2011 WAIRC 00069

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 00069

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER

HEARD
:
19 OCTOBER 2010 AND 18 NOVEMBER 2010

DELIVERED : WEDNESDAY, 2 FEBRUARY 2011

FILE NO. : FBA 15 OF 2010

BETWEEN
:
JOHN PALERMO
Appellant

AND

CHARLES ROSENTHAL
Respondent

ON APPEAL FROM:
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : ACTING SENIOR COMMISSIONER P E SCOTT
CITATION : 2010 WAIRC 00445
FILE NOS. : U 10 OF 2009, B 101 OF 2009

CatchWords : Industrial Law (WA) - Appeal against order made by Commissioner - Alleged harsh, oppressive or unfair dismissal - Whether unfair hearing or whether the appellant was denied natural justice - Actual or apprehended bias - Judicial conduct - Principles considered - Whether the Commission erred in setting aside summonses to produce documents - Principles considered - Case management time limits imposed on examination in chief and cross-examination - Principles considered - Assessment of compensation and contractual benefits - Appeal dismissed. Industrial Relations Act 1979 (WA) s 6(c), s 7, s 22B, s 23, s 23(1), s 23A(6), s 23A(7), s 23A(8), s 26, s 26(1), s 26(1)(a), s 26(1)(b), s 26(1)(c), s 27(1), s 27(1)(a), s 27(1)(ha), s 27(1)(v), s 29(1)(b), s 33(1)(a), s 33(2), s 49, s 83; Minimum Conditions of Employment Act 1993 (WA) s 7(c), s 17D.
Result : Appeal dismissed
REPRESENTATION:
APPELLANT : MR A PALERMO, AS AGENT
RESPONDENT : MS R COSENTINO (OF COUNSEL)

Reasons for Decision
SMITH AP and BEECH CC:
The Appeal
1 This is an appeal instituted by an employer under s 49 of the Industrial Relations Act 1979 (WA) (the Act). The appeal is against an order made by the Commission on 13 July 2010. The order was made following the hearing of 10 days of evidence and submissions in respect of two applications. The hearing of evidence was completed in stages. The hearing commenced on 31 August 2009 and was completed on 14 May 2010. Both applications were made pursuant to s 23(1) of the Act and were referred to the Commission under s 29(1)(b) of the Act. The first application was by Charles Rosenthal (the respondent) for a remedy in respect of his alleged harsh, oppressive or unfair dismissal from his employment with the John Palermo (the appellant). The second application was also made by the respondent. In the second application the respondent claimed he was owed contractual benefits being unpaid wages from 1 December 2008 to 23 December 2008. The respondent’s claim for contractual benefits also encompassed a claim for accrued annual leave. However, that part of the application was not allowed by the Commission as a finding was made that the entitlement to annual leave arose under the Minimum Conditions of Employment Act 1993 (WA) which can only be enforced by the Industrial Magistrate under s 83 of the Act, pursuant to s 7(c) of the Minimum Conditions of Employment Act 1993. Consequently that part of the application, and a claim in respect of loss of superannuation benefits as a contractual benefit did not form part of the order made by the Commission on 13 July 2010.
2 The order the subject of this appeal followed the publication of reasons for decision given on 6 July 2010. The order made by the Commission was that the Commission hereby:
1. Declares that the applicant was harshly and unfairly dismissed from his employment by the respondent;
2. Declares that reinstatement is not practicable;
3. Orders that the respondent shall pay to the applicant the amount of:
(a) $28,362.50 gross less any taxation payable to the Commissioner of Taxation as compensation for the loss arising from the dismissal; and
(b) $3,534.37 gross less any taxation payable to the Commissioner of Taxation being salary for the period I December 2008 to 23 December 2008.
4. Orders that the amounts set out in Order 3 hereof are to be paid within seven days of the date hereof.
3 The appeal is against the whole of the order.
Background
4 The respondent was self-employed on his family’s cattle farm as a farmer for some years and had from time to time worked as a casual farmhand for other farms. He was first employed by the appellant in February 2006 as a casual farmhand for two to three days per week at a cattle farm called Palermo Farms which is located at two locations around and near Pinjarra. He was later employed as the farm manager of Palermo Farms from 1 August 2006 on a full-time basis. At all material times the respondent lived on his family’s farm which is located in the Darling Escarpment near part of Palermo Farms.
5 The respondent commenced employment as the farm manager after the appellant’s farm manager, Victor Matthews, made the decision to leave the job due to his incapacity to continue to do physical work. The job of farm manager was advertised and the respondent was interviewed by Mr Tony Palermo. Mr Matthews made a recommendation that the respondent was suitable. Due to the respondent’s lack of experience in managing other people’s farms, it was agreed when he was engaged he would be paid $40,000 per annum on commencement, his salary would be reviewed after six months and after a further 12 months. The respondent’s salary was increased to $52,500 after six months, but was not subsequently reviewed.
6 The respondent’s employment was terminated on 23 December 2008 when the appellant summarily dismissed the respondent. The appellant claimed at the hearing at first instance that the termination was justified on two grounds. The first ground was that the respondent had resigned. The second ground was that the appellant was justified in dismissing the respondent for misconduct. In her reasons for decision the acting Senior Commissioner summarised the particulars of the appellant’s answer to the respondent’s claim that he was harshly, oppressively and unfairly dismissed as follows:
1. In February 2008 the applicant gave two weeks' notice, the reason being that his father had cancer and that he would manage the family farm;
2. Two weeks later he advised that his father's illness was in remission and that he would stay until Christmas at the latest but if someone else could be found in the meantime, he would be prepared to leave earlier;
3. By June 2008 the condition of the farm had been let go, that the applicant had not provided all the paperwork for the previous 12 months and cattle numbers could not be reconciled;
4. Repeated requests for the presentation of management documents were made to the applicant;
5. Between June and September 2008, Mr Tony Palermo had given the applicant various warnings about unsatisfactory work performance, the way the farm looked and the way he was managing it;
6. There was non-compliance by the applicant with legislative requirements regarding branding, stock numbers and declared weed control;
7. Issues were raised between October and November 2008 regarding a lack of reconciliation of cattle numbers;
8. The applicant was often at his family farm when Mr Tony Palermo called him, and was not undertaking his duties;
9. There were failures to tend to his duties including the storage of hay;
10. On 23 December 2008 the applicant was dismissed for serious misconduct being failing and refusing to attend to his duties, legislative requirements, animal welfare and other requirements of the cattle. There is said to have been intentional and deliberate, and substantial and significant damage resulting from the applicant's alleged failings in his management of the farm.
7 During the course of the hearing in May 2010 the appellant sought to raise an issue that the respondent had stolen cattle from the appellant’s farm. The acting Senior Commissioner treated this attempt to put theft as an allegation for the first time as a particular of defence and refused to allow the application to amend.
8 The grounds of appeal are largely in the form of a narrative. The grounds are as follows:
1. The history of this case and the way Commissioner Scott has conducted the hearing is appalling. I request that she be dismissed, and the matter be re-heard. She has shown continuous bias and lost total control of proceedings to the extent that at one stage during the hearing she saw fit to scream at the Applicant and advised him to ‘shut up’. I have today ordered the rest of the transcript and I will elaborate on this and other matters once the transcript is in my possession.
2. The order does not make provision for superannuation which is a deduction on the gross amount agreed to.
3. The Commissioner has failed to strike out from the reasons any references to me carrying out a mixed business of chartered accounting and farming.
4. The Commissioner has seen fit not to clarify ownership of the cattle farm. I do not own the cattle farm.
5. Despite many requests and a previous appeal to the Full Bench, the Commissioner saw fit not to allow me to call Mr and Mrs Rosenthal Senior to give evidence, despite them having been properly served and summonsed. Mr Rosenthal Senior had full control of my farming operations without my authority on occasions when the Applicant went on leave. There was no formal handover and takeover. Mr Rosenthal Senior is the only person who could verify the Applicant's statements that he was not ill despite the Applicant having previously advised me that Mr Rosenthal Senior was ill. This would have an extreme bearing on the outcome of the case, not only on the credibility of the Applicant but also on cattle marking and missing cattle numbers. Mr Rosenthal Senior would also be able to verify and confirm dates, events and what transpired in the period when the Applicant had resigned from his position.
6. As a result of the above Mr Macri, who was to be my chief witness, having passed away during the course of the hearing, it was even more imperative, that Mr and Mrs Rosenthal Senior be called to give evidence as Mr Macri was the only other witness present when the Applicant resigned.
7. Due to the way the Commissioner conducted the case, it left no time for further witnesses and for my agent and/or myself to give further evidence. The comments by my agent about the fact that nothing further could be added was based on time management issues only. The Commissioner saw fit as a result of losing control of the matter to implement strict time guidelines in order to conclude the case early as there were other cases pending to be heard. Natural justice is not about timing or other cases. Whilst timing and costs are relevant, in the interests of natural justice, it is not up to the Commissioner to advise any respondent on how to conduct a case. For example, I stated that my agent's testimony could range from a period of 1 to 8 days. The reason why there was such a range in time was based on the documentation that the Applicant stole as a servant and the way that the Applicant refused to answer questions, despite having been requested to do so on many occasions by the Commissioner. If for instance the diaries and other records which were my property, had been produced much of the hearing time would not have been necessary. By way of further example, the question of theft of cattle did not come into contention as until further evidence was provided I could not see how I could make an allegation of theft against anyone. However, it was hoped that during the course of the hearing, the Applicant would in some way attempt (or be directed by the Commissioner) to produce records to reconcile stock numbers. Mere diary entries which were inadequate and inconclusive are not adequate when dealing with stock values in excess of half a million dollars. His continuous refusal during his evidence to produce records on stock numbers could only lead me to conclude that the missing stock was stolen by him.
8. The fact is that the Applicant had resigned, changed his mind, and attempted to rectify the position. As his departure time drew closer, the damage, destruction and theft were put in process.
9. The reason for the delay in the hearing could not in any way be attributed to me, as I am not responsible for setting hearing dates. Unlike the Applicant, I have a busy work schedule, and I have attempted on all situations to adhere to reasonable times and hearing dates.
10. In my view, the Commissioner has not seen fit to hear and rule in accordance with the spirit of the Industrial Relations Act, and has taken opportunity to side with the Applicant on every possible occasion. The fact that the Applicant was represented by a legal practitioner and incurring costs is not for my concern or care, as if the Applicant had answered the questions put to him, the whole hearing in my view should have concluded in 3 to 5 days maximum.
11. The Commissioner has erred in her calculations of the 6 months by not deducting from her calculations the receipt of some funds by the Applicant and the valuing of time the Applicant spent working on his farm during my paid time. Moonlighting was never requested for or approved. The Applicant has carelessly and unwillingly made poor attempts to mitigate his losses by stating that he would not travel to work if it involved more than a certain time or kilometre. Given low unemployment rates of under 4%, I find it extremely difficult that the Applicant could not find other work. I now know the reason. Working on his own farm.
12. The Commissioner has seen fit to punish me, the employer, with total lack of care and regard, not only to proceedings, but events and employer rights.
13. The Commissioner has seen fit to calculate the Applicant's loss by ending it on the last day of the hearing. This is completely contrary to the spirit of the Act, and again proves the Commissioner's bias in favour of the Applicant and against the employer.
14. The Commissioner has erred on many occasions, some of which were highlighted at the previous appeal before the Full Bench. By way of another example, in the order, her first paragraph states ‘Having heard Ms R Cosentino on behalf of the applicant …’. This is completely incorrect. Ms Cosentino was not at the speaking of the minutes hearing. It was her associate, Ms Billich [sic] was at the hearing. If the Commissioner does not even know who appeared before her, what hope is there for a fair outcome.
9 Although the grounds of appeal have been inexpertly drafted the following issues raised in the grounds of appeal are as follows:
(a) Grounds 1 and 13 raise the assertion that acting Senior Commissioner Scott was biased against the appellant or the manner in which the hearing was presided over created a perception of bias against the appellant and/or the appellant was denied natural justice and/or denied a fair hearing. Ground 12 raises an allegation that is related to a complaint of actual bias.
(b) Grounds 7 and 10 raise an assertion that the case management of the applications by the imposition of time limits denied the appellant natural justice and/or a fair hearing.
(c) Grounds 5 and 6 raise an argument that the acting Senior Commissioner erred in setting aside summonses to the parents of the respondent, Mr Laurie Rosenthal and Mrs Nadine Rosenthal.
(d) Grounds 11 and 13 raise the question whether the acting Senior Commissioner erred when assessing the amount of compensation to be paid to the respondent and contractual benefits owing to the respondent.
(e) Ground 8 raises an assertion of a finding of fact, without raising any assertion of error.
(f) Grounds 3 and 4 relate to wrong findings of specific facts. However, these findings are not material to the reasons for decision.
(g) Ground 9 contains an assertion without raising any assertion of error.
(h) Ground 14 does not raise any allegation of error that is not material.
10 The orders sought by the appellant are as follows:
1. The matter be re-heard before a senior commissioner;
2. If a re-hearing is not awarded, the quantum of the order to the Applicant be adjusted to reflect further payments received by the Applicant, the lack of care of mitigation of losses, and a further reduction to account for the time the Applicant spent working on his own farm whilst employed by me, and post-23 December. If this is taken into account, the Applicant has been overpaid by some $40,000 plus.
3. Any award for payment is less superannuation.
4. My losses be set off.
5. The order be struck out
11 Ground 2 was abandoned by the appellant. Consequently proposed order 3 is not sought by the appellant. Nor was proposed order 4 pursued.
12 Much of the evidence referred to in oral submissions made on behalf of the appellant in this appeal went to the merits of the respondent’s case. The appellant’s agent argued that the acting Senior Commissioner erred in failing to find the respondent had resigned and/or alternatively she erred in failing to find that the respondent was justifiably dismissed for serious misconduct. Notwithstanding these submissions, none of these issues are raised in any ground of appeal. Consequently, we have not had regard to these submissions in these reasons.
Course of the Proceedings and the interlocutory orders made during the hearing
13 The acting Senior Commissioner’s reasons for decision record that the hearing was initially listed for three days and commenced on Monday, 31 August 2009 and continued on Tuesday, 1 September and Wednesday, 2 September 2009. The hearing was reconvened on Tuesday, 20 October and Wednesday, 21 October 2009. During the hearing days in October 2009, a substantial amount of time was taken up by the parties being engaged in discussions with the Deputy Registrar in an unsuccessful attempt at resolution of the claims. Due to the hearing taking a much longer time than originally anticipated, the acting Senior Commissioner issued orders on 21 January 2010 pursuant to s 27(1)(ha) of the Act to limit the times for the presentation of the parties’ cases. After that order was made the hearing reconvened on Wednesday, 5 May 2010 and continued on Thursday, 6 May, Friday, 7 May, Thursday, 13 May until the evidence and submissions were concluded on Friday, 14 May 2010. During the hearing days in May 2010 the order made on 21 January 2010 was varied to extend the time allowed for the cross-examination of the respondent.
14 The respondent was under cross-examination for a substantial period of time. The reasons for decision record that he was under cross-examination for almost all of 1 September 2009, half of the morning of 2 September 2009 and all of 20 October 2009. At the appellant’s request the respondent’s cross-examination was interrupted on 2 September 2009 when Mr Matthews gave some of his evidence on that day. The respondent’s cross-examination continued on Wednesday, 5 May and Thursday, 6 May 2010. He was re-examined for a very short period of time on Friday, 7 May 2010.
15 Prior to the commencement of the hearing the appellant issued several summonses to witnesses to produce a number of documents. On 28 August 2009, Chantel Rosenthal, Laurie Rosenthal and Nadine Rosenthal each made an application pursuant to s 33(2) of the Act for the appellant to show cause why they should appear and produce a number of documents. At the commencement of the hearing on 31 August 2009, after hearing from the parties, the acting Senior Commissioner ruled that the summonses served on Chantel Rosenthal, Laurie Rosenthal and Nadine Rosenthal be set aside (ts 11).
16 The appellant filed an appeal against the decision made by the acting Senior Commissioner on 21 January 2010 to impose time limits on the presentation of evidence ([2010] WAIRC 00023). The Full Bench made an order to dismiss the appeal and delivered reasons for decision on 28 April 2010: Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371 (Palermo v Rosenthal [No 1]). The grounds of appeal sought to set aside the interlocutory order on grounds that the appellant had not been afforded the right to be heard by the Commission in relation to the terms of the order. At the hearing of the appeal, the appellant made an application to amend the grounds of appeal to challenge a number of rulings made by the acting Senior Commissioner during the course of the hearing in August 2009 and September 2009. In the proposed grounds the appellant claimed the acting Senior Commissioner should have allowed him an opportunity to recall Chantel Rosenthal, the wife of the respondent, and to call Nadine Rosenthal and Laurie Rosenthal, the parents of the respondent, as witnesses. The application to amend the grounds of appeal was dismissed. The first reason why the application to amend was dismissed was because the decision made on 21 January 2010 did not include an order to dismiss the application to recall Chantel Rosenthal or order that Laurie Rosenthal and Nadine Rosenthal were not required to appear. The second reason was in the alternative. The Full Bench held even if an appeal could be validly instituted it was not persuaded it should interfere in a decision which was a matter of interlocutory practice and procedure.
17 The issue sought to be raised in the prior appeal to the Full Bench in respect of the summonses served on the parents of the respondent is raised again in this appeal on grounds that the setting aside of the summonses denied the appellant natural justice and/or a fair hearing.
18 The summons to Mr Laurie Rosenthal sought to require him to attend the Commission and give evidence concerning the matter and produce all books, papers, or other documents in his possession or under his control in any way relating to the proceedings in the said matter and in particular (but not exclusively) the following:
Proof of ownership of cattle either in your name or any trading entity that you operate, trade under or have a direct or beneficial interest as owner, employee. principal, director, shareholder, trustee or any other capacity between 1 July 2006 and 17 August 2009, including all records relating to purchases, sales, births (natural increase), deaths, opening and closing stocks as at 31 July 2006, 23 December 2008, 17 August 2009 and financial year ended certified and as they appear on year/period end financials. These records are required to be inspected at the offices of the Applicant's Solicitors Gibson & Gibson at 4th Floor, 190 St Georges Terrace, Perth or at another office as may be agreed at least 7 days prior to the trial.
The summons to the respondent’s mother, Nadine Rosenthal, also sought the same class of documents to be produced.
19 On 31 August 2009, the respondent’s counsel on behalf of Chantel Rosenthal, Laurie Rosenthal and Nadine Rosenthal made a submission that the summonses for the production of documents were opposed on four grounds. The first ground was that each of the summonses were oppressive in that the description contained in each summons did not make sense. It was argued that although it was clear that the documents sought were directed to proof of ownership of cattle in the possession or the control of the witnesses through their businesses or business, the description ‘proof of ownership of cattle’ raised a problematic issue in that cattle are not registered and there was no register for births and deaths of cattle. The second objection was that the documents were sought to be produced to the offices of the respondent’s solicitors Gibson & Gibson or some other office as agreed. The respondent’s counsel informed the Commission that no other office had been agreed and Gibson and Gibson had not agreed to take custody of any documents and the correct form of the summons should have been to produce the documents to the Commission. The third objection was that seven days had not expired between the service of the summons and the date on which the documents were sought to be brought to the Commission. The fourth and substantial ground which the respondent’s counsel raised was that the documents referred to in the summons had no apparent relevance to the issues in the proceedings before the Commission and that each summons was no more than a fishing exercise. In support of this submission the respondent’s counsel relied upon the appellant’s particulars filed on 8 June 2009 in which there was no indication that theft of cattle may be an issue that the appellant relied upon as grounds for dismissal.
20 On 31 August 2009, the appellant’s agent, Mr Tony Palermo, put forward an argument to the acting Senior Commissioner that the issue of the summonses was not a fishing exercise. He pointed out that the respondent’s father, mother and spouse are all directors of L S and N A Rosenthal Pty Ltd which operates the farm across the road from the appellant’s farm where the appellant alleged some of the cattle went missing and disappeared. Notwithstanding this statement, the appellant’s agent conceded that no issue of theft arose but said that what the appellant wanted to do was to ask appropriate questions of the three people and the respondent as to what the link had been between the respondent’s farming activities and operating Palermo Farms. When asked by the acting Senior Commissioner whether there was any suggestion of cattle going missing because that was not clear from the particulars filed on behalf of the appellant on 8 June 2009, the appellant’s agent stated that if they had been provided with all managerial records and farm documentation they would have been able to properly reconcile cattle numbers but during the whole period that the respondent was employed (which was some two and a half years), the appellant had been unable to reconcile stock numbers and there was a question of 30 or 34 cattle that were missing. The appellant’s agent also stated that the other basis for the summonses was that the other three directors of the respondent’s family farm would be able to verify or testify exactly what work the respondent was doing for the family farm when the respondent was supposed to be employed on a full-time basis by Palermo Farms. The appellant’s agent also informed the acting Senior Commissioner that he (Tony Palermo) had believed the respondent’s father was ill with cancer at some point in time and that was one of the reasons why the respondent had approached him to leave so that he could manage his family farm on a full-time basis. The appellant’s agent submitted that only Mr Laurie Rosenthal could verify those facts.
21 In support of the application to produce the documents the appellant’s agent made the following submission (ts 9):
unless we examine … unless we ask questions, we don't know whether those cattle were taken or not. We are not making any theft accusations against anybody, but surely the people should be asked the question as to what happened to these 30 cattle and for them and for their movements to be traced. The movement is quite easy to trace; very easy to trace and if their answers are satisfactory to the Commission, then the Commission can make their own findings, but certainly they should be examined and asked the questions as to the circumstances around these 30 cattle. Now, we were not able to produce that prior to the dismissal … is because we simply didn't know. We didn't have any records. As of the date of takeover, we asked for stock numbers, which a competent farm manager should have at all times. We were given nothing. We had to engage someone to go through and do a stock count of all stock. There could be 50 missing. There could be 100 missing. There could be 200 missing.
In fact, one of the … some evidence that I will lead later through one of our witnesses, we've … we've worked out what the numbers should've been, given the Agriculture Department's statistics on births and deaths, et cetera, for that … that sort of area. And perhaps Mr Rosenthal Senior, who's been an active farmer, I understand, in the area and other areas, he will be able to off the cuff say whether those figures are right or wrong in accordance with his opinion. We will have our own evidence from our own witness to support what we're stating and I … I just don't see why the application is before you.
22 The appellant’s agent also stated that Laurie Rosenthal was in charge and total control of Palermo Farms at various times when the respondent was on leave.
23 After hearing argument, the acting Senior Commissioner informed the parties that the summonses would be set aside. This ruling was made on 31 August 2009 prior to the respondent commencing his evidence in chief. The appellant’s agent did not accept that ruling and requested that the acting Senior Commissioner reconsider her ruling on a number of occasions. The first occasion arose on the morning of 1 September 2009 (ts 60). The second occasion was on the afternoon of 1 September 2009 (ts 134). On the next day of hearing, 2 September 2009, the appellant’s agent sought production of documents of cattle sales information from the respondent’s family farm from Chantel Rosenthal. The acting Senior Commissioner informed the appellant’s agent that she was not prepared to order the production of the documents. She pointed out to the appellant’s agent that unless an allegation was made that the respondent has taken the appellant’s cattle and that that constituted a reason for the dismissal then the records sought were not relevant to the application before the Commission (ts 170). The acting Senior Commissioner also pointed out to the appellant’s agent that what appeared to be occurring was that the appellant’s agent was trying to pursue an inquiry into what happened to the lost cattle and whether the respondent was responsible for that and that was not the purpose of the hearing. The appellant’s agent was also informed by the acting Senior Commissioner that:
(a) if allegations were to be made against the respondent those allegations ought to have been made and the respondent be given an opportunity to answer the allegations; and
(b) if so, then those documents might have been relevant.
24 After about five days of evidence had been given, the acting Senior Commissioner on 5 November 2009 made an order requiring the appellant to file and serve further and better particulars of facts and issues of the respondent’s alleged misconduct and the respondent’s performance issues upon which it relied as reasons for the termination of the respondent’s employment. The order also required that each party file and serve names of all of their witnesses and the estimate of the time necessary for examination in chief and cross-examination of each of the other party’s witnesses. The parties were also required by the order to advise the Commission of an estimate of the length of time their closing submissions would take and whether they would prefer to make closing submissions in writing. On 7 December 2009, the appellant filed a document in which he purported to provide further and better particulars of misconduct and performance issues. It is notable that the document made no allegation of theft or misappropriation of cattle.
25 After hearing the parties, in writing, on 21 January 2010, the acting Senior Commissioner made the order to limit the time for presentation of each party’s case.
26 In the hearing of this appeal the appellant’s agent argued that the evidence established that cattle numbers could not be reconciled after the respondent’s employment was terminated and that the only conclusion that could be reached is that cattle had been stolen by the respondent. Despite the fact that the appellant’s agent continually raised the issue of reconciliation of cattle with the respondent throughout cross-examination, no allegation of theft was raised until 5 May 2010. When this issue was raised the acting Senior Commissioner after hearing submissions refused to grant leave to the appellant to amend the particulars of defence to include an allegation of theft.
27 In this appeal the appellant has not raised an argument that the acting Senior Commissioner erred in exercising her discretion to refuse leave to amend. The appellant contends that amendment was not necessary. He says the case against the respondent remained the same, that is, cattle numbers could not be reconciled and if the cattle numbers cannot be reconciled the only conclusion that is open is that the cattle had been stolen.
Reasons for Decision
28 The reasons for decision commenced by setting out in brief the background to the application. The reasons record that the Commission heard evidence from:
(a) the respondent;
(b) Chantel Marie Rosenthal who is the respondent’s wife;
(c) Victor John Matthews a former farm manager employed by the appellant;
(d) David Cabassi who commenced employment as a farm manager of Palermo Farms one month after the respondent’s employment was terminated; and
(e) Fiona Logan who lived on one of the Palermo farms for a period during the respondent’s employment.
29 It is clear from the reasons for decision that the findings of fact that were made by the acting Senior Commissioner were determined partly by findings of credibility and partly by the application of the rule in Jones v Dunkel (1959) 101 CLR 298.
30 The Commissioner in her reasons for decision when analysing the evidence stated that it was not her intention to set out all the evidence in this matter. As to the credibility of the witnesses she stated that she had no hesitation in accepting the evidence of Mr Matthews or Mr Cabassi. She found they were both straightforward and reliable, and unwavering in their evidence. Both gave the impression of being truthful, and of being competent farm managers who know what constitutes good farming practice. The acting Senior Commissioner also accepted as truthful the evidence of Chantel Rosenthal.
31 The acting Senior Commissioner found the respondent’s cross-examination difficult and problematic. She found that on occasions the respondent was argumentative and refused to answer questions. She found that this was in part brought about by the fact that the appellant’s agent Mr Tony Palermo, the person to whom he had previously reported, had dismissed him and who he saw as having done him wrong, was the person who cross-examined him. She found that Mr Tony Palermo was not skilled or experienced in cross-examination and the way in which he put some questions to the respondent was unclear, unhelpful and often repetitive. She also took into account that on occasion the respondent was difficult and provocative towards Mr Tony Palermo. In particular she had regard to the fact that the two of them took the questioning and answering very personally and were combative and she had taken this into account in assessing the credibility of the respondent’s evidence.
32 After making those observations the acting Senior Commissioner found that where the respondent’s evidence conflicted with that of Mr Matthews and Mr Cabassi, that unless the respondent’s evidence was corroborated by other evidence, she accepted the evidence of Mr Matthews and Mr Cabassi.
33 Importantly, the acting Senior Commissioner made a specific finding about the failure of the appellant to call Mr Tony Palermo to give evidence which had an effect on the findings of fact made by the acting Senior Commissioner. As the acting Senior Commissioner recorded in her reasons for decision, the evidence indicated that the farm manager of Palermo Farms reported to Mr Tony Palermo who conducts other business from Perth. Whilst the farm manager had day-to-day control of the farm and the autonomy to make decisions about its operation, the farm manager would inform Mr Tony Palermo of issues and occasionally it was necessary to seek his approval in respect of matters going beyond day-to-day operations which were often matters which required significant expenditure. Mr Tony Palermo was the person with whom the respondent had the most contact and who terminated his employment in a telephone conversation on 23 December 2008.
34 The difficulty which arose in the acting Senior Commissioner examining the evidence was that Mr Tony Palermo did not give evidence. The fact that he was not to be called was not revealed until the hearing was almost concluded. Earlier, during the proceedings the appellant indicated an intention that Mr Tony Palermo would give evidence and his evidence was to take between one and eight days.
35 As the hearing in May 2010 proceeded, Mr Tony Palermo sought an extension to the time that had been allowed to the appellant to cross-examine the respondent. At that time the acting Senior Commissioner raised with the parties that she was concerned that the timeframes set out in the order of 21 January 2010 would not be met. Mr Tony Palermo indicated on 6 May 2010 he had revised his case, would not be calling a number of witnesses, and said that he may not give evidence. When it was suggested that he may not give evidence, the acting Senior Commissioner explained to him on two occasions on 6 May 2010 (ts 508) and 14 May 2010 (ts 689) that in assessing the evidence, the Commission could give little weight to statements made from the bar table as against evidence given under oath by a witness subject to cross-examination.
36 Although the appellant submitted particulars of his case in writing and made submissions, the appellant’s case relied heavily upon conversations between Mr Tony Palermo and the respondent, including evidence of the respondent’s alleged resignation, instructions and warnings said to have been given to him. The only persons who could give evidence on those matters were the respondent and Mr Tony Palermo. Without Mr Tony Palermo’s evidence, the only evidence before the acting Senior Commissioner was that of the respondent and some documents prepared by him and by Mr Tony Palermo. In making findings of fact the acting Senior Commissioner had regard to the rule in Jones v Dunkel that an unexplained failure by a party to call a particular witness may, in appropriate circumstances, lead to an inference that the uncalled witness would not have assisted the party.
37 In closing submissions Mr Palermo informed the acting Senior Commissioner that one of the important reasons why he had not given evidence is because the appellant and he had formed the view that nothing that was provided or demonstrated by the respondent could in any way be deemed to be harsh, offensive and unfair and consequently it was considered not necessary that he (Mr Tony Palermo) be called. The acting Senior Commissioner observed in her reasons that the explanation was that the appellant was of the opinion that the respondent had not discharged the onus of proof. She concluded, however, that this was not at law a satisfactory explanation for the failure to call the witness who could provide evidence of key matters which fell to the appellant to prove. Consequently, she drew the inference that Mr Tony Palermo’s evidence would not have assisted the appellant. Having regard to those findings, the acting Senior Commissioner made the following findings about the circumstances of the termination of employment of the respondent:
(a) The respondent’s employment was terminated on 23 December 2008 when the appellant summarily dismissed the respondent for misconduct. At that time Mr Matthews took over the running of the farm for a month until Mr Cabassi, the new manager, could commence.
(b) The respondent raised a concern about his father’s health in around June 2008 when he foreshadowed to Mr Tony Palermo that he may have to resign his position as farm manager, consequently Mr Palermo should not let out the house on the farm in the event that a new farm manager may need to be engaged as such a person may need to live in the house. Within a few days of advising Mr Tony Palermo of this, the respondent found out that his father was not ill, and the respondent advised Mr Palermo of this. At no time did he resign.
(c) On 20 August 2008, the respondent wrote to Mr Tony Palermo regarding the number of cattle deaths and suggested remedial action for the herd. He also raised the issue of not being able to handle the requirements of the job in the time available. He said “discussion of what to do would be appreciated as the farm is suffering” (exhibit A5).
(d) In September 2008, the respondent heard that word had passed around the local farming community that the appellant was looking to replace him. The respondent telephoned Mr Tony Palermo to ask him about it and Mr Palermo denied that he was sourcing a new farm manager.
(e) Mr Cabassi was contacted by Mr Tony Palermo in around September 2008 about taking on the farm management and was informed that the respondent was leaving due to his father’s ill health. In November 2008, he was asked if he could start work prior to 31 December 2008 and he said he could not because he needed to give notice in his existing job.
(f) In late November 2008, the respondent wrote to Mr Tony Palermo (exhibit A6) expressing a number of concerns, suggesting that he was not being provided with the resources necessary to properly manage the farm, and noting that the workload had increased over time. Mr Palermo telephoned the respondent on what appears to be 19 December 2008 regarding the hay not being carted. The respondent was carting hay at the time he received the call and he said that he could actually see Mr Palermo across the other side of the road when he received the phone call.
(g) On 23 December 2008, the respondent said he started work earlier than usual, doing some work at the hills property. He had started earlier because the family had some guests coming from Geraldton who would be there around mid-morning and he wanted to return home to be there to receive the guests. That morning, at around 7.30 am while he was working, the respondent received a telephone call from a Mr Mal Kentish who told him that he had heard that Mr Cabassi of Alcoa Farmlands had handed in his notice and was taking over as Palermo Farms’ manager in January 2009. The respondent immediately rang Mr Tony Palermo and left a message on his voice mail saying he had heard he was being replaced by Mr Cabassi. About two hours later, when he returned home, the respondent received a telephone call from Mr Tony Palermo. He asked about what was happening and Mr Tony Palermo told him that if he did not like it, he could quit. The respondent told Mr Tony Palermo that he would not quit to which Mr Tony Palermo responded that he (the respondent) was fired, and that he would let him know when the ute and mobile phone would be collected. The respondent went back to do some work and collected some of his own property from the appellant’s farm including a solar powered electric fence unit. Mr Tony Palermo telephoned the respondent later that day and advised him that Mr Matthews would telephone him to make arrangements for the ute and telephone to be collected. The respondent asked for a reason for being dismissed and Mr Palermo refused to give one. According to the respondent, it was organised that on 24 December 2008, Mr Matthews would collect the ute at around 9.00 am. This did not go according to plan as Mr Matthews was early and the gate to the respondent’s farm was locked, causing Mr Matthews to leave. The respondent then received a call from Mr Tony Palermo asking why he refused to hand over the ute to Mr Matthews. The respondent telephoned Mr Matthews who returned to the respondent’s family farm. The two of them met for what appears to have been a lengthy discussion about some aspects of the farm including the ordering of diesel fuel and Mr Matthews left with the farm keys. However, the respondent refused to hand over what records he had relating to the management of the farm to Mr Matthews, including the farm diaries.
38 After considering these facts, the evidence given in the proceedings and the propositions put to the respondent in cross-examination and in submissions by the appellant’s agent, the acting Senior Commissioner made the following findings of fact:
1. The applicant was a competent farm manager. During cross-examination of the applicant Mr Tony Palermo said to him that he acknowledged that the applicant is a competent farm manager (T 179). He was experienced in working on a farm and in being involved in the management of his family's farm. I accept Mr Matthews' evidence that he was capable of managing the farm if he wanted to. However, he was not experienced in running someone else's farm, where a higher degree of sophistication in the management and reporting might apply compared with that of a family operated farm.
2. When the applicant took over management from Mr Matthews, Mr Matthews showed the applicant what was his usual practice in terms of keeping records and making reports to Mr Tony Palermo. He did this by more than pointing to a filing cabinet where the records were kept, but by actually showing him the records.
4.[sic] There is no evidence that the applicant was told that his failure to provide monthly reports to Mr Tony Palermo was unsatisfactory, or that the reports he provided were inadequate. There is no evidence that he was counselled or warned about this issue.
3.[sic] The applicant's excuse for not providing more regular and detailed reports to Mr Palermo was that he was not provided with the means to do it. This is disingenuous. Nothing prevented him providing a handwritten report had one been required. In any event, he did provide annual reports, brief though they were.
5. Managing the farm was not a job involving clocking on and off, or of a set number of hours. There is no evidence of the applicant's contract of employment setting particular hours per day or per week, or of particular start and finish times. Mr Matthews worked approximately 40 to 70 hours per week depending on the needs and the season. The applicant worked at least 40 hours per week, sometimes more, and did so as required for dealing with animal welfare and safety. The diaries are not an exhaustive record of all work done and how long he worked each day. (T 96).
6. There is no evidence of any instruction or agreement that the applicant was precluded from spending some time working on his family's farm.
7. I am not satisfied that the applicant refused to attend for duty on 23 December 2008. His return to his home mid-morning to attend a social gathering is not unusual in such an environment. There are no time-clocks in farm management.
8. I find nothing improper in him having taken that time.
9. The applicant was able to engage assistance when required. He asserted that he was only able to offer the award rate, and that in the then prevailing labour market, he could not obtain labour, other than through friends. I do not accept that he was instructed by Mr Palermo to offer no more than the award rate. I conclude that he made an assumption and did not act to clarify the situation or to attempt to persuade Mr Palermo to allow a higher rate of pay to be offered. I believe that it was only while he was giving evidence that the applicant realised he had made an incorrect assumption regarding this limitation. Mr Matthews' and Mr Cabassi's evidence demonstrates that when they believed that something was necessary for the good of the management of the farm, they would advise Mr Tony Palermo and were generally able to obtain what was necessary. This included bringing in contractors to undertake planned fence replacement, and to pay higher rates than the award when appropriate.
10. I do not accept that Mr Tony Palermo instructed the applicant that the cattle and the farm should be kept going as long as they could on the bare essentials. The applicant suggested that Mr Tony Palermo indicated that cattle should be kept until they were very old and unproductive and that fences ought not to be replaced – that it was minimal care and maintenance only. This is contrary to the way in which both Mr Matthews and Mr Cabassi, his predecessor and successor, managed the farm. It is clear that they took and take pride in the farm and the cattle they produced.
11. I accept Mr Matthews' report (Ex R19) as to the state of the property within days of the applicant's dismissal. His purpose was not to provide a report which was a critique of the applicant's management, but to review the farm and set out what needed to be done for the future. However, it demonstrates that the farm was not at that point in a desirable condition. Mr Matthews' reaction to the state of affairs which he discovered was one of disappointment.
12. The size of the property to be managed increased over time, however that should not have been an impediment to proper management if adequate labour and resources were available. The applicant approached Mr Tony Palermo in a professional manner, seeking such resources. He did so twice in the last four months of his employment, firstly in his letter of 20 August 2008 (Ex A5) when he sought a discussion with Mr Tony Palermo and then in late November 2008 (Ex A6) when he wrote to Mr Tony Palermo again raising the issue of available resources to do the job. However, it appears that by August, Mr Tony Palermo had decided to replace the applicant.
13. There is no evidence that the applicant was aware that Fiona Logan was available and expected to assist him should he require it. She gave no evidence of his [sic] being aware of this arrangement.
14. Mr Matthews noted in his evidence that the cattle were in reasonable condition when he took over the property in the interim after the termination and before Mr Cabassi could commence. However, he was critical of the way they were managed in terms of the timing of the marking of calves, of cattle being able to run between paddocks and of bulls being with the cows for a longer period thus extending the calving season. I accept this was not best practice. However, I do not conclude that there was deliberate or intentional mismanagement. Nor was there incompetence to the degree necessary to conclude that there was misconduct or breach of contract. The applicant's methods were those of a person used to running the family farm under the guidance of his father, not of someone experienced as a manger of a farm where higher standards of performance and reporting would be expected.
15. All that can be found is that the applicant spent less time than Mr Matthews in his work. His methods were less controlled and his approach not as focussed. If this was unsatisfactory to the respondent, it ought to have been brought to his attention, and remedy required. As noted, there is no evidence of any counselling or warning.
16. The farm was not in a condition which Mr Palermo found satisfactory, but there is no basis for concluding that there was deliberate or intentional mismanagement, nor was there incompetence to the degree warranting dismissal for misconduct, being a breach of an essential condition, going to the heart of the contract.
17. A considerable amount of time was spent during the hearing on reconciling the supplies of diesel fuel on the property at the time of dismissal. It is clear that there is some conflict between the applicant's and Mr Matthews' evidence, however, given that there was hay carting and other work going on between the time of the last fuel delivery under the applicant's management and when Mr Matthews checked the supplies, I am unable to conclude that anything improper occurred regarding fuel usage by the applicant.
18. Mr Matthews clearly stated in cross-examination that he found no evidence of cattle disappearing, rather that he was unable to reconcile the cattle figures between his handing over to the applicant and taking the property back two and a half years later.
19. The only reliable evidence about the numbers of hay bales not carted by the time the applicant was dismissed is only that of the applicant. Mr Matthews' evidence is from information he received from his son a considerable time after the event and is hearsay. I accept that the hay carting was approximately one third complete at the time of the dismissal, and that this was not as much as Mr Matthews considered to be timely.
20. A bundle of photographs was put into evidence including one of a super spreader. (Ex R 30). Mr Matthews was asked if he would leave it in that condition and he said he hoped he would not. (T648-9). However, this photograph has little probative value as there was no evidence as to where, when and by whom the photograph was taken or who the spreader belongs to. There is nothing to support a conclusion that this was the state in which the applicant left the respondent's super spreader. Although Mr Palermo asked the applicant about cleaning the super spreader, he did not put the photograph to him. If the photograph was of the respondent's super spreader, it ought to have been put to the applicant for his response and was not (rule in Browne v Dunn). Having said this, I note Mr Matthews' report comments generally that “(t)ractors & machinery including the ute were very dirty and unkempt …” (Ex R19).
21. There was a lot of time and examination of witnesses spent on the question of identification of cattle via markings and tags. In the end, it demonstrated nothing of value to the determination of the matter.
22. A lot of time was spent in going through the records the applicant made in the diary. Neither the applicant nor Mr Matthews was able to give any real assistance in using those records to determine how much time the applicant spent in working each day and week. There was no suggestion that the record in the diaries was exhaustive of every job that was done each day, nor of how long any one task would take. It was very clear that the time necessary for checking cattle could be short, or very long depending on whether the checking revealed the need to take action and what that action might be. This evidence was of little assistance and of no real probative value. As noted earlier, the applicant's and Mr Matthews' evidence indicates that Mr Matthews worked longer hours than the applicant.
23. The fact that the respondent engaged and paid a cartage contractor to carry cattle on many occasions does not negate the applicant's evidence that he also carted the respondent's cattle.
24. There was no evidence of a refusal or failure to attend to duties.
25. Much was made of the discrepancy in stock numbers reported by the applicant in exhibit A4. However, Mr Matthews' evidence indicated that he too had made an error in his cattle figures report in June 2006. (Ex R10). I see nothing sinister or incompetent in either the applicant's or Mr Matthews' errors.
39 The acting Senior Commissioner concluded that the respondent’s management of the farm was not to the standard previously set by Mr Matthews and Mr Tony Palermo was not happy with the respondent’s performance. She also went on to find that rather than deal with the issue, Mr Tony Palermo grasped the respondent’s advice that he may have to relinquish the job on account of a possible issue with his father’s health. Even though the respondent soon advised that this was not an issue, Mr Palermo continued down the path of finding a replacement. During the period when he was looking for a replacement, Mr Tony Palermo denied this was the case when challenged about it by the respondent. However, the acting Senior Commissioner found his intention to dismiss the respondent was clearly demonstrated by the fact that Mr Palermo had already arranged for Mr Cabassi to take over. The acting Senior Commissioner drew the inference that Mr Tony Palermo intended to engineer a summary dismissal but was pre-empted when the respondent heard of Mr Cabassi’s resignation from Alcoa Farmlands with the purpose of taking over the role at the end of January 2009, one month later. The respondent was justifiably concerned and rang Mr Tony Palermo to verify the rumour he had heard and left a message. Mr Tony Palermo returned the call while the respondent was at home with his guests. The acting Senior Commissioner found that to rely on the respondent being home as part of the justification for dismissing the respondent was unfair.
40 In relation to the appellant’s contention that the respondent resigned when he advised Mr Tony Palermo that his father may be ill, the acting Senior Commissioner made a finding that the respondent did not resign. She found that the respondent’s letters of 20 August 2008 and late November 2008 (exhibits A5 and A6 respectively) gave no indication of resignation, nor did they reflect that the respondent was warned that his job was in jeopardy. Nor was there any evidence of any warnings, formal or otherwise, and that this was in sharp contrast with the nine letters sent to the respondent from Mr Tony Palermo in the week following the dismissal (see exhibits A10 to A18 inclusive).
41 The acting Senior Commissioner found that whilst the farm was not being managed to the standard previously set by Mr Matthews and expected by Mr Palermo, the respondent’s conduct and performance did not amount to a demonstration of an intention to not be bound by an essential term of the contract and that is what is required to be demonstrated in the case of a dismissal purporting to be for misconduct.
42 The acting Senior Commissioner referred to the legal principle that the onus lies on an applicant to prove that a dismissal has been unfair; however, there is an evidentiary onus on the employer to show that misconduct has occurred (Newmont Australia Ltd v The Australian Workers’ Union, Western Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677 at 679). In relation to the question of substantial and procedural fairness she had regard to the decision of the Federal Court of Australia in Byrne v Australian Airlines Ltd (1994) 120 ALR 274.
43 After having regard to those authorities, the acting Senior Commissioner found that the appellant had not discharged the evidentiary onus which fell to him to prove that he met the requirements for a summary dismissal for misconduct. She also found that whilst the respondent’s performance as farm manager was not satisfactory to the appellant, there was no evidence that the respondent’s performance constituted a breach of an essential term of his contract of employment. Nor was there any evidence of the appellant indicating to the respondent that he fell short of the required standard in such a way that would justify termination on notice, let alone a summary dismissal.
44 The acting Senior Commissioner also found there was no evidence that the appellant undertook any form of investigation into the circumstances which he took into account when the decision to dismiss was made. In particular, there was no evidence that before deciding to dismiss the respondent, the appellant gave the respondent every, or in this case, any, reasonable opportunity or sufficient time to answer the allegations he subsequently made against him and there was no opportunity to respond to those allegations before the dismissal took place. Further, there was no evidence that any mitigating circumstances were considered. In light of these matters the acting Senior Commissioner made the finding that it was hardly surprising that the respondent was not co-operative in the handover to Mr Matthews or in responding to Mr Palermo’s subsequent emails.
45 In all of those circumstances, the acting Senior Commissioner found that the dismissal was harsh and unfair. She also found that the appellant had added insult to injury by inferences and subsequent allegations of theft which he sought to investigate, not prior to the dismissal, but during the hearing. The acting Senior Commissioner observed that the allegation of cattle theft was perhaps the most serious allegation one could make against a cattle farmer and to raise such allegations without any evidence was clearly and rightly viewed by the respondent as a grievous injury.
46 Having observed the parties during the course of the hearing the acting Senior Commissioner found that reinstatement was entirely impracticable and she made an award of compensation.
47 The acting Senior Commissioner found that, as to the respondent’s efforts to mitigate his loss, he had applied for work in a range of capacities, including farm work, supervising a feedlot, refinery and mine site work. The acting Senior Commissioner accepted the respondent’s evidence that he was prepared to undertake any sort of work including operating equipment and yard cleaning. She found that he had applied to Alcoa at its farmlands, refinery and mine, to Charles Hull Contracting, True Blue Hire, Boddington Gold Mine, Worsley Alumina, Chandler McLeod Ready Workforce, Mitre 10 in Pinjarra, John Tuckey and Emmanuels. He secured casual farm work at Wagerup for Alcoa Farmlands in January 2009 and continued to work in that capacity until the hearing was concluded in May 2010.
48 As to the location of work, the respondent gave evidence that he was not prepared to look for work in Bunbury because he wished to stay relatively close to his home and to the family farm. He also gave evidence that he did not consider travelling one hour each way to Bunbury for work was reasonable and said that anything more than 50 kilometres away results in a heavy cost of fuel to be taken from his wages. The acting Senior Commissioner found that it was not unreasonable for the respondent to remain at home and not incur the additional costs or inconvenience of travelling beyond that which he currently did from his home to Alcoa Farmlands in Wagerup which, of itself, was not a short distance.
49 Consequently she came to the view that she was satisfied that the respondent had attempted to mitigate his loss and there was no evidence to the contrary. Accordingly she found that the respondent was entitled to compensation for the loss he had suffered as a result of the unfair dismissal.
50 Evidence was given that the respondent obtained casual employment at Alcoa Farmlands through Flexi Staff carrying out farm work from 27 January 2009. His rate of pay was $20.00 an hour and his hours of work varied according to the casual nature of the employment. The acting Senior Commissioner found that payslips from Flexi Staff which cover the period from 27 January 2009 until 15 August 2009 demonstrated that he worked between 20.5 hours and 48 hours each week and there were some limited periods where he had not worked or received payment. His wages during that period were $17,710 gross. She then went on to find that the average of his income over the entire period until the conclusion of the hearing could be derived from that evidence which meant that he had an average remuneration of $676.78 per week.
51 Having regard to these findings, the acting Senior Commissioner made the following findings as to the respondent’s loss caused by the dismissal:
(a) The respondent’s remuneration at the time of dismissal was a salary of $52,000 per annum plus superannuation of $1,181.25 per quarter which equals $4,725 per annum. Therefore the total remuneration was $56,725 per annum or a weekly rate of $1,087.50.
(b) The period over which the respondent suffered the loss was from 23 December 2008 to the last day of hearing, being 14 May 2010 which was 72.3 weeks at $1,087.50 per week equals $78,626.25.
(c) The average remuneration when the respondent was employed by Flexi Staff from 27 January 2009 to 15 August 2009 was $676.78 per week. There was no evidence that this casual work changed after 15 August 2009. Therefore the respondent’s weekly loss was $1,087.50 less $676.78 being $410.72.
(d) The period since the termination of employment was 72.3 weeks, however the period of employment with Flexi Staff commenced approximately five weeks after the dismissal. Therefore the respondent’s loss was:
(i)
Five weeks at $1,087.50
$ 5,437.50
(ii)
67.3 weeks at $410.72
$ 27,641.45

Total
$ 33,078.95
52 The acting Senior Commissioner had regard to s 23A(8) of the Act that provides the amount of compensation to be awarded is not to exceed six months’ remuneration and found six months’ remuneration would be $56,725 ¸ 2 which equals $28,362.50.
53 The acting Senior Commissioner found that the amounts received by the respondent by way of social security benefits were not to be deducted from that calculation of loss of remuneration caused by the dismissal: Swan Yacht Club (Inc) v Bramwell (1998) 78 WAIG 579 at 585.
54 As a result of these findings, the acting Senior Commissioner held that she would make an order that the appellant pay to the respondent the amount of $28,362.50 by way of compensation for loss arising from the unfair dismissal.
55 In relation to the respondent’s claim for contractual entitlements, the respondent sought payment of unpaid wages for the period from 1 December 2008 until 23 December 2008, the latter date being the date of termination of employment, which was 23 days’ or 3.25 weeks’ pay at $1,087.50 per week, being $3,534.37. The acting Senior Commissioner found the evidence demonstrated that the respondent worked but was not paid for this period and held that he ought to be paid this amount.
Grounds of Appeal
56 It is convenient to deal with the grounds of appeal in the order the issues were raised in the proceedings. Consequently we will deal with grounds 5 and 6 first as those grounds deal with the summonses to produce documents. We next consider the issues raised in respect of case management in grounds 7 and 10. We then deal with the issues raised in respect of bias, judicial conduct and unfair trials in grounds 1, 7, 10 and 14. Finally we deal with matters relevant to the assessment of compensation and mitigation in grounds 11 and 13.
Grounds 5 and 6 – Summonses to produce documents
(a) Legal Principles – Procuring Evidence by a Summons to Witness
57 Section 33(1)(a) of the Act provides that a party may apply to the Registrar to issue a summons in the prescribed form to any person to appear and give evidence before the Commission and to produce any books, papers, or other documents in his or her possession or control, in any way relating to the proceedings. Pursuant to s 33(2) where a summons has been issued to, and duly served on, a person to appear and give evidence, the person may make application to the Commission for cause to be shown for him or her to appear and if cause is not shown, the person is not required to appear.
58 It is well established that a subpoena or a summons cannot be used to obtain evidence to make a case. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 Sir Frederick Jordan CJ said:
A party is no more entitled to use a subpoena than he is a summons for interrogatories for the purpose of fishing, ie endeavouring not to obtain evidence to support his case but to discover whether he has a case at all.
59 The grounds on which a subpoena or summons will be set aside were summarised by Conti J in Mandic v Phillis (2005) 225 ALR 760; [2005] FCA 1279 at [33] as follows:
In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at 102 (Arnotts), Beaumont J stated that the issue of a subpoena would be an abuse of the process of the court if it is not used for a legitimate forensic purpose, referring thereby to the following passage in the reasons for judgment of Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100–1:
Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
1. unless the subpoena was issued for the purpose of a pending trial, hearing or application …
2. where to require the attendance of a witness would be oppressive …
3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence …
4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party …
5. where the subpoena has been used for the purpose of obtaining discovery against a third party …
6. where to require a party to comply with a subpoena to produce documents would be oppressive …
7. where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing”…
the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court. It seems to me, however, that when, as one does, one finds assertions that the court's jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court … coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive … it is difficult to avoid the conclusion that, in reality, the court's jurisdiction to set aside a subpoena is but one aspect of the court's jurisdiction to act to prevent an abuse of process, and that particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.
60 His Honour in Mandic v Phillis then went on to consider two questions that Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; (1989) 88 ALR 90 at 103 said should be asked in determining whether a subpoena was issued for a legitimate forensic purpose:
[35] …
(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].
(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].
[36] His Honour (at 103) referred to the meaning of ‘apparent relevance’ in the following terms:
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.
In Kimberley Homes at 115–6, Hill J referred with approval to Beaumont J's test for relevance and emphasised that it was not necessary for the court to determine whether the documentation or material the subject of the subpoena would be admissible in any final hearing of the proceedings. Although it is not necessary for the material to meet the standards of relevance required of evidence adduced at trial, Hill J considered that it was appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504, Spender J also considered Beaumont J's test of ‘adjectival relevance’ and explained it (at 439) as follows:
Notwithstanding the use of the word ‘possibly’ in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.
As is the case presently before the court, Spender J was there concerned with a submission that a request for documents (contained in a summons) amounted to merely a ‘fishing expedition’.
61 A wish to see documents to see if they may assist my case is not sufficient: Carroll v The Attorney General for New South Wales (1993) 78 A Crim R 162 (Mahoney AP) (182); New South Wales Commissioner of Police v Tuxford [2002] NSWCA 139 [27]. It is also ‘fishing’ to seek to obtain material which might enable a party to make a different case: Cosgrove v Hooker Rex (Administration) (Vic) Pty Ltd [1988] FCA 269 [25].
62 It is clear from the class of documents sought in this matter that the appellant was seeking to ‘fish’ through the cattle records of the respondent’s family farm in the hope that some evidence of theft or inappropriate conduct by the respondent may emerge. As Hunt J in R v Saleam (1989) 16 NSWLR 14 at 17 said such an exercise:
[G]ave every appearance of a fishing expedition, in the sense that the appellant had no evidence that fish of a particular kind were in the pool but wanted to drag the pool in order to find out whether there were any such fish there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254.
63 At the hearing of the appeal the appellant’s agent conceded that the appellant was seeking to fish through the records of the respondent’s family company (appeal ts 15 - 16). He also submitted that it was appropriate to use the hearing to investigate the missing cattle and provide a means to produce ‘missing’ documents. Whilst the Commission is not a court of pleadings, the issues stated in the application, notice of answer and counter proposal and any particulars given by either party determine the bounds of relevance. In the absence of any allegation of misappropriation of cattle by the respondent being directly put in issue by the appellant in his particulars of defence, the summonses to Laurie Rosenthal and Nadine Rosenthal to produce the documents specified in each summons were not for a permissible purpose.
64 The appellant argued in this appeal that he also sought production from Laurie Rosenthal any records of wages paid to the respondent for work on the family farm that was undertaken by the respondent when he was employed by the appellant and after the respondent's employment ceased. Whilst such records, if they existed may have been relevant to the issue whether the respondent had a conflict of interest by working on his family farm whilst employed by the appellant, the scope of the description of documents described in the witness summonses served on Laurie Rosenthal and Nadine Rosenthal did not seek production of such records. Each summons simply sought the production of various stock records. In any event, the appellant never put to the acting Senior Commissioner that he sought the production of wage records from Laurie Rosenthal or Nadine Rosenthal. It is a well established principle that a party is bound by the case that they 'run' at first instance. If such a point is not raised or argued at first instance, except in exceptional circumstances it can not raised on appeal: Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68, 71; (1985) 59 ALJR 481, 483.
65 During the hearing of this appeal the appellant’s agent also informed the Full Bench that the oral evidence the appellant sought to adduce from Laurie Rosenthal related to when the respondent went on leave and consigned the whole farming operations to his father. The questions the appellant wished to ask were as follows (appeal ts 11):
[W]hat was handed over? What stock numbers was he given and when Mr Charles Rosenthal returned from leave, what stock numbers were handed back? Now, this is in light of the company Rosenthal carrying the same stock brand and the same stock breed as what the Palermo farms carried. That relates back to the missing numbers. That relates back to the reconciliation.
Now, if in fact Mr Rosenthal senior was just given a key to the ute and say, "I'm going to leave. Here you are," well, that's not how things happen. So he would have been examined on that.
66 Insofar as the summons to Laurie Rosenthal to give oral evidence about stock numbers consigned to him by the respondent when the respondent went on leave, we are not satisfied that evidence about this issue was relevant to the issues raised in the appellant’s particulars and the line of proposed questioning appeared also to be fishing. The only occasion when the respondent went on leave was for two weeks in June 2007 and on that occasion the respondent’s duties were carried out by a Mr Tim Venn (ts 131 - 132). The respondent’s uncontradicted evidence was that his father looked after the appellant’s farm for one weekend when the respondent was away in early June 2008 and that the respondent instructed his father to make sure everything was in order and nothing was on the road (ts 272 and 286 - 287). When the respondent was asked whether he gave his father cattle numbers (of stock on the appellant’s farm), the respondent said, ‘No’ (ts 272 - 273). When regard is had to this evidence, in the absence of any other evidence, it would be difficult to draw an inference that the appellant’s whole farming operations were consigned to Laurie Rosenthal. In any event, it would be difficult to draw an inference that the evidence sought to be adduced from Laurie Rosenthal would be of assistance in this matter as the respondent was summarily dismissed in December 2008 and the appellant contended at the hearing that the crucial period leading to the dismissal was 25 November 2008 to 23 December 2008, yet the time Laurie Rosenthal was looking after the Palermo farms was in July 2008 which is a period in time distant to the time of the dismissal.
67 In relation to Nadine Rosenthal, the appellant sought to question the respondent’s mother about a computer owned by her that was used by the respondent’s wife Chantel Rosenthal to type stock reports and other documents. The appellant’s agent explained to the Full Bench that the purpose of examining Nadine Rosenthal was about information that was put on the computer (appeal ts 11). The purpose or relevance of such examination is not clear. As the acting Senior Commissioner remarked in reasons for decision given on 15 January 2010, which are set out in paragraph [94] of these reasons, there is no indication of what, if any, further evidence regarding information that was processed on Nadine Rosenthal’s computer that could be necessary for the purpose of the hearing.
68 For these reasons we are not satisfied that the acting Senior Commissioner erred in setting aside the summonses to Laurie Rosenthal and Nadine Rosenthal.
Grounds 7 and 10 – Case Management
69 Ground 7 raises an argument that the acting Senior Commissioner erred in imposing strict limits on the examination and cross-examination of witnesses. In particular:
(a) The time limits were imposed because the acting Senior Commissioner lost control of the matter in that or because the respondent refused to answer questions.
(b) The time limits left no time for the appellant, his agent Tony Palermo, and other proposed witnesses to give evidence.
(c) If the respondent had answered the questions put to him (in cross-examination) the whole hearing would have been concluded in three to five days.
70 These grounds inherently raise the question whether the appellant was denied natural justice and/or a fair hearing.
71 Grounds 7 and 10 also raise an argument that if the acting Senior Commissioner had directed the respondent to produce records to reconcile stock numbers and if the respondent had answered questions put to him in cross-examination much of the hearing time would not have been necessary.
(a) Legal Principles – Natural Justice and the Right to a Fair Hearing
72 It is well established that the question of whether the appellant was denied procedural fairness by the imposition of time limits on the presentation of the appellant’s case turns on a consideration of fairness in all the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with: National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, (311 - 312) (Gibbs CJ) and (319 - 320) (Mason, Wilson and Dawson JJ). In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mason J observed (585):
[T]he expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2] ((1977) 137 CLR 396 at 451), per Jacobs J.
(See also observations of Brennan J in Kioa (612 - 614)).
73 In considering the nature of proceedings in the Commission and the rules under which the Commission is required to act, it is important that the nature of the jurisdiction and the powers of the Commission to enquire into and deal with any industrial matter under s 23 by an application brought under s 29(1)(b) of the Act are such that the dispute ought to be arbitrated with reasonable expedition: MRTA of WA Inc v Tsakisiris [2007] WAIRC 01121; (2007) 87 WAIG 2795. The Commission is not a court of pleadings. It is required by s 26 of the Act to act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal form. However, the nature of an enquiry under s 23(1) of the Act is not inquisitorial in the sense that the Commission can undertake an enquiry outside the bounds of particulars. Particulars of a claim and corresponding particulars of defence to a claim are necessary to avoid a trial by ambush. Such particulars need not be drafted with any finesse or to the same extent as required in a court of pleadings but must leave the opposing party in no doubt as to what is alleged so as to enable the opposing party to know what case he or she is required to meet. Proceedings brought by an employee under s 29(1)(b) of the Act are adversial in nature and as such, once particulars are given each party is entitled to run their case on the basis that the particulars set the boundaries of relevant issues in dispute. Unless an application to amend particulars is granted, a party should be bound by the particulars they have provided.
(b) Case Management – Legal Principles
74 Although the appellant sought unsuccessfully to amend its grounds of appeal to set aside the order made on 21 January 2010 by the acting Senior Commissioner which imposed time limits on the examination and cross-examination of witnesses, the appellant is not prohibited from raising a ground of appeal that challenges an interlocutory order in an appeal against a final decision, if the interlocutory order affects the substantive rights of a party, or put another way affects the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 (Gaudron, McHugh and Hayne JJ) [4] - [6].
75 Where an error in making the interlocutory order is established in fact or in law, this principle is qualified by the requirement that a new trial will not be ordered if the error has not resulted in any miscarriage of justice: Gerlach (Gaudron, McHugh and Hayne JJ) [7].
76 The acting Senior Commissioner exercised a discretion to impose time limits on the presentation of the parties’ cases pursuant to s 27(1)(ha) of the Act. Section 27(1)(ha) provides:
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 
…
(ha) determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods;
77 The decision of the acting Senior Commissioner to impose the time limits was a discretionary decision. As Ritter AP in Hornsby v Elders Ltd [2006] WAIRC 04463; (2006) 86 WAIG 1229 explained in an appeal against a discretion decision:
[47] … 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.’
78 To consider whether an error has been made in the exercise of discretion under s 27(1)(ha) of the Act it is necessary to construe the condition of the power.
79 The conditions of exercise of the discretion enabling the imposition of time limits are that the periods imposed must be reasonably necessary for the fair and adequate presentation of the respective cases of the parties. It is implicit in s 27(1)(ha) that in considering what is fair and adequate for the presentation of evidence, regard must be had to what is fair and adequate for each party to the proceedings. Regard must also be had to what is reasonably necessary for the fair and adequate presentation of each case. The words ‘determine the periods that are reasonably necessary’ raise an evaluative judgment. It is not what one party or both parties would subjectively regard as reasonably necessary, but requires the Commissioner who is considering exercising the power under s 27(1)(ha) to assess all relevant evidence and material that is before the Commission in the matter in question. In particular, regard should be had to the matters stated in each application, the notice of answer and counter proposal and any particulars of claim and answer filed by each party. Regard also should be had to whether any evidence had been adduced and whether that evidence (if any) had been dealt with efficiently in examination in chief and in cross-examination. Regard should also be had to the following provisions of the Act which set parameters of case management principles:
(i) Section 22B of the Act which requires the Commission to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit;
(ii) To object s 6(c) of the Act which provides that it is a principal object of the Act to provide means for preventing and settling industrial disputes not resolved by amicable agreement, with the maximum of expedition and the minimum of legal form and technicality;
(iii) Section 26(1)(a), s 26(1)(b) and s 26(1)(c) of the Act which requires the Commission in the exercise of its jurisdiction under the Act to:
(a) … act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;
(b) … not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just;
(c) … have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and
(iv) Section 27(1)(ha) of the Act which provides for part of the principles that guide case flow management of matters in the Commission. Section 27(1)(ha) provides:
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 
…
(ha) determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods;
(v) Section 27(1)(a) of the Act which empowers the Commission in relation to any matter a discretion:
(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — 
(i) that the matter or part thereof is trivial;
(ii) that further proceedings are not necessary or desirable in the public interest;
(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or
(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;
(vi) Section 27(1)(v) of the Act, which provides that except as otherwise provided in this Act, the Commission may in relation to any matter before it:
generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.
This provision does not create a separate substantive head of power but creates power to regulate the method by which the Commission may exercise the jurisdiction conferred on it by other sections of the Act: Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315; applied in Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch [2000] WASCA 233; (2000) 80 WAIG 4577. Section 27(1)(v) must be read in the context of the specific powers which precede it in s 27(1): Aussie Online Ltd v Lane [2001] WAIRC 03497; (2001) 81 WAIG 2511.
80 These provisions together with the requirements of procedural fairness and the provision of a fair hearing establish the following statutory case management regime that:
(a) Matters should be dealt with in a way that eliminates delay with a minimum of legal form and technicality but allows for a proper and just consideration of matters;
(b) When managing a matter the Commission should have regard not only to the interests of each party but to interests of the public in the efficient use of resources of the Commission;
(c) There should be a fair and reasonable opportunity to both parties to each present their case. A determination of what is fair and reasonable in the circumstances of a matter should have regard to the matters raised in (a) and (b) above and:
(i) The parameters of relevant matters set by the particulars given by each party in the application, notice of answer and any other particulars.
(ii) What is reasonably required for the efficient presentation by each party of their case.
(iii) The principle that each party should not be left in any doubt about what is alleged against them and the opposing case they are required to meet.
81 Part of dealing with a matter in a just way is to ensure that the procedures adopted and the length given to a party to present their case has some proportionality to the value, importance and complexity of the case. Except for the power to dismiss matters in s 27(1) of the Act and the dispensation of formal rules of evidence in s 26(1) of the Act, similar principles are embodied in the case management regimes of other courts (see for example O 1 r 4A and r 4B of the Rules of the Supreme Court (1971) (WA)).
(c) Has a Failure to Properly Exercise the Discretion to Impose Time Limits been Demonstrated?
82 The imposition of time limits was first raised in the proceedings after four days of hearing. The parties had entered into negotiations on 21 October 2009 with the assistance of a Deputy Registrar of the Commission in an attempt to resolve the respondent’s claims. Later that day the parties appeared before the acting Senior Commissioner and informed her that negotiations had failed. At that time counsel for the respondent made an application for the appellant to provide further and better particulars of his answer to the claims as a number of matters had been raised in cross-examination of the respondent that had not been raised in the proceedings. These matters were:
(a) allegations relevant to animal welfare;
(b) of conflict of interest;
(c) the respondent using for his own personal use the appellant’s fire pump;
(d) the possible theft of an electric fence unit (ts 377).
83 The respondent’s counsel also made an application that there be a direction that cross-examination be limited to the issues raised in the appellant’s particulars provided on 8 June 2009 and that the time for presentation of the appellant’s case be limited to those issues.
84 The appellant’s agent, Mr Tony Palermo, did not respond directly to issues about the particulars but said that it was the appellant’s view that the respondent had prolonged the case as during cross-examination the respondent had been evasive and had not answered many questions (ts 382). The acting Senior Commissioner acknowledged that the appellant’s agent had been frustrated but then importantly said (ts 383):
SCOTT ASC: The … the difficulty … part of the difficulty … and … and I appreciate you saying that with the benefit of hindsight you might have done things differently yourself. One of the concerns I have is that at this point, with having had three days of evidence, it's not clear to me what is the basis for dismissal such that the applicant has to prove his case against those - - -
MR T. PALERMO: Sure.
SCOTT ASC: - - - those things.
MR T. PALERMO: Well - - -
SCOTT ASC: And at this point there's been a lot of evidence that you've brought or a lot of things you've put to the applicant, such as documents that I've commented on that you don't need a document to ask a question.
MR T. PALERMO: Sure. Sure.
SCOTT ASC: And I think that's a question of your experience in this area and I … I don't criticise you for that, but I'm just saying that's one of the things that has a tendency to take longer than is necessary because you are attempting to … to do it in a way that you think is appropriate when it's not necessary, but what … what I'm concerned about is that if you're going to get to particulars of misconduct and particulars of performance issues, we've been a long way down the track in the evidence and those things haven't yet become clear.
85 The appellant’s agent then informed the acting Senior Commissioner that they had no issue with the acting Senior Commissioner exercising her power under s 27(1)(ha) of the Act and also agreed to provide particulars of misconduct and performance issues (ts 384). The appellant’s agent, however, informed the acting Senior Commissioner that he was not in a position to provide those particulars that day but because of other commitments he needed 60 days and could provide the particulars by 14 December 2009. The acting Senior Commissioner pointed out to the appellant’s agent that one would have thought that being halfway through the cross-examination of the respondent he would be able to state in short form the reasons why the respondent was dismissed (ts 386). The acting Senior Commissioner then said:
SCOTT ASC: Well, look, I understand you've got a life outside of this place.
MR T. PALERMO: - - - that's … that's the problem.
SCOTT ASC: That doesn't alter the fact that I … I need to get this hearing on track.
MR T. PALERMO: Yes.
SCOTT ASC: And what I - - -
MR T. PALERMO: But all we ask is some additional time.
SCOTT ASC: - - - I'm looking at issuing directions. I don't want to issue a direction that is going to be oppressive on you. By the same token, the … the applicant ought to be able to know at this point in time, at this point in the hearing … he ought to have been able to know before the hearing, the specifics of the … the reasons for dismissal.
MR T. PALERMO: Well we obviously feel that the reasons are outlined. If you want to issue directions for further clarification and further statements - - -
SCOTT ASC: All right. All right.
MR T. PALERMO: - - - there is no problem at all.
SCOTT ASC: All right. Thank you for that.
MR T. PALERMO: So if … if I can make perhaps the final request, if, say, by 14 or 15 December, I'm sure that we'll … we'll have it as soon as practicable - - -
SCOTT ASC: All right, thank you, Mr Palermo. The other issue that I wanted to raise with you is … is this issue of limitations on the period of time it will take for the parties' respective cases. Now, what I'd ask you to do, Mr Palermo, is give some thought to time frames, and I appreciate that you've had some difficulty. I don't deny the difficulty you've had that Mr Rosenthal has not promptly answered your questions and sometimes that's … that's been … well, I won't comment on that, but … but I've had to direct him on a number of occasions to answer that question … that … that's not denied and I think he would need to be … there's a skill to asking questions that enables the questioner not to get drawn into a debate and I think that's something you need to focus on, too, which would assist on … in moving things along.
What I would ask you to do is some … give … give some thought to putting down in writing to me the names of your witnesses and how long you anticipate that each of them will take in examination-in-chief and how much longer you think … given the history to date, how much longer you think you will be with the applicant, given the issues you're going to identify as being specific reasons for dismissal and I'll ask the applicant's solicitors to do the same so that I will have a schedule and we can keep a running tally of how things are going so that I can move things along and ensure that we're not going off down different burrows behind different rabbits.
MR T. PALERMO: Very well. I … I don't have any objections to that.
86 On 5 November 2009, the acting Senior Commissioner made an interlocutory order requiring among other matters that the appellant provide further and better particulars of defence. In the reasons for decision given when making the order made on 5 November 2009 the acting Senior Commissioner stated she was concerned at the pace at which the hearing was proceeding and she wished to put in place mechanisms for focussing the parties’ attention on the issues in dispute between them and for specifying and limiting the times for the conduct of the hearing. The acting Senior Commissioner also recorded in the reasons for decision that although the appellant had filed and served a document dated 8 June 2009 which provided some further and better particulars of the appellant’s reasons for dismissal other matters continued to arise during the course of the hearing and it was difficult to determine whether they were matters upon which the appellant relied for its decision to terminate the employment and thus relevant to the proceedings.
87 On 7 December 2009, the appellant responded to the acting Senior Commissioner’s order in respect of further and better particulars of alleged misconduct and performance issues in a letter stating that these ‘are fairly well outlined in the Respondent’s statement of 8 June 2009’. The letter then set out some additional information. This information was as follows:
· The documentation that has to date been submitted in evidence and documentation that will continue to be submitted in evidence consists of documentation from Mr Vic Matthews during the period of his employment, documentation during the period of Mr Rosenthal's employment, and documentation post-Mr Rosenthal's employment. The documentation consists of rainfall charts, hay cutting records, fertiliser records, farm reports, general farm documentation, and all details relating to stock numbers. The records that apply and that have been submitted during Mr Mathews' [sic] employment were left to Mr Rosenthal upon him taking up full time employment as a basis and guide from which to work from. Mr Rosenthal was aware of the content of the documentation as he immediately prior to his full time appointment had been working on a part-time basis assisting Mr Matthews and was made fully aware of the documentation required to conduct the farming operations. Mr Matthews will give evidence that these records were not only provided to Mr Rosenthal but explained to him. Mr Rosenthal had denied, and in the first instance, not even acknowledged the existence of the records, but then has given evidence that he was not aware of the content of the records provided to him by Mr Matthews. Mr Rosenthal during cross examination then reluctantly admitted to the records being in the ‘office’. Records are paramount to conducting the farming activities and that is the reason why the documentation has been submitted and will continue to be submitted in evidence.
· Upon Mr Rosenthal resigning due to his father's illness, his work performance deteriorated. He has so far given evidence that he had no record and was not able to keep stock number records, produce farm reports, and document other farming matters as a computer was not provided to him. Mr Rosenthal kept a pocket notebook as did Mr Matthews from which stock numbers and movements were recorded. A computer was offered by me but the offer was not taken up on. Mr Rosenthal stated he did not know how to use one. If Mr Rosenthal can avail himself to provide a full and itemised reconciliation of all matters to do with stock prior to the hearing reconvening, then I estimate that not only will his time on the stand be reduced to say, 1 to 2 days, but possibly many of the other witnesses may not be required at all.
88 The letter also made a written request that the acting Senior Commissioner reconsider her decision not to allow Laurie Rosenthal and Nadine Rosenthal to appear to give evidence. The appellant firstly stated that if the acting Senior Commissioner stood by her ruling that he would have no alternative but to lodge an appeal against the ruling. The second reason given for the request was that:
Evidence has so far been given by Mr Rosenthal of certain critical information that was processed on Mrs Rosenthal Senior's computer. Despite continuous requests, the computer has not been produced. Mrs Rosenthal Senior is required to give evidence not only of the ownership of the computer but of the information that was processed on her computer. I can have a computer analyst examine the computer either at or prior to the hearing continuing so as to reduce hearing time. Mr Rosenthal Senior is required to give evidence as it appears from what Mr Rosenthal has stated in cross-examination that at times while he was on leave he consigned the farm and all farming operations without authority to his father. His father needs to be cross-examined as to the duties he undertook, stock numbers consigned to him and stock numbers re-consigned upon completing his ‘caretaking’ role.
89 The appellant sought leave in the letter to amend any defence matters with a right to have the ability to set-off and counterclaim for damages that he had incurred either as a result of the respondent’s negligence or refusal to attend to duties. This application was refused by the acting Senior Commissioner on grounds the Commission has no power to award damages to an employer ([47] reasons for decision given on 6 July 2010).
90 The appellant’s letter dated 7 December 2009 also set out the following list of the names of the appellant’s witnesses and an estimate of times for examination in chief and cross-examination:
· Charles Rosenthal - 3 to 8 days
· Mr Rosenthal Senior - 1 day
· Mrs Rosenthal Senior - 3 hours
· Chantel Rosenthal - 3 hours
· Vic Matthews - 2 to 4 days
· Tony Palermo - 1 to 8 days
· John Palermo - 6 hours
· Noel Nancarrow - 4 hours
· Todd Nancarrow - 4 hours
· Bob Nancarrow- 4 hours
· Michael Venn - 1 day
· Tim Venn - 2 days
· David Cabassi - 2 days
· Rachel Cosentino - 2 hours
91 The appellant also stated in the letter that if some matters could be adhered to and agreed to prior to the rescheduled hearing he could see no reason why the rescheduled hearing could not be completed in three to four days.
92 As set out above, the appellant purported to provide the further and better particulars of alleged misconduct and performance issues in a letter dated 7 December 2009. However, the information provided did not clearly state any issues of misconduct and performance. Importantly the matters raised did not address any of the issues raised by the appellant’s counsel on 21 October 2009 (ts 377) as issues that had been raised in cross-examination that were outside the parameters of the particulars given on 8 June 2009.
93 The appellant’s letter of 7 December 2009 also purported to contain an estimate of the time needed to complete cross-examination of the respondent and examination in chief of the appellant’s witnesses as approximately 14 days to 30 days. We use the word purported as the timeframes suggested for some witnesses could not be described as proper estimates because of the wide scope of time said to be required for some witnesses.
94 On 21 January 2010, after a speaking to the minutes the acting Senior Commissioner made the following interlocutory order that the Commission:
1. Declares that the periods set out in Order 2 hereunder are those reasonably necessary for the fair and adequate presentation of the parties' respective cases;
2. Orders that the parties shall present their cases in accordance with the maximum periods set out below:
(a) completion of the cross examination of the applicant, Charles Henry Rosenthal – a further day;
(b) completion of the evidence of Victor John Matthews:
(i) examination in chief – a further half day or 2.5 hours, whichever is greater;
(ii) cross examination – 1.5 hours.
(c) evidence of Tony Palermo:
(i) examination in chief – 2 hours;
(ii) cross examination – 1.5 hours.
(d) evidence of John Palermo:
(i) examination in chief – 2 hours;
(ii) cross examination – 30 minutes.
(e) evidence of Noel Nancarow:
(i) examination in chief – 1 hour;
(ii) cross examination – 10 minutes.
(f) evidence of Todd Nancarrow, Bob Nancarrow, Michael Venn and Tim Venn:
(i) examination in chief – 1 hour each:
(ii) cross examination – by application, provided that it shall be no more than thirty minutes each.
(g) evidence of David Cabassi:
(i) examination in chief – one hour;
(ii) cross examination – 20 minutes.
3. Orders that closing submissions be made orally at the conclusion of the evidence, with each of the respondent and applicant being limited to 1 hour.
4. The hearing of this matter shall be re listed for a period of 5 days at which time it shall conclude unless further time is allowed.
95 The acting Senior Commissioned issued reasons for decision for making this order on 15 January 2010. In her reasons the acting Senior Commissioner observed [10] – [27]:
I have considered the history of this matter. That history includes that the matter was listed for three days, and it was listed for a further two days, although some of that latter period was utilised for conciliation. Mr Rosenthal's evidence has already taken an inordinate time due to the way questions have been framed; an inefficient and time consuming method of cross-examination; a lack of clarity as to the reasons for dismissal, and due to Mr Rosenthal being reluctant to answer and unhelpful in answering questions such that he was required to be directed to answer on a number of occasions. The manner in which the respondent in particular has approached the hearing to date has lacked discipline and if such an approach were to continue, it is conceivable that the hearing would drag on indefinitely. This is further evidenced by the lack of precision in the respondent's estimates of the length of time it will take for examination in chief of Mr Tony Palermo, the respondent's own agent, where the estimate is between one and eight days, and for Mr Matthews, a further two to four days.
The Commission is not obliged to allow parties to take as long as they please. It has an obligation to conduct hearings in an expeditious manner, and to do so in a manner which is fair to both sides. To allow one side to proceed in a manner which places no obligation on that party to conduct it's case efficiently would be an inefficient use of the Commission's time, but also unfair and costly on the other party. Section 27(1)(ha) recognises the need for the Commission to impose limits in appropriate circumstances.
Reviewing the history of this matter has reinforced my view as to the need for and appropriateness of issuing orders for the purpose of limiting the period for presentation of the parties' respective cases pursuant to s 27(1)(ha) of the Industrial Relations Act, 1979 (‘the Act’) to ensure that the hearing is conducted in a manner envisaged by s 26(1)(a) of the Act, in particular by the respondent's proposals in respect of the length of time that it intends its witnesses to be under examination in chief.
I note also that the respondent suggests that Chantel Rosenthal be under examination for three hours, however, Chantel Marie Rosenthal, the wife of the applicant, gave evidence on 2 September 2009 and was cross-examined. Her evidence concluded that day. There is no indication as to why she ought to be recalled.
The respondent seeks that I reconsider my decision made early in proceedings to discharge summonses issued to Mr Rosenthal Snr and Mrs Rosenthal Snr. The suggestion contained within Mr Palermo's letter of 7 December is two-fold:
1. That if I do not reconsider that ruling then he ‘will have no alternative but to lodge an appeal against the ruling’.
2. That evidence given by the applicant:
‘of certain critical information that was processed on Mrs Rosenthal Senior's computer. Despite continuous requests, the computer has not been produced. Mrs Rosenthal Senior is required to give evidence not only of the ownership of the computer but of the information that was processed on her computer. I can have a computer analyst examine the computer either at or prior to the hearing continuing so as to reduce hearing time’.
I have considered whether it is appropriate to reconsider my earlier decision regarding Mr and Mrs Rosenthal Snr being summonsed and my view on that matter has not changed.
The evidence given by Chantel Rosenthal as to her use of the computer stands. Appropriate conclusions can be drawn from that applying the rules of evidence. Furthermore, it would appear that Mr Palermo wishes to examine Mrs Rosenthal Snr not only as to the ownership of the computer but about the information that was processed on her computer. The only question which arose during Chantel Rosenthal's evidence was the date upon which a particular document was typed. Her evidence stands as it is and there is no indication as to why that evidence should or should not be accepted. Further, there is no indication of what, if any, further evidence regarding ‘information that was processed on her computer’ was necessary for the purpose of this hearing, and why Mrs Rosenthal Snr ought to be examined about that.
As to Mr Rosenthal Snr, the respondent says that he is required to give evidence:
‘as it appears from what Mr Rosenthal (the applicant) has stated in cross-examination that at times while he was on leave he consigned the farm and all farming operations without authority to his father. His father needs to be cross-examined as to the duties he undertook, stock numbers consigned to him and stock numbers re-consigned upon completing his “caretaking” role’.
There is no indication as to how this information is relevant. It appears to go back to the question of stock numbers which Mr Palermo suggests were not as they ought to have been, whilst he denies there is any allegation of theft against the applicant.
The questions which are before the Commission relate to the applicant's performance of his duties. He has given evidence of the circumstances under which he took leave and his father undertook duties for him. I see no relevance in further examination of this issue in terms of evidence from Mr Rosenthal Snr. I am of the view that Mr Palermo is seeking to use this hearing to gather information for purposes other than responding to the claim before the Commission, a matter clarified with Mr Palermo early in proceedings.
In respect of the evidence of Victor John Matthews, he was under examination in chief on 2 September 2009 from 2:00pm until 4:00pm. For it to be suggested that his evidence in chief should now take between two and four days, without explanation, makes it difficult to accept that this is a fair and reasonable estimate of the time required of him. Further, an examination of the transcript of the examination in chief on that day demonstrates that his examination could have been far more efficiently and effectively conducted in a shorter period of time that it took to that point. There was also a great deal of repetition in the questioning of him. Accordingly, I am prepared to allow Mr Matthews' examination in chief for a further half-day or 2.5 hours.
As to the applicant, Charles Rosenthal, the respondent says that it requires him to be cross-examined for between three and eight further days. Mr Rosenthal has already been under cross-examination for almost all of 1 September 2009, for more than half of the morning on 2 September 2009, and all day on 20 October 2009. In deciding how much more time should be allowed for the cross-examination of Mr Rosenthal, I note how long he has already been under cross-examination; how long the hearing was originally scheduled for; that Mr Rosenthal has, from time to time, been directed by me to answer questions put to him because of his lack of cooperation, and that during the hearing of 20 October 2009, Mr Palermo responded to a question regarding the timing of Mr Rosenthal's cross-examination and of Mr Matthews completing his evidence. Mr Palermo said:
‘Yes. Mr Matthews has been programmed to be here tomorrow and, hopefully, we'll get through Mr Rosenthal's evidence today.’ (Transcript page 259).
In all of those circumstances, I conclude that one further day of cross-examination of Mr Rosenthal, the applicant, ought to be quite adequate.
As to examination of the respondent's own witnesses, the respondent suggests Mr Tony Palermo's evidence will take between one and eight days. Given that Mr Tony Palermo is conducting the case for the respondent, this is an extraordinarily inadequate and poor estimation and one is led to the conclusion that there has been no genuine attempt to make any proper estimate. One would have thought that Mr Palermo would know how long his evidence will take. In the circumstances, Mr Tony Palermo's evidence is to be scheduled for two hours.
As to John Palermo's evidence, it is suggested that his will take six hours. Given what I perceive to be gross over-estimations and unreasonable estimations of time for the respondent's witnesses, and not having any information as to what evidence John Palermo would give during that six hours, I intend to order that his evidence be limited to two hours.
Likewise, the estimates of the time for the evidence to be called of Noel Nancarrow, Todd Nancarrow, Bob Nancarrow, Michael Venn, Tim Venn and David Cabassi appear to be unreasonable. In the case of each of these witnesses, I will schedule their evidence for one hour each.
As to the respondent calling evidence from Rachel Cosentino, Ms Cosentino is the applicant's solicitor representing him during these proceedings. There is no explanation as to why she would be able to give any evidence of a relevant nature in this matter. In the absence of such an explanation, it is not my intention to provide any time for her to be examined by the respondent.
The times for cross-examination of the respondent's witnesses do not appear to be unreasonable given the times for examination in chief which I have set out above. However, where the applicant has indicated that ‘0 hours will be required for cross-examination’, I will allow the applicant to apply to cross-examine those witnesses once their evidence has been given, provided that cross-examination is limited to 30 minutes in each case.
The closing submissions shall be made at the conclusion of the hearing, orally. The parties shall each have one hour for closing submissions.
Minutes of Proposed Orders shall issue reflecting these time limits.
96 The appellant contends in the grounds of appeal that the time limits imposed on the presentation of the appellant’s case were imposed because the acting Senior Commissioner lost control of the proceedings. Such a contention is untenable. It is apparent from the transcript that clearly at no time did the acting Senior Commissioner lose control of the proceedings. As the acting Senior Commissioner aptly observed the Commission is not obliged to allow parties to take as long as they please. When hearing the appeal against the decision of the acting Senior Commissioner made on 21 January 2010 the Full Bench in Palermo v Rosenthal [No 1] observed that one of the objectives of case management in most courts and tribunals is the reduction in trial and hearing times. The Full Bench then went on to say [55]:
In our opinion, the recent observations of Palmer J in Tobin v Ezekeil [2008] NSWSC 1108 where he said that litigants are not free to expend as much of the Court's resources as they wish [36], reflects an appropriate principle of case management that should be applied in matters before this Commission. His Honour also aptly said [37]:
Litigants are entitled to a fair opportunity to present their case; that does not mean that they can take as long as they like in doing so. The judicial time and administrative of this State's courts are strained by the press of litigants seeking to have their cases heard quickly and efficiently. No one litigant has the right to insist that his case will consume as much of the Court's time and resources as his own pockets will bear.
97 Having read the whole of transcript of proceedings of the hearing before the acting Senior Commissioner it is apparent that the making of the order to impose time limits was made in an attempt to focus the appellant’s agent on the task of properly running the appellant’s case. It is also clear that at no time did the acting Senior Commissioner lose control of the proceedings. A reason why the hearing was protracted was because of the inefficient manner in which the appellant’s agent conducted the appellant’s case.
98 It is also clear that the respondent was not a helpful witness. He and the appellant’s agent often engaged in combative exchanges which resulted in numerous directions by the acting Senior Commissioner to the respondent to answer the question that had been put (ts 98, 99 - 100, 107, 137, 192, 195, 200, 204, 259, 265 - 266, 273, 282, 308, 309, 365 and 405). However, the fact that the respondent was an argumentative witness did not absolve the appellant from the responsibility of conducting his case with some semblance of efficiency.
99 The pivotal inefficiencies in the running of the appellant’s case were:
(a) The particulars of alleged misconduct and poor performance provided by the appellant were so vague and nebulous that it was difficult to discern what were the acts and omissions relied upon by the appellant in taking action to dismiss the respondent;
(b) The cross-examination of the respondent was inquisitorial in the sense it took the course of an investigation to ascertain whether the respondent had engaged in misconduct and whether his performance was poor. The cross-examination of the respondent was also repetitive, inefficient and failed to reveal the basis of the decision to dismiss. These inefficiencies were patently revealed when the appellant’s agent was asked to provide in short form the reasons for dismissal on 21 October 2009 after at least three days of cross-examination of the respondent and Chantel Rosenthal, and the appellant’s agent was unable at that point in time to do so.
100 Whilst the concept of relevance should in general not confine too tightly the cross-examination of a witness, it is abundantly clear from reading the transcript that prior to making the order to impose the time limit an inordinate amount of time was wasted by the appellant’s agent in conducting the appellant’s case. This did not improve when the hearing resumed in May 2010. Not only was a substantial amount of time spent by the appellant’s agent of questions of the respondent that were irrelevant, the appellant’s agent asked many repetitive questions which in turn many of these questions did not and could not by their nature adduce any relevant evidence. He also asked questions in a way that was provocative and argumentative. Also many questions were vague and the agent often raised the same questions repeatedly as it appears he did not accept many answers that were given by the respondent (see for example ts 94, 129, 208, 264, 461-462 and 510).
101 The appellant’s cross-examination of the respondent appeared to have no structure. The appellant’s agent often started asking questions on one area, switched to other areas, returned to an area that he had asked a lot of questions about previously and asked many questions that he had previously asked. Whilst moving between areas of cross-examination is not unusual with some repetition even by those experienced in the art of cross-examination, the degree and extent to which this occurred was remarkable.
102 The appellant’s agent did not properly adduce evidence during cross examination. For example at ts 312 and ts 437 he asked the respondent questions about firebreaks and then at ts 525 he referred the respondent to an issue about a penalty notice from the Shire of Murray for non compliance with firebreak regulations but did not pursue the issue after the respondent asked to see a copy of the notice
103 Even after the order was made to impose the time limits the appellant’s agent’s cross-examination of the respondent continued in this manner and failed to reveal with any particularity the grounds for dismissal. Much of the cross-examination of the respondent was taken up by an examination of entries made by the respondent in the diaries. The cross-examination of the respondent ranged the entire period of employment of the respondent as farm manager, as the appellant’s agent took the respondent painstakingly through almost all of the diary entries made by the respondent. Yet the questioning of daily activities of the respondent revealed very little evidence that could assist the acting Senior Commissioner in determining whether the appellant had discharged the evidentiary onus of proof that misconduct had occurred.
104 The questioning of the respondent appeared to proceed on the basis that if enough questions were asked and were repeated, a substantial ground of misconduct or poor performance justifying dismissal would emerge.
105 The appellant’s agent also tried to use the cross-examination of the respondent to obtain information for matters that were unrelated to any issue that properly could be in dispute in the proceedings before the acting Senior Commissioner. For example, questions were asked about whether monies were outstanding to three farm hands that were employed by Palermo Farms, whilst the respondent was employed by the appellant (ts 206 - 207 and 291 - 295).
106 Even when the hearing resumed on 5 May 2010 and the cross-examination of the respondent resumed the appellant’s agent was unable to particularise the issues that arose as the reasons for dismissal. When asked to address those issues by the acting Senior Commissioner the appellant’s agent said (ts 401):
MR T. PALERMO: Well, they're not … they're not things that I can address readily right now because it goes down to … to the … to our case. We haven't … even with the … with the diaries, we … we were just starting to lead on to the reasons for the dismissal and I'd prefer to actually outline those and articulate those at … at … in … in good time once I go through the rest of the diaries and … and with - - -
SCOTT ASC: Well - - -
MR T. PALERMO: - - - Mr Rosenthal under cross-examination.
107 On 5 May 2010, the appellant’s agent raised an allegation for the first time that the respondent had stolen stock from Palermo Farms. When questioned by the acting Senior Commissioner why that allegation was now being put and whether what had previously been alleged had changed, the appellant’s agent said (ts 465):
MR T. PALERMO: Commissioner, you must take my comments at the time in the context of what went on and the documentation that we have … now have to hand.
SCOTT ASC: I don't know what that means.
MR T. PALERMO: I … well, the question of theft was not an issue at the time. After taking a statement of evidence from Mr Matthews, it is now a question of theft and that's why we are putting that question.
108 If an allegation of theft of stock was contemplated to be possible it is extraordinary that the appellant’s agent did not take a statement from Mr Matthews prior to the hearing commencing or at least prior to the purported further particulars of defence being provided in December 2010.
109 The appellant’s agent then went on to say that they had been unable to reconcile stock numbers and if they did not reconcile there was only one conclusion and that was someone had taken stock (ts 465 - 466). The acting Senior Commissioner then adjourned the hearing to consider whether the appellant should be allowed to amend its grounds of answer to allege theft. When the hearing resumed on 6 May 2010 the acting Senior Commissioner informed the parties that the application to amend was refused. It later emerged that Mr Matthews was unable to provide evidence on which such an allegation could be based. On 13 May 2010, Mr Matthews gave evidence that when he recommenced employment as the farm manager in December 2008 he could not reconcile the stock numbers (ts 658). When questioned by the appellant’s agent about 149 cows that did not produce a calf (referred to in the evidence as dries or dry cattle) he was asked what could possibly cause that result, Mr Matthews said (ts 658):
Bulls unable to serve the cows; cows being able to get away from the bulls inasmuch that they were spread between too many paddocks; the nutrition of the animals was not sufficient because they wouldn't cycle.
110 He was then asked by the appellant’s agent, ‘Is it possible that cattle may have disappeared?’ In reply Mr Matthews said (ts 658):
I found no evidence of that at all, Tony, with the numbers you gave me.
111 As to the claim that the time limits on the presentation of the parties’ cases left no time for the appellant, his agent and other proposed witnesses to give evidence, it is apparent that the appellant ran out of time because of the inefficient way the appellant’s case was run. Firstly, the appellant appeared to be of the view that no further evidence needed to be led on behalf of the appellant as the respondent’s evidence could not establish a finding that he had been harshly, oppressively or unfairly dismissed (ts 725). In closing submissions in reply the appellant’s agent said (ts 725):
I can't see from the summary that was provided how for the life of me it can be deemed to be … that the dismissal was harsh, oppressive and unfair. They're strong words and nothing that was said would indicate support for those. Whether I decided to give evidence or not, that's up to me. Whether other witnesses or whether it was decided whether to call other witnesses or not, that's up to the respondent, but for the benefit of the Commission, one of the reasons why … one of the important reasons why that was the case is because the respondent and I formed the view that nothing that was provided or … or demonstrated by the applicant could in any way be deemed to be harsh, offensive and unfair and to add to the pain, it was considered not necessary.
112 He also said (ts 727):
The fact that some of the statements made by Mr Rosenthal remained unchallenged, his evidence will speak for itself. There was no reason to challenge anything. That's why we saw fit not to introduce other witnesses because there was no need. As far as the number of witnesses, well I think I have said that before. Well, I would love to have called all those people, but we would have been here till doomsday, but in any event, at the end of the day, it's up to the applicant to prove. It's not up to the respondent to disprove. It's up to the applicant to prove.
113 Secondly and importantly, the transcript records reveal that time was available for the appellant to call evidence about the respondent’s performance, alleged misconduct and reasons for dismissal, as the appellant through his agent elected not to use all of the time allocated for his case. The appellant sought and was granted additional time to cross-examine the respondent. Whilst some of this time was deducted from the time allocated to the appellant’s witnesses, not all of the time allocated to the appellant’s case was used. On 5 May 2010, the acting Senior Commissioner had planned to sit until 4:30 pm but she adjourned the hearing at 3:07 pm to consider whether the appellant could amend his particulars of defence to allege theft (ts 465). When the hearing resumed the following day on 6 May 2010 at 10:30 am she informed the parties that one and a half hours allowed for the cross-examination of the respondent would be added (ts 469). Later that day the appellant’s agent informed the acting Senior Commissioner that it would not be necessary to call all of the witnesses the appellant intended to call and that the appellant was keen to conclude the case within the time allocated. In particular he said (ts 507 – 509):
MR T. PALERMO: Commissioner, we … we're all conscious of time and … and we are as well. You have allocated today, tomorrow and I think next Thursday and Friday.
SCOTT ASC: Yes.
MR T. PALERMO: So it is your desire, and it's certainly our desire, to finish the whole case by next Friday.
SCOTT ASC: Yes.
MR T. PALERMO: And we'll try and make up the time in some way if we possibly can. What we've discussed is that based on what has come out so far, it may be that some of the witnesses that we were going to call may only be to reinforce, repeat or perhaps not add much. They will certainly be able to add things, but it's a question of our judgment as to how much more they can add and having considered that, we … and considering we have got to finish … or certainly try and finish on time - - -
SCOTT ASC: Mm'hm.
MR T. PALERMO: - - - we have considered that perhaps some of these witnesses … or not perhaps, but we have considered that some of these witnesses we can possibly do away with - - -
SCOTT ASC: Mm'hm.
MR T. PALERMO: - - - thus saving time and finishing on time with the proviso that, basically, we … we may review this … the schedule pursuant to your order of 21 January and … and maybe look at those people and just rearrange the time, so if that's in order I … I can do that now, if you like.
SCOTT ASC: Well, tell me what you propose and … and I'll - - -
MR T. PALERMO: All right. As far as the evidence of John Palermo, we can delete that. That will save two-and-a-half hours. Mr Noel Nancarrow is away and he's the … he's the Shire President and he's the one that does the hay and he would have been very crucial also, but he … he's away. He's away for a month.
SCOTT ASC: Mm'hm.
MR T. PALERMO: And after that he's … I understand he's going to have (indistinct) and formal council duties. So if we are not able to have Mr Nancarrow appear after next Friday, then Mr Nancarrow will also have to go by the wayside and I think you have indicated strongly that you don't want to have this going past next Friday but - - -
SCOTT ASC: Mm'hm.
MR T. PALERMO: - - - if you are then, we … we would … we'd love to have Mr Nancarrow, but if your ruling is no, then Mr Nancarrow can't appear.
SCOTT ASC: Anything further?
MR T. PALERMO: That's another one … now 10 minutes.
SCOTT ASC: Mm'hm.
MR T. PALERMO: Todd Nancarrow, Bob Nancarrow, Michael Venn and Kim Venn, you have allocated one hour each. I would foresee calling one of those people. I don't know which one yet, but one that will basically be able to … that knows the land and … and tell us in summary form as much as possible what we need to ask, so we can save three hours there.
SCOTT ASC: Mm'hm.
MR T. PALERMO: David Carbassi, I think will be necessary. So at the moment we have got three, four, five, six; there's about … about seven hours and if we are still running … or appear to be running short of time, then even my evidence would be the next down the firing line because I think the Commissioner has probably got the gear of how I feel on it, anyway, notwithstanding that I haven't been on the stand under oath, et cetera, but … but I'd like to … to do that, but if we're running short of time then in the interests of finishing on time, that's … that's the way - - -
SCOTT ASC: Can I say to you, Mr Palermo, it's not a matter of me knowing what you feel about the situation.
MR T. PALERMO: Sure.
SCOTT ASC: It's a matter of - - -
MR T. PALERMO: I'm sorry, they're the wrong words.
SCOTT ASC: No, no, no. If … if you need to bring evidence, you need to bring that and a statement from the bar table does not have the same weight - - -
MR T. PALERMO: Yes.
SCOTT ASC: - - - as when you're under … under oath and under cross-examination.
MR T. PALERMO: Yes.
SCOTT ASC: So I wouldn't want you to think that I would give what you say from the bar table any weight when it came to that being in conflict with anything that I heard under oath.
MR T. PALERMO: Yes. I … I … look, I know better. Perhaps I … I put it in the wrong - - -
SCOTT ASC: You're being optimistic.
MR T. PALERMO: - - - in the wrong way.
SCOTT ASC: Yes.
MR T. PALERMO: So there's … there's seven hours and, again, you know, in the interests of finishing on time, so if … if that's okay and we can have some of that latitude, I have started to take a statement from David Carbassi. He would … he's instrumental in … in … he's an experienced man, but one hour may be a little bit short for Mr Carbassi, but, you know, we have to then manage our case with the time that we have got available.
114 The appellant’s agent then sought leave to further extend the time for cross-examination of the respondent and said that following the conclusion of the respondent’s evidence the appellant would immediately call Mr Matthews as the next witness (ts 510). In light of the discussion about witnesses the acting Senior Commissioner granted the appellant’s application to extend the time allowed for the cross-examination of the respondent until 4:15 pm that day.
115 The digital transcribing records record that on 7 May 2010 the hearing did not commence until 12:10 pm. The reason why the hearing started late was that the appellant was granted an adjournment to 12:00 pm so that the appellant’s agent could attend a status conference in the Supreme Court. When the hearing commenced on that day, the acting Senior Commissioner told the parties that she would sit extended hours to allow the respondent’s witnesses to give evidence and to allow time for submissions (ts 571). However the time allocated for hearing on that day was truncated as the appellant did not have any witnesses available and the appellant’s agent did not wish to give evidence that day. At 12:47 pm, the respondent’s counsel completed the cross-examination of the respondent. As the appellant’s agent did not have another witness available at that time, the hearing was adjourned at 12:48 pm for lunch. When the hearing resumed at 1:45 pm the appellant’s agent informed the acting Senior Commissioner that he was unable to call Mr Matthews as Mr Matthews had to attend a doctor’s appointment that afternoon. When asked why other witnesses (for the appellant) could not give evidence that afternoon, the appellant’s agent said (ts 581 - 582):
MR T. PALERMO: Oh, it's just the way we want to conduct the case and I seek that adjournment.
SCOTT ASC: Well, Mr … Mr Palermo, it's … it's not simply a matter of finishing within time. It's also a question of the Commission's time and convenience to all people, not merely to you. So whilst you have the right to conduct your own case as you see fit, you … you can't simply come along here and say, "We hadn't arranged any alternatives, therefore, we want to stop now."
MR T. PALERMO: Well, that is the case, Commissioner. The other witnesses were booked for … for next week and that's … that's the way - - -
SCOTT ASC: You're listed as a witness yourself.
MR T. PALERMO: - - - that's the way it is.
SCOTT ASC: You have listed … you … you have listed yourself as a witness, though.
MR T. PALERMO: Yes. I think … I think if you look back in your notes, I indicated that if the time was running short, I would be also one of the witnesses that wouldn't … wouldn't give evidence.
SCOTT ASC: So does that mean you won't be giving evidence?
MR T. PALERMO: I may not - - -
SCOTT ASC: All right.
MR T. PALERMO: - - - be giving evidence and it is not … not our intention to waste the Commission's time and I appreciate what you have said.
SCOTT ASC: Well, Mr Palermo, it seems to me … and I am very concerned. I appreciate you believe that we will still finish within time and I don't refer this to you specifically, but my experience is that things don't always finish on time, in fact quite often they don't finish on time. We're running very short of time as it is. You have seen what has happened over the last two-and-a-half days about breaks for various things, which do eat into time. All right. Let me give that some thought. Ms Cosentino, do you have comment?
MS COSENTINO: Only that I want a proper opportunity to cross-examine all of the witnesses called by the respondent. I want to have the time that has been allowed by the orders made in January 2010 to cross-examine the witnesses and if the respondent's conduct of the case is going to impinge on that time, then, in my submission, that will be prejudicial to the applicant.
SCOTT ASC: Well, it … it seems to me that there … there is an option and that is that if adjourn now, then I deduct that time from the time that's available for the respondent to conduct its case and given what Mr Palermo has just said, that would appear not to be a difficulty from their perspective. Are you … do you have any problem with that?
MR T. PALERMO: That's right, Commissioner. I think you have already been dealing with it on that basis and that's what we foreshadowed and - - -
SCOTT ASC: All right. All right. Then we will adjourn this afternoon and reconvene at 10 am on Thursday and the … the time that we lose this afternoon … and that's 2.5 hours … will be deducted from the time that the applicant … the respondent has to conduct its case and the times for cross-examination will remain as they are. Is there anything further?
MR T. PALERMO: Commissioner, just to clarify, that you are deducting 2-and-a-half hours from the balance of time left after today or from - - -
SCOTT ASC: From - - -
MR T. PALERMO: - - - including today?
SCOTT ASC: From the balance of … no. What I'm deducting it from is the times that would have been allocated for the presentation of your evidence.
MR T. PALERMO: Including today?
SCOTT ASC: Including the rest of today, yes.
MR T. PALERMO: That - - -
SCOTT ASC: Yes. All right. Anything further? No?
MS COSENTINO: No.
SCOTT ASC: All right, thank you. We'll adjourn till 10 o'clock next Thursday.
116 Consequently, the hearing adjourned at 1:50 pm that afternoon. The hearing resumed early on 13 May 2010 at 10:00 am. On that day Mr Cabassi and Ms Logan gave evidence on behalf of the appellant and Mr Matthews completed part of his evidence. On 13 May 2010, the appellant’s agent requested and was later granted an adjournment of the hearing on 14 May 2010 for half an hour to enable him to appear at another status conference in the Supreme Court. The acting Senior Commissioner had made arrangements to sit to 5:00 pm on 13 May 2010 but the hearing adjourned at 4:37 pm as the appellant’s agent did not wish to commence his re-examination of Mr Matthews until the next day (ts 687). At the end of the day on 13 May 2010, the acting Senior Commissioner informed the parties that the hearing would commence at 10:00 am on 14 May 2010, that they would sit until 5:00 pm and that all of the evidence would need to be completed by 3:00 pm which would allow each party an hour each for closing submissions (ts 687).
117 When the hearing commenced at 10:00 am on 14 May 2010, the appellant’s agent informed the acting Senior Commissioner that he would not be giving evidence and that after the evidence of Mr Matthews was finished, he would need a couple of hours (including over the lunch break) to piece together the final submissions and closing submissions could commence immediately after lunch (ts 689). The hearing resumed at 2:00 pm and closing submissions were concluded at 4:14 pm.
118 It is clear that the appellant’s contention that the imposition of time limits left no time for the appellant, Tony Palermo and other proposed witnesses to give evidence is not substantiated.
119 For these reasons it is our view that no error on behalf of the acting Senior Commissioner in exercising her discretion to impose time limits has been demonstrated.
Grounds 1, 7, 10 and 14
(a) Bias, judicial conduct and unfair trials – Legal Principles
120 The obligation on a member of the Commission when hearing a matter is to observe procedural fairness. This obligation includes the duty to hear and decide matters without bias or the appearance of bias. Bias means some preponderating disposition or tendency, a propensity, predisposition towards, predilection, prejudice. It may be occasioned by interest in the outcome, by affection, enmity or prejudgment: Minister for Immigration v Jia [2001] HCA 17; (2001) 205 CLR 507, 563 (Hayne J).
121 Grounds 1 and 10 raise the issue whether the appellant was denied procedural fairness on grounds of actual bias or apprehended bias by prejudgment. The test of whether the state of mind of a decision maker is affected by bias in the form of prejudgment is as Gleeson CJ and Gummow J described in Jia [74]:
is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
122 Actual bias is rarely raised as a ground to impugn a decision, as it is ordinarily sufficient to establish apprehended bias of a decision maker. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (492); R v Lusink; Ex parte Shaw (1980) 32 ALR 47; (1980) 55 ALJR 12; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; and Webb v The Queen (1994) 181 CLR 41. The test is objective.
123 Actual bias usually arises in the form of prejudgment. The distinction between actual bias and apprehended bias was explained by North J in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 as follows (134 - 135):
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG 451/1994, 24 June 1996) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout CJ in Re O'Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances.
…
[P]roof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.
124 The appellant also raises an issue in grounds 1 and 10 that the hearing was not fairly conducted. This raises the issue whether the appellant has had a proper opportunity to advance his defence to the applicant’s claims. In Michael v The State of Western Australia [2007] WASCA 100 Steytler P with whom McLure JA and Miller AJA observed [63]:
When the contention is one of an unfair trial, the test to be applied, according to Kirby A-CJ and Meagher JA (who agreed with Kirby A-CJ), is whether the impugned behaviour has "created a real danger that the trial was unfair": Galea at 281. If so, the judgment must be set aside: Galea at 281; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146. In R v Mawson [1967] VR 205, in which there had been excessive involvement or interference by the trial judge in the conduct of the case, the Court (Winneke CJ, Adam and Barber JJ) regarded the test as being whether there had been "such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice".
125 However, when considering the responsibilities of a judicial decision maker, it is important to bear in mind the tension between the need to control the proceedings, on the one hand, and to be, and be seen to be, dispassionate and impartial, on the other, with the result that the line between acceptable and unacceptable behaviour can be difficult to draw. This is compounded when one of the litigants is self-represented: Michael (Steytler P) [55]. Whilst the appellant was not self-represented he was and is represented by a lay agent. In Michael Steytler P said in relation to acceptable conduct [65] - [66]:
[I]t will often be necessary, particularly with self represented litigants, for a trial judge to intervene in order to stop irrelevant matters being raised (Love (1983) 9 A Crim R 1 at 26) and to prevent unnecessary delays or disruptions: R v Morley [1988] 2 WLR 963; Galea at 279; Lars (1994) 73 A Crim R 91 at 125. In Johnson at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
‘At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.’
Indeed, a trial judge who does not intervene to prevent undue delay and to ensure that the parties focus on the crucial issues may be criticised by an appellate court: R v Wilson and Grimwade [1995] 1 VR 163; Thompson at [39].
Next, a judge is entitled to ask questions of a witness, not only for the purpose of clarifying evidence, but also to test that evidence (R v Gardiner [1981] Qd R 394 at 406, 415; R v Senior [2001] QCA 346 at [36] per McMurdo P, Davies and Thomas JJA), although he or she should do no more than is absolutely necessary in that respect and should be careful not to take on the role of counsel.
126 As to conduct by a decision maker that oversteps the mark of acceptable conduct Steytler P said [71] - [72]:
Every judge knows that it is his or her duty to proceed in accordance with due process, independently, impartially and fairly. While judges are human, and can be expected to react with impatience or irritation from time to time, they are not expected to be rude: Lars at 133 (where the Court said that, while judges may be strong and forceful when necessary, they should, no matter what the provocation, always comport themselves with dignity). In Love, at 3, Wickham J said (in what might be a counsel of perfection) that:
‘… [F]ortunately the time has passed in the administration of the law in this State when a litigant, a witness or counsel is expected to put up with impatience or rudeness from the trial judge. Such conduct on the part of the judge may be understandable because of illness or provocation or stress due to the difficulties of the case, but it can never be excused. It is professional misconduct and should be roundly condemned. Such conduct does not necessarily lead to a miscarriage of justice but it might do so particularly where the trial is a trial by jury. Justice however will not often miscarry on that ground alone; usually other factors will be present to lead to that result.’
There is, in this respect, an important distinction between conduct that might be regarded only as discourteous or impatient or even rude (in the sense that it leads to no other consequence), on the one hand, and conduct which (whether or not discourteous, impatient or rude) obstructs counsel in the doing of his or her work (R v Hircock [1970] 1 QB 67 at 72 per Widgery LJ; Love, at 11) or which invites the jury to disbelieve the accused or his or her witnesses, on the other. A judge's interventions should not be such as to create the impression that he or she has identified himself or herself with one of the parties: Tousek v Bernat (1959) 61 SR (NSW) 203 at 209; Galea at 280.
127 When assessing whether the conduct of a decision maker amounts to actual bias, apprehended bias or results in an unfair trial the conduct is to be assessed in the context of the whole of a hearing: Michael [77] (Steytler P); see also Galea v Galea [1990] 19 NSWLR 263 (279 - 280) (Kirby ACJ). Judges and arbitrators are human and from time do react to provocation. As Steytler J in Michael points out [79]:
It is important, also, to evaluate the conduct of a trial judge in the light of any provocation offered to him or her. Judges are not superhuman. While they are expected to exercise restraint and, in the vast majority of cases, to resist anything other than a measured reaction to provocation, there will be occasions (hopefully, very rare) when this is extremely difficult or even impossible. In such circumstances an isolated outburst, or even a few isolated outbursts, will not necessarily result in a mistrial. So, for example, in Love the appellant was told by the trial Judge, on more than one occasion, that he was "sick and tired of him" (at 10). However, the appellant in that case "broke all the rules of fair combat" despite the trial Judge's efforts to maintain order (at 11, per Wallace J) and had defied the trial Judge. He had also taken advantage of the position that had arisen (at 26, per Pidgeon J). The Court was not persuaded that there was any miscarriage in those circumstances.
(b) Has bias been established or was the hearing unfair
128 The appellant argues that a number of rulings and actions of the acting Senior Commissioner were affected by bias. These were:
(a) Refusing to allow the production of books and documents by setting aside the summons to produce books and records of the purchase, sale, births, deaths, opening and closing stocks of cattle for the respondent’s family farm.
(b) Trying to change the way in which the appellant was running his case by informing the appellant’s agent on 21 October 2009 that he should provide particulars of misconduct and performance issues (ts 383).
(c) Making the interlocutory order on 5 November 2009 without giving the appellant adequate time to consider and make submissions about the proposed orders (ts 394 – 395).
129 The appellant also claims the following conduct of the acting Senior Commissioner displayed bias:
(a) The acting Senior Commissioner failed to exercise her discretion to waive the defects of service of a summons on the respondent to produce documents and deemed service of the respondent’s solicitor's sufficient service (ts 5, 404 – 405).
(b) The acting Senior Commissioner clearly made up her mind that she intended to find against the appellant when she refused to hear a submission about whether the appellant should be granted leave to amend his particulars of defence to allege theft (ts 467).
130 It is also argued that the acting Senior Commissioner wrongly allowed the respondent’s solicitor to raise the contents of an email which raised matters in discussion that occurred outside of the Commission (ts 380). It is said this ‘failure’ is evidence that the acting Senior Commissioner failed to control the proceedings and is also evidence of bias.
131 It is also contended that the acting Senior Commissioner displayed bias by expressing a disbelief that the appellant’s agent was required to attend status conferences in the Supreme Court which required the proceedings in the Commission to be adjourned (ts 397).
132 In relation to the conduct of the respondent’s counsel the appellant complains that the following conduct of the respondent’s counsel was unprofessional:
(a) The respondent’s counsel contacted the appellant’s proposed witness Mr Macri when Mr Macri was gravely ill.
(b) The respondent’s counsel improperly made enquiries of a solicitor acting for the appellant’s agent in a Supreme Court matter about the proceedings in the Supreme Court (ts 450, 470, 588 – 589).
(c) The respondent’s counsel sent a solicitor employed by the respondent’s solicitor to the Supreme Court to ascertain whether the appellant’s agent was attending a matter in the Supreme Court and this constituted ‘spying’ (ts 588).
The appellant says that the acting Senior Commissioner displayed bias against the appellant by criticising the appellant’s agent’s conduct as rude and discourteous towards the respondent’s counsel but made no criticism of the unprofessional conduct of the respondent’s counsel (ts 469).
133 The appellant also claims the acting Senior Commissioner unfairly refused to require the respondent’s counsel to provide a list of issues which the respondent contended were allegations that the appellant’s case should be confined to when the appellant was represented by an unqualified agent (ts 398, 399, 401 – 403).
134 Having read the entire transcript of the hearing and listened to the digital audio tape of part of the hearing on 5 May 2010 we are not persuaded that the acting Senior Commissioner pre-judged any issue or made any decision that an observer would reasonably regard as biased. Nor are we persuaded that the hearing was unfairly conducted.
135 As to the complaints of specific acts, conduct or rulings that the appellant says are indicative of bias we make the following observations:
(a) The setting aside of each summons is not indicative of bias. The mere fact that a member of a tribunal has decided against a party is no evidence of bias: Dudzinski v Kellow [2002] FCAFC 402 [2]. For the reasons set out above in these reasons, the acting Senior Commissioner did not err in setting aside the summonses to Laurie Rosenthal and Nadine Rosenthal. As to the summons to the respondent whilst the acting Senior Commissioner did not give reasons for setting aside the summons to the respondent, other than the documents sought which related to mitigation, the other documents sought were the same class of documents as the documents sought from Laurie Rosenthal and Nadine Rosenthal. As to the documents relevant to mitigation, there is no complaint that the respondent did not discover all documents in his possession that were relevant to the issue of mitigation.
(b) The acting Senior Commissioner properly required the appellant on 21 October 2009 to provide particulars of misconduct and performance issues relied upon by the appellant as after three days of cross-examination the reasons for dismissal were not clear. Such particulars were required as it is a fundamental requirement of the rules of procedural fairness that a party (in this case the respondent) should know the issues alleged against him: Ridge v Baldwin [1964] AC 40; Johnson v Miller (1937) 59 CLR 467 (489, 495, 497 – 498). The law is littered with cases that have found that proper particulars must be given. For example, it has been found that a trade unionist could not properly respond to a motion for expulsion when he was told he had ‘failed to comply with [the] rules, the resolution of Conference, and the instructions of the Federal Executive’: Rochfort v Ryan (1965) 8 FLR 283. A mere recitation of failing and refusing to attend to duties, legislative requirements, animal welfare and other requirements of cattle were insufficient in this matter without details of the actions that were said to be misconduct.
(c) When the transcript of the hearing is examined, it is clear that the acting Senior Commissioner did not refuse to hear a submission on behalf of the appellant as to whether leave should be granted to amend the appellant’s particulars to allege theft. The appellant’s agent put a submission for amendment and the respondent’s counsel made a submission opposing the amendment (ts 465 – 466). The appellant’s agent was then asked by the acting Senior Commissioner whether he wished to reply and the appellant’s agent started to say he wished to re-emphasise again when he was stopped by the acting Senior Commissioner who told him that there was no need to re-emphasise (ts 467). The rules of procedural fairness provide that parties are entitled to put a submission. The rules of procedural fairness do not entitle a party to repeat their submission.
(d) The email sent by the respondent’s solicitor that is the subject of a complaint of bias by the appellant is an email sent to the associate to the acting Senior Commissioner on 20 October 2009. In the email the respondent’s solicitor complains that the appellant’s agent attempted to serve a Minor Case Claim issued out of the Magistrate’s Court on the respondent in the Commission building. The respondent’s solicitor recited what was purportedly said by the appellant when service was attempted. The respondent’s solicitor made a submission in the email that attempted service was for the specific purpose of deterring the respondent from pursuing the proceedings in the Commission and was calculated to interfere with the administration of justice and that consequently the appellant’s conduct was an abuse or contempt of the Commission. The respondent’s solicitor also stated that they had serious concerns that the appellant’s conduct of his defence was vexatious and gave notice of an application for directions limiting the period for presentation of the parties’ respective cases pursuant to s 27(1)(ha) of the Act.
Whilst the attempted service of the claim did not occur during the hearing, the respondent’s solicitor was entitled to raise the service of the Minor Case Claim with the acting Senior Commissioner as such conduct occurred within the precincts of the Commission and whilst the respondent had not completed his cross-examination. In these circumstances the service of the Minor Case Claim could be viewed as conduct calculated to intimidate or harass a witness.
(e) Whilst it was unfortunate that Mr Macri was gravely ill when the respondent’s solicitor contacted him, the respondent’s solicitor at law was entitled to attempt to advance the respondent’s case by interviewing people who may be called by the opposing party as a witness. There is no ‘property’ in witnesses who are not parties: Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380, [1979] 3 All ER 177 (CA); R v Ward (1981) 3 A Crim R 171 (NSW CCA); R v King [1983] 1 WLR 411; 1 All ER 929; 77 Cr App R 1.
(f) There is no evidence that the acting Senior Commissioner expressed disbelief that the appellant’s agent was required to attend status conferences in the Supreme Court. On 5 May 2010, the acting Senior Commissioner simply informed the appellant’s agent that she would not consider his request for an adjournment for a period of time on Friday, 7 May 2010 until he had ascertained whether the respondent would consent to the application for an adjournment and that he could do that during the lunch break on that day. When the hearing resumed after lunch on 5 May 2010, the respondent’s solicitor informed the acting Senior Commissioner that her client would not consent unless details were received from the appellant’s agent’s solicitor about the hearing that was scheduled to occur in the Supreme Court on 7 May 2010 (ts 450). In response, the acting Senior Commissioner properly explained to the appellant’s agent (ts 450):
All right. Anything further you want to add at this stage, Mr Palermo? What I'd … what I'd propose to do is … you should be aware that … that Ms Cosentino's consent is not necessary for an adjournment. I need to consider any prejudice to either party by you not being able to have your adjournment and prejudice to the other side by the adjournment being granted. So when it comes to it, that's what I'll need to consider. If I grant the adjournment, then what I would want to be looking at is how we can make up that time during the remaining sitting days that we have got already listed. That would be my concern to ensure that we're going to get through the hearing by the end of next week, as it's scheduled.
(g) It would also not be appropriate to make any criticism of the respondent’s solicitor for making enquiries of the appellant’s agent’s solicitor in relation to the necessity of the appellant’s agent to attend status conferences in the Supreme Court as attendance at the conferences by the appellant’s agent required the appellant to obtain adjournments of the Commission proceedings. Consequently, the respondent’s solicitor was entitled make enquiries of the appellant’s agent’s solicitor and/or the Supreme Court as to whether the appellant’s agent was in fact required to attend the matters listed for status conferences in the Supreme Court.
(h) The complaint about an alleged failure to require the respondent’s counsel to provide a list of issues which the respondent contended were allegations that the appellant’s case should be confined to is also groundless and without any foundation. On 5 May 2010, the respondent’s counsel referred to the appellant’s particulars filed on 8 June 2009 and stated the respondent’s case was confined to the following allegations of failing to:
(i) provide paperwork for the financial year ended 30 June 2008;
(ii) comply with legislation in relation to branding stock numbers and weed control;
(iii) cart hay to storage;
(iv) attend to duties on 23 December 2008; and
(v) and refusing to attend to animal welfare (ts 398 – 399).
The appellant’s agent stated he disagreed with that proposition (ts 399). A discussion then occurred in relation to other matters and then the acting Senior Commissioner asked why did he disagree with the list of six items (ts 402). In reply the appellant’s agent asked for a list of those items in writing and claimed it was unfair not to be provided with a list prior to raising the matter so they could look at the list and provide a suitable response. When his application was refused he continued to repeat his demand for a list in writing (ts 402 – 403). This claim of unfairness is unmeritorious. Not only was the list very short, each item was a matter that was raised in the appellant’s particulars and had been the subject of extensive cross-examination of the respondent by the appellant’s agent. In fact, the appellant’s agent’s application for a written list appeared to be a ploy to avoid any discussion about proper particulars of the appellant’s case against the respondent.
136 The appellant also contends that at one point during the hearing the acting Senior Commissioner showed her bias when she became angry and her conduct was unacceptable. However, there was only one occasion which if viewed and considered in isolation, the conduct of the acting Senior Commissioner could be said to depart from the standard of courtesy and patience that is usually expected of a judicial officer. This was when the acting Senior Commissioner displayed impatience and was critical of the conduct of both the appellant’s agent and the respondent. There were aspects of the hearing that would have tested the patience of any judicial officer in an otherwise very lengthy hearing. The acting Senior Commissioner became frustrated and irritated by the behaviour of the appellant’s agent and the respondent. Her frustration came to a head at the end of the day on 5 May 2010 in an exchange after the acting Senior Commissioner told the appellant’s agent not to keep asking the respondent a question when she was trying to speak to him and not to ignore her (ts 461). The questioning of the respondent then continued. When the appellant’s agent was not satisfied with the answers he was receiving the following exchange occurred (ts 462 – 464):
SCOTT ASC: Mr Palermo, just get on with asking the questions.
MR T. PALERMO: I will ask the question. Commissioner, if you can please ask the witness to answer the questions.
SCOTT ASC: He's answering the questions, Mr Palermo. You just don't happen - - -
MR T. PALERMO: Look - - -
SCOTT ASC: - - - to like some of the answers that he has given.
MR T. PALERMO: No, no, that's not … that's not a … that's not true. That's not true at all. The witness can stand there and smirk and laugh and grin all he likes. This is a serious matter. Now, if he feels like grinning and laughing, we will leave the room so he can have his grin and laughter and he can have his one minute of fame. That's not what I want to do and that's not what we're here about.
SCOTT ASC: Well, would you like to proceed rather than wasting time lecturing me about this.
MR T. PALERMO: Commissioner, I'm not lecturing you. I'm asking you - - -
SCOTT ASC: And you're wasting more time responding to me.
MR T. PALERMO: I am wasting time, but you keep telling me how to run my case - - -
SCOTT ASC: Yes.
MR T. PALERMO: - - - and you are not going to succeed in doing that.
SCOTT ASC: And I will. All right. Then if you would like to stop wasting time and get on with it - - -
MR T. PALERMO: I will get on with it.
SCOTT ASC: - - - it would be a big help.
MR T. PALERMO: Mr Rosenthal, when your father was in operation and in full control of the farm, there was no handover sheet with him either, was there?--- No, because I trust my father.
You gave evidence that it's about one or two hundred metres to go from one side of the road to the other side of the road to your farm, the Rosenthal Pty Ltd - - -?---Yes.
- - - and your father's farm and your family farm?---Yes.
How difficult would it be for you to just pick up a cow and the calf, walk it across the road and replace it with one that's dry?--- I know I'm pretty strong, your Honour, but I don't think I'd be quite capable - - -
SCOTT ASC: Mr Rosenthal, don't be - - -
MR T. PALERMO: How difficult would it be.
SCOTT ASC: - - - don't be facetious?--- I'm sorry, but … sorry.
You know what he was asking?---Yeah.
You're being facetious?---Sorry. It would be easy.
MR T. PALERMO: Have you ever done it?---No.
It's easy to do, isn't it? So I think … and can I put it to you that the reason why some of these dries were there was that that's exactly what was going on - - -
SCOTT ASC: Well - - -
MR T. PALERMO: - - - you had full control of the farm. Who would see you whether you did it? Who would know whether you did it? And the 34 that I'm going to get on to shortly, the same thing happened, didn't it?---Well, your Honour, if Mr Palermo is alleging - - -
SCOTT ASC: Answer the question?---Well, there was a number there that I don't really see how you could answer with one … one answer.
Do you want to ask the questions one at a time, Mr Palermo? You're basically put to him - - -
MR T. PALERMO: Did - - -
SCOTT ASC: - - - that he swapped calves with … with … calves and cows.
MR T. PALERMO: That's exactly what I'm putting to him, your Honour.
SCOTT ASC: Did you swap cows and calves with those of Rosenthal farm?---No.
MR T. PALERMO: Why when those 34, or the 30 that you very quickly walked across the road on the day of the dismissal - - -?---Yes.
- - - with no number, no … with … with a blue tag with no number on there … if one doesn't have anything to hide, one would say, "Leave them there. If you think I've stolen them, leave them there. You prove it." Why all of a sudden did they just walk across the road very quickly?---Your Honour, it was pretty organised with the people … the owners of the property, Terry and Joyce Chapman, that I had those cattle there eating the grass down to reduce the fire hazard on their property.
Mr Rosenthal, Mr Matthews asked them the question and he can give the evidence to that and I'll put it to you that Mr Matthews asked them a little bit more than what you anticipate and what you think?---Your Honour, Mr Palermo claims that I'm not answering - - -
MS COSENTINO: Mr Matthews has already given evidence on that point and his evidence was that those owners advised him that they had an arrangement with the Rosenthals for the cattle to be there.
MR T. PALERMO: I accept that, but there was no arrangement for them to walk across within one hour of Mr Matthews and I being there.
Is that true?---Your Honour, what somebody else does with their property is none of Mr Palermo's business.
Mr … Mr Rosenthal - - -?---Fact.
- - - the cattle were of similar age and exactly the same breed as was conducted by the Palermo farms, weren't they?---Your Honour, I could take Mr Palermo to Alcoa Farmlands and show him thousands up thousands of cattle - - -
Mr Rosenthal, I don't give a damn about Alcoa Farmlands?--- - - - that are the same breed - - -
I don't care about Alcoa Farmlands?---Just because they're black - - -
Commissioner, please stop the witness for carrying on, otherwise I will do the same. Answer the question, Mr Rosenthal?---I'm trying to, Mr Palermo.
Well, you answer the question. You were not asked about Alcoa Farmlands - - -
SCOTT ASC: Mr - - -
MR T. PALERMO: What were you asked?
SCOTT ASC: Mr Palermo, he was trying to give you an explanation.
MR T. PALERMO: I do not care about Alcoa Farmlands. That is not an issue. The fact is, Mr Rosenthal, you or the Rosenthal Pty Ltd have the same cattle as what the Palermo farms have, haven't they?---As do - - -
SCOTT ASC: We have been over it?--- - - - many other farmers in the … in the world, your Honour.
MR T. PALERMO: Mr Rosenthal, it's all a coincidence, isn't it, eh?---No.
It's all a fabrication, isn't it?---We had … we had Angus cattle - - -
You did … you did what you did, didn't you, eh?---I'm allowed to do what I want with my property.
MS COSENTINO: Well, that's not - - -
SCOTT ASC: What's the … Mr - - -
MS COSENTINO: - - - that's not a question to put to the witness.
MR T. PALERMO: Mr Rosenthal, did you - - -
SCOTT ASC: Just … Mr … Mr Palermo - - -
MR T. PALERMO: - - - walk the cattle across the road?---Yes.
SCOTT ASC: Mr Rosenthal, shut up for a minute. Mr Palermo, you said to him, "You did what you did." Ask him a question he can answer, "He did what he did?"
MR J. PALERMO: He said yes.
SCOTT ASC: What does that mean? Ask him a question he can answer and you ask him a question … Mr Rosenthal, you answer the question that he asks?---I - - -
And the two of you, for heaven sake, calm down.
137 This exchange was not, however, indicative of actual or apprehended bias, nor did this conduct prevent the appellant from a reasonable opportunity of presenting his case. As set out above any failure to adequately present the appellant’s case can only be attributed to the failure of the appellant’s agent to efficiently conduct the appellant’s case.
138 Other than this exchange, the acting Senior Commissioner was helpful and courteous to the parties throughout the hearing. She was particularly helpful to the appellant’s agent by explaining matters of practice, procedure and evidence (ts 15, 94, 98, 99, 129, 143, 159, 175, 185 – 186, 208, 232, 264, 269, 275 – 277, 334, 352 – 353, 458 and 626). She also assisted the appellant’s agent by:
(a) rephrasing questions that he was attempting to put to the respondent (ts 100, 108 – 109, 117 – 118, 131, 161, 173 – 174, 345, 348 and 351);
(b) summarising the case the appellant was attempting to put as its answer to the respondent’s case (ts 276);
(c) asking questions to clarify issues (ts 102 – 103 and 421) and clarified areas that did not need further cross-examination (ts 205 and 370 – 371);
(d) allowing the appellant’s agent to conduct the appellant’s case when sitting down (ts 122 – 123 and 339);
(e) arranging for documents to be copied (ts 143);
(f) arranging for a whiteboard for use by the appellant’s agent (ts 182 – 183);
(g) ensuring the limits imposed on the respondent’s case were adhered to (ts 686);
(h) being willing to extend hearing times by commencing a hearing day early and sitting late to accommodate the availability of the appellant’s agent and his witnesses (ts 570 – 571, 657 and 687);
(i) granting applications by the appellant’s agent for adjournments (ts 36 – 37, 68, 367, 407, 449, 469, 470 – 471, 580 and 581). The only application made for an adjournment made on behalf of the appellant that was refused was an application made on 6 May 2010 to adjourn the proceedings to allow the appellant to appeal an oral ruling made to set aside a summons to the respondent to produce documents (ts 474).
139 She also thanked the appellant’s agent for significantly improving his conduct (ts 689).
140 The conduct of the appellant’s agent was, until close to the conclusion of the hearing, generally challenging, disrespectful and rude. This conduct caused disruption and delay to the proceedings. Some examples of this behaviour included:
(a) making an inappropriate comment whilst the respondent gave his evidence in chief and re-examination (ts 38 (‘it’s bullshit’), 571 (‘it’s garbage’), 573 (‘frigging liar’);
(b) attempting to cross-examine the acting Senior Commissioner on matters of procedure (ts 60 – 64 and 67);
(c) being discourteous to the respondent’s counsel (ts 64 – 66);
(d) serving a summons on the respondent which sought to commence a cause of action in another jurisdiction whilst the respondent was giving evidence (ts 328);
(e) being discourteous to the acting Senior Commissioner by ignoring the acting Senior Commissioner when she was speaking to him (ts 461) and accused her of having prejudged an application (ts 467);
(f) without foundation to do so, arguing with the acting Senior Commissioner about rulings she had made (ts 686);
(g) threatening to walk out of court on a number of occasions.
141 There is no evidence to support the contention that the acting Senior Commissioner was biased against the appellant. Further, there is no foundation for the argument that an observer would or could apprehend that the conduct, acts and rulings of the acting Senior Commissioner were not impartial and without a prejudiced mind. When the conduct of the appellant, his agent and the unhelpful conduct of the respondent are examined that the conduct of the acting Senior Commissioner was at all times appropriate for a decision maker whose patience was severely tested when trying to discourage unacceptable behaviour, minimise undue delay and attempting to ensure that evidence given was relevant.
Grounds 11 and 13
142 In ground 11 of the grounds of appeal the appellant argues the acting Senior Commissioner erred in not deducting from the amount of compensation and contractual benefits:
(a) the receipt of some funds by the respondent; and
(b) the monetary value of the time spent by the respondent working on his family farm.
143 The appellant also argues that the respondent failed to mitigate his loss by:
(a) not diligently seeking alternative; and
(b) not seeking work beyond a certain distance from his family farm.
144 In ground 13 the appellant argues the acting Senior Commissioner erred in assessing the respondent’s loss up to the last day of the hearing.
(a) Assessment of Compensation and Mitigation
145 The power of the Commission to award compensation for loss or injury caused by an unfair dismissal is set out in s 23A(6) to s 23A(8) of the Act as follows:
If, and only if, the Commission considers reinstatement or reemployment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.
In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —
(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal;
(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and
(c) any other matter that the Commission considers relevant.
The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.
146 Firstly the Commission must make a finding as to the loss and/or injury cased by the dismissal without regard to the maximum amount that can be awarded. The maximum amount is six months’ remuneration and is often referred to as the cap. When commencing an assessment this amount is to be initially ignored. To assess loss the Commission must first have regard to the steps taken, if any, by the employee to mitigate the loss. If there is a failure to mitigate the loss by not taking measures to reduce the impact of the loss, this is a factor relevant to an assessment of the loss or injury caused by the dismissal. As the Full Bench in Sealanes (1985) Pty Ltd v Foley (2006) 86 WAIG 1239 observed issues of mitigation are relevant to determining whether there has been a loss of remuneration because of a dismissal [99].
147 An assessment of whether an employee has mitigated his or her loss requires an assessment of the evidence in a particular case. The principles to be applied were recently summarised by Ritter AP in Merredin Customer Service Pty Ltd as trustee for Hatch Family Trust T/A Donovan Ford/Merredin Nissan and Donovan Tyres v Green (2007) 87 WAIG 2771 as follows [47] – [48]:
The role of mitigation upon an assessment of loss for the purposes of making an order of compensation under these subsections was considered in the joint reasons of Ritter AP and Gregor SC in Curtis v Ausdrill Limited (2006) 86 WAIG 3133 at paragraphs [32]-[38]. That decision and the reasons of the majority were part of a series of Full Bench decisions in the last 18 months which have considered the issue of mitigation in unfair dismissal cases. The other cases include Sealanes (1985) Pty Ltd v Foley and Buktenica (2006) 86 WAIG 1239; (2006) 86 WAIG 1254, BHP Billiton Iron Ore Pty Ltd v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australia Branch (2006) 86 WAIG 642, The St Cecilia’s College School Board v Grigson (2006) 86 WAIG 3146; (2006) 86 WAIG 3159; (2006) 86 WAIG 3163.
The reasons of the majority in Curtis, which have not been questioned in any subsequent Full Bench or Industrial Appeal Court decisions, brought together some of the strands of reasoning in the earlier decisions. The points made by the majority may be summarised as follows:-
(a) Section 23A(6) of the Act provides for the payment of an amount of compensation for loss and injury caused by the dismissal.
(b) In the context of an unfair dismissal application mitigation means the taking of reasonable steps to minimise the financial impact upon an employee of their unfair dismissal.
(c) Mitigation was considered relevant to the assessment of compensation by the Commission before the introduction of s 23A of the Act, and has continued relevance both because of the need to assess loss and its specific mention in s 23A(7).
(d) As there is a connection between the concepts of causation of loss and mitigation, s 23A(7) insofar as it refers to the employee, may have been legislatively unnecessary. This connection was recognised and developed in Sealanes at [101] - [105].
(e) The reasons in Sealanes were quoted with approval by the majority in Curtis. (In those reasons there were quotations from a number of cases of high authority. Some of them will be referred to below).
(f) If it can be established that there has been a failure by an applicant to reasonably mitigate loss, the total amount of income they have not received from the lack of continued employment with their former employer may not be the total of the loss ‘caused by’ the unfair dismissal for the purposes of s 23A(6) of the Act.
(g) It is for an employer respondent to establish on balance a failure to take reasonable steps to mitigate.
(h) Whether reasonable steps to mitigate have been taken is a question of fact, dependent upon an evaluation of the facts and circumstances of the case.
148 Whether an employee has mitigated his or her loss usually turns on whether he or she has taken reasonable steps to find alternative employment after their dismissal. The reasonableness of the conduct depends upon an assessment of the facts and circumstances in each case: BHP Billiton Iron Ore Pty Ltd v The Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (2006) 86 WAIG 642 [101] – [103]. However, it is for the employer to establish that an employee has failed to take reasonable steps to mitigate. If the employee obtains alternative employment, the employee’s entitlement to compensation is reduced by the amount received from the alternative work. If the employee fails to mitigate, the loss is reduced by the amount they could have earned if they had done so: Merredin Customer Service Pty Ltd [72].
(b) Was an Error Made
149 The respondent did seek and find alternative employment at Alcoa farmlands. He commenced this work five weeks after his employment with the appellant was terminated. This work, however, was casual so his loss was not fully mitigated. The amount he earned from this work was properly deducted from the respondent’s entitlement to compensation. As counsel for the respondent points out there is no evidence that the respondent received any other income after his employment was terminated other than Centrelink payments. The appellant, however, now concedes that monies received from Centrelink payments are not to be deducted from the respondent’s entitlement to compensation.
150 One of the issues raised in ground 11 of the appeal is whether the respondent failed to mitigate his loss by not seeking work in Bunbury or any place that exceeded 50 kms from his home on the family farm. In our opinion having regard to the fact that the respondent was willing to drive to work and had to pay for fuel to travel we do not regard his refusal to look for work in Bunbury or beyond 50 kms from his family farm in the Darling Escarpment to not be the conduct of a reasonably prudent person in the position of the respondent.
151 The appellant argues that the respondent failed to diligently seek alternative employment. He says this is evidenced by the fact that the respondent only made one formal written application for work and that was for a refinery worker’s position at Alcoa (exhibit A23). This submission, however, ignores the respondent’s uncontradicted evidence that he also applied for work with Alcoa at its farm lands and mine; to Charles Hull Contracting, True Blue Hire, Boddington Gold Mine, Worsley Alumina, Chandler McLeod, Ready Workforce, Mitre 10 in Pinjarra, John Tuckey and Emmanuels. There is no requirement at law that applications for work be in writing. In any event, where an employee has given evidence that they have sought employment, the burden of proof shifts to the employer to prove that the steps taken were not reasonable. In response, the appellant simply says that at the time the respondent was seeking work it was a notorious fact that unemployment rates were under 4 per cent. However, the appellant adduced no evidence in the proceedings before the acting Senior Commissioner to support this contention, nor did he adduce any evidence of work that was available within a 50 km radius of the respondent’s farm that the respondent was qualified to apply for and failed to do so.
152 The respondent gave evidence that whilst employed by the appellant he spent about 12 hours a week carrying out work on his family farm. From this evidence the appellant contends that the Commission should have assigned a value on the time spent by the respondent carrying out work on his family farm whilst employed by the appellant and post-employment at the rate of $28 an hour, for 12 hours a week and this amount should have been deducted from the respondent’s entitlement to compensation and the claim for wages as a contractual benefit. However this submission has no basis in fact or in law. In support of the appellant’s contention that such a deduction should be made, the appellant argues that the respondent breached a term of his contract that he not carry out work for any other person or body whilst employed by the appellant. However, from at least late 2006 the appellant would have known the respondent did carry out other work outside his work for the respondent. On 10 January 2007, the respondent submitted an invoice in the name of L S and N A Rosenthal Pty Ltd for carting of cattle for Palermo Farms on 28 November 2006 and 12 December 2006 (exhibit R17) (ts 203 and 545). Whilst it is notable that there was no evidence before the Commission of an express term of contract in such terms as contended by the appellant and there was no evidence on which a finding that such a term should be implied, even if such a term could be said to be implied into the respondent’s contract of employment, the evidence establishes that work carried out by the respondent on his family farm was unpaid work. Whilst the appellant argues that the work carried out by the respondent on his family farm should be valued at the same rate of pay as work carried out by the respondent as the rate paid to the respondent by the appellant as farm manager, there was no evidence before the Commission on which a finding could have been properly made that the work carried out was of such a nature that it should have been regarded as paid work and the amount due and payable was $28 an hour. In any event, the respondent’s evidence that whilst working for Palermo Farms, the work he did on his own farm was minimal was not shaken in cross-examination (ts 279). Further, even if such work could be valued in the manner contended, the valuation of the work could not be taken into account in assessing compensation of the loss caused by the unfair dismissal. The right to such ‘potential’ income existed whilst the respondent was employed by the appellant. When making an assessment of compensation, the award of compensation that can be made is subject to the statutory limit which sets the outer limits of an award. Subject to the cap on the amount that can be awarded and consideration of relevant matters going to mitigation, the Commission is required to calculate compensation to place the employee in the same position as to his remuneration, as if the employee’s contract of employment had not been terminated. Nor is the behaviour of the parties a relevant factor in assessing compensation: Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299 (302) (Sharkey P); Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 (9) (Sharkey P), (13) (Kenner C).
153 The appellant made a submission during the hearing of the appeal that the acting Senior Commissioner erred in not taking into account the number of days the respondent took off work as holidays when he was employed by the respondent. The appellant argues that the respondent was overpaid for annual leave and that the amount of the overpayment should be deducted from the award of compensation and/or the amount due as contractual benefits as wages for work carried out in December 2008. The appellant contends that the respondent was paid 12.09 days of annual leave that he had not accrued. Part of the appellant’s contention is an assumption that the respondent took 20 days’ leave between 22 May 2008 and 4 June 2008. However, the uncontradicted evidence given by the respondent was that he had planned to go on leave at that time but that his leave was cancelled (ts 284 – 285). The appellant also argues that 212.69 days of paid time should be deducted as time not worked. The appellant says the diaries establish that the respondent took this time off work as leave. The difficulty with this submission is that the diaries are not a record of time worked but a list of work carried out on particular days such as ‘fed cattle at Curtis’, ‘marked calves at Beechams’ and ‘check bulls and calves’. When Mr Matthews was asked in examination in chief to estimate the time to complete some tasks noted in the diaries he said, in relation to some items referred to, that it would depend upon what was entailed or if you found any problems. Other items he estimated to take a day or half a day (ts 651, 657). Some tasks he could not estimate a time for completion (ts 653, 655). Also the appellant’s argument that the respondent was overpaid for annual leave appears to rely upon a contention that the respondent was required to work seven days a week. For example, much was made of the fact that the respondent did not work eight days in August 2006 and seven days in September 2006, yet the respondent worked every other day of those months. There was no evidence before the Commission on which a finding could be made that the respondent was required to work seven days a week. The respondent’s evidence was that he was not employed to work seven days a week, 24 hours a day (ts 411). He did, however, say that he was on call to aid any cattle that were in trouble and agreed he was on call 24 hours a day seven days a week for cattle welfare (ts 412).
154 The appellant also contends that amounts of $1,815 and $2,661 paid to Fairbridge Western Australia Inc for spraying cottonbush, which is said to be the cost of work the respondent did not carry out but should have carried out, should be deducted. This submission, however, has no evidential basis. Even if the amounts claimed for spraying cottonbush could be regarded at law as an ‘industrial matter’ within the meaning of s 7 of the Act, no evidence was adduced in the hearing of the amounts claimed. The only evidence the appellant adduced about cottonbush was evidence given by Mr Matthews in his farm report on the condition of the farm after the dismissal of the respondent, that the part of the farm known as Dewars was rife with cottonbush and sodom apple and spreading to areas not seen in three years and it would appear that no controls had been used to contain it (exhibit R19, AB 52). However, when Mr Matthews gave evidence about this issue he appeared to retract the statement in the report that nothing appeared to have been done in three years. When asked whether any work had been done to control the cottonbush since he had left, he said, he could not say (ts 251). Earlier, when giving evidence, Mr Matthews said his wife worked with him as a part-time assistant farm hand prior to the respondent being employed as farm manager and part of her work was to deal with and remove cottonbush (ts 212). When the respondent was asked in cross-examination about weed control he said he attended to cottonbush spraying but he did not deny it was not under control as he did not have sufficient time to attend to that work (ts 154). Despite the respondent's evidence, no evidence was adduced about whether during the respondent’s employment or following termination of the respondent’s employment, the appellant engaged contractors to spray cottonbush and the circumstances of any engagement to carry out such work.
155 The appellant also says that an amount of $85,350 should have been deducted for the loss the appellant incurred due to dry cattle. Dry cattle are cattle that are not in calf. However, there was no evidence on which an inference could be drawn that the appellant incurred such a loss or even if such a loss could be attributed to the respondent, no evidence was adduced about the quantum of the purported loss. The only relevant evidence about the numbers of dry cattle was as follows. The respondent gave evidence that as at June 2007 there were 34 dry cows and 20 bulls (exhibit A3) and as at June 2008 there were 149 dry cows of a total of 469 cows and 20 bulls (exhibit A4). When cross-examined, the respondent said, that in June 2008 the number of dry cows was high because a third of the farm in the hills had been burnt out, the rain did not really start until June of that year which left the cows in very poor condition and the average age of the cows were extremely old (ts 191). He also said two bulls died in August 2008 (ts 306, exhibit A5) and five had broken down (ts 310). When Mr Matthews was asked about whether he would consider it ‘normal’ to produce 149 dry cows from 469 cows he said: ‘I wouldn’t consider it normal, but depending on the conditions of the year, in a drought year it may be’ and with a result of ‘31 per cent dry cows you have problems either with your bulls or nutrition’ (ts 229). In Mr Matthews’ farm report he noted there were five bulls incapable of servicing cows (exhibit R19). When Mr Cabassi took over as farm manager in February 2009 he sold all the old bulls that he assessed as unfit to work and purchased two new bulls (ts 605). Whether the two bulls that died were unfit for some time before their death so as to affect the total number of dry cattle is not known. In addition the evidence given by Mr Matthews and Mr Cabassi in respect of this issue did not establish that the respondent’s actions or inaction caused the high number of dry cattle. Nor was there any evidence given about the quantum of loss caused by the high number of dry cattle.
156 The appellant also claims an amount of $14,088.28 a refund of unauthorised purchases from Murray Rural. This submission is also without merit. The only evidence of relevance to this issue that arose in the hearing is that the respondent gave evidence that Palermo Farms and his family farm have an account at Murray Rural and on one occasion an oversized sign was debited against the Palermo account but that when it was brought to his attention the error was rectified (ts 47 and 539).
157 Even if the arguments about the 'deductions' had any merit, the amounts claimed as deductions to the award of compensation could not at law be deducted: Bogunovich (9) (Sharkey P), (13) (Kenner C). However, such amounts if proven to be owing as overpayments may have been capable of being taken into account and the acting Senior Commissioner could have exercised her discretion pursuant to s 26(1)(a) of the Act not to order the appellant to pay the respondent monies owed to him as wages for time worked in December 2008: Belo Fisheries v Froggett (1983) 63 WAIG 2394, 2396 (Olney J). However, this question of law is not beyond doubt: Conti Sheffield Real Estate v Brailey (1992) 72 WAIG 1965, 1968 (Sharkey P and Negus C). This issue of law may turn upon whether the deduction sought to be made can be characterised as an ‘industrial matter’ and where the denied contractual benefit is wages, the effect of s 17D of the Minimum Conditions of Employment Act 1993: BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191 [35] – [40], [50] (Hasluck J); (2002) 115 IR 430; (2002) 82 WAIG 2013. Notwithstanding this uncertainty in the law it is not necessary to resolve this question of law in this matter, as there was insufficient evidence before the Commission at first instance on which a finding could be made that the sums claimed were amounts due and owing by the respondent to the appellant.
158 The appellant contends in ground 13 that the acting Senior Commissioner erred in assessing the respondent’s loss up to the last day of the hearing. This ground of appeal is also misconceived. Section 23A(6) and s 23A(7) of the Act required the acting Senior Commissioner to assess past loss up to the date of the hearing and, but for the cap in s 23A(8) of the Act, would have required the acting Senior Commissioner to assess any future loss.
Conclusion
159 For these reasons, we are of the opinion that none of the grounds of appeal have been made out. Accordingly the appeal must be dismissed.
KENNER C:
160 The detailed background to this appeal, including the reasons for decision of the Commissioner at first instance, has been set out in the joint reasons of Smith AP and Beech CC. I need not repeat it.
Grounds of Appeal-Non Compliance with Regulations
161 For my purposes, I only propose to deal with grounds 5 and 6. These grounds of appeal, indeed all of the grounds of appeal, do not even attempt to satisfy the requirements of reg 102 of the Industrial Relations Commission Regulations 2005. Reg 102(2) requires an appellant to “clearly and concisely set out the grounds of appeal and what alternative decision the appellant seeks.” Furthermore, reg 102(3) requires an appellant to set out with particularity why a decision of the Commission, or part of it, is against the evidence or wrong in law. From their terms, the grounds of appeal plainly do not meet this requirement.
162 Even having regard to the fact that the agent for the appellant, who appeared as agent for the respondent at first instance, is a lay person, neither legally qualified nor an experienced industrial agent, drafting grounds of appeal in the way in which they have been presented to the Full Bench, makes the Full Bench’s task difficult, in ascertaining the true nature of the complaints against the decision from which the appeal is brought.
Consideration
163 The complaint raised by grounds 5 and 6 of the appeal relates to the decision of the Commissioner, made during the course of a hearing on 31 August 2009, to set aside three witness summonses taken out by the appellant, which required the respondent’s parents, Mr and Mrs Rosenthal, and the respondent's wife, Chantel Rosenthal, to give evidence and produce documents. The documents sought to be produced by Mr and Mrs Rosenthal included those relating to proof of ownership of cattle by Mr and Mrs Rosenthal or any trading entity operated by them over various dates; and including records relating to purchases, sales, births, deaths and opening and closing stocks.
164 The summons directed to Ms Chantel Rosenthal, in addition to requiring her to attend to give evidence, also required production of the same documents.
165 Prior to the commencement of the hearing on 31 August 2009, on 8 June 2009, the appellant filed what was described as “Respondents particulars pursuant to the Commissions Orders”. This document was filed in response to an earlier order of the Commission that the appellant particularise the basis upon which its decision was made to terminate the respondent’s employment. Of the “Particulars” filed on 8 June 2009, the following issues were raised:
· That the respondent’s father (Mr Rosenthal senior) was ill and the respondent had to give two week’s notice of termination of employment but he could stay on for a short time if needed;
· That some two weeks later the respondent’s father was in remission and the respondent could stay on working at the farm until at least Christmas 2008 unless the appellant found another farm manager in the meantime;
· By the end of June 2008 the respondent still had not provided to the appellant paperwork to reconcile stock numbers for the prior year;
· Mr T Palermo visited the farm and met with the respondent. Mr Palermo raised with the respondent a number of issues including the question of stock numbers;
· Every time that Mr T Palermo telephoned the respondent he was at his father’s farm where he resided; and
· In October/November 2008 Mr T Palermo approached the respondent and made a request for stock numbers raised, which could not be reconciled and no paperwork was forthcoming.
166 At the hearing on 31 August 2009, at the outset, the Commission heard an application by the respondent, through his counsel, to set aside the witness summonses under s 33(2) of the Act. From the transcript of the proceedings on that day, it was complained by the respondent that the summonses to Mr and Mrs Rosenthal senior were oppressive. This was contended on the basis that the request for production of documents relating to proof of ownership of cattle could not be complied with, because according to counsel, there was no licensing or registration regime to establish proof of ownership of cattle. This seemed to be disputed by the agent for the appellant during the hearing.
167 Furthermore, it was submitted that the requirement that documents be produced to the offices of Messrs Gibson and Gibson, the solicitors for the respondent, was inappropriate and the documents should be produced to the Commission.
168 Thirdly, it was also said that the seven days required for the production of the documents in the summonses had expired before the summonses were served.
169 As to the proof of ownership of cattle issue, it was contended by counsel for the respondent that the inference to be drawn from the request was an allegation that the applicant had stolen some cattle; however, such an allegation did not arise in the respondent’s particulars of answer.
170 Counsel for the respondent, Ms Cosentino, then referred to the basis identified in the respondent’s particulars of 8 June 2009, as the reason for the respondent’s dismissal. Ms Cosentino submitted as follows:
“Now, there's nothing in this which gives any indication that theft of cattle might be an issue that the respondent relies upon as grounds for dismissal. There's nothing in this document which gives any indication that these documents which are being summonsed might lead to a train of inquiry relevant to the issues raised in response to the unfair dismissal claim. So when we look to ascertain what are the reasons that the respondent relies on for termination, there's an account of a discussion between Tony Palermo and the applicant about the applicant's father's illness and Mr Palermo's version is that this led to the applicant indicating that his tenure with the respondent wouldn't be permanent or wouldn't be long term and that he was either going to give notice to resign shortly or subsequently when it became apparent that his father was not ill, that he would work until Christmas. So that's one aspect of the response.

The other is allegations regarding unsatisfactory work performance and about two-thirds down the page there's a reference to:

CR was given various verbal warnings by TP about unsatisfactory work performance and the way the farm looked and the way he was managing. I also raised this and other issues, such as complying with legislative requirements on branding, stock numbers, declared weed control. Nothing was getting done. Matters got progressively worse. There were requests for numbers raised, not reconciled and no managerial paperwork forthcoming. I formed the view that he was leaving around December 08. He was taking advantage and not undertaking his duties. He hardly –

and then over the page –

during December, he hardly attended to any duties. He was critical that 200 … sorry … 2000 bales of hay had to be brought to storage. There were various calls and discussions to attend to work duties and he was dismissed for serious misconduct failing and refusing to attend to his duties, failing and refusing to attend to the carting of hay, failing and refusing to attend to legislative requirements and failing and refusing to attend to the welfare and other requirements of cattle.

The summonsed documents have nothing to do with the issues in these proceedings.” (6-7T)

171 Following a question from the Commissioner, Ms Cosentino then acknowledged that the summonses required the witnesses summoned to both give evidence and to produce the documents sought. It is apparent, however, that the essential thrust of counsel’s submissions seeking to set aside the witness summonses were directed to the requirement for production of the documents specified.
172 Mr T Palermo, acting as agent for the appellant, then responded to the application to set aside the witness summonses. Mr Palermo contested the assertion that the summonses were issued as a fishing exercise. Mr Palermo said:
“Commissioner, any … anything at all that assists the applicant or the respondent must be allowed and this is not a fishing exercise. If it's … if it was a fishing exercise, we would have approached this a little bit differently. This goes to the very issue of credibility of Mr Charles Rosenthal. From the point of the statement, if … if … there's a paragraph there or a sentence there that says, "Despite repeated requests, all managerial farm documentation was not provided," and that's what we are getting to. Now, from the point of view of Mr Charles Rosenthal's father, his mother and his spouse, they are all directors of L.S. and N.A. Rosenthal Pty Ltd, which I believe operates a farm across the road from where we allege some of the cattle went missing and disappeared. So my … the problem I have is that if those summonses are not allowed in their entirety, they won't be a fair hearing. We want to be able to ask appropriate questions of those three people and Mr Charles Rosenthal, what the link is and what the link has been between his farming activities and operating the Palermo farm and him operating L.S. and N.A. Rosenthal Pty Ltd, of which he's a director and he's a shareholder. So he was actually operating two farms whilst he was working for Palermo full-time. So it is very relevant and only the other three witness’ can either support or not support Mr Charles Rosenthal's statements. So if those things are … if those summonses are set aside, they go to the very core of our case and how - - - ” (7T)

173 After that submission, an exchange took place between Mr Palermo and the Commissioner as follows:
SCOTT C: Sorry. Are you … are you saying … because it's not been entirely clear to me from the particulars that you've provided that there's been any suggestion of cattle going missing?

MR T. PALERMO: Well, if we were provided with all the managerial records and farm documentation, we would've been able to properly reconcile numbers. During the whole period that Mr Rosenthal was employed, and which is some two-and-a-half years, we have never been able to reconcile stock numbers. There's a question of 30 cattle that went missing that I think only the other directors of L.S. and N.A. Rosenthal Pty Ltd will be able to answer. From the point of registrations, I don't know whether Ms Cosentino knows about the stock identification and movement pack of … of 1970, but you … there are legal requirements that have to be complied with as far as registrations. So if she still maintains that there is no registration process, perhaps I can hand this over to her and she may care to read it during … during the break. These things here have to be complied with.

SCOTT C: Was … was the issue of the cattle missing something that was raised with Mr Rosenthal as a … a reason for dismissal?

MR T. PALERMO: Yes, it was.

SCOTT C: All right.

MR T. PALERMO: And to this very day, we have not been able to get farm records, receipts documentation. See, Commissioner, you must realise that Mr Rosenthal had full access and the full running and operation of the farm, notwithstanding major decisions had to be made by me and at times by Mr John Palermo, he pretty well had a free hand. Now, if all the documentation had been provided and we were satisfied with all the documentation and the numbers reconciled, perhaps we wouldn't be sitting here today. The other matter is that I've made inquiries from the Pinjarra police. The stock squad, as they had it, has been disbanded. The only way the police will take an action like this on is if they investigate all records for all adjoining owners and all immediate owners in the area. That is a mammoth exercise, absolutely mammoth exercise, because they don't have a stock squad any more. Now, for me to go to the extent to have all my adjoining owners investigated, including proof of ownership for the last two to three years, natural increases, births, deaths, et cetera, and for the police fraud squad to verify it against their income tax returns, financials. It is just a nightmare. So it is a simple exercise that I think the other three directors of L.A. … L.S. and N.A. Rosenthal Pty Ltd will just be able to answer. If there is nothing to worry about it, then they don't have anything to worry about. It is just questions that we are asking.

SCOTT C: Can you tell me a bit more about the circumstances under which the issue of cattle going missing and whether they were at the applicant's property was raised with him?

MR T. PALERMO: Yes, it was and, Commissioner, this now leads to information that will be provided by one of my witnesses later on. So I just do not see any reason why, you know, they want the summons set aside. I mean, is there anything to hide?

SCOTT C: Well, that's … that's not the test, though.

MR T. PALERMO: But the test is that if … if those summonses are set aside and our case is prejudiced that in a great degree, then we might as well leave the courtroom now, Commissioner.

SCOTT C: All right.

MR T. PALERMO: Commissioner, just one other point is that …the other three directors will more than likely be able to verify or testify exactly what work Mr Charles Rosenthal was doing for the family farm when he was supposed to be employed on a full-time basis by Palermo. My understanding is that he was also … this later understanding, not … certainly not … I didn't have this information at the time … is that he was also running the family farm and one of the reasons behind my conclusions to … to that understanding is that I believe his father was also ill with cancer at some point in time and that was one of the reasons why he had approached me back on or around February 2008 to leave so that he could manage that on a full-time basis. So who can verify that? I mean, we're looking for … for external parties. Obviously, in Mr Rosenthal, I presume … and I can't speak for him … he's going to say, "No, I wasn't looking after the farm," but perhaps the other three witnesses may say otherwise. We're not going to know unless we have them on the stand.

SCOTT C: All right. Ms Cosentino, what do you say?

MS COSENTINO: The only critical issue that arises is … is whether missing cattle was raised as an allegation or was raised with the applicant as a reason for his termination. Mr Palermo has asserted that it was. We say, of course, that it wasn't, but there is correspondence from Mr Palermo to the applicant dated 6 January 2009, some two weeks after the termination. It's marked without prejudice, but in my view it doesn't contain any … it's … it contains factual matters and opinion and there's nothing that really renders it of a character of being without prejudice and I'd hand that up to you, Commissioner. It says, "We are not alleging … we are not making any accusations of you or anyone at this stage." ” (8-9T)

174 A little further on, there was another exchange between Mr Palermo and the Commissioner where the Commissioner was endeavouring to ascertain how, if the witnesses were called, Mr Palermo would be able to further establish good cause for the respondent’s dismissal. Later, Mr Palermo, in response to those questions from the Commissioner said:
“MR T. PALERMO: Well, Commissioner, some of these things have surfaced post-certain events. Mr Rosenthal senior, I understand, was also in charge and total control of the Palermo farm at various times when Mr Charles Rosenthal was on leave, so, again, you know, he … he knows the place. He … he was running the place at certain times. I don't know what went on between them, but all I can say is that if someone is … is supposed to be employed by one employer, then you don't … you're not employed by someone else at the same time. The other three directors will also be able to state, as we have asked to … to get the information, "Was Mr Rosenthal also an active employee of his family farm entity? Was he getting paid? What was he getting paid? What was his duties? What were his hours of work?" all those sort of things. Now, surely, if you can have other people corroborate your evidence, that should have more weight than what the person himself is going to say and that is the reason why we also have gone to the extent of calling other witnesses so that our evidence can also be supported, otherwise it just becomes, you know, "I said this. You said that. Who can lie the most? Let's get away with it." That's not what this forum is about.” (10T)

175 The Commissioner then adjourned for a brief period to consider the application to set aside the witness summonses. When the hearing resumed, the Commissioner announced her decision to set aside the witness summonses, with her reasons to be provided in writing at a later date.
176 On 15 January 2010, the Commissioner published reasons for decision in relation to the imposition of time limits on the period for the presentation of the parties’ cases, under s 27(1)(ha) of the Act. An order, giving effect to these reasons for decision, was published on 21 January 2010: Charles Henry Rosenthal v John Palermo (2010) 90 WAIG 111; (2010) 90 WAIG 115.
177 In her reasons of 15 January 2010, the Commissioner referred to, at pars 15 to 18 inclusive, her reasons for not reconsidering her earlier decision to set aside the witness summonses, despite a request from the appellant that she do so. The Commissioner said:
“15 I have considered whether it is appropriate to reconsider my earlier decision regarding Mr and Mrs Rosenthal Snr being summonsed and my view on that matter has not changed.

16 The evidence given by Chantel Rosenthal as to her use of the computer stands. Appropriate conclusions can be drawn from that applying the rules of evidence. Furthermore, it would appear that Mr Palermo wishes to examine Mrs Rosenthal Snr not only as to the ownership of the computer but about the information that was processed on her computer. The only question which arose during Chantel Rosenthal's evidence was the date upon which a particular document was typed. Her evidence stands as it is and there is no indication as to why that evidence should or should not be accepted. Further, there is no indication of what, if any, further evidence regarding "information that was processed on her computer" was necessary for the purpose of this hearing, and why Mrs Rosenthal Snr ought to be examined about that.

17 As to Mr Rosenthal Snr, the respondent says that he is required to give evidence:

"as it appears from what Mr Rosenthal (the applicant) has stated in cross-examination that at times while he was on leave he consigned the farm and all farming operations without authority to his father. His father needs to be cross-examined as to the duties he undertook, stock numbers consigned to him and stock numbers re-consigned upon completing his 'caretaking' role".

There is no indication as to how this information is relevant. It appears to go back to the question of stock numbers which Mr Palermo suggests were not as they ought to have been, whilst he denies there is any allegation of theft against the applicant.

18 The questions which are before the Commission relate to the applicant's performance of his duties. He has given evidence of the circumstances under which he took leave and his father undertook duties for him. I see no relevance in further examination of this issue in terms of evidence from Mr Rosenthal Snr. I am of the view that Mr Palermo is seeking to use this hearing to gather information for purposes other than responding to the claim before the Commission, a matter clarified with Mr Palermo early in proceedings.”

178 It is the case, however, that the reasons of the Commissioner do not reflect all of the bases advanced by the appellant, as set out in the transcript extracts above, for wanting to call, in particular, Mr Rosenthal senior.
179 Both at first instance, and on this appeal, the appellant contended that the setting aside of the witness summonses substantially prejudiced its case.
Consideration
180 The summonses at issue in this case required the witnesses to both give evidence and to produce documents. A party to proceedings is entitled, as of right, to request the Registrar to issue a witness summons in connection with proceedings before the Commission. It is generally the duty of an advocate to decide which witnesses to call and in what order they will be called: Briscoe v Briscoe [1966] 1 All ER 465. Where a summons is issued to, and duly served on, a person to appear and give evidence, that person may make an application for show cause as to why he or she should appear under s 33(2) of the Act. That is what occurred in this case.
181 In the case of a witness summons including a requirement to produce documents, the proper procedure is that the person attends the Commission, with the documents in his or her possession, and unless any objection is made to their production by the person summonsed, they should be delivered into the custody of the Commission, by being handed to the Commissioner’s Associate, until they are called for tendering into evidence.
182 An application to set aside a summons can be made to prevent an abuse of process: Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160. It is also well settled that a party cannot have issued a subpoena or a summons to witness, for the purposes of engaging in a fishing expedition, to establish a case: Commissioner for Railways v Small (1938) 38 SR (NSW) 564.
183 In the case of documents sought to be produced under a subpoena or summons, the lack of apparent relevance is a relevant consideration as to whether it should be set aside. The question of “apparent relevance” is to be determined by having regard to whether or not the documents “are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”: Seven Network Ltd v News Ltd (No.5) (2005) 216 ALR 147 at 151; Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 21 FCR 306.
184 In my opinion, the Commissioner was in error in setting aside the witness summons directed to Mr Rosenthal senior. I have reached that view for a number of reasons.
185 Firstly, it would appear from the transcript of the proceedings on 31 August 2009 that a significant, if not the sole focus, of counsel for the respondent, and the Commissioner, was placed on the issue of production of documents concerning ownership of cattle. Indeed, counsel for the respondent, at 9T, set out above, identified this as “the only critical issue”. In my view, that was not the only issue, let alone a critical issue.
186 A number of matters were raised in the respondent’s further particulars, which have been set out above. Plainly, reconciliation of stock numbers was repeatedly raised. Additionally, the giving of notice of resignation by the respondent in early 2008, on the grounds of his father’s illness, and whether and if so for how long, the respondent would remain an employee, was in issue.
187 Furthermore, combined with the submissions made at the hearing on 31 August 2009, it was also clear that the appellant was putting in issue the respondent’s work activities at his family farm, when he should have been working for the appellant. This raised a potential conflict of interest between the duties of the respondent as an employee of the appellant, and his responsibilities to his family farm.
188 This was not a matter that needed to be particularised in writing. It is trite that an employee has, as an implied term of their contract of employment, a duty of fidelity and good faith to their employer to commit their full time and attention during working hours to the activities of their employer: See generally Macken’s Laws of Employment Sixth Ed at 5.405-5.410. Whilst the respondent’s curriculum vitae at AB54-56, showed that he had been managing the family farm prior to his employment by the appellant, to the extent that the respondent continued to perform that work whilst employed by the appellant, seemingly without the knowledge of Mr Palermo, this should have been disclosed to the appellant, in my view.
189 Leaving aside entirely the issue of production of documents, in my opinion, certainly Mr Rosenthal senior, and perhaps less so Mrs Rosenthal, as directors of the entity conducting the respondent’s family farm, would appear to be material witnesses in relation to these issues. This is particularly so because the respondent’s family farm was across the road from the farm operated by the appellant. Certainly also, the evidence of Mr Rosenthal senior was directly relevant to the issue of the circumstances surrounding the respondent’s alleged resignation and its subsequent alleged withdrawal. That this later issue was important is reinforced by the fact that the Commissioner made credibility findings against the respondent, in preferring the evidence of Messrs Matthews and Cabassi to that of the respondent, where the evidence was in conflict (see AB 31 par 51).
190 The test is whether the witnesses proposed to be called, could give evidence that was relevant to matters arising in the proceedings. Furthermore, as to documents sought to be produced on a summons to witness, the test is whether those documents may add some value, or otherwise lead to a train of enquiry; not whether they could, or would be tendered in evidence, which is a step to be taken after the summons is returned.
191 In my view, the submissions of Mr Palermo in opposition to the application to set aside the witness summons raised identifiable issues about which the witnesses, in particular Mr Rosenthal senior, could testify.
192 I note, however, that in relation to the question of the respondent’s resignation, the Commissioner in her reasons commented on the absence of any evidence other than that of the respondent on this issue, and that accordingly, his testimony would be accepted. Whether, and if so how, any evidence from Mr Rosenthal senior may have influenced that finding can only now be a matter of speculation, but its potential influence cannot be discounted.
193 Can it be said that the setting aside of the witness summons, in particular that directed to Mr Rosenthal senior, would not or could not have materially impacted on the appellant’s case and his prospects of success at first instance? It is difficult for an appeal court to make such assessments without knowing what evidence the witness may have given. In the case of jury verdicts, it has been held that an appeal court should not attempt to speculate what a trier of fact may have concluded, had the wrongly rejected evidence been admitted. Where this is the conclusion on an appeal, generally a new trial is ordered: Balenzuela v De Gail and Anor (1959) 101 CLR 226 per Dixon CJ at 232, 235.
194 Put another way, can it be ruled out that the setting aside of the witness summons would have made no difference to the outcome of the case?: Stead v State Government Insurance Commission (1986) 161 CLR 141.
195 I have come to the conclusion in this case, not without some hesitation, that it is unlikely that the setting aside of the witness summons to Mr Rosenthal senior would have led to a different outcome. This is primarily because it seems as the appellant’s case unfolded, the contention of resignation by the respondent was largely overtaken by the allegations that the respondent had mismanaged the farm, justifying his summary dismissal for misconduct. Even if Mr Rosenthal senior gave evidence as to his illness and its timing, the crucial conversations about the alleged resignation were between the respondent and Mr T Palermo, who did not testify.
196 Further, the evidence of the respondent as to him working on the family farm, which work should have been disclosed to the appellant, was that it was performed outside of work time for the appellant and no more than about twelve hours a week. No wages were received by the respondent.
197 In terms of the periods where Mr Rosenthal senior was said to have been given the “keys to the farm”, the uncontradicted evidence was that the respondent was only away for one weekend in June 2008, and the respondent’s father was asked to keep an eye on the farm on this occasion.
198 The case at first instance was a difficult one for a number of reasons, not the least of which was the manner of the conduct of the case by the agent for the appellant, and the clear antagonism which existed between the appellant’s agent and the respondent, as illustrated during the course of the respondent’s testimony.
199 However, for the reasons that I have set out above, I consider that the conclusion that the appellant was materially prejudiced in the conduct of its case by reason of the setting aside of the witnesses summons, is not open.
200 As to the other grounds of appeal, I am not persuaded they have any merit, for the reasons set out by Smith AP and Beech CC.
201 Accordingly, in my view, the appropriate determination of this appeal is that the appeal be dismissed.