WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CRAIG LEONARD HORNSBY

APPELLANT

-and-

Elders Limited

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Commissioner S J Kenner

 Commissioner S Wood

HEARD THURSDAY, 18 MAY 2006

DELIVERED TUESDAY, 6 JUNE 2006

FILE NO. FBA 9 OF 2006

CITATION NO. 2006 WAIRC 04463

CatchWords Industrial Law (WA) – Appeal against decision of the Commission – Summary dismissal - Alleged unfair dismissal - Application for order under s29 of the Industrial Relations Act 1979 (as amended) in respect of a claim for harsh, oppressive or unfair dismissal - Appeal against exercise of discretion - Lawful and reasonable directions of employer - Employee failing to attend work as directed - Appeal dismissed - Industrial Relations Act 1979 (as amended), s29, s49

Decision Appeal dismissed

Appearances

Appellant Mr A Atkinson (of Counsel), by leave

Respondent Mr A Cameron (of Counsel), by leave

Reasons for Decision

THE FULL BENCH:

The Procedural Background

1         This is an appeal pursuant to s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).  The appeal is against a decision of the Commission given on 24 February 2006.  The decision was to dismiss the appellant’s application to the Commission made under s29 of the Act.  The application, when filed on 9 June 2005, sought an order in respect of a claim for harsh, oppressive or unfair dismissal.  An amended notice of application was filed on 13 September 2005.  This application sought orders in respect of a claim for both harsh, oppressive or unfair dismissal and outstanding contractual benefits.  During the hearing of the application, however, the Commission was advised that the claim for outstanding contractual benefits had been resolved so that the parties only required a determination of the application for an order in respect of the claim for harsh, oppressive or unfair dismissal.

2         This claim was made with respect to the appellant’s dismissal from his employment with the respondent on 16 May 2005.  The appellant had been employed as a real estate sales representative.  His employment had commenced on 15 September 2003 pursuant to a written contract of employment.

3         The application was heard on 5 and 6 December 2005.  The hearing was adjourned on 6 December 2005 on the basis that the respondent wished to lead some additional evidence.  It appears however that the parties resolved the need to call the additional evidence and the respondent simply filed by consent an additional exhibit.  The parties then filed written closing submissions.  A decision on the application then stood reserved until the order dismissing the application was published on 24 February 2006.  On the same date, the Commission published its reasons for decision.  The notice of appeal to the Full Bench was filed on 16 March 2006.

The Appellant’s Dismissal

4         The dismissal of the appellant was a summary dismissal in that he was not provided with notice or the payment of an appropriate sum in lieu of notice.  The reasons for the summary dismissal were contained in a letter to the appellant dated 12 May 2005 which was signed on behalf of the respondent by Mr Tom Marron.  Mr Marron was the Manager of the respondent’s office in Albany where the appellant had been employed.  The letter was an exhibit at the hearing of the application and, omitting formal parts, is in the following terms:-

“Please be advised that due to your deliberate actions in refusing to reimburse the company for monies owed to it in relation to support provided to you by the provision of a Personal Assistant, which you agreed to do and have done until recently as well as your continued refusal to follow a legitimate management directive to attend for work in Albany, the Management of Elders Real Estate WA P/L have been left with no alternative but to terminate your employment as a real estate sales person with the company with immediate effect.

The company confirms that there was an agreed business arrangement in place, confirmed by Management, whereby the Company appointed a Personal Assistant to assist you drive your own sales on the basis that Elders would subscribe to all Uniforms, Annual Share Issue, Holiday Pay, Superannuation and advance the base salary for Sarah Dunet.  In exchange for this support you agreed to reimburse the Company for Sarah’s base salary only.  The company would issue you with a Tax Invoice for the salary component and you agreed to reimburse the company for this amount as and when required.

Despite numerous requests from Management both verbally and in writing you have refused to honour that agreement and reimburse the company the costs associated with Sarah’s employment with you.

Additionally your attitude to Management in its attempt to resolve this matter has been less than acceptable.

This has resulted in a direct breach of your obligations to the Company.

The company also originally enrolled you in the current Real Estate Licensees Course in Perth.  This offer was subsequently rescinded and confirmed to you both verbally and in writing due to your non-payment of the outstanding monies relating to Sarah’s employment for you.

However you chose to ignore these instructions and attend the Course without the Company sanction or notification to Management that you would not be attending work in Albany on Monday 9th May 2005.

You also confirmed to Ray Armstrong that you were aware that your enrolment in the Course had been placed on hold pending the resolution of the above matter and yet you still advised that you were attending the Course without company approval to do so.

On Monday 9th May at 6pm, Ray Armstrong the Licensee of the Albany Branch instructed you to return to the Office in Albany the following day and recommence your normal duties.  He advised you that failure to do so could result in your dismissal.  On Tuesday the 10th May we were advised that you had not returned to the Office but actually remained at the Course in direct contravention of the directive given to you from Management.

By your actions, firstly, you have blatantly ignored a legitimate management instruction to return to work secondly, you have abandoned your position as a salesperson for the company and finally you have committed a serious breach of your employment that has left us with no option but to terminate your employment forthwith.

You are hereby required to return all keys and company Listing files to the Albany Office with immediate effect.  Any monies owing to you will be paid up to time of dismissal only.

Should you have any further issues in relation to the action taken then please contact the undersigned.”

The Hearing

5         At the hearing, the appellant gave evidence in support of his application.  He also called evidence from his accountant, Mr Richard Hudson.  This evidence was directed to the issue of whether it was lawful for the respondent to deduct the amount of the wages for the appellant’s personal assistant (Ms Dunnet) from outstanding commissions owed to the appellant.  This had become an issue between the appellant and the respondent.  The parties had agreed that the appellant would reimburse the respondent for their payment of Ms Dunnet’s wages, but were in dispute about how this would be achieved.  The appellant wanted the amount to be deducted from his commission payments.  The respondent maintained this was unlawful or against company policy.  It issued the appellant with invoices for the cost of Ms Dunnet’s wages and wanted the appellant to pay the invoiced amount.

6         The respondent led evidence by Mr Peter Storch, Mr Raymond Armstrong, Mr Marron and Ms Dunnet.  Mr Storch was the real estate manager for the respondent.  As part of that role, Mr Storch was responsible for the overall profit of the real estate business in the Elders Western Australia Group.  This included matters relating to recruitment, employed staff, attending key clients and assessing financial figures.  Mr Armstrong was, at material times, the licensee for the respondent’s Albany office.  We have already referred to the positions held by Mr Marron and Ms Dunnet with the respondent.  Ms Dunnet had been employed by the respondent as the appellant’s personal assistant from January 2005.  On 3 May 2005, she gave notice of her resignation from this position as of 13 May 2005.  Her letter of resignation (to the appellant) advised that she had accepted a position as a sales representative with the respondent.

7         The appellant’s case at the hearing was summarised in paragraph [17] of the Commission’s reasons for decision.  The appellant did not criticise this summary during the appeal and it may be relied upon as accurately, although not comprehensively, setting out the appellant’s case at first instance.  The paragraph was as follows:-

“The Applicant’s case, in brief, is that his termination which is said to be summary can be traced back to Elders dissatisfaction with him not making a payment in the manner it required for costs involved with the employment of his personal assistant.  The Applicant says Elders were unreasonable in this respect in that it had maintained to deduct the payment from commission payments was unlawful, when it was clearly not in the opinion of the Applicant’s Accountant.  In any event Elders had used that method of deduction when the first personal assistant was employed.  The Applicant had made every effort to explain to Elders that the payments were not unlawful and he believed he resolved that issue with them on 6th May 2005.  By Elders then withholding consent to attend the TAFE Tri-annual certificate course can only have been intended to compel the Applicant to make the payment in the manner preferred by Elders.  Once that issue was resolved on 6th May 2005 there was no basis to withhold the consent.  In any event the requirement by Elders that the Applicant leave the course and come back to Albany overnight was unlawful and unreasonable because it required prolonged driving after hours until the early hours of the morning.  This means that on the test to be applied in Undercliffe Nursing Home v Federated Miscellaneous Workers Union (1985) 65 WAIG 385 the decision to dismiss was harsh, oppressive and unfair.”

The Facts in Greater Detail

8         To understand the grounds of appeal, it is necessary to elaborate upon the facts summarised in the paragraph just quoted from the Commission’s reasons.  The reference to the appellant’s “first personal assistant” is a reference to a Ms Jessica Clapp who had been employed by the respondent as the appellant’s personal assistant.  She was employed for a six week period commencing in March 2004.  It had been agreed between the appellant and Mr Marron that Ms Clapp’s wages, superannuation and other employment costs would be borne by the respondent, but that the appellant would repay to the respondent the amount of Ms Clapp’s wages.  The repayment was to be achieved by deducting the amount of Ms Clapp’s wages from the commission payments to be made to the appellant by the respondent.  This in fact occurred during the short duration of Ms Clapp’s employment.  The appellant’s employment by the respondent was remunerated on a commission only basis.  He was paid 45% of the commissions earned by the respondent on real estate listed and sold by the appellant. 

9         After Ms Clapp’s resignation, the appellant did not have a personal assistant for the remainder of 2004.  His evidence was however that he went to see Mr Marron in November 2004 for approval to employ another personal assistant.  The appellant’s evidence was that Mr Marron agreed to this as long as it was on the same terms and conditions under which Ms Clapp had been employed.  It should be noted that Mr Marron, when he gave his evidence, did not agree that this had occurred.  In his evidence-in-chief, Mr Marron said that he only recalled having “the original discussion” about a personal assistant.  By this he meant the discussion which led to the employment of Ms Clapp.  Mr Marron’s evidence-in-chief was that he did not know about the appointment of Ms Dunnet until his attention was drawn to an advertisement in the newspaper, after he had been away during the Christmas 2004 period.  Mr Marron said he then went to see the appellant.  Mr Marron said that the appellant informed him that he had already interviewed somebody for the position and appointed Ms Dunnet.  Mr Marron said that this occurred on about 4 or 5 January 2005.  Mr Marron said there were difficulties occasioned by the appointment because there had been a staff freeze and he referred the matter to Mr Storch.  Under cross-examination, Mr Marron said he did not recall having a conversation with the appellant about the terms of employment of Ms Dunnet.  Mr Marron reiterated his lack of knowledge of the appointment in his re-examination.

10      The appellant’s evidence was that, after Ms Dunnet had commenced her employment, he received telephone calls about this from Mr Armstrong.  Mr Armstrong was unhappy about Ms Dunnet’s employment.  In particular, he was unhappy about the respondent having to pay for Ms Dunnet’s annual leave loading, superannuation, payroll tax and workers’ compensation.  He sent an email to the appellant dated 19 January 2005 requesting that the appellant reimburse the respondent not only for Ms Dunnet’s wages but also for the payment of her annual leave loading, superannuation, payroll tax, workers’ compensation and annual issue of Futuris shares.  The appellant’s evidence was that he did not agree with this.  He sent an email to Mr Armstrong on 28 January 2005 stating that Ms Dunnet was employed as a replacement for Ms Clapp and under the same terms and conditions as approved by Mr Marron on 30 November 2004.  The email said that, as far as the appellant was concerned, Ms Dunnet was working on the same terms as Ms Clapp.  The appellant said that the next development was that he had a discussion with Mr Storch in February 2005 when Mr Storch came to Albany for a branch meeting.

11      Mr Armstrong’s evidence was that he became involved after the appellant appointed Ms Dunnet to the position and that the respondent had to “accept that that was done and negotiate a package which was consistent with the Elders policy as well” (T116).  This answer was given in explanation of the sending of the email dated 19 January 2005.

12      The appellant’s evidence was that, at his meeting with Mr Storch in February 2005, it was agreed that the respondent would employ Ms Dunnet on the same basis as Ms Clapp.  That is, that the appellant would in effect pay Ms Dunnet’s wages and the respondent would pay her additional employment costs.

13      Mr Storch’s evidence differed from this.  He said that he got involved in the dispute at Albany regarding the employment of Ms Dunnet because “it was a saga that was dragging on” (T72).  Mr Storch said that he spoke to the appellant on 2 February 2005 about the employment of Ms Dunnet.  Mr Storch said that he and the appellant agreed that the respondent would pay Ms Dunnet her wages and that the appellant would “reimburse us each month by the way of a tax invoice” (T72).  Mr Storch also said that he agreed with the appellant that the respondent would pay for Ms Dunnet’s company uniform, annual leave and superannuation.  Mr Storch said that the appellant informed him that Ms Dunnet was working 30 hours per week at $16.00 per hour.  Mr Storch said he made a note of the details of the agreement in his diary, a copy of which was exhibited at the hearing.  Mr Storch said in his evidence that he told the appellant that, due to tax implications, Ms Dunnet could not be paid as per the previous arrangement and that the respondent would be issuing him with a tax invoice each month and that the respondent would require payment by him on the issue of that tax invoice.  Mr Storch said that the appellant did not disagree with this method of repayment.

14      Mr Storch also said that, in December 2004, he had received a telephone call from the Adelaide head office of the respondent to the effect that the respondent was paying a lady in Bunbury an advance against commissions.  Mr Storch said he was told this had serious taxation implications “and the Elders system couldn’t handle that and her words were to me that that action has to be stopped immediately otherwise people’s jobs could be at risk” (T74).  Mr Storch said he made some enquiries as a result of this information and then proceeded to write out a procedures manual on 16 December 2004.  The issue of not making an advance against commissions was one of the items which was mentioned in the procedures manual that was to be sent to all sales people.  Mr Storch’s evidence was that the system of reimbursement for Ms Dunnet’s wages which was being sought by the appellant would have involved advances against commission and was therefore contrary to the policy he had written (T74).  Mr Storch said that, after his meeting with the appellant in February 2005, he then issued instructions for a contract of employment to be drawn up for Ms Dunnet.

15      According to the appellant’s evidence, the next relevant event was that, in April 2005, he received a tax invoice from the respondent.  It was sent to him by Ms Therese Healy who was the office manager of the respondent in Perth.  The tax invoice was dated 29 March 2005 and was for “Sara Dunnet – 60 hours per f/night @ $16.00 per hour”.  The invoice contained an amount of $2,080.00 for each of January, February and March, making up a total of $6,240.00.  The appellant’s evidence was that he did not do anything about the invoice immediately after receiving it and he received a telephone call from Ms Healy about two weeks later asking for payment.  The appellant said he asked how the payment had been calculated because it was different to his calculations.  He asked whether there was a GST component and whether the amount had been deducted from his “gross salary”.  The appellant said Ms Healy told him it was “illegal to deduct it from the gross salary.  She said that the amount was correct and I had to pay it” (T25).  The appellant said that was the end of the conversation.

16      The appellant also gave evidence about his acceptance by TAFE WA for enrolment in the Diploma in Property (Real Estate) course to commence in May 2005.  The course was also referred to as the Triannual Certificate.  The appellant said he received a letter from TAFE WA dated 21 April 2005 advising that he had secured a position for the course.  At this time, the appellant had not been approved to attend the course by the respondent.  The course involved a total of 35 days’ classroom attendance over a period of some seven months with the first five days commencing on Monday, 9 May 2005.

17      The appellant said he discussed his participation in the course with Mr Storch when he attended the Albany branch meeting in late April 2005.  The appellant said Mr Storch agreed he could attend at the course because of his good work performance and the desire of the respondent to expand within the Albany area.  The appellant said that, at the meeting, Mr Storch also asked him about the outstanding invoice for Ms Dunnet’s wages.  The appellant said he told Mr Storch this was meant to have been deducted from his commission account.  The appellant said Mr Storch told him it was illegal.  The appellant said he told Mr Storch he needed to talk to his accountant and Mr Storch in turn asked the appellant to get back to him by 5.00pm that day.  The appellant said he spoke to his accountant’s office that day but the accountant was still away on holidays.

18      With respect to the Triannual Certificate course, the appellant’s evidence was that Mr Storch agreed the respondent would cover the costs of the course and accommodation in Perth.

19      The appellant said he spoke to his accountant the following Monday and his accountant agreed to discuss the payment of wages issue with Mr Storch.  The appellant said his accountant indicated that the deduction of Ms Dunnet’s wages from his commission was not a problem.  The next day, the appellant spoke to Mr Storch and asked whether he had spoken to the appellant’s accountant.  The appellant said Mr Storch said he did not want to speak to his accountant but that the appellant had to pay the amount of the invoice because it was illegal to deduct it from his commission account.  The appellant said he told Mr Storch that his accountant was happy to explain how it could be done but this did not resolve the matter.

20      The appellant then received another tax invoice from the respondent dated 30 April 2005 in the amount of $8,320.00, made up of four amounts for $2,080.00 for the wages of Ms Dunnet from January to April 2005.

21      The appellant also said that he spoke to Mr Armstrong who said he would speak to the appellant’s accountant and see whether the repayment of wages issue could be resolved.  The appellant then said that he later spoke to his accountant who had spoken to Mr Armstrong and Mr Geoff Piper (who was referred to as the commercial manager or accountant of the respondent) and Mr Piper had told the appellant’s accountant that “it was no longer an issue as they had transferred Sara Dunnet away from me” (T31).  This was a reference to the resignation of Ms Dunnet as the appellant’s personal assistant and her re-employment by the respondent as a sales representative.

22      The appellant gave evidence of other conversations with Mr Storch and Mr Armstrong regarding the repayment of Ms Dunnet’s wages.  The appellant said that Mr Storch and Mr Armstrong maintained that repayment of the wages could not take place by way of deduction from the appellant’s commissions, whereas the appellant said that this could be achieved and emphasised his accountant’s view that this was so.

23      The appellant said that, on the Thursday before the commencement of the Triannual Certificate course on Monday 9 May 2005, he was advised by Mr Armstrong on the telephone that because of the non repayment of Ms Dunnet’s wages, Mr Storch was “considering putting the course on hold” (T34).  The appellant said that the next day he spoke to Mr Armstrong to see whether he had been able to sort matters out with Mr Piper but the matter was not resolved on that day.

24      The appellant also said that, on the Friday (6 May 2005) he received a telephone call from Mr Atkins at TAFE who said that the respondent had asked for their cheque to be refunded.  The appellant explained to Mr Atkins that he had an issue with the respondent which he was hoping to sort out and that, if they had withdrawn the funds to cover for payment of the course, the appellant would “cover it in the meantime” (T35).  The appellant’s position, as he explained in his evidence therefore was that, when he departed Albany to Perth for attendance at the course on Sunday 8 May 2005, he had not been specifically advised by the respondent that his permission to attend the course had been withdrawn.  The appellant also gave evidence that he had decided to pay for his own accommodation in Perth.  This was because he decided not to share accommodation with a Mr Treeby, another sales representative of the respondent attending the course (T50).

25      Mr Storch’s evidence was that at the April 2005 Albany branch meeting, he requested the appellant to pay the outstanding invoice for Ms Dunnet’s wages.  Subsequently, he sent an email to Mr Armstrong with a copy to Mr Marron on 1 May 2005.  The email was to the effect that, if the appellant had not paid the invoice by cheque by 5.00pm the following day, then the respondent would stop paying Ms Dunnet’s wages.  The email referred to the appellant’s request to take the amount owing out of his commissions but said that “legally we have been told it can’t be done that way”.  The email also referred to two unsuccessful attempts by Mr Storch to speak with the appellant about the matter by telephone.  The email also said the offer for the appellant to attend the Triannual Certificate course would be reviewed if the appellant did not comply with company policy.

26      Mr Storch said that two or three days after sending the email, he did speak to the appellant on the telephone, as did Ms Healy.  However, the telephone call did not resolve the issue.  Furthermore, Mr Storch received an oral and email complaint from Ms Healy about the appellant’s attitude to her on the telephone.  Mr Storch in turn sent an email to Mr Marron requesting he counsel the appellant over the matter.

27      Additionally in the afternoon of 4 May 2005, Mr Storch caused Ms Healy to send an email from himself to the appellant saying that, due to the dispute over the monies owing in relation to Ms Dunnet, the respondent was withdrawing their sponsorship of the appellant’s application to do the Triannual Certificate course.  The appellant’s evidence was that he did not receive this email, nor was he advised of its contents by Ms Dunnet who was able to access emails sent to the appellant.

28      Mr Storch also said he spoke to Mr Armstrong and gave Mr Armstrong the job of discussing with the appellant that the (repayment) matter was very serious and the appellant was not to attend the course.  Mr Storch also said he told Mr Armstrong about the email he sent to the appellant advising of the withdrawal of sponsorship for the course.  Mr Storch said that he was not involved in any other communications with the appellant about the withdrawal of his sponsorship for the course.

29      Mr Armstrong’s evidence confirmed that he was advised by Mr Storch that the appellant was not to attend at the course.  Mr Armstrong said that he telephoned the appellant and instructed him that he was not to attend at the course until there was resolution of the issue in relation to the payment of Ms Dunnet’s wages.  Mr Armstrong said he told the appellant that he was to remain in Albany until the issue was resolved.  In his evidence, the appellant had denied that this conversation occurred.

30      Mr Armstrong said in his evidence that on the morning of Monday 9 May 2005 he telephoned the Albany office to see if the appellant was there.  He was then advised by a staff member that the appellant had gone to Perth to attend at the Triannual Certificate course.  Mr Armstrong said he then left messages for the appellant to telephone him.  The messages were left on the appellant’s mobile telephone and also with Mr Atkins, the course registrar.  Mr Armstrong said he left a couple more telephone messages for the appellant throughout the day and also emailed him to confirm his instructions not to attend the course.

31      Mr Armstrong said that he was telephoned back by the appellant at 5.40pm that afternoon.  Both the appellant and Mr Armstrong in their evidence agreed that, in this conversation, Mr Armstrong told the appellant not to continue to attend the course but that he should return to work in Albany the next day.  The appellant’s evidence was that Mr Armstrong said he should be at work the next day or be dismissed.  The appellant said he told Mr Armstrong this was workplace harassment.  He also said that he wanted to speak to his lawyer about the matter, Mr Armstrong said that he should do that and that this was the end of the conversation.  The appellant said he made an appointment to see his solicitor at 4.00pm the next day.  In his evidence-in-chief, the appellant said he took Mr Armstrong’s instruction to mean that he should return to Albany that night when it was not safe to do so and therefore he did not comply with this direction.  During his cross-examination however, the appellant conceded Mr Armstrong said he could see his lawyer in Perth.  This would necessitate staying in Perth Monday night and therefore the appellant accepted the instruction was not to return to Albany until the next day.

32      It is common ground that the appellant did see his solicitors the next day and they sent a letter to the respondent about what had occurred with respect to the repayment of Ms Dunnet’s wages and the withdrawal of support for the appellant to attend at the Triannual Certificate course.  The respondent did not reply to this letter prior to the dismissal of the appellant from his employment.

33      The appellant did not, as directed by Mr Armstrong, return to the Albany office the next day.  In fact, he remained at the Triannual Certificate course for the rest of the week and then attended to his “home opens” over the weekend in Albany.  The following Monday he was spoken to by Mr Marron and advised of his summary dismissal.  He was provided with the letter of dismissal dated 12 May 2005.

34      The letter from the appellant’s solicitors to the respondent dated 10 May 2005 referred to the “unresolved” issue of the repayment of Ms Dunnet’s wages.  The appellant argued on the appeal however that this issue was “objectively resolved on 6 May 2005”.  Accordingly, there was no reason why the respondent should have withdrawn its support for the Triannual Certificate course and required the appellant to attend at the Albany office for work on 10 May 2005.  This submission was made on the basis of evidence of events which occurred on 6 May 2005.  These events were not known of by the appellant prior to his dismissal.  The submission was also supported by evidence given by Mr Storch during cross-examination at the hearing.

35      The events on 6 May 2005 concerned an exchange of emails between Mr Armstrong and Mr Piper.  At 10.11am, Mr Armstrong sent Mr Piper an email asking whether the respondent could proceed to deduct “fees for Ms Dunnet from the appellant”.  The email said the appellant had “called this morning to ask if all sorted out”.  Mr Piper replied by an email at 10.26am.  The email said that the “deal has been terminated with the resignation of Sara to become a sales person.  If this is the case and we are not replacing her (as I am led to believe) and in the interests of getting it resolved and us all getting on with more productive things…then yes…I don’t really care, let’s get the money and move on”.  This email was replied to by Mr Armstrong at 12.03pm.  The email said that the appellant “still owes us the money so my question to you is how do we arrange to collect the money from Hornsby.  This is what Richard Hudson and you were to resolve.”  There was no evidence about Mr Piper’s response to this email.

36      Mr Armstrong was cross-examined about the contents of the emails.  Mr Armstrong was asked whether he would agree that the issue was resolved as at the time of Mr Piper sending his email on 6 May 2005.  Mr Armstrong answered “No”.  Mr Armstrong said that Mr Piper was the state accountant and the email contained his opinion.  Mr Armstrong said that within “our organisation that doesn’t mean that we go ahead and do that.  I have to seek advice from payroll in Adelaide.  We have to seek advice from HR in Adelaide in relation to is that legal to do that.  So there was nothing resolved at this point in time.  That was only his opinion that I sought.” (T125)  Mr Armstrong also said that, if the matter had been resolved, he would not have asked the appellant to return to Albany.  Later, Mr Armstrong said that it was not his position to make the judgement on whether Mr Piper’s opinion resolved the matter.  Mr Armstrong said that it would have been Mr Storch’s position to do that.  Mr Armstrong said that the matter was not resolved on Friday, 6 May 2005 and that things were still “up in the air” (T128).  Although further cross-examined on the matter, Mr Armstrong’s answers remained to the same effect.  Mr Armstrong’s opinion that the emails did not resolve the matter was confirmed in his re-examination.

37      Mr Storch was also cross-examined about the contents of the emails on 6 May 2005.  In considering this evidence, however, it is important to note that Mr Storch was not aware of the contents of these emails at the time.  In his cross-examination, Mr Storch confirmed that the reason for withdrawal of the sponsorship of the appellant to attend the Triannual Certificate course was because of the non-payment for Ms Dunnet’s wages.  Mr Storch also agreed that, if the issue of the payment had been resolved, there would have been no purpose at all to withdraw the sponsorship.  He agreed that he would have then let the appellant participate in the Triannual Certificate course.  Mr Storch said that, on 6 May 2005, he was on his way back from Carnarvon and that he arrived back in Perth at about 5.00pm.  Mr Storch said that he did not return to his office on the evening of 6 May 2005 but he did attend at the office on 9 May 2005, prior to travelling to Margaret River.  Mr Storch said he could assume that he saw the emails on 9 May 2005 but could not categorically say that he did (T109).  Mr Storch was taken through the content of the emails.  Mr Storch was asked whether it was clear that the issue had been resolved at 10.26am on Friday, 6 May 2005, the time of Mr Piper’s email.  Mr Storch answered that “you’d have to ask Geoff Piper what he really meant by that, but you could assume that, yes.” (T110)  Mr Storch then said that he would read Mr Piper’s email as saying that “the amount should be deducted from the commissions and let’s move on” (T110).

38      Mr Storch was then asked:  “So the issue of the payment of Sara’s wage cost has at that stage been resolved, has it not?”  Mr Storch said, “You’d assume so, yes.”  Mr Storch then agreed that there was no reason why the appellant should not have gone on the Triannual Certificate course as soon as the issue regarding repayment was resolved.  Mr Storch was then asked whether “at 10.26 when this email was sent, there is no reason at all to stop Mr Hornsby from doing his Triannual which you had earlier authorised him to do some couple of weeks or so earlier”.  Mr Storch answered, “That’s correct.” (T111)

39      This issue was not explored with Mr Storch in his re-examination.  It is also relevant to note that the cross-examination of Mr Storch did not involve questions about the authority of Mr Piper and/or Mr Armstrong to decide that the issue involving repayment for Ms Dunnet’s wages was resolved on 6 May 2005.  There was therefore no evidence different from Mr Armstrong’s evidence that he did not have the authority to regard the matter as resolved, in the absence of confirmation from Mr Storch.

The Commission’s Reasons

40      The reasons for decision of the Commission at first instance were structured in the following way.  The reasons commenced with a brief introduction stating the nature of the application.  There then followed what was described as a chronology of events.  This set out in narrative form the sequence of relevant events.  It did not do so in any great detail because the Commission expressed its view at paragraph [3] of the reasons that “this matter revolved down to a central and simple issue”.  This was, as the Commission later stated in paragraph [23] of the reasons, “whether the order by Elders for the applicant to return to Albany was a lawful one”.  As part of the chronology of events, the Commission quoted part of the letter sent from the appellant’s solicitor to the respondent, their reply dated 19 May 2005 and the letter from the respondent to the appellant advising of his dismissal from employment.

41      Paragraph [16] of the reasons of the Commission said “the preceding summary is sufficient to give the flavour of the evidence before the Commission”. 

42      The next section of the reasons was headed “Analysis and Findings”.  From what is contained in this section of the reasons however, it does not contain the Commission’s findings but instead a summary of the arguments made to the Commission by the appellant and respondent.  We have already quoted paragraph [17] of the reasons which summarised the appellant’s case.  Paragraphs [18] to [22] of the reasons, in our opinion, summarised the respondent’s case.  There was some discussion during the hearing of the appeal as to whether some of paragraphs [18]-[22] contained findings made by the Commission.  We do not think this is the preferable construction of these paragraphs.  They include expressions such as “Elders say”, “Elders assert”, when describing some of the propositions which are contained in these paragraphs.  This, together with the overall structure of this section of the reasons and the reasons as a whole, leads us to conclude that the paragraphs do not contain findings made by the Commission.

43      The final section of the reasons is headed “Conclusion”.  The Commission’s conclusion, including its factual findings, were succinctly stated in the five paragraphs constituting this section of the reasons.  We have already quoted the relevant part of paragraph [23].  Paragraphs [24]-[27] are as follows:-

“24 It is open to find on the evidence even though the Applicant may have thought the question of payments with Elders had been resolved Elders did not.  As far as they were concerned there was a substantial sum of money outstanding and they wanted to collect it from the Applicant.  Their advice at the time was they could not deduct it from his commission and at least they did not want to deduct it from his commission.  Whether they were right in adopting that position is not germane to the resolution of this issue.  The Applicant says he thought he had a deal with his local Manager about how the money was to be deducted.  Even if he did it was made clear later by more senior members of Elders that there was no such deal and that if such an arrangement had been made it was now countermanded.  This was some time before the Applicant left to go on his course, he knew that Elders wanted him to pay the cost of the personal assistant and they were not prepared to deduct it from his commission.  They simply wanted to give him an invoice for the account and for him to pay his debt.  This would not seem to be unreasonable.

25 The Applicant attended the course, he knew full well when he left that Elders were unhappy about the situation to the extent where he admitted that he knew he would have to pay for his own accommodation.  The Applicant attended the course contrary to instructions and he ignored a direction to return to Albany to work.

26 The suggestion that he would be required to drive overnight and then work all the next day and so therefore it was an unreasonable request is just not credible on the evidence, what the evidence seems to indicate and I prefer the evidence of Elders in this respect is the Applicant was told to come back to Albany to commence work.  He did not do so and he was in fundamental breach of his contract of employment by that action.  It is fundamental to the contract that the Applicant present for work and do the work for which he has contracted.  There is not the opportunity for an employee in such circumstances to decide when he will or will not work.  If there had been consent to fund a course in Perth this had been withdrawn because of another dispute between the Applicant and Elders.  This time about the method of payment for the personal assistant.

27 It cannot be said in these circumstances that to dismiss is unfair.  The Applicant has not discharged the onus of proof that there has been unfairness on the Undercliffe test and the application will be dismissed.”

44      The reference to the “Undercliffe test” in paragraph [27] is a reference back to the citation of the Industrial Appeal Court decision of Undercliffe Nursing Home v Federated Miscellaneous Workers Union (1985) 65 WAIG 385, contained in paragraph [17] which had been quoted earlier in these reasons.

The Appeal

45      The schedule to the notice of appeal contains five grounds of appeal.  These will be referred to below.

46      The written outline of submissions which was filed by the appellant prior to the hearing of the appeal did not, with any specificity, refer to the grounds of appeal or attempt to relate the points made in the written submissions to the grounds of the appeal.  As explained to counsel for the appellant during the hearing, this limited the persuasiveness of the written submissions.  The appellant’s counsel attempted to rectify this, to an extent, during his oral submissions.

47      In determining the appeal, it should be remembered that the decision by the Commission that the appellant was not unfairly dismissed was a discretionary decision.  It involved an evaluative judgment by the Commission of the circumstances leading to the dismissal and the decision to dismiss.  There are limits to the circumstances in which an appeal against such a discretionary decision may be allowed.  These limits are partly due to the nature of a  discretionary decision, involving a decision making process in which no one consideration and no combination of considerations is necessarily determinative of the result, so that the decision maker is allowed some latitude as to the choice of decision to be made (see Coal and Allied Operations Pty Ltd v AIRC and Others (2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ at paragraph [19]).

48      The limits upon appellate intervention were described in the following way by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 in a passage which has been cited and quoted in numerous decisions of the Full Bench:-

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

49      Given the basis upon which the present appeal has been argued, it is also appropriate to bear in mind the observations made by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519-520 as follows:-

“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.  While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion.  When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight:  it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.  Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

50      It is appropriate to first consider the ground of appeal which was numbered 5.  This was the ground upon which most reliance was placed upon by the appellant in his submissions.

Ground 5

51      Ground 5 was in the following terms:-

“5. The learned Senior Commissioner erred at law or in fact in failing to take into account alternatively failing to give due weight to the evidence of:

5.1 the applicant and the respondent’s witness Mr Storch to the effect that the applicant was authorised by the respondent to attend the TAFE course;

5.2 the respondent’s witness Mr Storch to the effect that the only reason why the respondent withdrew consent for the applicant to attend the TAFE course and ordered the applicant to return to Albany was to force the applicant to pay the personal assistant’s wage cost directly as opposed to the respondent deducting the same from the applicant’s commission payments;

5.3 the applicant and the respondent’s witness Mr Storch to the effect that the applicant agreed with the respondent, inter alia, that the respondent would deduct the wage cost of the applicant’s personal assistant from the applicant’s commission payments;

5.4 the applicant and the respondent’s witness Mr Storch to the effect that the respondent refused to deduct the wages of the applicant’s personal assistant of the respondent from the applicant’s commission payments on the grounds that such was unlawful;

5.5 the expert evidence of Richard Hudson to the effect that the deduction of the wage cost of the applicant’s personal assistant from the applicant’s commission payments was not unlawful;

5.6 the applicant and the respondent’s witness Mr Storch to the effect that the wage cost of the applicant’s personal assistant was deducted by the respondent from the applicant’s commission payments on or about 18 May 2005 some two days after the applicant was summarily dismissed;

5.7 the respondent’s witness Mr Storch to the effect that that the issue of the payment of the wage cost of the applicant’s personal assistant was resolved as at 6 May 2005 prior to the applicant leaving Albany to attend the TAFE course in Perth; and

5.8 the respondent’s witness Mr Storch to the effect that given the matters set out in paragraph 5.7, there was no reason why the applicant should have been ordered to return to Albany and that the applicant should have been allowed to continue the TAPE course in Perth.”

52      With respect to ground 5.1, the Commission did take into account the evidence relevant to whether the appellant was authorised to attend the Triannual Certificate course.  In paragraph [25] of its reasons, the Commission said the appellant “attended the course contrary to instructions and he ignored a direction to return to Albany to work:”  In paragraph [26], the Commission said that, if “there had been consent to fund a course in Perth this had been withdrawn because of another dispute between the applicant and Elders”.

53      The reference to the evidence of Mr Storch in ground 5.1 appears to be a reference to that evidence of Mr Storch about the contents of the emails on 6 May 2005 which we have earlier set out.  The appellant relied upon this evidence to submit that the dispute about the repayment of Ms Dunnet’s wages had been “objectively resolved”.  Accordingly, it was argued there was no reason why the appellant should be directed by Mr Armstrong not to attend at the course and to direct him to return to Albany to work the next day was “capricious”.  In our opinion, this submission overstates the effect of the evidence contained in the emails on 6 May 2005 and that of Mr Storch about them.

54      The evidence of Mr Armstrong, which was not qualified by any other evidence at the hearing, was that neither he nor Mr Piper had the authority to decide that the issue of repayment was resolved, as a result of the sending by Mr Piper of his email to Mr Armstrong on 6 May 2005.  Mr Storch was the person who had this authority.  There was no evidence that Mr Storch made a decision on 6 May 2005 that the issue was resolved.  Indeed, the previous decision made by Mr Storch to withdraw the authority for the appellant to attend at the Triannual Certificate course and his instruction to Mr Armstrong to carry this into effect, still remained.  In these circumstances, it cannot be said that the instruction by Mr Armstrong to the appellant that he no longer had the permission of the respondent to attend at the Triannual Certificate course and that he should return to work at Albany, was capricious.

55      In our opinion, the most that can be said about Mr Storch’s evidence about the content of the emails on 6 May 2005 was that it suggested that Mr Storch’s opinion, well after the event, was that, as a result of these emails, the dispute about repayment of Ms Dunnet’s wages was capable of resolution.  There was not however any “objective resolution” of the issue on 6 May 2005 as argued by the appellant.  Additionally, although counsel for the appellant sought to qualify it somewhat, there was also the letter of 10 May 2005 from the appellant’s solicitors to the respondent, referred to above, which described the dispute in relation to the payment of the personal assistant as being “unresolved” as at that time.

56      The fact remains that the appellant was instructed by Mr Armstrong on 9 May 2005 in clear and unambiguous terms to return to Albany to work on 10 May 2005 or face dismissal.  The instruction by Mr Armstrong to return to Albany to work on 10 May 2005 was lawful.  In these circumstances, we did not think the Commission erred in concluding as it did.

57      The appellant initially submitted that to entitle the respondent to summarily dismiss the appellant, the instruction to return to work in Albany not only had to be a lawful instruction but needed to be lawful and reasonable.  This submission was made by reference to decisions such as Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70.  The submission overlooked the effect of the decision of the Industrial Appeal Court in Nydegger v Tredways Shoestore South Hedland (1997) 77 WAIG 1381.  In that case, an employee wanted to take leave to visit a relative in Europe.  The employee did not have an entitlement to leave and a request to take unpaid leave was denied by the employer.  The employee took the leave and on return from leave was summarily dismissed.  It was argued before the Industrial Appeal Court that the Commission had erred in failing to consider whether the direction not to go on leave was reasonable.  The Industrial Appeal Court did not accept this submission.  The main reasons for decision of the Court were written by Scott J.  Kennedy J stated that he agreed with the reasons of Scott J and added some observations of his own.  Franklyn J agreed with the reasons of Scott J as qualified by those of Kennedy J.  Kennedy J at page 1381 said that the appellant “took that leave in direct breach of her contract of service and in the knowledge that her employer had not been prepared to waive its entitlement to the benefit of her services in accordance with her contract. In those circumstances the reasonableness of any direction did not really arise”.

58      Scott J referred to the authorities which had been relied upon to support the proposition that a direction to an employee by an employer must be both lawful and reasonable before the employer can demand compliance.  Scott J said that these cases were distinguishable in that they referred to issues of whether the employee had “breached the operational requirements of his employment” (page 1384).  This was contrasted with the situation before the Court where the issue was whether “the appellant had refused to comply with her contract of service” (page 1384).  That is, there is a distinction between an employer’s insistence that an employee carry out the basic requirement of attending for work as opposed to some direction about how aspects of their employment, when at work, should be carried out.

59      During the course of the hearing, counsel for the appellant seemed to accept that the effect of the Industrial Appeal Court decision in Nydegger was that it was not relevant in this particular case to have considered whether the direction to return to work was both lawful and reasonable.

60      Also, in the written contract of employment of the appellant, there was an express term requiring him to “in all respects diligently obey and observe all lawful directions of the company and of its board of directors”.  The direction made to the appellant to return to work on Tuesday, 10 May 2005 was a lawful direction made by Mr Armstrong on behalf of the respondent.  In our opinion, there was no appealable error in the terms suggested in ground 5.1.

61      With respect to ground 5.2, we do not accept that the Commission did not take into account the evidence of Mr Storch about the reason why consent was withdrawn for the appellant to attend the Triannual Certificate course.  In paragraph [26] of its reasons, the Commission specifically referred to the reason why consent was withdrawn in that it was “about the method of payment for the personal assistant”.  Additionally, we do not think that the Commission failed to place adequate weight on this evidence so that there was appealable error.  In our opinion it was open to the Commission to find that, despite this evidence, the decision to dismiss the appellant was not in all the circumstances unfair.  The circumstances include that the appellant, contrary to instructions, not only continued to attend at the course on 10 May 2005 but for the three days thereafter, making a total of four days unauthorised absence from work.  Additionally, it could be argued that, by his actions, the appellant evinced an intention to not be bound by his contract of employment in the future by absenting himself from work for the whole of the course, which over the seven months comprised 35 days.

62      Ground 5.3 asserts that there was evidence from Mr Storch to the effect that the appellant agreed with the respondent that the respondent would deduct the amount of Ms Dunnet’s wages from the appellant’s commission payments.  There was no such evidence from Mr Storch.  If this ground refers to the evidence of Mr Storch about the emails dated 6 May 2005, it suffers from the difficulties referred to with respect to ground 5.1 above.  The evidence did not disclose that any such agreement had been reached between the appellant and the respondent prior to the time of Mr Armstrong directing the appellant to return to work on 10 May 2005.

63      Ground 5.4 refers to the evidence that the respondent refused to deduct the wages of Ms Dunnet from the appellant’s commission payments on the grounds that it considered to do so would be unlawful.  The Commission specifically referred to this point in paragraph [24] of its reasons.  The Commission then said that, whether the respondent was “right in adopting that position is not germane to the resolution” of the application.  In our opinion, the Commission was not in error in making this observation.  This is because, for whatever reason,  the issue about repayment was not resolved as at 9 May 2005 when Mr Armstrong told the appellant to return to work the following day.  It was the appellant’s failure to return to work when so directed and for the three days thereafter which led to the dismissal from employment.  In our opinion, the Commission was not in error in focusing upon these events and determining the appellant’s dismissal was not unfair.  The appellant had no authority to take four days’ leave of absence from his employment and was warned that, if he remained away from his employment, he faced dismissal.  For the Commission to then conclude that the dismissal was not unfair cannot be shown to be erroneous in our opinion.

64      Ground 5.5 refers to the so called “expert evidence” of Mr Hudson to the effect that what the appellant had proposed concerning the deduction of Ms Dunnet’s wage costs was not unlawful.  In our opinion, this does not take the matter any further than ground 5.4 and does not lead to a conclusion that the Commission made an appealable error. 

65      Ground 5.6 refers to evidence that the cost of Ms Dunnet’s wages was in fact deducted by the respondent from the commission payment made to the appellant on or about 18 May 2005.  It was common ground at the hearing that this had occurred.  In his re-examination, Mr Storch explained why this occurred and why it was not contrary to the policy of the respondent which had led to Mr Storch refusing to authorise the repayment of Ms Dunnet’s wages from commissions to be paid to the appellant, whilst he was still employed.  This evidence at T112-113 was as follows:-

“MR CAMERON:  And it’s been suggested by my learned friend that on the face of it, to deduct against commission doesn’t necessarily involve an advance against commission.  Could you explain to the Commission why it is as the company sees it that there is an advance against commission involved in this system?

MR STORCH:  If there’s no commissions due or payable to the person then I was instructed that we cannot give advances against commission.

MR CAMERON:  And even with a good salesman, would it be the case that there would be times when there is no money in the commission account that was sitting there for the purposes of such payments?

MR STORCH:  I can’t say categorically with Mr Hornsby but, yes, that would be the case in a number of people.

MR CAMERON:  Well, given that that would be the case in a number of people, did that cause your head office to issue an instruction regarding this matter?

MR STORCH:  Exactly.

MR CAMERON:  And did they advise you they have a policy regarding this matter?

MR STORCH:  Yes, I was advised that we cannot do it.

MR CAMERON:  And with the final deduction that was made from the commission, did that involve any advance of commission, or was that commission already accrued and sitting there in the account?

MR STORCH:  There was an amount of moneys there that was enough to pay for the moneys owed.”

66      The evidence about the deduction of the cost of Ms Dunnet’s wages from the commission payment made to the appellant on 18 May 2005 was not specifically referred to in the reasons for decision of the Commission.  This could well have been because of the Commission’s view about the central issue which determined the application, being the lawfulness of the direction to return to work.  In our opinion, the Commission’s lack of specific reference to this evidence did not lead to appealable error.  What occurred on 18 May 2005 did not change the state of play as at 9 May 2005 and throughout the rest of that week when the appellant did not attend work, in breach of his requirement to do so.

67      The contents of grounds 5.7 and 5.8 do not add to the issues which were considered with respect to ground 5.1.

68      In our opinion, when one has regard to the contents of ground 5, both individually and cumulatively, they do not lead to a conclusion that the Commission committed an appealable error.  We would not uphold this ground.

Ground 1

69      In this ground, it was asserted that the Commission had erred in holding the case turned on the simple proposition of whether the order by the respondent for the appellant to return to Albany was a lawful one.  During argument, the appellant’s counsel conceded that this ground did not raise any issue independent to that of ground 5.  In other words, it was conceded that if ground 5 did not succeed, then ground 1 could not succeed.  On this basis, it is not necessary to further consider this ground, which for reasons expressed above with respect to ground 5, should not be upheld.

Ground 2

70      This ground asserted the Commission erred in holding that whether the respondent was right in adopting the position that it could not or would not deduct the wages cost of the appellant’s personal assistant from his commission payments was not germane to the resolution of the hearing.  We have dealt with this contention with respect to ground 5.4 above.  In our opinion, this ground does not raise any separate issue.  The ground also asserted that whether the respondent’s position was right was highly relevant to the issue of whether the appellant’s dismissal was harsh on the basis of the matters set out in ground 5.  These matters have also been considered with respect to ground 5 above and do not need further discussion.  In our opinion ground 2 cannot be upheld.

Ground 3

71      Ground 3 asserted the Commission was in error in holding that the respondent was permitted to unilaterally vary any agreement reached between the appellant and the respondent which was to the effect that the respondent would deduct the wages cost of Ms Dunnet from the appellant’s commission.

72      This ground is based on part of paragraph [24] of the Commission’s reasons where the Commission said:-

“The Applicant says he thought he had a deal with his local Manager about how the money was to be deducted.  Even if he did it was made clear later by more senior members of Elders that there was no such deal and that if such an arrangement had been made it was now countermanded.”

73      In our opinion, in these sentences the Commission did not make a finding that the respondent was permitted to unilaterally vary any agreement reached.  Instead, the Commission was simply relating the facts as they had occurred, from the perspective of the respondent.  This is that, if any previous agreement had been reached, it was, as a matter of fact, now countermanded.  In our opinion, the Commission did not descend to make a finding as to whether or not the respondent was entitled to unilaterally vary any such agreement as a matter of law.

74      Ground 3 also asserted that, on the evidence of the appellant and Mr Storch, an agreement was made and in all the circumstances amounted to a contract between the appellant and the respondent.  We have earlier set out the evidence of Mr Storch about what he says was agreed with the appellant in February 2005.  This did not amount to an agreement in the terms referred to by the appellant in this ground.  Therefore, one of the assertions upon which this ground is based is fallacious.

75      The appellant also submitted the Commission erred in failing to determine whether he and Mr Marron had made an agreement in November 2004 about how the personal assistant’s wages would be repaid.  As set out earlier, the appellant’s evidence was that it was then agreed that repayment would be made by the deduction of the amount of the wages from the appellant’s commission payments.  The appellant argued that, if such an agreement was reached, it would be a binding collateral contract.  This contract, it was argued, had been breached by the respondent when they refused to facilitate the repayment in this fashion.  Also, insisting that the appellant pay the tax invoices would have been in breach of the contract.  The appellant argued that because his failure to pay the tax invoices was the reason for the respondent withdrawing its permission for him to attend the Triannual Certificate course, if the request that he pay the tax invoices was in breach of contract, then this coloured the instruction to cease attending the course and the dismissal based on his failure to follow this instruction and attend for work.

76      In our opinion the failure of the Commission to determine whether the asserted contract existed did not involve appealable error.  It was accepted by the appellant’s counsel during the appeal hearing that the appellant had no contractual entitlement to attend at the Triannual Certificate course.  He required the permission of his employer to attend.  It was also accepted that this permission could be withdrawn without reason.  If this is so, then it cannot in our opinion be presently material that the reason for the withdrawal of the permission could have been because of the refusal of the respondent to act in accordance with the suggested collateral contract.  This circumstance was, in our opinion, unrelated to the lawfulness of the withdrawal of permission to attend the course and the direction to return to work.  It was the appellant’s failure to follow this lawful direction, when he remained absent from his employment for a further four days, that resulted in his dismissal.  The Commission focused upon this in determining whether the dismissal was unfair.  In our opinion there was no appealable error in adopting this approach.

77      We would also note that, even if the Commission accepted the appellant’s evidence about the agreement with Mr Marron in November 2004, there was also an issue about whether this agreement was consensually varied by the appellant and Mr Storch in February 2005.  This was the effect of Mr Storch’s evidence about the February 2005 meeting.  If the Commission accepted Mr Storch’s evidence, then this would undermine the argument of the appellant we have just set out.  This issue was also not determined by the Commission, but for the same reasons as just indicated this involves no appealable error.

78      In our opinion, this ground cannot be upheld.

Ground 4

79      This ground asserted the Commission erred in holding the issue of the reimbursement of the wages cost of Ms Dunnet was not resolved as at 6 May 2005 on the grounds that, as far as Mr Armstrong was concerned, the money was still owing.  The ground asserted that Mr Armstrong’s subjective assessment of the issue was irrelevant.  It was also asserted that, on the basis of the emails on 6 May 2005 and the evidence of Mr Storch, the issue was resolved as at 6 May 2005.

80      The latter part of the ground has been dealt with in our discussion of ground 5.1 as set out above.

81      With respect to the first part of the ground, it is based upon part of paragraph [21] of the Commission’s reasons.  In this paragraph the Commission said:-

“The argument between the Applicant and Elders over the payments for his personal assistant was not resolved as he asserts.  Mr Armstrong in Exhibit A25 which is an email of 6th May 2005 makes it clear that the money was still owing as far as he was concerned.”

82      As set out earlier, it is our opinion that, in paragraphs [18] to [22], the Commission is not setting out its findings of fact but is merely relating the arguments made on behalf of the respondent.  During argument, the appellant’s counsel accepted that, if this was so, then there was no foundation for ground 4.  In our opinion therefore ground 4 cannot be upheld.

Conclusion

83      In our opinion, for the reasons stated none of the grounds of appeal can be upheld and the appeal should be dismissed.