the appellant.  That employment was not employment at a site.  The order is one for reinstatement in employment.  It does not purport to direct at which site Mr Butterfield will be employed.

35              In any event, even if the evidence of Pollock Nominees Pty Ltd’s status were permitted to be received, which s.49(4) of the Act prohibits, then it is clear that the evidence would be that Pollock Nominees Pty Ltd is still in existence, albeit “not operating”, and reinstatement could occur.

36              The appellant called no oral evidence at first instance of what occurred after the order was made or evidence of what occurred before the order was made, which was not adduced.  It would not seem to be admissible as fresh evidence (see FCU v George Moss Limited 70 WAIG 3040 (FB)).  In any event, too, the appellant is bound by the case which it conducted at first instance (see Metwally v University of Wollongong (1985) 60 ALR 68 (HC).

37              Further, those grounds rely on questions of fact not determined at first instance and not raised at first instance.  They raise grounds raised for the first time in this court, a court of appeal.  They raise matters of evidence which should have been adduced and raise issues which should have been determined at first instance.

38              These grounds are incompetent and should be struck out because they offend s.49(4) of the Act and because they offend the principles laid down in Metwally v University of Wollongong (HC) (op cit); in Coulton and Others v Holcombe and Others [1986] 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ; and Suttor v Gunowda Pty Ltd (1950) 81 CLR 418 at 438 per Latham CJ, Williams and Fullager JJ, where Their Honours said:-

  “The circumstances in which an appellate court will entertain a point not raised in the court below are well established.  Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.  In Connecticut Fire Insurance Co. v. Kavanagh (1), Lord Watson, delivering the judgment of the Privy Council, said, “When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea.  The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.” (2).  The present is not a case in which we are able to say that we have before us all the facts bearing on this belated defence as completely as would have been the case had it been raised in the court below.”

 (See also Western Australian Land Authority and Others v Simto Pty Ltd and Others (unreported) [1998] WASCA 262 Library No 980560 (delivered 25 September 1998) Supreme Court of WA (FC) at 25-28 per Malcolm CJ; also Caltex Australia Petroleum Pty Ltd and Another v Commissioner of State Revenue (2000) 22 WAR 299 (FC) at 306 per McKechnie J.)

39              Insofar as Grounds 1, 2 and 5 are concerned, I would find them not made out and dismiss them, for those reasons.

OTHER MATTERS

40              I would also observe that the liberty to apply provision in the order, which is not appealed against, was not a general liberty to apply and that the only application possible under it has been heard and dismissed.

41              There was a suggestion that the order for reinstatement was not going to be availed of, later contradicted by Mr Stokes, when I asked whether the appeal was moot.  There was no suggestion, on the part of the appellant, that it did not see reinstatement as a live issue.  Accordingly, I therefore take the matter no further.

42              In the course of proceedings, Mr Stokes made what I understand to be an oral application for leave to make an application pursuant to s.23(3)(b) of the Act.  That was withdrawn when the Full Bench pointed out the nature of such an application as one to be made to the Commission at first instance.  It is simply not a matter within the jurisdiction of the Full Bench.  It is difficult to understand how such an application to the Full Bench should have come about.

FINALLY

43              The appeal should be upheld, in my opinion, on the basis of Ground 6, and the order varied as I have proposed above.

44              The order for reinstatement was not made as a result of any miscarriage of discretion in the Commission at first instance (see House v The King [1936] 55 CLR 499 and Gromark Packaging v FMWU 73 WAIG 220 (IAC); see also Norbis v Norbis (1986) 161 CLR 513).

45              There was no good reason advanced to the Full Bench that the other grounds of appeal have been made out.  I would otherwise dismiss the appeal.

COMMISSIONER A R BEECH:

46              I have had the advantage of reading in advance the Reasons for Decision of His Honour the President and I agree with the Orders to issue.

47              There are two matters which I wish to add.  The first concerns the initial query raised by Mr Stokes regarding Mr Beer’s appearance before the Full Bench representing the appellant.  Mr Stokes submitted that Mr Beer could not be an agent for the purposes of the Industrial Relations Act 1979 unless he is a registered agent pursuant to section 112A of the Act.  That submission must be without foundation.  Section 31 of the Act provides that any party to proceedings before the Commission may appear in person or by an agent.  In some circumstances, they may appear by a legal practitioner.  There is no reason in s.31 why Mr Beer could not be an agent for the appellant.  The Commission’s Regulations provide for the appointment of an agent in writing in a certain form, and this was eventually done to the satisfaction of the Full Bench. 

48              If a person carries on business as an industrial agent as that is referred to in section 112A, then that person will commit an offence unless he or she is registered under the section, or is a legal practitioner.  A simple reading of the words reveals that a person who appears as an agent but who is not carrying on the business of an industrial agent does not require to be registered.

49              The second matter that I wish to note is that the grounds of appeal numbered 1, 2 and 5 really concern matters about which the appellant produced no evidence before the Commission at first instance.  Although Mr Beer drew the attention of the Full Bench to a note in its Estimate of Applicant’s Loss of Earnings (AB 12) tendered to the Commission at first instance that:

  “As from the 1st July 2000 Pollock Nominees ceased to exist”

 that note was effectively counted by the submission of 13 October 2000 before the Commission at first instance (transcript pages 5/6) that Pollock Nominees Pty Ltd is still a going concern. 

50              As the documentation produced to the Full Bench for the purposes of Mr Beer’s standing to appear reveals, Pollock Nominees Pty Ltd has not ceased to exist at all.  It may have taken a decision that it shall cease to trade.  It may even be a fact that it had no employees at the time of the making of the Order at first instance.  However, as a matter of law the company was still in existence at the date of the Order at first instance and as a matter of law it was possible for the appellant to reinstate Mr Butterfield.  What it might then do with him, including where it might then transfer him, would be a matter for the appellant pursuant to the contract of service between it and Mr Butterfield.  For that reason alone, the ground of appeal alleged by Pollock Nominees Pty Ltd that it was not “possible” to reinstate Mr Butterfield is simply not sustainable.

COMMISSIONER J H SMITH:

51              I have had the benefit of reading in draft the reasons to be published by the President.  For the Reasons His Honour gives, I agree the Appeal should be dismissed and I have nothing further to add.

THE PRESIDENT:

52              For those reasons, the appeal should be upheld on the basis of Ground 6 and the order at first instance varied, and otherwise the appeal is dismissed.

Order accordingly