Appeal against decisions of the Commission in Matter No. U 99 of 2013 given on 11 MARCH 2014 AND 20 March 2014

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 01246

DELIVERED : THURSDAY, 6 NOVEMBER 2014

FILE NO. : FBA 7 OF 2014

Appellant

AND

Liam Christopher Porter

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2014] WAIRC 00198; (2014) 94 WAIG 253 and [2014] WAIRC 00214; (2014) 94 WAIG 364

File No. : U 99 of 2013

CatchWords : Industrial Law (WA)- Appeal against decisions of the Commission - Claim referred to Commission - Harsh, oppressive or unfair dismissal - Commissioner erred in the assessment of the evidence - What constitutes objectionable leading questions considered - Retrial necessary - Decisions suspended and matter remitted for further hearing and determination

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(b), s 29(1)(b), s 29(1)(b)(i), s 49(2)

Evidence Act 1906 (WA) s 106F

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c)

Result : Appeal upheld, order made

Representation:

Appellant : Mr R L Hooker (of counsel)

Respondent : Mrs S M Porter, as agent

Solicitors:

Appellant : Mountains Lawyers

Case(s) referred to in reasons:

Barbaro v Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1; [1980] AATA 76

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Brown v Churchill [2006] WASCA 17

Browne v Dunn (1894) 6 R 97 (HL)

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130

Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kingstyle Investments Pty Ltd v Lawson [2013] WAIRC 00355; (2013) 93 WAIG 493

Maves v Grand Trunk Pacific Railway Co (1913) 14 DLR 70

Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677

Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482

R v Wilson (1913) 9 Cr App R 124

Secretary to the Department of Human Services v Sanding [2011] VSC 42

Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197

Skinner v Broadbent [2006] WASCA 2

The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Case(s) also cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390

Re Minster of Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272

Reasons for Decision

SMITH AP:

Introduction

1         This appeal is instituted under s 49(2) of the Industrial Relations Act 1979 (WA) (the Act) against decisions made by the Commission in U 99 of 2013 on 11 March 2014 ([2014] WAIRC 00198; (2014) 94 WAIG 253) and on 20 March 2014 ([2014] WAIRC 00214; (2014) 94 WAIG 364).  Application U 99 of 2013 was lodged in the Commission on 28 June 2013 and was heard by the Commission on 25 November 2013 and 6 December 2013.

2         Application U 99 of 2013 was an industrial matter referred to the Commission by Liam Christopher Porter under s 29(1)(b)(i) of the Act.  Mr Porter claimed he was harshly, oppressively or unfairly dismissed by Mr Cesare Violanti and Mrs Somsri Violanti trading as Kwinana Pizza.  Mr Porter's employment was terminated on 1 June 2013.

3          On 11 March 2014, the Commission delivered an order declaring that the dismissal of Mr Porter was unfair and that reinstatement or re-employment was impracticable.  On 20 March 2014, the Commission made an order that Mr and Mrs Violanti pay Mr Porter the sum of $5,400 gross to Mr Porter within seven working days of the date of the order, being 10 weeks' remuneration less the sum of $600, for one week's notice received in the period since dismissal (the decisions).

The Commissioner's reasons for decision

4          Although the reasons for decision given by the Commissioner are short, to properly deal with the central issues raised in the grounds of appeal it is necessary to set out the findings made in the reasons given by the Commissioner in a fulsome manner.  Three witnesses gave evidence on behalf of the applicant, Mr Porter, his mother, Mrs Sharon Porter, and his grandmother, Mrs Jean Anne Nelson.

5          In her reasons for decision the Commissioner set out the evidence of Mr Porter which related to the unfair dismissal claim as follows:

(a) Mr Porter commenced working at the pizza shop in 2008 when he saw an advertisement in the window and he first worked for Mr Violanti when Mr Violanti purchased the business in October 2009.

(b) Mr Porter had never taken any holidays in the time he had been employed by Mr Violanti.

(c) Mr Porter denied he had been given any warnings by Mr Violanti during his employment.  Furthermore, he denied he had ever stolen anything from Mr and Mrs Violanti.

(d) Mr Violanti informed Mr Porter he was dismissed on 28 May 2013.  However, he did not leave his employment until 1 June 2013.  During that period Mr Porter served customers and at no stage was he told not to desist from serving customers.  Also, he was not questioned by police regarding missing money.

(e) In cross-examination, Mr Porter denied he was given any warnings by Mr Violanti, suggesting that the reason for his dismissal was that Mr Violanti understood he (Mr Porter) no longer wanted to take over the business.  Mr Porter denied he was treated as a family member by Mr and Mrs Violanti although he accepted they would speak on a daily basis as they were working long hours.

6          The Commissioner's summary of the evidence given by Mrs Porter was that:

(a) in late 2010 Mr Violanti wished to sell the pizza business and Mr Porter was interested in purchasing the business for $280,000.  Mrs Porter expressed her concern to Mr Porter about the price and she sent an email to Eagle Boys Pizza who made contact with her;

(b) at the time of Mr Porter's dismissal Mrs Porter accompanied Mr Porter to Mr and Mrs Violanti's business.  On that occasion Mr Violanti became quite aggressive with Mr Porter.  When Mrs Porter asked for Mr Porter's separation certificate Mr Violanti refused to provide the certificate and threatened to report Mrs Porter to Centrelink;

(c) when Mr Porter refused to purchase the business Mr Violanti suggested that Mr Porter rent the business for $2,500 a week; and

(d) when Mr Violanti discovered that Mr Porter was not going to take up the option of rental Mr Porter was ultimately dismissed.

7          The Commissioner set out the evidence given by Mrs Nelson as follows:

(a) Mr Porter expressed a desire to purchase Mr Violanti's business for $280,000;

(b) at the time she expressed her concern to Mr Porter and raised the issue with her daughter; and

(c) Eagle Boys Pizza provided an email to Mrs Porter advising that they had not heard of Mr Violanti's business and they were certainly not interested in purchasing the business.

8          The Commissioner set out the evidence given by the witnesses who gave evidence on behalf of the employer and who are employed by Mr and Mrs Violanti as follows:

(a) The first witness was Miss B, a 14-year-old child.  In accordance with s 106F of the Evidence Act 1906 (WA), Ms Sue Hutchinson was appointed a suitable and competent communicator, whose function it was to explain to the child questions put to the child and, where necessary, to explain to the court the evidence given by the child.  The evidence of Miss B was as follows:

(i) Miss B worked part-time for Mr and Mrs Violanti answering phones and taking orders.  She had worked at the same time as Mr Porter, some six or seven months earlier.

(ii) Miss B could not recall anything Mr Porter may have been given a warning for.  She went on to say (ts 44, AB 106):

--- who was the delivery man? --- Yeah. They were just talking about parties and stuff like that and then - and then the phone rang so I just went and then did my work and then I went in the cool room, I think it was to get my drink bottle, I'm not sure, and they were handing over what looked like drugs and then I just went straight back out and went - did my work again and then the delivery driver at the time was - he told me to go to his car and I got a CD off of him and then he took the drugs out of his pocket and, like, put it in his wallet, so at that time I seen it. I'm not quite sure what it was but ---

Okay. So when you - when you saw it a bit closer, the - when he took it out of his pocket and you thought it was drugs, why did you - why did you think it was drugs? --- Well, they were talking about it at the start and it - it just looked like it. It was browny-green – like, brown and green, so it – yeah,, so it ---

So what sort of drugs did it look like?  Did - can you ---? --- Probably weed.

MAYMAN C:  Careful of leading

MOUNTAIN, MS:  Why - are you able to say why you – you - why you thought that?

What ---? --- It was that way it looked. It was ---

The way it looked? --- Yeah.

And do you - how do you know about the way drugs looked? Are you --- ? --- Well, we learn about it at school and everything, yeah.

You learn about it at school, so you know - you – you learn about drugs at school, is that what you're saying? --- (no audible answer)

Okay.  So from your view of what you saw, you think that it was drugs. So just going back. If you could just tell me, the parcel that you saw that - that you recognised as marijuana, was that the same parcel that was given ---

MAYMAN C:  She didn't say that. Be careful about leading, Ms Mountain.

(iii) In cross-examination Miss B admitted she was not sure what the drugs looked like.  She agreed that something was in the delivery driver's pocket that she may not have been able to see although the driver did take something out and when she saw him looking at her he said, 'don't worry, I'm not a bad person' (ts 46, AB 108).  Miss B agreed that the exchange did not prove that Elias, the driver, had received the drugs from Mr Porter.

(b) Master P is another child under the age of 18 years.  Ms Hutchinson was also appointed as a court communicator to assist Master P in the giving of his evidence.  Master P gave the following evidence:

(i) He had been employed by the employer for some two years as a part-time employee.  He was in year 9 at school and that while he was working for Mr and Mrs Violanti Mr Porter was also working at night when the employer was not working.

(ii) Master P came across Mr Porter at the till counting $50 notes and putting some in his pocket.  He saw Mr Porter sort slips on the docket station and throw a couple away.

(iii) He also saw Mr Porter on one occasion go into the cool room and drink a beer.

(c) Mr Glenn William Leahy works as a driver delivering pizzas.  He commenced working in that position in early January 2012.  During that time he came to know Mr Porter.  Mr Leahy's evidence was (ts 60, AB 122):

Are you aware of any behaviour that would have given cause for the owners of the shop to give Mr Porter a warning? --- The smell of alcohol, yes.

Okay. So you smelt alcohol on his --- ? --- Yes, I did.

--- breath.  What sort of time was that, I mean, was it before, after work, during work, if you can ---? --- During work hours.

During work hours? --- Yeah.

Did that have any effect on --- ? --- No, I didn't think it really took effect on him but I thought that having the smell of alcohol on him - because he was also serving up the front as well.

9          The Commissioner recorded in her reasons for decision that Mr Matthew Lee Beard gave evidence for the employer.  She did not, however, set out his evidence but simply said that he works as a pizza maker and is currently employed as a trainee.  Otherwise the Commissioner made no other reference to the substance of the evidence given by Mr Beard.

10       The Commissioner set out the evidence given by Mrs Violanti.  The Commissioner recorded in her reasons the following exchange between Mrs Violanti and counsel for the employer as follows (ts 73, AB 135):

Do you have any information to give the court today about any warnings that were given to Mr Porter during the time that he was employed with you in the Kwinana Pizza Shop, his behaviour? Can you tell me anything about his behaviour that may have incurred a warning from the owner? --- In the morning?

Warning. When Mr Porter was dismissed, what were the reasons – the reasons for Mr Porter finishing at the shop?

MAYMAN C:  Mr Violanti, you can't ---? --- The ---

MOUNTAIN, MS:  Liam? --- Finish?

Yes. He finished working at the shop. What reason why? --- Yes. He steal money.

How do you know that? --- I saw him

You saw him? --- Yes.

…

Okay. And, Mrs Violanti, were you in any way intimidated? Were you - did anyone tell you you had to come in today to give evidence? --- Yes.

Who told you that? --- Had to come here?

Yes? --- My husband.

Your husband said you had to come in? --- Yes.

Yes. Because you're one of the owners? --- Yeah.

Did he tell you what you had to say?  Did he say to you, 'You must say this'? --- Yes.

11       The Commissioner summarised the evidence of Mr Violanti as follows:

(a) Mr Violanti had been a business owner for 35 years in the pizza industry.  He bought this particular business at the end of 2010 and at the time Mr Porter was working with the previous owner.

(b) He offered a traineeship to Mr Porter.  In order to do so special permission was required because Mr Porter was a student at the time and wanted to leave school.

(c) The wage records for Mr Porter were stolen and an investigation that was still ongoing with the police.  However, all money paid to employees was recorded in a business cashbook which was tendered into evidence.

(d) Around January 2013, Mr Violanti considered his relationship with Mr Porter started to go downhill.  Mr Violanti was arguing with his wife, the till was not balancing and there appeared to be a number of dollars missing and there were only three persons in the shop; Mr Porter, Mrs Violanti and himself.  That night he gave Mr Porter notice as he knew his wife would not steal from him therefore he drew the conclusion that it had to be Mr Porter.

(e) The initial issues Mr Violanti had with Mr Porter in 2013 were drinking.  On the third occasion the drinking occurred Mr Violanti spoke to Mr Porter and the drinking ceased.  Mr Violanti also spoke of an allegation raised with him by an employee's father relating to drugs.  He spoke with Elias about the matter and it did not happen again.

(f) The third occasion related to the disappearance of money.  When Mr Violanti confronted Mr Porter he denied having taken any money from the till and demonstrated to Mr Violanti that his wallet was empty.  It was then that Mr Porter was given a week's notice.

(g) During Mr Porter's employment he offered Mr Porter the lease on the shop when he had finished his traineeship.  It would not have been an outright sale.

12       After recording the evidence in this manner, the Commissioner then observed that in matters such as these it is the responsibility of the employer to apply procedural fairness in investigating such matters.  She then stated that in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 and Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677 observations were made where it was said that the Commission must make an objective assessment of the circumstances of the conduct which is said to be the basis of a dismissal and that assessment is then used to determine whether the employer has acted reasonably in making its decision to dismiss.

13       The Commissioner then made the following findings:

(a) In all contested matters the Commission is required to determine the facts.  Some facts in these proceedings are not in dispute, but where the facts are disputed the Commission is required to assess the credibility of witnesses, weigh their evidence and give reasons as to why one version is preferred over another.  At all times the burden of proof that applies is on the balance of probabilities.

(b) Having listened carefully to the evidence given by Mr Porter and closely observed him, it was her view that the evidence given was given honestly and to the best of his recollection.

(c) Having assessed the evidence of Mrs Porter and Mrs Nelson, it was her view that their evidence was given honestly and to the best of their recollection.

(d) In assessing the credibility of all witnesses the Commission is duty bound to make comment regarding the extent to which counsel for the employer led evidence from the employer's witnesses during examination-in-chief which ultimately made the task difficult in assessing the honesty of the employer's witnesses.  The Commissioner referred to s 26(1)(b) of the Act which provides that the Commission in the exercise of its jurisdiction shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just.  The Commissioner then found that she placed little weight on the evidence given in particular by Miss B because of the number of leading questions put to Miss B relating to the alleged exchange of drugs between Mr Porter and the delivery driver.  Yet, the Commissioner went on to find that she did not believe Miss B to be a dishonest person, it was simply the way in which the questions were put to the witness by counsel for the employer.

(e) The Commissioner found the evidence given by Mr Beard was unreliable because of the number of leading questions that were put during examination-in-chief in relation to Mr Porter having allegedly stolen money from the till.  The Commissioner also found she did not consider Mr Beard to be a dishonest person.

(f) The Commissioner also found Master P's evidence in relation to pocketing $50 notes to be unreliable because of the number of leading questions that were put during examination-in-chief and she also found that she did not consider Master P to be a dishonest person and found that in fact he presented as being quite forthright.

(g) The Commissioner found that Mrs Violanti may have been instructed by her husband as to what to say in the witness box although the Commissioner accepted that there was a language difficulty.

(h) The Commissioner made no findings about the evidence given by Mr Leahy.

(i) The Commissioner then found that she accepted in part the evidence given by Mr Violanti with the exception of the elements relating to the allegation of drug handling and stealing by Mr Porter.

14       After making those findings, the Commissioner made the following findings:

• on balance the Commission considers the incident relating to the alleged handling of drugs did not occur, or if it did the applicant was not involved;
• on balance, the applicant may have consumed alcohol on the premises early in 2013 however the Commission does not accept the evidence of Mr Violanti that he warned the applicant regarding the incident therefore the matter went unchecked;
• the Commission finds that the day the applicant was advised he was to be terminated was Wednesday 22 May 2013 [sic] some seven days before his termination took effect (29 June 2013 [sic]).  In this case I have accepted the submissions of the respondent in that one week's notice was provided and the evidence of the applicant in that during the period of notice he continued to work for the respondent, including serving customers; and
• the Commission considers that the real reason for terminating the applicant was that the relationship between the respondent and the applicant deteriorated from the point at which the applicant refused to purchase or lease the business from the respondent.

15       The Commissioner then went on to observe that she considered it strange and incongruous that an employer terminated an employee for stealing and proceeded to allow Mr Porter during his period of notice to continue to serve customers.  She then said that accordingly, on balance, she rejected the suggestion that Mr Porter was stealing from the employer, taking into account the employer's flexibility in using Mr Porter to serve customers during his period of notice in addition to considering Mr Porter's exemplary behaviour, his length of service and his willingness to work many additional hours.

Grounds of appeal

16      In ground 1 it is pleaded that the Commissioner erred in procedural fairness in finding witnesses were led by counsel.  In the particulars to ground 1 of the appeal it is stated that the Commissioner erred in finding counsel for Mr and Mrs Violanti led the following witnesses in examination-in-chief:

(a) Master P;

(b) Miss B; and

(c) Mr Beard

17      The particulars also allege that the Commissioner erred in giving no weight to the evidence of each of those witnesses solely on the basis of the manner in which the questions were put to them by counsel, despite finding the witnesses presented as forthright and honest.

18      In ground 2 it is pleaded that the Commissioner did not properly account for the evidence put at the hearing.  The particulars provided in respect of ground 2 of the grounds of appeal take issue with findings made in respect of the evidence given by only Mrs Violanti and are in the nature of a submission.  The particulars in paragraphs 1, 2 and 3 raise an argument that the Commissioner did not properly assess the evidence given in chief by Mrs Violanti.  Particular 4 raises the same issue in respect of evidence Mrs Violanti gave when cross-examined.  Particular 5 also raises the same issue in respect of Mrs Violanti's evidence when re-examined.  In Particular 6 an argument is raised that if Mrs Violanti's evidence had been properly considered, the evidence of Mrs Violanti ought to have been sufficient evidence on its own to dismiss the application.

19      In ground 3 it is pleaded that the decision was against the evidence and the weight of the evidence.  The particulars state as follows:

(a) The Commissioner erred in giving no weight to the evidence given by Mrs Violanti that she saw Mr Porter stealing money from the till on the basis that she may have been instructed as to what to say in the witness box by her husband.

(b) The Commissioner erred in not taking into consideration all of the evidence given on behalf of Mr and Mrs Violanti in relation to the issue of stealing money.

(c) The Commissioner erred in rejecting entirely the evidence of Master P as unreliable.

(d) The Commissioner erred in rejecting the entirety of Mr Beard's evidence.

(e) The Commissioner erred in rejecting the evidence of Miss B.

(f) The Commissioner accepted the evidence of Mr Violanti with the exception of the elements relating to the allegation of drug handling and stealing by Mr Porter.  However, the Commissioner contradicted that finding by finding that Mr Porter may have consumed alcohol on the premises early in 2013, but then did not accept the evidence of Mr Violanti that he warned Mr Porter regarding the incident.  It is also stated that this finding was against the evidence given by Mr Violanti.

(g) The Commissioner concluded that the real reason for terminating Mr Porter was that the relationship between him and Mr and Mrs Violanti deteriorated from the point at which Mr Porter refused to purchase or lease the business from Mr and Mrs Violanti is against the weight of the evidence.

(h) The Commissioner's finding that Mr Porter was not dismissed for stealing was against the weight of evidence and was based solely on the Commissioner's own opinion or thoughts and not supported by evidence and the evidence of Mr Porter's past employment behaviour prior to January 2013 and length of service.

(i) Mr and Mrs Violanti were not given an opportunity to comment or respond to the Commissioner's thoughts in regard to why Mr Porter was kept on for a week after he had been found stealing.  The question was put to Mr Violanti in cross-examination by Mrs Porter (Mr Porter's mother) and Mr Violanti explained that the police had advised him to give Mr Porter one week's notice.  Yet, that part of Mr Violanti's evidence was not excluded as being accepted by the Commissioner.

(j) The Commissioner erred in giving weight to the evidence of Mrs Porter which evidence was based wholly on hearsay or her own opinion and was not given by Mr Porter in his own testimony when he had the opportunity to do so and was given after Mrs Porter had the benefit of hearing Mr Porter's testimony.

(k) The Commissioner erred in her understanding or her summary of Mrs Porter's evidence in relation to the proposed purchase of Mr and Mrs Violanti's business when the evidence of Mrs Porter on this point was based on belief and supposition only.

(l) The Commissioner erred in giving weight to the evidence of Mrs Nelson (Mr Porter's grandmother) which evidence was hearsay and was not given by Mr Porter when he had the opportunity to do so in his own testimony.

(m) The Commissioner erred in not giving any weight to the evidence of Mr Violanti in response to the issue raised by Mr Porter with regard to selling the business to Mr Porter despite the Commissioner not excluding her acceptance of that evidence of Mr Violanti.

(n) The Commissioner erred in her understanding or her summary of Mr Violanti's evidence regarding the drugs on the shop premises.

(o) The Commissioner erred in her understanding of the evidence of Mr Violanti where Mr Violanti stated that his wife had raised the issue with him about Mr Porter taking money from the till and Mr Violanti not wanting to believe that to be the case because he had treated Mr Porter as a surrogate son.

(p) The Commissioner erred in taking into consideration in her reasons for decision matters that were raised at the hearing solely in relation to Mr Porter's unpaid entitlements.

20      These particulars are a summary of the particulars set out in ground 3, paragraphs 1 to 17, of the grounds of appeal.  The particulars set out in ground 3, paragraphs 18 and 19, raise a complaint that the Commissioner did not inform the parties until the evidence had closed that the Commissioner did not have jurisdiction to rule on Mr Porter's claim for contractual benefits.  As this was not a matter raised in the written and oral submissions by the parties, these reasons do not deal with this issue.  Further, this issue does not appear to relate to the central argument raised in ground 3 of the grounds of appeal that seek to challenge evidentiary findings made by the Commissioner.

21      In ground 4 of the appeal it is pleaded that the Commissioner erred in the application of law in that she failed to apply the appropriate case law for circumstances where an employee is dismissed for misconduct, in particular it is pleaded that the Commissioner ought to have applied the test in Bi-Lo Pty Ltd.

Matters stated in the application and notice of answer and counter-proposal

22       In Mr Porter's notice of application he states that his employer accused him of stealing when he had not done so and that his 'boss' had refused to show him any evidence that he was stealing.

23       In the notice of answer and counter-proposal it is stated that:

(a) the decision was made to terminate Mr Porter's employment based on a number of warnings regarding unacceptable behaviour over the previous months prior to the termination of employment beginning in or about January 2013;

(b) at least two of the warnings ought to have resulted in instant dismissal without notice, but they were prepared to give Mr Porter opportunities to rectify his behaviour because they had trained him up with a view of him taking over the shop within the next 12 months so that they (Mr and Mrs Violanti) could retire;

(c) a first warning was given in January 2013 after Mrs Violanti informed Mr Violanti that Mr Porter had been consuming alcohol on the premises during working hours; and

(d) a second warning was given sometime after the middle of May 2013 after Mr Violanti was informed by a customer of the shop, and the father of an employee, Miss B, that Miss B had told him that she had seen Mr Porter pass a bag of marijuana to the delivery driver in the cool room of the shop.

24       Although it stated in the notice of answer and counter-proposal that a third warning was given for cash in the till not reconciling, it is apparent from the matters stated in the notice of answer and counter-proposal and the evidence given in the proceedings before the Commission that there was not a third warning, but this incident was the incident that Mr and Mrs Violanti say resulted in the termination of employment of Mr Porter.  The notice of answer and counter-proposal is in a narrative form and appears to be written on behalf of Mr Violanti who relevantly states as follows:

Over the period of about 8 weeks in April and May 2013 the cash in the till did not reconcile with the till reports, yet the total of the carbon order dockets did reconcile with the cash on hand.

On the night of 22 May 2013 I returned from my usual delivery shift for the night and commenced reconciling the takings for the night. There was a deficit of about $230 to $240 in cash on hand compared to what the till had recorded. As this was quite a substantial amount to be missing I reconciled the carbon copy of the order dockets, this time putting them into numerical order also which I did not do on previous occasions. Not all the dockets were present i.e. when put into numerical order there would be a number missing every so often which should not be the case.

Liam is solely responsible for operating the till. I advised Liam of his failure to reconcile the till, the missing cash and the missing dockets.

I did not accuse Liam of stealing. However, Liam's failure to reconcile the till and failure to account for the missing dockets together with his previous serious offences gave me no choice but to dismiss him.

The Applicant worked out the week's notice which meant he was required to be in the possession of a key to perform his duties as required. On the completion of the Applicants shift on Friday 31 May 2013 I took possession of the key and paid the Applicant his wages in cash.

The central issues raised in the grounds of appeal

25       The appellant says there are four issues raised in the grounds of appeal which constitute appealable errors committed by the Commissioner.  These are:

(a) An erroneous construction and application of s 26(1)(b) of the Act in a manner that was critical to the Commissioner's approach to fact finding and caused it to miscarry.

(b) An erroneous characterisation of significant portions of evidence-in-chief led on behalf of Mr and Mrs Violanti as having been the subject of 'leading questions' with the consequence that the evidence given by the witnesses concerned was necessarily unreliable and/or of no probative force or weight.  Further, even if any of the questions asked in examination-in-chief were leading, which is denied, the Commissioner is not bound by the rules of evidence.  Therefore, ipso facto, even if the questions put to the employees could be said to be leading it does not follow that their evidence could be regarded as having no probative value.

(c) A failure to make sufficient or proper findings on the facts deposed to by significant portions of evidence led on behalf of Mr Porter and accordingly, a failure to properly:

(i) accord Mr and Mrs Violanti procedural fairness; and

(ii) discharge the Commissioner's jurisdictional task under the Act.

The Commissioner's assessment of the reasons for the basis of the dismissal of Mr Porter was a theory that was based on no more than speculation and guesswork and ought to not itself have been given any probative value.  In particular, the finding that Mr Porter was dismissed because Mr Violanti was unable to get him to engage in a transaction to take over the running of the lease of the shop with a view to buying it had somehow a causative connection with dismissal was not sourced in any direct evidence and revolved around a speculative guess and nothing more.

(d) A failure to apply the correct approach to fact finding in unfair dismissal applications where an employer at first instance asserts misconduct on the part of an employee.

Conclusions

(a) Leading questions – Legal principles

26       A leading question is a question that suggests the answer or contains the information that the questioner seeks to adduce as evidence or assumes information the existence of which the witness has not given evidence before the question is asked:  Glissan J L QC, Advocacy in Practice (5th ed, 2011) (4.6).  Importantly, the answers to leading questions in examination-in-chief or re-examination are not inadmissible in evidence:  R v Wilson (1913) 9 Cr App R 124.  However, little weight may be given to an answer to a question that is leading because of collusion or because of the impropriety of suggesting the existence of facts which are not in evidence:  Heydon J D, Cross on Evidence (6th ed, 2000) [17150].  Thus, the prohibition on leading questions is directed to the conduct of a fair hearing.

27       It is non-objectionable to ask questions which are leading in form for the purpose of directing the attention of the witness to a particular topic, but such a question must not suggest the answer required.  Such questions enable the witness to be taken to the real matters in dispute.  The general rule is that in examining one's own witness, no leading questions must be asked, but that on material points one must not lead his or her own witness but that on points that are merely introductory and no part of the substance of the inquiry one should lead:  Maves v Grand Trunk Pacific Railway Co (1913) 14 DLR 70, 74 - 75.  A question is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject matter respecting which he or she is being questioned.  Further, 'leading' is a relative not an absolute term.  There is no such thing as 'leading' in the abstract, for a question in an identical form in one matter might constitute leading but in another subject matter, the question might be unobjectionable because it is not in dispute, or it is not an issue in dispute:  Maves (74).

28       Whilst a witness must not be shown the answer that is expected by a question, he or she ought to be given the clearest possible indication of the point on which his or her evidence is required:  Munkman J H, The Technique of Advocacy (1986) (42).  Thus, the questions must point the witness in such a way to the subject matter in question that allows the witness to give their answer in their own words.

29       The main exceptions to the prohibition on leading during examination-in-chief and re-examination are conveniently summarised by Glissan at 4.8:

There are numerous exceptions to the prohibition on leading during examination-in-chief (and re-examination). The main exceptions are:

(1) A witness may be (and should be) led on the formal and introductory parts of his or her evidence. This is commonsense, saves time and allows easy establishment of background detail.

(2) Leading is permitted to establish undisputed or non-contentious matters.  This ordinarily requires the consent of your opponent, or an understanding of the precise extent of the agreement. Even so, there may be sound tactical reasons for not using leading questions to adduce non-contentious matters.

(3) Matters already given in evidence by the witness may be led. This exception is very important and useful for techniques of presentation where problems occur, such as building from 'fortresses', piggy-backing and bringing the witness back to the issue.

(4) Leading questions may be asked to direct a witness' mind to a particular point or issue, such as the identification of a person or thing in court (R v Watson (1817) 2 Stark 116; 171 ER 591) or details of a letter or members of a partnership. (For the dangers in identification cases, see Davies and Cody v R (1937) 57 CLR 170; R v Domican (1992) 173 CLR 555.)

(5) A question may be asked which is leading in form for the purpose of directing the attention of the witness to a particular topic, but such a question must not suggest the answer required.

(6) Counsel is always entitled to lead a witness to a denial or to evidence in contradiction of another witness. The evidence to be denied may be put clearly and fully: Edmonds v Walter (1819) 3 Stark 7.

(7) Leading questions may be employed where it is desired to direct the witness' mind to particular points which are vague in the testimony of that witness when given in response to non-leading questions: R v Hodgson (1924) 18 Cr App R 7; R v Duell [1984] Qd R 451 (CCA).

(8) Leading questions have been allowed 'to expedite trial without injustice' - sometimes to an extraordinary extent. In the bizarre case of Ex parte Bottomley [1909] 2 KB 14, a magistrate in a part-heard case became ill. Each witness was recalled before a new bench, and his or her previous evidence read over in the form of a long leading question. This was approved on the above principle by Phillimore J, who said (at 22):

... it will be for him to consider whether he thinks it desirable that some particular witness should be called and examined in some particular manner; whether the reading of the cross-examination of any particular witness should be postponed till after his examination is taken viva voce; or whether the whole or any part of the evidence of any particular witness should be taken orally de novo.

This confirms a very broad judicial discretion as to leading; see Cross on Evidence, Australian ed, para 17145:

… Probably witnesses who are frightened, ignorant, very young, mentally feeble, or not fluent in English may more readily be led than others. Wigmore stated a wider exception:

'Where the witness is unable without extraneous aid to revive his memory on the desired point - ie, where he understands what he is desired to speak about, but cannot recollect what he knows - here his recollection.. being exhausted, may be aided by a question suggesting the answer. The trial judge's discretion must be relied upon to prevent imposition'. (Wigmore V3 para 777)

There seems to be no leading case suggesting that the law goes so far, though Best agreed; the technique is often employed in practice, and this illustrates the width of the judge's general discretion to control the form of questions.

(9) A further exception more commonly met in practice is what has become known as the rule in Thynne's case (above) which arises from the decision of Sir Owen Dixon in R v Neal [1947] ALR (CN) 616. The thrust of the rule is that a judge may give limited leave to counsel to cross-examine a witness without declaring that witness hostile.

30       To ascertain whether a question is objectionable as leading depends upon what the matters are in dispute.  For example, a leading question might be, 'You were at work on 20 June 2013 in the afternoon when Mr Smith came into the shop.'  If, however, it is not in dispute that the witness was at work in the afternoon on that date when Mr Smith came into the shop no objection could properly be made to such a leading question.  If, however, it is in dispute whether the person was at work or whether Mr Smith came into the shop on that afternoon, the following questions would be regarded as non-leading, 'Where were you on 20 June 2013 in the afternoon?'  If the witness says they were at work, the next question should be, 'Did someone come into the shop that afternoon?'  Questions such as, 'Tell us what happened on 20 June 2013 in the afternoon' are to be avoided as such questions allow a witness to stray into irrelevant matters or forget important details:  Glissan (4.7).

(b) Did the questions asked of Miss B, Master P and Mr Beard infringe the prohibition on asking leading questions in examination-in-chief or in re-examination?

31       In order to answer this question it is necessary to review the entirety of the evidence given by each of these witnesses when they were asked questions by counsel for the respondent.

32       Miss B's evidence was that she observed Mr Porter and another employee, Elias, pass between them a parcel that appeared to contain drugs.  The examination-in-chief proceeded as follows:

MAYMAN C: Now, what I've done, [ ], is I've brought a friend of the court in and her name is Sue, but she's to help you. So that if you get into difficulty, if you feel a bit lost in here, then rather than me having to help you, that's - that's Sue's job.  All right? And that's what she's here for?---Okay.

All right. Thank you.

Thank you.

MOUNTAIN, MS: Thanks, [ ]. Would you prefer to stand or sit while you - - -?---I can stand.

You can stand. Thanks. [ ], you're a student at Waikiki?---No, Warnbro High.

I beg your pardon?---I'm a student at Warnbro High.

At Warnbro. I beg your pardon. And do you also work?---Yeah.

Can you tell me about your job?---Yeah. I work at Kwinana Pizza as a counter - like, I do the phones and like, take people's orders.

And that's part-time?---Yeah.

Obviously if you're a student you're not working there fulltime. And you have another interest aside from school and working at the shop with - associated with the police?---Yeah.

Can you just give us a little bit of information about that?---It's like police cadets, so you just - what do I say about it?

No, that's fine. So you're a police cadet?---Yeah.

As well as a student and a part-timer at the shop. B, are you aware at any time that you have - or first of all, when did you start at the Kwinana Pizza shop?---I'm not quite sure, but it was about six or seven months ago.

Okay. And you were there at the same time that Mr Porter was there working?---Yes.

So you got to know Mr Porter?---Yeah.

Yes. And can you tell me anything that you observed during that time that you believe Mr Porter may have been given a warning for?---No, I can't. The only – was the playing around in the cool room, that was the only bit, with the - - -

Yes, you'll need to give that information?---Yeah. Yeah, that was - --

The - the court doesn't know about that?---Okay.

So that's - that's what you need - you just need to tell your story about what you observed?---Okay. Sorry. Well, him and the delivery guy at the time were - - -

So Mr Porter and?---I think his name was Elias.

Elias - - -?---And he was - - -

- - - who was the deliveryman?---Yeah. They were just talking about parties and stuff like that and then - and then the phone rang so I just went and then did my work and then I went in the cool room, I think it was to get my drink bottle, I'm not sure, and they were handing over what looked like drugs and then I just went straight back out and went - did my work again and then the delivery driver at the time was - he told me to go to his car and I got a CD off of him and then he took the drugs out of his pocket and, like, put it in his wallet, so at that time I seen it. I'm not quite sure what it was but - - -

Okay. So when you - when you saw it a bit closer, the - when he took it out of his pocket and you thought it was drugs, why did you - why did you think it was drugs?---Well, they were talking about it at the start and it - it just looked like it. It was growny-breen [sic] - like, brown and green, so it - yeah, so it - - -

So what sort of drugs did it look like? Did - can you - - -?---Probably weed.

MAYMAN C: Careful of leading.

MOUNTAIN, MS: Why - are you able to say why you - you - why you thought that? What - - -?---It was the way it looked. It was - - -

The way it looked?---Yeah.

And do you - how do you know about the way drugs looked? Are you - - -?---Well, we learn about it at school and everything, yeah.

You learn about it at school, so you know - you - you learnt about drugs at school, is that what you're saying?---(No audible answer).

Okay. So from your view of what you saw, you think that it was drugs. So just going back. If you could just tell me, the parcel that you saw that - that you recognised as marijuana, was that the same parcel that was given - - -

MAYMAN C: She didn't say that. Be careful about leading, Ms Mountain.

MOUNTAIN, MS: The - let me see how I can put this. Going back to the cool room - - -?---Yeah.

- - - can you link the parcel that you saw Elias - - -?---Yeah.

- - - with to the cool room incident?---Yeah. Well, I didn't get, like, a good glimpse of it but I'd still seen enough when they passed it over and then he put it straight in his pocket and then when he walked out, he took it out of his pocket again so - - -

Okay. So were you a bit concerned about that and what did you - what did you do about what you saw that night?---Well, I - I was, like, a little bit concerned but I just didn't say anything on that side and then my - then I told my dad and then my dad was the one that told Ces so - - -

Okay. So you told your dad, and what did your dad say when you told him?---He - he was just a bit shocked and said, 'You know, that shouldn't happen at work', so I didn't know that he was going to go tell Ces but he did anyway.

Okay. And how do you know that he told Ces?---Well, the next day we were talking about it cos Dad had told him before, like, when I - before I was there and then Dad had just asked me what happened and everything.

So Ces asked you about it the next day?---Yeah.

Okay. And you told him the same story that you've - - -?---Yeah.

- - - you've just relayed and that you told your dad, and what did Ces say to you when you told him what you had seen?---He would look further into it cos he wasn't impressed.

He wasn't impressed. Okay. All right, [ ]. That's - that's all the questions I wanted to ask you. Thank you?---Thank you.

[ ]  References to the name of Miss B have been deleted in these reasons.

33       Miss B was not asked any questions in re-examination by counsel for the respondent.

34       It is clear from the transcript of Ms B's evidence-in-chief that the questions asked of Miss B and the answers given by her that the prohibition against asking leading questions was not breached in any manner that can properly be regarded as material.

35       Whilst some of the questions asked by counsel commenced with a statement that repeated evidence that had already been given by the witness before a question was put to the witness, such statements do not render the questions put to the witness as leading.  It was proper to lead Miss B about the fact that she was a student.  When counsel reached the point at which she wished Miss B to give evidence about the alleged exchange of drugs at work between Mr Porter and Elias, the delivery driver, counsel asked the question, 'And can you tell me anything that you observed during that time (when she worked with Mr Porter) that you believe Mr Porter may have been given a warning for?'  This question was not leading as it did not disclose information to the witness about what she had observed and the question did not require any information to be provided about whether Mr Porter did or did not receive a warning.  When the Commissioner first warned counsel of leading Miss B, no leading questions had been asked.  When the Commissioner warned counsel a second time, the Commissioner put to counsel that the witness did not say that she recognised the drugs as marijuana.  However, the witness had said she thought what was handed over was brown and green and was probably 'weed'.  Whilst the witness did not use the word marijuana, it is commonly and well known the word 'weed' is a slang term (informal language) for the prohibited plant cannabis.  So too is the word marijuana.

36       Master P gave evidence that he observed Mr Porter remove money from the till and put the money in his pocket.  He also gave evidence that he saw Mr Porter throw away till receipts.  When Master P was questioned by counsel, he too was not led in his evidence in respect of any contentious matters.  Master P's evidence-in-chief was as follows:

MAYMAN C: Now, just before Ms Mountain starts asking you some questions, you've got a woman sitting next to you and her name's Sue, and she's been appointed by me to give you some assistance. If at any stage you are somewhat confused by the questioning then she'll be here to give you some assistance with those questions. All right?---Yeah.

Thank you?---Thanks.

Ms Mountain?

MOUNTAIN, MS: [ ], thanks. Could you tell me, are you employed with Kwinana Pizza Shop?---Yes.

And how long roughly have you been employed there?---Two years.

Two years. Are you fulltime or part-time?---Part-time.

And you're otherwise engaged at - - -?---School.

School. So what year are you in at school?---Year 9.

Year 9. Okay. Thanks, [ ]. Was Mr Porter, or you probably know him as Liam - is it okay if I just refer to you as Liam?

PORTER, MR: No, go for it.

MOUNTAIN, MS: So did you get to know Liam when you were working there?---Yes.

Yes. And would you be able to tell us if there were any incidences that occurred that you observed in the shop that you believe would have resulted in a - in Liam receiving a warning about his behaviour in the shop?---Yeah. He, like, took money out of the till and - - -

How do you know that?---I watched him. Like, I - when we were cleaning up at night and Ces wasn't around, that we were packing up and I've came across him at the till counting notes, $50 notes and then he put some in his pocket.

Okay. So you saw $50 notes going into his - - -?---Yeah.

- - - pocket. Was there anything else that you observed that you can tell us about?

MAYMAN C: Ms Mountain, can I just wind you back a bit. He didn't say he saw them going into his pocket. You've just said that.

MOUNTAIN, MS: I beg your pardon.

Did you - --

MAYMAN C: Did you put words into his mouth?

THE WITNESS: No. I just said I - I just said he put them in his pocket.

MAYMAN C: Did you?---Yeah.

I beg your pardon. I'm sorry?---It's all right.

MOUNTAIN, MS: Sorry, [ ]. Was there anything else that you observed - - -?---Yes.

- - - while you were working there?---I saw him at the slips on the little docket station we got. He took, like, a couple out and sorted them out and then threw a couple away.

Okay?---A - a couple of notes.

Okay. So - and you thought that was a bit odd, did you - - -?---Yeah.

- - - that - that he would be going through the - the dockets?---Yes.

Okay. Did you say anything to him or did he say anything to you?---I asked him and he - I was like, 'why are you doing that', and he's like, 'oh, they're just false – false dockets', and I was like, 'All right'.

Okay?---Just (indistinct 12.56.15) that.

Okay. Did you mention this behaviour to anybody?---Not really. I said to Em that he was stealing but, yeah, just - yeah, he was stealing, not really taking the dockets. Just he took some money.

Okay. So you didn't mention about the dockets. Did you - Em is - perhaps if I can just explain to Commissioner. Em is what the staff call Mrs Somsri, I believe, the - one of the owners of the business?---Yes.

Yeah. Okay. Sorry, Mrs Somsri Violanti. So you - you know her as Em?---Em, yeah.

Okay. Is there anything else you can tell us, [ ], about the time that you were working at the shop? Was there anything else that may have resulted in - or what you think may have resulted in a warning?---He - when I - different occasions, like, many occasions when I went into the cool room and got my drink and had a drink, he's had a couple, like, cases of beer there and he's occasionally cracked one open.

Okay?---And drank it in there.

Can you tell us whether - the timing of that? Was it during or after - - -?---During work.

- - - work hours?---Yes.

It was during work hours, was it? Okay. Is there anything else you want to say, [ ]?---No.

No. Okay. Thank you very much.

PORTER, MS: Okay.

THE WITNESS: Yeah, that he also - - -

MAYMAN C: Sit down for a moment.

THE WITNESS: Sorry.

MAYMAN C: No, no, that's all right.

THE WITNESS: Also went to the bag as well.

MOUNTAIN, MS: Okay. Can you explain that a bit more, a bit - - -?---He – Ces keeps some extra money over in the corner that - so if he needs it through the night. I've - saw him there going - going through the bag as - as well.

Okay. And did you say anything or do anything at that time?---I said - what did I say? Sorry. Just - --

No. That's okay. I mean if you don't - if you don't remember saying anything or doing anything, that's - that's fine. You can - okay. All right. Thanks. Thanks very much, [ ].

37       Master P's evidence in re-examination was as follows:

[ ], thanks so much for that. Just one thing that I think there may have been a little bit of confusion on. When these incidents about the dockets and the cash were happening, when was that?---Somewhere between the - maybe like April, May. I don't know.

No, sorry, I - I beg your pardon. I - I actually mean what time of the day or night?---Oh, night Rough - - -

And I don't mean the exact time but in the procedures of - - -?---Roughly between six and probably 8.30 cos that's - at 9 o'clock. I work till - six to nine - - -

Yeah?---- - - with - - -

Okay?---Still with Liam so - - -

Yeah?--- - - - between then.

So at that time of the evening, what are the actual - what's going on in the shop? Where's - where's Mr Violanti at that time, for instance?---At that time, he was on delivery.

So Mr Violanti's out on deliveries and if it's that time of night, is it getting close to - - -?---Pack up.

- - - closing time?---Yes.

And so what are the other staff doing?---They were cleaning up.

Okay. And - - -?---As we all do.

- - - were there any customers in the store?---No.

Okay. Thank you very much, [ ].

[ ]  References to the name of Master P have been deleted in these reasons.

38       The only question that was put to Master P that was a leading question was after the witness said he saw Mr Porter throw a couple of dockets away, counsel said, 'and you thought that was a bit odd, did you?'  The witness replied, 'Yeah.'  Whilst this question was plainly a leading question, this question in the context of the entire evidence given by the witness was not a question of the nature that could be said to render the entire examination of the witness to be unfair and thus properly ground a decision by the Commissioner to exclude the whole of his evidence.  Nor could it be found on this basis that Master P's evidence was unreliable.  It was simply a question from which the witness could be directed to the issue whether anything occurred after he witnessed the action of Mr Porter.  The only relevance as to whether the witness thought the disposal of the dockets was odd was to the next question which was asked which was, 'Did you say anything to him or did he say anything to you?'  This last question was plainly not a leading question.

39       Mr Beard was a friend of Mr Porter and the boyfriend of Mr Porter' sister.  Mr Beard was also an employee of Mr and Mrs Violanti.  Mr Beard gave evidence that Mr Porter told him that he had stolen money from work.  Mr Beard's evidence in examination-in-chief proceeded as follows:

Matthew, what is your occupation?---Pizza maker.

Okay. And where do you work?---Sorry - Kwinana Pizza.

Kwinana Pizza. And how long have you worked there?---About five or six months.

Five or six months. Okay. And are you doing a traineeship - - -?---Yep.

- - - at the moment?

MAYMAN C: Pardon? Are you?---Yeah. Yep.

Yes.

MOUNTAIN, MS: During your traineeship, Matthew, what hours are you actually required to work at - at the pizza shop, what does Ces ask you to work at the pizza shop each week?---3 to 5.

3 to 5?---On Tuesday, Thursday, Friday, Saturday. And Monday and Wednesday at 5.

Monday/Wednesday 5 to?---9.

5 to 9?---Yep.

I believe you actually work different hours to that - - -?---Yep.

- - - is that at your own request?---Yep.

Okay. Can you say what hours you work because you have requested different hours?---Yep. 12.30.

To when?---Till about 3.30 - 4.

And what days are they?---Tuesday, Thursday, Friday, Saturday.

And what about on Wednesday?---No. I don't do the doughs.

You don't work Wednesday at all?---I do but I don't do the doughs on Wednesdays, so I come in at 5.

You go in at 5 on Wednesday. Why don't you do the doughs on Wednesday?---Just my hours, that's how they were when I started.

Sorry, who does the doughs on Wednesday then if you don't - the shop is open on Wednesdays - - -?---Yeah.

- - - is the shop open on Wednesday?---Yeah. Yep.

Who does the doughs on Wednesday when you don't do them?---Ces sometimes does or I do them the next day.

Okay. Thanks. And during the hours that you work that you've requested to start at 12.30 - - -?---Yep.

- - - do you have a break during the day?---Yep. As soon as I finish the - --

Making the dough - - -?---Making the dough and cleaning up the place.

Okay. So on a normal day - - -?---Yep.

- - - except for the Wednesday when you don't make the dough - - -?---Yep.

- - - what do you actually work at the pizza shop?---12.30 till 9.

Yeah. Sorry, can you tell me about your break?---Oh yeah. I have a break until about 4.15.

Okay. And what time do you normally take your break?---Depends on when I finish - - - -

Yep?---It varies. Like, it depends on how fast I do the dough.

Okay?---So, on average, about an hour.

Okay. So you have a break in the middle of the day - - -?---Yep. About 3 - 3.30.

At about 3 - 3.30. Despite the fact that you commenced work - actually, did you work at any - at all - at any time with Mr Porter?---Yep. For a week.

For one week, when he was - - -?---It was one week but I only worked with him for two days.

Okay. So you worked with him for two days?---Yeah. One half day and one full day.

Okay. Matt, can you tell me how you got your job at Kwinana Pizza shop, did you know Mr Violanti prior to getting your job?---In a way. I used to talk to him when we picked up Liam from work and - - -

Okay?---I talked to him now and again.

Okay?---From the car.

And did Mr Violanti assist you in any way prior to getting your job at the pizza shop?---Yes, he did. He tried taking me to a friend of his in - I don't remember where it was but he tried asking his friend if he could give me a job because I was currently unemployed because I lost my job through the company going bankrupt. So - - -

Okay. So he was trying to find you a job somewhere else, and you weren't successful with that job?---It didn't need me because of the hours - because there was too many hours - the job - like, night-time when it finishes and there was no way for me to get home, so they said it wouldn't be best.

Okay. Fine. Are you aware of any reasons that Mr Porter would have been given a warning for serious behaviour or any reasons that his - his employment would have been terminated with Kwinana Pizza Shop?---Probably drinking at work.

Drinking at work?---Probably stealing.

When - well, probably stealing?---Yeah.

What do you mean by 'Probably stealing'?---Well, I've been told that he was stealing.

Okay. Who told you that?---Liam did.

Lim [sic] himself told you that. What did Liam say to you?---That he'd stolen from work from money that was owed to him.

Okay. So Lim [sic] said he stole money from work?---Yep.

But then added to you that it was of money owed to him?---Yep.

Okay. Did he say how he stole it?---He just said he took it from his till. He would take the slips and he would drive away and keep the money.

Okay. Do you know what he means by that? Working there - when he says take the slips, what - what does that mean?---When he works out the front.

Okay?---When he's doing the cashier part.

And the slips, can you explain what the slips are?---The - the slips are dockets that you get when you place an order you write down what they want and then you keep the yellow stuff and that's what the receipts are.

Okay. All right. So the dockets are showing what people have ordered and paid - - -?---Yep.

- - - for a pizza. And Liam said that he would take the - take the slips - - -?---Yep.

- - - and throw them away. And he took money from the till?---The till, yep.

Okay, thank you. Matthew, can you tell me were you intimidated or in any way threatened to give evidence here today?---No, I wasn't.

By anybody at all?---No.

What would you say the relationship is at work between you and Mr and Mrs Violanti? Is it friendly? Do you - do you think that Mr Violanti is a reasonable - - - ?---Yeah.

- - - employer?---He's definitely reasonable, yep.

He's reasonable, yes. Do - do you find him intimidating?---No, not really.

And he has never threatened you - - -?---No.

- - - with loss of job or anything else?---No.

Okay. Thank you very much?---Thank you.

40       Mr Beard's evidence in re-examination was as follows:

Just in relation to the signing of your daily records?---Yep.

May I hand up this book to Matthew please, to just refresh him regarding how the bookkeeping is kept at the Kwinana Pizza Shop?

MAYMAN C: He's just given evidence he doesn't sign for them.

MOUNTAIN, MS: Yes, I believe he's mistaken. I think - - -

MAYMAN C: Well, he just gave evidence he didn't sign for them. What do you mean he's mistaken?

MOUNTAIN, MS: No, what he's mistaken - what the - he doesn't get pay - separate - separate payslips is I think what he was confused about.

MAYMAN C: I just wrote down, are you signing for your wages? No.

MOUNTAIN, MS: I think - well, can I examine him about that, please?

MAYMAN C: All right, okay.

MOUNTAIN, MS: The question was do you sign for your wages?---Yep.

There is a difference between signing for your wages and receiving payslips or signing for payslips?---Yep.

If you have a look at that book - - -?---Yep.

- - - can you tell me whether you signed for your wages?---Yeah.

Okay. Did you understand the question that was asked of you about do you sign for your wages? Did you understand that to mean signing a wage book or did you understand it as meaning as receiving payslips?---I understood it as payslips.

MAYMAN C: You're leading.

MOUNTAIN, MS: Payslips, okay?---Yeah. I thought this was completely different.

Okay. So having looked at that now - - -?---Yeah.

- - - you understand that the question was actually do you sign for your wages.

MAYMAN C: Are you leading, Ms Mountain?

MOUNTAIN, MS: It's a - --

MAYMAN C: Are you leading?

MOUNTAIN, MS: It's a re-examination, Commissioner.

MAYMAN C: All right.

MOUNTAIN, MS: Thank you. That's all, thanks.

MAYMAN C: I don't even know what he's looking at. I don't know what he's looking at.

MOUNTAIN, MS: Sorry, would you pass the book to the Commissioner, please?

Thank you.

MAYMAN C: All right. Your evidence is concluded, Mr Beard. You may step down?---Thank you.

41       Although it could be said that the witness was led in re-examination about whether he 'signed for his wages', this is a matter that the Commissioner could have had regard to when assessing the credibility of the witness, but the leading questions in respect of this issue could not be found to have rendered the entire evidence of the witness to be unreliable.  In any event, the Commissioner only disregarded the evidence given by Mr Beard on grounds he was led during examination-in-chief.  She did not refer to the evidence given by Mr Beard in re-examination.  However, it is plain from the transcript of the evidence given by Mr Beard that Mr Beard was not led in his evidence-in-chief in respect of any matter that was contentious.  All that counsel did was when asking questions of the witness about the confessional statements made by Mr Porter, was that she repeated the evidence of the witness before asking another question.  For example, after the witness said, 'Well, I've been told that he was stealing', counsel asked, 'Okay.  Who told you that?'  The witness replied, 'Liam did.'  Counsel then repeated that evidence by saying, 'Lim [sic] himself told you that', and then counsel asked, 'What did Liam say to you?'  This method of questioning is not leading.

42       For these reasons, except insofar as ground 1 pleads a breach of procedural fairness, clearly the Commissioner erred in law in finding that witnesses Miss B, Mr Beard and Master P were led and in giving no weight to their evidence solely on the basis of the manner in which the questions were put to them by counsel.  For these reasons, I am of the opinion that ground 1 of the appeal has been made out.

(c) The Commission should not act upon evidence that is not logically probative

43       Whilst the Commissioner correctly observed that the Commission in the exercise of its jurisdiction is pursuant to s 26(1)(b) of the Act not bound by the rules of evidence, but may inform itself on any matter in such a way as it thinks just, this provision is to be construed as the Commission should, when finding facts, act on material that is rationally probative.  In Kingstyle Investments Pty Ltd v Lawson [2013] WAIRC 00355; (2013) 93 WAIG 493 [56] -[58].  I, with whom Beech CC and Mayman C agreed, applied the observations and authorities considered by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; (1979) 36 FLR 482, when his Honour considered the effect of s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), which in substance contained the same statutory command as s 26(1)(b) of the Act.  In Pochi, Brennan J directly raised the question of how are facts to be proved and how is the sufficiency of proof to be determined when there are no rules of evidence.  His Honour then went on to find (491 - 493):

Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that: 'the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.' Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence.

The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board ((1938) 305 U.S. 197, at p. 229). To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: 'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence". Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice"' ((1933) 50 C.L.R. 228, at p. 256). That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore ([1965] 1 Q.B. 456) said: 'These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue' ([1965] 1 Q.B., at p. 488). Lord Denning M.R. in T. A. Miller Ltd. v. Minister of Housing and Local Government said much the same: 'Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law' ([1968] 1 W.L.R. 992, at p. 995), and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall ([1974] 1 Q.B. 624, at p. 633). In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz, Administrative Law, Boston, 1976, pars. 115 et seq.), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment ((1938) 305 U.S. 197) required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding (see Schwartz, par. 118). But in Richardson v. Perales ((1971) 402 U.S. 389) the Consolidated Edison case was construed in this way: 'The contrast the Chief Justice was drawing ... was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force". This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case' ((1971) 402 U.S., at p. 407).

The majority judgments in Bott's case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J. said: 'The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case' ((1933) 50 C.L.R., at pp. 249-250).

44       In Secretary to the Department of Human Services v Sanding [2011] VSC 42, Bell J recently pointed out [133]:

The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered (TA Miller v Minister of Housing and Local Government [1968] 1 WLR 992, 995. This approach was applied by Barnett J in Re Frances and Benny [2005] NSWSC 1207, [7] in a case concerning the statutory powers of the Children's Court of New South Wales). Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required (Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, 5 per Davies J.). The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more (Wajnberg v Raynor and Metropolitan Board of Works [1971] VicRp 82; [1971] VR 665, 678-679; R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228, 244).

45       In Barbaro v Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, 5; [1980] AATA 76 Davies J relevantly observed:

In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.

46       From these observations, the following points can be distilled as applicable to the finding of facts in this Commission in applications made under s 29(1)(b) of the Act:

(a) in accepting material to justify orders, that material must have rational probative force;

(b) facts can be found without demanding adherence to the rules of evidence, but a Commissioner must base his or her decision upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or the likelihood or unlikelihood of the occurrence of some event, past or future;

(c) whilst the Commission is not bound by the rules of evidence, that does not mean all the rules of evidence should be ignored.  Examples of rules of evidence that should not be ignored are the rules in Browne v Dunn (1894) 6 R 97 (HL) and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 which are rules designed to ensure a fair trial:  see the discussion in Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197;

(d) although tribunals can act upon hearsay, it should be given little weight if it is not sourced or no supporting evidence is adduced:  Pochi; and

(e) the Commission should not receive into evidence, or rely upon challenged evidentiary material, where the matter is important, of which there is or should be better evidence.

47       The information on which a court or tribunal may act must form a proper basis for the decision.  The information can only do that if it is logically probative, reliable and relevant and the parties have been given an adequate opportunity to comment on it.

48       As the learned author Forbes J R S in Justice of Tribunals (4th ed, 2014) points out in respect of relevance (207):

The principle of relevance binds everyone who determines rights according to public or private law. If a tribunal disregards relevant information, or acts on irrelevant information, its decision is apt to be set aside (See paragraphs [6.29] ff, above; Merivale Hotel Investments Pty Ltd v Brisbane Exposition Authority [1988] 2 Qd R 562; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40; Citibank Ltd v FCT (1988) 88 ATC 4714. But this rule is not infringed merely because a court may take a different view on a question of weight: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above at 41; Holmes v DCT (1988) 88 ATC 4328 at 4339-4341; Wajnberg v Raynor [1971] VR 665 at 678. Where a power is expressed in very general terms it is usually left to the decision-maker to decide what is relevant and what is not: Tomkins v Civil Aviation Safety Authority (2006) 91 ALD 645; [2006] FCA 1253). A rule allowing a tribunal to 'take such evidence and hear such argument as it thinks proper' does not justify arbitrary neglect of relevant evidence or capricious reliance on irrelevant material (Brettingham-Moore Municipality of St Leonards (1969) 121 CLR 509 at 524; Rose v Boxing NSW Inc [2007] NSWSC 20 at [72]).

(d) Was the 'reason' for termination of the employment of Mr Porter by the Commissioner founded on rationally logically probative evidence?

49       After:

(a) accepting the evidence of Mr Porter, Mrs Porter and Mrs Nelson;

(b) disregarding the entire evidence given by:

(i) Mrs Violanti; and

(ii) with the exception of Mr Leahy, the employees of Mr and Mrs Violanti;

(c) having made no assessment of or findings about the evidence given by Mr Leahy;

(d) accepting the evidence of Mr Violanti except 'the elements' relating to the allegations of drug handling and stealing;

the Commissioner found the real reason Mr Violanti terminated the employment of Mr Porter was that the relationship between Mr and Mrs Violanti deteriorated from the point at which Mr Porter refused to purchase or lease the pizza business.

50       Leaving aside the fact that the Commissioner made a substantial and erroneous error in judgment in rejecting the evidence of the employees of Mr Violanti and finding their evidence unreliable (on grounds they were led in their evidence-in-chief and failing to make any assessment of the evidence of Mr Leahy or any assessment of the evidence given by Mr Violanti and Mrs Violanti), when the evidence about a proposal or proposals for Mr Porter to purchase or lease the pizza business is assessed, it is patently clear that there was insufficient relevant and rationally probative evidence upon which such a finding could properly be made.

51       In this matter a statement is made in the notice of answer and counter-proposal that Mr Porter had been given two warnings over a period of months from January 2013 but that Mr and Mrs Violanti were prepared to give Mr Porter opportunities to rectify his behaviour because they had trained him with a view to him taking over the shop within the next 12 months (AB 26).

52       When Mr Porter gave his evidence-in-chief he made only a vague mention of any proposal put to him by either Mr or Mrs Violanti to purchase the business other than to recount a conversation he had with his grandmother, Mrs Nelson, about this issue.  His evidence was (ts 12, AB 74):

Could you - can you remember a conversation you had with your nanna in late 2010 about your future plans?---They were to do with me buying the Kwinana Pizza Parlour.

And what were they, please?---I would buy the business for 280,000 off of Ces.

And did Mr Violanti have any other plans after that?---He was going to retire.

And when that did not happen, was anything else said?---He said Eagle Boys wanted to buy the business, apparently.

53       Mr Porter did not say when this conversation occurred.  In cross-examination, he was asked, 'So what do you think the reason for your dismissal was then?' and he replied, 'Well, I didn't want to take over the business so he wanted to find someone else' (AB 75).  Thus, Mr Porter simply proffered a speculative opinion of the reason for the termination of his employment without any supporting or relevant direct or indirect evidence of facts, in particular evidence of any discussion with Mr Violanti about this issue, upon which reliability of his opinion could be assessed.

54       Mrs Porter gave hearsay evidence about a conversation Mr Porter had with her mother, Mrs Nelson, a conversation Mr Porter had with Mr Violanti in 2011 and in early 2013 about purchasing or leasing the business, and a conversation she had with Mr Porter about the price Mr Violanti wanted for the business in late 2010.  When giving evidence Mrs Porter stated when questioned by the Commissioner (ts 27, AB 89):

When Liam would not accept that offer, Mr Violanti came up with another one this year that Liam would rent the business for him - from him for two and a half thousand dollars a week. He would be responsible for the rent of the shop and all outgoings and he would have to employ Mrs Violanti and I believe that when he found out Liam was not going to do this, it could be the reason he was dismissed.

Why do you believe that?---Because up until Liam's last few months where suddenly he's supposed to have done so many things, he had an exemplary record at work. There'd never been any complaints about him from either bosses and Mr Violanti has been heard on many occasions trying to offload the pizza shop to many people and - - -

What do you say this document proves in your view?---It proves that I sent the email to Eagle Boys back in 2011. So it goes to show that the story is true and that I haven't just fabricated it now like - - -

All right. Thank you. So this was 2011 ?---Yes.

55       Whilst this hearsay was sourced, in that the makers of the statements were identified, the evidence should have been given no weight, as Mr Porter gave no direct evidence about any discussion he had with Mr Violanti about leasing the pizza business.  In addition, this evidence was nothing more than an opinion based upon hearsay and an assertion unsupported by any logically probative material that Mr Porter had informed Mr Violanti sometime in early 2013 that he did not wish to purchase or lease the business.

56       Mrs Porter also gave evidence about an email she sent to the state manager of Eagle Boys Pizza on 31 January 2011 about whether Eagle Boys Pizza were seeking to purchase the pizza business from Mr Violanti.  A copy of Mrs Porter's email and a reply was tendered into evidence:  exhibit Porter 4, AB 90.  The emailed reply on 4 February 2011 from a Mr Southgate stated he had not heard of Kwinana Pizza, nor did he have any interest in purchasing the store.  As this email correspondence occurred in early 2011 and the employment of Mr Porter was terminated in late May 2013, this evidence should have not been given any weight.  The sending of the email and the receipt of a reply occurred at a time that was too remote to the termination of employment of Mr Porter and in the absence of any probative direct or indirect evidence about any negotiations that Mr Porter had with Mr Violanti about the sale or lease of the pizza business during 2013, this evidence had no apparent rational connection to the termination of Mr Porter's employment.

57       Mrs Nelson also gave evidence about a conversation that she had with Mr Porter at the end of 2010 about a proposal to purchase the pizza business.  She told Mr Porter that the price Mr Violanti wanted was 'way too much'.  This evidence was also too remote in time to the termination of Mr Porter's employment and raised no primary facts upon which a rational causal connection to the termination of Mr Porter's employment could be made.

58       The only other evidence about the sale or lease of the pizza business was given by Mr Violanti when he gave his evidence-in-chief.  Mr Violanti said that:

(a) he was going to retire in October 2013 and that Mr Porter was offered the lease of the pizza business after he finished his traineeship;

(b) Mr Porter would have had to pay a bond on the plant and pay rent (AB 149);

(c) he denied that he had made an offer to sell the business to Mr Porter;

(d) the business had been sold (AB 150); and

(e) he did not speak to Mr Southgate about the purchase of the business but had spoken to the person who had owned the Eagle Boys Pizza store in Kwinana (AB 150).

59       Mr Violanti did not in his evidence address the issue as to when he offered to lease the business to Mr Porter or when he had the discussion with the owner of the Eagle Boys Pizza store.  Importantly, he was not cross-examined about this and it appears that the Commissioner accepted his evidence in respect of this issue.  Also of importance is the fact that at no time was it put to Mr Violanti that the reason why he terminated the employment of Mr Porter was because Mr Porter had refused to purchase or lease the business.  Nor was there any direct, or indirect, probative evidence that Mr Porter had at any time in 2013 or at any other time informed Mr Violanti that he did not want to purchase or lease the pizza business.

60       In these circumstances, the finding made by the Commissioner that the real reason for the termination of employment of Mr Porter was because the relationship between the parties had deteriorated from the point Mr Porter had refused to purchase or lease the business was not founded upon any relevant, reliable, direct, or indirect evidence and was in the circumstances mere speculation.

(e) Other errors in the assessment of the evidence

61       In Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ observed that the High Court has pointed out more than once that (479):

[A] finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact (See Brunskill (1985), 59 A.L.J.R. 842; 62 A.L.R. 53; Jones v Hyde (1989), 63 A.L.J.R. 349; 85 A.L.R. 23; Abalos v Australian Postal Commission (1990), 171 C.L.R. 167).  If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' (S.S. Hontestroom v S.S. Sagaporack [1927] A.C. 37, at p 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (Brunskill (1985), 59 A.L.J.R., at p. 844; 62 A.L.R., at p. 57).

62       In Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130, Martin CJ (with whom McLure P and Newnes JA agreed) recently stated the general principles which govern appeals against findings of fact in civil cases as follows [130] - [131]:

In order to succeed in an appeal against a finding of fact made at first instance, it is necessary for the appellant to establish that an error was made by the trial judge (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [27] (Gleeson CJ, Gummow & Kirby JJ); Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 [60] (Heydon JA, Spigelman CJ & Sheller JA agreeing)). In its assessment of whether an error was made by the trial judge, an appellate court will take into account the 'natural limitations' that apply to any appellate review proceeding wholly or substantially on the written record of the proceedings at first instance (Fox v Percy [23] (Gleeson CJ, Gummow & Kirby JJ)). Those limitations include the disadvantage which an appellate court has when compared to the trial judge as a result of not having seen the witnesses, and of not having experienced 'the feeling' of a case, which cannot always be readily extracted from a reading of the transcript (Fox v Percy [23] (Gleeson CJ, Gummow & Kirby JJ)).

Error will be established if the appellate court concludes that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence (Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184 [24]; [1992] FCA 184; (1992) 35 FCR 359). An inference will be drawn from the facts established by the evidence if it is more probable, in the sense that such an inference might reasonably be considered to have a greater degree of likelihood than any other available inference (Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480 - 481 (Williams, Webb and Taylor JJ)). However, an inference will not be drawn, and error will not be established, if the circumstances established by the evidence do no more than 'give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture' (Holloway v McFeeters, referring to Richard Evans & Co Ltd v Astley [1911] AC 674, 687 (Robson LJ)). An appellant challenging a finding of fact bears the burden not merely of showing that the facts for which he or she contends might be available or even correct, but of showing that the conclusions of the trial judge ought to be reversed (Williams [60]; Jones v Bradley [2003] NSWCA 81 [113] - [116] (Santow JA, Meagher & Beazley JJA agreeing); Adler v Australian Securities and Investments Commission [2003] NSWCA 131 [17] (Giles JA, Mason P & Beazley JA agreeing); Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 [52] (Giles JA, Ipp & Basten JJA agreeing)).

63       The findings of credibility in respect of the evidence of Mrs Porter and Mrs Nelson are not material to the issues raised in this appeal as their evidence was not relevant to the alleged misconduct that is said to have occurred in 2013 whilst Mr Porter was employed by Mr and Mrs Violanti.

64       Yet, in this matter the Commissioner was required to assess all of the evidence given by each of the other witnesses and determine which competing version or versions of the facts should be accepted as reliable.

65       The task of assessing competing versions of facts was explained by Steytler P in Skinner v Broadbent [2006] WASCA 2 as follows [37]:

[W]hen deciding between competing versions of the facts, it is necessary for a trial judge to explain why one version has been preferred over another. In doing so, the trial judge should refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of significant evidence, set out his or her findings as to how he or she has come to accept the one over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443; Waterways Authority at 1830. It is a judge's duty to consider all of the evidence in a case and, where important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442 and Beale, at 443. As Samuels JA pointed out in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, for a judge to ignore evidence critical to an issue of fact found against a party may promote a sense of grievance and create a litigant who is both disappointed and disturbed, because it tends to deny both the fact and the appearance of justice having been done.

66       The Commissioner did not assess the reliability or truthfulness of the competing versions of facts against the accounts of any other witness.  The Commissioner found that Mr Porter, Mrs Porter and Mrs Nelson gave their evidence honestly and to the best of their recollection.  She also found that she did not believe Miss B, Mr Beard or Master P to be dishonest persons.  She also found that Master P presented as being quite forthright.  Not only were no reasons given for these findings of credibility, these findings are glaringly inconsistent and erroneous.

67       The witness accounts given by Miss B, Mr Beard and Master P directly contradicted Mr Porter's denial of the allegations of dealing in drugs, drinking alcohol on the premises and misappropriation of funds from the till (ts 13, AB 75).  Miss B's testimony taken at its highest was that whilst working with Mr Porter she observed him exchange a bag of what appeared to be drugs with another person.  I say taken at its highest because when Miss B was cross-examined she conceded that whilst the material in the package looked like marijuana and that the fact that the delivery driver took the package out of his pocket did not prove he received the package from Mr Porter (ts 46, AB 108).  Mr Beard's evidence was that Mr Porter told him he had stolen money from work, which was money owed to him and Master P's evidence was that on many occasions he observed Mr Porter drinking beer whilst at work and that he had (at least on one occasion) observed Mr Porter take $50 notes out of the till, put some in his pocket and throw some of the dockets away.  Miss B's evidence was not challenged in cross-examination on grounds that her account of events was not truthful.  In cross-examination Master P's evidence was, however, challenged on grounds of credibility.  Master P said when cross-examined that it took Mr Porter between a minute or 30 seconds to remove the money from the till and dockets that corresponded to the amount taken from the till (ts 51, AB 113).  It was put to Master P that to do so would take longer than 30 seconds (ts 52 - 55, AB 114 - 117).  When cross-examined, Mr Beard's honesty was directly challenged.  Firstly, he was asked if he knew it was a serious offence to lie under oath (ts 67, AB 129).  Secondly, it was put to him that he was perjuring himself against his girlfriend's brother (Mr Porter) (ts 69, AB 131).  Thirdly, it was put to him that Mr Violanti had told him that it was in his best interests to give evidence (ts 69, AB 131).  In these circumstances, the Commissioner’s finding that Mr Porter, Mr Beard and Master P each gave their evidence honestly failed to recognise that the evidence of Mr Beard and Master P clearly was contrary to the evidence of Mr Porter and the case put on his behalf.  Also, no assessment of the reliability of the account given by Miss B, was made.  For example, it may have been open to give little weight to the evidence of Miss B on grounds that her interpretation of what she observed Mr Porter hand to the delivery driver may not be reliable as Miss B left the room after Mr Porter handed the delivery driver a package and on her return she then saw the delivery driver take a package out of his pocket which appeared to contain marijuana.  Nor was any assessment made of the reliability, consistency or inconsistency of the evidence of Mr Porter, Miss B, Mr Beard and Master P against the evidence given by Mr Violanti or Mrs Violanti.

68       The Commissioner rejected the evidence given by Mrs Violanti on grounds that, although Mrs Violanti has a language difficulty, she may have been instructed by her husband as to what to say in the witness box.  However, the Commissioner did not state her reasons for making this assessment of the reliability of Mrs Violanti's evidence.  It is clear from reading the transcript that Mrs Violanti had some difficulty understanding some questions put to her in examination-in-chief and in cross-examination.  This is revealed in the following exchange between counsel and Mrs Violanti:

Okay. And, Mrs Violanti, were you in any way intimidated? Were you - did anyone tell you you had to come in today to give evidence?---Yes.

Who told you that?---Had to come here?

Yes?---My husband.

Your husband said you had to come in?---Yes.

Yes. Because you're one of the owners?---Yeah.

Did he tell you what you had to say? Did he say to you, 'You must say this'?---Yes.

Okay. What I'm trying to say to you, did Mr Violanti - - -?---Sorry.

- - - put words in your mouth and tell you what evidence you had to give or did he say, 'You just tell the truth'?

It's a bit difficult, Commissioner?---Thank you very much.

MAYMAN C: I think she's being very honest?---Yeah. I have to say what I saw and what I see - what I saw.

MOUNTAIN, MS: He said to you you had to say what - - -?---Yeah.

- - - you saw?---Yeah.

Okay. Thank you very much, Mrs Violanti?---Finish?

MAYMAN C: No, no, no.

MOUNTAIN, MS: No.

MAYMAN C: No, you've got to have more questions?---Yes.

Ms Porter?

69       In her reasons for decision the Commissioner included that part of the transcript up to and including the point where Mrs Violanti responded, 'Yes', to the question, 'Did he tell you what you had to say?  Did he say to you, "You must say this"?'  However, the Commissioner did not include the following questions and answers which put this evidence in a completely different light - that is, that he told her to say what she saw (ts 73, AB 135)

70       Whilst the Commissioner referred in part to part of this exchange in her reasons for decision, she made no proper assessment of the evidence given by Mrs Violanti in this exchange.  It may, however, have been open to make a finding that Mrs Violanti may have been instructed by her husband as to what to say when giving evidence.  Yet, the Commissioner did not reveal her reasons for making that finding.  Nor did she assess any other matters raised in the evidence of Mrs Violanti, including the evidence she gave in cross-examination and re-examination, or whether her evidence was consistent with, or was inconsistent with, the evidence given by any other witness.  For example, Master P said in his evidence that he told Mrs Violanti that he thought Mr Porter was stealing money (ts 50, AB 112).  Mrs Violanti did not, however, say when giving evidence that Master P told her Mr Porter was stealing money.  This is an issue that should have been considered when considering the credibility and reliability of the evidence given by Mrs Violanti and Master P.

71       The Commissioner also erred in not making any assessment at all about the reliability and credibility of the evidence given by Mr Leahy.

72       The Commissioner made no proper assessment of the evidence given by Mr Violanti.  She did not state in her reasons for decision why she accepted in part the evidence of Mr Violanti but rejected the 'elements relating to the allegation of drug handling and stealing' by Mr Porter.  This finding is not only vague but the reason why such a finding was made is not revealed.  This finding is also inconsistent with the subsequent finding made by the Commissioner that she did not accept the evidence given by Mr Violanti that he warned Mr Porter about consuming alcohol on the premises in early 2013.

73       The only assessment the Commissioner made about the case put on behalf of Mr and Mrs Violanti that Mr Porter was dismissed because he had stolen money from the till was not made out because:

(a) the employer allowed Mr Porter to serve customers whilst working out a period of one week's notice;

(b) Mr Porter's 'exemplary behaviour' prior to the beginning of 2013;

(c) Mr Porter's length of service; and

(d) Mr Porter's willingness to work many additional hours.

74       Whilst the Commissioner's assessment about allowing an employee to serve customers and consequently operate the till after the employee had been given notice to terminate his contract of employment on grounds of stealing and the other matters referred to by the Commissioner in making this finding may have been relevant matters to consider when assessing the credibility and reliability of the evidence given by the witnesses who gave evidence on behalf of Mr and Mrs Violanti, these were only some of the matters that should have been considered and weighed when making a finding about whether the allegation of stealing was made out.  In particular, regard should have been made to the direct and relevant evidence given about this issue by Master P, Mr Beard, Mr Leahy, Mr Violanti and Mrs Violanti if each or if any of their evidence had been weighed and assessed as reliable.

75       For example, some matters that may have been material to an assessment of credibility and the reliability of evidence were:

(a) Mrs Violanti said in her evidence that she saw Mr Porter remove money from the till, whereas Mr Violanti said his accountant was concerned about the sales and purchase figures and told him to watch the till and balance the dockets numerically.  He also said that his wife raised the issue with him a few times but he told her, 'No, no, no' (ts 86 - 87, AB 148 - 149).  Mr Violanti did not say, however, that Mrs Violanti told him that she saw Mr Porter take money from the till.  Nor did Mr Violanti say he dismissed Mr Porter for actual stealing but said he did so because he suspected Mr Porter of stealing.

(b) Mr Violanti did not produce any dockets in support of his evidence that some dockets were missing (ts 98, AB 160).  Yet, this evidence could have been assessed in light of the evidence given by Master P that at the end of each night Mr Violanti counted the dockets and threw them in the bin (ts 55, AB 117).

(c) The evidence of Mr Beard that Mr Porter told him that he had stolen from work.

76       For these reasons, I am satisfied that the particulars set out in paragraphs 1, 2, 3, 4 and 5 of ground 2 of the appeal have been made out.  I am also of the opinion that in ground 3 the following particulars set out in paragraph 20 of these reasons are made out:  (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n) and (o).

77       I am not satisfied that ground 3(a) has been made out on grounds that if the Commissioner had made a proper assessment of the evidence of Mrs Violanti and the reasons why she found that Mrs Violanti had been instructed as to what to say in the witness box by her husband as this finding may have been open.  I am also of the opinion that ground 3(p) is not made out as no argument was put to the Full Bench in support of ground 3(p).

78       It is also argued on behalf of Mr and Mrs Violanti in ground 4 of the appeal that the Commissioner failed in applying the appropriate case law for circumstances where an employee is dismissed for misconduct.

79       In The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 principles that are to be applied by the Commission when considering whether an allegation of misconduct is relied upon by an employer as grounds for dismissal were considered.  After considering the application of the test enunciated by the Industrial Commission of South Australia in Bi-Lo Pty Ltd, I and Beech CC observed [63] - [67]:

In any event, leaving aside the application of Bi‑Lo, it is well established that where misconduct is alleged or relied upon there is a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate mitigating circumstances:  Garbett v Midland Brick [2003] WASCA 36 [72]; (2003) 83 WAIG 893, 901.

In Garbett Hasluck J observed that Franklyn J in Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98 had drawn upon the reasoning in Robe River Iron Associates v Australian Workers' Union, WA Branch (1987) 67 WAIG 320 when assessing whether a dismissal was unfair.  Hasluck J relevantly observed that Franklyn J [31]:

[H]eld that a decision on the question of whether a dismissal was unfair is a discretionary decision because a value judgment is required to be made as to whether the conduct which gave rise to the dismissal, viewed in all of its circumstances, justified the dismissal.  However, a finding of misconduct or of redundancy, which gives rise to a legal right to dismiss an employee, is not the subject of a discretionary judgment.  A finding as to misconduct or redundancy is a conclusion of fact.  The exercise of discretion arises only at the next step, that is to say, in determining whether the consequence of the misconduct or redundancy is fairly that of dismissal.

What emerges from these cases is that findings of fact must be made by the Commission as to what was the conduct which gave rise to the dismissal, what are the circumstances of that conduct and in making an assessment, regard should be had to the evidentiary onus on the employer.

The evidentiary onus has been described as an evidentiary burden:  Winkless v Bell (1986) 66 WAIG 847, 848; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70, 84; Franklins Ltd v Webb (1996) 72 IR 257, 260.  The employer does not have to establish that the employee was actually guilty of the misconduct alleged, rather it must show that following a proper inquiry there were 'reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal':  Bi‑Lo and see too Western Mining Corporation Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1084); The Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch v The Building Management Authority (1993) 73 WAIG 1876, 1877 per Fielding C.  In Shire of Esperance v Mouritz (1991) 71 WAIG 891 Kennedy J stated (895):

[I]t appears that the Full Bench misunderstood the nature of an evidential burden when it referred to the evidential burden being upon the employer to establish that summary dismissal for misconduct was justified.  An evidential burden does not require the person upon whom it lies to establish anything.  It imposes only an obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue.

If the employer establishes its position in this regard the onus then moves to the employee to show that dismissal for that reason was harsh, oppressive or unfair.  The Commission should concentrate on the overall effect of the dismissal in its context rather than treating the issue as concluded by the establishment of any breach by the employer of the terms of the contract of employment however inconsequential:  Garbett [66].

80       In this matter the employer sought through evidence of Miss B, Mr Beard, Master P and Mrs Violanti to adduce evidence that the employee was guilty of misconduct, as their evidence at its highest, if accepted, was direct evidence of misconduct.  In such a case the employer is obligated to show there is sufficient evidence to establish the facts said to constitute the misconduct.

81       Leaving aside the erroneous exclusion of the evidence given by Miss B, Mr Beard, Master P, Mrs Violanti and the failure to consider the evidence of Mr Leahy, the Commissioner made no findings of fact about whether Mr Porter had committed an act or acts of misconduct by stealing because she excluded all of the employer's evidence about this issue.  However, it is implicit in her finding that he was not dismissed on grounds of stealing, that she found that it had not been proven that he had stolen money from the till.  The Commissioner excluded the evidence given by Mr Violanti in respect of this issue by simply finding that she did not accept his evidence of 'elements relating to the allegation of stealing'.  Thus, by excluding all of the employer's evidence about stealing, the Commissioner found the employer implicitly failed to establish facts that constitute the alleged misconduct.  Whilst the Commissioner erroneously excluded this evidence, it does not follow that she misapplied the law in respect of the evidentiary burden that fell upon the employer.  For this reason, I am not satisfied that ground 4 of the grounds of appeal is made out.

(f) Is the Full Bench in a position to weigh the conflicting evidence and draw its own inferences and conclusions about whether Mr Porter was harshly, oppressively or unfairly dismissed?

82       In this matter, leaving aside the erroneous exclusion of witness evidence on grounds that they were each led in their evidence in examination-in-chief, the findings of fact made by the Commissioner are based solely on the credibility of the witnesses.

83       In Brown v Churchill [2006] WASCA 17, Pullin JA with whom Steytler P agreed observed that [40]:

An appellate court is obliged to conduct a real review of the trial; and the court is not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions. In doing so the court must bear in mind however, that it has neither seen nor heard the witnesses, and must make due allowance in this respect: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [21] - [25]. Although this is an appeal by way of re-hearing, that does not mean that the Court of Appeal is in exactly the same position as the trial Judge. Although the deciding of issues of fact by assessing credibility of witnesses should be minimised, it remains inescapable that in some cases issues will be decided by reference to credibility: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306 at [91]. If in a case credibility is a critical factor, and if evidence wrongly excluded may bear upon the critical witness' credibility, then, according to Windeyer J in Nominal Defendant v Hook [1962] HCA 50; (1962) 113 CLR 641 at 661, a retrial 'may generally be had'.

84       These principles apply to appeals that are heard by way of a re-hearing.  Yet, an appeal to the Full Bench is not in the nature of a re-hearing but is an appeal in the strict sense:  Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852.  However, this distinction in the role of the Full Bench is not in my opinion material.  In The Minister for Health v Drake-Brockman, I and Beech CC observed [73]:

Where the Full Bench conducts an appeal, it is to do so by reviewing the evidence and matters raised before the Commission at first instance for itself to ascertain whether an error has occurred.  Appeals before a Full Bench are not conducted as a rehearing but are an appeal in the strict sense:  Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1984) 64 WAIG 852.  Pursuant to s 49(4)(a) of the Act an appeal is required to be heard and determined on the evidence and matters raised in the proceedings before the Commission.  However, s 49(4)(a) does not prohibit a Full Bench from admitting fresh evidence under special or exceptional circumstances:  Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040.  An appeal by way of rehearing is an appeal where an appellate body can receive evidence and its powers are not restricted to making a decision that should have been made at first instance.  However, an appellate body in an appeal by way of rehearing can only intervene if there was error on behalf of the primary decision maker:  Coal and Allied Operations Pty Ltd v Full Bench of the Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [12] – [13].  Therefore the task of considering whether an appealable error has been demonstrated in assessing the credit of a witness or witnesses, where no further evidence is sought to be adduced, whether the appeal is by way of rehearing or in the strict sense, is arguably the same.

85       The conclusion reached by the Commissioner that dismissal of Mr Porter was unfair was founded upon unproven facts which in the absence of any proper assessment of all the evidence given by the witnesses was not only highly speculative but glaringly improbable.

86       Whilst error has been demonstrated in the reasoning of the Commissioner, is the Full Bench in a position to make its own assessment of the credibility of the witnesses and find facts relevant to the question whether Mr Porter was unfairly dismissed?

87       Mr Hooker on behalf of Mr and Mrs Violanti reluctantly put a submission on behalf of his clients that this is not a case where the Full Bench, lacking the opportunity to see and hear the witnesses give their evidence which was rationally probative of the issues in dispute, could legitimately make the necessary findings of fact.  It is with regret that this submission must be accepted, as the proper assessment of the credibility of the witnesses in this matter is a critical issue to the determination of the issue whether Mr Porter committed the acts of alleged misconduct.  Mr Hooker also made a submission that this matter cannot be remitted to the Commissioner to make fresh findings of credibility and draw relevant and rationally probative inferences from the evidence.  Thus, an order is sought that the decision made at first instance be suspended and the matter be remitted for the matter to be re-heard.

88       Unfortunately the critical issues in this matter turned substantially upon a proper assessment of the credibility of the witnesses.  A fundamental failure in reasoning that led to findings excluding the evidence of witnesses and making findings that witnesses who gave inconsistent factual accounts were each honest witnesses and a fundamental failure to make any, or any proper assessment of the reliability of the evidence given by each witness renders an order to remit this matter to the Commissioner to make fresh findings of credibility and reliability impossible.  In these circumstances, there must therefore be an order made by the Full Bench which will lead to a retrial.  Ordering a new trial is in all cases a deplorable result:  Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [36].  Both parties in this matter will be exposed not only to the cost associated with the first hearing and this appeal, but the cost and inconvenience of a second hearing unless the application is settled.  If a second hearing proceeds, the parties and their witnesses will also be exposed to strain and anxiety. 

89       To enable this matter to be re-heard in its entirety an order should issue to suspend the decisions and remit the matter for further hearing and determination.

BEECH CC:

90       I have read in advance the Reasons for Decision of Her Honour the Acting President.  I agree with her reasons and the order to issue and have nothing to add.

SCOTT ASC:

91       I have read in advance the Reasons for Decision of Her Honour the Acting President.  I agree with her reasons and the order to issue and have nothing to add.